Torts Flashcards
What torts does transferred intent apply to?
Only applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels
What is the rule/elements of battery? (tort)
Rule: D causes harmful or offensive contact with P’s person or something closely connected to P
i) Intent: D must either:
(1) Desire to cause an immediate harmful or offensive contact; or
(2) Know that such contact is substantially certain to occur
ii) Harmful or Offensive Contact
(1) Inflict pain or impairment of any function of the body
(2) Offensive to a reasonable person
(3) P need not be aware of the contact (unlike assault)
iii) To the person or something physically closely connected thereto
b) P does not have to prove injury; will get compensatory damages just by showing the elements
What is the defense to battery?
consent
What is the rule for assault? (Tort)
Rule: D intentionally causes P to be in reasonable apprehension of an immediate harmful or offensive contact
i) Intent - D must:
(1) Act with the desire to cause an immediate harmful or offensive contact or the apprehension of such contact, or
(2) Know that such a result is substantially certain to result
ii) Reasonable Apprehension – objective (Reasonable Person) standard
(1) If the apprehension is reasonable, it doesn’t matter whether D could actually carry out the threat.
iii) Imminent Battery – Must be able to occur almost instantly
What is the rule/elements for false imprisonment?
Rule: D intentionally causes P to be confined in a bounded area against P’s will and P knows of the
confinement or is injured by it
i) Intent
(1) D desires to confine or restrain P in a bounded area, or
(2) Knows that such confinement is virtually certain to result
ii) Confinement in Bounded Area
(1) Physical barriers, threats of force, failing to release P after duty to release arises, or the invalid assertion of legal authority
(2) No duration requirement
(3) If P knows (actual knowledge) of reasonable means of escape, then no confinement and no liability
(a) Reasonable = no threat of harm to P or property; can’t expose P to risk of embarrassment
iii) Against P’s Will – Consent is a defense
iv) P is aware of confinement OR injured thereby (harm/damages)
What is the rule/elements for Intentional Infliction of Emotional Distress? (IIED)
Rule: D engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distress
i) Intentional or Recklessness
(1) Intentional = D acts with the desire to cause severe emotional distress or knows that such severe emotional distress is virtually certain to occur
(2) Recklessness = D acts in conscious disregard of a high degree of probability that emotional distress will follow
ii) Extreme and Outrageous Conduct
(1) Conduct exceeds all bounds tolerated by civilized society
(2) Offensive or insulting language generally not enough, except when:
(a) D is a common carrier/innkeeper;
(b) D knows of P’s particular sensitivity; or
(c) D is an authority figure using racial/ethnic slurs against a subordinate
iii) Severe Emotional Distress
(1) P does not have to prove physical injury, but distress must be severe – greater than reasonable person (objective test) would expect to endure
(2) Must be substantial/long lasting as opposed to trivial/transitory
What is the rule/elements for trespass to land?
Rule: Intentional act that causes invasion of P’s land, interfering with P’s possessory interest in the land
i) Intent
(1) D desired to enter the land/caused something to enter, or
(2) D knew that land entry was substantially certain to result
(a) Mistake is not a defense
ii) Entry
(1) D enters or causes someone/something to enter (ex: bullet hypo)
(2) D enters the land lawfully but then refuses to leave when required
(3) D fails to remove/eject from P’s land when under legal duty to do so
iii) P’s Land—anyone in possession can bring claim (landowner, tenant, adverse possessor)
What is the rule/element for trespass to chattels?
Rule: D interferes with P’s chattel, causing damages
i) Intent
(1) D intentionally performs the physical act that interferes with P’s chattel
(2) Liable even though D did not intend to trespass (i.e., does so with good faith)
(3) Mistake is not a defense
ii) Interference = Uses or borrows without authorization
iii) Plaintiff’s Chattel = P’s personal property
iv) Actual Damages – Unlike trespass to land, proof of actual damages is an element of the cause of action for trespass to chattels. Actual damages to the chattel itself are not necessary; however, actual damages would include the value of loss of use of the chattel
during a dispossession or the cost to remedy an intermeddling
What are the remedies for trespass to chattels?
Damages: Cost of repair, fair market rental value, and potentially punitive damages if D is a particularly bad actor (willful, wanton, or malicious conduct).
Replevin: Get back personal property of which one has been wrongfully dispossessed
What is the rule / elements for conversion?
Rule: Intentional act by D, where D exercises dominion or control that causes the destruction of,
or serious and substantial interference with, P’s chattel
i) Intent
(1) Mistake no defense – liable even if acting in good faith and no intent
ii) Dominion and Control (Bona Fide Purchaser)
iii) Destruction or Serious and Substantial Interference = the exercise by D of dominion and
control over the chattel
(1) Interference with P’s property interest is more significant than trespass to chattel. Longer
period of interference and greater use by D leads to conversion
What are the remedies for conversion?
Remedies
i) Forced sale (common) – Market value at time converted
ii) Replevin – Action brought by P to get personal property back
What are the defenses and privileges to intentional torts?
POPCANS
- Privilege
- Others (defense of)
- Property (defense of) - reasonable force; no deadly
- Consent - express/implied (reasonable); Mistake can negate consent when it goes to the consequences or nature of the act
- Authority (arrest; shopkeeper’s privilege)
- Necessity
- Self-defense (honest and reasonable belief; proportionate force)
What are the elements of negligence?
Duty, breach, causation (actual and proximate), damages
What is the duty of an ordinary person to others?
D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against
unreasonable risk of injury to others
What is nonfeasance?
Failure to intervene/confer benefit on the P
No duty to rescue or aid, except when:
(1) D’s tortious conduct creates need to rescue;
(2) Undertaking to act—at common law, you do not have to intervene but if you do, must act
reasonably (many states have enacted Good Samaritan statutes—rescuer protected unless
rescuer is reckless or engages in intentional wrongdoing)
(3) Special relationship of dependence or mutual dependence (carrier/passengers, inn
keeper/guest, captain/passengers, drinking buddies)
Do providers of alcohol have a duty to control their customers?
(a) Traditional Rule: Purveyor not responsible for DUI injuries
(b) Dram Shop Acts: impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party
What is negligent entrustment?
When D gives something dangerous to someone D knows, or should know, is not competent to handle it (i.e., Father gives gun to infant who shoots P)
Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:
(a) Special relationship – Landlord/Tenant, Business/Invitee
(b) Some jurisdictions only find a duty where there is a special relationship and prior similar incidents that make the third party criminal conduct particularly foreseeable
What is the duty of a government entity with a Proprietary function (acting in private area)?
Treated as any other D for duty analysis
What is the duty of a government entity doing Discretionary activity/function (using judgment and allocating resources i.e., setting policy)?
Courts will not find a duty
What is the duty of a government entity doing a ministerial function?
Duty once government has undertaken to act (e.g.,: stop
sign installed incorrectly leading to accident)
What is the Public Duty Doctrine?
Courts find no duty when police officers/firefighters fail to provide an adequate response, except when:
(a) Special relationship; or
(b) Agency has increased the danger beyond what would otherwise exist
What are the elements of Negligent Infliction of Emotional Distress (NIED)?
D engages in negligent conduct and, as a result, P suffers emotional distress + some sort of physical manifestation
(a) Most jurisdictions require P to be in the zone of danger – At risk of physical harm
(b) P must have suffered a physical manifestation of the emotional distress, proving genuineness
What are the exceptions to the general requirements for NIED?
(i) D negligently shares information about the death of a loved one
(ii) D negligently mishandles a corpse
When can a bystander recover for NIED?
Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative
(a) P was located near the scene of the incident
(b) P suffered severe emotional distress
(c) P had a close relationship with the victim (immediate family member)
What is an invitee and what duty does a Landowner have to them?
Invitees = Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities
-D has a duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land
What is a licensee and what duty does a landowner have to them?
Licensees = Enters D’s land with D’s express or implied permission and are not there for a purpose benefiting D or D’s activities, nor is the land held open the public (i.e., social guest)
-duty: Must warn of known concealed dangers (just warn, not cure)
What is a trespasser and what duty does a landowner have to them?
Trespassers = Enters without express or implied consent of land possessor
-Duty to avoid infliction of willful or wanton harm
What is the duty of a landowner who is engaged in an activity on the land?
Duty of reasonable care owed to all except trespassers
To whom does a landowner have a duty to reasonably search out dangers on the property?
Invitees only
What is the duty of a landowner who has known or frequent trespassers (must be obvious- e.g., a well-worn path)?
Duty to warn of concealed dangerous artificial conditions
When does a landowner have a duty to child trespassers? (Attractive Nuisance Doctrine)
A heightened standard of care may apply as to artificial conditions on D’s land. Even though the child is trespassing, if the below prerequisites are met, the child will be treated as an invitee:
(1) Too young to appreciate the danger;
(2) D knows, or has reason to know, of trespass;
(3) D knows of the dangerous condition;
(4) Condition is artificial (fountain, pool, equipment that looks fun to climb on); and
(5) The risk of danger of the artificial condition outweighs its utility and burden to fix it
What is the duty of a landowner to plaintiffs not on the land but adjacent to it?
(1) Artificial condition on land –> duty of reasonably care
(2) Natural condition from land –> no duty except trees in urban areas
A landowner is not liable to a tenant for negligence, except in the context of:
(a) Common area over which LL retains control;
(b) Negligent repairs;
(c) At time of lease, LL knows of a concealed dangerous condition; or
(d) LL knows that T is going to hold property open to the public
In measuring the standard of care of a Reasonably Prudent Person (RPP), the law does not take into account mental ability, speed of reflexes, or mental health. The law does take into account:
(a) Physical conditions (blind, deaf, amputee) –> D held to the standard of a RPP with that condition (ex: RP blind person)
(b) Emergencies not of D’s own making considered by jury—(e.g., Rushing to hospital because child is dying). Jury can consider emergency to determine whether D acted reasonably under the circumstances
Breach of duty = Failure to act as a RPP – Factors to analysis of breach:
(1) What is the probability of harm occurring from D’s conduct?
(2) What is the likely magnitude of the harm going to be?
(3) What is the burden on D to avoid the harm?
How is a child’s conduct analyzed/measured for breach analysis?
Majority Rule: Minor D’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence, as D, would have done
(1) Exception: Children engaging in adult, inherently dangerous activities are held to an adult standard of care (ex: driving)
What is the effect of statutory negligence?
Statutes that provide civil liability supersede common law of torts (ex: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action)