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Torts Flashcards

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1
Q

Battery

A

D intentionally causes harmful or offensive contact to P or something closely connected to P’s body. Contact must be harmful or offensive to a reasonable person. No injury necessary–P can still recover nominal damages.

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2
Q

Assault

A

D intentionally causes P to be in reasonable apprehensive of imminent harmful or offensive contact.

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3
Q

False imprisonment

A

D intentionally causes P to be confined in a bounded area, against P’s will, with no reasonable means of escape, and P is aware of or injured by confinement.

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4
Q

Intentional infliction of emotional distress

A

D intentionally or recklessly engages in extreme and outrageous conduct (exceeding all bounds of decency) that causes severe emotional distress. Offensive language is generally not enough, unless P is a common carrier or inn-keeper, D knows that P is unusually sensitive, or D is an authority figure who uses racial or ethnic slur.

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5
Q

Trespass to land

A

Intentional act that causes entry to another’s property.

Mistake of fact is no defense (i.e., thinking that property is not privately owned)

Nominal damages available if no real harm. Ejectment is restitution remedy.

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6
Q

Trespass to chattel

A

Intentional act that interferes with another’s possessory interest in personal property and causes actual damages.

Mistake of fact not a defense.

Remedies are damages (cost of repair, fair market rental value, potentially punitive), replevin to get back property.

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6
Q

Conversion

A

D intentionally exercises dominion or control that causes destruction of, or serious and substantial interference with, P’s personal property.

Distinct from trespass to chattel based on degree of interference.

Mistake is not defense (i.e., A buys B’s stolen property from C–B can sue C for conversion)

Remedies: forced sale, replevin

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7
Q

Privilege

A

D has privilege to behave a certain way.

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8
Q

Defense of property

A

D entitled to use reasonable force to protect property, eject trespasser (after asking them to leave), or recapture chattel (after asking for it back) if in hot pursuit.

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9
Q

Defense of others

A

D entitled to defend another from attack to same extent that the person could use self-defense, but D is liable for mistake

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10
Q

Consent

A

Express consent: P affirmatively communicates permission for D to act

Implied consent: A reasonable person would interpret P’s conduct as evidencing permission to act

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11
Q

Authority

A

Police can arrest based on reasonable belief that D committed a felony or misdemeanor breach of peace. Private person can arrest but is liable for tort if mistaken.

Shopkeeper’s privilege: Can detain for reasonable period and in a reasonable manner on the premises upon reasonable suspicion that P stole

Discipline: Parent or teacher may use reasonable force to discipline child

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12
Q

Necessity

A

D is permitted to injure P’s property if reasonably necessary to avoid substantially greater harm to public, self, or D’s proeprty.

Public: D acts to protect public-at-large from severe harm.

Private: D commits intentional tort to protect himself, when a reasonable person would believe action was necessary to avoid harm. Privilege applies even if D made honest mistake, but D is liable for harm to property.

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13
Q

Self-defense

A

D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.

Some jurisdictions require duty to retreat before using deadly force, unless in one’s home.

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14
Q

Duty (general)

A

D has a legal duty to act as an ordinary, reasonable, prudent person taking precautions against unreasonable risk of injury to others

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15
Q

Duty to rescue

A

Only applies when D’s tortious conduct creates need for rescue, or there is a special relationship between D and P.

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16
Q

Duty to control third parties

A

No duty to control unless there is a special relationship that gives third party right of protection or imposes on D a duty to control a third party’s conduct.

Therapist has duty to warn a specific party who might be in danger.

Negligent entrustment creates liability if D gives something dangerous to someone D should know is not competent to handle.

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17
Q

Duty to protect

A

No duty to protect another person from third party criminal conduct unless there is a special relationship. Some jurisdictions also require prior similar incidents.

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18
Q

Government duty

A

Proprietary function: Gov’t treated as any other D.

Discretionary activity (i.e., setting policy): No duty

Ministerial function: Duty applies once gov’t has undertaken to act (i.e., stop sign incorrectly installed)

Public duty doctrine: No duty when professional rescuers fail to provide adequate response, unless there is a special relationship between P and agency, or agency has increased danger

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19
Q

Negligent Infliction of Emotional Distress

A

D engages in negligent conduct that causes P to suffer emotional distress with a physical manifestation.

Generally requires P to be in the Zone of danger. P must suffer physical manifestation unless claim involves mishandling of a corpse or information about death of a loved one.

Bystander action available if P was near the scene of the accident, suffered severe emotional distress, and had a close relationship with victim (immediate family member.

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20
Q

Wrongful conception

A

Applies when P had a healthy child due to D’s negligence after taking steps to avoid conception. Damages for birth but not raising of the child.

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21
Q

Wrongful birth

A

Applies when P had a child with a disease or anomaly that D negligently failed to diagnose, if P would have ended pregnancy if not for failure to diagnose.

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22
Q

Wrongful life

A

Child’s claim against D for being born with a disease or anomaly that D negligently failed to diagnose. Generally not recognized.

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23
Q

Duty to invitee

A

If P entered D’s land at express or implied invitation for purpose related to D’s interest, D has duty to exercise reasonable care to prevent injuries.

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24
Q

Duty to licensee

A

If P entered D’s land, not held open to the public, at express or implied invitation for a purpose related to P’s own interest, D has a duty to warn of known concealed dangers.

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25
Q

Duty to trespasser

A

If P enters D’s land without express or implied consent, D has duty to avoid infliction of willful or wanton harm.

If there are known or frequent trespassers, D has duty to warn of known and concealed dangerous artificial conditions.

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26
Q

Child trespassers

A

Attractive nuisance: Child trespasser is treated on an invitee if P is too young to appreciate the danger, D has reason to know of the trespass, D knows of the dangerous condition, the condition is artificial, and the risk of danger outweighs its utility and the burden to fix it.

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27
Q

Landlord liability

A

LL is liable for common areas, negligent repairs, a concealed dangerous condition known at the time of the lease, or if LL knows that T will hold property open to the public.

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28
Q

Hand formula

A

Formula for breach:

Probability of harm occurring from conduct, multiplied by the likely magnitude of harm, compared with burden on D of preventing harm.

29
Q

Reasonably prudent person

A

Basic standard of care. D’s conduct measured against expectation of conduct within community.

If D has a physical condition like blindness or deafness, standard of care is based on RPP with that condition.

For children, majority rule is what a reasonable child of the same age, experience, education, and intelligence would have done.

30
Q

Negligence per se

A

When D’s conduct violates a statute that does not provide for civil liability, statute can establish standard of conduct for breach of duty (P must just prove causation and damages). Requires that P is member of class that law is designed to protect and injury caused by D’s conduct is type statute sought to protect.

31
Q

Medical malpractice

A

Physicians required to possess and use knowledge, skill, and training of other physicians in good standing. National standard for specialists and locality standard for general practitioners.

Requirement of informed consent. Obligation to divulge can be evaluated with either professional rule (risk customarily divulged), or patient rule (all material risks a reasonable patient would want to know).

32
Q

Evidence of breach

A

Direct: Eye witness or recording of accident

Circumstantial: Evidence from which one can draw a reasonable inference

33
Q

Res ipsa loquitur

A

Fact-finder can infer D’s breach based on nature of accident and D’s relationship

Requires (1) sort of accident that does not normally occur without negligence, (2) D had control over the instrumentality of the harm, and (3) P did not contribute to injury.

34
Q

Causation

A

But for: P’s injury would not have occurred but for D’s negligence

Substantial factor: D’s negligence was substantial factor in causing harm

Alternative liability theory: Applies when any single D could have caused P’s harm, but identify of tortfeasor can’t be determined. If all Ds are negligent, all Ds are being sued together, and there are a small number of D’s, then burden shifts to Ds to show they were not the cause (otherwise, joint and several liability).

Market share liability: When P cannot show which of a large group of negligent Ds were responsible for manufacturing product that caused harm, each D is responsible based on its share of market.

Loss of chance (minority rule): But for medical malpractice, P would not have lost chance of cure.

35
Q

Eggshell skull rule

A

D is liable for full harm even when P was uniquely susceptible, as long as the type of harm is foreseeable.

36
Q

Superseding cause

A

Unforeseeable intervening cause that breaks chain of causation between wrongful act and injury.

36
Q

Compensatory damages

A

Return P to pre-injury position.

Special damages: Pecuniary medical costs, lost wages, cost of repair (can recover for past, present, and future value)

General damages: Pain and suffering

37
Q

Punitive damages

A

Available only when D acts willfully, maliciously, or recklessly (not ordinary negligence).

Goal is deterrence. Generally, more than 10% ratio to compensatory damages is unconstitutional.

38
Q

Contributory negligence

A

D shows that P’s conduct was unreasonable and fell below a reasonably prudent person standard.

At common law, any contributory negligence from P barred recovery.

Last clear chance doctrine: If D’s negligence occurred after P’s negligence such that D had last opportunity to avoid harm, P is entitled to full recovery (minority rule)

Pure comparative fault: P recovers amount of damages minus percentage that P is at fault.

Modified comparative fault: P barred from recovery if as much or more at fault than D, and otherwise recovers proportionate to damages.

39
Q

Assumption of the risk

A

Express: P orally or in writing relieves D of responsibility to be non-negligent. Not allowed for necessities.

Implied assumption of risk: P knew of the risk, P appreciated the risk, and P voluntarily chose to subject self to danger

Primary assumption of the risk: No duty to be non-negligent (usually applies to sports)

40
Q

Liability for animals

A

Wild animals: Strict liability if D keeps wild animal

Domestic animals: Strict liability only if D is on notice of danger (“every dog gets one free bite)

41
Q

Abnormally dangerous activity

A

Activity is abnormally dangerous if (1) there is a high risk of serious harm to others, (2) D cannot engage in the activity without risk and cannot eliminate the risk with care, and (3) activity is not commonly undertaken in the community. D strictly liable if P is injured by the same risk that makes activity dangerous.

42
Q

Defenses to strict liability

A

Contributory negligence is not a defense unless P knew of danger that justified strict liability, and his actions caused exactly that danger to manifest.

43
Q

Strict product liability

A

Strict liability applies when P is injured by a defective product. Liability attaches to commercial supplier at all levels of distribution chain (manufacturer, wholesaler, and retailer).

Product is defective when it is an unreasonably dangerous defective condition based on manufacturing defect, risk-utility balancing test, or inadequate warning.

44
Q

Manufacturing defect

A

Product is manufactured in form other than that intended.

45
Q

Design defect

A

Property was manufactured as intended but poses danger due to flawed design.

Ordinary consumer expectation test: Product more dangerous than would be contemplated by ordinary consumer possessing ordinary knowledge

Risk-utility test: Danger of the design outweighs utility to society, considering ease of alternative designs, likelihood and severity of harm, usefulness of product.

46
Q

Warning defect

A

Warning fails to reasonably inform reader of risk of product and how to reduce them (considers language, placement, font size, and clarity)

47
Q

Learned intermediary doctrine

A

If manufacturer provides warning to doctor, manufacturer can expect that doctor will warn patient, and any failure to warn breaks proximate cause

48
Q

Product liability defenses

A

Misuse: P’s use of product is neither intended nor foreseeable

Alteration: Intermediary (like employer) removes safety devise to increase efficiency

Assumption of the risk: P used product with knowledge of ris

49
Q

Warranty theory for product liability

A

When harm is to product, P can only pursue warranty claim.

Express warranty is specific representation as to quality/nature. Implied warranty of merchantability creates a warranty that product is fit for intended use.

50
Q

Public nuisance

A

Unreasonable interference with a right common to general public (generally health and safety).

To recover damages, P must show harm different from that suffered by other members of the public.

51
Q

Private nuisance

A

Thing or activity that substantial and unreasonably interferes with P’s use and enjoyment of land. Considers (1) value of D’s activity, (2) alternatives, (3) nature of locality, (4) extent of P’s injury, (5) who was there first.

Remedy general is injunction. Must show irreparable damages and damages are an inadequate remedy.

52
Q

Defamation

A

D published defamatory material concerning P that caused reputational harm. P must generally prove falsity as part of prima facie case (unless private figure and private concern). For public figure, must show actual malice. For private figure, negligence is required if subject matter is public concern.

(1) Defamatory message: Subjects P to score or ridicule or deters others from dealing with P. Must be one that can be believed as truthful.

(2) P is named, or message concerns P and P is identifiable from context.

(3) Publication: Someone other than P learned of the defamation. Requires that D intentionally or negligently published information.

53
Q

Libel

A

Defamatory message embodied in relatively permanent harm. Reputation harm presumed.

54
Q

Slander

A

Defamation in spoken form.

Slander per se: Imputing to P behavior or characteristics incompatible with proper conduct of P’s business; imputing to P commission of crime involving moral turpitude or infamous punishment; allegation that P has loathsome disease; falsely imputing lack of chastity to a woman

55
Q

Defamation privileges

A

Absolute: Communication between spouses, statements made on floor of legislature, statements made between high ranking executive officials, statements made in judicial proceedings.

Conditional:
(1) Comments made in communication reasonably necessary necessary to protect D’s legitimate interests
(2) Comments were communicated on matter of interest to recipient of communication or third person
(2) Comments were communicated concerning matter of public interest to one empowered to protect interest

56
Q

Intrusion into seclusion

A

D unreasonably intrudes into P’s seclusion (zone of privacy). Intrusion must be highly objectionable to a reasonable person.

Damages are compensatory damages and, if bad enough, punitive damages

57
Q

Commercial appropriation of likeness or identity

A

Unauthorized use of P’s name, voice, or likeness for D’s commercial advantage. (Newsworthy purpose exempt)

58
Q

Public disclosure of private true fact

A

Disclosure of private facts when disclosure is highly offensive to a reasonable person and not newsworthy. (No liability if information is in public records)

Injunction is possible because information is true

59
Q

Portrayal in false light

A

D published matters portraying P in false light, when the information is highly offensive to a reasonable person. Fault parallel to defamation rules

(defamation light)

60
Q

Wrongful institution of legal proceedings

A

Malicious prosecution: Criminal proceedings instituted by D for improper purpose and without probable cause, that terminate in favor of P and cause P damage.

Wrongful institution of civil proceedings: Civil proceedings instituted by D for improper purpose and without probable cause, that terminate in favor of P and cause P damage.

Abuse of process: D intentionally misuses judicial process for purpose other than that which it was intended

61
Q

Intentional misrepresentation

A

Intentional material representation by D, of past or present fact, made with knowledge, and on which P justifiably relies to P’s economic detriment.

Failure to disclose only meets element if there is a fiduciary relationship, an ambiguous or misleading statement causing reliance, D makes an assertion believed to be true but later discovers it was false, D makes a false assertion not intending reliance but discovers P relied, or P reasonably expects there would be disclosure

62
Q

Negligent misrepresentation

A

D has no duty to avoid negative infliction of pure economic loss.

Exception: Special relationship like fiduciary duty, or D knows they are acting for benefit of third party and third party relies and suffers loss.

63
Q

Interference with contractual relations

A

D knew of a contract between P and third party, and D acted with purpose of having contract breached or making it harder to perform.

64
Q

Inference with prospective economic advantage

A

D knew of prospective economic advantage, and D acted to interfere with it for improper notice.

Point is to prospect “expectancy” interests of future contract relations

65
Q

Injurious falsehood

A

D acts with actual malice to make a statement to another or cause a statement to be published, and causes a specific economic injury to P.

(Similar to defamation but about economic loss rather than reputation harm)

66
Q

Vicarious liability

A

Respondeat superior: Employer is liable for injuries caused by negligence or strict liability. Generally no liability for intentional torts unless employee uses force to further employer’s purpose.

Independent contractor: D not liable for torts committed by ICs. Distinguished from employers based on whether employer dictates means, methods, and manner of IC’s work.

Parent/child: No vicarious liability absent statute saying otherwise (but liability for negligent supervision or entrustment)

67
Q

Survival statutes

A

At common law, death of victim abated tort action. Survival statutes allow claim to be brought by estate of decedent.

68
Q

Wrongful death statutes

A

All jurisdictions provide for action by which deceased victim’s heirs or representatives may bring action for wrongful death for their own economic loss and loss of consortium

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