Torts Flashcards
To establish a prima facie case for any intentional tort, P must prove
1) act by D = volitional movement
2) intent by D
3) causation from result of D’s act
D’s intent
Acting on purpose to do the illegal thing, NOT cause the specific injury that results
Transferred intent
Applies when D intents to commit a tort against one person but instead:
1) commits a different against that person
2) commits the same tort as intended but against a different person OR
3) commits a different tort against a different person
Limitations on use of transferred intent
Can only be invoked if intended tort and resulting tort are one of:
1) assault
2) battery
3) false imprisonment
4) trespass to land
5) trespass to chattels
Causation
Result must have been legally cause by D’s act or something set in motion by D
- satisfied if D’s conduct was a substantial factor in bringing about the result
Battery
1) intentional
2) harmful or offensive contact
3) with the P’s person
Harmful or offensive contact
Harmful = actual injury, pain, disfigurement
Offensive = non-consensual touching of a reasonable person
Contact = direct (striking) or indirect (setting a trap)
P’s person
Includes anything connected to the P
Assault
1) intentional act by D
2) creating a reasonable apprehension in the P
3) of an immediate battery
Apprehension
knowledge or awareness
- must be reasonable = NOT exaggerated fear of contact
- doesn’t require fear
Knowledge of act and apparent ability
P must have been aware of the threat from D’s act
D’s apparent ability to commit a battery = reasonable apprehension
False imprisonment
1) intentional act or omission by D
2) that confines or restrains the P
3) in a bounded area
Sufficient acts of confinement or restraint
1) physical barriers
2) physical force directed against P, immediate family or personal property
3) direct threats of force
4) indirect or implied threats of force
5) failure to release the P when under a legal duty to do so
6) invalid use of legal authority (false arrest)
Insufficient acts of restraint
1) moral pressure
2) future threats
No reasonable means of escape
Way out cannot be:
- dangerous
- disgusting
- humiliating
- hidden
Intentional infliction of emotional distress
1) intentional act by D
2) amounting to extreme and outrageous conduct
3) causing P to suffer severe emotional distress
Extreme and outrageous conduct
Transcends all bounds of decency
Conduct not normally outrageous may become so if:
1) it is continuous in nature
2) it is committed by a certain type of D OR
3) it is directed toward a certain type of P
Includes targeting a known sensitivity
Requisite intent for IIED
Recklessness as to effect of D’s conduct will satisfy intent
Damges for IIED
Actual damages required = severe emotional distress
Causation in bystander cases
P suffers severe emotional distress when D’s conduct is directed at third person if they can prove IIED elements OR:
1) P was present when the injury occurred
2) distress resulted in bodily harm or P is closely related to third person AND
3) D knew these facts
Trespass to land
1) intentional
2) physical invasion
3) of the P’s real property
Physical invasion
1) by person
2) by object
NOT by an intangible matter (that is nuisance)
Real property and trespass claim
Land includes air above and soil beneath to a reasonable distance
Trespass claim belongs to person with the right to possess the property
Intent for trespass to land
D need only intend to enter that piece of land –> doesn’t need to know the land belonged to another person
Damages for trespass to land
NOT required = P can recover without showing actual injury to the land
Trespass to chattels
1) intentional act by D
2) that interferes with the P’s right of possession in personal property
Two types of interference for trespass to chattels
1) intermeddling = deliberately damaging (vandalism)
2) dispossession = depriving P of lawful right of possession (theft)
Intent for trespass to chattels
Intent to do act of interference is all that’s required
- mistaken belief that D owns chattel is NOT a defense
Damages for trespass to chattels
Actual damages required
Trespass to chattels vs conversion
Trespass = small interference or harm
Conversion = big interference or harm
Conversion
1) intentional act by D
2) that interferes with P’s right of possession in personal property
3) that is serious enough in nature or consequences to warrant D to pay property’s full value
Acts of conversion
- wrongful acquisition (theft)
- wrongful transfer
- wrongful detention
- substantially changing, severely damaging or misusing property
Remedy for conversion
P can recover FMV of property at time of conversion or replevin (restoring possession)
Defenses to intentional torts
1) consent
2) protective privileges
3) necessity
Consent to intentional tort
- Defense to all intentional torts
- must have legal capacity to give consent
Express consent
Express = actual words giving permission
- oral or written
- exceptions = mistake, fraud, duress
Implied consent
That which a reasonable person would infer from custom and usage OR the P’s conduct
- body language of P
- social norms like shaking hands
- romantic touching between partners
Exceeding scope of consent
Makes D liable
E.g, exceeding scope of medical consent for surgery = medical battery
Protective privileges
1) self-defense
2) defense of others
3) defense of property
Only apply for preventing commission of a tort, NOT torts already committed
D must have perceived of a threat coming from P
Self-defense
When a person reasonably believes they are being or are about to be attacked, they may use force that is reasonably necessary to protect against injury
Availability of Self-defense privilege
1) majority = no duty to retreat
- modern trend toward duty to retreat before using deadly force, unless in the home
2) not available to initial aggressor unless other party uses deadly force in response
3) may extend to third party injuries = may be liable to third party for deliberate injuries while trying to protect themselves
Mistake in self-defense
Reasonable mistake as to existence of danger is allowed
Amount of force allowed
Only amount of force that reasonably appears necessary to prevent harm
More force than necessary = defense lost
Defense of others
- May use force they reasonably believe that other person could have used to defend themselves
- reasonable mistake allowed
- amount of force other person could have used to protect themselves
Defense of property
- May use reasonable force to prevent commission of tort against real or personal property
- may use force in hot pursuit if thief is in act of fleeing
- NOT available against someone with a privilege (like necessity)
- reasonable force but never deadly force
Shopkeeper’s privilege
Privilege to detain a suspected shoplifter for investigation:
1) reasonable belief theft occurred
2) detention conducted in reasonable manner with nondeadly force
3) detention for reasonable period of time only for making an investigation
Necessity defenses to property torts
One may interfere with real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural force or threat of injury is substantially more serious than the invasion undertaken to avert it
Public necessity
D acted to avert an imminent public disaster
- acted to protect community
- absolute defense
- emergency = something unfolding over a period of time (hurricane floods, fire, etc.)
private necessity
D acts to prevent serious harm to a limited number of people or to protect D’s own interests
- limited or qualified defense
- D must pay compensatory damages for any injury
- no punitive damages for trespass to land
- D may remain as long as emergency continues
- normal privilege to defend property doesn’t apply (right of sanctuary)
Duty of care owed
Duty = reasonable effort to lower chances of hurting people with your everyday conduct
- legally imposed obligation to take risk reducing precautions for the benefit of others
Duty of care owed to…
Foreseeable victims = people who were foreseeably endangered by the D’s negligent conduct
- those in the foreseeable zone of danger
Zone of danger
How far it extends depends on the conduct in question
- NO DUTY to unforeseeable victims = those outside zone of danger
- unforeseeable victims will always lose negligence cases
Foreseeable plaintiffs
- rescuers
- intended beneficiaries of economic transactions
Firefighter’s rule
Firefighters and cops are barred from recovering for injuries caused by the inherent risks of their jobs
Basic standard of care
All persons owe duty to behave with same care as a reasonably prudent person
- objective standard, measured against average person
- mental deficienies and/or inexperience NOT considered
Exceptions to basic standard of care
1) superior skill or knowledge = D with knowledge or skill superior to that of average person is required to exercise that experience
2) physical characteristics are relevant = RPP is considered to have same characteristics as D if they are relevant to the claim
- e.g., reasonably prudent blind person
Standards of care for children
Under 5 = no standard of care
Age 5-18 = hypothetical child of similar age, experience, and intelligence acting under similar circumstances
- subjective standard = different standard for every different child
- pro-D standard
Exception for standard of care for children
Child engaged in adult activity = RPP standard
- most common = operating motorized vehicles
Professional standard of care
Required to possess the knowledge and skill of an average member of the profession or occupation in good standing
- national standard
- customs of the profession set the standards
- average ≠ reasonable
- NOT REASONABLE
- NOT hypothetical professional –> empirical standard
Duty to disclose risks of treatment
Duty to disclose risks to enable patient to give informed consent
- breached if undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk
Duty of care of possessors of land
Traditional rule = duty owed a P for dangerous conditions on the land depends on P’s status:
1) unknown trespasser
2) known trespasser
3) licensee or
4) invitee
Duty to unknown trespassers
No duty owed to an undiscovered trespasser
- by definition an unforeseeable victim
Duty to known trespassers
Duty to warn or make safe any conditions that are:
1) artificial
2) highly dangerous (involving risk of death or serious bodily harm)
3) concealed
4) known to the land possessor in advance
Duty = protect against known, man-made death traps on your land
Known = should reasonably expect or anticipate trespasser on land
Duty owed to licensees
Duty to warn of or makes safe hazardous conditions that are:
1) concealed
2) known to the land possessor in advance
exercise reasonable care in the conduct of active operations on property
- NO DUTY to inspect or repair
Duty = must protect from all known traps
Licensee = enters land with permission but without financial benefit to possessor
- social guests
Duty to invitees
Duty to warn or make safe conditions that are:
1) concealed from invitee
2) known by possessor OR could have been discovered through reasonable inspection
Duty = must protect from all reasonably known traps on the land
Invitee = enters land with permission for the financial benefit of possessor
- includes when open to public at large (business customers and church visitors)
Invitee loses invitee status if…
they exceed the scope of the invitation
How to satisfy the duty of care and avoid premises liability
1) eliminate hazardous condition
- repair
- replace
- remove
OR
2) warn entrant about condition
Attractive nuisance doctrine (trespassing children)
Duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property
Reasonableness for attractive nuisance duty of care
Depends on likelihood that a child will trespass
- includes whether children have been attracted to land in the past –> puts possessor on notice that children may trespass
To establish attractive nuisance, P must show:
1) dangerous condition that owner is or should be aware of
2) owner knows or should know that children might trespass
3) condition is likely to cause injury
4) expense of remedying situation is slight compared to magnitude of risk
Duty owed to users of recreational land
Landowner who permits use of land by general public without charging a fee has no duty UNLESS:
1) maliciously and willfully
2) failed to guard against or warn of dangerous condition or activity
Duty owed to those off premises
Generally not duty to protect someone OFF premises from natural conditions ON premises
BUT there IS a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land
Duty of lessor
General duty to maintain premises
- must warn of existing defects of which:
1) they are aware or have reason to know and
2) they know lessee is not likely to discover on reasonable inspection
Covenants to repair = liable for unreasonably dangerous conditions
Volunteer to repair = liable if negligently done
Statutory standards of care (negligence per se)
Clearly stated specific duty imposed by a statute providing for criminal penalties may replace CL duty of care if:
1) P is within the protected class (subset of population)
2) statute was designed to prevent the type of harm P suffered
- P “borrows” statute as alternative standard of care to RPP standard
Violation of statutory standard of care…
establishes elements of duty and breach
Establishing negligence per se requires
1) legal = statute is legally appropriate
2) factual = D violated statute
3) both satisfied = P has established negligence per se
Exceptions to using negligence per se standard of care
1) compliance with statute would have been more dangerous than deviating
- e.g., swerving across double yellow line to avoid hitting a child in the street
2) compliance would have been impossible under the circumstances
- e.g., driver has a heart attack and loses control of the car and runs a red light
Affirmative duty to act
Generally, no duty to act , UNLESS:
1) special relationship between parties
- includes common carriers, innkeepers and shopkeepers
2) D put P in harm’s way in the first place
- NOT a duty to rescue, but to act reasonably under the circumstances
3) if one has actual ability and authority to control a person’s actions and knows or should know the person will harm another, there is a duty to prevent such a harm
Good Samaritan statutes
Insulate negligent rescuers from liability
- vary in detail from state to state
- assume no such law unless questions explicitly says there is one
Common carriers and innkeepers standard of conduct
Held to very high degree of care
- liable for even slight negligence
- P MUST be a passenger or guest for high standard to apply
Automobile driver’s duty owed to guest
Guest is owed ordinary duty of care
A few guest statute states = liable to nonpaying passengers only for reckless tortious conduct
Negligent infliction of emotional distress in physical injury cases
If physical injury has been caused by commission of a tort, P can tack on damages for emotional distress as an element of the physical injury damages without having to prove elements of emotional distress torts
Near miss cases
Duty to avoid negligent infliction of emotional distress is breached when D creates a foreseeable risk of physical injury to P:
1) P was in zone of danger
2) P suffered physical symptoms from the distress
Zone of danger
P is sufficiently close D’s negligent acts such that they are subject to a high risk of physical impact
Bystander cases
Bystander is outside the zone of danger, but can recover for their own distress if:
1) P and person injured by D are closely related
2) P was present at scene of injury and personally observed the event in real time
Business relationship cases
P can recover if it is highly foreseeable that careless performance by D will produce emotional distress in P
1) patient/medical laboratory
2) customer/funeral parlor
3) customer/ dry cleaner does NOT qualify
Breach of duty
Concrete, specific behavior by D that falls short of relevant standard of care
- breach can be affirmative act (drunk driving) or omission (failing to check tire inflation)
Theories to prove breach of duty
1) custom or usage
2) violation of statute (negligence per se = est. breach and duty)
3) res ipsa loquitur
Custom or usage
When SOC is reasonable prudence, evidence of custom or usage of others can be used to establish what reasonable person would have done
Res ipsa loquitur
The very occurrence of an event may tend to establish a breach of duty
- used by P without details of D’s breach
- P was injured but doesn’t know what D did –> can’t point to breaching conduct
To establish res ipsa loquitur, P must show:
1) accident is the kind normally associated with negligence
2) negligence is probably attributable to D (this kind of accident usually happens because of negligence of someone in D’s position)
- evidence that D had exclusive control of injury causing object at time of the accident
Effect of res ipsa loquitur
1) P has made a prima facie case and no directed verdict may be given for D
2) case remains subject to jury’s ultimate decision = P may still lose!
Causation (negligence)
P must show that D’s conduct caused P’s injury
1) factual cause
2) proximate cause
3) unascertainable cause
Factual cause
Link between breach and harm = builds a bridge between element 2 (breach) and element 4 (damages)
Two tests:
1) but-for
2) substantial factor
But-for Test
P’s injury would not have occurred but for D’s act or omission
- applies where several acts (each insufficient to cause injury alone) combine to cause the injury
D’s rebuttal to but-for test
Showing that P would have still been injured EVEN IF act or omission did not occur
Substantial factor test
D is liable if his breach contributed in a significant or substantial way to the ultimate injury
- applies where several causes bring about an injury, and any one alone would be sufficient to cause the injury
- multiple sufficient causes
- two Ds acting independently of each other combining into a single indivisible harm = merged causes
Unascertainable causes approach
Two acts, only one of which causes injury, but it is unknown which one
- burden shifts to Ds, each must show that their negligence was not the actual cause of the injury
- if neither D can prove it was not them, both are held jointly and severally liable
General rule for factual causation
But-for test
Unascertainable causes rule for factual causation
Shifts burden of proof to D
- only one party caused the harm
Merged causes rule for factual causation
Substantial factor test
- both parties caused the harm
Proximate causation
Limitation of liability that deals with liability or non-liability for unforeseeable or unusual consequences of one’s acts
- Even though D’s conduct actually caused the P’s injury, it may not be the proximate cause
Foreseeability test for proximate cause
D generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts
Rough foreseeability guidelines
- passage of time
- geographic distance
- prior occurrence
Common foreseeable intervening forces
D is liable if negligence caused a foreseeable reaction from an intervening force:
1) medical malpractice
2) negligence of rescuers
3) protection or reaction forces of D’s conduct, including efforts to protect person or property
4) disease or accident substantially caused by original injury
Intervening forces that are not the natural response or reaction to situation created by D may be foreseeable if…
D’s negligence increased risk of harm from these forces:
1) negligent acts of third persons
2) crimes and intentional torts of third persons
3) acts of God
Superseding forces
Intervening forces that produce unforeseeable results are generally deemed unforeseeable and break the causal connection between D’s initial negligent act and P’s ultimate injury
- D is no longer liable
Direct cause case
Facts present an uninterrupted chain of events from the time of the D’s negligent act to the time of P’s injury
- if harmful result was at all foreseeable from D’s conduct, the unusual timing of the cause or the unusual manner in which injury occurred is not relevant to D’s liability
Indirect cause case
Another force comes into play AFTER the D’s negligent act and combines with it to cause the injury
Damages (negligence)
Damages are not presumed because they are an essential element
Eggshell skull doctrine
D takes P as they find P = once negligence is established, D is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable
- applies to all tort claims
Compensation for personal injury
- All damages, past, present and prospective
- economic and non economic
- resulting emotional distress
Punitive damages
Not available in negligence cases, unless D’s conduct is:
- wanton and willful
- reckless or
- malicious
Nonrecoverable items
1) interest from date of damage in a personal injury action (pre-judgment interest)
2) attorneys’ fees
Duty to mitigate
P has a duty to take reasonable steps to mitigate damages
Collateral source rule
Damages are not reduced just because P received benefits from other sources, like health insurance
Contributory negligence
Negligence on the part of P that contributes to their injuries
- SOC = same as ordinary negligence
- P’s violation of a statute may be used to establish
Contributory negligence as a defense
Defense to negligence per se by D UNLESS the statute was designed to protect this lack of Ps from incapacity and lack of judgment
Effect of contributory negligence
At Cl = completely barred P’s right to recovery
Modern = comparative negligence system
Last clear chance rule
Person with the last clear chance to avoid an accident who fails to do so is liable for negligence
- Exception to contributory negligence
- Permits a P to recover despite their contributory negligence
- essentially P’s rebuttal to defense of contributory negligence
Imputed contributory negligence
Contributory negligence of a third party will be imputed to P (to bar P’s claim) only when relationship between third party and P is such that court could find P vicariously liable
Assumption of risk
P may be denied recover if they assumed the risk of any damage caused by D’s act if P:
1) knew of the risk and
2) voluntarily proceeded in the fact of the risk
Implied assumption of risk
Risk is one that an average person would clearly appreciate
- NOT assumed if there was no available alternative to proceeding in the face of the risk
- common carriers and public utilities cannot limit their liability by disclaimer
Express assumption of risk
Assumed by express agreement
Comparative negligence
D shows that P failed to exercise proper care for their own safety
- NOT a complete bar to recovery
- trier of fact weighs P’s negligence and reduces damages D owes accordingly
1) partial comparative negligence
2) pure comparative negligence
Partial comparative negligence
P’s recover is barred if their negligence was more serious than the D’s negligence
- if more than one D = P’s negligence compared to TOTAL negligence of Ds
Pure comparative negligence
Allows recovery no matter how great P’s negligence was
- assume pure comparative negligence on exam unless question states otherwise
Strict liability
Liability without fault
Liability for domesticated animals
No strict liability unless
- knowledge of a particular animal’s dangerous propensities that are not common to the species
Liability for trespassing animals
Owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals
Liability for wild animals
Owner is strictly liable to licensees and invitees for injuries caused by wild animals
- includes liability for harm that results from attempting to flee what is perceived to be a dangerous animal
- NOT strictly liable to trespassers
- P must prove owner’s negligence
Liability for abnormally dangerous activities
D is strictly liable to foreseeable Ps as a result of an abnormally dangerous activity:
1) creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors
2) not a matter of common usage in the community
Common examples of abnormally dangerous activities
- explosives or blasting
- dangerous chemical/biological materials
- nuclear energy/high-dose radiation
Injury caused by something other than the dangerous aspect of the activity
Strict liability does NOT apply
- use negligence instead
Products liability
Liability of a supplier of a defective product to someone injury by the product
Theories of products liability
1) intent
2) negligence
3) implied warranties of merchantability and fitness for a particular purpose
4) representation theories (express warranty and misrepresentation)
5) strict liability
Elements for strict products liability
1) D is a merchant
2) product was defective
3) product was not substantially altered since leaving D’s control
4) P was making a foreseeable use of product at time of injury
P can sue…
any commercial supplier in the chain of distribution, regardless of the absence of privity
Types of product defects
1) manufacturing = product failed to perform as safely as ordinary consumer would expect
2) design = products have dangerous propensities and D could have made product safer
3) information = failure to give adequate instructions or warnings as to risk not apparent to users
To prove design defect, P must show
An alternative design:
1) would have been safer
2) was practical
3) was economically feasible
Products that move through normal channels of distribution
are inferred to not be altered and that defect existed when product left D’s control
Products liability based on negligence
Usual negligence SOC
Negligence of intermediaries in products liability
Difficult to prove –> duty of care of intermediaries satisfied through a cursory inspection of the product
Intervening negligence of intermediary does NOT supersede original manufacturer’s negligence
Implied warranty of merchantability
Merchantability = whether goods are of average acceptable quality and are generally fit for ordinary purposes for which they are used
- includes goods that are likely to injure users even when handled properly
Implied warranty of fitness
Seller knows or has reason to know the particular purpose for which the goods are required and buyer is relying on seller’s skills and judgment in selecting goods
Representation theories
D may be liable when a product does not live up to some affirmative representation:
1) express warranty
2) misrepesentation
Express warranty
Affirmation of fact or promise concerning goods that becomes part of the basis of the bargain
Misrepresentation of fact
Seller liable for misrepresentations of facts concerning a product where:
1) statement was of a material fact concerning quality or uses of goods
- mere puffery insufficient
2) seller intended to induce reliance by buyer in a particular transaction
Affirmative defenses
Contributory negligence states = not a defense if P has failed to realize the danger or guard against it
Comparative negligence states = apply comparative rules to strict liability
Assumption of risk = good defense
Traditional rule = knowingly encountering dangerous situation bars recovery
Nuisance
Interference with the use or enjoyment of real estate
1) private
2) public
Private nuisance
Substantial, unreasonable interference with another private person’s use or enjoyment of property actually possessed
Substantial interference for private nuisance
Offensive, inconvenient, or annoying to the average person in the community
- NOT substantial if it is the result of P’s hypersensitivity or specialized use of property
Unreasonable interference
Severity of inflicted injury must outweigh utility of D’s conduct
Considerations:
- every person is entitled to use their own land in a reasonable way
- neighborhood
- land values
- existence of alternative courses of conduct open to D
Intent for nuisance
Awareness that interference is occurring, even if it’s not on purpose to annoy
Types of nuisance cases
1) inconsistent land use
2) spite
3) gross inconsideration
Public nuisance
Act that unreasonably interferes with health, safety, or property rights of the community
Recovery for public nuisance allowed only if…
private party suffered unique damages not suffered by public at large
Remedies for nuisance
1) damages
2) injunctive relief if damages are unavailable or inadequate
3) abatement by self-help = available after notice to D and their refusal to act
Defenses to nuisance
1) legislative authority for nuisance activity
- not absolute, but persuasive
2) conduct of others
3) contributory negligence = not a defense unless P uses negligence theory
4) coming to the nuisance = does not bar claim unless P came for sole purpose of suing
Joint and several liability
If more than one D is responsible for an indivisible injury, P recover full damages from any D that P chooses
- if injury is divisible, D is liable only for identifiable portion
Contribution
D seeks compensation from co defendants on percentage of fault
- apportions responsibility among those at fault
- not allowed among intentional tortfeasors
Comparative contribution
Contribution is imposed in proportion to relative fault of Ds
Indemnification
shifts entire loss between or among tortfeasors:
1) vicarious liability
2) strict products liability for non-manufacturer
Elements of defamation
1) defamatory statement that specifically identifies P
2) published to a third party
3) falsity of defamatory language
4) fault on part of D
5) damage to P’s reputation
Level of fault required for public official or figure
Actual malice:
1) knowledge that statement was false OR
2) reckless disregard as to whether it was false
Level of fault required for private persons if matter of public concern
P must only prove negligence
- only actual injury damages are recoverable
