Torts Flashcards
Torts Opening Statement
The common law of torts protects the interests of those who have suffered harm.
Intentional Torts Statement
Intentional torts start with an intentional act (or failure to act) by the defendant that creates harm, but only that to which an ordinary person would object. Intent or motive to cause harm is not required, only the intent to commit the act, even if the resulting harm was not intended.
Negligence Statement
In order for the plaintiff to make a out a prima facie case of negligence, there must be a legal duty to exercise reasonable care to that particular plaintiff, a breach of that duty, causation (actual and proximate), and resulting damages.
What creates a legal duty (for negligence)?
Defendants owe a duty of reasonable due care to protect foreseeable parties from foreseeable risks that are unreasonable. This objective standard asks how a reasonably prudent person would act in similar circumstances. Judge Learned Hand weighed the defendant’s burden of precaution against the probability of harm times the severity of the harm.
Trespass to chattel v. conversion
Trespass to chattel is the relatively minor use of or intermeddling with personal property w/o permission (actual damage required, but could just be P being deprived of its use). Conversion is a wrongful exercise of dominion and control (an ownership claim) over personal property (or if actual damage is quite substantial, at least 50% of value; damages are FMV and consequential loss).
What are the defenses to intentional torts?
Consent, defense of self/others/property, recapture of chattels (in pursuit), necessity (but still pay actual damages), under color of law (public authority), discipline, and justification (catch-all). Also possibly comparative fault?
What is proximate causation?
Proximate causation acts whether it is fair to hold a defendant responsible, demanding that the result of his actions were foreseeable, not be too improbable or remote, or that the causal chain was broken by a superseding cause (plenty is “foreseeable” though).
What are the defenses to a negligence action?
Contributory negligence (with last clear chance doctrine; if allowed in jurisdiction), comparative fault, or assumption of risk (requiring actual knowledge; apply comparative fault).
Are any defenses available to strict liability?
Assumption of the risk and comparative fault.
What are the types of products liability?
Negligence: design defect (only manufacturer liable, reasonable alternative design?), manufacturing defect (failure of inspection/testing duty?), and failure to warn.
Strict liability: all Ds in chain of disribution liable; must be a defective condition that is unreasonably dangerous. SCAAM defenses: state-of-the-art, comp fault, assumption of the risk, alteration, and misuse/overuse.
Breach of warranty: merchantability, fitness for particular purpose, title and against infringement; econ losses recoverable.
What are the defenses to FPID defamation?
TEMPR: Truth, express/implied consent, mere subjective opinion, privilege (if good faith), and retraction (in some states).
What are the invasion of privacy torts, and what are their defenses?
PAPI: public disclosure of a private matter, appropriation of commercial likeness, publication in a false light, and intrusion upon seclusion.
Defenses: public figure activities that are newsworthy, legitimate news story, TEMPR defamation defenses.
