Torts Flashcards
Battery
(1) intentional;
(2) harmful or offensive contact (that offends a reasonable sense of personal dignity); and
(3) with the P’s person (including anything connected to P).
*Nominal damages alone are sufficient.
Assault
(1) intentional act;
(2) that causes P to be placed in reasonable apprehension; and
(3) of an imminent harmful or offensive contact with P’s person.
− Reasonable Apprehension = P must be aware of D’s act AND believe D is able to commit the act.
*Nominal damages alone are sufficient.
General Intent vs. Specific Intent
− Intentional =
(a) a desire to bring about the harm/contact; OR
(b) knowing the harm/contact is substantially certain to occur.
False Imprisonment
An act or failure to act by D resulting in P’s restraint or confinement to a bounded area.
Restraint or confinement does not need to be physical (threats of force, invalid use of legal authority, etc.).
P must be aware of or harmed by the confinement;
P’s freedom of movement must be limited;
P must not be aware of any reasonable means of escape.
Intentional Infliction of Emotional Distress
(1) intentional or reckless conduct;
(2) that was extreme and outrageous (transcends all bounds of decency);
(3) that causes extreme emotional distress (causation); AND
(4) P actually suffers severe emotional distress (damages).
− Reckless = a deliberate disregard of a high risk that emotional distress will follow.
IIED Non-outrageous conduct may be actionable if:
a) D targets P’s known sensitivity or weakness;
b) D’s conduct is continuous or repetitive;
c) D targets a P who is a member of a “fragile” class;
d) D is a common carrier or innkeeper.
If conduct is directed at a third-party, D is liable for intentional/reckless infliction of emotional distress caused to
a) A member of such person’s immediate family present at the time, whether or not such distress results in bodily harm; OR
b) Any other person present, if it results in bodily harm.
IIED Bystander Claims for Emotional Distress
A bystander closely related to a person physically injured or killed by D’s conduct may recover for emotional distress.
Elements:
1) D’s conduct seriously injured or killed a third person (D’s conduct must be intentional or reckless);
2) P is closely related to the injured person ( not required if P shows that D had a design or purpose to cause P’s severe distress);
3) P was present when the injury occurred (P must clearly witness the injury-causing event);
4) D knew elements 2) and 3);
5) P suffers severe emotional distress (physical manifestation is not required).
Trespass to Land
D is liable if:
(1) he intentionally;
(2) either:
(a) enters the land physically (or remains on the land); or
(b) propels physical objects or a third- person onto the land (or fails to remove an object he is under a duty to remove).
− Intent to trespass is NOT required – only the intent to be on the land is required.
− P must be the possessor of the land at the time of the trespass.
Damages – P may recover the:
a) decrease in value of the property; OR
b) cost to repair the property.
*Nominal damages alone are sufficient.
Trespass to Chattels
liable when:
1) D intentionally interferes with personal property of another (damage, preventing use by the owner); AND
2) The amount of damage is small.
Conversion
liable when:
1) D intentionally interferes with personal property of another (damage, preventing use); AND
2) The amount of damage is substantial.
*P can recover the full market value of the property.
Doctrine of Transferred Intent
The intent to harm one party can be transferred when:
1. D intends to commit a tort against one particular individual; AND
2. Either:
a) commits a different tort against that person; OR
b) another person is injured by the same or different tort.
*Applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels.
Consent
may be express or implied through words or conduct.
− CANNOT exceed the 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.
Privilege
Is conduct that normally would subject the actor to liability, but is excused under the circumstances.
Necessity
D is NOT liable for harm to P’s property if D’s intrusion was (or reasonably appeared to be) necessary to prevent serious harm to a person or property.
− Applicable only to intentional torts against property.
− Public Necessity (compete defense)→when D acts for the public good.
− Private Necessity (incomplete defense) → when D is protecting his own (or a few others) property interests. D is liable for damages UNLESS the purpose was to help P.
Self-Defense / Defense of Others
D is not liable for harm to P if he:
1) reasonably believed P was going to harm him or another; AND
2) used reasonable force that was necessary to protect himself or another.
Defense of Property
May use reasonable force to defend property, but CANNOT use deadly force.
Recapture of Chattels
An owner of wrongfully taken chattels may take prompt action and use reasonable, non-deadly force to recover the chattels from the wrongdoer.
− Force is deemed unreasonable without first making a demand to return the item UNLESS the demand is dangerous or futile.
Shopkeeper’s Privilege
(1) temporarily detain;
(2) a person reasonably suspected of theft;
(3) in or near their store; AND
(4) for the purpose of investigation.
- When a request to remain has been made and refused, reasonable non-deadly force may be used to detain.
- Shopkeeper may be held liable for any harm caused by acts exceeding the privilege.
Negligence Prima Facie Case
Elements:
1) Duty;
2) Breach of duty;
3) Causation (actual and proximate cause); AND
4) Damages.
*A party must offer sufficient evidence to prove ALL of the above elements.
Affirmative Duty
There is NO general duty to act affirmatively EXCEPT IF:
a) A special pre-existing relationship exists between the parties (i.e. parent-child, landowner-entrant);
b) D put P in peril;
c) D has already undertaken to rescue P (but liable only if it increases the risk of harm or harm is suffered because of reliance on the person providing help); OR
d) A duty imposed by law.
Reasonable Person Standard
Every person owes a duty to act as a reasonable prudent person would act under the circumstances.
− Following community customs & statutory requirements are relevant, but not dispositive. It is merely evidence of reasonable care.
Physical Disability→must act as a reasonable person with the disability would act.
Mental Disability or Below Average Intelligence → must act as a reasonable person without the disability would act.
Children (Standard)
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.
Professionals (Standard)
Must act with the knowledge and skill as an average member of that profession participating in a similar community.
− Professional→doctors, lawyers, accountants, engineers, architects, nurses.
Specialist – If holding oneself out as a specialist, then must act as an average member of that profession practicing that specialty.
Medical Doctor – Held to the degree of care and skill of an average qualified practitioner under a national standard.
Psychologist / Psychotherapist Standard
Also have a duty to warn victims when their patient makes a credible threat if:
(1) the therapist believed the patient posed a real risk;
(2) of serious physical violence;
(3) to a readily identifiable victim; and
(4) failed to take steps to warn the victim.
Land Owner / Possessor Duty to Entrants
Some States→Landowner/Possessor must exercise reasonable care under the circumstances to ALL entrants.
Other States→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) highly dangerous artificial conditions that the land owner knows of.
Licensee vs. Invitee
Licensee (social guest)→(1) reasonable care in operations; AND (2) must warn of (or make safe) dangerous conditions that are known, but 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.
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:
1) knows (should know) of a dangerous natural or artificial condition – likely to cause death or serious bodily injury;
2) knows (should know) children are likely to frequent the area;
3) children are unlikely to discover the condition or appreciate the risks; AND
4) the risk of harm outweighs the expense of making the condition safe.
*Attractive nuisance doctrine DOES NOT apply if the
child is engaging in an adult activity.
Landlord’s Duty to Tenants
Landlord generally has NO duty to maintain the leased premises (unless provided for by law or contract).
− But, landlord MUST warn of latent defects.
Duty to Make Premises Safe from Criminal Acts:
− Common Law→Landlord has NO duty to
provide a safe premises so that tenants are safe from criminal acts of third-persons.
− Modern View→Landlord has a duty to take reasonable precautions to protect a tenant against foreseeable attacks.
Negligence Per Se
An existing statute may establish a duty of care, in which case the specific duty imposed by the statute will replace the general common law duty of care.
Requirements:
1) The statute provides a criminal penalty;
2) Standard of conduct is clearly defined in the statute;
3) P is within the class of people the statute was designed to protect; and
4) The statute was designed to protect against the type of harm P suffered.
Statutory standard of care does not apply if:
A) Compliance is more dangerous than non-compliance; or
B) Compliance is impossible under the circumstances.
Res Ipsa Loquitur
Can be used when the breach element is difficult to prove.
Restatement (Second) Test – Plaintiff must show that:
1) The injury or damages sustained could not, under ordinary circumstances, occur without negligence on the part of the defendant.
2) The object or occurrence that caused the injury or damages was within the defendant’s exclusive control.
3) The incident did not occur due to any voluntary action of, or participation by, the plaintiff.
4) The defendant’s explanation of non-negligence does not adequately explain the plaintiff’s injury or damages.
Causation
P must show that D’s conduct was BOTH
the actual and proximate cause of the injury.
Actual Cause→the “but for” cause.
− Substantial Factor Test – deemed an actual cause if it’s a substantial factor in bringing about the injury (even if there are multiple causes).
Proximate Cause→injury must have been a foreseeable result of the breach.
− D is NOT liable for remote harms caused.
Intervening Cause
Is an act that occurs after the breach that contributes to the harm.
− Intervening causes that are dependent (a natural reaction to) D’s wrongful acts→usually deemed foreseeable.
− If the intervening cause resulted in an
unexpected injury→it’s usually deemed unforeseeable and D is NOT liable.
Medical Malpractice→is ALWAYS deemed foreseeable.
Criminal Acts→usually NOT foreseeable UNLESS:
a) D should have anticipated the criminal act; OR
b) D’s conduct makes the criminal act more likely.
Eggshell Plaintiff Rule
“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.
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.
Assumption of Risk
Is a defense to negligence, and applies if P voluntarily assumed a known risk.
- May be express (by agreement) OR implied (an average person would appreciate the risk).
Negligent Infliction of Emotional Distress − Near Miss Case
(1) D’s negligence;
(2) creates a foreseeable risk of physical injury;
(3) P is in the zone of danger; AND
(4) P manifests physical symptoms.
Negligent Infliction of Emotional Distress - 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.
Respondeat Superior Doctrine
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:
a) Performing work assigned by the employer; OR
b) 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:
i) Is of the kind the employee is employed to perform;
ii) Occurs substantially within the authorized time and space limits; and
iii) Is motivated (in whole or part) to serve the employer.
Intentional Torts – are generally outside the scope. EXCEPTIONS:
a) Act was specifically authorized by employer;
b) Act was driven by a desire to serve employer; OR
c) 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.
Liability if Respondeat Superior Doctrine is Inapplicable
A principal / employer will be liable for an agent’s acts outside the respondeat superior doctrine if:
a) Principal intended the conduct / consequences;
b) Principal was negligent or reckless in selecting, training, supervising, or controlling the agent;
c) It is a non-delegable duty; OR
d) 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.
Employee vs. Independent Contractor
Primary focus is whether the principal had the right to control the manner and method in which the job was performed.
Factors→courts analyze the following to determine if a person is an employee or independent contractor:
1) type of work;
2) pay (hourly vs. per project);
3) who supplied the equipment/tools;
4) degree of supervision;
5) degree of skill required;
6) if the work benefits the employer’s business;
7) extent of principal’s control over work details;
8) whether agent/contractor is engaged in a distinct business;
9) length of time employed/engaged;
10) characterization & belief of relationship; and
11) whether agent was hired for a business purpose.
Exceptions to no Liability for Independent Contractors
Generally, an employer/principal has NO liability for an Independent Contractor’s torts.
Exceptions:
1) Inherently Dangerous Activities.
2) Non-delegable duty owed by principal.
3) Estoppel – the principal holds out the contractor as his agent, third-party reasonably relied on contractor’s skill, and the third-party suffered harm.
Joint and Several Liability
If multiple Ds are the proximate cause of a single indivisible harm, then P may recover the ENTIRE amount of damages from any defendant.
− BUT, any D who pays more than his share of the damages may bring action against the other Ds for contribution.
Indemnification
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.
Contribution – D may seek contribution from other Ds if he pays more than his share of the liability.
− The amount recoverable from each D is based on each’s percentage share of fault.
Doctrine of Alternative Liability
Allows a jury to find ALL Ds liable if:
1) multiple Ds are negligent,
2) but it’s unclear which one caused P’s injuries.
Doctrine of Joint Enterprise
Allows the negligence of one D to be imputed to other Ds if:
1) Multiple Ds are engaged in a common project or enterprise; AND
2) All Ds have made an explicit/implied agreement to engage in tortious conduct.
Doctrine of Market Share Liability
If applicable, all manufacturers (of products identical to the one that harmed P) are liable in proportion to their share of the market.
Market Share Liability is appropriate if:
1) All Ds are potential tortfeasors;
2) Products are identical and share the same defective qualities (or were “fungible”);
3) P is unable to identify which D caused his injury through no fault of his own; AND
4) Substantially all of the manufacturers of the product are named as Ds.
Defamation
The elements required to prove a prima facie case of defamation are:
1) a false defamatory statement (a statement that tends to harm the reputation of another);
2) of and concerning the P made by D;
3) publication by D to a third-party; AND
4) damages.
Slander
(an oral defamatory statement)→need to prove special damages.
− UNLESS it’s Slander Per Se→
(a) impugning business integrity or skill;
(b) unchastity of an unmarried woman;
(c) loathsome disease; OR
(d) crime of moral turpitude.
Libel
(defamation in a permanent format)→DO NOT need to prove special damages.
− UNLESS→
(1) the statement does not fall within one of the slander per se categories; AND
(2) the defamatory nature is not clear on its face.
Public Official or Public Figure
→MUST also prove actual malice (recklessness or knowledge of falsity).
− Public Figure = injected themselves into a public controversy or achieved widespread notoriety.
Private Figure Speaking about a Matter of Public Concern→MUST also prove negligence.
Defenses to Defamation
Consent
Truth- truth is a complete defense to a defamation claim.
Privilege
Absolute Privilege- protects statements by government officials in their official capacity.
Qualified Privilege- D’s liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness and/or related to fair comment and criticism (letter of recommendation, employment reference, book review, accurate reports of public proceedings).
Qualified Privilege
Applies when (1) the statement is conditionally privileged, AND (2) privilege is not abused (did not act with malice).
Applies to statements→by former/prospective employers (made in good faith for a legitimate purpose), in gov’t reports of official proceedings, during testimony in legislative proceedings, in self-defense, and to warn others about danger/harm.
Misappropriation of Name or Picture
– occurs when D
(1) used P’s name or likeness,
(2) for commercial advantage (promoting a product/service).
− Newsworthiness is a defense.
False Light
– occurs when D
(1) causes widespread dissemination,
(2) of P’s beliefs, thoughts, or actions,
(3) in a false light,
(4) that would be highly objectionable to a reasonable person.
− If a public figure or matter of public concern → MUST show actual malice (knowledge of falsity or reckless disregard).
Intrusion of Privacy
– occurs when:
(1) D intrudes into the private affairs of P;
(2) P has a reasonable expectation of privacy; AND
(3) the intrusion is highly objectionable to a reasonable person.
− Examples→reading private mail, illegal wiretapping.
Public Disclosure of Private Facts
– occurs when D
(1) caused widespread dissemination,
(2) of truthful private information,
(3) that is highly objectionable to a reasonable person.
− Newsworthiness is a defense UNLESS actual malice (knowledge of falsity or reckless disregard) is present.
Intentional Interference with Business Relations
Must prove that:
1) There was contract or business expectancy;
2) D knew of the contract/expectancy;
3) D intentionally induced the party to breach the contract (or terminate the relationship);
4) A breach occurred; AND
5) P suffered damages.
Defenses to Intentional Interference with Business Relations
− Legitimate competitive activity (no dishonest, wrongful, or illegal act used).
− Giving truthful information.
− Having a financial interest in the party that breached or terminated.
− Honestly giving requested advice, usually in a special relationship (i.e. attorney-client, parent- child, clergy-penitent).
Intentional Misrepresentation (fraud/deceit)
Plaintiff must show:
1) Misrepresentation of a material fact by D;
2) D knew the statement was false (scienter);
3) Intent to induce P;
4) Actual and reasonable reliance by P; AND
5) Damages.
Negligent Misrepresentation
Plaintiff must show:
1) A misrepresentation (false statement of material fact);
2) Supplied for the guidance of others in a business transaction;
3) D knew (or should have known) that the information was supplied to guide P in his business transactions;
4) D was negligent in obtaining or communicating the false information;
5) Actual and reasonable reliance by P; AND
6) The false information proximately caused P’s damages.
Concealment
An affirmative act intended to keep another from learning a fact.
− Concealment is deemed a misrepresentation.
There is NO duty to disclose information UNLESS:
a) a fiduciary relationship exists;
b) it’s necessary to correct an earlier mistake;
c) active concealment occurs; OR
d) a seller of real property knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover).
Nuisance
Public Nuisance
(1) an unreasonable interference,
(2) with the health, safety, or property rights,
(3) of the community (a considerable amount of people or an entire community/neighborhood).
− Must show actual damages.
Private Nuisance
(1) a substantial and unreasonable interference,
(2) with a person’s use or enjoyment of her property.
− MUST be offensive, inconvenient, or annoying to a reasonable person.
Defenses
− Coming to the nuisance (residential landowner
knowingly came into a neighborhood with a nuisance).
− Statutory compliance.
Wild & Domestic Animals
Domestic Animals – Owner is NOT strictly liable UNLESS he has knowledge of the animal’s vicious propensities.
− Includes dogs, cats, & farm animals.
Wild Animals – Owner is SUBJECT TO strict liability for harm caused regardless of any safety precautions taken.
Animal owners are strictly liable for the trespass and resulting property damage caused by their animals (if reasonably foreseeable).
Abnormally Dangerous Activity
Is an activity that:
1) is not of common usage in the community; AND
2) creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).
*D is subject to strict liability.
Strict Products Liability
A commercial supplier is strictly liable for any harm caused by its product.
Elements:
1) Product was defective when it left the hands of D (manufacturing defect, design defect, or failure to warn);
2) Product was not altered when it reached P;
3) Caused an injury to P when it was being used in an intended or unintended foreseeable use; AND
4) D is a commercial supplier who routinely deals in goods of this type.
Manufacturing Defect
→When the product:
1) differs from the intended design (defect in manufacturing/production); AND
2) is more dangerous than if made properly.
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.
Failure to Warn
Manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use.
Manufacturer also has a duty to warn of foreseeable dangers from misuse of the product.
P must show that the product has risks that :
1) cannot be eliminated by redesign; and
2) consumers would not ordinarily notice.
D is not liable for risks that were unforeseeable at the time the product was marketed.
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 property damage is allowed.
− Recovery for solely economic loss is NOT allowed.
Prima Facie Liability for Negligence
A negligence claim based on a defective product requires:
1) Duty owed to P;
2) Breach of that duty;
3) Causation (actual & proximate cause); AND
4) Damages.
Duty Owed by Product suppliers
Owe a duty to all foreseeable users, and MUST act as a reasonably prudent supplier would for the type of product.
− Breach→will be found if a supplier’s negligence results in a defective product.
− Suppliers are also liable for all foreseeable misuses of the product.
*Negligence MUST be shown.
Liability for Breach of Warranty
May be based on a breach of an express or implied warranty.
− Damages for Breach→personal injury, property damage, and economic loss.
− Disclaimer of Warranties→usually NOT effective for a personal injury action.
Implied Warranty of Merchantability
→requires that all goods sold by a merchant (a person dealing in goods of the kind) MUST be fit for their ordinary purpose.
Implied Warranty of Fitness for a Particular Purpose
→created when:
1) A seller knows (or has reason to know) of the buyer’s particular purpose for the goods; AND
2) Buyer relies on seller’s skill or judgment to select/furnish suitable goods.
*A breach occurs if the goods are NOT fit for the particular purpose.
Express Warranty
→created when
(1) a seller makes an affirmation of fact, promise, description, or provides a sample, (2) which relates to the goods, AND
(3) it becomes part of the basis of the bargain.
Unavoidably unsafe product
If a product cannot be made safe for its ordinary use (chainsaw, firearms, etc.), a manufacturer must give:
1) proper instructions for use; and
2) adequate warnings of known dangers.
