Torts Flashcards
What are the 4 intentional torts where ‘transferred intent’ applies?
Assault
Battery
False Imprisonment
Trespass
What does ‘reasonable apprehension’ mean?
Aware of an act that causes a reasonable expectation that a result will occur.
Does a reasonable apprehension require fear?
No
All intentional torts require what 3 main elements?
Act by D
Intent
Causation
When is a contact offensive?
When a reasonable person wouldn’t allow or expect it in the normal course of society.
What is false imprisonment?
Intentional act or omission causing another to be confined or restrained to a bounded area, and they are either aware of it OR injured.
What is considered a ‘bounded area’ for false imprisonment?
An area providing limited movement and unaware of reasonable means of escape.
What is IIED?
Intentional or reckless extreme and outrageous conduct causing severe emotional distress in another.
For IIED, conduct must be outrageous to a reasonable person, other than these 4 categories.
Targeting P’s known sensitivity/weakness
Conduct is continuous or repetitive
P is member of fragile class
D is common carrier or innkeeper
What are the 3 additional elements required for a bystander to claim IIED?
Was present at the time,
Was a close relative to P OR distress resulted in bodily harm,
Defendant knew these facts.
What is trespass to chattels and conversion of chattels?
Intentional act that causes the interference with another’s right of possession of personal property, resulting in damages.
Who can consent to an intentional tort?
Anyone with capacity.
What 3 things nullifies consent to a tort?
Fraud
Duress
Mistake
What is an implied consent to a tort?
Consent based on custom or P’s observable conduct.
What are the 2 elements required for Defense of Property?
Use reasonable force,
to prevent tort of property.
What are the 3 elements to use Necessity as a defense?
Reasonably interfere with another’s property,
To avoid imminent harm,
Interference causes less harm than the imminent harm.
What damages may be awarded for damages caused by Necessity?
Public Necessity-None
Private Necessity-Only actual damage to property, unless it was for P’s benefit.
Can a property owner be liable for harm caused by preventing another’s Necessity use of owner’s property?
Yes
What are the 2 limitations to recapture of chattel outside of the normal defense of property rules?
timely demand of return unless futile.
only recapture from someone who knows chattel wrongfully obtained.
What is defamation?
Defamatory language about another that is false, published, and damages their reputation.
Who can defamatory statements be made about?
A living person or small group of people.
Can the republisher of a defamatory statement also be liable?
Yes
What standard of culpability is required to defamation for: public figures and private people?
Public-Malice
Private-Negligence
What are the 3 main ways to establish Slander Per Se (don’t need damages)?
The slander adversely reflects on P’s business or professional reputation.
The slander claims a communicable disease.
Slander claims P committed moral turpitude crime.
What damages are required for: Public figure libel, private figure libel?
Public figure libel-presumed damages
Private figure libel-presumed damages if a private concern, and only actual damages if public concern.
What are the 3 defenses to Defamation?
Truth
Consent
Privilege
What are the 2 types of Defamation privilege defenses?
Absolute-Protects govt official statements.
Qualified-Protects public use statements such as reviews, references…etc
What is Appropriation?
Unauthorized use of another’s picture or name for commercial advantage.
What is the exception to Appropriation?
‘Newsworthiness’-Not liable if used for reporting news.
What is Intrusion upon Seclusion?
Intrusion upon plaintiff’s
reasonable expectation of privacy,
in a manner highly offensive to a reasonable person.
What are the 2 elements for Disclosure?
Public disclosure of another’s private information when the disclosure would be highly offensive to a reasonable person.
Does the newsworthy exception apply to Disclosure?
Yes
What are the 4 elements of Negligence?
Duty
Breach
Causation
Damages
Who do you owe a duty to regarding negligence?
To all foreseeable plaintiffs.
What is the standard for duty of care?
To behave as a reasonably prudent person would under similar circumstances.
What is the ‘rescuer’s exception’ in Negligence cases?
Although a rescuer may not be foreseeable, you owe a duty of care to those who attempt to rescue someone needing rescue due to your negligence.
Who does the ‘rescuer’s exception’ not apply to?
Fire fighters and officers.
What characteristics are considered of the defendant to determine if he acted as a reasonably prudent person?
Physical characteristics only…not mental.
What can increase one’s standard of the duty of care?
Exceptional skill or knowledge.
What standard of the duty of care are children held to, and what is the exception?
Held to the standard of reasonable similar child.
Doesn’t apply if engaged in adult activity.
What are the 3 elements to establish a statutory standard of the duty of care?
Harm suffered was type statute meant to prevent.
P is in class of victims statute intended,
Statute applies a standard of conduct.
A statutory standard of the duty of care (negligence per se) doesn’t apply under what 2 circumstances?
Compliance with statute is more dangerous,
or compliance is impossible.
What does Negligence Per Se establish?
Duty of Care and breach of that duty.
What standard of the duty of care is owed by landowners to unknown/undiscovered trespassers?
None
What are the 4 requirements for a landowner to warn about, or make safe, hazards for known/discovered trespassers?
Hazard is artificial (manmade)
Highly dangerous
Concealed
known by landowner
What are the 4 requirements for a landowner to take reasonable care to eliminate dangers to child trespassers?
Aware of a dangerous condition,
Should know children are in area,
Condition likely to cause injury,
Magnitude of risk outweighs mitigating
Who is a Licensee?
One who enters land with permission for own purpose (social guests)
Who is an Invitee?
One who enters land open to public OR enters land with permission for benefit of owner (patron).
Is there a duty to inspect property for non-obvious dangers for licensees…invitees?
Not for licensees.
Yes for invitees.
Where do landowners owe a duty of care to invitees and licensees?
Only those areas they are given permission to be in.
What is a breach of duty?
When conduct falls short of the standard of care owed under the circumstances.
What are the 3 requirements for Res Ipsa Loquitor?
Harm would not normally occur absent negligence.
Normally occurs by one in D’s position.
Injury not caused by Plaintiff.
What is defendant not allowed to get if Res Ipsa Loquitor is established?
Directed verdict (JMOL).
What is the main test for determining actual cause for negligence?
‘But-for test’
If multiple defendants may have caused an injury, but it is unclear which one, what happens to the burden of proof?
It switches to the defendants to establish which one caused the injury.
What is the main question to ask to establish proximate cause for negligence?
Was the injury a foreseeable result of the breach of duty?
Do intervening forces cut off defendant’s liability in a negligence case?
Not if the intervening force was foreseeable.
What 4 intervening forces are always foreseeable?
Medical malpractice.
Rescuer negligence.
Reactionary forces.
Resulting disease or accident.
What is the ‘eggshell plaintiff rule’?
You take a plaintiff as you find him. You are responsible for injuries you cause even if the injury wasn’t foreseeable.
What are the 3 main types of damages?
Personal injury
Property damages
Punitive damages
What damages are never recoverable for a plaintiff?
Interests and attorney fees
Does a plaintiff have a duty to try and mitigate damages?
Yes
What is comparative negligence?
D can establish that P is at least partially responsible.
What is partial comparative negligence vs pure comparative negligence?
Partial-P can recover if they are less than 50% at fault.
Pure-P can always recover regardless of percentage at fault.
What is contributory negligence?
P cannot recover anything if D can establish P caused at least partially own damage. (not in most jurisdictions anymore).
What is Assumption of Risk?
D can prevent P from recovering damages if P assumed the risk.
What 2 elements are required to establish Assumption of Risk.
P knew of the risk.
P voluntarily took the risk.
What are the 3 elements for NIED?
Negligence results in close risk of physical harm to P.
P gets severe emotional distress.
P exhibits physical reactions to the emotional distress. (minority dont require)
Can bystanders file a NIED claim?
Yes-the same way as filing a bystander IIED claim, or if there is a special relationship between P and D (ie: erroneous report of death).
What are the 3 kinds of Strict Liability cases?
Abnormally dangerous conditions
Animal conduct
Products liability
What are the 2 defenses to strict liability cases?
Assumption of Risk
Comparative Negligence
What are the 3 requirements to be an ‘abnormally dangerous activity’?
Severe risk
Cannot be made safe
Uncommon in the community
Must abnormally dangerous activities be the cause of injury to apply strict liability?
Yes
For domesticated animals, strict liability applies when?
If the owner knew the animal had a propensity to be dangerous.
For wild animals, strict liability applies when?
Any unprovoked injury
What kind of property damage are animal owners responsible for if their animal trespasses?
Reasonably foreseeable damages caused by non-household pets.
Are trespassers entitled to recover for animal injuries through strict liability?
No
What are the 4 elements for Products Strict Liability?
D was a commercial supplier
Product was defective
Product caused P’s injury
P used product in foreseeable manner
Regarding products liability, what is a commercial supplier?
One who routinely deals in the product sold.
Are rental companies considered commercial suppliers?
Yes
Who in the distribution line can be responsible for product liability?
Everyone on the chain of distribution.
Other than the injury, what is required to prove a defective product caused the injury?
The product was not substantially altered after leaving the commercial supplier.
What are the 3 types of product defects?
Manufacturing defect
Design defect
Inadequate Warning
What is a manufacturing defect?
Product fails to perform as safely as expected due to being different than others of the same product.
What is a design defect and how is it established?
Product creates an unreasonable risk of danger due to faulty design.
Must show a technological and feasible alternative design.
What is an inadequate warning regarding products liability?
Fail to adequately warn of non-obvious risk or foreseeable misuse.
What is required of a manufacturer to warn about unavoidably dangerous products (guns, chainsaws…)?
Proper instructions for use,
and adequate warnings of known dangers.
What are the 3 elements of a Private Nuisance claim?
Substantial and unreasonable,
Interference with use and enjoyment,
of private property.
What are the 3 elements for Public Nuisance?
Unreasonable interference,
With health, safety, or property rights,
Of community at large.
What is a main defense to Nuisance?
P cannot recover if he ‘came to the nuisance’ (such as buying the property with knowledge of the nuisance).
What is Respondeat Superior?
Employers are liable for torts committed by employees within the scope of their employment.
Employers are not liable for intentional torts committed by employees except for these 3 situations.
Job requires force,
Job entails creating friction,
Tort is committed to further employer’s goals
When can employers be held liable for torts committed by contractors?
When the work is inherently dangerous or when the duty is not delegable (such as premises liability).
How does vicarious liability work for partnerships?
All partners are liable to each other’s torts committed within the scope of the partnership.
When can parents be liable for their children’s torts?
Never, but they may be found negligent if they knew their child had a propensity to cause injury.
What is joint and several liability and how does the payout work?
Arises when 2 or more defendants cause an undivided injury.
Recover whole claim from 1 defendant who then files against the other defendant.
What are the 3 main ways a defendant can indemnify another?
By contract
Vicarious liability
Strict liability
What is the ‘last clear chance’ doctrine?
The person with the last clear chance to avoid an accident is liable for negligence, even in a contributory negligence jurisdiction.
Can Assumption of Risk be a defense to an intentional tort?
No
