Torts Flashcards
Firefighter’s Rule
bars recovery from a firefighter or police officer who was injured by a peril that we he was employed to confront; if the peril was created by negligence/strict liability, officer generally still has no claim against defendant
Transferred Intent may be invoked only if both the tort intended and the tort that results are one of the following:
assault, battery, false imprisonment, trespass to land, trespass to chattels
Prima Facie Case for any Intentional Tort
(i) an act by the defendant (ii) intent by the defendant (iii) causation of the result to the plaintiff from the defendant’s act
Battery
(i) harmful or offensive contact (ii) with the plaintiff’s person, including anything connected to the plaintiff
Assault
(i) act by the defendant creating a reasonable apprehension in the plaintiff (ii) of an immediate battery
False Imprisonment
(i) an act or omission on the part of the defendant that confines or restrains the plaintiff (ii) to a bounded area [plaintiff must know of the confinement]
Intentional Infliction of Emotional Distress
(i) any act by the defendant amounting to extreme and outrageous conduct that (ii) causes the plaintiff to suffer severe emotional distress
Conduct that is not normally outrageous may become so if
(i) it is continuous in nature; (ii) it is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”); (iii) it is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant, supersensitive adults if the sensitivity is known to the plaintiff)
IIED Bystander Cases
plaintiff may recover by showing either prima facie elements OR that (1) they were present when the injury occurred, (2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person; and (3) the defendant knew these facts
Trespass to Chattels
(i) an act by the defendant that interferes with the plaintiff’s right of possession in a chattel [defendant’s mistaken belief that they own the chattel is no defense]
Self-Defense
when a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury
Defense of Others
one may use force to defend another when they reasonably believe that the other person could have used force to defend themselves
Defense of Property
one may use reasonable force to prevent the commission of a tort against their real or personal property; a request to desist or leave must first be made unless it would clearly be futile or dangerous
Shopkeeper’s Privilege
shopkeeper has privilege to detain a suspected shoplifter for investigation if (i) there is a reasonable belief as to the fact of theft, (ii) the detention is conducted in a reasonable manner [only nondeadly force can be used], and (iii) the detention is for a reasonable period of time and only for the purpose of making an investigation
Necessity
a person may interfere with the real or personal property of another when it is reasonably 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 avert it
Children Standard of Care
children are held to the standard of a child of like age, intelligence, and experience; subjective test
Professional Standard of Care
professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing [doctors = national standard]
Duty Owed to Discovered/Anticipated Trespassers
land possessor must warn of or make safe any conditions that are: (i) artificial, (ii) highly dangerous [involving risk of death or serious bodily harm], (iii) concealed, and (iv) known to the land possessor in advance
Licensee
one who enters onto the land with the possessor’s permission for their own purpose or business rather than for the possessor’s benefit [social guests]
Duty Owed to Licensees
land possessor has duty to warn of or make safe hazardous conditions that are (i) concealed + (ii) known to the land possessor in advance
Invitee
one who enters onto the land in response to an invitation by the possessor, either for a purpose connected with the business of the possessor or as members of the public for a purpose for which the land is held open to the public
Duty to Invitees
land possessor owes duty regarding hazardous conditions that are (i) concealed + (ii) known to the land possessor in advance or could have been discovered by a reasonable inspection
Attractive Nuisance
plaintiff must show: (i) a dangerous condition on the land that the owner is or should be aware of, (ii) the owner knows or should know that children might trespass on the land, (iii) the condition is likely to cause injury [it is dangerous because of the child’s inability to appreciate the risk], and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk
A clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more general CL duty of care if
(i) the plaintiff is within the protected class, (ii) the statute was designed to prevent the type of harm suffered by the plaintiff
Negligent Infliction of Emotional Distress
plaintiff must show, in near miss cases, (i) that the plaintiff was within the “zone of danger” + (ii) that the plaintiff suffered physical symptoms from the distress
NIED Bystander Cases
bystander who sees defendant negligently injuring another can recover damages for their own distress if: (i) the plaintiff and the person injured by the defendant are closely related + (ii) the plaintiff was present at the scene of the injury and personally observed/perceived the event
Rep Ipsa Loquitur
plaintiff must show that: (i) the accident causing the injury is a type that would not normally occur unless someone was negligent, (ii) negligence is probably attributable to the defendant [often shown by evidence that instrumentality causing the injury was in exclusive control of the defendant
Merged Causes
where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury
Unascertainable Causes
when there are two acts, only one of which causes injury, the burden of proof shifts to defendants to show that his negligence is not the actual cause
Intervening Forces that are almost always foreeseable
(i) medical malpractice; (ii) negligence of rescuers; (iii) protection or reaction forces to the defendant’s conduct, including efforts to protect person or property; (iv) disease or accident substantially caused by the original injury
Intervening forces that may be foreseeable if defendant’s negligence increased the risk of harm from these forces:
(i) negligent acts of third persons, (ii) crimes and intentional torts of third persons, (iii) acts of God
Imputed Contributory Negligence
the contributory negligence of a third party will be imputed to a plaintiff only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s negligence [employer-employee, partner, joint venturer] [NOT imputed: spouses, parent-child, auto owner-driver]
Assumption of the Risk
plaintiff may be denied recovery if they assumed the risk of any damage caused by defendant’s act; must have (i) known of the risk + (ii) voluntarily proceeded in the face of the risk
Liability for Domesticated Animals
owner is not strictly liable for injuries caused by domestic animals unless they have knowledge of that particular animal’s dangerous propensities that are not common to the species
Liability for Trespassing Animals
owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals
Liability for Wild Animals
owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets)
Abnormally Dangerous Activities
strict liability applies to those engaged in activities that: (i) create a foreseeable risk of serious harm even when reasonable care is exercised by all actors and (ii) are not a matter of common usage in the community
Theories of Product Liability
intent, negligence, implied warranties of merchantability and fitness for a particular purpose, representation theories, and strict liability
Elements for Strict Products Liability
(i) defendant is a merchant, (ii) the product is defective, (iii) product was not substantially altered since leaving defendant’s control, (iv) plaintiff was making a foreseeable use of the product at the time of the injury
Manufacturing Defects
if a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect
Design Defects
when all products of a line are the same but have dangerous propensities, they may have a design defect; plaintiff usually must show that defendant could have made product safer without serious impact on product’s utility or price (feasible alternative)
Government Safety Standards
product’s noncompliance with government safety standards establishes that it is defective; compliance with standard is inconclusive evidence that the product is not defective
Information Defects
product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users
Private Nuisance
a substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession
Substantial Interference
interference must be offensive, inconvenient, or annoying to the average person in the community
Unreasonable Interference
one whose severity outweighs its utility
Public Nuisance
an act that unreasonably interferes with the health, safety, or property rights of the community
Employer Vicarious Liability [Respondeat Superior]
am employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship
Indemnification Allowed
(i) in vicarious liability situations; (ii) under strict products liability for the non-manufacturer
Defamation
(i) a defamatory statement that specifically identifies the plaintiff, (ii) published to a third party, (iii) falsity of the defamatory language, (iv) fault on the part of the defendant, and (iv) damage to the plaintiff’s reputation
Defamation of Public Official/Figure
actual malice, knowledge that the statement was false OR reckless disregard as to whether it was false, must be proved
Defamation of Private Persons Concerning Matters of Public Concern
negligence regarding the falsity must be proved if the statement involves a matter of public concern
Slander Per se
statements that (i) adversely reflect on the plaintiff’s business or profession, (ii) state that the plaintiff has committed a serious crime, (iii) impute that the plaintiff has engaged in serious sexual misconduct, or (iv) state that the plaintiff has a loathsome disease
Types of Invasion of the Right to Privacy
(i) appropriation of the plaintiff’s picture or name, (ii) intrusion on the plaintiff’s affairs or seclusion, (iii) publication of facts placing the plaintiff in a false light, and (iv) public disclosure of private factors about the plaintiff
Appropriation of Plaintiff’s Name or Picture
must show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage
Intrusion on Plaintiff’s Affairs or Seclusion
act of prying or intruding must be highly offensive to a reasonable person + the thing into which there is an intrusion must be private
Publication of Facts Placing Plaintiff in False Light
“false light” = when one attributes to the plaintiff views they do not hold or actions they did not take; must be something highly offensive to a reasonable person + defendant must circulate the statement to the public at large [if matter of public interest –> actual malice must be proved]
Public Disclosure of Private Facts about Plaintiff
public disclosure must be highly offensive to a reasonable person of ordinary sensibilities + truth is not a defense
