Torts Flashcards
IIED
(i) an act by defendant amounting to extreme and outrageous conduct; (ii) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or a reckless disregard that the conduct would cause emotional distress; (iii) causation; and (iv) damages-severe emotional distress. The statement in (A) is most helpful to establish reckless disregard because it shows that the defendant knew of plaintiff’s peculiar susceptibility to such an accusation
Transferred intent applicability
assault, battery, false imprisonment, trespass to land, trespass to chattels
Incapacity and intentional torts
Is NOT a defense
Intentional tort general elements
voluntary act
Intent (purpose or done with knowledge to a substantial certainty)
Causation (substantial factor in bringing about injury)
Rule statement: To establish XXX, Plaintiiff must prove that there was a voluntary act, intent, causation…
Battery
Rule statement: A (i) harmful or offensive contact to the plaintiff’s person cuased by the defendant with (ii) an intent to bring about the contact
Contact is not offensive if it has been permitted or consented to, unless consent is implied for ordinary contacts or every day life. Test is reasonable person
Contact can be direct or indirect, does not need to be instantaneous (setting a trap, poison)
Plaintiff’s person includes person and attached things (e.g. purse)
Hypersensitivity of P (e.g., phobia of being tapped on shoulder not taken into account)
ASsault
Intentional tort: (i) Defendant intends to (ii) place P in reasonable apprehension of an imminent battery
Imminency and awareness are critical
Mere words are not enough - words + overt conduct needed
False imprisonment
(i) D confines P to a bounded area (ii) intends to do so and (iii) P was aware of the confinement or was hamred by it
Bounded = no reasaonble escape known to plaintiff
Physical barriers, direct threats , indirect threats, failure to release (e.g., taxi nto lettin gsomeon eout) enough
Future threats not enough
IIED
(i) intentionally OR recklessly acting with extreme and outrageous conduct that (ii) caused the plaintiff severe emotional distress
**Damages are required, but severe emotional ditress IS damages
***recklessness is enough, will often come up when know about a particular feat
Look for fragile class or extreme sensitivity if just words
IIED & Third-party
Must show
(i) P is a close relative of person who suffered distress
(ii) P was present when injury occured
(iii) D knew these facts
UNLESS D intended P (third party) to suffer emotinoal distress through infliction on the other person (like harming child to inflict distress on mother)
Trespass to land
(i) physical invasion by tangible matter onto Plaintiff’s property (includes airspace and subt for reasonable distance) and (ii) intent to enter the particular piece of land
Right belongs to person possessing the property (tenant!)
Trepass to Chattels v. Conversion
Trespass: Intentional interference with tangible personal property of another (intent applies to the act of using, taking possession)
- *Mistaken belief that property is yours is not a defense; if property gets stolen by third party, you are on the hook
- *get actual damages for harm or loss of use
Conversion:
Intentional act depriving P of personal property so serious as to warrant D pay full value
Intent is to do the act that brings about interference
D will have to pay full market value at time of the conversion
Consent (Defense)
Children, elderly can only to consent within things of their understanding
Consent not valid if mistake and D knew about it/took advantage, fraud if it goes to an essential matter (but not a collateral one), or duress
Implied: Reasoanble person would infer from custom & usage or P’s conduct
D’s actions must stay within the bounds of consent
Self-defense
Rule: D must have had a reasoanble belief of imminent harm, and used proportional force to the harm
Not first agressor, unless escalation
Defense of others
Reasonable belief that V has right to self-defense
Reasoanble force used
Defense of property
NEver deadly force
shopkeepers privielge - reasoanble belief, detail for reasoanble time, detention is reasonable
Reasonable mistake abaout who owns something (luggage) allowed
If have privilege (necessity) to enter land, that supercedes defense oef property
Necessity
Public: no damages
for the landowners benefit: landowner deemed to consent
private: have to pay for damages
Negligence - Duty
Rule statement: D’s conduct creates unreasonable risk of injury to persons in position of P, duty of care will extend from D to P
Owed to; forseeable plaintiffs (rescuers are LWAYS forseeable)
amount of care exercised by RPP in similar circumstances, unless:
Professionals (custom of the community or industrty) Special status (landowners, common carriers)
From a statute (Negligence Per Se: statutory duty will replace RPP, if (1) P is in the class to be protected and (2) harm suffered is type that was meant to be prevented) –> note, if compliance would have been more dangerous, this won’t apply
Negligence - Possess of Land & Duty Owed
Unknown Trepassers: nothing
Known trespassers: man-made death traps (artificial, highliy dangerous, concealed from Trespasser, known to landowner)
Licensee: known traps (dangerous, concealed from licensee, dangerous - any type of dangeorus). Have ot maek safe or warn
Invittee: (1) concealed from invitee, (2) known to possessor or could have been discoverable by reasonable inspection
If a child… dangerous condition that LO should be aware or or is, LO knows children might trespass, likley to cause injury, and expense of remedying is slight compared to harm
Negligent infliection
(1) Near Miss
(2) Bystander
(3) special relationship
(1) P was within zone of danger, P suffered physical symptons b/c of distress
(2) P was a close relative of person injured, present at teh scene and personally observed
(3) Doctor misdiagnosis pateint with cancer, mishandles dead body
D had to be neligent for all
Breach of Duty
D conduct fell below standard of care; Negligence per se establishes
Res Ipsa Loquitor
(1) Accident would not occur without negligent conduct and
(2) instrumentality was in D’s exclusive control –> often related to directed verdict question
Causation
But for
Proximate
– if Direct = forseeable (where there is no intervening force)
– Indirect = there was intervening force. if the force was foreseable, its not superceding and D is liable.
Medical malpractice, subsequent disease, protection or reaction, aways going to be foreseable
Crime - if in a dangerous neighborhood, D’s activity increased risk of crime occuring (e.g., leaving door unlocked), going to be foreseeable
Strict Liability and animals
dog that bites (after first bite, you know of dangerous propensity)
if trespasser, no SL (might be negligence claim)
if viscous watchdog (liable for intetentional torts)
Wild animals - liable to invitees and licensees strictly (including harm from fleeing)
Damage from own animal’s trespass - strictly liable so long as reasonably foreseeable (Even if owner acted with resasonble care)
Abnormally dangerous activities
ADA’s create large class of forseeable victims
(1) must create forseeable risk of serious harm even when reasoanble care is exercised AND (2) not matter of common usage in the community
Only when clearly ADA (toxic, blasting, etc)
Products liability - strict
(1) D is a merchant
(2) Defect (design, manufacturing, warning label)
(3) Defect when left D’s possession
(4) P was making forseeable use (even bystanders!)
(5) but for and proximate cause of injurPy and
(6) damages (to property or person)
For design: risks outweigh utilities
For manufacturing - must show D could have made product safeter without serious impact on utility or price
Products liabilty - negligence
forseeable plaintiff, negligent conduct that results in supplying of defective property, injury, damages (go though 4 elements)
Nuisance
Substantial and unreasaonble interference with use and enjoyment (not specalized use)
Vicarious & intentional torts
Not liable of employee unless they were furthering business of employer, force is authroized, or friction is generated in business
Vaciarous and IC
not liable unless non-delegable duty or inherently dangerous activity
- Defamation - damages presumped when?
- Appropriation
- Intrusion
- False light
- Public disclosure private fact
(1) when written or LUMO
(2) Used for commercial purposes
(3) reasonable expection of privacy in place, then invaded seclusion in a way that would be highly offensive
(4) Widespread dissemination of falsehood that would be highly offensive to reasoanble person
(5) widespread disclosure of private info about P not of legitimate concern
For privacy: if you ask someone for reason you were fired and they tell you, even publicly, that’s not defamation
Truth is biggest defense
