Torts Flashcards
intentional torts: general elements
1) voluntary act
2) intent
3) actual causation
intentional torts – general elements – voluntary act
must be affirmative, not reflexive or unconscious
intentional torts – general elements – intent
Not motive, but “volition” shown by desiring consequences OR
having purpose to bring consequences OR
knowing such consequences were substantially certain to occur
intentional torts – general elements – actual causation
but for / substantial factor, liable for all consequences
intentional torts – transferred intent
D intends to commit a tort but instead commits a different tort, commits the same tort against a different person, or both
= intent is transferred to actual tort or person
which torts does transferred intent apply to?
battery, assault, false imprisonment, trespass to land, trespass to chattels
intentional torts – battery elements
1) harmful or offensive contact with P’s person
2) D intended harmful or offensive contact or imminent apprehension of such contact with P’s person
3) D caused the contact
intentional torts – battery – what does it mean to make contact with “P’s person”
P or something closely connected to P
P need not be aware of conduct
Delayed conduct is ok
intentional torts – battery – objective or subject standard?
contact needs to offensive to a reasonable person, unless D knew that P is particularly susceptible
assault elements
1) act by D created reasonable apprehension in P of imminent battery
2) D intended such apprehension
3) D caused such apprehension
assault – words alone sufficient?
No, because no imminence
false imprisonment elements
1) intentional confinement of plaintiff
2) to a bounded area
3) against P’s will
4) cause by D’s act or omission
can D falsely imprison someone using reputation harm or future threats?
No
shopkeeper’s privilege
a shopkeeper may detain a shoplifter for
1) a reasonable period of time
2) in a reasonable manner (so this can be a defense to battery
IF the shopkeeper has
3) reasonable suspicion to believe that the detained person committed or attempted to steal store property
IIED elements
1) extreme and outrageous conduct
2) intended by D (intended or reckless)
3) causes severe emotional distress (Actual damages only)
IIED “outrageous conduct” – lesser showing required for which Ps and Ds?
Ps: supersensitivity known to D, children, elderly, preg
Ds: common carriers, innkeepers
third party IIED elements
1) D intentionally/recklessly caused severe emotional distress and
2) D knows 3P is present + direct victim is a close family relative of 3P
3) 3P’s emotional distress results in bodily harm
trespass to land
1) D’s intentional act
2) causes physical invasion
3) of P’s real property
what characterizes as physical invasion for trespass to land?
entry by anything tangible (bullet, pesticide, person) but not light, noise, or vibrations
what counts as P’s land for trespass to land?
Anyone in possession of land (LL, T, Aper) incl surface, airspace, subterranean space
are damages required for trespass to land?
Not required for intentional entry, but required for negligent, reckless, strict liability trespasses
trespass to chattel
1) intentional interference with
2) P’s possessory right to personal property (includes pets)
encompasses direct interference with possession to taking to damaging
Conversion elements
1) substantial interference with
2) P’s possessory right to personal property
what is substantial interference for the purposes of conversion?
longer deprivation of possessory right, full damages, destruction
what may p recover for trespass to chattel / conversion?
P may recover rental value or full FMV at time of trespass/conversion (damages) or possession (replevin)
defenses to intentional torts
1) consent to D’s conduct, not its consequences
2) defense of self
3) defense of property
4) defense of others
5) necessity
consent defense to intentional tort elements
Consent is to D’s conduct, not to its consequences
1) P had capacity
2) to expressly or impliedly consent
3) within scope
implied consent generally seen with reasonable tortious acts (sports)
defense of self defense to intentional tort
D may use force reasonably believed to be necessary to avoid imminent harm by P
Must be reasonable and proportionate
defense of property defense to int. tort
D must first demand P stop the conduct before using reasonable force in defense (never deadly)
defense of others defense to int tort
D can defend a third party but P’s attack if D reasonably believed that the force used is necessary to avoid imminent harm
necessity defense to int tort applicable to which torts
property torts only
public necessity defense to int tort
D may interfere with P’s property to protect public from harm (Absolute defense)
private necessity defense to int tort
P may protect individual interests if threatened harm substantially greater than D’s harm. D is liable for any har caused. P is liable for any harm caused preventing D’s necessary act.
what is majority and minority view of duty of care?
Under the Cardozo (majority) view, Δ has a duty of care to Πs in the foreseeable zone of danger. Under the Andrews view, Δ has a duty of care to everyone (everyone is foreseeable).
exceptions to nonfeasance
Affirmative duty created by
1) special relationship (parent-child, common carriers, innkeepers, shopkeepers)
2) Δ’s conduct creating the peril
3) Δ’s undertaking the action for Π’s benefit (attempt to assist)
4) Δ’s creating reliance
5) contract
rescued party’s liability to rescuer’s injuries
as long as rescuer’s behavior was not wanton, rescued party is liable for injuries. Rescuers are per se foreseeable plaintiffs
NIED elements bystander
1) P was present (not in zone of danger)
2) suffered severe emotional distress
3) close relationship with victim
NIED direct elements
1) P is owed a duty if P was in zone of danger
2) suffered bodily harm from threat of physical impact OR emotional distress as a result of negligence
extent of the duty of care
owes a duty to act as a reasonably prudent person in same or similar situation (who has Δ’s relevant physical characteristics), absent negligence per se or a special relationship
negligence per se
1) A statute (including one that provides for criminal penalty) defines the standard if Π is in the class of persons the statute was designed to protect
2) injury is type of injury statute
was designed to protect
= An unexcused violation of statute constitutes negligence per se—a breach of duty
Exceptions from negligence per se
Statute may be excused if it would be more dangerous to follow it or compliance is beyond Δ’s control (unforeseeable, incapable)
standard of care for children
Held to standard of reasonable child of same age, experience, intelligence, unless adult activity
standard of care for landowners: invitee
Someone who enters land open to public with potential to confer economic benefit
Must 1) Exercise reasonable care to prevent injuries
2) Inspect and make safe dangerous conditions
SoC for landowners: licensee
Someone who enters land not open to public not to confer economic benefit (guest)
SoC: duty to warn of or make safe known dangers
SoC for landowner: trespasser
Anticipated/known trespasser: Duty to warn of or make safe known, artificial, highly dangerous conditions. Cannot use deadly force to defend property
NO duty to undiscovered trespassers
attractive nuisance doctrine
Δ has duty to exercise ordinary care and avoid foreseeable risk of
harm (warn and make safe) to children caused by artificial conditions on property if:
1) dangerous condition owner is/should be aware of
2) owner knows/should know children frequent the vicinity
3) condition likely to cause injury (b/c Π child’s inability to appreciate the risk—doctrine does not apply to a “bright” child)
4) expense of remedying danger is outweighed by risk
SoC for landowners: LL-T
LL is liable for common areas, negligent repairs, known hidden defects, reasonable care to discover and repair defects if LL knows T is going to hold property open to general public
SoC for professions
Required to possess and exercise the knowledge and skill of a member of the profession in good standing. Medical specialists held to national standard. General practitioners held to local standard
how can custom or usage be used in SoC issues?
May establish what the SoC is but not dispositive
breach (three ways of calculation)
hand formula, negligence per se, res ipsa
res ipsa elements
creates an inference of negligence (p/f case for jury, deny directed verdict for Δ) where
1) type of accident is typically the result of negligence
2) accident is attributable to Δ (Δ had sole control of the instrumentality causing injury), and
3) Π did not contribute to the injury.
Δ may rebut with evidence
causation elements
actual cause in fact (but for cause, substantial factor, alternate causes) + proximate cause
proximate cause - superseding cause
unforeseeable, intervening cause that breaks the chain of causation and becomes the proximate cause. The more intentional the intervening cause, the more likely it is superseding
BUT if Δ should have realized the risk, he may still be liable for intentional 3P acts
damages
Π is entitled to economic damages (e.g., medical expenses), noneconomic damages (e.g., pain, emotional
distress), punitive damages (if Δ conduct is reckless or malicious), property damage (reasonable repair cost or FMV)
when can Ps cover for pure economic harm?
NIED
defenses for general negligence
duty to mitigate, pure comparative negligence, modified comparative negligence, contributory negligence, assumption of risk (Express, professional rescuer, avoidable consequences)
defenses to strict liability
Contributory negligence, comparative negligence, assumption of risk
products liability elements
P must show defect in product when it left D’s control
how to prove manufacturing defect?
Ordinary consumer expectation test: Product failed to perform as safely as an ordinary consumer would expect. Δ must anticipate reasonable misuse
Design defect - how to prove?
Feasible alternative test: Product could have been made safer without serious impact on the product’s price or utility
Risk-utility test: Danger of design > utility to society, feasibility of alternate designs
inadequate warnings defect
Product must have clear and complete warnings of dangers that may
not be apparent to users. One language OK. Unneeded if obviously dangerous
causation for products liability
Actual cause—defect existed when product left Δ’s control (Π need not prove fault). Proximate cause—type of injury was foreseeable at the time product was placed in the stream of commerce
learned intermediary rule
Manufacturer is relieved of liability if an intermediate handler
discovers the defect and knowingly passes it to Π or failed to convey manufacturer warning to Π
defenses to product liability
misuse, assumption of risk, comparative negligence, contributory negligence, alteration (3P unforeseeably changes the product)
products liability (negligent)
assess reasonableness of D’s conduct whose failure resulted in supplying a defective product. can use Res ipsa
implied warranty theory by purchaser, family, household, guests
purely economic losses are recoverable
(1) duty
(a) Merchantability (breached by merchant dealing in kind of goods sold) refers to whether the goods are of average acceptable quality and fit for the ordinary purpose the goods are used
(b) Fitness for a particular purpose (breached by any seller of the goods) refers to whether the seller knows or has reason to know the particular purpose the goods are required for and the buyer is relying on the seller’s skill and judgment in selecting the goods
(2) Breach: If product fails to meet either of above standards, warranty is breached. No need to show fault.
(3) Causation: Actual + proximate cause as in general negligence
(4) Damages: Personal, property damages. Purely economic losses are recoverable
DEFENSES: assumption of risk (using while knowing breach), contributory negligence if Π discovered defect, failure to give notice of breach (under UCC)
express warranty
Δ makes representation affirming a fact or promising to the buyer as to the product that becomes the basis of the bargain. No need to show breach, just that product did not live up to warranty.
defamation elements
1) defamatory language adverse to one’s reputation
2) of or concerning P (or small group)
3) publication
4) damage to reputation
if matters of public concern
5) falsity
6) fault of D
special considerations for libel
1) any communication that has some permanence
2) general damages are presumed
special considerations for slander
1) P must prove special damages, unless slander per se
(improper trade conduct, accusation of crime involving moral turpitude, loathsome disease, lack of chastity of woman
to prove fault of D when issue is public concern (con law issue for defamation) what must D show for public official vs private person?
public person: P must show malice
private person: P only need to prove negligence
defenses to defamation
qualified privilege (past employer’s reference) (but NOT if D acted with malice or statement is outside scope of privilege)
truth
absolute privilege (legislators, federal executive officials, judicial proceedings, spouses)
private nuisance definition
substantial and unreasonable interference with Π’s use and enjoyment of possessed land by intentional, negligent, or abnormally dangerous conduct
i. Substantial: Offensive, inconvenient, or annoying to an average person in the community
ii. Unreasonable: Severity of injury > utility of Δ’s conduct
public nuisance
unreasonable interference with a health, safety, moral right common to the general public
i. Suit typically brought by gov’t actor. Private party can bring action if he suffered unique damage
privacy torts
1) commercial appropriation
2) intrusion into seclusion
3) public disclosure of private true facts
4) portrayal in false light
commercial appropriation definition
Unauthorized (no permission or negligent in verifying) use of Π’s picture or name for Δ’s commercial purpose. Π need not be identified by name so long as clear that the ad is meant to depict that person
intrusion into seclusion
Δ intentionally interferes with Π’s zone of privacy in a manner offensive to a reasonable person (for example, eavesdropping, wiretapping, stalking)
public disclosure of private true facts
Disclosure of true facts that 1) would be highly offensive to a reasonable person and 2) is not newsworthy
portrayal in a false light
Publication of false information that would be highly offensive to a reasonable person
vicarious liability for employer if
Employee is negligent within scope of employment, or detour (not frolic), intentional torts outside scope unless authorized of furthering business
vicarious liability: IC
NOT vicariously liable for negligence of IC unless 1) IC is engaged in inherently dangerous activity 2) duty is non delegable as a matter of public policy or safety (e.g. shopkeeper to keep premises safe for public)
when is parent under a duty to exercise reasonable care to control his minor child
if the parent 1) knows or has reason to know that he can control
his child and 2) knows or should know of the necessity and opportunity for exercising such control
fraudulent misrepresentation
1) Material misrepresentation made with intent or knowledge to mislead
2) Π reasonably relied on the misrepresentation
negligent misrepresentation
Material misrepresentation made with negligent or innocent scienter, and Π reasonably relied on the misrepresentation
fraudulent nondisclosure
Silence when there was a duty to disclose a material fact, and Π reasonably expected disclosure
malicious prosecution
Institution of criminal/civil proceedings against Π (former Δ)
1) without probable cause
2) without proper purpose (malice)
3) where Π prevailed on the merits
4) and Π suffered damages
abuse of process
Wrongful use of process for an ulterior purpose + act or threat against Π to accomplish purpose
interference with contractual relations
Δ knew of valid K between Π and 3P + acted with purpose of having K
breached or made harder to perform + damages
loss of consortium and services
Π spouse may recover against Δ for injuring Π’s spouse and depriving the benefits of the spousal relationship, including the loss of companionship, comfort, society, and sexual relations
survival action
Cause of action that survives the death of a party, only applicable to injury to property and person, not to personal interests (e.g., defamation, privacy, malicious prosecution) which expire upon death
wrongful death
Actions based on wrongful death provide monetary relief for injury resulting to the spouse and next of kin (but not to creditors).
Recovery is allowed to the extent that the deceased could have recovered in an action had he lived; e.g., decedent’s contributory negligence reduces wrongful death recovery in comparative negligence jx
