Torts Flashcards
Assault
Intentional infliction of reasonable apprehension of immediate harmful or offensive contact that causes damages.
Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.
Cause can be shown through the substantial factor doctrine.
Damages are presumed; actual damages not required. Damages can include nominal, general, special, and punitive awards.
Offensive - insulting, disrespectful, embarrassing, humiliating
Rest. 103 assault
“An actor is subject to liability to another for assault if:
(a) the actor intends to cause the other to apprehend that a harmful or offensive contact with his or her person is imminent;
(b) the actor’s conduct causes the other to apprehend that a harmful or offensive contact with his or her person is imminent; and
(c) the actor does not actually consent to the apprehension [or to the conduct causing the apprehension].”
Restatement 3d § 103.
Battery
Intentional, unpermitted, harmful or offensive physical contact, causing damages.
Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts, or has the desire or purpose to accomplish a specific result.
Cause can be shown through the substantial factor doctrine.
Damages are presumed; actual damages not required. Damages can include nominal, general, special, and punitive awards.
Rest. 101 battery
“(1) An actor is subject to liability to another for battery if:
(a) the actor intends to cause a contact with the person of the other;
(b) the actor’s conduct causes such a contact;
(c) the contact (i) is offensive or (ii) causes bodily harm to the other; and
(d) the other does not actually consent to the contact [or to the conduct that causes the contact].
(2) A contact is offensive if:
(a) the contact offends a reasonable sense of personal dignity; or
(b) the actor knows that the contact seriously offends the other’s sense of personal dignity, and it is not unduly burdensome for the actor to refrain from causing the contact.”
Restatement 3d § 101.
False Imprisonment
Intentionally confining another to bounded area without privilege, using force or threat of force, without reasonable means of escape, where the person confined is aware of the confinement and has not given his or her consent, or if unaware, he or she was damaged by it.
Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.
Cause can be shown through the substantial factor doctrine.
Damages are presumed; actual damages not required. Damages can include nominal, general, special, and punitive awards, and humiliation.
Rest. 35 false imp.
“(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
(2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore
would be negligent or reckless if the risk threatened bodily harm.”
Restatement 2d § 35.
Intentional Infliction of Emotional Distress
Volitional act that results in intentional or reckless infliction of severe emotional distress through extreme and outrageous conduct.
In bystander cases, defendant intentionally caused physical harm to a third person and plaintiff suffered severe emotional distress; plaintiff must have been present with defendant’s knowledge, and must be close relative of injured.
Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.
Cause can be shown through the substantial factor doctrine.
Actual damages ARE required; damages can include special and punitive awards.
Rest. 104 IIED
“An actor who by [1] extreme and outrageous conduct [2] intentionally or recklessly [3] causes [4] severe emotional harm to another is subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the bodily harm.”
Restatement 3d § 104 [numbers added].
Negligent Infliction of Emotional Distress
Physical harm must be proven.
Trespass to Land
1) Act of physical invasion of P’s real property, above or below it, by D or extension of D, or staying after lawful right expires, 2) with intent by D to bring about physical invasion of P’s real property, and 3) causation (set in motion by D).
Intentional invasion of another’s real property without permission or consent, through putting something on someone’s property, failing to remove something, or exceeding the scope of consent.
Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.
Cause can be shown through the substantial factor doctrine.
Damage is presumed; actual damage not required. Can include special and punitive awards. If no damages, entitled to nominal.
Rest. 158 tres. land
“One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under a duty to remove.”
Restatement 2d § 158.
Trespass to Chattel
Intentional interference with one’s use or possession of tangible personal property (intermeddling or dispossession) causing damages.
Mistake not allowed.
Cause can be shown through the substantial factor doctrine.
Actual damages ARE required; can include special and punitive.
If conversion, can’t be TTC.
Rest. 217, 218 tres.chattels
“A trespass to a chattel may be committed by intentionally
(a) dispossessing another of the chattel, or
(b) using or intermeddling with a chattel in the possession of another.”
Restatement 2d § 217.
“One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.”
Restatement 2d § 218.
Conversion
Intentional interference with one’s personal property that is so substantial that damages would be to pay fair market value for the property at time of conversion.
Purchaser of stolen chattel may be liable.
Accidental conversion not conversion, but liable in negligence.
Intent can be specific or inferred when one knows with substantial certainty the natural probable consequences of his acts.
Cause can be shown through the substantial factor doctrine.
Damages can include fair market value of the goods at the time and place of conversion.
Rest. 222A conversion
“(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
(a) the extent and duration of the actor’s exercise of dominion or control;
(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
(c) the actor’s good faith;
(d) the extent and duration of the resulting interference with the other’s right of control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other.”
Restatement 2d § 222A.
Defenses
Privilege, necessity, consent (express/implied), self-defense, defense of others, defense of property, recapture of chattels, shopkeepers’ privilege, privilege of arrest, discipline, justification.
Children
Children are liable for their intentional torts when they are capable of forming the requisite intent. For assault, intent required is to bring about offensive or harmful contact. Knowledge of its wrongfulness is not an element of intent.
Special or General Damages
Special can be reasonably calculated (medical exp, lost wages); general is pain and suffering; punitive is always applicable. For TTL, nominal available, if no damages proven.
Transferred Intent
When one has the intent to commit a tort against someone, but inadvertently commits another tort against them, the same tort against another person, or another tort against another person, that intent is transferred to the committed tort or injured person. Applies to ABFTT.
Consent (Express or Implied)
Express or implied consent is apparent through conduct, custom and usage, as matter of law, or reasonable under circumstances.
A person has expressly shown a willingness to submit to another’s conduct, relieving him of liability from an otherwise tortious act.
A person implies willingness to submit to another’s conduct through participation in an act where a reasonable person would infer consent, or in an emergency situation where the person is incapable of consenting and a reasonable person would conclude the contact was necessary to prevent death or serious bodily harm.
Rest. 112 consent
“A person actually consents to an actor’s otherwise tortious conduct if the person is subjectively willing for that conduct to occur. Consent need not be communicated to the actor to be effective. It can be express or can be inferred from the facts.”
Restatement 3d § 112.
“An actor is not liable to another if a reasonable person in the position of the actor would believe that the other actually consents to the actor’s otherwise tortious conduct.”
Restatement 3d § 115.
Self Defense
A person may use reasonable force necessary to protect oneself from danger or injury if he has a reasonable belief that he is being attacked or is about to be attacked and he did not initiate the situation. No duty to retreat if non-deadly force or if own home.
Rest. 63 self defense
“(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.
(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
(a) by retreating or otherwise giving up a right or privilege, or
(b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.”
Restatement 2d § 63 [Emphasis added.]
Note that the above section deals with nondeadly force. The Restatement has a different section for use of deadly force. The primary difference is that the person must retreat instead of using deadly force, except the person is not required to retreat “within his dwelling place.” Restatement § 65.
Defense of Others
A person may use reasonable force to protect another from danger or injury if he has a reasonable belief the person is being attacked or is about to be attacked, and has a reasonable belief that the person had the right to self-defense.
Rest. 76 defense of others
“The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that
(a) the circumstances are such as to give the third person a privilege of self-defense, and
(b) his intervention is necessary for the protection of the third person.”
Restatement 2d § 76.
Intentional Interference with Business, Prospective Advantage, and Contract
Intentional interference with known valid business expectancy or valid contractual relationship.
Vicarious Liability / Respondeat Superior
Holds employer liable for intentional torts of employee if done in course or scope of employment.
Defense of Property
A person with the reasonable belief that a tort against one’s property is being committed or about to be committed may use reasonable force to prevent it after a request to desist.
A person may use reasonable force to prevent commission of a tort against one’s property after a request to desist. Mistake not allowed if entrant’s privilege supersedes property right.
Rest. 77 defense of property
“An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land or chattels, if
(a) the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and
(b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
(c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.”
Restatement 2d § 77.
Recovery of Property / Recapture of Chattels
Property owner has right to use reasonable force to regain possession of chattel taken wrongfully by another. Possession began lawfully after demand is made, peaceful means may be used to recover property. After demand is made, reasonable force may be used only when in hot pursuit of one’s wrongful possession. Mistake not allowed.
Entry to Regain Land
After demand for return, where chattels located on land of wrongdoer, owner may reclaim chattels at reasonable time in a reasonable manner.
After notice given, where chattels on land of innocent party, owner may reclaim chattels at reasonable time in a reasonable manner. Owner responsible for any actual damages caused by entry.
If chattels on land of another through owner’s fault, no privilege to enter land.
Shopkeeper’s Privilege
Shopkeeper may have privilege to reasonably detain individuals, using reasonable force, in a reasonable manner, who are reasonably believed to be in possession of shoplifted goods.
Necessity
Public (no liability) or private (liable for actual damages) necessity, applies to property torts, precludes defendant from being tortfeasor.
A person has a limited privilege to prevent injury or property damage by injuring private property for himself (private) or the public if there is no less-damaging way of preventing harm, but defendant must pay for any actual damages.
The defense of private necessity may exculpate a defendant for an intentional tort when he had reasonable belief in the apparent necessary to commit the tort to avoid threatened injury, when such injury would be substantially more serious than the tort committed to avert it.
Discipline
Parent or teacher (in loco parentis) may use reasonable force in disciplining children.
Justification
May exculpate defendant for intentional tort. The defense of justification may exculpate a defendant for an intentional tort when his conduct was justified but it does not fall within the scope of any other defense.
Negligence
Negligence is the failure to conform one’s conduct to a specific standard by breaching the duty to exercise due care as a reasonable person would under similar circumstances, where actual and proximate causation are proven to cause damages to the plaintiff.
To establish a prima facie case, ALL of the following elements must be proven:
- The existence of a duty on the part of defendant to conform to a specific standard of conduct for the protection of plaintiff against an unreasonable risk of injury.
- Breach of that duty by defendant;
- The breach of duty by defendant was the actual and proximate cause of plaintiff’s injury;
- Damage to plaintiff’s person or property (no punitive)
Duty / Foreseeable Plaintiff
A duty is owed only to foreseeable plaintiffs to act as a reasonable person would act under similar circumstances.
Rescuers are foreseeable plaintiffs only if the defendant caused the situation.
Cardozo
Under the Cardozo approach, a duty is owed to all who are in the foreseeable zone of danger as created by the negligence.
Andrews
Under the Andrews approach, a duty is owed to foreseeable plaintiffs who are injured and the injury can be traced back to the defendant’s negligence.
Reasonable Person Standard of Care
One has a duty to act as a reasonably prudent person would act under similar circumstances.
Child Standard of Care
A child under the age of 4 is incapable of negligence. A child above the age of 4 has the duty to act as a child similar to him in age, intelligence and experience. A child engaged in adult activity is held to the same standards as an adult.
Professional Standard of Care
A person who is a professional or has special skills is required to possess and exercise knowledge and skill of a member of the profession or occupation.
Common Carriers / Innkeepers
Those who drive passengers and innkeepers have a very high duty of care to passengers and guests.
Bailment Duties
In a bailment relationship, the bailor transfers physical possession of an item of
personal property to the bailee without a transfer of title. The bailee acquires the
right to possess the property in accordance with the terms of the bailment. A
bailment obligates the bailee to return the item of personal property to the bailor or
otherwise dispose of it according to the bailment terms.
a) Duties Owed by Bailee
(1) Sole Benefit of Bailor Bailment
If the bailment is for the sole benefit of the bailor (e.g., the bailor asks
his neighbor (the bailee) to take in the bailor’s mail while he is on
vacation), the bailee is liable only for gross negligence.
(2) Sole Benefit of Bailee Bailment
If the bailment is for the sole benefit of the bailee (e.g., the bailor gratuitously
loans her lawnmower to the bailee), the bailee is liable even for
slight negligence.
(3) Mutual Benefit Bailments
If the bailment is for the mutual benefit of the bailor and bailee (typically
a bailment for hire such as in the computer example above), the bailee
must exercise ordinary due care.
(4) Modern Trend
Today the trend is away from such classifications and toward a rule
that considers whether the bailee exercised ordinary care under all the
circumstances. These circumstances include, e.g., value of the goods,
type of bailment, custom of a trade, etc.
b) Duties Owed by Bailor
(1) Sole Benefit of Bailee Bailments
If the bailment is for the sole benefit of the bailee (e.g., the bailor gratuitously
loans her lawnmower to the bailee), the bailor need only inform
the bailee of known dangerous defects in the chattel. There is no duty
with regard to unknown defects.
(2) Bailments for Hire
If the bailment is for hire (e.g., the bailor loans her lawnmower to the
bailee for a fee), the bailor owes a duty to inform the bailee of defects
known to him, or of which he would have known by the exercise of
reasonable diligence.
Negligence Per Se
Negligence per se is established through violation of a statute, if the statute clearly defines a standard of care to which the defendant did not conform, the statute was intended to prevent the type of harm that occurred, andthe plaintiff was in the class the statute meant to protect. (Except where compliance is impossible or more dangerous.)
Generally violation of a licensing statute or failure to have a license does not constitute negligence per se
However, if there is a causal nexus between lack of knowledge and skill and the injury, violation of the licensing statute can be used for risk utility data but not as a statutorily mandated standard of care
Negligent Infliction of Emotional Distress
DEFENDANT LIABLE FOR NEGLIGENT CONDUCT CAUSING SERIOUS EMOTIONAL DISTRESS TO ANOTHER IF…
DEFT PLACES ANOTHER IN DANGER OF BODILY HARM and EMOTIONAL DISTURBANCE RESULTS or
SPECIAL RELATIONSHIP IN WHICH NEGLIGENT CONDUCT MAY CAUSE EMOTIONAL DISTRESS
erroneous report of death or mishandling of corpse
MOST COURTS REQUIRE PHYSICAL INJURY
Breach of Duty - Negligence
Where the defendant’s conduct falls short the level required by the applicable standard, there is a breach of duty.
Custom and Usage
Where the defendant’s conduct falls short of the standard according to custom and usage in the industry, the duty of standard of care is breached.
Learned Hand - Risk/Utility Analysis
If the burden of prevention or to reduce injury is less than the probability and magnitude harm, then there is breach and the defendant is liable.
Causation / Joint Causes / Substantial Factor
The breach must be the cause of harm.
Where several causes concur to bring about an injury—and any one alone would have been sufficient to cause the injury—it is sufficient if defendant’s conduct was a substantial factor’ in causing the injury.
Actual Causation
Actual causation is shown where the plaintiff would not have been injured had it not been for the defendant’s negligence.
Proximate Causation
Proximate causation is shown where the type and manner of the plaintiff’s injury was a foreseeable outcome of the defendant’s negligence, and there were no intervening and superseding causes to break the chain of causation.
INTERVENING CAUSE= normal and foreseeable consequence of the Deft’s negligence;
SUPERSEDING CAUSE= extraordinary under the circumstances, not foreseeable and independent of or far removed from the Deft’s conduct. Interrupts causal chain (suicide not superseding cause cutting off liability; criminal act is)
Negligence Damages
A plaintiff may recover general damages for pain and suffering, or emotional distress, and special damages that include medical expenses and other economic loss. (No punitive or nominal.)
Eggshell Skull
A defendant is responsible for the full extent of injuries caused by his negligence, even if unforeseeable or uncommon, and even if they are injuries that would not have been suffered by others.
Negligence Defenses
Contributory, comparative, assumption of risk, last clear chance (p defense against contrib).
Contributory Negligence
In minority jurisdictions observing contributory negligence, if a plaintiff’s negligence contributes to his injury, the plaintiff may not recover damages.
Comparative Negligence
PURE: In majority jurisdictions following comparative negligence, if a plaintiff’s negligence contributes to his injury, his recovery is reduced by the percentage of his contribution to the injury. PARTIAL: If a plaintiff’s negligence exceeds 50% (more than defendant), barred from recovery.
Last Clear Chance Doctrine
Exception to contributory negligence. If the defendant had a chance to avoid the injury and chose not to take it, the plaintiff can recover damages (wipes out P’s contributory negligence).
Assumption of Risk
If the plaintiff voluntarily assumes the risk of the activity he’s engaged in, either impliedly or expressly, he may not recover damages.
Strict Liability - Assumption of Risk
RESTATEMENT: Plaintiff’s assumption of risk bars plaintiff’s recovery entirely
Comparative negligence used in majority of states to apportion liability between P and D
Some states treat plaintiff’s assumption of risk as a complete bar to recovery-NO UNANIMITY!!!!
Owner / Occupier of Land
1) Is there landowner duty? 2) Classify Plaintiff:
Invitee - someone attending a public location or a place of business. Licensee - friends and family you invite. Trespasser - someone there without permission or knowledge.
3) What duty was owed?
Invitee - Inspect, correct, warn
Licensee - Correct, warn
Trespasser - Warn
1) Duty of Possessor to Those Off the Premises
a) Natural Conditions
The general rule is that a landowner owes no duty to protect one outside the
premises from natural conditions on the land.
b) Artificial Conditions
As a general rule, there is also no duty owing for artificial conditions. Two
major exceptions exist, however.
(1) Unreasonably Dangerous Conditions
A landowner is liable for damage caused by unreasonably dangerous
artificial conditions or structures abutting adjacent land.
(2) Duty to Protect Passersby
A landowner also has a duty to take due precautions to protect persons
passing by from dangerous conditions, e.g., by erecting a barricade to
keep people from falling into an excavation at the edge of the property.
c) Conduct of Persons on Property
An owner of land has a duty to exercise reasonable care with respect to his
own activities on the land and to control the conduct of others on his property
so as to avoid unreasonable risk of harm to others outside the property.
2) Duties of Possessor to Those on the Premises
In most jurisdictions, the nature of a duty owed by an owner or occupier of land to
those on the premises for dangerous conditions on the land depends on the legal
status of the plaintiff with regard to the property, i.e., trespasser, licensee, or invitee.
a) Duty Owed to a Trespasser
(1) Definition of Trespasser
A trespasser is one who comes onto the land without permission or privilege.
(2) Duty Owed Undiscovered Trespassers
A landowner owes no duty to an undiscovered trespasser. He has no
duty to inspect in order to ascertain whether persons are coming onto his
property.
(3) Duty Owed Discovered Trespassers
Once a landowner discovers the presence of a trespasser, he is under a
duty to exercise ordinary care to warn the trespasser of, or to make safe,
artificial conditions known to the landowner that involve a risk of death
or serious bodily harm and that the trespasser is unlikely to discover.
There is no duty owed for natural conditions and less dangerous artificial
conditions.
The owner or occupier also has a duty to exercise reasonable care in the
exercise of “active operations” on the property.
(a) When Is a Trespasser “Discovered”?
A trespasser is discovered, of course, when she is actually noticed
on the property by the owner or occupier. But in addition, a
trespasser is viewed as discovered if the owner or occupier is
notified by information sufficient for a reasonable person to
conclude that someone is on the property.
(4) Duty Owed Anticipated Trespassers
The majority of states now treat anticipated trespassers on generally the
same basis as discovered trespassers in terms of the duty owed them by
the landowner.
(a) When Is a Trespasser “Anticipated”?
An “anticipated trespasser” situation arises where the landowner
knows or should reasonably know of the presence of trespassers who constantly cross over a section of his land. (Although note that
if the owner has posted “no trespassing” signs, this might serve
to convert these “anticipated” trespassers into “undiscovered”
trespassers.)
Discovered or Anticipated, and Undiscovered Trespassors
Anticipated - hikers.
TRESPASSERS:
Undiscovered: no duty to make land safe, to warn of dangers on it, or to protect in any way;
Discovered: duty to use ordinary care to warn of, or make safe artificial conditions known to landowner that involve a risk of death or serious bodily harm that that the trespasser is unlikely to discover.
Anticipated: arises where the landowner knows or reasonably should have known of the presence of trespassers who constantly cross over a section of his land.
**duty owed is the same as discovered trespassers
Duties for Landowners for those OFF premises
General Duty of Landowner: to prevent an unreasonable risk of harm to persons off the land from an artificial condition on the land.
- **liable for damage caused by unreasonably dangerous artificial conditions or structure abutting adjacent land. Natural sometimes if unknown danger (rotten tree)
- **Duty to take due precautions to protect persons passing by from dangerous conditions.
Attractive Nuissance
Duty to exercise ordinary care to avoid
a reasonably foreseeable risk of harm to children caused by artificial conditions on their property. Elements include:
1)dangerous condition present on the land of which the owner is or should be aware;
2) owner knows or should know that children frequent the vicinity of the dangerous condition;
3) condition is likely to cause injury (because of child’s inability to appreciate the risk);
4) expense of remedying the situation is slight compared with the magnitude of the risk.
b) Duty Owed to a Licensee
(1) Definition of Licensee
A licensee is one who enters on the land with the landowner’s permission,
express or implied, for her own purpose or business rather than for
the landowner’s benefit.
(2) Duty Owed
The owner or occupier owes a licensee a duty to warn of or make safe
a dangerous condition known to the owner or occupier that creates
an unreasonable risk of harm to the licensee and that the licensee is
unlikely to discover.
(a) No Duty to Inspect
The owner or occupier has no duty to a licensee to inspect for
defects nor to repair known defects.
(b) Duty of Care for Active Operations
The owner or occupier also has a duty to exercise reasonable
care in the conduct of “active operations” for the protection of the
licensee whom he knows to be on the property.
(3) Social Guests Are Licensees
The social guest is a licensee. Performance of minor services for the host
does not make the guest an invitee.
c) Duty Owed to an Invitee
(1) Definition of Invitee
An invitee is a person who enters onto the premises in response to an
express or implied invitation of the landowner. Basically, there are two
classes of invitees:
(a) Those who enter as members of the public for a purpose for which
the land is held open to the public, e.g., museums, churches,
airports; and (b) Those who enter for a purpose connected with the business or
other interests of the landowner or occupier, e.g., store customers
and persons accompanying them, employees, persons making deliveries,
etc.
Res Ipsa Loquitur
No direct evidence
Event doesn’t normally occur without negligence by somebody
D is most likely person whose negligence caused event
P is not negligent
