Torts Flashcards
Intentional Torts:
-battery
-P must show (1) a harmful or offensive contact; (2) to P’s person, (3) D’s intent and (4) causation
assault
-P must show (1) an act by the D which causes a reasonable apprehension in P; (2) of immediate harmful or offensive contact to P’s person; (3) D’s intent; and (4) causation
false imprisonment
-P must show (1) an act or omission by D that confines or restrains P (2) to a bounded area; (3) D’s intent; and (4) causation
*Note: P MUST be aware OR harmed by the confinement
Intentional Infliction of Emotional Distress
-P must show (1) extreme and outrageous conduct by D; (2) intent or recklessness; (3) causation; and (4) damages in the form of severe emotional distress
Bystander IIED
-P must show (1) P was present when the injury occurred; (2) P is a close relative to V; and (3) D KNEW P was present and a close relative
trespass to land
-P must show (1) a physical invasion of P’s real property; (2) intent; and (3) causation
*Note: Negligent or reckless entries are only subject to liability if D causes harm to land
trespass to chattel
-P must show (1) an act by D that interferes with P’s right of possession in chattel; (2) intent; (3) causation; and (4) damages
conversion
-P must show (1) an act by D that interferes with P’s right of possession of chattel; (2) which is so serious that D must pay for chattel’s full value; (3) intent; and (4) causation
*Note: even a BFP of chattel may be guilty when chattel has been stolen from its true owner
Defenses to Intentional Torts:
-consent
-requires legal capacity: express or implied:
-apparent common understanding, custom and usage OR D’s reasonable interpretation of P’s objective conduct;
-Implied by law where necessary to save life
Defenses to Intentional Torts:
-self defense and defense of others
-invasion is imminent or in progress;
-reasonable mistake does NOT negate;
-may use ONLY proportionate force
Defenses to Intentional Torts:
-false arrests: felony arrest w/o a warrant (police; private)
-Police: have reasonable grounds to believe a felony was committed and arrested the person who committed it;
-Private: felony was ACTUALLY COMMITTED and the private person had reasonable grounds to believe the person committed it
Defenses to Intentional Torts:
-false arrests: misdemeanors arrest w/o a warrant (police; private)
-Police and Private: breach of the preace and committed in the presence of the arrester
Defenses to Intentional Torts:
-false arrests: Crime prevention w/o a warrant (police; private)
-Police and Private: if felony or breach of the peace is in progress, OR reasonably appears to be
-deadly force ONLY allowable if felony and suspect poses serious harm
Defenses to Intentional Torts:
-defense of property
-must ask to desist;
-no deadly force is allowed
-re-entry on land
-wrongdoer: reasonable time and manner;
-innocent party: reasonable time and peaceful manner with notice;
*on land through owner’s fault: no privilege
re-capture of chattel
-force only if in hot pursuit
-may only re-capture from tortfeasor or 3rd party WITH knowledge of wrongful taking
shopkeepers privilege
-shopkeeper may detain for reasonable time and manner if reasonably believes person committed theft in order to conduct an investigation
public necessity
-protect community as a whole, absolute defense for trespass and damages
private necessity
-protect own interest ONLY if emergency is NOT of his own making, only defense for trespass, eg. D still liable for ACTUAL harm
Defamation: prima facie requirements
-to prove a prima facie case for common law defamation, the P must show:
(1) defamatory language;
(2) of or concerning the P;
(3) publication by D to a 3rd person; and
(4) damages (possibly): *if libel or slander per se, then damages are presumed. * if any other slander, then damages must be proven with some showing of economic harm
(4) damages (possibly) cont’d: matter of public concern
*If this is a matter of public concern (constitutional defamation), then P must ALSO prove:
(1) falsity of the statement; AND (2) fault on D’s part
(4) damages (possibly) cont’d: public v. private figure
*If P is a public figure: she must prove malice (eg. D knowing the falsity or acting in reckless disregard of the truth), in which case damages are presumed
*if P is a private figure, she must only prove negligence, in which case she must prove damages, or demonstrate malice, in which case damages are presumed
Defenses to Defamation: consent; truth; privilege
-consent (same as previous consent)
-truth
-privilege: Absolute: spouses (no publication); officer of the government in the course of official duties
—qualified privilege: public interest in promoting candor; the speaker must have a reasonable belief that info it true AND speech is confined to the matter at hand
Invasion to Right to Privacy:
-appropriation of P’s Image or Name
-P must establish an unauthorized use of P’s picture or name FOR D’s commercial advantage, unless news worthy publication
-remedies: injunction; damages
Invasion to Right to Privacy:
-intrusion
-P must show that D’s act of prying or intruding into a private affair, in which P has a reasonable expectation of privacy, would be objectionable to a reasonable person
Invasion to Right of Privacy:
-False Light
-P must show that D attributed to P certain views that he does not hold OR actions that he did not take which would be objectionable to a reasonable person under the circumstances
*in addition: there MUCT be publication (must be widespread dissemination of major/material falsehood)
*if public concern, must prove malice
Invasion of Right to Privacy:
-Disclosure:
-P must show a public disclosure of private info about P that would be objectionable to a reasonable person (must be widespread dissemination of confidential info) UNLESS a newsworthy publication
Defenses to Privacy Torts:
-consent; absolute and qualified privileges
-consent; absolute and qualified privileges (for disclosure and false light)
*Note: truth is NOT a defense
Misc. Torts:
-intentional misrepresentation (fraud/deceit)
-P must prove:
(1) an affirmative misrepresentation of a material fact;
(2) that D made knowing or believing it was false;
(3) which induced P to act in reliance upon the misrepresentation;
(4) justifiable reliance; (5) causation; and (6) damages
negligent misrepresentation
-P must prove:
(1) misrepresentation by D in a business or professional capacity; (2) breach of a duty toward the P; (3) causation; (4) justifiable reliance; (5) damages
inducement of a breach of contract
-P must prove:
(1) existence of a valid contractual relationship between P and a 3rd party or valid business expectancy of P;
(2) D’s knowledge of relationship or expectancy;
(3) an intentional interference by D inducing breach or termination; (4) damages
*defense: D’s own business interest or protection of interest
malicious prosecution
-Must be:
(1) institution of criminal proceedings against P; (2) termination in P’s favor; (3) absence of probable cause for the prior proceedings; (4) improper purpose; and (5) damages
abuse of process
-Must be:
(1) wrongful use of the legal process for an ulterior purpose AND (2) a definite act or threat against P in order to accomplish the ulterior purpose
Negligence:
-Duty
-Duty of care owed to foreseeable Plaintiffs in the zone of danger is the amount of care a reasonably prudent person would exercise acting under similar circumstances, taking into account the person’s superior skill, knowledge, and physical characteristics
Specialized Duty Rules:
-children
-under 4: no liability
-4-18: the care of a child of a similar age, intelligence and experience under similar circumstances, UNLESS the child is engage in an adult activity
Specialized Duty Rules:
-professionals
-use the case of an average member of that profession participating in a similar community
-specialists are compared with other specialists nationwide
Specialized Duty Rules:
-common carriers and innkeepers
-held to a high degree of care and liable for even slight negligence IF P is a passenger or a guest
Specialized Duty Rules:
-auto driver to guest
-owed a duty of ordinary care, although for nonpaying passengers may only be liable for reckless tortuous conduct
Possessors of Land: (if an activity, then RPP under similar circumstances)
-undiscovered trespassers
-no duty of care BUT no traps
Possessors of Land:
-discovered trespassers (including anticipated trespassers)
-if a dangerous condition: exists a duty to warn of concealed unsafe conditions that may cause death or serious bodily harm
-P must show: (1) an artificial condition; (2) highly dangerous; (3) concealed; and (4) prior knowledge
*NO duty to inspect or repair
Possessors of Land:
-Attractive Nuisance Doctrine
-child trespassers injured by an artificial condition are entitled to the care of a RPP under the circumstances, IF P shows:
(1) dangerous condition present on the land that owner is or should be aware; (2) the owner knows of or should know that kids frequent vicinity of the condition; (3) the condition is likely to cause injury; (4) expense of remedy is slight versus the risk
Possessors of Land:
-licensees
-entrants with own purpose but with permission, eg. social guest
-if dangerous condition, possessor has a duty to warn licensee of all known dangerous conditions
-P must show: (1) concealed condition; and (2) possessor had prior knowledge
*NO duty to inspect or repair
Possessors of Land:
-invitee
-possessor holds open the land for a commercial benefit or to public land if land is generally open
-if a dangerous condition, the possessor has a duty to protect invitees from all reasonably knowable dangerous conditions
-P must show: (1) concealed condition; and (2) possessor had prior knowledge or would have discovered by reasonable inspection
*EXCEPTION: if the owner of recreational land w/o fee, no liability for injuries unless willfully and maliciously failed to guard against OR warn
Possessors of Land:
-lessor
-general duty to warn of existing defects IF aware that lessee will not discover upon reasonable inspection
Possessors of Land:
-lessee
-general duty to maintain
Possessors of Land: vendor of realty
-disclose concealed, unreasonably dangerous conditions not discoverable by reasonable inspection
Statutory Standards of Care
-statutory duty may replace common law duty of care, thus creating negligence per se, if:
(i) the statute provides for a criminal penalty;
(ii) the statute clearly defines the standard of conduct;
(iii) P is within the class of people the statute is intended to protect;
(iv) and the statute was designed to prevent the type of harm suffered by the P
Duty to Rescue
-generally none, UNLESS: (i) family member; (ii) common carrier and innkeepers to customers; or (iii) land possessors to invitees
*BUT if attempt rescue, liable for any negligence during the rescue
Breach: Custom or Usage; Violation of Statute; Res Ipsa Loquitor:
-P lacks info of what D did wrong, but as a matter of logic the accident that occurred is normally, typically or routinely associated with negligence
Causation:
-actual causation
-Single D: “But for” test
-Multiple Ds: merged or mingled causes: substantial factor;
-unascertainable cause: shift the burden of proof to the D
Causation:
-proximate cause (aka fairness)
-the key is foreseeability:
-if D is the direct cause, the result is foreseeable unless freakish and bizarre
-if an indirect cause: D is always liable for intervening medical negligence, negligent rescue, protection or reaction forces; and subsequent disease or accident
*no liability if intervening force is a crime or intentional tort
Damages: eggshell Plaintiff Rule
-eggshell P rule: you take the P as you found them
Defenses to Negligence:
-contributory negligence
-minority: contributory negligent P is barred from recovery
*last clear chance applies
Defenses to Negligence:
-assumption of the risk
-minority: P knew of risk and voluntarily proceeded
Defenses to Negligence:
-comparative negligence; pure comparative fault; partial/Modified comparative fault
-P failed to take proper degree of care for their own safety
-the Jury assigns the % of fault
-pure comparative fault: strictly by the numbers
-partial/modified comparative fault: P recovers % ONLY if fault is LESS than 50% (*last clear chance does NOT apply)
Negligent Infliction of Emotion Distress
-P must show:
(1) D was negligent;
(2) P was in the zone of physical danger as a result of D’s negligence; and
(3) physical manifestation of that stress (*exception: physical manifestation assumed if mishandling a corpse)
Strict Liability Torts:
-general
-For SL P must prove:
(i) an existence of an absolute duty to make safe; (ii) breach of that duty; (iii) actual and proximate cause of the P’s injury; and (iv) damage to the P’s person or property
Strict Liability Torts:
-injuries cause by animals
-ALWAYS SL if livestock or wild animals
-NO SL for domesticated animals UNLESS D knew of vicious propensities
Strict Liability Torts:
-ultra-hazardous activity
-SL if P proves: (1) the activity cannot be made safe given existing technology; (2) activity poses severe risk of harm; (3) activity is uncommon in the area where it’s conducted
Product Liability:
-strict tort liability
-P must show (10 that D was a merchant routinely dealing in goods of this type; (2) defective product; (3) existence of a defect when the product left D’s control; and (4) that P was making foreseeable use of the product at the time of the injury
Product Liability: Defective Product:
-manufacturing defect
-product differs from the others off the assembly line and failed to perform as safely as an ordinary consumer would expect
Product Liability: Defective Product:
-design defect
-all products in the line are dangerous
-D has a duty to use alternative design if alternative is: (i) safer; (ii) economical; and (iii) practical (eg. doesn’t impair the product’s utility, make it more difficult to use, or present alternative safety issues
Product Liability: Defective Product:
-inadequate warnings
-consumers must be warned of residual risks, preferably at the point of use, using more than words (eg. icons or pictures)
Product Liability:
-implied warranty of merchantability
-the goods are of average acceptable quality and generally fit for the ordinary purpose for which the foods are used
-SL if breached
-Defense: assumption of the risk; contributory negligence
Product Liability:
-implied warranty of fitness for a particular purpose
-seller knows or has reason to know the particular purpose for which the goods are to be used AND buyer relies on seller to select the goods
-SL if breached
-Defense: assumption of the risk; contributory negligence
Product Liability:
-express warranty
-affirmation of fact or promise that becomes the basis of the bargain
-breach if the bargain isn’t lived up to
Product Liability:
-misrepresentation of fact
-SL if the statement was of material fact concerning the quality OR use of the goods
-seller intended to induce reliability with the statement
Misc. Torts:
-nuisance: public and private
-public nuisance: is established if the community’s right to health, safety, or property have been interfered with to an unreasonable degree, requiring a balance of the interests
-private nuisance: established if P’s ability to use or enjoy his property has been interfered with to a substantial AND unreasonable degree, requiring a balance of the interests
loss of consortium
-if V is married, uninjured spouse may claim damages for loss of: (1) domestic services; (2) companionship; (3)sexual intimacy
vicarious liability: (arises out of specific relationships)
-employer/employee
-respondeat superior when the employee commits a tort while within the scope of employment;
-NO VL for intentional torts outside of scope of liability UNLESS: (i) job entails yes of force; (ii) employer authorizes; or (iii) motivated by desire to benefit the employer
vicarious liability: (arises out of specific relationships)
-hiring party / independent contractor
-NO VL except land possessors are liable for independent contractor injuries to invitees
vicarious liability: (arises out of specific relationships)
-car owner / car driver
-generally NO VL unless the owner lends car to driver for owner errand or owner provides express/implied permission to immediate family member
vicarious liability: (arises out of specific relationships)
-parent / child
-generally NO VL, unless there is negligence or negligent entrustment
Co-Defendants:
-joint and severable liability
-if there are 2 or more negligent acts that are the proximate causes to injury
-if indivisible: each D is liable for the entire amount of damage
-if divisible: each D is liable for their identifiable portion
-if Ds acting in concert: each D is liable for the entire amount of damage
Co-Defendants:
-Comparative Contributions
-contribution: typically relative to proportion of fault;
-minority: apportionment in equal shares
-indemnity: shift the entire loss between or among tortfeasors if by contract, VL, strict products liability, or (in some juris.) identifiable difference in degree of fault
