Torts Flashcards
False Imprisonment
- intending to confine or restrain within boundaries fixed by D
- those actions indirectly/directly result in such confinement
- P is conscious of confinement or is harmed by it
Battery
- D causes harmful or offensive contact
2. Acts with intent to cause such contact, or apprehension of contact
Assault
D acts with intent to cause harmful or offensive contact (or imminent apprehension) and an imminent apprehension directly or indirectly results
Intentional Infliction of Emotional Distress
- D is liable for intentionally or recklessly acting
- with extreme and outrageous conduct
- that causes P severe emotional distress
Conversion
- D intentionally commits an act
- Depriving the P of possession of her chattel or interfering (dominion or control) with P’s chattel
- in a manner so serious as to deprive P of the use for chattel
* damages are chattel’s full value at time of conversion
Trespass to land
- D’s intentional act
- causes a physical invasion of P’s land
- *need only intent to enter
- *D does not need to know that the land belongs to another
Private nuisance
- a thing or activity that substantially and unreasonably interferes with another’s individual use and enjoyment of their land
Substantial Interference (Private Nuisance)
offensive, inconvenient, or annoying to a normal, reasonable person in the community
Public nuisance
An unreasonable interference with a right common to the general public
ex. air pollution, interference with use of public highways
Does a private citizen have a claim for public nuisance?
Yes, but only if they suffer harm that is different in kind from that suffered by the general public
Trespasser
Someone who enters or remains upon the land of another w/out consent or privilege to do so
Attractive Nuisance
Land possessor may be liable for injuries to children trespassing on the land if
- An artificial condition exists in a place where the land possessor knows or has reason to know children are likely to trespass
- land possessor knows or has reason to know that the condition poses an unreasonable risk of death or seriously bodily injury to children
- children do not discover or cannot appreciate the danger presented by the condition
- burden of maintaining the condition and burden of eliminating the danger are slight compare to the risk of harm
- land possessor fails to exercise reasonable care to protect children
Res Ipsa Loquitur
Circumstantial evidence of negligence that does not change the standard of care (does not apply if there is direct evidence of the cause of the injury)
- accident was of a kind that ordinarily does not occur in the absence of negligence
- it was caused by an agent or instrumentality within the exclusive control of the D; and
- it was not due to any action on the part of P
Bystander Recovery (negligent infliction of emotional distress)
Most states allow a bystander P outside the zone of danger to recover for emotional distress if that P
- is closely related to the person injured by the D
- was present at the scene of the injury; and
- personally observed the injury
*emotional distress must be manifested by physical symptoms
Detour
Minor and permissible deviation from the scope of employment
Frolic
An unauthorized, substantial deviation
Pure comparative negligence
P’s contributory negligence is not a complete bar to recovery, P’s full damages are calculated by the trier of fact and then reduced by the proportion that P’s fault bears to the total harm
Strict Liability is imposed when
- dangerous activities
- animals
- defective or dangerous products
Abnormally dangerous
- foreseeable and highly significant risk of physical harm, even when reasonable care is exercised
- activity is not commonly engaged in
* *look at inherent nature of activity**
Wild Animals (have not been generally domesticated in the US, and are likely, unless restrained, to cause personal injury)
owner is strictly liable for harm cause, if
- harm arises from a dangerous propensity that is characteristic of such a wild animal
- owner has reason to know
Abnormally dangerous animals
- owner is strictly liable for injures caused by the animal if he knows or has reason to know
- that the animal has dangerous propensities abnormal for the animal’s category or species
- harm results from those dangerous propensities
Strict products liablity
- product was defective (manufacture, design, failure to warn)
- defect existed at time product left d’s control
- defect caused P’s injuries when product was used in an intended or reasonably foreseeable way
Consumer expectation test
Ask, does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous to them?
Risk utility test
Do the risks posed by the product outweigh the benefits
Defamation
- D’s defamatory language
- is of or concerning the P
- is published to a 3P who understands the defamatory nature
- damages’s P’s reputation
Defamation - matter of public concern - P must prove?
Fault on part of D
if D is a public official/public figure, P must prove malice
Libel
Defamation by words written, printed, or otherwise recorded
P need only prove general damages
Slander
Defamation by spoken word, gesture
P must prove special damages
Slander Per se
- committing a crime
- conduct reflect on the P’s lack of fitness to conduct his business, trade, or profession
- having a loathsome disease
Defenses to defamation
- Truth (absolute defense) (truthful statement is not defamatory)
- Consent
- absolute privilege
a. made in course of judicial proceedings
b. in course of legislative proceedings by the participants to the proceeding
c. course of performance of legislative duties
d. between spouses concerning a third person - required publications
Invasion of privacy
I FLAP (intrusion, false light, Appropriation private facts)
Misappropriation of the right to publicity
- D’s unauthorized appropriation of the P’s name, likeness, or identity
- For D’s advantage
- lack of consent
- resulting injury
intrusion upon seclusion
D’s act of intruding physically or otherwise, into the P’s private affairs, solitude, or seclusion, if the intrusion is highly offensive to a reasonable person
Placing P in false light
P must prove that D
- made public facts about the P that
- Placed the P in a false light
- which false light would be highly offensive to a reasonable person
*most require P prove actual malice
