Torts Flashcards
Requirements for intent
1) desired outcome; or
2) knew outcome was substantially certain to occur.
Battery elements
1) intent
2) harmful or offensive contact
3) to a person or something connected to the person
Transferred intent
When a def. intends to commit a tort on X but injures Y, intent transfer to Y
Assault
1) Intent
2) reasonable apprehension of;
3) imminent battery (almost instantaneous)
When can you have an assault without a battery?
Near miss case
When can you have a battery without an assault
Sleeping plaint.
False imprisonment
1) intent
2) confinement (bounded area);
3) against will; and
4) knows of confinement or is injured thereby
How long does someone have to be confined for false imprisonment to exist?
No length required.
In a false imprisonment case, what happens if there is a reasonable means of escape?
There is no false imprisonment but there must be knowledge and it must be reasonable.
What happens if the plaintiff is not aware of the confinement?
No false imprisonment unless injured while unaware
Intentional inflection of emotional distress
1) intent or recklessness
2) extreme/outrageous conduct
3) causation
4) severe emotional distress
Conversion
1) intent
2) dominion/control
3) substantial interference
Trespass to land
1) intent
2) enter
3) plaint.’s land
remedies for conversion
1) forced sale (pay value)
2) replevin
Trespass to chattel
1) intent
2) interference
3) plaint’s chattel
4) harm
Defenses available for intentional torts?
POPCANS Privilege Others (defense) Property (defense) Consent Authority Necessity Self Defense
Consent
Express - plaint. by words, manifests a willingness to be exposed to tortious contact.
Implied - reasonable belief (vaccination case)
Self Defense
honestly and reasonably believes that the force is necessary to prevent imminent harm
Reasonable belief
Force (proportionate) is necessary
to prevent imminent harm
Can a defendant use deadly force to protect real property in tort actions?
No - but defense of property can escalate into defense of others, which allows deadly force.
when is reasonable force allowed in tort defense?
self defense defense of others defense of property ejecting a trespasser after asking to leave to get back property (after a request)
Defense of necessity
Public necessity – arises where the defendant is: acting to protect the PUBLC from harm.
Private necessity - Dock example
Arrest
Police felony - reasonable belief
Misdemeanor - breach of the peace
Private citizen - their own peril
If X’s boat is sinking and to prevent from drowning he ties his boat to Y’s dock and walks across Y’s land. X’s boat causes damage to Y’s dock. How is X liable?
Damages to the dock but can assert necessity defense for trespassing.
Shopkeeper’s privilege
Storeowner can detain person if they have REASONABLE SUSPICION that someone has shoplifted
must conduct reasonable investigation
must hold or a reasonable duration
Discipline
Parents/teachers can use reasonable force to discipline children.
What are the exceptions to the nonfeasance (no duty to act) doctrine?
- def. tortious conduct creates the need for rescue
- undertake rescue, must continue reasonably
- Def. creates reliance
- Special relationship (common carrier)
What are the exceptions to the rule that there is a general duty to act reasonably?
- unforeseeable plaint.
- nonfeasance
- harm other than personal injury
- def. is landowner
Duty to third party
?
Negligent entrustment
Def. owes a duty to a foreseeable plaint. if he gives a dangerous object to someone he knows can’t handle it (gun to a child)
Duty to protect
No duty to protect except in special relationships (landlord/tenant)
Gov’t defendants
Discretionary - gov’t is involved in resource allocation or judgment - NO DUTY
Ministerial - Duty after undertaken the act
When is a duty owed for emotional distress?
When the plaint is in the “zone of danger”
What is the duty for emotional distress bystander actions?
Zone of danger
Types of plaintiffs (and duty owed) suing a land possessor/owner for condition on the land.
Invitees (enters w/ express/implied consent AND confer a potential economic benefit or land held open to public at large) DUTY: Reasonable care
Licensees (express/implied consent of landowner AND no economic benefit, such as social guests) DUTY: to warn of known concealed dangers.
Trespassers (people who enter the land w/o express/implied consent) DUTY: avoid the infliction of willful or wanton harm.
What is the duty for activities on land?
Reasonable care for any person on the land
Child trespasser doctrine
Trespassing children are treated like an invitee when:
1) child is too young to appreciate danger
2) foreseeable
3) know of dangerous condition
4) only applies to artificial conditions
Plaintiff’s not on land but adjacent to it?
artificial condition -reasonable care
natural condition - tree in an urban area - reasonable care
Landlords/tenant liability
not liable unless:
1) common areas
2) negligent repairs
3) known dangerous defect on the property
4) Landlord knows that the tenant is going to hold the property open to the public at large
then - REASONABLE CARE
Default standard care
Reasonably Prudent Person Under the Same or Similar Circumstances
what individual standards are accounted for in the standard of care?
Physical condition (e.g., blind, deaf)
emergency circumstance (unless def. creates emergency)
factors in breach analysis of reasonably prudent person
- probability of harm based on conduct
- likelihood of injury to plaint.
- what it would take to avoid harm (how difficult)
- customs in the industry
when are child def.’s treated with adult standard of care?
When they are engaging in adult activities.
What is the formula for determining breach
Whether the burden is small relative to the probability of harm
Assumption of risk types
Express: clear writing, not a necessity
Implied: three elements:
1) plaint. knew risk
2) plaint. understood risk
3) plaint. confronted the risk voluntarily.
(DON’T over-apply)
What is the difference in mental state between assumption of risk and comparative fault?
Assumption of risk - subjective
Comparative: objective
Defenses to negligence
Comparative fault
Assumption of risk
Avoidable consequences.
when does strict liability apply?
Wild Animals
Abnormally dangerous activities
Product liability
Eight elements for Strict Products liability
-Proper plaint (user, consumer, bystander w/physical injury)
-proper def. (mfg, wholesaler, retailer, NOT occasional seller)
-proper context (product, not service)
-defect (MFG, design, warning)
cause-in-fact
proximate cause
-damages (must be personal injury or property damage other than the product)
-strict product liability defenses (misuse, alteration, assumption of risk)
What types of products are exempt under product liability?
Extraordinary social utility and no alternatives.
When do manufacturers have to warn?
WHen there is a risk it knows or should know based on the gravity and probability of harm.
Nuisance
- Intent
- Substantial and unreasonable interference (1. value of the def.’s activity; 2. alternative; 3. nature of locality; 4. extent of plaint.’s injury; 5. who was there first)
- Remedy (injunction; damages)
What do you need to get an injunction
1) irreparable harm
2) damages are insufficient
What is publication
Someone other than the plaint. read, saw, or heard the defamatory statement.
RULE:
1) intentionally published information
2) negligently published the defamation
defamation for public figures
?
defamation for private individuals
Private concern
Public concern - plaint. must show negligence of reputational harm. for actual damages, actual malice for presumed/punitive damages.
