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Torts Flashcards

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1
Q

When does a D’s duty to act arise?

A
  1. D’s conduct created a reasonably foreseeable risk of harm to P; or
  2. D + P have a special relationship
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2
Q

Duty to help others – Special Relationship

A

Please Help Eliminate Safety Concerns Causing Injuries

  • Parent/Child
  • Hospital/patient
  • Employer/employee
  • Shopkeeper/business invitees
  • Common Carrier/passengers
  • Innkeepers/guests
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3
Q

Which is a stronger defense?

No proximate cause; no duty to act

A

No duty to act

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4
Q

Please Help Eliminate Safety Concerns Causing Injuries – stands for?

A

affirmative duty to act based on special relationship

  • Parent/Child
  • Hospital/patient
  • Employer/employee
  • Shopkeeper/business invitees
  • Common Carrier/passengers
  • Innkeepers/guests
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5
Q

Tortious Interference With a K

A

Claim for intentional interference w/ K:

  1. Valid K existed between P + TP
  2. D knew of that K relationship
  3. D intentionally and improperly interfered with K’s performance; and
  4. Interference caused P’s pecuniary loss
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6
Q

Does a mistaken belief that D legally possessed chattel serve as a defense to conversion?

A

NO, even if it is a reasonable belief

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7
Q

Pure Comparative Negligence JDX

A

Default on MBE

Recovery is reduced by the P’s % of fault

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8
Q

Modified Comparative Negligence JDX

A

If P’s L is ≤ 50% –> P’s $ is reduced by her fault

If P’s L is ≥ 50% –> P is barred

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9
Q

Contributory Negligence

A

If P is even 1% negligent –> barred from recovery

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10
Q

Punitive Damages

A

Rarely applied

Imposed to punish + deter:
- outrageous
- malicious
- willful
- wanton
- evil conduct

*not awarded to for neg conduct!

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11
Q

Res Ipsa Loquitor

A

In Neg, this theory allows the jury to infer D’s negligent conduct from circumstantial E when there is no direct E

  1. accident was the kind that would not ordinarily occur in absence of neg
  2. thing that caused harm was under D’s exclusive control
  3. harm was not due to P’s actions
    - this is loosely applied in comp fault jdx
    - in comp fault, courts will reduce $ by P’s own neg
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12
Q

Privilege to Protect Others from Self Harm

A

D is privileged to use reasonable force to protect TP from self harm when:

  1. TP is unable to understand nature & consequences of their actions; and
  2. D reasonably believed that individual is about to commit act likely to cause death or serious bodily harm to themselves

*D can assert this privilege to shield himself from L

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13
Q

Assumption of Risk

A

Defense if the P:

  1. Knew about the risk
  2. of a known harm
  3. voluntarily accepted that risk

CL – complete bar to recovery
Modern – comparative neg (pure & modified)
1. Pure: recovery reduced by P’s fault
2. Modified: if P’s fault <50%, then recovery reduced; if >50%, barred

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14
Q

Does SL Product L apply to servcie providers?

A

NO, only to manufacturers, distributors, sellers

Service providers:
- gym
- doctor
- amusement park

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15
Q

Res Ipsa

A

Negligence is inferred from circumstantial E if:

  1. Accident was the type that does not ordinarily occur in absence of neg
  2. the thing that caused harm was under the ∆’s exclusive control
  3. harm not due to π’s actions
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16
Q

Standard applied if animal strays onto public road and causes harm

A

Negligence

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17
Q

Standard applied wheen livestock or other animals (except cats/dogs) enter another’s land and cause harm

A

SL

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18
Q

How is intent for battery established?

A

Intent req is met if D acted with either:

  1. Purpose –desire to cause contact to π’s person
  2. Knowledge – substantial certainty that such contact will result
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19
Q

Seller of a Component Part – Product L

A

Commercial supplier of a component –> subject to SL only if the component itself is defective–– but not when the component is incorporated into a product that is defective for another reason.

Exception: SL if:
1. supplier substantially participates in the process of integrating the component into the design of the assembled product and that product is defective due to the integration; or
2. component is defective

EX: sand used in manufacturing cement or a switch used in an electrical device

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20
Q

Where does a supplier of components fall in the SL PL chain of distribution

A

The supplies that sell simple components to manufactures, so it is on the top of the chain of distribution before any product is even put together!!

They are not SL for defects unless they substantially participated in the integration/manufacturing of the product, or if the component sold was defective

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21
Q

4 Types of Invasion of Privacy Claims

A
  1. Intrusion upon Seclusion
  2. Appropriation of name or likeness
  3. Public disclosure of private facts
  4. Publicity in a false light
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22
Q

Intrusion Upon Secution –Invasion of Privacy

A
  1. highly offensive
  2. intentional intrusion of
  3. P’s private affairs

EX: easdropping, bugging phones, taking pics of them in fitting room

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23
Q

Appropriation of Name or Likeness –Invasion of Privacy

A
  1. unauthorized
  2. use of P’s name or likeness
  3. for personal benefit

EX: commerical advantage

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24
Q

Public Disclosure of Private Facts –Invasion of Privacy

A
  1. Publicity
  2. given to highly offensive
  3. private matter
  4. concerning P
  5. not of legit public concern
  6. damages
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25
Q

Publicity in False Light –Invasion of Privacy

A
  1. Publicity
  2. given to false info
  3. about P
  4. actual malice
  5. places P in highly offensive & false light
  6. damages
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26
Q

Trespasser

A

Intentionally enters land w/o permission

Traditional: duty to warn/protect only to
KNOWN trespassers

Modern: duty of care to all land entrants (except flagrant trespassers)

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27
Q

Licensee

A

Enters land w/ permission or privilege

ie, social guests, emergency personnel

Traditional –warn of hidden dangers known to D + reasonable care in active operations––NO duty to inspect

Modern: duty of care to all land entrants (except flagrant trespassers)

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28
Q

Invitee –2 types

A

Public Invitee –enters land open to public (church, mall)

Business Invitee–enters land for business purpose

Traditional – duty of reasonable care, including:
1. inspect the property
2. discover unreasonably dangerous conditions
3. protect the invitee from them.

**limited to scope of invitation, if they go outside of scope –> trespasser

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29
Q

NOTE: a person is an invitee if they enter a store consistent with their policies or rules

A

EX: store has policy that repeat customers can get boxes. A enters store to get a box, but does not buy anything. She aks for permission to look around. While looking in the “employee only” she is injured.

Store is responsible for her bc she was an invitee since she entered consistent with store policy

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30
Q

Do you need proof to prevail on an IIED claim?

A

YES – need proof that πsuffered severe emotion distress

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31
Q

When can assault arise?

A
  • words
  • actions
  • actions w/o words –> but P needs to reasonably anticipate that a harmful contact was imminent
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32
Q

Assualt

A
  1. Intentional Act by D
  2. creates a reasonable apprehension in P
    - P must be aware + appreciate risk
  3. of immediate harm or offensive contact to P’s person
    - words alone usually not enough
    - threats of future battery not enough
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33
Q

Battery

A
  1. Intentional
  2. Harmful or offensive contact
  3. to P’s person
  4. by D
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34
Q

Can a π recover for negligence solely based on emotional distress?

No proof of physical or property damage?

A

Generally, no––need some sort of physcial damage

Unless can falls under 1 of the 3 theories for NIED

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35
Q

Three Theories of Recovery for NIED

A
  1. Zone of Danger
  2. Bystander
  3. Special Situation
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36
Q

Zone of Danger –NIED

theory 1 of 3 NIED

A
  1. D’s negligence
  2. Put π
  3. in danger of immediate bodily harm
  4. π suffers serious emotional harm
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37
Q

Bystander – NIED

theory 2 of 3 NIED

A
  1. D negligently injured P’s close relative
  2. P contemporaneously perceived the event
  3. event cause P serious emotional distress
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38
Q

Special Situations –NIED

theory 3 of 3 NIED

A
  1. D negligently:
    (a) delivered erroneous news of death or illness
    (b) mishandled corpse
    (c) contaminated food w/ repulsive foreign object
  2. Caused P’s serious emotional distress
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39
Q

Fraud or Intentional Misrepresentation

A
  1. D knowingly or recklessly
  2. misrepresented a material fact
  3. w/ intent to induce P’s reliance
  4. P justifiably relied on misrepresentation
  5. suffered pecuniary/$ loss
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40
Q

Learned Intermediary Rule

A

Defense in SL PL Failure to warn cases involving drugs

Prescription durge or medical device is not defective due to inadequate warning or instructions ONLY WHEN manufacture warned the prescribing DR about the risk associated w/ product

rule does not apply to OOC, can sue manufacture here

41
Q

What type of harm do you need for PL

A

Proof of physical harm––bodily or property harm (other than to the item itself)

Economic loss alone –> NOT sufficient

42
Q

Is there a SL PL claim if the only damage is to the product itself, not to the P’s body or their other property?

A

NO

43
Q

Nondelegable duties

A

Duties that cannot be assigned to another to avoid L

  1. Maintain safe conditions on premises open to public (store, restaurant)
  2. Safely perform activities that:
    - abnormally or highly dangerous
    - infringe on private property right
    - regulated by law
    - conducted in public space
44
Q

False Imprisonment

A
  1. Intentional act
  2. by D
  3. resulting in P’s restraint or confinement
  4. in a bounded area

Shopkeeper’s Privilege –can detain if:
1. reasonable cause to to believe theft occurred
2. detention is reasonable in manner, length, scope

45
Q

IIED

A
  1. extreme + outrageous conduct
  2. causing severe emotional distress in P

Do not need physical injury

conduct needs to be EO to reasonable person

46
Q

Exceptions to when IIED conduct does not have to be reasonable?

A
  1. D targets P’s known sensitivity or weakness,
  2. D’s conduct is continuous or repetitive,
  3. D targets a P who is a member of a “fragile” class (e.g., elderly, children, pregnant women), or
  4. D is a common carrier or innkeeper
47
Q

IIED: Bystander

A
  1. Extreme and outrageous conduct by D
  2. Severe emotional distress in P
  3. P was present at the time;
  4. P was a close relative of TP, or distress resulted in bodily harm; and
  5. D knew these facts
48
Q

Trespass to Land

A
  1. physical entry (intent to enter land)
  2. of P’s property
  3. w/o consent

Intent satisfied even if did not know it was trespassory

49
Q

Trespass to Chattel

A

Less severe than conversion

  1. intentional interference
  2. w/ P’s right to possess
  3. intangible personal property
  4. P suffered some loss of use

Remedy: P can recover cost of repair or rental value of chattel

50
Q

Conversion

A

More severe than T2C

  1. intentional interference
  2. w/ P’s right to possess
  3. intangible personal property
  4. P suffered some loss of use

Remedy: P can recover full market value at the time of conversion or repossess the chattel (replevin)

51
Q

Defense – Consent

A

Defense to all intentional torts
- capacity needed to get consent

scope: D can be L if action exceeds consent

52
Q

Self-Defense, Defense of Others, & Defense of Property

A
  1. reasonable belief that tort is being or about to be committed
  2. Property timing – tort must be in progress or imminent
  3. Reasonable force –must be proportionate to threat of harm
    - Deadly force—allowed if D reasonably believes a life is in danger (never permitted to protect property alone)
53
Q

Overview of Necessity – Defense

A

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger

Two types:
1. public
2. private

54
Q

Public Necessity – Defense

A
  1. D’s invasion of P’s property
  2. must be reasonably necessary to
  3. protect the community or a large group of people

Absolute defense—P cannot recover any damages

55
Q

Private Necessity –Defense

A
  1. D invades P’s property
  2. to protect his own property or self or small group

Limited defense—P can only recover damages for actual harm to D’s property, unless D trespassed for P’s benefit

56
Q

Can an owner repel trespasser who trespassed out of necessity?

A

Yes, but will be L for damage caused

57
Q

Recapture of Chattel

A

D has a legal privilege to use peaceful means to recover possession of chattel taken unlawfully, and to use reasonable, non-deadly force if in fresh pursuit of the chattel-taker

58
Q

Defamation

A
  1. false statement
  2. concerning P
  3. published to TP
  4. harmful to P’s reputation

L for republication – same L as OG publisher

TRUTH is a complete defense

59
Q

Defamation: Constuttional Considerations

A

Public officials, figures, public matter of concern

Additional Element:
1. Fault
- public figure/official –actual malice
- private figure – neg standard

  1. Falsity
60
Q

Defenses to Defamation

A
  1. consent
  2. truth
  3. privilege
61
Q

Negligent Misrepresentation

A
  1. D misrepresents a past or present material fact in a business or professional setting
  2. Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
  3. Actual and justifiable reliance by P
  4. Damages — P must suffer monetary loss
62
Q

Intentional Interference With Business Relations

“tortious interference with contract”

A

Arises when a third party interferes with an existing contract

  1. P has valid K
  2. D knows about K
  3. D intentionally interferes w/ that K
  4. D’s interference causes breach/termiantion in P’s K
  5. Damages
63
Q

Negligence: Elements + Standard

A

objective standard by comparing D’s actions to a reasonable person under the same or similar circumstances

  1. duty of care
  2. breach
  3. causation (actual + proximate)
  4. damages
64
Q

Duty of Care

A

D owes a duty of care—to behave like a reasonably prudent person— to all foreseeable plaintiffs in the zone of danger

RPP

65
Q

Duty of Care – Foreseeable Vs

A

Those w/in zone of danger

Rescuer’s exception: D can be L for rescuer’s injuries, even if unforseeable
- does not apply to emergency personnel

66
Q

Who is owed a specialized satndard of care?

Hint: 6

A
  1. children
  2. common carries + inn keepers
  3. Custom
  4. Professionals
  5. Statutory standard of care
  6. Owners/ occupiers of land
67
Q

Children –Standard of Care

A

held to the standard of care of a reasonable child of similar age, education, intelligence, and experience

Generally, young children (i.e., under 5) lack capacity to be held negligent

Adult activities exception—children engaged in adult activities must conform to an adult standard of care in that activity

68
Q

Common Carrier/ Innkeeper – Standard of Care

A

held to an “utmost care” standard

Liable for even slight negligence to passengers or guests

69
Q

Custom or usage in an industry – Standard of Care

A

can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty, nor does compliance with an industry custom automatically establish a lack of negligence

*not dispositive

70
Q

Professionals – Standards of Care

A

must act with the knowledge and skill of a member of their profession in good standing in similar communities

Medical professionals—held to national standard of care

71
Q

Statutory Standard of Care

A

law’s standard will replace the boilerplate standard

  1. Harm –P must prove that harm suffered is the type the statute was meant to prevent;
  2. Class –P is in class of victims statute was meant to protect; and
  3. Statute applies a standard of conduct—says what to do or not to do
72
Q

Negligence Per Se

A

violation of the statute means P must only prove causation, not breach of duty

Majority: that violation of the statute establishes a conclusive presumption of duty and breach of duty

Compliance does not automatically clear D of liability

73
Q

Attractive Nuisance for Child Trespassers

A

Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:

  1. Aware or should be aware of a dangerous condition on property;
  2. Knows or should know children are in the vicinity;
  3. Condition is likely to cause injury given a child’s inability to appreciate the risk; and
  4. Magnitude of the risk outweighs its utility or the expense of remedying it
74
Q

What are police & firefighters considered?

A

Licensees

But cannot recover for injuries suffered in the line of duty if the injury results from a risk inherent in the job

75
Q

2 Ways to Prove Breach of Duty

A
  1. Breached applicable standard of care
  2. Res Ipsa Loquitor
76
Q

Actual Cause

A

Test: But for

Multiple Causes –> substantial factor Test

Possible Causes –> Burden-shifting Test

77
Q

Substantial Factor Test

A

Actual Cause Test for Multiple Causes

D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury

Application — used if multiple causes bring about P’s injury and any one of them alone would have caused the injury

E.g., fires start on D1’s land and D2’s land, each of which spreads to P’s land and destroys P’s house

78
Q

Burden Shifting Test

A

Actual Cause Test for Possible Causes

Application — used if multiple Ds act (often simultaneously), only one causes P’s injury, but it’s unclear which D caused the injury

E.g., P is hit by a stray bullet at a busy firing range and it’s unknown which shooter hit P

BURDEN of proving actual cause shifts to Ds
- If no D can prove another D was responsible, all Ds are jointly and severally liable

79
Q

Proximate Cause

A

Establishes that it is fair under the law to hold D responsible for P’s injuries
- usually left to fact finder to determine

Foreseeability — measuring stick for proximate cause

“Eggshell Plaintiff Rule” — D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable

80
Q

Proximate Cause – Direct + Indirect Causes

A

Direct causes — if P’s injury is the direct consequence of D’s negligent conduct, D is L unless the outcome is unusually bizarre or unpredictable

Indirect causes — intervening forces that occur after D’s conduct to cause P’s injuries will NOT cut off D’s L if they are foreseeable

81
Q

Intervening Causes that are forseeable

A

It is a normal response or reaction to D’s negligent act, or

D’s negligence increased the risk that an intervening force would cause harm to P

Injuries to rescuers

82
Q

What types of damages can a P NOT recover

A

Interest from the date of damage in personal injury cases

Attorneys’ fees

83
Q

SL applies to what cases?

A
  • ADA
  • animal conduct
  • PL
84
Q

Prima Facia Case –SL

A
  1. nature of D’s activity imposes absolute duty to make safe
  2. causation
  3. damages to P’s person or property
85
Q

Defenses to SL

A

assumption of risk

comaprative negligence

86
Q

SL: Abnormally Dangerous Conditions

A
  1. severe risk
  2. cannot be made safe
  3. uncommon condition/activity

Injury MUST result from ADA

87
Q

SL: Animal

A

Wild animal –> SL

Domestic –> Neg, unless you know of dangerous propensity, then SL

Trespassers –> generally barred from recovery under SL

88
Q

Who can sue under PL

A

forseeable users

bystanders

89
Q

3 types of pL

A
  1. manufacturing defect
  2. Design defect
  3. Inadequate warning
90
Q

Inadequate warning – PL

A

manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use

Includes duty to warn of foreseeable dangers from misuse

  1. product failed
  2. to have clear + complete warnings
  3. of any danger
  4. that would not have been ordinarily apparent
91
Q

PL –Negligence Theory

A

Way easier to establish under SL than Neg

  1. duty of care –each commerical seler in the stream of commerce owed duty to all foreseeable product users
  2. breach – neg lead to supplying defective product
  3. causation
  4. damages
92
Q

Implied Warranties

A

Implied in every sale
1. merchantability
2. fitness for particular purpose

  1. Warranty — existence of an implied warranty
  2. Breach — product fails to live up to applicable warranty
  3. Causation — actual and proximate
  4. Damages — personal, property, and economic are all recoverable
93
Q

Private Nuisance

A
  1. substantial + unreasonable interference
  2. w/ another’s use or enjoyment of her property
94
Q

Public Nuisance

A
  1. unreasonable interference
  2. with health, safety, property rights
  3. of community at large

Need to have unique damage not suffered by public at large

95
Q

Joint & Several L

A

arises if the acts of two or more Ds combine to produce a single indivisible injury

Each D is jointly and severally liable for the entire harm if his actions were a factor in bringing about P’s injury

96
Q

Contribution

A

D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid

97
Q

Indemnity

A

involves shifting the entire loss between or amongst Ds

98
Q

When are liability waivers allowed? when prohibited?

A

Allowed –P assented + waiver covers type of conduct that caused P harm

Prohibited – violation of public policy: when D is:
- P’s employer
- A hotel or common carrier
- Public servant or service
- Has substantially more bargaining power

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