Torts Flashcards
Warranties implied in every sale of goods?
- Implied warranty of merchantability (goods are of average acceptable quality and generally fit for the usual purpose)
- Fitness for particular purpose (seller knows/has reason to know the particular purpose for which goods are required, buyer relies upon seller’s skill & judgment in selecting)
Implied warranty of merchantability
goods are of average acceptable quality and generally fit for the usual purpose
Implied warranty of fitness for a particular purpose
seller knows/has reason to know the particular purpose for which goods are required, buyer relies upon seller’s skill and judgment in selecting
Incapacity defenses available to intentional torts
None
Battery elements [intentional tort]
(1) Intent (desire to bring about forbidden result OR knows result substantially certain to occur)
(2) Harmful, unpermitted OR offensive contact (offensive - reasonable person)
(3) With the plaintiff’s person (includes anything π touches or carries - car, horse)
Harm need not be instant, if suing under harm theory.
If suing under offensive contact (i.e. doctor who did a good surgery that you didn’t ask for, even if it wasn’t negligent), don’t need to show harm!
No need to show damages
Assault elements [intentional tort]
(1) Intent
(2) D must place P in “reasonable apprehension” (distinguish fear - puny D)
(3) Apprehension must be of immediate battery (words lack immediacy, need conduct/menacing gesture).
NB: words can negate the immediacy and deny right of recovery
Apparent present ability to make good on a threat is required for “reasonable apprehension”
False imprisonment elements [intentional tort]
(1) Intent
(2) Act of restraint (threats sufficient only if work on reasonable person; omission can be restraint - leaving disabled person on plane)
(3) P must be confined within bounded area (can be approx, not bounded if “reasonable means of escape that P can reasonably discover”)
Length of confinement immaterial.
Actual damages not needed.
You can detain P’s property (luggage, i.e.) if the effect is to constrain the P to a specified location.
Damages: humiliation/false imprisonment is part of harm, can recover.
Defense: shopkeeper’s privilege (reasonable detention)
Intentional Infliction of Emotional Distress
(1) Intent to cause IIED (or recklessness as to effect of conduct)
(2) Extreme and outrageous conduct (“exceeds all bounds of decency tolerated in a civilized society”; not mere insults).
(3) P suffers severe emotional distress (does not need physical symptoms, pecuniary damages, etc.)
Hallmarks of “outrageous conduct” for IIED purposes
- Conduct is continuous or repetitive.
- D is common carrier or innkeeper, duty of patrons - acts intentionally or recklessly
- P is member of fragile class of persons, including children, elderly, pregnant, super sensitive adults if sensitivity is known to D.
Individual intentional torts
- Battery
- Assault
- False imprisonment
- IIED
Property related intentional torts
- Trespass to land
- Trespass to chattel
- Conversion
Trespass to land (elements) [intentional tort]
- Intent (to be on that property, not to cross property line)
- Act of physical invasion (tangible, air and soil within reason,
- Interfere with possession of real estate
Intent to harm is not part of the recipe. Mistake of ownership is no defense to trespass.
Personal property
Anything one owns that is not real estate. Includes electronics, furniture, clothing, car, money in wallet, data files uploaded to Cloud.
Trespass to chattels
- Intent
- Physical invasion act
- Interference can either be by physically damaging or taking away from you
Relatively slight interference.
Intent required: physical act that results, not the eventual result (can take something thinking it is yours - good faith is irrelevant)
Remedy: cost of repair.
Conversion
- Intent
- Physical invasion act
- Interference can either be by physically damaging or taking away from you
Significant interference. The severity isn’t based necessarily on the damage, but the extent of interference (ex. 900 mile road trip left the car unharmed)
Intent required: physical act that results in conversion, not the eventual result (can take something thinking it’s yours - good faith is irrelevant)
FMV of chattel at the time of conversion. NOT replacement cost.
Tortfeasor gets to keep converted chattel.
Defenses to intentional torts
- Consent (explicit, implied)
- Protective privileges
- Necessity (private, public)
Effect of incapacitated P on consent defense to intentional torts
Incapacity makes consent impossible. Examples include:
- Being very drunk
- Developmental disability
- Children (though can consent to age-appropriate invasions)
Explicit consent (defense to intentional tort)
Declaration in words, except invalidated if given as a result of fraud or duress
NB: all consent has scope
Implied consent (defense to intentional tort) - two types
- Apparent consent - custom/usage. Assumed consent if certain invasions are germane to the activity.
- Body language consent - D’s reasonable interpretation of P’s objective conduct and surrounding circumstances.
NB: all consent has scope
Identify the protective privileges as defense to intentional torts (3)
- Self-defense
- Defense of other
- Defense of property
In these, the P is engaging in threatening behavior; D commits tortious response to avert the threat, must emanate from P actions.
Elements required to establish protective privilege defense to intentional torts
- Timing (threat in progress or imminent, heat of moment)
- Reasonable belief that threat is genuine (reasonable mistake is OK)
- Only allowed to use as much force as is necessary or proportional under the circumstances (deadly force never OK to protect property, but deadly force OK to match deadly force)
Public necessity defense to intentional property torts
ONLY applies to property torts! Total defense.
Invades P’s property as emergency, only to protect community as a whole or a significant group of people. Members of the community (more than one). No liability for damages.
Ex. natural disaster, fire, altruistic helper.
Private necessity defense to intentional property torts
ONLY applies to property torts!
Invades P’s property to prevent merely own interest (protect self, family, or one other member of the community). Does not absolve of tort liability i.e. for trespass.
Not absolute defense. Creates 3 legal consequences:
- D eligible for compensatory/actual damages (real harm done)
- D not eligible for punitive damages
- P cannot throw D off the land, in effect forcing him back into emergency. Must tolerate emergency while in effect.
Elements of defamation (tort)
- D must make defamatory statement about P (“tends to adversely affect reputation”; insult insufficient - factual in nature; does not need to name name if identifying features; opinion statement won’t count unless facts to back it up)
- Must be a “publication” (reveal statement to someone other than P, even if not deliberate but negligent - it must be reasonably foreseeable that third party could overhear)
- Damages (often presumed, except slander that is not per se)
Best defense is the truth.
Libel cases (and damages allowed) [defamation]
Libel - defamatory statement permanently embodied in media of expression. Typically written down, but film/audio also included.
Damages to reputation are assumed!
Slander cases (and damages allowed) [defamation]
Spoken statement. The ability to presume damages depends on whether slander is per se or not.
Slander per se - presume damages. Includes:
- Statement about P business/profession
- Crime of moral turpitude (ex. theft)
- Statement imputing unchastity to woman
- P suffers loathsome disease (leprosy, general)
If NOT slander per se, must prove harm/damages. To prove damages, need pecuniary/economic harm. Social consequences don’t count.
Affirmative defenses to defamation
- Consent (implied or explicit) - defeats claim
- Truth (D has BOP b/c it is situated as affirmative defense)
- Privileges (absolute or qualified)
Absolute privilege (for purposes of defamation defense)
Based on status of D.
Spouses (convos between them cannot bring defamation)
Officers of three branches of government (including anything said in open court)
Qualified privilege (for purposes of defamation defense)
Based on the circumstances of the speech rather than status of speaker. Arise out of public interest in encouraging candor.
When recipient has an interest in the information (“common interest privilege” - i.e. worked together), and it is reasonable for the speaker to make the publication.
Requirements:
- Must be made in good faith, with reasonable basis.
- Must be confined to matters relevant to issue at hand
Ex. Letter of recommendation from past LL, bank disclosing nefarious husband spending to wife over the phone.
Elements to prove “public concern” defamation (First Amendment cases)
- Falsity (P has burden)
- Fault on part of D (statement not made in good faith)
a. If P public figure - must show statement made with knowledge that it was false OR made recklessly (didn’t try to learn truth)
b. If P private figure - negligence suffices
Privacy torts (4)
C L I P
- Commercial appropriation
- Intrusion (only one that doesn’t require publication)
- False Light
- Public Disclosure of Private facts
Best defenses: consent.
Emotional damages can be recovered in privacy torts.
Privacy tort - appropriation [elements and defenses]
D uses P name or picture for commercial purposes. Not limited to celebrities.
Exception for newsworthiness (famous athlete on magazine).
Defense: consent
Privacy tort - Intrusion [elements and defenses]
Invasion of P’s seclusion in a way that would be highly offensive to the average person (wiretapping, covert video, peeping tom). Needs to be in place with reasonable expectation of privacy.
Ex. Cocktail party, street - inapplicable.
Ex. Locker room, car - reasonable expectation.
Defense: consent
Privacy tort - false light [elements and defenses]
Widespread dissemination of material falsehood about P that would be highly offensive to the average person. Tort of “false gossip.”
Can sometimes overlap with defamation. Difference is that in false light tort, can collect dignitary (rather than pecuniary) damages.
Ex. “he is a devout catholic” - false light, not defamation
Defenses: consent, defamation privileges (absolute, qualified, governmental)
Privacy tort - disclosure [elements and defenses]
Widespread dissemination of confidential information about P that would be highly offensive to the average person (“tort of true gossip”)
Exception: newsworthiness.
Facts must be truly private and confidential; if known to one social sphere, will not count.
Ex. secretary mails medical history to firm.
Defenses: consent, defamation privileges (absolute, qualified, governmental)
Elements of tort negligence
- Duty
- Breach of duty
- Causation (factual & legal/proximate)
- Damages
Ordinary duty of care owed in tort
Duty owed to foreseeable victims.
Majority: zone of danger creates foreseeability (Palsgraf) (ex. those outside a property within zone of danger, ball park)
Minority: everyone is foreseeable (Andrews)
“A general duty of care to act as an ordinary, prudent person would act under like circumstances is owed to all foreseeable plaintiffs.
If a defendant’s conduct causes an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends to the plaintiff”
- no physical attributes (generally)
- no personal shortcomings
- no intellectual disability
- no mental illness
Situations in which the law personalizes the reasonable person standard (duty of care - tort)
[NOT asking about special duty standards]
If D has superior skill or knowledge of subject area, attribute that to them (skill = body of information, knowledge = “dumb” person possess particular fact)
When relevant, incorporate physical attributes (wheelchair, 7’ tall, blind, deaf)
A landowner has a duty to exercise reasonable care with respect to activities on the land & to avoid unreasonable risk of harm to others outside the property, e.g.
Situations in which special duties of care kick in, replacing the ordinary duty of care (6)
- Children
- Professionals
- Premises liability
- Statutory standards of care
- Duties to act affirmatively
- Negligent infliction of emotional distress
Children’s duty of care for negligence tort liability (young children, teens, and exception to rule)
- Under age of 4 do not owe any standard of care.
- Children 4 through teens - hypothetical child of similar age, experience, intelligence, and education under the circumstances (subjective - amateur bike rider, i.e.)
Exception: when child is engaged in adult activity, standard returns to adult standard of care. Ex. operating vehicle with motor
Special duty of care held by licensed professionals
Ex. healthcare, accountants, lawyers, architects, engineers
Professional obligation to exercise the skill and knowledge normally possessed by members of the same profession in good standing (real-world comparison to colleagues).
Majority: applies national standard
Minority/old rule: locality rule
What is premises liability, generally?
Negligence case in which P enters real estate. When P goes onto property, encounters hazardous condition. P gets hurt. Q is whether D (possessor of property) is owed prior duty).
In premises liability case, what duty is owed to unknown/undiscovered trespasser?
NO duty of care.
In premises liability case, what duty is owed to known or anticipated trespasser?
Known/anticipated means possessor either knows or should know they would be there (pattern of trespassing, i.e.)
Duty only in known, man-made death traps:
- Condition must be artificial
- Condition must be highly dangerous
- Condition must be concealed from entrant AND
- D must have prior knowledge of condition
In premises liability case, what duty is owed to a licensee on property?
Licensee means invited onto premises but do not confer economic benefit to possessor (dinner guest, solicitors by implied consent).
Responsible for all hidden known death traps.
- Must be concealed/hidden from licensee AND
- Possessor must have prior knowledge of condition
No affirmative duty to inspect or repair, simply to warn.
Note: Thus, if a licensee should reasonably discover it (a split floorboard, i.e.), there is no duty to warn.
Note: Limited to scope of invitation, but not in time (shows up an hour early, i.e.)
In premises liability case, what duty is owed to an invitee on property?
Invitee means enter with permission in a way that confers economic benefit on possessor (museum, commerce, airport, place of worship). Afforded the highest standard of care!
Responsible when:
- Condition is hidden, AND
- D actually knew about condition or COULD have discovered through reasonable inspection (CBA/similar circumstances)
Creates an affirmative duty to inspect when receiving money.
Ex. slip and fall in grocery store, wet floor unchecked 3 hours - liable
Note: invitee status can drop to anticipated trespasser if they exceed the scope of where they are allowed to be (known, dangerous, artificial)
Ability of rescue workers to recover damages in premises liability tort
They cannot! Injury is inherent risk of their job.
In premises liability case, what duty is owed to child trespassers?
Duty of reasonable care to prevent child trespassers from getting hurt (ordinary care).
Under attractive nuisance doctrine, must use reasonable prudence and take extra precautions.
How can a possessor of land fix a condition they are liable for under premises liability?
- Fix condition OR
2. Give warning (litigate & send to jury adequacy of that warning)
What is per se negligence?
A new standard of care that P’s want to hold D’s to. It changes the jury instruction away from ordinary duty of care. Eliminates D’s ability to offer excuse, explain why they were reasonable.
These are established by statutory standard of care. This means that duty and breach were established.
What is the test for determining whether a statutory standard of care appropriately applies in negligence tort action, such that negligence per se can be applied?
- Clearly stated specific duty
- Class of person (P must demonstrate member of class of persons that statute is trying to protect)
- Class of risk (accident that occurred is within the class of risks that statute was trying to prevent).
Motor vehicle code almost always satisfies.
The result of finding this is negligence per se (don’t need to prove duty or breach)
What exceptions exist to the statutory standard of care analysis (where the test is met but we still may not apply)?
- Where statutory compliance would be more dangerous than violation (D swerves over double yellow to avoid hitting baby girl in street)
- If compliance was impossible under the circumstances (ex. D’s true medical emergency); beyond the defendant’s control (ex. fleeing for life)
When does a duty to act affirmatively attach in negligence torts?
Rule: no duty to rescue stranger in peril UNLESS
- Parties have preexisting relationship - duty to act reasonably under circumstances (formal relationship like hotel/guest)
- When D caused peril - duty to act reasonably (can be non-negligent cause)
- When D chooses to engage in behavior to assist other party (gratuitous rescuers) - duty to act reasonably (may be liable if negligent; minority: Good Samaritan Laws, which absolve liability)
Never obligated to risk own life.
Establishing negligent infliction of emotional distress
D behaved negligently and P did not suffer any physical harm (b/c if P suffered physical harm, normal negligence and can collect emotional harm here).
First, establish negligence of D. Then establish P entitlement to recover.
How can a plaintiff show negligent infliction of emotional distress in a near-miss case?
(near miss case - D behaving negligently almost physically injures, leaves P agitated/afraid)
Must show:
- D negligence put you in zone of physical danger
- Must be subsequent physical manifestation of distress (majority; split on whether depression counts)
How can a plaintiff show negligent infliction of emotional distress in a bystander case?
(bystander case - negligent D injures someone badly, almost or does kill them, bystander experiences grief)
Must show:
- Direct physical victim was close family member (roommate/cousin does not count, finance split)
- Was there AS it happened (close in space and time, can’t run out and see body on ground)
How can a plaintiff show negligent infliction of emotional distress based on the parties’ relationship?
When P and D are in preexisting business relationship and it is highly foreseeable that negligent D conduct will cause significant distress due to the nature of performance
Ex. false positive doctor, morgue, NOT your dry cleaner messing up
Doctrine of res ipsa loquitor
Invoked in scenario without much information.
- The event causing plaintiff’s injury is not the type of thing that happens unless someone was negligent;
- The negligence is attributable to the defendant (usually this is proved by showing that the defendant was in exclusive control of the instrumentality that caused plaintiff’s injury); and
- The plaintiff was not the reason for the injury’s occurrence.
Creates prima facie case for negligence (not for an intentional tort).
Juries always free to reject res ipsa inference.
Majority: Res ipsa usually can’t be used in cases with multiple defendants, especially with more than one potential defendant when at least one defendant definitely didn’t do it
Minority: if all of them could have done it, can invoke res ipsa (Ybarra) (ex. appendectomy gone wrong, blame everyone in the operating room)
What is but-for, or factual, causation?
The breach was a necessary precondition of the injury.
In an alternative universe, if D is perfectly careful, does the accident still occur?
How does one determine whether factual causation is present with merged/joint causes? (I.e. each D releases destructive force, which come together and harm P.)
Majority: substantial factor test - was the individual force a substantial factor?
How does one determine whether factual causation is present with unascertainable or alternative causes? (i.e. two hunters shoot multi-pellet round in same direction, only one pellet hits V)
Burden of proof shifts to Ds to show that their negligence was not the actual cause. Otherwise, we hold them jointly and severally liable.
D must essentially talk their way out of the case, b/c we don’t know which negligent act caused the harm.
What is the test to determine proximate cause?
Test: foreseeability.
- Time (generally - but see releasing carcinogens and 20 years later people get cancer)
- Distance
- Weirdness (out of the ordinary or expected/conventional?)
D runs traffic light. Hits P, concussion. As a result of negligent medical care, P’s leg amputated. Was intervening negligent medical treatment foreseeable such that proximate cause may be attributed to D?
Yes, because intervening negligent medical treatment is proximately caused by D.
Note that the negligent doctor is also liable for medical malpractice.
D runs light. Hits P. Good Samaritan J wants to help, injures him. Is D liable for P’s broken shoulder, caused by an intervening negligent rescue?
Yes, b/c D’s are liable for intervening negligent rescue. Sufficiently foreseeable that we say it proximately caused.
D runs red light, breaks P leg. Next day, P loses balance on crutches, breaks arm. Is D liable for the subsequent accident that caused P’s broken arm?
Yes, b/c Ds are liable for subsequent disease or accident. Sufficiently foreseeable that we say it proximately caused.
