Torts 2 Flashcards
1
Q
what is the definition of an act?
A
volitional movement by defendant
2
Q
What is intent?
A
person has intent if they desire to produce the legally forbidden consequence or they know the consequence is certain to result
o General: the actor knows with a substantial certainty the consequences will result.
o Specific: Purpose in acting is to bring about specific consequences.
3
Q
What is causation?
A
Defendant’s conduct was a substantial factor in bringing about the injury.
4
Q
What is transferred intent?
A
• Intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.
5
Q
Limitations on the use of Transferred Intent
A
o Assault o Battery o False Imprisonment o Trespass to land; or o Trespass to Chattels
6
Q
Non-Defenses to Intentional Torts
A
- Mistake of Identity
- Insanity
- Minors
7
Q
Battery
A
o Harmful or offensive contact Unpermitted by persons with normal sensitivity);
o To Plaintiff’s person
o With intent and
o Causation
8
Q
Assault
A
o An act by defendant creating a reasonable apprehension in plaintiff;
o Of immediate harmful or offensive contact (battery) to plaintiff’s person;
o Intent; and
o Causation
9
Q
False Imprisonment
A
o An act or omission on the part of defendant that confines or restrains plaintiff to a bounded area;
o Intent; and
o Causation
10
Q
Intentional Infliction of Emotional Distress
A
o Intentional or Reckless Conduct
o That is extreme or outrageous
o That causes the plaintiff severe emotional distress
11
Q
MD distinction for IIED
A
Special Relationship Situations
Misconduct stemming from counseling must arise out of an officially sanctioned treatment relationship in order to be classified as extreme and outrageous.
12
Q
Extreme and Outrageous Conduct
A
Conduct that transcends all bounds of decency.
Conduct that is not normally outrageous may become so if:
It is continuous in nature;
It is directed toward a certain type of plaintiff (children, elderly persons, pregnant women, supersensitive adults if the sensitive adults if the sensitivities are known to the defendant); or
It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults.”
13
Q
Causation in Bystander Cases
A
Defendant intentionally causes physical harm to a third person and Plaintiff suffers severe emotional distress because of it, the Plaintiff may recover by showing either the prima facie case elements above or that:
• (1) she was present when the injury occurred
• (2) she is a close relative of the injured person, and
• (3) the defendant knew facts (1) and (2).
14
Q
Trespass to Land
A
(1) Physical Invasion of Plaintiff’s real property; (by person or object)
(2) with Intent; and
(3) Causation
15
Q
Trespass to Chattels
A
Trespass to Chattels is the intentional interference with another’s possessory interest in a chattel, resulting in damage to that interest.
16
Q
MD distinction to trespass to Chattels:
A
Property owners have a common law privilege to detain a person in order to prevent theft or to recapture property. Where an owner is mistaken, the fact that the owner had probable cause is not a defense.
17
Q
Conversion
A
o (1) Intent (to do the act that interferes with the plaintiff’s right of possession.
o (2) An act by defendant that interferes with Plaintiff’s right of possession in a chattel;
o (3) The interference is so serious that it warrants requiring defendant to pay the chattel’s full value.
o (4) Causation
18
Q
MD distinction for Conversion:
A
Generally, an intangible property interest is not subject to conversion unless the interest is merged into a tangible document (stock certificate) over which the defendant has exercised control. An intangible property interest can be converted where the interest constitutes specific segregated or identifiable funds. (a $100 dividend payment)
19
Q
Remedy for Conversion
A
• P may recover damages (FMV @time of conversion) or replevin.
20
Q
MD distinction for remedy for Conversion
A
Replevin action is limited to a prejudgment seizure of the property. Where the property cannot be seized before trial and the plaintiff desires return of the property rather than damages, he must bring a detinue action
21
Q
What are the defenses to intentional torts?
A
- Consent
- Self-defense
- Defense of others
- Defense of Property
- Re-entry onto land
- Recapture of Chattels
- Privilege of Arrest
- Shopkeeper’s Privilege
- Necessity
10, Discipline
22
Q
Consent
A
P’s consent to D’s conduct is a defense, but the majority view is that one CANNOT consent to a criminal act.
23
Q
Consent may be:
A
- Express
- Implied/Apparent
- Consent implied by law
24
Q
Express Consent:
A
express consent to defendant’s conduct
25
Exceptions to Express consent
o (1) Mistake will undo express consent if defendant knew of and took advantage of the mistake,
o (2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
o (3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.
26
Implied or apparent consent
reasonable person would infer from custom and usage or plaintiff’s conduct (normal contact, contact sports, etc.)
27
Consent implied by law
Arises when action is necessary to save a person’s life or some other important interest in person or property.
28
MD Distinction to consent:
MD requires a medical malpractice claim based on the lack of informed consent to be pled as negligence rather than an assault or battery.
A parent may not consent to tortious conduct that is harmful to the child.
29
Self-defense:
Defense may be used when a person REASONABLY believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.
30
Majority Rule of retreat in self-defense:
No duty to retreat
31
• Self Defense is NOT available to initial aggressor UNLESS
the other party responds to the aggressor’s non-deadly force by using deadly force.
32
MD distinction Rule of retreat in self-defense:
Modern Rule: Duty to retreat before using deadly force, however, there is no duty to retreat in one’s own home.
33
Defense of Others:
GR: One may use force to defend another when the actor REASONABLY believes that the other person could have used force to defend himself.
34
Defense of Property
GR: One may use reasonable force to prevent the commission of a tort against her real or personal property.
• Request to desist or leave must first be made unless it clearly would be futile or dangerous
35
Re-entry onto land- Common law rule and modern law
o Common Law: one could use force to reenter land only when the other came into possession tortiously.
o Modern Law: summary procedures such as ejectment for recovering possession of real property. (self-help no longer allowed)
36
Recapture of Chattels: Lawful possession and unlawful possession
o Lawful possession: When another’s possession began lawfully, one may use only peaceful means to recover chattel.
o Unlawful possession: Force may be used to recapture a chattel ONLY hen in hot pursuit of one who has obtained possession wrongfully. (theft)
37
Entry onto land to remove Chattel on wrongdoer's land:
Owner privileged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner after first making a demand for their return.
38
Entry onto land to remove Chattel on land of an innocent party:
Owner may enter and reclaim them at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it.
• Chattel owner will be liable for any actual damage caused by the entry.
39
Entry onto land to remove Chattel on land through Owner's Fault:
If chattels are on land of another through the owner’s fault there is no privilege to enter onto the land.
• Must recover through legal process.
40
Privilege of Arrest
Invasion of Land: Privileged to enter another’s land for the purpose of effectuating the arrest.
41
Felony Officer Arrest without a warrant:
The officer must reasonably believe that a felony has been committed and that the person he arrests has committed it.
Force: Reasonably necessary to make the arrest/ deadly force when the suspect poses a threat of SERIOUS HARM!
42
Felony Citizen Arrest without a warrant:
Felony must have been committed and the citizen must reasonably believe that the person he arrests has committed it.
Force: reasonably necessary to make the arrest/ deadly force only when the suspect poses a threat of SERIOUS HARM!
43
Misdemeanor Arrest without a warrant:
Misdemeanor must be a breach of peace and committed in the arresting party’s presence.
Force: reasonably necessary to make the arrest/ NEVER DEADLY FORCE!
44
Shopkeeper's Privilege
o GR: Shopkeeper has a privilege to detain a suspected shoplifter for investigation. For privilege to apply, the following conditions must be satisfied:
• (1) There must be a reasonable belief as to the fact of theft,
• (2) The detention must be conducted in a reasonable manner and only NON-DEADLY FORCE can be used;
• (3) the detention must be only for a reasonable period f time and only for the purpose of making an investigation.
45
Necessity Defense:
Privilege exists if it is necessary to invade the interests of the plaintiff in order to prevent greater harm. Can be exercised by ANYONE. If there is a mistake, then behavior must be reasonably necessary.
46
What are the two types of Necessity?
Public: when the act is for the public good
• Damages: Complete defense (not liable for anything)
Private: when act is solely to benefit a limited number of people.
• Damages: Actor must pay for any injury he causes (unless it was to benefit the property owner)
47
Discipline as a defense:
A parent or teacher may use reasonable force in disciplining children
48
What are the elements of Defamation?
* Defamatory language
* Of or concerning the plaintiff
* Publication thereof by defendant to a third person; and
* Damage to Plaintiff’s reputation
49
If the defamation involves a matter of public concern, the Constitution requires the plaintiff to prove two additional elements: what are they?
• Falsity
o In cases where P is constitutionally required to prove some type of fault, P has the burden of proving falsity.
• Fault
o Type of fault that a P must prove depends on the P’s status
50
MD distinction for elements of defamation.
Falsity and Fault must be proved for all defamation actions
51
Who may sue for defamation?
Anyone who is deemed to be a living person
52
Group Defamation Rules:
o Small Group:
• Each member may establish that the statement is of and concerning him by alleging that he is a group member..
o Large Group:
• NO MEMBER can prove that the statement is of and concerning him.
o Some members of a small group:
• If the statement refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to plaintiff.
53
What is libel?
• Written or printed publication of defamatory language (Radio and TV broadcasts are libel)
54
GR for libel damages:
No need to prove special damages and general damages are presumed.
55
MD Distinction for libel damages:
All libels are actionable without pleading special damages. However, a P must plead actual injury.
56
What is slander?
• Slander is spoken defamation
57
Slander damages
• Plaintiff must prove special damages, unless defamation falls within slander per se categories (defamatory statements that):
(1) Adversely reflect on one’s conduct in a business or profession;
(2) One has a loathsome disease
(3) One is or was guilty of a crime involving moral turpitude (most common law crimes); or
A woman is unchaste (any serious misconduct)
58
MD Distinction for slander damages:
MD does not permit presumed damages for slander per se. Plaintiff must allege actual injury.
59
For defamation, Public officials and public figures must prove
actual malice plus elements of defamation
60
Actual Malice Definition
Knowledge that the statement was false, or
| Reckless disregard as to whether it was false.
61
For defamation, Private Citizensmust prove:
Must prove ONLY negligence plus elements of defamation
62
Defenses to defamation:
1. Truth
2. Consent
3. Absolute Privilege
4. Qualified Privilege
63
Absolute Privilege
Immunizes defendant from liability no matter how wrongful or malicious the communication may be
64
Who may use the Absolute Privilege?
Defendant may be protected by an absolute privilege for the following:
• Judicial Proceedings: Remarks made during judicial proceedings,
• Legislative Proceedings: Legislators during proceedings from the floor on a committee.
• Executive Branch: Principal officers of the executive branch that make defamatory statements in the scope of your job.
65
Qualified Privilege
o Immunizes defendant from liability if:
• Statement is made in good faith or
• Protects a person’s interest in some way or
• Statement fulfills legal duty
66
Qualified Privilege may be lost if:
• (1) The statement is not within the scope of the privilege, or
• (2) it is shown that the speaker acted with actual malice.
Defendant bears the burden of proving that a privilege exists.
67
Four types of Invasion of privacy wrongs
1. Appropriation of Plaintiff’s Picture or Name
2. Intrusion on Plaintiff’s Affairs or Seclusion
3. Publication of Facts Placing Plaintiff in False Light
4. Public Disclosure of private Facts about Plaintiff
68
Defenses to Invasion of privacy
Consent, defamation privileges. Truth is not a good defense, good faith, lack of malice, or inadvertence.
69
Right to Privacy Miscellaneous Rules
Personal right and does not extend to members of a family, does not survive the death of the Plaintiff, and is not assignable. The right of privacy is not applicable to corporations.
70
Negligence elements:
* Duty: duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
* Breach: breach of that duty by the defendant
* Causation: breach is the actual and proximate cause of plaintiff’s injury; and
* Damages:
71
A duty of care is owed to all:
foreseeable plaintiffs
72
Two Views for Foreseeable / Unforeseeable Plaintiffs
o Cardozo View (Majority):
• Unintended plaintiff/ unforeseeable P’s may recover if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances→ She was located in the foreseeable zone of danger.
o Andres View:
• Unintended plaintiff / unforeseeable P’s may establish the existence of a duty extending from defendant to her by showing that defendant has breached a duty owed to the foreseeable Plaintiff.
73
Specific Situations Exceptions for duty:
Rescuers:
• Danger invites rescue: Once you cause the accident you should foresee that rescuers will gravitate to the scene. If they get hurt then they will be seen as foreseeable.
74
GR for standard of care:
You should exercise the same amount or degree of care as would be exercised by a reasonable person acting under similar circumstances.
o Objective standard
75
Exception to the GR of standard of care:
* Superior knowledge or skill→If D has superior skill or knowledge→ a reasonable prudent person with superior skill or knowledge.
* Physical Characteristics: Blind→ reasonably prudent blind person
76
Standard of care for professionals:
o Required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Owe the care of an average member of that same profession
77
MD distinction for medical malpractice claim:
Before filing a Medical malpractice claim you have to accompany complaint with an expert certificate…get claim evaluated by expert
78
Doctor's duty to disclose:
• Doctor has a duty to disclose the risks of treatment to enable a patient to give informed consent.
Doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.
79
Child standard of care:
o Children under the age of 5 cannot be held negligent
o Over the age of 5 are to exercise the care of a hypothetical child of similar age, education, intelligence, and experience. SUBJECTIVE STANDARD
80
Exception to the child standard of care:
Children engaged in adult activities may be required to conform to an “adult” standard of care.
81
Duty owed to Unknown/Undiscovered Trespasser:
No duty is owed
82
Duty owed to Discovered or Anticipated Trespasser (Known trespasser):
If there has been past trespassing you should be on notice – “people frequently take a shortcut”
*(LIMITED DUTY) Duty to protect from conditions that meet a four part test:
• (1) artificial condition : built by human beings
• (2) condition must be highly dangerous
• (3) hidden or concealed from the trespasser/ trespasser cannot appreciate the danger.
• (4) Condition must be one that owner knew about/ owner has prior knowledge of condition.
(Known, man-made, death traps)
83
Duty owed to Licensee:
enter with permission of owner (express or implied) ex: social guest, people who come to your front door (girl scouts, religious, politicians, etc)
o Must protect licensee from hazards on the land that meet a two part test:
• (1) Condition must be concealed from the licensee
• (2) Owner must have prior knowledge of the condition
Artificial and Natural Conditions
(All known traps on the land)
84
Duty owed to Invitees:
Confer economic benefit or land is open to the public (business customer)
o Must protect invitee from hazards on the land that meet a two part test:
• (1) Conditions that are concealed from the invitee
• (2) Owner knew about of it in advance OR could have discovered through a reasonable inspection.
(all reasonably knowable traps)
85
MD distinction/addition to licensee duty:
o Bare Licensee: Licensee’s who are not social guests (girl scout, religious groups, politicians, hunters on your land, etc.)
• Treated as known or anticipated trespassers
86
Duty owed to trespassing children:
o Reasonable Prudence for artificial conditions (duty to warn or make safe if foreseeable risk to child outweighs expense of eliminating danger)
o Natural Conditions: same as artificial but balancing test is likely to be met
87
Attractive Nuisance:
• To establish this, Plaintiff must show:
(1) A dangerous condition on the land that the owner is or should be aware of;
(2) the owner knows or should know children frequent the vicinity of the condition
(3) the condition is likely to cause injury
(4) the expense in remedying the situation is slight compared with the magnitude of the risk.
88
MD distinction to attractive nuisance doctrine:
does not recognize attractive nuisance doctrine.
89
What is the GR for the use of criminal statutes/Negligence per se
```
A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines) may replace the more general common law duty of care if:
o (1) Plaintiff can demonstrate that he is a member of the class of person’s that the statute protects.
o (2) the injury is of the class of risks that the statute seeks to prevent
```
90
Exceptions to GR for he use of criminal statutes/Negligence per se
o Excuse for Violation: statutory compliance was more dangerous then violation.
o Statutory compliance would have been impossible- person has a heart attack
91
MD distinction for the use of criminal statutes/ statutory borrowing:
Statutory borrowing does not result in a new standard of care. Statutory violation is not negligence per se.
92
GR for the affirmative duty to act:
one does not have a legal duty to act/rescue
93
Exceptions to the affirmative duty to act:
o Pre-existing Relationship: Innkeeper/guest, common carrier/passenger, business/invitee
o Defendant caused the peril:
o Assumption of Duty by Acting: will be liable if you mess up/ must exercise reasonable care.
94
MD distinction for the affirmative duty to act:
Good Samaritan Statutes:
| Applies only to Doctors, nurses, firefighters, EMT’s, police officers, and members of the ski patrol.
95
What is Negligent Infliction of Emotional Distress?
• Negligent defendant who does not cause any physical trauma to the plaintiff but leave the P upset.
96
What are the different approaches to NIED?
o (1) Near miss cases: Although the defendant did not injure the plaintiff, he almost did. “Zone of physical danger as a result of the negligence.)
• →Must then have subsequent physical manifestations from the distress
o (2) Bystander Claim: Defendant hurts or kills person and Plaintiff is upset that person got hurt.
• 2 Requirements:
P must be a close family member of X (victim) –spouse, parents, child
Must see it as it happens
• Bystander may recover in most jurisdictions only if the defendant’s conduct resulted in some physical injury from the distress; emotional distress is not enough
o (3) Relationship cases: commercial or business relationship where distress is a highly foreseeable consequence to incompetence.
97
What is Res Ipsa Loquitor
Lacks information about what the defendant did wrong
o Requires Plaintiff to show that:
• (1) The accident causing the injury is a type that would not normally occur unless someone was negligent, and
• (2) the negligence is attributable to defendant
May be shown by evidence that the instrumentality causing the injury was in the exclusive control of defendant
98
What is causation in fact?
Requirement that P show a linkage between the breach and injury suffered
**Does not apply when there are multiple defendant’s
99
What is proximate cause?
Defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. (foreseeable test)
100
MD distinction for damages:
MD has a cap for Pain and suffering, not medical and lost wages (sky is the limit)
101
MBE defenses to negligence:
Comparative negligence: Plaintiff carelessness reduces their recovery but they still get something.
Pure Comparative Negligence: allow recovery no matter how great Plaintiff’s negligence was.
*Does not recognize last clear chance doctrine.
102
MD defenses to Negligence:
1. Contributory Negligence:• Any Plaintiff carelessness contributing to the accident becomes an absolute bar to recovery.
• Exception: Last Clear Chance Doctrine:
o Permits plaintiff to recover despite her contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is also liable for negligence.
2. Implied Assumption of the risk:
• Conduct of the plaintiff communicates a message equivalent to “I will take my chances”
103
Strict Liability for animals
1. Domestic Animals
• No strict liability
• However, notice of a vicious propensity creates strict liability
Deemed to know if dog has previously bitten someone
**No strict liability for TRESPASSER!**
2. Wild Animals:
• Strict liability for all of them
• Does not matter how many safety precautions are set forth
104
Strict Liability for • ABNORMALLY DANGEROUS ACTIVITY
o Any activity that meets a two part test:
• (1) Must be one that creates a foreseeable risk of serious harm even when reasonable care is exercised.
• (2) Activity must be unusual or uncommon in the area in which it is conducted…it is out of context
105
Defective Products:
1. Defendant must be a merchant
2. Product must be defective
3. Plaintiff must be making a foreseeable use of the product
106
Defenses to strict liability:
Comparative Responsibility: Any plaintiff misconduct or stupidity results in assignment of percentages and reduction in recovery.
107
MD Distinction to defenses to strict liability
If there is behavior equivalent to assumption to the risk it will bar all recovery
108
What is nuisance?
intangible interference with an owner’s or possessor’s ability to use or enjoy property.
109
Vicarious liability for employer/employee
yes if in scope of employment- Employee acting to advance the employers interest by an intentional tort
**intentional torts: usually outside of the scope**(However, if employer authorizes force then they will be liable for intentional torts)
110
Independent Contractors and vicarious liability
Employer not liable, however If a business hires IC and they hurt a customer then there is vicarious liability.
111
Car owner/ driver vicarious liability
Not vicariously liable for torts of driver UNLESS driver is doing an errand for the owner because they would be considered an agent.
112
MD distinction for Car owner/ driver vicarious liability
Presumption of agency when someone is driving your car
113
Parent/child vicarious liability
Parents are not vicariously liable for torts of their children
114
MD distinction for Parent/child vicarious liability
Parents are liable for intentional torts up to 10k
115
Joint and Several Liability
Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable. If the injury is divisible, each defendant is liable for only the identifiable portion.
116
Modern View of comparative contribution:
Jury assigns a percentage number to every defendant in the case and the out of pocket defendant gets reimbursed from all defendants.
117
MD distinction for comparative contribution:
Equal fractional shares: If it is three people then 1/3 each
118
Two cases where out of pocket defendant gets all money back (indemnification)
o Vicariously liable party gets indemnification
| o Retailer in a products case may get all money back from the manufacturer
119
Loss of Consortium
• Any defense that may be asserted against the actual victim may be asserted against the spouse as well.
o Loss of services:
o Loss of society/companionship:
o Loss of sex:
