Torts Flashcards
Three Negligence Hypos
(1) Regular Negligence: liability for damages
(2) Negligence per se: violation of a statute
(3) Res Ipsa Loquitor: one or both parties making a motion for summary judgment/directed verdict & whether a jury could infer/conclude negligence
Negligence
(1) Duty
(2) Breach
(3) Causation: Actual & Proximate Cause
(4) Damages
Lay Person Duty
Duty to act as a reasonably prudent person would. Duty owed only to foreseeable plaintiffs in the zone of danger
Foreseeable Plaintiff
People in the zone of danger
Rescuer
danger invites rescue, so rescuers are foreseeable plaintiffs. A rescuer may recover for injuries sustained during the course of a rescue from one who negligently caused the need for rescue
Duty Owed to People Who Enter a Property
Unknown Trespasser – no duty
Known Trespasser – (discovered/anticipated - frequent trespassers or where landowner should have known) - duty to warn of known dangers
Licensee – social guest/personal relationship; duty to warn of known latent dangers
Invitee – business/commercial (customer); duty to warn of known dangers, inspect, and make safe (clean banana peel/spill) (INCLUDES Non-delegable duty: when land or a business is open to the pubic, the landowner remains liable for any work performed negligently by an independent contractor)
Parent/Child Duty
P has a duty to exercise reasonable care in supervising C to prevent harm if the P knew or should have known they need to control C (devil child on leash)
Duty to Rescue
General Rule: No duty to rescue/provide
Exceptions –
(1) If come to person’s rescue, then owe them reasonable care;
(2) Special Relationship [common carriers (bus, airplane, trains)/passengers; teacher/student; employer/employee; hotel/guest]
Duty of a Child
Not objective; duty to act like other kids of same age and experience
Duty of Common Carrier/Innkeeper
high degree of care + foreseeable crimes of 3P
Duty of a Professional
Not objective; duty to act like other professionals in the community with that experience, background, and training (community standard)
Breach of the professional standard of care MUST still be the CAUSE of the injury the patient suffered
Breach
Didn’t comply with duty
Medical Professionals’ Duty
National (not community) standard of care applied to medical specialists
Duty to disclose all material risks so patients can make informed consent (exception - common known risks, waiver, if disclosure would be detrimental)
Actual Causation
But for D’s actions, no harm would have occurred
majority rule if multiple causes – substantial factor in causing the harm
Proximate Cause
Whether it was foreseeable that D’s actions would have caused the harm
Subsequent Negligent Acts
E.g., ambulance driver mistake, hospital gives wrong medicine, doctor cuts off leg. Every SNA is an intervening cause (liable) except for a few instances where it’s a superseding cause (not liable).
Intervening Cause – everything is foreseeable, so D is liable for subsequent negligent acts
Superseding Cause – not foreseeable, so liability is cut off and D is only liable for initial harm. (1) Act of God (e.g., lightening); (2) Intentional Tort; (3) Crime; (4) Fact pattern tells you it’s unforeseeable
Intervening Cause
Everything is foreseeable, so D is liable for subsequent negligent acts
Superseding Cause
Not foreseeable, so liability is cut off and D is only liable for initial harm.
(1) Act of God (e.g., lightening)
(2) Intentional Tort
(3) Crime
(4) Fact pattern tells you it’s unforeseeable
Damages
Physical injury/harm is required
Negligence Per Se
(1) violation of a statute
(2) the person injured is part of the class of the people the statute was designed to prevent
(3) the injury is the type of injury the statute was designed to prevent. E.g., speeding in a school zone and hit a kid
exception (D’s physical disability, physical, incapacity, evidence that used reasonable care, or D is a child)
EFFECT OF NPS - establishes element of duty and breach. STILL have to prove causation and damage
Res Ipsa Loquitor
(1) whatever occurred does not normally happen absent negligence
(2) D was in exclusive control of the instrumentality = raises inference that negligence occurred (jury). Shifts burden to D to establish that he was not negligent.
E.g., flowerpot falling from hotel window; surgeon leaving scalpel in body.
Exclusive Control – no one else could have done it
If multiple tortfeasors - evidence must be shown they jointly engaged in tortious conduct to meet exclusive control prong
EFFECT OF RIL - P will have met the burden of production, which shifts the burden to the D to rebut. In the absence of rebuttal, permissible inference of breach is established.
Attractive Nuisance
Artificial condition on an owner’s land that causes kids to trespass [to play w it] (e.g., trampoline, treehouse)
Liable if –
(1) Owner knew or should have known that kids would trespass;
(2) the condition poses an unreasonable risk of harm;
(3) the kids, bc of their age or maturity, do not appreciate the risk;
(4) the utility of maintaining the condition is slight (aka cheaper) compared to the risk (damage) to the kids;
(5) the owner fails to make it safe.
Defenses to Negligence
(1) Pure Comparative Negligence;
(2) Modern/Modify Comparative Negligence;
(3) Contributory Negligence;
(4) Assumption of the Risk
Pure Comparative Negligence
DEFAULT
If P is negligent, P can still recover but their damages will be reduced by their % of fault.
Modern/Modify Comparative Negligence
If P is negligent, P can still recover. However, if P is more than 50% responsible for injury, recovery is cut off and P gets nothing.
Contributory Negligence
if P is negligent (even 1%), P cannot recover.
Exception: Last Clear Chance – if D had last clear chance to avoid injury/accident, then P can recover damages.
Assumption of the Risk
P must have
(1) the knowledge of and
(2) appreciates the danger and
(3) P does it anyways
Joint and Several Liability
Two or more co-Ds caused injury but do not know who did what. One D can be liable for all of damages. P can recover damages from one or all co-Ds.
Vicarious Liability
Employer is liable for negligent acts & intentional torts of employees if the employee was acting within the scope of their employment
Scope of Employment– Employee’s conduct is inherent in the employment position or furthers employer’s business
Independent Contractor – Employer is NOT liable for negligence of independent contractor.
Exception: Non-delegable duty - Duty that cannot be assigned to another to avoid liability. (1) Maintain safe conditions to premises open to public (e.g., store, restaurant), (2) Safely perform activities that are (a) abnormally dangerous; (b) infringe on private property right (e.g., nuisance, trespass); (c) are regulated by law; or (d) are conducted in public place. Includes – land possessor’s duty to safely conduct activities on the land that pose foreseeable risks of harm to others (e.g., construction, repairs)
Agency Relationships – employer/employee; non-delegable duty; parent/child; business partner; automobile owner; Dram shop & social host
Apparent Agency - vicarious liability can be imposed if (1) the P reasonably believed that the 3rd party was acting within the scope of the agency relationship w the D AND (2) the belief was traceable to the D’s manifestations (words or conduct)
Contribution
Joint & Several Liability. Party writing check to P did something wrong. Contribution = the suit where one co-D goes after another co-D to help pay damages to P.
No right to contribution for intentional torts. Contribution D must have liability (e.g., 3rd party cannot sue w’s h if he enjoys spousal immunity from suit)
Indemnification
Vicarious Liability. Party writing check to P did not do something wrong. Indemnification = the suit the employer goes after employee to pay damages to P.
strict products liability (subsequent suppliers can seek indemnity from those earlier in the supply chain who are directly responsible for the defect)
Strict Liability
(1) Wild animals and (2) Abnormally Dangerous Activity (3) Intrusion/Trespass by Livestock
(a) Wild Animals – possessing non-domesticated animals (e.g., lion, tiger, bear). Any direct or indirect (fear/reaction to seeing animal & trip trying to get away) injury caused by wild animal = SL (except: trip over wild animal itself and break leg).
Domesticated Animals – SL for domesticated animals only if known dangerous propensity (rabid dog).
(b) Abnormally Dangerous Activity – Blasting/explosives/dynamites or toxic/flammable/nuclear/glow in the dark chemicals. If injury is directly foreseeable from interacting w one of the above = SL. Fireworks are not considered abnormally dangerous.
Exception – When dangerous activity is so far removed from P (e.g., boulder flies 40 miles from blown building and hits P)
(c) Livestock - SL if livestock foreseeably enter onto another’s land & cause physical harm (bodily/property). No SL if livestock intrusion caused by an unforeseeable act or force (e.g., unprecedented earthquake)
NEED TO PROVE CAUSATION
(d) Defense to SL: Assumption of the Risk – P must have (1) the knowledge of and (2) appreciates the danger and (3) P does it anyways.
Products Liability
Product broke and consumer is injured. No pure economic damage
Three hypos about why product broke and theory to sue under:
(1) Negligence – someone in the chain acted negligently and that’s why product broke –> no pure economic damages [retailers & wholesalers are rarely liable under a negligence theory since only have a duty to inspect or warn of known dangers]
(2) Warranty/Promise – company gives a guarantee about product (e.g., sticker, pamphlet, etc.). –> pure economic damages
Misrepresentation (PL) - (1) Commercial Seller (2) Misrepresents a material fact about product (3) consumer justifiable relied (4) product caused harm
(3) Strict Product Liability (or sometimes “Strict Liability in Tort”) – (1) D was commercial supplier in the chain of distribution (manufacturer, distributor, retailer, etc.); (2) Product defective* at time left D’s control; (manu defect, design defect, inadequate warning); (3) Defect caused P physical harm (bodily harm or property damage) ; (4) no pure economic damages
*Defective – if defective product poses a foreseeable risk of harm & risk could have been reduced by a feasible alternative design (i.e., risk-utility test: comparing risks & benefits of OG design to those of an alt design)
P is a Foreseeable User – purchaser or purchaser’s friend, fam, coworkers. But not purchaser’s thief
(4) Defenses to PL – (1) Consumer’s Misuse; (2) Assumption of Risk
Product poses a foreseeable risk of harm? no = no defect; yes = –> Feasible alternative design could reduce that risk? yes = design defect; no = –> reasonable warnings/instructions could reduce that risk? No = no defect; Yes = inadequate warnings/ instructions
Abnormally Dangerous Activity
- Activity creates an inherent high degree of risk of serious harm
- The risk cannot be eliminated by the exercise of reasonable care or undertaking proper precautions
- The activity is not common in the community
- the risk of harm outweighs the activity’s value (Social utility) to the community (balancing test)
INDEPENDENT CONTRACTORS + NONDELEGABLE DUTIES - landowners are liable contractors if they are conducting inherently dangerous activities on the property (nondelegable duty)
Battery
(1) intent to cause H/O C
and
(2) harmful or offensive contact to another person OR anything physically connected to them.
Assault
(1) intent
(2) causing reasonable apprehension of
(3) an imminent harmful contact –> but don’t have to actually have contact.
Trespass to Chattel
Intentional interference with the use of P’s property. P gets property back. D doesn’t have to destroy property.
Damages = the actual use/actual harm that happened to property while D had it and was using it.
(1) intent
(2) interference with use.
Intent – D doesn’t have to have intent to destroy. Just intent to take chattel.
Interference –
Dispossession = harm inferred.
Use or interference = causes harm = (1) actual harm to chattel; (2) substantial loss of use; (3) bodily harm to P
Conversion
Intentional and substantial interference with the use of P’s property causing chattel to be destroyed, lost, or gone. P does not get property back [i.e., conversion].
Damages = full value of chattel at the time of conversion.
(1) intent;
(2) substantial interference with use;
(3) property is destroyed, lost, or gone.
Note: D doesn’t have to have intent to destroy. Just intent to take chattel.
Trespass to Land
(1) Intent
(2) Enter P’s land
Note: Intent to enter property. Don’t need to specifically target that property or know whose land it is.
can occur on, beneath, or above property
no damage required – P will be awarded nominal damages for trespass alone
Intentional Infliction of Emotional Distress
(1) intentional or reckless/malicious (knew or should have known);
(2) conduct is extreme or outrageous (e.g., abuse of power*) –> FEAR
a. Flagrant indecency
b. Exploiting known & special vulnerabilities
c. Abusing authority
d. Repeated harassment
(3) causing severe emotional distress (no physical harm required)
*abuse of power, e.g., creditor threatening unjustified criminal prosecution or contacting debtor’s employer or neighbor
WHEN V IS PUBLIC FIGURE - STATEMENT MUST BE DEFAMATORY to be considered extreme or outrageous
Bystander Intentional IED
B witnesses P get run over by D. B sues D for IIED of witnessing P get run over. B can recover in two situations:
(1) Close Family - (1) Bystander is a close family relative of P; (2) D knows bystander (& the special relationship b/w bystander + P) is there; (3) Bystander suffers emotional distress.
(2) Third Party - (1) Bystander with no blood relation to P (3rd Party) and (2) Bystander must suffer physical harm
False Imprisonment
(1) Intent
(2) P placed in bounded area (no means of escape)
(3) P is aware that they are being confined
Shopkeeper privilege – if a merchant has reasonable suspicion that someone is stealing from them, merchant can detain suspect for a reasonable amount of time
Private Citizen’s Privilege to Arrest – Felony: D is privileged to confine a P when (1) a felony has been committed & (2) D reasonably believes P committed it; Misdemeanor: (1) Misdemeanor is being committed or reasonably appears about to be committed in the presence of D & (2) misdemeanor is a breach of peace.
Defenses to Intentional Torts
(1) Consent
(2) Self-Defense
(3) Defense of Others
(4) Defense of Property
(5) Public/Private Necessity
Never a Defense: inability to pay damages, mental capacity (except: allowed to evaluate intent)
Consent
P consents (express or implied). However, D cannot use consent defense if D exceeded the scope of P’s consent.
Plaintiff’s Substantial Mistake – Consent is valid unless D = affirmative misrepresentation, fraud, knew about the mistake (e.g., permanent hair dye)
Self-Defense
If have reasonable belief that someone will hurt you, you can use proportionate/same force
Deadly Force in Self-Defense – (1) intent to inflict/about to inflict unprivileged force; (2) such force puts D in peril of death, serious bodily harm, or rape; (3) D can prevent the peril only by immediately using deadly force
Defense of Others
Reasonable belief defense is necessary to protect 3rd party, can use proportionate/same force to protect 3rd party
Defense of Property
Reasonable belief that you can stop invasion of your land, can use reasonable force to defend property (can never use deadly force unless there is deadly force on person)
Mechanical Device – e.g. barbed wire. Device is (1) reasonably necessary to protect property from intrusion; (2) not unreasonably dangerous; (3) customarily used for this purpose or reasonable care is taken to make its use known; (4) not intended or likely to cause death or serious bodily harm.
Private Necessity
Generally for trespass to land
Must trespass bc of personal necessity. Liable for actual damages only.
Public Necessity
Generally for trespass to land
Must trespass bc trying to prevent public harm. NOT liable for damages.
Negligent Trespass to Land
(1) Enters another’s land negligently
(2) Damages
Negligent Infliction of Emotional Distress
(1) Negligent conduct;
(2) person is in zone of danger;
(3) person suffers severe physical harm;
(4) person suffers emotional distress. E.g., D texting and driving. Almost hits P but ends up swerving before contact. P breaks leg moving away
Bystander Negligent IED
Must be
(1) a close family member;
(2) presence to witness (D doesn’t have to know);
(3) suffer emotional distress
Special NIED
Negligent Handling of a corpse
(1) negligent handling of corpse;
(2) suffered ED witnessing that (no physical harm is required)
Delivered erroneous announcement of death or illness (1) “ & (2) suffered ED
Contaminated food w repulsive foreign object (1) “ & (2) suffered ED
Private Nuisance
Unreasonable interference (light, smell, noise, etc.) with the use and enjoyment of another’s property (objective standard; so no weird sensitivity/allergy or abnormal use). Generally, between neighbors/individuals
coming to a nuisance (e.g., moving close to a frat house knowing they have a rep for loud parties) - factor in determining whether u have an actionable claim but not conclusive
The D’s compliance w zoning ordinances, or building laws, or general industry standards is not dispositive
Public Nuisance
Unreasonable interference with a right shared by/affecting the public at large. Suit generally brought by GO on behalf of public at large. If suit is brought by private plaintiff/individual, must prove special harm (gen, economic).
Defamation
(1) defamatory statement (false, negative);
(2) of or about P;
(3) with publication (heard & understood by a 3rd party) (includes repeaters and overheard statements if presence of 3rd party is foreseeable);
(4) causes damage (reputation/economic damage)
Type of Statement –
(a) Libel [written] (special/econ damages NOT required)
(b) (2) Slander [spoken] (special/econ damages required)
(c) (3) Slander pe se (affects profession/business, chastity of women/serious sexual misconduct, serious crime/felony [theft, rape, murder], loathsome disease like STD) (special/econ damages assumed)
Standard –
(a) Private Person (acted negligent to the truth) v. (b) Public Figure (acted with reckless/malicious [knew or should have known] disregard to the truth)
Defenses –
(1) Consent;
(2) Truth;
(3) Absolute Privilege: any statements made during official judicial or legislative proceedings (court, legislature) and b/w spouses;
(3) Qualified Privilege: if saying something about a matter that appears necessary to protect D’s interest, recipient or a 3rd party, or public interest. E.g., character reference, letter of recommendation that hurts that person. Statements must be (1) honest & (2) reasonably believe it is true. [actual malice or excessive publication waives privilege]
P’s defamation claim dies at P’s death
Not Defamation
pure opinions or true statements
Invasion of Privacy
(1) False Light: portrays P in a way that is not true (can be +/-; doesn’t necessarily hurt reputation);
(2) Appropriation: unauthorized use of P’s name or likeness for commercial advantage ($) (e.g., celebrity’s picture/name);
(3) Public disclosure of private matter (have an expectation of privacy);
(4) Intrusion upon seclusion: intentional & unreasonable (going thru files/garbage)
P’s Invasion of Privacy claim dies at P’s death
FLIP - A FLIP - Appropriation; false light; intrusion on seclusion; public disclosure
Intentional Misrepresentation (Fraud/Deceit)
(1) Intentionally;
(2) Misrepresents material fact (knew or should have known could be false)
(3) intent to induce reliance
Intentional Omissions - Need duty to disclose material facts: (1) fiduciary relationship; (2) misled by prior statements; (3) mistaken about basic facts that D is aware of and can reasonably be expected to disclose
Harm = justifiable reliance. Not justifiable if representation was obviously false or the D was stating a lay opinion (false statements of opinion, value, or quality are generally not actionable)
Negligent Misrepresentation (Fraud/Deceit)
(1) negligent;
(2) a false statement/omission;
(3) misleading person w special relationship [e.g., fiduciary duty];
(4) person relied;
(5) damages.
Tortious Interference
(1) K between P and 3rd Party
(2) D knows about K
(3) D intentionally induces one party to breach
(4) causes damage
e.g., celebrity Ks/agents
Malicious Prosecution
False criminal charge without probable cause; charged for some reason other than justice
Dangerous Conditions on Land (Landlord’s Duties)
L generally not liable for harm that occurs on the leased premises.
However, L owes T & other foreseeable persons on premises (T’s guests) a duty to use reasonable care to ensure safety of common areas under L’s control.
Mental Health Professionals
Duty to use reasonable care to identify dangerous patients & mitigate risk posed to others [affirmative]
Special Relationship
An affirmative duty to use reasonable care to protect the other from harm arising w/in the scope of that relationship;
(1) Parent/Child;
(2) Hospital/Patient;
(3) Employer/Employee
(4) Shopkeeper/ invitees
(5) Common carrier/passengers
(6) Custodian/ Person in custody;
(7) Innkeeper/Guests
Compensatory Damages
$ awarded to compensate P for actual initial loss/harm + normal consequences (e.g. subsequent physical, economic, emotional harm)
Intentional torts, reckless torts, negligence
Nominal Damages
a trivial sum of $ (e.g., $1) awarded to vindicate P’s rights when no actual loss or harm occurred
intentional torts, reckless torts
Punitive (Exemplary) Damages
$$ awarded to punish D for outrageous, malicious, or evil conduct & to deter the D & others from engaging in similar conduct in the future
Wrongful Pregnancy/Conception
Parent’s claim for birth of healthy but unwanted child (e.g., bad vasectomy, defective contraceptive)
Wrongful Birth
Parent’s claim for birth of unhealthy child; Doctor negligently failed to diagnose or inform parent of substantial risk that future child may suffer a birth defect and had parent known about the risk, the child would not have been conceived or born
Transferred Intent
same intentional tort, different person
same person, different intentional tort
different intentional tort, different person
cannot apply to an animal, only a person (e.g., shooting a deer, hit a person –> no transferred intent bc must intend to hit a PERSON)
no transferred intent w conversion or IIED
Duty of Care (Borrowing Something)
Benefits Both - Reasonable Care
Benefits ONLY bailor - gross negligence
Benefits ONLY Bailee - extraordinary care (slight negligence)
Custom
Evidence that D complied w or deviated from community or industry custom is not conclusive on the issue of negligence –> just a relevant factor
Firefighter’s Rule
Applies to all professional rescuers (popo, firefighters, paramedics, lifeguards)
Bars professional rescuers from recovering for harm that resulted from the special dangers of their jobs (including negligent conduct that created the need for their professional intervention)
Creation of Risk
An actor has a duty to use reasonable care to protect a victim if the actor knows or should have known that his conduct has exposed the victim to an unreasonable risk of harm from third parties. The actor may be directly liable for negligence or vicariously liable.
Eggshell Skull Rule
A tortfeasor “takes the victim as he finds him.” The tortfeasor is liable for the full extent of the victim’s harm (even unforeseen physical consequences), even if the victim was unusual vulnerable
Breach of Warranty (Products Liability) - Who has standing?
P must be in privity with D to have standing
Majority view - purchaser’s family or household
Minority View - anyone reasonably expected to be affected
Injunction
Court order commanding or prohibiting a specified action
Invalid Waivers
Against Public Policy
D
(1) is P’s employer
(2) is a hotel or common carrier
(3) is a public servant or service
(4) has substantially more bargaining power
negation of consent
- lack of capacity (youth, intoxication, or intellectual incompetence)
- duress - threat
- substantial mistake still = actual consent UNLESS affirmative misrepresentation/fraud by D or D knew of mistake
Negligent Hiring
If there is a causal connection between the defendant’s negligence in hiring the worker, the worker’s employment or job duties, and the plaintiff’s harm
Implied Warranty of Fitness for a particular purpose (products liability action against a seller)
- seller knows the particular purpose for which the product is being purchased
AND
- buyer relies on the seller’s judgment or skill in selecting a product suitable for that purpose
Substantial Factor
Causation can be satisfied if the D’s act was a substantial factor in bringing about the effect.
In intentional tort ?s, a 3rd party or some instrumentality could be the cause of the resulting harm –> but D is still liable if they set the action in motion
Intentional Torts + Intent
Purpose - D acts w a purpose to bring about the effect through taking volitional action
Knowledge to a substantial certainty - D knows w substantial certainty that a particular effect will occur
Transferred Intent
ONLY IT THAT CAN BE RECKLESS DISREGARD = IIED
Prima Facie Case w Intentional Torts
1.) Intent (purpose, knowledge to substantial certainty, transferred intent)
2.) Causation
“no duty” language is used when
-causation is not established
-pure economic loss only in negligence questions
-facts don’t support an NIED claim
Commercial Supplier
Places a product in the stream of commerce (retailers, wholesalers, component manufacturers, assemblers, and product manu - NOT occasional sellers or auctioneers) w/o substantial alteration (product has not been altered in a more dangerous way than intended)
Manufacturing Defect
Exists when the product is different and more dangerous than all of the others bc it deviated from the intended design. Product was not manufactured as intended.
Design Defect
Exists when all products of a line are the same and they all bear a feature whose design itself is defective (such as a structural weakness, or lack of a safety feature) and are unreasonably dangerous)
Warning Defect
exists when the maker fails to give adequate warnings as to a known (or should have been known) danger in the product or in a particular use of the product at the time that is not obvious.
Negligence + Damages
Actual injury
ALLOWED Damages - causal, certain, foreseeable, unavoidable
NOT ALLOWED Damages - no punitive/nominal/pure economic
