Torts Flashcards
When will a court hold a child or a mentally incompetent person liable for an intentional tort?
If they either (1) act with a purpose, or (2) know the consequences of their acts w/substantial certainty
When may a [D] be liable to a 3P-victim for IIED?
Victim’s immediate relative: observed [D]’s conduct
Bystander: observed [D]’s conduct + bodily injured
No need to observe if [D]’s purpose was to cause severe distress to 3P-victim
When is use of deadly force justified in self-defense?
[D] has reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him
What is the firefighter’s rule?
Emergency personnel are 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
What are the elements of assault?
(1) [P]’s reasonable apprehension
(2) Of an imminent harmful or offensive bodily contact
(3) Caused by [D]’s action or threat
(4) With the intent to cause either the apprehension of such contact or the contact itself
Are words sufficient to establish a prima facie case for assault?
Not words alone. There might be an assault if the words are coupled with conduct or other circumstances.
There may be an assault if [D] is able to carry out the treat immediately and takes action designed to put victim in state of apprehension
What is the definition of a public nuissance?
Unreasonable interference w/a right common to the general public.
What’s the effect of a [P]’s negligence on a strict product liability action?
Comparative-fault: reduced recovery based on % of fault.
“Assumption of the risk” conduct is treated as comparative negligence.
Some: recovery is not reduced by % of [P]’s fault in own injury
What are the elements of IIED?
(1) [D]’s intentional or reckless
(2) Extreme and outrageous conduct
(3) That causes
(4) [P]’s severe emotional distress
When is use of force in defending others justified?
Upon a reasonable belief that the defended party would be entitled to use self-defense.
Force must be proportional to the anticipated harm to the other party.
What’s the “shopkeeper’s privilege?”
Detention of an individual reasonably believed to be shoplifting.
Duration and manner must be reasonable.
How is express consent, as a defense to intentional torts, established?
[P], by words or actions, manifests willingness to submit to [D]’s conduct, which cannot exceed the scope of [P]’s consent
When will [D]’s actions be considered intentional?
(1) [D] acts w/purpose of causing the consequences of their act
(2) [D] acts knowing that the consequences are substantially certain to result
What’s the definition of trespass to chattel?
(1) Dispossessing [P] of the chattel; or
(2) Using or intermeddling w/[P]’s chattel
[P] must show actual harm to or deprivation of the use of the chattel for a substantial period of time
What’s the definition of conversion?
Deprives [P] of possession of their chattel or interferes w/it in a manner so serious as to deprive [P] of the use of the chattel.
Damages are the chattel’s full value at the time of the conversion.
What’re the elements for intentional misrepresentation (i.e., fraud, deceit)?
(1) [D] made misrepresentation of material fact or failed to disclose material fact when under affirmative duty to do so
(2) [D] knew the representation to be false or acted w/reckless disregard as to its truthfulness (scienter)
(3) [D] intended to induce [P] to act or refrain from acting in reliance on the misrepresentation
(4) [P] justifiably relied on the misrepresentation
(5) [P] proved actual damages (no nominal damages allowed)
What’s the definition of trespass to land?
[D]’s intentional act causing a physical invasion of [P]’s land.
Only need intent to enter the land or cause a physical invasion.
Mistake of fact is not a defense.
Generally, when may a [D] act in self-defense and how much force may the [D] use?
When [D] reasonably believes an offensive contact or bodily harm is about to be intentionally inflicted upon them.
Force must be reasonably proportionate to the anticipated harm.
Reasonable, mistaken belief that one is in danger does not invalidate the defense.
What’s the doctrine of “transferred intent?”
Person intends to commit an intentional tort against one person but instead commits:
(1) Different intentional tort against a person
(2) Intended tort against a different person
(3) Different intentional tort against a different person
When is conduct considered extreme and outrageous for the purposes of IIED?
Exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
[D]’s abusive language and conduct may be sufficiently “extreme and outrageous” if [D] is in position of authority or influence over [P], or [P] is member of group w/known heightened sensitivity.
When does the initial aggressor have a right to claim self-defense?
Other party responded to nondeadly force w/deadly force
What’s the definition of a private nuisance? How does a [D]’s compliance w/governmental regulations affect a private nuisance action?
Thing or activity that substantially and unreasonably interferes w/another’s use and enjoyment of their land.
Compliance may be admitted as evidence re: whether interference w/[P]’s use and enjoyment is unreasonable.
What is a “Good Samaritan” statute?
Protects doctors and other medical personnel when they voluntarily render emergency care.
Exempted from liability for ordinary negligence but not gross negligence.
What effect does evidence of custom have on the standard of care in a negligence action?
Admissible as evidence to establish the proper standard of care, but not dispositive
What defenses are available to a defamation action?
(1) Truth
(2) Consent
(3) Absolute privilege (judicial or legislative proceedings, spouses, required publications)
(4) Conditional privilege (interest of defendant, interest of recipient of statement or 3P, affecting important public interest)
In negligence actions, what standard of care applies to a professional?
Professional person: same skill, knowledge, and care as an ordinary practitioner in the same community
Specialist: higher standard
What elements must be established for violation of a statute to constitute negligence per se?
(1) Criminal or regulatory statute imposes specific duty for protection of others
(2) [D] neglects to perform duty
(3) [D] liable to anyone in the class of people intended to be protected by the statute
(4) Harm is of the type the statute was intended to protect against
Minority: violation of statute is mere evidence of negligence w/a rebuttable presumption re: duty and breach
What test is applied by most courts when the conduct of 2+ [D]s may have contributed to [P]’s indivisible injury?
Substantial-factor: whether [D]’s tortious conduct was substantial factor in causing [P]’s harm
Minority: each such cause or act is a factual cause of the harm and are together designated as “multiple sufficient causes”
When does an intervening event cut off a [D]’s liability?
Superseding cause: breaks the chain of proximate causation b/w [D]’s tortious act and [P]’s harm
Unforeseeable intervening event = superseding cause
What’s the most important thing a [P] must prove to be awarded damages in a negligence action?
Actual harm (personal injury or property damage)
Nominal damages are not available
What are the elements of battery?
(1) [D} causes
(2) Harmful or offensive contact
(3) To the person of another
(4) [D] acts w/intent to cause such contact or the apprehension of such contact
What’s the doctrine of joint and several liability?
2+ tortfeasors found liable for a single, indivisible harm to [P] is subject to liability for entire harm.
[P] can collect entire judgment from 1 [D] or portions of the judgment from multiple [Ds].
Entire recovery cannot exceed the amount of the judgment.
Who may be a [D] in a strict products liability action?
[D] must be in business of selling or otherwise distributing products of the type that harmed [P], including the manufacturer, the distributor, and the retail seller.
Seller is subject to strict liability even if revenue from the sale is not significant portion of business. Seller need not be responsible for defect or directly sell product directly to [P].
What’s the traditional rule for contributory negligence?
Complete bar to recovery
What’s the imminence requirement for assault?
Threatened bodily harm or offensive contact must be imminent
Threats of future harm or threats from a [D] physically far away are insufficient
What’re two major forms of comparative negligence? Discuss each.
Pure: [P]’s full damages are calculated by trier of fact and then reduced by % of [P]’s fault
Partial/modified:
(1) [P]’s fault < [D]’s fault: reduced recovery by [P]’s fault
(2) [P]’s fault > [D]’s fault: bar recovery
(3) [P]’s fault = [D]’s fault: 50% recovery for [P] (or 0% in minority jurisdictions)
In negligence actions, what standard of care is imposed upon a child?
Reasonable child of similar age, intelligence, and experience
Child engaged in high-risk activity that is characteristically undertaken by adults is held to same standard as adult
What’s the effect of an exculpatory clause in a contract under which [D] disclaims liability for negligence? In what situations will it not be enforced?
Constitutes express assumption of risk and affirmative defense to negligence action. Most jurisdictions find disclaimer negates [D]’s duty of care to [P] to begin with, causing prima facie case to fail.
No enforcement:
(1) Disclaiming liability for reckless or wanton misconduct or gross negligence
(2) When there’s gross disparity of bargaining power b/w parties
(3) Party seeking enforcement offers services of great importance to the public that are a practical necessity for some
(4) Exculpatory clause is subject to typical contract defenses
(5) Against public policy to enforce agreements insulating people from consequences of their own negligence
In negligence actions, what’s the general standard of care?
Reasonably prudent person under the circumstances (objective)
Assume average mental abilities and same knowledge as average member of community, but keep [D]’s particular physical characteristics
Possession of special skills or knowledge: exercise superior competence w/reasonable attention and care
When has a [P] implied assumed a risk? What’s the effect of that assumption?
Voluntarily encounters a known, specific risk. Cannot be unreasonable.
Majority: merged into comparative-fault analysis and reduces recovery
Minority: total bar to recovery
What’re the elements for intentional interference w/contract?
(1) Valid contract existed b/w [P] and 3P
(2) [D] knew of contractual relationship
(3) [D] intentionally interfered w/contract, causing a breach
(4) Breach caused [P]’s harm
What’s the distinction b/w libel and slander? What effect doers the classification of defamation as one or the other have on damages?
Libel: written, printed, or otherwise recorded in permanent form
Slander: spoken word, gesture, etc.
Libel: presumed damages
Slander: proof of special damages required unless it’s slander per se
When is the owner of a domestic animal strictly liable for harm done by the animal?
Owner has reason to know of animal’s dangerous propensities, and the harm results from them
When is a product defective?
Manufacturing defect: deviation from what manufacturer intended (specifications) that causes harm
Design defect: consumer expectation test (unreasonably dangerous beyond expectation of ordinary user); risk-utility test (reasonable alternative design was economically feasible and available to [D])
Failure-to-warn: foreseeable risk of harm, not obvious to ordinary user, that could’ve been reduced or avoided via reasonable instructions or warnings
To which 5 torts does the doctrine of transferred intent apply?
Battery Assault False imprisonment Trespass to chattels Trespass to land
What is the learned-intermediary rule re: prescription drugs and medical devices in the context of strict products liability?
Manufacturer or prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, or problems with the drug or device
What’s the majority rule for proximate cause?
[D] liable for reasonably foreseeable consequences resulting from [D]’s conduct.
Type of harm must be foreseeable, although not the extent.
Liability limited to harms resulting from the risks that made [D]’s conduct tortious
What types of damages are permitted for strict products liability claims?
Personal injury or property damage
Claim for purely economic loss must be brought as a breach-of-warranty action
What are 4 invasion of privacy torts?
Misappropriation of the right to publicity
Intrusion upon seclusion
Placing [P] in false light
Public disclosure or private facts
What’s the “eggshell skull” rule?
[D] liable for full extent of [P]’s injuries that may be increased b/c of [P]’s preexisting physical or mental condition or vulnerability, even if the extent if unusual for unforeseeable
