Torts Flashcards
What are the general elements of intentional torts?
Intentional tort actions require:
- a voluntary act;
- committed with intent (either specific or general intent); AND
- causation (“but for” causation or conduct was a substantial factor).
What is specific intent?
Specific intent exists when a person desires that his conduct to cause the resulting circumstances.
What is general intent?
General intent exists when a person is substantially certain that their conduct will cause the resulting circumstances.
What is the doctrine of transferred intent?
Under the doctrine of transferred intent, the intent to harm one party can be transferred, making the defendant liable when:
- the defendant had the intent to commit a tort against a particular individual; AND
- in the act of trying to accomplish that tort either
- commits a different tort against that person OR
- injures a different person.
To which torts does the Doctrine of Transferred Intent apply?
The doctrine of transferred intent only applies to the intentional torts of battery, assault, false imprisonment, trespass to land, and trespass to chattels.
What constitutes Battery?
A defendant is liable for Battery when there is (1) an intentional, (2) harmful or offensive contact, (3) with the plaintiff’s person.
What is bodily harm in the context of Battery?
Bodily harm is the physical pain, illness, or physical impairment to another’s body.
What is Assault?
A defendant is liable for Assault when there is (1) an intentional act, (2) that causes the plaintiff to be placed in reasonable apprehension, (3) of imminent harmful or offensive contact with the plaintiff’s person.
What are the requirements for reasonable apprehension in Assault?
The reasonable apprehension element requires the plaintiff to be BOTH: (i) aware of the defendant’s act; AND (ii) believe that the defendant is able to commit the act.
What constitutes False Imprisonment?
A defendant is liable for False Imprisonment when he (1) intentionally acts, (2) to restrain plaintiff to fixed boundaries, AND (3) the plaintiff is conscious of the confinement or is harmed by it.
How can restraint be accomplished in False Imprisonment?
The restraint may be accomplished through threats, and DOES NOT need to be physical or stationary.
What is Intentional Infliction of Emotional Distress?
A defendant is liable for Intentional Infliction of Emotional Distress if: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s act caused extreme emotional distress; AND (4) the plaintiff actually suffered severe emotional distress.
What are the requirements for liability in Intentional Infliction of Emotional Distress directed at a third person?
The defendant is liable if he intentionally or recklessly causes severe emotional distress to a member of such person’s immediate family who is present at the time, or to any other person present if such distress results in bodily harm.
What constitutes Trespass to Land?
A defendant is liable for Trespass to Land if (1) he intentionally, (2) either (a) enters the land in the possession of another; (b) causes an object or a third person to enter the land of another; (c) remains on the land; or (d) fails to remove an object from the land that he is under a duty to remove.
Is intent to trespass required in Trespass to Land?
Intent to trespass is NOT required; the ONLY intent required is that the defendant intended to enter/remain on the subject land.
What constitutes Trespass to Chattels?
A person is liable for Trespass to Chattels when he (1) intentionally interferes with another’s personal property, AND (2) the amount of damage is small.
What constitutes Conversion?
A person is liable for the tort of Conversion if the amount of interference is substantial, in which the converter is liable for the full market value of the chattel involved.
What is a defense to intentional torts?
Consent is a defense to intentional torts, and may be express or implied through words or conduct.
What is self-defense in the context of intentional torts?
A defendant is NOT liable for harm to the plaintiff if he: (1) reasonably believed that the plaintiff was going to harm him or another; AND (2) used reasonable force that was necessary to protect himself or another.
What is the defense of necessity in intentional torts?
A defendant is NOT liable for harm to the plaintiff’s property if defendant’s acts were (1) necessary (or reasonably appeared to be necessary), (2) to prevent serious harm to a person or property.
What is the privilege to arrest in intentional torts?
A privilege to arrest is a defense to false imprisonment and is generally regulated by statute.
What is the shopkeeper’s privilege?
In most jurisdictions, shopkeepers have the privilege of temporarily detaining a person reasonably suspected of theft for the purpose of an investigation.
What are the elements of a prima facie case for negligence?
A prima facie case for negligence requires: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) the breach was the actual and proximate cause of the plaintiff’s injuries; AND (4) damages.
What is the Andrews view of duty in negligence?
Under the Andrews view, a duty of care is owed to all foreseeable plaintiffs.
What is the Cardozo view of duty in negligence?
Under the Cardozo view, a duty of care is only owed to foreseeable plaintiffs who are within the zone of danger.
When is there an affirmative duty to act?
An affirmative duty to act will arise in certain circumstances: (a) a pre-existing relationship; (b) the defendant put the plaintiff in peril; (c) the defendant has undertaken to render aid; OR (d) a duty is imposed by law.
What is the reasonable person standard in negligence?
Every person owes a duty to act as a reasonable prudent person would act under like circumstances.
How are children held to a standard of care in negligence?
Children are held to the standard of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
What is the standard of care for medical doctors?
A medical doctor is held to the degree of care and skill of the average qualified practitioner.
What is the standard of care for professionals?
A professional owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community.
What is the Attractive Nuisance Doctrine?
Under the Attractive Nuisance Doctrine, a land owner/possessor owes a duty to child trespassers to make the premises reasonably safe or warn of hidden dangers.
What is negligence per se?
Under the doctrine of negligence per se, a statute may be used to substitute the duty of care.
What is negligence per se?
Negligence per se allows a statute to substitute the duty of care. The duty and breach elements are established when the defendant breaches the statute, and the plaintiff only needs to prove causation and damages.
What must a plaintiff show to use negligence per se?
A plaintiff must show: (1) the statute’s purpose is to prevent the type of harm suffered; AND (2) the plaintiff is in the class of persons the statute seeks to protect.
What are the exceptions to negligence per se?
The exceptions are: (1) compliance with the statute would be more dangerous than violation; (2) compliance with the statute is impossible.
What is res ipsa loquitur?
Res ipsa loquitur allows a plaintiff to prove breach when it is difficult to do so, meaning ‘the thing speaks for itself.’
When is res ipsa loquitur applicable?
It is applicable when: (1) the event ordinarily does not occur without negligence; (2) other responsible causes are eliminated; AND (3) the indicated negligence is within the defendant’s duty to the plaintiff.
What is actual cause?
Actual cause is the ‘but for’ cause - but for the defendant’s negligence, the plaintiff would not have been injured.
What is proximate cause?
Proximate cause is the legal cause, meaning the injury must have been a foreseeable result of the breach.
What are intervening causes?
Intervening causes are acts occurring after the defendant’s breach that contribute to the harm.
What is the Eggshell Plaintiff Rule?
The Eggshell Plaintiff Rule means a tortfeasor takes their victim as they find them, being liable for all harm suffered, even if the plaintiff had a preexisting condition.
What is comparative negligence?
Under pure comparative negligence, a plaintiff’s negligence does not bar recovery but reduces recoverable damages by their percentage of fault.
What is contributory negligence?
In contributory negligence jurisdictions, a plaintiff cannot recover damages if they contributed to their own injury, with exceptions for last opportunity or recklessness.
What is assumption of risk?
Assumption of risk is a defense to negligence, applying when the plaintiff voluntarily assumed a known risk.
What is negligent infliction of emotional distress?
There are three scenarios for recovery: (a) zone-of-danger claim; (b) bystander claim; or (c) pre-existing relationship.
What is the doctrine of respondeat superior?
Under respondeat superior, an employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment.
What is joint and several liability?
In jurisdictions permitting joint and several liability, a plaintiff may recover the entire amount of damages from any single defendant if multiple defendants caused a single indivisible harm.
What do Survival Acts allow?
Survival Acts permit a tort action to continue after a party’s death, allowing recovery of damages the deceased would have been entitled to if they had survived.
What are the elements of defamation?
The elements are: (1) a false defamatory statement; (2) of and concerning the plaintiff; (3) publication to a third party; AND (4) damages.
What is misappropriation of name or picture?
Misappropriation occurs when the defendant uses the plaintiff’s name or likeness for commercial advantage.
What is false light?
False light occurs when the defendant disseminates the plaintiff’s beliefs or actions in a false light that would be objectionable to a reasonable person.
What is intrusion of privacy?
Intrusion occurs when the defendant intrudes into the plaintiff’s private affairs, where the plaintiff has a reasonable expectation of privacy.
What is public disclosure of private facts?
Public disclosure occurs when the defendant disseminates truthful private information that would be objectionable to a reasonable person.
What are the elements of intentional interference with business relations?
The elements are: (1) a contract or business expectancy; (2) knowledge of the contract/expectancy; (3) intentional inducement to breach; (4) breach occurs; AND (5) damages.
What defenses can a defendant assert against a claim of damages?
A defendant may assert defenses such as: defense of legitimate competitive activity, giving truthful information, having a financial interest in the breaching party, and honestly giving requested advice in a special relationship context.
What are the elements of intentional misrepresentation?
To establish intentional misrepresentation, a plaintiff must show: (1) misrepresentation of a material fact; (2) defendant knew the statement was false; (3) intent to induce reliance; (4) actual and reasonable reliance by the plaintiff; AND (5) damages.
What are the elements of negligent misrepresentation?
To establish negligent misrepresentation, a plaintiff must show: (1) misrepresentation of a material fact; (2) supplied for guidance in a business transaction; (3) defendant knew or should have known the information was for guidance; (4) defendant was negligent; (5) actual and reasonable reliance; AND (6) damages caused by the false information.
What constitutes concealment in misrepresentation?
Concealment is an affirmative act intended to keep another from learning of a fact and is equivalent to misrepresentation. There is generally no duty to disclose unless certain conditions exist.
What are the elements of abuse of process?
An action for abuse of process requires: (1) wrongful use of court process; (2) for an improper purpose; (3) an act or threat used to accomplish that purpose; AND (4) resulting damages.
What are the elements of malicious prosecution?
A claim for malicious prosecution requires: (1) initiation of criminal proceedings; (2) for an improper purpose; (3) without probable cause; (4) ended in plaintiff’s favor; AND (5) damages suffered.
What are the elements of wrongful civil proceedings?
A claim for wrongful civil proceedings requires the same elements as malicious prosecution but pertains to civil proceedings against the plaintiff.
What defines a public nuisance?
A public nuisance is an unreasonable interference with the health, safety, or property rights of the community, affecting a considerable number of people.
What defines a private nuisance?
A private nuisance is a substantial and unreasonable interference with a person’s use or enjoyment of their property, being offensive, inconvenient, or annoying to a reasonable person.
What is strict liability in the context of abnormally dangerous activities?
A defendant is strictly liable for damages caused by engaging in an abnormally dangerous activity, which is not commonly used and creates a significant risk of harm.
What is the strict liability rule for wild and domestic animals?
An owner of a wild animal is strictly liable for harm caused, while an owner of a domestic animal is only liable if they knew of the animal’s vicious propensities.
What are the requirements for strict products liability?
Under strict products liability, a plaintiff must show: (1) the product was defective; (2) not altered; (3) caused injury during intended use; AND (4) defendant is a commercial supplier.
What are the theories of strict products liability?
The theories include: (a) manufacturing defect; (b) failure to warn; OR (c) design defect.
What is the implied warranty of merchantability?
The implied warranty of merchantability requires that all goods sold by a merchant must be fit for their ordinary purpose.
What is the implied warranty of fitness for a particular purpose?
An implied warranty of fitness for a particular purpose arises when a seller knows the buyer’s specific purpose and the buyer relies on the seller’s judgment.
What is the basis for indemnification in products liability cases?
Indemnification may occur when multiple tortfeasors are involved, such as a retailer receiving indemnification from a manufacturer if both are jointly liable and the manufacturer is responsible for the defect.
What is the effect of government regulation compliance on product liability?
A manufacturer’s failure to comply with a government regulation conclusively proves a defect, while compliance is evidence that the product is not defective.
