Torts Flashcards
Elements of Negligence
Duty, breach, causation, damages
Duty
You owe a duty of care to foreseeable plaintiffs
Standard of care (generally)
Reasonable person standard – Reasonably prudent person under the circumstances
Standard of care (professional)
A professional owes a duty of reasonable care comparable to that of similar professionals in the community
Standard of care (children)
Children must act like other children their age
Standard of care (parents)
Parents have a duty of care if they knew or should have known the child would commit the tort
Duty to aid
Generally, there is no duty to render aid or to rescue someone
No duty to aid or rescue, but
if you begin to render aid, you owe reasonable care
Special relationships, definition
certain relationships under which you always owe a duty to aid or rescue
Types of special relationships under which you must always render aid include:
Parent/child
Innkeeper/guest
Airline/flyer
Three categories of person entering another’s land
Unknown Trespasser, Known Trespasser/Licensee, and Invitee
Duty owed to Unknown Trespassers
No duty owed
Duty owed to Known Trespassers/Licensees + example of licensee
Duty to warn of known dangers
Licensees are people coming to your house, usually socially
Duty owed to Invitees + example of invitee
Duty to warn, clean up, and make safe
Invitees are usually in a business situation, such as a supermarket
Breach
Failure to comply with level of care
Causation (4)
Actual cause, proximate cause, intervening cause, and superseding. cause
Actual cause
But for the ∆’s actions, no damage would have occurred
Proximate cause
Foreseeable
Intervening cause
Separate act which does not cut off liability because it was foreseeable
If foreseeable:
it was likely to occur and defendant pays no matter what
Superseding cause
Separate act that is so unforeseeable that it cuts off liability
Types of superseding causes
1) Acts of God
2) Intentional Torts
3) Criminal Acts
Criminal Acts exception
A defendant will be liable for the criminal actions of a third party if they were a reasonably foreseeable result at the time of the defendant’s negligence
Damages
Actual physical harm is required, economic damage alone is not enough
Defenses to Negligence (from one party to the other)
Contributory Negligence, Pure Comparative Negligence, Modified/Modern Comparative Negligence, and Assumption of Risk
Contributory Negligence
If plaintiff was even 1% liable, recovery is barred
Exception to contributory negligence
Last Clear Chance: defendant had the last clear chance to avoid accident and failed to do so. Plaintiff can then recover full damages.
Pure comparative negligence
Plaintiff will recover, but recovery is reduced by the percentage they were negligent
Modified/Modern Comparative Negligence
If plaintiff is liable for up to 50%, then they recover reduced damages. If more than 50%, they recover nothing
Assumption of risk
Plaintiff understands and appreciates the risk, but goes ahead anyway
Joint and Several liability
2+ people cause a single accident and liability is unknown. Plaintiff elects one ∆ to pursue and collects all damages
After π collects in J+S liability, pursued ∆ can claim
Contribution: may seek contribution from co-defendant to get money back that they are not liable for
Vicarious liability
Employer will be liable for the negligent actions of his employees as long as the employee was acting in the scope of their employment
Independent contractor
IC are not employees, therefore the person who hired them is not responsible for their negligence
Independent Contractor exceptions
If the job the independent contractor is doing is abnormally dangerous, or the job is a non-delegable duty (job done for the good of the public)
Negligence Per Se Elements
Violation of a statute or ordinance, plaintiff was in the class protected by the statute, and the harm caused is the type that the statute was designed to protect from
Res Ipsa Equation
(1)Whatever occurred does not normally occur absent negligence + (2) exclusive control by defendant = inference of negligence
What does res ipsa question?
Is there even a chance that the defendant could be responsible for the injury
Strict liability
Wild animals or abnormally dangerous activities
Wild animals
Lions, tigers, bears. Domesticated animals possible only if they have dangerous propensities.
Note on domesticated animals
Only a possessor who knows that the domesticated animal has a dangerous propensity is liable.
FEAR in Strict Liability
any kind of injury that is the type of injury that you suffer when running away in fear of a wild animal is also covered under SL
Abnormally dangerous activites
Blasting, explosives, hazardous chemicals,
Defense to Strict Liability
Assumption of risk: the plaintiff understood and appreciated the risk and proceeded anyway
Products liability situation
Plaintiff bought something, it is broken.
Products liability theories
Strict Product Liability, Negligence, and Warranty
Strict Product Liability
Product was defective when it left the factory, sold by seller engaged in business of selling the product, sold to a foreseeable user who used it in a manner it was intended
Who can you sue under SPL
Anyone in chain who handled the product
Negligence in products liability
Someone in the chain of selling failed to do something they were supposed to do
Warranty
There was a label, sticker, or something in writing promising how product would work
Nuisance types
Private nuisance and public nuisance
Private nuisance
Unreasonable interference of an objective person’s use and enjoyment of their property (no economic loss)
Public nuisance
Nuisance to the entire community brought by public official. Plaintiffs must prove special or unique harm
What intent is relevant for specific intent torts?
The intent to bring about the forbidden consequences that are the basis of the tort. The defendant need not intend the specific injury that results.
Ex: Intending to hurt vs. Wanting to break arm, specifically.
Transferred intent possibilities
Want to commit one tort but instead:
1) commits a different tort
2) commits the same tort against a different person
3) commits a different tort against a different person
Transferred intent limitations
Only invoked if BOTH the tort meant and the one committed are:
1) assault
2) battery
3) false imprisonment
4) trespass to land
5) trespass to chattels
Intentional torts causation
Causation is satisfied if the defendant’s conduct was a substantial factor in bringing about the injury
Intentional torts: Battery.
Elements:
1) harmful or offensive touching 2) with the plaintiff’s person
Elements:
1) harmful or offensive touching 2) with the plaintiff’s person
Intentional tort: Battery
All intentional torts require: (3)
Establishment of:
1) testable elements
2) intent and
3) causation
Contact is harmful if
It causes actual injury, pain, or disfigurement
Contact is offensive if:
It would be considered offensive to a reasonable person
Damages for intentional torts
not required for intentional torts EXCEPT IIED
For most intentional torts, damages are not required because (2)
1) Plaintiff can recover nominal damages even if actual damages are not proved.
2) plaintiff may recover punitive damages for malicious conduct
Assault elements (2)
(1) defendant causes reasonable apprehension in plaintiff (2) of an immediate battery
Apprehension has to be
Reasonable. No exaggerated fear of contact
Awareness in assault
The plaintiff must have been aware about the threat from defendant’s act
Apparent ability (assault)
If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.
False imprisonment elements
1) an act or omission of defendant that confines or restrain the plaintiff
2) the plaintiff must be confined to a bounded area
Methods of confinement (6)
1) physical barriers
2) physical force directed against plaintiff, immediate family or personal property
3) direct threats of force
4) indirect or implied threats of force
5) failure to release a plaintiff when under a legal duty to do so (taxi driver)
6) invalid use of legal authority
Time of FI confinement
Irrelevant how long the confinement lasted
Knowledge of confinement
A plaintiff must know of the confinement or be harmed by it
Definition of a bounded area
There must be no reasonable means of escape known to the plaintiff
Intentional infliction of emotional distress elements
1) Extreme and outrageous conduct by defendant
2) Plaintiff must suffer severe emotional distress
Definition of outrageous conduct
Conduct that transcends all bounds of decency
Conduct that is not normally outrageous may come so if:
1) it is committed by a certain type of defendant
OR
2) it is directed toward a certain type of plaintiff (more sensitive individuals)
OR
3) its continuous in nature
Intent for IIED
Recklessness as to the effect of defendants conduct will satisfy the intent requirement
Damages for IIED
Actual damages (emotional distress), not nominal damages are required.
The more outrageous the conduct the less proof of damage required
IIED in bystander cases (THIS FLASHCARD IS UNFINISHED)
Plaintiff may recover by showing either:
A) the elements for emotional distress
OR
B) 1) they were present when the injury occurred and 2) the distress resulted in bodily harm or the plaintiff is a close relative to the third person and 3) defendant knew these facts
Exam tip regarding IIED
IED is a fallback tort position if there is an alternative that will also allow plaintiff to recover, use it
Trespass to land elements
1) Physical invasion 2) of the plaintiff’s real property
Physical invasion must be by
A person or object, no intangible matter.
Intangible matter would be a nuisance, not a trespass .
A trespass to land claim belongs to
The person with the right to possess the property
Example of a person with right to process a property
If you enter a rented apartment without permission, the tenant would have the claim against you, the landlord would not
Intent in trespass to land
The defendant need only have intended to enter that particular piece of land
Damages in trespass to land
The plaintiff can recover without showing actual injury to the land
Trespass to chattels elements
Interference with a plaintiff’s right to possession in a chattel
Trespass to chattels: two types of interference
Intermeddling and dispossession
TTC: Intermeddling definition
Directly damaging the chattel
TTC: Dispossession definition
Depriving the plaintiff of their lawful right of possession of the chattel
Intent in TTC
Intent to do the act of interference
Mistake in TTC
A defendant’s mistaken belief that they own the chattel is not a defense
TTC Damages
At least damages to a possessory right are required
Conversion elements
1) defendant interferes with plaintiff’s right of possession in a chattel
2) the interference is serious enough to warrant that defendant pay the chattel’s full value
Acts of conversion
1) Wrongful acquisition (theft), 2) wrongful transfer, 3) wrongful detention, and 4) substantial change, severe damage, or misuse of chattel
Intent in Conversion
Intent to do the act that interferes with the plaintiff’s right of possession
Mistake in conversion
Mistaken belief that they own the chattel is not a defense
Conversion versus TTC: Seriousness of interference
The longer the period of withholding, and the more extensive the use, the more likely it is to be conversion. Less serious the interferences are TTC.
What can be converted?
Only tangible personal property and intangibles that have been reduced to physical form (promissory note)
Conversion remedies
Damages (FMV at conversion) or possession (replevin)
Defense to intentional torts: Consent
Generally, Consent to the defendant’s conduct is a defense
Majority view about consent
One cannot consent to criminal acts
Types of consent
Express and implied
The defendant is not liable if the plaintiff
Expressly consents to defendant’s conduct
Exceptions to express consent (3)
1) Mistake, if defendant knew about it and used it to their advantage
2) Fraud, if it was as to an essential matter
3) Duress, except for duress through threats of future harm or economic deprivation
Implied consent definition
A reasonable person would infer consent from custom and usage or from plaintiff’s conduct
Consent implied by law
Arises where action is necessary to save life or some other important interest in person or property
Capacity to consent
Plaintiff must have capacity to consent. Individuals without capacity are deemed to be incapable of consent.
Capacity to consent: people with limited capacity
Can consent but only within the scope of their understanding.
Exceeding consent
Defendant may be liable for exceeding scope of consent
Protective privileges:
Defense of self, others, or property
Questions to ask when protective privileges are involved?
Is the privilege available? (Only for preventing commission of tort)
Is a mistake permissible as to whether the tort is actually being committed?
Was a proper amount of force used?
Protective privileges issue
Whether the defendant’s response to the tort by the plaintiff constituted a tort against the plaintiff or instead was privileged by a defense
Self defense definition
When a person reasonably believes that they are being or are about to be attacked, they may use reasonably necessary force to protect against injury
Duty to retreat: majority rule
No duty to retreat
Duty to retreat: modern trend
Duty to retreat before using deadly force if able to safely do so, except for in your own home
Self-defense for initial aggressor
Cannot claim self defense except where other party responds to non-deadly force with deadly force
Self defense: Third party injuries
Protection from liability may extend to injuries to third parties while defending yourself, but not if it was deliberate
Self defense: mistake
A reasonable mistake as to the existence of the danger is allowed
Self defense: amount of force
Only force that appears reasonably necessary to prevent harm
Defense to property
Reasonable force to prevent tort against real or personal property. Must first request to desist or leave if safe.
Hot pursuit defense to property
One may use force in hot pursuit of another who has dispossessed them of their chattels because tort is technically still in progress
Mistake in defense of property
Reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required
Force in defense of property
Reasonable force. One may not use force causing death or serious bodily harm unless invasion also entails threat of bodily harm
Shoplifting detentions definition
A shopkeeper has the privilege to detain a suspected shoplifter for investigation but:
1) must have reasonable belief as to fact of theft
2) detention must be in a reasonable manner with only non-deadly force; and
3) detention can only be for a reasonable period of time and only for investigation purposes
Reentry onto land: common law
One could use force to reenter land only when an intruder came into possession tortiously
Reentry onto land: modern law
You cannot resort to self-help. There are procedures such as ejectment
Recapture of chattels
When another’s possession began lawfully, only peaceful means can be used for recovery of chattels. When it was obtained tortiously, reasonable force can be used while in hot pursuit
Necessity
A person may interfere with the real or personal property of another when it is reasonable and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to advert it
Types of necessity
Public necessity and private necessity
Public necessity
To advert an imminent public disaster
Private necessity
When the action was to prevent serious harm to a limited number of people. Defendant must pay for any injury they cause.
Necessity is a defense _______
Only to property torts
Examples of people with limited capacity: (2)
Older children and people with mild intellectual disabilities
