Torts Flashcards
Transferred intent
D’s intent to commit an intentional tort against one person can be transferred if D actually committed 1) different intentional tort against same person, 2) intended tort against different person, or 3) different tort against different person. Transferred intent applies to all intentional torts except IIED and nuisance.
Battery
D intended to cause contact w/ P (or w/ something connected to P), D causes such contact, and contact harms or offends P.
Assault
D intends to cause P to anticipate imminent harmful offensive contact, and D’s conduct causes P to anticipate such contact.
IIED
1) D intentionally or recklessly 2) engaged in extreme/outrageous conduct 3) that causes P severe emotional distress.
IIED bystander rule
Under the bystander theory of recovery for IIED, P must show 1) D’s intentional extreme & outrageous conduct harmed P’s close relative, and 2) P contemporaneously perceived D’s conduct.
Do IIED damages include P’s hypersensitivity
includes P’s hypersensitivity only if D is aware
False imprisonment
1) D intends to confine P in a limited area, 2) D’s conduct causes such confinement or D failed to release P despite duty, and 3) P is conscious of confinement.
Shopkeeper’s privilege
Applies if 1) reasonable suspect of P stealing, 2) can detain P For reasonable time and manner, and 3) on or in immediate vicinity of premises.
Damages for false imprisonment
P can recover nominal or actual damages
Defenses to intentional torts
Consent
Self defense
Defense of others/property
Self-defense to intentional torts
D may use reasonable force, proportionate to threat, to defend against offensive contact or bodily harm.
Initial aggressor exception to self defense
Self defense applicable to initial aggressor unless the other party responded to the initial aggressor’s nondeadly force with deadly force
Type of force for defense of others/property
Reasonable force only
Trespass to chattel
Intentional interference w/ P’s right to possess personal property either by 1) dispossessing P of the chattel, 2) using/intermeddling with it, or 3) damaging it.
Damages for trespass to chattel
Actual damages, loss of use, nominal (only if dispossessed), cost of repair
Conversion
Intentionally interfering w/ P’s chattel in a way that deprives P entirely of use
Damages for conversion
full value of chattel
Trespass to land
D intentionally causes physical invasion of P’s land
Private necessity defense to trespass to land
Partial defense for D to enter or remain on P’s land to protect themselves for serious harm, D is still liable for actual damages
Public necessity defense to trespass to land
Full defense to avert imminent public disaster, no liability for damages
Private nuisance
Private nuisance is the substantial & unreasonable interference with another’s use and enjoyment of their land. Unreasonableness is measured objectively
Public nuisance
Public nuisance is an unreasonable interference with a right common to the public. Private individuals cannot bring a public nuisance action unless their harm is uniquely different from the general public.
Partial defenses to nuisance
Regulatory compliance
Coming to the nuisance
Negligence elements
1) duty, 2) breach, 3) causation, 4) damages
Negligence - duty
Legal obligation to act a certain way. Includes 2 questions: whether a duty exists and what the standard of care is.
Cardozo approach under whether a duty exists
Under the Cardozo majority approach, a duty is owed to P if P is foreseeably harmed by D’s conduct.
Andrews approach under whether a duty exists
Under the Andrews minority approach, a duty is owed to any foreseeable P.
Do foreseeable Ps include nonprofessional rescuers?
YES
Negligence - standard of care
Objective standard of reasonably prudent person (RPP) under the circumstances
Negligence - traditional tripartite approach of landowner standard of care
Under the tripartite approach, standard of care depends on the status of the entrant.
Landowner standard of care owed to trespassers
Trespassers are entitled to the lowest care and the landowner must only refrain from intentional misconduct. Landowners must warn of hidden dangers to discovered trespassers.
Attractive nuisance
Landowners are liable for attractive nuisance if 1) artificial conditions exists where children are likely to trespass, 2) owner knows that condition poses death or serious risk of harm, 3) children can’t appreciate the danger due to their age, 4) utility of maintaining the condition is less than the risk of injury, and 5) owner fails to exercise reasonable care.
Landowner standard of care owed to licensees
Licensees enter the land with permission. Landowners must make the property safe for them and warn them of hidden dangers.
Landowner standard of care owed to invitees
Invitees enter the land for an economic purpose. Landowners must discover dangerous conditions and protect the invitee.
CA approach to landowner standard of care
Reasonable care, although status of entrant is considered as a factor
Landlord is liable for injuries in common areas if?
Landlords are liable for injuries in common areas if they fail to warn.
Negligence - breach
A violation of the standard of care under the RPP standard.
Negligence breach - custom evidence
Evidence of majority practice within an industry or profession in the same community can be dispositive of breach.
Patient’s informed consent is required unless
1) risk commonly known, 2) patient unconscious, 3) patient waives, 4) patient incompetent, or 5) patient harmed by disclosure.
Negligence Duty - Negligence per se
When law establishes standard of care, violation constitutes breach if 1) P is in the class meant to be protected, and 2) P’s harm is the type of harm intended to be prevented
Negligence Duty - Cost benefit approach
Breach is more likely to be found if the likelihood and severity of harm is higher than D’s costs/burdens in avoiding the harm
Negligence Duty - Res ipsa loquitur
Circumstantial evidence of negligence can be used to infer negligence if 1) the accident wouldn’t occur in the absence of negligence, 2) caused by something within D’s exclusive control, and 3) P didn’t contribute.
Negligence - Causation
D’s conduct actually and proximately caused P’s harm.
Negligence - Actual cause (but-for)
But for D’s conduct, P’s harm wouldn’t have occurred.
Negligence - Actual cause (substantial factor test)
Where there are multiple tortfeasors, the substantial factor test asks whether D’s conduct was a substantial factor in causing P’s harm.
Negligence - proximate cause
An intervening event between D’s conduct and P’s harm must be foreseeable for D to remain liable. D is still liable if the intervening event was unforeseeable but P’s harm was foreseeable. If the intervening event and P’s harm are both unforeseeable, then it’s a superseding cause and D is no longer liable.
Negligence - proximate cause & eggshell P
D is liable for the full extent of P’s foreseeable injuries even if the extent of those injuries were unforeseeable.
Negligence - proximate cause & 3P’s criminal acts
3rd party’s criminal acts are usually unforeseeable intervening events but D is still liable if they owed a duty to P and failed to use reasonable care in the events leading up to the 3rd party’s criminal acts.
Negligence - Compensatory damages
Compensatory damages are meant to make P whole again. Compensatory damages generally include general damages to compensate for physical harm and special damages to compensate for out of pocket expenses. P has a duty to mitigate.
Negligence - Property damages
P may recover the difference in market value of property before and after the harm.
Negligence - Punitive damages
Available if D acted willfully or recklessly, meant to punish and deter future misconduct. However, punitive damages are limited to a 9:1 ratio with P’s compensatory damages.
Negligence defenses
Contributory negligence
Comparative negligence
Assumption of risk
Negligence defenses - Contributory negligence
P’s negligence fully bars P’s recovery unless D had last clear chance. Contributory negligence has been mostly abolished in modern jxs.
Negligence defenses - Comparative negligence
P’s negligence limits P’s ability to recover. The default in most jxs is pure comparative negligence
Negligence defenses - Pure Comparative negligence
P’s recovery is reduced by P’s percentage of fault
Negligence defenses - Partial Comparative negligence
Under partial comparative negligence, P’s recovery is entirely barred if P is more at fault than D.
Negligence defenses - assumption of risk
P knowingly and willingly embraced the risk, either expressly or impliedly. At CL, this is a full bar to P’s recovery. In most states now, it only limits P’s recovery.
NIED P’s recovery elements
P can recover for NIED if they were 1) in the zone of danger (immediate bodily harm & serious emotional distress), or 2) bystander that personally observed family member getting injured
Vicarious liability
Under respondeat superior, an employer can be vicariously liable for an employee’s negligence if it is within the scope of employment including minor deviations.
An employer can also be negligent in hiring an employee.
Vicarious liability based on acts of independent contractors
Employers are generally not liable for independent contractors’ negligence unless the employer had control over their work or the contractor was performing a nondelegable duty.
Joint & several liability
2 or more Ds are liable for a single and indivisible harm to P and P can recover all damages from any negligent D even if the jury apportions each D a different percentage of fault. A negligent D who paid more than their fair share of liability may recover from the other negligent D through contribution. A D held vicariously liable may recover from the party who was directly responsible through indemnification.
Strict liability
D is liable no matter how careful they were if 1) abnormally dangerous activity, 2) wild animals or dangerous domestic animals, or 3) product defect.
Abnormally dangerous activity
Factors include whether the activity creates a foreseeably significant risk of harm even with due care, the severity of harm, appropriate of location, and value to the community.
Strict liability - wild animals
For wild animals, the owner is liable for harm caused by P’s fearful reaction or directly from the animal’s dangerous characteristics.
Strict liability - dangerous domestic animals
For dangerous domestic animals, the owner is liable only if 1) they knew about the dangerous characteristics, and 2) P’s harm arose from those dangerous characteristics.
Products liability requirements
P, including a bystander, must show 1) the product was defective, 2) defect existed when it left D’s control, and 3) the defect caused P’s injury when used in a foreseeable way.
Types of defects
Manufacturing defects
Design defects
Failure to warn
Manufacturing defect
Manufacturing defect means that the product deviated from the manufacturer’s own intended design.
Design defect is evaluated based on?
Design defect is evaluated based on either the consumer expectation test or the risk-utility test.
Design defect - Consumer expectation test
Design is less safe than an ordinary consumer would expect
Design defect - Risk utility test
There’s a reasonable alternative design
Failure to warn applies to?
Failure to warn applies to foreseeable risks that are not obvious to an ordinary consumer.
Defendants of products liability actions may include
Defendants may include manufacturers, commercial suppliers, or sellers.
Supplier and Seller requirements for products liability actions
Suppliers must have 1) supplied the defective component, or 2) substantially participated in product integration which caused the product to be defective.
Sellers must be in the business of selling the type of product at issue.
Products liability damages
P can recover for personal injury or property damage, although P still has duty to mitigate.
Products liability defenses
Negligence defenses apply
Compliance w/ gov’t standards are admissible to demonstrate that the product wasn’t defective, though this is not dispositive.
State of the art defense is a complete defense in some jxs, meaning D is not liable if the product conforms with the level of applicable knowledge existing at the time.
Is D still liable in a products liability action if P’s misused or modified the product?
YES if P’s misuse or modification was FORESEEABLE
Defamation elements
D made a 1) defamatory statement, 2) about P, 3) publicized to a 3rd party, 4) which resulted in damage to P’s reputation.
Defamatory statement
Defamatory statement must actually be false and not just a mere opinion.
Public figures/officials requirement for defamation
Public figures/officials must prove D’s actual malice (D knew of falsity or recklessly disregarded the truth).
Damage to P’s reputation can be shown in 2 ways
Libel
Slander
Libel and damages
written defamation and P can recover general damages.
Slander
Slander is oral defamation and P must prove special damages (economic loss) unless the statement constitutes slander per se
Slander per se
statement is about a serious crime, P’s unfitness for profession, P has a loathsome disease, or P committed sexual misconduct.
Defamation defenses
No defamation if statement was true, P consented, or a privilege applies.
Invasion of privacy crimes include
(IFLAP)
Intrusion upon seclusion
False light
Appropriation of right to publicity
Public disclosure of private facts
Intrusion upon seclusion
D intrudes on P’s private affairs
False light
D makes public facts about P, which places P in a false light, and is highly offensive to a reasonable person.
Appropriation of right to publicity
D appropriate P’s name or likeness for D’s own gain, without consent, and causes injury to P.
Public disclosure of private facts
D publicizes P’s private info, and the matter is offensive & not of legitimate concern to the public.
Business torts include
(FNIIA)
Fraud
Negligent misrepresentation
Intentional interference w/ business relations
Injurious falsehoods
Abuse of legal system
Fraud
D gave a 1) False representation of material fact, 2) knowledge of falsity/reckless disregard, 3) D intended to induce P’s reliance, 4) causation, 5) P justifiably relied, and 6) damages.
Negligent misrepresentation
D 1) provided false info, 2) due to D’s negligence, 3) causing P’s justifiable reliance, and 4) P is in contractual relationship with D
Intentional interference w/ business relations
1) Valid K existed between P and 3rd party, 2) D knew, 3) D intentionally interfered, 4) resulting in breach, and 5) breach caused P’s damages
Injurious falsehoods of business torts include?
Include trade libel & slander of title
Abuse of legal system includes?
Includes malicious prosecution & abuse of process
Abuse of legal system - malicious prosecution
Prosecution is malicious if it’s for an improper purpose or without probable cause
Abuse of legal system - abuse of process
Prosecution is abuse of process if its to achieve an improper ulterior motive
NIED Special situations theory
P suffers emotional distress b/c D negligently:
1) Delivered erroneous announcement of death/illness,
2) Mishandled a loved one’s corpse/bodily remains, or
3) Contaminated food w/ repulsive foreign object
Rule for liability of multiple tortfeasors
If multiple tortfeasors act in concert and at least one of them causes P’s harm, then all of the tortfeasors are jointly and severally liable.
Elements of an abnormally dangerous activity
An activity is abnormally dangerous if it 1) is uncommon in the community, and 2) creates a foreseeable and highly significant risk of physical harm that can’t be mitigated with reasonable care.
Can reasonable mistake be a defense to trespass to chattels?
NO
What is a requisite to joint and several liability that P must prove first?
P must first prove that each D was actually negligent, meaning any one of them could have caused P’s indivisible harm.
A defendant who makes a defamatory statement about a group of people is liable to an individual member of that group when?
Only if 1) the group is so small that a reasonable person would conclude that the statement refers to that member, OR 2) the circumstances of publication would cause a reasonable person to reach that same conclusion.
Modern dram-shop laws
To sustain a cause of action under a dram-shop law, P must prove: 1) business sold alcohol to someone who was visibly intoxicated, and 2) P’s injuries were a proximate result of that person’s intoxication.
Modern social-host liability
Some jxs extend dram-shop laws to social hosts who serve alcohol to visibly intoxicated guests (same elements apply).
Do dram-shop laws or social-host liability exist at CL?
NO
Rule of apparent agency for imposing vicarious liability
Vicarious liability can be imposed if: 1) P reasonably believed 3P was acting within scope of agency relationship w/ D, and 2) belief was traceable to D’s manifestations.
