Torts Flashcards
Shopkeeper’s Privilege
If a shopkeeper reasonably believed that a theft has occurred, he is privileged to make a detention in a reasonable manner for a reasonable period of time.
Anyone charged with protecting the shop - security, employee, etc.
Intentional infliction of emotional distress - THIRD PARTY RECOVERY
- P must be present
- P was a close relative to the injured person
- D knew or should have known the presence of the P
AND - Actual damages are required
Trespass to chattels
D interferes w another’s LAWFUL possession of a chattel (movable personal property)
Interference can be ANY physical contact w the chattel in a quantifiable way or any dispossession.
Intentional entries into land
Damage to land not required
Unintentional entries into land
Not liable for trespass for negligent or reckless entries UNLESS he causes damage to the land
Conversion
More serious than trespass to chattels
Look at value of the damage.
“Value of the _______” -> full amount -> conversion
Duty - what
Legal requirement to act as an ordinary, prudent reasonable person taking precaution against unreasonable risks of injury to others.
Duty - to whom
To ALL foreseeable plaintiffs
In the zone of danger
Duties of care - trespasser
Unknown person - No duty
Known trespasser - duty to warn of known dangers
Duties of care - licensee
Friend
Warn of known dangers
Duties of care - invitee
Customer
- Inspect
- Make safe
Open for business - someone doesn’t need to buy something to be invitee
Res ipsa loquitur
Elements:
1. The accident does not normally occur absent negligence on the part of the D
AND
2. The instrumentality causing the accident was within the D’s exclusive control
Last clear chance rule
A negligent plaintiff can still recover if he can show the D had the last clear chance to avoid the injury and failed to do so
In CONTRIBUTORY NEGLIGENCE ONLY
Contributory negligence
Negligent P is barred from recovery.
Minority rule.
Last clear chance rule is under this ONLY.
Fact pattern will state it’s a contributory negligence jdx - only use then.
Comparative negligence
Majority
Negligent P’s recovery will be reduced by his percentage of his own negligence.
Pure - can recover even if P’s negligence exceeds D’s. Use for the bar.
Modified - recovery only if P’s negligence is less than D’s.
MBE rule - PURE
NO last clear chance doctrine
Joint tortfeasors
Where the combined negligent acts of two or more tortfeasors cause an INDIVISIBLE injury (incapable of apportionment), EACH ONE of jointly and severally liable.
Unless - one shows that they for sure didn’t do it. Then it’s capable of apportionment.
Release
When a tortfeasors makes a pre trial agreement to pay her share of damages awarded to the P, such settlements usually precede the court’s determination of each tortfeasor’s relative liability.
The settling D’s percentage of fault is deducted from the damages awarded the P regardless of the actual payment made by the settling D
Foreseeable intervening causes
Examples: Negligent rescue Subsequent medical malpractice Subsequent disease Subsequent accident General negligence
If foreseeable -> D remains liable
Unforeseeable/superseding causes
Examples:
Acts of God (lightning, floods)
Intentional torts of third parties
Intentional crimes of third parties
If Unforeseeable -> D not liable (superseding)
Abnormally dangerous activities
Subject to strict liability
If the activity creates a risk of serious injury to the land or chattels of the P or to the P himself and this risk cannot be eliminated through the exercise of due care, and the particular activity is not generally performed in that particular physical area
Examples: storage of explosives, fumigation, crop dusting, storage of flammable liquids, pile driving, and the maintenance of a hazardous waste site.
Wild animals
Owner is strictly liable to persons injured by the animal
Injury doesn’t need to be direct - can be injury from trying to run away from wild animal that is “harmless”
Strict products liability
One who sells a product in a DEFECTIVE condition UNREASONABLY dangerous to the user or consumer is held strictly liable for the harm or injury that is caused.
Defenses to strict liability
Assumption of the risk
Adequate warning
Product misuse
Products liability defendants
One who sells a product in a defective condition unreasonably dangerous to the user or consumer.
Must be a commercial seller of such products
Everyone in the chain of production - ford dealer, ford manufacturer, etc.
Don’t need to be privy to the contract to recover - just need to be a user (reasonable - like a spouse)
Misrepresentation
Elements: False statement Scienter (guilty knowledge - could be reckless) Intent to induce P to act Justifiable reliance Damages
Private nuisance
Disturbance that creates a substantial and unreasonable interference with the use and enjoyment of one’s property
If hyper sensitive P, then no.
Whoever was there first doesn’t matter
Defamation
Elements:
Defamatory (statement of fact, not opinion)
Publication (to any 3rd party who reasonably understands)
Damages (general damages presumed, special damages required - except libel and slander per se)
Defamation - P’s standard of proof
Public official, public figure -> malice (or recklessness)
Private person:
Matter of public concern -> negligence
Matter of private concern -> publication only
Slander per se
Defamatory statement imputes:
- loathsome disease
- unchastity to a woman
- Improper conduct in one’s trade, business or profession
- false accusation of a crime
Invasion of right to privacy
Elements: Appropriation (use of someone's likeness for your own commercial advantage) False light Intrusion upon seclusion Public disclosure of private facts
Public street and right to privacy
There isn’t an expectation of privacy on public street
Newspaper’s right to publish pictures
So long as it’s newsworthy, generally ok.
It’s ok that it’s in a commercial context, and don’t need permission if you’re in public when they take your picture.
Private P sues private D for defamation regarding a matter of purely private concern, the P needs to show:
Only negligence with regard to the truth or falsity of the statement.
Does slander per se require a showing of actual pecuniary loss as a precursor to any recovery?
NOPE. Can recover both actual and presumed damages.
When can a person NOT using a defective product invoke strict liability against an appropriate defendant?
When it was reasonably foreseeable that such plaintiff might by injured by the defective product.
Examples: bystanders, rescuers.
