Torts Flashcards
Standard of care
reasonably prudent person under the same or similar circumstances
For children - what a child of similar age, intelligence, and experience would do in the same or similar circumstances
Respondeat Superior
Under the doctrine of respondeat superior, employers are vicariously liable for the torts committed by their employees within the scope of the employees’ employment
Independent Contractors
Generally, individuals who hire independent contractors are not vicariously liable for the torts for the contractors.
In general, courts look at a variety of factors to determine if someone is an independent contractor, including the (1) extent of and right to control the work, (2) the length of the working relationship, (3) the source of any equipment, and (4) the frequency of payment.
Nondelegable duty - vicarious liability
in general, employers are liable for the acts of an independent contractor when a non-delegable duty applies. In a minority of jurisdictions, the duty to comply with a statute is a non-delegable duty
Private nuisance
Substantial or unreasonable interference with another’s land
substantial = offensive, inconvenient, or annoying to a normal, reasonable person
unreasonable = renders land unavailable for ordinary use or enjoyment AND is either (1) a per se nuisance (statutory violation), (2) caused by actor’s failure to exercise reasonable care with respect to risk of interference, (3) does not comport with local expectations or customs, (4) causes physical damage, or (5) is almost entirely motivated by malice.
Potential defenses (that do not usually work) - coming to the nuisance (the fact a person moved next to a nuisance about which they already knew may be considered by the jury in determining if the plaintiff can recover for the nuisance) or regulatory compliance
Trespass
A defendant’s intentional act causes a physical invasion of another’s land
Damages = actual + nominal
Remember defenses of necessity (still owe actual damages if private necessity)
Public nuisance
Act that unreasonably interferes with the health, safety, or property rights of the community
Recovery for private party only available if the private party’s harm is distinct from that of the rest of the community
IIED
Defendant intentionally or recklessly engages in extreme or outrageous conduct that causes plaintiff severe emotional distress. Extreme or outrageous conduct = conduct that exceeds the bounds of human decency so as to be intolerable in civilized society.
Threshold for what constitutes extreme or outrageous conduct is lowered when: (1) defendant is in a position of authority over plaintiff, or (2) defendant knows plaintiff is in a group with heightened sensitivity (young children, pregnant women, or elderly persons).
Transferred intent applies when bystander is an immediate family member and defendant knows that family member is present to perceive of defendant’s extreme or outrageous conduct
For public figures, when IIED is caused by publication of a false statement, need to prove actual malice
False imprisonment
Defendant intends to confine plaintiff, defendant’s actions directly or indirectly cause such confinement, and plaintiff is conscious of such confinement or harmed by it.
Trespass to chattels vs conversion
Factors courts consider in determining whether a use/dispossession is trespass to chattels or conversion = (1) extent/duration of use or dispossession, (2) extent of damage, (3) defendant’s good-faith, and (4) defendant’s intent.
Traditional landowner duties
No duty to undiscovered trespassers
Duty to warn of concealed, dangerous, artificial conditions - to known or discovered or anticipated trespassers
Duty to correct and warn of concealed dangers (but no need to inspect for them) + duty to exercise reasonable care in conducting activities on land - licensee
Duty to inspect property and protect invitee from unreasonably dangerous conditions + duty to exercise reasonable care - invitees (note this duty is non-delegable)
Modern approach
Duty to exercise reasonable care for all entrants (may take into consideration that someone is a trespasser)
But no duty to flagrant trespassers
Attractive Nuisance doctrine
Landowner is liable for any attractive nuisance on his or her property, defined as (1) an artificial condition in an area where children are likely to trespass, (2) that poses an unreasonably high risk of death or serious bodily harm to children, (3) wherein children are too young to appreciate the harm, (4) and for which the utility of the artificial condition is slight compared to harm, and (5) the landowner fails to exercise reasonable care to prevent children from harm.
Standard of care for professionals
The same skill, knowledge, and care as another professional (of the same occupation) in the community (for doctors, not based on community standard but rather national standard).
Apparent agency (independent contractors)
An independent contractor will be treated as an employee if the injured person accepted the IC’s services under the reasonable belief that IC was acting as an agent of another
Abnormally dangerous activities
An individual may be held strictly liable for personal injury or property damage resulting from an abnormally dangerous activity. An abnormally dangerous activity is one that (1) poses a foreseeable and highly significant risk of harm even when reasonable care is exercised, and (2) is not commonly engaged in. Other factors considered by courts are the gravity of harm caused by the activity, and the utility of the activity in the community.
Scope of liability only extends to those harms which arise from the risks which make the activity abnormally dangerous in the first place.
Cannot recover based purely on economic harm.
Assess actual cause and proximate cause
Wild Animals + Abnormally dangerous animals - strict liability
Wild animals = animals that as a species are not customarily domesticated
Owner of wild animal is strictly liable for any harm that arises out of a dangerous propensity that is characteristic of that animal that the owner knows of or has reason to know
Owner of wild animal also strictly liable for injuries suffered as a result of another’s fearful reaction to the sight of an unrestrained wild animal
Owner of an abnormally dangerous animal is strictly liable for any injuries caused as a result of known dangerous propensities of that animal.
Always mention dog-bite statutes (wherein owner is strictly liable for injuries caused by dog or other domesticated animals)
Trespassing Animals
Owner is strictly liable for reasonably foreseeable damage caused by trespassing animals onto other’s land.
Owner is only negligent for household pets trespassing onto other’s land, or other owned animals wandering onto public roads.
Products liability
A manufacturer or commercial retailer is strictly liable for product defects (design defects, manufacturing defects, and failure to warn) if (1) the defect existed when the product left the manufacturer/retailer’s control (2) the product causes harm to a buyer when the buyer uses the product in a foreseeable way.
Always assess actual and proximate cause for strict liability
Analysis:
Absolute duty - manufacturers, distributors, and commercial retail sellers are under an absolute duty to provide a safe product (as opposed to casual sellers)
Defective Product
Actual cause
Proximate cause
Harm
Defenses
Design defect
Risk-utility test - there is no other reasonable alternative design (that is not cost prohibitive) that would have a more favorable risk/benefit ratio.
Consumer expectation test - design defect exists if product is less safe than an ordinary consumer would expect.
Defamation
defendant makes (1) a defamatory statement (2) of or concerning plaintiff, (3) that is published to a 3rd party who understood its defamatory nature, resulting in (4) reputational harm to the plaintiff
If P is (1) a public figure or (2) a private figure but the statement is one of public concern, P must prove falsity as part of a prima facie case of defamation.
Public figure = someone with influence in society
Public official = someone in a position of control over a government office
In cases involving public figure/public official - D only liable if D acted with actual malice (knowing or reckless disregard for the truth)
In cases involving statements of public concern - P must prove that D acted with negligence with respect to the truth.
In cases involving a private individual and statements of private concern, most states require negligence but it does not appear to be a constitutional requirement.
Wild animal
animal that is not by custom devoted to the service of mankind in the place where it is kept
Libel
Written defamation. P can recover actual and nominal damages
Slander
P can only recover special damages for slander per se - that is where the slander puts P’s character into question by (1) accusing P of severe sexual misconduct, (2) accusing P of carrying a loathsome disease, (3) placing P’s fitness for a profession in question, or (4) accusing P of a serious crime
Defamation defenses
Absolute privilege - judicial proceedings, legislative proceedings, between spouses, and in required publications by radio/TV of other’s defamatory statements
Conditional privilege -
in the interest of the defendant (D defends his or her own reputation), in the interest of the recipient of the statement, and in the public interst
False Light
Defendant makes a (1) public statement about P that (2) places P in a false light which (3) would be highly offensive to a reasonable person.
Intrusion upon seclusion
Defendant intentionally invades upon P’s privacy in a manner that would offensive to a reasonable person
Appropriation of the right to publicity
D misappropriates P’s likeness without P’s consent for D’s own gain
Assault
A defendant is liable for assault if he intentionally causes the plaintiff to anticipate an imminent, and harmful or offensive, contact with the plaintiff’s person. The defendant’s affirmative conduct must cause the plaintiff to anticipate such contact with the plaintiff’s person.
Threats of future harm and threats from a defendant who is physically far from the plaintiff are usually insufficient, but may satisfy the imminence requirement depending on the circumstances of the particular case.
Always analyze D’s intent, D’s conduct, and imminence!
Trespass to Chattels
Trespass to chattel requires that the defendant intentionally interfere with the plaintiff’s right of possession by either dispossessing the plaintiff of, or intermeddling with, the plaintiff’s chattel.
The defendant must only intend to commit the act that interferes; intent to cause damage is not necessary.
Insanity defense - intentional torts
Mental impairment is generally no defense to an intentional tort. So long as the defendant was able to form the requisite intent to do the act, he can be liable.
Battery
Battery occurs when (1) the defendant intends to cause a contact with the plaintiff’s person, (2) the defendant’s affirmative conduct causes such a contact, and (3) that contact causes bodily harm or is offensive to the plaintiff
Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery. Additionally, the harmful or offensive contact need not be with the defendant himself and can be indirect
Also assess causation (but not actual/proximate cause, just whether the harm would be in the scope of liability)
Defense of others
One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense, i.e., that the person was in danger of the imminent use of force.
The amount of force used in defense must be proportionate to the anticipated harm
The defendant is not liable for acting on a mistaken belief that the third party is in danger as long as his belief is reasonable
Transferred intent
When a D intends to harm person 1, but instead harms person 2, person 2 can bring a battery claim against D because the intent to harm person 1 transfers to person 2. BUT, note, person 1 cannot bring a battery claim. Instead, person 1 can bring an assault claim.
Manufacturing defect
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications.
Failure to warn
A failure-to-warn defect exists if there were foreseeable risks of harm—not obvious to an ordinary user of the product—that could have been reduced or avoided by providing reasonable instructions or warnings.
Negligence per se
Occurs as a result of breach of statutorily-imposed duty. Elements: (1) statute enacted to protect a class of persons from a certain type of harm, (2) D is in violation of statute, (3) D’s violation harms a person in the protected class, (3) the harm is the type of harm the statute is meant to prevent
Still need to apply causation
Strict liability -
Abnormally dangerous activities, abnormally dangerous animals, wild animals with dangerous propensities, products
Need to show causation (actual and proximate cause)
Products liabilities
Analyze under strict liability, negligence, and express or implied warranties
Intentional Misrepresentation
Basically same as in contracts
D knowingly or recklessly misrepresents a material fact with the intent to induce P’s reliance and the P justifiably relied on that misrepresentation.
P’s harm must be pecuniary loss to recover!!
But-for causation
But-for causation test may not work when (1) there are multiple tortfeasors, and each tortfeasor’s tortious conduct could independently produce the harm, OR (2) there are multiple tortfeasors but the P does not know tortfeasor’s conduct caused the harm.
For (1), apply substantial factor test. For (2), apply alternative causation
Substantial factor is used when there are multiple simultaneous causes of harm. Alternative liability is used when the harm was caused by only one person’s tortious conduct, but it is unclear which person’s tortious conduct.
