Torts Flashcards
Intentional infliction of Emotional Distress
Public Figure:
1) D acted intentionally or recklessly
2) D engaged in extreme and outrageous conduct
3) P suffered severe emotional distress
4) D published a false statement of fact with actual malice
Affirmative Duty to Act
1) Assumption of Duty - D voluntarily aids or rescues another has duty to use reasonable care when rendering aid or performing rescue
2) Creation of Risk - D conduct creates foreseeable risk of harm or places another in peril has duty to exercise reasonable care to prevent further harm by rendering care or aid
3) By contract - use care when performing contractual obligations
4) By Authority - D has actual ability and authority to control (Parent/child, custodian/custody, employer/employee)
5) Relationship duty to protect, aid or assist P with whom D has unique relationship (parent/child, business/patron, common carrier/passenger, innkeeper/guest, employer/employee)
6) By statute
7) Land Possessor - duty to mitigate risks posed by natural or artificial conditions on land
Assumption of the Risk
defense to strict liability claims based on injuries when voluntarily engages knowing its dangerous propensities
Extreme and Outrageous Conduct
1) Flagrant indecency
2) exploiting known and special vulnerability
3) abusing authority
4) Repeated harassment
Scope of D’s Duty to Care
Cardozo: duty owed only to persons who might be foreseeably harmed as a esult of defendant’s negligence
Andrews (Minority) - duty owed to everyone on earth if anyone might be foreseeably harmed as a result of defendant’s negligence
Pure Comparative-Negligence Jurisdiction
Default rule - recovery is reduced by the plaintiff’s percentage of fault as determined by the trier of fact
Contributory-Negligence Jurisdiction
plaintiff who fails to use reasonable care for their own safety and thereby contributes to their own injury is barred from recovering damages
Modified Comparative Negligence
Reduces recovery based on plaintiff’s percentage of fault but recovery is barred if the plaintiff’s fault exceeds 50%
Res ipsa loquitur
Allows the D negligence to be inferred by the fact finder from circumstantial evidence if:
1) accident was of a kind that ordinarily does not occur in the absence of negligence
2)the thing that caused the harm was under the D’s exclusive control AND
3) Harm was not due to the plaintiff’s actions
Last Clear Chance Doctrine
in contributroy-negligence jurisdictions, plaintiff may mitigate legal consequence of contributory negligence if D had last clear chance to avoid injuring P but failed to do so
Helpless P: P cannot escape and in peril - D liable if D knew or should have known of P’s peril and harm could have been avoided but for D’s negligence
Inattentive: P in peril from which could escape if paying attention - D liable if had actual knowledge of P’s inattention
Intervening Causes
Foreseeable Cause - foreseeable intervening act or force that contribute to plaintiff’s harm; D is liable
Superseding Cause - unforeseeable intervening act or force that breaks chain of causation between D’s tortious conduct and P’s harm - D not liable
Actual (factual) Cause
Plaintiff’s harm would not have occurred but for the D’s actions
Proximate (legal) Cause
the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct
Defense of Others
(1) Reasonably believes that
(2) circumstances are such that the 3rd party has a privilege of self defense AND
(3) defendant’s action is immediately necessary to protect the 3rd party
Deadly force to defend 3rd party is reasonable
1) P is intentionally inflicting or about to intentionally inflict unprivileged force on 3rd
2) 3rd party is in peril of death, serious bodily harm, or rape by the use
3) D can safely prevent the peril only by the immediate use of deadly force
Medical Malpractice
Specialized negligence claim - P must prove that:
1) Physician’s conduct fell below the relevant professional standard of care AND
2) Caused the P physical harm (“but for”)
Private Nuisance
when D’s interference with the use and enjoyment of the plaintiff’s property is both:
1) Substantial - offensive, annoying, or intolerable to a normal person in the community AND
2) unreasonable - effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria
Land Possessors Owe a Duty of Reasonable Care
Invitees - inspect for unknown dangers, make safe or warn, and prevent harm from active operations
Licensees - warn of known latent defects and use reasonable care in active operations
Known or anticipated trespassers - warn of known artificial dangers and use reasonable care in active operations
Unknown or unanticipated trespassers - not duty