Torts Flashcards
1
Q
What are the elements of the tort of battery?
A
i. Defendant commits harmful or offensive contact ii. With Plaintiff’s person
2
Q
What type of contact is considered “offensive” within the tort of battery?
A
“Offensive” if normal person wouldn’t permit it.
3
Q
Do sensitivities matter when considering whether the contact is “offensive” within the tort of battery?
A
Ignore sensitivities, unless the sensitive person makes the sensitivity known.
4
Q
Can a D commit a battery without touching the P’s body?
A
Yes. Contact with the Plaintiff’s person includes the person and anything that the person is holding.
5
Q
What are the elements of the tort of assault?
A
i. D places P in reasonable apprehension ii. Of an immediate battery
6
Q
Does the “apprehension” necessary for the tort of assault require that P feel nervous or apprehensive?
A
No. assault doesn’t require that P experience any particular emotion. Rather, P must merely have knowledge of the immediate battery.
7
Q
T or F: P wasn’t sure whether the gun that D pointed at him was loaded or not. Therefore, D cannot have committed an Assault.
A
F. P need not have definitive knowledge of an immediate battery. depends on what Plaintiff knows or reasonably believes that gun loaded (and it usually is);
8
Q
D calmly told P that D is about to punch him. Did D commit an assault?
A
No. The battery isn’t considered immediate because D’s words were negated by his tone of voice. For the apprehension of the battery to be “immediate” the battery needs to be accompanied by a menacing gesture.
9
Q
Smiling while handing P a bouquet of roses, D says, “I’m going to kill you!” Did D commit an assault?
A
No. D’s actions negated D’s words.
10
Q
As D walks out the door, he turns to P and says, “When I get back from to the gun shop with bullets, I’m going to shoot you.” Did D commit an assault?
A
No. P’s apprehension isn’t of an immediate battery.
11
Q
What are the elements of the tort of false imprisonment?
A
i. D commits act of restraint that ii. Confines P in a bounded area
12
Q
Can threats be considered sufficient acts of restraint?
A
Yes. Threats are sufficient acts of restraint if the person reasonably believes that it’s a threat.
13
Q
Flight attendants for get to take a woman in a wheelchair off of the airplane. Have they committed an “act of restraint” for the tort of false imprisonment?
A
Yes. An omission that can be an act of restraint provided there’s a preexisting duty between the persons.
14
Q
Must the plaintiff be harmed by the act in order for the defendant to have committed the tort of false imprisonment?
A
No. Even if the plaintiff merely knows of the confinement but is not harmed by it, the act can be considered an act of restraint.
15
Q
One man tells another man that if he leaves central park he will kill him. Did the man commit the tort of false imprisonment?
A
Yes. T confined P in a bounded area. An area is considered abounded even if it is not marked by fences or walls.
16
Q
D confines P in a basement. The only way out is a sewer tunnel. Did D T commit the tort of false imprisonment?
A
Yes. While P is not considered bounded if there is a reasonable means of escape that P can reasonably discover, if the only way out is harmful, humiliating, dangerous, or disgusting, it’s not a reasonable means of escape.
17
Q
D’s butler puts P in D’s study and locks the door. The only way out is by pulling on a book on the bookshelf to reveal a hidden exit. Did D’s butler commit the tort of false imprisonment?
A
Yes. P is not confined in a bounded area if P can reasonably discover a means of escape. If the escape is hidden, it’s not reasonably discoverable.
18
Q
What are the elements of the tort of intentional infliction of emotional distress?
A
i. D engages in outrageous conduct ii. P suffers severe emotional distress
19
Q
What type of conduct is considered “outrageous” within the tort of intentional infliction of emotional distress?
A
Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society.
Even if not meeting this standard, it may become “outrageous” if
- Conduct is repetitive
- D is common carrier (transportation company) or innkeeper (hotel)
- P is member of a fragile class of persons
- Children
- Extremely elderly
- Pregnant woman
20
Q
Can mere insults be considered outrageous “outrageous” within the tort of intentional infliction of emotional distress?
A
Mere insults aren’t outrageous. Insults together with other behavior can be outrageous.
21
Q
P has a severe emotional reaction when placed near cats. P makes his sensitivity known to his coworkers. D brings in a selection of the kittens that were born to his cat recently; they are extremely cute. D places the litter on P’s desk. Did D commit an outrageous act within the tort of intentional infliction of emotional distress?
A
Yes. Deliberately targeting known emotional sensitivity is outrageous.
22
Q
During trial for the tort of intentional infliction of emotional distress P doesn’t prove that he developed any physical symptoms, missed work, is on medication, etc. Can P prevail?
A
Yes. No specific evidentiary showing needs to be made. Don’t need to show that developed physical systems, missed work, saw doctor, or on medication.
23
Q
What are the elements of trespass to land?
A
- D commits act of physical invasion
- which interferes with P’s exclusive possession of the land.
24
Q
What are the two ways of committing an act of physical invasion within the tort of trespass to land?
A
i. Method 1—D enters on the property. ii. Method 2—Propelling something physical onto the land. Causing loud noises, bad smells, bright lights—none are trespasses
25
P sues D trespass to land and proves all of the elements. D raises as an affirmative defense that he entered P's Land accidentally. Who prevails?
P. A mistaken entry is not a defense—D doesn’t need to know that he has entered the property. If get lost, still commit tort.
26
P sues D trespass to land and proves all of the elements. D raises as an affirmative defense that he entered P's Land after being kidnapped. Who prevails?
D because he was brought there against his will.
27
P is the owner of Rental Property. D breaks into P's property while X and Y are renting P's Property. P sues D for trespass to land. Who prevails?
D because cause of action belongs to possessor, not owner.
28
Little Johnny is throwing a ball across P's yard. The ball crosses the airspace of P's yard but does not actually land in P's yard. P sues little Johnny. Who prevails?
P does. Interest in land trespassed includes a reasonable distance into air above and soil below the land. Little Johnny's status as a minor is not a defense. Also, there are no incapacity defenses in intentional torts. Therefore, any person that lacks legal capacity can commit a tort.
29
What is the definition of trespass to chattels?
Interference with personal property.
30
What is the difference in definition between trespass to chattels and conversion?
If it's relatively minor interference, use chattels. E.g., “keying” someone’s car. Conversion E.g., smashing windows, pulling off fender of someone’s car.
31
What is the definition of conversion?
Interference with personal property.
32
Which would a P rather prove: conversion or trespass to chattels?
Conversion b/c Ps get full market value of item, rather than just repair or rental value that they would with trespass to chattels. It’s in essence a forced sale.
33
Can someone without legal capacity give consent?
No. Unlike the ability to commit a tort, which doesn't require legal capacity, the ability to consent requires legal capacity.
34
Two 11 y/o boys are wrestling. In the normal course of playing, one boy breaks the other's arm and is sued for battery. Who wins and why?
D wins because P consented.
Rule: Developmentally disabled and children can consent if understand and appreciate what consenting to. Child can agree to developmentally appropriate consents.
35
P signs consent form allowing Dr. X to perform surgery on P's foot. P has never met Dr. X. Person Y, who is a resident and not a doctor, performs the surgery on P's foot but during the surgery also notices serious abnormalities with P's hip. Wishing to save P the trouble of having another surgery, Y operates on both P's hip and foot. P sues Y for battery. Y raises consent as a defense. Who prevails and why?
P prevails. Y exceeds the scope of P's consent both in terms of Y's performing the surgery rather than Dr. X and because consent to operate on one part of body isn't consent to operate on another unless the parts are adjacent.
36
What are two methods of implied consent?
a. Usage or custom—place is where certain invasions are normal. E.g., sitting in barber’s chair without saying, “Cut my hair.” E.g., playing sports. b. D’s reasonable interpretation of P’s objective conduct and surrounding circumstances (“body language consent”)
37
What are the three protected privileges?
Self-Defense, Defense of Others, Defense of Property
38
How long after being threatened can a person respond with one of the protected privileges?
may respond to a threat only when a threat is imminent or in progress. Cannot act after threat is done with. No revenge.
39
D is standing at an airplane baggage claim. D scrupulously labeled his bag with a ribbon. D sees that P has taken his bag and is walking out with it. D runs after P and grabs his bag from P. D sues P for battery. Can D assert any defense ?
D has the protected privilege of defense of property. D reasonably believes that the threat to his property is genuine. D's reasonable mistake doesn't prevent him from successfully asserting the defense. If
40
P approaches D angrily and begins to swing his fists. D pulls out a knife and stabbed P. In P's suit for battery, D asserts Self-Defense. Who prevails?
P prevails. Response is no more than necessary. Proportional force. If approached with deadly force, can respond with deadly force.
41
Deadly force is acceptable for defense of property when the property is being threatened. True or false?
False.
42
D, who is not a firefighter, runs to the scene of a fire at P's house that is threatening a row of houses on P's block. D takes a stone and breaks the window near the door of P's house to unlock the door. The stone also strikes P's child, breaking his arm. D puts out the fire. P sues D for trespass to chattels for breaking the window and for negligence for breaking P's child's arm. Can the defense the D raises prevail on both counts?
D prevails with Public Necessity on trespass to chattels but that defense is not available for negligence. To improve public necessity as a defense, P must invade if D’s property in an emergency to protect the community as a whole or a significant group of people. The necessity defenses only apply to property torts.
43
Dave is hiking in MN in Jan. Blizzard. Sees farmhouse. Knocks on door. No one answers. Breaks window. Farmer sues D for trespass to chattels for three times the value of the window. Who prevails? If famer kicks D out of P’s house and D sues P when suffers frostbite, who would prevail?
D asserts the defense of Private Necessity. As D invades P’s property in an emergency to protect interest of his own, D prevails. And however, it’s a limited defense. D must pay actual damages to property (compensatory damages). Not liable for nominal or punitive damages. D must pay for window. If farmer kicks D out of P’s house and D sues P when suffers frostbite, hiker would prevail.
44
What are the elements of defamation?
1. Publication
2. of a defamatory statement
3. about or concerning P that
4. causes damage to P's reputation
Truth is a defense; falsehood needn't be alleged unless it's a matter of public concern, in which case P must also allege
1. falsity; and
2. fault
45
Is mere name calling defamatory?
Mere name calling isn’t defamatory. Need an allegation of factual representation that affects negatively on trait of character (honesty, competency, loyalty, morality). “Defamatory” when adversely affects reputation.
46
True or false a dead person can be defamed.
False
47
How many people must hear a statement for it to be considered a publication under the tort of defamation?
No harm to reputation if statements made only in private. Therefore, only one other person aside from P needed.
48
The negligent or inadvertent publication is sufficient to make out a claim for defamation. True or false?
True
49
P proves all of the elements of defamation but fails to offer evidence of damages. D moves for a directed verdict. What's the result?
Damages are presumed (no evidence needed) in
* All libel; and
* Slander per se—
* Statement relating to business or profession
* P has committed a serious crime, such as fraud or violence
* Imputation of un-chastity to a woman
* P suffers from a loathsome disease
Slander not per se needs offer of economic harm evidence (lost job, lost contract, lost business) to get to jury; if no evidence offered it’s a directed verdict for D.
50
What affirmative defenses are available against the tort of defamation?
a. Consent b. Truth of statements—D bears burden of proof c. Privileges d. Bears on matter of public concern
51
What are the privileges available as an affirmative defense in the tort of defamation?
**Absolute privileges—**
1. Spouses can exchange defamatory statements without being sued.
2. Officers of government in pursuit of official duties. Includes judges, lawyers, etc.
**Qualified privileges—**if have reasonable (must be relevant) and good faith basis (can’t lie) for what you say in the following situations that gave rise to speech—
1. Where public interest in ensuring candor—references and recommendations
2. Statements made to police.
52
If D raises the defense against a defamation claim that defamatory statements they bear if on a matter of public concern, what must P prove?
Two elements for P to win— 1. Falsity—P must show that statement inaccurate if 2. Fault— If P is public figure, must prove that knowingly false or reckless dissemination of statement (Constitutional malice) For private figure it’s negligent dissemination.
53
What are the four privacy torts?
Appropriation, disclosure, intrusion, false light.
54
How does one make out an appropriation claim?
P uses D’s name or image for a commercial purpose E.g., cereal manufacturer puts famous athlete on box. Newsworthy exception (don’t want to inhibit free speech) applies If Everyone has this right; don’t need to be famous
55
How does one make out the disclosure claim?
**Widespread dissemination** of information of **confidential** nature about P that would be **highly offensive** to average person
Example: doctor’s receptionist mails average person’s medical records If person is famous, major public figure, not disclosure Must be truly private. E.g., P is openly gay with family and friends but not at work; D a co-worker tells others at work. D isn’t liable.
56
How does one make out a claim of intrusion?
Invasion of seclusion in a way that’s highly offensive. Example: wire tapping, peeping Tom P must be in place where in expectation of privacy. E.g,. home, hotel room.
57
How does one make out a claim of false light invasion of privacy?
Widespread dissemination of material falsehood that would be highly offensive to average person.
58
What is the difference between false light invasion of privacy and defamation?
Damages—economic damages only in defamation; but social and emotional harm is recoverable in false light. False light is broader than defamation. Falsehood need not be defamatory. E.g., mischaracterization of beliefs. If P is Jewish and D spreads that he’s Roman Catholic, that’s false light.
59
What are the defense is available to the privacy torts?
a. Consent is defense to all 4 b. Defamation privileges—but only to disclosure and false light.
60
What are the elements of negligence?
a. Duty of Care b. Breach of Duty c. Factual and proximate causation d. Damage
61
Within the tort of negligence, what is the generally applicable standard of care that forms D's duty to P?
D is required to act as a reasonably prudent person acting under similar circumstances. It’s an objective standard. We make no allowance for D’s particular circumstances, even if incapable of doing so, such as mentally incapable & amateurs. Doing the best they can isn’t good enough.
62
What are two exceptions to the generally applicable standard of care that forms D's duty to P?
A. D has superior skill or knowledge, held to higher standard. 1. Race car driver must drive private car with higher level of car. 2. D, a regular person, knows that a particular intersection is dangers. D has higher standard of car. B. D’s physical characteristics are relevant, must take them into account.
63
What do I need to write if I decide on essay that no exception to reasonably prudent person standard doesn’t apply?
"Because no exception applies, the RPP std does applies.."
64
What standard of care must children act under for the duty element of negligence?
1. under 5: no duty of care to others
2. 5 to 18: hypothetical child of similar age, experience, and intelligence acting under similar circumstances (subjective std)
3. RPP std applies for adult activity—e.g., vehicle with engine
65
What standard of care must a professional service provider act under for the duty element of negligence?
A professional is held to std of care of average member of that same professional performing similar services. Don’t compare to imaginary reasonable person but to other colleagues, conform to others (best practices), “custom of the profession sets the s/o/c.” Don’t use “reasonable.”
66
What standard of care must a possessor of real property act under to undiscovered trespassers for the duty element of negligence?
possessor doesn’t owe trespasser any duty of care. D loses (like unforeseeable P).
67
What standard of care must a possessor of real property act under to discovered trespassers for the duty element of negligence?
D owes duty only for known, made-made death traps.
Owe duty if condition:
1. **artificial** (built or constructed by humans), not a natural conditions (snow, ice);
2. **highly dangerous** (can cause serious injury or death). E.g., unsecured rug;
3. concealed from trespasser. If open and obvious, don’t owe duty; **AND**
4. Possessor must have **prior knowledge** of condition.
68
Who is considered a discovered trespasser for negligent premises liability?
Trespassers that D **should have discovered and anticipated**.
69
Who is considered a licensee for negligent premises liability?
Someone who enters with permission, but confers no economic benefit (e.g., a social guest). Imply consent to walk up to front door.
70
What standard of care must a possessor of real property act under to a licensee for the duty element of negligence?
To owe a duty to P, condition must be concealed and possessor must know about in advance. I.e, D must protect P from all known traps.
71
Who is considered an invitee for negligent premises liability?
Someone who enters with permission and 1) confers an economic benefit or 2) property is open to public at large. E.g., customer of business, place of worship, museum.
72
What standard of care must a possessor of real property act under to an invitee for the duty element of negligence?
D owes duty to P for conditions that are concealed but possessor knew about or could have discovered with reasonable inspection. I.e., must protect from reasonably knowable traps on land. Don’t need to clean up or discover right away and don’t need to discover everything. Need to clean up in a reasonable amount of time
73
What duty does a possessor of real property owe to firefighters and police?
Officers cannot recover for an injury that’s an inherent risk of their job.
74
What duty does a possessor of real property owe to child trespassers?
Under the **attractive nuisance doctrine,** landowner must exercise a reasonably prudent person's standard of care if
1. owner is aware of a dangerous **artificial condition**
2. owner knows or should know that children frequent the area
3. the condition is likely to cause injury; and
4. the expense of remedying the condition is slight in comparison to seriousness of risk.
75
How can a possessor of real property satisfy his duty to an entrant?
To satisfy duty can a. Fix problem or b. Give a warning
76
What is negligence per se and when do we apply it?
It's statutory borrowing of a std of care. Will borrow a criminal or other statute to establish duty where— a. Violation is type of risk that the statute was seeking to avoid; and b. P is within class of persons that statute trying to protect.
77
Even if negligence per se applies, what exceptions prevent us from applying it?
a. Compliance with statute more danagerous than noncompliance. E.g., swerving over double yellow line to avoid a collision. b. Statutory compliance impossible. E.g., driver has heart attack and commits battery.
78
When does a D have a duty to act affirmatively to rescue a P?
No duty to rescue, except where
1. D assumed a duty and then abandoned it
2. pre-existing relationship exists, such as employer and employee or even two friends
3. D put P in peril in the first place
79
If D acts to rescue, even if didn't have a duty to do so, and injures P, can P recover?
Yes, if D didn't act reasonably. E.g., helping stranger chocking you break his ribs—will be liable, unless there’s a Good Samaritan statute.
80
What are the Elements of Negligent Infliction of Emotional Distress?
a. D has violated another duty of care and b. P didn’t suffer any direct damage to body, only emotions.
81
What are the three groups of situations in which Negligent Infliction of Emotional Distress cases arise?
a. Near miss—D almost strikes P with car, etc. and traumatizes P (scared).
b. Bystander—D inflicts physical injury on X and P is upset about injury (sad). “Ringside seat to watch loved one get creamed.”
c. Relationship—P and D in preexisting relationship and careless performance of business will distress customer
82
What does P need to prove for a near miss category of neglgnt inflction of emotional distress action? For example, D almost strikes P with car, etc. and traumatizes P (scared).
1. P in **zone of physical danger**; and
2. P has **subsequent physical manifestations** of distress, e.g., miscarriage, heart attack, twitching (to rule out fraud).
83
What does P need to prove for a bystander category of neglgnt inflction of emotional distress action? For example, D inflicts physical injury on X and P is upset about injury (sad).
1. P must be parent, child, or spouse; and
2. Must see has happens.
84
How does P establish a Breach of Duty for a negligence action?
P must identify: 1) what D did wrong and 2) why reasonable person would have done different Be specific about what the breach was because need to get damages.
85
What is Res Ipsa Locuitor and when does it apply?
Substitute for proving **breach of a duty**. Someone messed up or injury wouldn't have happened, but P cannot identify what D did wrong. E.g., human toe found in package of chewing tobacco.
Without proof of breach would be a directed verdict for D; however, P gets to jury by showing:
1. Accident that occurred is normally associated with negligence; and
2. Accident of this type would normally be due to negligence of someone in D’s position because D had control over instrumentality that caused damage.
Jury not obligated to accept the breach element proved by RIL.
86
What's the test for factual cause that P must prove in a negligence action?
But for D’s breach, P would be uninjured today. Imagine what would happen if D acted properly. E.g., if D would have stopped at red light, P would be uninjured today.
87
What are the two exceptions for P's requirement to prove factual cause and what test is used in place of the regular factual cause test?
* **Mingled causes**—2 or more Ds acting independently that create a destructive force that, combined, injury P. E.g., two fires caused by two Ds.
Use the **substantial factor test**: It’s a breach if, by itself, would have caused injury.
If proved, both Ds are held jointly and severally liable.
* **Unascertainable cause**—E.g., 3 hunters and all fire gun but unsure which hunter’s gun injured D.
Burden of proof shifts to Ds to prove that didn’t do it or all J&S liable.
88
What's the general test for proximate cause?
D is liable for foreseeable consequences of careless acts.
89
What are the two types of proximate causes?
* **Direct cause**—where direct and immediate relationship between breach and damage; when outcome is freakish or bizarre won’t be liable (e.g., Palsgraff).
* **Indirect cause**—an affirmative intervening force following defendent's negligent act and combines with it to cause P's injury.
90
What are the four types of indirect proximate cause?
**1. Intervening medical malpractice**—Is driver liable for amputated leg that results from Ds car accident with P that puts P in hospital where Dr. messes up resulting in P’s amputated leg. Reason: medical malpractice is foreseeable.
**2. Intervening bad rescue**—same as above, but that Good Samaritan rescues P and dislocates P’s shoulder. D is responsible because some rescuers will make things worse.
**3. Intervening reaction or protection force**—D runs red light and hits P ped’s leg, other peds stampede and hurt P further.
**4. Subsequent disease or accident**—P gets crutches and then breaks arm because of crutches.
If not one of 4 above, ask “What damages am I worried about as a result of and what damages actually happened as a result of breach?” If there’s a reasonably foreseeable relationship between the two, there’s indirect cause.
91
D accidentally gently bumps into P who falls over and breaks several bones because of severe osteoporosis. Can P recover in a negligence action for all of the broken bones?
Yes under the doctrine of "Eggshell Skull”: Take P as find P with whatever frailties has. Once a P establishes all of the other elements for negligence, P will recover for all damages, even if they are surprisingly great in scope. Applies to all torts, not just negligence
92
Where D believes that P is completely or partially responsibile for P's damages what affirmative defense is available to D in a negligence action?
P failed to exercise reasonable care for own safety
**Contributory Negligence:** P's right to recovery completely barred under common law, unless
* D had last clear chance;
* basis for D's duty is statute designed to protect from P's own negligence; or
* D's conduct intentional or wanton and willful
**Pure comparative negligence:** Jury assigns percentage of blame for P’s negligence and reduces P’s recovery based upon percentage of fault.
E.g., P gets recovery of 10% even if 90% liable.
**Partial comparative negligence:** P's damage award reduced if fault below a threshold level; beyond that level, P's damage recovery barred.
E.g., P recovery reduced ratably until contributory negligence over 50% produces absolute bar to P’s recovery.
93
What are the three types of strict liability situations?
1) Damages caused by animals 2) Abnormally dangerous activities 3) Products
94
When is D strictly liable for damages that his animal causes?
**For domesticated** (house pets and livestock)
Only liable for negligence, unless have prior knowledge of viciousness. If bit previously, will be strictly liable if have knowledge, unless bites trespasser.
**For wild animals**
Strictly liable, whether bit or not. Doesn’t matter how many precautions D has taken.
95
When is D strictly liable for damages caused by abnormally dangerous activities?
1. Activity causes **foreseeable risk** of **serious harm** even when reasonable care exercised. (Can’t make activity safe); and
2. **Uncommon** activity in area where D pursues activity (out of context)
Examples: use of explosives, use of dangerous materials, nuclear radiation.
96
When is D strictly liable for damages caused by D's products?
1. D was a **merchant**
2. Product has a **defect**
3. Product **not altered** since leaving hands of D
4. P making **foreseeable use** of product at time of injury
97
Who is considered a "merchant" in a products strict liability negligence COA?
Someone who routinely deals with merchandise of this type is a merchant. Commercial lesser—can be held liable. E.g., failure of breaks on rental car
98
Does P need to prove that product hasn't been altered when proving a products strict liability negligence COA?
Presumption that not altered if moved in ordinary channels of distribution.
99
Can a service provider be a merchant of goods in a products strict liability negligence COA?
No. Service providers aren’t merchant of goods. E.g., doctor not liable if chair breaks.
100
Is only the seller of the product considered a "merchant" in a products strict liability negligence COA?
Every entity in distribution chain is liable, not just end merchant. Drill bought at Home Depot—can sue Black & Decker. No privity of contract requirement.
101
What are the three types of defects in a products strict liability negligence COA?
**a. Manufacturing defect**—when differs than others that came off of same assembly line and dangerous to consumers. Doesn’t matter what precautions taken.
**b. Design defect**—P can show that another way that product can be built that’s safer and still cost effective and practical. Can’t avoid liability with warning.
E.g., not widely enough spaced crib slats. Failure to conform to govt specs proves design defect.
**c. Information defect**—can’t be designed out, has residual risks, not apparent to consumers, and not adequately disclosed.
Warning must be in English, pictures, not buried, etc.
102
Does the use of a product need to be the intended or appropriate use of the product for P to have a products strict liability negligence COA?
No. E.g., Chairs are foreseeably used for standing on even though misused.
103
What is Vicarious Liability?
P has valid COA against D (who has no direct responsibility for the tort) but because of the relationship that the active tortfeasor has with D is held responsible. It's a doctrine of last resort—use only when can’t hold the person being sued liable for own conduct
104
What are the three types of relationships that can give rise to a vicarious liability?
1) Employer-employee where employee is active tortfeasor is tort committed within scope of employment. 2) Independent contractor—hiring party generally not liability except if independent contractor hurts customer on the property of hiring party 3) Owner of car responsible for torts of driver only where doing errand for owner.
105
T or F? If an employee commits an intentional tort it’s outside the scope of vicarious liability.
False where a. Job includes authorization to use force. E.g., night club bouncer b. Job involves tension and conflict. E.g., debt collector. c. Tort being conducted in effort to advance employer’s interest
106
What is loss of consortium?
If spouse has been injured by tortfeasor, uninjured spouse can recover loss of
1. household services
2. companionship (“society”)
3. marital intimacy
107
What is joint and several liability?
Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liability. If injury divisible, each D is liable only for the identifiable portion. Even if divisible, if Ds act in concert, it's not divisible.
108
What is comparative contribution?
Apportioning liability so that a D who pays more than his share of damages under J&S liability, has claim against other jointly liable parties for the excess. N/A to intentional torts.
109
What is indemnification?
Shifting the entire loss b/w tortfeasors: 1. by contract 2. in vicarious liability 3. in strict products liability 4. difference in degree of fault. E.g., Retail store can get 100% back from manufacturer.
110
For all intentional torts, what 3 elements must be present?
1) a **volitional movement** by D
2) **intent** that's either
* specific (purposely bringing about specific consequences) or
* general (D knows with substantial certainty that these consequences will result). D doesn't need to intend the specific injury.
3) **causation**: D's conduct a substantial factor in bringing about the injury
111
Transferred intent applies among these torts only
assault, battery, false imprisonment, trespass to land, trespass to chattles
112
Can a parent ever be responsible for their children's torts?
Parent not vicariously liable for child's torts at common law. Most states make parents liable for intentional torts of children up to a certain dollar amount.
If child acting as parent's agent, though, parent can be vicarously liable.
Parent can be held liable where the parent's own negligent supervision of the child results in the child injuring or damaging.
113
Is assumption of risk a defense to intentional or negligence torts and what must D prove?
Negligence. Consent is equivalent for intentional torts.
D must prove that P expressly (both contributory and comparative negligence) or impliedly (contributory only)
1. knew of the risk; and
2. voluntarily proceeded in the face of the risk.
