Torts Flashcards
Intent required for intentional torts
The defendant has the purpose or desire to cause the consequences of act or knows with substantial certainty that the result would occur from the act
What are the intentional torts
Battery Assault False Imprisonment Intentional Infliction of Emotional Distress Trespass to Land Trespass to Chattels Conversion
Intentional torts
When a defendant commits a voluntary act with the intent to cause harm to the plaintiff and injury occurs and no privilege or defense exists
Elements
- Voluntary Act
- Intent
- Causation
- Harm
- Lack of privilege or defense
Intent for intentional torts: children and the mentally impaired
A majority of courts have held that both children and those who are mentally incompetent can be held liable for intentional torts if they either act with a purpose or know the consequences of their acts with a substantial certainty
Torts: transferred intent
Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits either a different intentional tort against that person, the intended tort against a different person, or a different intentional tort against a different person
The intent to commit one intentional tort suffices to satisfy the intent requirement for another intentional tort
Transferred intent applies for what types of intentional torts
Transferred intent applies only when the intended tort and the resulting tort are among the following: battery, assault, false imprisonment, and trespass to chattels
Battery
A defendant is liable for battery when he act with the intent to and does cause harmful or offensive contact to a victim’s person or property
Elements
- Volitional Act
- Intent to cause contact that is harmful or offensive
- Causation of harmful or offensive contact
The plaintiff does not need to be aware of the contact when it occurs to recover
Property refers to something that is closely connected to the plaintiff, such as clothing, a pet on a leash, or a bicycle plaintiff is riding
Battery: when is contact harmful
Contact is harmful if it causes injury, physical impairment, pain, or illness
Battery: when is contact offensive
Contact is offensive when a person of ordinary sensibilities wold find the contact offensive
Hypersensitivity is not a factor unless the defendant was aware that the victim is hypersensitive but proceeds to act nonetheless in which the defendant may be liable
Battery: damages
There is not actual proof of harm requirement for battery and the plaintiff may receive nominal damages even though no actual damage occurred
Many states allow for recovery of punitive damages if the defendant acted outrageously or with malice
Battery: eggshell rule doctrine
The defendant is not required to foresee the extent of damages in order to be held liable for damages
Assault
An act that is intended to and does cause reasonable apprehension of an immediate battery
Elements
- Volitional Act
- Intent to cause apprehension of immediate battery
- Causation of immediate battery
Apprehension = awareness not fear
The ability to batter is irrelevant
Words alone are not enough (need words plus conduct)
Assault: damages
No proof of damages is required for assault. The victim can recover nominal damages and, in appropriate cases, punitive damages
If the plaintiff suffers damages from physical harm, such as a heart attack, then he may recover these as well
Intentional infliction of emotional distress
An intentional or reckless act by the defendant that is extreme and outrageous that causes the plaintiff sever mental distress
Elements
- Intentional or reckless act
- Extreme and outrageous conduct
- Plaintiff suffers severe mental distress
Intentional infliction of emotional distress: what is extreme or outrageous conduct
Conduct is extreme or outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society
Based on a reasonable person standard
Intentional Infliction of emotional distress: When is a court more likely to find a defendant’s abusive language and conduct extreme and outrageous
If the defendant is in a position of authority or influence over the plaintiff, such as a police officer, employer, or school official, or traditionally an innkeeper or an employee of a common carrier; or the plaintiff is a member of a group with a known heightened sensitivity, such as young children, pregnant women, or elderly person)
Defendant in a position of authority
Plaintiff a member of a group with a known heightened sensitivity
Defendant’s liability for IIED when the plaintiff witnesses extreme and outragous conduct towards a third party
The defendant is liable if he intentionally or recklessly causes severe emotional distress to a member of the victim’s immediate family who is present at the time of the defendant’s conduct whether or not such distress results in bodily injury if the defendant knew the person was present or any other bystander who is present at the time of the conduct if the distress results in bodily injury and the defendant knew the bystander was present
Two types of people could be liable to
Immediate family members
-Present at time of event in which immediate family member is victim
Defendant knew the person was present
_Does not have to suffer a bodily injury from distress
Bystander
0must be present
-Defendant knew bystander was present
-Suffered a bodily injury from the distress
IIED: damages
The plaintiff must prove severe emotional distress beyond what a reasonable person could endure and in many cases, the very extreme and outrageous character of the defendant’s conduct itself provides evidence that the plaintiff experienced sever mental distress
If the plaintiff is hypersensitive, then there is no liability unless the defendant knew of the plaintiff’s heightened sensitivity
No need to prove physical injury except in the case of a bystander recovery when the victim who experienced the extreme and outrageous conduct is not an immediate family member
False Imprisonment
An act that is intended to and does confine or restrain to a bounded area, a plaintiff against his/her will and the plaintiff knows of or is injured by the confinement
Elements
- Volitional Act
- Plaintiff confinement or restraint in a bounded area
- Against Plaintiff’s will
- Plaintiff was aware of confinement or was injured by it
Infants or incompetents who are incapable of being aware may still recover for false imprisonment
Plaintiff has no duty to resist if defendant uses/makes credible threat of physical force
What is confinement for false imprisonmnet
- physical barriers
- physical force
- direct or indirect threats to to the plaintiff, a third party, or the plaintiff’s property
- by the invalid assertion of legal authority, duress, or the failure to provide a reasonable means of safe escape
- failing to release the plaintiff where the defendant had a legl duty to do so
Plaintiff is not confined if there is a reasonable means of escape of which the plaintiff is actually aware
How long does a plaintff have to be confined for a false imprisonment claim
There is no duration element for false imprisonment but a longer duration may affect the amount of damages
Shopkeeper’s privilege
A shopkeeper’s reasonable detention of a suspected shoplifter is not an invalid use of authority and hence is not a false imprisonment
Has to be reasonable in both duration and manner
Requisite intent for false imprisonment
The requisite intent for false imprisonment is met if the defendant desires to confine or restrain the plaintiff in a bounded area or the defendant knows that such confinement substantially certain to occur
What are the defenses to intentional torts
- Privilege
- Consent
- Self Defense
- Defense of others
- Necessity
- Authority
Intentional tort defense: consetn
If a plaintiff consented to the defendant’s act that constituted an intentional tort, the the defendant is not liable
Consent must be effective and defendant must not exceed the scope of consent
Intentional tort defense: what are the types of consent
- Express consent is where the plaintiff affirmatively communicates permission to the defendant
- Implied consent is where a reasonable person would interpret plaintiff’s conduct as evidencing permission
- Consent by matter of law is when the plaintiff is unable to consent and emergency action is necessary to prevent death or serious injury, a reasonable person would consent in the circumstances, and there is no reason to believe the plaintiff would not consent
Intentional torts: what are the defenses to consent as a defese
- Mistake
- Fraud
- Duress
- Incapacity
- Criminal Statute
Intentonal torts: defense to consent: mistake
Consent by mistake is valid unless the defendant caused the mistake or knew of it and took advantage of it
Intentional torts: defense to consent: fraud
Consent induced by raud is invalid if it goes to an essential matter but it is valid if the fraud that induced the consent goes only to a collateral matter
Intentional torts: defense to cosnet: duress
Consent given while under duress (physical force or threats) is valid but the treat must be a present action, not of future actions
Intentional torts: defense to consent: incapacity
Youth, intoxication, and incompetence each may undermine the validity of one’s consent
Intentional torts defense: self defense
A person may use reasonable force for protection against injury when the person reasonably believes he is in immediate danger
Reasonable mistakes allowed
Retreat is not necessary
Self Defense is not available to aggressor unless other party uses deadly force and the aggressor only used non-deadly force
Defendant cannot assert self defense when the plaintiff’s threat is not about to happen, has been averted, or has ended
Intentional tort defense: defense of others
If the plaintiff is attacking a third party, the defendant is entitled to defend the third party to the same extent that the third party would be entitled to defend himself agains the plaintiff
As long as the belief is reasonable, the defendant is not liable even if he was mistaken in needing to defend the third party
Intentional torts defense: defense of property
A defendant is allowed to use reasonable force to prevent a plaintiff from committing a tort against the defendant’s property but the force used must be no greater than necessary to prevent threatened harm
Defendant must first demand that the plaintiff stop the conduct unless doing so would be futile or dangerous
Cannot use deadly force
A defendant may use reasonable force to recover personal property tortiously dispossessed by the plaintiff
Mistake is not allowed
Use of force is not allowed to recover wrongfully dispossessed land
Intentional torts defense: necessity
A defendant is permitted to injure a plaintiff’s property if it is reasonably necessary to avoid a substantially greater harm to the pubic, the defendant, or the defendant’s property
Objective standard: would a reasonable person use force in defendant’s place
Mistake is okay as long as the defendant reasonably believes action is necessary
If protecting the public interest, defendant’s actions are only justified if the threatened harm is severe
In most jurisdictions, defendant is still liable for damages to plaintiff’s property if defendant acts out of private necessity
If acting for public necessity, no liability for damages to the plaintiff’s property
Intentional torts: privelge
Under certain circumstances, a defendant may not be liable for his conduct even though he ordinarily would be due to a privilege
May exist where the person affected by the defendant’s conduct gave consent, some important personal or public interest will be protected by the defendant’s ordinarily prohibited conduct and this interest justifies the harm caused or threatened by the defendant’s conduct, and the defendant must act freely in order to perform an essential function
Defendant has the burden of proving privilege and that the privilege was exercised reasonably
Intentional torts defense: authority: arrest
With Warrant: a PO is not liable even if reasonable mistake made about identity
Prevention of a felony in presence: Both PO and Private Citizens (PC) are not liable even if reasonable mistake on belief of felony in presence
Arrest of person who committed a felony: No liability for PO or PC but a PC is liable if there was a mistake
Arrest to stop a breach of peace: No liability for a PO or PC for a warrantless arrest even if there was a mistake
Arrest for misdemeanor: the majority view is that there is liability for a warrantless arrest but the minority view is that there is no liability for a misdemeanor committed in the presence of a PO
May enter onto an arrestee’s land to make arrest
Intentional torts defense: authoirty: discipline
A parent may use reasonable force or impose reasonable confinement as is necessary to discipline a child, taking into consideration the age of the child and the gravity of the behavior
An educator has the same privilege unless the parent places restrictions on that privilege
Trespass to chattel
An act where the defendant intends to and does interfere with the plaintiff’s chattel, causing harm
Elements
- Act
- Defendant intended to and does interfere with a plaintiff’s chattel
- Harm results (need actual damages)
Mistake is not a defense
Intent element is satisfied when the defendant performs the physical act
Chattel: tangible personal property and intangible property that has a physical representation
Plaintiff must have been in actual possession or have right to immediate possession
Need either dispossession or intermeddling for this tort action
-dispossession: direct interference with a possession
-intermeddling: does not directly affect plaintiff’s possession
Tresspass to chattels: damages
In a case of dispossession, a plaintiff may recover for the actual damages caused by the interference and the loss of use
In circumstances of use or intermeddling, the plaintiff may recover only when there are actual damages
Plaintiff may be entitled to the diminution in value or the cost of repair
Conversion
A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel
Mistake is not a defense
Defendant interferes with the plaintiff’s chattels by exercising dominion or control over it
What factors are considered in distinguisghing trspass to chattels and conversion
- The duration and extent of the interference
- the defendant’s intent to assert a right inconsistent with the rightful possessor
- the defendant’s good faith
- the expense or inconvenience to the plaintiff
- the extent of harm to the chattel
The greater the degree of these factors, the greater a likelihood that a conversion has occurred
Intentional torts: conversion: damages
Plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion
Trespass to land
Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another
The defendant need only have the intent to enter the land, or cause a physical invasion.
Does not need to know that the land belongs to another
Mistake of fact is not a defense
May be committed on, above, or below the surface of the plaintiff’s land
Anyone in actual or constructive possession can bring an action
Private Nuisance
A thing or activity that substantially and unreasonably interferes with the plaintiff’s use and enjoyment of the plaintiff’s land
Private Nuisance: what is a substantial interference
One that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community
Private nuisance: what is an unreasonable interference
the gravity of the plaintiff’s harm outweighs the utility of the defendant’s conduct
who may bring a private nuisance claim
anyone with possessory rights in real property
How to distinguish trespass from private nuisance
trespass requires a physical invasion of the plaintiff’s property but nuisance does not but physical invasion may constitute a nuisance
Private nuisance requires a substantial interference with the plaintiff’s use and enjoyment of plaintiff’s property and trespass does not
Is obstruction to sunlight a private nuisance
No
defenses to a private nuisance claim
Have to look at whether the defendant’s conduct is intentional, negligent, or abnormally dangerous to determine which defenses might apply
Private nuisance defense: regulatory compliance
The fact that a defendant’s behavior is in compliance with a statute, local ordinance, or administrative regulation is not a complete defense to a nuisance action but it may be admitted as evidence as to whether the interference with the plaintiff’s use and enjoyment of her land is unreasonable
Nuisance defense: coming to the nuisance
The fact that a plaintiff came to the nuisance does not entitled the defendant to judgement as a matter of law, but it is evidence that the jury may consider
Public nuisance
A public nuisance is when there is an unreasonable interference with the health, safety, and morals of a community
Typically brought by a government actor such as the Attorney General
How can an individual recover under a public nuisance claim
For an individual to recover under a public nuisance claim, a plaintiff must have sufficient harm of a kind different from that suffered by other members of the public
What are the elements of negligence
Duty breach Cause-in-fact Proximate cause harm
Negligence: traditional approach to standard of care
what a reasonably prudent person under the circumstances would or would not do
Negligence: modern approach to standard of care
To weigh the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may result, and the burden of precautions to eliminate or reduce the risk of harm to determine if a defendant failed to exercise reasonable care under all of the circumstances
General duty rule
a duty of care is owed to all foreseeable persons who may be injured by the defendant’s failure to follow a reasonable standard of care
an actor has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm
Who is a foreseeable plaintiff under the majority (Cardozo) rule
Only plaintiffs who are within the zone of foreseeable harm
Who is a foreseeable plaintiff under the minority (Andrew) view
If the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone, foreseeable or not, harmed as a result of his breach
May still not be able to recover if the injury is not closely enough connected to the breach (proximate cause)
Foreseeable plaintiff: rescuers
A person who comes to the aid of another is a foreseeable plaintiff so if the defendant negligently puts either the rescued person or the rescuer in danger, then he is liable for the rescuers’s injuries
Comparative responsibility is available to reduce the rescuers recovery if the rescuer efforts was unreasonable
Foreseeable plaintiff: firefighter’s rule
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from the risk inherent in the job
Foreseeable plaintiff: intended beneficiaries
A defendant is liable to a third party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the defendant could foresee the harm of completing the transaction
Is there an affirmative duty to act
Generally, there is no affirmative duty to ac except in a few notable exceptions
What are the circumstances in which there is an affirmative duty to act
Assumption of duty Placing another in peril By contract By authority By relationship
Affirmative duty to act exception: assumption of duty
A person who voluntarily aids or rescues another is liable for injury caused by a failure to act with reasonable ordinary care in the performance of that aid or rescue
Good Samaritan statutes: some states have statutes that exempt medical professionals from liability or ordinary negligence but not from gross negligence
Affirmative duty to act exception: placing another in peril
A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid
Affirmative duty to act exception: by contract
There is a duty to perform contractual obligations with due care
Affirmative duty to act exception: by authority
One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control and this duty is generally imposed upon the defendant when the defendant knows or should know that the third person is apt to commit the injuring act
Affirmative duty to act exception: by relationship
A defendant with a unique relationship to a plaintiff, such as business proprietor-patron, common carrier-passenger, employer-employee, or parent-child, may have a duty to aid or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties
Reasonably prudent person: mental and emotional characteristics
A mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge
A defendant who possesses special skills or knowledge is held to a higher standard so she must exercise her superior competence with reasonable attention and care
Reasonable prudent person: intoxication
Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary
Reasonably prudent person: physical characteristics
The defendant’s particular physical characteristics are taken into account in determining the reasonableness of the defendant’s behavior
A person with a physical disability will be compared to a reasonably careful person with the same disability
Reasonably prudent person: children
The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience, however, a child engaged in an adult activity is held to the same standard as an adult
More subjective then than the adult standard because children are unable to appreciate the same risks as an adult
Children under the age of five are generally found incapable of negligent conduct
Cost-benefit analysis factors to consider in determining whether the defendant acted negligently
the foreseeable likelihood that the defendant’s conduct would cause harm
the foreseeable severity of any resulting harm
Defendant’s burden in avoiding the harm
Standard of care: custom
Evidence of custom in a community or industry is admissible as evidence to establish the proper standard of care but it is not conclusive
Standard of care for professionals
A professional person is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community
Standard of care: physicians
Many jurisdictions have changed to a national standard to determine standard of care and ask did the physician conform her conduct to the customary practice of the average qualified practitioner
Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment
When is a physician not under an obligation to inform a patient of risks for informed consent
When the risk is a commonly known risk
When the patient is unconscious
When the patient waives or refuses the information
When the patient is incompetent but the physician must try and get informed consent from a guardian
When disclosure would be too harmful to the patient
Negligence per se
When there is a criminal or regulatory statute that imposes a specific duty for protection of others and the defendant neglects to perform that duty, then the defendant is liable to anyone in the class of people intended to be protected by the statute for any accidents or harms of the type the statute was intended to protect against and that was proximately caused by the defendant’s violation of the statute
Statute gives specific duty
Defendant neglects that duty
liable to anyone in class meant to be protected
for any accidents or harms intended to protect against
Harm was proximately caused by defendant’s violation `
What defenses are available for negligence per se
Compliance was impossible
An emergency justified the violation
The violations was reasonable under the circumstances
What circumstances would be reasonable under the reasonable circumstance defense for negligence per se
If the violation is reasonable in light of the defendant’s physical disability or incapacitation
If the defendant is a child
If the defendant exercises reasonable care in attempting to comply with the statute
If the statute imposes an obligation only under certain factual circumstances that are not usually present, and the defendant is not aware that these circumstances are present and further proves that his ignorance was reasonable
If the requirements of the statute were presented to the public in a confusing manner
Standard of care for common carriers
At common law, a common carrier was held to the highest standard of care consistent with the practicable operation of of the business and the majority of courts today still follow this rule
Standard of care for innkeepers
At common law, a majority of jurisdictions held an innkeeper to the highest standard of care consistent with he practicable operation of the business but today a majority of courts hold that an innkeeper is only liable for ordinary negligence
What is the standard of care for common carriers and innkeepers according to the Third Restatement
They must exercise reasonable care towards their passengers and guests and have an affirmative duty to act based on a special relationship
Standard of care for automobile drivers
They owe a duty of ordinary care to their guests as well as their passengers
In a minority of jurisdictions distinguish between guests and passengers by applying a guest statute which imposes only a duty to refrain from gross or wanton and willful misconduct with a guest in the car
who is a a trespasser
someone who enters or remains upon the land of another without consent or privilege to do so
what standard of care does a land possessor owe to a trespasser
A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct towards trespassers.
What duty do landowners owe to a discovered or anticipated trespassers
They owe a duty to warn or protect them from concealed, dangerous artificial conditions
They owe a duty to use reasonable care while conducting activities on their land, as well as to control the activities of third person on their property
what duty does a landowner owe to an undiscovered trespasser
They generally owe no duty, nor do they have a duty to inspect their property for evidence of trespassers but when a landowner should reasonably know that trespassers are consistently entering his land, the landowner owes a duty to the trespasser, regardless of the landowner’s actual knowledge, as if the trespasser were a licensee
When is a landowner liable for injuries to children trespassing on the land under the attractive nuisance doctrine
If an artificial condition exists in a place the owner knows or has reason to know that children are likely to trespass, the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and the land possessor fails to exercise reasonable care to protect children from harm
Who is an invitee
An invitee is a person who enters onto the defendant’s land at the defendant’s express or implied consent with a purpose relating to the defendant’s interests or activities
Classified as business or public invitees
Public invitee: someone invited to enter or remain on the land for the purposes for which the land is held open to the public
Business invitee: someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor
What duty does a landowner owe to an invitee
The duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them
If an invitee goes beyond the scope of invitation, the invitee is treated as a trespasser in areas beyond the scope of the invitation
Duty to invitees is non-delegable
Who is a licensee
Someone who enters the land of another with the express or implied permission of the land possessor or with a privilege
Social guests
Those whose presence is tolerated by the land possessor such as children that routinely cut across the land
Emergency personnel
What duty does a landowner owe to a licensee
a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or which should be obvious to her
Must exercise reasonable care in conducting activities on the land
No duty to inspect for dangers
Modern approach owe to invitees and licensees by landowner
Duty to exercise reasonable care under all circumstances to all land entrants except for trespassers
Land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land
Commercial land possessors also owe a duty to use reasonable care to prevent harm to the visitor posed by natural conditions
If a natural condition is known to the non-commercial land possessor or the risk is obvious then there is a duty to prevent harm from that natural condition
What liability does a landlord retain
The landlord remains liable for injuries to the tenant and others occurring in common areas, injuries occurring as a result of hidden dangers about which the landlord fails to warn the tenant, injuries occurring on premises leased for public use, injuries that occur as a result of a hazard caused by the landlord’s negligent repair, or injuries involving a hazard that the landlord has agreed to repair
What liability does a tenant have
The tenant is liable for injuries to third parties arising from dangerous conditions within the tenant’s control, regardless of whether the land possessor has liability
Duty owed to off-premises victims by landowner
Generally there is no duty to a person not on the premises who is harmed by a natural condition on the landowner’s land except with respect to trees in urban areas
Generally owes a duty to prevent an unreasonable risk of harm to person who are not on the premises from an artificial condition on the landowner’s land
Generally owes a duty of reasonable care to persons who are not on the premises with respect to activity conducted on the premises by the owner or by someone subject to the owner’s control
