TORTS Flashcards
Are incapacity defenses admissible for intentional torts?
No, lack of capacity is not a defense to an intentional tort.
What is intent?
Desire to produce the legally forbidden consequence
What is transferred intent?
You have the desire to produce a legally forbidden consequence but a different consequence or victim results
What are the elements of Battery?
1) harmful/offensive contact: unpermitted to an ordinary person
2) w/plaintiff’s person: anything you’re holding, touching, connected to
What are the elements of Assault?
1) knowledge: you must see it coming
2) of an immediate battery
What are the elements of False Imprisonment?
1) act of physical restraint - Plaintiff must be aware of it or harmed by it
2) confined in a bounded area - no reasonable means of escape that plaintiff can discover
What are the elements of Intentional Infliction of Emotional Distress?
1) intent and recklessness sufficient
2) outrageous conduct that exceeds all bounds of decency tolerated in a civilized society
3) severe emotional distress
What are the elements to Trespass to Land?
1) physical invasion: walk, enter, drive, throw a tangible object, or project
2) of the plaintiff’s land (includes soil below and air above)
What is Trespass to Chattel?
Slight interference with the property of another
What is Conversion?
Great interference with the property of another
Is mistake about ownership a defense?
No
If you know in advance that a person has a particular hypersensitivity about something and you act on it, what intentional tort could you be liable for?
Intentional Infliction of Emotional Distress
What is the remedy for Trespass to Chattel?
Cost of repair
What is the remedy for Conversion?
Full market value of item in question or possession (replevin)
What are the defenses to intentional torts?
1) Consent;
2) Self-Defense;
3) Defense of Others;
4) Defense of Property; and
5) Necessity
What are the two types of consent?
Express and Implied
What is express consent?
Outright grant of permission in explicit words (oral or in writing) to behave in a way that would otherwise be a tort
What are the exceptions/defenses to express consent, and what is the outcome?
Consent obtained through fraud, lack of capacity, or duress is void.
Are mere words alone sufficient to be liable for Assault?
No, overt conduct is required because words alone lack immediacy.
How can consent be implied?
1) custom and usage: certain invasions are routine where a person goes
2) reasonable interpretation of plaintiff’s objective conduct
What are the three protective privileges?
1) Self-Defense
2) Defense of Others
3) Defense of Property
What are the elements of the protective privileges?
1) imminent threat (or in progress)
2) reasonable belief the threat is genuine
3) limit force to what’s reasonable, must be proportionate
What are the two types of necessity?
Public necessity and private necessity
What is public necessity?
Defendant acts in emergency to protect community
What are the elements of a private necessity?
Defendant acts in emergency to protect own self interests
What are the elements of Negligence?
1) Duty
2) Breach
3) Causation
4) Damages
Can threats constitute restraint for liability for False Imprisonment?
Yes, the threat must be plausible.
What is extreme and outrageous conduct?
Conduct that exceeds all bounds of decency tolerated in a civilized society
To be liable for negligence, to whom is a duty owed?
the foreseeable victim
What duty is owed to an unknown trespasser?
No duty of care is owed. This plaintiff always loses.
What duty is owed to an anticipated or known trespasser?
Possessor must warn of or make safe any conditions that are:
1) artificial condition
2) highly dangerous
3) hidden
4) known in advance
Do you have to know that you have crossed the boundary line to be liable for trespass to land?
No, awareness of boundary is not required.The only intent required is to be on the land.
What duty is owed to a licensee?
Duty to warn or make safe hazardous conditions that are:
1) hidden
2) known in advance by possessor
No duty to inspect or repair
What is Trespass to Chattel?
Slight intentional interference with personal property that warrants defendant pay damages
What is Conversion?
Great intentional interference with personal property that warrants defendant pay property’s full value
What duty is owed to an invitee?
Possessor owes a duty regarding hazardous conditions that are:
1) concealed
2) Known in advance by possessor or could have been discovered by a reasonable inspection
What duty is owed to trespassing children?
Possessor of land must exercise reasonably prudent care with regard to artificial conditions on the land.
Why is the defense of private necessity a limited defense?
Defendant must pay compensatory damages.
What is duty?
Legally imposed obligation to take risk reducing precautions for benefit of others
What are the two type of inteference that would make one liable for trespass to chattel?
1) intermeddling - directly damaging the chattel
2) dispossession - depriving the plaintiff of their lawful right of possession of the chattel
What is a licensee?
One who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit (ex: social guests)
How is the Attractive Nuisance Doctrine applied in Virginia?
Virginia rejects the attractive nuisance doctrine, but recognizes that the degree of care to be exercised is greater than that of adults
What is the standard care of duty?
That of a reasonably prudent person acting under similar circumstances
In Virginia, a child under the age of ___ is incapable of negligence.
7
In Virginia, there is a rebuttable presumption that children of the age ____ are incapable of negligence.
7-14
What is the standard of care that children have to uphold to avoid negligence liability?
Hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
What is the standard of care for professionals?
Professionals must maintain the standard of care of an average member of the same profession providing similar professional services.
What is the exception to the standard of care for children?
If the child is engaged in an adult activity such as operating a motorized vehicle, they must exercise the standard of care of a reasonably prudent adult
What standard of care does Virginia use as to medical care?
VA uses statewide standard of care (or local if Defendant shows it more appropriate)
T or F: The possessor is always the owner.
False, the possessor is not always the owner. A possessor may also be the renter
What is the Firefighter’s Rule?
Police Officers and Firefighters are not allowed to recover for injuries that are an inherent risk of their jobs.
What is an invitee?
Enter land with permission for financial benefit of possessor
What is the statutory standard of care?
This is also known as Negligence Per Se
1) Plaintiff is a member of the class of people in which the statute was designed to protect; and
2) Statute was designed to prevent the type of injury plaintiff incurred
Generally, is there a duty to rescue?
No, because there is no duty to act affirmatively.
In what situations is there a duty to rescue?
1) there is a pre-existing legal relationship between plaintiff and defendant
2) plaintiff causes the peril
What pre-existing legal relationships would require a duty to act?
1) employer-employee
2) landowner- invitee
3) innkeeper-guest
4) common carrier- passenger
What is the standard for the duty of care that rescuers have?
to act reasonably under the circumstances
What is Res Ipsa Loquitur?
A theory of breach when the plaintiff lacks information about what defendant did wrong.
What are the elements of Res Ipsa Loquitur?
1) Accident of the type normally associated with negligence
2) Accident of the type normally due to negligence of someone in plaintiff’s position*
*P had control of the item causing the injury
How can a possessor of land satisfy premises liability?
1) Eliminate hazard condition: Repair, Replace, Remove
2) Warn about hazard condition: fully communicate danger
What are the requirements for Negligence Per Se?
1) Legal: statute is legally appropriate
2) Factual: Defendant violated statutory command
What are the exceptions to the Statutory Standard of care?
1) Compliance with the statute would have been more dangerous
2)Compliance with the statute would have been impossible
What is Virginia’s Good Samaritan Law?
Protects anyone who provides aid in emergency from liability for simple negligence. May still be held liable for gross negligence.
In physical injuries cases, Plaintiff may also recover
emotional damages
In a near miss case for NIED, what must the plaintiff prove in addition to negligence?
1) plaintiff was in zone of physical danger
2) plaintiff suffers physical symptoms from distress
In Virginia, Plaintiff must prove by _____ that physical injury was natural result of fright/shock caused by Defendant’s negligence
clear and convincing evidence
What is a bystander case for NIIED?
negligent defendant causes severe bodily injury to a person not involved in the present litigation as a result of which the plaintiff is emotionally disturbed
What is the emotion suffered in a near miss NIED case?
fear, fright, anxiety
What is the emotion suffered in a bystander NIED case?
grief, sadness, melancholy
What must the plaintiff prove in a bystander NIED case?
1) That the plaintiff and physically injured person are closely related: spouse, parent, child
2) Plaintiff was present at the scene and saw it happen
In Virginia, no recovery for bystander unless Plaintiff is
placed in the zone of danger by defendant
What is the business relationship case for NIED?
Plaintiff can recover if highly foreseeable that careless performance by Defendant will produce emotional distress
What are examples of business relationships where emotional distress is highly foreseeable?
1) Medical laboratory comes to erroneous conclusion that patient has cancer
2) Funeral establishment performs services carelessly
How does a plaintiff prove breach?
Plaintiff must demonstrate exactly what defendant did wrong AND why it was wrong (fact + reason)
What are the two ways to show breach?
By an affirmative act or by omission (the failure to do something)
What are the two types of Causation?
- Factual Cause
- Proximate Cause
What is factual cause?
the link between the breach and the harm (i.e., “but for”)
What is the substantial factor test?
Defendant liable if breach contributed in signficant/substantial way to ultimate injury
2 defendants + 2 breaches + merged causes = substantial factor test
What is merged causes?
2 Defendants acting independently each commit a breach combining into a single indivisible harm
When determining factual causation
If a breach would have been ablt to cause entire harm if it had been the only breach
It’s a substantial factor
In a merged cause scenario where both breaches are found to be a substantial factor, who is held liable?
Defendants held jointly and severally liable
What does it mean to be jointly and severally liable?
The plaintiff can cover the full amount of damages from either defendant at plaintiff’s option
What is unascertainable cause?
Simultaneous negligence and only one source of harm. The burden of proof is shifted to the defendants to prove he didnt do it
When is a defendant strictly liable for a domesticated animal?
If the animal has vicious propensity specific to that one animal and they are known to the defendant
Do safety precautions for wild animals limit liability?
No, safety precautions are irrelevant.
Does strict liability for animals extend to trespassers?
No, you are never liable to trespassers.
What is an abnormally dangerous activities?
- Cannot be made reasonably safe even with ordinary care
- Uncommon in the community where it is being conducted
What are examples of abnormally dangerous activities?
explosives, dangerous chemical/biological materials, nuclear energy/high dose radiation
What theories might a plaintiff bring a products liability claim?
1) negligence
2) UCC claim
3) misrepresentation/fraud
4) strict liability
What are the elements for a strict liability claim for products liability?
- Defendant is a merchant
- Product must be defective
- Product hasnt been altered since leaving Defendant’s hand
- At the time of injury plaintiff was making a foreseeable use of product
Are service providers considered merchants?
No, the products they provide are incident to their services
Is a commercial lessor a merchant?
Yes, and therefore, they are strictly liable
(ex: rental car company)
What is a manufacturing defect?
Product emerges from manufacturing different from others and more dangerous than consumers would expect
“the product departs from its intended design”
What is a design defect?
risks associated with product’s design outweigh the utility of the design
What are the elements to show a design defect?
An alternative design would have been:
1. safer;
2. economically feasible; and
3. practical - not difficult to use
What is an information defect?
Hidden risks without adequate warnings and instructions
What are the types of design defects?
1) Manufacturing Defect
2) Design Defect
3) Information Defect
When is a warning adequate?
1) it’s prominent and not hidden
2) Must be comprehensible
3) Provide information about mitigating the risk
As to products
There is a presumption that the product has not been altered if
the product moves through ordinary channels of distribution
used products are not given this presumption
As to the plaintiff making a foreseeble use of a product
Can a plaintiff recover if the use of a product was not appropriate?
Yes, foreseeable use does not mean appropriate use or misuse
What is comparative responsibility?
A defense to strict liability where the plaintiff’s recovery is reduced by the percentage of the responsibility they shared
What is nuisance?
unreasonable and substantial interference with plaintiff’s peaceful use and enjoyment of their property
What is vicarious liability?
when a secondary party liable due to a relationship with the primary tortfeasor
When is an employer vicariously liable for the actions or inactions of their employee?
When the tort is committed within the scope of their employment
When are intentional torts usually within the scope of employment?
1) job involves use of forece
2) intentional tort to serve boss’s purpose
3) job that creates friction
What are the elements of Defamation?
1) Defendant made a defamatory statement
2) the statement specifically identifies plaintiff
3) publication of the statement
4) Damages (Economic Harm)
What is loss of consortium?
Uninjured spouse gets a second independent claim that allows recovery for:
1) loss of household services
2) loss of society/companionship
3) loss of sex
What is a defamatory statement?
A factual representation that reflects adversely on character:
1) statement adversely affects reputation
2) purports to be factual and isn’t
3) doesn’t have to use name
4) Fault
5) person has to be alive
As to defamation,
When is the defamatory statement published?
1) statement shared with at least one other person
2) negligent publication is sufficient
3) repeaters are republishers and are liable
What is appropriation?
Defendant uses plaintiff’s name or images for a commercial purpose
What is intrusion?
Invasion of plaintiff’s seclusion in a way that would be highly offensive to a reasonable person
What is false light?
widespread dissemination of a material falsehood about plaintiff that would be highly offensive to the average person
What is disclosure?
Widespread dissemination of confidential infor that would be offensive to the average person
As to defamation,
What is the fault required for defendant?
1) private person: negligence
2) public figure: knowledge or reckless disregard
What is libel?
Any defamation embodied in permanent form. Written
Damages are presumed
What is slander?
Defamatory statements that are spoken or oral in nature
What is slander per se?
Words so clearly defamatory that ordinary person would understand injury. Statements that
1) related to business or profession
2) plaintiff committed a serious crime
3) plaintiff committed a serious sexual misconduct
4) plaintiff suffers from a loathsome disease
Damages are presumed
What are the defenses to privacy torts?
- Consent
- Absolute/Qualified privilege for false light/disclosure claims
