Torts Flashcards
What is the traditional tripartite duties of care of landowners?
- Undiscovered and unanticipated trespasser (on the land without consent or permission) - duty to refrain from willful, wanton, or reckless or intentional misconduct
- Discovered trespasser - Warn or protect against concealed, dangerous artificial conditions
- Licensees (social guest) and anticipated trespassers: Warn of known concealed dangers, use reasonable care in activities
- Invitees (business guests): Reasonable care to inspect, discover dangerous conditions, and protect (non-delegable)
What are landlord and tenants’ duties re: liability?
- Landlord liable for injuries occurring in common areas resulting from hidden dangers about which landlord fails to warn, on premises leased for public use, as a result of a hazard caused by negligent repair, or involving a hazard landlord agreed to repair; Protect from foreseeable attacks by third parties
- Tenant liable for injuries to third parties due to conditions within tenant’s control
What are the elements of the attractive nuisance doctrine?
- An artificial condition exists in a place where the owner knows or should know that children are likely to trespass
- The condition imposes and unreasonable risk of serious bodily injury;
- The children cannot appreciate the danger due to their youth;
- The burden of eliminating the danger is slight compared with the risk of harm; and
- The land possessor failed to exercise reasonable care to protect children
What are the elements of res ipsa loquitur?
- Allows the trier of fact to infer that there was negligent conduct:
- The plaintiff must prove that:
a) The type of accident would not normally occur absent negligence;
b) The injury was caused by an agent or instrumentality within the exclusive control of the defendant; and
c) The injury was not due to the plaintiff’s own actions.
What are the modern factors for determining breach (CBA)?
1) The foreseeability of harm;
2) The severity of harm; and
3) The burden on the defendant to prevent the harm
What are the elements of negligence per se?
- Arises when there is a statute that imposes a specific duty
- Plaintiff must be within the class of persons the statute is meant to protect
- Plaintiff must suffer the type of harm the statute was meant to protect against
- Defendant’s violation of the statute must be the proximate cause the plaintiff’s harm
What are the two primary alternatives to but-for causation?
1) Substantial Factor Rule
* Arises when there are multiple causes of the harm and each alone would have been a factual cause of the injury
* The conduct of each defendant is a cause in fact if it was a substantial cause of the injury
2) Alternative Causation
* Arises when the plaintiff’s harm is caused by multiple defendants (2–5) and each defendant’s conduct was individually tortious
* The burden of proof can shift to the defendants to prove that each was not the cause in fact
* NOTE: Still need to prove that each D was individually tortious
What are the elements of NIED?
o Plaintiff must have been within the zone of danger of the threatened physical impact
o Must have some physical manifestation of the emotional distress
NOTE: A P outside the zone of danger can recover if: (i) closely related to person injured by D; (ii) present at the scene; and (iii) personally observed or perceived the injury. Most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative—no threat of physical impact or physical symptoms required.
When can a bystander recover for NEID?
o A bystander who is outside the zone of danger may recover for NIED if the plaintiff:
* Meets primary NIED criteria (emotional distress + physical symptoms)
* is closely related to a person harmed by the defendant’s negligence;
* Was present at the scene of the injury; and
* Personally observed the injury.
What is an abnormally dangerous activity?
- High risk of harm
- Not commonly found in community
- Risk cannot be eliminated with due care
What are the two tests to prove design defect?
- Consumer-expectation test—plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer
- Risk-utility test—plaintiff must prove that a reasonable alternative design that is
economically feasible was available to defendant, and failure to use that design
rendered the product unreasonably dangerous.
What are the elements of defamation?
A plaintiff may bring an action for defamation if the defendant’s defamatory language:
o Is of or concerning the plaintiff;
o Is published to a third party who understands its defamatory nature; and
o Damages the plaintiff’s reputation.
What are the constitutional requirements of defamation?
First Constitutional Requirement: Falsity
Plaintiff must prove that the statement is false; and
If plaintiff is a public official or figure, must also prove that the defendant acted with actual malice
* Malice—defendant either had knowledge that the statement was false or acted
with reckless disregard as to the truth or falsity of the statement
If the plaintiff is a private individual and the defendant’s statement involves a matter of public concern, the plaintiff is required to prove that the defendant acted with egligence or actual malice.
b. Second Constitutional Requirement: Limits on Damages
A public official or figure or a private individual and matter of public concern—plaintiff ust prove actual damages
A private individual who can show actual malice may also recover punitive damages.
What are the invasion of privacy torts?
- Misappropriation
o The unauthorized use of plaintiff’s name, likeness, or identity for defendant’s advantage (commercial or otherwise)
o Plaintiff must prove lack of consent and injury. - Intrusion upon Seclusion
Defendant’s acts of intrusion into plaintiff’s private affairs are objectionable to a reasonable person - False Light
Plaintiff must prove that defendant published facts about plaintiff or attributed views or actions to plaintiff that place him in a false light and are highly offensive to a reasonable person - Public Disclosure of Private Facts
Actionable if the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public
