Torts Flashcards
Strict Products Liability
(1) D is commercial supplier; (everyone down the line)
(2) production or sale of a defective product; (prove reasonable alternative design was economically feasible)
(3) actual and proximate cause; and
(4) damages
* Everyone down the line is liable if in business of selling goods
Invasion of Privacy (CLIP)
(1) appropriation of picture or name for Comm. adv.
[2-4 = highly offensive to reasonable person]
(2) publication placing P in a false Light
(3) Intrusion upon seclusion
(4) public disclosure of private facts (doesn’t matter if true)
Attractive Nuisance
(1) Dangerous artificial condition that Owner knew or should know of
(2) owners knows children frequent condition (kid did not understand risk)
(3) condition likely to cause injury
(4) expense to remedy is slight compared to risk
Duty to Anticipated Trespasser
WARN or make safe KNOWN concealed ARTIFICIAL conditions involving DEATH or SERIOUS bodily harm - DOES NOT INCLUDE OPEN AND OBVIOUS CONDITIONS
Duty to Licensees (social guests)
Duty to WARN or make safe ALL KNOWN dangerous conditions involving unreasonable risk of harm
*In IL owed duty of ordinary care
Duty to Invitees (held open to public)
Duty to WARN or make safe after reasonable INSPECTION ALL KNOWN dangerous conditions
*In IL owed duty of ordinary care
Strict Liability Defenses
Unforeseeable misuse or Assumption of the Risk (P knew of risk and voluntarily assumed it)
Trespass
(1) Act of physical invasion by D (by individual or instrument)
(2) on plaintiff’s land (reasonable distance up or down)
* Can be brought by anyone in actual or constructive possession
Indirect Cause (Proximate Cause)
Force after D’s negligence combined to cause injury
Liability cut off if indirect cause is superseding (foreseeability)
Products Liability based on Negligence
(1) Negligent conduct (design, manufacturing, warning, inspection) (2) Supply of defective product
ALMOST ALWAYS MANUFACTURERS BUT NOT RETAILERS/WHOLESALERS
Assault
(1) Reasonable apprehension of immediate or harmful contact (battery) (words alone not enough)
(2) Intent
(3) Causation
Defamation
(1) Defamatory statement about P
(2) Publication (reasonably understood)
(3) Damage to Rep (libel or slander (special damages)) (LUMP for slander per se)
(4) Falsity (P must prove in 1st Am case - public concern)
(5) Fault - prove actual malice (knowledge of falsity or reckless disregard as to truth or falsity) (public figure) or negligence (private person)
Last Clear Chance Doctrine (NOT A DEFENSE)
D had last clear chance to avoid accident despite P’s contrib negligence
Intentional Misrepresentation
(1) Misrep of fact
(2) Scienter (malice)
(3) Intent to Induce Reliance
(4) Justifiable Reliance (no duty to investigate)
(5) Causation
(6) Damages
NO DEFENSES
Turns to negligent mis rep only in commercial setting and no scienter just negligence
Intentional Infliction of Emotional Distress
(1) extreme and outrageous conduct
(2) Intent or reckless disregard (note type of sensitive P)
(3) causation
(4) damages - physical injury not required (unlike NIED)
NOTE: higher standard for carriers and innkeepers
Negligent Infliction of Emotional Distress (NIED)
(1) P suffers physical injury (shock is enough)
(2) P w/in target zone of D’s conduct
(3) Bystander recovery (not in IL) - close relationship, present at scene of injury and observed event
Battery
(1) Harmful or offensive contact
(2) With Plaintiff’s person
False Imprisonment
(1) Act or omission that confines to bounded area
(2) intent to confine or restrain
(3) causation
Shoplifting Exception to FI
Reasonable: (1) belief of theft; (2) manner of detention; (3) period of time
Trespass to Chattels and Conversion
(1) Physical damage and/or
(2) Dispossession
Damages = TPC - cost of repair; CONV = FMV
Defense of Consent to IT (or defamation/privacy)
(1) P has capacity to consent (unless implied)
(2) Express (words) or Implied (custom/P’s conduct) or implied by law in emergencies
(3) Scope of consent
Self Defense, Defense of Others, Defense of Property
(1) Tort now or just about to occur (unless hot pursuit)
(2) Reasonable Belief tort being committed (no duty to retreat)
(3) Proper Amount of force = DF allowed except for property (property = reasonable force)
Necessity (Defense to property tort)
(1) Tort is against property
2) Public (absolute/no liability) v. Private (liable for damages
Interference with Business Relationship
(1) Valid relationship between plaintiff and 3rd person (Existing or prospective)
(2) D’s knowledge of relationship
(3) intentional interference
(4) damage
DEFENSES: Privilege - persuasion or relationship of parties
Negligence
(1) Duty - foreseeable P (rescuers) and standard of care (reasonable person under the circumstances) to protect against unreasonable risk of injury *take into account physical characteristic
(2) Breach
(3) Causation (actual “but for” and proximate “foreseeable)
(4) Damages
Affirmative Duty to Act - NONE Except…
(1) Special relationship (common carrier, family, innkeeper)
(2) Duty to Control 3rd Person (ability and know its req’d)
(3) Assume duty by acting
(4) P’s peril due to D’s negligence
Proximate cause
(1) Direct - uninterrupted chain of events
(2) Indirect - intervening force - if foreseeable = liable
Assumption of Risk
(1) Knew of risk
(2) Voluntarily assumed it
EXCEPT: no other viable alternative or emergency
Strict Liability
(1) Absolute duty to make safe
(2) Actual and proximate cause
(3) damage
* Wild Animals - owner liable (not domestic animals w/ no dangerous propensity) - not liable to trespassers unless negligent (i.e. knows on land and does not warn of animal)
Nuisance (Public and Private)
Private - substantial, unreasonable interference with use and enjoyment of land to the avg person in community
Public - Unreasonably interference w/ health, safety or property rights of the community (unique damage not suffered by public)
Joint and Several Liability
2 or more acts cause indivisible injury, P can recover full amount from either
