Torts Flashcards
Two general propositions about intentional torts
1) Ps extreme sensitivity is ignored in deciding if P has a claim. Assume a person of ordinary sensitivity. 2) For intentional torts, no incapacity defenses.
What are the specific intentional torts? (7)
Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress, Trespass to Land, Trespass to Chattels, Conversion
What are testable elements of battery?
1) D causes harmful or offensive contact.
2) Contact w/ P’s person.
How do you know if a contact is offensive?
Offensive = unpermitted by a reasonable/ordinary person. EX: unwelcome groping.
What is a “P’s person”?
Anything a P is holding or connected to. EX: purses, people on horseback.
Does a battery not need?
Need not be instantaneous or involve D’s person. EX: poisoning.
What is assault?
1) Place P in reasonable apprehension.
2) Apprehension must be of an immediate battery.
What is the “apprehension” element?
Apprehension is ill chosen. In tort, it means knowledge i.e. P has to see it coming. BUT fear is not necessary
Unloaded gun problem
Threat P can see but is an idle threat. D can’t accomplish anything. If P knows he can’t be touched, no apprehension.
What does it mean that apprehension relate to “immediate battery?”
1) Words alone lack immediacy; you must have conduct. Must be conduct that is a menacing gesture.
2) When you have words and conduct together, words can negate immediacy. EX: “if you weren’t my best friend I’d beat the crap out of you” while shaking fists.
What are the elements of false imprisonment?
1) D must commit an act of restraint.
2) P must then be confined in a bounded area.
What is an act of restraint?
1) Threats are sufficient. Threat must be one that would operate on the mind of a reasonable person.
2) An omission can be an act of restraint if D owed P a pre-existing duty.
3) Act of restraint only counts if P is aware of it or harmed by it. If P is oblivious, no claim.
What is the bounded area requirement?
Area not bounded if there is a reasonable means of escape that P can reasonably discover. If only way out is dangerous, disgusting, humiliating or hidden, no reasonable means of escape.
Intentional infliction of emotional distress
1) D engages in outrageous conduct.
2) P suffers severe emotional distress.
What is outrageous conduct?
R2T: Exceeds all bounds of decency tolerated in a civilized society.
What is not outrageous?
Mere insults. Insults may tip the scale if combined w/ other activities.
What is outrageous i.e. plus factors that make acts more likely to be outrageous?
1) Continuous or repetitive conduct. Why? Looks more like harassment. EX: debt collectors.
2) D is a common carrier or inn keeper. Must exercise courtesy in dealing w/ patrons.
3) P is a member of a fragile class of persons.
4) Prior knowledge of emotional sensitivity and D exploits it.
EX: False notification of death of loved ones done intentionally.
What are the fragile classes of people?
Young children, elderly, pregnant women.
What is severe emotional distress?
1) No specific evidentiary showing required i.e. physical symptoms not mandatory.
2) When this is tested, 80% of the time the element will be negated by stipulating to the opposite in a subtle way i.e. says “P is mildly annoyed,” “briefly irritated.”
Elements of Trespass to Land
1) D commits an act of physical invasion.
2) Land.
What is physical invasion?
1) D enters the land (on purpose). No knowledge that you crossed a boundary line is not required.
2) Throwing something onto the land. Thing being “thrown” must be a physical thing. Intangible invasions aren’t trespass.
What does land mean for trespass?
P has an interest in airspace above land and mineral rights below land. Must be a reasonable distance.
Trespass to chattels and conversion
Both involve intentional interference w/ personal property. This is how you recover for robbery.
What is personal property?
Everything that isn’t land.
What are the two ways a D can interfere with you personal property i.e. commit trespass to chattels or conversion?
1) Damage property.
2) Take away property i.e. deprive of possession.
Difference between trespass to chattels and conversion
1) Minor harm: trespass to chattels
2) Big harm: conversion
What is the special remedy for conversion P?
P gets full value of item in question. Conversion operates as a forced sale. Remedy for trespass to chattels is only cost of repair.
Mistake over ownership for trespass to chattels or conversion?
Not a defense to trespass to chattels or conversion.
What are the affirmative defenses to intentional torts?
1) Consent.
2) Protective privileges. Defense of self, defense of others, and defense of property.
3) Necessity
Who may give consent to intentional torts?
P must have capacity to give consent. This is asymmetrical because you don’t need capacity to commit an intentional tort. Children can consent to age appropriate activities.
What is express consent in intentional torts?
Words and quotes granting D permissions to act in a certain way.
What negates consent?
Fraud or duress.
When is consent implied for intentional torts?
1) Through custom or usage. EX: consent to contacts when you play contact sports.
2) Implied consent based on D’s reasonable interpretation of P’s objective conduct and the surrounding circumstances i.e. body language consent.
What is the scope of consent?
Pay attention! All consent has a scope. If D exceeds the scope of consent, the defense is lost.
Test for protective privileges?
D must show:
1) Proper timing. Threat must be happening imminently or in progress.
2) D must have a reasonable belief that the threat is genuine.
How much force can you use in a protective privilege defense?
Must do only what is necessary to resolve the threat. If there’s a deadly threat, you may use deadly force. In protection of property, always excessive to use deadly force.
What do necessity defenses apply to?
Only to property torts.
Types of necessity?
1) Public necessity: D commits property tort as a necessity to protect community as a whole. Absolute immunity.
2) Private necessity: D commits property tort in emergency to protect an interest of his own. Qualified defense.
What is a person acting under a private necessity liable for?
1) Must pay property owner for any harm done.
2) No nominal or punitive damages.
3) As long as emergency continues, P must allow D to remain in a position of safety.
What is defamation?
1) P must show D made a defamatory statement that identified P.
2) P must show D published that statement.
3) Damages.
What is a defamatory statement that identifies P?
May ID P in any way that allows P to be identified. Don’t need a name. P must be living at the time the statement is made.
What is a defamatory statement?
Defamatory if tends to adversely affect reputation. Mere name calling isn’t defamatory. Assumes all of us have an asset in our good name and reputation.
What is publication (in defamation)?
D must share statement w/ at least one person other than the P. Accidental sharing counts just as much. More wide circulation shows more harm though!
What are damages in defamation?
Some Ps get a presumption of damage. Others don’t.
What is a libel?
Any defamatory statement written down or captured in a permanent format. Libel Ps get presumed damages, but need to give evidence if you want a big award.
What is a slander?
Statement is spoken.
What are the subsets of slander per se?
Presume damages if a slander as to:
1) Statement relates to P’s business or profession.
2) Statement that P committed a serious crime.
3) Statement imputing unchastity to a woman.
4) Statement that a P has a loathsome disease: leprocy and VD.
What is actual damage?
Economic harm. Need to show this if normal slander because no presumption of damage.
What are affirmative defenses in defamation?
1) Express or implied consent.
2) Truth
3) Privilege
Who gets absolute privilege in defamation cases?
1) Spouses: if a married person says something defamatory about a 3d person to spouse, no liability.
2) Officers of the govt: includes judges, lawyers, and Ws.
Who gets qualified privilege in defamation cases?
Whenever a public interest in candor, this can be invoked. Courts do this in case by case situations. EX: letters of recommendation.
When can a speaker invoke qualified privilege?
1) Reasonable and good faith belief the statement was accurate.
2) Must confine statements to matters that are relevant.
What is the matter of public concern issue in defamation?
If it’s newsworthy, it’s a matter of public concern. In such a case, P must also prove, 1) falsity of the statement AND 2) fault i.e. not an honest mistake.
What if P is a public figure/private figure in public concern defamation?
1) Public figure: D made statement intentionally or recklessly.
2) Private figure: D made statement negligently.
Common law privacy claims: 4 COAs
1) Appropriation
2) Intrusion
3) Material falsehood
4) Disclosure
What is appropriation?
D uses P’s name or image in commercial way for commercial purposes. BUT newsworthiness exceptions i.e. if a story w/ photo okay. P doesn’t have to be celeb to bring suit.
What is intrusion?
Invasion into seclusion that would be highly offensive to an average person. EX: wiretapping. Must be in a place where there’s a reasonable expectation of privacy to make this claim.
What is false light?
Widespread dissemination of a material falsehood about P that would be highly offensive to the average person i.e. false gossip. Overlaps w/ defamation if you tell lots of people; doesn’t need to be offensive to a reasonable person
What is disclosure?
Widespread disclosure of confidential information about P that would be highly offensive to a reasonable person. BUT newsworthiness exception and information must be truly private.
What are the defenses to privacy torts?
1) Consent
2) Absolute and qualified privilege can defeat a claim for false light and disclosure.
Torts we aren’t covering:
1) Fraud
2) Negligent misrepresentation
3) Inducing a breach of K
4) Malicious prosecution
5) Abuse of process
What is negligence?
1) Duty
2) Breach
3) Causation: factual and proximate
4) Damage
To whom do you owe a duty of care?
Foreseeable victims. Unforeseeable Vs can’t recover (EX: Palsgraf not owed a duty of care because outside the ZONE OF DANGER)
What is the exception to the Palsgraf principal?
Rescuers. Even though they aren’t in the zone of danger when the activity starts, they can recover because danger invites rescue.
How much care must be exercised?
Be as careful as a hypothetical reasonably prudent person acting under similar circumstances. Most of us fall way short of that. MAKE NO ALLOWANCES FOR D’S INDIVIDUAL CHARACTERISTICS.
What is the exception to the reasonable person standard?
1) Superior skill or knowledge: need to exercise care of a person of same skill or knowledge. A stupid person can have superior knowledge in certain circumstances.
2) A person’s physical attributes in some circumstances i.e. blindness, excessive tallness. These attributes aren’t always relevant.
When may the reasonable person standard be displaced?
When there’s a more specific rule that displaces it. Otherwise, this is the auto default.
When can you bring negligence claims against children?
Kids under 5 don’t owe anyone a duty of care. Between 5-18, children must behave as carefully as a hypo child of similar age, experience, and intelligence acting under similar conditions. This is a pro-D standard of care.
What if children are engaging in adult activities?
Use ordinary adult standard of care. EX: motorized vehicles.
What about negligence claims against professionals?
Usually malpractice claims. Standard of care: professional must exercise the skill and knowledge normally possessed by other members of that same profession in good standing i.e. owes care of average members of same profession. KEY: this gets rid of the hypo person and has an empirical component and you MUST CONFORM.
What is premises liability?
D possesses real estate. P enters real estate. Entrant encounters a dangerous condition on the property.
What duty does the possessor owe unknown trespassers in premises liability?
Possessor owes them no duty. They never win.
What duty does the possessor owe known or anticipated trespassers in premises liability?
To trigger duty, must have (a) an artificial condition; (b) condition must be highly dangerous i.e. be capable of killing or maiming; (c) must be a concealed or hidden condition; (d) Possessor must have had prior knowledge. KEY: duty to protect against known, man-made death traps.
What duty does the possessor owe licensees in premises liability?
Possessor must protect licensees from (a) concealed conditions (b) about which possessor has prior knowledge. KEY: protect licensees from all known traps.
Who is a licensee?
Licensees enter land w/ permission but confer no economic benefit on owner. EX: social guests.
Who is an invitee?
Enter w/ permission and confer econ benefit (customers) OR land is open to all members of the public (museums).
What duty does the possessor owe invitees in premises liability?
(1) Hazard must be concealed. (2) Must be a condition possessor knew about or could have discovered through a reasonable inspection (that the reasonable person would conduct). KEY: protect from all reasonably knowable traps.
What about slip and fall cases?
Customer is an invitee. (1) If employee caused the spill or was informed of the spill, liable. (2) If employee didn’t know, then we look to time: if it had been there 30 seconds no liability but 1 hour is different.
Do police officers and firefighters recover in negligence?
Never recover for injuries that are inherent to their jobs. Why? Assumption of risk.
What is the special rule for trespassing kids?
Possessor must exercise reasonable prudence to protect trespassing children from artificial conditions. This is about the same as licensees.
When do land owners have a special duty to trespassing kids?
1) Look at whether there are kids nearby. 2) Attractive nuisance–something attracts children in and they get hurt by something else.
How can D satisfy his duties under negligence?
1) Fix the problem.
2) Give an adequate warning.
How can P get a statutory standard of care?
P may borrow language of criminal statute and use it as a more specific standard of care if he can show 1) he is a member of class of people statute is trying to protect and 2) accident is in class of risks that statute is trying to prevent. COPCOR: class of person class of risk.
What is the effect of a statutory standard of care?
Takes away the jury’s evaluation. Why? Negligence per se i.e. no excuses accepted and breach is presumed. BUT there is no sanction for trying and failing to use a statute.
What are the exceptions to statutory standard of care?
1) If compliance is more dangerous than violation, don’t use the statute. EX: if kid runs into street and driver veers into oncoming traffic, it doesn’t matter that stat says can’t cross a double yellow line.
2) Compliance impossible under circumstances.
What is duty to rescue?
There is no duty to rescue. Exceptions:
1) Preexisting relationship triggers a duty to act: need formal labels like innkeeper-guest.
2) D put P in peril. This triggers a duty to act reasonably under the circumstances, so never obligated to put own life in jeopardy.
What if a person chooses to rescue?
That person is liable if they try to rescue and act unreasonably/cause harm UNLESS there’s a good samaritan statute.
What is negligent infliction of emotional distress in near miss cases?
P nearly injured by D’s careless acts. MUST SHOW 1) D’s negligence put P in zone of physical danger, and 2) P suffer subsequent physical manifestations of distress as a result. EX: D almost hits P, who then has a heart attack.
What is negligent infliction of emotional distress in bystander case?
Negligent D badly injures or kills non-party X. P must show 1) P and X are close family members (kids, parents, spouses); 2) P has saw event as it happened.
What is negligent infliction of emotional distress in relationship cases?
P and D have 1) preexisting commercial relationship and 2) it’s highly foreseeable of distress if there’s error, misperformance, or screw up. EX: patient, medical lab–any false positive works.
What is breach?
P must identify what D did wrong. Can be affirmative act or an omission.
What is res ipsa locitur?
When P lacks info about what happened, can’t identify D’s breach. Must show instead 1) accident is of the type normally associated w/ negligence AND 2) accident is of the type normally due to someone in D’s position i.e. P sued the right person.
How do you prove the accident is of the type normally due to someone in D’s position?
Control of the object that caused harm.
What is the effect of res ipsa?
P gets to the jury. Allows elements to be proven, but no conclusive presumptions.
What is factual causation?
Requires P establish linkage between breach and injury suffered. Events have multiple causes, so say “the breach is a cause” not a breach is the cause.
How do you know if breach is a factual cause?
BUT FOR test. Imagine a breach free world: if P would be injury free today, breach is a but for cause.
When do we not use factual cause?
1) Merged cause
2) Unascertainable cause
What is merged cause?
2+ Ds breach a duty, setting in motion 2 destructive forces that eventually merger and cause harm to P. Test of cause here is “substantial factor” in producing the harm. It is a substantial factor if it could have caused harm all by itself.
What is unascertainable cause?
2 negligent Ds, 1 source of harm, and we can never find out who caused the harm. This shifts burden of prove to Ds to prove they weren’t the cause of the harm, and if can’t provide this proof, hold jointly liable.
What is proximate cause?
Fairness. Once P shows duty, breach, and factual cause, ask if it’s fair to make D pay. Usually the answer is a clear yes.
What is the test for proximate cause?
Foreseeability. No obligation to pay for unforeseeable facts.
How do you know if something is foreseeable?
No clear answer. Look to:
1) Length of time
2) Geographic distance
3) The number of links in the story
4) How weird is the story
What are the special precedential cases where we know what the foreseeability element is met?
1) Intervening medical negligence: D causing injury liable for further harm/injury.
2) Intervening negligent rescue: D liable because injury invites rescue.
3) Intervening protection or reaction forces
4) Subsequent disease or accident: D injures P, and P obtains another injury due to his weakened state.
What is the eggshell skull rule?
Once D committed the harm, he is liable for all damages suffered regardless of scope. This doctrine is not limited to negligence.
What are the affirmative defenses?
1) Contributory negligence
2) Implied assumption of risk
Majority of states have gotten rid of this.
What is contributory negligence?
VA. If P fails to take precaution to predict self or violates statute for own protection, P can’t recover.
What is last clear chance?
Softens contributory negligence. It’s an argument that D committed the last breach, and despite P’s carelessness, D is liable.
What is comparative negligence?
Majority rule. Ps recovery is reduced based on % of fault but D is still liable. % determination is left to jury discretion. Last clear chance goes to assignment of damages.
What are the three strict liability claims?
1) Injuries caused by animals.
2) Abnormally dangerous activities.
3) Strict liability for products.
What is the liability of owners of domesticated animals and livestock?
No SL if domesticated animal harms someone. UNLESS owner has prior knowledge of animal’s vicious propensities BUT no SL to trespasser.
What is the liability of owners for wild animals?
Strict liability. Safety precautions are irrelevant.
When is there an abnormally dangerous activity?
1) Foreseeable risk of serious harm even when reasonable care is exercised.
2) Activity must be uncommon in the area where it is conducted.
* *Safety precautions are irrelevant.
What are products?
a) Household products: foods, pharma, personal goods
b) Industrial machines
What are the elements for products liability?
1) D must be a merchant.
2) Product must be defective.
3) P must demonstrate product wasn’t altered after leaving D’s hands. Usually it drops out because we presume it’s satisfied if distributed in ordinary channels.
4) P must be making a foreseeable use of product at time of injury.
What is a merchant?
One who regularly deals in goods of a certain type. Casual sellers can’t be strictly liable. Service providers who make products available incidental to service, no SL. A lessor is a merchant who can be SL. Parties up the distribution chain may be SL i.e. Macy’s and the brand manufacturer may be SL.
When are products defective?
1) Manufacturing defect
2) Design defect: a warning will not absolve from SL for design defect.
3) Information defect
What is a manufacturing defect?
Differs from all others that came of same assembly line in a way that makes product more dangerous than the consumer would expect.
What is design defect?
Risks of design outweigh utility of design. P proves by showing viable alternative design that’s safer and only marginally more expensive.
What is an information defect?
When there are concealed residual risks that can’t be designed away, and product lacks an adequate warning.
What is a foreseeable use?
A foreseeable misuse (standing on a chair) gives rise to SL.
In SL, what are the affirmative defenses?
Comparative responsibility: P’s recovery reduced by the amount that he should have acted to reduce the risk of harm i.e. P was on notice of the defect.
What is nuisance?
A very significant intangible interference with ability to use and enjoy real estate. P must have been made miserable, and a reasonable person would have been made miserable.
What is the mens rea for negligence?
Must show W acted intentionally (is aware of interference and knows of harm even if the harm isn’t intended).
What is vicarious liability?
D1 does the tort. P sues D2 in hope of getting recovery. This works if D1 has a relationship w/ D2
What are the relationships that allow P to recover under a theory of vicarious liability?
1) Employer-Employee if tort is committed in scope of employment
2) Hiring party and independent contractor: no liability except property owner liable if IC injures an invitee.
3) Owner of car and driver of car where driver gets into accident. No liability UNLESS driver is doing an errand for owner (this makes relationship like principal-agent).
4) Parent and child: parent not liable for child’s torts.
When are intentional torts w/in scope of employment?
1) If boss authorized use of force, misuse of force is w/in scope of employment.
2) Job that leads to friction i.e. repo man, debt collector.
3) When tort committed to serve employer’s interest.
Does D need to be guilty of any negligence of his own?
Yes for vicarious liability, but not if there’s negligent entrustment or hiring. Then you’re independently liable.
What happens when P sues 3 Ds and collects entire judgment from D1?
D1 has rights against D2 and D3. Jury assigns each D percentage fault numbers: D1 can recover the percentage they’re liable.
*Except in VA, Ds are liable pro rata.
What is indemnification?
1) Vicariously liable party can be fully indemnified.
2) In a products case, retailer or wholesaler gets indemnified by the manufacturer.
What is loss of consortium?
In any case where V of tort is married, spouse gets an independent COA. Same defenses apply in this case as in primary case. Allows recovery for:
1) loss of services
2) loss of society
3) loss of sex
