Torts Flashcards
What defenses can’t be used for intentional torts?
Incapacity
(insane, intoxicated, infancy, etc.)
Intentional Torts?
Assault,
Battery,
False imprisonment,
IIED
Trespass
Conversion
Limitations on use of transferred intent
Only if both the tort intended and the tort that results are one of the following
- assault
- battery
- false imprisonment
- trespass to land/chattels
Battery
- Harmful or offensive contact
-Offensive to a reasonable person
-Can be direct/indirect - Contact must be with the plaintiff’s person
Can recover nominal damages even if actual damages are not proved
Assault
(i) an act by defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person,
(ii) intent by defendant to bring about in plaintiff apprehension of that contact, and
(iii) causation.
-fear not required
-must have been aware
-D must have the apparent ability to commit a battery
2. Of an immediate battery
Can recover nominal damages even if actual damages are not proved
Nominal damages
Nominal damages are a small amount of money awarded to a plaintiff in a civil case to recognize that their legal rights were violated, but they did not suffer significant financial harm. They are symbolic and are meant to show that the plaintiff was right, rather than to compensate them for their losses
False imprisonment
- Act of restraint
-failure to act if legal duty to do so can be restraint (leaving handicapped person on airplane) - Plaintiff confined in bounded area
-No reasonable means of escape known to the plaintiff
-Plaintiff must know of the confinement or be harmed by it
-Hypersensitivity of P is ignored
Insufficient acts of restraint include:
moral pressure
future threats
IIED
- Extreme and outrageous conduct
-continuous in nature
-committed by a certain type of defendant OR
-directed towards a certain type of plaintiff (children, elderly persons, etc.) - P must suffer severe emotional distress
-Recklessness will satisfy intent requirement
-Actual damages are required
IIED in Bystander Cases
When it is directed at a third person and the plaintiff suffers severe emotional distress bc of it the plaintiff can recover by showing either IIED elements or that
- they were present when the injury occurred
- distress resulted in bodily harm OR close relative and
- D knew these facts
Trespass to Land
- physical invasion
-can be throwing something onto the land
-if its intangible like a smell then its nuisance NOT trespass - of the plaintiff’s REAL PROPERTY
-airspace, belongs to the person w/ the right to possess the property not necessarily the owner - Defendant needs intent only to enter, doesn’t need to know that the land belongs to someone else
-Damages can be recovered w/o showing actual injury to the land
Trespass to Chattels
Act by the defendant that interferes with the plaintiff’s right of possession in a chattel
-directly damaging the chattel (intermeddling) OR
-depriving P of their lawful right of possession of chattel (dispossession)
-intent to do the act of interference is all thats needed. Mistake is not an excuse
-actual damages required
Conversion
Wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely, damaging, or misusing a chattel
-intent required
-seriousness of interference (longer the withholding period will be conversion, a short time might just be trespass to chattels)
-only tangible personal property
-damages (fair market value) or possession (replevin)
Defenses to intentional torts
- Consent
- Self-defense of self and others and property
- Necessity (public v. private)
Consent
- defense to ALL intentional torts
- Plaintiff must have legal capacity to consent (limited capacity can consent to part of something)
- Express v. Implied consent
-Implied consent is by a reasonable person standard
-no fraud/duress
-exceeding consent given
-implied consent (custom and usage)
Protective privileges
defense of self, property, or others
- Is the privilege available? Only for preventing the commission of a tort. Already committed torts don’t qualify
- Is a mistake permissible as to whether the tort being defended against is actually being committed
- Was a proper amount of force used?
Self Defense
When a person reasonably believes that they are being or are about to be attacked, may use reasonably necessary force to protect against injury
Majority Rule: no duty to retreat BUT modern trend imposes a duty to retreat before using deadly force unless actor is in their home
Not available to initial aggressor unless other party responds to non-deadly force by using deadly force
Can be liable to a third person if they deliberately injure the third person in trying to protect themselves
Reasonable mistake is allowed
Self defense of others
-When they reasonably believe that the other person could have used force to defend themselves
-reasonable mistake is allowed and proportionate force
Defense of property
Against their real/personal property
- request to stop or leave must be first unless it would be clearly futile or dangerous
- not once tort has been committed, but can use force in HOT PURSUIT
- Proportionate force
- Mistake allowed
5.When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel.
Shoplifting detentions
Falls under defense category
Shopkeeper may detain a suspected shoplifter but:
- Must be a reasonable belief
- Must be conducted in a reasonable manner with NO deadly force
- Must be only for a reasonable period of time and only for the purpose of making an investigation
Reentry of Land
CL: one can use force to reenter land when an intruder came into possession tortiously
Modern Law: NO SELF HELP
Necessity defense
ONLY FOR PROPERTY TORTS
-If its someone else’s chattel then a person can interfere if its reasonable and apparently necessary in an emergency to avoid injury
Two types:
- Public necessity: can do so if they acted to avert an IMMINENT PUBLIC DISASTER
- When action was to prevent serious harm to a limited number of people. Actor must pay for any injury they cause
Negligence
Not an intentional tort; standard of care is REASONABLY PRUDENT PERSON
- Duty to conform to a specific standard of conduct
- Breach of that duty
- Beach is the actual and proximate cause of the plaintiff’s injury
- Damages
-there is an exception to ppl w/ superior skill or knowledge, they are held to a higher standard
Who is duty owed to for negligence?
- Only to foreseeable plaintiffs within the zone of danger
-Rescuers
-Intended beneficiaries of economic transactions
Firefighters Rule
a professional rescuer injured in the performance of his professional duties “assumes the risk” of such injury and is not entitled to damages.
Special negligence duties for children
held to standard of child with the same age, intelligence and experience.
subjective test
under give is usually w/o capacity to be negligent
kids engaged in potentially dangerous adult activities may be required to conform to an adult standard of care
Special negligence duties for doctor
- duty to disclose risks of treatments
- higher level of duty bc they are a professional
Special negligence duties for possessors of land (unknown trespassers and known trespassers)
Unknown: no duty to an UNDISCOVERED trespasser
Known: if discovered or anticipated trespassors, land possessor must warn of or make safe any conditions that are
1. artificial
2. highly dangerous
3. concealed
4. known to the land possessor in advance
Duty to Licensees in Torts
one who enters onto the land with the possessor’s permission for their own purposes or business. Typically social guests
Land possessor has duty to warn or make safe hazardous conditions that are:
1. concealed
2. known to the land possessor in advance
Must exercise reasonable care but has no duty to inspect or repair
Duty to Invitees in Torts
Invitee: on property for landowner’s business reasons
1. Owner has greater duty, must keep premises reasonably safe
-concealed conditions
-known to the land possessor in advanced or could have been discovered by a reasonable inspection
2. If they go somewhere they are not allowed, they become a trespasser
Duty owed to users of recreational land
landowner who permits gen public to use their land for recreational purposes without charging a fee is not liable for injuries suffered by rec user unless the owner willfully and maliciously failed to guard against or warn of a dangerous condition or activity
Statutory Standards of Care (What are the three)
- negligence per se (strongest)
- rebuttable presumption (medium)
- evidence of negligence (weakest)
Negligence per se
Owes duty of care instead of CL duty if:
1. Plaintiff is within the protected class
2. Statute was designed to prevent the type of harm suffered by the plaintiff
REASONABLY PRUDENT PERSON STANDARD
3. Violation of statute without excuse establishes duty and breach
The only thing that must be proven at trial is whether the violation was the cause in fact and proximate cause of the plaintiff’s injury.
Is there a duty to act/rescue?
Generally no duty to rescue UNLESS:
- Special relationship (parent-child, ppl that gather in public for profit (shopkeepers, etc.)
- Places of public accommodation: duty to prevent injury
- If someone caused peril
- Once someone has started aid (but good samaritan statutes)
- Harm from third persons
-generally no unless one has the actual ability & authority to control a person’s actions and knows or should know they are likely to commit these types of acts
Standard of conduct common carriers and innkeepers are held to?
A very high degree of care, meaning they are liable for slight negligence
Standard of conduct automobile drivers to guests are held to?
Duty of ordinary care. In some states, one is liable to nonpaying passengers only for reckless tortious conduct
Standard of conduct for bailors/bailees?
A bailee is a person who receives property from the owner, known as a bailor, and holds the property for the owner for a particular purpose such as custody or repair.
Standard of care depends on who benefits for the bailment:
- For a sole benefit of the bailor bailment: low standard
- Sole benefit of bailee: high standard
-must inform the bailee of known dangerous defects in the chattel
I3. Mutual benefit: ordinary standard
Standard of conduct in emergency situations
must act as a reasonably prudent person would under the same emergency conditions. However, emergency isn’t consider if the defendant caused the emergency
Negligent infliction of emotional distress
- P must be within the zone of danger
- P must suffer physical symptoms from the distress
- Must show negligence
-If P and D had a special relationship from which duty arose (doctor/patient) such that D’s negligence has great potential to cause emotional distress, D may be liable.
Bystander cases in negligent infliction of emotional distress
Can recover if:
- closely related AND
- present at the scene and personally observed or perceived the event
IIED v. Negligent Infliction of emotional distress
- extreme and outrageous (IIED) v. subjecting P to threat of physical impact or severe emotional distress likely to cause physical symptoms (negligence)
- Intent v. negligence
- Causation
-IIED” must cause severe emotional distress
-Negligence: generally must cause physical symptoms from the distress
Breach of duty in negligence: how the plaintiff can show proof of breach
- Custom or usage
-reasonable prudence - Violation of statute
- Res Ipsa Loquitur, requires that P show that:
-accident causing the injury is a type that would not normally occur unless someone was negligent
-the negligence is probably attributable to the defendant
Res Ipsa Loquitur
-Not the kind of accident that would happen without negligence
-Defendant has exclusive control and management
-Not caused by plaintiff being negligent
When there is an absence of direct evidence
-no directed verdict to defendant
Factual Causation
once negligent conduct is shown the P must show that the conduct was the cause of their injury. For liability to attach the P must show BOTH factual cause and proximate cause. The tests for factual cause are
- But for test
- Substantial factor test
-If multiple forces combine to create harm and it’s impossible to tell which force caused what portion, the court can find D’s negligence was a substantial factor in bringing about harm
-more likely than not - Unascertainable causes approach
-When there are only 2 acts, only 1 causes injury but its unknown which does. Burden of proof is switched to D and each must show that his negligence is not the actual cause.
Proximate Cause
For liability to attach the P must show BOTH factual cause and proximate cause. The tests for proximate cause are:
- Must be foreseeable (danger zone)
- D’s actions must be directly related to P’s injury
- No superseding forces
-if the defendant’s actions set in motion a chain of events that led to the plaintiff’s injury, they may still be held liable. - P’s injury is a natural & probable cause of D’s actions
Eggshell Skull Doctrine
D must take P as they find them (even if P was fragile, weak, etc.)
-negligence and intentional torts
Comparative Negligence
D shows P failed to exercise proper care for own safety
-defense to negligence claim
-A plaintiff may recover even if contributorily negligent, but only if the plaintiff’s negligence is less than the defendants negligence
-Jury will be instructed to assign % of fault
Assumption of Risk
-Defense
P may be denied recovery if they assumed the risk of any damage caused by the D’s act. P must have
1. Known of the risk and
2. Voluntarily proceeded in the face of the risk
-Express: victim expressly agrees to risk whether orally or in writing (complete bar)
-Implied inferred from victim’s conduct (complete bar)
-Exculpatory clauses enforceable unless:
-The party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence
-The bargaining power of one party is grossly unequal
-Transaction involves a public interest
Affirmative defenses
- Assumption of risk
- Contributory negligence
- Comparative negligence
- Sovereign Immunity
Contributory Negligence
Complete Bar to Recovery (Jurisdiction)
-If plaintiff is even 1% negligent than no recovery (no one pays)
-All or nothing
Sovereign Immunity
-Defense
-avoids tort liability under all circumstances, within the limits of the immunity itself
For a P to prevail, they must show
- Duty
- Breach
- Actual/Proximate Cause
- Damages
Difference between trespass to chattel and conversion
while both trespass to chattel and conversion involve interference with someone’s property rights, trespass to chattel typically involves temporary or less severe interference, whereas conversion involves more substantial or permanent deprivation of those rights.
Liability for animals (domestic, trespassing, and wild animals)
- Domestic animals
-Generally no strict liability
-Exception: knowledge of animal’s dangerous propensities - Trespassing animals
-owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals - Wild Animals
-Strictly liable to licensees and invitees for injuries caused wild animals (even those kept as pets)
-Not to trespassers unless they prove owner’s negligence
Strict liability
exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state
Abnormally Dangerous Activities
- Can’t be made reasonably safe even w/ ordinary care
- Uncommon in area
-Liability only extends to foreseeable plaintiffs, and must result from the kind of danger thats anticipated from the activity and harm caused by fleeing from perceived danger,
-strict liability doesn’t apply when injury is caused by something other than dangerous aspect of the activity
Products liability
Liability of a supplier of a defective product to someone injured by the product
Theories of liability in products liability
- Intent
- Negligence
- Implied warranties of merchantability and fitness for a particular purpose
- Representation theories (express warranty and misrepresentation)
-justifiable reliance required - Strict liability
Elements for strict liability for products liability
P must show:
1. D is a merchant
-doesn’t have to be the manufacturer
- Product is defective
-Manufacturing defects
-Design defects
-Noncompliance with safety standards does not mean it is defective
-Information defects - Product was not substantially altered since leaving D’s control
- P was making a foreseeable use of the product at the time of the injury
- Physical injury or property damage must be shown
-Disclaimers are irrelevant if injury or property damages occur
Affirmative defenses to strict liability in products liability
- Contributory negligence states: no defense if P failed to realize the danger or guard against it. Defense if P knew of the danger and their unreasonable conduct was the cause of the harm
In contrast to products liability cases based on negligence, those based on strict liability do NOT:
Unlike with products liability cases based on negligence, those based on strict liability do not require that suppliers have an opportunity to inspect. Thus, for a case based on the sale of a defective product, a retailer in a strict liability action may be liable for a manufacturing or design defect simply for being a commercial supplier of that defective product, even if it had no opportunity to inspect the manufacturer’s product before selling it. In a negligence action, the supplier’s negligence must be proved.
Private Nuisance (Torts)
interference with use/enjoyment of private real estate
- Interference must be substantial
- Must be unreasonable
Public Nuisance (Torts)
Unreasonable interference with the health, safety, or property rights of the community.
Remedies for Nuisance (Torts)
- Damages
- Injunctive Relief
-When damages aren’t available or inadequate
-Court will consider relative hardships - For private, self-help abatement, with necessary force. For public, only a public authority or private party who has suffered can seek injunction or abatement
Vicarious Liability
holds one person or entity (PASSIVE TORTFEASOR) responsible for the actions or wrongdoing of another person (ACTIVE TORTFEASOR), typically because of a special relationship between them.
Employer/ Employee in vicarious liability
-if employee was acting within scope of employment at time of accident
-usually not intentional torts unless business told them too in some way
-not independent contractors
Parent for child in vicarious liability
generally not liable under CL but some states make parents liable up to a certain dollar amount
Joint and several liability
-P can collect any amount of damages from any defendant they want
-Where separate acts of negligence combine to cause a single injury, each actor responsible for the entire result (joint and several liability), even though his act alone might not have caused it
Contribution and Indemnity
Contribution: D seeks compensation from co-defendants (comparative contribution)
Indemnification: shifting the entire loss between or among tortfeasors. Available in:
1. vicarious liability
2. strict products liability for non-manufacturer
Elements for defamation
- A defamatory statement that specifically identifies the plaintiff
- published to a third party
- falsity
- Fault on part of Defendant
- Damage to P’s reputation
Colloqium in defamation
If a statement does not refer to the plaintiff on its face, extrinsic evidence may be used to establish that the statement refers to the plaintiff
Group defamation
If a defamatory statement refers to all members of a small group each member has to show that the statement specifically included them but
- if statement only refers to some members of a small group, plaintiff can still recover if they can show that a reasonable person would view the statement as referring to the plaintiff
- if the statement is about a large group, no member can prove that the statement specifically identifies them then no one wins
Fault on defendant’s part in defamation
majority requires a showing of fault on part of defendant depending on plaintiff’s status:
- Public official must prove actual malice
-knowledge that statement was false OR
-reckless disregard as to whether it was false - Private persons must prove negligence if matter of public concern
Defenses to defamation
- consent (complete defense)
- Truth (complete defense)
- Privilege
-Absolute (spouses, judicial proceedings), D may be protected
-Qualified (when there is a public interest in encouraging candor)
Invasion of Privacy (Torts)
-Personal right and doesn’t extend to family, survive death of plaintiff and is not assignable, and not applicable to corporations
Four kinds of wrongs
1. Appropriation of P’s picture or name
-unauthorized use for commercial advantage
- Intrusion on the P’s affairs or seclusion
-e.g. spying, eavesdropping, interception of phone calls. Must be highly offensive - Publication of facts placing P in a false light
-must be highly offensive to a reasonable person
-if public interest, actual malice must be shown - Public disclosure of private facts about the P
–must be highly offensive to a reasonable person
Defenses to invasion of privacy
- consent and defamation privilege defenses
- truth, good faith, lack of malice, and inadvertence (lack of attn) are NOT defenses
Elements for misrepresentation (torts)
(fraud, deceit)
- misrepresentation of a material fact
- When D made statement they knew or believed it was false
- intent to induce P in reliance of misrepresentation
- causation (actual reliance)
- justifiable reliance
- damages (P must actually suffer loss)
no general duty to disclose a material fact in misrepresentation UNLESS:
- fiduciary relationship
- selling real property and knows the P is unaware of and can’t reasonably discover material info about the transaction OR
- has spoken and their utterance deceives the P
Negligent misrepresentation elements (torts)
- misrepresentation in a business or professional capacity
- breach of duty
- causation
- justifiable reliance
- damages
interference with business relations (torts)
- existence of a valid contractual relationship between P and a third party
- D’s knowledge of relationship
- intentional interference by D inducing a breach or termination of relationship
- damages
