Torts Flashcards
When does a D’s duty to act arise?
- D’s conduct created a reasonably foreseeable risk of harm to P; or
- D + P have a special relationship
Duty to help others – Special Relationship
Please Help Eliminate Safety Concerns Causing Injuries
- Parent/Child
- Hospital/patient
- Employer/employee
- Shopkeeper/business invitees
- Common Carrier/passengers
- Innkeepers/guests
Which is a stronger defense?
No proximate cause; no duty to act
No duty to act
Please Help Eliminate Safety Concerns Causing Injuries – stands for?
affirmative duty to act based on special relationship
- Parent/Child
- Hospital/patient
- Employer/employee
- Shopkeeper/business invitees
- Common Carrier/passengers
- Innkeepers/guests
Tortious Interference With a K
Claim for intentional interference w/ K:
- Valid K existed between P + TP
- D knew of that K relationship
- D intentionally and improperly interfered with K’s performance; and
- Interference caused P’s pecuniary loss
Does a mistaken belief that D legally possessed chattel serve as a defense to conversion?
NO, even if it is a reasonable belief
Pure Comparative Negligence JDX
Default on MBE
Recovery is reduced by the P’s % of fault
Modified Comparative Negligence JDX
If P’s L is ≤ 50% –> P’s $ is reduced by her fault
If P’s L is ≥ 50% –> P is barred
Contributory Negligence
If P is even 1% negligent –> barred from recovery
Punitive Damages
Rarely applied
Imposed to punish + deter:
- outrageous
- malicious
- willful
- wanton
- evil conduct
*not awarded to for neg conduct!
Res Ipsa Loquitor
In Neg, this theory allows the jury to infer D’s negligent conduct from circumstantial E when there is no direct E
- accident was the kind that would not ordinarily occur in absence of neg
- thing that caused harm was under D’s exclusive control
- 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
Privilege to Protect Others from Self Harm
D is privileged to use reasonable force to protect TP from self harm when:
- TP is unable to understand nature & consequences of their actions; and
- 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
Assumption of Risk
Defense if the P:
- Knew about the risk
- of a known harm
- 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
Does SL Product L apply to servcie providers?
NO, only to manufacturers, distributors, sellers
Service providers:
- gym
- doctor
- amusement park
Res Ipsa
Negligence is inferred from circumstantial E if:
- Accident was the type that does not ordinarily occur in absence of neg
- the thing that caused harm was under the ∆’s exclusive control
- harm not due to π’s actions
Standard applied if animal strays onto public road and causes harm
Negligence
Standard applied wheen livestock or other animals (except cats/dogs) enter another’s land and cause harm
SL
How is intent for battery established?
Intent req is met if D acted with either:
- Purpose –desire to cause contact to π’s person
- Knowledge – substantial certainty that such contact will result
Seller of a Component Part – Product L
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
Where does a supplier of components fall in the SL PL chain of distribution
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
4 Types of Invasion of Privacy Claims
- Intrusion upon Seclusion
- Appropriation of name or likeness
- Public disclosure of private facts
- Publicity in a false light
Intrusion Upon Secution –Invasion of Privacy
- highly offensive
- intentional intrusion of
- P’s private affairs
EX: easdropping, bugging phones, taking pics of them in fitting room
Appropriation of Name or Likeness –Invasion of Privacy
- unauthorized
- use of P’s name or likeness
- for personal benefit
EX: commerical advantage
Public Disclosure of Private Facts –Invasion of Privacy
- Publicity
- given to highly offensive
- private matter
- concerning P
- not of legit public concern
- damages
Publicity in False Light –Invasion of Privacy
- Publicity
- given to false info
- about P
- actual malice
- places P in highly offensive & false light
- damages
Trespasser
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)
Licensee
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)
Invitee –2 types
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
NOTE: a person is an invitee if they enter a store consistent with their policies or rules
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
Do you need proof to prevail on an IIED claim?
YES – need proof that πsuffered severe emotion distress
When can assault arise?
- words
- actions
- actions w/o words –> but P needs to reasonably anticipate that a harmful contact was imminent
Assualt
- Intentional Act by D
- creates a reasonable apprehension in P
- P must be aware + appreciate risk - of immediate harm or offensive contact to P’s person
- words alone usually not enough
- threats of future battery not enough
Battery
- Intentional
- Harmful or offensive contact
- to P’s person
- by D
Can a π recover for negligence solely based on emotional distress?
No proof of physical or property damage?
Generally, no––need some sort of physcial damage
Unless can falls under 1 of the 3 theories for NIED
Three Theories of Recovery for NIED
- Zone of Danger
- Bystander
- Special Situation
Zone of Danger –NIED
theory 1 of 3 NIED
- D’s negligence
- Put π
- in danger of immediate bodily harm
- π suffers serious emotional harm
Bystander – NIED
theory 2 of 3 NIED
- D negligently injured P’s close relative
- P contemporaneously perceived the event
- event cause P serious emotional distress
Special Situations –NIED
theory 3 of 3 NIED
- D negligently:
(a) delivered erroneous news of death or illness
(b) mishandled corpse
(c) contaminated food w/ repulsive foreign object - Caused P’s serious emotional distress
Fraud or Intentional Misrepresentation
- D knowingly or recklessly
- misrepresented a material fact
- w/ intent to induce P’s reliance
- P justifiably relied on misrepresentation
- suffered pecuniary/$ loss
Learned Intermediary Rule
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
What type of harm do you need for PL
Proof of physical harm––bodily or property harm (other than to the item itself)
Economic loss alone –> NOT sufficient
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?
NO
Nondelegable duties
Duties that cannot be assigned to another to avoid L
- Maintain safe conditions on premises open to public (store, restaurant)
- Safely perform activities that:
- abnormally or highly dangerous
- infringe on private property right
- regulated by law
- conducted in public space
False Imprisonment
- Intentional act
- by D
- resulting in P’s restraint or confinement
- 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
IIED
- extreme + outrageous conduct
- causing severe emotional distress in P
Do not need physical injury
conduct needs to be EO to reasonable person
Exceptions to when IIED conduct does not have to be reasonable?
- D targets P’s known sensitivity or weakness,
- D’s conduct is continuous or repetitive,
- D targets a P who is a member of a “fragile” class (e.g., elderly, children, pregnant women), or
- D is a common carrier or innkeeper
IIED: Bystander
- Extreme and outrageous conduct by D
- Severe emotional distress in P
- P was present at the time;
- P was a close relative of TP, or distress resulted in bodily harm; and
- D knew these facts
Trespass to Land
- physical entry (intent to enter land)
- of P’s property
- w/o consent
Intent satisfied even if did not know it was trespassory
Trespass to Chattel
Less severe than conversion
- intentional interference
- w/ P’s right to possess
- intangible personal property
- P suffered some loss of use
Remedy: P can recover cost of repair or rental value of chattel
Conversion
More severe than T2C
- intentional interference
- w/ P’s right to possess
- intangible personal property
- P suffered some loss of use
Remedy: P can recover full market value at the time of conversion or repossess the chattel (replevin)
Defense – Consent
Defense to all intentional torts
- capacity needed to get consent
scope: D can be L if action exceeds consent
Self-Defense, Defense of Others, & Defense of Property
- reasonable belief that tort is being or about to be committed
- Property timing – tort must be in progress or imminent
- 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)
Overview of Necessity – Defense
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
Public Necessity – Defense
- D’s invasion of P’s property
- must be reasonably necessary to
- protect the community or a large group of people
Absolute defense—P cannot recover any damages
Private Necessity –Defense
- D invades P’s property
- 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
Can an owner repel trespasser who trespassed out of necessity?
Yes, but will be L for damage caused
Recapture of Chattel
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
Defamation
- false statement
- concerning P
- published to TP
- harmful to P’s reputation
L for republication – same L as OG publisher
TRUTH is a complete defense
Defamation: Constuttional Considerations
Public officials, figures, public matter of concern
Additional Element:
1. Fault
- public figure/official –actual malice
- private figure – neg standard
- Falsity
Defenses to Defamation
- consent
- truth
- privilege
Negligent Misrepresentation
- D misrepresents a past or present material fact in a business or professional setting
- Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
- Actual and justifiable reliance by P
- Damages — P must suffer monetary loss
Intentional Interference With Business Relations
“tortious interference with contract”
Arises when a third party interferes with an existing contract
- P has valid K
- D knows about K
- D intentionally interferes w/ that K
- D’s interference causes breach/termiantion in P’s K
- Damages
Negligence: Elements + Standard
objective standard by comparing D’s actions to a reasonable person under the same or similar circumstances
- duty of care
- breach
- causation (actual + proximate)
- damages
Duty of Care
D owes a duty of care—to behave like a reasonably prudent person— to all foreseeable plaintiffs in the zone of danger
RPP
Duty of Care – Foreseeable Vs
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
Who is owed a specialized satndard of care?
Hint: 6
- children
- common carries + inn keepers
- Custom
- Professionals
- Statutory standard of care
- Owners/ occupiers of land
Children –Standard of Care
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
Common Carrier/ Innkeeper – Standard of Care
held to an “utmost care” standard
Liable for even slight negligence to passengers or guests
Custom or usage in an industry – Standard of Care
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
Professionals – Standards of Care
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
Statutory Standard of Care
law’s standard will replace the boilerplate standard
- Harm –P must prove that harm suffered is the type the statute was meant to prevent;
- Class –P is in class of victims statute was meant to protect; and
- Statute applies a standard of conduct—says what to do or not to do
Negligence Per Se
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
Attractive Nuisance for Child Trespassers
Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:
- Aware or should be aware of a dangerous condition on property;
- Knows or should know children are in the vicinity;
- Condition is likely to cause injury given a child’s inability to appreciate the risk; and
- Magnitude of the risk outweighs its utility or the expense of remedying it
What are police & firefighters considered?
Licensees
But cannot recover for injuries suffered in the line of duty if the injury results from a risk inherent in the job
2 Ways to Prove Breach of Duty
- Breached applicable standard of care
- Res Ipsa Loquitor
Actual Cause
Test: But for
Multiple Causes –> substantial factor Test
Possible Causes –> Burden-shifting Test
Substantial Factor Test
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
Burden Shifting Test
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
Proximate Cause
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
Proximate Cause – Direct + Indirect Causes
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
Intervening Causes that are forseeable
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
What types of damages can a P NOT recover
Interest from the date of damage in personal injury cases
Attorneys’ fees
SL applies to what cases?
- ADA
- animal conduct
- PL
Prima Facia Case –SL
- nature of D’s activity imposes absolute duty to make safe
- causation
- damages to P’s person or property
Defenses to SL
assumption of risk
comaprative negligence
SL: Abnormally Dangerous Conditions
- severe risk
- cannot be made safe
- uncommon condition/activity
Injury MUST result from ADA
SL: Animal
Wild animal –> SL
Domestic –> Neg, unless you know of dangerous propensity, then SL
Trespassers –> generally barred from recovery under SL
Who can sue under PL
forseeable users
bystanders
3 types of pL
- manufacturing defect
- Design defect
- Inadequate warning
Inadequate warning – PL
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
- product failed
- to have clear + complete warnings
- of any danger
- that would not have been ordinarily apparent
PL –Negligence Theory
Way easier to establish under SL than Neg
- duty of care –each commerical seler in the stream of commerce owed duty to all foreseeable product users
- breach – neg lead to supplying defective product
- causation
- damages
Implied Warranties
Implied in every sale
1. merchantability
2. fitness for particular purpose
- Warranty — existence of an implied warranty
- Breach — product fails to live up to applicable warranty
- Causation — actual and proximate
- Damages — personal, property, and economic are all recoverable
Private Nuisance
- substantial + unreasonable interference
- w/ another’s use or enjoyment of her property
Public Nuisance
- unreasonable interference
- with health, safety, property rights
- of community at large
Need to have unique damage not suffered by public at large
Joint & Several L
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
Contribution
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
Indemnity
involves shifting the entire loss between or amongst Ds
When are liability waivers allowed? when prohibited?
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
