Torts Flashcards
4 elements of Negligence
- Duty
- Breach
- Actual or Proximate Cause
- Damages
4 Intentional Torts to the Person
- Battery
- Assault
- False Imprisonment
- Intentional Infliction of Emotional Distress
Intentional Torts to Property
- Trespass to Land
- Trespass to chattels
- Conversion
Prima Facie Case for an Intentional Tort requires: 3 elements
- Act - a volitional movement by D
- Intent
- Causation
Substantial Certainty: Intent exists if:
D knows with SUBSTANTIAL CERTAINTY these consequences will result.
‘Incapacitated Defendant’s’ Who is liable for intentional torts?
Everyone. Kids, mental incompetents, drunks.
Transfered intent ‘intent’
Intent can be transferred from:
- person to person (A meant to hit B but instead struck C)
- From tort to tort. Jackass intended to just scare Bastard but instead hit him -> the tort is now battery instead of assault.
Causation: Exists if D’s conduct was:
a SUBSTANTIAL FACTOR in bringing about the results (injury)
Trespass to Land (2 elements)
- Act of physical invasion by D
2. Of P’s land.
Intentional Infliction of Emotional Distress (4 elements)
- Outrageous and extreme conduct
- Intent or recklesness
- Causation; and
- Damages - SEVERE emotional distress
How to make conduct OUTRAGEOUS (3 ways)
- It’s continuos, or
- Type of plaintiff (conduct does not change) e.g. kids, old people, pregnant women
- Type of defendant - common carriers/innkeepers upon guests OR passengers.
Battery (tort) (4 elements) Prima Facie Case:
- Harmful or offensive contact
- To the plaintiff’s person
- Intent, and
- Causation
Assault (tort) (4 elements)
- Affirmative act by D that is
- Done with the intent to place P in reasonable apprehension of
- an immediate battery OR imminent harmful or offensive contact to his person
- That actually causes P apprehension
Shopkeeper’s Exception for False Imprisonment (3)
- Reasonable belief as to theft
- Reasonable manner of detention
- Detention for reasonable period of time.
False Imprisonment (GA) (3 elements)
- Unlawful detention of another,
- For any length of time
- Whereby the person is deprived of his personal liberty
Fraud (Intentional misrepresentation) (5.5 elements)
Misrepresentation Intent to induce Scienter Reliance (actual and justifiable) Damage
(P must suffer ACTUAL PECUNIARY LOSS)
NOTE: NO DEFENSE.
Defamation prima facie case (4 elements) Common Law Elements:
- Defamatory statement,
- Of and concerning P
- Publication to third party
- Damages
Libel (2 elements)
- Written or printed publication,
2. of defamatory language
Slander
Spoken defamation where P must prove special (pecuniary) damages
Defamation public/official figures: In addition to common law elements P must prove: (2 elements)
- Falsity of the statement
2. Malice (knowledge of falsity or reckless disregard for the truth.)
Defamation private figure/public concern (6 elements)
- Defamatory statement, that is
- Of and concerning P, that is
- Published to a third party
- Damages
- at least negligence and
- actual injury in addition to falsity
A republisher will be held liable on:
the same general basis as a primary publisher.
Even if republisher states the source or makes it clear he does not believe defamation.
False light requires: (6 elements)
- Publication by D which,
- Places P in false light that,
- Would be highly offensive
- To a reasonable person.
- Causation
6 Damages
Damages for False light may be: (3 things)
- Injury to reputation
- Emotional distress, and/or
- Pecuniary harm
Conversion requires: (3 elements)
- Intent by D of an
- Act that interfers with P’s right of possession in chattels which is serious enough in nature to warrant that D pay full value of the chattel.
- Causation
Strict products liability requires: (6 elements)
- Commercial manufacturers
- Production or sale of a defective product
- Defect existed when product left D’s hands
- P made foreseeable use of the product
- Actual and proximate cause, and
- Damages
Punitive damages are awarded when:
D’s acts or omissions demonstrate malice, egregious fraud, oppression, or insult.
Defective design ‘feasible alternative’ test
Provides the product is defective if D could have removed the danger w/o serious adverse impact on the product’s utility or price.
Private nuisance
A substantial and unreasonable interference with another individual’s use and enjoyment of property.
Nuisance must be offensive, inconvenient, or annoying to an average person in the community.
Strict liability (PAW)
a. Product – unreasonably dangerous
b. Abnormally dangerous activities
c. Wild Animal
Intentional Torts ABC FITT (7)
- Assault
- Battery
- Conversion
- False Imprisonment
- Intentional infliction of emotional distress
- Trespass to Chattels
- Trespass to Land
Invasion of Privacy based on public disclosure of private facts requires dissemination of: (3 elements)
- factually accurate info that
- would normally be confidential, and
- the disclosure of which would be objectionable to a reasonable person
NOTE: Newsworthy disclosures are not actionable
Design defects:
P must usually show a reasonable alternative design, that a less dangerous modification was economically feasible. → If not economically feasible, the product was not defectively designed.
A defendant engaging in an abnormally dangerous activity may be liable only to:
foreseeable plaintiffs injured as a result of the dangerous propensity of the activity. This is the best statement of the scope of the duty owed.
Unreasonable Interference (nuisance)
the severity of the inflicted injury must outweigh the utility of defendant’s conduct.
The United States is still IMMUNE for 9 enumerated torts
AM FAB FILM
(i) assault;
(ii) battery;
(iii) false imprisonment;
(iv) false arrest;
(v) malicious prosecution;
(vi) abuse of process;
(vii) libel and slander;
(viii) misrepresentation and deceit; and
(ix) interference with contract rights
Discretionary Acts
is that which takes place at the planning or decisionmaking level.
Ministerial Acts
performed at the operational level of government.
Trespass to Chattels (3 elements)
(i) D’s act interferes with the P’s right of possession in the chattel;
(ii) Intent;
(iii) Causation
(No damages req’d in GA))
With regard to a trespass to chattels, intermeddling is defined specifically as:
conduct that directly damages a plaintiff’s chattel.
The P’s super sensitivities are not to be taken into account unless:
D knows about them in advance.
Children under the age of ___ are statutorily immune from all tort liability.
13
Apprehension should not be confused with:
fear or intimidation. (That goes to element of damage)
Assault: Apparent ability creates:
reasonable apprehension.
Assault: Immediacy: Words alone:
are not enough
Assault: Immediacy: Words coupled with ______ can be enough.
conduct
Assault: Immediacy: Sometimes words coupled with conduct can:
UNDO the conduct and any reasonable apprehension.
False Imprisonment: Sufficient Acts of Restraint: Threats are:
not enough.
False Imprisonment: Sufficient Acts of Restraint: Inaction is:
enough IF there was a previous understanding that D WOULD act.
False Imprisonment: Bounded Area: Mere _______ is not enough.
inconvenience.
False Imprisonment: Bounded Area: An area is not bounded if:
- there is a REASONABLE MEANS OF ESCAPE, that
2. P is AWARE
Shoplifting detention: By statute in GA:
- Shopkeepers may detain for a reasonable amount of time, upon
- Reasonable suspicion of shoplifting.
Damages for intentional infliction of emotional distress:
Proof of severe emotional distress is required to get damages.
Intentional infliction of emotional distress: Intent: Recklessness:
can suffice.
Intentional infliction of emotional distress: Intent: Transfer intent is:
normally unavailable. The conduct must be directed at P
Trespass of land: Acts of physical invasion: Propelling a physical object on to the property:
will suffice.
Trespass of land: Land includes:
the airspace above and the subsurface below so long as owner could reasonably use the space.
Defenses to intentional torts: P must have _______ to consent.
CAPACITY
Defenses to intentional torts: Consent: Capacity: Those who lack capacity include: (4 types)
- Children
- Mental impairment
- Forced or coerced into consent
- Fraud or mistake
Defenses to intentional torts: Implied consent:
Arises through custom and usage or through P’s own conduct.
Defenses to intentional torts: Self defense: A person is justified in using reasonable force to:
prevent what she REASONABLY BELIEVES to be an imminent threat of force against her.
Self defense: GA Distinction:
No duty to retreat when death or serious personal injury is threatened. This includes injuries to 3d persons.
Defense of others: A person may defend another person:
in the same manner and under the same conditions that the person attacked would be entitled to defend himself.
Defense of property:
A person may use reasonable force to defend his real or personal property
Defense of property: Shoplifter:
GA shopkeeper entitled to use reasonable force.
Necessity is only used in conjunction with:
intentional torts to property.
Defense of necessity: A person may interfere w/ real or personal property of another when: (2 things)
- it is reasonably and apparently necessary to avoid threatened injury from a natural or other force; and
- when threatened injury is substantially more serious than the invasion that is undertaken to avert it.
Public necessity:
unlimited privilege to protect a lot of people.
Private necessity:
a qualified privilege to protect a ltd number of people. (Actor must pay for damages caused)
Discipline: Generally allowed for such persons as:
parents or teachers. This includes corporal punishment of minors as long as it is not excessive.
Defamatory statement:
One that injures P reputation.
Defamation defense: Truth: Who bears the burden of proving the truth?
The D.
Publication:
Statement must be communicated to a third person.
Defamation of a group: In GA each member of the group must:
establish application of the language to himself.
Slander: When defamation is spoken, P must prove:
SPECIAL DAMAGES.
Libel: In GA when defamation is written or broadcast P must prove:
SPECIAL DAMAGES.
Defamation: Publication: The third person must be:
capable of understanding.
Defamation: Publication must be at least _______ if not _______.
negligent if not intentional.
Defamation: P may recover presumed damages:
Only in cases of slander and libel per se.
In GA what are the four categories of slander/libel per se?
- Making charges against another in reference to their trade, office, or profession, calculated to injure her therein,
- Accusing P of a serious crime.
- Charging a person of having a loathsome or contagious disease.
- Uttering any defamatory statements that cause the P to suffer special damages.
Defenses to defamation: (4)
- Truth
- Absolute privilege
- Communication b/t spouses (GA treats this as a conditional privilege)
- Consent
Defamation: Qualified Privileges (can be lost through abuse) (5)
- Public duty (legal)
- Pvt duty (K)
- Statements made in interest of the publisher (e.g. defense of one’s actions)
- Statements of counsel
- Statements about public figures.
Defamation: Absolute privilege - can never be lost. (3)
- Remarks made during judicial proceedings,
- by legislators during proceedings,
- by federal officials in ‘compelled’ broadcasts
What are the four branches of the invasion of right to pvcy FLIPA
False Light
Intrusion into private affairs
Public disclosure of private facts
Appropriation
Defamation: Constitutional Limitations: The First Amd protects speech on:
matters of public concern.
Defamation: Constitutional Limitations: Matters of public concern: Falsity:
The PLAINTIFF must PROVE the statement was false
Defamation: Constitutional Limitations: Matters of public concern: Fault:
P must prove some level of fault depending on what type of person. Public v. pvt.
Defamation: Constitutional Limitations: Matters of public concern: Public person must prove:
ACTUAL MALICE
Defamation: Constitutional Limitations: Matters of public concern: Private person must prove:
fault amounting to at least negligence.
Defamation: Actual Malice: (one of two things)
- Knowledge of falsity, or
2. Reckless disregard for the truth.
Defamation: In matters of public concern all Ps must prove actual malice to recover:
presumed or punitive damages
Appropriation:
Use of P’s name or picture for commercial advantage w/o permission.
Scienter:
When D made a statement that he KNEW or BELIEVED that was false OR that there was no basis for the statement.
Intrusion:
Interference w/ a P’s seclusion in a way that would be objectionable to a reasonable person.
Limitation on intrusion:
P must be in a place where she has an expectation of pvcy. (Not a public place.)
False light:
The dissemination of information in some way inaccurate and that would be objectionable to a reasonable person.
Invasion of Right to Privacy: Defenses: (2)
- Consent.
2. Absolute and qualified privileges (like in defamation. - but limited only to false light and public disclosure)
In GA fraud is an exception to NOTICE PLEADING. For fraud you must:
Plead with particularity.
Fraud: Justifiable reliance: In GA, absent a confidential relationship, P generally has a duty to:
investigate D’s statements to the extent reasonably possible. This includes the duty to read a document before you sign it.
Negligent misrepresentation: (5 elements for prima facie case):
- Misrepresentation in a BUSINESS OR PROFESSIONAL CAPACITY.
- BREACH of duty towards a particular P
- Causation
- Justifiable reliance, and
- Damages.
Negligent misrepresentation: Liability normally confined to:
a particular P whose reliance is contemplated (privity)
Intentional interference w/ business relations: (4 elements for prima facie case in GA) D acted:
I P I F
- Improperly and w/o privilege
- Purposely and WITH MALICE with the intent to injure,
- Induced a 3d party not to enter into of continue a business relationship with P, and
- Caused P to suffer financial injury.
MALICE: connotes a knowledge of P’s rights and the intent to interfere with those rights. (Not ill will.)
Malicious prosecution:
Prosecutor maintained the prosecution knowing that the D was innocent or recklessly disregarding the facts establishing D’s innocence.
GA “Abusive Litigation” Statute requires that underlying litigation be both:
- Malicious, and
- W/o substantial justification.
For this tort MALICE is acting w/ ill will or for a wrongful purpose.
GA “Abusive Litigation” Statute: Notice requirements:
Must give D 30 days to withdraw litigation.
Strict Liability: Animals: Domesticated: No strict liability unless:
P can show that the animal’s owner had prior knowledge of the animal’s dangerous or vicious propensities
Strict Liability: Animals: Domesticated: P can establish vicious propensity by showing:
the animal was required by ordinance to be on a leash or at heel and the animal was not when the incident occurred.
Strict Liability: Animals: Livestock:
No strict liability, just ordinary care.
Strict Liability: Animals: Wild: Owner is strictly liable unless:
they are indigenous (alligators, snakes, etc.)
Strict Liability: Abnormally dangerous activities: Three attributes: HAN
High risk
Act is not safe ever
Not common
Defenses (contributory negligence, comparative fault, assumption if risk, intoxication)
Strict Liability: Product-related injuries: Manufacturing defect:
The product is an anomaly, and the difference b/t the product in hand and all the others is what causes the injury.
Strict Liability: Defenses: GA does ____ apply its comparative negligence rules to strict liability.
not
Strict Liability: Defenses: Conduct that is the equivalent of contributory negligence does not bar recovery; conduct that is the equivalent of ____________ WILL bar recovery.
assumption of risk.
In breach of warranty cases, GA retains the requirement of ______ , except for products causing personal injury to a buyer’s family, household members, and guests.
privity.
In breach of warranty cases, GA retains the requirement of privity, EXCEPT:
for products causing personal injury to a buyer’s family, household members, and guests.
Public nuisance:
Conduct that causes physical or moral harm to the public in general.
A private P can maintain a public nuisance action if:
he suffers injury different in nature from the rest of the community.
Vicarious liability: Car owner and car driver:
Generally no vicarious liability.
Strict products liability: If P is injured by product they can only sue:
the manufacturer. P must prove that D is the actual manufacturer. You cannot sue the retailer.
Vicarious liability: Cars: Family Purpose Doctrine:
Owner is vicariously liable for negligent driving of family or household member who is using the car w/ permission.
Vicarious liability: Minor children:
Parents/guardians w/ custody are shall be liable up to the sum of $10k for the child’s willful or malicious acts that result in reasonable medical expenses to another and/or damage to the property of another.
Joint and several liability:
Where two or more joint tortfeasors each can be held liable to P for the entire amount of the damage incurred.
Joint tortfeasors: Two or more persons whose: (2 things)
- separate and independent acts,
2. combine to produce a single individual injury.
In GA there is no joint and several liability when:
P is at fault to some degree.
When in GA there is no joint and several liability trier of fact shall reduce P’s recovery by:
the percentage of P’s fault.
When in GA there is no joint and several liability and there is more than one D, trier of fact shall apportion fault among:
all persons who contributed to the injury, including non parties, in which case there is no joint liability.
Passive D receives _______ from active D.
indemnity.
In GA where joint and several liability applies contribution rules it requires that D’s pay:
EQUAL SHARE regardless of their respective degrees of fault.
Wrongful Death:
grant recovery for pecuniary injury resulting to the spouse and next of kin.
In a wrongful death award decedent’s creditors have:
no claim against the amount awarded.
Wrongful Death: Measure of recovery is:
the full value of the life of the decedent which includes loss of support and loss of companionship.
Wrongful Death: Where death resulted from crime or from negligence measure of recovery is:
the full value of the life of the decedent which includes loss of support and loss of companionship.
PLUS
funeral, medical, and other expenses.
Wrongful Death: Who may bring an action? (3)
- Surviving spouse, if none, then
- Children, if none, then,
- the administrator or executor of the estate.
Wrongful Death: Children: Parents are entitled to recover:
the full value of the child’s life, as determined by the jury.
Survival actions:
suits brought by decedent’s estate based on claims that the decedent could have brought if he lived. (Unlike most states a pending libel action will survive in GA.)
GA retains charitable immunity in that the recovery is limited to:
income derived from non-charitable sources.
GA Governmental Immunity: State is not liable for:
discretionary decisions.
GA Governmental Immunity: State requires a anti-litem notice with in:
12 mo. from date of injury
GA Governmental Immunity: State: Damages are capped at:
$1m per person and $3m per claim.
GA Governmental Immunity: Counties and school districts are immune from most types of tort claims, except: (2)
- Those involving motor vehicles, and
2. Nuisance - only to the extent property damage occurs.
GA Governmental Immunity: Hospital authorities do not enjoy gov’t immunity except for:
punitive damages.
GA Governmental Immunity: Public officials generally have the same level of immunity as the gov’t they represent. Thus they are generally only liable for:
ministerial or malicious acts.
Ministerial duty:
One that is clear, direct, and specific, and leave the official with no discretion concerning the actions to be taken.
GA Governmental Immunity: Municipalities require a anti-litem notice with in:
6 months from date of injury.
Libel: Damages will only be presumed for statements that are:
- Libel per se
- Statements published in newspapers or magazines.
Special damages need not be proved.
Libel: When defamatory words do not constitute libel per se or fall under newspaper statute then special damages must:
be pleaded.
Special damages include loss of employment, income, or profits.
For trespass to land there must be _____________, which can be ____________.
Some physical invasion of P’s RP – any type of tangible thing.
In trespass to land D only needs intent:
to enter that particular piece of land, he need not know that it belongs to someone else.
Refusing to leave owners land upon request is:
trespass
Reasonable mistake is ________ to trespass if D had intent to enter.
not a defense
Are actual damages required in a claim for trespass to land?
No. Actual damages are not required.
Who may bring suit for trespass to land?
Either the owner or the person in possession.
False imprisonment is both:
a crime and a tort.
If D negligently or carelessly confines P – then it’s not false imprisonment because there is no:
Intent to confine the P to a fixed area, which is required.
False imprisonment: Good faith mistake by D is not a defense if:
there was intent to confine.
False imprisonment: Actual damages are:
not required.
GA “Abusive Litigation” Statute: Termination of underlying litigation:
Prerequisite to claim D must win underlying suit. Abusive litigation must be brought within one year of final termination of underlying suit.
