Torts Flashcards
1
Q
Battery
A
- Is an (1) intentional, (2) harmful or offensive contact (that offends a reasonable sense of personal dignity), (3) with the P’s person (including anything connected to P).
- Intentional = (a) a desire to bring about the harm/contact; OR (b) knowing the harm/contact is substantially certain to occur.
*Nominal damages alone are sufficient.
2
Q
False Imprisonment
A
- Is an (1) intentional act, (2) to restrain P to fixed boundaries (with no reasonable means of escape), AND (3) P is aware of the confinement or harmed by it.
- Intentional = (a) purposely bringing about the confinement; OR (b) knowing the confinement is substantially certain to occur.
- Restraint→by physical force or through threats.
*Nominal damages alone are sufficient.
3
Q
Consent
A
- May be express or implied through words or conduct.
- CANNOT exceed bounds of the consent given.
- P must have capacity to consent.
- May be withdrawn at any time.
- P cannot consent to a crime (some courts).
- Apparent Consent→words/conduct are reasonably understood to be consent (i.e. customary practice, failure to object).
- Implied by Law Consent → occurs in special circumstances, such as medical emergencies.
4
Q
Children - Negligence
A
- Must act as a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
- EXCEPTION→If engaging in an adult activity, the child has a duty to act as reasonable adult.
- Some states - children less than 7 years cannot be found negligent
5
Q
Landowner - Negligence
A
- Duty of care is determined by the type of entrant:
- Undiscovered Trespasser→no duty is owed.
- Anticipated Trespasser (without permission, but expected)→(1) reasonable care in operations on the property, AND (2) must warn of (or make safe) known highly dangerous artificial conditions.
- Licensee (social guest)→(1) reasonable care in operations; AND (2) must warn of (or make safe) known dangerous conditions not apparent to a guest.
- Invitee (enters for the owner’s benefit, shop, or business)→The same duty as a Licensee + the duty to make reasonable inspections to find and make safe non-obvious dangerous conditions.
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Attractive Nuisance – Landowner/Possessor owes a duty to child trespassers to make the premises reasonably safe or warn of hidden dangers on the land.
- Will be liable if:
- knows (should know) of a dangerous artificial condition – likely to cause death or serious bodily injury;
- knows (should know) children are likely to frequent the area;
- children are unlikely to discover the condition or appreciate the risks; AND
- the risk of harm outweighs the expense of making the condition safe.
- Will be liable if:
*Attractive nuisance doctrine DOES NOT apply if the child is engaging in an adult activity.
6
Q
Negligence Per Se
A
- The elements of duty & breach are established when D breaches a statute.
- To use Negligence Per Se, P must show:
- Statute’s purpose is to prevent the type of harm P suffered; AND
- P is in the class of persons the statute seeks to protect.
- Two Exceptions:
- Exception #1→Compliance with the statute would have been more dangerous than the violation of it.
- Exception #2→Compliance was impossible.
7
Q
Res Ipsa Loquitor
A
- Can be used when the breach element is difficult to prove.
- Restatement (Second) Test – Plaintiff must show that:
- the injury typically does not occur absent negligence;
- other responsible causes are sufficiently eliminated by the evidence (including the conduct of P and third persons); AND
- the negligence was within the scope of duty D owed to P.
8
Q
Egg Shell Plaintiff
A
“Take P as you find P”
D is liable for all harm P suffers as a result of his conduct, even if P suffers from a pre-existing mental or physical condition that makes the harm worse than what a normal person might suffer.
9
Q
Comparative & Contributory Negligence
A
- Pure Comparative Negligence→P’s negligence (or assumption of risk) will reduce his recoverable damages by the percentage of his own fault.
-
Partial Comparative Negligence→If P is 50% or more at fault, then P’s claim is barred.
- If P is less than 50% at fault, then damages are reduced by the percentage of his own fault.
-
Contributory Negligence→P’s claim is barred if he contributed to his injury.
- Exception #1→D had the last opportunity to avoid the accident.
- Exception #2→D was reckless.
10
Q
Negligent Infliction of Emotional Distress
A
- Three scenarios where a P can recover:
- Near Miss Case→(1) D’s negligence, (2) creates a foreseeable risk of physical injury, (3) P is in zone of danger, AND (4) P manifests physical symptoms.
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Bystander Claim→(1) negligence by D, (2) P is a contemporaneous witness to negligent bodily injury inflicted on P’s close family member (parent, child, spouse), AND (3) P manifests physical symptoms.
- In a few states→P must also be in the zone of danger.
-
Pre-Existing Relationship→(1) a pre-existing relationship between the parties, AND (2) D’s negligent act foreseeably causes distress.
- Recovery is rare; only available in egregious situations.
11
Q
Respondeat Superior Doctrine
A
- An employer is liable for an employee’s negligent acts if the employee was acting within the scope of the employment.
- Employee acts within Scope of Employment when:
- Performing work assigned by the employer; OR
- Engaging in a course of conduct subject to the employer’s control.
-
Time, Place, & Purpose Test – To determine the scope of employment, courts analyze whether the conduct:
- Is of the kind employee is employed to perform;
- Occurs substantially within the authorized time and space limits; and
- Is motivated (in whole or part) to serve the employer.
-
Intentional Torts – are generally outside the scope. EXCEPTIONS:
- Act was specifically authorized by employer;
- Act was driven by a desire to serve employer; OR
- Act was the result of naturally occurring friction from the type of employment.
- Not Within Scope of Employment – Conduct is NOT within the scope if it’s unrelated and not intended to serve any purpose of the employer.
12
Q
Liability if Respondeat Ssuperior Doctrine is Inapplicable
A
- A principal / employer will be liable for an agent’s acts outside the respondeat superior doctrine if:
- Principal intended the conduct / consequences;
- Principal was negligent or reckless in selecting, training, supervising, or controlling the agent;
- It is a non-delegable duty; OR
- Agent had apparent authority, the agent’s actions taken with apparent authority constitute the tort (or enable it to be concealed), and the third-party reasonably relied on such authority.
13
Q
Indemnficiation
A
A passive tortfeasor can assert its claim against an active tortfeasor to recover the FULL amount it paid (or may have to pay) to P.
14
Q
Strict Products Liability
A
- Elements:
- Product was defective when it left the hands of D (manufacturing defect, design defect, or failure to warn);
- Product was not altered when it reached P;
- Caused an injury to P when it was being used in an intended or unintended foreseeable use; AND
- D is a commercial supplier who routinely deals in goods of this type.
-
Manufacturing Defect→When the product:
- differs from the intended design (defect in manufacturing/production); AND
- is more dangerous than if made properly.
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Design Defect→ Exists if the product can be made or manufactured safer, more practical, and at a similar cost.
- Trier of fact MUST balance the alternative designs available (incl. cost & utility) vs. the risk to consumers.
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Failure to Warn→Requires that:
- P was not warned of the risks of the product,
- which are not obvious to an ordinary user, but known to designer/manufacturer.
- The warning MUST be proportionate to the risk.
-
Commercial Supplier = any person/entity engaged in the business of selling goods of the type (routinely sells such goods).
- Casual sellers and service providers are NOT commercial suppliers.
-
Damages Available→Recovery for personal injury and is allowed.
- Recovery for solely economic loss is NOT allowed.
