Torts Flashcards
Negligence
A prima facie case of negligence requires a 1) duty of care, 2) a breach of that duty, 3) causation (actual and proximate), and damages.
–> Reasonable Person Standard
Duty
A defendant owes a duty of care to all foreseeable victims of his activities.
–> Reasoanbly Prudent Person standard for actions, owed to those within the “ZONE OF DANGER”
-Rescuer’s Exception - if a rescuer is injured, even though unforeseeable, can still have a valid claim b/c the D created the harm.
Special Standards of Care
Children - held to standard of ‘like child of similar age, education, intelligence, experience.
Innkeepers/Common Carriers - ‘utmost care’ standard (even slight negligence is actionable).
Custom or Industry Practice - a showing of a duty of care.
Professionals - ‘average care of a person in the profession’ standard.
Statutory - if 1) P within class meant to be protected, and 2) harm was within intended protection.
Landowner Standard of Care
(UALIN) Under Armour Likes Int’l News
Unknown Trespassers - NO DUTY
Anticipated Tresspassers - duty to warn for dangerous conditions, and reasonable care in activities.
Licensees - (social guests) reasonable care in activities, warn for KNOWN, DANGEROUS conditions.
Invitees - (commercial guests) reasonable care in activities, warn for KNOWN, DANGEROUS conditions, and DUTY TO INSPECT!!!
Attractive Nuisance - Owner is 1) aware of dangerous condition, 2) knows children are nearby, 3) likely to cause injury, and 4) risk outweighs expense to remedy.
Breach
D breaches when his conduct falls short of the standard of care owed under the circumstances.
Res Ipsa Loquitor - if P cannot prove D breached, but nature of accident suggests negligence conduct. Must show EXCLUSIVE CONTROL of D.
Causation
P must establish a causal connection between D’s actions and damages suffered by showing both actual and proximate cause.
Actual Causation
But-For Test - But for D’s breach, P’s injury would not have occurred.
Substantial Factor - if multiple causes but any one alone would have caused the harm.
Burden-Shifting (if multiple Ds, if shown one of their negligent acts caused, but not sure which, burden shifts to Ds to prove they are not responsible.
Proximate Causation
Foreseeability - D is liable for all foreseeable outcomes from his conduct.
Indirect/Intervening causes - if contributing acts occur between D’s action and P’s injury, D is still liable if injury COULD HAVE RESULTED without intervening act.
“EggShell Plaintiff Rule” - take your Plaintiff as you find him, liable for full extent of injuries.
Damages
Can be PERSONAL, PROPERTY, or even PUNITIVE, but must be shown by P.
Punitive only allowed if wanton, willful, reckless, or malicious.
Defenses to Negligence
Comparative Negligence - Modified = P can only recover if less than 50% at fault. PURE COMPARATIVE = can recover even if more than 50%.
Contributory Negligence - P is barred from recovery if D establishes that P’s OWN NEGLIGENCE contributed to her injuries.
Assumption of the Risk - D must show 1) P knew or should have known, and 2) P voluntarily proceeded in the face of the risk.
Nuisance
Private Nuisance - substantial, unreasonable interference with another’s individual use or enjoyment of property (must be offensive, annoying, or inconvenient to AVG PERSON, and injuries outweigh utility).
Public Nuisance - unreasonable interference with health, safety, or property rights of COMMUNITY AT LARGE.
Negligent Infliction of Emotional Distress
1) D created a foreseeable risk of causing severe emotional distress,
2) P was IN THE ZONE OF DANGER,
3) Causation,
4) Physical Manifestation of distress suffered.
Intentional Infliction of Emotional Distress
1) OUTRAGEOUS CONDUCT by the D that was
2) INTENTIONAL OR RECKLESS,
3) Causation, and
4) Damages (can be emotional distress, does NOT req. physical manifestations).
Bystander Claims - if 1) close relative, 2) was present at time of injury, 3) observed injury, and 4) suffers emotional distress as a result (does NOT req. physical manifestations).
Battery
1) HARMFUL or OFFENSIVE contact,
2) with the P’s PERSON,
3) Causation, and
4) Intent
Assault
1) creation of a REASONABLE APPREHENSION,
2) of an IMMEDIATE HARMFUL or OFFENSIVE CONTACT, and
3) Causation, and
4) Intent
False Imprisonment
1) act (or omission) resulting in RESTRAINT or CONFINEMENT,
2) to a BOUNDED AREA,
3) Causation, and
4) Intent
Shopkeeper’s Privilege - a store may detain a suspected shoplifter for REASONABLE CAUSE and for a LIMITED DURATION.
Trespass
1) PHYSICAL INVASION of P’s real property by D,
2) Causation
3) Intent
Trespass to Chattels/Conversion
1) Interference with right of possession in a tangible person property,
2) Causation,
3) Intent, and
4) Damages
Trespass = minor interference (cost of repair or rental)
Conversion = significant interference or harm (full market value is recoverable)
Consent
Defense to ALL Intentional Torts:
Can be express or implied (based on custom or conduct), and
Scope of intent is important. If injury is outside of scope, D is still liable.
Self-Defense/Defense of Others/Property
All types require:
1) REASONABLE BELIEF that D had regarding a tort to be committed,
2) PROPER TIMING (in progress or imminent),
3) REASONABLE FORCE proportionate to harm threatened.
Defense of Others: Step inside that person’s shoes
Defense of Property: Deadly force NOT ALLOWED. If intruder had privilege to enter land, not allowed.
Necessity
If PUBLIC necessity, absolute defense (reasonably necessary to protect community).
If PRIVATE necessity, limited defense (to protect self or own property). P can recover actual damages only.
False Light (FAID)
1) WIDESPREAD DISSEMINATION,
2) of a MATERIAL MISREPRESENTATION that is,
3) OBJECTIONABLE to a REASONABLE PERSON.
- -> If public concern, malice required.
Appropriation (FAID)
a P’s UNAUTHORIZED USE of their name or likeness, for commercial purposes.
-Newsworthiness exception: can use in reporting news.
Intrusion Upon Seclusion (FAID)
Invasion of a P’s PRIVATE AFFAIRS that is OBJECTIONABLE TO A REASONABLE PERSON.
-must have a reasonable expectation of privacy.
Disclosure (FAID)
WIDESPREAD DISSEMINATION of CONFIDENTIAL INFORMATION.
Must be objectionable to a reasonable person and some form of publication.
Defamation
1) A defamatory statement (fact based, look for inducement or innuendo),
2) ‘Of Or Concerning’ the Plaintiff (colloquium)
3) Publication to a Third Party, and
4) Damage to P’s Reputation
If a matter of public concern, must show:
5) Falsity and Fault (if P is a public figure, must show MALICE).
Defamation Damages
Two Types of Defamation Damages:
Libel (written, broadcasted) - damages presumed.
Slander (spoken) - if PER SE, damages presumed, if not, must show a specific economic loss.
Slander Per Se:
- business or professional reputation
- loathsome disease
- crime of moral turpitude
- woman’s chastity
Defamation Defenses
Consent - complete defense
Truth - complete defense
Privilege - ABSOLUTE if made by gov’t officials in official capacity. QUALIFIED if made to promote truthfulness of the speaker (cannot be with malice).
Misrepresentation (ASIC JR D)
A fraud or deceit action, must have:
1) AFFIRMATIVE MISREPRESENTATION OF A MATERIAL FACT,
2) SCIENTER (knowledge of falsity),
3) INTENT to induce reliance,
4) CAUSATION (actual reliance),
5) JUSTIFIABLE RELIANCE, and
6) DAMAGES
Can also show Negligent Misrepresentation with same elements, less intent.
Strict Liability
a D’s liability can be established without a showing of negligence in certain instances:
- Abnormally Dangerous Activity
- Animal Conduct
- Products Liability
Defenses: assumption of risk, comparative negligence
Abnormally Dangerous Activity
An activity that:
1) involves a RISK OF SERIOUS HARM,
2) that cannot be performed without the risk, and
3) the conduct is UNCOMMON to the COMMUNITY.
The damages MUST RESULT from the abnormal activity to warrant strict liability.
Animal Conduct
- Property damage from trespassing animals is strict liability for animal owner.
- Wild animals - if they cause injury, strict liability.
- Domestic animals - only strict liability if owner is AWARE OF DANGEROUS PROPENSITY.
- Trespassers cannot recover.
Products Liability
1) D is a MERCHANT,
2) Product is DEFECTIVE,
3) Product is UNALTERED since leaving D’s control, and
4) P used the product in a FORESEEABLE MANNER.
Types of Product Defects
MANUFACTURING DEFECT - product did not perform as expected.
DESIGN DEFECT - product could have been designed better (without undue cost).
INADEQUATE WARNING - manufacturer did not warn of a non-obvious risk of use or misuse.
Implied Product Warranties
WARRANTY OF MERCHANTABILITY - goods are of average acceptable quality.
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE - if merchant is aware of specific use, and buyer relies of seller’s skill/judgment, must be fit for specific use.
Vicarious Liability
RESPONDEAT SUPERIOR - employers are liable for torts committed by employees within the scope of employment.
Other types:
- Independent Contractor (no liability unless inherently dangerous)
- Partnerships
- Parent/Child
- Tavernkeeper
- Bartender/Patron (liable only if Dramshop Statute in place
Joint and Several Liability
Arises if the acts of two or more D’s combine to produce a single injury. If the injury is divisible, each liable for their share, otherwise jointly liable.
