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TORTS Flashcards

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1
Q

SPECIFIC INTENT IN INTENTIONAL TORTS

A

An actor has specific intent when the actor acts with the purpose of causing the consequence. The actor need NOT intend the specific injury that results from her actions to be liable for an intentional tort (e.g., Defendant punches Plaintiff in the shoulder breaking Plaintiff’s arm - it is irrelevant whether Defendant intended to break Plaintiff’s arm, only that Defendant intended to cause the contact that resulted in injury).

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2
Q

GENERAL INTENT IN INTENTIONAL TORTS

A

An actor has general intent when the actor knows that the consequence is substantially certain to occur. The actor need NOT intend the specific injury that results from her actions to be liable for an intentional tort (e.g., Defendant punches Plaintiff in the shoulder breaking Plaintiff’s arm - it is irrelevant whether Defendant intended to break Plaintiff’s arm, only that Defendant intended to cause the contact that resulted in injury).

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3
Q

TRANSFERRED INTENT

A

The transferred intent doctrine applies to the intentional torts of assault, battery, false imprisonment, trespass to land, and trespass to chattels. It allows the defendant to be held liable when the defendant intends to commit an intentional tort against one person but instead commits:

  1. A different intentional tort against the same person;
  2. The same intentional tort against a different person; OR
    3 A different intentional tort against a different person
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4
Q

BATTERY

A

A battery occurs when the defendant:

  1. Causes or is a substantial factor in bringing about;
  2. Harmful or offensive contact;
  3. To the plaintiff’s person; AND
  4. Has specific or general intent.
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5
Q

ASSAULT

A

An assault occurs when the defendant:

  1. Causes or is a substantial factor in bringing about;
  2. Reasonable apprehension in the plaintiff;
  3. Of imminent harmful or offensive bodily contact to the plaintiff’s person; AND
  4. Has specific or general intent.
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6
Q

FALSE IMPRISONMENT

A

A false imprisonment occurs when the defendant:

  1. Causes or is a substantial factor in bringing about;
  2. The confinement of the plaintiff within fixed boundaries (the plaintiff must be aware of the confinement or harmed by it); AND
  3. Has specific or general intent.
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7
Q

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A

Intentional infliction of emotional distress occurs when the defendant:

  1. Acts with extreme or outrageous conduct;
  2. Which causes or is a substantial factor in bringing about;
  3. Severe emotional distress; AND
  4. Has intent to cause severe emotional distress or acts with recklessness as to the risk of causing severe emotional distress.
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8
Q

TRESPASS TO LAND

A

A trespass to land occurs when the defendant:

  1. Causes or is a substantial factor in bringing about;
  2. A physical invasion of the plaintiff’s real property; AND
  3. Has specific or general intent.
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9
Q

TRESPASS TO CHATTELS

A

A trespass to chattels occurs when the defendant:

  1. Causes or is a substantial factor in bringing about;
  2. An interference with the plaintiff’s right of possession in a chattel; AND
  3. Has specific or general intent.
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10
Q

CONVERSION

A

A conversion occurs when the defendant:

  1. Causes or is a substantial factor in bringing about;
  2. An interference with the plaintiff’s right of possession in a chattel;
  3. Where the interference is so serious, it deprives the plaintiff entirely of the use of the chattel; AND
  4. Has specific or general intent.
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11
Q

CONSENT AS A DEFENSE TO INTENTIONAL TORTS

A

The plaintiff’s consent (express or implied) to the defendant’s conduct is a defense to intentional torts if:

  1. The consent was valid (e.g., no fraud, incapacity, etc.); AND
  2. The defendant’s conduct remained within the boundaries of the plaintiff’s consent (e.g., cannot use a knife in a boxing match).
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12
Q

SELF-DEFENSE AS A DEFENSE TO INTENTIONAL TORTS

A

Generally, a defendant is not liable for harm to the plaintiff if:

  1. The defendant reasonably believed that that the plaintiff was going to harm him or another; AND
  2. The defendant used only the amount of force that was reasonably necessary and proportionate to protect himself or another.
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13
Q

PRIVATE NECESSITY

A

The defense of necessity is available to a defendant that enters onto the plaintiff’s land or interferes with the plaintiff’s personal property to prevent an injury or some other severe harm. A necessity defense is private when the defendant’s act is done to benefit a limited number of people. Under private necessity, the defendant MUST pay for the actual damages that he caused.
However, the landowner may NOT use force to exclude the defendant (a landowner may usually use reasonable force to exclude a trespasser).

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14
Q

PUBLIC NECESSITY

A

The defense of necessity is available to a defendant that enters onto the plaintiff’s land or interferes with the plaintiff’s personal property to prevent an injury or some other severe harm. A necessity defense is public when the defendant’s act is done for the public good.
Under public necessity, the defendant is NOT liable for property damage that he caused.

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15
Q

NEGLIGENCE ELEMENTS

A

The elements of the prima facie case for negligence are as follows:

  1. The defendant owed a duty to the plaintiff to conform to a specific standard of care;
  2. The defendant breached that duty;
  3. The breach was the actual and proximate cause of the plaintiff’s injuries; AND
  4. The plaintiff sustained actual damages or loss.
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16
Q

TO WHOM A DUTY OF CARE IS OWED

A

A duty of care is owed to all foreseeable plaintiffs that may be harmed by the defendant’s breach of the applicable standard of care. There are two separate views:

  1. Under the majority view (Cardozo), the defendant is only liable to plaintiffs within the foreseeable zone of danger.
  2. Under the minority view (Andrews), the defendant owes a duty to everyone harmed.
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17
Q

AFFIRMATIVE DUTY TO ACT

A

In general, there is NO affirmative duty to act affirmatively or help others. However, a duty to act affirmatively will arise if the defendant:

  1. Places the plaintiff in danger;
  2. Has a special relationship with the plaintiff (e.g., common carrier/passenger, innkeeper/guest, family members, etc.);
  3. Has a duty to act affirmatively imposed by law; OR
  4. Begins to administer aid or attempt to rescue the plaintiff.
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18
Q

STANDARD OF CARE

A

The default standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard. The defendant is presumed to have average mental abilities and knowledge.

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19
Q

STANDARD OF CARE: CHILDREN

A

Children are held to the standard of care of a reasonably prudent child of similar age, experience, and intelligence under the circumstances (more subjective). However, if the child is engaged in adult activity, the court will not take the child’s age into account (i.e., the child will be held to an “adult” standard).

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20
Q

STANDARD OF CARE: PROFESSIONALS

A

A professional (e.g., nurses, lawyers, accountants, engineers, architects, etc.) is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities.

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21
Q

STANDARD OF CARE: PHYSICIANS

A

Physicians are held to a national standard of care and have a duty to disclose the risks of treatment to enable a patient to give informed consent. This duty is only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.

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22
Q

PSYCHOTHERAPISTS’ DUTY TO WARN

A

In the majority of states, psychotherapists have a duty to warn potential victims of a patient’s serious threats of harm if the patient has the apparent intent and ability to carry out such threats and the potential victim is readily identifiable.

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23
Q

STANDARD OF CARE: LANDOWNERS TO DISCOVERED/ANTICIPATED TRESPASSERS UNDER THE TRADITIONAL APPROACH

A

For discovered/anticipated trespassers (discovered or anticipated trespassers enter the land without consent, but may be expected by the landowner), the landowner owes a duty to warn of (or make safe) hidden dangers on the land that pose a risk of death or serious bodily harm (only applies to artificial conditions that the landowner is aware of).

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24
Q

STANDARD OF CARE: LANDOWNERS TO UNDISCOVERED TRESPASSERS UNDER THE TRADITIONAL APPROACH

A

Under the traditional approach, the standard of care that landowners owe to entrants upon their land varies depending on the status of the entrant. The landowner owes NO duty to undiscovered trespassers (undiscovered trespassers enter the land without consent, and are not expected by the landowner).

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25
Q

STANDARD OF CARE: LANDOWNERS TO LICENSEES UNDER THE TRADITIONAL APPROACH

A

A licensee is a person who lawfully enters the landowner’s property for her own purpose or benefit, rather than for the landowner’s benefit (e.g., social guests). The landowner has NO duty to inspect his property for licensees.
However, the landowner does owe a duty to licensees to warn of (or make safe) hidden dangers on the land that pose an unreasonable risk of harm (applies to both artificial + natural conditions that the landowner is aware of).

26
Q

STANDARD OF CARE: LANDOWNERS TO INVITEES UNDER THE TRADITIONAL APPROACH

A

An invitee is a person who is invited on the property for the owner’s own benefit or mutual benefit with the invitee (e.g., a customer shopping in a store that is open to the public = BUSINESS). The landowner owes a duty to the invitee to reasonably inspect the land for hidden dangers (artificial or natural) that pose an unreasonable risk of harm, and if discovered, make them safe.

27
Q

STANDARD OF CARE: LANDOWNERS UNDER THE MODERN APPROACH

A

Several states have rejected the traditional approach distinctions between licensees and invitees simply applying a reasonable person standard to landowners. In these states, landowners owe the same duty of reasonable care to all entrants on their land regardless of their status as invitees or licensees [although, status of the entrant may still be relevant to determine reasonableness under the circumstances).

28
Q

ATTRACTIVE NUISANCE DOCTRINE

A

A landowner owes a duty to child trespassers to warn of (or make safe) artificial conditions on the land, provided that:

  1. The artificial condition exists in a place where the landowner knows or has reason to know that children are likely to trespass;
  2. The landowner knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm;
  3. The children, due to their age, do not appreciate the danger involved; AND
  4. The risk of harm outweighs the expense of making the condition safe.
29
Q

NEGLIGENCE PER SE

A

When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:

  1. Is in the class of people meant to be protected by the statute; AND
  2. Suffers the type of harm the statute was designed to protect against.
30
Q

RES IPSA LOQUITUR

A

Res ipsa loquitur (“the thing speaks for itself”) is applied when an element of negligence is difficult to prove, but the circumstances make it obvious that the defendant’s negligence was the most likely cause of the harm. In order for res ipsa loquitur to apply, the plaintiff must show that the accident resulting in the harm was:

i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
iii) It was not due to any action on the part of the plaintiff.

31
Q

ACTUAL CAUSE

A

In order to prove negligence, the plaintiff must show that the defendant’s conduct was both the actual and proximate cause of the plaintiff’s injury. To prove actual cause, the plaintiff must show that her injury would not have occurred but for the defendant’s negligence.

32
Q

PROXIMATE CAUSE

A

In order to prove negligence, the plaintiff must show that the defendant’s conduct was both the actual and proximate cause of the plaintiff’s injury. To prove proximate cause, the plaintiff must show that her injury was a foreseeable result of the defendant’s conduct. An intervening cause is an outside force or action that contributes to the plaintiff’s harm after the defendant’s act or omission has occurred. If the intervening cause is unforeseeable, it is a superseding cause and the defendant’s liability to the plaintiff will be cut off.

33
Q

EGGSHELL PLAINTIFF RULE

A

Under the eggshell plaintiff rule (“take your victim as you find him rule”), the defendant is liable for all harm suffered by the plaintiff, even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition that aggravates the harm.

34
Q

RESPONDEAT SUPERIOR

A

Under the doctrine of respondeat superior, an employer may be liable for torts committed by an employee if:

  1. An employer-employee relationship exists (not an independent contractor relationship); AND
  2. The employee’s commission of the tort occurs within the scope of employment.
35
Q

RESPONDEAT SUPERIOR: SCOPE OF EMPLOYMENT

A

Activity is within the scope of employment when the employee’s conduct is of the same general nature as that authorized, or incidental to the conduct authorized by the employer. In making this determination, courts examine whether the employee’s conduct was:

  1. A function for which the employee was hired to perform;
  2. Within the employer’s authorized time and space limits;
  3. Conducted to serve the employer; AND
  4. Foreseeable to the employer.
36
Q

BUSINESS PARTNERS

A

The negligence of one business partner can be imputed on other business partners if it is committed within the scope of the business’s purpose.

37
Q

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS [NIED]: ZONE OF DANGER

A

The plaintiff can recover for NIED if:

  1. The defendant negligently caused a threat of physical impact;
  2. The plaintiff was within the “zone of danger” of the threatened physical impact; AND
  3. The threat of physical impact caused emotional distress.
38
Q

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED): BYSTANDER RECOVERY

A

The plaintiff bystander can recover for NIED if:

  1. The defendant negligently inflicted bodily injury to another;
  2. The plaintiff is closely related to the person injured by the defendant;
  3. The plaintiff was present at the scene of the injury; AND
  4. The plaintiff personally observed the injury.
  5. Some jurisdictions also require that the plaintiff manifest physical symptoms after witnessing the injury.
39
Q

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED): SPECIAL RELATIONSHIP

A

The plaintiff can recover for NIED in certain circumstances where a pre-existing relationship exists between the defendant and plaintiff. This commonly arises when:

  1. The defendant negligently mishandles a corpse; OR
  2. The defendant negligently provides false medical information (e.g., healthy plaintiff is told that she has terminal cancer).
40
Q

JOINT AND SEVERAL LIABILITY

A

When two or more parties are jointly and severally liable, each party is independently liable for the full extent of the damages stemming from the tortious act. Thus, if a plaintiff wins a money judgment against jointly and severally liable defendants, the plaintiff may collect the full value of the judgment from any one of them.

41
Q

CONTRIBUTION ACTION

A

Contribution allows a defendant who pays more than his share of the total liability to recover from the other liable defendants (cannot recover more than the other liable defendant’s percentage share of fault - based on a pure comparative fault theory).

42
Q

ALTERNATIVE LIABILITY

A

If a plaintiff cannot identify with specificity which among multiple defendant’s caused his harm, alternative liability allows the plaintiff to shift the burden of proving causation to the defendants (even though only one of them could have been responsible).

43
Q

INDEMNIFICATION

A

In torts, indemnification usually arises in situations involving vicarious liability or strict liability. Indemnification allows a passive tortfeasor who was forced to pay damages to recover a complete reimbursement from an active tortfeasor

44
Q

CONTRIBUTORY NEGLIGENCE

A

In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if his own negligence contributed to his injury in any way.

However, plaintiff can RECOVER if the defendant:

  1. Was engaged in wanton and willful misconduct; OR
  2. Had the last clear chance to avoid injuring the
    plaintiff, but failed to do so.
45
Q

COMPARATIVE FAULT: PURE COMPARATIVE NEGLIGENCE

A

Under pure comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence (e.g., if the jury finds the plaintiff is 95% at fault, the plaintiff can recover 5% of her damages).

46
Q

COMPARATIVE FAULT: MODIFIED COMPARATIVE NEGLIGENCE

A

Under modified comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence. However, if the plaintiff is more at fault than the defendant, the plaintiff’s recovery is completely barred (P 51%). In some modified comparative negligence jurisdictions, the plaintiff’s recovery is completely barred if the plaintiff and defendant are equally at fault.

47
Q

ASSUMPTION OF RISK

A

Assumption of risk is a defense to NEGLIGENCE that applies when a party knowingly and willingly embraces a risk for some purpose of his own (similar to consent in intentional torts). Assumption of risk may be express or implied.

48
Q

TWO CATEGORIES OF STRICT LIABILITY

A

Under strict liability, a defendant will be liable for damages REGARDLESS of how careful they were (i.e., negligence is NOT required to be held liable). Generally, there are three categories of strict liability:

  1. Animals; AND
  2. Abnormally dangerous activities;
49
Q

STRICT LIABILITY: DOMESTIC ANIMALS

A

Domestic animals are animals that have been trained over time to live and breed in a tame condition (e.g., dogs, cats, farm animals, etc.). An owner of a domestic animal will NOT be strictly liable for harm caused by the animal UNLESS the owner knows or has reason to know of the animal’s dangerous propensity.

50
Q

STRICT LIABILITY: WILD ANIMALS

A

Wild animals are animals that, as a species or class, are not customarily kept in the service of mankind (e.g., tigers, monkeys, etc.). An owner of a wild animal is strictly liable for any harm caused by the animal regardless of safety precautions taken by the owner. However, owners are generally NOT strictly liable for harm caused to trespassers.

51
Q

STRICT LIABILITY: ABNORMALLY DANGEROUS ACTIVITIES

A

A defendant is strictly liable for damages caused to the plaintiff if he is engaged in abnormally dangerous activities. An abnormally dangerous activity is one that is:

  1. Inherently dangerous;
  2. Inappropriate for the location chosen;
  3. Virtually impossible to make safe; AND
  4. Of little value to the community.
52
Q

STRICT PRODUCTS LIABILITY

A

A strict products liability requires the plaintiff to show:

  1. The product was defective in manufacture, design, or failure to warn;
  2. The defect existed when the product left the defendant’s control; AND
  3. The defect caused the plaintiff’s injury when the product was used in a foreseeable way.
53
Q

PRODUCTS LIABILITY: MANUFACTURE DEFECTS

A

A defect in manufacture requires the plaintiff to show that the product:

  1. Deviated from its intended design; AND
  2. Fails to conform to the manufacturer’s
    own design.
54
Q

PRODUCTS LIABILITY: DESIGN DEFECTS

A

There are two tests for a defect in design:

  1. Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect.
  2. Under the risk-utility test, the plaintiff must show that the product’s risks outweigh its benefits AND that there is a reasonable alternative design.
55
Q

PRODUCTS LIABILITY: FAILURE TO WARN

A

A failure to warn defect requires the plaintiff to show:

  1. The plaintiff was NOT warned of the risks regarding the use of the product;
  2. The risks are NOT obvious to an ordinary user; AND
  3. The designer/manufacturer was in fact aware of
    such risks.
56
Q

SCOPE OF PRODUCTS LIABILITY

A

Any person foreseeably injured by a defective product (e.g., purchasers, other users, bystanders, etc.) may pursue a products liability claim. However, a strict liability claim under products liability may only be brought against a merchant who is in the chain of distribution (e.g., manufacturer ⇨ wholesaler ⇨ retailer).

57
Q

DEFAMATION

A

Defamation occurs when the defendant:

  1. Publishes (the statement must be communicated to a third party who understands the content of it);
  2. A defamatory statement (the statement must be false and not an opinion);
  3. Of or concerning the plaintiff;
  4. Causing damage to the plaintiff’s reputation.
58
Q

PUBLIC OFFICIALS AND PUBLIC FIGURES

A

A public official is a person who has control over government office (includes political candidates). A general purpose public figure is a person of persuasive power and influence in society. A limited purpose public figure is a person who has injected himself into a public controversy.

59
Q

DEFAMATION OF PUBLIC OFFICIALS AND PUBLIC FIGURES

A

If the plaintiff is a public official or a public figure, the plaintiff must prove actual malice. This requires the plaintiff to show that the person who made the defamatory statement either KNEW it was false or acted with RECKLESS DISREGARD for the truth.

60
Q

DEFAMATION OF PRIVATE INDIVIDUALS

A

A private individual is any person that is not a public official or public figure. If the plaintiff is a private individual and the defamatory statement is a matter of public concern, the plaintiff need only prove that the statement was false and the speaker was at least negligent (no actual malice requirement).

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