Torts Flashcards
Vicarious liability - Employees
Employers are vicariously liable for the negligence of their employees committed while they are acting within the scope of their employment. Employers are generally not liable for employee’s intentional torts unless force is authorized in the employment, friction is generated by the employment, or the employee is furthering the business of the employer or principal. Employees are always liable for their acts, whether there is vicarious liability or not.
Vicarious liability - independent contractors
A principle is liable for the negligence of their independent contractors when the independent contractor is engage in inherently dangerous activities or if the duty is non delegable.
Intentional torts
Intentional torts require the intention to do the act that causes the tort, not the intent to cause the particular harm. Intentional torts include assault, battery, false imprisonment, trespass, trespass to chattels and conversion, IIED, abuse of process, and malicious prosecution.
Assault
A volitional act done with the intent to cause either harmful or offensive contact or the apprehension of imminent harmful or offensive contact that causes a reasonable apprehension of harmful or offensive contact.
Battery
A volitional act done with the intent to cause either harmful or offensive contact or an apprehension of imminent harmful or offensive contact that causes harmful or offensive contact.
False imprisonment
An act intending to confine someone within boundaries fixed by the actor, directly or indirectly resulting in such confinement, and the confined person is either conscious of the confinement or harmed by it.
False imprionsnment defenses
Shopkeepers privilege - Can be claimed if there are reasonable grounds to believe a theft has occurred, they hold the plaintiff for a reasonable time to ascertain the facts, and in a reasonable manner.
Crime prevention - Private persons may arrest someone if they have a reasonable belief that a crime has occurred that involves a breach of the peace.
Trespass to chattel
An act which is an intermeddling or dispossession of the personal property of anther which causes harm to or the loss of use of personal property.
Conversion
An act which is an intermeddling or dispossession of the personal property of anther which causes harm to or the loss of use of personal property which is serious enough to warrant defendant paying full value of the item at the time of conversion.
IIED
Intent to cause severe emotional distress and extreme outrageous conduct that causes severe emotional distress. There is no requirement to show physical harm.
Abuse of Process
Abuse of process involves using a legitimate for a wrongful purpose and an act or threat against the plaintiff to accomplish the wrongful purpose.
Malicious prosecution
The initiation of civil or criminal proceedings without probable cause for a wrongful purpose, and the favorable termination of the proceedings on the merits.
Negligence
Duty, breach, actual cause, proximate cause, and harm.
Negligence - Ordinary duty and breach
Everyone has a duty to act reasonably in order to avoid harming others. Think:
“D has a duty to (action) reasonable in order to avoid injuring (people in plaintiff’s position).”
Breach is a failure to act reasonably under the circumstances in violation of their duty. Think:
“D breach his duty to (action) reasonably when he (additional action that violated breach).”
Negligence per se
Occurs when there is a violation of a criminal statute, the plaintiff is a member of the class of persons intended to be protected by the statute and, the claimed harm is the type of harm intended to be protected against. A finding of negligence per se is a conclusive presumption of breach and duty.
Landowners - genreally
Generally a landowner owes no duty to protect someone outside the premisses from either natural or artificial conditions on the land. There are two major exceptions: a duty to protect from unreasonably dangerous artificial conditions abutting adjacent land, and a duty to take due precautions to protect persons passing from dangerous conditions.
Landowners - Invitees
An invitee is a person who is invited to land by the possessor of the land as a member of the public or one who is invited to the land for the purpose of business dealings with the possessor of the land.
Possessors are liable to invitees if they know or should have discovered the dangerous condition and should expect the invitee will not discover or realize the danger, and fails to exercise reasonable care to protect them from danger. This is a duty to inspect, discover, repair, and protect.
Landowners - Licensees
A licensee is is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter.
Possessors are liable to a licensee if they know or should have known of a dangerous condition and the potential harm, and they fail to exercise reasonable care to make the condition safe or to ward and the licensee does not know or have reason to know of the condition. This is a duty to repair and protect against dangerous conditions.
Landowners - Trespassers
If the possessor knows that a limited part of the property is frequently trespassed they are liable for artificial dangerous conditions that the possessor created or maintained, that is likely to cause harm, is not likely to be discovered, and there is inadequate warning of the condition.
Landowners - Attractive nusiance
Plaintiff must show there is a dangerous condition on the land the owner should have been aware of, the owner knows young people frequent the area, the condition is likely to cause injury because of the child’s inability to appreciate the risk, and the expense of remedying the situation is slight compared to the magnitude of the risk.
Actual cause
Actual cause means that but for the defendant’s actions, the harm would not have occurred. If there are true concurrent causes and either alone is sufficient as a cause, it will be a substantial factor in the cause.
Proximate cause
Was the harm reasonably foreseeable, or a natural consequence, of the defendant’s act?
Forseeability and harm, which is the nature of the harm, not damages, which measure the harm.
Purely economic proximate damage are denied in the absence of actual injury to person or property.