Torts Flashcards
elements for battery
intentional
harmful or offensive contact (objective standard; unless Δ knew Π particularly susceptible)
elements for assault
intentional
causing of
apprehension of imminent harmful contact
elements for IIED, and when can you have 3P liability
intentional
extreme and outrageous conduct
severe Emotional distress
can have 3P liability where
- Δ knows 3P is present + direct victim is a close family relative of 3P (bodily harm not required)
- 3P’s emotional distress is so bad that it results in bodily harm to 3P (heart attack, stroke, etc.)
False imprisonment
intentional confinement of a person in a space with no escape
P must have been aware or harmed
tresspass
intentional
physical invasion
of someone else’s real property
trespass to chattel
intentional
interference
of P’s use or possession
of chattel
conversion
trespass to chattel and
substantial interference
D pays full damages
Defenses to intentional torts
CND (clever ninja defense)
consent
defense of self; property; others
necessity (public v. private – must pay)
Steps to an ordinary negligence analysis
- Duty
- Breach (res ipsa)
- Causation (legal and proximate)
- damages
- Defenses
reasonable person standard of care for negligence
Δ owes a duty not to subject any foreseeable Π to unreasonable risk of injury. Who is foreseeable?
Under the Cardozo (majority) view, Δ has a duty of care to Πs in the foreseeable zone of danger (threat of physical
danger). Under the Andrews view, Δ has a duty of care to everyone (everyone is foreseeable).
strict liability for abnormally dangerous activity requires
the activity is uncommon in the area, creates a foreseeable high risk of harm even when reasonable care is exercised. And the danger outweighs the value of the activity to the community
Assumption of risk defense
P barred from recovery if he assumed the risk where he (1) knew of the risk) and (2) voluntarily consented despite the risk
attractive nuisance doctrine
a landowner must exercise reasonable care to prevent foreseeable injury to children if
(1) the owner knew or should have known that a child would trespass
(2) the condition poses an unreasonable risk of injury or harm
(3) the children are unlikely to discover or realize the danger due to their youth
(4) owner fails to use reasonable care to eliminate the danger
(5) benefit to owner is not outweighed by the risk
strict product liability requires
a commercial supplier has a strict duty to ensure products are free from defect.
a commercial supplier is one who places the product in the stream of commerce wihtout substantial alteration
commercial supplier includes retailers and manufacturers
design defect (what is the standard for whether there is a design defect 
the design is unreasonable and dangerous
consumer expectation test: a product’s performance must meet the minimum safety expectations of its ordinary user using it in a foreseeable manner
risk-utility test: product is defective if the risk of danger inherent in the design outweighs the benefits of the design and the danger could have been avoided by the adoption of a reasonable, cost effective alternate design
informational defect
when a manufacturer fails to give adequate warning as to a known (or should have known) danger in the product or in a particular use of the product that is not obvious
implied warranty of merchantability
a warranty of merchantability is implied in every sale of goods, ensuring that they are a fit for the ordinary purposes for which the goods are used
defamation elements and defenses
statements of opinion can be actionable is they are defamatory
elements:
(1) defamatory statement based on specific facts
(2) of or concerning P
(3) publication to third party
(4) damages (presumed if libel in writing)
if PUBLIC CONCERN must prove falsity
falsity = malice for public figures, or negligence for private figures
DEFENSES:
absolute privilege for remarks made during judicial proceedings or legislative debates
qualified privilege for reports or official proceedings, statements in there interest of the publisher, statements in the interest of the recipient, stamens in the common interest of the publisher and the recipient
elements for private and public nuisance
private:
substantial and objectively reasonable interference with P’s
use and enjoyment of their land
public:
unreasonable interference with a health, safety, moral right common to general public.
Private party has cause of action if he cna show special damages. Otherwise government brings suit.
when is an employer liable for independent contractor?
when (1) IC is engaged in inherently dangerous activity (excavating) or
(2) duty is non-delegable as a matter of public policy or safety
negligent hiring
- but for and proximate cause
- employer had (+constructive) knowledge of employee’s incompetence, negligence, or tendency to violence
respondeat superior
If an employee is negligent within scope of employment, under employer’s direction, or while serving employer’s interest, then employer is vicariously liable for employee’s tortious acts
EXCEPT for detours and unauthorized intentional torts
When is there a duty to control 3P’s (protect victim from actions of 3P)
Special relationship, when 3P is in custody (schools or prison), when there is foreseeable risk
Doctor - patient: if patient unable to understand nature of harm they pose to others because of a physical condition, doctor has duty
Psychiatrist - patient: if risk of serious harm or bodily injury is discovered
Dram shop rule: taverns have duty to refuse serving alcohol to those who are visibly drunk
