Torts Flashcards
Under the traditional standard for res ipsa loquitur, negligence is inferred if
(1) the plaintiff’s harm would not normally occur unless someone was negligent,
(2) the defendant had EXCLUSIVE control over the thing that caused the harm, and
(3) the plaintiff did nothing to cause the harm / there are NO OTHER alternative causes
Under the modern approach, common carriers only owe a duty to use
reasonable care to protect passengers from harm that arises within the scope of that relationship
Product liability is imposed on any commercial seller in the chain of distribution if
(1) the commercial seller’s product contained a defect (manufacturing / design / warranty)
(2) the defect existed when it left the commercial seller’s control, and
(3) the defect caused the plaintiff’s harm when used in an intended or foreseeable way
The owner of a wild animal is strictly liable for harm that is caused by
(1) a plaintiff’s fearful reaction to the sight of an unrestrained wild animal, or
(2) directly results from the wild animal’s abnormally dangerous characteristics
A plaintiff who is a public figure or official can recover for defamation only if
the plaintiff proves that he defendant made a false statement about the plaintiff with actual malice (e.g. with knowledge or reckless disregard of the statement’s falsity)
Under the common law, assumption of the risk is a complete defense to negligence when
the plaintiff voluntarily accepts (appreciates) a known risk of harm (knows what the danger is / why the action is dangerous)
Where multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause the harm, the test for actual causation is
whether the defendant’s conduct was a substantial factor in causing the harm
Substantial factor is a substitute for but-for when multiple D’s are negligent
Products liability claims can be brought against commercial suppliers or commercial sellers but not against
service providers
In most jurisdictions, an innkeeper owes a duty to use
ordinary care to protect its guests while they are on the premises
(evidence that the innkeeper complied with, or deviated from, community or industry custom is relevant to but not conclusive on the issue of negligence)
Once negligence per se is established as a defense, the defendant must still prove
that the plaintiff’s violation of the statute caused the plaintiff’s harm
The modern trend for applying res ipsa loquitur is to
ignore the exclusivity requirement when applying the traditional standard for res ipsa loquitur in negligence actions involving products liability
A defendant who has permission to use the plaintiff’s chattel commits conversion when they
(1) intentionally use the chattel in a way that exceeds the scope of permission, and
(2) seriously violate the plaintiff’s right to control the chattel
D liability is set at the FMV of the chattel at the time of conversion
What are torts subject to transferred intent?
Battery, assault, false imprisonment, trespass
What are the 6 circumstances which give rise to a duty to act?
(1) Assumption of duty
(2) Placing another in peril
(3) Contract
(4) Authority
(5) Special relationship
(6) Statutory obligation
Elements of negligence
(1) Duty
(2) Breach
(3) Causation
(4) Damages
Majority rule of proximate cause is
D is liable for reasonably foreseeable consequences resulting from their conduct (type of harm but not extent of harm)
Defenses to defamation
(1) Truth
(2) Consent
(3) Absolute privileges (judicial proceedings, spouses, required publication)
(4) Qualified privileges
Elements of strict product liability
(1) Defective product
(2) Defective when it left D’s control, and
(3) Defect caused P’s injury when used in reasonably foreseeable way
What is a private nuisance
Thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of their land (standard: normal person in the community)
Note: statutory or regulatory compliance / “coming to the nuisance” may be admitted as evidence but is not dispositive
Note: even if plaintiff is personally not bothered by it, nuisance may still be substantial and intolerable
Legal duty owed to an unknown trespasser
Refrain from willful, wanton, reckless or intentional misconduct (does not apply to undiscovered trespassers)
Legal duty owed to a licensee (e.g. social guest)
Duty to either correct or warn of concealed dangers known to land possessor or should be obvious to possessor (no duty to inspect for dangers)
Legal duty owed to an invitee
Duty of reasonably care, including reasonable care to inspect property, discover unreasonably dangerous conditions and protect invitee from them (does not extend beyond the scope of invitation - makes invitee a trespasser)
What is considered extreme and outrageous for purposes of IIED
Exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society
What must a 3rd party prove under a bystander theory of IIED
(1) D intentionally or recklessly (malice) engaged in extreme and outrageous conduct that emotionally or physically harmed a close family member
(2) D knows 3rd party is close family member
(3) P contemporaneously perceived (saw, heard) the conduct and suffered emotional distress
Define trespass
intentional act causing a physical invasion of the land of another
Types of damage available in strict liability cases
Personal injury or property damage (purely economic loss must be brought under breach of warranty)
Bystander Recovery for NIED
(1) Defendant negligently injured plaintiff’s close relative / friend
(2) Plaintiff contemporaneously perceived event
(3) Event caused serious emotional distress
Most important thing plaintiff must prove in a negligence action
Actual physical harm (bodily harm, property harm).
Nominal damages are not available (are only for intentional torts)
What level of force may be used to obtain taken property?
Generally there is no privilege to commit battery, assault, or false imprisonment to regain possession of personal property (exception: fresh pursuit - allows reasonable, non-deadly force)
Elements of assault
(1) Plaintiff’s reasonable apprehension
(2) Of imminent harmful or offensive bodily contact
(3) Caused by defendant’s action or threat
(4) With the intent to cause either the apprehension of such contact or the contact itself
Elements of battery
(1) Defendant’s intent to cause contact with plaintiff
(2) Affirmative conduct causes such a contact
(3) Contact causes bodily harm or is offensive to the plaintiff
Note: engaging in action “substantially certain” to result in contact (e.g. pulling chair out from under someone) can satisfy intent for battery
Note: Intent to commit Assault can transfer intent to Battery (and vice versa)
Single-intent rule: Only need to intend contact, not harmfulness of contact to satisfy
When may force be used to defend property?
(1) Intrusion is not privileged
(2) Defendant reasonably believes plaintiff is intruding or will imminently intrude and can only be prevented or terminated by the means used
(3) Defendant first asks plaintiff to desist or believes such action will be useless
(4) Means used are reasonably proportional to the value of the interest being protected
(5) Means are not intended or likely to cause death or serious bodily harm
Elements for intentional misrepresentation
(1) Defendant misrepresented a material fact, opinion, intention, or law or failed to disclose a material fact when under an affirmative obligation to do so
(2) Defendant knew representation to be false or acted with reckless disregard to truthfulness
(3) Defendant intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation
(4) Plaintiff actually relied on misrepresentation
(5) Reliance was justified
(6) Plaintiff can prove actual damages
When may a private actor use force to make an arrest
(1) The felony has in fact been committed, and
(2) The arresting party has reasonable grounds to suspect that the person being arrested committed it
Elements for intentional interference with a contract
(1) Valid K existed between plaintiff and third party
(2) Defendant knew of the contractual relationship
(3) Defendant intentionally interfered with the K causing breach
(4) Breach caused damages to Plaintiff (any damage sufficient)
General standard of care in negligence actions
Reasonably prudent person under the circumstances (objective)
Note: Physical characteristics (e.g. blindness) are considered but mental abilities are not
4 invasion of privacy torts
(1) Misappropriation of right to publicity (unauthorized use of P’s name, likeness, or identity for commercial benefit)
(2) Intrusion upon seclusion (intrusion into P’s private affairs and objectionable to reasonable person)
(3) Placing plaintiff in a false light (published false facts which place plaintiff in a false light and are highly offensive to reasonable person)
(4) Public disclosure of (true) private facts (highly offensive to reasonable person and not of legitimate public concern)
Elements of false imprisonment
(1) D intends to confine or restrain plaintiff within a limited area
(2) Defendant’s conduct causes plaintiff’s confinement (or fails to release plaintiff)
(3) Plaintiff is conscious in confinement (minority jx allow recovery if not conscious but otherwise harmed)
Elements of defamation
(1) Defamatory language (false, negative statement)
(2) Of or concerning the plaintiff
(3) Published to a third party who understands its defamatory nature
(4) Damages plaintiff’s reputation*
If the matter is of public concern, or the plaintiff is a public figure/public official, must prove falsity and actual malice
Note: “Published” need not be literal (i.e. published in a newspaper - simply telling a 3rd party is sufficient)
*Standard for assessing harm to plaintiff’s reputation is whether a “third party’s reasonable interpretation” would find it so
In negligence action, when are damages for economic loss allowed
when the plaintiff has also proven non-economic (physical) injury
An activity is abnormally dangerous when
(1) It involves a high risk of harm
(2) It is not commonly found in the community, and
(3) Involves a risk that cannot be eliminated with due care
Look for: blasting, explosions, toxicity (NOT fireworks)
What makes a design defective?
(1) Manufacturing defect (came out more dangerous than intended)
(2) Design defect
(3) Failure to warn (warranty defect)
Two tests for design defect
(1) Consumer exception test (dangerous beyond exception of ordinary consumer)
(2) Risk utility test (reasonable alternative design that is economically feasible was available and failure to use that design rendered product unreasonably dangerous)
If a plaintiff cannot show strict liability may they bring a negligence claim?
Yes
How do damages differ in libel and slander
Libel - general damages are presumed
Slander - damages are not presumed (absent slander per se)
What is slander per se?
Damages are presumed when statements involve:
(1) Professional reputation
(2) Disease
(3) Crimes of moral turpitude
(4) Unchaste behavior
Shopkeeper’s privilege
May detain plaintiff for (1) reasonable amount of time and in a (2) reasonable manner if there is reasonable suspicion of plaintiff having shoplifted / stole
Abatement of a nuisance
Private nuisance: Reasonable force is permitted to abate nuisance. P must give notice of nuisance to D and D refuse to act prior to action being taken
Public nuisance: Only public authority may abate public nuisance
Implied warranty of merchantability warrants that the product being sold is
generally acceptable and reasonably fit for the ordinary purposes for which it is being sold
Under the market share liability doctrine, a plaintiff can
recover based on each defendant’s share of the market, so long as the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market
Under the alternative causation doctrine
If the plaintiff’s harm was caused by:
(1) one of a small number of defendants,
(2) each of whose conduct was tortious, and
(3) all of whom are present before the court
the court may then shift the burden of proof to each individual defendant to prove their conduct was not the cause in fact of the plaintiff’s harm
Under the concert of action doctrine
If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all defendants will be jointly and severally liable
What are the elements of liability for an attractive nuisance?
(1) Owner of land knew or should have known that the kids trespass on the property
(2) Condition poses an unreasonable risk of harm
(3) Kids, because of age or maturity, do not appreciate the risk
(4) Utility of maintaining condition is slight compared to the risk to the kids (cheaper to fix compared to damage which may happen)
(5) Owner fails to make it safe
Pure comparative negligence
Each party is liable for the percentage fault they were to the tort
Modern (partial) comparative negligence
If P > 50% fault, no recovery
If P=50% fault recovery at 50% (unless minority jx)
If P<50% at fault, reduce recovery by percent responsible and collect for the rest
Contributory negligence
If P was even 1% responsible, total bar on any recovery
Note: In contributory negligence jurisdictions, Last Clear Chance doctrine applies (last clear chance to avoid plaintiff’s injuries, but failed to exercise reasonable care in doing so)
Legal duty owed to a known / anticipated trespasser
(1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and
(2) use reasonable care in activities conducted on the land.
Zone of Danger recovery (NIED)
(1) the defendant negligently placed the plaintiff at risk of immediate bodily injury, and
(2) that danger caused the plaintiff serious emotional harm or bodily harm from threat of impact
In minority jurisdictions which have enacted a “guest statute”
an automobile driver’s only duty to guests is to refrain from gross or wanton and willful misconduct.
Minority v. Majority approach for negligence per se
Minority: Rebuttable presumption defendant breached duty of care
Majority: Conclusive presumption defendant breached duty of care
An employer is vicariously liable for its employee’s intentional torts only when
(1) reasonable force is inherent in and committed during the employee’s job or
(2) the employee is authorized to act on the employer’s behalf and has a position that provides an opportunity to commit the tort.
For vicarious liability more broadly, Ask: Does employer have right to control activities of employee
Under the modern approach to land-possessor liability, land possessors owe
a duty of reasonable care to all land entrants, except flagrant trespassers
A physician who fails to disclose the risks of a medical treatment or procedure to a patient is liable for negligence if
(1) the failure to disclose caused the patient to consent, AND
(2) the undisclosed risk materialized and resulted in physical harm
Intrusion upon seclusion (a type of invasion of privacy) occurs when
the defendant intentionally intrudes on the plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person
A plaintiff can recover compensatory damages from a party’s negligence based on
(1) the plaintiff’s initial physical harm,
(2) any subsequent harm traceable to that initial harm, and
(3) steps taken to mitigate the initial harm.
Note: The plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining damages.
When acting in self-defense, a defendant’s liability for an intentional tort which affects a bystander is
conditioned on the intended force being used against the bystander
(no transfer of intent for intentional tort if action is privileged)
Note: there MAY be liability for negligence though
When may a private individual bring a suit regarding a public nuisance?
When the individual has suffered, and can prove, special / unique harm
Abusive language or conduct is more likely to be extreme and outrageous if
the defendant knew about and deliberately exploited the plaintiff’s heightened susceptibility to emotional distress.
A defendant may only use deadly force to defend a third party when
The defendant reasonably believes
(1) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force on the third party
(2) the third party is subject to death, serious bodily harm, or rape, and
(3) the defendant can prevent that harm only by immediate deadly force.
In order to recover under the theory of joint and several liability, the plaintiff must show
Both defendants were negligent
Trespass to chattels by intentional use of or intermeddling with the plaintiff’s chattel requires proof of actual damages through
(1) actual harm to the chattel
(2) substantial loss of use of the chattel, OR
(3) bodily harm to the plaintiff
NOTE: Compare with trespass to chattels by intentionally dispossessing the plaintiff of a chattel (requires NO proof of harm)
Liability for invasion of privacy based on misappropriation of the right to publicity arises when
A defendant:
(1) uses the plaintiff’s name, likeness, or an item closely associated with the plaintiff without authorization
(2) obtains a benefit, and
(3) causes the plaintiff an injury
Elements of IIED
(1) Intent (purpose or knowledge) or reckless disregard (malice) to cause severe emotional distress
(2) Extreme and outrageous act
(3) Resulting in severe emotional distress (beyond what reasonable person could endure)
Public figures wanting to prove IIED must also prove
False statement + Actual malice
A manufacturer of a prescription drug or medical device will not be held strictly liable for inadequate warnings or instructions if
the manufacturer warned the prescribing physician about the risk of harm associated with that product (this satisfies the manufacturer’s duty)
Negligent misrepresentation requires
(1) The defendant to negligently provide false information within the course of business / profession
(2) The plaintiff to justifiably rely upon the false information and suffered pecuniary loss as a result
(3) The plaintiff to be in a contractual relationship with the defendant or known third party beneficiary
(Note: cannot prevail if negligently provided information was used for a purpose other than that for which information was provided)
Non-delegable duties include
(1) Maintain safe conditions on premises open to the public
(2) Safely perform duties that are:
-abnormally or highly dangerous
-infringe on private property rights (nuisance, trespass)
-regulated by law, or
-conducted in a public place
In assessing whether a defendant acted with the care of a reasonable person under the same circumstances, courts can apply either the
the traditional approach (reasonably prudent person) or the cost-benefit analysis approach
Elements of the cost-benefit analysis approach to negligence (whether conduct lacks reasonable care)
(1) The foreseeable likelihood that the defendant’s conduct would cause harm
(2) The foreseeable severity of any resulting harm, and
(3) The defendant’s burden in avoiding the harm.
Is medical malpractice a foreseeable intervening force?
Yes
In terms of false imprisonment, the defendant’s use of moral pressure or future threats
does not constitute confinement or restraint by duress
A landowner is not strictly liable for injuries inflicted by his animals against a trespasser, except for
injuries inflicted by a vicious watchdog
In a products liability action based on negligence, a commercial seller owes
any foreseeable plaintiff a duty to exercise reasonable care in the inspection and sale of its product
Special-situations Theory (NIED)
Emotional distressed suffered by plaintiff because defendant:
(1) delivered an erroneous announcement of death or illness
(2) mishandled a loved one’s corpse or bodily remains, or
(3) contaminated food with a repulsive foreign object.
(Note: No physical manifestations of emotional distress are required)
In proving Battery, contact is harmful when
it causes injury, physical impairment, pain, or illness
In proving Battery, contact is offensive when
a reasonable person would find the contact offensive
Consent is a defense to battery and can be
express, apparent, or presumed
(reasonable belief of consent)
A manufacturing defect is a physical deviation from
what the manufacturer intended the product to be that causes harm to the plaintiff
Under the “eggshell plaintiff” rule, a defendant is liable for
the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable
Under common law, social hosts are
not liable for excessive consumption alcohol by guests who then cause accidents (must have social-host liability recognized)
Nominal and punitive damages are only available for
intentional torts or reckless conduct (e.g. reckless driving)
When plaintiff is a private figure AND the speech involves a matter of public concern, the standard for defamation is
The speech must be spoken with at least negligence towards the truth
Note: Private speaker and NOT of public concern, need only prove publication
Defamation based on libel or slander is not actionable if
the person is deceased
In a traditional contributory-negligence jurisdiction, the plaintiff’s assumption of the risk (voluntary use of a product despite its known risk of harm) is
a complete bar to recovery for strict products liability
The doctrine of transferred intent does not apply when
the defendants intentional use of force is privileged
Under the emergency doctrine, a plaintiff’s consent is presumed when
(1) the purpose is to prevent or reduce a risk
(2) the defendant reasonably believes that their conduct is necessary to reduce a risk
(3) the defendant reasonably believes immediate action is needed
(4) they have reason to believe plaintiff would have actually consented
False Pretenses requires
(1) D to obtain title of another’s property
(2) by knowingly misrepresenting a material fact on which the victim relied
(3) with the specific intent to defraud
Note: misrepresentation must be a significant factor (or cause) of victim’s decision
IIED for a public figure by means of publication requires
false statement with actual malice
Trade Libel requires a defendant to
(1) make a false or derogatory statement
(2) About the quality of a plaintiff’s business or products
(3) With actual malice
(4) Made to a 3rd party
(5) Knowing that it likely will cause (and does cause) pecuniary harm
Intentional misrepresentation must be made
against the plaintiff directly (not 3rd parties)
There may be implied consent to battery if
(1) under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff’s actual or apparent consent, and
(2) the defendant has no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff’s consent
(Think riding in packed subway car and grabbing arm of someone to prevent self from falling)
Sellers remain liable for harm suffered by people NOT on their land due to an artificial condition if
(1) the condition existed at the time of sale, and
(2) the seller knew, or should have known, the condition existed and posed unreasonable risk of harm
(NOTE - that it happens AFTER the sale is irrelevant. Seller is liable until buyer discovers or becomes aware of condition and has chance to remedy it)
Negligence Per Se is
statutory negligence, meaning there’s a relevant governing statute and
(1) P was in class of persons statute was designed to protect, and
(2) injury suffered is the TYPE of injury the statute was designed to protect
Artificial conditions warrant a landowner to exercise
ordinary care to all entrants and KNOWN trespassers
Professionals are held to a
standard of care relevant / related to their profession (Doctors held to national standard, GP to local though less likely nowadays)
Defenses to Strict Liability include
(1) Misuse (unintended and unforeseeable)
(2) Assumption of the Risk
(3) Comparative Negligence
(4) Contributory Negligence
(5) Alteration
Note: (1), (2), (5) are most likely to be successful
Recovery for pure economic losses are recoverable for
breaches of warranty (e.g. merchantability or fitness for a particular purpose)
For purposes of defamation, qualified privilege arises when the communication
appears reasonably necessary to protect the defendant’s own legitimate interests or is of interest to the recipient
Malicious prosecution entails
prosecution or civil proceedings against a plaintiff without probable cause or a proper purpose (malice) where a party prevailed on the merits and suffered damages
Abuse of Process entails
the use of civil proceedings or prosecution for an ulterior purpose + act or threat against a party to accomplish that
In determining whether conduct lacks reasonable care, courts consider
(1) the foreseeable likelihood that the person’s conduct will result in harm,
(2) the foreseeable severity of any harm that may result, and
(3) the burden of precautions to eliminate or reduce the risk of harm
A plaintiff is not confined or imprisoned, for purposes of false imprisonment, if
(1) the plaintiff submitted willingly to confinement, or
(2) knows of a reasonable means of safe escape
In assessing whether a duty is owed, ask whether the plaintiff is a
Invitee or Licensee
A hospital owes a duty to
exercise reasonable care to protect its patients from harm arising within the scope of the hospital-patient relationship
Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from
the risk that made the activity abnormally dangerous in the first place
Generally suits for defamatory statements made against a group may not be brought for recovery unless
the defamatory statement is made:
(1) About a group of people that is so small a reasonable person would conclude that the statement refers to that member OR
(2) Circumstances of publication would cause a reasonable person to reach the same conclusion
The standard of care imposed on a child is
that of a reasonable child of similar age, intelligence, and experience
In order for an intervening event/cause/force to cut off liability, both
the intervening cause AND the resulting harm must be unforeseeable
Under the material benefit rule, when a party performs an unrequested service for another party that constitutes a material benefit, the performing party can
enforce a promise of payment made by a party who benefits from the service rendered
Note: NOT enforced if performance was done without an expectation of compensation (e.g. as a gift)
Corporations, partnerships, and unincorporated associations MAY bring
defamation claims (need not be limited to natural persons)
A defendant is strictly liable for damage done by livestock to another’s property if
it was foreseeable that such livestock might enter another’s land and cause physical harm typical of that kind of livestock
A party may raise a defense to negligence per se if
their violation of the statute was due to physical disability, incapacity, or because the defendant is a child
Municipal tort immunity attaches to
the performance of traditional government functions (e.g. police, court systems)
While trespass to chattel is subject to transferred intent and must be intentional, to recover for it a party must prove
actual damages (harm to chattel)
Defamation includes both
libel and slander (and slander per se)
