Torts Flashcards
The 7 Intentional Torts
Assault, Battery, False Imprisonment, IED, Trespass to Land, Trespass to Chattels, Conversion
Prima Facie Case for Intentional Tort
P must prove:
- A volitional movement (act) by D
- Intent (either specific or general)
- Causation
Intent Element for Intentional Torts
Specific: D’s goal in taking the action was to bring about the specific consequence of what occurred.
General: D knew with substantial certainty that these consequences would result from his action.
Transferred: Applies to Assault, Battery, False Imprisonment, and Trespass to Chattels.
Causation for Intentional Torts
Result must have been legally caused by D’s act or something set in motion by him. Causation is satisfied if D’s conduct was a substantial factor in bringing about the injury.
Intentional Tort - Battery
Harmful or offensive contact with P’s person, where D intended such harmful or offensive contact or imminent apprehension of such contact with D’s person, and D caused such contact.
P’s person can mean something closely related to P, contact can be delayed.
Direct/indirect physical contact offensive to a reasonable person.
Intentional Tort - Assault
Act by D creating reasonable apprehension of in P of imminent offensive/harmful contact to P’s person, where D intended such apprehension and caused such apprehension.
P must actually suffer apprehension by apparent ability, words alone are often insufficient.
Intentional Tort - False Imprisonment
Intentional confinement of P to bounded area against their will caused by D’s act or omission.
There must be no reasonable means of escape for P, embarrassment is not sufficient
Shopkeeper’s Privilege: A shopkeeper (one tasked with safeguarding) may detain a shoplifter for a reasonable period of time in a reasonable manner if the shopkeeper has reasonable suspicion to believe that the detained person committed or attempted to steal store prop.
Intentional Tort - Intentional Infliction of Emotional Distress (IIED)
An act by D amounting to extreme and outrageous conduct done with intent or recklessness that causes severe emotional distress.
Requires ACTUAL damages, is the only intentional tort that does so. Nominal damages insufficient.
Conduct must exceed all bounds of common decency
Intentional Tort - 3rd Party IIED
D intentionally or recklessly causes severe emotional distress and
- D knows 3rd person is present when the injury occurs and the direct victim is 3rd person’s close family relative
- 3rd person’s emotional distress is so bad that is result in their bodily harm.
Intentional Tort - Trespass to Land
D’s intentional act, not necessarily trespass itself, causes physical invasion of P’s real property.
Physical invasion means entry by anything tangible but does not include light, noise, or vibration.
D is anyone in possession of the land (landlord, tenant, etc.) including subterranean or air.
Mistake is not a defense and damage to the land is not required to be shown for intentional entry.
Intentional Tort - Trespass to Chattels
Intentional Interference with P’s possessory right to personal property which constitutes a dispossession (taking) or intermeddling (damaging).
Intentional Tort - Conversion
An intentional interference with P’s possessory right to personal property involving longer deprivation of possessory right, full damages, or destruction. P may recover rental or full monetary value at the time of trespass (damages) or repossession (replevin).
Intentional Tort Defense - Consent
P’s consent is a defense but cannot consent to a criminal act. Must ask:
- Was the consent valid (i.e. not procured via fraud/misrepresentation)?
- Did the D stay within the boundaries of consent?
Consent can either be express or implied via custom/usage and D’s reasonable interpretation of P’s objective.
Intentional Tort Defense - Protective Privileges
Three questions to ask:
- Is the privilege available? (Tort must now be or about to be committed)
- Is a mistake allowed as to whether the tort being defended against is actually being committed?
- Was proper amount of force used?
Intentional Tort Defense - Protective Privileges - Self Defense
When a person reasonably believes that she is being or is about to be attacked, she may use force as is reasonably necessary to protect against injury.
Reasonably necessary means in proportion to the harm the person reasonably believes will otherwise befall them.
There may be a duty to retreat when less than deadly force is threatened and there is a safe way to escape, but that duty does not apply in one’s own home.
Intentional Tort Defense - Protective Privileges - Defense of Others
A person can use any force to defend another when that they reasonably believe the person to be protected would be entitled to use.
Intentional Tort Defense - Protective Privileges - Defense of Prop.
A person can use reasonable force to prevent the commission of a tort against her real or personal prop. A request to stop or leave must be first made unless it clearly would be futile/dangerous. Deadly force in defense of property is never justified as reasonable.
Intentional Tort Defense - Necessity
A person may interfere with the real or personal prop. of another when it is reasonable and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
Defamation
(1) Defamatory language, (2) of or concerning P, (3) published by D to a 3rd person, and (4) damage to P’s reputation.
If a matter of public concern, you must also show (5) falsity of the defamatory language and (6) fault on D’s part (negligence of D in making statement).
If a P is a public figure (achieved some fame or notoriety, inserted yourself in a controversy) must show D made the statement with malice (knew statement was false or was reckless as to its falsity).
Defamatory language is that which tends to adversely affect ones reputation, must be fact based
“Of or concerning” means a reasonable person would understand the statement was referring to P
Publication means someone other than P received and reasonably understood the defamatory statement
Defamation - Damages
Damages which must be shown depend on whether the defamatory statement constitutes slander or libel
Slander: spoken, oral defamation. P must prove special (pecuniary) damages, unless slander per se (statement is made regarding P’s improper conduct in their trade, accusations of crime involving moral turpitude, current loathsome disease, lack of chastity of a woman).
Libel: Any communication that has some permanence (TV, writing, radio). General damages are presumed.
Defamation - Defenses
- Consent (so long as D did not exceed its boundaries)
- Truth
- Absolute Privilege - Statements made by legislators on the floor, between federal executive officials, judicial proceedings, communication between spouses
- Qualified Privilege - Communication that appears reasonably necessary to protect D’s own legitimate interests or is of interest to the recipient such as past employer’s reference reports of public hearings, newsworthy events. D loses this privilege if actual malice is shown by P.
Privacy Tort - Appropriation
Must show unauthorized usage of P’s picture or name for D’s commercial advantage. Liability generally limited to ads or promotion of products or services.
Privacy Tort - Intrusion upon Seclusion
D intentionally interferes with P’s zone of privacy in a manner offensive to a reasonable person.
Privacy Tort - Publication of Facts Placing P in a False Light
Publication of false information that would be highly offensive to a reasonable person.
Privacy Tort - Public Disclosure of Private True Facts
Public disclosure of private info about P which would be objectionable to a reasonable person of ordinary sensibilities. Must have widespread dissemination.
Privacy Tort - General Qualities
All privacy torts require:
1. Causation
2. Damages - emotional distress and mental anguish are sufficient
Defenses - consent or privilegesm, truth generally insufficient.
Misrepresentation - Intentional
A prima facie case for fraud or deceit requires (1) misrepresentation of a material fact, (2) scienter, (3) intent to induce P to act/refrain from acting in reliance, (4) P actually relies (causation), (5) P’s reliance was justifiable, and (6) P was damaged thereby.
Misrepresentation - Negligent
A prima facie case for negligent misrepresentation requires (1) a misrepresentation by D in a business or professional capacity, (2) breach of duty toward a particular P, (3) causation, (4) justifiable reliance, and (5) damages.
Malicious Prosecution
A prima facie case for malicious prosecution requires (1) the institution of criminal proceedings against P, (2) termination in P’s favor, (3) absence of probable cause for prior proceedings, (4) improper purpose, and (5) damages.
Abuse of Process
A prima facie case for Abuse of Process requires (1) wrongful use of proceedings for ulterior motive, (2) act or threat against P to accomplish that ulterior motive.
Interference with Business Relations
A prima facie case for interference with business relations requires P demonstrate (1) existence of a valid contractual relationship between P and 3rd party, (2) that D knew or had reason to know of that relationship, (3) intentional interference by D resulting in the breach of contract or termination of business , and (4) P was damaged thereby.
Strict Liability
No amount of due care by D will relieve them of strict liability.
Existence of an absolute duty on the part of D to make safe, breach of that duty, actual and proximate causation of P’s injury, and damages to P’s person or property.
Strict Liability - Animals
Injuries caused by domestic animals - No strict liability, just negligence standard.
Injuries caused by wild animals held in captivity - strict liability
Strict Liability - Ultrahazardous Activities
Requires that (1) the activity involves risk of serious harm to persons or prop., (2) the activity be one that cannot be performed without risk of serious harm no matter how much care is take, and (3) the activity is not commonly engaged in in that community.
Strict Liability -Defenses
In a contributory negligence state, contributory negligence is no defense to strict liability if P failed to realize the danger or guard against it. It is a defense if P knew of the danger and his unreasonable conduct was the very caused of the ultrahazardous activity miscarrying.
Assumption of risk is a good defense to SL
Product Liability - General Elements
Products Liability refers to the liability of a supplied of a defective product to someone inured by that product.
To hold a supplier/manufacturer liable under any products liability theory, P must show (1) a defect and (2) the existence of the defect when the product left D’s control.
Products Liability - Defect Theories
Manufacturing Defect - D is liable if P can show that the product failed to perform as safely as an ordinary consumer would expect. D must be able to anticipate reasonable misuse and warn against it.
Design Defect - D is liable if P can show that D could have made the product safer without serious impact on the product’s price or utility.
Gov. Safety Standards - Any product which did not comply with gov. safety standards is presumed defective.
Products Liability -Negligence Based
A prima facie case for products liability sounding in negligence requires P demonstrate (1) a duty of care D owed P, (2) breach of that duty by D, (3) actual and proximate cause, and (4) damages to P’s person or property (no claim for pure economic loss).
Breach is established by showing negligent conduct of D leasing to supplying the defective product.
As concerns causation, an intermediary’s negligent failure to discover a defect does not supersede manufacturer’s negligence unless intermediary’s conduct exceeds ordinary foreseeable negligence.
Products Liability - Strict Liability Based
A prima facie case for products liability sounding in strict liability requires P demonstrate (1) a strict duty owed by a commercial supplied of a product, (2) breach of that duty, (3) actual and proximate cause, and (4) damages to P’s person or prop.
To demonstrate breach, P must show that the product was defective in a way that was unreasonably dangerous.
Product Liability - Implied Warranties
There are 2 warranties implied in every sale of goods:
- Merchantability - whether the goods are of average acceptable quality and are generally fit for ordinary purpose for which goods are used.
- Fitness for a Particular Purpose - when the seller knows or has reason to know the particular purpose for which the goods are to be used and that the buyer is relying on the seller’s skill and judgment in selecting the goods for that purpose.
Products Liability - Representation Theories
Express warranty - any affirmation or promise concerning goods that become part of the basis of the bargain.
Misrepresentation of Fact - A seller is liable for misrepresentation concerning a product where (1) the statement was of a material fact concerning the quality or uses of goods (mere puffery is insufficient), and (2) the seller intended to induce reliance by the buyer in a particular transaction.
Nuisance
Private - A substantial unreasonable interference with another private individual’s use or enjoyment of prop. that he actually possess or to which he has a right of immediate possession.
Public - an act that unreasonably interferes with the health, safety, or prop. rights of the community
Vicarious Liability - Respondeat Superior
An employer will be vicariously liable for tortious acts committed by their employee if the act occurs within the scope of the employment relationship.
Does not include acts which occurred during frolic (shirking employee duties) or detour (employment actions bookended by personal actions).
Intentional torts are usually not within the scope of employment, unless it can in som way be seen as part of the persons job.
Vicarious Liability - Independent Contractor
There is no vicarious liability for an independent contractor’s tortious action, unless the contractor is engaged in abnormally dangerous activity.
Joint and Several Liability
Where 2 or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable.
Contribution - both Ds must have a measurable degree of culpability for the tort.
Indemnity - usually one party is much more responsible than the other.
Negligence - Duty of Care
A duty of care is owed to all foreseeable Plaintiffs. Two questions to be asked in establishing duty are:
- Was the Plaintiff foreseeable?
- If so, what was the applicable standard of care?
Negligence - Elements
To be liable for negligence, D must fail to exercise such care as a reasonable person in his position would have exercised, his conduct must be a breach of the duty to prevent foreseeable risk of harm to anyone in P’s position, and this breach must cause P’s damages.
Negligence - Who is Foreseeable?
Cardozo Majority Rule - D owes a duty of care to P’s in the foreseeable zone of danger (threat of physical danger).
Andrews Minority Rule - D has a duty of care to everyone.
Negligence - Nonfeasance
There is no duty to take steps to rescue or provide aid, except where such affirmative duty is established via (1) special relationship, (2) D’s conduct creating the peril, (3) D’ undertaking the action of P’s benefit, (4) D’s creating reliance, or (5) contract.
Rescuers are foreseeable if rescued party (D) negligently put himself or a 3rd person in peril. As long as rescuer’s behavior was not reckless, D is liable for rescuer’s injuries caused by the rescue.
Dram Shop Rule - Actions of a 3rd party which injure P are foreseeable by a business owner if (1) the served customer harms another person and (2) special relationship.
Negligence - Basic Standard of Care
D owes a duty to act as a reasonably prudent person in same or similar situation (who has D’s relevant physical characteristics), absent negligence per se or a special relationship.
Negligence - Negligence per Se
A statute (including one the provide for criminal penalty) defines the standard if P is in the class of person the statute was designed to protect and injury is the type of injury the statute was designed to prevent. An unexcused violation of the statute constitutes negligence per se and a breach of duty.
Negligence - Landowners Duty to Invitees
Invitee: Someone who enters land open to the public with potential to confer economic benefit.
The landowner owes a duty to the invitee to exercise reasonable care to prevent injuries by (1) inspecting the premises regularly and (2) making safe any dangerous conditions of the premises.
Negligence - Landowners Duty to Licensee
Licensee: Someone who enters land not open to public not to confer economic benefit (guest)
The landowner owes a duty to the licensee to warn or make safe any known dangers.
Negligence - Landowners Duty to Trespasser
Trespasser: Someone who enters the land without express or implied consent.
The landowner owes an ANTICIPATED/KNOWN trespasser to warn or make safe any known dangers. artificial, highly dangerous conditions on the premises.
The landowner owes no duty to an UNANTICIPATED/UNKNOWN trespasser.
Negligence - Attractive Nuisance Doctrine
A landowner has a duty to exercise ordinary care and avoid foreseeable risk of harm to children caused by artificial conditions on the property if (1) dangerous condition the owner is/should be aware of, (2) owner knows children frequent the vicinity, (3) condition likely to cause injury, (4) expense of remedying the danger is outweighed by the risk.
Negligence - Landlord Duty to Tenant
Landlords owe tenants a duty to exercise reasonable care to discover and repair known defects. Landlords are liable for common areas, negligent repairs, and known hidden defects.
Negligence - Professional Standard of Care
A professional owes a duty to conduct themselves in accordance with the knowledge and skill of a member of the profession in food standing.
Medical specialists are held to a national standard. Other professionals are held to a local standard.
Custom or usage in a professional field may be evidence of a standard of care, but Courts can find entire industries to be negligent.
Negligence - Breach
Duty is breached when D’s conduct falls below the applicable standard of care owed to P. Can be determined by either:
Hand Formula - Balance the burden of avoiding harm against the probability of harm and the magnitude of potential loss.
Negligence per se
Res ipsa loquitor - creates an inference of negligence where (1) the type of accident is one which would not normally occur in the absence of negligence, (2) the accident is attributable to D, and (3) P did not contribute to their own injury. (may be rebutted by D with evidence)
Causation - Actual or Legal Cause
“But For”: P must show it was more likely than not that, but for D’s negligence, P would not have been injured.
Substantial Factor (Multiple Causes): Each D’s conduct alone would have been sufficient to bring about P’s indivisible injury. Assume joint and several liability (P can recover damages from either or all Ds; D may sue another for contribution.)
Alternative Causes (Multiple Acts): Where there are multiple acts, only one of which could have caused P’s injury but which one is unknown, each D must show that his negligence is not the actual/legal cause.
Causation - Proximate Cause
D is liable for harmful results caused be his acts if they were foreseeable in any manner for any harm. D takes his P as he finds him (eggshell skull doctrine).
Causation - Proximate Cause - Superseding Cause
A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation and becomes the proximate cause. The more intentional the intervening cause, the more likely it is superseding. BUT if D should have realized the risk, he may still be liable for intentional 3P acts
Causation - Proximate Cause -Foreseeable Intervening Cause
Subsequent medical malpractice, negligent rescuer, subsequent diseases caused by weakened condition, subsequent accident substantially caused by injury.
Negligence - Damages
P is entitled to economic damages (medical expenses), noneconomic damages (pain, emotional distress), punitive damages (if D’s conduct was reckless or malicious), and property damage.
There is no recovery for pure economic harm except for NIED cases.
Collateral Source: Damages are not reduced by benefits from other sources (insurance, workers comp.), but other D’s can reduce.
Duty to Mitigate: P has a duty to take reasonable steps to mitigate damages (seek treatment).
Negligence - Defenses - Comparative/Contributory
Pure Comparative Negligence - P’s recovery is reduced by his fault.
Modified Comparative Negligence - Bars recover if P is over 50% at fault.
Contributory Negligence - Any fault by P bars his recovery. If D had last clear chance to prevent his injury, P can still recover.
Negligence - Defenses - Assumption of Risk
Recovery may be reduced or barred if P knew the risk specific to D and voluntarily assumed that risk.
Express: Clear written or oral release from negligence is a complete bar to recovery.
Firefighter’s Rule: if professional (including volunteer) rescuer is injured by risks inherent in occupation from D’s negligence, recovery for negligence is barred.
Avoidable Consequences: P fails to take reasonable steps to mitigate damages.
