Torts Flashcards
Abnormally Dangerous Activity
An activity may be characterized as abnormally dangerous if it involves SUBSTANTIAL RISK of SERIOUS HARM to person or property even when reasonable care is exercised
The defendant is strictly liable for engaging in certain activities when the DANGEROUS PROPENSITY of that activity INJURES the plaintiff. Requires -
- The activity must create a foreseeable RISK of serious harm even when reasonable care is exercised by all actors; AND
- The activity is not a matter of common usage in the COMMUNITY
- Fumigating is commonly held to be an abnormally dangerous activity for which strict liability is imposed
** Exercise of reasonable care is not an excuse!
** QUESTION OF LAW
- Can be decided on motion for directed verdict
Are parents vicariously liable for the torts of their children?
Common law: parents are NOT vicariously liable for the torts of their child. Parents can be liable, however, for their OWN negligence, i.e., in not exercising DUE CARE under the circumstances.
- If the parents KNOW their child may be violent, they could be negligent if they do not take precautions to prevent that behavior or injury from that behavior
A parent might be liable for a tort of a child if the parent directed or encouraged it, but in that case, the parent’s intent is the key issue.
- A person can be responsible for a battery under certain circumstances if he directs another to act, and a parent might be liable for the tort of a child if the parent directed or encouraged it.
Had the father intended to bring about a harmful or offensive contact to the umpire, then his words prompting another to inflict that bodily harm can constitute a battery.
Must show that the father intended to cause harmful or offensive bodily contact.
Statutes in most states allow for limited liability for intentional torts
Assumption of the risk
A plaintiff who KNOWINGLY and VOLUNTARILY assumes the risk of injury caused by the defendant’s conduct may be subject to the defense of assumption of risk.
In a STRICT LIABILITY action, conduct constituting assumption of risk is an affirmative defense; depending on the jurisdiction, it may be a complete defense or it may reduce the plaintiff’s recovery under comparative fault principles.
* Assumption of risk is NOT a defense to INTENTIONAL torts
Causation
Actual cause: the primary test for cause in fact (actual cause) is the “but for” test, i.e., an act is the cause in fact of an injury when the injury would not have occurred BUT FOR the act.
Proximate cause: limitation on liability. A defendant is only liable for the harmful results that are NORMAL INCIDENTS of and within the INCREASED RISKS caused by the defendant
Foreseeable?
- If a particular harmful RESULT was at all foreseeable from the defendant’s negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to defendant’s liability
- Usually criminal acts of 3d parties are unforeseeable, but may be foreseeable in certain circumstances
- The owner’s OWN negligence…does not matter in pure comparative negligence! Does not break chain
- Do any intervening forces break the causal connection between the act and the harm?
** Common foreseeable intervening forces
- Medical malpractice
- Negligence of rescuers
- Protection or reaction forces
- Disease or accident substantially caused by original injury
** Contributory Negligence
The plaintiff CANNOT recover any damages if they CONTRIBUTED in any way to the incident!
Under contributory negligence principles, a plaintiff is required to act as a reasonably prudent person, the same as the defendant.
- A plaintiff who fails to act reasonably and who negligently contributes to his injury will have his recovery reduced / will not be able to recover, depending on the jxn
“Danger invites rescue”
Generally, a rescuer is a foreseeable plaintiff as long as the rescue is not RECKLESS
- A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent.
- The emergency situation is one of the factors taken into account when evaluating the plaintiff’s conduct.
* As a general rule, a defendant is liable if he negligently PUTS HIMSELF in peril and the PLAINTIFF is INJURED in attempting a RESCUING.
Defamation
To establish a prima facie case for defamation, the following elements must be proved -
- Defamatory language on the part of the defendant
- Must be a statement of FACT, not purely opinion - The defamatory language must be “of or concerning” the plaintiff
- It must identify the plaintiff to a reasonable reader, listener, or viewer - PUBLICATION of the defamatory language by the defendant to a third person
- E.g., to reader, listener, viewer other than just to plaintiff
- Communication to a third person who understands it
- Must be made either INTENTIONALLY or NEGLIGENTLY; if it was not reasonably FORSEEABLE that the defamatory statement would be OVERHEARD, the fault requirement for the publication element is not satisfied - Damage to the reputation of the plaintiff
- Reduces standing in the community
- GENERAL damages: injury to reputation, presumed. Humiliation and mental distress.
- SPECIAL damages: pecuniary loss, not required for slander per se or libel - FALSITY of the defamatory language
- Need not be BELIEVED to be actionable 6. Fault on the defendant’s part
** Defense of Others
When a person has reasonable grounds to believe that a third person is being, or is about to be, attacked, he may use such force as is reasonably necessary to protect the third person against the potential injury.
** Defense v. Privilege
a defense is not available against one with a privilege!
- E.g., defense of property v. necessity
Directed verdict
Ruling entered entered by a trial judge after determining that there is no legally sufficient EVIDENTIARY basis for a reasonable jury to reach a conclusion to the contrary
- One party has not proved its case as a matter of law
Will only be granted if there is NO triable issue of fact for the jury
- Almost always denied…there is almost always a triable issue of fact for the jury!
PLAINTIFF MOVES: should always be DENIED unless has established negligence per se and there are no issues of proximate cause
* Res ipsa loquitur: no directed verdict may be given for DEFENDANT because plaintiff has established a prima facie case
** Doctor’s Duty to Warn
Dr has duty to adequately warn patient of MATERIAL risks so they can make informed consent
- Material risk: reasonably plaintiff would want to know
Failure to Warn
If a product presents an UNREASONABLE RISK of injury to users and bystanders, the fact that there is no sufficient warning of the danger may be a dangerous defect that will invoke STRICT products liability.
- Must KNOW of the danger represented and failed to provide a warning
* Duty is not satisfied merely because there have been no injuries to date by following the instructions on the label.
* To prove actual cause where the plaintiff’s claim is that the product is defective because of lack of an adequate warning, the plaintiff is entitled to a PRESUMPTION that an adequate warning would have been read and heeded.
** Firefighter’s Rule
Depends whether the injury sustained is related to the particular dangers which police officers and firefighters are expected to assume as part of their duties
IIED
Intentional infliction of emotional distress requires
- An act by defendant amounting to extreme and outrageous conduct
- “Outrageous conduct” is extreme conduct that transcends all bounds of decency
- Public
- Continuous
- Done by a common carrier
- Against a fragile class of people
- Knowingly exploits sensitivity - INTENT to cause severe emotional distress or RECKLESSNESS as to the effect of defendant’s conduct
- Recklessness: substantial certainty of severe emotional distress - Causation; and
- Damages
- Pecuniary harm is not required for purposes of this tort; all that is required is SEVERE emotional distress
- Does not require proof of physical harm to recover (c.f. NIED)
* Only intentional tort where RECKLESSNESS is sufficient and where plaintiff MUST prove damages (severe distress)
IIED to Third Person
IIED based on conduct directed at a third person; recovery is ordinarily limited to -
- Plaintiffs who are not only PRESENT at the time and
- Are KNOWN by the defendant to be present, so that the mental distress is likely to have been anticipated by the defendant
Independant Contractor
An agent is likely to be an independent contractor if she -
- Engaged in a distinct business of her own
- Controls the manner and method by which she performs her tasks
- Is hired to do a particular job
- Supplies her own tools and materials
- Is paid a given amount for the job
- Is hired to do a short-term, specific job
Duty to invitee
An invitee is a person who enters onto the premises in response to an express or implied INVITATION of the landowner
- Members of the public for a purpose for which the land is held open to the public
- Those who enter for a purpose connected with the business or other interests of the landowner
** A person will lose his status as an invitee if he exceeds the scope of the invitation, i.e., if he goes onto a portion of the property where his invitation cannot reasonably be said to extend
- May instead by licensee, at most
Duty to INSPECT premises + duty to make SAFE!
Landowner is not liable for a dangerous condition that is obvious to the entrant on the land
- Whether a danger is obvious is determined by all of the surrounding circumstances, not just whether the danger is visible
Is a principal liable for the tortious acts of his agent?
A principal may be held liable for the acts of an agent when -
- The agent acts with apparent AUTHORITY and
- Apparent authority will be found where the principal CLOAKS the agent with the appearance of authority and a third party reasonably relies on that appearance - The injured person’s BELIEF in that authority ENABLES the agent to commit the tort
** Generally, a principal will not be liable for tortious acts of his agent if the agent is an independent contractor. However, a major exception to this rule applies when the duty, because of public policy considerations, is NON-DELEGABLE.
- Principal is vicariously liable for the agent’s negligence despite the principal’s own exercise of due care.
** Is IIED the best tort for recovery?
No, it’s a fallback. If another tort is available, choose that one
** Is the manufacturer liable for a product that has been altered?
To prove actual cause in a products liability action, the plaintiff must TRACE the HARM suffered to a DEFECT in the product that existed when the product left the defendant’s CONTROL
- To hold a commercial supplier liable for a product defect, the product must be expected to, and must in fact, reach the user or consumer without substantial change in the condition in which it is supplied.
Duty to known / anticipated trespasser
Duty to warn of known, HIGHLY dangerous artificial conditions
“Manmade deathtraps”
Owes a duty of REASONABLE CARE in conducting activities on his land
Legally Defective Product
Unreasonably DANGEROUS and COULD be made safer by adequate warnings.
Duty to Licensee
Duty to make safe or warn a DANGEROUS CONDITION KNOWN to the owner/occupier that
- creates an risk of harm to the licensee and
- That the licensee is unlikely to discover
I.e., simply must WARN of concealed dangerous conditions of which the owner is aware
- Natural or artifical
- The owner or occupier does NOT have a duty to INSPECT for defects or to REPAIR known defects
A licensee is one who enters onto land with the possessor’s PERMISSION, express or implied, for his OWN purpose or business rather than for the possessor’s benefit.
- Social guests
* The tenant remains liable to the friend for dangerous conditions on the premises as the occupier of the land, regardless of the landlord’s obligation to inspect and repair
Merged Causes v. Unascertainable Causes
Merged causes: BOTH parties caused the harm, and only would defendant alone would have been sufficient to cause injury, defendant’s conduct is cause in fact if it was a SUBSTANTIAL FACTOR in causing injuries
- Aka multiple sufficient causes
Unascertainable: although both parties acted negligently, only ONE caused the harm
- BoP shifts to Defendants to show it wasn’t them
Modified comparative negligence
Plaintiff must be LESS than 50% fault to recover. Reduce recovery by % of fault.
** Necessity
Only a defense to property torts
Negligence per se
A statute may establish the standard of care if…
Breach of statutory duty of care which creates a PRESUMPTION of duty + breach.
- Specific duty replaces the more general common law duty of due care, and a violation of the statute will establish duty and breach of duty.
- Must still prove causation and damages
- Statute was designed to PREVENT harm that occurred
- Statute was initiated to PROTECT this kind of person
* In an emergency situation, you do not have to adhere to the statute. E.g., speeding to get to the hospital.
* Excused whne compliance would cause more danger than than a violation, or when compliance is beyond defendant’s control
* Compliance does not create a presumption of due care. If there are unusual circumstances or increased danger beyond the minimum, negligence may be found by not doing more
** Negligent design
Plaintiff must show that those designing the product KNEW or should have known of enough FACTS to put a REASONABLE MANUFACTURER on NOTICE about the dangers of marketing the product as designed.
- Negligent design is not shown, however, if the danger of the product becomes apparent only after the product reaches the public
- Compliance with government safety standards, such as labeling, is evidence that the product is not defective, it is not conclusive evidence, and federal labeling requirements do not preempt state products liability laws on defective warnings
** Possible causes of action involving a true statement
IIED
Invasion of right to privacy
Products liability - Negligence
Duty, breach, causation, damages.
- Duty to exercise reasonable care in quality control / failure to INSPECT
Products liability - Strict liability
A products liability action based on strict liability requires the following
- The defendant is a commercial supplier
- Put the item into the STREAM OF COMMERCE - The defendant produced or sold a product that was DEFECTIVE when it left the defendant’s control
- Actually defective
- Legally defective - The defective product was the actual and proximate cause of the plaintiff’s injury; and
- The plaintiff suffered damage to person or property.
** Acting reasonably is not relevant and inspection does not matter!
** Easier to prove than negligence
** Products Liability - Strict Liability, Parties
PLAINTIFF: any foreseeable user, consumer, or bystander. Does not require privity, i.e., do not have to be the purchaser!
DEFENDANT: can sue ANYONE in chain of sale, as long as product was defective when it left defendant’s control
- Defendant can seek indemnity from others in chain of manufacture
- A “commercial supplier” can include a manufacturer (including the manufacturer of a defective component part), retailer, assembler, or wholesaler.
Public Nuisance
Public nuisance—an act that unreasonably interferes with the health, safety, or property rights of the community.)
A public nuisance exists when a property owner is using his property in such a manner that it creates an unreasonable risk to the public in general.
- The owner need not be violating a specific statute in order to be a public nuisance
- Nor is it determinative that the owner has a permit to engage in the activity if the owner’s use otherwise constitutes a public nuisance
** It is generally the duty of the local DA to bring actions to enjoin public nuisances, and PRIVATE CITIZENS will generally have no STANDING to bring such suit unless the private citizen can show that he suffers some SPECIAL injury in addition to that sustained by the general public.
Pure comparative negligence
DEFAULT rule; recovery will be REDUCED by % to reflect fault
Pure comparative negligence system, a contributorily negligent plaintiff is allowed to recover a percentage of her damages. The plaintiff’s damages are reduced according to her proportionate share of the fault.
A plaintiff will recover even if their fault is GREATER than that of defendant’s.
- Even if 90% at fault, can still recover 10%…
- The plaintiff’s negligence will be considered even in cases where the defendant has acted willfully and wantonly
** Res Ipsa Loquitur
Res ipsa loquitur means the thing speaks for itself. It is appropriate in situations where an injury does not usually occur unless someone was negligent and the plaintiff does not know WHICH of the defendants caused the injury
Where the facts are such as to strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer the defendant’s liability. The plaintiff must establish that -
- The ACCIDENT causing the injury is the TYPE that would not normally occur unless someone was negligent, and
- An ACCIDENT of this type would ORDINARILY be DUE to NEGLIENCE of someone in this DEFENDANT’S POSITION
** Defendant must have exercised sufficient control over instrumentality that caused plaintiff’s injury
** Establishes duty + breach
** Res Ipsa Loquitur - Joint Venturers
JOINT VENTURE: when more than one person was in control of the instrumentality that caused the injury res ipsa loquitur generally may NOT be used.
- Sometimes has been applied to multiple parties involved in a joint venture where a particular defendant had the power of control over the site of the injury
Respondeat Superior
The doctrine of respondeat superior imposes VICARIOUS liability on an employer for the tortious conduct of its employee occurring within the scope of the employment relationship.
When there is an EMPLOYER-EMPLOYEE relationship between a PRINCIPAL and his AGENT, the employer is vicariously liable for torts committed by the employee within the scope of the employment relationship.
An act will be considered within the scope of employment if it was
- Expressly authorized by the employer
- Is of the same general nature of the employee’s job and motivated by a desire to serve the employer
DETOUR: small deviations from an employer’s directions fall within the scope of employment
FROLIC: major deviations from an employer’s directions fall outside the scope.
** Even if not vicariously liable, liable for negligent entrustment / hiring?
** Slander
To recover damages for slander, special damages must be pleaded and proved unless the spoken defamation falls within one of four categories, characterized as slander per se. Hence, a defamatory statement adversely reflecting on the plaintiff’s abilities in her business, trade, or profession is actionable without pleading or proof of special damages.
Damages are presumed, completing the prima facie case. “LUMP”
- L: loathsome disease
- U: impugning a woman’s chastity (unchaste)
- M: crime of MORAL turpitude
- P: profession
** Vicarious liability for acts of independant contractor
** Generally, a principal will not be liable for tortious acts of his agent if the agent is an independent contractor. However, a major exception to this rule applies when the duty, because of public policy considerations, is NON-DELEGABLE.
- Principal is vicariously liable for the agent’s negligence despite the principal’s own exercise of due care.
NON-DELEGABLE DUTIES
1. Duty of a business to keep its premises and instrumentalities safe for its customers
- Duty of a common carrier to keep its premises safe
- Undertaking highly dangerous activities
** Vicarious liability of independent contractors
** Generally does not apply to INDEPENDENT CONTRACTORS except that tortious acts of an independent contractor if the duty is nondelegable on public policy grounds
- When the contractor is engaged in INHERENTLY DANGEROUS ACTIVITIES. Does noth have to be classified as abnormally dangerous for strict liability purposes; only an activity in which there are special dangers to others inherent or normal in the activity
Which intentional tort requires damages to the person?
IIED
Abatement of Nuisance by Self Help
Abatement of a private nuisance by self-help must be preceded by notice to the other party and must be conducted in a reasonable manner.
Alternative Liability
Alternative liability a/k/a unascertainable cause approach; two or more persons have been NEGLIGENT but it cannot be determined which one CAUSED the plaintiff’s injury.
- The court will shift the BoP to each of the negligent defendants to show that his negligence was not a factual cause of the injury.
Analysis Duty of Landowner
- In jurisdictions following the traditional rules for landowners and possessors of land, the nature of a duty of an owner or occupier of land to those on the premises depends on the legal status of the plaintiff in regard to the property, i.e., whether the plaintiff is a trespasser, licensee, or invitee.
- Define each
- Do analysis for correct one
Duty to anticipated trespasser
Duty to WARN of KNOWN, dangerous ARTIFICIAL conditions on the property
- NO duty to inspect!
Are bars liable for the injuries resulting from overserving a patron?
Common law: NO liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct.
- Several courts have imposed liability on tavernkeepers even in the absence of a dramshop act based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability
- Dramshop Acts: reate a cause of action in favor of any third person injured by the intoxicated vendee. Imposes vicarious liability on to the bar tender for the intoxicated person’s negligence
Are emotional damages alone sufficient for NIED?
No! Physical symptoms need to be shown UNLESS -
- Mishandling of a CORPSE
- False report of a DEATH
Then emotional damages are sufficient!
Assault
An assault is an affirmative act by the defendant done with the intent to place the plaintiff in APPREHENSION of an IMMINENT harmful or offensive contact to his person and that actually CAUSES the plaintiff apprehension.
- Mere WORDS are insufficient
- Apprehension: awareness of an imminent contact, not FEAR
- Defendant’s word could negate IMMEDIACY
Attractive Nuisance
A landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children, including trespassing children, caused by artificial conditions on his property.
A possessor of land is liable for physical harm if -
- ARTIFICIAL dangerous condition
- Possessor KNOWS, should know children are likely to trespass
- CHILD, because of her age/immaturity, fails to realize risk / appreciate danger (SUBJECTIVE)
- UTILITY of maintaining the condition is slight compared to the risks involved (balancing test)
** A child trespasser who is injured by a dangerous artificial condition need not have been ATTRACTED onto the property by the condition!
