Torts Flashcards
What is a trespasser, and what duty does a landowner owe them?
- ) on the land without consent or permission
- ) Duty to refrain from willful, wanton, reckless, or intentional misconduct.
Landowner duty to anticipated trespassers:
Duty to warn discovered/anticipated trespassers against artificial hidden dangers.
No duty to undiscovered trespassers
What is a licensee, and what duty does a landowner owe them?
- ) Enters with express or implied permission for a specific purpose (social guests).
- ) A duty to warn of or make safe known dangerous conditions on the land of which the licensee is not aware (this is a duty to protect against (a) concealed conditions (b) known to owner/occupier). And use reasonable care in conducting activities.
What is an invitee, and what duty does a landowner owe them?
- ) Invited as member of the public or a business visitor
- ) Duty: to inspect and discover unreasonably dangerous concealed conditions and protect the invitees from them.
Upon what conditions will a landowner be liable for an attractive nuisance that causes injury?
- ) artificial condition exists in a place where the owner knows or should know that children are likely to trespass.
- ) the condition imposes an unreasonable risk of serious bodily injury.
- ) The children cannot appreciate the danger due to their youth;
- ) The burden of eliminating the danger is slight compared with the risk of harm; AND
- ) the land possessor failed to exercise reasonable care to protect the children.
The general rule for when a duty exists in tort:
Whenever a person engages in an activity, he is under a legal duty to act as a reasonable prudent person engaged in the same or similar activity. To be owed a duty, a prospective plaintiff must be in the foreseeable “zone of danger” from the defendant’s activity.
**Memorize for essays.
How does a industry custom and the standard of care work together?
Evidence of an industry or community custom is admissible as evidence of the relevant standard of care, but that evidence of custom is not conclusive.
What standard of care do Professionals have?
Duty to perform at the same level as another practitioner in the same community.
What standard of care do doctors have?
Duty to perform as an average doctor based on a national standard.
When does Res Ipsa Loquitor arise?
Arises when there is no direct evidence of the defendant’s negligent conduct.
Allows the trier of fact to infer that there was negligence conduct.
What must a plaintiff prove for Res Ipsa Loquitor?
- ) The type of accident would not normally occur absent negligence
- ) The injury was caused by an agent or instrumentality within the exclusive control of the defendant, AND
- ) The injury was not due to the plaintiff’s actions.
When does Negligence Per Se arise?
- Statute imposed duty;
- D did not perform duty;
- P is a member of a class that the statute was designed to protect; and
- Injury caused by D is the type of injury that the statute was designed to protect against
The doctrine established duty and breach.
Exceptions: Compliance was impossible (heart attack) or would have been more dangerous (speeding to hospital).
What is an intervening proximate cause?
An outside force that contributes to the plaintiffs harm after the defendant’s act.
If foreseeable, will not cut off defendant’s liability.
If unforeseeable, it is a superseding cause and cuts off the defendant’s liability.
What is the eggshell skull rule?
Defendant is liable for the full extent of plaintiff’s injuries, even if the extent of the harm was not foreseeable.
Where must the plaintiff have been to claim Negligent Infliction of Emotional Distress?
Within the zone of danger of the threatened physical impact.
Must have some physical manifestation of emotional distress.
Can a bystander claim Negligent Infliction of Emotional Distress?
A by stander who is outside the zone of danger can recover IF the plaintiff
- ) is closely related to a person harmed by the defendant’s negligence
- ) Was present at the scene of the injury; and
- ) Personally observed the injury.
What is strict products liability?
Defendant is in the business of selling commercial product may be strictly liable for a defective product causing foreseeable injuries to a plaintiff.
Absolute Duty - manufacturer, distributor, and retailer.
P must show
(1) product was defective
(2) defect existed when the product left D’s control
(3) defect caused P’s injury when the product was used in a reasonably foreseeable way
When is a product defective?
A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (i.e., failure to warn).
What is a manufacturing defect?
- ) A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff ‘
- ) The test is whether the product conforms to the defendant’s own specifications
What is a design defect?
Consumer-expectation test—plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer
Risk-utility test—plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably dangerous.
What is a failure to warn? Regarding products liability
Failure to Warn Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings
What is required for proximate causation regarding products liability?
The defect causing the plaintiff’s injuries occurred when the product was being used in an intended or reasonably foreseeable way.
Assumption of risk definition
arises when P unreasonably and voluntarily proceeds in the face of known, specific risk.
When may a plaintiff bring an action for defamation?
If the defendant’s language is:
- ) of or concerning the plaintiff
- ) is published to a 3rd party who understands its defamatory nature; AND
- ) Damages the plaintiff’s reputation.
*Defamatory statement must be false and NOT an opinion.
When is language defamatory?
When the language diminishes the respect, esteem, or goodwill towards plaintiff.
Defamation intent against private persons
Defamation intent: against private person (including matter of private and public concerns)– D must act with knowledge that the statement is false or with negligent disregard for its falsity.
Defamation intent against public figures
D must act with actual malice (knowledge that the statement is false or with reckless disregard for its falsity).
What kind of statement is libel?
Written statement, damages generally presumed
What is slander?
Oral statements - damages are not presumed.
What is slander per se?
P does not need to prove special damages if P is
(1) accused of committing a crime,
(2) conduct that reflects on fitness to conduct trade/profession
(3) loathsome disease or
(4) sexual misconduct
When do Constitutional Defamation requirements apply?
- ) The plaintiff is a public official, or public figure, OR
- ) The plaintiff is a private individual, but the statement involves a matter of public concern.
What is the First Constitutional Requirement?
Falsity.
Plaintiff must prove statement is FALSE, and
If plaintiff is a public official or figure, must also prove that the defendant acted with actual malice
What is malice, concerning defamation?
defendant either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement
Defamation 4 defenses
Truth, consent, absolute privilege, qualified privilege
Defamation defense: qualified/conditional privilege
Privileged if the defamatory statement is made
(1) In the interest of D (e.g. such as defending his reputation) or third party (e.g. recipient) ; or
(2) affects an important public interest
© can be lost if abused (by acting outside the scope of privilege or acting with malice)
Defamation defense: absolute privilege
remarks used during judicial/legislative proceedings, between spouses, or in required publications.
Cannot be lost.
Intent in intentional tort:
D acts with the
(1) purpose of causing the consequence OR
(2) knowledge that the consequence is substantially certain to follow.
Battery element
D causes a
(a) harmful or offensive contact
(b) with the person of another
(c) with intent to cause that contact or apprehension
Damage requirement for battery
no proof of actual harm required
Assault elements
(1) an intentional act,
(2) that causes P to be placed in reasonable apprehension,
(3) of an imminent harmful or offensive contact with P’s person.
Intentional = (a) for the purpose of causing such apprehension; OR (b) with knowledge to a substantial certainty that the apprehension will result.
Reasonable Apprehension = P must be aware of D’s act AND believe D is able to commit the act.
*Nominal damages alone are sufficient.
Intentional infliction of emotional distress (IIED) elements
D
(a) intends to cause severe emotional distress or acts with reckless disregard as to the risk
(b) does extreme & outrageous conduct
(c) that causes P’s severe emotional distress
IIED: outrageous
a conduct is outrageous if it exceeds the possible limits of human decency
*mere insults/threats not outrageous, unless words + conduct (1) D is in a position of authority OR (2) P is in a group that has heightened sensitivities (e.g. children)
IIED: Transferred intent
Transferred intent does not apply to IIED when if you intended battery against A and end up committing IIED against A or B.
Transferred intent applies if you intended IIED against A and end up committing against B (like family or bystander).
IIED: Family member of the victim may recover for IIED if
- D intentionally or recklessly causes severe emotional distress to P’s family member;
- D act extreme outrageous conduct
- P was present at the time and perceived such conduct
- D knew that P was present and closely related to the injured person
IIED: Non-family bystander of a victim can recover for IIED if
(a) D intentionally or recklessly causes severe emotional distress to victim;
(b) D act extreme outrageous conduct
(c) P was present at the time and perceived such conduct
(d) P suffers bodily injury (require proof of actual harm).
IIED: Damages
No proof of actual harm required (except for bystander)
False imprisonment: elements
(1) intentional act,
(2) to restrain P to fixed boundaries (with no reasonable means of escape)
(3) P is aware of the confinement or harmed by it.
False imprisonment: Damages
no proof of actual harm required unless D unaware
False imprisonment: Confinement
threats, force, false authority, failure to provide a means of escape
*future threats does not constitute confinement or restraint
Self-defense: liability for injury to bystander while self-defense
Person acting in self-defense has no liability if injuries were (a) accidental and actor was (b) not negligent toward the injured bystander
Use of force in defense of property:
reasonable force OK if used based on reasonable belief that it is necessary to prevent tortious harm.
No deadly force allowed
Use of force when taking back personal property wrongfully taken:
Reasonable force OK but only if you first request its return unless doing so would be futile
Use of force when taking back possession of land:
No use of force
Use of force when preventing trespass on one’s land:
use reasonable force to remove trespasser only if
(a) D reasonably believed force is necessary to end trespass and
(b) D first asked P to leave (or futile)
Exception: visitor acting under necessity
Trespass to land elements
(a) intent to enter land (don’t need intent to trespass)
(b) physical invasion
Trespass to land: mistake of fact
Not a defense
Trespass to chattel elements
intentional interference with P’s right of possession by dispossessing or use/intermeddling
P must show actual harm to or deprivation of use for a substantial time.
Conversion elements
(a) intentional interference with P’s right of possession so serious that
(b) it deprives P of the use of the chattel
*no conversion if able to repair.
Defense to trespass in land: private necessity
Liability for damages
A defense if entered to protect own person/property from serious harm.
Still responsible for damages
Defense to trespass in land: public necessity
Liability for damages
A defense if entered to avert imminent public disaster.
Not liable for damage if actions reasonable or reasonable belief that necessity existed
Attractive nuisance doctrine:
A landowner may be liable to trespassing children if
(a) artificial condition where owner knows or reason to know that children are likely to trespass
(b) owner knows that condition poses an unreasonable risk of serious harm
(c) children do not discover or do not appreciate the danger
(d) utility of maintaining the condition is slight compared to the risk
(e) owner fails to exercise reasonable care
Breach: evidence of custom
Admissible to prove breach, but not dispositive, UNLESS professionals.
For professionals, compliance with custom = no breach. Deviation from custom = breach.
Negligent infliction of emotional distress (NIED) elements
(a) D’s negligent conduct placed P in zone of danger of threatened physical impact (danger of immediate bodily harm) and
(b) the threat of physical impact caused P to suffer emotional distress.
Damages requirement for NIED
physical symptoms required
P outside the zone of danger can recover for negligent infliction of emotional distress if
(a) closely related to victim
(b) present at the scene of injury and
(c) personally observe the injury.
Damages requirement for people with a special relationship in NIED
no threat of physical impact or physical symptoms required
Privacy tort — Misappropriation:
unauthorized use of P’s name, likeness or identity for D’s advantage (commercial or otherwise
Intrusion upon seclusion:
(a) physical/nonphysical intrusion into
(b) (privacy interest) a matter over which P retained a privacy interest if the intrusion is
(c) (offensive) highly offensive to a reasonable person
Public disclosure of private facts
actionable if
(a) D gave publicity to
(b) (private concern) a matter concerning another’s private life and not of legit public concern.
(c) (offensive) matter is a kind that would be highly offensive to a RP.
Privacy tort: false light
P must prove
(1) D published facts about P or attributed views/actions to P that place him in a false light and
(2) are highly offensive to a reasonable person
Tort: intentional misrepresentation elements
(a) D’s intentional misrepresentation
(b) D intent to induce the plaintiff’s reliance,
(c) P justifiable relied
(d) incurred actual economic damages.
Tort: negligent misrepresentation elements
(a) D negligently gave false information,
(b) during the course of his business or profession,
(c) causing P to justifiably rely upon the information, and
(d) P is either
- is in a contractual relationship with D; or
- is a third party known by D as one for whose benefit the information is supplied.
© not liable if the third party’s use of the information is of a different character than the use for which the accountant provided the information.
Tort: Intentional interference with business relations
To prove intentional interference with a contract, P must prove that
(a) a valid contract existed between P and 3d party,
(b) D knew of the contractual relationship,
(c) D intentionally interfered with the contract, causing a breach, and
(d) the breach caused damages to P
No need to show that the loss was substantial
intentionally interfere: e.g. if P was D’s competitor
