Torts Flashcards
Prima Facie Case
I. Act
II. Intent (i.e., substantial certainty)
III. Causation
Transferred Intent
Applicable to Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattels
Battery
1) Harmful or Offensive (unpermitted) Contact
2) With Plaintiff’s Person
Assault
1) Apprehension (reasonable)
2) of an Immediate Battery
Words alone are not enough. Words + Conduct.
False Imprisonment
1) Sufficient Act of Restraint
- threats/inaction are both enough
- time period is irrelevant
- P’s knowledge required)
2) Bounded Area
- not bounded if P knows of a reasonable means of escape
Shoplifting Detentions
1) Reasonable belief as to theft
2) Reasonable manner of detention
3) Detention for a reasonable period of time
Intentional Infliction of Emotional Distress
1) Outrageous Conduct
- Must be extreme
- Or: continuous, type of P, type of D
2) Damages
- Physical injury or clear proof of substantial emotional distress
Trespass to Land
1) Act of physical invasion by D
- Requires some physical object
2) of P’s land
- Includes reasonable distance above and below surface
Trespass to Chattels/Conversion
Chattels: Some damage, get cost of repair.
Conversion: A lot of damage, get full market value
Consent Defense
1) Did P have capacity to consent?
2) Was consent expressly given or implied?
- Express? Look for mistake, fraud, or coercion.
- Apparent Implied? Custom/Usage or P’s conduct
- Implied by Law? E.g., emergencies
3) Did D stay within the boundaries of consent?
Defense Privileges (e.g., self defense)
1) Timing Requirement
- Tort is now occurring, or just about to occur
2) Defense Test
- Reasonable belief that tort is being committed
3) Did D use proper amount of force to defend?
- Reasonable force (if self or others)
- Reasonable force, but never force calculated to bring about serious bodily injury (if property)
Necessity
1) Property tort?
2) Public or private necessity?
- Public: Benefits many, absolute, unlimited privilege. No liability
- Private: Benefits few, limited privilege. Liable for actual damages.
Necessity prevails over defense of property.
Defamation
1) Defamatory statement about P
- Injures P’s reputation
- Reasonably understood to be about P
2) Publication
- Communication to a third person
3) Damage to P’s reputation
- Libel: damage is presumed
- Slander: P must prove special (money) damages
- Slander per se: presumed (business, crime involving moral turpitude, loathsome disease, unchastity to woman)
Public concern? Add two more steps.
4) Falsity (1st Am.): BoP of truth shifts to P
5) Fault (1st Am.)
- Public figure: intentional or reckless
- Private figure: negligent
Defenses
- Consent
- Truth (unless 1st Am. case)
- Privileges
- Absolute (btw spouses, 3 gov’t branches)
- Qualified: lost if abused
Invasion of Right to Privacy
1) Appropriation By D of P’s Name or Picture for D’s Commercial Advantage
2) Intrusion by D into P’s Privacy or Seclusion
- Highly offensive to a reasonable person?
3) Publication of Facts Placing P in “False Light”
- Highly offensive to a reasonable person?
- Wide dissemination?
4) Publication of Private Facts about P
- Highly offensive to a reasonable person?
- Wide dissemination?
Defenses
- Consent
- Absolute & Qualified Privileges (#s 3 and 4)
Misrepresentation
Intentional
1) Affirmative misrepresentation of fact
2) Scienter
3) Intent to Induce Reliance
4) Justifiable Reliance
5) Causation/Damages
Negligent
1) Negligence (instead of scienter)
2) Must be commercial setting
Interference with Business Relations
1) Valid relationship btw. P and 3rd Person
- Existing or prospective
2) D’s knowledge of relationship
3) Intentional interference
4) Damage
Defenses – Privileges
- Think about: D’s persuasion conduct, relationship btw. D and P, relationship btw. D and 3rd party
Negligence
1) Duty
2) Breach
3) Causation
4) Damages
Duty
Foreseeable P
- Unforeseeable = not within zone of danger
Standards of Care
Reasonable Person Standard of Care
Def: Reasonable Under the Circumstances
- Physical characteristics taken into account
Children Standard of Care
Def: Child of like age, intelligence, and experience
Professionals Standard of Care
Def: A reasonable professional in the same or similar communities
Common Carrier and Innkeepers Standard of Care
Def: Liability for even slight negligence
Owner-Occupier Standards of Care
1) Is D an O/O, or in privity with one?
2) Did injury occur on or off the land?
3) Undiscovered trespasser? No duty.
4) If not, was it an activity or dangerous condition?
- Activity: Ordinary negligence. Reasonable person standard.
- Dangerous Condition: P’s status is relevant.
5) If Dangerous condition, D’s responsibility depends on P’s status.
- Discovered Trespasser
- Licensee
- Invitee
Statutory Standards of Care/Negligence Per Se
1) P must fall within protected class
2) Statute must be designed to prevent this kind of harm
Exceptions: Compliance is more dangerous/impossible
Negligent Infliction of Emotional Distress
1) P must suffer physical injury
2) P must be within the target zone of D’s negligent conduct (includes relative perceiving the injury)
Affirmative Duty to Act
No affirmative duty Unless: 1) Special relationship between parties 2) Duty to control third persons 3) Assumption of duty by acting 4) P's peril due to D's negligence
Breach
Negligent conduct; or Res Ipsa Loquitur - Inference of negligence - Negligence attributable to D - P not contributorily negligent
Actual Causation
“But For” Test
“Substantial Factor” Test
“Alternative Causes” Test (shift BoP to Ds)
Proximate Cause
If result is unforeseeable –> not liable
If result is foreseeable –> liable
- unless intervening force was an unforeseeable intentional tort or crime
Contributory Negligence
Two alternatives:
1) “Knowing” contributory negligence and implied assumption of the risk
- Exceptions: No other alternative, emergency
2) “Unknowing” contributory negligence
Also: implied assumption of risk, last clear chance, D’s reckless conduct doesn’t work,
Comparative Negligence
Partial: no recovery if one was more negligent than the other
Pure: recovery no matter what
Also: no implied assumption of risk, no last clear chance, but D’s reckless conduct reduces
Strict Liability
Types: Animals, Abnormally dangerous activities, Products liability
Contributory negligence state:
- Knowing? P gets nothing.
- Unknowing? P gets everything.
Comparative negligence state:
- P recovers what they would under negligence rules
Animals
Domestic pets? Second instance
Animals with inherent dangerous propensities? Strict liability at the outset
Abnormally Dangerous Activities
If the harm is what you would expect from the activity.
Products Liability
Any commercial supplier, meeting 2 reqs
1) Defect causing injury existed when product left D’s control
2) Negligence or Strict liability theory
Negligence
- Focus on D’s conduct
- P must be in foreseeable zone of risk
- D is usually manufacturer, sometimes retailer/wholesaler
Strict liability
- Unreasonably dangerous condition
- P is within foreseeable zone of risk
- D can be anyone
Nuisance
Conduct that is objectionable to an average person.
Private:
- substantial, unreasonable interference with one’s use and enjoyment of land
- P must have possession or right of immediate possession
Public:
- act which unreasonably interferes with health, safety, or property rights of the community
- Private person may recover only if suffered unique damage
Vicarious Liability
Respondeat Superior - Torts committed by employees within the scope of employment.
Auto owners/drivers - generally not liable, except:
- Family car doctrine
- Permissive use doctrine
Parents/children - generally not liable, except for intentional torts
Indemnification
3 possible grounds
1) Other D is a lot more responsible
2) Vicarious liability
3) Product cases (e.g., retailer from manufacturer)
