Torts Flashcards
General notes on intentional torts
-Assume P is a reasonable person.
-No incapacity defenses (i.e. you can sue 10 year old if he locks in you closet against your will).
-Intent: desire to produce the legally forbidden consequence.
-Transferred intent: D has intent BUT different consequences result OR there is a different victim, D is still liable (to the person who ended up being the victim). Via transferred intent, assault can also become battery if you e.g. accidentally slip and end up hitting someone with your racket.
Under the transferred intent doctrine, an intent to cause an assault (intent to cause apprehension of imminent harmful or offensive contact) will satisfy the intent requirement for battery when the other elements of battery are present.
Battery (intentional torts)
-(1) D must cause harmful or offensive contact: offensive = unpermitted by a person of ordinary sensitivity.
-(2) Contact must be w/ P’s person: includes anything P is touching/holding, e.g. backpack, putting poison in someone’s sandwich in the fridge. Contact need not be instantaneous.
P need not show actual harm/damages!!
Assault (intentional torts)
-(1) D must put P in reasonable apprehension: P must be AWARE that the contact is imminent. Fear is NOT required.
-(2) D must anticipate immediate battery (but don’t have to be certain it will happen): words alone lack immediacy (need some sort of overt conduct).
-But even when you have conduct, words can negate the effect of that conduct and destroy immediacy. E.g. words are conditional in nature (raise your hand as if to slap and say “If you weren’t my best friend, I’d slap you silly”); E.g. words are cast in the future tense (“raise your fist and say “I’m going to beat you up tomorrow” and walk away).
False imprisonment (intentional torts)
-(1) D must commit an act of restraint.
-Credible/plausible threats can constitute restraint (e.g. “If you leave this room in the next thirty minutes, I’m going to shoot you.” False imprisonment even if you leave the door to the room wide open).
-Failure to act can constitute restraint if legal duty to do so. E.g. flight attendants leave wheelchair-bound passenger on the plane.
-P must be aware of confinement or harmed. Oblivious or unconscious –> not false imprisonment unless there is an injury.
-(2) P must be confined in bounded area (doesn’t have to be precisely described). An area is NOT considered bounded if there’s a reasonable means of escape that the P can reasonably discover –> you’re not locked in if there’s a reasonable way out. Way out is unreasonable: dangerous; disgusting; humiliating; hidden.
In most jurisdictions, a D is privileged to confine or arrest a P when a felony has been committed and the D reasonably suspects that the P committed it.
IIED (intentional torts)
-(1) D engaged in extreme and outrageous conduct: exceeds all bounds of decency tolerated in a civilized society.
-Insults alone are not considered outrageous
-No conduct that is automatically and definitively outrageous in all cases. Rather, there are hallmarks of outrageousness: (i) conduct is repetitive in nature (e.g. debt collection by harassment; (ii) D is common carrier or innkeeper (if so, almost any deliberate effort to distress customers will be outrageous); (iii) P is member of fragile class (e.g. youth, elderly, pregnant).
-Targeting P’s known sensitivity, i.e. going after somebody’s psychological Achilles’ heel, is outrageous.
-(2) P suffered severe emotional distress.
-P not obligated to offer any particular type of evidence of distress. Up to the jury to decide whether it was sufficiently distressing.
Intentional torts to property (intentional torts)
(1) Trespass to land:
-Physical invasion: (i) D physically enters the property, even if unaware you crossed the boundary line, but deliberate act is required; (ii) By object - e.g. throwing something onto the land. But invasion must be tangible, so loud music from speakers or headlights doesn’t qualify.
-Invasion doesn’t have to be destructive. E.g. it’s a trespass if you skip a rock across neighbor’s pond without permission.
-A landowner may not use force to regain real property after being tortiously dispossessed.
-Of land: land includes air above and soil beneath of the P’s protected interest in land - to a reasonable distance.
(2) Trespass to chattels: intentional interference with P’s personal property through dispossession, use, or intermeddling (causing physical contact) that warrants D pay damages. (If through use or intermeddling, need to also prove actual harm to chattel, harm to P, or substantial loss of use of the chattel.)
-Personal property includes everything you own, including money, other than land.
-Small harm
-When another’s possession of the owner’s chattel began lawfully (e.g. lending someone chattel), the owner may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully (e.g., by theft).
-Only the INTENT TO DO THE ACT is necessary. I.e. D’s belief, because of a mistake of law or fact (even if reasonable), that she was privileged to act is no defense to a tresspass-to-chattels action.
(3) Conversion: intentional interference with P’s personal property so serious that warrants D pay property’s full value. Remedy for conversion is fair market value of the chattel at the time of conversion.
-Big harm
-The intent involved refers to the physical act that results in the conversion, not to the defendant’s desires regarding the ultimate disposition of the property.
Consent (affirmative defense to intentional tort)
-Defense to ALL intentional torts.
-Have to first ask if the D had legal capacity (because a person who lacks legal capacity cannot give consent).
Two types:
(1) Express - words giving D permission to act in a certain way.
-Exceptions for fraud/duress (which make consent void).
(2) Implied.
-Custom and usage –> if P voluntarily goes to a place or chooses to engage in conduct where certain personal violations are routine, law treats that P as having consented to those invasions. E.g. team sports like football.
-Body language consent –> D’s reasonable interpretation of P’s objective conduct and the surrounding circumstances.
Scope of consent: exceeding scope results in liability.
Under the emergency doctrine, a P’s consent is presumed when (1) the purpose is to prevent or reduce a risk, (2) the D reasonably believes that his conduct is necessary to prevent/reduce a risk that substantially outweighs the P’s interest in avoiding the conduct, (3) the D reasonably believes that immediate action is needed, and (4) he has reason to believe that the P would have actually consented.
Protective privileges (affirmative defense to intentional tort)
D must responding to perceived threat from P (not something/someone else).
-Protective privileges require proper, immediate timing as the triggering event unfolds.
-Protective privileges require reasonable accuracy (D must have reasonable belief that the threat is genuine).
-Shopkeeper’s privilege: allows a merchant or any other store owner to detain a customer if the owner has a reasonable belief that the customer has shoplifted property. Detention just needs to be done in a reasonable manner, for reasonable amount of time, and with reasonable suspicion that customer committed a theft (even if customer ends up being innocent).
-Protective privileges allow reasonable force (must be proportional response). Deadly force can be met with deadly force, but you can never use deadly force to protect property. No duty to retreat in majority of states.
(1) Self-defense
(2) Defense of others
(3) Defense of property
-D cannot assert the defense of property if she uses force against one with a privilege to enter the property. Whenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another’s land to recapture chattels, etc., that privilege supersedes the privilege of the land possessor to defend her property.
-A reasonable mistake is allowed as to the landowner’s right to use force in defense of property, if the mistake involves whether an intrusion has occurred or whether a request to desist is required.
Necessity defenses to property torts (affirmative defense to intentional tort)
Public necessity: D acts in emergency (almost always something unfolding over time, e.g. natural disasters) to protect community; absolute defense. E.g. break in to private property to get fire extinguishers and put out a life-threatening fire.
Private necessity: D acts in emergency to protect own interests; limited or qualified defense. E.g. hypo above but you’re just trying to save your car.
-D must pay compensatory damages to the P who owns the property, but not liable for nominal/punitive damages.
-Although private necessity is a defense to trespass to lands, it does not relieve the bus driver of liability for damage done to the property.
-D can remain on the property as long as emergency continues.
Negligence (elements)
-P must show duty of care owed by D; predominantly raises questions of law.
-Breach of duty; predominantly about facts.
-Causation (factual and proximate); about logic and policy.
-Damages; about facts and law.
(1) Duty: legally imposed obligation to take risk-reducing precautions for benefit of others.
-To whom do you owe a duty? Foreseeable victims (i.e. unforeseeable victims will always lose tort lawsuits, e.g. lady at railroad station in Palsgraf) within the “zone of danger.”
-Exception: rescuers are foreseeable (and are therefore potentially owed duty of care) even if they in fact begin situation at a considerable distance/out of zone of danger.
-How much risk reduction is required? You owe the same amount of care that would have been exercised by a hypothetical reasonably prudent person acting under similar circumstances. Reasonably prudent person = no allowance for D’s shortcomings (even if drunk, intellectually disabled, etc.), so we’re applying an objective standard across all Ds.
-Exception for D with superior skill or knowledge: the standard changes to hypothetical reasonably prudent person with same superior skill or knowledge.
-Exception for physical characteristics where relevant: WHERE RELEVANT, incorporate D’s physical characteristics. E.g. if D is blind, standard becomes reasonably prudent blind person.
Special negligence duties of care
(1) Special standard of care for children:
-Under age 5: no standard
-Age 5-18: held to standard of hypothetical child of similar age, experience, and intelligence acting under similar circumstances –> subjective + pro-D standard, unlike the default standard of care!
-Exception for child engaged in adult activity: default reasonably prudent person standard. Most common: operating a motorized vehicle.
-Parents have a duty to exercise reasonable care to prevent their minor child from causing foreseeable harm to others. Therefore, parents are liable for negligence if they breach this duty and cause the P harm.
(2) Special standard of care for professionals (i.e. in negligence claim asserted against pros):
-Malpractice claim (on the Bar, medical professionals).
-Same care as average member of profession providing similar professional services. So compare to real world, not imaginary/mythical “reasonable” person.
-Empirical standard.
-Conform to colleagues.
-Custom of profession sets standard; expert witness often used to educate jury on professional custom.
-National standard of care is used.
-E.g. informed-consent doctrine: a physician who fails to disclose the risks of a medical treatment or procedure to a patient is liable for negligence if (i) the failure to disclose caused the patient to consent and (ii) the undisclosed risk materialized and resulted in physical harm.
(3) Special standard of care for possessors of real estate/land (premises liability)
-Possessor not always owner (can be a renter of an apartment).
-Establishes rules for duty to protect from “dangerous conditions.” For activities conducted on land, use ordinary reasonably prudent standard of care.
Four standards of care (depend on status of entrant):
-(i) Unknown trespasser - no duty owed, so will always lose a tort case.
-(ii) Known/anticipated trespasser - someone you don’t know actually to be on your land but should reasonably expect to be there; almost always signified by something that tells you there is a pattern of trespassing in the past. Duty only if:
-Artificial condition - something constructed by humans (as opposed to naturally-occurring hazard, e.g. snow or ice).
-Highly dangerous
-Condition concealed from trespasser; so if open and obvious, no duty.
-Prior knowledge of condition by possessor.
-(iii) Licensee - enters land with permission but without financial benefit to possessor. E.g. a social guest. Duty if:
-Concealed from licensee
-Known in advance by possessor/D
Must protect licensees from all known traps (both natural and artificial).
-(iv) Invitee - enter land with permission for financial benefit of possessor; includes when open to public at large. E.g. customer of a business (even if you’re not there to actually buy anything). A person loses her status as an invitee if she exceeds the scope of the invitation, such as if she goes into a portion of the premises where her invitation cannot reasonably be said to extend. Duty if:
-Concealed from invitee
-Known by possessor OR could have discovered through reasonable inspection
Must protect invitees from all reasonably known traps (both natural and artificial).
Special kinds of entrants:
-Firefighters & police officers: owned no duty of care for risks inherent to their job (even if risks caused by another’s negligence). They can’t recover in negligence if their harm resulted from a special danger of their job.
-Trespassing children: reasonably prudent care under circumstances to protect from artificial hazards. Attractive nuisance doctrine: if there is something on your land (e.g. swing set) that draws children in, that in effect puts you on notice and you should child-proof your land. Under the doctrine, a child trespasser who is injured by a dangerous artificial condition need not have been attracted onto the property by the condition.
How to satisfy premises liability duty:
-Eliminate hazard condition (repair, replace, remove).
-Warn entrant about hazardous condition
(4) Statutory standards of care (negligence per se)
-P “borrows” criminal statute as alternative standard of care to reasonably prudent person standard.
-Violation of statute establishes duty & breach.
-Two steps: (i) legal - statute is legally appropriate
; (ii) factual - D violated statutory command.
-Criminal statute may replace duty of care if: (i) P proves she is a member of the class of persons the statute was trying to protect (some subset of the public); (ii) show that harm suffered is within risks statute is trying to prevent
-If statutory standard of care does not apply –> use reasonably prudent person standard of care.
-Exceptions (even where two-part test is met): (i) If compliance with statute would have been more dangerous than the violation; (ii) statutory compliance would have been impossible (e.g. driver who had a heart attack runs a red light).
(5) Affirmative duties to act: generally NO duty to act affirmatively, i.e. undertake course of conduct in the first place. If you choose to act, you must do as reasonably prudent person under circumstances.
-Relatedly, no duty to rescue.
-Exceptions: (i) relationship b/w parties (e.g. innkeeper/guest, common carrier/passenger, business owner/customer, family member/family member); (ii) D caused the peril in the first place.
-But in these exceptions, the duty owed is NOT duty to rescue, but duty to act reasonably under circumstances.
Good Samaritan Laws: insulate negligent rescuers from liability. Vary by state, so on exam unless stated otherwise, assume there is no such law.
(6) Negligent infliction of emotional distress:
-In physical injuries cases, P recover both economic and emotional damages. In pure emotional distress cases, no physical injury - have to show extra elements.
-(i) Near miss case: P almost injured D. D can recover for emotional distress by showing (in addition to negligence): P in zone of physical danger + P suffers physical symptoms from distress.
-(ii) Bystander case: D negligently kills or seriously injures 3rd party causing P emotional distress. P can recover by proving (in addition to negligence): P and 3rd party closely related (spouse, child, parent) + P present at the scene and observed event.
-(iii) Business relationship cases: P can recover if highly foreseeable that careless performance by D will produce emotional distress. E.g. patient/medical laboratory; customer/funeral parlor.
Breach of duty
Breach: concrete, specific behavior by D that falls short of relevant standard of care; can be affirmative act or omission.
Res ipsa loquitur: used by P w/o information about D’s breach. P must show:
-Accident is normally associated w/ negligence (“when a barrel falls out of a window, someone probably screwed up”).
-Accident would normally be due to negligence of someone in D’s position. I.e. got to show that you probably sued the right person.
Establishing res ipsa loquitur means no directed verdict for D b/c it amounts to a prima facie case for negligence. However, it gets the P as far as the jury and then the jury decides the case. In other words, establishing RIL does not equate to negligence as a matter of law.
Bailee’s duty of care
Bailment occurs when one party (the bailor) temporarily entrusts her property to another (the bailee) without transferring ownership of it. The bailee’s duty of care with respect to bailed property depends on who benefits from the bailment transaction:
-(1) if only the bailor benefits, the bailee has a lesser duty of care.
-(2) if only the bailee benefits, the bailee must exercise extraordinary care.
-(3) if both parties benefit, the bailee must exercise reasonable care.
Factual cause (causation)
P has to link breach and harm (elements 2 and 4), i.e. how breach led to injury.
But-for test (general rule): P must convince jury that but for the act/omission, injury would not have occurred. But there can be multiple but-for causes.
-D’s rebuttal to “but for” cause argument begins with “Even if…”
Special cases:
-Merged causes - 2 Ds acting independently each commit a breach combining into single indivisible harm. If 2 Ds + 2 breaches + merged causation –> use substantial factor test instead of “but for” test. Substantial factor test: D liable if breach contributed in significant/substantial way to ultimate injury. If breach would have been able to cause entire harm if it had been only breach, it’s a substantial factor.
-Merged cause scenario where both breaches found to be substantial factor = Ds held jointly and severally liable.
-Unascertainable cause - 2 acts, only one of which causes injury, but unknown which one. Shifts burden of proof to Ds and if neither can show it wasn’t them, they’re held jointly and severally liable.
Proximate cause (causation)
Foreseeability test: was outcome foreseeable risk associated with breach?
Guidelines:
-Passage of time
-Geographic distance
-Prior occurrence (has the outcome happened before?)
Common foreseeable intervening forces (D liable in all of these despite intervening causes):
-Medical malpractice
-Negligence of rescuers
-Protection or reaction forces
-Subsequent disease or accident
