Torts Flashcards
Duty to prevent harm from third persons
Generally, no duty to prevent a third person from injuring another. An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.
Affirmative duty to rescue (w/ exceptions)
Generally, no affirmative duty act/rescue.
Exception 1: Special relationship between parties (parent/child, common carriers, in keepers, shopkeepers) (places of public accommodation also have duty to prevent injury to guests by third persons)
Exception 2: Person who negligently or innocently placed another in peril
Exception 3: Someone who assumes the duty to act by acting must do so with reasonable care
Defamation
- Defamatory language by D
- The defamatory language was of or concerning P
- Publication by D to a third person
- Damage to the reputation of P
Slander
When defamation is spoken (slander), P must prove special damages (i.e., pecuniary), unless the defamation falls within one of the four slander per se categories:
- Criminal activity
- Occupational misconduct
- Sexual misconduct
- Loathsome disease
Defense of property
One may use reasonable force to prevent the commission of a tort against their real or personal property. Force causing death/serious bodily injury is not permitted.
- A request to desist must first be made unless it clearly would be futile or dangerous.
- Defense does not apply if tort has already been committed unless in hot pursuit of another who tortiously dispossessed chattel
- Defense is not available against someone with a privilege; privilege supersedes this defense
- Reasonable mistake is allowed unless the entrant is privileged
Products liability based in strict liability
- Commercial supplier of product
- Producing or selling a defective product (feasible alternative approach)
- Actual and proximate cause
- Damages (personal and/or property)
- P must prove that defect existed when the product left D’s control
- Product must reach P without substantial alteration
- Strict liability for economic loss is generally prohibited as being beyond the scope of seller’s duty (unless contracted for)
Defamation referring to a public figure or public concern
P must show prima facie defamation case plus:
- Falsity, and
- Fault by D
- Fault stnd for public official or figure = actual malice
- Public figure = pervasive fame or voluntarily assuming a central role in a particular public controversy
- Actual malice = Knowledge that the stmt was false OR reckless disregard as to whether it was false
- Fault stnd for private persons about a matter of public concern = negligence as to truth or falsity
- Public concern = courts look at content, form, and context of publication
- P may recover only actual damages (economic, reputation, etc. but NO presumed damages)
Contribution when one tortfeasor committed an intentional tort
Contribution is not allowed in favor of those who committed intentional torts, even if each tortfeasor is culpable. If a negligent tortfeasor pays a judgment in full, he will have the right to be fully indemnified for the entire amount from a joint tortfeasor who committed an intentional tort.
Damages required for negligence
Personal injury action: P may “tack on” non-economic damages
Property damage action w/o physical injury: Reasonable cost of repair or fair market value at the time of accidenct; non-economic damages are not permitted
Abnormally dangerous activities
Activities that involves a substantial risk of serious harm to person or property even when reasonable care is exercised. Question of law. Two requirements: (1) activity must create a foreseeable risk of serious harm even when reasonable care is exercised, and (2) activity is not a matter of common usage in the community.
Proximate cause
D is liable for all harmful results that are normal incidents of and within the increased risk caused by his acts. If a harmful result was at all foreseeable, the unusual manner/timing in which the injury occurred is irrelevant to D’s liability.
Negligent infliction of emotional distress
NIED may be found when D created a foreseeable risk of physical injury to P. Usually P must show:
- P was within the “zone of danger” for physical injury, and
- P suffered physical symptoms from distress caused by the danger to her
EXCEPTION: P was a bystander outside the zone of danger and suffered emotional distress from seeing D negligently injure another. P must show:
- P and the person who was injured are closely related,
- P was present at the scene of the injury, and
- P personally observed or perceived the event
