TORTS Flashcards
What is an abnormally dangerous activity?
An activity is characterized as abnormally dangerous if it involves a substantial risk of serious harm to a person or property even if reasonable care is exercised. For example, fumigation uses toxic chemicals and so is an abnormally dangerous activity. Anyone engaging in an abnormally dangerous activity is STRICTLY LIABLE.
What torts come under invasion of privacy?
4 small torts:
1. Appropriation - D uses P’s name/image for commercial purposes
2. Intrusion - invasion of P’s seclusion that would be highly offensive to a reasonable person
3. False Light - widespread dissemination of a material falsehood about P that would be highly offensive to average person
4. Disclosure - widespread dissemination of confidential info about P that would be offensive to the ordinary person
Explain appropriation under the laws of privacy and the exception
To establish a prima facie case of invasion of privacy by appropriation of P’s picture or name, you only need to prove: unauthorized use by D of P’s picture/name for D’s commercial advantage. NOTE - liability is limited to use of P’s picture or name in connection with promotion/advertisement of a product or service. AND newsworthy exception: can put someone’s image in a newspaper.
Explain Disclosure under the laws of privacy and any exceptions
Prima facie case =
(1) publication/public disclosure by D of private info about D, not generally known to public; and
(2) matter made public is such that its disclosure would be highly offensive to a reasonable person
(3) facts disclosed are NOT newsworthy = balance of social value of facts published vs. intrusion into private affairs
Under which theories can a plaintiff bring a products liability claim?
- Intent
- Negligence
- Strict Liability
- Implied warranties
- Express warranties
When does strict liability apply to a products liability claim?
When there is:
(1) A commercial supplier of a product
(2) Producing or selling a defective product
(3) Actual and proximate cause
(4) Damages
P must prove that defect existed when product left D’s control and product must reach P without substantial alteration.
What is conversion and how is it established
An INTENTIONAL tort that occurs when a D intentionally commits an act depriving the P of possession of her chattel or interferes with the P’s chattel in a manner so serious as to deprive the P use of the chattel. I.e. it results in the complete loss of an item (unlike trespass to chattel). Must prove:
1. Act by D interfering with P’s right of possession of chattel
2. Intent to do the act
3. Causation
4. Damages
To what kind of property does conversion apply?
Limited to tangible personal property and intangibles that have been reduced to physical from (e.g. a promissory note) and documents to which titled to a chattel is merged (e.g. a bill of lading/warehouse receipt).
What are the remedies for conversion and when do they apply?
- Damages = the full value at the TIME of CONVERSION
- Replevin = chattel returned
When are/aren’t punitive damages issued?
Generally, NOT available in negligence cases. Given in cases where D’s conduct was ‘wanton and willful’, reckless or malicious.
What damages can a P receive for intentional torts?
- Compensatory Damages - compensate P for actual losses/harm suffered as a result of the tort (= special or general)
- Punitive Damages - punish D for intentional misconduct (D must have been reckless or malicious)
- Nominal Damages - where P has suffered little/no actual harm - awarded to recognize the legal right that has been violated.
- Injunctive Relief - in addition to or instead of monetary damages, a court may issue an injunction, which is a court order requiring the defendant to stop or refrain from certain actions. Injunctive relief is more common in cases where ongoing harm is threatened or where monetary damages are not sufficient.
Does Conversion apply where the actor does not know that the item belongs to someone else?
Yes! Conversion occurs when an actor intentionally interacts with an item that is the personal property of another so as to deprive the rightful owner of possession. It is irrelevant whether the actor knows that the item belongs to another individual (even if they had reasonable belief) - liability will not be defeated.
If someone is acting under the orders of someone else it does not defeat liability - they just have to intentionally interact and so deprive someone of possession of the item.
(The only intent required is the intent to perform the act).
When is a warning required on a product?
Most jurisdictions = required when the product is dangerous in a non-obvious way, the manufacturer knows about the danger and the danger is present when the product is used as it is intended or used in another reasonable and foreseeable way. Suppliers must anticipate reasonably foreseeable uses, even if they are ‘misuses’ of the product.
What must the P show to prove a ‘defective design’ in products liability?
P must show a reasonable alternative design, i.e. that a less dangerous modification or alternative was economically feasible and practical (i.e. doesn’t interfere with product’s primary purpose).
Economic loss and tort law
As a matter of public policy, courts will not find liability for purely economic losses in tort law (that is what contract law is for). E.g. in a negligence case, courts are unlikely to find proximate cause for a third party that was injured as a result of a party’s negligence where the damages are solely economic damages (i..e not accompanied by physical harm).
But-for in negligence, what to remember?
To establish causation in negligence, the P must address both actual and proximate causation. Actual = but-for and proximate = foreseeable. SO if there is a situation where a company breaches a statute by not having a required element (e.g. a cruise co without a req’d no. of lifeboats), if harm then ensues that could NOT have been prevented, even if the co had complied with the statute, the breach of the statute is NOT the cause of the harm - it does not meet the causation tests. i.e. the harm would have happened with/without the co’s breach.
What is required for a claim of IIED?
P must prove that a D engaged in extreme or outrageous conduct with an intent to cause severe emotional distress, causation and damages (severe emotional distress).
No physical injury is required.
What is ‘outrageous conduct’ under IIED?
Conduct that transcends all bounds of decency tolerated by society. Factors:
- repetitive in nature (harassment etc)
- D is a common cattier or an inn keeper e.g. bus driver making insulting remarks to passengers
- P is a member of a fragile class of persons (young children, elderly, pregnant)
- known sensitivity - D deliberately targeting P’s sensitivity
In the event of trespass, how can the landowner defend themselves legally?
Generally - one may use reasonable force to prevent the commission of a tort against her property. A request to desist must precede the use of force, unless the circs make it clear that the request would be futile or dangerous. SO a landowner can use reasonable force to prevent or end a trespasser’s intrusion upon his land to protect his property. He is NOT privileged to use force that threaten serious bodily injury unless the landowner was himself in danger of serous bodily harm.
Abnormally dangerous activities = a strict liability tort but what is the extent of the liability for the D?
- The D is only liable to foreseeable Ps - persons to whom a reasonable person would have foreseen a risk of harm under the circs.
- The harm must result from ‘normally dangerous propensity’ - i.e. the kind of danger to be anticipated from the dangerous animal or abnormally dangerous activity.
What are the requirements for negligent infliction of emotional distress?
To recover, P must: (i) have been in the ‘zone of danger’ and (ii) must suffer physical symptoms from the distress.
What are the exceptions to the requirements of NIIED?
- When there is a special rship between D and P and a duty arises such that D’s negligence creates a great likelihood of emotional distress e.g. the mishandling of a relative’s corpse by mortuary OR dr negligently confuses patient’s file and tells patient he has a terminal illness.
- Bystander not within zone of danger exception - where (i) P and person injured by D are closely related , (ii) P was present at the scene of injury and (iii) P personally observed/perceived the event (most states also drop req for physical symptoms in this case).
What kind of liability is imposed for damages caused by products?
Strict liability!
What must a plaintiff prove to recover under a strict liability claim for products liability?
The P must prove that the defect existed when the product left the D’s control. If its not clear who caused the defect and when it occurred - i.e. a reasonable jury could believe either party, so the decision should be left to a jury.
What is the economic loss doctrine?
Parties are prohibited from recovering in tort when the negligence of another results in purely economic loss, as opposed to personal injury or property damage. E.g. where the only harm suffered by the P is lost revenue, a strict product liability claim would not be viable to recover those damages.
When is contributory negligence/vicarious liability imputed?
- employer/employee - contrib negligence of employee/agent acting in scope of employment or the tortious act was authroized or instructed by the employer. PAGE 89 1L book
What 3 things need to be established for a prima facie case for intentional tor liability?
- Act (by D)
- Intent; and
- Causation
What is an ‘act’?
A volitional movement by the D e.g. if you put your hand out to break a fall and in doing so you struck someone else, the movement may have been reflexive BUT it was still dictated by the mind and so = volitional.
BUT - epileptic attack where you strike someone during it is NOT a volitional act.
What is intent?
Intent of the actor to bring about the consequences that are the basis of the tort.
Intent IF his PURPOSE in acting is to bring about these consequences OR he KNOWS with substantial certainty that these consequences will result.
Can you still be liable for an unintended injury?
YES! IF you intend to bring about ‘basis of the tort’ consequences.
E.g. You push B and they break their arm. You did not intend for them to break their arm but by pushing them you gave rise to a cause of action - battery. The consequences at the basis of battery are ‘harmful and offensive contact to the P’s person’ SO your actions brought about the consequences even if you did not intend that B broke his arm.
Transferred intent can only be invoked when the tort intended and tort that results are:
- Assault
- Battery
- False imprisonment
- Trespass to land
- Trespass to chattels
What is necessary to establish a prima facie case for intentional tort liability?
- Act by defendant;
- Intent; and
- Causation.
When will a shoplifting detention be privileged? What conditions must be satisfied?
The following conditions must be satisfied:
1. There must be a reasonable belief as to the fact of theft;
2. The detention must be conducted in a reasonable manner and only nondeadly force can be used; and
3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation.
For ‘outrageous conduct’ under IIED, what must be proved?
Outrageous conduct is conduct that transcends all bounds of decency tolerated by society.
If conduct is not normally outrageous, how may it become so?
- It is continuous in nature
- It is committed by a certain type of D (common carriers or innkeepers may be liable even for mere “gross insults”)
- It is directed toward a certain type of P (children, elderly persons, someone who is pregnant, supersensitive adults if the sensitivities are known to defendant)
Explain the requirements for IIED bystander cases
- The P was present at the time
- The distress resulted in bodily harm, OR the P was a close relative of the third party; and
- The D KNEW these facts.
NOTE - P does not need to establish these requirements if she shows that the D had a design or purpose to cause severe distress to P.
What are the elements for a prima facie case of negligence
- The existence of a legal duty owed by the D to that particular P;
- Breach of that duty;
- Actual and proximate cause; and
- Damages
To whom is a DoC owed?
All foreseeable plaintiffs, i.e. the class of persons who were foreseeably endangered by the D’s negligent conduct.
When is a rescuer a foreseeable plaintiff?
A rescuer is a foreseeable P when the D negligently put themselves/a 3rd person in peril
Danger invites rescue!
What is the firefighter’s rule?
Firefighters and police officers are barred by the “firefighter’s
rule” from recovering for injuries caused by the inherent risks
of their jobs.
What is the basic standard of care owed under the duty?
Reasonably prudent person standard, i.e. did the D act with ordinary care?
OBJECTIVE standard - measured against what the average person would do.
All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims.
What happens where, in a negligent outcome, two or more causes have combined to cause an injury but none of the acts standing alone would have been sufficient? How are damages awarded?
But for any of the individual acts, the injury would NOT have occurred.
SO even though the P’s damages resulted from negligence of 2 entities, neither sufficient to cause the full extend of the harm, the combined negligence satisfied the but for test.
The P can proceed against ONE party for all of his loss and this one party can then argue the other parties’ liability in order to apportion or limit damages/implead them as a third party defendant or pursue an action for contribution after the judgment.
The absence of all the culpable parties from P’s action does NOT affect the D’s liability as jointly liable concurrent torfeasor, for the entire amount of P’s awarded damages.
Is a Plaintiff required to introduce evidence to apportion responsibility between 2 negligent parties?
No, this is not for the P to do. The D will be liable for the entire amount of damages as a jointly liable concurrent tortfeasor and has several options to recoup damages.
Duty of care to unborn children - prenatal injuries. How might the parents of a child recover from a Dr’s failure to diagnose a congential defect or properly perfrom a contraceptive procedure?
A duty of care is owed to a viable fetus.
HOWEVER, failure to diagnose a congenital defect/properly perform a contraceptive procedure does NOT permit an unborn, unwanted child to recover damages for ‘wrongful life’ (action brought by a child, a rarely successful claim, accepted by very few states).
The PARENTS (not the child) may recover economic damages for ‘wrongful birth’ and ‘wrongful pregnancy’.
Wrongful birth = failure to diagnose the defect
Wrongful pregnancy = failure to properly perform a contraceptive procedure.
Generally - mother can recover damages for the medical expenses of labor and pain and suffering. Where child = disabled, patents may be able to recover damages for additional medical expenses of caring for child and in some states, may recover emotional distress too.
What is nuisance?
It is the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability.
What is a private nuisance?
A substantial, unreasonable interference with another private individual’s use or enjoyment of property he actually possesses or to which he has a right of immediate possession.
It does not have to be continuous.
How can a plaintiff prevail on a private nuisance claim?
The P most demonstrate that:
The interference with P’s right in his land is substantial. This means it’s offensive, inconvenient or annoying to an average person in the community, i.e. not a P’s hypersensitivity.
AND the nuisance is an unreasonable interference by showing that the injury outweighs the utility of the D’s conduct
What can the P seek where a private nuisance cannot be removed without undue burden OR the nuisance has utility?
Damages for the reduction in property value of the affected P may be ordered.
IF nuisance has no utility and can be removed with no undue burden, the court might consider damages insignificant and grant injunctive relief to remove the issue.
What is a public nuisance?
An act that unreasonably interfered with the health, safety, or property rights of the community e.g. blocking a highway or using a building for criminal activities.
When is recovery available under a public nuisance?
Where a private party has suffered some UNIQUE damage not suffered by the public at large, e.g. pedestrian trips and falls due to an obstruction on sidewalk.
What are the defenses to nuisance?
- Legislative authority - LA for a nuisance activity (e.g. a zoning ordinance) is NOT an absolute defense but is persuasive
- Conduct of others - no one actor is liable for all damage caused by concurrence of their acts and others e.g. 2 mills are poluting a stream - each mill is responsible only for the pollution it causes
- Coming to the nuisance - e.g. you buy land next to an already existing nuisance and then pursue an action - generally not a bar to P’s action unless the P ‘came to the nuisance’ for the SOLE purpose of bringing a harassing lawsuit, SO - has plaintiff assumed the risk, thereby being barred from recovery by the fact that he has ‘come to the nuisance’?
Prevailing rule: in the absence of prescriptive right, the D may NOT condemn surrounding premises to endure the nuisance - i.e. the purchaser is entitled to reasonable use or enjoyment of his land to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a harassing lawsuit. - Contributory negligence = generally no defense to nuisance unless P’s case rests on a negligence theory.
What are the damages for nuisance?
Injunctive relief - used if legal remedy of damages = unavailable or inadequate (e.g. nuisance causes irreparable injury). Court will consider relative hardships. BUT hardships will NOT be balanced if D’s conduct = willful.
Abatement by self-help - available after notice to D and their refusal to act. Only necessary force may be used. Public nuisance cases - only a public authority/private party who has suffered some UNIQUE damage can seek injunction or abatement.
How can trespass to land be distinguished from private nuisance?
In trespass to land, there is an interference with the landowner’s EXCLUSIVE possession by a physical invasion of the land,
Private nuisance = interference with USE or ENJOYMENT.
