TORTS Flashcards
1
Q
INTENTIONAL TORTS: PRIMA FACIE CASE
A
1) Act
2) Intent
3) Causation
2
Q
INTENTIONAL TORTS: INTENT REQUIREMENT
A
A defendant acts intentionally if it his PURPOSE to bring about the consequences or if he knows with SUBSTANTIAL CERTAINTY that the consequences will result.
3
Q
INTENTIONAL TORTS: TRANSFERRED INTENT
A
The intent to commit a tort against one person is transferred to the other tort or injured person when one:
1) commits a different tort against that person
2) commits the same intended tort but against a different person OR
3) commits a different tort against a different person
4
Q
INTENTIONAL TORTS: MINORS AND INCOMPETENTS
A
Are held liable and held to have the requisite intent
5
Q
INTENTIONAL TORTS: CAUSATION
A
Is satisfied where the conduct of the defendant is a SUBSTANTIAL FACTOR
6
Q
INTENTIONAL TORTS: BATTERY
A
1) Intent to bring about a harmful or offensive contact to another person
2) such contact occurs
3) and causation
7
Q
INTENTIONAL TORTS: BATTERY DAMAGES
A
No actual damages need to be sustained. Nominal damages can be awarded and punitive damages may be given when the defendant acted WITH MALICE
8
Q
INTENTIONAL TORTS: ASSAULT
A
Intent to create a reasonable apprehension in the plaintiff of an immediate harmful or offensive contact.
Plaintiff must be AWARE of the threat
9
Q
INTENTIONAL TORTS: ASSAULT AND THE EFFECT OF WORDS
A
Mere words CANNOT constitute assault, but they can NEGATE the elements needed
10
Q
INTENTIONAL TORTS: ASSAULT DAMAGES
A
NO HARM is required. Nominal damages can be awarded and punitive damages for MALICE
11
Q
INTENTIONAL TORTS: FALSE IMPRISONMENT
A
1) Confinement or restraint of plaintiff to a bounded area
2) with the intent to do so
3) causation
12
Q
FALSE IMPRISONMENT: METHODS OF RESTRAINT/CONFINEMENT
A
1) Physical barriers
2) Physical force directed at plaintiff or immediate family
3) Direct threats of force
4) Indirect threats of force - reasonably imply force will be used
13
Q
FALSE IMPRISONMENT: SHOPKEEPER’S PRIVILEGE
A
1) Must be a reasonable belief that theft has occurred
2) Detention must be conducted in a reasonable manner
3) and the detention must last for only a reasonable time
14
Q
INTENTIONAL TORTS: IIED
A
1) An act by D of EXTREME and OUTRAGEOUS conduct
2) intent to cause SEVERE emotional distress or RECKLESNESS
3) Causation
4) DAMAGES - SEVERE ED
15
Q
IIED: WHAT IS EXTREME AND OUTRAGEOUS CONDUCT?
A
Conduct that transcends ALL BOUNDS OF DECENCY tolerated by society
16
Q
IIED: KNOWN SENSITIVITIES
A
Offensive or insulting language that is not necessarily outrageous can create liability for IIED when the defendant knows the plaintiff has a known sensitivity such as pregnant women, elderly people, children
17
Q
IIED: BYSTANDER CASES
A
When D’s conduct is directed towards a 3rd person and P suffers severe ED they must show:
1) P was present
2) P suffered bodily harm or was a CLOSE RELATIVE of 3rd person
3) D KNEW this
18
Q
INTENTIONAL TORTS TO PROPERTY: TRESPASS ON LAND
A
1) Physical invasion of Ps real property
2) Intent to bring about the physical invasion AND
3) causation
19
Q
INTENTIONAL TORTS TO PROPERTY: WHAT CONSTITUTES PHYSICAL INVASION
A
1) Physically being on land without permission
2) Throwing objects onto land
3) Lawful right of entry expires
20
Q
INTENTIONAL TORTS TO PROPERTY: INTENT REQUIREMENT FOR TRESPASS ON LAND
A
Intent to enter the land is sufficient
Mistake is NOT A DEFENSE
21
Q
INTENTIONAL TORTS TO PROPERTY: TRESPASS TO CHATTELS
A
1) An act of D interfering with Ps right of possession in chattel
2) Intent to perform the act bringing about the interference
3) Causation
4) DAMAGES (ACTUAL DAMAGES REQ’D)
22
Q
TRESPASS TO CHATTELS: INTENT REQUIREMENT
A
Only need the INTENT TO DO THE ACT OF INTERFERENCE
23
Q
INTENTIONAL TORTS TO PROPERTY: CONVERSION
A
1) An act by D interfering with Ps right of possession in chattel
2) Intent to perform the act bringing about the interference
3) Causation
4) DAMAGES - SERIOUS ENOUGH TO PAY FULL FAIR MARKET VALUE AT TIME OF CONVERSION
24
Q
CONVERSION: SERIOUSNESS OF INTERFERENCE
A
1) Refusal to return
2) alteration of chattel
3) longer withholding period
4) Extensive use
25
DEFENSES TO INTENTIONAL TORTS: CONSENT
1) Express
2) Implied - what a reasonable person would infer from plaintiff's words, conduct
26
DEFENSES TO INTENTIONAL TORTS: SELF-DEFENSE
When a person has reasonable grounds to believe that he is being or is about to be attacked, he may use REASONABLY NECESSARY FORCE for his protection
27
SELF DEFENSE: INJURY TO 3RD PARTIES
If a defendant uses self-defense and injures a bystander, he is still protected by the defense
28
INTENTIONAL TORTS: DEFENSE OF OTHERS
If the person reasonably believes the person he is aiding would have a right to self-defense, defendant is not liable for using defense on the 3rd person's behalf.
29
INTENTIONAL TORTS: DEFENSES TO PROPERTY
One may use reasonably necessary force to prevent the commission of a tort against her property but must request to desist first unless that request would be dangerous
30
DEFENSES OF PROPERTY: HOT PURSUIT
One may still defend his property while in hot pursuit of the trespasser because it is viewed as if the trespasser is still in the process of committing the tort
31
DEFENSES TO PROPERTY: PUBLIC NECESSITY
It is an absolute defense to interfere with one's land where the interference is reasonable and apparently necessary to avert an imminent public disaster
32
DEFENSES TO PROPERTY: PRIVATE NECESSITY
It is a QUALIFIED DEFENSE to interfere with one's land where the interference is reasonable and apparently necessary to prevent injury to a limited number of people
The trespasser is liable only for the harm to the property and not the trespass itself
33
NEGLIGENCE: PRIMA FACIE CASE
1) duty
2) breach
3) causation
4) damages
34
NEGLIGENCE: GENERAL DUTY OF CARE
One must act as a REASONABLY PRUDENT PERSON would under the same or similar circumstances
35
NEGLIGENCE: WHO IS OWED A DUTY OF CARE?
A duty of care is owed to FORESEEABLE PLAINTIFFS
36
NEGLIGENCE: SPECIAL DUTY - DANGER INVITES RESCUE
A rescuer is a foreseeable plaintiff when a defendant negligently puts themselves in danger AND so long as the rescue is not reckless
37
NEGLIGENCE: FIREFIGHTER RULE
Bars professional rescuers like police and firemen from recovering for negligence because the inherent risks of their job
38
NEGLIGENCE: SPECIAL DUTY- PRENATAL INJURY
A duty of care is owed to all VIABLE fetuses at the time of the injury and is actionable
39
NEGLIGENCE: PHYSICAL CHARACTERISTICS CONSIDERED IN THE REASONABLE PERSONS STANDARD
A "reasonable person" is considered to have the same physical characteristics as the defendant
40
NEGLIGENCE: STANDARD OF CARE AND MENTAL CAPACITY
Mental capacity is NOT considered in determining whether one acted as a reasonably prudent person
41
NEGLIGENCE: PROFESSIONAL STANDARD OF CARE
A professional is required to possess and exercise the knowledge and skill of an average person in their profession
42
NEGLIGENCE: CHILD STANDARD OF CARE
1) Kids under 5 - NO DUTY
2) Age 5-18: A child is required to conform to the standard of care of a child of like AGE, INTELLIGENCE, AND EXPERIENCE
43
NEGLIGENCE: CHILD ENGAGED IN "ADULT ACTIVITIES"
Will be held to the "reasonably prudent person standard"
44
NEGLIGENCE: DUTY TO UNKNOWN TRESPASSERS
A land possessor owes NO DUTY to unknown trespassers
45
NEGLIGENCE: DUTY TO KNOWN/ANTICIPATED TRESPASSERS
Duty to warn and make safe from:
1) known and
2) concealed
3) highly dangerous artificial conditions
46
NEGLIGENCE: DUTY TO LICENSEES (SOCIAL GUESTS)
Duty to warn and make safe from:
1) a dangerous condition
2) known and concealed to the licensee
3) that creates an unreasonable risk of harm
47
NEGLIGENCE: DUTY TO INVITEES (PUBLIC AND CUSTOMERS)
Duty to warn and make safe from:
concealed dangerous conditions that were either known or could have been known to the land possessor upon reasonable inspection
48
NEGLIGENCE PER SE: STATUTORY STANDARD OF CARE
1) Plaintiff is in the protected class under the statute AND
2) Statute was designed to protect against the harm suffered
ESTABLISHES DUTY AND BREACH ELEMENTS
49
SPECIAL STANDARD OF CARE: COMMON CARRIERS/IN-KEEPERS
Are held to a very high degree of care to their guests - responsible for even the slightest negligence
50
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Defendant creates a foreseeable risk of physical injury to a plaintiff who:
1) is in the zone of danger
2) and suffers physical symptoms
51
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: BYSTANDER CASES
A bystander who sees the defendant negligently injure another from outside the zone of danger can recover IF:
1) plaintiff and injured party are CLOSELY RELATED and
2) Plaintiff was PRESENT and OBSERVED or PERCEIVED the incident
52
RES IPSA LOQUITUR: BREACH OF DUTY
Requires plaintiff to show:
1) accident was of the type that would not normally occur in the absence of negligence
2) AND negligence was PROBABLY ATTRIBUTABLE to defendant
53
RES IPSA LOQUITUR: DIRECTED VERDICTS
1) DENY D's motion if established or breach shown in another way
2) GRANT D's motion if P failed to establish Res Ipsa or breach in some other way
54
NEGLIGENCE: CAUSATION
Plaintiff must show actual and proximate causation
55
NEGLIGENCE: ACTUAL CAUSATION
An act or omission is the the factual cause of injury when the injury would not have occurred but for the act or ommission
56
NEGLIGENCE: MULTIPLE CAUSATION
When multiple causes bring about an injury and any one alone could have caused it, D's act is the cause in fact when it was a SUBSTANTIAL FACTOR in bringing about injury
57
NEGLIGENCE: UNASCERTAINABLE CAUSES APPROACH
When there are two acts but it is not known which one caused the injury - the burden is on each D to show they were not the factual cause
58
NEGLIGENCE: PROXIMATE CAUSE
Defendant is liable for all natural and foreseeable consequences stemming from their negligent act.
59
NEGLIGENCE: INTERVENING CAUSES
When D's negligence causes a foreseeable intervening force that could harm P, they are liable for that intervening harm such as:
1) med mal
2) rescuer negligence
3) protection or reaction forces
4) disease or accident
60
NEGLIGENCE: SUPERSEDING CAUSES
Defendant will not be liable where there negligence an unforeseeable intervening force that harms plaintiff
61
NEGLIGENCE DAMAGES: Eggshell Skull Doctrine
Defendant takes the plaintiff as they find them and is responsible for all injuries to P including aggravation of pre-existing conditions
62
NEGLIGENCE DAMAGES: GENERALLY
1) economic damages (past, present, future)
2) non-econ damages - pain/suffering
63
NEGLIGENCE DAMAGES: PUNITIVE DAMAGES
Allowed where D's conduct is wanton, willful or malicious
64
NEGLIGENCE DEFENSES: CONTRIBUTORY NEGLIGENCE
1) Negligence by the Plaintiff under the ordinary negligence standard that contributes to their injuries
2) is a COMPLETE BAR on right to recover
65
NEGLIGENCE DEFENSES: ASSUMPTION OF RISK
P may be denied recovery if they:
1) knew the risk AND
2) voluntarily proceeded in the face of the risk
66
NEGLIGENCE DEFENSES: PARTIAL COMPARATIVE NEGLIGENCE
Bars plaintiff's recovery if their fault was greater than defendant's
67
NEGLIGENCE DEFENSES: PURE COMPARATIVE NEGLIGENCE
Allows P to recover no matter how great their fault but reduces recovery based on % of their fault
68
STRICT LIABILITY: DOMESTIC ANIMALS
Not liable for injuries caused by domestic animals unless the animal has KNOWN DANGEROUS PROPENSITIES
69
STRICT LIABILITY: WILD ANIMALS
Strict liability to licensees/invitees for harm caused by wild animals (even pets)
70
STRICT LIABILITY: ABNORMALLY DANGEROUS ACTIVITIES
1) Activity must create a foreseeable risk of harm even when reasonable care is used
2) Activity not a matter of COMMON USAGE
71
STRICT PRODUCTS LIABILITY (MERCHANT'S ONLY)
P MUST SHOW:
1) D is a merchant
2) DEFECTIVE product
3) no substantial alteration since product left D's control
4) P made foreseeable use of the product
72
STRICT PRODUCTS LIABILITY: MANUFACTURING DEFECTS
If the product emerges from manufacturing different/more dangerous than the other products made, D liable IF
1) P shows that product failed to perform as as safely as an ordinary consumer would expect
73
STRICT PRODUCTS LIABILITY: DESIGN DEFECT
1) Applies to products with dangerous propensities
2) P must show D could have made product safer without serious impact on utility or price
74
PRODUCTS LIABILITY: NEGLIGENCE
Same standard as ordinary negligence - supply a defective product
75
PRIVATE NUISANCE
1) Substantial interference - offensive, inconvenient, annoying to avg person in community
2) Unreasonable interference - severity of conduct outweighs utility
3) in the use and enjoyment of Plaintiff's land
76
77
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
78
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
79
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
80
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
81
82
STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS
A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent
83
STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS
A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent
84
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
85
PUBLIC NUISANCE
An act that unreasonably interferes with the health, safety or property rights of the community
86
VICARIOUS LIABILITY: EMPLOYER-EMPLOYEE
Under the doctrine of respondeat superior, employer will be held liable for tortious conduct of employees within the scope of their employment
Frolic: minor deviation from business activities = still liable
Detour - more substantial = no liability
87
VICARIOUS LIABILITY: INTENTIONAL TORTS
Generally, an employer is not liable for intentional torts of employees EXCEPT WHEN:
1) Employee is furthering the business
2) force is authorized
3) friction is generated by employment
87
STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS
A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent
88
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
89
VICARIOUS LIABILITY: INDEPENDENT CONTRACTORS
Generally, principal is not liable for torts of independent contractors EXCEPT:
1) duty of business to keep premises safe
2) negligence in selecting or supervising IC
90
MULTIPLE DEFENDANT ISSUES: JOINT AND SEVERAL LIABILITY
When two or more acts combine to cause an indivisible injury, each defendant is responsible for the whole of the injury
91
MULTIPLE DEFENDANT ISSUES: ACTING IN CONCERT
Each is J/S liable even if the injury is divisible
92
MULTIPLE DEFENDANT ISSUES: CONTRIBUTION
Allows D who pays more then their fair share under J/S liability to have a claim for the excess
93
MULTIPLE DEFENDANT ISSUES: INDEMNIFICATION
Shifts the entire loss to another defendant in:
1) vicarious liability cases
2) Strict products liability of non-manufacturer
94
DEFAMATION ELEMENTS (GENERALLY)
1) A defamatory statement that specifically ID's the plaintiff
2) Made to a 3rd party
3) that is FALSE
4) fault by D
5) Damage to P's reputation
95
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
95
STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS
A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent
96
DEFAMATION: PUBLIC FIGURES
Must prove ACTUAL MALICE:
1) knowledge of false statement OR
2) Reckless disregard for the truth
97
DEFAMATION: LIBEL
1) made in permanent (printed) form
2) Damages are PRESUMED
98
DEFAMATION: SLANDER/SLANDER PER SE
Spoken defamation that requires special damages proven unless slander per se:
1) adverse reflection on business or profession
2) says P committed serious crime
3) Says P engaged in serious sexual misconduct
99
INVASION OF RIGHT TO PRIVACY
ANY OF THE FOLLOWING:
1) Appropriation of P's picture or name
- unauthorized use for D's commercial advantage
2) intrusion on P's affairs or seclusion
- highly offensive to reasonable person
3) Publication of facts portraying P falsely
- highly offensive to reasonable person
4) Public disclosure of private facts of P
- highly offensive to reasonable person
100
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
100
STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS
A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent
100
STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS
A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent
101
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
102
TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE
Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk
102
STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS
A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent
