torts Flashcards
land possessor traditional approach
invitees: inspect and discover dangerous conditions, reasonable steps to protect
Licensee: make property safe or warn of hidden dangers
anticipated trespasser: warn or protect from hidden dangers
trespasser: nothing
attractive nuisance
-artificial condition
-landowner knows or should know kids likely to trespass
-kids too young to appreciate risk
-risk of death or substantial bodily harm
-utility of maintaining risk is slight compared to risk of injury
-no reasonable care
learned hand: breach analysis
burden of precautions less than probable gravity of harm multiplied by probability of harm
negligence per se
-proximate cause
-P in class meant to be protected by statute
-harm meant to be prevented by statute
strict liability elements
absolute duty
breach
causation
damages
abnormally dangerous activities
-foreseeably high risk of harm
-cannot be made safe
-not common in community
-actual and proximate cause
-damages
wild animals
dangerous propensities
causation (including fearful reactions)
damages
domestic animals strict liability
if owner knows of dangerous propensities
causation
damages
defective product liability
absolute duty
defective product at time of sale or distribution
-manufacturing defect
-design defect
-warning defect:
actual/proximate cause:
damages
implied warranty of merchantability
reasonably useful and safe for average use
implied warranty of fitness for particular purpose
seller knows or has reason to know of buyer’s purpose
seller guaranteeing fit for purpose
defamation
defamatory language: diminish respect
-not opinions
of or concerning P: reasonable person must believe it refers to particular P
publication by D to 3P: intentional or negligent communication
damage to P’s reputation
-general if libel/written
-special if oral/slander
slander per se
professional reputation, disease, crimes of moral turpitude, unchaste behavior
defamation defenses
truth
consent
absolute privilege: legislative and judicial proceedings, between spouses, or in required publications.
qualified privileges: important public interest, in interest of defendant or third party. lost if exceeds scope or actual malice
misappropriation of right of publicity
-unauthorized use of P’s name/likeness/identity
-for D’s advantage
-lack of consent
-injury
intrusion upon seclusion
-act of intrustion into private affairs
-objectionable to reasonable person
false light
-d published facts about P or attributed views/actions to P
-placed P in false light
-highly offensive to reasonable person
public disclosure of private facts
-publication would be highly offensive to reasonable person
-not of legit concern to public
false imprisonment
-intentional confinement/restraint of defendant within bounded area
-any amount of time
-no reasonable means of safe escape
-actual damages not necessary if P knew of confinement
Damages—majority: actual damages unnecessary, P can recover nominal and possible punitive damages; minority: actual damages necessary only if P was unaware of confinement
battery
-harmful/offensive contact
-with P’s person or anything connected
-intent to touch
-causation
Single-intent rule (majority rule)—D may be liable if D (i) intends to bring about the contact; D need not intend (ii) that the contact is harmful or offensive
Double-intent rule (minority rule)—D must (i) intend to bring about a contact, and (ii) intend that the contact be harmful or offensive
assault
-act/threat
-puts P in reasonable apprehension of imminent contact
-intent to cause act
-causation
IIED
-intent to cause emotional distress or act with recklessness
-extreme and outrageous conduct
-causation
-damages
public figures must show falsity and actual malice; private P cannot recover if issue was of public concern
bystanders: immediate family, present, perceives conduct, D knows of this
third parties: if D intended ED
public figures: false statement, actual malice
NIED
-zone of danger
-ED
-physical manifestation
bystander: closely related to injured; present; observed injury
per se: negligent mishandling of corpse; medical misdiagnosis
Majority—emotional distress must be manifested by physical symptoms (e.g., nightmares, shock, ulcers); minority—allow recovery without a physical manifestation of harm
trespass to chattels
-interference with P’s possession
-intent to interfere
-causation
-damages: repair or loss of use
conversion
-substantial interference with P’s possession so deprives P of use
-intent to interfere
-causation
-damages: full value
*mistake as to thinking it is yours is no defense
trespass to land
physical invasion of another’s land
intent to invade
defenses :consent, necessity (private or public)
private nuisance
-substantial and unreasonable interference
Substantial: Offensive, inconvenient, or annoying to a reasonable, ordinary person
Unreasonable: Injury outweighs utility of behavior.
-with use or enjoyment of land
public nuisnace
unreasonable interference with right common to general public: health safety property
-private individual: special harm
**balance utility of nuisance with harm
self defense
reasonable force for defending herself against unprivileged use of force if reasonably believes force is necessary and proportionate
person using self defense must also not be negligent
vicarious liability
employee + within scope of employment
IC + nondelegable duty
IC + apparent authority
shopkeeper privilege
defense to false imprisonment
reasonable suspicion of P stealing, can detain P for reasonable amount of time and reasonable manner and on or immediately near premises
abnormally dangerous activity defense
defense: assumption of risk, voluntarily and knowingly
animals strict liability defense
def: assumption of risk
strict products liability defense
defenses: contributory negligence and assumption of risk
defamation and public figure or public official, or public matter
also must prove:
-statement is false
-actual malice, knowledge or reckless disregard
-actual damages must be proven: damages to P’s reputation
–> private figure can recover punitive damages
defamation and private figure and public topic
-false
-private figure: negligence or actual malice
–damages and punitive damages if private figure and malice
manufacturing defect
-manufacturing defect: deviation from manufacturer’s intent
design defect
–> consumer expectation test: ordinary consumer expectations
–> risk-utility test: reasonable alternative design was economically feasible and available, failure to use
warning defect
foreseeable risk of harm not obvious to ordinary user could have been reduced with warnings
absolute duty strict products liability
D is in business of selling commercial product
actual causation strict products liability
defective when left D’s hands
proximate causation strict products liability
injuries occurred b/c product used in intended or reasonably foreseeable way
necessity
defense to trespass to land
public: allows to enter to prevent public disaster + reasonable belief
private: to protect herself or property. pay actual damages.
transferred intent
TFAB
trespass to land/chattels
false imprisonment
assault
battery
private nuisance defenses and remedies
coming to nuisance reduces damages
regulatory compliance is partial defense
abatement if gave D notice and D does nothing
damages of loss of property value
public nuisance defenses and actions
regulatory compliance is partial defense
abatement by public official
malicious prosecution
(i) intentional institution of criminal (or civil) proceedings against P;
(ii) termination in P’s favor;
(iii) absence of probable cause for prior proceedings;
(iv) improper purpose; and
(v) damages
abuse of legal process
(i) wrongful use of process for an ulterior motive and
(ii) definite act or threat against P in order to accomplish ulterior motive.
interference w business relationship
(i) existence of a valid contractual relationship between P and a 3rd party or valid business expectancy;
(ii) D’s knowledge of the relationship or expectancy;
(iii) intentional interference by D including a breach or termination of the relationship or expectancy and
(iv) damages.
privilege if proper competition
intentional misrepresentation
i. [Affirmative] misrepresentation of a material fact
ii. Which D knew/believed to be false or had no foundation when she made the stmt
iii. Intent to induce P to act or refrain from acting in reliance on the misrepresentation
iv. Actual reliance (causation)
v. Reliance was justifiable (usually requires that the stmt is fast not just opinion)
vi. Damages: P must suffer actual pecuniary loss.
negligent misrepresentation
i. Misrepresentation by D in a business or professional capacity
ii. Breach of duty toward a particular P
iii. Causation
iv. Justifiable reliance; and
v. Damages
defense of property
reasonable force may be used if reasonably believes it is necessary to protect the property
privilege of felony arrest - private person
felony must haven in fact been committed,
and person must reasonably believe the arrestee committed it.
Reasonable degree of force; deadly only when threat of serious harm.
privilege of felony arrest - police
officer must reasonably believe that a felony has been committed and the person he arrests has committed it.
Reasonable degree of force;
deadly only when threat of serious harm.
misdo arrest
must be a breach of peace and committed in the presence of the arresting party.
Reasonable degree of force; never deadly force.
defense of property
Reasonable Force—may be used if the person reasonably believes it is
necessary to prevent tortious harm to the property. NEVER deadly.
recapture of chattels
Recapture of Chattels (Personal Property): Reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be futile.
If the original taking was lawful (like a bailment) then only peaceful
means may be used.
force to regain possession of land
Common law—reasonable force permitted
Modern rule—use of force is no longer permitted; only legal process
municipal immunity
Traditionally, municipal tort immunity attached to the performance of traditional government functions but not to the performance of proprietary functions that are usually performed by a private company.
breach of warranty for products liability: majority vs minority
Under the majority approach, only a purchaser or members of a purchaser’s family or household have standing to sue for breach of a product warranty, but they can only recover for personal injury. need privity
Minority approach is anyone injured regardless of privity
learned intermediary doctrine
Under the learned intermediary rule, the manufacturer of a prescription drug or medical device typically satisfies its duty to warn by informing the prescribing physician of problems with the drug or device rather than informing the patient taking the drug.
owner liability statutes
. In jurisdictions with owner liability statutes, the owner of an automobile may be liable for the tortious acts of anyone driving the car with permission.
res ipsa loquitur
To obtain a res ipsa loquitur jury instruction, a plaintiff must prove that
(i) his injury was caused by an instrumentality or agent within the exclusive control of the defendant,
(ii) the accident was of a kind that ordinarily does not occur in the absence of negligence, and
(iii) the harm was not due to any action on the part of the plaintiff.
The third requirement is not satisfied if a plaintiff’s own negligence increases the likelihood of the defendant’s negligence.
multiple causes and causation
Multiple causes: defendant’s action needs to be substantial cause
acting in concert: When multiple defendants engage in joint tortious conduct and one or more of them causes the plaintiff’s harm, all of the defendants are jointly and severally liable for the harm.
damages for trespass to land
(i) the cost to repair the injury or to replace the destroyed property plus any recovery for the loss of the use of the property, or (ii) the diminution in the fair market value of the property.
and nominal damages
intentional tort elements
Tortious conduct—voluntary act/failure to act
Requisite mental state—purposeful (or reckless for IIED), or defendant (D) knows the consequence is substantially certain
Causation—resulting harm legally (i.e., factually and proximately) caused by D’s conduct
consent for def to intentional torts
Actual (express)—P is willing for the conduct to occur; revoked by clear communication
Apparent—D reasonably believes that P actually consents
Presumed (implied)—D is justified based on prevailing social norms or D has no reason to believe P would not actually consent if D had requested consent
Emergency—usually medical, purpose of conduct is to prevent/reduce risk to P’s life/health
bystanders and self def
Not liable for injuries to bystanders—D may use nondeadly force against a bystander if (i) the force P is using against D is substantially greater than the force D uses against the bystander, and (ii) D’s use of force against the bystander is immediately necessary
affirmative duty
Assumption of duty
Placing another in peril
By contract
By authority
By relationship (e.g., employer-employee, parent-child, common carrier-passenger)
By statute imposing an obligation to act
standards of care for special Ds
Common carriers (planes, trains, buses)—highest duty of care consistent with practical operation of the business (majority)
Innkeepers—ordinary negligence (majority); “slight negligence” (common law)
Automobile drivers—absent “guest statute” (minority—refrain from wanton & willful misconduct), ordinary care to guests as well as passengers (majority)
Bailor
Gratuitous—duty to warn bailee of known dangerous defects o Compensated—duty to warn bailee of defects that are known or should have been known by the bailor had he used reasonable diligence
Bailee
Gratuitous—liable only for gross negligence
Compensated—must exercise extraordinary care
Mutual benefit—must take reasonable care
Sellers of real property—duty to disclose known, concealed, unreasonably dangerous conditions; liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect
invitee: recreation
Recreational land use (some jurisdictions)—possessor who opens land to public for recreation generally not liable for injuries sustained by recreational land users unless (i) charges a fee or (ii) acts willfully, maliciously, or with gross negligence
off premise victims
No duty for harm by natural condition (except rotting trees in urban areas)
Duty to prevent unreasonable risk of harm caused by artificial condition
wrongful life vs birth
Wrongful life—minority allows action by child for failure to perform contraceptive procedure or diagnose congenital defect; damage limited to those attributable to disability
Wrongful birth—if birth due to failed contraceptive procedure or diagnosis of defect, many states permit parents to recover medical expenses for caring for disabled child; some states allow mother to recover pain/suffering damages and medical expenses for labor
dram shop liability
many states recognize cause of action against seller of intoxicating beverages when a third party is subsequently injured due to buyer’s intoxication; most states only allow liability if buyer was minor or intoxicated at time of sale; many states extend to social hosts for injuries to intoxicated guest and/or third parties
immunity govt actors
immunity applies if is performing discretionary functions entrusted by law unless acts with malice or improper purpose; no tort immunity for carrying out ministerial acts
Absolute immunity from personal liability—legislators performing their legislative functions, judges performing their judicial functions, prosecutors
last clear chance
Last clear chance rule—abolished in most jurisdictions; P may mitigate legal effect of own fault if D had last clear chance to avoid injuring P; D’s actual knowledge of P’s inattention required for liability to inattentive P; D liable to helpless P if knew or should have known of P’s helpless peril
cotnributory neg jxs
modified comp negligence
If P is less at fault than Ds combined, P’s recovery reduced by percentage of fault
If P is more at fault than Ds combined, P recovers nothing
If P and D are equally at fault, P recovers 50% of his total damages (in minority jurisdictions P recovers nothing if equally at fault)
trespassing animals
owner/possessor S/L for reasonably foreseeable damage caused by trespassing animald
disclaimers for consumer goods
Consumer goods—limitation of consequential damages for personal injury is unconscionable
libel per quod
if defamatory statement requires proof of extrinsic facts to show it is defamatory, P must prove either special damages or a category of slander per se
interference with prospective econ advantage
no contract
More egregious conduct required for liability, should be independently tortious; violates federal or state law; improper conduct per balancing analysis
Business competitor will not be liable for encouraging switching business
theft of trade secrets
P owns valid trade secret (provides a business advantage)
Not generally known
Reasonable precautions to protect
D took secret by improper means
trade libel
malicious publication of derogatory statement relating to P’s title to business property/quality of products, and interference or damage to business relationships;
proof of special damages required and mental suffering damages unavailable;
truth and fair competition are valid defenses
slander of title
publication of false statement derogatory to P’s title to real property; malice; special damages as a result of diminished value in the eyes of third parties
