Torts Flashcards
General thing points about intentional torts
1) ignore P’s hypersensitivity
2) assume P is a reasonable human
3) no incapacity defense - insane people, incompetent people; infants are all liable for ITs!
Intent for ITs
Intent to bring about the forbidden consequences that are the basis of the tort
Intentional tort act must be volitional movement by D
Transferred intent
doctrine applies when the D intends to commit a tort against one person but instead:
- commits a different tort against that person
- commits the same tort against a different person OR
- commits a different tort against a different person
Applies to: assault, battery, false imprisonment, trespass to land, trespass to chattels
Intentional Torts Causation
Result must have been legally caused by the D’s act or something set in motion by D.
Satisfied if D’s conduct was a SUBSTANTIAL FACTOR in P’s injury
[usually not an issue]
Battery
DEFINITION: A harmful or offensive contact with P’s person
- Harmful = causes actual injury
- Offensive = unconsented to/offensive to a reasonable person
Contact may be direct (actual touching) or indirect (setting a trap for P to fall into);
Contact does not have to be instantaneous (poisoned sandwich example).
*Damages not required.
Consent to ordinary contacts of ordinary life (such as bumping on a bus/train) = implied
P’s person = anything connected to P!
includes clothing or a handbag
Assault
DEFINITION: act by the D creating a reasonable apprehension of an immediate battery (harmful/offensive contact to P’s person)
- Immediacy = P must be apprehensive that battery will be immediate
- Apprehension = knowledge/awareness; must be reasonable
P must have been aware of the threat from D’s act; although the P need not be aware of D’s identity. Apparently ability to commit threat (unloaded gun) enough for reas. app.
WORDS ALONE ARE NOT ENOUGH (lack immediacy).
- Words coupled with conduct may be enough
- Note: words may also NEGATE reas app - conditional or future tense.
*Damages not required.
False Imprisonment
DEFINITION: An act/omission on D’s part that confines/restrains P to a bounded area
*P must know of confinement or be harmed by it
- Sufficient: physical barriers; physical force against P/family/personal property; direct threats of force; indirect or implied threats of force; failure to release P when under legal duty to do so (wheelchair passenger on plane); invalid use of legal authority
- Insufficient: moral pressure; future threats
Time of confinement irrelevant - anything more than 30 mins unreasonable
Bounded area - freedom of movement must be limited in all directions. Must be no reasonable means of escape known to P - not dangerous, disgusting, humiliating or hidden.
*Damages not required.
Intentional Infliction of Emotional Distress (fallback tort - look for another cause of action before IIED)
DEFINITION: An act by D amounting to extreme and outrageous conduct such that P suffers severe emotional distress.
Extreme/Outrageous Conduct: exceeds all bounds of human decency.
- Conduct that is continuous in nature (debt collection harassment), committed by a certain type of D (common carriers/innkeepers who may be liable for “mere insults”), OR directed toward a certain type of P (children, elderly, someone who is visibly pregnant, supersensitive adults if sensitivities are known to D)
Intent: recklessness will work.
Actual damages required (severe emotional distress)
Trespass to Land
DEFINITION: a physical invasion of P’s real property.
Intent: D need only intend to enter that particular land.
Invasion may be by a person OR object (must be tangible).
Real property includes surface/airspace/underground for a reasonable distance.
Trespass claim belongs to POSSESSOR, not necessarily owner.
*Damages not required.
Trespass to Chattels
DEFINITION: D’s intentional interference with P’s personal property (small harm)
Interference may be intermeddling (vandalism) OR a dispossession (theft)
D’s mistaken belief that they own the chattel is NOT a defense.
*Actual damages required from harm to chattel or loss of use.
Conversion
DEFINITION: Act by D that intentionally interferes with P’s right of possession in a chattel that is serious enough to warrant chattel’s full value.
The longer/more serious the interference, the more likely it is to be conversion vs. trespass to chattels.
Remedies: P may recover damages (fair market value at time of conversion) or repossession (replevin)
IT Defenses: Consent
P’s consent (express or implied) is a defense.
Consider:
1) was there valid consent? did P have capacity?
2) did D stay within the boundaries of consent?
Express consent exceptions:
1) mistake, if D knew of and took advantage of mistake
2) consent via fraud invalid if goes to essential matter (not collateral matter)
3) consent via duress invalid unless duress = future threats or future econ deprivation
Implied consent exceptions [TESTED]:
Apparent consent = a reasonable person would infer from custom/usage or the P’s conduct.
Consent implied by law = when action is necessary to save a person’s life or some other important interest in person/property.
Scope of consent: if exceeded, D may be liable.
Protective privileges (def of self, others, property)
1) is the priv avail? applies only for preventing tort, not already committed torts (no preemption; no revenge) -must be in heat of moment.
2) is mistake permissible as to whether tort being defended against is actually being committed? (requires reasonable belief threat is genuine)
3) proper amount of force used?
Examines D’s response to P’s potential tort = a tort or was privileged.
Self Defense
DEFINITION: When a person reasonably believes that they are/about to be attacked, they may use such force as is reasonably necessary to protect against injury.
Majority - no duty to retreat.
Modern trend - duty to retreat if done safely, unless actor is home.
Defense unavailable to initial aggressor unless the other party response to aggressor’s nondeadly force with deadly force.
Only reasonably necessary force is allowed.
Defense of Others
DEFINITION: one may use force to defend another when they reasonably believe that the other person could have used force to defend themselves.
Reasonable mistake is permitted.
Level of force = allowed to use as much force as they could have used in self-defense.
Defense of Property
DEFINITION: may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous.
ONLY REASONABLE FORCE MAY BE USED - DEADLY FORCE IS NEVER REASONABLE for defense of property alone.
Note: one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if D is fleeing.
REMEMBER: defense is not avail to someone privileged to enter.
Shoplifting Detentions
Shopkeeper is privileged to detain a suspected shoplifter for investigation.
Conditions:
1) reasonable belief as to the fact of theft
2) reasonable manner of detention
3) reasonable time to investigate
Recapture of Chattels
Basic rule: when another’s possession began lawfully, one may use only peaceful means to recover the chattel.
Necessity
FOR PROPERTY TORTS ONLY
DEFINITION: A person may interfere with the real/personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural/other force and when the threatened injury is substantially more serious than the invasion to avert it.
- Public necessity: D acted to avert an “imminent public disaster”
- Private necessity: action to prevent serious harm to a limited number of people. Actor must pay for any injury they cause.
Negligence: prima facie case
(1) D’s duty to conform to a specific standard of conduct for protection of the P against an unreasonable risk of injury
(2) D’s breach of that duty
(3) Breach is actual and proximate
(4) Damages
Duty owed to all foreseeable Ps w/in the zone of danger. Physical scope of zone of danger depends on the activity.
Consider:
1) to whom is a duty owed?
2) what is the applicable standard of care?
Rescuers
Danger invites rescue. Rescuer is a foreseeable P when D negligently puts themselves/TP in peril.
Firefighter’s Rule
Firefighters & police barred from recovery for injuries caused by the inherent risks of their jobs.
Prenatal injuries
A duty of care is owed to a viable fetus.
Failure to diagnose a congenital defect/properly perform a contraceptive procedure = parents may recover damages for ordinary medical expenses/pain and suffering.
Basic standard of care - reasonably prudent person
ALL PERSONS OWE A DUTY TO BEHAVE IN WITH THE SAME CARE AS A REASONABLY PRUDENT PERSON IN SAME OR SIMILAR CIRCUMSTANCES.
D’s mental deficiencies/inexperience are not taken into account.
Exception to basic standard of care: superior skill/knowledge
D who has superior skill/knowledge will be required to exercise that experience.
Exception to basic standard - physical characteristics
The hypothetical reasonably prudent person adopts D’s PHYSICAL characteristics IF those characteristics are relevant to the claim.
Special standards of care: children
Kids are held to the standard of a child with like age, education, intelligence and experience.
*Children engaged in adult/potentially dangerous activities required to conform to adult standard (think: operating motorized vehicles; shooting guns).
NB: under 5, without capacity for negligence.
special standards of care: professionals
A professional is required to possess the knowledge and skill of an AVERAGE MEMBER of the profession in good standing. (D must conform to colleagues).
Drs: most courts apply national standard of care; Dr has duty to disclose risks of treatment for informed consent.
Possessors of Land
Traditional rule: duty owed depends on P’s status on the land.
Unknown Trespasser
No duty owed.
Known Trespasser (when D is on notice of trespassing)
Possessor must warn of HACK: highly dangerous artificial concealed conditions known to possessor. [known man made death traps]
Licensees (on land for visitor’s benefit)
One who enters onto land with possessor’s permission for their own personal/biz purposes (social guest). Possessor has duty to warn of or make safe dangerous conditions:
concealed
known
Possessor has no duty to inspect/repair.
Invitees (on land for possessor’s benefit)
Invitees enter the land in response to an invitation by the possessor. An invitee will lose invitee status if they exceed the scope of the invitation. Landowner duties:
concealed
known or could’ve been found by reasonable inspection
Eliminate hazards by:
repair
replace
remove
Trespassing Kids (attractive nuisance)
Most courts impose duty on landowner to exercise ordinary care to avoid a reasonably foreseeable risk of harm to kids caused by dangerous man made conditions on their prop.
P must show:
dangerous condition owner should be aware of
owner knows/should know kids trespass
condition likely to harm
expense to remedy < magnitude of risk
child does not have to come to the land for the risk!
duty owed to users of recreational land
owner who permits gen public to use land for fun without charging a fee is not liable for injuries suffered unless owner willfully and maliciously failed to guard/warn against condition.
duty of possessor to those off premises
duty for unreasonably dangerous artificial conditions or structures abutting adjacent land
duties of lessor/lessee
Lessee - general duty to maintain premises
Lessor - must warn of existing defects of which they are aware/have reason to know; hidden defects.
If guest to T is liable, look to lessor (owner) AND lessee (possessor)
duties of real estate seller
Seller must disclose concealed, unreasonably dangerous conditions of which S knows/has reason to know/knows B not likely to discover on a reasonable inspection
standard of care - negligence per se
A clearly stated specific duty imposed by statute providing for criminal penalties may replace more general standard of care if: P within protected class Statute designed to prevent the harm suffered
Negligence per se violation excused
Violation may be excused where:
1) compliance more dangerous than violation or
2) where compliance beyond D’s control
unexcused negligence per se satisfies elements of duty and breach
Affirmative duties to act
Generally, NO LEGAL DUTY TO ACT/RESCUE
Exception:
- Special relationship b/w parties (formal relationships + common carriers, innkeepers, shopkeepers)
- P in peril due to D’s conduct
- Assumption of duty by acting (but note: good Samaritan laws exempt drs/nurses from ord. neg. liability, not gross).
Negligent Infliction of Emotional Distress
Duty to avoid NIED may be breached when D creates foreseeable risk of physical injury to P.
- P was w/in zone of danger (high risk of physical impact)
- P suffered physical symptoms from distress (sev. shock ok)
NIED bystander cases
Bystander outside zone of danger who sees D negligently injuring another can recover damages for their own distress as long as:
- P / injured person are closely related
- P present at scene and personally observed the event
NIED - special relationship b/w parties
D may be liable for P’s severe emotional distress when a duty arises from the r/ship (typically, commercial) such that D’s negligence has great potential to cause ED.
- doctor’s misdiagnosis of terminal illness
- mortuary’s negligent cremation of remains
Breach of duty in negligence
When D’s conduct falls short of the standard of care, breach.
Factual determination. May be shown by:
- custom/usage
- violation of statute
OR
- res ipsa loquitur (very occurrence of a thing = breach) [accident would not normally occur without negligence]
[negligence probably attributable to D]
Can be shown by ownership/control of instrumentality causing injury.
Effect of res ipsa: P has made a prima facie case for negligence and no directed verdict may be given for D.
Factual causation
But for test!
But for a D’s conduct, would injury have occurred?
Causation - merged causes substantial factor test
When several causes bring about injury, and any one alone would have been sufficient, D’s conduct is cause in fact if it was a substantial factor in causing the injury.
2 Ds, 2 breaches –> merged cause test.
Causation - unascertainable causes approach
Applies when there are two acts, only one of which causes injury, but unclear which one.
Burden shifts to D to prove it wasn’t him.
2 Ds, 1 breach –> unascertainable causes.
Proximate causation
Is a limitation of liability!
General rule - D is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts [foreseeability test]
Foreseeability:
- passage of time
- geographic distance
- prior occurence
Almost always foreseeable:
- medical malpractice
- rescuer negligence
- protection or reaction forces for D’s conduct
- Disease or accident stemming from original injury
Proximate cause: intervening forces MAY be foreseeable if D’s negligence increased the risk of harm from them.
Including:
1) negligent acts of third persons
2) crimes and intentional torts of third persons
3) acts of God
Proximate cause: superseding forces
Intervening forces that produce unforeseeable results are generally deemed unenforceable and superseding - they break the causal connection between the D’s initial negligent act and the P’s ultimate injury, thus delivering D liability.
Damages for negligence
Essential element - D takes P as they find them, meaning D is liable for ALL damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.
[Eggshell skull Plaintiff rule]
negligence damages - personal injury
all damages (past, present, prospective): both economic damages (medical expenses) and noneconomic damages (pain and suffering + emotion distress)
negligence damages - property damage
Reasonable cost of repair or if property totally destroyed, its fair market value at the time of the accident.
Contributory negligence
Negligence on the part of the P that contributes to P’s injuries.
Contrib. Neg. is a defense
Effect of Contributory Negligence - completely barred P’s right to recovery at common law.
EXCEPTION:
Last Clear Chance Doctrine - permits a P to recover despite their contrib. negligence. Under this rule, the person the last clear chance to avoid an accident who fails to do so is liable for negligence.
Negligence Defenses: Assumption of the Risk
P may be denied recovery if they assumed the risk of any damage caused by D’s act. P must have:
1) known of the risk; and
2) voluntarily proceeded in the face of the risk
Negligence Defense: Implied assumption of the risk
Knowledge may be implied where the risk is one that an average person would clearly appreciate. P may NOT be said to have assumed the risk where there was no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency.
Comparative negligence
P’s contributory negligence is not a complete bar to recovery.
Partial comparative negligence (MAJORITY) - still bars P’s recovery if their negligence was more serious than D’s negligence.
Pure comparative negligence - recovery allowed no matter how great P’s negligence was [MBE].
Strict Liability - Liability of DOMESTIC Animals
An owner is not strictly liable for injuries caused by domestic animals unless they know of that particular animal’s dangerous propensities that are not common to the species.
Injury caused by normally dangerous characteristics of domestic animals does NOT create strict liability - (bulls or honeybees).
Classic example - dog that bites humans –>
first bite = no liability;
after first bite = you’re on notice.
Trespassing Animals - owner is SL for reasonably foreseeable damage done by a trespass of his animals.
Strict Liability - Liability of WILD animals
Owner is SL to licensees and invitees for injuries caused by wild animals (even those kept as pets).
SL Not avail to trespassers:
- To recover for their injuries from a wild animal, a trespasser must prove the owner’s negligence.
Abnormally Dangerous Activities
two requirements:
(1) activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors;
(2) activity is not a matter of common usage in the community
Common examples - explosives, dangerous chemicals, biological materials, radiation, nuclear energy
SL does NOT apply when the injury is caused by something other than dangerous aspect of the activity.
REMEMBER: exercise of reasonable care will NOT relieve the D of liability in a strict liability situation.
Products Liability
Refers to the liability of a supplier of a defective product to someone injured by the product.
5 theories of products liability
- Intent
- Negligence
- Implied warranties of merchantability and fitness for a particular purpose
- Representation theories
- Strict Liability
Strict liability elements
- D is a merchant
- Product is defective
- Product was not substantially altered since leaving D’s control
- P was making a foreseeable use of the product at the time of liability
SL: only merchants can be held liable
Any commercial supplier can be held liable.
- Does NOT extend to CASUAL SELLERS
- Does NOT extend to SERVICES (products only)
- Includes COMMERCIAL LESSORS (those who rent rather than sell products also can be held strictly liable)
- Includes ENTIRE DISTRIBUTION CHAIN (manufacturers, wholesalers and retailers).
WRONG MBE ANSWER - no contractual privity between P and D. [irrelevant]
SL: types of defects - manufacturing defects
Manufacturing defects - if a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect.
D will be liable if the P can show that the product failed to perform as safely as an ordinary consumer would expect (D must anticipate reasonable misuse).
SL: types of defects - design defects
When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. Manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product.
P usually must show that D could have made the product safer, without serious impact on the product’s utility or price - e.g., was safer/more practical than D’s design & costs about the same.
SL: types of defects - government safety standards
A product’s noncompliance with govt safety standards establishes that it is defective, while compliance with safety standards is evidence - but NOT conclusive - that the product is not defective.
SL: types of defects - information defects
A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users.
Warnings should be:
- prominent
- comprehensible
- provide info about mitigating the risk
SL: existence of defect when product left D’s control
P must show that the product has not been significantly altered since it left D’s control. If the product moved through normal channels of distribution, it will be inferred that the product was not altered and that the defect existed when the product left the D’s control.
SL: misuse of product may be foreseeable
P must have been making a foreseeable use of the product at the time of the injury.
NOTE: Foreseeable use does NOT mean intended/appropriate way.
SL: nature of damages recoverable
Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.
SL: disclaimers ineffective
Disclaimers are irrelevant in SL cases if personal injury or property damages occur.
Affirmative Defenses
In contrib. negligence states:
- No defense if P has failed to realize the danger or guard against it.
- Defense if P knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity or defective product.
Assumption of the risk is a good defense to SL.
Many comparative negligence states apply their comparative negligence rules to SL cases.
Nuisance - an invasion of property rights by tortious conduct.
Private - substantial, unreasonable interference (by community standards) with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession.
Think: inconsistent land use cases; spite cases; gross inconsideration cases
Public - public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.
Coming to the nuisance: one may come to the nuisance and thereafter pursue an action.
Vicarious liability
One person commits a tort against a third party and another person will be liable to the third party for this act.
Employer-employee / respondeat - superior
An employer will be vicariously liable for tortious acts committed by their employees if the tortious acts occur within the scope of employment
Respondeat-superior –> frolic/detour
Detour - minor deviation from employer’s business for their own purposes is still acting within the scope of employment (LIABLE)
Frolic - substantial deviation from employer’s business (NOT LIABLE)
Respondeat superior - intentional torts
Usually held that intentional torts by employees is not within the scope employment
Exceptions:
- employment is furthering the biz of the employer
- force is authorized in the employment
- friction is generated by the employment
THINK: bouncer at a bar
Independent Contractor Situations
Generally, the hiring party will not be vicariously liable for the tortious acts of an independent contract.
Exception: where a duty is simply non-delegable due to public policy considerations
[biz owner can be held liable if independent contractor working on biz premises hurts customer]
Liability for own negligence - employer may be liable for their own negligence in selecting or supervising the independent contractor
Tavernkeepers
Common law - no liability on vendors
Modern law - dram-shop acts usually create a cause of action for any third person injured by the intoxicated patron
Joint and several liability
Traditional common law - when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable
Satisfaction and Release
Satisfaction - recovery of full payment is a satisfaction. Only one is allowed. Until there is satisfaction, one may proceed against ALL jointly liable parties.
Release - in most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.
Contribution and Indemnity
Contribution and indemnity are doctrines that determine how JTs ALLOCATE between them the damages owed to P.
Contribution - apportions responsibility among those at fault.
- comparative contribution: imposed in proportion to the relative fault of the various defendants
- equal shares: apportionment is in equal shares regardless of degrees of fault
Indemnification - shifts entire loss between or among tortfeasors.
- in vicarious liability situations
- under strict products liability for the non-manufacturers
Loss of consortium and tortious interferences with family relationships
Between spouses - either spouse may bring an action for indirect interference with consortium and services caused by the D’s tortious conduct [loss of household services, loss of society/companionship, loss of sex]
Parent-child: a parent may maintain an action for loss of a child’s services and consortium
Defamation
A defamatory statement that specifically identifies P, published to a third party, that damages P’s reputation through the falsity of the defamatory language, fault on D’s part.
A defamatory statement is one tending to adversely affect one’s reputation.
- Reputation is monetizable
NOTE: a pure statement of opinion is not defamatory.
Statement must specifically identify P - P must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the P.
Defamation: colloquium and group defamation
If statement does not refer to P on its fact, extrinsic evidence may be offered to establish that the statement refers to the P.
Group Defamation:
If the defamatory statement refers to ALL members of a SMALL group, each member may establish that the statement specifically identifies them (every member of that small group wins)
If the statement only refers to SOME members of a SMALL group, P can recover if a reasonable person would view the statement as referring to the P.
If the statement is about a LARGE group, NO member can prove that the statement specifically identifies them (no one wins)
Defamation: publication
Publication means communication of the defamation to a third person who understands it. Publication must be made intentionally or negligently. It is the INTENT to PUBLISH that is the requisite intent
EXAM: look out for a scenario where a defamatory statement about the P is made ONLY to P. NO PUBLICATION –> no defamation.
Libel
Defamation embodied in permanent form (writing/broadcast/radio).
P typically doesn’t need to prove special damages to recover and general damages are presumed.
Slander
Slander is spoken defamation. P must prove special damages, unless the defamation falls within one of the slander per se categories (damages presumed).
Defamatory statements:
- state that the P has a loathsome disease
- adversely reflect on the P’s business or profession
- state that the P has committed a serious crime
- impute that the P has engaged in serious sexual misconduct
Defamation: falsity
Under traditional common law, P did not have to prove that the statement was false. Many states have altered that rule, however, and now require the P to prove falsity as part of the case-in-chief.
Defamation: fault on D’s party
A majority of states require a showing of fault on the part of the D.
Public Official or Figure Must Prove Actual Malice
- Public figure: one who achieves pervasive fame or notoriety OR by voluntarily assuming a central role in a particular public controversy
*Definition of Actual Malice:
Actual malice is knowledge that the statement was false OR reckless disregard as to whether it was false
*Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.
Private Persons Must Prove Negligence if Matter of Public Concern
ONLY negligence regarding the falsity must be proved if the statement involves a matter of public concern.
- Matter of public concern: court will look at content, form, and context of the publication.
Defenses to Defamation
- Consent
- Truth
- Privilege
- -> Absolute privilege - can never be lost
- Between spouses
- Remarks made in judicial/legislative proceedings/executives in “compelled broadcasts”
- -> Qualified privilege - can be lost through abuse; arises only when there is a public interest in encouraging candor
Invasion of Right to Privacy (PERSONAL RIGHT)
- Appropriation of P’s picture or name: unauthorized use of P’s picture or name for the D’s commercial advantage
- Newsworthy exception
- Intrusion on P’s affairs or seclusion: must be in place with reasonable expectation of privacy and be highly offensive to a reasonably person
- Publication of facts placing P in a false light: one attributes to P views they do not hold or actions they did not take. Must be highly offensive to a reasonable person under the circumstances. D must circulate the statement to the public at large.
- If public interest matter –> need actual malice.
- Public disclosure of private facts about P: public disclosure of P’s private info; disclosure must be highly sensitive to a reasonable person.
- Newsworthy exception
Defenses to Privacy Torts
Consent & privilege defenses (not avail for appropriation/invasion of seclusion).
Truth NOT A GOOD DEFENSE.
