Torts Flashcards
Elements of Intentional Torts
Act + intent + causation
Transferred Intent torts
Assault, battery, false imprisonment, trespass to land/chattels
Assault
Act + reasonable apprehension of immediate battery
Battery
Harmful conduct + contact with person
False Imprisonment
Act/omission + confinement of P in bound area
Intentional Infliction of Emotional Distress
Act (extreme/outrageous) + P suffers
Recklessness can satisfy intent
Actual damages are required
Intentional Infliction of Emotional Distress - Bystanders
Presence + bodily harm OR person was close relative and D knew that
Trespass to Land
Physical invasion of real property
Trespass to Chattels
Act + interference with P’s right of possession
Actual damages are required
Mistaken ownership is not a defense
Conversion
Act + serious interference with right of possession
Provides full market value/possession
Mistaken ownership is not a defense
Affirmative Defenses to Intentional Torts
Consent
Self Defense
Defense of Others
Defense of Property
Necessity Defenses
Consent
Express or Implied (custom/conduct)
Exceptions: mistake, fraud, duress
Self Defense
D believes they are being/about to be attacked, responds in heat of moment
No duty to retreat in house
Duty to retreat before using deadly force if safe
Reasonable mistake is allowed
Defense of Others
If D reasonably believes protected person could use force
Reasonable mistake is allowed
Defense of Property
Force may be used, but request to leave/stop must happen first if safe
Reasonable mistake is allowed re intrusion, but not others’ privileges (which supersceed right)
No deadly force allowed
Shopkeeper’s Privilege
Merchant can detain w/ reasonable belief
Reasonable time, manner, and suspicion
Necessity Defense
Only for property torts
Can interfere if necessary in emergency if threat is more serious than invasion
Public necessity (avert public disaster) Private necessity (prevent serious harm to people) > pay for damage caused
Negligence Elements
Duty + breach + actual/proximate cause + damages
Who is owed a duty of care?
All foreseeable plaintiffs (zone of danger)
Standard for Duty of Care
Reasonably prudent person under similar circumstances
Special Duty of Care - Children
Standard of like child (age, intelligence, experience) [unless engaged in adult activity]
Special Duty of Care - Professional
Standard of knowledge/skill of average member of profession
Special Duty of Care - Land Possessors - Known Trespassers
Known, man-made, concealed death traps on land
Special Duty of Care - Land Possessors - Licensees
Protect licensees from all known traps (concealed)
Special Duty of Care - Land Possessors - Invitees
Protect from concealed and known traps (or ones that could be discovered)
Special Duty of Care - Land Possessors - Children
Dangerous condition (known/should know), owner knows children may trespass, condition will injure child, and expense of remedy is slight compared to possible harm
Negligence Per Se
Borrowing a criminal statute to show duty and breach
Requires showing P is class of persons protected and the injury is the class of risk to be prevented + D violated statute
Exception if compliance would cause more harm
Affirmative Duty to Act
Reasonably prudent person standard
Special relationships (parent, shopkeeper)
Peril due to own conduct
Assumption of Duty by Acting
Guest in Automobile
Negligent Infliction of Emotional Distress
Duty breached if D creates foreseeable risk and P is in zone of danger and suffers physical symptoms from the distress
Negligent Infliction of Emotional Distress - Bystander
P and injured person related, P present, P observed
How to show breach?
Evidence of custom/usage used to show reasonable person standard
Res Ipsa Loquitur
Type of injury occurs with negligence by someone in D’s position
This makes a prima facie case (no directed verdicts)
Factual Causation
Injury would not have occurred but for act or omission
Factual Causation - Merged Causes
Substantial factor test (each breach could cause) > joint & severable liability
Proximate Causation
D liable if negligence caused foreseeable reaction or risk (time, distance, etc.)
Personal Injury Damages
All damages, economic damages, and noneconomic damages (maybe also emotional if physical injury)
Property Damages
Reasonable cost of repair or full market value
Punitive Damages
Only if D wanton, willful, reckless, or malicious
Defenses to Negligence
Comparative Negligence
Assumption of Risk
Comparative Negligence
P failed to exercise care for own safety
Jury will assign a percentage of fault (at discretion) and P’s recovery reduced
Strict Liability For:
Animals
Abnormally Dangerous Activities
Products Liability
Strict Liability - Animals
Liable if knowledge of animal’s dangerous propensities specific to this animal
Not owed to trespassers
Liable for reasonably foreseeable damages from your animals trespassing
Wild animals: strictly liable to licensees and invitees
Strict Liability - Abnormally Dangerous Activities
These are activities which cannot be made safe with ordinary care + activity is not common in community
Liability to foreseeable Ps (reasonable person would foresee)
Strict Liability - Products Liability
D is commercial supplier, product was defective when it left D’s control, product was actual/proximate cause of injury, and P suffered damages
Product moved through normal distribution > inferred defective manufacture (unless retailer discovered and didn’t warn buyer)
P has to be making a foreseeable use of product, but misuse is foreseeable
Strict Liability - Products Liability - Manufacturing Defect
Product is different from others and more dangerous
Strict Liability - Products Liability - Design Defect
All products of line have dangerous propensities
P must show safer, practical, and economically feasible al design
Strict Liability - Products Liability - Informational Defect
Manufacturer failed to give adequate info
Adequate warnings are prominent, comprehensible, and give info about mitigating any risks
Nuisance
Interference with P’s use/enjoyment of real estate
Private Nuisance
Substantial, unreasonable interference with use/enjoyment of another
Must be offensive, inconvenient, or annoying to average person in community
Public Nuisance
Unreasonably interferes with health/safety/property rights of community
Recovery available if private party suffered unique damage not suffered by public
Remedies for Nuisance
Injunctive relief (damages inadequate), self-help after notice + refusal
Vicarious Liability
Employer-employee: liable if within scope of relationship (respondeat superior)
Intentional torts only count if: furthering business, force authorized, friction generated
Independent Contractors: hiring party not liable if they don’t control manner/method BUT there are some duties which are nondelegable (businesses > safe premises)
Comparative Contribution
Contribution in proportion to relative faults of various Ds
Indemnification
Full reimbursement to out-of-pocket D
Defamation
Statement, identifying P, published, with falsity and fault, resulting in damage
Defamation - Fault
Public Official/Figure: Malice (knowledge of false or reckless disregard)
Private Persons if matter of public concern: Negligence; Only actual damages are recoverable, but with malice > punitive too
Defamation - Damages
Libel – permanent form, damages are presumed
Slander – spoken form, must prove economic damages unless slander per se (adverse impact on business/profession, claim of serious crime, sexual misconduct, loathsome disease)
Defamation - Defenses
Consent
Privilege
Defamation - Defenses - Absolute Privilege
Absolute – Can never be lost
Communications between spouses
Officers of government acting in official capacity
Defamation - Defenses - Qualified Privilege
Lost through abuse/malice
Applies when there is a public interest in encouraging candor
Applies to statement made in good faith and relevant in scope
Invasion of Right to Privacy
Appropriation of P’s picture or name for commercial purposes
Intrusion on P’s affairs or seclusion
Publication of facts placing the plaintiff in a false light (public interest > malice)
Public disclosure of private facts
