torts Flashcards
elements of intentional torts
*act or omission
*intent
*causation
definitions of intent
*purpose of causing something
*knowing with substantial certainty the thing will happen
elements of battery
*D acts in a manner that
*causes harmful or offensive contact (direct or indirect contact, with anything connected to the person)
*with the intent to cause contact
elements of assault
*D acts in a manner that
*causes reasonable apprehension of imminent harmful or offensive conduct
*with the intent to cause apprehension
elements of intentional infliction of emotional distress
*D engages in extreme and outrageous conduct that
*causes P severe emotional distress
*with the intent to cause distress or with recklessness as to the risk of causing distress
elements of false imprisonment
*D acts in a manner that
*directly or indirectly results in confinement
*with the intent to confine or restrain P within fixed boundaries
*and P is conscious of the confinement or harmed by it
defenses to intentional torts
*consent (actual and implied)
*capacity
*self-defense
*defense of others
*defense of property
*recapturing chattels
*parental privilege
*privilege of arrest
what use of force is allowed for self-defense, defense of others, defense of property, recapture of chattels, regaining possession of land?
*self-defense: reasonable and proportionate
*defense of others: reasonable, as long as third party had privilege of self-defense
*defense of property: reasonable BUT never deadly
*recapturing chattels: reasonable unless the taking was legal
*regain possession of land: no force (legal remedies only)
elements of trespass to chattels
*dispossess P of chattel OR use or intermeddling with P’s chattels (or damage)
*with the intent to perform the interfering act (not intent to interfere)
elements of conversion
*deprive P of possession OR interfere with the chattel in a manner so serious as to deprive P entirely of its use
*with the intent to perform the interfering act (not intent to interfere)
trespass to chattels vs. conversion (+factors)
*the level of interference
*the duration and extent of interference
*D’s intent to assert a right inconsistent with the rightful possessor
*D’s good faith
*the expense or inconvenience to P
*the extent of harm
elements of trespass to land
*D physically invades land (with person or objects)
*with the intent to enter or invade
private vs. public nuisance
D substantially and unreasonably interferes with P’s use and enjoyment of their land
vs.
D unreasonably interferes with a right common to the public as a whole
exception to trespass to land
*private necessity: liable for actual damages
*public necessity: complete bar
circumstances creating an affirmative duty to act
*assuming a duty / voluntary undertaking (e.g., rescuer)
*placing another in danger / risk creator
*by authority: must have the ability and actual authority to control another
*by (special) relationship
traditional (majority) rule for land possessor’s duty of care
*invitee: on land for a material/economic purpose or land open to public / must use reasonable care to inspect, discover unreasonable dangerous conditions, and take reasonable steps to protect
*licensee: gets permission to enter / must make the land reasonably safe or warn of hidden dangerous, must use reasonable care in acting
*trespasser: no duty (but can’t act willfully or wantonly)
*discovered/anticipated trespasser: same as licensee
minority rule for land possessor’s duty of care
reasonable care for all except flagrant trespassers
elements of attractive nuisance
*artificial conditions exists in a place where the owner knows or has reason to know that children are likely to trespass
*the owner knows or has reason to know the artificial condition poses an unreasonable risk of death or serious bodily harm
*children, due to age, don’t discover or can’t appreciate the danger
*maintenance is slight compared to the risk of injury
*the owner failed to exercise reasonable care
landlord duties
*maintain safe common areas
*repair hazardous conditions
*warn of hidden dangers
duty to off-premises victims
prevent unreasonably dangerous artificial conditions
informed consent exceptions
*the risk is commonly known
*the patient is unconscious
*the patient waives or refuses informed consent
*the patient is incompetent
*the patient would be harmed by the information
elements of negligence per se
*a statute imposed a duty on D
*D violated the statute
*P suffered the type of harm intended to be prevented by the statute
*P was in the class meant to be protected
*the violation caused the harm
considerations for duty
*does a duty exist? was this a foreseeable P and foreseeable harm?
*what is the standard of care?
considerations for causation
*is there “but for” causation? if not, are there multiple tortfeasor? multiple sufficient causes? a loss of chance?
*was the breach a proximate cause of the harm? was the harm within the scope of the breach? did an intervening (foreseeable, like negligence) vs. superseding cause occur?
excuses to negligence per se
*compliance would have been more dangerous
*compliance was impossible (or an emergency arose)
*the party exercised reasonable care in trying to comply
*the party was incapacitated
*the statue is too vague
elements of res ipsa loquitor (traditional vs. modern)
*the accident was of a kind not ordinarily occurring in the absence of negligence
*the thing causing the harm was within the exclusive control of D
*the harm was not due to any action by P
vs.
*the accident was of a type ordinarily occurring as a result of negligence of a class of actors
*D is a member of that class
what are compensatory damages?
actual damages provided with the purpose of making P whole again
how are compensatory damages calculated for personal injury and property damage?
*personal injury = past and future medical expenses + lost income + reduced earning capacity + past and future pain and suffering
*property damage = different in market value (OR cost of repair or replacement)
when does NIED apply?
*if the person is within the zone of danger and the threat of immediate physical impact (caused by D’s negligence) caused them emotional distress
*if the person is a bystander (closely related to injured person, present at scene, and personally observed the injury)
*if a special situation exists (announcement of death or illness in error, mishandling corpse of loved one, contaminating food with repulsive object)
five special types of liability for negligence
*loss of consortium
*wrongful death
*survivor action
*wrongful birth
*wrongful life
when are employers liable for the actions of independent contractors?
*nondelegable duties: inherently dangerous activities, duty to public or specific Ps for certain work, duty to keep premises safe
*apparent authority: the injured person accepted the IC’s services on a reasonable belief the IC was an employee (based on the manifestations of the employer), the IC’s negligence is a but for and proximate cause of the harm
types of liability for car owners
*negligent entrustment: directly liable for negligently entrusting a car to someone who is not in the position to exercise reasonable care
*family purpose doctrine: vicariously liable for any family member driving the car with permission
*owner liability: vicariously liable for anyone driving the car with permission
triggers of joint and several liability
*multiple tortfeasors
*multiple sufficient causes
*res ipsa loquitor against multiple Ds
*tortfeasors acting in concert
*vicarious liability
types of comparative negligence
*pure: reduce damages by amount at fault
*modified: same but recovery barred if 50% or more at fault
defenses to negligence
*contributory negligence
*comparative negligence
*assumption of the risk
factors influencing whether a condition is abnormally dangerous (strict liability)
*the severity of the harm
*the appropriateness of the location
*whether the condition brings great value to the community
considerations for strict liability based on animals
*is it a domestic animal?
*does the domestic animal have a known dangerous propensity? or is it a vicious watchdog?
elements of strict product liability
*a defect exists
*that existed when it left D’s control
*and which caused P’s injury (physical harm or damage to property other than the defective product) when used in a foreseeable way
types of product defects (+elements/tests)
*manufacturing defect: the product deviated from the intended design — the product was nonconforming with the manufacturer’s specification
*design defect: does the design comply with consumer expectations? OR does the risk outweigh the utility (foreseeable risk of harm) and the risk could be mitigated by a reasonable design alternative?
*failure to warn: a foreseeable risk exists that is not obvious to the ordinary consumer + reasonable warnings would reduce that risk
defense to strict product liability
*comparative negligence
*assumption of the risk
*unforeseeable misuse, modification, or alteration
*substantial change
*compliance with regulation
*“state of art”
elements of defamation
*defamatory (false + diminish/deter) statement
*of or concerning P (a living person)
*published (communicated) to third party who understood its defamatory nature
*damage to P’s reputation results
what are the constitutional limits to defamation?
*public official or figure: actual malice required to recover
*private individual + matter of public concern: negligence required to recover actual damages
*private individual + matter of private concern: negligence require to recover general damages
libel vs. slander vs. slander per se
written, printed, or recorded statement / general damages
vs.
spoken statement / special damages (economic loss)
vs.
false spoken statement concerning
*commission of a serious crime
*unfitness for a trade or profession
*has a loathsome disease
*severe sexual misconduct
for general damages
absolute privileges to defamation
statements
*in judicial proceedings
*in legislative proceedings
*between spouses
*in required publications by TV/radio
conditional privileges to defamation
*the statement must be made in good faith
*P can show a higher level of culpability to overcome
*statements made
*in the interest of D
*in the interest of the recipient of the
statement
*impacting some important public
interest
right to privacy claims
*intrusion upon seclusion
*false light
*appropriation of right to publicity
*public disclosure of private facts
elements of intrusion upon seclusion
*D intrudes upon the private affairs of P
*in a manner that would be highly offensive to a reasonable person
elements of false light
*D makes public facts about P
*that place P in a false light
*and which would be highly offensive to a reasonable person
elements of appropriation of right to publicity
*D appropriates P’s name or likeness
*for D’s advantage
*without P’s consent
*and causes injury
elements of public disclosure of private facts
*D publicizes a matter concerning the private life of another
*the matter is highly offensive to a reasonable person
*the matter is not of legitimate concern to the public
elements of intentional misrepresentation
*false representation of a material fact (includes concealment)
*D knew the representation was false or acted recklessly as to its falsity
*D acted with an intent to induce reliance
*such actions cause reliance (action/restraint)
*reliance was justifiable
*actual damages were incurred
elements of negligent misrepresentation
*false representation of a material fact
*D was negligent as to its falsity
*in the course of business or a profession
*P was in a contractual relationship with D OR D knows P is in a limited group
*the misrepresentation cause justifiable reliance or a pecuniary loss
elements of intentional interference with a contract
*valid contract with a third party
*D knew of the contract
*D intentionally interfered, leading to breach or additional burden to performance
*damages
elements of misappropriation of trade secrets
*existence of information that is not generally known
*P took reasonable precaution to protect it
*D acquired the information by improper means
elements of trade libel
*publication
*of a false or derogatory statement
*made with malice
*relating to P’s business
*special damages were incurred due to the interference with or damage to P’s business relationships
elements of slander of title
*publication
*of a false statement
*derogatory to P’s title
*made with malice
*causing special damages
*diminished value in the eyes of third parties
elements of malicious prosecution
*intentionally and maliciously
*instituting a legal action for an improper purpose
*without probable cause
*dismissed in favor of the person the action was brought against
elements of abuse of process
*beginning a legal procedure properly
*but abusing it to achieve an ulterior motive
requirements for assumption of the risk and effects
*voluntary acceptance of a known and unreasonable risk of harm
*subsumed into comparative fault in many jurisdictions
what is an abnormally dangerous condition?
*a condition that creates a foreseeable and highly significant risk of physical harm, even when due care is exercised
*and the activity is not commonly engaged in
what is the merchant’s privilege to false imprisonment?
a business confines someone to investigate, where it
*reasonable believes the person is a shoplifter
*the confinement is done in a reasonable manner in or near the premises
*for a reasonable time
what is the firefighter’s rule?
emergency personnel cannot recover from a party whose negligence cause an injury, where the injury results from a risk inherent to the job
when is an owner of a wild animal strictly liable?
for harm caused
*by P’s fearful reaction to the animal
*as a direct result of the animal’s abnormally dangerous characteristics
doctrine of transferred intent rules and applicability
*same tort, different person: battery, assault, false imprisonment
*different tort, same person: battery, assault
factors for whether conduct is extreme and outrageous
*abusing position of authority
*exploiting known special vulnerability
*repeated or prolonged conduct
*going beyond bounds of human decency
alternatives to proving duty and breach
*negligence per se
*res ipsa loquitor
define the rescue doctrine
when a person negligently endangers themself or others, they are liable for harm caused to any rescuers (except: firefighter’s rule)
three special circumstances that may modify the standard of care
*physical disability
*involuntary intoxication
*children
is an expert required to testify to the applicable standard of care for a professional?
yes, unless the negligence is so apparent that a lay person could identify it
when is an employer vicariously liable for intentional torts of an employee?
*reasonable force inherent to and committed within scope of employment
*employee authorized to act on employer’s behalf
six types of vicarious liability
*parents
*respondeat superior
*nondelegable duty
*business partner
*Dram shop
*car owners
define comparative fault
P’s recovery is reduced by their percent of fault, as determined by the jury
define joint and several liability
when multiple Ds cause P’s harm, P may recover the full amount from any one D
define the economic loss doctrine
P can’t recover for negligence or strict liability for only economic losses (must show some physical injury or property damage)
