Torts Flashcards
Intent
(a) purpose, or (b) knowledge
Purpose = conscious objective to perform act or cause result
knowledge = substantial certainty result will occur
Battery
(1) intentional, (2) harmful, or offensive (3) physical contact
harmful = impairs physical condition or causes pain or illness
offensive = offend reasonable person
Assault
(1) physical act, (2) intentionally, (3) place victim in reasonable apprehension of (4) imminent battery
- words alone don’t count, but do count towards reasonable apprehension piece
- D need not be able to actually carry it out, so long as P reasonably believes D can and will carry out battery
- no fear necessary
false imprisonment
(1) intentionally, (2) confine victim to bounded area, (3) victim knows of confinement or is harmed by it (4) victim doesn’t have reasonable means of escape or should be aware of reasonable means of escape
- confine can be (a) physical, (b) threat, (c) duress, (d) humiliation
- escape isn’t reasonable if it would place P in unreasonable danger
- Defense: D can “citizen arrest” P if (1) felony, (2) D committed it, OR (1) misdemeanor, (2) breach of peace
Intentional infliction of emotional distress
(1) extreme and outrageous conduct, (2) intentionally or recklessly, (3) causes, (4) victim to suffer severe emotional distress (5) (some jx: physical symptoms)
- extreme and outrageous = civilizes society would regard it as intolerable
- recklessness = consciously disregard substantial and unjustifiable risk conduct will cause victim to suffer severe emotional distress
- severe = reasonable ordinary firm person could not endure it
BYSTANDER CLAIMS:
- FAMILY MEMBER: (1) V suffers severe emotion distress by seeing 3rd party injured, (2) close family relationship, (3) V present at scene, (4) V sees injury as it occurs, (5) (some jx: 3rd party suffered severe bodily injury/death)
- ZONE OF FORESEEABLE DANGER (1) V suffers severe emotional distress by seeing 3rd party injures, (2) they were themselves within the zone of foreseeable danger
- (NOTE: If D has affirmative defense against 3rd party they injured, then V’s claim is also defeated)
Defenses to intentional torts: Self-defense, defense of others, necessity
Defense of self/others: (1) proportionately, (2) physically defend self/other, (3) subjectively believe, (4) objectively reasonably believe, (5) imminent, (6) unlawful force/confinement
- even if mistaken OK if elements met
- deadly force: (some jx: only if no reasonable escape) (BUT: no duty to retreat if in dwelling)
- Initial aggressor can defend if (a) non-deadly force met with deadly, (b) initial aggression has ended, can defend yourself later
public necessity: (1) reasonably believe, (2) serious, (3) imminent, (4) public harm
- TOTAL defense
- tort must be for good of entire public at large, not small segment of public
- proportionate: liable for anything exceeding the damage needed to prevent the public harm
private necessity: (1) reasonably believe, (2) serious, (3) private harm
- PARTIAL defense (not liable for nominal/punitive damages, but must compensate for damage to V’s property)
Defenses to intentional torts/defamation/privacy torts: Consent
Consent in fact (Subjective willingness): (1) informed, (2) voluntary, (3) legal capacity
- Capacity: (a) not minor, (b) not mentally deficient
- Mistake destroys consent: (1) V’s mistake, (2) D aware mistake, (3) mistake relates to nature of the experience
- Doesn’t need to be consent directed at actor
Apparent consent: (1) reasonable person, (2) interpret conduct as consent
Consent implied by law: (1) emergency, (2) V can’t give consent, (3) no reason to believe V would decline
(NOTE:
- scope of consent: can only do as much as consent allows, anything further still liable)
- effect of consent: consent flows to all harm down the line resulting from consent, even if unforeseeable (ie consent to punch friend, actually kills them due to unknown defect, complete defense still)
Transferred intent
If D intends to commit a tort against one person but accidentally commits same or different tort on someone them or someone else, intent transfers to the unintended victim or tort
- Ex: D attempts to commit battery on P, misses and puts P in apprehension, D’s intent to commit battery transfers to intent to commit assault on P
Negligence
(1) duty, (2) breach, (3) cause (actual and proximate), (4) harm
Who is owed duty generally
(majority) Only duty to those in “zone of foreseeable danger” (POV of tortfeasor)
(minority) if conduct puts anyone at reasonably foreseeable risk of harm, then actor owes duty to everyone
- Duty to rescuers: Danger invites rescue, tortfeasor who puts anyone negligently at risk, DOES owe duty to rescuers (AND LIABLE FOR PHYSICAL HARM CAUSED TO RESCUER)
- Rescuer’s duty: No duty to rescue in first place, BUT: if you voluntarily rescue, (1) then duty to use reasonable care not to make injury worse, and (2) not have P or 3rd party detrimentally rely on reasonable care to rescue
- BUT: “Firefighters rule”: actor owes NO duty to (1) public-safety officer (2) resulting from actor’s negligent act (3) which caused officer to come to scene
——((my note: BUT if negligence separate from the actual initial cause of what caused officer to come to scene there IS a duty then) (ex: negligent act causes firefighter to respond, and then tortfeasor/someone’s separate negligent act at the scene causes firefighter injury, there was a duty there) - unborn fetus: if (1) mother owed duty, (2) fetus viable, then duty owed to fetus
Duty to protect victim from 3rd parties wrongful acts
Generally no duty to protect victim from 3rd parties wrongful acts except:
(a) voluntary special relationship to protect,
- UNLESS: patient is capable of appreciating/knowing the risk of their actions
(b) reasonably know/should know conduct creates unreasonable risk that 3rd party may harm victim
(c) business to protect business invitees from 3rd party wrongdoing
- Totality of circumstances test: Duty only if business could reasonably foresee 3rd parties harm victims on premises based on the circumstances
- Balancing test: balances (a) foreseeability and gravity of harm, against (b) burden/expense of preventing and business’s social utility
(d) person in custody and their custodian
- (ex: teacher/students, jailer/inmates
(e) common carriers (taxis, busses, airplanes) and passengers
(f) innkeepers and patrons
Duty to protect others
(1) legal custody over third party, (2) know/should know third party will harm others if not controlled
- jailor and inmate,
- therapist and client: IF: (1) serious threat, (2) against identifiable individual, THEN MUST: (a) warn V, (b) have P committed, (c) notify police,
- commercial seller of alcohol not to serve minors/obviously intoxicated patrons
- parent/child: generally no duty to protect from their children’s acts UNLESS (1) parent knows, (2) specific violent propensity, (3) reason to know of (4) imminent and (5) foreseeable harm
Duty owed if owner/possessor of real property
Generally duty of reasonable care to occupants,
but some jurisdictions duty turn on the status of the person visiting the land:
Duty to Invitee: (1) reasonable care to invitee, (2) reasonably inspect, (3) remedy/warn about unreasonably dangerous conditions known/should know, UNLESS: open and obvious risk, UNLESS: reasonably foresee invitee injured despite obviousness
- Business invitee definition: (1) possessor’s express/implied consent, (2) for business dealing
- Public invitee definition: (1) premises open to public, (2) invitee on premises for the purpose for which owner keeps premise open
- NOTE: remains invitee only so long as keeps within invitation’s scope (ex: no longer invitee if (a) wander onto part of property not reasonably related to invitation, (b) remains unreasonably long after purpose terminated)
Duty to Licensee: (1) reasonable care to licensee, (2) remedy/warn about known unreasonably dangerous conditions, UNLESS: open and obvious risk, UNLESS: reasonably foresee invitee injured despite obviousness
- NOTE: DIFFERENCE between invitee/licensee is no duty to inspect for licensees
- Licensee definition: (a) on premises with possessors gratuitous consent (social guest), or (b) legal privilege to be there over objection (first responder responding to emergency)
- NOTE: may become trespasser if (a) wander onto part of property possessor hasn’t consented to, or (b) exceed scope of privilege to occupy property
Trespasser: anyone not (a) possessor, (b) invitee, or (c) licensee
Duty to Undiscovered Trespasser: (1) avoid intentionally or recklessly harming trespasser
- Definition: (a) trespasser is unknown, or (b) possessor neither knows or has reason to know of trespasser
Duty to discovered/anticipated trespasser: warn of known artificial dangers and use reasonable care
Duty to Child Trespasser “attractive nuisance”: (1) injury caused by artificial man-made condition on land (2) possessor knows of condition, (3) possessor knows children likely trespass upon it, (4) possessor knows it poses risk of death/serious bodily injury, (5) child can’t appreciate the danger due to youth (6) balancing test: condition’s usefulness/burden to remove it is slight compared to danger the condition poses to child trespassers (7) possessor fails to take reasonable care to remedy the danger to child trespasser
What is the duty (standard of care)
Generally: “Reasonable care”
Adult: objectively reasonable person under circumstances
- NOTE: objective standard means that an adults subjective mental deficiencies NOT taken into account, BUT physical deficiencies are (but it also assumes that actor knew of their own deficiencies and should act accordingly)
- BUT: if D has enhanced attributes then reasonable person with those enhanced attributes is the duty of care
- statute or rule can apply the specific standard of care
Child: subjective standard of care of a child of similar age, intelligence, and experience
- (some jx: under certain age (typically 7), child legally incapable of negligence)
- But adult standard if child engages in “adult activity” (one that carries inherent risk of grave injury if not carried out with care of typical adult) (like driving car)
Standard of care in medical malpractice cases
General practitioner: reasonably prudent physician under the circumstances
Specialist: Reasonably prudent physician in the D’s specialist discipline
Lack of informed consent liability: (1) nondisclosure (2) material risk, (3) causation, (4) harm
- BUT don’t need to disclose if: (a) known/obvious risk, (b) disclosure would cause patient to be come irrational/harm them, (c) emergency situation
- causation: (some jx: subjectively would have declined treatment) (some jx: objectively would have declined treatment)
- BAR EXAM NOTE: (P must have expert physician testify since they need to establish standard of care for doctor, so no expert witness, no liability)
Breach
Failure to conform to standard of care
Res Ipsa Loquitur
“Accident speaks for itself” (P can’t show what act D negligently did, so relies on the harm itself)
- NOTE: ONLY PROVES BREACH, still need to prove duty, cause, and harm
Requirements: (1) type of accident only occurs due to negligence, (2) actor has control over harmful instrumentality, (3) victim didn’t contribute
- control can be (a) direct, or (b) authority/influence
- control can be shared, D’s share of control just need to be the most plausible explanation for accident
- (ex: P outside warehouse, suddenly barrel falls from window of warehouse, P can’t prove who D is or what D did, just that barrel fell on them, invokes res ipsa)
Negligence per se
Negligence automatically established if law violated
Requirements: (1) mandatory specific command from law, (2) criminal penalty, (3) V within class of person’s law meant to protect, (4) law intended to prevent type of harm that occurred
- EXCEPTIONS:
- (a) complying with law more dangerous than alternative (ex: viscous dog forces to walk on wrong side of road)
- (b) can’t comply due to incapacity (ex: heart attack or youth)
- (c) D didn’t reasonably know they needed to comply (ex: tail light out but D wasn’t aware)
- (d) sudden emergency not caused by D (ex: sudden mechanical failure on car, or swerve to avoid child)
- (e) despite all reasonable efforts, D couldn’t comply (ex: snowstorm that takes days to clear, railroad not liable for kid who is injured during that time)
Respondeat Superior
(1) employee/employer relationship, (2) tort within scope of employment
- Independent contractors don’t count
- Employee vs Independent contractor test: Does employer have sufficient control such that worker is considered an employee? (factors: permanence, provides tools/training, hourly or by job, on site/off site, etc.)
- Scope of employment test: conduct aimed at serving employer (frolic: substantial deviation, NOT scope of employment) (detour: minor deviation, IN scope of employment)
- BUT Respondeat superior for independent contractors if:
(a) inherently dangerous work,
(b) non-delegable duties ((essentially public interest duties)) (ex: emergency room care: (1) hospital advertised emergency services (2) V sought hospital care not specific physician (3) reasonable person would believe physician was hospital employee) (municipality street repair) (common carrier passenger safety)(landlord repairs)(employee safe working environment)
(c) “shoddy construction”: (1) IC hired to perform work on structure, (2) IC makes structure/land unsafe, (3) EMPLOYER controls premises when accident occurs BUT NOT IF: (1) IC negligent (2) negligence NOT inherent to nature of the work (3) no reason to anticipate negligence (ex: hire ICs to paint, one drops paint bucket on someone)
Strict liability generally
(1) inherently dangerous activity, (2) activity unusual, (3) harm foreseeably results from characteristic making it inherently dangerous
- “inherently dangerous” if: activity creates high risk of harm of substantial harm despite everyone using reasonable care (ex: hauling dynamite)
- “unusual” if: uncommon in community where it occurs
- BUT DEFENSES:
- voluntary engagement: (1) V knowingly, (2) unreasonably, (3) engages in risk of harm from the inherently dangerous activity
- willful trespass: (1) V willfully trespassed
Strict liability for animal owners
livestock: (1) animal used for their utility, (2) escapes/trespasses, (3) due to foreseeable event, (4) causes harm typical of livestock
- Exceptions: (a) highway/land adjacent to highway, (b) V didn’t build fence
domesticated: (1) animal NOT used for utility (pets), (2) unusual dangerous propensity, (3) D knows/should know of propensity, (4) V’s injury arises from abnormal dangerous propensity
Wild animals: (1) animal NOT used for utility/not domesticated, (2) V’s injury arises from wild characteristics of animal’s species
- NOTE: objective NOT subjective to determine if wild (aka tamed wild animal still wild animal) (pet used for utility still a pet)
Actual causation
but-for D’s act, harm wouldn’t have occurred
Concurrent-causes test: (1) multiple forces combine to cause harm, (2) none could cause harm by itself, then all actors caused
Substantial-factor test: (1) multiple forces combine to cause harm, (2) any one could cause harm by itself, (3) impossible to tell which force cause which portion of harm, and (4) D’s negligence was a substantial factor, then D is an actual cause
alternative-causes doctrine: (1) multiple negligent actors, (2) causes harm, (3) impossible to tell which caused, then each actor must disprove their negligence caused or they are liable
Proximate cause
close enough causal link between breach and harm to justify holding D liable
- Test: harm must be reasonably foreseeable result of D’s negligence (REAL TEST THOUGH: is this act close enough in the chain of events to the ultimate harm that society would deem it fair to impose negligence liability on it?)
- Intervening forces that also contribute won’t end liability if they are also foreseeable
- superseding forces are sufficiently not foreseeable that they break the proximate causal chain
Harm (damages): types
TYPES: (a) physical, (b) emotional, (c) economic
- Physical: can always recover
- emotional: can only recover if
(a) emotional harm result of underlying physical harm, or
(b) victim establishes separate claim for negligent infliction of emotional distress (1) unreasonable risk of physical harm, (2) physical harm doesn’t occur, (3) V suffers severe emotional distress, and (4) (see below)
- (some jx: (1) PHYSICAL IMPACT, (2) contemporaneous)
- (some jx: NEAR MISS recoverable if (1) reasonable foreseeable risk immediate physical injury, (2) subjectively and reasonably fear for OWN physical safety, (3) ED manifests in physical symptom)
- (some jx: NO physical impact or NEAR MISS required)
(c) “special circumstances” (no underlying physical injury required): (i) mishandle loved one’s corpse, (ii) medical professional negligently misdiagnoses, (iii) D destroys V’s home as they watch
- economic: can only recover if (a) economic harm traceable to physical harm, or (b) underlying negligence constitutes professional malpractice (but torts other than negligence may allow recover of pure economic loss such as tortious interference with business relations)
- eggshell-skull rule: If D is negligent, they are liable for the full extent of the damages, even if the P was unusually susceptible to harm thus causing more damages than would normally occur
