Torts Flashcards
Elements of intentional tort
-Act
-Intent
-Causation
Can you transfer intent for intentional torts?
Yes BUT only if the intended tort is the actual tort AND only if tort is assault, battery, false imprisonment, trespass to land, or trespass to chattels
Act definition (torts)
Volitional movement by D
Battery elements (tort)
-Offensive contact (direct or indirect)
-With P’s person (including anything P is touching or holding)
Assault elements (tort)
-D act creating reasonable apprehension/knowledge in P (do NOT need fear)
-Of immediate offensive contact
False imprisonment elements (tort)
-D act or omission (including failure to release P)
-That confines or restrains P
-To a bounded area
-P aware of confinement or harm
Intentional infliction of emotional distress elements (tort)
-D intent (recklessness or higher)
-D act
-Amounting to extreme and outrageous conduct
-P suffers actual severe emotional distress
IIED: how can non-outrageous conduct become outrageous?
-Continuous
-Committed by common carriers or other Ds with higher duty
-Directed towards certain P (children, elderly, pregnant, supersensitive person if known to D)
Trespass to land elements (tort)
-Physical invasion
-Of P’s real property
Trespass to chattels element (tort)
-D act
-That damages chattel OR deprives P of possession
-Minor; not big enough to make conversion
Conversion (tort)
-D act
-That damages chattel OR deprives P of possession
-Damage/deprivation is so major it requires D to pay FMV
Types of consent (to tort)
-Express: valid unless fraud or duress
-Implied: look to
—custom and usage (e.g., play football=>contact) OR
—reasonable interpretation of P’s conduct (e.g., sitting in barber chair)
When can person use self-defense to tort?
IF reasonable belief of attack or imminent attack THEN can use force reasonably necessary to protect against injury
Shopkeeper’s privilege
Shopkeeper can detain customer for reasonable time IF
-Reasonable belief of theft
-Detention conducted in reasonable manner
-Detention for reasonable period to investigate
Public necessity defense
D can use public necessity IF D acted to avert an “imminent public disaster” (e.g., hurricane)
Private necessity
-D can act in emergency to protect own interest (e.g., trespass into house to avoid blizzard)
–D liable to P for property damage
–D NOT liable for nominal or punitive damages
–D can remain on land as long as emergency continues
Who does D owe a duty of care to for negligence?
All foreseeable plaintiffs
Everyone in “zone of danger”
Child standard of care for negligence
-Subjective test
-Standard of child of similar age, intelligence, and experience
-No duty under 5 y/o
-Children doing adult activities held to adult standard
Professional standard of care for negligence
-Knowledge and skill of avg member of profession
-Professional custom is standard, not mere evidence
-Nat’l standard
Duty to unknown/undiscovered trespasser
None
Duty to known or anticipated trespasser
Warn of or make safe conditions that are HACK:
-Highly dangerous
-Artificial
-Concealed
-Known
Licensee definition
Person who enters land with possessor’s permission for their own purpose or business
Includes social guests, firefighters, and police
Duty to licensees
Warn or make safe conditions that are
-Concealed AND
-Known
Invitee definition
Person on land in response to invitation
Includes the public if the land is held open to the public
Duty to invitee
Warn of or make safe conditions that are
-Concealed
-Known OR could have been discovered
When does attractive nuisance apply?
D must use reasonable care to avoid reasonably foreseeable risk of harm to children IF:
-Dangerous condition that owner knows/should know
-Children might trespass
-Condition likely to cause injury
-Expense of remedy < Risk
When does statutory standard of care apply?
-P is in protected class
-Statute was designed to prevent the type of harm
When is statutory violation excused?
-Compliance would cause more danger than violation OR
-Compliance beyond D’s control
Negligent infliction of emotional distress elements
-Near Miss: D creates foreseeable risk + P in zone of danger + P physical symptoms
-Bystander: P and person injured are closely related + P present at scene and personally saw event
-Special relationship: Duty between P and D + D’s negligence has great potential to cause emotional distress (e.g., dr misdiagnoses px)
Res ipsa loquitur elements
-Accident was type that would not normally occur unless someone was negligent
-Negligence probably attributable to D (e.g., D had exclusive control of instrumentality)
Effects of res ipsa loquitur
-P makes prima facie case
-No directed verdict for D
Substantial Factor Test
IF multiple causes of injury AND any individual cause would be sufficient to cause injury THEN D’s conduct was cause in fact IF it was a substantial factor in causing the injury
Summers v. Tice Test/Unascertainable Causes
IF two acts could have caused the injury, but it’s unclear which act did, THEN each defendant has burden of showing that their negligence was not the actual cause
Otherwise, both liable
Common foreseeable intervening forces (i.e., D will be found negligent for the results of these)
-Medical malpractice
-Rescuer negligence
-Protection or reaction forces to D’s conduct
-Disease or accident substantially caused by the original injury
Eggshell Skull Rule
D liable for all damages caused to P, including aggravation of an existing condition
Liability for domestic animals
Owner strictly liable ONLY IF knowledge of dangerous propensities that are not common to the species
Liability for wild animals
Strict liability to licensees and invitees
Trespasser must prove owner negligence to recover
Elements of strict liability for products liability
-D is merchant
-Product is defective
-Product not substantially altered after leaving D’s control
-P was making foreseeable use of product at time of injury
Liability for manufacturing defect
D liable if P can show that the product failed to perform as safely as an ordinary consumer would expect
Private nuisance
Substantial, unreasonable interference with another private individual’s use or enjoyment of their property
Liability for independent contractors
-Generally ER not liable for IKor
-Exception: Duty is nondelegable (E.g., keeping business premises safe for customers)
-Exception: ER can be liable for negligently selecting IKors
Contribution theory
D who pays more than their share of damages under joint and several liability can have a claim against the other jointly liable parties
Loss of consortium
Non-injured spouse’s independent claim derived from injured spouse’s claim (e.g., loss of household services, companionship, sex)
Defamation elements
-Defamatory statement
-Specifically identifies P
-Published to third party
-Falsity of defamatory language
-D fault
-Damage to P’s reputation
Mental state needed for public official or figure to bring Defamation action
D actual malice (knowledge that statement was false OR reckless disregard as to whether statement was false)
Libel definition and damages
-Defamation in permanent form (e.g., written, printed, recorded)
-Presume general damages
Slander definition and damages
-Spoken defamation
-P must prove special damages UNLESS one of the following, which get general damages
-Statement that affects P’s business or profession
-Statement that P committed a serious crime
-Statement that P engaged in serious sexual misconduct
-Statement that P has loathsome disease
