torts Flashcards
generally (neg)
Negligence Blurb
________may be liable in Negligence. Under common law tort principles and 2nd
Restatement of Torts Negligence is conduct that falls below the standard of care
established by law for the protection of others against unreasonable risk of harm. The
plaintiff must prove: 1) a duty, 2) foreseeable harm, 3) breach of duty, 4) proximate
cause of 5) damages.
Thin Eggshell Skull Rule
Any existing frailty, sensitivity or vulnerability is recoverable damages, as you take the
victim as you find them.
Negligence Per Se
The Plaintiff may recover if they can prove that 1) the defendant violated a statute, 2)
the plaintiff is in the class of people the statute was meant to protect; and 3) the
plaintiff suffered an injury that the statute was meant to prevent.
Contributory Negligence Statute Blurb (common law and rare)
Given that the plaintiff also breached a duty by not acting in a prudent fashion, and it is
a contributory negligence statute, the plaintiff will be completely barred from recovery.
Modified Comparative Negligence Statute Blurb
Under a modified comparative negligence statute, the Plaintiff, ______, may not recover
if s/he is more than 50% at fault.
Pure Comparative Negligence Statute Blurb
Plaintiff, ______, damages will be reduced by his/her share of the fault, under the pure
comparative negligence statute.
Tort Damages Blurb
The parties may recover, 1) pain and suffering, 2) medicals, 3) loss of earnings, 4)
disfigurement, 5) loss of companionship (kids) and 6) loss of consortium (marital
relations…serious damages).
Rescue/Good Samaritan Doctrine
A public policy doctrine to encourage bystanders to assist the injured. When a rescuer
renders aid, they will not be held liable unless they leave the victim in greater harm or
peril by unreasonable action.
INTENTIONAL TORTS
Invasion of Privacy
There are four types of invasions of privacy claims under the common law:1) Intrusion
Upon One’s Seclusion, 2) Publication of Private Facts and 3) Appropriation of One’s
Name or Likeness for one’s own Benefit, & 4) False Light.
Intentional Interference with Contractual Relations:
The Plaintiff may have a claim if s/he can prove a) Intent b) Contract, c) Defendant has
knowledge of K, d) Interference, and e) Damages
Intentional Interference with Advantageous Business Relations:
The Plaintiff may have a claim if s/he can prove a) Intent b) Ongoing Business Relations,
c) Interference, d) Damages
Misrepresentation:
The Plaintiff may have a claim if s/he can prove a) Misrepresentation, b) Material fact, c)
Knowledge of falsehood, d) Reliance to detriment, e) Damages
Intentional Infliction of Emotional Distress
The Plaintiff may have a claim is s/he can prove that the Defendant’s acted a)
intentionally or recklessly, b) the actions were extreme and outrageous and c) they
caused severe emotional distress to the Plaintiff.
Negligent Infliction of Emotional Distress
The Plaintiff may have a claim if s/he can prove a) the Defendant engaged in conduct
that caused an unreasonable risk of causing emotional distress, b) the conduct in fact
caused distress to the Plaintiff, & 3) the emotional distress is such that it resulted in
bodily harm or illness.
Battery
Intent to cause non-consensual contact and such contact occurs causing damages
Assault
Intentionally causing reasonable apprehension of bodily harm or offensive contact
False Imprisonment
Intentionally confining another without consent and the victim is conscious and aware
of the confinement. (No awareness needed for kids & mentally disable)
tresspass?
nuicance?
Defamation
▪ Slander – spoken
▪ Libel – written
Publication or communication of false information to 3rd person and damages. Public
figure – need to prove actual malice, which is actual knowledge of falsehood or reckless
disregard for the truth. NY Times v. Sullivan
STRICT LIABILITY and PRODUCTS LIABILITY
Note: A Defendant may be held liable under negligence, breach of warranty,
misrepresentation and strict tort liability
Strict Liability
Abnormally Dangerous Activities and Dangerous Non-domesticated Animals
Products Liability
(Model Uniform Products Liability Act)
Defective product unreasonably dangerous put in the stream of commerce.
Breach of warranty
The failure of a seller to fulfill the terms of a promise, claim, or representation
made concerning the quality or type of the product sold.
Negligence
A Defendant who allows a defective product to enter the stream of commerce may be
held liable under theories of 1) Negligent design, 2) Negligent manufacture or 3)
Negligent failure to warn if the Plaintiff can prove all the elements of negligence (duty,
breach, proximate cause, actual cause and damages)
15
CONSUMER PROTECTION
____ may file a consumer protection claim against ___, as this action constitutes unfair
and deceptive acts in trade or commerce. ___ is require by statute to a Demand letter
prior to filing suit.
_____ is in violation of the common law implied covenant of good faith and fair dealing,
which is implied in every contract.
topics tested
Intentional torts and defenses/ economic harm/ dignitary torts/ strict liabity/ negligence
intentional
-intentional t= d either desires that his act will cause the harmful result of knows with substantial certainty that the result will follow.
Requirements:
a voluntary act, intent, elements, causation, harm, lack of priv
Intent to person, intent to property,
Intent to person
Intent to persons
-assualt (apparentability ( could have done the act) no exaggerated fears unless d know of the fear and use it to put apprehension- see it coming
-battery (harmful or offensive contact offensive will not apply to every contacts of life..so no sensitive ppl only reasonable person)
-false impresonment-knowledge of confinement…no reasonable way to escape that p knows of, Dont need to be a long time…shop keepers priv defense- must be for a brief time, reasonable manner and thought was a theft)* remember must intend to confine and person must be aware of confinement once it happens*
IIED- intent or reckless act( disregard high degree of probability that result could occur), extreme and outrageous conduct, mental distress. Bystander vs direct P= directed at a person, the person or the person’s immediate family who are present may recover without physical manifestations of the distress. Unrelated third parties (defendant’s act not directed at them) who are present may only recover if they show a physical manifestation of the distress. If there is a special relationship or a known sensitivity,
tort to property
-Torts against property( mistakes are not a defense)
1. tresspass to land(can be a person, animal, or smell but if smell or noise do nuisance)
D Dont need ownership in prop.. Just a right to immediate possession of the land or in actual possession.. D have ownership to above and below property also
A. unknown trespasser, a landlord has no duty,
B. known trespasser, a landlord has a duty to warn of artificial conditions,
C. licensee, the landowner has a duty to warn, not to inspect of both artificial and natural conditions,
D. invitee, the landlord has a duty to inspect and warn of natural and artificial conditions.
-Tresspass to chattels-
Intent act that interferes with p’s chattel causing harm or deprecation of use.
Chattel is tangible personal property or intangible property that has a physical representation.
Interfere can be physical or disposesdion ( take away) or intermeddling
* if serious interference then it’s conversion
-conversion
Intentional act that causes the destruction or serious interference with a person chattel.( greater use and longer period) p gets fare market value of time of conversionplus consequental damages or replevin
* offer to return does not alleviate the conversion
intent tort defenses
Defenses
-Necessity- doing act was nec to avoid greater harm to public, d, or d’ property
-Defense of property- d is protecting property ( home and can use deadly force) otherwise D have to warn to stop and not use deadly force for property.
-defense of others & self defense- apprehension/ belief of imminent harm or using force reasonable HOWEVER CANT USE IF The defense of self-defense may be used in an action for an intentional tort, where the defendant acted reasonably under the circumstances.
- consent expressed or implied- party gives consent to the conduct, not necessarily to the consequences. However, consent is not valid if it is given on an incorrect assumption of fact that the defendant knew of and the defendant knew that the plaintiff would not have given consent had she known of that fact. (Have to do with intercourse only so diseases, violence, not given fake money or no money)
kid liability
** kids can do intentional torts… Only need to have intent to touch/act.…not the result
Vs negligence
** kids not liable if mom had a duty and breached it ( duty to maintain the kid cause she know if kid behavior) is kid and mom liable?
defamation
Economic harm/dignity torts
Defamation, nusiance, fraud/ misrepresentation
Defamation
Anaysis-
1. define it
3. look to see what kind of person to see if have to define malice
4. Type/ way of defamamation statement (ie. Slander) which would determine proving damages
5. Defenses
6. Conclusion
Generally, a defamatortory message, concerning a person ( ordinary person or public(offical, figure), that is publicated/communicated to a 3rd party, damages/harm p’s reputation
1. Depending on if public or ordinary person need to establish malice- knowing falsity or reckless disregard as truth or falsity.
2. Depending on the way/ type of defamation will determine the damages
-Libel- written
-Slander- spoken
-Slander per se- allegation of either a crime, loaathsome disease, improper business, sexual misduct
4. Damages:
libel=written then I get money damage don’t have to prove my injury/harm/pecuniary lose
slander= spoke, have to prove damage
Slander per se= the statement is one of the (4)so bad that special damages not required
5: Defenses:
A. Truth the statement was made in good faith, belief in the statement was reasonable and disclosure was limited only to those that could act on the matter
- P would have to prove that the statement is false.
B. privledge absolute (statements as a matter of law/ stated during job) vs qualified ( communications of a matter of interest.. Otherwise it’s outside the scope and is not protected of not protected if it was with malice.
C. consent
misrepresentation aka fraud
Misrepresentation aka fraud
Intentional assersion of a material false fact that a p justifiably relied on and that caused damages to p
Intent: Either is false statement, concealment, omission of fact, failure to disclose, Scienter/ malice ( knowing it was false or reckless disregard) , intent to induce reliance,
Causation: actual and proximent
Damages: harm
Invasion of P
- appropriation of p’s nsme or picture-unauthorized use of p’s identity of likeness for commercial advantage.
- Intrusion on seclusion- physical or non physical intrusion of p’s personal affairs or concerns.
- Publication of facts in a false light- publish ooffensive stuff of p in a false light to the public…told to a number of ppl,,,defense if news worthy, consent or privledged
- truth is a defense to defamation… not used in privacy for newsworthiness situations
nusiance
public
- a unreasonable interference with the right common to the general public ( health, safety, peace, comfort, convenience)
- by statute, ordinance, or regulation
- Continuing nature of has produced a permenst or long lasting effect.
- Private person can’t recover unless can show they have a harm different from other members of the public
Private
- activity or thing (can be smells) that substantially and unreasonably interfere with p’s use and enjoyment of the land.
- Substantial is annoying, offensive, inconvenient to the avg. Person in the communit
liabilitites
I . Strict lab. OR Neg
- Wild A (non domesticated animals only unless domesticated becomes wild animal by dangerous propensity)(cant domestic a wild animal!) (strict L)
* Injury from a wild animal even if its just from the fear of seeing them even if An. Did touch them
Wild animal (reg neg analysis ) - causation (superseding injury that is not the kind that would occur )
* When the injury is not the kind of injury that happen from a wild injury then not liable (but this is under negligence and not strict liability)
* When domesticated animal
- Abnorm dang. (-anything that can cause a kaboom( chemicals, fireworks, excavating) unless assumption of the risk)
Execration(mining blowing things up), chemicals,
Defense assumption of the risk
____________
II. Product liability
- Negligence (regular elements of neg)
Domesticated animals that turn wild - Breach of warranty
Breach of warranties a promise about performance
Merchentability- product act as it should
The umbrella will keep rain off you
Fitness- the product can do what it was suppose to do under certain circumstance
The umbrella can stand all rain storms - SPL (strict liability in tort)
A. Defective product ( dont’ work in manner suppose to)
sold by commercial seller (regularly engaged in selling the product), to a foreseeable buyer, and buyer use it in manner was suppose to, and product haven’t been changed in since it was manufacture
Ex: commercial tea supplier of 5 years makes tea bags that’s suppose to help lower blood pressure when boiled in hot water for 5 mins product also warns of possibility of severe headaches; however the tea bags caused cancer which was not a warning and the store owner that sold the product never interfered with the tea bags.
___________
b. Inadequate warning
failure to warn or inadequate warning
Should have foreseen that a person would us the thing the way they did
________________________________
Defense to spl
* Assumption of risk
* Misuse by P
negligence
Duty, breach, causation, damages, defenses
A. Duty ( does duty exist and the standard of care)
A “person” must exercise the duty of care of a reasonable person, or greater care to foreseeable victims. Depending on whether the P is foreseeable would make the standard of care.
B. Forseeables
1. bystandars in the zone of danger
2. Located near the scene of the accident
3. Suffered serve emotional distress from the observation of the scene
4. Had a close relationship with the victim (mom child, agency, doctor patient) is Mom have to control child if no or have reason to know if child’s behavior
5. Innkeepers( hotels) common carriers(modes of transpiration)
6. Professional’s
7. Possessors of land ( homes, stores)
Invitee- prevent injuries and discover dangerous conditions
Licenscess- warn of cancerous conditions
Trespassers- if unknown than no duty but if should have known ( can anticipate because you have a attraction or from prior altercation) then have a duty to keep safe and warm
8. No duty to rescue unless special relationship…however , once take in that task.. is liable ….. Also, The person who created the peril/need for the rescue is liable both to the victim and the rescuer of the victim if make ondition worse. (So once that rescue is pursued …everybody can be liable to everyone )
-Nied
Special relationship or bystander in the zone of danger
Breach
D’s conduct falls below the standard of care of a reasonable prudent person. (what facts are given in essay to show what a reasonable person would or wouldn’t do)
Causation actual and proximate …
Actual: but for
Proximate: intervening or superceeding act
*a superseding cause still will be liable if it’s foreseeable: (1) criminal acts of a third party, (2) intentional acts of a third party, (3) extraordinary negligence of a third party and (4) acts of God.
Damages
p must suffer a actual harm or injury by property damage or personal injury not economic loss.
negligence defenses
Duty, breach, causation, damages, defenses
A. Duty ( does duty exist and the standard of care)
A “person” must exercise the duty of care of a reasonable person, or greater care to foreseeable victims. Depending on whether the P is foreseeable would make the standard of care.
B. Forseeables
1. bystandars in the zone of danger
2. Located near the scene of the accident
3. Suffered serve emotional distress from the observation of the scene
4. Had a close relationship with the victim (mom child, agency, doctor patient) is Mom have to control child if no or have reason to know if child’s behavior
5. Innkeepers( hotels) common carriers(modes of transpiration)
6. Professional’s
7. Possessors of land ( homes, stores)
Invitee- prevent injuries and discover dangerous conditions
Licenscess- warn of cancerous conditions
Trespassers- if unknown than no duty but if should have known ( can anticipate because you have a attraction or from prior altercation) then have a duty to keep safe and warm
8. No duty to rescue unless special relationship…however , once take in that task.. is liable ….. Also, The person who created the peril/need for the rescue is liable both to the victim and the rescuer of the victim if make ondition worse. (So once that rescue is pursued …everybody can be liable to everyone )
-Nied
Special relationship or bystander in the zone of danger
Breach
D’s conduct falls below the standard of care of a reasonable prudent person. (what facts are given in essay to show what a reasonable person would or wouldn’t do)
Causation actual and proximate …
Actual: but for
Proximate: intervening or superceeding act
*a superseding cause still will be liable if it’s foreseeable: (1) criminal acts of a third party, (2) intentional acts of a third party, (3) extraordinary negligence of a third party and (4) acts of God.
Damages
p must suffer a actual harm or injury by property damage or personal injury not economic loss.
special negligence
- special negligence
-Negligence per set - in the intended class protected by the statute
—Res ipsa ( curmstsntial evidence where the thing speaks for itself)
The injury must be in D’s sold control… It can’t b more than 1 D.
