Torts Flashcards
Battery + Damages
Tort
- D cause harmful or offensive contact with person of another, and
- Acts with intent to cause the contact or apprehension of the contact
Damages - no proof of harm required, nominal allowed
Assault + Damages
Tort
D engages in act that:
1. Causes reasonable apprehension of imminent harmful/offensive bodily contact, and
2. Intends to cause apprehension or the contact itself
No contact required
Mere words generally not enough
Damages - no proof of physical harm required; nominal allowed
IIED + FEAR
D is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes P severe emotional distress
“Severe and outrageous” = introlerable in civilized society
FEAR
* Flagrant indecency
* Exploiting known & special vulnerabilities
* Abusing authority
* Repeated harassment
IIED + Public Figures/Officials
Cannot recover unless can show the words contain a false statement of fact that was made with actual malice (false or reckless disregard for falsity)
IIED + Transferred Intent
Only applicable if:
1. Immediate family member
2. Bystander sees the conduct and suffers physical manifestation of distress, or
3. Different intentional tort
IIED Damages
Emotional distress beyond what a reasonable person should endure
Physical injury not required unless bystander
False Imprisonment
- D intends to confine or restrain another within fixed boundaries
- Action directly or indirectly results in confinement, and
- P is conscious of confinement or harmed by it
Does not include confinement due to D’s negligence
Shopkeeper’s Privilege
Defense to false imprisonment
A shopkeeper can detain a suspected shoplifter for a reasonable time and in a reasonable manner
Defenses to Intentional Torts re Personal Injury
- Consent - express or implied
- Self-Defense - force must be proportionate, cannot be initial aggressor
- Defense to others
- Defense of property - not deadly force
Trespass to Chattels + Damages
Intentional interference with P’s right to possess personal property either by:
1. Dispossessing P of the chattel
2. Using or intermeddling with P’s chattel, or
3. Damaging chattel
Damages - actual damages, nominal, costs of repair
Conversion + Damages
Intentionally committing an act depriving P of possession of chattel or interfering with P’s chattel in a way as to seriously deprive P of the use of the chattel
Damages - full value of chattel at time of conversion - more than T2C
Trespass to Land + Damages
D intentionally causes intentional invasion of someone’s property
Only intent to enter land
Damages - no proof of actual damage required
Duty Rule
A duty of care is owed to all persons who may foreseeably be injured by D’s conduct
Scope of Duty
2 Approaches
Cardozo - duty is owed only if P is member of class of persons foreseeably harmed by the conduct
Andrews - duty to everyone anytime conduct could harm someone
Standard of Care Rule
Reasonably prudent person under the circumstances measured by objective standard
Does more specific duty apply?
CABP
- Common carriers/innkeepers
- Automobile drivers
- Bailors/bailees
- Possessor of Land
Duty to Trespassers
Undiscovered trespassers –> no duty
Discovered/anticipated –> duty to warn/protect from hidden dangers
Attractive Nuisance
Liable for injuries to children trespassing on land if:
1. Artificial condition in place owner knows/has reason to know children are likely to trespass
2. Knows/has reason to know artificial condition poses unreasonably high risk of death or serious bodily harm
3. Children cannot appreciate the danger
4. Utility in maintaining condition is slight compared to risk of injury, and
5. Owner failed to exercise reasonable care
Duty to Licensees
Duty to make property reasonably safe or warn of concealed dangers, no duty to inspect
Licensee - someone with express/implied permission
Duty to Invitees
Duty of reasonable care to inspect property, discovery unreasonably dangerous conditions, take steps to protect invitees
Invitee - someone who enters land for material or business purpose
Breach of Duty Tests
- Reasonably prudent person under the circumstances
- BPL
Special Breach Rules
- Custom
- Statutes - NPS
- Res Ipsa
Custom for Breach
- Professionals - dispositive
- Physicians - informed consent
Negligence Per Se
- P must be in class of persons statute intends to protect
- Accident is the type statute intends to protect against
- Harm was caused by the violation
Res Ipsa Elements
- Accident was of a kind that does not ordinarily occur in absence of negligence
- Caused by agent/instrumentality within D’s exclusive control, and
- Not due to any action by P
Proximate Cause Rule
Scope of liability focuses on whether the harm was foreseeable and there were no superceding causes that break the chain of causation
NIED
Only recoverable if:
1. P was in zone of danger
2. Bystander recover - closely related, present, and personally observed
3. Special relationship - corpse
4. Physical manifestation of distress
Contributory Negligence
If P is negligent in some way, P is completely barred from recovery
Limit - last clear chance doctrine - P can still recover
Pure Comparative Negligence
P’s recovery is reduced by the amount of P’s fault
Modified Comparative Negligence
If P is more at fault than D, P’s recovery is barred
Some jx - P is barred if P is equally at fault as D
3 Types of Strict Liability
- Abnormally dangerous activities
- Wild animals
- Defective products
Abnormally Dangerous Activity factors
- Whether creates foreseeable and highly significant risk of harm even when actor takes due care
- Severity of the harm
- Appropriateness of the location
- Value to the community
Liable for harm that flows from the risk that makes the activity dangerous
Wild Animals
Strictly liable for harm arising from animal’s dangerous propensities
Domestic animals - liable only if dangerous propensity is known to owner
Defenses to Strict Liability
- Contributory negligence - does not bar recovery
- Comparative negligence - depends on jx
- Assumption of risk - complete bar
3 Types of Strict Products Liability
- Manufacturing defect
- Design defect
- Failure to warn
Strict Products Liability Elements
- Product was defective
- Defect existed when product left D’s control, and
- Defect caused P’s injury when product was used in foreseeable way
Manufacturing Defect Test
Product deviated from its intended use
Product does not conform with manufacturer’s own specificiations
Design Defect 2 Tests
- Consumer Expectations Test - defective if it is less safe than the ordinary consumer would expect
- Risk Utility Test - defective if risk outweighs its benefits and there are no reasonable alternative designs
Failure to Warn Test
Failure to warn of a foreseeable risk not obvious to ordinary consumer
Learned intermediary exception
Defenses to Strict Products Liability
- Comparative fault - will reduce recovery
- Contributory negligence - not a bar
- Assumption fo risk - complete bar
- Product misuse/modification/alteration - no bar if misuse/modification/alteration was foreseeable
- Substantial change in product - complete bar
- Disclaimers/waivers - not a bar
Defamation
P must show that D:
1. Made a defamatory statement (false)
2. Of or concerning P
3. Statement was published to 3rd party who understood its defamatory nature
4. Damages P’s reputation
Libel
Written, printed, recorded statements
P can recover general damages
Slander
Spoken defamation
Damages - special damages
Defenses to Defamation
- Truth - absolute defense
- Consent
- Absolute privilege
- Conditional privilege
Intrusion upon Seclusion
D intrudes upon P’s private affairs in manner that is objectionable to a reasonable person
False Light
D:
1. Makes public facts about P
2. That place P in a false light,
3. Which would be highly offensive to a reasonable person
Appropriation of Right to Publicity
Occurs when someone:
1. Appropriate’s another’s likeness or name
2. For D’s advantage
3. Without consent, and
4. Causes injury
Public Disclosure of Private Facts
- D publicizes matter concerning private life of another, and
- Matter publicized is (1) highly offensive to reasonable person and (2) is not legitimate concern to public
Fraud
- False representation
- Scienter - D knows falsity or acted with reckless disregard to falsity
- Intent to induce reliance on statement
- Causation
- Justifiable reliance
- Damages - actual, economic, pecuniary
Negligent Misrepresentation
- D provides false info to P
- D is negligent in preparing the information
- During course of business or profession
- Causing justifiable reliance, and
- P is in (1) contractual relationship with D or (2) P is in small group to benefit
Intentional Interference with Contract
- A valid contract between P and third party
- D knew of contractual relationship
- D intentionally interfered with contract, resulting in breach, and
- Breach caused P damages
