Torts Flashcards
Battery
Harmful or offensive contact of another where the defendant intended such harm
Transferred intent
D intends to commit a tort but instead commits a different tort, commits the same tort against a differnet person or both
when does transffered intent apply (5)
Battery
Assault
False imprisionment
t2land and chatel
what are the 6 intentional torts
battery
assault
T2 land
T2 chattel
false imprisonment
IIED
Assault
D intends to cause reasonable apprehesion of an imminent battery
Do words alone create assault
no
False imprisionment
Intentional confinement of P to a bounded area against P’s will caused by D’s act or ommision
What must there be in order for false imprisionment to happen
no reasonable means of escape
Exceptio to false imprisonment
Shopkeepers privillege
Shopkeepers privillege
A shopkeeper (one tasked with safeguarding) may detain a shoplifter for a reasonable period of time, in a reasonable manner (can also be defense to battery) if the shopkeeper has reasonable suspicion to believe that the detained person committed or attempted to steal store property
IIED
Extreme and outrageous conduct intended by the defendant that causes serve emotional distress
What damages are required of an IIED
actual damages not nominal
what is the only intentional tort that causes damages
IIED
For Close family members of a victim of IIED, the D intentionally or reckless cause severe distress and what else needs to happen in order to collect damages
and know the D is present
For a 3rd party of a victim of IIED, the D intentionally or reckless cause severe distress
bodily harm to the 3P
T2 land
intentionally entering the property of another without privilege or consent
Physical invasion for T2land
Entry by anything tangible (e.g., bullet, pesticide, person), not light, noise or vibrations
Who is considered an owner for t2land
Anyone in possession of land (LL, T, APer), which includes surface, airspace, subterranean space
Why is mistake not a defense for T2land
D only needs intent to enter land not intent to tresspass
Are damamges required for t2land
no
T2chattel
Intentional interference with P’s possessory right to personal property
Conversion
subsantial intferference with P’s possesory right to personal property
what can you recover for conversion
rental value or FMV at the time of tresspass or conversion
Defenses to Int Torts (6)
Consent
Defense of Self, property or others
necessity - public and private
Consent is a defense so long as
it does not exceed the scope
Defense of self
Δ may use force reasonably believed to be necessary to avoid imminent harm by Π
When does defense of self get messy and when does it apply
when there is a duty to retreat and applies where there is a safe way of escape
Where is there no duty to retreat
Home
In Defense of property, what type of force is allowed to defend one’s property
reasonable force
Defense of others
A person may use reasonable force in defense of another when that person believes that the other is in danger of immediate bodily harm. The force used must be proportionate to the threat
When does necessity apply as a defense
only in property torts
Public necessity
Δ may interfere with Π’s property to protect public from harm (absolute defense)
Private Necessity
When is P liable
When is D liable
Δ may protect individual interests if threatened harm substantially greater than Δ’s harm. Δ liable for any harm caused. Π liable for any harm caused preventing Δ’s necessary act
To be liable for negligence, Δ must failed to
behave with the level of care that someone of ordinary
prudence would have exercised under the same conditions.
What are the 5 elements of negligence
Duty of Care
Standard of care
Breach
Causation
Damages
Duty of care can be proven by which two ways and which one is the marjoirty view
Cardozo (Majority)
Andrews
Under the cardozo view who does the D have a duty of care to
P is in the forseeable zone of danger
Under the Andrews view who does the D have a duty of care to
to everyone
Duty of care rule
Δ owes a duty not to subject any foreseeable Π to unreasonable risk of injury. Foreseeability is based on either the andrews or cardozo split
Nonfeasance is when there is no duty owed to take steps to rescue or aid except when there is affrimative duty is created via
special realtionships
D conduct creating the peril
D undertaking the action for the P’s benefit
Creating reliance through the D
Contract
What are the special relationships in duty
parent-child, common carriers, innkeepers, shopkeepers
Are rescuers foreseeable under the duty of care
yes it is per se foreseeable as long as the rescuers behavior was not wanton
When is someone able to recover under a Negligent infliction of emotion distress?
When is Pain and suffering recoverable
Through a bystander or a direction action avenue
direct action - Π is owed a duty if Π was in zone of danger + suffered bodily harm from threat of physical impact or emotional distress as result of negligence
Pain and suffering is recoverable under bystander action - Π is owed a duty if Π was present at scene (not in zone of danger) + suffered severe emotional distress + had close relationship with V)
Standard of care
Δ owes a duty to act as a reasonably prudent person in same or similar situation (who has Δ’s relevant physical characteristics), absent negligence per se or a special relationship
Negligence per se
A statute (including one that provides for criminal penalty) defines the standard if Π is in the class of persons the statute was designed to protect + injury is type of injury statute was designed to protect. An unexcused violation of statute constitutes negligence per se—a breach of duty
What are exceptions to negligence per se
Statute may be excused if it would be more dangerous to follow it or compliance is beyond Δ’s control (unforeseeable, incapable)
Childerns standard of care
Held to standard of reasonable child of same age, experience, intelligence, unless adult activity
Landowners owe a different non-delegable duty to differnt types of entrants. For a inviteee (someone who enters land to open public with the intent to confer economic benefit), I must exercise
reasonable care to prevent injuries: Inspect + make safe dangerous conditions
Landowners owe a different non-delegable duty to differnt types of entrants. For a Licensee (someone who enters land not oepned to public not to confer a economic benefit) I has a
Duty to warn of or make safe known dangers
Landowners owe a different non-delegable duty to differnt types of entrants. For a tresspasser (someone who enters the land w/o express or implied consent) what is the duty owed to an anticipated tresspasser and a undiscovered tresspasser
Anticipated/known trespasser: Duty to warn of or make safe known, artificial, highly dangerous conditions. Cannot use deadly force to defend property
Otherwise no duty to undiscovered trespassers
Landowners owe a different non-delegable duty to differnt types of entrants. For a artifical condition, I owes a _____? What happens if the seller sold and vacated a property
Duty of reasonable care to entrants and known trespassers
If seller sold and vacated the property, his liability continues only until the buyer has had reasonable opportunity to discover the condition and take precautions
Landowners owe a different non-delegable duty to differnt types of entrants. For a LL- T
liable for: common areas (lobby), negligent repairs, known hidden defects, reasonable care to discover and repair defects if LL knows T is going to hold property open to general public
Attractive Nussiance doctrine
Δ has duty to exercise ordinary care and avoid foreseeable risk of harm (warn and make safe) to children caused by artificial conditions on property if: 1) dangerous condition owner is/should be aware of, 2) owner knows/should know children frequent the vicinity, 3) condition likely to cause injury (b/c Π child’s inability to appreciate the risk—doctrine does not apply to a “bright” child), 4) expense of remedying danger is outweighed by risk
Professional SOC
Medical SOC
GP SOC
Required to possess and exercise the knowledge and skill of a member of the profession in good standing. Medical specialists held to national standard. General practitioners held to local standard
Can customs or usage be used to estsblish SOC
yes, but the court can find that the entire industry is negligent
Breach of duty
Duty is breached where Δ’s conduct falls below level required by the applicable standard of care owed to Π
What are the 3 ways to calculate breach of duty
Hand formula
Negligence per se
Res Ispa
Under the Learned Hand Formula, a breach of a duty owed by the defendant can be established if
the burden of taking a precaution is less than the probability of the
harm occurring the gravity of the likely harm
Under the Res Ipsa Loquitur test, a breach of a duty can be established if there is no direct evidence demonstrating what happened,
is one that would normally not occur in the absence of negligence by someone, and the instrument was under the exclusive control of the defendant at the time the accident occurred.
what types of casuation do you need to bring up in a negligence issue
actual (but for ) and proximate cause
But for
Π must show more likely than not, but for Δ’s negligence, Π would not have been injured
Proximate cause in Negligence
cause: Δ is liable for harmful results caused by his acts if they were foreseeable (in any manner for any harm—see eggshell skull rule)
what can break the proximate cause chain if you do not foresee the risk
superseeding cause
Superseeding cause
an unforeseeable, intervening cause that breaks the chain of causation and becomes the proximate cause. The more intentional the intervening cause, the more likely it is superseding.
Eggshell skull rule
Δ takes Π as he finds him; Δ is liable even if extent of damages unforeseeable
Damages for negligence
Π is entitled to economic damages (e.g., medical expenses), noneconomic damages (e.g., pain, emotional distress), punitive damages (if Δ conduct is reckless or malicious), property damage (reasonable repair cost or FMV)
In what instances can you recover for pure economic harm like loss of income
NIED or attorney fees
Collateral source rule
Total damages are not reduced by benefits from other sources, but other Δs can reduce
Duty to mitigate can reduce your damage award. What is duty to mitigate
Π has a duty to take reasonable steps to mitigate damages (seek treatment)
what is the default damage rule in MBE
pure compartive negligence
pure compartive negligence
P’s recovery is reduced by his fault
Modified compartive negligence
Bars recovery to P if P was more or in a minority of jdx at least as negligent than D
Contributory negligence
Any fault by Π bars recovery. If Δ had last clear chance to avoid harm, Π can recover fully
what is one way to completely bar your recovery or reduce it other than duty to mitigate
Assumption of the risk
Assumption of the risk
Occurs where the plaintiff voluntarily, and unreasonably proceeds in the face of a known risk created by the defendant’s negligence.
firefighters rule
If professional (including volunteer) rescuer Π is injured by risks inherent in occupation from Δ’s negligence, recovery for negligence is barred (assumed risk as part of job)
Strict liability occurs with
Wild Animals
Domestic Animals if they had reason to know or should know of the dangerous activity and
Abnormally dangerous activities
Abnormally dangerous activities
one with a high risk of harm, that is not commonly
found in the community, which has a risk that cannot be eliminated with due care.
Defenses to SL
contributory negligence, compartive negligence, assumption fo the risk
What is the duty associate with product liability
Any commercial supplier in distribution chain of the product has an absolute duty to supply safe products to any foreseeable Π (including bystanders). No privity is required between Π and Δ
To find liability for a PL, P must show
Π must show a type of defect in product when it left Δ’s control (breach of absolute duty)
What are the 3 types of defects to show to find liability
manufacturing, design or inadequate warnings defect
Manufacturing defect is when the product came out
more dangerous than intended
A manufacturing defect is based on the ordinary consumer expectation test and it is when
Product failed to perform as safely as an ordinary consumer would expect. Δ must anticipate reasonable misuse
Design deffect
the design itself resulted in product not safe for its intended use
what two tests do you use for design deffect
feasiable alternative and risk utility
Feasiable alternative (design deffect)
Product could have been made safe w/o serious impact on price or utility
Risk utility test (Design defect)
Danger of design > utility to society, feasibility of alt designs
Inadequate warning defect
Product must have clear and complete warnings of dangers that may not be apparent to users.
when is a warning not needed for a defect
when its obivious
Product liability elements
duty
liability
Causation -but for and proximate cause
Damages
No known defenses
When does the learned intermediary rule apply
Manufacturer is relieved of liability if an intermediate handler discovers the defect and knowingly passes it to Π or failed to convey manufacturer warning to Π
what are the damages to a Product liability claim
physical injury or property damages
Defenses to product liability
misuse in a unntend and unforseeable way
AOR
Compartive and Contributory negligence
Alteration of the product that was unforeseeable
Implied warranty theory protects
purchaser, family, household, and guests
Implied warranty of merchantability occurs when the merchant is dealing in the kinds of goods and
refers to whether the goods are of average acceptable quality and fit for the ordinary purpose the goods are used
Implied warranty of fitness for a partitcular purpose is breached by the seller of goods and refers to
whether the seller knows or has reason to know the particular purpose the goods are required for and the buyer is relying on the seller’s skill and judgment in selecting the goods
Express warranty
Δ makes representation affirming a fact or promising to the buyer as to the product that becomes the basis of the bargain. No need to show breach, just that product did not live up to warranty.
Defamation must show 4 out of the 6 elements which are
defamatory language
of or concering the P
Publication
Damage to the D reputation
Statement was false
Or Fault of the D
Defamatory language cannot be
oppinions
Fault of the D for a public figure requires that the P must show
malice (knowledge of falsity of statement or reckless disregard as to truth or falsity)
Fault of the D for a private person, public concern
must show negligence require falsity and actual injury
Fault of the D for a private concern
it is enough that they publicized it
What are defense to defamation
qualified privillege
truth
absoulte privillege
Qualified Privillege
Comm’n that appears reasonably necessary to protect Δ’s own legitimate interests or is of interest to recipient, e.g., past employer’s reference, reports of public hearings, newsworthy events
what is an exception to qualified privillege
if the D acted with malice or statement is out of the scope of privillege
Absoulte privillege occurs when
in a context where there is no privilege: Statements made by legislators (or aides) on floor, between federal executive officials, judicial proceedings, comm’n between spouses
Wrongful death
Actions based on wrongful death provide monetary relief for injury resulting to the spouse and next of kin (but not to creditors). Recovery is allowed to the extent that the deceased could have recovered in an action had he lived; e.g., decedent’s contributory negligence reduces wrongful death recovery in comparative negligence jx
Survival action
Cause of action that survives the death of a party, only applicable to injury to property and person, not to personal interests (e.g., defamation, privacy, malicious prosecution) which expire upon death
Loss of consortium and services
Π spouse may recover against Δ for injuring Π’s spouse and depriving the benefits of the spousal relationship, including the loss of companionship, comfort, society, and sexual relations
Interference with contractual relations
Δ knew of valid K between Π and 3P + acted with purpose of having K breached or made harder to perform + damages
Fraud
Fraud requires a showing that the defendant made a false misrepresentation, scienter, an intent to reduce reliance, causation, justifiable reliance and actual economic damages.
scienter
defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness
Intent to reduce reliance
The defendant must have intended to induce the plaintiff to act or refrain from acting in reliance on the misrepresentation.
Casuation
The misrepresentation must have caused the plaintiff to act or to refrain from acting.
Justifiable reliance
The plaintiff’s reliance must have been justifiable. Further, the plaintiff is under no duty to investigate the truth or falsity of the statement.
Actual economic damages
The plaintiff must prove actual economic loss to recover.
When the D is liable for fraud, what 2 ways can you calculate general damages
i) “loss of bargain,” which is the majority rule and (ii) “out of pocket”, the minority rule. Some states allow the plaintiff to elect the measure to be applied to determine damages.
Loss of bargin - K based
buyer is entitled to the difference between the value of what he was promised and the market value of what he received.
Out of pocket - tort based
buyer is entitled to the difference between the amount that he paid and the market value of what he received. This measure seeks to compensate the buyer for the loss suffered.
Special damages in fraud action
plaintiff can also recover special damages that were caused by the defendant, but they must be specially pled. In a contract action, they are referred to as consequential damages, and require certainty, foreseeability at the time of contracting, and must be unavoidable.
