Torts Flashcards
mental state for intentional torts
purposeful, or knows consequence is substantially certain
reckless for IIED
single v dual intent for battery
single: D intends to bring the contact only
double: D intends to bring contact and intends it to b harmful or offensive
offensive standard for battery
objective reasonable person
subjective: D knows it will be highly offensive
elements of battery
- D intends to cause contact with P’s person
- D’s conduct causes contact
- Harmful or offensive touching occurs
elements of assault
D’s intends to cause P to anticipate
imminent
harmful
offensive contact
IIED
by extreme and outrageous conduct, intentionally or recklessly causes P to suffer severe emotional distress
intent can transfer between people but not between intentional torts
what kind of conduct for IIED
extreme and outrageous - beyond human decency
special IIED rule for celebs
public figures must show falsity and actual malice
private P can’t recover if issue was of public concern
who is owed a duty
- all foreseeable plaintiffs
- majority Cardozo: plaintiffs within zone of foreseeable harm
- minority: anyone who is harmed
modern rule for possessors of land’s duty
must exercise reasonable care under the circumstances to all land entrants except trespassers
traditional approach for land possessor standard of care
trespasser: refrain from willful wanton reckless intentional misconduct
invitee: inspect and discover unreasonably dangerous conditions, warn
licensee: warn of known hidden dangers and use reasonable care
elements of attractive nuisance
- artificial condition in place owner knows kids are likely to trespass
- unreasonable risk of serious bodily injury
- kids can’t appreciate danger due to youth
- burden of eliminating danger is slight compared with risk
- land possessor fails to exercise reasonable care to protect kids
modern factors for determining breach (cost benefit)
- forseeability of harm
- severity of harm
- burden of D to prevent harm
res ipsa. plaintiff must prove that
- type of accident wouldn’t occur without negligence
- injury was caused by something in exclusive control of D
- injury was plaintiff’s fault
what does negligence per se do
changes the duty for the negligence analysis
plaintiff must still be in class of persons
plaintiff must suffer type of harm
violation must be proximate cause
actual cause
plaintiff must show that but for D’s actions, wouldn’t have happened
substantial factor rule for ACTUAL
when multiple causes of harm and each alone woulda done it
conduct of each D is actual cause if it was a substantial cause
alternative causation for ACTUAL
when p’s harm is caused by multiple tortfeasors and each was individually bad
burden of proof shifts to defendants to prove each was not the cause in fact
proximate cause
plaintiff must show injury was FORSEEABLE result of D’s conduct
intervening cause for PROXIMATE
outside force that happens after
if foreseeable – will not cut of D’s liability
if not foreseeable – will cut off D’s liability
types of negligent infliction of emotional distress
zone of danger
bystander
zone of danger for NIED
- plaintiff was within zone of danger of physical impact
- physical manifestation of emotional distress
bystander for NIED
outside zone of danger but
- is closely related to person harmed
- was at scene
- personally observed
- physical manifestation of emotional distress
Defenses to negligence
- contributory negligence
- comparative fault
- assumption of the risk
contributory negligence (old rule)
if p contributed – NO DICE
comparative fault (modern)
Pure comparative: P’s recovery reduced by % he was at fault
Modified (majority): P’s recovery is reduced by % he was at fault. If P is MORE at fault than D, NO DICE
what is an abnormally dangerous activity
high risk of harm, not commonly found in community, has risk that can’t be eliminated with due care
explosives, fumigation, hazardous waste, chemical storage
how does strict liability change analysis
replaces the duty/breach element
still must show all others
who is liable for strict products liability
defendant in business of selling commercial product
types of product defect
- manufacturing defect
- design defect
- warning defect
manufacturing defect
deviation from what manufacturer intended that causes harm to plaintiff
test: whether product conforms to D’s own specs
design defect
consumer expectation test: P must prove dangerous beyond expectation of normal customer
risk utility test: P must prove a reasonable alternative design that is economically feasible was available and failure to use that design rendered product unreasonably dangersou
failure to warn
foreseeable risk of harm, not obvious to ordinary user, warning would have reduced or avoided it
actual and proximate cause for products liability
actual: product was defective when left D’s control and was but for cause
proximate: product was used in foreseeable way, misuse ok if forseeable
negligent products liability
same as a negligence analysis, always do after talking about SPL
types of warranties
express
implied warranty of merchantability
implied warranty of fitness for particular purpose
element of defamation
- language is about the P
- published to 3rd party who understands defamatory nature and
- damages P’s reputation
damages for damage to P’s reputation
libel (written) - general damages presumed
slander (oral) - damages not presumed
slander per se - damages presumed when involved professional, disease, moral, unchaste
constitutional defamation elements
- plaintiff is public figure: must show false and malice
- plaintiff is private but matter is public: must show negligence or malice
malice = knew it was false or acted with reckless disregard to truth
damages for public figures defamation or private with public matter
public - must show actual damage
private - can do punitive
defamation defenses
- truth
- consent
- absolute privilege
- qualified privilege
invasion of privacy torts
- misappropriation
- intrusion upon seclusion
- false light
- public disclosure of private facts
misappropriation
unauthorized use of NLI for D’s own advantage
intrusion upon seclusion
D’s acts of intrusion into P’s private affairs are objectionable to a reasonable person
false light
P must show D published facts about P or attributed views to him that placed him in false light and
are highly offensive to reasonable person
public disclosure of private facts
actionable if publication would be highly offensive to reasonable person and is not of legit concern to public
false imprisonment
1) Intent
2) Confinement
3) Without lawful privilege
4) Against consent
5) Within a limited area
6) Any appreciable amount of time, however short
plaintiff must be aware or suffer actual harm
trespass to chattels
interference with plaintiff’s possession of personal property
must intend to perform act that interferes, causation, damages
conversion
requires SERIOUS interference with plaintiff’s possession of her property
no transferred intent
trespass to land
physical invasion of another’s land and intent to enter land
private necessity as defense for trespass to land
not liable for trespass but yes for actual damages
public necessity as defense for trespass to land
not liable if actions were reasonable, or reasonable belief
private nuisance
substantial (offensive to reasonable person)
and unreasonable (balance interests)
interference with another’s use and enjoyment of his land
public nuisance
unreasonable interference with right common to general public
can only bring as private citizen if you are uniquely hurt
defenses to nuisance
regulatory compliance is partial defense
coming to the nuisance
abatement (eliminating the nuisance)
private nuisance: reasonable force ok but must give notice and D must refuse to act first
public: absent unique injury, can only be abated by public authority
liability for employee torts
liable for torts committed within scope
can include intentional if within scope
may be liable for non delegable duties or inherently dangerous
test for independent contractor or employee
the more control the employer has, the more likely it’s an employee
considering if conduct meets reasonable care
(i) the foreseeable likelihood that the person’s conduct will result in harm,
(ii) the foreseeable severity of any harm that may result, and
(iii) the burden of precautions to eliminate or reduce the risk of harm.
