Torts Flashcards
What are the baseline requirements for any intentional tort?
1) an act by D
2) Intent by D
3) Causation of the result to P from D’s act
For what intentional torts must P prove damages in order to recover?
The act must be a volitional movement
Must prove damages for IIED, Trespass to chattel, conversion
What is required of the defendant’s intent in all intentional torts?
The intent must be the desire to produce the forbidden consequences that are the basis of the tort or the KNOWLEDGE THAT THE FORBIDDEN CONSEQUENCE IS SUBSTANTIALLY CERTAIN TO OCCUR
Defendant does not need to intend injury
What is the doctrine of transferred intent?
Applies when the defendant intends to commit a tort against one person but instead:
1) commits a different tort against that person
2) commits the intended tort against another person
3) commits a different tort against a different person
What are the limitations on the doctrine of transferred intent?
Transferred intent can only be involved if both the tort intended and the tort that results are one of the following: assault Battery False imprisonment Trespass to land Trespass to chattels
Can someone who lacks capacity commit an intentional tort?
Yes - incapacity (either mental or youth) does not prevent the intent to commit an intentional tort
INCAPACITY IS NOT A DEFENSE to an intentional tort (You can sue a 10 year old)
What is required to prove the causation element in all intentional torts?
The defendants conduct must be a substantial factor in bringing about the injury.
What is the prima facie case for battery?
1) harmful or offensive contact (actually causes pain/injury or would be offensive to a reasonable person)
2) contact must be with the plaintiffs person or something connected to them/holding
3) intent to cause the contact (but not intent to cause the harm)
4) causation
What is a key limitation on what contact is offensive for purposes of battery?
1) Contact is only offensive if it has not been consented to and is offensive on an objective standard
2) consent is implied for ordinary contacts of everyday life (e.g. bumping in a crowded bus)
What is a general principle to remember about intentional torts and hypersensitive plaintiffs?
A plaintiff’s hypersensitivity should be ignored Act as if P is a reasonable person and if a reasonable person couldn’t recover neither should this weird plaintiff
Does P have to be damaged by a battery/assault/false imprisonment to successfully sue on it?
No - can award nominal damages even if actual damages aren’t proved.P can get punitive damages if D’s conduct was malicious
Does the harmful or offensive contact necessary for battery have to be instantaneous?
No it can be at a delay (e.g. poisoning)
What is the prima facie case for assault?
1) Act by D causes P to reasonably apprehend an immediate battery (harmful/offensive contact)
2) Intent to cause the apprehension
3) causation
What is required of the “apprehension” for an assault?
Fear is not required and P does not have to know D caused it but P does have to be AWARE of the IMMEDIATE battery
What does the “reasonable” requirement in reasonable apprehension mean for assault?
Exaggerated fears are not protected.D’s APPARENT ability to commit a battery is enough even if D cannot cause a battery (e.g. the unloaded gun)Reasonable apprehension turns on what P knows/should know - but if P knows there are no bullets in gun no reasonable apprehension
What effect can words have on the reasonable apprehension needed for assault?
Words can negate reasonable apprehension caused by acts that would have otherwise been created by conduct (e.g. conditional threats “if you weren’t by friend I’d hit you” or future tense threats)Words alone cannot create reasonable apprehension necessary for battery. (even if you say I’m going to hit you in 5 seconds)
If P intends to provoke D and D gives in and assault/batters P is provocation a defense?
No - provocation is not a defense even if P intended to provoke D
What is the prima facie case for False Imprisonment?
1) D’s act/omission confines/restrains P to a bounded area
2) intent to confine/restrain
3) causation
What are some commons ways for P to be confined/restrained?
1) physical barrier
2) force/threat of immediate force against P their family or their property
3) failure to release P when under legal obligation to do so
4) invalid use of legal authority (false arrest)
Moral pressure/FUTURE threats are not enough
How long does the period of confinement need to be for false imprisonment?
Doesn’t matter - any time period works
What does P have to know to have an action for false imprisonment?
P either has to perceive the confinement OR be harmed by it
What is required for the area P is confined in to be “bounded” for purposes of false imprisonment?
Freedom of movement must be limited in all directions - no REASONABLE (can’t be humiliating/disgusting/dangerous) means of escape KNOWN (or reasonably discoverable) to P
Does D’s apparent ability to carry out an imminent verbal threat prove IIED?
1) extreme and outrageous conduct
2) P must suffer severe emotional distress (physical harm not required)
3) intent (RECKLESSNESS is good enough) and causation
————
No, that is the “true threat” concept from 1A’s fighting word’s carveout - not at all related to IIED
What is meant by “extreme and outrageous” conduct necessary for IIED?
Must exceed all bounds of decency.
Conduct that is not normally outrageous can become outrageous IF:
1) it is continuous
2) it is committed by a certain type of D (common carrier/innkeeper)
3) directed toward a certain type of P (child/elderly/known to be pregnant/known sensitivity)
Insults alone are not enough even if distress is intended.
Does P actually have to be damaged to sue for IIED?
Yes - has to be actual not nominal damages (the more outrageous the conduct the less emphasis on proving harm/damages) Must be ACTUAL SEVERE emotional distress (no physical symptoms required but they help)
IIED is the only intentional tort that requires proving damages
How does causation work in IIED cases with a bystander plaintiff?
If D’s conduct is directed at a 3rd party and P (bystander) suffers severe emotional distress P can recover by showing the prima facie case of emotional distress OR prove all of
(1) that they were present when the injury incurred
(2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person
(3) D knew of the above
What is the prima facie case for trespass to land?
1) Physical invasion
2) of the plaintiff’s real property
3) intent to enter the land (but not intent to trespass)
4) causation
What is required for the physical invasion necessary for a trespass?
Must be tangible - can be a person or an object thrown onto land
Intangibles like vibrations and odors might be nuisance but are not trespass
Who has the claim for trespass to land if the land is currently leased by a LL to T or held by a life estate?
It is the person with possession of the land that has the right to sue for trespass (so the T not the LL)
What is the intent required for trespass to land?
D only needs to intend to enter the land - does not need to know that the land belonged to someone else.
Operating a soap factory with knowledge with substantial certainty that soap flakes will drift onto neighbor’s property is good enough
Is only the surface of land protected by the trespass to land tort?
No - invasions under the surface or in the air (out to a reasonable distance) are also considered trespass to land
Does P have to be damaged by a trespass to land to successfully sue on it?
No - no need to actually show injury to the land
What is the prima facie case for trespass to chattels?
1) D interferes with P’s right to possess a chattel
2) intent to do the act of interference (but not intent to wrongfully interfere; mistakenly taking something supports liability)
3) causation
What are the two types of interference for trespass to chattel?
1) Could be damaging the chattel
2) could be dispossessing P of the chattel
What is the intent required for trespass to chattel?
D only needs to intend to do the thing that causes the interference
*Mistaken belief that they own the chattel is no defense
Does P have to be damaged by a trespass to chattel to successfully sue on it?
Yes - must prove damage to the chattel or some other damage caused by the dispossession
What is the prima facie case for conversion?
1) D interferes with P’s right to possess a chattel
2) interference is so severe that D should pay the chattel’s full value
3) intent and causation
What are some common ways for D to convert property?
1) theft
2) wrongful transfer/detention
3) substantially altering/damaging/misusing the chattel
Look for duration and intensity of the interference to move something from trespass to chattel to conversion
What is the intent required for conversion?
D only needs to intend to do the thing that causes the interference
- No requirement to deprive the owner is required
- *Mistaken belief that they own the chattel is no defense
Can intangibles ever be converted?
Only if tangible (reduced to physical form - e.g. a promissory note)
What damages can P recover for conversion?
Can recover damages (FMV at time of conversion) or
can get the property back (replevin)
If successfully sue for conversion but owner still has some remnant of the original property, the one who converts gets to keep the remnant
What are the defenses to intentional torts?
1) Consent
2) Defense of self/others/property
3) Public/Private Necessity
What are some limitations on P’s ability to consent?
1) Can’t consent to a criminal act
2) P must have capacity
To what extent does a person have to be informed of the risks of an act before they can consent to it?
1) Was there valid consent?
2) Did D stay within the scope of the consent?
—————
Must be informed of material facts (facts that a reasonable person would want to know)
Describe the capacity limitation to valid consent?
If no capacity -> no valid consent (drunk people young children)
If limited capacity -> Can consent to things within their understanding (mild mental disability older children)
How does the role of capacity differ in evaluating P and D’s capacity in an intentional tort?
Everyone has the capacity to commit a tort
But not everyone has capacity to consent to have tort committed upon them
D expressly consents to P’s intentional tort what are the circumstances where D is still liable?
1) D knows P’s consent was mistaken and took advantage of it
2) D induced consent by fraud on an essential matter (but consent valid of fraud on a collateral matter)
3) consent obtained by duress (unless the threat was only a future or future economic threat)
What is implied consent to an intentional tort?
A reasonable person would infer consent from custom/usage or P’s conduct
(e.g. getting in the boxing ring or a new york subway)
When is consent implied by law for an intentional tort?
When action is necessary to save a person’s life or some other important interest in their person or property
What 3 questions do you ask when evaluating a defense of self/others/property for an intentional tort?
1) Does the defense apply (only applies to prevent a tort - already committed ones don’t apply)
2) Is a mistake permitted as to whether the tort being defended against is actually being committed?
3) Was proper force used?
What is required for defense of self/others/property with regard to the harm defended against?
The threat/harm has to be coming from the Plaintiff (unless bystander case) to be able to assert self defense against them.
When is a person entitled to self-defense?
When a person reasonably believes that they are being or are immediately about to be attacked they can respond with reasonably necessary force
Is there a duty to retreat before using force self defense?
No but minority view imposes a duty to retreat before suing deadly force (unless inside the home)
When is self defense available to the initial aggressor?
Self defense is not available to the initial aggressor unless the other party responds to nondeadly force with deadly force
D defends themselves and accidentally injures a third party - is D liable?
D is only liable to the third party if D deliberately injured the third party in an attempt to protect themselves
Is mistake allowed in self defense?
Yes as long as the mistake is reasonable
How much force can be used in self defense?
Only the force that appears necessary to prevent the harm (including deadly force)
When is defense of others a defense to an intentional tort?
D can use reasonable force to defend V to the same extent they reasonably believe V could use force to defend themselves
Is mistake allowed in defense of others?
Yes - reasonable mistake as to if V was entitled to defend themselves is allowed
When is defense of property a defense to intentional tort?
IF first verbally request to desist (unless clear it would be futile or dangerous) THEN can use reasonable force to prevent the commission of a tort against their real or personal property
How long is the defense of property defense in operation relative to the commission of the tort against D?
D cannot invoke the defense for actions taken after the tort has already been committed against them but D can use reasonable force in hot pursuit of another who has converted D’s property b/c tort is ongoing
Defense of property yields to those who have a privilege to commit an intentional tort such as…
necessity recapture of chattels etc.
Is reasonable mistake allowed in defense of property?
Generally Yes
BUT mistake is not allowed if the person has a privilege (like necessity or recapture of chattels) unless the person causes D to reasonably believe the action is not privileged (e.g. won’t disclose the necessity)
How much force can be used in defense of property?
Reasonable force but never force that causes death or serious bodily harm unless it’s a trespass that also poses a threat of serious bodily harm.
This means no traps, spring guns, vicious dogs to protect only property (can’t use force indirectly that you can’t use directly) Also can’t leave the electric current on to prevent people from stealing your transformers. Doesn’t matter if thief or trespasser or whatever
What is “shopkeeper’s privilege”?
If a shopkeeper/security guard of a shop reasonably believes there was a theft, they can use reasonable force (probaby need to verbally request first) to stop the suspect and detain them for a reasonable time to investigate (probably <30 min)
I’ve been dispossessed of my land by a trespasser can I reenter by force?
At common law yes
Modern law no (use summary action for ejectment - can’t use self help)
Someone originally had by chattel with permission but now they are trespassing against my chattel - can I retake?
Can only retake by peaceful means unless in hot pursuit then can use reasonable force
What is the standard for necessity?
Can commit an intentional tort against another’s PROPERTY when:
1) it is reasonably and apparently necessary to do so
2) in an emergency (harm imminent)
3) to avoid injury that is substantially more serious than the harm caused
The party claiming necessity cannot have created the choice between evils, but this seems to be narrowly construed on the bar exam - more likely a red herring when you see a “reasonableness” answer
What is the difference in public and private necessity?
Public necessity [absolute defense] is when D acts to avert a public disaster (D does not act out of self interest/preservation - saving a bus full of kids is not public necessity)
Private necessity [limited defense] is when D acts to prevent harm to a limited number of people probably including himself. D must pay compensatory damages for any injury they caused unless the act was to benefit the owner of the property. D does not have to pay nominal or punitive damages.
If a party trespasses to escape a dangerous storm can the person whose land/home is trespassed on throw them out if they want to?
No. The trespasser has a legal right to be there for the duration of the emergency because of necessity. If homeowner throws them out and they do get hurt homeowner could be liable.
Which governs each element of a tort - law or facts or logic?
Duty (Law)
Breach (Facts)
Causation (logic/policy)
Damages (Facts and law)
What are the questions you should ask when evaluating duty?
1) to whom do I owe the duty
2) What is the duty owed?
What is the baseline duty owed by D?
D owes a duty to not create any unreasonable risk of harm to foreseeable victims
Who are foreseeable victims to whom a duty is owed?
Those victims in the “zone of danger” - Unforeseeable victims will never win
What is the rule about if a rescuer is a foreseeable victim?
A rescuer is a foreseeable victim when D negligently put themselves or a 3rd party in danger (“danger invites rescue”)
But firefighters and police officers cannot recover under this theory because the dangers of rescue are inherent in their jobs
Who is a foreseeable victim in pregnancy and contraception?
There is a duty owed to a viable fetus
If there is failure to perform a contraceptive procedure the child cannot recover for wrongful life but parents can recover for wrongful birth (medical expenses and pain during labor but not child rearing)
Who are the foreseeable victims in economic transactions?
A third party who is an intended economic beneficiary of a deal is a foreseeable victim
What is the default standard of care and when does it apply?
The reasonably prudent person standard applies unless displaced by some alternative standard
Describe the reasonable person standard of care?
Reasonable person is an objective standard but tailored to the similar circumstances - D’s stupidity or inexperience are not taken into account - this is the classic jury question
Is the reasonable person standard of care adjusted upwards or downwards based on the tortfeasor’s knowledge or experience?
Standard of care is not adjusted downwards for informed drunk stupid amateur or even mentally handicapped defendants
Standard of care is adjusted upwards for those with superior knowledge or experience even if they are not in a professional setting. e.g. race car driver has to drive his passenger car to a higher standard e.g. engineer who knew of a better system but failed to implement it
Is the reasonable person standard of care adjusted according to D’s physical capacity?
It is altered if those physical characteristics are relevant to the claim (BUT people are expected to know their physical limitations and act accordingly - blind person can’t drive a car)
What standard of care are children held to?
What’s the exception?
5-18 children are held to the standard of a child of like age intelligence and experience acting under similar circumstances - SUBJECTIVE test (it’s different for every child - this is defendant friendly).
<5 cannot be negligent
Exception: Children engaged in potentially dangerous adult activates (driving a motorized vehicle) may be required to conform to an adult standard of care
What standard is a professional held to?
Professional is required to possess the knowledge and skill of an average member of the profession in good standing providing similar services
- Swaps “average” for “reasonable” so it’s an empirical comparison is to real world peers. DON’T SAY REASONABLE ON AN ESSAY - SAY AVERAGE
Doctors apply a national standard
How can standard practice or custom among similar actors be used in setting duty?
In a professional negligence case standard practice IS the duty
In ordinary negligence cases standard practice is persuasive but the jury can disregard it (maybe the whole industry is negligent)
What is a doctor’s duty to disclose risks of treatment?
Must disclose all risks that are serious enough that a reasonable person would have withheld consent if they learned of the risk - otherwise there is no informed consent
What does the duty of care owed by a possessor of land depend on?
Depends on the status of the plaintiff on the land (unknown trespasser known trespasser licensee or invitee)
What is an unknown trespasser?
What duty of care does a possessor of land owe to an unknown trespasser?
Unknown trespasser = someone who comes on the land without permission and without the possessor’s knowledge
No Duty
What is a known trespasser?
What duty of care does a possessor of land owe to a known trespasser?
Known trespasser = discovered or anticipated trespassers (usually history of trespassing)
The possessor must warn OR make safe any conditions that are ALL OF:
- Concealed/nonobvious
- Artificial (manmade)
- Involve a risk of death or serious bodily harm
- Known to the possessor of land in advance (no duty to inspect or repair)
(known manmade death traps)
What is a licensee?
What duty of care does a possessor of land owe to a licensee?
One who enters onto the land with the possessor’s permission (express/implied) and do not confer any financial benefit on the possessor.
Social guests and solicitors are licensees
Duty to warn OR make safe any conditions that are BOTH:
- Concealed/nonobvious
- Known to the possessor of land in advance (no duty to inspect or repair)
(all known traps)
What duty of care does a possessor of land owe to a firefighter or police officer?
No duty of care regarding risks that are inherent in their jobs. One of the inherent risks is that the property was negligently maintained.
What is an invitee onto land?
What duty of care does a possessor of land is owe to an invitee?
Someone who enters land with permission and provide possessor with a financial benefit (customers govt health inspector to renew a restaurant’s license). Really for any purpose connected with the business. Under modern rule anyone who enters a location open to the public at large is an invitee even if no financial benefit.
Duty to warn OR make safe any conditions that are BOTH:
- Concealed/nonobvious
- Known to the land possessor in advance or could have been discovered on reasonable inspection
(all reasonably knowable traps)
An invitee goes somewhere that is marked off limits to them (somewhere where they are not supposed to be) what status are they now?
They are not longer invitees and at best becomes a licensee and maybe some kind of trespasser.
Rapid Fire Premises Liability
UT:No Duty
KT: Known artificial nonobvious serious injury
L: Known nonobvious
I: Reasonably knowable nonobvious
If a place is a place of public accommodation does that change the duty owed to entrants onto the land for purposes of premises liability?
No - the status of the entrant still determines the duty owed under the same 4 tiers
What are the requirements of the attractive nuisance doctrine?
Who determines if the attractive nuisance doctrine applies?
Duty of reasonable prudence with regard to artificial conditions to trespassing children.
P must show
1) owner knew or should have known that children would be reasonably likely to trespass (kid magnet or otherwise)
2) dangerous artificial condition the owner knew or should have known of
3) condition is likely to cause injury and is dangerous because children will not appreciate the risk
4) expense of remedying the situation is slight compared with the risk of harm
The jury
Someone enters a store with no intention of making a purchase - what is their status for premises liability purposes?
Invitee. Just have to enter with some purpose connected with the store’s business (e.g. to browse or return an item)
Is a bright yellow puddle of grease on the floor sufficiently obvious that it does not require a landowner to warn or make safe?
No - this is not sufficiently obvious
For attractive nuisance to apply does the child have to be attracted onto the property by the hazard?
NO
Is the attraction of a child onto the property alone enough for attractive nuisance to apply?
NO
When do the tiers of premises liability rules apply?
When there is a hazardous condition
If the hazard is an activity being conducted on the land then it follows the “active operations” rules and there is a duty of reasonable care to everyone except undiscovered trespassers.
What duty is owed by someone conducting “active operations” on their property?
A duty of reasonable care is owed to discovered/anticipated trespassers licensees and invitees (everyone but undiscovered trespassers)
What is the key difference between an invitee and a licensee under the traditional rule?
There is no duty to inspect for a licensee but there is a duty to inspect for an invitee.
When is a landowner who allows the public to use their land for recreational purposes without charging a fee liable for injuries of a user?
Landowner not liable unless willfully and maliciously failed to guard against or warn of a dangerous condition or activity
Is there a duty to protect someone not on the land from conditions on the land?
Must conduct ACTIVITIES on the land to avoid unreasonable risk of harm to those off the land.
If NATURAL condition on the land -> no duty
If ARTIFICIAL condition on the land -> duty to protect from unreasonably dangerous artificial conditions or structures abutting adjacent land
Who has a general duty to maintain leased premises?
The lessee
What is the lessor’s duty to a leasee?
What effect does a lessor’s covenant to repair have on their duty to the leasee?
Must warn of defects they knew or should have known of IF the tenant is not likely to discover them on reasonable inspection
Covenant to repair makes them liable for unreasonably dangerous conditions
If a guest of a tenant gets injured on leased premises who might be liable?
The landlord and the tenant.
The possessor is always on the first one on the hook for premises liability.
What duties does a seller of real estate have to a buyer of real estate?
Seller must disclose latent unreasonably dangerous defects that vendor knows of or has reason to know of and which the buyer won’t discover on reasonable inspection.
When does a statutory standard of care replace the common law standard of care? (Negligence Per Se)
If there is:
- a clear duty specified in a criminal statute
- P is within the protected class (class of person)
- statute was designed to prevent the type of harm suffered by P (class of risk)
then the circumstances don’t matter
What does negligence per se do?
It borrows a duty from a criminal statute and uses it to replace the reasonable person standard.
So if negligence per se applies reasonableness no longer matters what matters is if the statute is violated (and the criminal statute could have a strict liability mens rea)
What are the two steps for establishing negligence per se?
1) Must convince the judge as a matter of law that the criminal statute should replace the reasonable person standard of care (Legal step)
2) Must convince the jury that the defendant violated the statutory standard of care (factual step)
If a plaintiff tries and fails to invoke negligence per se what does P do?
Litigates under the reasonably prudent person under he circumstances test - there is no disadvantage to trying and failing to invoke negligence per se
When is a violation of a criminal statute’s standard of care under a negligence per se theory excused?
What happens if one of these exceptions applies?
If compliance would cause more danger than violation
OR
compliance is out of the defendant’s control or impossible
If one of these applies then you litigate under the reasonable person standard of care.
Under the majority view what does violation of the criminal standard of care under negligence per se accomplish?
What does compliance with that standard of care accomplish
Violation satisfies the first two requirements: Duty and Beach
Compliance will not establish that due care has been taken
Is there an affirmative duty to act?
No but if you choose to do so you must act like a reasonably prudent person
When is there a duty to rescue?
Generally no duty to rescue but exceptions include:
1) special relationship between parties (parent-child common carrier innkeeper-guest shopkeeper employer-employee family members)
2) D creates P’s peril (regardless if negligent or innocent)
3) if D undertakes to rescue must do so with reasonable care
4) Professional rescuer (firefighter, police)
Even under the exceptions there is no duty to rescue - this is just a duty to act reasonably under the circumstances. It is never required that you put your own life in jeopardy
What is a good Samaritan statute?
Should you assume a good Samaritan statute exists?
If someone undertakes a duty by coming to someone’s rescue they are ordinarily liable for negligence in their rescue
Good Samaritan statutes eliminate liability for ordinary (but not gross) negligence by licensed medical professionals gratuitously rendering their services.
Assume there is no good Samaritan statute unless the question states otherwise
Is there a duty to prevent a person from harm from third parties?
No but exceptions include:
1) places of public accommodation have a duty to prevent injury to guests caused by third parties
2) If one has actual ability and control over another’s actions and knows/should know that the person is likely to do something that would require them to control their actions
What is the standard of care for common carriers and innkeepers?
Held to a very high degree of care to PASSENGERS AND GUESTS. Liable for very slight negligence. But remember P must be a passenger or guest
What is the standard of care owed by a driver to a guest passenger in a car?
Owed duty of ordinary care
But some states have “guest statutes” that make the driver liable to nonpaying passengers only for reckless torts
