Torts Flashcards
Intentional Torts - Prima Face Case Generally
- voluntary act
- intent (purpose or substantial certainty)
- particular outcome resulted from defendant’s act (causation)
- specific elements of the intentional tort
Intentional Torts - Harms to Persons
- assault
- battery
- false imprisonment
- IIED
Intentional Torts - Harms to Property Interests
- trespass to land
- trespass to chattels
- conversion
Battery
- intentionally causing
- harmful or offensive
- bodily contact with another person
Harmful / Offensive Bodily Contact
physical harm or offends a reasonable sense of personal dignity
Assault
- intentionally placing a person in
- reasonable apprehension of an
- imminent
- harmful or offensive contact
Apprehension
anticipation or perception of imminent harmful/offensive conduct
False Imprisonment
- intentional
- act of restraint on another person causing that person’s
- confinement within a bounded area
Confinement
physically restricting freedom of movement or threatening the use of imminent unlawful force where no reasonable means of escape
PLAINTIFF MUST BE AWARE OF OR HARMED BY THE CONFINEMENT
Intentional Infliction of Emotional Distress
- extreme and outrageous conduct that
- intentionally or recklessly causes a person to suffer
- severe emotional distress
Extreme and Outrageous Conduct
utterly intolerable in civilized community
Severe Emotional Distress
medical diagnosis or physical manifestation that is not required but can help prove existence of severe distress
Trespass to Land
- intentionally entering or remaining on
- another person’s real property
- without permission
*damage to land is not required.
*includes space above/below the ground
Trespass to Chattels
- act that
- intentionally
- interferes with
- another person’s personal property
Interference = dispossession, harm, reduce value
Conversion
- act causing
- serious and substantial interference with or destruction of
- another person’s personal property
*Substantial interference justifies the defendant pay the full value of the personal property
Transferred Intent - Definition
- intent for one tort can qualify as intent for another
- intent as to one person can qualify as intent to another person
Where Transferred Intent Applies
- battery
- assault
- false imprisonment
- trespass to land
- trespass to chattels
Eggshell Skull
if prima facie case established, plaintiff will recover full extent of damages, even if plaintiff’s specific harm was unforeseeable
Defenses to Intentional Torts
- consent
- self-defense
- defense of others
- defense of property
- necessity
- discipline
- recapture of chattels
- arrest
- shopkeeper’s privilege
Consent
- actual willingness for conduct to occur
- apparent consent: reasonable person would believe person consented
- implied consent: matter of law or policy
Scope of Consent
if defendant’s conduct exceeds scope, liable for any additional harm caused
Invalid Consent
infancy, intoxication, mental illness, obtained by fraud/trickery.
Cannot consent to illegal act
Self-Defense
- use of reasonable force to protect oneself form the
- threat of imminent
- unlawful force
*Must have a REASONABLE belief.
Self-Defense: Retreat
not necessary prior to using non-deadly or deadly force.
MINORITY RULE: must retreat before deadly force UNLESS in your home.
Self-Defense: Proportional
must be proportional to unlawful force prevented (so can only use deadly force when deadly force threatened)
Self-Defense: Initial Aggressor
Not available to initial aggressor unless:
- person communicates withdrawal to other person OR
- other person makes sudden escalation of force
Defense of Others
- use of force to protect another person from a
- threat of
- imminent unlawful force
*same rules for self-defense apply
Defense of Property
- use of force to prevent an
- ongoing or imminent tort against person’s property
Actor must request the other to desist unless request appears dangerous or futile
Must be proportional BUT deadly force never allowed to defend property.
Defense of Property: Greater Privilege
force not privileged if other has a greater privilege to enter onto or interfere with the property (necessity, recapture of chattels)
Necessity
Can interfere with real or personal property rights of another when:
- such actions reasonably appear necessary to prevent an
- imminent
- substantially greater threat of harm from a natural force
Public Necessity
harm threatened a large number of people or the public at large
Private Necessity
Harm threatened the defendant herself or a limited number of people
*Defendant still liable for any actual damages caused by actions.
Discipline
permits a:
- parent to
- use reasonable force or confinement as reasonably appears
- necessary for the discipline, control, or education of a child
Recapture of Chattels
- use of reasonable
- non-deadly force to
- regain possession of personal property that was
- recently (in hot pursuit)
- unlawfully taken
Arrest
- police officer or private person can use force in effectuating an arrest of another person, provided the arrest was:
- proper and the
- amount of force used was reasonable
Shopkeeper’s Privilege
Shopkeeper can detain another IF shopkeeper has a:
- reasonable ground to believe that the
- person recently engaged in shoplifting
*Detention can only be for a reasonable amount of time and the confinement / force used must be reasonable
Negligence: Prima Facie Case
- duty
- breach
- factual causation
- proximate causation
- actual harm
Duty
refrain from acting unreasonably.
NO DUTY if plaintiff unforeseeable or liability would be crushing to defendant (public policy)
Affirmative Actions to Protect Others
No duty to rescue / control third party’s conduct UNLESS:
- special relationship with (a) third party who committed harm or (b) injured party (parent/child, employer/employee, property owner, custodial, psychotherapist/patient)
- invited public onto defendant’s land
- voluntarily undertaken rescue
- agreed to work together with injured party
- created danger OR
- duty imposed by statute
Landowners / Possessors: Adult Trespassers
no duty to protect people who enter land without permission. If trespasser known / anticipated, must warn trespasser of human-made conditions that pose risk of death or serious bodily harm
Landowners / Possessors: Child Trespassers
Duty of reasonable care owed if:
- human-made condition poses unreasonable risk of death or serious bodily harm to children and knows or should reasonably know of both condition and risk
- knows or has to reason to know children likely to trespass
- child, because of its youth, unlikely to discover condition or appreciate the risk
- burden of taking precautions is low in relation to the risk of harm to the child AND
- fails to exercise reasonable care to eliminate danger
Landowners / Possessors: Licensees
Duty to warn about or make safe already known dangers on land is owed to people who enter land with landowner’s permission or are privileged entrants
Landowners / Possessors: Invitees
Duty owed to people who provide material benefit to landowner/possessor or if land open to public.
Duty of reasonable care with respect to:
- activities undertaken on land
- known dangers AND
- dangers that could be discovered with reasonable inspection
Landowners / Possessors: Transitory Foreign Substance
business may be liable if had either actual or constructive notice dangerous condition because condition either:
- existed for such length of time that premises owner should have known of condition in exercise of due care OR
- occurred with such regularity that foreseeable
*Shopper’s failure to notice open and obvious condition is often foreseeable.
Landowners / Possessors: Scope
If licensee or invitee voluntarily goes beyond reasonable scope of license or invitation, drops to lower status (invitee / trespasser)
Landowners / Possessors: Open and Obvious Dangers
No duty to warn about dangers that are open and obvious.
Landowners / Possessors: Firefighter’s Rule
Public safety officials cannot sue people for negligence in causing events that made the public duties necessary
Landowners / Possessors: Common Areas
duty to maintain areas and make reasonable repairs to leased property
Landowners / Possessors: Persons Off Land
Duty of reasonable care with regard to human-made conditions or activities on land but no duty with regard to natural conditions on the land
Standard of Care
Defendant must behave as reasonable person under the circumstances
Standard of Care - Exceptions - Serious Physical Impairment
serious physical impairment: standard will recognize physical limitations
Standard of Care - Exceptions - Child
child: child of similar age, education, intelligence, experience UNLESS adult activity
Standard of Care - Exceptions - Professional
professional: same or similar community.
INFORMED CONSENT: what reasonable patient would want to know
Standard of Care - Exceptions - Special Knowledge or Skills
special knowledge or skills: someone with that extra knowledge or skill
Standard of Care - Exceptions - Emergency
acting in emergency: what reasonable person would do that in that situation UNLESS defendant created emergency
Standard of Care - Exceptions - Bailee
extraordinary care required if bailee benefits
reasonable care if both parties benefit
avoidance of gross negligence if only bailor benefits
Methods of Proving Breach
- hand formula
- custom
- negligence per se
- res ispa loquitor
Hand Formula
defendant breached if:
- cost of burden of taking precaution is
- less than probability of loss
- multiplied by gravity of law
B<PH
Custom
Does not dictate result (because may be unreasonable) BUT can be used to prove defendant fell below standard of care
Negligence Per Se
- plaintiff in class of people protected by the law
- violated law was designed to prevent the type of harm the plaintiff suffered AND
- no excuse for the defendant’s noncompliance (i.e., compliance would impose greater risk of harm or was impossible)
Res Ispa Loquitor
Jury can draw inference of breach if:
- event that led to injury was the type that would not ordinarily occur had there been no negligence
- injury was caused or was more likely than not caused by instrumentality solely within defendant’s control AND
- plaintiff’s fault did not contribute to the injury
Factual Causation
- but for the defendant’s conduct, the plaintiff would not have been injured OR
- defendant’s conduct was a substantial factor in causing the plaintiff’s harm
Factual Causation: Alternative Liability
if uncertain which defendant caused injury, all defendants must show they were not the causes
*applies to small groups
Factual Causation: Market Share Liability
If uncertain which defendant caused the injury, court will hold each defendant liable for its proportional share of the overall market
*applies to large groups
Factual Causation: Joint Tortfeasors
all treated as causes even if one individual did not directly harm plaintiff if actions were within scope of joint venture
Proximate Causation
Foreseeability test: injury must have been a reasonably foreseeable result of defendant’s negligence.
If unforeseeable intervening force occurs, superseding cause that cuts off defendant’s liability
Eggshell plaintiff: liable for full extent of injury if type of injury was foreseeable (even if scope was not)
Actual Harm
must suffer physical injury or damage to property
- suffering only economic or emotional harm not enough
- attorney’s fees not recoverable
- punitive damages not recoverable UNLESS conduct willful, wanton, or malicious
Negligent Infliction of Emotional Distress
Can recover for emotional harm IF plaintiff:
- was in zone of danger (risk of physical harm) and suffered physical symptoms of distress
- observed close relative suffering physical harm
- defendant damaged dead body of plaintiff’s close relative OR
- defendant misinformed plaintiff that relative died or was seriously injured
Defenses to Negligence
- pure comparative negligence
- modified comparative negligence
- contributory negligence
- assumption of the risk
Pure Comparative Negligence
recovery reduced proportionally based on percentage of fault allocable to plaintiff
Modified Comparative Negligence
- type 1: may recover only if plaintiff is less than 50% at fault
- type 2: may recover only if plaintiff is less than or equal to 50% at fault
Contributory Negligence
Slightly negligent plaintiff can recover nothing from negligent defendant
Contributory Negligence - Exceptions
- defendant has last clear chance to avoid the accident
- defendant violated safety statute where it was the defendant’s responsibility to avoid the harm OR
- defendant was reckless or intentional in causing the harm
Assumption of the Risk
plaintiff:
- knowingly and
voluntarily encountered a risk
*operation significantly limited in jurisdictions that have comparative negligence.
Vicarious Liability: Parents
parents not vicariously liable for child’s act UNLESS child is acting as an agent
Vicarious Liability: Car Owners
car owner liable for accidents caused by negligence of another driver who the owner permits to drive the owner’s car
Vicarious Liability: Employers
liable for torts of employee committed within scope of employment
Employee
actor is employee if employer controls the manner in which the person works (tools, policies, work hours, type of work)
Scope of Employment
- employee was hired to do the kind of work the employee was doing when the employee committed the tort
- tort occurred during the time and space of employment AND
- employee’s conduct was motivated by desire to serve employee
Scope of Employment: Intentional Torts
not in scope unless employee’s responsibilities put employee in position where intentional torts occur
Scope of Employment: Frolic and Detour
not liable for actions during frolic (outside usual course of employment) but are liable for actions during a detour
Nondelegable Duties
employer liable for torts of independent contractor if the work is:
- inherently or unusually dangerous
- occurs in a public place OR
- affects the public or a large group of people
Apparent Agency
one who hires an independent contractor to perform services is liable for physical harm caused by independent contractor’s negligence IF:
- hirer made representation that led plaintiff to believe independent contractor was an employee AND
- plaintiff reasonably relied on the representation to the plaintiff’s detriment
Vicarious Liability: Dramshop
business licensed to sell alcohol is not ordinarily responsible for injuries patrons caused under the influence UNLESS business provided
- alcohol to a minor or
- additional alcohol to an adult who was already visibly intoxicated
Vicarious Liability: Social Host Liability
for noncommercial providers of alcohol, not liable for injuries caused by guests unless:
- provided alcohol to a minor when they know the person was a minor or
- provided additional alcohol to adult who was visibly intoxicated
Joint and Several Liability
If more than one defendant liable for single injury, plaintiff may recover full amount from any wrongdoer
Several Liability
recovery limited to extent of defendant’s fault
Contribution
If one defendant pays beyond his individual share of responsibility, he can recover overpayment from other defendants
Indemnification
defendant can shift liability for damages to another person (e.g., between principle and agent or contracting parties) UNLESS defendant barred by wrongful nature of his conduct
Strict Liability
- abnormally dangerous activities
- wild animals
- domestic animals
- livestock
Strict Liability: Abnormally Dangerous Activities
persons who engage in unusually dangerous activities are liable even if act with utmost care.
Abnormally dangerous activity:
- uncommon (appropriateness of activity to place where carried on) AND
- very likely to cause physical harm (impossible to eliminate risk with reasonable care and if harm would be great compared to value to community)
Examples: blasting, toxic materials, etc.
*HARM SUFFERED MUST BE RELATED TO WHY ABNORMALLY DANGEROUS IN THE FIRST PLACE
Strict Liability: Wild Animals
- animal’s dangerous propensities cause injury
- harm foreseeable and
- harm related to animal’s dangerous propensities
Strict Liability: Domestic Animals
owner knows or has reason to know the animal has dangerous propensities
Strict Liability: Livestock
animal’s trespass
Strict Liability: Defenses
- Comparative Negligence: reduced proportionally based on percentage of fault allocable to plaintiff
- Assumption of the Risk: cannot recover if plaintiff (1) knowingness and (2) voluntarily encountered a risk
Products Liability - Prima Facie Case
STRICT LIABILITY
- commercial seller
- defective product
- existed when left the defendant’s control
- foreseeable injuries
Products Liability: Commercial Sellers
engaged in business of making or selling product
Products Liability: Defective Product - Evidence
unreasonably dangerous.
Noncompliance with regulations / industry standard is evidence regarding whether defective.
If product destroyed or cannot be inspected/located, can infer defect if injury that occurred was kind that ordinarily would not occur in absence of defect
Products Liability: Defective Product - Manufacturing Defect
unintended manner of product renders product more dangerous than usual (something wrong with that specific product)
Products Liability: Defective Product - Design Defect
intended design makes product unsafe for intended and foreseeable uses (all products dangerous). TWO TESTS:
- risk-benefit test: defective if benefits of alternative (safer) design clearly outweigh additional costs. Reasonable if both technologically and economically feasible and would reduce likelihood of harm
- consumer-expectations test: defective if renders product more dangerous than what ordinary consumer would expect when using product in intended manner
Products Liability: Defective Product - Failure to Warn
warnings do not sufficiently convey nature and extent of foreseeable dangerous (must be clear and conspicuous, not hidden).
- Read-and-Heed: courts presume plaintiffs would read adequate warning and take appropriate precautions
- Learned Intermediary: drug manufacturer not liable if manufacturer provides warning to physicians that is adequate for physicians
- Obvious Dangers: no warning required
Products Liability: Existence
defect must have existed when product left defendant’s control.
If substantially altered after left manufacturer, alteration = superseding cause.
Products Liability: Foreseeable Injuries
must cause bodily harm or property damage beyond product itself.
Foreseeable parties: customer, member of customer’s family or household, guests, bystanders.
Products Liability: Defenses
- comparative negligence
- implied assumption of the risk
- express assumption of the risk
- product misuse
Products Liability: Comparative Negligence
reduced proportionally based on percentage of fault allocable to plaintiff
Products Liability: Implied Assumption of the Risk
traditional rule - complete bar to recovery
modern rule - recovery reduced if plaintiff:
- knowingly and
- voluntarily encountered a risk (circumstances indicate assumed risk)
Products Liability: Express Assumption of the Risk
recovery barred if plaintiff
- knowingly and
- voluntarily encountered a risk (assumes risk verbally or in writing)
Products Liability: Product Misuse
defendant not liable for harm caused by misuse of product BUT may be liable if misuse reasonably expected
Products Liability: Express Warranties
seller:
- makes a promise or statement of fact about quality of goods
- describes certain attributes of the goods OR
- displays sample or model representing the attributes and quality of goods being sold
*Cannot disclaim through general disclaimers.
*Puffery (promise or opinion about value or quality) does not create express warranty
Products Liability: Implied Warranty of Merchantability
goods fit for the contract’s description; are of fair, average quality; and fit for ordinary purpose of goods.
Created under the UCC if:
- seller is merchant AND
- warranty is not disclaimed in writing (“as is”)
Products Liability: Implied Warranty of Fitness for a Particular Purpose
seller has:
- reason to know buyer has a particular purpose for which the goods will be used AND
- has reason to know that buyer is relying on seller’s judgment or skill to recommend or select suitable goods and so recommends or selects such goods for the buyer.
Nuisance - Types
- private
- public
Private Nuisance
- substantial and
- unreasonable interference with the
- use and enjoyment of land owned by an individual or a small number of individuals
*Defendant must act intentionally, negligently, or recklessly
Private Nuisance: Substantial
significant given general social expectations
Private Nuisance: Unreasonable
gravity of harm greater than utility of defendant’s conduct or conduct causes serious harm and compensating victims is feasible
Private Nuisance: Use and Enjoyment
interference affects land’s value or pleasure in occupying it
Public Nuisance
unreasonable interference with right the general public possesses
Public Nuisance: Standing
can be brought by:
- plaintiffs who have suffered from interference in a particularized manner different from harm to general public or
- the gov’t
(check this???)
Public Nuisance: Factors
- significant interference with public’s health, safety, peace, comfort, and convenience
- proscribed by law AND
- continuous or produced a permanent and long-lasting effect
Defenses to Nuisance
- comparative / contributory negligence
- assumption of the risk
- coming to the nuisance
Defenses to Nuisance: Comparative / Contributory Negligence
available only if nuisance’s action based on defendant’s negligence
Defenses to Nuisance: Assumption of the Risk
cannot recover if plaintiff:
- knowingly and
- voluntarily encountered a risk
Defenses to Nuisance: Coming to the Nuisance
Traditional rule: cannot recover if purchased / leased the land knowing defendant conducting the nuisance activities
Modern rule: courts balance if interference is substantial and unreasonable (knowledge does not eliminate liability)
Defamation: Prima Facie Case
- defamatory statement
- false statement
- of/concerning the plaintiff
- publication
- fault
- damages
Defamation: Libel v. Slander
slander - spoken words and gestures
libel - written communication or similar broadly disseminated statement
Defamation: Defamatory Statement
must damage plaintiff’s reputation
per quod: not defamatory on its face. plaintiff must introduce extrinsic evidence to prove defamatory
per se: defamatory on its face; presumed to damage reputation without proof
Defamation: False Statement
opinion is not enough unless implies or rests on facts
Defamation: of/concerning
reasonable person would understand the statement referred to the plaintiff
Large groups cannot recover BUT each person in a small group can recover
Defamation: Publication
statement communicated intentionally or negligently to a third party who understands defamatory meaning
Defamation: Fault
- Public official / figure: actual malice (knowledge or reckless indifference). someone with considerable responsibility in gov’t; prominent in society or has influence/power
- Private person and matter of public concern: negligence; includes matter of interest to large number of people
- private person, not a matter of public concern: no fault required
Defamation: Damages
Damages presumed for:
- private person, not a matter of public concern
- public official/figure OR
- accusations that person (a) committed a serious crime; (b) had a loathsome disease; (c) engaged in sexual activity / misconduct; or (d) behaved in a way that was incompatible with business / profession
Actual damages = emotional distress, lost wages. Must prove if not presumed
Defamation: Defenses
- truth
- absolute privilege
- qualified privilege
- consent
Defamation: Defenses - Truth
complete defense, even if causes reputational harm
Defamation: Defenses - Absolute Privilege
complete defense. Includes:
- testimony and materials used in judicial proceedings
- materials used by legislators performing legal functions
- communications between spouses
Defamation: Defenses - Qualified Privilege
If applies, plaintiff must prove defendant acted with intent, recklessness, malice, or overpublication. Covers:
- statements made by former employer to prospective employer
- statements in self-defense / to protect others
- testimony in legislative proceedings and
- negative remarks about artistic/cultural works
Defamation: Defenses - Consent
complete defense if scope of consent not exceeded
Invasion of Privacy: Types
- intrusion upon seclusion
- appropriation of name or likeness
- public disclosure of private facts
- false-light publicity
Intrusion Upon Seclusion
Plaintiff had a:
- reasonable and
- actual expectation of privacy upon which
- the defendant intruded and
- the intrusion would be highly offensive to a reasonable person
Appropriation of Name or Likeness
defendant
- used someone’s name, photo, or some other recognizable feature of a person
- without permission
- in commercial advertising
Liability does not extend to newsworthy or creative activities protected by the First Amendment
Public Disclosure of Private Facts
- publication
- would be highly offensive to a reasonable person and
- is not of public concern
*Truth is not a defense
False-Light Publicity
defendant
- spread a falsehood about a private person to
- a large number of people
- the false statement is highly offensive and
- it was done knowingly or with actual malice
Invasion of Privacy - Defenses
consent and privilege defenses available to defendant in defamation cases based on false light or public disclosure of private facts but NOT intrusion upon seclusion
Misrepresentation - Types
- fraudulent (intentional) misrepresentation
- negligent misrepresentation
Fraudulent (Intentional) Misrepresentation
- intentional misrepresentation of material fact (reasonable person would have cared about the fact or defendant knew plaintiff cared about it BUT not puffery / opinion)
- intent to reduce reliance
- actual inducement of reasonable reliance AND
- plaintiff suffers pecuniary damages as a result
Negligent Misrepresentation
- negligent statement of materially false information
- in the course of a business or profession
- for the economic guidance of others
- where the plaintiff reasonably relied on the information to the defendant’s detriment
Misrepresentation - Defenses
Negligent Misrepresentations:
- comparative negligence
- contributory negligence
- assumption of the risk
If intentional, no defenses available.
Intentional Interference with Business Relationship
- valid contract between the plaintiff and a third party
- defendant engaged in wrongful conduct
- defendant intended to, and did, cause a breach of th plaintiff’s contract AND
- plaintiff suffered damages as a result
Intentional Interference with Business Relationship: Defenses
no liability if defendant lawfully disclosed truthful facts or was trying to protect a legal or economic interest in good faith
Abuse of Process
occurs when party institutes a legal process or proceeding with a wrongful or ulterior motive
Malicious Prosecution
- party institutes a legal proceeding with no probable or reasonable cause for doing so
- party knows that claim is baseless or acts with malice regarding basis for claim AND
- proceeding resolved against the party
Tort - Immunities
- federal government
- state government
- parents
Tort - Immunities - Federal Government
can sue federal gov’t if:
- plaintiff exhausts administrative remedies and
- suit is brought in federal court.
No jury trial permitted.
Federal employees cannot be sued for actions within scope of employment - plaintiff must sue gov’t.
Tort - Immunities - State Government
generally, can sue state and local gov’ts if acting like private parties but not if acting purely as gov’ts
Tort - Immunities - Parents
Children can sue parents for intentional torts but parents have privilege to use reasonable force to discipline children
