Torts Flashcards
What is battery?
Harmful or offensive contact with the person of another and acts with the intent to cause such contact or the apprehension of such contact
What is assault?
P’s reasonable apprehension of an imminent harmful or offensive bodily contact caused by the D
What is false imprisonment?
D acts intending to confine or restrain the P within boundaries fixed by the D and those actions directly or indirectly result in such confinements and the P is conscious of the confinement or is harmed by it
What must be shown in every intentional tort?
Act
Intent
Causation
What is intentional infliction of emotional distress?
A D is liable for intentionally or recklessly acting with extreme or outrageous conduct that causes a P severe emotional distress
What is the shopkeepers privilege? (Glade imprisonment)
Shopkeeper can reasonably detain someone (time and manner) for shoplifting.
Totality of circumstances test
What are defenses to intentional torts?
Consent
Self defense defense of others
Defense of property
Parental discipline
Privilege of arrest
What is self defense?
A person may use reasonable force to defend against offensive contact or bodily harm that he reasonable believe is about t intentionally be inflicted upon him.
What must self defense be?
Reasonably proportionate to the anticipated harm
When can deadly force be used in self defense?
If you have a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted.
Majority are stand your ground and no duty to retreat before deadly force
Minority duty to retreat IF you can do so safely
What is defense of others?
Can use reasonable force of others upon a reasonable belief that the D party would be entitled to self defense.
Must use proportional harm to anticipated harm
What is defense of property?
Can use reasonably force to prevent harm to property.
NO DEADLY FORCE
What is trespass to chattels?
D intentionally interferes with the P right of possession of either
1) dispossessing the P of their chattel or
2) using or intermeddling with the P chattel
What is conversion?
D intentionally commits an act depriving the P authority of possession of their chattel or interfering with the P chattel in a manner as to serious deprive the P of used of the chattel
What is trespass to land?
D intentional act causes a physical invasion of the Ps land.
***D only needs the intent to enter the land
** throwing a rock or flooding is enough doesn’t have to physically enter
What is necessity?
Can be on property of another in order to prevent serious harm.
A landowner CANNOT forcibly expel a trespasser when the basis is necessity
What is private nuisance?
A thing or activity that substantially and unreasonably interferes with another individuals use and enjoyment of his land.
Coming to the nuisance is just evidence for the jury to consider
What is public nuisance?
Unreasonable interference with a right common to the general public
When does a private citizen have a claim to public nuisance?
When they suffer a harm different that that suffered by members of the general public
HALF OF TORTS IS NEGLIGENCE!!!!
What is negligence?
Conduct that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm
What are the four elements of negligence?
Duty
Breach
Causation
Damages
What is the duty in negligence?
Duty of care owed to all foreseeable persons who may foreseeably be harmed by the D’s failure to act as a reasonable person would under the circumstances
Foreseeability views (2 types)
Majority (Cardozo) if person is group who may foreseeably be harmed [zone of foreseeable danger]
Minority (Andrews) duty owned to everyone
Is a rescuer foreseeable?
Yes
What is assumption of the duty?
A person who voluntarily aids or rescues another had a duty to act with reasonable ordinary care in the performance of aid or rescue.
What is the standard of care in negligence?
Use care of a reasonably prudent person under the circumstances
Presumed to have average mental abilities and knowledge of an average member of the community. Mentally disabled is held to same standard
Ex: blind person held to same standard as another blind person
What is the standard of care to be exercised by children?
The same as a reasonable child with similar age, intelligence and experience
What standard is child held to when engages in high risk activity?
Adult standard
What is the standard of care for carriers and innkeepers?
Highest duty consistent with the operation of the business
Type of duty owed by a landowner depends on?
Classification of person on land (trespasser, invitee, licensee)
What is attractive nuisance doctrine?
Land owner may be liable for injuries to children trespassing if:
1) artificial condition exists that children are likely to trespass
2) landowner has reason to know the condition poses an unreasonable risk of death or serious bodily harm to children
3) children because of their age do not discover or cannot appreciate the danger presented by the condition
4) the ability for the landowner to maintain the condition and the burden of eliminating the danger are slight compared to the risk of harm to child and
5) landowner fails to exercise reasonably care to protect the child from harm
What duty is owed to an invitee?
Reasonable care to inspect against unreasonably dangerous conditions and protect invitees from those conditions.
Who is an invitee?
Person invited to remain on the land for a purpose the land is held open yo the public
Who is a licensee?
Person who enters the land with an express or implied permission of the land possessor or with privilege.
Ex: social guests, children, emergency personal
What is duty owed to licensees?
Duty to warn of concealed dangers known or that should be obvious to the land possessor
When is there a breach of a duty?
When the D departs from the required standard of care.
Evidence of custom in community or industry is admissible to establish proper standard of care NOT CONCLUSIVE
What is negligence per se?
1) statute imposed a specific duty
2) D violates the statute
3) P is in a class of protected people the statute is intended to protect and
4) harm is of the type the statute intended to protect against
What generally is res ipsa loquitor?
Can infer the D negligence without direct evidence.
(The thing speaks for itself)
What are the elements of res ipsa?
1) the accident is of the kind that does not occur in the absence of negligence
2) cause by an agent or instrumentality in the D exclusive control and
3) it was not due to any action of the part of the P
What must be proved for causation?
Actual cause (but for)
Proximate cause (foreseeable)
Under actual cause, how are multiple causes handled?
Substantial factor: was the D acts a SF in the P harm?
Then burden shifts to the D to prove his conduct was not the cause in fact of the P harm
**if all D acting pursuant to a common plan or harm then that are all jointly and severally liable
Under proximate cause what is the majority and minority approach?
Majority: foreseeable
Minority: all consequences flowing from D conduct
What are the rules on superseding causes for proximate cause?
If superseding cause is foreseeable it does NOT cut or the D liability
Unforeseeable cause breaks the chain (ex: act of god)
What is the thin skill (eggshell) rule?
The D takes the P as they are even if they don’t foresee the extent of damages
P must prove actual harm to person or property for the D to be liable for negligence
What is NIED negligence infliction of emotion distress?
Can recover for NUED if the D conduct placed the P in harms way. P must show they were in the zone of danger and the threat of the physical impact caused ED
*** must be manifested by physical symptoms (nightmares, shock)
When can bystanders outside the zone of danger e over for NIED?
1) closely related to the person injured
2) present at the scene of injury and
3) personally observed the injury
***IF NOT RELATED they must have physical symptoms
When does vicarious liability’s arise?
When one has the right, ability, or duty to control the actions of another.
Usually:
Employer
Independent contractor (maybe)
Business partners
Automobile owners
Parents/children
Another’s alcohol consumption
Social host
When is employer vicariously liable for acts of employee?
When the tortious conduct is within the scope of employment
when is someone vicarious liable for the action of an independent contractors?
When they are performing inherently dangerous activities, non delegable duties or storekeeper
When is a car owner vicariously liable for letting someone else drive?
If they know or should know of the drivers negligent propensities.
What is joint and several liability?
If two or more tortfeasors are liable for a single and indivisible harm, the P can decide to collect total from either or certain from each.
DEFAULT RULE TO APPLY
What is contributory fault?
Traditional: Ps contributory negligence is a complete bar from recovery
What is comparative fault?
Pure comparative: P damages are calculated by the trier of fact and then reduced by the proportion of the Ps fault in total harm
Modified or partial comparative:
1) P less at fault then reviver is reduced by percentage of fault
2) P more at fault then NO recovery
3) if 50/50 p get 50% but if modified P gets nothing neither does the D
Which crimes are strict liability crimes?
DAD
Abnormally dangerous activities
Animals
Defective and dangerous products
What are the elements of strict libeling crimes?
Absolute duty to protect or make property safe from this crime
Causation
Damages
What is the rule for strict liability of animals?
Owner is strictly liable for harm caused by animal if the harm arises from a dangerous propensity that is a characteristic of such a wild animal
What are defenses to strict liability crimes?
Contributory negligence
Comparative fault
Assumption of risk
Statutory privilege
Trespasser
What are the two ways a product may be defective?
Design defect and manufacturing defect or
Failure to adequately warn consumer of the hazard
Who owes a duty in products Liability?
Manufacturers
Distributors
Retailers
Sellers
Duty of reasonable care to any foreseeable P
When is there strict products liability?
1) there is a defective product
2) defect existed at the time of left the D’s control
3) the defect caused the P injuries when used in an intended and reasonably foreseeable way
What is a manufacturing defect?
Deviation from what the manufacturer intended for the product
What is a failure to warn defect?
Exists if there were foreseeable risks of harm not obvious to the ordinary user of the product of which the risk could have been reduced or avoided with reasonable warnings or instructions
Must provide reasonable warnings if the reduce the risk
What is market share liability for products?
If there is a defective product manufactured by multiple companies and can’t tell which one did it, then they may be liable for their market share
What are the implied warranties included with products?
Warranty of merchantability and
Fitness for a particular purpose
What is the warranty or merchantability?
Products being sold is generally acceptable and reasonably fit for the ordinary purpose for which it is being sold
What is the warranty for fitness for a particular purpose?
The product is fit for a particular purpose if the seller knows the particular purpose for which it is being purchased and the buyer relies on the sellers skill or judgment in supply the product
What is defamation?
1) language about the P
2) published to a 3rd party who
3) understands it’s defamatory nature and it damages the Ps reputation
**IF about a PUBLIC FIGURE, must show malice
What are the different types of invasion of privacy? IFLAP
Intrusion
False Light
Appropriation
Private Facts
What is misappropriation of the right to publicity?
D unauthorized appropriation of the Ps name, likeness, or identity
What is intrusion upon seclusion?
D intruding physically or otherwise into the Ps private affairs if highly offensive to a reasonable person
What is false light?
D made a public fact about the P that placed the P in a false light which false light would have be highly offensive to a reasonable person
What is public disclosure of private facts?
D gave publicity to a matter concerning the private life of another and the matter publicized is a kind that would be highly offensive to a reasonable person and is not a legitimate concern to the public
