TORTS Flashcards
Intentional tort
A person is liable for an intentional tort when he engages in a voluntary act with the intent to cause and does cause harm to another, where there is no privilege or defense. Intent means that the D had a desire or purpose for a certain result to occur OR that D knew with a substantial certainty that the result would occur.
Intentional Torts are:
Battery, assault, false imprisonment, IIED, trespass to land, trespass to chattels, conversion
Battery
A person is liable for batter for an intentional and offensive touching of the Ps person or something connected to them where such touching would be unacceptable to a person of ordinary sensibilities (intoxicated = no intent)
Assault
A person is liable for assault if it’s shown that the D intentionally placed the P in a reasonable apprehension of an immediate and offensive contact or touching. RPP standard applied to whether apprehension was reasonable.
False Imprisonment
A person is liable for FI when D intentionally causes, by force or threats of force, the P to be confined to a bounded area for an appreciable amount of time against Ps will and wrongfully, where P has no reasonable means of escape and P knows of the confinement or is injured by it.
Shopkeepers privilege
Under the shopkeeper’s privilege the D is not liable for false imprisonment if (1) he has a reasonable suspicion that P has stolen goods (2) uses reasonable force to detain the person (3) detains the P for a reasonable period and (4) in a reasonable manner, on the premises or immediate vicinity
Intentional Infliction of Emotional Distress
P must show that the Ds intentional or reckless conduct was extreme and outrageous causing P severe emotional distress.
To be extreme and outrageous, the conduct must be beyond the bounds of decency acceptable in a civilized society. Offensive or insulting language is generally not considered outrageous unless D is a common carrier, innkeeper, or D knew of Ps sensitivity (elderly, children, pregnant woman).
In order for a D to be liable for IIED to a third party bystander, the following is required
(1) the P was located near the scene
(2) P suffered severe emotional distress resulting from observing the accident
(3) D knew or should have known the P was present
(4) P had a close relationship w/ the victim OR (5) if not a close family member, what P witnesses was so shocking that it caused P physical harm.
Bystander IIED
In order for a D to be liable for IIED to a third party bystander, the following is required (1) the P was located near the scene (2) P suffered severe emotional distress resulting from observing the accident (3) D knew or should have known the P was present (4) P had a close relationship w/ the victim OR (5) if not a close family member, what P witnesses was so shocking that it caused P physical harm.
Negligent infliction of emotional distress & Bystander
NIED is not an intentional tort. The claim is similar to IIED but only requires a showing of negligence rather than intent. A P may recover if (1) he was in the zone of danger (in the area at risk of physical injury) (2) the D knew or should have known the P was present and (3) the Ps emotional distress resulted in a physical manifestation of injuries.
Traditionally a bystander outside the zone of danger could not recover. But a majority of states allow recovery in these cases as long as (1) the plaintiff and the person injured are closely related (2) the plaintiff was present at the scene of the injury and (3) the plaintiff personally observed or perceived the event.
Trespass to land
a person is liable for the intentional tort of trespass to land if he intentionally causes something to enter the land of another regardless of whether it causes harm. An erroneous belief that the property was public does not bar the claim. If there are no actual damages, the P is entitled to nominal damages. If the D is intoxicated, and there is no intent to enter the land, he is not liable for trespass to land, but he would be liable even w/o intent if he acts w/ knowledge of a substantial certainty he or the thing will end up on another’s property.
Trespass to Chattels
a person is liable for the intentional tort of trespass to chattels when he intentionally interferes w/ Ps chattel, causing him harm by dispossessing the P of his property and intermeddling w/ Ps possession of his property. The P is entitled to actual damages incurred including damages for loss of use, b/c the property is returned. The P must prove actual damages. A D is guilty even if he was mistaken.
Conversion
a person is liable for the intentional tort of conversion if he intentionally interferes w/ the property of another for the purpose of depriving him thereof. To be liable, the act must cause the destruction of or a serious and substantial interference w/ Ps chattel, which results in the property being lost, totaled, destroyed, so that the property will not be returned, by Ds exercise of dominion and control over Ps property. The P is entitled to damages in the amount of the full value of the property.
Defenses to Intentional Torts
(1) privilege (2) defense of others (3) defense of property (4) consent (5) authority (6) necessity – public or private (7) self – defense. If the defense is applicable, the D is not liable for his intentional conduct.
Privilege Defense to Intentional Torts
A D is not liable for an intentional tort if he has a privilege to act. A privilege may exist where (1) the person affected by Ds conduct consents (2) some important personal or public interest will be protected by Ds ordinarily prohibits conduct, and this interest justifies the harm causes or threated by the Ds conduct; and (3) the Ds act must be necessary to perform an essential function (such as, shopkeeper’s privilege).
Defense of Others Defense to Intentional Torts
A D is not liable for an intentional tort if he is defending others. A D is entitled to defend others from an attack by the P if there is a reasonable belief such defense is necessary. (the minority view: privilege to defend others to the same extent that the 3rd person would be lawfully entitled to defend himself from P).
Defense of Property Defense to Intentional Torts
A D is not liable for an intentional tort if he is defending his property. A D is permitted to use reasonable force to prevent the P from committing a tort against Ds property. The amount of force used by the D must be no greater than necessary to prevent the threatened harm. Additionally, deadly force is not permitted, unless Ds life or bodily injury is also threatened.
Consent Defense to Intentional Torts
A D is not liable for an intentional tort if the P consents to the act that constituted the tort. Consent must be effective and D must not exceed the scope of the consent. A P can manifest consent expressly, impliedly, or as a matter of law. A P manifests consent as a matter of law where (1) P is unable to consent (2) an emergency action is necessary to prevent his death or serious bodily injury (3) a reasonable person would be expected to consent under the circumstances and (4) no reason exists to believe that P would not consent. Consent related to conduct, not consequences. For example, consent to fight is not consent to be killed so the D would be liable for death. Also, consent to fight is not consent to use a knife.
Authority Defense to Intentional Torts
A D is not liable for an intentional tort if he has authority to engage in the act. Specifically, police or a private citizen can arrest someone w/o a warrant to prevent a felony or breach of peace that is being committed, or reasonable appears about to be committed, in his presence.
Private Necessity Defense to Intentional Torts
Under private necessity an individual is privileged to enter another’s land to prevent a threatened harm to himself or his property. If D is acting to protect private, individual interests, he is justified in doing so if the threatened harm he is acting to avoid is substantially greater than the harm that will result from the action he actually takes. The D is not liable for trespass, but if he causes damages, he is liable for the actual damages. (loss of food consumed by D but not rented value of cabin broken into.)
Public Necessity Defense to Intentional Torts
Under public necessity, if the D acts out of public necessity, he incurs no liability whatsoever for the damages to Ps property. I the D is acting to protect the public interest, he is justified in doing so only if the threatened harm is severe – essentially, a disaster. (hurricane, fire)
Self Defense Defense to Intentional Torts
A D is not liable for an intentional tort if he is acting in self-defense. A D is privileged to use only the degree of force reasonably necessary to protect himself from an imminent and unprivileged attack that would result in unlawful bodily harm or death. He is not privileged if the purported threat is not about to happen, has been averted, or has ended. IN addition, he is not privileged if he knows the attack is based on mistaken identity, he has time to inform the attacker of the mistake, and does not inform the attacker. In Florida, there is no duty to retreat before using deadly force.
Negligence - Emergency
in an emergency, a person is still required to act reasonably, if he acts unreasonable, he is liable.
Negligence - Duty
Generally, there is no affirmative duty to take action to protect a P who is at risk of injury. However, a duty is owed if (a) Ds conduct is responsible for placing P in a position where he requires aid (b) even if a D is not required to take action, once a D takes action he has a duty to exercise due care as to the subsequent conduct, and he is liable if he leaves P in a worse position and (c) a duty is owed if there is a special relationship, such as (1) parent child (2) employer employee (3) common carrier and inn keeper customer (4) school pupil (5) jailor prisoner (6) landlord tenant.
Negligence - Duty - Rescue Doctrine
under the rescue doctrine, it is foreseeable that someone will come to the rescue. Therefore, a rescuer injured in an attempt to rescue another can recover for the negligence of the person who created the need to rescue. The D must be negligent for the rescuer to recover and it is irrelevant if the negligent act is a violation of a criminal statute. A D must be negligent for the rescuer to recover.
Negligence - Duty - Child’s Negligence
a child is liable for negligence to the extent that the child fails to exercise the reasonable care of a child of the same age, intelligence, and experience. The exception to this rule is if the child is engaged in an adult activity, such as driving a car, airplane, or other motor vehicle. The majority rule is that a child younger than 4 or 5 is not capable of negligence.
Negligence - Duty - Firefighter’s or Professional Rescuer Rule
traditionally, a professional rescuer, such as firefighter, police officer, cannot hold someone liable for negligence that creates a need for the rescuer’s services. This rule only applies to risks inherent in the professional rescuer’s job.
Negligence - Duty - Conduct of 3rd Parties
Generally, a person is not liable for failing to control the conduct of a 3rd person unless a special relationship exists btwn the parties such as (1) parent child (2) employer employee (3) common carrier innkeeper patron (4) school-pupil (5) jailor-prisoner (6) landlord – tenant.
A common carrier owes a duty to passengers to take reasonable actions to protect them from unreasonable risk of physical harm whether from the carrier’s conduct or risks from acts of 3rd persons. A common carrier is liable for the negligence of another passenger, but only if the common carrier is negligent. Additionally, a common carrier is vicariously liable under the doctrine of respondeat superior for the negligence of employees.
Negligence - Duty - Landlord
A landlord owes a duty to protect tenants and is liable for failure to exercise reasonable care which results in an increased risk of harm to the P through the tortious or criminal acts of others. However, drug dealing on the property alone may not be sufficient to establish landlord liability.
Negligence - Causes
if a Ds actions are the cause in fact the Ds act is not necessarily the proximate cause. In order for the Ds act to be the proximate cause of Ps injury, it must have been foreseeable. There is a limitation on liability if the risk created by Ds unreasonable conduct was not foreseeable.
Duplicative Causes
if there are two or more duplicative causes, either of which would have harmed the P, the all Ds are liable.
Supervening/Superseding Cause
becomes the proximate or legal cause because it breaks the chain of proximate causation btwn the Ds negligence and the Ps injury (supervening is not foreseeable).
Intervening Cause
is a foreseeable intervening act and it rarely cuts of Ds liability. A D is liable if the 1st injury was a substantial factor in causing the second injury. Include (1) subsequent medical mal prac (2) negligence of rescuers (3) subsequent disease (4) subsequent accident (even if weeks later).
Negligence - Damages
A P must affirmatively prove actual damages. To be liable for negligence, the P must have suffered actual damages.
Doctrine of Res Ipsa Loquitor
A P can recover on a negligence claim even if the P is unable to prove exactly what was done negligently, if P can show that (1) the accident is the sort that does not ordinarily occur in the absence of negligence (2) the agency or instrumentality that causes the injury was w/n the exclusive control of the D (3) it is more likely than not that it was Ds negligence that was responsible for the event and (4) P was not responsible for the event. The doctrine permits a jury to infer Ds breach of duty, but it does not create a rebuttable presumption of negligence. The burden of proof does not switch to the D. P retains burden to prove negligence by a preponderance of the evidence. Directed verdicts may not be granted b/c, although the P does not need to present evidence, a jury can infer negligence. Generally, where there is more than one Defendant, res ipsa may not be used.
Negligence Per Se
A D is strictly liable for negligence per se if a statute prohibits the Ds actions, the P is w/n the class intended to be protected by the statute and the harm was that for which the protection was intended. Mistake of law is not a defense because no mens rea is required. However, mistake of fact IS a defense (did not know taillight was out). Defenses – compliance was impossible or significantly more dangerous that noncompliance.
Land Possessor Liability
A D is liable for land possessor liability as either an owner or occupier, depending on the danger or activity involved and the standard of care required based on the category of P who alleges injury.
