Torts Flashcards
Transferred Intent <br></br>(Intentional Torts)
The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead <br></br>(i) commits a different tort against that person, <br></br>(ii) commits the same tort against a different person, or <br></br>(iii) commits a different tort against a different person. Applies only to assault, battery, false imprisonment trespass to land, or trespass to chattels.
Battery
Elements of a prima facie case: <br></br>(i) harmful or offensive contact; <br></br>(ii) to plaintiff’s person, <br></br>(iii) intent; and <br></br>(iv) causation. Plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct.
Assault
Elements of a prima facie case: <br></br>(i) An act by defendant creating a reasonable apprehension in plaintiff; <br></br>(ii) Of immediate harmful or offensive contact to plaintiff’s person; <br></br>(iii) Intent; and <br></br>(iv) Causation. Plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.
False Imprisonment
Elements of a prima facie case: <br></br>(i) An act or omission on the part of defendant that confines or restrains plaintiff; <br></br>(ii) to a bounded area; <br></br>(iii) Intent; and <br></br>(iv) Causation. Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if defendant acted maliciously.
Intentional Infliction of Emotional Distress
Elements of a prima facie case: <br></br>(i) an act by defendant amounting to extreme or outrageous conduct; <br></br>(ii) Intent or recklessness; <br></br>(iii) causation; and <br></br>(iv) damages ‘ severe emotional distress
Bystander Liability for Intentional Infliction of Emotional Distress
When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie elements of emotional distress or that <br></br>(i) she was present when the injury occurred, <br></br>(ii) she is a close relative of the injured person, and <br></br>(iii) the defendant knew facts <br></br>(i) and <br></br>(ii).
Trespass to Land
Elements of a prima facie case: <br></br>(i) physical invasion of plaintiff’s real property; <br></br>(ii) Intent; and <br></br>(iii) Causation Plaintiff can recover without showing actual injury to the land.
Trespass to Chattels
Elements of a prima facie case: <br></br>(i) An act by defendant that interferes with plaintiff’s right of possession in a chattel; <br></br>(ii) Intent; <br></br>(iii) Causation; and <br></br>(iv) Damages. Actual damages- not necessarily to the chattel, but at least to a possessory right ‘ are required.
Conversion
Elements of the prima facie case: <br></br>(i) An act by defendant that interferes with plaintiff’s right to possession in chattel; <br></br>(ii) The interference is so serious that it warrants requiring defendant to pay the chattel’s full value, <br></br>(iii) Intent, and <br></br>(iv) Causation. CF Trespass to Chattels -> Degree of harm
Consent
Plaintiff’s consent to defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act.
Express Consent
Defendant is not liable if plaintiff expressly consents to defendant’s conduct. Exceptions: <br></br>(i) mistake will undo express consent if defendant knew of and took advantage of the mistake; <br></br>(ii) consent induced by fraud will be invalidated if it goes to an essential matter; and <br></br>(iii) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.
Implied Consent
Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff’s conduct. Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property.
Self-defense
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.
Defense of Others
One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.
Defense of Property
One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortuously dispossessed the owner of her chattels because the tort is viewed as still being committed.
Common Law Defamation
The elements of common law defamation are: <br></br>(i) Defamatory language; <br></br>(ii) Of or concerning the plaintiff; <br></br>(iii) Publication thereof by defendant to a third person; and <br></br>(iv) Damage to plaintiff’s reputation. If the defamation involves a matter of public concern, the Constitution requires two additional elements: <br></br>(v) Falsity of the defamatory language; and <br></br>(vi) Fault on the part of the defendant. <br></br>(varies based on D).
Libel
Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed. The minority position distinguishes between libel per se and libel per quod <br></br>(not defamatory on its face).
Slander
Slander is spoken defamation. Plaintiff must prove special damages, unless defamation falls within the slander per se categories.
Slander per se
Defamatory statements that: <br></br>(1) adversely reflect on one’s conduct in a business or profession; <br></br>(2) One has a loathsome disease [venereal or leprosy]; <br></br>(3) One is or was guilty of a crime involving moral turpitude; or <br></br>(4) A woman is unchaste.
Fault on Defendant’s Part
<br></br>(1) Public official or figure must prove malice. [presumed damages] -Knowledge that the statement was false, or reckless disregard as to whether it was false. <br></br>(2) Private persons need not prove malice. Only negligence regarding the falsity must be proved if the statement involves a matter of public concern. [presumed damages]. Where the defendant is negligent, only actual injury damages are recoverable. However, where malice is found, damages may be presumed and punitive damages allowed.
Defenses to Defamation
<br></br>(a) Consent <br></br>(b) Truth. Where a plaintiff does not need to prove falsity, defendant may prove truth as a complete defense. <br></br>(c) Absolute Privilege. Defendant may be protected for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, and between spouses. <br></br>(d) Qualified Privilege. Reports of official proceedings; statements in the interest of the publisher; and statements in the common interest of the publisher and recipient.
Appropriation
It is necessary to show unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to defendant <br></br>(not in connection with promoting a product or service) by itself is not sufficient.
Intrusion
The act of prying or intruding must be highly offensive to a reasonable person. Furthermore, the thing into which there is an intrusion must be private. Photographs taken in public places are not actionable.
Publication of False Light
False light exists where one attributes to plaintiff views that he does not hold or actions he did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, there must be publicity.
Public Disclosure of Private Facts
This wrong involves public disclosure of private information about plaintiff. The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true.
Intentional Misrepresentation
Prima facie case: <br></br>(i) Misrepresentation of a material fact. Silence is generally not enough; one must make affirmative misrepresentations. <br></br>(ii) Scienter, when a D made the statement, she knew or believed it was false. <br></br>(iii) Intent to induce P to act or refrain from acting in reliance upon the misrepresentation. <br></br>(iv) Causation. <br></br>(v) Justifiable reliance, and <br></br>(vi) Damages.
Negligent Misrepresentation
Prima facie case: <br></br>(i) misrepresentation by defendant in a business or professional capacity; <br></br>(ii) breach of duty toward a particular plaintiff; <br></br>(iii) causation; <br></br>(iv) justifiable reliance; and <br></br>(v) damages.
Interference with Business Relations
Prima facie case: <br></br>(i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff; <br></br>(ii) defendant’s knowledge of the relationship or expectancy; <br></br>(iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy and <br></br>(iv) damages.
Malicious Prosecution
Prima facie case: <br></br>(i) institution of criminal proceedings against plaintiff [although this has been extended to civil in some states]; <br></br>(ii) termination in plaintiff’s favor; <br></br>(iii) absence of probable cause for prior proceedings <br></br>(insufficient facts for a reasonable person to believe that plaintiff was guilty); <br></br>(iv) improper purpose; and <br></br>(v) damages.
Abuse of Process
Prima facie case: <br></br>(i) wrongful use of process for an ulterior purpose, and <br></br>(ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose.
Prima Facie Case of Negligence
<br></br>(i) a duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury; <br></br>(ii) a breach of that duty by defendant; <br></br>(iii) the breach is the actual and proximate cause of plaintiff’s injury; and <br></br>(iv) damage.
Foreseeable Plaintiffs
Cardozo View <br></br>(Majority) ‘ Foreseeable Zone of Danger -> a distant plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances. Andrews View <br></br>(Minority) ‘ Everyone is Foreseeable -> a distant plaintiff may establish the existence of a duty extending from defendant to her by showing that defendant breached a duty owed to a prior plaintiff.
Rescuers
A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril <br></br>(danger invites rescue). However, firefighters and police officers may be barred by the ‘firefighter’s rule’ from recovering for injuries caused by the risks of a rescue.
Intended Beneficiaries of Economic Transactions
A third party for whose economic benefit a legal or business transaction was made may be a foreseeable plaintiff.
Basic Standard of Care
The reasonable person standard is an objective standard. A defendant’s mental deficiencies and inexperience are not taken into account. However, the reasonable person is considered to have the same physical characteristics as defendant.
Professional Standard of Care
A professional is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Medical specialists will be held to a national standard of care.
Child Standard of Care
Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. A child under four is usually without the capacity to be negligent. Children engaged in adult activities may be required to conform to an adult standard of care.
Standard of Care for Common Carriers and Innkeepers
Common carriers and innkeepers are held to a very high degree of care. For the higher standard to apply, the plaintiff must be a passenger or guest.
Automobile Driver to Guest
A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.
Bailment Duties
<br></br>(a) Duties owed by Bailee: <br></br>(i) for a sole benefit of the bailor bailment, there is a low standard of care; <br></br>(ii) for a sole benefit of the bailee bailment, there is a high standard of care; and <br></br>(iii) for a mutual benefit bailment, there is an ordinary care standard. <br></br>(b) Duties owed by Bailor: For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware.
Emergency Situations
A defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if its of defendant’s own making.
Duty of Possessor to Those Off Premises
There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises. [In urban areas, the owner/occupier is liable for damage caused off the premises by tress on the premises <br></br>(e.g. falling branches). This has been an exam favorite in recent years].
Duty Owed to Trespassers
No duty is owed to an undiscovered trespasser. As to discovered or anticipated trespassers, the landowner must: <br></br>(i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and <br></br>(ii) use reasonable care in the exercise of active operations on the property. Easement and license holders owe a duty of reasonable care to trespassers.
Attractive Nuisance Doctrine
Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show: <br></br>(i) a dangerous condition on the land that the owner is or should be aware of, <br></br>(ii) the owner knows or should know children frequent the vicinity of the condition, <br></br>(iii) the condition is likely to cause injury, and <br></br>(iv) the expense of remedying the situation is slight compared with the magnitude of the risk. [For liability to attach, the four requirements must be shown. The child does not have to be attracted onto the land by a dangerous condition].
Duty Owed to Licensees
A licensee is one who enters onto the land with the possessor’s permission for her own purpose or business, rather than for possessor’s benefit. The possessor has a duty to <br></br>(i) warn of dangerous conditions <br></br>(natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and <br></br>(ii) exercise reasonable care in the conduct of active operations on the property. The possessor has not duty to inspect or repair <br></br>(Remember: social guests are considered licensees.)
Duty Owed to Invitees
Invitees enter onto the land in response to an invitation by the landowner <br></br>(i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public). The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation.
Duties Owed to Users of Recreational Land
A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
Duties of Lessor and Lessee of Realty
The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable. [If the guest of a tenant is injured, the landlord may be liable as lessor of the premises. But don’t stop there ‘ remember that the tenant may also be liable to the guest because of the tenant’s status as the owner/occupier of the premises.]
