Torts Flashcards
Intentional torts elements
Act - volitional
Intent - intent to bring about to forbidden consequences that are the basis of the tort
Causation - substantial factor
Transferred intet
Different tort against same person
same tort against different person
different tort against different person
only
- assault
- battery
- false imprisonment
- trespass to land
- trespass to chattels
Battery
Harmful or offensive contact
with the plaintiff’s person
damages not required - can get nominal or punitive
Assault
Create reasonable apprehension of an immediate battery
words alone are not enough, but are enough to negate reasonable apprehension
Not damages - nominal or punitive
False imprisonment
Act or omission that confines or restrains P to a bounded area
P must know of confinement or be harmed
no reasonable means of escape known to P
insufficient to restrain - moral pressure or future threats
Damages not required - nominal or punitive
Intentional infliction of emotional distress
Act amounting to extreme and outrageous conduct
P must suffer severe emotional distress
Outrageous conduct - transcends all bounds of decency or
- Continuous
- certain type of D - common carrier or innkeepers
- certain type of P - children, elderly, pregnant, known sensitivity
Intent or recklessness
Bystander IIED
Prima facie of ED or
- present when injury occurred
- distress resulted in bodily harm or P was a close relative
- D knew these facts
Trespass to land
Physical invasion
of P’s real property
no damages needed
Trespass to chattels
Act that interferes with P’s right of possession to chattel
- intermeddling (damaging)
- dispossession
actual damage to possessory right required
Conversion
Act that interferes with P’s right of possession
interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value
only tangibles
Damages or replevin - fmv at time of conversion or possession
Intentional tort defenses
Consent - need capacity
- express - unless mistake and D knew and took advantage of mistake, fraud of an essential matter, duress for immediate harm
- implied - custom and usage or P’s conduct
Privileges - preventing the commission
- Self defense
- defense of others
- defense of property
Necessity - only for property torts
- public
- private
Self defense
Reasonably believes about to be attacked - force reasonably necessary
- No duty to retreat, but may have duty before using deadly force unless in home
- not available to initial aggressor unless other party responds to nondeadly with deadly
- may extent to third-party injuries
Reasonable mistake permissible
Defense of others
Use force to defend another when they reasonably believe the other person could have used force
reasonable mistake allowed
Defense of property
Reasonable force to prevent commission or in hot pursuit
A request to desist or leave must first be made unless clearly futile or dangerous
reasonable mistake allowed unless mistake of whether entrant has a privilege to enter
No deadly force for property alone
Shopkeepers privilege
Detain a suspected shoplifter
- reasonable belief of theft
- detention in reasonable manner and only nondeadly force
- reasonable period of time and only for purposes of making investigation
Reentry onto land
No self help allowed
only ejectment
Public necessity
Acted to avert an imminent public disaster
absolute defense
Private necessity
prevent serious harm to a limited number or people
must pay for actual harm
Elements of negligence
Duty
Breach
Causation
Damages
Firefighter rule
Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs
Child standard of care
that of a like age, intelligence, and experience
unless adult activity
Professional standard of care
possess the knowledge and skill of an AVERAGE member of the profession or occupation in good standing
Possessor of land duties
Unknown trespasser - no duty
Known trespasser - warn or make safe known man-made death traps
licensees - possessor’s permission or for own purpose of business or firefighters and police
- warn or make safe known traps
Invitee - possessor business or held open to public
- warn or make safe known or knowable traps
Attractive nuisance
Trespassing children
ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property
- dangerous condition that owner was aware or should have been
- owner knows or should have known that child might trespass onto land
- condition likely to cause injury
- expense of remedying is slight compared to risk
Negligence per se
Statute for criminal penalties
- p within protected class
- designed to prevent that type of injury
Conclusive presumption of duty and breach
excused compliance - compliance will cause more danger than violation or compliance would be beyond d’s control
Negligent infliction of emotional distress
Near miss
- zone of danger
- physical symptoms
Bystandard
- close relation
- present and observed or perceived
- physical symptoms
Special relationship
- misdiagnosis
- funeral home
Res ipsa loquitur
- accident the type that would not normally occur unless someone was negligent
- attributed to defendant - usually exclusive control
only an inference of breach
but for causation - Merged causes
substantial factor test
where sever causes bring about the injury, and any one alone would have been sufficient to cause the injury - D’s conduct is the cause in fact if it was a substantial factor in causing the injury
But for causation - unascertainable causes
Two negligent acts, only one could have caused the injury but do not know which one
Burden of proof shifts to D
Foreseeable intervening fources
Medical malpractice
negligence of rescuers
protection or reaction forces
Disease or accident substantially caused by original injury
Possibly foreseeable intervening forces
D’s conduct increased the risk of harm
- negligent acts of third persons
- crimes and intentional torts of third persons
- acts of god
Damages
Economic, noneconomic damages
no punitives unless wanton and willful, reckless, or malicious
Eggshell skull - even if not foreseeable
cannot recover - prejudgment interest and attorney’s fees
Defenses
Contributory negligence - total bar
last clear chance - rebuts contrib negl
Comparative negligence - partial - cannot be more negligent
ASSUME PURE
assumption of risk - members of a class protected by the statute will not be deemed to have assumed the risk
not defense to intentional tort
Strict liability - animals
domestic - no strictly liable unless knowledge of particular animal’’s dangerous propensities not common to the species
trespassing animals - strictly liable for reasonably foreseeable damages by trespass of your animal
wild - strict liability to licensees and invitees for injuries
- if trespasser, must show negligence
Strict liability - abnormally dangerous activity
Activity creates a foreseeable risk of serious harm even when reasonable care exercised by all actors
activity is not a matter of common usage in the community
- foreseeable P
- harm from the kind of danger to be anticipated and fleeing
Products liability theories
intent
negligence
implied warranties of merchantability and fitness for a particular purpose
representation theories
strict liability
Strict liability - products liability
- D is a merchant
- the product is defective
- the product was not substantially altered since leaving D’s control
- P was making a foreseeable use of the product at the time of injury
No casual seller or service provider
includes entire distribution chain even if no privity
moving through normal channels of distribution creates inference that not altered when leaving D’s control
more than economic loss- must have injury
Types of product defects
Manufacturing - different from and more dangerous than the products that were made properly
Design - all products of a line are the same but have dangerous propensities
information - failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users
Nuisance
Invasion of property rights by tortious conduct
Private - substantial, unreasonable interference with another private individuals use or enjoyment of property
- substantial is to the average person, not hypersensitivities or specialized property use
- balance severity of injury to utility of D’s conduct
public - unreasonably interferes with the health, safety, or property rights of the community
- recovery by a private party only if private party suffered unique damages not suffered by public at large
- can use self help abatement
Respondeat superior
Employer vicariously liable for torts of employees in the scope of their employment
Liable for intentional torts if
- furthering the business of the employer
- force is authorized
- friction is generated
minor frolic- still within scope
substantial deviation - not within scope
Vicarious liability - independent contractor
nondelegable duties - duty to keep business premises safe
Defamation
- A defamatory statement that specifically identifies P
- published to third party - intent to publish
- false
- fault
- damages
P must be alive
public official or figure - actual malice
public concern - negligence for actual, malice for punitive
no protection for private actor, private concern
Defamation - libel
defamation embodied in permanent form - written or printed or televised
do not need to prove special damages - general damages presumed
Defamation - slander
Spoken defamation
must have special damages unless slander ser se
- reflects on P’s business or profession
- state P committed a serious crime
- serious sexual misconduct
- loathsome disease
Defamation defenses
Absolute privilege
- between spouses
- during judicial proceedings, by legislators during proceedings, by federal executives in compelled broadcasts
qualified
- public interest in encouraging candor
Invasion of right to privacy
four types of wrongs
- appropriation of P’s picture or name for commercial purposes
- intrusion in p’s private affairs - highly offensive to reasonable person
- publication placing P in false light - highly offensive to reasonable person
- public disclosure of private facts - highly offensive to reasonable person
Defenses
- consent
- privilege
- truth is not a defense
damages - can be just emotional or special damages
Intentional Misrepresentation
Misrepresentation of a material past or present fact
scienter - knew or believed was false
intent to induce reliance
causation
justified reliance
damages - actual pecuniary loss
Negligent misrepresentation
misrepresentation in a business or professional capacity
breach of duty
causation
justified reliance
damages
Interference with business relations
existence of a valid contractual relationship btw P and 3rd party or valid business expectancy
D’s knowledge of relationship or expectancy
intentional interference inducing a breach or termination
damages
