Torts Flashcards
Battery
To establish battery, plaintiff must establish that:
D intended to cause contact with P’s person,
his **affirmative conduct ** causes such contact, and
the condact causes bodily harm or is offensive to P.
Offensive conduct
A reasonable person would be offended or D knows that the contact would by highly offensive to the specific plaintiff
Assault
To establish assault, a plaintiff needs to establish that the defendant intended to cause P to anticipate imminent and harmful contact, and D’s affirmative conduct causes P to anticipate such contact.
The plaintiff must be aware
Intentional Infliction of Emotional Distress
To prove IEED, the P needs to show that D acted with extreme or outrageous conduct, intentionally or recklessly, and caused P severe emotional distress.
Extreme and outrageous conduct
conduct that is beyond human decency, truly outrageous
False Imprisonment
to establish false imprisonment, the plaintiff needs to show that D intended to confine P within a limited area, D’s conduct causes P’s confinement or fails to relase P, and P is conscious of the confinement.
Consent
Full defense
Actual, Apparent,Presumed, Emergency
Self Defense
must reasonably believe the force is necessary and proportionate to force P is inflicting
No duty to retreat, but if P withdraws, D must stop
Initial agressors not generally entitled to claim self-defense unless P escalates from nondeadly to deadly
Bystanders: not liable for injuries to bystanders, can use force against bystander as long as P is using greater force and it is immediatley necessary
Defense of Third persons
reasonable belief that defended party would be entitled to use force themselves
immediatley necessary
Defense of property
D is privileged to prevent P’s imminent intrusion if D asked P to stop and means are reasonably proportionate
No deadly force allowed
no force allowed to reclaim property, must use legal action, **fresh pursuit **exception for personal property
Discipline of minor child
parents can use reasonable force and confinement, so can educators
Protect another from self harm
can use force if:
D reasonbly believes it necessary to prevent death/serious bodily harm and
that person does not understand the nature/consequences of their actions
Citizens arrest
felony: okay if crime was actually committed and reasonable to suspect the person
misdemeanor: only if committed in presence of arresting party
Assisting police: okay if citizen reasonably believes the police need help
Against Intervenor: okay to use force against someone intervening/aiding an arrestee to escape
Force by law enforcement
privileged to use force to arrest, investigate/prevent crime, enforce the law as long as they are on duty
Use of force in any arrest
only can use force if reasonably necessary and proportionate, for a legitimate purpose in the context of arrest, and the intent to arrest is communicated (unless useless)
Merchant’s privelege
Seller of goods privileged to use force for investigating potential theft, recapturing personal property, or faciliatating arrest if:
Merchant** reasonably beleives** the other has stolen goods and the use of force is on or immediately near the merchant’s premises, reasonable, and of reasonable duration.
Trespass to chattels
Tresspass to chattels is the intentional interference with the tangible personal property of another by using, intermeddling, or taking possession.
Mistake of law or fact is not a defense
Damages: actual damages or loss of use, compensation for cost of repair
Conversion
Conversion is an intentional act depriving P of personal property (more serious than tresspass to chattels)
Mistake is not a defense
damages: full value of property
Trespass to Land
intentional act causing physical entry onto the land of another
Necessity as defense to tresspass
private: qualified privilege to enter or remain on lant to protect self or property from harm, not liable for the trespass itself, but liable for any damages
public: unqualified privilege to avert imminent public disaster
Nuisance
Private: interference is nontrespassory, unreasonable, intentional, and substantial
Public: unreasonble interference witha right common to general public, but P suffers harm different in kind from the public
Transferred intent
different person: when D intends to commit barrery, assault, or false imprisonment against one person, but does it to another
different tort: when D intends to commit battery and instead does assault or vice versa
Does not apply to transfer intent from personal injury tort to property tort, or IIED
Negligence
Negligence requires Duty, Breach, Causation, Damages
Duty
One has a duty to prevent foreseeable risks of harm to foreseeable plaintiffs
Majority view: liable only to those within the forseeable zone of harm
Minority: liable to anyone injured from a breach of duty
Standard of Care
Must act as a reasonably prudent person in the same situation
child: must act as a reasonable child of the same age, intelligence or experience unless high risk adult activity
Common carriers
highest duty of care consistent with practical operation of the business
Sellers of property
duty to disclose known, latent, unreasonably dangerous conditions
Landowners duty to trespassors
refrain from willful wanton, reckless misconduct
Discovered: warn or protect against concealed dangers
Undiscovered: generally no duty unless owner should reasonably know, then same as licensee
Attractive Nuisance
A landowner is liable for injuries to trespassing children if
there is an artificial condition
that poses an unreasonable risk of bodily harm,
the children** cannot appreciate** the danger,
the burden of eliminating the danger is slight, and
the owner fails to exercise reasonable care.
Landowner duty to licensee
social guests
must warn of concealed dangers that are known or should be known
use reasonable care in conducting activities
no duty to inspect
Landowner duty to invitees
reasonable care to inspect, discover dangerous conditions, then protect invitee from them
nondelagable duty
does not extend beyond scope of invitation
if land open to public for recreation, not liable unless charge a fee or grossly negligent
Landlord duty of care
liable for injuries occuring in common areas resulting from hidden dangers, negligent repair, or failure to repair
Breach
D’s conduct fell below the standard of care
Negligence per se
There is a criminal or regulatory statute
D violates the statute
the harm to plaintiff is of the type the statute seeks to prevent and the plaintiff is in the class of people the statute seeks to protect
Res Ipsa Loquitor
the accident would not have normally occured absent negligent conduct
instrumentality was in D’s exclusive control
Causation
Causation requires actual and proximate cause.
Actual cause is but for causation, meaning but for the defendants negligence, the harm would not have occured. (or substantial factor for 2+ Ds)
Proximate cause: the harm to pliantiff was a reasonably forseeable consequence of D’s conduct
Damages
requires physical harm or property damage
P’s recovery limited if failure to mitigate
Contributory Negligence
minority view, P’s negligence is a complete bar to recovery unless last clear chance doctrine applies
Comparative negligence
majority
Pure: P’s damages reduced by their own fault
Partial: P recovers proportional damages unless P is equally at fault (minority) or more at fault (majority)
Assumption of the Risk
Implied: knowledge of a specific risk and unreasoanbly voluntarily proceeding
Express: risk assumed by agreement through exculpatory provisions
Negligent Infliction of Emotional Distress
P is in zone of danger and threat of physical impact caused emotional distress
P is outside zone of danger but on the scene and witnessed an injury to a close relative
Physical symptoms required unless misinformed about family death or corpse mishandled
Wrongful death
brought by family member for loss of decedent
Survival action
brought by family on behalf of decedent for harms to decedent
Loss arising from injury to family member
loss of consortium/ loss of society
Employer Liability for Employee
Vicariously liable if employer has a **right to control **the means and methods of employee, the tort is within the scope of employment
employer may be liable for a detour but not a frolic
directly liable for negligent hiring, supervision
Liability for independent contracts
An employer is generally not liable for an IC except where employer has retained control, abnormally dangerou activity, nondelegable duty, apparent agency
directly liable for negligent selection
Car owner
negligent entrustment of car if D knows/should know of driver’s or user’s nelignet propensity
Family purpose: liable for family members driving with permission
Sharing liability
joint and several: D liable for single indivisible harm is liable for the entire harm
contribution: D who pays more than share can recover excess from co-defendant
several liablity: D only pays for proportionate share
indemnity: shifts liability to a third party
Strict Liability for abnormally dangerous activities
Activity must not commonly be engaged in
inherent and foreseeable high risk of harm
Strict liability is limited to the harm expected from activity
ex: explosives, fireworks, etc.
Strict liability for animals
owner of a wild animal or abnormally dangerou domestic animal with reason to know of their dangerous propensity is strictly liable for injuries
also strictly liable for fearful reaction to sight of an unrestrained wild animal
owner of a trespassing animal (other than a household pet) is strictly liable for reasonably foreseeable damage caused by the animal
Defenses to abnormally dangerous activities or animal strict liability
Contributory and comparative negligence is not a defense
Assumption of the risk bars liability so long as P was aware of the risk
Trespassors: not liable for injuries inflicted by animals against a trespassors except sometimes for vicious watch dog
Negligent Products Liability
Duty: reasonable care to any foreseeable plaintiff by manufacturer, distributor, seller
Breach: failure to exercise reasonable care in inspection/sale
Causation: defect existed when left manufacturer’s control and injury occured when product was used in a foreseeable way
Damages: personal injury or property damage
Strict Products Liability
Duty: D who is in business of selilng product, is under absolute duty to provide a safe product
Breach: one of the 3 types of defects:
Causation: defect existed when sold and harm occured when product was used foreseeable way
Damages: personal injury or property damage
Manufacturing Defect
Product does not conform to the D’s own specifications
Design Defect
Consumer expectation test: the product is more dangerous that an ordinary consumer would expect
Risk utility test: there is a less risky design alternative that is feasible, the risks outweigh the benefits
Failure to warn
there is a foreseeable risk of harm that is **not obvious **to a ordinary user and the risks could have been reduced or avoided with proper warning
exception: learned intermediary
Defenses to SL products liability
Contributory negligence: only if P unreasonably proceeded in face of known defect
Comparative fault: only considered in damages,
Assumption of the risk: bars recovery in contribuory negligence jdx, reduces recovery in comparative
misuse or alteration: only bars recovery if unforeseeable
Defamation
1) defamatory statement that diminishes respect towards P
2) of or concerning P
3) publication
4) Falsity (p must establish if public concern/public figure)
5) Fault: actual malice (public figure) at least negligence (all others)
6) Damages: libel and slander per see: special damages presumed, slander: special damages need to be shown
Defamation defenses
Truth
Consent
Absolute privilege: remarks during judicial/legislative proceedings, between spouses, required publications
Qualified privileges: affecting important public interest
Misappropriation
unauthorized use of P’s picture or name for D’s advantage
Intrusion upon seclusion
D’s intentional intrusion into P’s private affiars that would be objectionable to a reasonable person
False light
publication of facts about p or attributing view to P that place him in a false light objectionable to a reasonable person under the circumstances
Public disclosure of private facts
public disclosure of private facts (even if true) that would be highly offensive to a reasoanble person and is not of legitimate concern to the public
Fraudulent Misrepresentation
False representation of material fact
knowingly or with reckless disregard of the truth
with the intent to induce P to act
P actually acts
P justifiably relies on the false statement
damage must be actual economic loss
Negligent misrepresentation
D provides false information as a result of D’s negligence
P justifiably relies on that information and incures pecuinary damages
P was a member of a** limited group** for whose benefit the information is supplied
Information must be relied on in a transaction that D intends to influence
Intentional interference with business relations
interference with a valid contract or business expectancy by one with knoweldge, causing a breach resuliting in damages
trade secret theft
Injurious falsehoods
trade libel is a publication of a derogatory statement relating to P’s business, causing interference with or damage to P’s business, causing special damages
Malicious prosecution
intentional and malicious insitution of legal proceedings for improper purpose and with no probable cause; the action must have been dismissed
