Torts Flashcards
Prima Facie Case for Intentional Torts
All intentional torts require an act by the defendant, intent by the defendant to bring about some physical or mental effect upon another person, and the effect must have been legally caused by the defendant’s act or set in motion by the defendant.
Transferred Intent
Transferred intent will provide the requisite intent when the defendant held the necessary intent with respect to one person but instead commits a different tort against that person or any other person, or commits the intended tort against a different person.
Note - transferred intent cannot be invoked with intentional torts of IIED or converstion
Causation
Causation is the effect legally caused by the defendant’s act or some action that is set in motion by the defendant.
Intent
Intent can be achieved by either direct intent when the defendant has a desire or purpose to bring about the effect, or indirectly when the defendant knows with substantial certainty that a particular effect will occur.
Specific vs General Intent
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
Battery
Battery is an intentional infliction of harmful or offensive bodily contact.
- Intent can be desire/purpose or knowledge with substantial certainty
- Harmful touching encompasses touching that causes pain or bodily damage; offensive touching is that which offends a reasonable person’s sense of dignity
- Contact can be direct or indirect and includes contact with an object closely identified with the plaintiff’s body
Assault
Assault is the intentional causing of an apprehension of an imminent bodily harm or offensive contact.
- Intent can be desire/purpose or knowledge with substantial certainty
- Causing apprehension of means the plaintiff must be aware of the threat
- Imminent means the defendant must have the apparent present ability to carry out the threat
- Harmful contact encompasses touching that causes pain or bodily damage; offensive touching is that which offends a reasonable person’s sense of dignity
Intentional Infliction of Emotional distress
IIED is the intentional or reckless infliction of severe emotional or mental distress caused by the defendant’s extreme and outrageous conduct.
- Intent can be satisfied with desire/purpose, knowledge with substantial certainty, or reckless disregard
- The plaintiff must suffer severe emotional distress, though bodily harm is not required
- Extreme and outrageous conduct is that which is beyond the bounds of human decency
Third-Person Liability for IIED
Third-person liability for IIED occurs where the defendant intentionally or recklessly directs extreme and outrageous conduct at someone other than the plaintiff, but the plaintiff can recover for IIED. The defendant will be liable to any close relative also present (the defendant must be aware of their presence), or anyone else present who suffers a physical harm as a result of the emotional distress (e.g., heart attack).
False Imprisonment
False imprisonment occurs where the defendant intentionally causes the plaintiff to be confined, restrained, or detained to a bounded area with no reasonable means of escape, of which the plaintiff is either aware of or harmed.
- Intent can be either desire/purpose or with knowledge of substantial certainty
- Confined, restrained, or detained
- Bounded area
- No reasonable means of escape
- Plaintiff must be aware of the confinement or harmed by it
Trespass to Land
Trespass to land is the intentional physical invasion of the land of another.
- Intent can be satisfied by desire/purpose; invading land of another thinking its your own is no defense
- Physical invasion does not require the land be harmed and can include placing or projecting an object onto someone else’s land without permission
- Real property of another
Trespass to Chattels
Trespass to chattels is an intentional interference with a person’s use or possession of a chattel.
- Intent can be satisfied with desire/purpose; mistake that you own the chattel is no defense
- Interference with use or possession
- Chattel = personal property
- Measure of damages is chattel’s loss of value caused by loss of use
Conversion
Conversion is an intentional interference with the plaintiff’s possession or ownership of property that is so substantial it warrants requiring the defendant to pay the property’s full market value.
- Intent can be satisfied with desire/purpose; mistake of ownership not an excuse
- Substantial interference includes takes possession, transfers possession, refuses to return/destroys a chattel
- Chattel is personal property
- Damages is full market value at time of conversion
Name the Intentional Torts
Battery, Assault, Trespass to Land/Chattels, IIED, False Imprisonment
Name the Defenses to Intentional Torts
Consent, Self-Defense, Defense of Others, Defense of Property, Recapture of Chattels, Shopkeeper’s Privilege, Necessity
Consent
Plaintiff consents to the defendant’s conduct. Consent can be express or implied.
Self-Defense
A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact or any threatened confinement or imprisonment.
Defense of Others
A person may use reasonable force to defend another person when he reasonably believes that person would be entitled to defend himself.
Defense of Property
A person may use reasonable force to defend his real or personal property. The defendant must first make a verbal warning unless it would be futile or dangerous.
Recapture of Chattels
A property owner has the general right to use reasonable force to regain possession of chattels taken by someone else. The property owner must be in fresh pursuit, and deadly force is never allowed.
Shopkeeper’s Privilege
Shopkeepers have a privilege to temporarily detain individuals whom they reasonably believe are in possession of shoplifted goods.
Necessity
A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to prevent great harm.
Public necessity applies when the threatened harm was to the community at large, and no compensation for damage is owed.
Private necessity applies when a person acts to prevent injury to himself or his property, and compensation for actual damages is owed.
Negligence
Negligence requires a showing of duty, breach, actual and proximate cause, and damages.
Headings:
Duty
Breach
Actual Cause
Proximate Cause
Damages
Duty (Negligence)
Foreseeable Plaintiff
A duty is owed to all foreseeable plaintiffs. Under the majority rule, a foreseeable plaintiff is one who is in the zone of danger. Under the minority view, a defendant owes a duty to everyone, including unforeseeable plaintiffs.
Standard of Care - RPP
A person has a duty to act as a reasonably prudent person under the circumstances, unless a special duty of care applies.
Note - if another standard of care applies, such as negligence per se, professionals, children, landowner, etc. they are their own heading under Duty
SOC - Negligence Per Se
A statute may set forth the applicable standard of care. In order for an individual to be held to the standard of care set forth in a statute, there must be a statute mandating a specific duty, the plaintiff must prove they are within the class of persons the statute is designed to protect, and they suffered the type of injury the statute seeks to protect against.
Protected Person
Protected Injury
Remember, negligence per se only establishes duty and breach (plaintiff must still prove causation and damages); compliance with a statute does not itself establish the defendant was not negligent
SOC - Professionals
Professionals are required to possess the knowledge and skill of a member in their profession and occupation in good standing.
SOC - Children
Children have a duty to conform to the conduct of a child of like age, intelligence, and experience, unless engaged in an adult activity.
SOC - Land Owner
The standard of care for a landowner depends on whether the plaintiff is a trespasser, invitee, or licensee.
Attractive Nuisance Doctrine
A landowner must exercise ordinary care to avoid foreseeable injury to children if:
1. the owner knew or should have known that the area is one where children trespass;
2. the condition poses an unreasonable risk of death or serious injury;
3. the children do not discover the risk due to their youth;
4. the benefit to the owner and expense to remedy the condition is slight compared to the risk; and
5. the owner fails to use reasonable care to eliminate the danger.
Trespassers (SOC - Landowner)
A landowner generally owes no duty to make the land safe or warn of dangerous conditions to undiscovered trespassers or invitees/licensees that go beyond the scope of their invitation. However, there is a duty to warn known or frequent trespassers of known dangers and artificial conditions that pose a risk of death or serious bodily harm.
Invitee (SOC - Landowner)
An invitee is one who enters the land in response to an invitation by the owner to do business with the owner or as a public invitee for land open to the public at large. The owner has a duty to reasonably inspect for hidden dangers and take affirmative action to remedy a dangerous condition by making repairs.
Licensee (SOC - Landowner)
A licensee is one who enters the land with the owner’s consent for his own purpose. An owner has a duty to warn of all known dangerous conditions that create an unreasonable risk of harm that the licensee is unlikely to discover; however, there is no duty to repair or inspect.
SOC - Landlord-Tenant
A tenant has a general duty to maintain the premises and must abide by the same duties owed as land owners. In addition to the duties owed by a landowner, a landlord must also warn of existing dangers which he knows or should know that the tenant is not likely to discover, make repairs not negligently, and maintain common areas.
Breach (Negligence)
A breach occurs when the defendant falls below the applicable standard of care. Courts often use a balancing test to determine if the unreasonableness of the risk outweighs the utility of the act (risk-utility).
Res Ispa Loquitor
Res ipsa loquitur can be used to establish breach of duty in situations where the event transpiring creates an inference the defendant was probably negligent because i) the accident is a type that ordinarily does not occur in the absence of negligence and ii) other causes are sufficiently eliminated by evidence the defendant had exclusive control.
Actual Cause (Negligence)
The defendant is the actual cause of the plaintiff’s injuries if the injury would not have occurred but-for the act.
If multiple fault causes harm…
1. Where there are two acts, only one of which could have caused the injury, but it is unknown which caused the injury, the burden of proof shifts to each defendant to show that the other caused the harm.
2. Where two or more defendants are at fault and their conduct combines to cause the harm to the plaintiff, they will be jointly and severally liable as their actions were each a substantial factor in causing the injury.
Proximate Cause (Negligence)
The defendant is also the proximate cause of the plaintiff’s injuries if the injury was reasonably foreseeable.
Exception - Eggshell Plaintiff
The defendant is liable for any additional unforeseen physical consequences to the plaintiff caused by plaintiff’s weakness or susceptibility because the defendant takes the plaintiff as he finds him.
Intervening Causes (Proximate Cause)
A defendant is liable for all foreseeable intervening causes, which are those take take place after tortious conduct and worsen the plaintiff’s injury.
E.g., medical malpractice, negligent rescue
Superseding Causes (Proximate Cause)
A defendant is generally not liable for superseding causes, which are acts that are not a reasonably foreseeable consequence of the defendant’s actions.
Damages (Negligence)
Damages require an actual injury to the plaintiff. Nominal damages are not available. The plaintiff may recover for direct loss, out-of-pocket economic losses stemming from the injury, pain and suffering, and hedonistic damages (loss of enjoyment of life).
Negligent Infliction of Emotional Distress (NEID)
The defendant is liable for NEID when they engage in negligent conduct that causes the plaintiff to suffer serious emotional distress. There are three kinds of NEID - zone of danger, bystander recovery, and special relationship.
Zone of Danger (NEID)
A plaintiff can recover for NEID from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that:
i) He was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and
ii) The threat of physical impact caused emotional distress. The majority rule requires a physical manifestation of emotional distress (e.g., nightmares).
Bystander Recovery (NEID)
Most states allow a bystander plaintiff outside the zone of danger to recover for emotional distress if that plaintiff:
i) Is closely related to the person injured by the defendant;
ii) Was present at the scene of the injury; and
iii) Personally observed (or otherwise perceived) the injury.
As with zone of danger, the majority rule requires physical manifestation of symptoms.
Special Relationship (NEID)
The duty to avoid NEID exists without any threat of physical impact or physical symptoms in cases in which there is a special relationship between the plaintiff and the defendant.
The most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative.
Name the Defenses to Negligence
Contributory Negligence, Comparative Negligence, Assumption of the Risk
Contributory Negligence
Contributory negligence will bar recovery if the plaintiff is found negligent even in the slightest amount. This has been abolished in most jurisdictions.
Comparative Negligence
Comparative negligence applies when the plaintiff’s own negligence also contributed to his injuries, but does not completely bar recovery. In pure comparative negligence, the liability is divided between the plaintiff and defendant in proportion to their relative degrees of fault and damages are reduced accordingly.
Assumption of the Risk
A plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant’s act where he know of the risk and voluntarily consented despite the risk.
Modified Comparative Negligence
Modified comparative negligence bars the plaintiff’s recovery if he is found more negligent than the defendant.
Strict Liability for Animals
An owner is strictly liable for:
1. Reasonably foreseeable damage done by the trespass of his animals;
2. Injuries caused by wild animals that result from a dangerous propensity typical of the species; and
3. Injuries caused by domestic animals if the owner knew or had reason to know of that particular animal’s dangerous propensities.
Strict Liability for Abnormally Dangerous Activities
An abnormally dangerous activity is one that creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and the activity is not commonly engaged in.
Strict Products Liability (SPL)
A seller of a product is liable without fault for injuries caused by a defective product. The plaintiff must prove the following elements: commercial supplier, defective product, actual cause, proximate cause, and damages.
Commercial Supplier (SPL)
A commercial supplier is one who places a product in the stream of commerce without substantial alteration. A commercial supplier includes retailers, distributors, and manufacturers.
Defective Product (SPL)
A product may be found defective in three ways: manufacturing defect, design defect, or warning defect.
Manufacturing Defect (SPL)
A manufacturing defect exists when a particular product was not manufactured as intended.
Design Defect (SPL)
A design defect exists when the product design itself is faulty. Courts use one of two tests to establish a design defect:
Consumer Expectation Test
A product is defective if it does not meet the expectations of an average consumer when used in a reasonably foreseeable manner.
Risk-Utility Test
A product is defective if the risk of danger inherent in the design outweighs the benefits of such a design and the danger could have been avoided or reduced by adoption of a reasonable, cost-effective alternative design.
Compliance with Safety Standards (SPL)
Non-compliance with a government standard establishes a defect; however, compliance with the standard is not conclusive that a product is not defective. Similarly, non-compliance with an industry standard can show there is a defect, but compliance with standards is not dispositive that a product is not defective.
Actual Cause (SPL)
The plaintiff must show that but-for the defect, he would not have been injured and that the defect existed at the time it left the defendant’s control.
Proximate Cause (SPL)
The plaintiff must also show the defendant was the proximate cause of their injuries. The defendant is the proximate cause of the plaintiff’s injuries if the injury was reasonably foreseeable.
Failure to Warn (SPL)
A warning defect exists when the maker fails to give adequate warnings as to a known danger (or danger they should have known about) in the particular product or use of the product that is not obvious. A court may use the risk-utility test to determine if the risk could have been reduced or avoided with reasonable instructions/warnings.
Damages (SPL)
A plaintiff must show physical injury or property damage. There is no recovery for pure economic loss.
Defenses to SPL
Contributory negligence for product misuse may be a defense depending on the jurisdiction, but won’t apply if the plaintiff’s negligence or misuse was foreseeable. Assumption of the risk is also a defense.
Steps for SPL Analysis
STEP ONE - Strict Products Liability Analysis
STEP TWO - Negligence Analysis* *
(causation/damages/defenses = see above)
STEP THREE - Warranties
*Note that retailers and distributors are rarely liable under negligence because they only have a duty to inspect or warn of known dangers, a manufacturer would likely still be liable under negligence theory
Warranties (SPL)
An express warranty is any statement of fact or promise concerning goods. The plaintiff need only show that the product did not live up to its warranty to establish breach.
An implied warranty of merchantability exists in every sale of goods, warranting that they are fit for the ordinary purposes for which the goods are used.
An implied warranty of fitness for a particular purpose is implicated in every sale of goods where the seller knows or has reason to know that the buyer wants the goods for a particular purpose and the buyer relies on the seller’s judgment to recommend a suitable product.
Misrepresentation in SPL
A merchant is strictly liable for any harm to consumers when they knowingly or with reckless disregard misrepresent their product. This misrepresentation must be made with intent that the user will rely on such misrepresentation in the purchase and use of the product.
Fraud
Intentional misrepresentation is common law fraud or deceit. The plaintiff must show:
1. misrepresentation of a material fact;
2. scienter (knowledge the statement is false/reckless disregard for its truth);
3. intent to induce the plaintiff’s reliance;
4. causation;
5. reliance by plaintiff was justified; and
6. pecuniary damages
Negligent Misrepresentation
Negligent misrepresentation requires establishing:
1. misrepresentation by the defendant in a business or professional capacity;
2. the defendant had no reason to believe the misrepresentation was true;
3. intent to induce the plaintiff’s reliance;
4. causation;
5. justifiable reliance by the plaintiff; and
6. pecuniary damages
Private Nuisance
A private nuisance is a substantial, unreasonable interference with another person’s use or enjoyment of his land in which he has an interest. A substantial interference is one that is offensive, inconvenient, or annoying to the average person in the community. The interference is unreasonable if either the harm to the plaintiff outweighs the utility of the defendant’s conduct or the harm is greater than the plaintiff should be required to bear without consideration.
Public Nuisance
A public nuisance is a substantial, unreasonable interference with the health, morals, welfare, safety, or property rights of the community.
Courts consider factors in establishing harm to the community including the location of the nuisance, the frequency and duration, degree of damage, and social value.
Recovery by a private party is only available if the private party suffered a harm different in kind (not merely degree) than that suffered by the public.
Defamation
Defamation requires a defamatory statement, made of and concerning the plaintiff by the defendant, that was published to a third party, and caused damage to the plaintiffs reputation.
Defamatory Statement (Defamation)
A defamatory statement is a false statement that holds the plaintiff to contempt or public ridicule. Pure opinions and true statements are not defamatory.
Of and Concerning (Defamation)
The plaintiff must be identifiable.
Publication to a Third Party (Defamation)
The publication must be made to a third party, and the third party must understand the statement. The publication can be made intentionally or negligently, and repeaters of defamatory statements can also be liable.
Harm to Reputation (Defamation)
The statement need not have actually harmed the plaintiff’s reputation, but the plaintiff must show that it would have had it been believed.
Damages (Defamation)
Damages depend on the type of defamation. If the defamatory statement was written/printed, it is libel, and the plaintiff does not need to prove special damages; general damages are presumed. If the statement was spoken, it is slander, and the plaintiff must prove special damages, which means the plaintiff suffered some pecuniary loss as a result of the slander.
Slander Per Se (Defamation)
Damages are presumed for slander per se. Slander per se is established for statements that adversely reflect on the plaintiff’s fitness to conduct his business or profession, alleges the plaintiff has a loathsome disease, imputes morally culpable criminal behavior on to the plaintiff, or imputes sexual misconduct to the plaintiff.
Public Figure (Defamation)
A plaintiff is a public figure when he has achieved pervasive fame or notoriety or voluntarily assumed a role in a public controversy. When the plaintiff in a defamation claim is a public figure, they must prove actual malice. Actual malice exists when the defendant made the statement with 1) either knowledge that it was false, or 2) reckless disregard as to whether it was true or false. Damages are presumed if actual malice is shown.
Defenses to Defamation
Consent, truth, absolute privilege (remarks made during judicial/legislative proceedings, government officials, or between spouses)
Misappropriation
Misappropriation is the unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage.
Intrusion Upon Seclusion
Intrusion upon seclusion is the intrusion into a plaintiff’s private affairs, where one has a reasonable expectation of privacy, that is highly objectionable.
False Light
False light occurs when one attributes to the plaintiff views he does not hold or actions he does not take, the false light is objectionable to a reasonable person under the circumstances, and the publication is public. Malice must be shown for public figure.
Abuse of Process
Abuse of process occurs when the defendant intentionally misuses a legal process for an ulterior purpose and the defendant committed a willful act in a wrongful manner that caused damage to the plaintiff.
Negligent Hiring
An employer may be found liable when they fail to exercise reasonable care in choosing an employee to perform specific duties.
Vicarious Liability
An employer is vicariously liable for the negligent acts of their employee if the employee was acting within the scope of their employment.
