torts Flashcards
1
Q
intentional torts
A
- battery
- assault
- false imprisonment
- intentional infliction of emotional distress
- trespass to land
- trespass to chattels
- conversion
2
Q
battery
A
- harmful or offensive contact with the plaintiff’s person intentionally caused by the defendant
- person includes things connected to the person
- contact is deemed offensive if the plaintiff has not expressly or impliedly consented to it
3
Q
assault
A
- intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person
- apprehension need not be fear
- words alone generally not enough
4
Q
false imprisonment
A
- an intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area
- confinement or restraint includes threats of force, false arrests, and failure to provide a means of escape when under a duty to do so
5
Q
intentional infliction of emotional distress
A
- intentional extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress
- physical injuries are not required
6
Q
trespass to land
A
- an intentional act by the defendant that causes a physical invasion of the plaintiff’s real property
- the defendant need not have intended to commit a trespass, only to do the act
7
Q
trespass to chattels
A
- an intentional act by the defendant that causes an interference with the plaintiff’s right of possession in a chattel, resulting in damages
- involves damage o dispossession of the chattel
- defendant need not have intended to commit a trespass to the chattels only to do the act that causes interference
- if damage is serious, conversion may be appropriate
8
Q
conversion
A
- an intentional act by the defendant that causes a serious interference with the plaintiff’s right of possession in a chattel
- the defendant need not have intended a conversion, only to do the act that constitutes a conversion.
- the interference with the chattel is so serious as to require the defendant to pay the full value of the chattel
9
Q
transferred intent
A
- intent will transfer from the intended tort to the committed tort or from the intended victim to the actual victim
- both the tort intended and the tort committed must be battery, assault, false imprisonment, trespass to land/chattels
10
Q
defenses to intentional torts
A
- consent
- self defense
- defense of other
- defense of property
- necessity
11
Q
consent defense
A
- consent may be either express or implied
- the plaintiff must have capacity to consent and the defendant must not exceed the bounds of the consent
12
Q
self defense/ defense of others/ defense of prop
A
- the defendant must reasonably believe that a tort is being or about to be committed against himself, a third person, or his property
- only reasonable force may be used
- deadly force permitted if reasonably believed to be necessary to prevent serious bodily injury
- deadly force never permitted to defend only property
- the shopkeeper’s privilege permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods
13
Q
necessity defense
A
- a defendant whose property tort wa justified by a public necessity has an absolute defense
- if justified only by a private necessity, the defense is qualified (the defendant must pay for the damage caused)
- this privilege trumps a property owner’s right to defend his property
14
Q
elements of the prima facie negligence case
A
- the defendant owes a duty of care to conform to a specific standard of conduct
- the defendant breached that duty
- the breach of duty was the actual and proximate cause of the plaintiff’s injury
- the plaintiff suffered damages to person or property
15
Q
general standard of care
A
a reasonably prudent person under the same or similar circumstance
(average mental ability but the same physical characteristics as the defendant if relevant)
16
Q
professionals standard of care
A
professionals must exercise the knowledge and skill of a member of the profession in good standing
17
Q
children standard of care
A
children must conform to the standard of care of a child of like age, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity)
18
Q
landowners standard of care to trespassers
A
- the landowner owes not duty to undiscovered trespassers
- for discovered and anticipated trespassers, the landowner owes a duty to warn or make safe known highly dangerous artificial conditions if not obvious to the trespasser
19
Q
landowners standard of care to licensees
A
- licensees are those who come onto the land with express of implied permission but for their own purpose (includes social guest)
- duty is the same as for discovered trespassers except that it applied to all dangerous artificial and natural conditions
20
Q
landowners standard of care to invitees
A
- invitees are those entering as members of the public or for a purpose connected to the business of the landowner
- the landowner’s duty is the same as for licensees but with the additional duty to reasonably inspect for dangerous conditions
21
Q
negligent infliction of emotional distress liability
A
the defendant breaches a duty to the plaintiff by creating a risk of physical injury and the plaintiff suffers emotional distress as a result
- plaintiff must be in the zone of danger and ordinarily must suffer physical symptoms from the distress
- exception: the defendant breaches a duty to a bystander not in the zone of danger who (1) is closely related to the injured person (2) was present at scene of injury (3) personally observed or perceived the event
- exception: relationship exists between the defendant and the plaintiff under which the defendant’s negligence has great potential to directly cause emotional distress (ex: hospital erroneously reports death of plaintiff’s family member)
22
Q
breach of duty
A
- whether the defendant breached the applicable duty of care is a question for the trier of fact
- under res ipsa loquitur the fact that an injury occurred may create an inference that the defendant breached his duty, requirements:
- the accident causing the injury is a type that would not have occurred absent negligence
- the negligence is attributable to the defendant (usually because the defendant is in exclusive control of the instrumentality causing the injury)
23
Q
actual cause
A
- usually “but for” test - an actual cause of an injury when it would have occurred but for the act
- merged causes - when two acts bring about an injury and either one alone would have sufficed, either of the acts is an actual cause of the injury if it was a “substantial factor” in bringing it about
- unascertainable causes - when two acts were negligent but it is not clear which was the actual cause of the injury, the burden shifts to each of the negligent actors to show that his negligent act was not the actual cause
24
Q
proximate cause
A
- limits liability for unforeseeable consequences of the defendant’s actions
- the defendant is liable for all harmful results that are the normal incidents of and within the increased risk from the defendant’s actions
- indirect cause cases: an intervening force occurs after the defendant’s negligent act and combines with it to cause the injury (foreseeable intervening forces such as a negligent rescue do no cut off the defendant’s liability for the consequences of his negligent act
25
damages
1. the plaintiff must show actual harm or injury to complete prima facie case
2. the plaintiff can recover economic damages (medical expenses) and noneconomic damages (pain and suffering)
3. the extent or severity of the harm need not have been foreseen (tortfeasor takes his victim as he finds him)
26
contributory negligence
the standard of care required of a plaintiff to avoid injury is judged using a reasonable person standard
27
comparative negligence
almost all state have rejected the rule that a plaintiff's contributory negligence will totally bar her recovery
1. pure comparative state = a negligent plaintiff can recover damages reduced by the percentage of her fault even if she was primarily at fault
2. partial comparative state = a negligent plaintiff can recover reduced damages as long as her fault is not above a certain level, usually 50%, if it is, she is barred from recovering
28
assumption of risk
arises when the plaintiff is aware of a risk and voluntarily assumes it (either express or implied)
1. in comparative negligence states, most implied assumption of risk situations are analyzed under comparative negligence rules
29
situations where strict liability is imposed
1. on the owner of a wild animal or an abnormally dangerous domestic animal for injuries caused by the animal
2. on one engaged in abnormally dangerous activity - an activity that creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors
30
extent of strict liability
1. the harm must result from the kind of danger that makes the animal or activity abnormally dangerous
2. many states apply their comparative fault rules to strict liability cases
31
products liability
(liability for defective products may be brought under various theories of liability; intent, negligence, strict, implied warranties or merchantability and fitness for a particular purpose, and representation theories)
- liability arises when a commercial supplier supplies a product in a defective condition unreasonably dangerous to users
1. a product has a manufacturing defect when it varies from the other products in the manufacturing process and is dangerous beyond the expectation of the ordinary consumer
2. a product has a design defect when all products of the line hace dangerous characteristics because of mechanical features, packaging, or an information defect when users are given inadequate warnings and instructions, and a less dangerous modification or alternative was economically feasible
32
products liability based on negligence
1. standard elements of negligence prima facie case apply
2. breach of duty shown by negligent conduct by the defendant that leads to supplying a defective product to the plaintiff
33
products liability based on strict liability
1. liability arises from supplying a defective product even if the defendant exercised due care and was not negligent
- even a retailer who had no opp to inspect the product may be liable as a commercial supplier
2. the defect must have existed when the product left the defendant's control
34
types of nuisance actions
1. a nuisance is a type of harm that may be based on intent, negligence, or strict liability
2. a private nuisance is a substantial, unreasonable interference with another person's use or enjoyment of her property
3. a public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community
35
nuisance remedies and defenses
1. the usual remedy is damages but injunctive relief may available for a continuing nuisance
2. one who has just moves onto land adjacent to a nuisance may bring a nuisance action, "coming to the nuisance" is not a defense
36
vicarious liability
1. employer-employee = (respondeat superior) the employer is liable for torts of an employee that occur within the scope of the employment relationship
2. principal-independent contractor = generally principal is not vicariously liable for the torts an independent contractor unless (engaged in inherently dangerous activities and principals duty cannot be delegated because of public policy)
3. automobile owner- driver = an automobile owner is not vicariously liable for the negligence of the driver unless that state has adopted a permissive use statute or the family purpose doctrine
4. parent-child =a parent is not vicariously liable for a child's torts at common law (statutes in many states impose limited liability for child's intentional torts)
5. defendant can be liable for own negligence (negligence in hiring, supervising the child, or entrusting the car to the driver)
37
multiple defendants
1. under the rule of joint and several liability, when two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and severally liable for the injury
-plaintiff can recover his entire damages from any one
of the tortfeasors
2. if joint and several liability applies, contribution allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasors in proportion to their fault
38
Survival and wrongful death
1. survival statutes preserve a victim's cause of action after his death, except for torts involving intangible person interests (defamation)
2. wrongful death statutes permit personal representatives of surviving spouse to recover damages from a tortfeasor for loss the decedent's support and companionship
39
tort immunities
1. intra-family tort immunities - the rule that one family member could not sue another in tort for personal injury is abolished in most state, except that children generally cannot sue their parents for their exercise of parental supervision
2. governmental immunities - government generally have waived their sovereign immunity from suit for ministerial acts (acts performed at the operational level that do not require exercise of judgment) but have not waived immunity for discretionary acts (acts involving considerations of political or economic policy)
40
defamation
defamatory language concerning the plaintiff published to a third person that causes damage to the plaintiff's reputation, falsity of the statement and fault by the defendant
-damage will be presumed if the defamation is libel (in writing or other permanent form) or if it is slander (spoken) within one of the four per se categories (business or profession, loathsome disease, crime of moral turpitude, or sexual misconduct); otherwise special (pecuniary) damages must be shown
41
defamation of public figure or matter of public concern
1. the plaintiff must prove the statement was false
2. public official or figures must prove actual malice - statement was made with knowledge of its falsity or reckless disregard of its truth or falsity
3. private figures suing on a matter of public concern must show (1)at least negligence as to truth or falsity and (2)actual injury (no presumed damages)
42
defamation defenses
1. truth (when plaintiff is not obligated to prove falsity)
2. absolute privilege for statements in judicial, legislative or executive proceedings
3. qualified privilege for matters in the interest of the publisher and or the recipient (may be lost if the statement is outside the scope of the privilege or made with actual malice)
43
invasion of privacy - appropriation of the plaintiff's picture or name
- unauthorized use of a plaintiff's picture or name for the defendant's commercial advantage
- limited to the advertisement or promotion of products or services
44
invasion of privacy - intrusion on the plaintiff's affairs or seclusion
-an act of prying or intruding on the plaintiff's private affairs or seclusion that would be highly offensive to a reasonable person
45
invasion of privacy - publication of facts placing the plaintiff in false light
- the publication of facts about the plaintiff putting her ina false light in the public eye in a way that would be highly offensive to a reasonable person
- actual malice must be shown if the publication is in the public interest
46
invasion of privacy - public disclosure of private facts about the plaintiff
- the public disclosure of private information about the plaintiff such that the disclosure would be highly offensive to a reasonable person
- public disclosure requires publicity, not just publication to a few people
47
invasion of privacy defense
consent and absolute or qualified privileges
48
intentional misrepresentation (fraud)
- misrepresentation by the defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation (actual reliance on misrepresentation), justifiable reliance, and damages
- defendant generally has no duty to disclose material facts but may be liable for active concealment
49
negligent misrepresentation
- misrepresentation by the defendant in a business or professional capacity, breach of duty to the plaintiff, causation (actual reliance on misrep), justifiable reliance, and damages
- the defendant owes a duty only to those to whom the misrep was directed or those who the defendant knew would rely on it
50
interference with business relations
- a valid contractual relationship or business expectancy of the plaintiff and a third party, the defendant's knowledge of the relationship, intentional interference by the defendant inducing a breach or termination of the relationship and damages
- the defendant's conduct may be privileged if it is a proper attempt to obtain business or protect the defendant's interest
51
malicious prosecution
initiating a criminal proceeding against the plaintiff ending in plaintiff's favor, absence of probable cause for the prosecution, improper purpose (malice) and damages
