Torts Flashcards
What must P show to establish a case of battery?
1) a harmful or offensive contact, 2) to P’s person, 3) D’s intent, and 4) causation.
What are the elements required to prove assault?
1) an act by the D which causes reasonable apprehension in P, 2) of immediate harmful or offensive contact to P’s person, 3) D’s intent, and 4) causation.
What must P demonstrate to establish false imprisonment?
1) an act or omission by D that confines or restrains P, 2) to a bounded area, 3) D’s intent, and 4) causation. NOTE: P must be aware or harmed by confinement.
What are the requirements for intentional infliction of emotional distress (IIED)?
1) extreme and outrageous conduct by D, 2) intent or recklessness, 3) causation, and 4) severe emotional distress.
What must P establish for bystander IIED claims?
1) P present when injury occurred, 2) P is a close relative to V, and 3) D knew P was present and a close relative.
What elements must P show for trespass to land?
1) a physical invasion of P’s real property, 2) intent, and 3) causation. NOTE: Negligent or reckless entries only subject to liability if D causes harm to land.
What are the requirements for trespass to chattel?
1) an act by D that interferes with P’s right of possession in chattel, 2) intent, 3) causation, and 4) damages.
What must P demonstrate for conversion claims?
1) an act by D that interferes with P’s right of possession of chattel, 2) which is so serious that D must pay for chattel’s full value, 3) intent, and 4) causation.
What is the defense of consent in intentional torts?
Requires legal capacity. Can be express or implied.
What are the conditions for self-defense and defense of others?
Invasion is imminent or in progress; reasonable mistake does not negate; may use only proportionate force.
What are the criteria for a felony arrest without a warrant?
Police → reasonable grounds to believe felony was committed; Private → felony was actually committed and private person had reasonable grounds to believe person committed it.
What is the shopkeeper’s privilege?
Shopkeeper may detain for reasonable time and manner if reasonably believes person committed theft to conduct an investigation.
What is the public necessity defense?
To protect the community as a whole, it is an absolute defense for trespass and damages.
What is private necessity in the context of torts?
Protect one’s own interest only if the emergency is not of their own making. Only a defense for trespass.
What must P show to prove a prima facie case for common law defamation?
1) defamatory language, 2) of or concerning P, 3) publication by D to a third person, and 4) damages.
What additional requirements are there for defamation cases involving public concern?
1) falsity of the statement and 2) fault on D’s part.
What must a public figure prove in defamation cases?
Malice (D knowing of the falsity or acting in reckless disregard), in which case damages are presumed.
What must a private figure prove in defamation cases?
Negligence, in which case P must prove damages, or demonstrate malice, in which case damages are presumed.
What are the defenses to defamation?
1) Consent, 2) Truth, 3) Privilege: Absolute and Qualified.
What must P establish for appropriation of P’s picture or name?
An unauthorized use of P’s picture or name for D’s commercial advantage, unless newsworthy publication.
What is required to prove intrusion in invasion of privacy claims?
D’s act of prying or intruding into a private affair where P has a reasonable expectation of privacy would be objectionable to a reasonable person.
What must P show for false light claims?
D attributed to P certain views that P does not hold or actions that P did not take, which would be objectionable to a reasonable person under the circumstances.
What must P show for a public disclosure of private info to be objectionable?
Widespread dissemination of confidential info unless newsworthy publication.
This refers to the standard of objectionability in privacy torts.
What are the defenses to privacy torts?
Consent; Absolute and Qualified Privileges for disclosure and false light.
Truth is not a defense.
What are the elements required to prove Intentional Misrepresentation (Fraud)?
- Affirmative misrepresentation of a material fact
- D made the misrepresentation knowing or believing it was false
- Induced P to act in reliance upon the misrepresentation
- Justifiable reliance
- Causation
- Damages
What must P prove for Negligent Misrepresentation?
- Misrepresentation by D in a business or professional capacity
- Breach of duty toward P
- Causation
- Justifiable reliance
- Damages
What are the elements required to prove Inducement of a Breach of Contract?
- Existence of a valid contractual relationship between P and a third party
- D’s knowledge of the relationship or expectancy
- Intentional interference by D inducing breach or termination
- Damages
What is a defense for Inducement of a Breach of Contract?
D’s own business interest or protection of interest.
What are the elements required to prove Malicious Prosecution?
- Institution of criminal proceedings against P
- Termination in P’s favor
- Absence of probable cause for the prior proceedings
- Improper purpose
- Damages
What constitutes Abuse of Process?
- Wrongful use of the legal process for an ulterior purpose
- A definite act or threat against P to accomplish the ulterior purpose
What is the standard for Duty of Care in negligence?
Amount of care a reasonably prudent person would exercise under similar circumstances, considering superior skill, knowledge, and physical characteristics.
What is the liability for children under 4 in negligence cases?
No liability.
What duty is owed to children aged 4-18 in negligence cases?
Care of a child of similar age, intelligence, and experience under similar circumstances, unless engaged in adult activity.
What is the standard of care owed by professionals?
Care of an average member of that profession in a similar community.
What duty do common carriers and innkeepers owe?
A high degree of care and liable for even slight negligence if P is a passenger or guest.
What duty does an auto driver owe to a guest?
Ordinary care, but may only be liable for reckless, tortious conduct for nonpaying passengers.
What is the duty of care owed to undiscovered trespassers?
No duty of care, but no traps.
What duty is owed to discovered trespassers?
Duty to warn of concealed unsafe conditions that may cause death or serious bodily harm if conditions are met.
What is required for the Attractive Nuisance Doctrine to apply?
- Dangerous condition present on land that owner is or should be aware
- Owner knows or should know that kids frequent area
- Condition likely to cause injury
- Expense of remedy is slight versus risk
What duty is owed to licensees?
Duty to warn of all known dangerous conditions.
What is required for an invitee in terms of duty owed by the possessor?
Duty to protect invitees from all reasonably knowable dangerous conditions.
What is the general duty of a lessor?
To warn of existing defects if aware that lessee will not discover them upon reasonable inspection.
What must a vendor of realty disclose?
Concealed, unreasonably dangerous conditions not discoverable by reasonable inspection.
What creates negligence per se?
- Statute provides for a criminal penalty
- Statute clearly defines the standard of conduct
- Plaintiff is within the protected class
- Statute designed to prevent type of harm suffered by plaintiff.
What is the general duty to rescue?
Generally none, unless specific relationships exist.
What is Res Ipsa Loquitur?
P lacks info of what D did wrong, but accident is routinely associated with negligence.
What is the ‘But for’ test in actual causation?
Used to determine if the harm would not have occurred but for D’s actions.
What is the standard for multiple defendants in causation?
Substantial factor test or shift burden of proof to D if causes are unascertainable.
What is proximate cause in negligence law?
Key is foreseeability. If D is direct cause, result is foreseeable unless freakish and bizarre.
What are the scenarios where D is liable for intervening causes?
D is always liable for intervening:
* medical negligence
* rescue negligence
* protection or reaction forces
* subsequent disease or accident.
When is D not liable for intervening causes?
No liability if intervening force is a crime or intentional tort.
What is the eggshell plaintiff rule?
You take P as you found P.
What is contributory negligence?
Minority of jxs → contributory negligent P is barred from recovery unless:
* wanton and willful misconduct
* D had last clear chance to avoid injuring P.
What is assumption of the risk?
P knew of risk and voluntarily proceeded.
What is comparative negligence?
P failed to take proper degree of care for their own safety. Jury assigns % of fault.
What is pure comparative fault?
Strictly by the numbers.
What is partial/modified comparative fault?
P recovers % only if fault is < 50%. Last clear chance does not apply.
What are the requirements for negligent infliction of emotional distress?
P must show:
* D was negligent
* P was within zone of physical danger
* physical manifestation of that stress.
What is the implied warranty of merchantability?
Goods are of average acceptable quality and generally fit for the ordinary purpose.
What are the defenses to implied warranty of merchantability?
Assumption of risk; contributory negligence.
What is the implied warranty of fitness for a particular purpose?
Seller knows or has reason to know the particular purpose, and buyer relies on seller.
What is express warranty?
Affirmation of fact or promise that becomes basis of the bargain.
What constitutes misrepresentation of fact?
SL if stmt was of material fact concerning quality or use of goods and seller intended to induce reliance.
What must P prove for strict liability?
P must prove:
* existence of an absolute duty to make safe
* breach of duty
* actual and proximate cause of P’s injury
* damage to P’s person or property.
When is strict liability applicable for injuries caused by animals?
Always SL if livestock or wild animals; no SL for domesticated animals unless D knew of vicious propensities.
What are the criteria for ultra-hazardous activity to be considered SL?
P must prove:
* activity cannot be made safe given existing technology
* activity poses severe risk of harm
* activity is uncommon in the area.
What is public nuisance?
Established if the community’s right to health, safety, or property interfered with to an unreasonable degree.
What is private nuisance?
Established if P’s ability to use or enjoy property has been interfered with to a substantial and unreasonable degree.
What is loss of consortium?
Claim for damages for loss of:
* domestic services
* companionship
* sexual intimacy.
What is vicarious liability?
Arises out of specific relationships, such as employer/employee, hiring party/independent contractor, car owner/car driver, and parent/child.
What must P prove for strict tort liability in product liability?
P must show:
* D was a merchant routinely dealing in goods of this type
* defective product
* existence of defect when product left D’s control
* P was making foreseeable use of the product.
What is a manufacturing defect?
Product differs from others off the assembly line and failed to perform as safely as an ordinary consumer would expect.
What is a design defect?
All products in the line are dangerous; D has duty to use alternative design if it’s safer, economical, and practical.
What is joint and several liability?
Two or more negligent acts are proximate causes to injury. If indivisible, each D liable for entire amount; if divisible, each D liable for their identifiable portion.
What is contribution in comparative contributions?
Typically relative to proportion of fault; minority → apportionment in equal shares.
What is indemnity in comparative contributions?
Shifts entire loss between or among tortfeasors if by K, VL, strict products liability, or identifiable difference in degree of fault.
