Torts Flashcards
Battery Elements
- Intent to cause harmful or offensive contact
- Harmful or offensive contact occurs
Types of Intent (Battery)
Single Intent- intent to cause contact
Dual Intent - intent to harm or knowledge with substantial certainly that the plaintiff will be harmed or offended by the contact
Assault (Elements)
- Intent to cause apprehension of harmful or offensive contact
- Present apparent ability to cause imminent harmful or offensive contact
- Reasonable apprehension thereof
False Imprisonment (Elements)
- Intent to confine to a bounded area
- Actual confinement
- Awareness of Confinement or Damages
Intentional Infliction of Emotional Distress (Elements)
- Intent to cause severe emotional distress
- Extreme and outrageous conduct
- Causal connection between conduct and emotional distress
- Severe emotional distress
Trespass to Land (Elements)
- An intentional act that causes a physical invasion of the plaintiff’s land
Simplified
1. Intent to enter
2. Actual entry
Trespass to Chattels (Elements)
- Intent to intermeddle, use, or dispossess
- Actual intermeddling, use, or dispossession
- Actual damage occurs
Intermeddle- an interference with a chattel that does not directly affect the plaintiff’s possession
Dispossession- a direct interference with the plaintiff’s possession
Conversion (Elements)
- Intentional exercise of dominion or control over a chattel
- Which so seriously interferes with the right of another that the actor may justly be required to pay the other full value of the chattel
Negligent Conduct Resulting in Emotional Distress
An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct
1. Places the other in danger of immediate bodily harm and the emotional harm results from the danger,
2. Occurs in the course of specified categories of activities, undertakings or relationships in which negligent conduct is especially likely to cause serious emotional harm.
Negligent infliction of emotional harm resulting from bodily harm to a third party
An actor who negligently causes sudden serious bodily injury to a third person is subject to liability,it’s for serious emotional harm caused thereby to a person who:
1. Perceives the event contemporaneously, and
2. is a close family member of the person suffering the bodily injury
Duty of Land possessors to flagrant trespassers
- The only duty a land possessor owes to flagrant trespassers is the duty not to act in an intentional, willful, or wanton manner to cause physical harm.
- Notwithstanding above, a land possessor has a duty to flagrant trespassers to exercise reasonable care if the trespasser reasonably appears to be imperiled, helpless, or unable to protect himself.
Self-Defense
Majority and Minority Jurisdiction w/Deadly force
- Reasonable belief that threatened w/imminent battery
- Reasonable force utilized
Majority- no duty to retreat
Minority- duty to retreat unless it can’t be done safely
Defense of Others
Majority and Minority
- Reasonable force to protect 3rd party
- From a threat of imminent physical harm
Majority- mistake is not a defense. Put into shoes of the person defending
Minority- D can use force to the extent such force reasonably appears to be justified
Defense of property
Justified in using as much force as appears reasonably necessary to protect their property
Verbal demand required unless unsafe
Deadly force can never be utilized to protect property
Recovery of Property
- Reasonable force
- In fresh pursuit
- After making request
- Unmistaken
- Wrongfully stolen property
Vicarious Liability (Questions to ask)
Was D acting within scope of employment?
Was the D acting the further business of the employer?
Was there a deviation? Frolic or detour?
Constitutionality of Punitive Damages
- Reprehensibility of D’s conduct
Look at harm caused, frequency of conduct, disregard for safety, or negligence - Ratio between harm/potential harm to P and punitive damages awarded
Ratio more than one digit is likely to not be sustained. Maybe 4-1.
Look at severity of conduct and future litigation - Comparison of punitive damages awarded and criminal penalties imposed by state
Negligence (Elements)
- Duty of care (foreseeable plaintiff)
- Breach of duty
- Causation (cause in fact & proximate cause)
- Damages
Strict Liability for Abnormally Dangerous Activities
- An actor who Carrie’s on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity
- An activity is abnormally dangerous if:
A. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and
B. The activity is not one of common usage
General Duty of Land Possessors
Land possessor owes a duty of reasonable care to entrants on the land with regard to:
- Conduct by the land possessor that creates risks to entrants on the land
- Artificial conditions on the land that pose risks to entrants on the land
- Natural conditions on the land that pose a risk to entrants on the land.
Duty Based on Prior Conduct Creating Risk
When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.
Duty Based on Special Relationship
- An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.
- Special relationships giving rise to the duty
Employee/employer
Innkeeper/guests
School/students
LL/Tenant
Vicarious Liability for Contractors
An actor who hires an independent contractor is not subject to vicarious liability for physical harm caused by the tortious conduct of the contractor.
When is a Possessor and Lessors of Land Vicariously Liable for a Contractor
- A possessor of land who hires an independent contractor for activity on the land is subject to vicarious liability for harm if:
A. The possessor owes a duty of care
B. The harm occurs while the possessor retains possession of the premises during the activity or after the possessor has resumed possession of the land upon completion of the activity; and
C. The independent contractor’s negligence is a factual cause of any such harm within the scope of liability
Strict Liability for Intrusion of Livestock
An owner or possessor of livestock or other animals, except for domesticated animals, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion
Wild Animals and Strict Liability
- An owner or possessor of a while animal is subject to strict liability for physical harm caused by the wild animal
- A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and are likely, unless restrained, to cause personal injury
Dangerous Animals and Strict Liability
An owner of possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal’s category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency.
Work Involving Abnormally Dangerous Activities (Contractor)
An actor who hires an independent contractor to do work that the actor knows or should know involves an abnormally dangerous activity is subject to vicarious liability for physical harm when the abnormally dangerous activity is a factual cause of any such harm within the scope of liability.
Direct Liability in Negligence for those who hire independent contractors
An actor:
1. Who hires an independent contractor to perform an activity that creates a risk of physical harm or
2. Who is under any affirmative duties provided and hires an independent contractor to perform any of the obligations required by the affirmative duty
Is subject to liability for physical harm when the actor’s negligence is a factual cause of any such harm within the scope of liability.
Framework for Products Liability Based on a Defect
- Is the defendant a seller/distributor
- Is the product defective
- Did the defect exist when the product left the seller and received by consumer in unchanged state
- Does the defect cause an injury (property or persons)
Defamation (Elements)
- Defamatory matter
- Of or concerning the plaintiff
- Published to a 3rd party
- Damages, falsity, and fault will be presumed
For slander- damages must be proven
Slander Defined
Slander is the publication of a defamatory matter by spoken words or transitory gestures.
Libel Defined
Libel is the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words.
No damages required for libel, damages will be presumed as with falsity.
Public Official v. Public Figure v. Limited Public Figure: for Defamation
Public official - think government official
Public Figure- celebrities, thrust themselves into the controversy
Limited Public Figure - think limited vortex. Has access to effective channels of communication, voluntarily assumed role of special importance, sought to influence the resolution or outcome of a controversy
Private Individual for Defamation
Someone who doesn’t fit the definition for other categories, negligence standard
Statement involving a public concern (Defamation Analysis)
- Published? Must be intentional or negligently communicated to a third party
- Defamatory? Tend to harm one’s reputation
- Of or concerning plaintiff? Reasonable reader/listener will believe it is about plaintiff
- Is the statement reasonably interpreted as asserting facts?
- Is the falsity of the statement established?
- Is the plaintiff a public figure or private person
Public official: if actual malice (knowledge of falsity or reckless disregard for the truth), damages are presumed and defendant will be liable.
Private individual: if actual malice, damages may be presumed
Private individual: if negligent, plaintiff must prove actual injury/damages
Statement involving a private concern (defamation action)
- Published? Has to be intentional or negligently communicated to a third person
- Defamatory? Tends to harm one’s reputation
- Of or concerning? Reasonable listener/reader would believe the statement is about the plaintiff
- Is the statement reasonably interpreted as asserting facts?
- Is the statement slander per se or libel? Damages presumed
- Is the statement slander? Plaintiff must show special damages.
Slander Per Se Categories for Defamation Action
One who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other:
1. A criminal offense
2. A loathsome disease
3. Matter incompatible with his business, trade, profession, or office
4. Serious sexual misconduct
Affirmative Defenses for Defamation
- Truth- one who publishes a defamatory statement of fact is not liable for defamation if the statement is true
- Absolute privilege- judicial officers, judicial proceedings, husband and wife
- Consent- the consent of another to the publication of defamatory matter concerning him is a complete defense to his action of defamation
- Fair comment or expression of opinion- a defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.
Manufacturing Defect for Products Liability
Departure from intended design
Even though all reasonable care exercised by D
A manufacturing defect is when the product deviates from its intended design and that deviation created the hazardous situation.
Did the product depart from its intended design even though all possible care was exercised?
Design Defect for Products Liability
Foreseeable risk of harm reduced/avoided by adopting reasonable alternative design
Omission renders product not reasonably safe
Would the foreseeable risk of harm posed by the product have been reduced or avoided by adopting a reasonable alternative design and the omission renders the product not reasonable safe?
What standard is used for design defect?
Risk utility standard- comparison of the proposed alternative design and the current design.
Possible Defense for Products Liability
Comparative fault or contributory negligence.
Did the plaintiff fail to exercise reasonable care?
