Torts Flashcards
What is the effect of a plaintiff’s establishment of res ipsa loquitur?
If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact.
In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.
When does a plaintiff’s participation in an athletic activity (e.g., football) not amount to apparent or presumed consent?
- the defendant’s conduct violates a safety rule of the sport
- the conduct does not typically occur during the activity, and/or
- the conduct involves significant risk of very serious injury or death.
Four established intentional torts involving personal injury
battery, assault, intentional infliction of emotional harm, and false imprisonment
Tortious Conduct
For battery and assault, the defendant’s tortious conduct must be an act. The act must be voluntary, meaning that the defendant must have directed the physical muscular movement.
For false imprisonment and the intentional infliction of emotional distress, the focus is on the defendant’s conduct. A defendant who fails to act when having a duty to do so may be liable as well as a defendant who affirmatively acts.
Causation
Causation exists when the resulting harm was legally caused by the defendant’s conduct.
For the defendant conduct to be the legal cause of the harm, the defendant’s conduct must be both the factual cause and the proximate cause of the harm.
Factual cause
Generally, a defendant’s conduct is a factual cause of harm when the harm would not have occurred absent the conduct (i.e., the “but for” cause).
When there are multiple acts, each of which by itself would have been a factual cause of the harm at the same time in the absence of the other acts, each act is a factual cause of the harm.
Proximate cause
Proximate cause limits a defendant’s liability.
A defendant who intentionally or recklessly causes harm is not subject to liability for harm the risk of which was not increased by the defendant’s intentional or reckless conduct. However, a defendant is not relieved from liability merely because the harm was unlikely to occur.
In addition, a defendant who intentionally or recklessly causes harm is liable for a broader range of harms than the defendant would be if only acting negligently.
Harmful or Offensive Contact
Contact is harmful when it causes physical injury, illness, disease, impairment of bodily function, or death.
Contact is offensive when…
- Objective Test: a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive.
- Subjective Test: the defendant knows that the contact is highly offensive to the plaintiff’s sense of personal dignity, and the defendant contacts the plaintiff with the primary purpose that the contact will be highly offensive, unless the court determines that imposing liability would violate public policy.
Anticipation of Contact
A plaintiff must be aware of or have knowledge of the defendant’s act. (ex. An individual kisses a sleeping stranger. The individual is not liable for assault, even though the individual may be liable for battery.)
Majority rule: objective standard—the plaintiff’s anticipation must be reasonable; a reasonable person (i.e., a person of ordinary ability or courage) must have anticipated a harmful or offensive contact.
Minority rule (Restatements): subjective standard—the plaintiff must actually have anticipated a harmful or offensive contact; recognizes that a plaintiff’s subjective anticipation of an imminent offensive contact cannot override the legal definition of an offensive contact.
Participation in an Intentional Tort
A defendant who knowingly and substantially instigates, encourages, or assists another person’s commission of an intentional tort involving personal injury is subject to liability for that tort, even if the actor’s conduct does not independently satisfy all elements of the underlying tort.
Does the plaintiff have to be aware of the contact when it occurs to recover for battery?
No.
Ex. An operating room attendant inappropriately touches the patient while she is under the effect of anesthesia. The attendant is subject to liability for battery, even though the patient was not aware of the touching.
Indirect Contact
The harmful or offensive contact need not be with the defendant himself.
Ex. D throws a rock that strikes P; D pushes another individual into P
Purposeful Infliction of Bodily Harm
When there is no contact with the plaintiff’s person, the defendant is not liable for battery.
In rare cases, when the defendant’s conduct is particularly culpable, the Restatement 3d of Torts would impose liability on the defendant for the purposeful infliction of bodily harm. Under the Restatement’s position, the defendant’s conduct could be either an affirmative act or a failure to act when the defendant has a duty to act.
Ex. The neighbor of an elderly individual knows that the individual has left the neighbor a small inheritance in his will. When the neighbor is present in the individual’s home, the individual has a heart attack. The neighbor attempts to reach for a phone to call 911. The neighbor, motived by the inheritance, seizes the phone before the individual can reach it and watches the individual die. The neighbor is not liable for battery because the neighbor has not made contact with the individual but is liable for the purposeful infliction of bodily harm.
Assault
A defendant is subject to liability to the plaintiff for assault if:
i) The defendant intends to cause the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person; and
ii) The defendant’s affirmative conduct causes the plaintiff to anticipate such contact with the plaintiff’s person.
Intent for Intentional Torts
Majority Rule: merely requires a defendant to intend to cause a contact. While the contact must be harmful or offensive, the defendant need not intend that result (i.e., the single-intent rule).
Minority Rule: requires a defendant not only to intend to bring about a contact, but also to intend that the contact be harmful or offensive (i.e., the dual-intent rule).
Prima facie case for any intentional tort
proof of the tortious conduct, the requisite mental state (intentionality), and causation.
When is use of force in defending others justified?
When the defendant has a reasonable belief that the circumstances are such that the third person has a privilege of self-defense against the plaintiff and the defendant’s intervention is immediately necessary for the protection of the third person. The third person need not be related to the defendant but may instead be a stranger.
Substantial-factor test
In cases in which the conduct of two or more defendants may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.
Note: Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”
When is a person who engages an independent contractor vicariously liable for the independent contractor’s torts?
Those who engage an independent contractor are generally not vicariously liable for the torts of the independent contractor.
A person who hires an independent contractor is vicariously liable for certain conduct, including:
i) Abnormally dangerous activities;
ii) Inherently dangerous activities;
iii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway);
iv) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and
v) In a minority of jurisdictions, the duty to comply with state safety statutes.
Elements of a prima facie case for strict liability
i) An absolute duty to make the plaintiff’s person or property safe;
ii) Breach;
iii) Actual and proximate causation; and
iv) Damages.
3 Applications of Strict Liability
DAD: Dangerous activities, wild Animals, and Defective products.
Elements for Strict Products Liability
The plaintiff must plead and prove:
i) The product was defective;
ii) The defect existed when it left the defendant’s control; and
iii) The defect caused the plaintiff’s injury when the product was used in a reasonably foreseeable way.
When may someone use deadly force to defend property?
Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device (e.g., a spring-loaded gun) to defend property.
In negligence actions, what standard of care is imposed upon a child?
The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.
Note: A child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult.
What is the definition of trespass to land?
The defendant’s intentional act causes a physical invasion of the land of another.
Note: The defendant need only have the intent to enter the land or to cause a physical invasion. The defendant need not know that the land belongs to another. Mistake of fact is not a defense.
Private Nuisance
A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.
Statutory or regulatory compliance is not a complete defense but may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of her land is unreasonable.
When will a court hold a child or a mentally incompetent person liable for an intentional tort?
A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they act with the requisite mental state.
Generally, when may a defendant act in self-defense and how much force may the defendant use?
A defendant has a privilege to use force against the plaintiff for the purpose of defending himself against the plaintiff’s unprivileged use of force if the defendant reasonably believes that the force is both necessary and proportionate to the force that the plaintiff is intentionally inflicting or about to inflict. The use of force must be for a defensive purpose and should not be significantly greater than the force used by the plaintiff.
A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate this defense.
Firefighter’s Rule
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.
Does not bar professional rescuers from recovering for harm that resulted from a land possessor’s failure to warn them about concealed dangers known to the land possessor.
What is the effect of an exculpatory clause in a contract under which the defendant disclaims liability for negligence?
An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an affirmative defense to a negligence action. Many courts now hold that disclaimer of liability by contract negates the fact that the defendant owes a duty of care to the plaintiff in the first place, causing the plaintiff’s prima facie case to fail, rather than operating as an affirmative defense.
In what situations will courts refuse to enforce exculpatory provisions?
Courts will not enforce exculpatory provisions:
i) Disclaiming liability for reckless or wanton misconduct or gross negligence;
ii) When there is a gross disparity of bargaining power between the parties;
iii) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services;
iv) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or
v) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence.
What are the elements of false imprisonment?
1) The defendant intends to confine or restrain the plaintiff within a limited area;
2) The defendant’s conduct causes the plaintiff’s confinement, or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so, and
3) The plaintiff is conscious of the confinement (in a majority of jurisdictions, a plaintiff who was not conscious of the confinement may still recover if harmed by the confinement).
What are four invasion of privacy torts?
1) Intrusion upon seclusion: Highly offensive & intentional intrusion on plaintiff’s solitude, seclusion, or private affairs
2) Misappropriation of the right to publicity: Unauthorized use of plaintiff’s name or likeness for personal benefit—e.g., commercial advantage.
3) Public disclosure of private facts: Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages
4) Publicity in a false light: Publicity given to false information about plaintiff with actual malice that places him/her in highly offensive & false light & results in damages
Misappropriation of the right to publicity (i.e., appropriation of name or likeness)
Arises when:
1. A defendant uses the plaintiff’s identity—i.e., name, likeness, or item closely associated with the plaintiff—without authorization;
2. the defendant obtains a benefit (e.g., employment) from that use, and
3. plaintiff suffers an injury as a result.
When may a private actor make an arrest?
In most jurisdictions, a private actor is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.
What are two ways in which assault differs from battery?
1) Bodily contact is not required for assault.
2) The plaintiff must be aware of or have knowledge of the defendant’s act or threat for assault.
What does it mean to be “confined within a limited area” for the purposes of false imprisonment?
The plaintiff must be confined within a limited area in which the plaintiff’s freedom of movement in all directions is constrained. The limited area may be large and need not be stationary. A plaintiff may also be confined when compelled to move in a highly restricted way.
An area is not bounded if there is a reasonable means of safe escape of which the plaintiff is aware.
What are six circumstances in which a defendant has an affirmative duty to act?
1) Assumption of duty: A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.
2) Placing another in peril: A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.
3) Contract: There is a duty to perform contractual obligations with due care.
4) Authority: One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control.
5) Special relationship: A defendant with a unique relationship to a plaintiff, such as business proprietor-patron, common carrier-passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.
6) Statutory obligation: A statute that imposes an obligation to act for the protection another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.
What is the traditional rule for contributory negligence?
The plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.
Name the three types of entrants to whom a possessor of land owe a duty and and the duty owed to each.
1. Trespasser: A land possessor is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers. Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.
2. Licensee: A land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. The land possessor does not have a duty to inspect for dangers, but must exercise reasonable care in conducting activities on the land.
3. Invitee: A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. The duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope.
What is a “Good Samaritan” statute?
A “Good Samaritan” statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.
In what ways may a plaintiff be confined resulting in false imprisonment?
The defendant may confine the plaintiff by the use of physical barriers, physical force or restraint or the threat of physical force or restraint, duress other than by threat of physical force or restraint, or by the assertion of legal authority.
When is the owner of a wild animal strictly liable for harm done by the animal?
A defendant is strictly liable for harm that
(1) is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal, or
(2) directly results from the wild animal’s abnormally dangerous characteristics, despite any precautions the possessor has taken to confine the animal or prevent the harm.
To which three torts does the doctrine of transferred intent apply?
- Battery
- Assault
- False imprisonment
Are words sufficient to establish a prima facie case for assault?
For assault, words alone are insufficient. However, words coupled with conduct or other circumstances may be sufficient if the plaintiff reasonably anticipates that a harmful or offensive contact is imminent.
When is the use of deadly force justified in self-defense?
The defendant may use deadly force only if the defendant reasonably believes that:
i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
ii) The defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
iii) The defendant can safely prevent the peril only by the immediate use of deadly force.
Same standard for use of deadly force in defense of third parties.
What is the definition of trespass to chattel?
The defendant intentionally interferes with the plaintiff’s right of possession by either:
i) Dispossessing the plaintiff of the chattel; or
ii) Using or intermeddling with the plaintiff’s chattel.
Nominal harm is inferred when the interference is through dispossession. When the interference is through use or intermeddling, the plaintiff must prove actual damages through one of the following:
1. actual harm to the chattel (i.e., impairment of its physical condition, quality, or value)
2. substantial loss of use of the chattel or
3. bodily harm to the plaintiff.
When is an employer vicariously liable for an employee’s torts?
An employer is liable for the tortious conduct of an employee that is within the scope of employment.
Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer.
Generally, an employer is not liable for the intentional tort of an employee unless such force is inherent to the job or the employee is authorized to act or speak for the employer and the position provided an opportunity for the tort.
An employer may be liable for an employee’s detour but not an employee’s frolic.
