torts Flashcards
torts
Private Nuisance
- A thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land. 2. The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct Unreasonable- injury outweighs usefulness of D’s actions Substantial- interference that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community.
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strict liability for domesticated animals
- owner knows or has reason to know of the animal’s dangerous propensities, and 2. the harm results from those dangerous propensities.
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IIED
A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress. NOTE: Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. Courts are more likely to find a defendant’s abusive language and conduct to be extreme and outrageous if the plaintiff is a member of a group with a known heightened sensitivity (e.g., a pregnant woman).
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IIED Bystanders
When the defendant’s conduct is directed at a third-party victim, the defendant is liable if he intentionally or recklessly causes severe emotional distress to a member of the victim’s immediate family who is present at the time of the defendant’s conduct (and the defendant is aware of such presence), whether or not such distress results in bodily injury. (I R SED family present)
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Duty Cardozo
a defendant is liable only to a plaintiff who is within the “zone of foreseeable harm.”
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NIED
D’s negligence creates foreseeable risk of injury to P and D’s action causes a threat of physical impact that causes emotional distress -threat of physical impact directed at P or someone in immediate presence of P -bystander must be within zone of danger; if not, may be allowed if close relationship to injured person, present at scene, and personally observed injury -physical symptoms required (maj)
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Learned Intermediary Rule
he manufacturer of a prescription drug typically satisfies its duty to warn the consumer by informing the prescribing physician of problems with the drug rather than informing the patient taking the drug.
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Negligence elements
P must prove: 1. duty, 2. breach, 3. causation, and 4. damages
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Driver’s duty to passengers
In most jurisdictions, an automobile driver owes a duty of ordinary reasonable care to all passengers, including guests (i.e., individuals who do not confer an economic benefit for the ride on the driver). However, a minority of states distinguish between the two with “guest statutes,” which impose only a duty to refrain from gross or wanton and willful misconduct with respect to a guest.
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duty to invitees
An invitee is one who enters the land of another by invitation, often, but not necessarily, for the business purposes of the landowner. A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.
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Negligence template
To establish a prima facie case for negligence, a plaintiff must prove duty, breach, causation, and damages.
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negligence- Duty template
A duty of care is owed to all foreseeable plaintiffs. Under the majority view (Cardozo), a defendant is only liable to plaintiffs within the zone of foreseeable harm. Under the minority view (Andrews), a defendant owes a duty to everyone harmed.
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negligence- standard of care template
The standard of care owed by defendant to plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard. However, when a special relationship exists between the plaintiff and defendant, the defendant may owe a different duty of care to the plaintiff.
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negligence- breach template
Defendant will be in breach of his duty to plaintiff if he fails to meet the applicable standard of care.
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negligence- causation template
To be liable, defendant’s act must be both the actual and proximate cause of plaintiff’s injury.
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negligence- actual cause template
To prove actual causation, plaintiff must show that but for defendant’s act, plaintiff’s injury would not have occurred. If there is more than one cause-in-fact, the defendant is the actual cause of the injury when the defendant’s conduct was a substantial factor in causing the damages.
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negligence- proximate cause template
To prove proximate cause, plaintiff must show that her injuries were the foreseeable result of defendant’s conduct. D may argue that P’s act of ___ was an unforeseeable intervening cause. However, a defendant will still be liable for its own acts if the result was nonetheless foreseeable.
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negligence- damages template
To recover damages, plaintiff must prove actual injury and not just economic loss.
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Negligence Defenses template
In a contributory negligence jurisdiction, plaintiff’s negligence is a complete bar to recovery. In a pure comparative negligence jurisdiction, plaintiff’s negligence is not a complete bar to recovery, but her damages are reduced by proportion that plaintiff’s fault bears to the total harm. Plaintiff’s recovery may also be reduced if she voluntarily and knowingly assumed the risk of her behavior.
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SL for products template
To establish a prima facie case for strict products liability, the plaintiff must prove that defendant had an absolute duty as a commercial seller of the product, that defendant produced or sold a defective product, actual and proximate causation, and damages.
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SL for products- absolute duty template
A defendant who is in the business of selling a commercial product—including manufacturers, distributors, and retail sellers—is under an absolute duty to provide a safe product.
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SL- defective product (GR) template
A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (i.e., failure to warn).
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SL -manufacturing defect template
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications.
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SL - design defect template
Depending on the jurisdiction, courts usually apply either the consumer- expectation test or the risk-utility test (or a hybrid of both tests) to determine whether a design defect exists. Under the consumer-expectation test, plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer. Under the risk-utility test, the plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product not reasonably safe.
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SL- failure to warn template
A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.
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Strict products liability- causation
Actual cause- the product was defective when it left defendant’s control. Proximate cause - the injury occurred when the product was being used in an intended or reasonably foreseeable way.
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SL products- damages template
Plaintiff must also suffer personal injury or property damage.
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SL- defenses template
Plaintiff’s negligence is not a bar to recovery in a contributory negligence jurisdiction [if plaintiff misused the product in a reasonably foreseeable way or negligently failed to discover the defect]. However, plaintiff’s negligence may reduce his recovery in a comparative fault jurisdiction. If plaintiff assumed the risk of any damage caused by the defective product, it will be a complete bar to her recovery.
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defamation template
A plaintiff may bring an action for defamation if the defendant’s defamatory language is of or concerning the plaintiff, is published to a third party who understands its defamatory nature, and damages the plaintiff’s reputation.
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defamation- of or concerning p template
A reasonable person must believe that the defamatory communication refers to this particular plaintiff and holds him up to scorn or ridicule in the eyes of a substantial number of respectable members of the community.
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defamation- publication template
Publication of defamatory matter is its intentional or negligent communication to a third party.
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defamation- falsity template
If the defamatory statement relates to a matter of public concern, or plaintiff is a public official or figure, plaintiff must also prove that the statement is false.
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defamation- fault template
public official or public figure= actual malice private individual + public concern= negligence or actual malice private individual= negligence
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defamation- damage to reputation template
Plaintiff must prove actual damages if he is a public figure/official or a private figure but a matter of public concern is involved. If plaintiff is a private figure and this is not a matter of public concern, then general and presumed damages can be recovered without proving actual malice.
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Defamation defenses
Truth, consent, absolute privilege, qualified privilege
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defamation defenses- truth
Truth is an absolute defense.
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defamation defenses- consent
Consent is an absolute defense as long as defendant did not exceed the scope of consent.
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defamation defenses- absolute privilege
An absolute privilege can never be lost, and is used for remarks during judicial or legislative proceedings, between spouses, or in required publications.
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defamation defenses- qualified privilege
A qualified privilege is one affecting an important public interest, in the interest of defendant or a 3rd party, and it can be lost if the statement exceeds the scope of the privilege or the speaker acted with malice.
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misappropriation
Misappropriation is the unauthorized use of P’s name, likeness, or identity for D’s advantage (commercial or otherwise). Plaintiff must prove lack of consent and injury.
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intrusion upon seclusion
An intrusion upon seclusion is defendant’s act of intrusion into plaintiff’s private affairs that are objectionable to a reasonable person. Note that no publication is required.
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false light
To maintain an action for false light, plaintiff must prove that defendant published facts about plaintiff or attributed views/actions to plaintiff that place him in a false light and are highly offensive to a reasonable person.
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public disclosure of private facts
The public disclosure of private facts is actionable if the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public.
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NIED bystanders
The “closely related” requirement only applies to bystanders who are outside of the zone of danger, whom the court allows to recover for vicarious distress. (NIED stranger must be w/in the zone of danger)
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firefighter’s rule
An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent to the job.
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SL for wild animal
A wild animal is an animal that, as a species or a class, is not by custom devoted to the service of humankind in the place where it is being kept. The possessor of a wild animal is strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know. Strict liability also applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal.
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parent’s duty (parent’s negligence)
A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.
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Attractive Nuisance doctrine
A land possessor may be liable for injuries to children trespassing on the land if: (i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass, (ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, (iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, (iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm.
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SL for abnormally dangerous activities
A defendant engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm. “Abnormally dangerous” means that an activity (i) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and (ii) the activity is not commonly engaged in.
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assumption of risk
A plaintiff is barred from recovery when he unreasonably and voluntarily encounters a known, specific risk of harm.
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Essential public service privilege
providers of essential public services, such as construction of utility or sewer lines, are exempt from strict liability.
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duty
An analysis of duty requires an examination of (i) to whom the duty is owed, and (ii) what the duty entails (otherwise known as the standard of care).
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contributory/comparative negligence
Contributory/comparative negligence occurs when a plaintiff fails to exercise reasonable care for his own safety and thereby contributes to his own injury. At common law, contributory negligence is a complete bar to recovery. In jurisdictions that have adopted the doctrine of pure comparative negligence, a plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the plaintiff’s damages are reduced by the proportion that his fault bears to the total harm. In a partial comparative negligence jurisdiction, the plaintiff’s recovery is barred if he was more than 50% at fault.
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battery elements
- harmful or offensive contact (obj) 2. with the plaintiff’s person (or anything connected to it) 3. caused by D’s (direct or indirect) 4. intentional act (transferred intent applies)
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assault elements
Act or threat by D intended to cause apprehension or imminent harm or offensive contact 1. conduct or other circumstances (mere words not enough) 2. p must have reasonable apprehension and awareness of D’s act 3. imminent threat of harm 4. intent (or transferred intent)
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IIED elements
- intent (not transferred) or recklessness 2. extreme and outrageous conduct by D (beyond human decency, outrageous) 3. third party liability (distresses member of victim’s immediate family- with or without resulting bodily injury- or other bystander resulting in bodily injury 4. causation (substantial-factor test) 5. damages- severe emotional distress (beyond reasonable person’s endurance or D knows of P’s heightened sensitivity)
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trespass to chattels elements
1) intentional interference with P’s right of possession 2) by either dispossessing or using or intermeddling with P’s chattel 3) causing damages
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conversion elements
- intentional act (must only intend to commit the act that interferes) 2. interference with P’s right of possession (exercising dominion or control) 3. so serious (based on duration/extent, intent to assert a right, D’s good faith, extent of harm and P’s inconvenience) that it deprives P of the use of the chattel 4. Damages (full value of property or replevin)
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Trespass to land
- intent to enter land or cause physical invasion (not intent to trespass; transferred intent applies) 2. physical invasion of property
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res ipsa loquitur elements
- P’s injury under D’s exclusive control 2. P’s harm wouldn’t have occurred if D used ordinary care (no injury would occur in absence of negligence) 3. P not responsible for injury
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SL elements
- absolute duty to make P or his property safe 2. breach 3. actual and proximate causation 4. damages
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neg. products liability elements
- duty- reasonable care owed to any foreseeable P by commercial manufacturer/distributor/retailer/seller 2. breach- failure to exercise reasonable care in inspection/sale of product (i.e., defect would have been discovered if D wasn’t negligent) 3. causation- factual and proximate 4. damages- actual injury/property damages, not pure economic loss 5. defenses- contributory/comparative neg. and A/R
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Strict products liability elements
- product was defective (in manufacture, design, or failure to warn) 2. defect existed when it left D’s control 3. defect caused P’s injury when used in a reasonably foreseeable way
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defamation elements
- defamatory language (factual) 2. of or concerning P 3. publication (to 3p who understands its defamatory nature) 4. falsity 5. fault 6. libel/slander 7. damages (P’s reputation)
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misappropriation elements
- unauthorized use of P’s picture or name for D’s advantage 2. without consent 3. injury
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intrusion upon seclusion elements
- D’s act of intrusion into P’s private affairs 2. objectionable to a reasonable person (no publication required)
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false light elements
- publication of facts about P or attributing views/actions to P 2. that showroom in false light objectionable to a reasonable person under circa. 3. if matter of public interest, P must show malice
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public disclosure of private facts elements
- public disclosure of private facts (even if true) about P 2. that would be highly offensive to a real. person and 3. is not of legitimate concern to the public
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intentional misrepresentation elements
- false representation of material fact (generally no duty to disclose) 2. scienter (knowledge or reckless disregard of truth) 3. intent to induce P to act or refrain in reliance on misrep. 4. causation (actual reliance) 5 justifiable reliance (not justifiable if statement obviously false or lay opinion) 6. damages (actual econ. loss/consequential damages, no nominal damages)
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Neg. Misrepresentation elements
- D (accounting firm or other supplier of commercial info) 2. provides false info to P as a result of D’s negligence in preparing the info 3. P justifiably relies on the info and incurs pecuniary damages as a result -P in PK w/ D or D knows P is a member of a limited group for whose benefit info is supplied -info must be relied on in a transaction that D intends to influence or knows recipient intends to 4. Defenses- std neg defenses
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intentional interference with k elements
- P must prove D knew of k relationship b/w P and 3P 2. intentionally interfered w/ k, resulting in a breach and 3. breach caused damages to P 4. defenses- justified if motivated by health, safety, or morals; k is terminable at will; and D is business competitor
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interference w/ prospective econ. advantage elements
- more egregious conduct required for liability: “independently tortious”; violates federal or state law; improper conduct per balancing analysis 2. business competitor will not be liable for encouraging switching business
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theft of trade secrets elements
- P owns valid trade secret (provides a business advantage) 2. not generally known 3. reasonable precautions to protect 4. D took by improper means
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trade libel elements
- publication 2. derogatory statement relating to P’s title to business property/quality of goods 3. interference or damages to business relationships 4. proof of special damages (no mental suffering)
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slander of title elements
- publication of false statement derogatory to P’s title to real property 2. malice 3. special damages as a result of diminished value in the eyes of third parties
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malicious prosecution elements
- intentional and malicious institution of legal proceeding for improper purpose 2. no PC 3. action dismissed in favor of the person against whom it was brought
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abuse of process elements
- use of legal process against P in a wrongful manner to accomplish a purpose other than that for which the process was intended 2. willful act 3. proof of damages required
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duty to trespassers
Landowners owe no duty to undiscovered trespassers, and they owe discovered or anticipated trespassers a duty to warn or protect them from concealed dangerous artificial conditions only.
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What additional element must public figures/officials show for IIED?
actual malice
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NIED duty outside of zone of danger
the duty to avoid infliction of emotional distress also exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant, such as when a common carrier mistakenly reports the death of a relative.
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defamation- fault levels
public figure/official= actual malice private figure and matter of public concern= neg or actual malice private individual= neg
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SL products liability
To recover in a strict products liability action, a plaintiff must prove that the product is defective (i.e., it contains a manufacturing defect, contains a design defect, or contains inadequate instructions or warnings); the defect existed when the product left the defendant’s control; and the defect caused the plaintiff’s injury when used in a reasonable way.
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trespass to chattels
A defendant is liable for trespass to chattels if he intentionally interferes with the plaintiff’s right of possession by either dispossessing the plaintiff of the chattel or using or intermeddling with the plaintiff’s chattel. In the case of dispossession, a plaintiff must prove damages by either the actual damages caused by the interference or the loss of use. In the case of use or intermeddling, the plaintiff must show actual damages.
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Parents’ vicarious liability for child’s torts
The general rule is that parents are not vicariously liable for their minor child’s torts. Exceptions to this general rule include situations in which the child commits a tort while acting as the parents’ agent, or when a statute establishes the parents’ liability. Parents, however, are liable for their own negligence with respect to their minor child’s conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.
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Standard of care of professionals
Ordinarily, a professional person is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. However, while evidence of custom in a community or profession may be offered to establish the proper standard of care, such evidence is not conclusive. The court may determine that the entire community or profession may be negligent.
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false imprisonment
False imprisonment results when a person acts: i) Intending to confine or restrain another within boundaries fixed by the actor; ii) Those actions directly or indirectly result in such confinement; and iii) The other is conscious of the confinement or is harmed by it.
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shopkeeper’s privilege
A shopkeeper’s reasonable (in both duration and manner) detention of a suspected shoplifter is not an invalid use of authority and hence is not a false imprisonment.
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Strict products liability defenses
- comparative fault- reduces recovery 2. product misuse/modification- i) reduces fault in comparative jdx; ii) bars recovery in contributory idx, if misuse was unforeseeable? 3. contributory jdx- bars recovery if P discovered defect 4. A/R- bars recovery 5. substantially changing the product- bars recovery
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negligence- emotional distress damages
damages for emotional distress are recoverable in a negligence action when the plaintiff has suffered a physical injury even though the emotional distress itself has not been manifested through a physical injury.
