Torts Flashcards
What are the 4 elements of defamation?
[DOPE]
i) The defendant’s Defamatory language;
ii) Is Of or concerning the plaintiff;
iii) Is intentionally/negligently Published to a third party (even just one person) who understands its defamatory nature; and
iv) It damages the plaintiff’s Economic or dignitary harm.
+Only applies to a living person; you can’t defame the dead
What are two ways in which assault differs from battery?
1) Bodily contact is not required for assault.
2) The plaintiff must be aware of or have knowledge of the defendant’s act or threat for assault.
What is the doctrine of joint and several liability?
Two or more tortfeasors who are found liable for a single and indivisible harm to the plaintiff are subject to liability to the plaintiff for the entire harm.
The plaintiff has the choice of collecting the entire judgment from one defendant or portions of the judgment from various defendants, as long as the plaintiff’s entire recovery does not exceed the amount of the judgment.
When determining whether contact is harmful for the purposes of battery, what is the objective test?
contact is offensive when a reasonable person would find the contact offensive.
What is the “eggshell skull” rule?
The defendant is liable for the full extent of the plaintiff’s injuries even if the extent is unusual or unforeseeable due to the plaintiff’s preexisting mental condition or vulnerability.
+But the tortfeasor is only liable for the injuries it caused. If someone had a preexisting injury, the tortfeasor does not have to pay for the entire preexisting injury
What is the traditional rule for contributory negligence?
The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.
What defenses are available to a defamation action?
truth,
consent,
absolute privileges (judicial proceedings, between spouses, as required media publications),
qualified privileges for some statements
What is the doctrine of “transferred intent?”
Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits:
i) A different intentional tort against that person;
ii) The intended tort against a different person; or
iii) A different intentional tort against a different person.
What is the majority rule for proximate cause?
A defendant is liable for reasonably foreseeable consequences of his conduct.
In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable.
What is the duty a land possessor owes to a trespasser?
A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.
What is the duty a land possessor owes to a licensee?
A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. There is no duty to repair or inspect the premises
Ex: A father has no duty to warn a grandfather that the son often leaves his toys out because the grandfather was aware of this due to regular visits. Licensees just need to be warned of HIDDEN dangers
What is the duty a land possessor owes to an invitee?
A land possessor owes an invitee the duty of reasonable care, including:
a duty to make a reasonable inspection to find hidden dangers and take affirmative action to remedy a dangerous condition
What is the definition of trespass to land?
The defendant’s intentional act causes a physical invasion of the plaintiff’s land.
What are the requirements of intentional infliction of emotional distress (IIED)?
the defendant intentionally or recklessly acted with extreme or outrageous conduct that caused the plaintiff severe emotional distress.
In what circumstances does a landlord have negligence liability to a tenant or third party for injuries suffered on the leased premises?
The landlord is liable for injuries to the tenant and others occurring:
i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) as a result of hidden dangers about which the landlord fails to warn the tenant;
iii) on premises leased for public use;
iv) as a result of a hazard caused by the landlord’s negligent repair; or
v) involving a hazard that the landlord has agreed to repair.
Are words sufficient to establish a prima facie case for assault?
For assault, words alone are insufficient. However, words coupled with conduct or other circumstances may be sufficient. If the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.
What qualifies as contact with the “plaintiff’s person” for the purposes of battery?
Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery (e.g., a person’s clothing, a pet held on a leash, a bicycle ridden by the plaintiff).
How is express consent, as a defense to intentional torts, established?
The plaintiff expressly consents if the plaintiff, by words or actions, manifests the willingness to submit to the defendant’s conduct. However, the defendant’s conduct may not exceed the scope of the consent.
In negligence actions, what standard of care applies to a professional?
A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.
+But a medical specialist is held to the national standard of care
When has a plaintiff impliedly assumed a risk? What is the effect of that assumption?
The plaintiff must voluntarily encounter a known, specific risk in order to have impliedly assumed that risk. Most courts hold that the voluntary encountering must also be unreasonable.
What is the Andrews view regarding the foreseeability of a plaintiff? (minority)
a duty of care is owed to everyone, including unforeseeable plaintiffs
What is the Cardozo view regarding the foreseeability of a plaintiff? (majority)
a duty of care is owed to the plaintiff if she is a member of the class of persons who might be foreseeably harmed as a result of the defendant’s negligent conduct. (zone of danger)
In negligence actions, what is the general standard of care?
The general standard of care imposed is that of a that of a reasonably prudent person under the circumstances.
What is required to use force to defend property?
1) warning required, unless it would be futile or dangerous
2) A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property
3) deadly force can be used if non-deadly force will not suffice and the defendant reasonably believes death or serious bodily harm will result otherwise
When will a defendant’s actions be considered intentional?
The defendant acts intentionally if:
i) The defendant acts with the purpose of causing the consequences of that act; or
ii) The defendant acts knowing that the consequence is substantially certain to result.
What is the firefighter’s rule?
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.
To which five torts does the doctrine of transferred intent apply?
- Battery
- Assault
- False imprisonment
- Trespass to chattels
- Trespass to land
It does not apply to the intentional torts of IIED or conversion
What is the “shopkeeper’s privilege?”
A shopkeeper’s reasonable (in both duration and manner) detention of an individual that the shopkeeper reasonably believes is shoplifting in order to investigate the facts.
What are the elements of battery?
[HOCI]
harmful or offensive contact, with intent to cause such contact
+A battery can be committed by ordering another person to do the act
Generally, when may a defendant act in self-defense and how much force may the defendant use?
A defendant may act in self-defense when the defendant reasonably believes an offensive contact or bodily harm is about to be intentionally inflicted upon him.
The force used in self-defense must be reasonably proportionate to the anticipated harm.
When does an intervening event (an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury) cut off a defendant’s liability?
An intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.
What is the distinction between libel and slander?
Libel is defamation by words written, printed, or otherwise recorded in permanent form (*basically everything but spoken).
Slander is spoken defamation
[remember Libel is LARGER]
What effect does the classification of defamation as libel or slander have on damages?
Generally, and subject to constitutional restrictions, presumed damages may be awarded for libel, but slander requires proof of special damages unless it constitutes slander per se.
[Remember slander isn’t special]
What is the effect of a plaintiff’s negligence on a strict products liability action?
In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action.
When is the owner of a domestic animal strictly liable for harm done by the animal?
A domestic animal’s owner is strictly liable for injuries caused by that animal if 1) he knows or has reason to know of the animal’s dangerous propensities, and 2) the harm results from those dangerous propensities.
+A landowner is also strictly liable for injuries inflicted by a vicious watchdog
Ex: A farmer owns cattle kept in a grazing area. One day the cattle were frightened by a thunderstorm, an occasional occurrence in the area and broke out and severely destroyed the neighbor’s crops. The farmer is liable because the storm was foreseeable and therefore strict liability applies.
In what ways may a plaintiff be confined resulting in false imprisonment?
The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or the plaintiff’s property), or by the invalid use of legal authority, duress, or the failure to provide a reasonable means of safe escape.
What is the imminence requirement for assault?
The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm.
What are the elements for intentional interference with a contract?
i) A valid contract existed between the plaintiff and a third party;
ii) The defendant knew of the contractual relationship;
iii) The defendant intentionally interfered with the contract, causing a breach; and
iv) The breach caused damages to the plaintiff.
What is required for a prima facie case for strict liability?
i) An absolute duty to make the plaintiff’s person or property safe;
ii) Breach;
iii) Actual and proximate causation; and
iv) Damages.
What are the typical situations to which strict liability is applied?
Strict liability is typically applied to dangerous activities, animals, and defective or dangerous products. [DAD]
When will a court hold a child or a mentally incompetent person liable for an intentional tort?
A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they either act with a purpose or know the consequences of their acts with a substantial certainty.
What does it mean to be “confined within boundaries” for the purposes of false imprisonment?
The plaintiff must be confined within a bounded area in which the plaintiff’s freedom of movement in all directions is limited. The bounded area may be large and need not be stationary.
What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury?
Substantial-factor test: In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.
What is the definition of trespass to chattel?
intentional interference with the plaintiff’s right of possession by dispossession or using the chattel
+There must also be ACTUAL harm to or deprivation of the use of the chattel for a substantial time
Ex: shooting bullet holes into the vehicle’s fender
+Mistake of fact or law is no excuse.
Ex: denting the door of a school bus is probably not trespass to chattel because there was no interference with the driver’s possession of the bus
When is the use of deadly force justified in self-defense?
The defendant may use deadly force only if the defendant has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him.
What is the definition of a private nuisance?
a substantial and unreasonable interference with another individual’s use and enjoyment of his land.
+causing nearby property values to decline is not a nuisance
+A nuisance that was started solely to annoy must be unreasonable because there is no utility
+A private nuisance impacting use of a public park would fail because it must be interference with private land
What are the elements of false imprisonment?
intentionally and actually confining the plaintiff who is conscious of the confinement or harmed by it
What is the definition of conversion?
Conversion is essentially a trespass to chattel, but in a manner so serious as to deprive the P of the use of the chattel The plaintiff’s damages are the chattel’s full value at the time of the conversion.
+the longer property is deprived, the more likely it will be conversion
What are the elements for strict products liability?
DEC
because this is when a lot of products are sent
The plaintiff must plead and prove:
i) The product was Defective;
ii) The defect Existed when it left the commercial supplier’s control; and
iii) The defect Caused the plaintiff’s injury when the product was used in a reasonably foreseeable way.
What level of force may be used when recapturing one’s personal property that was wrongfully taken?
A person may use reasonable force to reclaim personal property that another has wrongfully taken. Before using reasonable force, the person must request the return of the chattel unless the request would be futile.
What level of force may be used when recapturing one’s personal property that was legally taken and the current possessor of the property has merely retained possession beyond the period of time to which the owner consented?
only peaceful means may be used to reclaim the chattel.
When may someone use deadly force to defend property?
Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device (e.g., a spring-loaded gun) to defend property.
What are six circumstances in which a defendant has an affirmative duty to act?
1) assumption of duty (rescuer)
2) placing another in peril
3) contract
4) authority (parent to a child)
5) special relationship (common carrier-passenger)
6) statutory obligation
What are the requirements of assault?
intentionally causing the plaintiff a reasonable apprehension of an immediate harmful or offensive contact with his/her person.
When may a defendant be liable to a third-party victim for IIED?
A defendant whose extreme and outrageous conduct has harmed a third-party may be liable to a third-party victim if
(1) the plaintiff contemporaneously perceived that conduct,
(2) the plaintiff was closely related to the third party, and
(3) the defendant knew of the plaintiff’s presence and that relationship.
What is the definition of a public nuisance?
A public nuisance is an unreasonable interference with the health, morals, welfare, safety, or property rights of the community
What is the effect of an exculpatory clause in a contract under which the defendant disclaims liability for negligence? In what situations will it not be enforced?
An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an affirmative defense to a negligence action.
Ex: A patron at a resort ranch took part in a supervised horseback trail ride. Prior to the ride, the patron executed a valid release that enumerated the inherent risks of horseback riding and, by its terms, relieved the resort from liability from any loss, damage, or injury to the guest’s person or property suffered during the ride attributable to the negligence of the ranch or its employees. The patron was injured by a fall from the horse. The horse reared in response to negligent behavior of another rider who was also a patron at the ranch. The exculpatory provision means the resort has no liability at all
In what situations will an exculpatory clause not be enforced?
GRIPD
Courts will not enforce exculpatory provisions:
- Disclaiming liability for Reckless or wanton misconduct or gross negligence;
- When there is a Gross disparity of bargaining power between the parties;
- When the party seeking to apply the exculpatory provision offers services of great Importance to the public that are a practical necessity for some members of the public such as medical services;
- When it is against Public Policy to enforce agreements that insulate people from the consequences of their own negligence.
- If the exculpatory clause is subject to typical contractual Defenses such as fraud or duress; or
When is conduct considered extreme and outrageous for the purposes of IIED?
if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
How does product misuse affect the recovery of damages in a strict products liability action?
The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates the manufacturer’s liability.
What is the rule regarding a parent or educator’s use of force in disciplining a child?
A parent may use reasonable force or impose reasonable confinement as is necessary to discipline a child, taking into consideration the age of the child and the gravity of the behavior. An educator has the same privilege unless the parent places restrictions on that privilege.
What are the elements for intentional misrepresentation (i.e., fraud, deceit)?
Making Scientific Inquiries Causes Justifiable Applause
i) The defendant Made a Misrepresentation of a material fact or failed to disclose a material fact when under an affirmative duty to do so;
ii) Scienter;
iii) Intent to induce plaintiff’s reliance on the misrepresentation;
iv) Causation;
v) Justifiable reliance; and
vi) The plaintiff must prove Actual damages (nominal damages are not awarded).
What types of damages are permitted for strict products liability claims?
Only personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action.
What is a “Good Samaritan” statute?
A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.
When may a private citizen make an arrest?
A private citizen is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.
When is a person who engages an independent contractor vicariously liable for the independent contractor’s torts?
Those who engage an independent contractor are generally not vicariously liable for the torts of the independent contractor. A person who hires an independent contractor is vicariously liable for certain conduct, including:
i) Inherently dangerous activities;
ii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway);
iii) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and
iv) In a minority of jurisdictions, the duty to comply with state safety statutes.
What are four invasion of privacy torts?
[PIMP]
1) Placing the plaintiff in a false light
3) Intrusion upon seclusion
2) Misappropriation of the right to publicity
4) Public disclosure of private facts
When does the initial aggressor have a right to claim self-defense?
The initial aggressor is not entitled to claim self-defense unless the other party has responded to nondeadly force with deadly force.
What are three situations in which a plaintiff’s express consent will not constitute a defense to an intentional tort?
If consent is obtained through any of the following means, the consent is invalid.
1) mistake
2) fraud
3) duress
When is an employer vicariously liable for an employee’s torts?
An employer is liable for the tortious conduct of an employee that is within the scope of employment. Generally, an employer is not liable for the intentional tort of an employee unless such force is inherent to the job or the employee is authorized to act or speak for the employer and the position provided an opportunity for the tort.
When is the owner of a wild animal strictly liable for harm done by the animal?
An owner of a wild animal is strictly liable for harm done by that animal, despite any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know. Strict liability also applies to injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal.
What effect does evidence of custom have on the standard of care in a negligence action?
Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.
What are the types of product defects?
[DE FA M]
A product is defective when, at the time of the sale or distribution, it contains a:
- DEsign defect
- FAilure-to-warn defect
- Manufacturing defect:
When is use of force in defending others justified?
One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense. The defender may use force that is proportionate to the anticipated harm to the other party.
What test is generally applied to determine whether a defendant’s conduct was the actual cause of the plaintiff’s harm?
“But for” test: If the plaintiff’s injury would not have occurred but for the defendant’s tortious act or omission, then the defendant’s conduct is a factual cause of the harm.
What is the learned-intermediary rule regarding prescription drugs and medical devices in the context of strict products liability?
The manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.
What elements must be established for violation of a statute to constitute negligence per se?
1) Violation of a statute without excuse;
2) The plaintiff is within the class of persons the statute is designed to protect;
3) the statute is designed to guard against the type of harm suffered by the plaintiff
What are the elements of res ipsa loquitor under the traditional approach?
NED
Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:
i) the accident would Not Normally occur unless someone was negligent;
ii) the defendant had Exclusive control over the thing that caused the harm; and
iii) the plaintiff Did nothing to cause the harm.
What are the four elements of negligence?
Duty, breach, causation, damages
When can a bystander outside the zone of danger recover for NIED?
NIED recovery for plaintiffs outside the zone of danger is allowed if the plaintiff:
i) is closely related to the person injured by the defendant and
ii) was present at the scene of the injury; and
iii) personally observed (or otherwise perceived) the injury.
Ex: A child is negligently crushed to death by a fallen telephone pole and the mother is told subsequently what happened. It does not matter if the mother is closely related and has a severe response, since she was not present at the scene of the accident. Therefore, she cannot sue for NIED
In negligence actions, what standard of care is imposed upon a child?
The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.
What is an abnormally dangerous activity?
An activity that:
i) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised;
ii) The activity is not commonly engaged in.
iii) and the danger outweighs the activity’s value to the community
For what harms from an abnormally dangerous activity is strict liability applicable?
Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place.
Who may be a defendant in a strict products liability action?
The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff, which includes the manufacturer of the product, its distributor, and its retail seller. However, service providers are not subject to strict products liability
+A health club is a service provider
When it comes to lawyers and other professionals, evidence of custom is admissible as evidence to establish the proper standard of care, and such evidence is…
dispositive
Who can be sued in a strict products liability claim?
commercial suppliers or sellers. Service providers or users of a defective product are not subject to strict products liability
Ex: A child is struck by a faulty nail gun used by a construction worker.
What is it called when each person who is liable for paying damages is only liable for his or her proportional fault?
pure several liability
What is modified comparative negligence?
the plaintiff’s recovery is reduced by his or her proportionate share of fault and is BARRED if the plaintiff’s fault exceeds 50%
What happens in a pure comparative-fault jurisdiction, when the plaintiff and the defendant are both entitled to recover damages?
the plaintiff’s recovery is reduced (i.e., offset) by the defendant’s recovery (and vice versa).
What is the definition of cause in fact?
without the act or omission, the harm would not have occurred
