Torts Flashcards
What are torts?
A breach of legal duty that approximately causes harm or injury to another; tort law is designed to compensate those who’ve suffered a loss or injury due to another person’s wrongful act
What are the 4 overlapping torts and crimes?
- Assault
- Battery
- Trespass
- Nuisance
What are the 3 major categories of torts?
- Intentional Torts
- Negligence
- Strict Liability
Damage VS Damages
Damage - harm or injury to person or property
Damages - monetary compensation for such harm or injury
Compensatory Damages
compensating or reimbursing the plaintiff for actual losses
Special Damages - compensate monetary losses
General Damages - compensate for non-monetary damages
Punitive Damages
when defendant’s conduct was particularly egregious (outrageous) or reprehensible (shameful)
If you’re suing for DAMAGES what must you argue?
preponderance of evidence (50+%)
If you’re suing for EQUITABLE REMEDIES what must you argue?
clear and convincing evidence (~75%)
What are the 3 kinds of Intentional Torts to the person?
- Assault
- Battery
- False Imprisonment
What is an Intentional Tort?
intentional violation of person or property (fault plus intent)
What is a tort of Assault? (to the person)
intentionally placing someone in fear or apprehension of immediate harmful or offensive contact
What is a tort of Battery? (to the person)
intentional touching that results in an injury; assault resulting in physical contact
What is a tort of False Imprisonment? (to the person)
intentionally detaining someone against their will
What standard must be upheld to determine if the contact was offensive in a tort of battery?
the reasonable person standard
What are the 4 kinds of Intentional Torts to property?
- Trespass to Land
- Conversion
- Trespass to Personal Property (Chattels)
- Waste
What is a tort of trespass to land? (to property)
unpermitted intrusion onto someone’s land
What 3 things could be considered a trespass to land?
- entering onto, above, or below the surface of land that’s owned by another
- causing anything to enter onto land owned by another
- remaining on land owned by another or permitting anything to remain on it
What is a tort of conversion? (to property)
intentionally depriving someone of their personal property
What is the difference between personal property and real property?
Real property is land, buildings, and/or fixtures
Personal Property is MOVABLE
- tangible : solid, liquid, gas
- intangible: stocks, bonds, patents, etc.
What is the ONLY remedy receivable for the tort of conversion?
legal remedy of damages
What is the tort of trespass to personal property? (to property)
whenever someone wrongfully takes or harms the personal property of another or interferes with the lawful owner’s possessions and enjoyment of personal property
What’s the difference between the tort of conversion and the tort of trespass to personal property (chattels)?
Trespass to chattels is a minor interference with another’s chattel (i.e., personal property that is neither real property nor connected to real property). This allows the plaintiff to recover only actual damages caused by the intentional interference with the plaintiff’s chattel through dispossession, use, or intermeddling (e.g, repair costs, loss of use).
Conversion is a serious interference with another’s chattel. The intentional exertion of dominion and control over the chattel must be so substantial that the plaintiff should recover the full value of the chattel.
What is the tort of waste? (to property)
intentionally injuring someone’s future interest in property
When you own something in its entirety, you own it in…
fee simple
What are the 3 kinds of Intentional Torts to economic relations?
- interference
- unfair competition
- disparagement
What is the tort of interference? (to economic relations)
defendant who wrongfully interferes with the plaintiff’s contractual or business relationships
What is the tort of unfair competition? (to economic relations)
false advertising or misappropriation of trade secrets
What is the tort of disparagement? (to economic relations)
derogatory statement/statements is made against any person’s business or a person’s title to his/her property with the intention of discouraging others from doing business with that person
What are the 5 kinds of “other” intentional torts?
- Intentional Infliction of Mental and/or Emotional Distress
- Fraud
- Invasion of Privacy
- Abusive Process
- Malicious Prosecution
What is the tort of intentional infliction of mental and/or emotional distress? (other)
this was expanded into reckless infliction or gross negligence (an intentional failure to perform a manifest duty in reckless disregard of the consequences of such a failure for the life or property of another)
What is the tort of fraud? (other)
- misrepresentation
- of a material fact (significant)
- knowledge or reckless indifference to the truth
- intent to deceive
- reliance (would someone rely on the lie)
- injury
must prove by a preponderance of evidence (50+%)
What is the tort of invasion of privacy? (other)
publishing or otherwise making known or using information relating to a person’s private life and affairs, with which the public has no legitimate concern, without that person’s permission or approval
What is the tort of abusive process? (other)
can apply to any person using a legal process against another in an improper manner to accomplish a purpose for which the process was not designed; abuse of criminal justice system
What is the tort of malicious prosecution? (other)
if a party initiates a lawsuit out of malice and without legitimate legal reason
3 defenses against intentional torts
- lack of intent
- lack of consent
- lack of privilege
What are the 2 kinds of privilege? (context: lack of privilege is one of the 3 defenses against intentional torts AND also with defamation in strict liability)
- absolute privilege (statements made by attorneys and judges in the courtroom during a trial are absolutely privileged, as are statements made by government officials during legislative debate)
- qualified privilege
(statements are made in good faith and the publication is limited to those who have a legitimate interest in the communication, the statements fall within the area of qualified privilege)
What are the 4 things you need to prove in a tort of negligence?
- duty of care
- breach of duty
- proximate cause
- substantial injury
What does “proximate cause” mean?
foreseeability; you start from when the duty of care occurred; if it’s foreseeable the results that happened after the duty of care then the initial subject is liable for all of the things that were foreseeable
How do courts determine if duty of care has been breached?
Reasonable Person Standard: the courts ask how a reasonable person would’ve acted in the same circumstances
What is a supervening event?
- intervening
- independent
- unforeseeable
5 defenses against torts of negligence
- contributory negligence
- comparative negligence
- unavoidable accident
- assumption of risk
- doctrine of last clear chance
Difference between unavoidable accidents and assumptions of risk (context: these two are both defenses against torts of negligence)
unavoidable accidents: accident is not negligent because you can’t be held to the standard of a perfect person
assumption of risk : plaintiff knew of the specific danger
What is strict liability
can be sued with NO fault
What are the 10 kinds of strict liability?
- animals
- extra hazardous activities or things
- attractive nuisance
- nuisance
- workers compensation
- common carriers and innkeepers
- warranties with goods
- vicarious liability
- dram shop act
- defamation
Defenses to strict liabilities
assumption of the risk
Defenses to defamation (strict liability)
consent or privilege
2 kinds of privilege
absolute privilege
qualified privilege
What must you prove:
- criminal case
- civil case (legal remedy)
- civil case (equitable remedy)
- beyond a reasonable doubt (95%)
- preponderance of evidence (50%+)
- clear and convincing evidence (75%)
What are the 5 equitable remedies?
- Injunction (stop!)
- Rescission (cancelling a contract because of a breach)
- Specific Performance (perform a specific act)
- Reformation (modify contract)
- Mandamus (order to an inferior government)
