Torts Flashcards
Duty
owe a duty of care to foreseeable Ps within your zone of danger
Professional standard of care
Duty to act like an average professional with the same training and background within the community
Child standard of care
Duty to act like other children of same age and maturity
UNLESS they are engaged in adult activities then they are held to the reasonable person standard
Parent standard of care
Duty to prevent their child from committing harm when the parent knows or should know their child is likely to cause harm
duty to aid
generally, there is no duty to aid but if/once you begin to render aid you must do so reasonably
EXCEPTION- special relationships, you always have a duty to rescue
possessor of land:
standard of care to an unknown trespasser
no duty owed
possessor of land:
standard of care owed to an known trespasser
duty to warn of highly dangerous, artificial, concealed dangers known to possessor
possessor of land:
standard of care owed to a licensee
duty to warn of known non-obvious dangers
possessor of land:
duty owed to an invitee
duty to warn of concealed dangers that are known to possessor or could have been known by means of reasonable inspection
factual cause
but for the defendant’s negligence, the injury would not have occurred
proximate cause
limited to foreseeable harms – if the harm was foreseeable, it was a proximate cause
intervening cause
foreseeable acts that do not cut off liability
superseding cause
unforeseeable acts that cut off liability
- Acts of God
- intentional torts
- crimes
to have negligence damages you need to have…
ACTUAL PHYSICAL INJURY, economic harm is not necessary for common law negligence
contributory negligence
if P is even 1% liable, they are completely barred from recovery
contributory negligence exception
last clear chance rule! if D had the last clear chance to prevent the accident but didn’t, then P may recover all their damages
pure comparative negligence
MBE DEFAULT UNLESS STATED OTHERWISE Ps recovery is reduced by their % of fault
modified/modern comparative negligence
Ps recovery is reduced by their % of fault but if they are over 50% at fault, they recover nothing
assumption of the risk
p understands and appreciate the nature of the risk but does it anyway–complete bar to recovery
joint and several liability
when two or more people caused an accident but the % of liability of each is unknown, P may recover from one single D
contribution
the paying co-D in a joint and several liability case may sue their co-D for the damages they are not responsible for
vicarious liability
employers are strictly liable for the negligent acts of their employees committed within the scope of their employment
employer liability for independent contractors
employers are not liable for the negligent acts of an independent contractor unless:
- the work being done is abnormally dangerous; OR
- it is a non-delegable duty
negligence per se
a violation of a statute where P is part of the protected class the statute is designed to protect and the injury is the kind the statute is designed to prevent
res ipsa
acts that would not occur absent negligence, where D was in exclusive control of the property, and allows the jury to conclude an inference of negligence
if you see motion for directed verdict or summary judgment answer choice is about
res ipsa
strict liability arises in what scenarios:
1) wild animals
2) abnormally dangerous activities
defense to either form of strict liability
assumption of the risk
strict products liability elements
1) D is a merchant
2) the product is defective when it leaves the factory;
3) the product has not been substantially altered since leaving Ds control
4) P was making a foreseeable use of the product (foreseeable does not mean intended use)
strict products liability defects include:
- manufacturing defect
- design defect
- failure to warn or inadequate warning
three theories of products liability to sue under
1) strict products liability
2) negligence
3) warranty
Products Liability Implied Warranty of merchantability and fitness for particular purpose
warranty of merchantability: goods are average, acceptable goods, and are fit for their ordinary purpose
warranty of fitness: seller knows/has reason to know buyer wants the goods for a particular purpose and buyer is relying on seller’s skill/judgment
Private nuisance
the unreasonable interference with the use and enjoyment of another’s land
Public nuisance
Acts which affect an entire community at large and lawsuit is brought by a public official
If a public nuisance suit is brought by a private Plaintiff, what must the Plaintiff prove?
Special or Unique damages
what are the intentional torts? (just name them)
FITT CAB
F- false imprisonment
I- intentional infliction of emotional distress
T- trespass to land
T- trespass to chattels
C- conversion
A- assault
B- battery
false imprisonment
act or omission by D that confines or restraints P to a bounded area
- P MUST KNOW they are confined
- P must not know of any reasonable means to escape
- amount of time doesn’t matter
intentional infliction of emotional distress
extreme and outrageous conduct by D and P suffers severe emotional distress
- conduct that exceeds all bounds of decency
- P needs to show ACTUAL damages (proof of physical injury not required)
bystander IIED claims
D is liable for IIED if:
- their conduct was directed at a member of Ps family
- P was present at the scene
- D knew P was there
NOTE: P does not need to be present to hold D liable if they can establish that Ds actions against their family members were part of Ds purpose to cause P severe distress
damages available for IIED
compensatory and punitive
P must have experienced actual, non-nominal damages to recover
trespass to land
physical invasion of Ps real property (real, tangible property)
- does not matter if you did not intent to trespass, all that matters is you had the intent to be on that land
trespass to chattels
Ds act interferes with Ps right of possession in a chattel
- does not matter if you did not intend to take someone else’s property, all that matters is that you intended to do the act of taking that property
conversion
Ds act interferes with Ps right of possession in a chattel and the interference is so serious, D should pay chattel’s full value
- does not matter if you did not intend to take someone’s property, all that matters is you had the intent to do the act of taking that property (even if you thought it was yours)
difference between trespass to chattels and conversion
trespass to chattels is a small interference
conversion is a big, substantial interference with Ps right of possession
assault
Ds act creates a reasonable apprehension in P of an immediate battery
- P needs to know they are about to get hit
- words alone are never enough
battery
harmful or offensive conduct to the Ps person
- offensive = unpermitted by the RP
- Ps person = contact with anything connected to P
defenses to intentional torts (just list them)
consent
self defense
defense of others
defense of property
necessity
defense of consent
not everyone has capacity to consent !!
self defense and what force is allowed?
person reasonably believes they are about to be attacked
force allowed is what is reasonably necessary to protect injury (if you use more that what is reasonably necessary, you lose the defense)
reasonable mistake that force is needed is allowed
defense of others and what force is allowed?
ok to defend another if you reasonably believe that the other person could have used force themselves
force allowed is as much force as would have been reasonably necessary to use in self defense
reasonable mistake that force is needed is allowed
defense of property
may use reasonable force to prevent a tort against your property
MUST FIRST REQUEST TO DESIST OR LEAVE
Cannot use deadly force to defend property!!! (unless the invasion entails serious threat of bodily harm)
shopkeepers privilege rule
allowed to detain a suspected shoplifter if:
- reasonable belief of theft
- detention is in a reasonable manner
- for a reasonable period of time
necessity defense
ONLY APPLIES TO PROPERTY TORTS
public necessity - D acted to avert an imminent public disaster (absolute defense)
private necessity - D acted to prevent serious harm to a limited number of people (D must pay for any injury they caused unless the act was to benefit the property owner)
attractive nuisance doctrine
possessor of land will be liable under this doctrine if it was reasonably foreseeable that children would be drawn into their land by their dangerous, artificial conditions
(ex: broken swing set on a front lawn with no fence)
negligent infliction of emotion distress – NEAR MISS CASE
D did not injure P but almost did
P must show:
1) P was within the zone of danger; and
2) P suffered physical symptoms from the distress
negligent infliction of emotional distress – BYSTANDER CASE
P saw someone get injured/almost get injured
P must show:
1) P and injured party are closely related (family);
2) P was present at the scene and personally saw the event
negligent infliction of emotional distress – SPECIAL RELATIONSHIP B/W PLAINTIFF AND DEFENDANT
D is liable for directly causing Ps emotional distress because a duty arises from the relationship
Ex:
- patient & medical lab (messing up results and telling P they have cancer when they do not)
substantial factor test
meets factual cause
where several causes bring about the injury but one alone would have been enough, Ds are jointly and severally liable even if divisible
unascertainable cuses
meets factual cause
where there are 2 acts but we do not know which caused the injury, Ds may be held jointly and severally liable
punitive damages
not available for negligence claims
minor departure vs. major departure in vicarious liability
minor departure from employers business = employee will be held to have been acting within the scope of employment
major departure (FROLIC) = employee will be held to have been acting outside the scope of employment
intentional torts and vicarious liability
employers are not liable for the intentional torts of their employees UNLESS
- The employee is furthering the employer’s business
- force is authorized in employment
- friction is generated by employment
Employer’s own negligence
Employers can be liable for negligently hiring or supervising
loss of consortium
either spouse may bring an action for indirect interference with consortium
defamation claims
defamatory statement that
- specifically identifies the P,
- is published to a 3rd party,
- is false,
- D is at fault, and
- damages Ps reputation
libel
permanent form of defamation
damages are presumed
slander
spoken form of defamation
P must prove special damages
slader per se:
- statements adverse on Ps business or profession
- statement that P has committed a serious crime
- statement that P has engaged in serious sexual misconduct
- statement that P has a loathsome disease
defenses to defamation
- consent (complete defense)
- truth
- absolute privilege (communications between spouses and remarks made during judicial proceedings)
- qualified privilege (only applies when there is a public interest in encouraging candor)
4 types of wrongs for invasion of right to privacy
1) appropriation of Ps name or picture (w/o permission for a commercial advantage)
2) intrusion on Ps affairs or seclusion (eavesdropping, wiretapping into something PRIVATE that is highly offensive to a RP)
3) false light (circulated to the public at large, values about P that they do not really hold)
4) public disclosure of private facts about P (highly offensive to a RP of ordinary sensibilities)
