Torts Flashcards
Assault (mental invasion)
Elements: Intentional, overt act, causing reasonable fear or apprehension, of immediate harmful or offensive contact
Damages: Nominal, compensatory, and special
Battery (bodily invasion)
Elements: An intentional act causing a harmful or offensive contact
Damages: Damages: Nominal, compensatory, special, and punitive
Emotional Distress
Elements: Extreme and outrageous, intentional OR reckless conduct, causing sever emotional distress.
Damages: Actual, need not be physical
False imprisonment
Elements: An intentional act or omission that causes confinement or restraint. Note: not false imp if there is a reasonable means of escape–cant be embarrassing or req you to leave property behind
Damages: Nominal, substantial not required
Trespass to Land
Elements: Intentional physical invasion of P’s real property, causation
Damages: Nominal sufficient
Trespass to Chattel
Elements: Intentional act interfering with Ps right of possession, causation.
Damages: actual damages, actual harm done to chattel
Conversion
Elements: Intentional act interfering with Ps right of possession serious enough to warrant payment of full values, causation.
Damages: Actual damages, full replacement value.
Note: if you would prefer the chattel back you can opt for trespass to chattel
Transferred Intent
only applies to 5: BAIT–Battery, Assault, false Imprisonment, Trespass to land/chattel
Nuisance
Public Nuisance–an act that unreasonably interferes with the health and safety or property rights of the community
Private Nuisance–is a substantial, unreasonable interference w/ another private individuals use or enjoyment of their property
Nuisance Defenses
- Zoning (not complete but factor)
- Conduct of others
- Contributory Neg–generally not a def unless P’s cases rests on a neg theory
- Coming to the nuisance–by purchasing a land next to an existing nuisance and then bringing action. Not generally a bar to P’s action unless he came to the nuisance solely to bring a harassing suit. Factor to be considered re whether P will be granted injunction.
7 defenses to intentional interference w/ person/property
1) Consent–only valid if D stays w/in bounds of consent given
2) Self-Defense–valid when person has reasonable grounds to believe that they are currently or about to be attacked. Force must be reasonable.
3) Defense of others–only valid when person could have used force to protect themselves
4) Def of Property–may use reasonable force to prevent a tort against their property (deadly never ok)
5) Discipline
6) Privilege of Arrest
7) Necessity
Use of deadly force
- Substantial Maj (MBE)–deadly force valid def when necessary to prevent serious bodily harm/death to himself (others).
- Growing minority (NY)–imposes duty to retreat before using deadly force when this can be done safely UNLESS person in home “castle doctrine.”
Negligence
1) Duty owed to P (proper P? what is SoC?
- zone of danger approach (Maj/NY)–duty must be actually breached to P–ie was P a forseeable victim?
- Andrews approach (Min)–breach does not have to actually run to P but P needs to causally connect harm to breach. you need to show a breach to anyone and then connect harm to that breach.
2) Breach of duty by D
3) Damages (injury to person/property)
4) Causation of injury due to breach
Neg Infliction of Emotional Distress
P witnesses an injury to a 3rd party and is harmed.
- must be close family members
- NY/Cardozo–both P and injured person need to be in the zone of danger
Standard of Care
Created 3 ways 1) statutes, 2) relationship 3) reasonable care
Negligence–Strict L
Statute establishes a duty and violation = breach. D is absolutely L if her breach caused the injury (dram shop).
Negligence Per Se
Statute est a duty and a violation is a breach to the protected class. D can argue lack of injury, causation, or other defenses
Evidence of Negligenc
Statute establishes a duty and a violation is only evidence of negligence. D can argue that she did not breach a duty, that there is no injury, causation. There are no defenses.
SoC–Relationships
Note: Need to show “justifiable reliance”
1) by K
2) Professional Standard–look at other members of profession
3) Creation of Peril (D neg = duty to v and neg for rescuers acts(not gross neg)/D not neg = duty to v but not resp for rescuers acts)
4) Control of others
5) Family Relationship
6) Employer/Employee
7) Duty of Landowner
Duty of Landowner
MBE:
- Invitees–ppl entering the property on business concerning the O and on her invitation. Duty to inspect and warn re natural and artificial conditions. Duty to act as a reasonable landowner.
- Licensee–ppl entering w/ permission, not for benefit of O. No duty to inspect, duty to warn. Applies to artificial and natural conditions.
- Trespasser–no duty owed to undiscovered trespasser. To discovered, duty of ordinary care to warn of artificial hidden conditions that pose danger of serious bodily injury or death.
NY: has done away w/ CL distinctions. Use standard of reasonable care–statue of P not relevant. HOWEVER NY will look to status to determine what is foreseeable and what the SoC should be.
Attractive Nuisance
L for child trespassers if O knew of artificial and dangerous conditions on land that could forseeably attract children AND cost to fix problem was way below magnitude of potential harm. Child’s neg no def.
NY: does not recogonize
Innkeepers
req to exercise very high degree of care towards guests. L for slight neg + any failure to protect patrons.
Common Carrier
under duty to use high degree of reasonable care to assist patrons
NY: rule is reasonable care under circumstances
Gov Actors
When claim is gov negligently exercised gov function P must show special relationship between gov and P
