Torts Flashcards
1
Q
Intentional Torts: General Considerations
A
- To establish a prima facie case for intentional tort, the plaintiff must prove:
Act by defendant
Intent by defendant
Causation - Assume plaintiff is a reasonable person and not hypersensitive
- No incapacity defenses for intentional torts- minors, insanity, intoxication
- Transferred intent: still liable regardless of the tort or person- intends to commit a tort against one person but instead: commits a different tort, same tort different person, or different tort against a different person
- WISCONSIN: intent must be found in act and in harm and liability requires:
Intent
Unlawful, wrongful conduct
Causation, and
Harm- actual injury or invasion of right
2
Q
IT: Battery
A
- Elements:
1) Harmful of offensive contact
2) With the plaintiff’s person
3
Q
IT: Assault
A
Elements
1) Reasonable apprehension because of act- see it coming
2) Of an immediate battery
4
Q
IT: False Imprisonment
A
Elements:
1) Confines or restrains
2) To a bounded area
5
Q
IT: Intentional Infliction of Emotional Distress
A
- Elements:
1) Extreme and outrageous conduct
2) Suffer severe emotional distress
Damages required
6
Q
IT: Trespass to Land
A
Elements:
1) Physical invasion
2) Of plaintiff’s real property
7
Q
IT: Trespass to Chattels: Little harm
A
Element: Interferes with the plaintiff’s right to possession in a chattel
- Types:
1) Intermeddling: directly damaging the property
2) Disposition: depriving right of possession of the chattel
- Actual Damages not required
8
Q
IT: Conversion: Big Harm
A
Elements:
1) Interferes with the plaintiff’s right of possession
2) Degree of intereference is serious enough to pay the full value of the property
9
Q
Defenses: Types
A
Consent
Protective Defenses
- Self-Defense
- Defense of Others
- Defense of Property
Necessity
10
Q
Defenses: Consent
A
- Capacity: children, intoxicated and there is limited capacity for older children (can consent to wrestling) and mild intellectual disabilities- haircuts
- Express consent: D is not liable if the p expressly consents either oral or written, exceptions:
1) Mistake if the d knew and took advantage
2) Fraud- will be invalidated if it is to an essential matter but not collateral matter
3) Duress- unless is future threats of future action - Implied Consent: which a reasonable person would infer from custom and usage or the plaintiff’s conduct
1) Social custom or usage: engage in activity- playing team sports
2) Consent Implied by Law: when action is necessary to save a life or other important interest in person or property
3) Objective Conduct and Circumstances/body language: shaking hands, or sexual conduct - Scope: must be in scope of consent- if express consent for knee surgery cannot give nose job
11
Q
Protective Defenses: Self, Others, Property
A
- Elements:
1) Responses from a perceived threat
2) Must be in progress or imminent – no preemption
Types:
1. Self Defense: No duty to retreat- modern trend is duty to retreat unless in home, Not available to the initial aggressor, May not extend to third party injuries - Reasonable mistake to the existence of danger is allowed
- Force only reasonably necessary
2. Defense of Others: when you reasonably believe that the other person could have used force to defend themselves
3. Defense of Property: request to desist or leave must be first made unless dangerous, can use hot pursuit and chase them
12
Q
Shoplifting
A
- Must be reasonable belief to fact of theft
- Reasonable manner and
- Detention for a reasonable period of time
13
Q
Defense: Necessity
A
- Only a defense to property torts
- Public: if they act to avert an imminent public disaster
- Private: when action was to prevent serious harm to a limited number of people
14
Q
Negligence: Elements
A
1) Duty to conform to a specific standard of conduct
2) Breach of duty
3) Actual and Proximate cause
4) Damages
15
Q
Duty: Specific
A
- Duty is owed to all foreseeable plaintiffs- in the zone of danger if far away they will not win depending on the activity
- WISCONSIN: duty of care to avoid unreasonable risk of harm is owed to the world at large and not just foreseeable plaintiffs
- Specific:
Rescuers: foreseeable plaintiff when the defendant negligently put themselves in danger- danger invites rescue
Firefighters Rule: barred from recovering for injuries caused by the inherent risks of their jobs
Prenatal: duty is owed to viable fetus
Intended Beneficiaries of Economic Transactions: third party for whose economic or legal transaction was made—beneficiary of will
16
Q
Duty: General
A
The Reasonably Prudent Person Under Circumstances
Objective standard measured against what an average person would do, minimum level of care- mental deficiencies are not excuse- based on average person **WILL TEST ON NONAVERAGE- not the best that individual person can but the average person
Imaginary fiction and a squishy question for the jury
Exceptions:
1) Superior Skill or Knowledge
2) Physical Characteristics: considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim
17
Q
Special Negligence: Children
A
- Under age 5: cannot be held liable for negligence WISCONSIN: age 7
- Ages 5-18: Held to standard of a child of similar age, intelligence and experience
- Subjective test
- If child is engaged in adult activity, reasonably prudent person standard- operating vehicle or watercraft, farm equipment, snowmobiles, UTEs
18
Q
Special Negligence: Professionals
A
- Required to possess the knowledge and skill of an average member of the profession or occupation in good standing
- Drs: national standard of care
- Duty to Disclose: risks of treatment to enable a patient to give informed consent
19
Q
Possessors of Land: Traditional & Wisconsin
A
- Traditional rule: duty owed on the premises for dangerous conditions on the land depends on status of plaintiff
Wisconsin: - Abrogated CL distinctions of licensees and invitees- landowner owes duty of ordinary care to all who enter
- Safe Place Statute: rather than creating distinct cause of action, establishes a duty greater than ordinary care. Employers and owners of businesses have the duty to 1) construct, 2) repair, and 3) maintain a safe place of employment
- Standard of Care: Owner of property or business is liable for injuries caused by structural defect regardless of whether they knew or should have known the defect existed.
20
Q
Possessors of Land: Unknown & Known
A
Unknown Trespassers: No duty is owed to an undiscovered trespasser- thus they always lose
Known Trespassers: Discovered or anticipated trespassers- land owner must warn of or make safe any conditions that are all: [known, man-made death traps]
Artificial
Highly dangerous
Concealed, and
Known to the land possessor
21
Q
Possessors of Land: Licensees
A
One who enters the land with the owners permission for their own purpose or business, rather than for the owner’s benefit
- Examples: Social guests, firefighters, police (not w/risks that are inherent in job)
- Duty to warn or make safe hazardous conditions that are: [reasonable known traps]
1) Concealed
2) known to the land possessor in advance
22
Q
Possessors of Land: Invitees
A
Enter onto the land in response to an invitation by the possessor of the land or if land is held open to the public: provides financial benefit to owner, businesses, museums
- Will lose status as an invitee if they exceed the scope of their invitation
- Duty regarding hazardous conditions that are [reasonably knowable traps]
1) Concealed
2) Known or should have been known
23
Q
Possessors of Land: Trespassing Children
A
Attractive nuisance doctrine: duty to avoid a reasonable risk of harm to children caused by dangerous artificial conditions on their property, must show:
Dangerous condition that owner should be aware of
Know that children might trespass on land
Condition is likely to cause injury
Expense of remedying the situation is slight compared to magnitude of risk
24
Q
Possessors of Land: Users of Recreational Land
A
- Landowner who permits the general public to use their land without charging a fee is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard or warn against the dangerous activity
- Wisconsin: Does not apply if organized sports activity was sponsored by the owner or the owner collects more than $2,000 for use of property during the year
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Possessors of Land: Duty to those Off Premises
- Generally no duty to protect someone off premises from natural conditions
- Is duty for unreasonable dangerous artificial conditions or structures abutting adjacent land
26
Possessors of Land: Duties of Lessor/Lessee
- Lessee has a general duty to maintain the premises
- Must warn of existing defects of which they are aware or have reason to know and which are concealed to the lessee
- If they repair themselves and are negligent, they are liable
- Guest of tenant: landlord may be liable, and also the tenant because they are an owner occupier
27
Possessors of Land: Duties of Vendor of Reality
- Must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or should have known of
28
Negligence Duties: Statutory Standards of Care
Negligence Per Se: Clearly stated duties imposed by statutes and provides criminal penalties, or fines for regulatory offenses, Establishing requires:
May replace CL duty if:
1) Plaintiff is within the protected class- e.g. pedestrians & motorists, students, patients, customers
2) Statute was designed to prevent the type of harm suffered
29
Affirmative Duties to Act
- Generally one does not have an affirmative duty to act- baby on the train tracks
- Exceptions:
1) Special relationship between parties
2) Peril due to own conduct: assist someone they placed in peril
*Good Samaritan Statutes: many states have protected drs. nurses from liability for ordinary but not gross negligence
Wisconsin: anyone who renders aid in good faith is protected from liability
- Duty to Prevent Harm from Third Persons: no duty to prevent injury to another unless you have the actual ability and authority to control a person’s actions and knows that person is likely to commit acts that would require this control
30
Other Particular Standards
- Common Carriers & Innkeepers: held to very high degree of care- liable for slight negligence if plaintiff is a passenger or guest
- Auto Driver to Guest: ordinary duty of care, Guest statute states: liable to nonpaying passengers only for reckless tortious conduct
- Bailment Duties: bailor transfers- loan car to bailee-
Bailee duties owed: depends on who benefits: bailor- low standard, mutual- ordinary, bailee high standard
Bailor duties owed: benefit of bailee: must inform of known defects in chattel, bailment for hire: chattel defects for which they should be aware
- Emergency Situations: must act as reasonably prudent person- Wisconsin: relieves person of liability for actions when they did not create the emergency
31
Infliction of Emotional Distress
Can tack on other claims as a parasitic element of injury damages without need to consider the elements of the emotional distress torts
32
Near Miss Cases
when the d creates a foreseeable risk of physical injury to the p, must satisfy
1) P was in zone of danger
2) Suffers physical symptoms from distress
33
Bystander Cases
Grief- Bystander outside of the zone of danger who witnesses the defendant negligently injuring another, must:
1) Are closely family members- spouse, child, parent
2) Was present at the scene and personally observed the event
*Most states do not require physical symptoms
34
Business Relationships
- Liable for directly causing when the duty arises from the relationship—typically commercial in nature—between the p and d
- Example: doctor’s misdiagnosis that p has terminal illness or HIV, mortuary’s negligent cremation of deceased contrary to instructions
35
Breach of Duty
Breach of duty of care is a question for the trier of fact, may use following theories to prove:
1. CUSTOM OR USAGE: when standard is reasonable prudence, evidence of custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstances
2. VIOLATION OF STATUTE: proof of violation of the statute is conclusive evidence of breach of duty
3. **RES IPSA LOQUITUR
36
Res ipsa loquitur
is a rule of circumstantial evidence that permits, but does not require, an inference of negligence to be drawn by the jury. The doctrine can be applied when there is insufficient proof available to explain an injury-causing event (i.e., plaintiff cannot specify the precaution that the defendant should have taken to prevent the injury), yet the injury is of the type that ordinarily does not occur in the absence of negligence.
Under Wisconsin law, the plaintiff would be entitled to a res ipsa instruction if the plaintiff can (1) establish (either because it is within the common knowledge of laypeople or by expert testimony) that the event causing the plaintiff’s injuries was of the kind that ordinarily does not occur in the absence of negligence, and (2) establish that the agency or instrumentality causing the harm was within the exclusive control of the defendant, (i.e., that the defendant’s negligence probably caused the injury). Most (but not all) Wisconsin decisions specify a third requirement: That the evidence offered is sufficient to remove the causation question from the realm of conjecture, but not so substantial that it provides a full and complete explanation of the event. In Wisconsin, the effect of plaintiff’s negligent contribution to the injury would be incorporated into the comparative negligence analysis and would not necessarily bar recovery.
37
Factual Causation
- Must show both:
1) Factual Cause: actual cause
2) Proximate Cause
BUT FOR TEST
- Am act or omission is a factual cause of injury that would not have occurred but for the act or omission
- Applies where several acts—each insufficient to cause the injury alone
- D can refute this by showing p would have still been injured even if the act did not occur- even if…he would have still been injured
SUBSTANTIAL FACTOR TEST
- Several causes bring about injury, and any one alone would have been sufficient to cause the injury or multiple sufficient causes
- Both parties cause harm- one throws cig, one does not put out fire
- Joint and severally liable
UNASCERTAINABLE CAUSES APPROACH
- Applies when there are two acts, one of which causes injury but it is not known which one
- Burden of proof shifts to defendants- each must show that his negligence is not the actual cause
- Both acted negligent, only one caused the harm
WISCONSIN
- P must show the d’s negligence was a substantial factor in causing injury- broad test that eliminates the superseding and intervening cause
38
Proximate Causation: Scope of Foreseeable Risks
- Foreseeable: Liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts
- On exam: call of question will be whether one or both parties are entitled to SJ- should be denied if any issue of foreseeability which is for the jury- unless common sense tells you it is not an issue
- Factors in foreseeability:
1) Time: usually close- not always
2) Geographic distance
3) Prior occurrence- puts you on notice
39
Proximate Causation: Common Foreseeable Intervening Forces
- Liability regardless of further damage- Almost always foreseeable and defendant will be held liable:
Medical Malpractice
Negligence of rescuers
Protection or reaction forces
Disease or accident created by original injury
- There will be joint liability from the other actor—doctor or good Samaritan—but defendant is still liable for the whole damage not just broken leg, amputation
40
Proximate Causation: Superseding Forces
Intervening forces produce unforeseeable results that break the causal connection between act and injury
41
Damages: Eggshell Doctrine
get all damages suffered even if surprisingly great in scope- take plaintiff as he is
1. Personal Injury: both economic (medical expenses) and noneconomic- pain and suffering
2. Property Damage: reasonable cost of repair or if destroyed, fair market value
3. Punitive Damages: generally not available in negligence but may recover if wrongful or willful, reckless or malicious *Wisconsin: may not exceed twice the amount of compensatory damages or $200,000
4. Nonrecoverable Items: interest and atty fees
5. Duty to Mitigate: must take reasonable steps to seek treatment or mitigate
6. Collateral Source Rule: not reduced bc other sources—insurance
42
Affirmative Defenses
Two types- if they say traditional, apply the first, if not use contributory
- Traditional: If plaintiff knowingly encounters the dangerous situation the recovery is barred
- Contributory Negligence: no defense if the p failed to realize the danger or guard against it- and is a defense if p knew of danger and and had unreasonable conduct that was the cause of the harm
Contributory Negligence:
- P failed to exercise proper care for their own safety in regards to laws and other norms- do not walk and play on phone or jaywalk
- Not a complete bar to recovery
- Trier of fact weighs the p’s negligence and reduces damages accordingly
- Wisconsin: will not bar recovery unless the plaintiff’s negligence is not greater than the defendant
43
Strict Liability: Animals
1) Domesticated Animals:
not strictly liable for injuries caused by domestic animal unless you have knowledge of the animal’s dangerous propensities
Not normal characteristic- if you keep a dog that bites
Does not extend to trespassers- you are not strictly liable
2) Wild Animals
You are strictly liable if you possess them
44
Stick Liability: Abnormally Dangerous Activities
- Requirements for: Questions on explosive or blasting, transport or handling highly dangerous biological materials, and use of nuclear energy or high dose radiation (not drs or dentists) you will be strictly liable
1) Activity must be a type that cannot be made safe
2) even through reasonable care
3) The activity is not a matter of common activity
45
Strict Liability: Defective Products
- Refers to liability of supplier of a defective product to someone injured by the product
- There are other product liability cases like negligence- do not assume it is strict liability -see below
- Theories of liability a plaintiff may use:
1. Intent
2. Negligence
3. Implied Warranties of Merchantability and Fitness for a Particular Purpose
4. Representation theories
5. Strict Liability
- Elements of Strict liability for Defective Products, plaintiff must show:
1. Must be merchant
2. Product is defective
3. Product was not substantially altered
4. Used in foreseeable use of the product at the time of the injury
- Merchants: not services or casual sellers but does includes:
commercial lessors—rental cars—and
everyone in the distribution chain- do not need privity of contract can sue dealer, manufacturer
- Defects:
Manufacturing: when it differs from all the others on assembly line that makes it more dangerous -only has 3 of 8 bolts
Design: line is the same but the design has a dangerous propensity-not dangerous products like knives, but choking hazards. Plaintiff must show: 1) alternative safer option, 2) alternative must be practical and not interfere with purpose 3) economically feasible- similar cost- special application of negligence law not really strict liability
Wisconsin: consumer contemplation/expectation test- looks to reasonable expectations of an ordinary customer with regard to the product at issue
Information Defects: product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved may not be apparent to users
Prescription drugs and medical devices- warnings given to physicians so they do not need to give to patients
Look to:
1) The warning is prominent- not on page 8
2) Comprehensible- may need multiple languages or children who cannot read and you need icons or picture
3) May need to provide info about mitigating risk
- Not altered: presumption if the product moved in ordinary channels it is presumed not altered
- ****Foreseeable Use: at time of injury:
Must be foreseeable, which includes foreseeable misuse- not only appropriate use
Misuse is ok if appropriate misuse
46
Property: Nuisance
- D’s intereference with the p’s right of peaceful use and enjoyment of property- intolerable
- Must have:
1) Substantial interference
2) Unreasonable interference
- Exam: 2 neighbors that should not be next to each other
1) One place had people with nervous break downs next to a studio
2) French restaurant with balcony next to plant shop with bulk manure
3) Spite: purposefully try to piss you off
4) Gross inconsideration- oblivious neighbors that do not mean to be inconsiderate
47
Vicarious Liability
- Ability to sue two people- active tortfeasor and related passive actor
Employer/Employee
- Employer can be held liable if employee was acting within the scope of employment
1) Frolic or Detour: when the employee makes a minor deviation from business- still within, but if a substantial deviation in time, scope, or geographic location then the employer is not liable- going 2 blocks out of way to grab lunch is frolic, 50 miles to visit mom- detour
2) Intentional torts: generally outside of scope of employment, Except:
If the employee is furthering the business of the employer- slaps customer for using expired coupons
Force is authorized- bouncer
Friction is generated: bill collector
Independent Contractor Situations
- General Rule: hiring party will not be vicariously liable for the tortious acts of independent contractor
- Exception: if working on business premises and hurts customer
48
Multiple Defendant Issues
Joint & Several Liability
- CL when 2 or more cats combine each negligent actor will be jointly and severally liable-for the entire amount
- Satisfaction: one can pay the full amount and hold the other defendant’s liable for contribution- P can sue and collect from one person
- Contribution: allows d that paid all to have claim against other jointly liable parties for their apportioned amount
- Indemnity: shifting the entire loss between or among tortfeasors- held harmless. Use for: vicarious liability and product defect if not the manufacturer- you sued home depot instead of Black and Decker
49
Loss of Consortium
- Spouse’s additional claim available that create a loss based on
1) Household services
2) Loss of society/companionship
3) Loss of sex
50
Defamation
- Elements
1) Defamatory statement that specifically identifies p
2) Published to a third party
3) Falsity
4) Fault
5) Damage
- Defamatory statement: factual claim which adversely affects your reputation – Law view reputation is economic benefit that is able to be monetized- watch out for
Pure statements of opinion: does not qualify- speaker must be basing opinion on fact
Name-calling: opinion, not true or false
- Identify the Plaintiff:
do not need to use name if people would know who you mean- US Attorney, or small group- waitresses working at Mel’ diner, all can sue if the class is small- 3 waitresses
Must be alive at time of statement
- Publication: must be intentionally or negligently shared with one other person at least- the more people the more damage award
- Falsity: Cl: p did not have to prove the statement was false, Modern trend: require falsity to prove fault, if not falsity- no defamation but intentional infliction of emotional distress or right to privacy unless public figure
- Fault: defendant’s awareness that the statement was false based on p’s statuts
Public Official: actual malice- knowledge or reckless disregard as to whether it is false
Private Persons: negligence if matter of public concern
- Damages:
Libel: defamation embodied in a permanent form- written or printed publication, damages are presumed
Slander: spoken defamation- do not need to show special damages
1) Slander Per Se:
Adversely reflect on p’s business or profession
Committed a serious crime
Serious Sexual Misconduct
Loathsome disease: leprosy or venereal diseases
2) Other forms of Slander require to prove damages-must offer evidence of economic harm, then can collect for other social harm
- Affirmative Defenses for Defamation:
1) Consent
2) Privileges
Absolute Privileges: spouse: any statements said have no claim and you can say whatever you want; Officers 3 branches of gov. in connection with their official office- extends to attys, judges, city counsel member, any officer in their duty
Qualified Privilege: case-by-case basis when public interest in encouraging public candor, allowed in references or recommendations- must be within scope and good faith
Common Interest Privilege: statements made to colleagues in the same organization
51
Invasion of Privacy
- Personal right that does not extend to members of the family, survive death of plaintiff, and is nonassignable. Must be proximately caused by d’s conduct and do not need to prove damages, just emotional distress and mental anguish. Four types of wrongs:
1) Appropriation: uses p’s name or image for commercial purpose- newsworthiness exception in connection with story- applies to celebrities and normies
Wisconsin: must prove that appropriation was 1) without consent2) commercial purpose 3) identifies the person and 4) caused damages
2) Intrusion: to p’s affairs or seclusion – eavesdropping, wiretapping, spying on electronic communications in a reasonable expectation of privacy
3) False Light: publication of facts that are widespread dissemination of material falsehood- most states- with malice for public person
4) Public disclosure of private facts: not if newsworthy and must be truly confidential fact
Wisconsin: must prove: 1) actual publicity 2 highly offensive 3) not in public record 4) reckless or unreasonably
- Affirmative defenses
1) Consent
2) Absolute/qualified privilege for false light
