Torts Flashcards
Res Ipsa loquitur, 3 elements
Traditional res ipsa loquitur: negligence is inferred if
(1) the plaintiff’s harm would not normally occur unless someone was negligent,
(2) the defendant had exclusive control over the thing that caused the harm, and (3) the plaintiff did nothing to cause the harm.
Trespass to chattels v. Conversion
Trespass to chattels
Minor intentional interference with plaintiff’s right to control chattel
Liable for actual damages—eg, cost of repairs, loss of use
Conversion: Substantial intentional interference with plaintiff’s right to control chattel
Liable for fair market value of chattel at time of conversion
Type of D to bring SL product claim
also the kind not responsible
commercial suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff. Anyone downstream of defect who is in supply chain.
However, NOT service providers are not subject to strict products liability.
describe negligence in one sentence
A defendant is liable for negligence if he/she breaches a duty of care owed to the plaintiff and causes the plaintiff harm.
describe assumption of risk (not elements)
Under the common law, assumption of the risk is a complete defense to negligence when the plaintiff voluntarily accepts a known risk of harm.
When and what type of liability when keeping wild animal?
Strictly liable for harm that (1) is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or (2) directly results from the wild animal’s abnormally dangerous characteristics
how does several liability work
When multiple defendants cause the plaintiff indivisible harm, the plaintiff can only recover from each defendant the portion of damages that corresponds to that defendant’s proportionate share of fault
standard of mens rea for defamation: public figure vs private
Public figure can recover for defamation only if the P proves that the defendant made a false statement about the plaintiff with actual malice—i.e., with knowledge or reckless disregard of the statement’s falsity. PRIVATE figure only needs to prove negligence.
assault elements and remedy
- intent to cause imminent apprehension of contact
- actually does cause above
REMEDY: don’t need to show harm, can get nominal damages
describe transferred intent
an actor’s intent to commit an intentional tort against one person transfers to the actor’s commission of (1) a different intentional tort against that same person, (2) the intended tort against a different person, or (3) a different intentional tort against a different person.
what duty to known or anticipated trespassers?
owe a limited duty to known or anticipated trespassers to
1. warn the trespasser of hidden, artificial (i.e., man-made) conditions that are known to the land possessor but unlikely to be discovered by the trespasser and
- use reasonable care while conducting activities on their land.
describe provate nuisance
Liability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:
substantial – offensive, annoying, or intolerable to a normal person in the community and
unreasonable – the severity of the plaintiff’s harm outweighs the utility of the defendant’s conduct
describe liability for domestic animal attacks
domestic animal (e.g., rooster) is generally not strictly liable (i.e., liable without proof of fault) for any physical harm caused by the animal. However, strict liability (even If rooster kept in responsible cage) will be imposed when:
the owner knew or had reason to know about the domestic animal’s dangerous propensities (i.e., behavior uncommon for its species) and
the plaintiff’s harm arose from those dangerous propensities.
describe third party recovery for IIED
If extreme and outrageous conduct has harmed a third party, D may be liable for IIED if (1) the plaintiff contemporaneously perceived that conduct, (2) the plaintiff was closely related to the third party, and (3) the defendant knew of the plaintiff’s presence and that relationship.
short description of proximate cause
when the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.
majority (Cardozo) view on duty of care
minority (Andrews view)
Cardozo–not duty of care to unforeseeable P. ie, persons within zone of foreseeable harm)
Andrews: duty owed to anyone on earth who might be harmed by D’s negligence
modified omparitive negligence
modified comparative-negligence jurisdiction: the plaintiff or the defendant is barred from recovery if his/her percentage of fault exceeds 50%. Otherwise, normal % recovery is in effect.
NIED 3 theories of recovery
(1) zone of danger, severe emo distress caused when D’s negligence placed P in danger of immediate bodily harm
(2) bystander, and
(3) special situation.
how to decide the reaonablness of shopkeeper’s detention
based on the totality of the circumstances, including whether the defendant (1) used greater force than was necessary to detain the plaintiff or (2) caused the plaintiff to suffer unnecessary humiliation, embarrassment, or discomfort.
what does a guest statute say re: automobiles
only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct.
attractive nuisance: what makes one
- manmade condition
- landowner knows kids likely to trespass
- know/should that poses unreasonable risk of harm to kids
- kid of trespasser’s age cannot reas discover risk
- Risk outweighs benefit of continuing the condition (or burden of stopping)
attractive nuisance: duty owed
If is an attractive nuisance, land possessors have a duty to exercise reasonable care to protect child trespassers. If breaches, then liable for negligence
minority vs majority approach re: negligence per se and statute violation
Negligence per se if D violated statute, which caused type of harm statute was meant to prevent, to the class of persons it as mean to protect
Majority: this is a conclusive presumption of negligence
Minority: rebuttable presumption of negligence
describe product liability simple and 2 elements
Commercial seller of a defective product may be held strictly liable for any harm that the product causes a foreseeable plaintiff—i.e., a person who is reasonably likely to suffer harm because of the defect. To recover under a products liability claim, the plaintiff must prove that:
- the defective product caused the plaintiff’s injuries when it was used in an intended or reasonably foreseeable way and
- the defect existed at the time the product left the commercial seller’s control.
how does respondent superior work with battery
Despite respondeat superior, an employer is generally not liable for an intentional tort (e.g., battery) committed by its employee because that conduct typically falls outside the scope of employment. However, such liability will arise in two instances:
- When the use of reasonable force is inherent in the employee’s job and the employee acts in the course of his/her work
- When the employee is authorized by the employer to act on its behalf and the employee’s position provides an opportunity to commit an intentional tort
MODERN duty to trespassers
all entrants: reasonable care EXCEPT flagrant tresspassers (i.e. homeless squatting in building for years)
- not act in intentional, willful, or wanton (ie, tortious) manner that causes physical harm AND
- exercise reasonable care to flagrant trespassers in peril
What does the bar exam mean by TRADITIONAL when the P has contributed to their own injury
Denotes the old common law rule that any P negligence is a complete bar to recovery (with some exceptions like last clear chance)
physician duty of disclosure: when can a patient recover?
Physicians have a duty to disclose the risks of a medical procedure or treatment to a patient in advance so that the patient can give informed consent to the procedure or treatment. In most jurisdictions, the required level of disclosure is governed by custom among physicians.* Failure to make the required disclosure breaches the standard of care owed by a physician to his/her patient and subjects the physician to negligence liability IF:
- the failure to disclose caused the patient to consent to the treatment or procedure (i.e., the patient would not have done so had the risk been disclosed) and
- the undisclosed risk materialized and caused the patient physical harm.**
elements of IIED claim from a third party (witness)
A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if
(1) the plaintiff contemporaneously perceived that conduct,
(2) the plaintiff was closely related to the third party, and
(3) the defendant knew of the plaintiff’s presence and that relationship.
four types of invasion of privacy tort
Intrusion upon seclusion
Highly offensive & intentional intrusion on plaintiff’s solitude, seclusion, or private affairs
Appropriation of name or likeness
Unauthorized use of plaintiff’s name or likeness for personal benefit—eg, commercial advantage
Private facts
Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages
False light
Publicity given to false information about plaintiff with actual malice that places him/her in highly offensive & false light & results in damages
When does a person have an affirmative duty to help another?
Assumption of dutyDefendant who voluntarily aids or rescues another has duty to use reasonable care when rendering aid or performing rescue
Creation of risk
Defendant whose conduct creates foreseeable risk of harm or places another in peril has duty to exercise reasonable care to prevent further harm by rendering care or aid
By contract
Duty to use care when performing contractual obligations
By authority
Duty to exercise reasonable control over third party whom defendant has actual ability & authority to control (parent, doctor, etc)
By relationship
Duty to protect, aid, or assist plaintiff with whom defendant shares unique relationship business proprietor with patron, common carrier with passenger, innkeeper with guest, employer with employee, parent with child
By statute
Statute imposes obligation to act for another’s protection
Land possessor
Duty to mitigate risks posed by natural or artificial conditions on land
what does it do to damages calculations if P is negligent re: situation before the negligence of the D occurred?
Negligence claim requires proof of physical harm (i.e., personal injury or property damage) as a result of the defendant’s negligent conduct. The factors affect compensatory damage calculstiions:
- the initial physical harm caused by the defendant’s negligent act
- any subsequent harm (physical, economic, or emotional) that is traceable to that initial harm and
- any steps taken by the plaintiff to mitigate that initial harm.
NOT any acts by P re: the injury, even if they contributed to injury
define strict liability
liability without proof of fault (no intent to negligence, reckless, etc)
when IS a principal liable for the negligence of an independent Ker
employers are not liable for the torts of true independent contractors, except where
(i) an employer is negligent in selecting an independent contractor,
(ii) the function is inherently dangerous,
(iii) the employer is a storekeeper or operator of premises open to the public and has the duty to keep the premises in a reasonably safe condition, or
(iv) as in this case, the function is non-delegable.
