Torts Flashcards
Zone of Danger
P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances
(P2 must be located within the foreseeable zone of danger)
Res ipsa loquitor requirements
- the accident causing the injury is of a type that would not normally occur unless someone was negligent;
- the negligence must be attributable to the defendant; AND
- the plaintiff must be free from fault- must show that the injury was not attributable to her
Est duty and breach
Est inference of negligence (burden does not shift)
Motion for Directed Verdict - how often granted on MBE questions?
Very high burden on the movant
P’s motion almost always denied, unless P has est statutory violation, no issue of PC or damages (about 5%)
D’s motion sometimes granted (about 20%) P failed to est breach or stat violation is excused or inapplicable
Both denied often (about 75%)
Is there ANY triable issue of fact? Yes – > deny
Negligence per se
Established by violation of a statute if the P shows:
1. She is in the class intended to be protected by the statute AND
2. the statute was designed to prevent the type of harm that she suffered
Est duty and breach
Est presumption of negligence, shifts burden of production
Res Ipsa Loquitor versus Negligence per se
Both est duty and breach, overcome directed verdict
RIL = Est inference of negligence (burden does not shift)
NPS = Est presumption of negligence, shifts burden of production
Tests for actual cause (cause in fact)
- but for test
- substantial factor test
- alternative causes approach
But for test
Several acts, each insufficient to cause injury alone, combine to cause injury
Substantial factor test
Several causes and any one alone would have been sufficient
Alternative causes approach
Several acts, but only one cause P’s injury
General test for proximate cause
Was the harm within the risk caused by D’s conduct?
If an intervening force is foreseeable, it will NOT cut off the D’s liability for his negligent conduct
Firefighter’s Rule
A public safety officer (generally a cop or firefighter) cannot recover for injuries suffered while in the line of duty
Intervening force
An outside force that comes into motion after the D’s negligent act and combines with it to cause P’s injury
NEVER the conduct of the P or D
Pure Comparative Negligence
P’s recovery is reduced by the percentage of fault attributed to her.
P may recover no matter how great her fault
On MBE, assume pure comparative negligence unless facts say otherwise
Modified comparative negligence
(only if explicitly says so in the fact pattern)
P can only recover if she is less than 50% at fault
Affirmative duty to act/Duty to control conduct of a third party arises when
One has the authority and ability to control the conduct of the third party
One knows or has reason to know of the need to exercise such control
Respondeat superior
Er is vicariously liable for any negligent acts of his ees committed within the scope of the employment relationship
Can apply to intentional torts as well, when “force is inherent in the nature of the employment” (bouncer, security guard)
Prima facie elements for ALL intentional torts
-act by D
-intent
-causation
Hypersensitivity of the plaintiff is ignored
Are there incapacity defenses for intentional torts?
No
Intent definition for torts
Desire to produce the legally forbidden consequence
Transferred intent
D has intent BUT
-different consequence OR
-different victim
D still liable
Intentional torts
Battery Assault False imprisonment IIED Trespass to land Trespass to chattels conversion
Battery elements
- harmful or offensive conduct (need not be instantaneous)
- contact with the plaintiff’s person
Battery: harmful or offensive
Harmful: causes actual injury, pain, or disfigurement
Offensive: would be considered offensive to a reasonable person. Unpermitted.
Battery: contact with the plaintiff’s person
includes:
anything that P is touching or holding
Damages for intentional torts (except IIED)
plaintiff can recover nominal damages even if actual damages aren’t proved
plaintiff may recover punitive damages for malicious conduct
Assault elements
-act by D creating a REASONABLE APPREHENSION (knowledge) in the plaintiff
-of an IMMEDIATE battery
(apparent ability to commit a battery is enough)
(words are not enough, but can negate reasonable apprehension or immediacy)
False imprisonment elements
-act or omission. By D that confines or restrains P
-P must be confined to a bounded area (P must know if confinement or be harmed by it)
(time period of confinement is irrelevant)
Sufficient methods of confinement or restraint for false imprisonment
-physical barriers
-physical force directed against P, immediate family, or personal property
-direct threats of force
-indirect or implied threats of force
-failure to release P when under a legal duty to do so
-invalid use of legal authority
INSUFFICIENT: moral pressure, future threats
Bounded area for false imprisonment
- freedom of movement must be limited in all directions
- must be no reasonable means of escape known to P
IIED elements
-act by D amounting to extreme and outrageous conduct (transcends all bounds of decency tolerated in a civilized society)
-P must suffer SEVERE emotional distress
(recklessness will satisfy intent here)
(mere insults are not considered outrageous)
Damages for IIED
- actual damages required (severe emotional distress)
- only intentional tort that requires actual damages
Hallmarks for outrageousness for IIED
- conduct is repetitive in nature
- D is a common carrier or innkeeper
- P is a member of a fragile class (child, elderly, pregnant)
- targeting a known sensitivity
IIED: causation in bystander cases
D’s conduct is directed at a third person and P suffers severe emotional distress because of it
P may recover by
-showing either the prima facie elements OR
-1. P was present when injury occurred 2. the distress resulted in bodily harm or P is related to the third person AND 3. D knew these facts
Trespass to land elements
-physical invasion (by person or object)
-of land (includes air above and soil below to a reasonable distance)
(intangibles like noise or odor = nuisance, not trespass)
(awareness of boundary NOT required)
(deliberate act is required)
Claim for trespass to land belongs to the person with the right to ____ the property
POSSESS
Damages for trespass to land
P can recover without showing actual injury to the land
Trespass to chattels elements
-act by D that interferes with P’s right of possession in a chattel
Interference can be:
-intermeddling (vandalism)
-dispossession (theft)
(actual damages are required (this can include damage to possessory right))
Intent required for trespass to chattels and conversion
Intent to trespass isn’t required; intent to do the act of interference is all that is needed
D’s mistaken belief that they own the chattel is no defense.
Conversion elements
- act by D that interferes with P’s right of possession in a chattel
- interference is serious enough in nature or consequences to warrant that D pay the chattel’s full value (operates like a forced sale)
Remedies for conversion
Damages (fair market value at time of conversion)
Replevin (possession)
Defenses to intentional torts
- consent
- protective privileges
- necessity
Consent
- defense to all intentional torts
- must have legal capacity
- D may be liable if they exceed scope of consent given
Express consent exceptions
- mistake if D knew of mistake and took advantage of it
- consent induced by fraud if it goes to an essential matter, but not a collateral matter
- consent obtained by duress, unless it is only threats of future action or future economic deprivation
Implied consent
that which a reasonable person would infer from social custom and usage or the plaintiff’s conduct
body language consent consistent with social norms
Protective privileges/defenses
-self-defense
-defense of others
-defense of property
Ask: did D have proper timing? (immediate response) Did D have reasonable belief that threat is genuine?
Only REASONABLE force is allowed (necessary under the circumstances)
Self-defense
When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury
- majority rule: no duty to retreat
- not available to the aggressor
- reasonable mistake permitted
Defense of others
One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves
- reasonable mistake permitted
- can use the amount of force they could have used if they were the one threatened
Defense of property
One may use reasonable force to prevent the commission of a tort against their real or personal property
- request to desist or leave must first be made unless it clearly would be futile or dangerous
- does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing
Shopkeeper’s privilege
- reasonable belief as to theft
- detention conducted in a reasonable manner
- only for a reasonable period of time
- only nondeadly force
Necessity defense to property torts
A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it
Public: D acts in emergency to protect community (absolute defense)
Private: D acts in emergency to protect own interests (limited defense, must pay compensatory damages, no nominative/punitive damages for trespass to land)
Duty of care is owed only to
- foreseeable victims
- within the zone of danger
Firefighter’s rule
Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs
Are rescuer’s foreseeable plaintiffs?
Yes, when D negligently put themselves or someone else in peril
Reasonably prudent person standard
- hypothetical person
- objective standard
- no allowance for D’s shortcomings
Exceptions from reasonably prudent person standard
- D with superior knowledge or experience (becomes hypothetical person with the same superior knowledge or experience)
- RPP will have same physical characteristics as D if relevant to the claim
Special standards of care for children
Under 5: no standard
5-18: hypothetical child of similar age, experience, and intelligence acting under similar circumstances (subjective standard) (pro-defendant standard)
Exception: child engaged in adult activity gets RPP standard (ex operating a motorized vehicle)
Special standard of care for professionals
-malpractice claims
-a professional is required to possess the knowledge and skill of an average member of their profession providing similar professional services
-compare to real-world colleagues, not imaginary ones (empirical standard)
-for doctors, most courts apply a national standard of care to evaluate their conduct
DO NOT SAY “REASONABLE DOCTOR” DON’T FUCKING DO IT!!!
Special standard of care for possessors of real estate/land
- establishes rules for duty to protect from dangerous conditions
- activities conducted on the land use the ordinary RPP standard of care
Special standard of care for possessors of real estate/land: unknown trespassers
-no duty is owed to an unknown trespasser
Special standard of care for possessors of real estate/land: known or anticipated trespassers
-usually signified by a pattern of trespassing
Possessor has duty to warn or make safe any conditions if:
-artificial
-highly dangerous
-concealed from trespasser AND
-known to the land possessor in advance
(known, man-made death traps)
Special standard of care for possessors of real estate/land: licensees
Licensee = enters land with permission (express or implied) but w/o financial benefit to possessor (ex social guests)
Possessor has duty to warn or make safe any conditions if:
-concealed from licensee AND
-known to the land possessor in advance
(all known traps)
Special standard of care for possessors of real estate/land: invitees
Invitee = enter land with permission (express or implied) for financial benefit of possessor (includes when open to the public at large)
Possessor has duty to warn or make safe any conditions if:
-concealed from invitee
-known to the land possessor in advance or could have discovered by reasonable inspection
(all reasonably knowable traps)
How to satisfy premises liability duty
- eliminate the hazardous condition (repair, replace, remove)
- warn the entrant about hazardous condition
Premises liability for firefighters and police officers
- no duty for risks inherent to job
- firefighter’s rule
Trespassing children
-reasonably prudent care under circumstances to protect from artificial hazards
Attractive nuisance doctrine
P must show
-dangerous condition on the land that owner is or should be aware of
-owner knows or should know that children might trespass
-condition is likely to cause injury
-expense of remedying the situation is slight compared to the risk
Statutory standards of care (negligence per se)
-P borrows statute as alternative standard of care to RPP standard
Requires P to establish:
-legal: statute is legally appropriate (1. P is within protected class 2. Statute was designed to prevent the type of harm suffered by P) (class of person/class of risk)
-factual: D violated statute
Exceptions to statutory standard of care/negligence per se
- compliance would have been more dangerous than violation under the circumstances
- compliance would have been impossible under the circumstances
Affirmative duties to act
- generally no duty to act affirmatively
- if you choose to act, must do so as a RPP under the circumstances
- no duty to rescue
Exceptions where there is a duty to act
- relationship between parties (parent-child, common carriers, innkeepers, shopkeepers)—duty to act reasonably under the circumstances
- D caused peril—duty to act reasonably under the circumstances
- assumption of duty by acting (once D undertakes to rescue, they must do so with reasonable care) (exception: good Samaritan statutes that insulate negligent rescuers from liability)
In physical injury cases, P can also recover
Emotional damages
NIED- near miss cases
In addition to negligence, P must show:
- P must be within the zone of danger
- P must suffer physical symptoms from the distress
NIED- bystander case
D negligently injures 3rd party causing P emotional distress
In addition to negligence, P must show:
-P and the 3rd party are closely related (spouse, parent, child)
-P was present at the scene of the injury and personally observed or perceived the event
NIED- business relationship cases
P can recover if highly foreseeable that careless performance by D will produce emotional distress (ex patient/medical lab, customer/funeral parlor, NOT customer/dry cleaner)
Breach of duty
Concrete, specific behavior by D that falls short of relevant standard of care
Can be affirmative act or omission
Res ipsa loquitor
Used by P without information about D’s breach
P must show:
-accident is normally associated with negligence
-accident would normally be due to negligence of someone in D’s position
Gets case to jury, no motion for directed verdict
Factual cause
Link between breach and harm
But for cause
Injury would not have occurred “but for” act or omission
D’s rebuttal always begins with “even if…”
Merged causes – substantial factor test
2 D’s acting independently of each other each commit a breach combining into single indivisible harm (ex 2 negligently set fires)
2 Ds + 2 breaches
The test: D is liable if breach contributed in a significant way to ultimate injury
Significant if the breach could have caused the entire harm on its own
Ds jointly and severally liable
Unascertainable causes approach
2 acts, only one of which causes injury, but unknown which one
(ex hunting accident case)
Shifts burden of proof to Ds
Ds jointly and severally liable
Proximate cause general rule: Foreseeability test
Was outcome a foreseeable risk associated with the risk? Look at: -passage of time -geographic distance -prior occurrence
Common foreseeable intervening forces
P wins in these cases:
- medical malpractice
- negligence of rescuers
- protection or reaction forces to D’s conduct
- disease or accident substantially caused by original injury
Eggshell skull doctrine
Once P has established all other elements of claim, P receives ALL damages suffered, even if surprisingly great in scope
Comparative negligence
D shows P failed to exercise proper care for their own safety
Jury will be instructed to assign % of fault
Strict liability for animals
domesticated animals (house pets, farm animals):
-generally NO strict liability UNLESS knowledge of animal’s dangerous propensities not common to the species
-strict liability not available to trespassers
Wild animals:
-strict liability if possessed
Strict liability for abnormally dangerous activities
Abnormally dangerous activities:
- activity cannot be made reasonably safe even with ordinary care
- activity is uncommon in area
- commonly: explosives/blasting, dangerous chemicals/biological materials, high-dose radiation/nuclear energy
Defective products - potential claims
- negligence
- UCC claim for breach of warranty
- misrepresentation/fraud
- strict liability (usu easiest to prove) Don’t assume its strict liability!
Strict liability elements
- D is a merchant (including commercial lessors, everyone in the distribution chain (privity of K not required)) (NOT casual sellers, service providers)
- product is defective (manufacturing, design, or information defect)
- product was not substantially altered since leaving D’s control
- P was making foreseeable use of the product (foreseeable does not equal intended or appropriate)
Manufacturing defect
Product emerges from manufacturing different from others and more dangerous than consumers would expect (a weird one slipped through)
Design defect
Risks associated with the product’s design outweigh the utility of the design P must show alternative design that -would have been safer -was practical -was economically feasible
Information defect
Hidden risks without adequate warnings/instructions
Adequate warnings are
-prominent
-comprehensible
-provide information about mitigating risk
Defenses for strict liability
- traditional rule is P knowingly encountering a dangerous situation bars recovery
- unless the question mentions the traditional rule, assign percentages of comparative responsibility
Nuisance
Interference with peaceful use/enjoyment of real estate
- interference must be substantial (think “intolerable”)
- intent includes awareness of the interference
- inconsistent land use cases are common on exam
Nuisance versus trespass to land
Trespass: interference with the landowner’s exclusive possession by a physical invasion
Nuisance: interference with use or enjoyment
Vicarious liability
Active tortfeasor: party whose affirmative conduct caused the harm
Passive tortfeasor: party held vicariously liable based on relationship to active tortfeasor
Employee/employer vicarious liability
Er can be held liable if ee acting within scope of employment at time of accident
Frolic or detour:
-minor departure: mere detour, er is still liable
-major departure: deviation in time or area is substantial, er is not liable
Intentional torts are generally outside the scope of employment (could be within the scope if ee acting to further er’s purposes) (if occupation involves authorization to use physical force, misuse of that force is within the scope of employment)
Independent contractor/hiring party vicarious liability
Hiring party generally not liable for torts committed by IC
Exception: business owner can be held liable if IC working on business premises and hurts a customer
Vicarious liability-type of liability
Jointly and severally liable Contribution determined by % assigned by jury Indemnification available if -vicarious liability -strict liability
Loss of consortium
Claim by spouse of injured party, derivative of injured party’s claim
- loss of household services
- loss of society
- loss of sex
Defamation elements
- defamatory statement specifically identifying P (any identifying information is sufficient)
- published to a third party
- falsity of the defamatory language
- fault on the part of D
- damage to P’s reputation
Defamatory statement
Any statement adversely affecting reputation
A factual representation that reflects adversely on character
Must be susceptible to T/F analysis, not opinion (but could be making underlying factual representation)
Name-calling is insufficient
Can only defame living people
Group defamation
Small group: everybody has a claim
Large group: no one has a claim
Does publication in defamation need to be intentional?
NO
Defamation – fault
Fault required depends on P
- private person: negligence
- public figure: actual malice (knowledge or reckless disregard)
Libel
Defamation embodied in permanent form (written, recorded)
Damages are presumed
Slander
Spoken/oral defamation
P must prove economic harm if NOT slander per se
Slander per se
words so clearly defamatory that ordinary person would understand injury types: statements relating to P’s -business or profession -serious crime -serious sexual misconduct -loathsome/contagious disease Damages presumed
For what types of defamation are damages presumed?
Libel
Slander per se
Affirmative defenses to defamation
- consent
- truth
- privileges (absolute or qualified)
Absolute privilege
(can never be lost)
- communications between spouses
- communications during judicial proceedings, by legislators during proceedings, by federal executives in “compelled” broadcasts
Qualified privilege
(can be lost through abuse)
-available on a case-by-case basis when public interest in encouraging candor
-ex: references, reports of public hearings or meetings, statements made to those who are to take official action, statements made to defend one’s own actions, property, or reputation
Only applies to statements made in good faith and relevant in scope
Common interest privilege: statements made to colleagues within the same organization
Privacy: appropriation
D uses P’s name/image for commercial purpose
Exception: newsworthiness
NOT limited to celebrities
Privacy: intrusion
Invasion of P’s seclusion in a way that would be highly offensive to a reasonable person
Need to have a reasonable expectation of privacy
Privacy: false light
Dissemination of a material falsehood about P that would be highly offensive to a reasonable person
(could also qualify for defamation)
Privacy: disclosure
Widespread dissemination of confidential information about P not of legitimate concern to the public and highly offensive to a reasonable person
Exception: newsworthiness
Information must be truly confidential
Affirmative defenses to privacy torts
- consent
- absolute/qualified privilege can be used for false light and disclosure (NOT appropriation or intrusion)
The only intentional tort where recklessness is sufficient to prove intent and the plaintiff has to prove damages
IIED
intent for intentional torts - specific vs general
specific intent: D’s purpose was to bring about the consequences of the conduct
general intent: D knows with substantial certainty that the consequences will result
Transferred intent only applies if both the intended and completed tort are
- assault
- battery
- false imprisonment
- trespass to land or chattels
