Torts Flashcards
Battery
An intentional, harmful, or offensive contact with the plantiff’s person
Harmful
any physical pain, illness or impairment
Offensive
anything that offends a reasonable sense of personal dignity
Contact
any item in the possesion of or connected to the P
Is the D responsible for all harm to the P including unforeseeable damages
yes
Assault
intentional act that puts the P in reasonable apprehension of imminent harmful or offensive contact with the P’s person. Does not require proof of harm and punitive damages may be imposed if malice is present
Speific intent
person desires that his conduct will cause the resulting circumstances
general intent
person is substantially certain that his conduct will cause the resulting circumstances
Intent
proven by demonstrating a desire to cause the result or knowledge to a substantial certainty that result would cause
IIED
When a defendant intentionally or recklessly exhibited extreme and outrageous conduct which caused the plaintiff to suffer severe emotional distress.
Recklessness - IIED
defined as a deliberate disregard of a high risk that emotional distress will follow.
when is the D liable to family members who are present and are cliaming IIED
D must be aware of their presence
What if the D is not aware of their presence ( it also doesnt matter here if they are family members)
has to result in physical harm
A claim for negligence can be made when a breach of duty of care to another has actually and proximately caused harm resulting in damages. A prima facie case for negligence requires
1) a duty owed; 2) breach of that duty; 3) actual and proximate causation; and 4) damages.
Negligence - Elements
A prima facie case for negligence requires 1) a duty owed; 2) breach of that duty; 3) actual and proximate causation; and 4) damages.
Damages for negligence must be what types of damages
(Requires personal injury or property damages, pure economic damages are not generally allowed.)
Cardozo view (Majority) for duty of care
a duty of care is only owed to the foreseeable plaintiff within the zone of danger.
Andrews (Minority) for duty of care
duty is owed to all foreseeable plaintiffs.
Standard of care
Every person owes a duty to act as a reasonable prudent person would act under like circumstances, and who takes appropriate measures to avoid foreseeable risks. Specific standards include: childern, medical doctors, professional attorneys
Childern - SOC
held to standard of a child of similar age, experience and intelligence acting under similar circumstances. Exception – if engaged in adult activities, they are held to an adult standard of care.
medical doctors - SOC
held to standard of an average qualified practitioner, by a national standard.
Professional attorney’s - SOC
act with the skill and knowledge of an average member of that profession in a similar community.
Actual cause
But for the defendant’s actions the plaintiff would not have been injured. (This is the standard, but strict products liability has a different definition.)
Proximate cause
injury must have been a foreseeable result of the D’s negligence
Negligence defenses
assumption of the risk, contributory negligence, partial compartive and compartive negligence
Pure comparative negligence
a p’s negligent acts will not bar recovery, however it will reduce their damages by a percentage of their own fault
Contributory negligence (minority rule)
at common law, this is a complete bar to recovery of damages and occurs when the plaintiff has acted negligently and contributed to their own injuries.
Exceptions to contributory negligence minority rule (3)
if the defendant had the last opportunity to avoid an accident, in strict product liability, and if the defendant was reckless.
Partial comparative negligence
If a plaintiff contributed 50% or less to their injury, then damages are reduced by their percentage of negligence. However, if they are 51% responsible, they recover nothing.
Assumption of the risk
A defendant will not be found liable for negligence when the plaintiff voluntarily assumed a known risk.
Fireman’s rule
Applies to police and firemen – these occupations may not sue for negligence in the performance of their duties because they assume the risk.
Vicarious liability
An employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment.
An employee acts within the scope of employment when
1) performing work assigned by the employer; or 2) engaging in a course of conduct subject to the employer’s control; or 3) it was the same general nature as authorized work.
Employer v. Independent Contractor - A party is not vicariously liable for the torts of an independent contractor. A contractor is different from an employee, where
where the principal has the right to control the manner and method of job performance.
Factors used to determine Employer v. Independent Contractor status are
the degree of employer control, if pay was hourly or per job, who owns the tools, if the job was for the benefit of the employer’s business, and the length of the work relationship.
Respondent Superior Factors
The act is the kind employee was hired for, the act occurred within the time and space limits of employment, or the employee’s motivation was to serve the employer.
Int. Tort of Employee
Tortious acts are not generally within scope of employment unless the act was 1) specifically authorized by the employer; 2) driven by a desire to serve the employer or 3) was the result of naturally occurring friction of the type of work (for example, Bouncers at nightclubs.)
loss of consortium
a souse may recover against a D for injuring their spouse and depriving them of the benefits of spousal relationship including the loss of companionship, comfort, society and sexual services
Negligent Infliction of Emotional Distress (NIED) is a tort that comes in 3 ways
1) a zone of danger claim; 2) a bystander claim; and 3) a claim where a pre-existing relationship exists.
Zone of danger
Occurs when negligence by the defendant creates a foreseeable risk of injury, the plaintiff was in the zone of danger and the plaintiff has manifested physical symptoms.
Bystander claim
There must be negligence by defendant, the plaintiff must be a witness to the injury inflicted upon a close family member and the plaintiff must manifest physical symptoms.
Pre-existing relationship
– Occurs when there is a pre-existing relationship between the plaintiff and the defendant, and the negligent act can foreseeably cause distress.
Intentional torts causation
Demonstrated where the defendant is a substantial factor in bringing about harmful or offensive contact. Note the difference from the “but for” or foreseeability in Torts.
trespass to land
Intentionally entering or causing an object or third person to enter the land of another. Intent to trespass is not required, only the intent to enter or remain on the subject land is needed. Can be awarded nominal damages if there is no damage to the land.
t2chattel
intentionally interfere with the personal property of another, and the amount of damage is small.
Conversion
Substantial interference with Π’s possessory right to personal property
False imprisionment
Occurs when a defendant unlawfully 1) intentionally; 2) confines the plaintiff in a bounded area; 3) and plaintiff is either aware of or harmed by the confinement. Can be accomplished through threats. The defendant has a privilege when reasonably believing the plaintiff committed a felony, where the shopkeeper privilege or a citizen’s arrest defense may be appropriate.
Intentional tort defense
consent
defense of others
necessity
privilege to arrest
Shopkeepers privillege
Consent - intentional tort defense
expressed or implied, through words or conduct. The defendant cannot exceed the bounds of consent.
Defense of others - - intentional tort defense
not liable if 1) the defendant reasonably believed the plaintiff was going to harm him or another; and 2)the defendant used reasonable force that was necessary to protect that person.
Necessity - - intentional tort defense (elements)
action is 1) necessary, or reasonably appeared to be necessary; 2) to prevent serious harm to a person or property. Only applicable to intentional torts against property.
privillege to arrest - intentional tort defense
defense to false imprisonment – usually applies when the defendant directly observed a felony. For a citizen’s misdemeanor arrest, it has to be 1) a breach of the peace; and 2) conducted in the presence of the arresting citizen.
Shopkeepers privilege - intentional tort defense
temporarily detaining a person reasonably suspected of theft in or near their store for the purpose of investigation. False imprisonment defense where reasonable, non-lethal force may be used to detain if the defendant refuses to remain.
Public Necessity
if for the good of the public, a complete defense and no damages will be payable.
Private necessity
incomplete privilege, the defendant is liable for damage to plaintiff’s property.
Attractive nuisance doctrine
attractive nuisance creates liability for a landowner when 1) a condition the owner knows or has reason to know attracts kids; 2) owner had or has reason to know the condition poses an unreasonable risk of death or serious injury to kids; 3) children cannot appreciate the risk; and 4) the utility to the landowner to maintain the condition vs the burden in fixing is slight.
Majority rule of attractive nuisance doctrine
the condition doesn’t need to attract, if kids see it after being on the land for other reasons then this doctrine is still applicable.
Landowners responsibility entrants to an undiscovered trespass
most jdx, no duty is owed
Landowners responsibility entrants to an anticipated trespasser
1) landowner must take reasonable care in operations; 2) warn or make safe highly dangerous artificial conditions.
Landowners responsibility entrants to an Licensee
invited as a social guest, a landowner must: 1) exercise reasonable care in operations and 2) warn or make safe any dangerous conditions that are not apparent to the guest.
Landowners responsibility entrants to an invitee
Someone who enters land open to public with potential to confer economic benefit
a. Exercise reasonable care to prevent injuries: Inspect + make safe dangerous conditions
Negligence per se
– Doctrine where both duty and breach are established if a violation of a statute results in damages to a plaintiff.
Negligence per se elements
plaintiff must show: 1) there was a criminal or other regulatory statute that imposed a penalty; 2) the defendant violated that statute; 3) the harm caused by the violation was the type of harm the statute was intended to protect against; and 4) the plaintiff was in the class of people intended to be protected.
When does negligence per se not apply
Not applicable when it was impossible to follow the statute or following the statute would result in greater harm. Violation of a licensing statute does not constitute negligence per se.
res ispa loquitor can be used to prove
negligence
Elements for res ispa
1) the event is the kind that ordinarily does not occur in the absence of negligence; 2) other responsible causes are sufficiently eliminated by the evidence; and 3) the instrumentality was in the exclusive control of the defendant. However, res ipsa loquitor assertions still need to proceed to the jury, who is not required to infer negligence. This doctrine only establishes that a defendant cannot receive a directed verdict.
duty to act / assist someone in peril
Generally, there is no duty to act affirmatively. However, exceptions exist where a pre-existing relationship exists (parent-child, landowner-entrant), the defendant placed the plaintiff in peril, when the defendant began to assist (may dissuade subsequent Good Samaritans), or if imposed by law.
Breach
A breach occurs when the defendant’s conduct does not meet the applicable standard of care.
Last clear chance
A plaintiff can recover despite their own contributory negligence when the defendant had the last clear chance to avoid an accident. Even in a contributory negligence jurisdiction, the plaintiff may recover damages.
Intervening cause
An intervening cause is any act that occurs after the breach that contributes to the harm suffered by the plaintiff and is foreseeable. Intervening causes do not break the chain of causation.
Superseding cause
unforeseeable and breaks the chain of causation. If the cause resulted in an unexpected injury, it is usually deemed unforeseeable. Medical malpractice is always deemed foreseeable, where criminal acts typically are not, unless the situation renders criminal acts more likely. Running from Danger? Foreseeable. Rescuers? They get injured, and it’s also foreseeable – if someone is not negligent and injures themselves, and a rescuer comes and gets injured, the rescuer can’t recover.
Egg shell rule
A tortfeasor takes their victim as they find them. Thus, a defendant is liable for all harm a plaintiff suffers as a result of his conduct, even if the plaintiff suffered from a preexisting mental or physical condition that made the harm different or greater than what a normal person might suffer.
3rd party liability
Pure economic loss cannot be recovered by a third party under negligence
Joint and Several Liability
If multiple defendants are the proximate cause of a single, indivisible harm, the plaintiff may recover the entire amount from any single defendant, who then could sue other defendants for contribution.
Defamation
A claim for defamation is appropriate when a false defamatory statement, made of and concerning a plaintiff by the defendant, was published and damaged the plaintiff. The statement must be one of fact, and not of opinion.
Libel
written defamation, where damages are presumed
Slander
when spoken defamation where damages must be proven, unless slander per se.
No defamation can be found against
dead people
Publication
Requires transmission to a third person, where a defendant will be liable unless the publisher was overheard, and it was not foreseeable.
Slander per se
Certain types of statements as so injurious that damages will be presumed, including statements that are 1) damaging to the work reputation of the plaintiff; 2) a statement of unchastity of an unmarried woman; 3) where the plaintiff has a loathsome disease; or 4) where the plaintiff has committed a crime of moral turpitude.
Defamatory statement
Language that diminishes respect, esteem, or goodwill towards a plaintiff, or deters others from associating with the plaintiff. An opinion is actionable if the defendant implies factual basis.
Public offical
A person that has achieved some level of notoriety or injected themselves into a public controversy. Look out for the wife of a public person – she only needs to prove falsity, negligence and damages.
Public offical heightened standard
If the plaintiff is a public official, they must prove either fault or falsity. Falsity is established if the defendant knew the statement was false, and fault is established when the plaintiff can show defendant spoke with recklessness as to the truth of the statement. If the plaintiff is not a public official but speaking of a matter that is a public concern, plaintiff only needs to prove defendant spoke negligently.
Absolute privilege
Provides immunity from a lawsuit for defamation, even if the action is wrong, malicious or done with improper motive. These include Spousal, Judicial proceedings, legislative proceedings.
Qualified Privilege
May exist if 1) relates to an important public interest; 2) if in the interest of the defendant (protecting reputation), and 3) in the interest of a third party. Example – employee recommendations, reporting wrongdoing to an organization or facts to a police officer.
What are the 4 privacy torts
misappropriation of name or likeness
false light
intrusion of privacy
public disclosure of private facts
Misappropriation of name or likeness
Using the plaintiff’s name or image, for commercial gain without consent. Exception if newsworthy.
False light
Publication of false information that would be highly offensive to a reasonable person. Additionally, most jurisdictions require the plaintiff to prove actual malice.
Intrusion of privacy
Defendant intrudes into the private affairs of the plaintiff where plaintiff has a reasonable expectation of privacy and the intrusion would be highly objectionable to a reasonable person.
Public disclosure of private facts
Defendant causes widespread dissemination of truthful private information, and that would be highly objectionable to a reasonably prudent person. Newsworthiness is a defense unless actual malice is present. Absolute privilege applies for information from public documents.
Intentional misrepresentation
The plaintiff must show 1) misrepresentation of material fact; 2) defendant knew that the statement was false; 3) made with the intent to induce the plaintiff; 4) actual and reasonable reliance on the misrepresentation and 5) damages.
negligent misrepresentation
Occurs when there is a 1) misrepresentation; 2) supplied for guidance in a business transaction; 3) the defendant knew or should have known information guided the plaintiff; 4) the defendant was negligent; and 5) the plaintiff actually relied on defendant. If damages are just emotional distress, not recoverable. If negligent infliction of emotional distress, then the defendant needs have suffered physical harm.
Public nuisance
Occurs when there is 1) an unreasonable interference; 2) with the health, safety, or property rights; 3) of the community. Usually prosecuted by public authorities - a private plaintiff can only sue if they show they suffered some harm different than that of the rest of the public.
Private Nuisance
Occurs when there is a substantial and unreasonable interference with a person’s use or enjoyment of their property. The nuisance must be offensive, inconvenient, or annoying to a reasonable person. Defenses are coming to the nuisance only to sue, and statutory compliance.
Strict liability for wild animals
For domestic animals – no liability unless defendant knew of the animal’s vicious propensities. (Every dog gets one free bite). For wild animals, an owner will be held strictly liable for injuries caused by the animal’s known dangerous propensities.
Strict liability for abnormally dangerous activities
an activity is abnormally dangerous if it involves a substantial risk of significant harm to person or property despite the exercise of reasonable case and is not a matter of common usage in the community
Products liability claims
May been deemed to exist under five theories: 1) intent; 2) negligence; 3) strict liability; 4) implied warranty; and 5) express warranty.
Strict Product liability
A prima facie case for strict products liability requires 1) a strict duty owed by a commercial supplier (include proper plaintiff discussion); 2) breach; 3) causation (actual and proximate) and 4) damages. Recovery strictly for economic loss is not allowed.
What is SPL’s only defense
Assumption of the risk
SPL causation
Actual causation requires that the plaintiff to trace the harm to a defect that existed when the product left defendant’s control. (Note - this is different than negligence causation.)
Breach in SPL
A breach of duty occurs when: 1) the product was defective (manufacturing defect, design defect, or failure to warn) when it left the hands of the manufacturer or seller; 2) the product was not altered when it reached the plaintiff; 3) the product caused an injury to plaintiff when it was being used in an intended or unintended but foreseeable use; and 4) the defendant is a commercial supplier who routinely deals in goods of this type.
Manufacturing defect
The product differs from other products leaving the production line and is more dangerous than if made properly.
Design defect
Exists if there was a way to build the product that: 1) is safer; 2) is more practical; and 3) has a similar cost. When a design defect is alleged, the trier of fact (jury or court) must balance the alternative designs available (including their cost and effect on utility) against the risk to consumers.
Failure to warn
Occurs when the plaintiff was not warned of the risks of use that were not obvious to an ordinary user but known to the designer/manufacturer. A warning must be proportionate to the risk involved with normal use of the product.
Consumer expectation test
A product is defective if it does not meet the expectations of an average consumer. (Use to determine a design defect.)
Feasible alternative test
This test requires a search of the marketplace for feasible alternatives. If they are found, at similar cost, then a design defect exists. (Use with the Consumer Expectation Test above.)
Risk utility test
A product is defective if the burden to make the product safe is slight compared to the harm that will occur. (Use with the consumer expectation test above, analyze both to determine the presence of a design defect.)
Government safety compliance
Non-compliance with a government safety standard establishes defect. However, compliance does not establish that the product is not defective.
Commercial Supplier and Compliance with Government regulations
Non-compliance with a government safety standard establishes defect. However, compliance does not establish that the product is not defective.
Product liability - negligence
A negligence claim based on a defective product requires: 1) a duty; 2) a breach; 3) causation (actual and proximate cause); and 4) damages. A breach will be found when a supplier’s negligence results in the supply of a defective product. Suppliers are liable for all foreseeable misuse of their product. Any manufacturer or seller may be liable, but it must be shown that their conduct was negligent.
What type of damages are recoverable under product liability- negligence
Personal injury and property damages are recoverable, but not solely economic loss.
Duty in a negligent products liability action
A duty of care is owed by 1) commercial suppliers, such as manufacturers, wholesalers and retailers to 2) any foreseeable plaintiff, such as users, buyers and bystanders, without any privity requirement.
Breach in Negligent Products Liability action
To prove a breach of duty, the plaintiff must show negligent conduct by the defendant leading to supply of the defective product.
Implied warranty of merchantability
all goods sold by a merchant must be fit for their ordinary purposes
Implied warranty of fitness for a particular purpose
All products are purchased with an implied warranty of fitness for a particular purpose, which is beached when 1) seller knows or has reason to know of the buyer’s particular purpose for which the goods are needed; 2) the buyer relies on the seller’s skill or judgment to select or furnish suitable goods. Note: Analysis requires a full negligence analysis of duty, breach, causation, damages and defenses.
every sale of goods there are 2 warranties:
merchantability and fitness. Majority view is that privity is not required
Breach for warranties
once a product fails to live up to the warranties
Defenses for warranties
assumed the risk, contributory/compartive negligence
Malicious prosecution
– Occurs when filing a legal proceeding with improper purpose without probable cause, and the claim is dismissed in favor of the defendant.
Abuse of process
Wrongful use of legal process for ulterior purpose, or an act or threat to accomplish the same.
Negligent hiring
An employer may be found liable when they fail to exercise reasonable care in choosing an employee to perform particular duties.
Loss of chance
Allows medical malpractice claims for the percentage of lost chance for survival.
