Torts Flashcards
Specific intent
When a tortfeasor intended to achieve a particular result by committing the crime/tort.
General intent
When a person exhibits an actual intent to perform some act, but without a desire for the consequences that result from that act.
Assault
Acting intentionally to give the plaintiff a reasonable apprehension of imminent harmful or offensive contact. Does not require contact, and punitive damages may be imposed if malice is present.
Battery
Intentional, harmful or offensive contact with the plaintiff. Offensive is assessed by the reasonable person standard. Contact can include any items in the possession of or connected to the plaintiff.
(D is responsible for all harm to P including unforeseeable damages.)
Intent
Proven by demonstrating a desire to cause the result, or knowledge to a substantial certainty that result would be caused.
Intentional tort causation
Demonstrated where the defendant is a substantial factor in bringing about harmful or offensive contact.
Note the difference from the “but for” or foreseeability in torts.
Trespass to land
Intentionally entering or causing an object or third person to enter land belonging to someone else. Eligible for nominal damages if there is no damage to the land.
Trespass to chattel
A defendant will be liable when they intentionally interfere with the personal property of another, and there is insignificant damage to the chattel or a minor loss of usage.
Conversion
If liable for a trespass to chattel but the amount of the interference is substantial, the tort of conversion has occurred. Here, the converter will be liable for the full market value of the chattel at the time of conversion, plus interest and expenditures made in pursuit of the property.
Intentional infliction of emotional distress
When a defendant, intentionally or recklessly exhibited extreme and outrageous conduct which caused the plaintiff to suffer severe emotional distress. The defendant is liable to any family member also present (the defendant must be aware of their presence), or to any other person present if it results in physical harm.
False imprisonment
Occurs when a defendant unlawfully intentionally confines a person in a bounded area and the person is either aware of or harmed by the confinement. The defendant has a privilege when reasonably believing the plaintiff committed a felony, where the shopkeeper privilege, or a citizen’s arrest defense may be appropriate.
Consent
The defendant will not be found liable for a tort if they received a knowing and voluntary waiver of any harm caused by the tort.
Defense of others
A defendant will not be found liable if using the right of self-defense for their own or other’s safety.
Privilege to arrest
Defense to false imprisonment – usually applies when the defendant directly observed a felony. For a citizen’s misdemeanor arrest, it has to be (1) a breach of the peace; and (2) conducted in the presence of the arresting citizen.N
Necessity
A defense if action is necessary to prevent harm to their own or another’s person or their real property. This defense comes in two types:
(1) Public necessity – if for the good of society damages will not be awarded.
(2) Private necessity – the defendant will not be liable for trespass, but liable for damage to plaintiff’s property.
Shopkeeper privilege
A shopkeeper has the right to temporarily detain persons whom they have a reasonable belief shoplifted from their store. This privilege avoids false imprisonment.
Attractive nuisance
An attractive nuisance creates liability for a landowner when a condition the owner knows or has reason to know attracts kids, the owner had or has reason to know the condition poses an unreasonable risk of death or serious injury to kids, children cannot appreciate the risk, and the utility to the landowner to maintain the condition vs the burden in fixing is slight.
Majority rule – the condition doesn’t need to attract, if kids see it after being on the land for other reasons then this doctrine is still applicable. Also, this doctrine does not apply to natural features of the property.
Negligence
A claim for negligence can be made when a breach of duty of care to another has actually and proximately caused harm resulting in damages. This requires (1) a duty owed, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.
(Requires personal injury or property damages, pure economic damages are not generally allowed.)
Duty to whom
Under the majority Cardozo view, a duty of care is only owed to the foreseeable plaintiff within the zone of danger.
Under the minority Andrews view, a duty is owed to all foreseeable plaintiffs.
Duty to assist
Generally, there is no duty to act to assist someone in danger. Exceptions exist where a pre-existing relationship exists, the defendant is responsible for putting the plaintiff in the danger, if a person began to assist and then quits (may dissuade subsequent Good Samaritans), or imposed by law.B
Breach
A breach occurs when the defendant’s conduct does not meet the applicable standard of care.
Actual causation
But for the defendant’s actions the plaintiff would not have suffered injury.
Proximate causation
The injury must have been a foreseeable result of the defendant’s negligence.
Standard of care
Every person owes a duty to act as a reasonable, prudent person under similar circumstances. Specific standards for children and professionals.
Children – Held to a standard of a child of similar age, experience, and intelligence acting under similar circumstances. Exception when engaged in adult activities, they are held to an adult standard of care.
Medical doctors – Held to the standard of an average age qualified practitioner, but a national standard.
Landowner’s duty to undiscovered trespassers
No duty is generally owed.
Landowner’s duty to anticipated trespassers
A landowner must make a reasonable effort not to harm while conducting operations on the property. They also must ensure they make safe, or at a minimum, warn anticipated trespassers of dangerous artificial conditions or equipment on the property.
Landowner’s duty to licensees
An invitee as a social guest, a landowner has the same obligations as with anticipated trespasser.
Landowner’s duty to invitees
Anyone on the property for the owner’s benefit – the same requirements of a licensee, plus conduct reasonable inspections and correct any latent dangerous conditions.
Damages
Negligence requires personal injury or property damage. Claims for purely economic loss generally are not allowed.
Negligence per se
Doctrine where a defendant who violates a statute or law is considered to have breached a duty. A violator is liable if they violate a law that is designed to prevent a certain type of harm and the plaintiff is the type of person the law was designed to protect. Exceptions exist when the statute is vague, the defendant exercised reasonable care or if the plaintiff was harmed than if the defendant complied with the law.
Res ipsa loquitor
The doctrine of res ipsa loquitor may allow a plaintiff to prove their case on solely circumstantial evidence. To establish negligence in this case, a plaintiff must prove that the incident typically would not have happened without negligence, the instrumentality of the harm was solely under the defendant’s control, and the plaintiff did not contribute to the cause of harm.
Negligence defenses
Include assumption of the risk, contributory negligence, partial comparative and contributory negligence.
Last clear chance
A plaintiff can recover despite their own contributory negligence when the defendant had the last clear chance to avoid an accident. Even in a contributory negligence jurisdiction, the plaintiff may recover damages.
Eggshell plaintiff rule
A defendant takes their victim as they find them and will be liable for all harm suffered by the plaintiff due to tortious conduct by the defendant.
Intervening causes
An event that takes place after tortious conduct that worsens the plaintiff’s injury, but may not break the chain of causation between the defendant and the plaintiff if the injury is foreseeable.
Superseding causes
A superseding cause is an act that is an unforeseeable and so unrelated to the tort that is serves as a defense to a negligence claim.
Pure comparative negligence
The amount of fault assigned to the plaintiff will not bar recovery, however the amount of their damages will be reduced by the percentage of their own fault.
Partial comparative negligence
If a plaintiff contributed 50% or less to their injury, then damages are reduced by their percentage of negligence. However, if they are 51% responsible, they recover nothing.
Contributory negligence
Minority rule – a complete bar to recovery of damages, where if the plaintiff is found even 1% at fault, they are awarded nothing.
Assumption of the risk
A defendant will not be found liable for negligence when the plaintiff knowingly and voluntarily assumed the risk.
Fireman’s rule
Applies to police and fireman – these occupations may not sue for negligence in the performance of their duties because they assume the risk.
Negligent infliction of emotional distress
Negligent infliction of emotional distress is a tort that comes in three types, (1) a zone of danger claim, (2) a bystander claim, and (3) a claim where a pre-existing relationship exists.
(This is a popular minor issue, and can typically be raised and dismissed, simply because the requirements for NIED bar many plaintiffs from recovery.)
NIED – Zone of danger
Occurs when negligence by the defendant creates a foreseeable risk of injury. Here, the plaintiff must be in the zone of danger and the plaintiff has manifested physical symptoms.
NIED – Pre-existing relationshup
Occurs when there is a pre-existing relationship between the plaintiff and the injured, and the negligent act can foreseeably cause distress. In this situation, physical injury is not a required element.
Bystander claim
There must be negligence by defendant, the plaintiff must be a witness to the injury inflicted upon a close family member and the plaintiff must suffer some form of physical injury.
Third party liability
Pure economic loss cannot be recovered by a third party.
Example: by injuring the lead actress in a car accident, a support actor who is fired because the movie is canceled cannot sue the negligent driver just for money.
Vicarious liability
An employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of their employment. Scope is determined by the type of work assigned to the employee and what event or action created the liability.
Independent contractors
Contractors are not typically under the direct control of employers, and thus, they are liable for their own torts. To determine the nature of the contractor/employee, courts will look at the amount of control the employer has over the person, if pay was hourly or per job, who owns the tools, if the job was for the benefit of the employer’s business, and the length of time the employer worked for the contractor.
Intentional torts of employee
An employer is typically not responsible for intentional torts committed by employees. If, however, the employee is directed to commit the act by the employer, or if the tort is a tort typically closely association to the performance of the duties, then the employer may be held vicariously liable.
Defamation
Defamation requires (1) a false statement, (2) made of and concerning a plaintiff by the defendant, (3) that was published to a third party, and (4) damaged the plaintiff. The statement must be made as if it was a fact – a statement that is described as an opinion of the defendant is not defamation.
The claim is for libel if written, where damages are presumed due to the longstanding nature of the writing, and slander when spoken.
Damages must be proven, unless slander per se.
Slander per se
Certain types of statements as so injurious that damages will be presumed, including statements that harm the work reputation of the plaintiff, a statement that an unmarried woman is unchaste, that the plaintiff suffers from a loathsome disease, or where the plaintiff has wrongly been accused of committing a crime of moral turpitude.
Publication
Requires transmission to a third person, where a defendant will be liable unless the publisher was overheard, and it was not foreseeable.
Defamatory statement
Language that diminishes respect, esteem, or goodwill towards a plaintiff, or deters others from associating with the plaintiff.
Public figure
A public figure is one that is well known and earned some level of celebrity or notoriety, or if they have inserted themselves in a public concern.
Look out for the wife of a public person – she only needs to prove falsity, negligence, and damages.
Public figure defamation standard
If the plaintiff is a public official, they must prove either fault or falsity. Falsity is established if the defendant knew the statement was false, and fault is established when the plaintiff can show defendant spoke with recklessness as to the truth of the statement. If the plaintiff is not a public official but speaking of a matter that is a public concern, plaintiff only needs to prove defendant spoke negligently.
Absolute privilege
Provides immunity from a lawsuit for defamation even if the action is wrong, malicious or done with improper motive. These include spousal, judicial proceedings and legislative proceedings privilege.
Privacy torts
- Misappropriation of name or likeness
- False light
- Intrusion into seclusion
- Public disclosure of private facts
Misappropriation of name or likeness
Using the plaintiff’s name or image for commercial gain without consent. Exception exists if the name or likeness is used in the news coverage.
False light
Publication of the plaintiff’s actions of beliefs in false light that would be highly objectionable to a reasonable person. Must show malice if a public person or a public concern. Can get damages for non-economic harm, and reputation need not be damaged.
Intrusion into seclusion
Defendant intrudes into the plaintiff’s private matters, where the plaintiff has a reasonable expectation of privacy, and a reasonable person would be highly offended by the publication of such matters.
Public disclosure of private facts
Defendant causes widespread dissemination of private facts that would be highly objectionable to a reasonably prudent person.
Public nuisance
Occurs when there is an unreasonable interference with the public’s property rights, health or safety.
(Usually prosecuted by public authorities – a private plaintiff can only sue if they show they suffered some harm different than that of the rest of the public.)
Private nuisance
Occurs when there is a significant interference with a person’s use or enjoyment of their real property. The nuisance must not be small – it must be significantly inconvenient, harassing, or annoying to a reasonable person.
(The defense of coming to the nuisance is appropriate when the plaintiff purposely moved to the area to sue the party creating the nuisance.)
Strict liability for wild animals
For domestic animals – no liability unless defendant knew of the animal’s vicarious propensities. For wild animals, an owner will be held strictly liable for injuries caused by the animal’s known dangerous propensities.
Strict liability for abnormally dangerous activities
A tort where liability is assigned without a finding of fault. An abnormally dangerous activity is one that is not of common usage in the community and is dangerous even when reasonable care is exercised by all actors. The harm must be of the type that makes the activity abnormally dangerous, and the danger must be greater than the activity’s value in the community.
(Once established, proceed through negligence elements. Vicarious liability is not applicable. Defense – assumption of the risk)
Products liability claims
May be deemed to exist under five theories: (1) intent, (2) negligence, (3) strict liability, (4) implied warranty, and (5) express warranty, and (6) misrepresentation.
Strict products liability
A prima facie case for strict products liability requires (1) a strict duty owed by a commercial supplied (include proper plaintiff discussion), (2) breach, (3) causation (actual and proximate), and (4) damages.
Recovery strictly for economic loss is not allowed. Assumption of the risk is the only defense.
Strict products liability causation
Actual causation requires that the plaintiff tract the harm to a defect that existed when the product left the defendant’s control.
(NOTE: this is different than negligence causation)
Breach in strict products liability
A breach of duty occurs when the product was defective (manufacturing defect, design defect, or failure to warn) when it left the hands of the manufacturer or seller, the product was not altered by an intermediary prior to acceptance by the plaintiff, the defect in the product caused an injury to the plaintiff and the supplier is a merchant for this type of good.
(Know that is doesn’t matter if the product is used as directed, and know that even if misused in a foreseeable manner, the supplier will still be found strictly liable.)
Manufacturing defect
The product differs from other products leaving the production line and is more dangerous than if it were made properly.
Design defect
Exists if the design itself is faulty, and every product that leaves the line has the same dangerous issue. This can also be proven if there is a way to make the product at a similar cost that does not have the same dangerous propensity.
Failure to warn
Occurs when the plaintiff was not warned of the risks of use that were not obvious to an ordinary user but known to the designer/manufacturer. A warning must be proportionate to the risk involved with the normal use of the product.
Consumer expectation test
A product is defective if it does not meet the expectations of an average consumer.
(Use to determine a design defect.)
Feasible alternative test
This test requires a search of the marketplace for feasible alternatives. If they are found at similar cost, then a design defect exists.
(Use with the consumer expectation test)`
Risk/utility test
A product is defective if the burden to make the product safe is slight compared to the harm that will occur.
(Use with the consumer expectation test, analyze both to determine the presence of a design defect)
Government safety compliance
Non-compliance with a government safety standard establishes defect. However, compliance does not establish that the product is not defective.
Product liability – negligence
A negligence claim based on a defective product requires a duty, a breach, causation (actual and proximate cause), and damages.
A breach will be found when a supplier’s negligence results in the supply of a defective product. Suppliers are liable for all foreseeable misuse of their product. Any manufacturer or seller may be liable, but it must be shown that their conduct was negligent. Personal injury and property damages are recoverable, but not solely economic loss.
Duty in a negligent products liability action
A duty of care is owed by commercial suppliers, such as manufacturers, wholesalers, and retailers to any foreseeable plaintiff, such as users, buyers, and bystanders, without any privity requirement.
Breach in negligent products liability
To prove a breach of duty, the plaintiff must show negligent conduct by the defendant leading to the supply of the defective product.
Implied warranty of merchantability
All goods sold by a merchant (a person dealing in goods of this kind) must be fit for their ordinary purpose.
Implied warranty of fitness for a particular purpose
All products are purchased with an implied warranty of fitness for a particular purpose, which is breached when the seller knows or has reason to know of the buyer’s purpose for the product and the buyer relies on the seller’s judgment to provide the proper product for the buyer’s usage.
(Note: analysis requires a full negligence analysis of DBCD and defenses)
Duty – Implied warranty of fitness for a particular purpose
In every sale of goods, there are two implied warranties: (1) merchantability, and (2) fitness for a particular purpose. Majority view is that privity is not required.
Breach – Implied warranty of fitness for a particular purpose
Occurs if a product fails to live up to these warranties
Causation – Implied warranty of fitness for a particular purpose
Same as in negligence
Damages – Implied warranty of fitness for a particular purpose
Personal injury, property, and purely economic damages are recoverable
Defenses – Implied warranty of fitness for a particular purpose
Assumption of the risk, contributory/comparative negligence
Express warranty
Exists when a seller makes a deliberate promise to warranty, or a description of the product, or provides a sample relating to the product, and that warranty factors into the decision to purchase the product.
Misrepresentation in product liability
A merchant is strictly liable for any harm to consumers when they knowingly or with reckless disregard misrepresent their product.
Abuse of process
Wrongful use of legal process for the ulterior purpose, or an act or threat to accomplish the same.
Negligent hiring
An employer may be found liable when they fail to exercise reasonable care in choosing an employee to perform specific duties.
