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Torts Flashcards

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1
Q

intentional torts

A

battery, assault, false imprisonment, IIED, trespass to land, trespass to chattel, conversion

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2
Q

defenses to intentional torts

A

consent, defense of self, defense of others, defense of property, necessity

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3
Q

economic indignitary torts

A

defamation, invasion of right to privacy (appropriation, intrusion, false light, public disclosure of private facts), fraud, intentional interference w/business relations, wrongful institution of legal proceedings (malicious prosecution, abuse of process

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4
Q

intentional torts - intent

A

A person intends the consequence of her action if:

  1. It was her purpose to bring about the consequence OR
  2. She knows to a degree of substantial certainty that the result will occur.
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5
Q

intentional torts - transferred intent

A

Intent can transfer from intended victim to actual victim or intended tort to actual tort.

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6
Q

battery

A

If he intends to cause 1) a harmful or offensive contact 2) w/plaintiff’s person.
Offensive = unpermitted
Anything connected w/plaintiff suffices for plaintiff’s person.

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7
Q

assault

A

If he intends to cause 1) reasonable apprehension 2) of an immediate contact.
Apparent ability creates reasonable apprehension.
Words are not enough for immediacy. Coupled with conduct can be enough and sometimes can undo the conduct and any reasonable apprehension.

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8
Q

false imprisonment

A

If he intends to confine with a 1) sufficient act of restraint 2) to a bounded area.

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9
Q

false imprisonment - sufficient act of restraint

A
  1. Threats are enough.
  2. Inaction is enough if there is an understanding that D could act for Ps benefit.
  3. P generally must be aware of the confinement.
  4. Confinement’s length of time is irrelevant.
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10
Q

false imprisonment - bounded area

A
  1. Freedom of movement is restricted.
  2. Mere inconvenience is not enough.
  3. Not bounded if there is a REASONABLE means of escape of which P is aware.
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11
Q

intentional infliction of emotional distress (IIED)

Fallback position to use only when other tort theories aren’t working!

A

Outrageous conduct with damages

Extreme and outrageous conduct that exceeds the bounds of common decency that is intended or substantially certain to cause severe emotional distress.

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12
Q

IIED - outrageous conduct

A
  1. Continuous conduct, extreme and outrageous conduct that exceeds the bounds of common decency
  2. Type of plaintiff (elevated status) - children, elderly, pregnant women - easier to characterize how they are treated as outrageous
    NOT SUPERSENSTIVES ON ANY INTENTIONAL TORTS
  3. Type of defendant (elevated status) - common carriers and innkeepers - easier to characterize their conduct as outrageous
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13
Q

IIED - damages

A

Proof of SEVERE emotional distress

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14
Q

IIED - intent

A
  1. Recklessness can suffice
  2. Substantial certainty can suffice
  3. Transferred intent is normally unavailable
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15
Q

intentional torts to property

A

trespass to land, trespass to chattel, conversion

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16
Q

trespass to land

A

An act of physical invasion to land.
Only intent required is intent to go in a particular direction, no need to show knowledge of crossing the property line.
Propelling a tangible, physical object will suffice.
Land includes the airspace above and the subsurface below so long as it is at a distance there the landowner can make reasonable use of the space.

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17
Q

trespass to chattel

A

An act of invasion to personal property. May be some damage.
Remedy: Loss of use or cost to repair

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18
Q

conversion

A

An act of dominion and control intended or substantially certain to cause serious interference w/Ps right to immediate possession.
Remedy: market value at time of conversion

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19
Q

defenses to intentional torts - consent

A
  1. P must have capacity to consent. Those lacking capacity includes children, mentally impaired, coerced, and those under fraud or mistake.
  2. Can be express or implied consent. Implied consent arises through custom and usage or through P’s own conduct.
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20
Q

defenses to intentional torts - defense of self

A

A person is justified in using REASONABLE force to prevent what she REASONABLY believes to be an imminent threat of force against her.
Reasonable belief requires that a reasonable person in D’s position would have believed he was in danger.
A person may use ONLY the degree of force reasonably necessary to avoid the threatened harm.
Deadly force is only reasonable when the defender believes that she is facing a threat of deadly force.
Courts are divided on the whether a retreat is required before deadly force may be used.
Modern trend required retreat before using deadly force unless you are in your own home.

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21
Q

defenses to intentional torts - defense of others

A

A person may defend another person 1) in the same manner and 2) under the same conditions as the person attacked would be entitled to defend himself.
A defender is not liable if he reasonably believes that another person was endangered.

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22
Q

defenses to intentional torts - defense of property

A

A person may use reasonable force to defend his real or personal property. HOWEVER, deadly force may NEVER be used to protect property alone.
Hot pursuit - only use reasonable force to recapture your property
Shopkeeper - reasonable grounds to detain, manner of detention, length of detention

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23
Q

defenses to intentional torts - necessity

ONLY FOR INTENTIONAL TORTS TO PROPERTY

A

public necessity, private necessity

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24
Q

defenses to intentional torts - public necessity

A

complete privilege, action is justified, no compensation is required

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25
Q

defenses to intentional torts - private necessity

A

partial privilege, action is justified, compensation for actual damages is required

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26
Q

defamation

A

1) A defamatory statement that turns out to be false 2) of and concerning the plaintiff 3) in a statement that must be published to a third person 4) with damages.

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27
Q

defamation - defamatory statement

A

One that injures the plaintiff’s reputation

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28
Q

defamation - of and concerning

A

D’s statement must reasonably be understood to refer to the plaintiff

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29
Q

defamation - publication

A

The statement must be communicated to a third person.
The person must be someone other than the plaintiff and must be capable of understanding it.
Publication must be at least negligent if not intentional.

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30
Q

defamation - damages

A

When defamation is slander (spoken), P must prove special damages (economic loss tied to defamatory statement).
When defamation is libel (written or broadcast), juries may presume damages.
P can recover presumed damages in cases of slander per se. 1) impunes P’s trade or profession, 2) accuses P of committing a serious crime, 3) implies P has a loathsome disease, 4) imputes un-chastity to a woman.

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31
Q

defenses to defamation

A
  1. Truth
  2. Absolute privilege - judicial proceedings, legislative proceedings, communications between spouses
  3. Qualified privilege - serves interest of person who receives the information
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32
Q

Constitutional limitations to defamation

A

1st AMD protects speech on matters of public concern which require 2 additional elements on P’s prima facie case
1. Falsity: P must prove that the statement was false
2. Fault:
2a. For public persons (candidates, elected officials, government officials), a public plaintiff must prove actual malice - knowledge of the falsity or reckless disregard of the truth
2b. For private persons, a private plaintiff must prove fault amounting to at least negligence.
All plaintiffs must prove actual malice to recover presumed or punitive damages.

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33
Q

Invasion of right to privacy torts

A

appropriation, intrusion, false light, public disclosure of private facts

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34
Q

Invasion of right to privacy torts - appropriation

A

Use of P’s name or picture for COMMERCIAL advantage without permission.
advertising, promotional, labeling purposes

35
Q

Invasion of right to privacy torts - intrusion

A

Interference w/a P’s seclusion in a way that would be highly offensive to a reasonable person. P MUST be in a place where she has a REOP.
telescope, eavesdropping device, doesn’t have to require trespass

36
Q

Invasion of right to privacy torts - false light

A

Widespread dissemination of information that is in some way inaccurate and that would be highly offensive to a reasonable person.
like defamation but falls short

37
Q

Invasion of right to privacy torts - public disclosure of private facts

A

Widespread dissemination of factually accurate information that would normally be confidential and the disclosure of which would be highly offensive to a reasonable person.
Newsworthy disclosures are not actionable (tabloids)

38
Q

defenses to Invasion of right to privacy torts

A

consent, absolute privilege, qualified privilege

39
Q

fraud - 5 elements of fraud

A

1) Affirmative misrepresentation 2) with intent 3) to induce reliance 4) that is actual and justifiable 5) with damages
Silence will not generally suffice for misrepresentation.
Scienter must be shown.
The statement must material.
It is normally justifiable to rely on the opinion of one who has SUPERIOR SKILL OR KNOWLEDGE in the subject matter of the transaction.
Must show loss for damages.

40
Q

negligent misrepresentation v fraud

A

Negligent misrepresentation is normally confined to commercial transactions and to a particular plaintiff whose reliance is contemplated.

41
Q

Intentional interference with business relations

A
  1. Inducing breach of K - an intentional action that causes a third person to breach an existing K w/P
  2. Interference w/business relations - Making performance more difficult even if the interference does not actually cause the breach
  3. Interference w/prospective economic advantage
42
Q

wrongful institution of legal proceedings

A
  1. Malicious prosecution - criminal proceedings brought without probable cause
  2. Abuse of process - wrongful use of any legal process for an ulterior motive or improper purpose
43
Q

negligence elements

A

duty, breach, causation, damages

44
Q

negligence - duty

2 questions

A
  1. To whom is a duty owed

2. How much care must be exercised

45
Q

negligence - duty

To whom is a duty owed?

A
  1. All people who are foreseeable victims of your failure to take precautions.
  2. As a matter of law, rescuers and viable fetuses are foreseeable plaintiffs.
46
Q

negligence - duty

How much care must be exercised

A
  1. Amount of care that would be taken by a RPP under the same or similar circumstances.
    D’s superior skill or expertise must be used for P’s benefit.
    D’s physical disabilities are attributed to RPP.
    RPP standard is a fixed constant in negligence law.
47
Q

negligence - duty

special duty standards for children

A

majority rule: A child must exercise the degree of care of a reasonable child of like age, intelligence and experience.
minority rule (rule of 7s):
0-7 - incapable of negligence
7-13 - rebuttable presumption that child is incapable of negligence
14yo and older - rebuttable presumption that child is capable of negligence
Adult activities: A child engaged in an adult activity is held to the adult standard.

48
Q

negligence - duty

special duty standards for professionals

A

A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.

49
Q

negligence - duty

special duty standards for owners/occupiers of land

A

Variables - source of the injury and status of the P
Source of injury: conduct of activity or encounter w/static condition
Status of P: undiscovered trespasser, discovered trespasser, licensee (guest, friend), invitee
Undiscovered trespasser - no duty
conduct of activity - RPP unless undiscovered trespasser
discovered trespasser/static condition - artificial, highly dangerous, concealed condition known to the owner/occupier
licensee/static condition - concealed condition known to owner/occupier
invitee/static condition - concealed condition known to owner/occupier or learned about by reasonable inspection (duty to inspect)

50
Q

negligence - duty
special duty standards for owners/occupiers of land
In a static condition, how can the owner/occupier satisfy the legal condition.

A
  1. Go to the condition and make it safe

2. Give a warning

51
Q

negligence - duty
special duty standards for owners/occupiers of land
What is the standard and doctrine used for child trespassers?

A
  1. RPP standard

2. Attractive nuisance doctrine

52
Q

negligence - duty
special duty standards for owners/occupiers of land
What happens if the condition is open and obvious?

A

Entrant will almost always lose.

53
Q

negligence - duty

negligence per se

A

An unexcused violation of a statute is presumptively an act of negligence IF

1) P is in the class of persons the statute was designed to protect AND
2) The harm is of the type the statute was designed to prevent (Class of persons, class of risk)
exceptions: Compliance w/statute is more dangerous than violating the statute or impossible under the circumstances.

54
Q

negligence - duty

duty to act

A
  1. General rule: No duty to act
  2. Exceptions
    a. If you put P in peril, you have a duty to prevent the peril.
    b. For certain relationships (close family, common carrier and innkeepers, invitor/invitee)
    c. Duty to control 3rd persons IF you have i) actual ability and ii) authority to control.
55
Q

negligence - duty

Negligent infliction of emotional distress

A
  1. General Rule: no duty
  2. Exception: If you are exposed to physical risk by D’s negligence, and then you suffer physical manifestations from your physical distress, you have a NIED claim
    a. Zone of Danger (near miss)
    P wins only if he was in the Zone of Danger
    b. Bystander recovery
    P wins if P was at the scene of the accident AND if she had a close relationship w/person in the accident
56
Q

negligence - breach

A

GR: P must point to specific conduct for breach of duty

57
Q

negligence - breach

proving conduct

A

custom - Always admissible, never conclusive (reasonable based on custom)
res ipsa loquitur - 1) the event did not result from P’s voluntary act 2) the event is one that does not normally occur in the absence of negligence, and 3) the event was caused by something under D’s exclusive control.

58
Q

negligence - causation

A
  1. Cause in fact

2. Proximate cause

59
Q

negligence - causation - cause in fact

A
  1. But-for test (but for D’s conduct, the injury would not have occurred)
  2. Substantial factor (multiple D’s and a co-mingled cause)
  3. Burden shifting (multiple D’s and an unknown cause)
60
Q

negligence - causation - proximate cause

A

legal responsibility

A person is liable for those harms within the risk of his activity.

61
Q

negligence - causation - fact patterns

A

Direct cause fact patterns - If D’s negligent conduct is foreseeable, D is liable
Indirect cause fact patterns -
1. If the foreseeable intervening cause leads to a foreseeable outcome, D is liable (P wins)
2. If the unforeseeable intervening cause leads to a unforeseeable outcome, D is not liable (P loses)
3. Intervening causes where D will almost always be liable (always foreseeable) - subsequent medical malpractice, negligent rescue, reaction forces, subsequent accidents or diseases
4. Intervening causes where D will not cut off liability IF D can anticipate the intervening cause (if foreseeable) - 3rd party negligence, criminal conduct, acts of God

62
Q

negligence - damages

and elements of personal injury award

A

Damages must be proven as part of the prima facie negligence case.
Elements of a typical personal injury award: 1) past & future medical expenses, 2) past & future lost income, and 3) P’s pain and suffering

63
Q

negligence - damages

eggshell skull plaintiff

A

D is liable for the full extent of the damages he causes, even if the extent was unforeseeable.
(You take P as you found P.)

64
Q

negligence - defenses

A
  1. Contributory negligence
  2. Assumption of risk
  3. Comparative negligence
65
Q

negligence - defenses

contributory negligence

A

P’s failure to use the relevant degree of care for his own safety.
Consequence: P recovers nothing. Absolute bar to recovery UNLESS
Last clear chance: P can recover despite negligence if D had the last clear chance to avoid the accident.

66
Q

negligence - defenses

assumption of risk

A

Express and Implied
Express (expressly stated): Absolute bar to recovery unless a public policy exception.
Implied (knowing and voluntary encounter with the risk): Usually a bar to recovery UNLESS
1. Absence of an alternative destroys voluntariness.
2. Emergency situations destroy voluntariness.

67
Q

negligence - defenses

comparative negligence

A

Reduces recovery instead of absolute bar
Pure CN and Modified CN
Pure CN - P always recovers something (even if she is the majority negligent actor in the case)
Modified CN - P recovery is proportionally reduce to a threshold (49% or 50%), then it is a bar to recovery
Where it exists, comparative negligence supplants all other affirmative defenses except express AoR

68
Q

strict liability

A 
animals
abnormally dangerous activities
product liability
private nuisance
public nuisance
69
Q

strict liability - animals

A

SL for foreseeable harm cause by trespassing animals (other than household pets)
personal injury for domesticated animals: no SL UNLESS you know of the animal’s dangerous propensity in advance.
personal injury for wild animals: SL as long as P doesn’t do something knowingly or voluntarily to cause her own harm.

70
Q

strict liability - abnormally dangerous activities

A

3 attributes:
1. The activity is incapable of being conducted except with high risk.
2. If harm occurs, it is likely to be severe
3. The activity must be uncommon, atypical, unusual in the community where it takes place
Harm must be within the risk (proximate cause - foreseeable)

71
Q

strict liability - product liability (product related injury)

A
  1. D must be a merchant seller.
  2. Product must be defective.
  3. Defect must be in the same condition as when it left seller’s hands.
  4. P made a foreseeable use of the product.
72
Q

strict liability - product liability (product related injury)
defective product

A
  1. Manufacturing defect - product departs from its intended design
  2. Design defect - product is made as intended but defectively designed
73
Q

strict liability - product liability (product related injury)
defenses

A

Contributory negligence will not bar recovery (No defense - bad for D, good for P)
Assumption of risk will bar recovery (valid defense - good for D, bad for P)

74
Q

strict liability - product liability (product related injury)
hints

A
  1. When theory is negligence, wholesalers and retailers are off the hook.
  2. An adequate warning usually insulates a D from SL.
  3. If there is a “feasible alternative” for making a product safer, D is liable on a design defect theory WITHOUT REGARD TO A WARNING.
  4. Foreseeable use is NOT the same as intended use.
  5. If product use is incidental to performance of a service, SL is unavailable.
75
Q

strict liability - private nuisance

A

Conduct that causes substantial and unreasonable interference with the use and enjoyment of land.
Substantial and unreasonable interference - unreasonable vibrations, noise, smells, etc.
Remedies - Balance of utility of Ds conduct against gravity of harm to P. If U of D > H to P = no injunction, yes damages

76
Q

strict liability - public nuisance

A

Conduct that causes physical or moral harm to the public in general.
A private plaintiff can maintain a public nuisance action if he suffers harm different in nature than the general public at large.

77
Q

Vicarious liability - employer-employee

A

Employer is vicariously liable for employees’ torts committed WITHIN the scope of employment (frolic and detour)
Not liable for intentional torts unless violence is part of the job.
Not liable for independent contractors unless engaged in an inherently dangerous activity or public policy

78
Q

Vicarious liability - auto owner-auto driver

A

Generally, no VL
When driver is performing an errand for owner, liability may be premised on agency principles.
minority rules:
Family car states - owner is VL for the torts of any household member driving the car w/owner’s permission
Permissive use states - owner is VL for the torts of anyone using the car w/permission

79
Q

Vicarious liability - parent-child

A

No VL

80
Q

Multiple D’s - adjustment of rights

A

Joint and several liability - each D can be liable to P for the entire damage incurred (concert of action or indivisible harm)
Indemnity - passive D receives full reimbursement from active D
Contribution - paying D recovers proportional shares from other Ds

81
Q

Wrongful death and survival actions

A

NOT separate causes of action.
They are labels that apply to tort actions when the tort results in the victim’s death.
Wrongful death - lawsuits brought by a decedent’s beneficiaries for their own loss of support that deceased would have provided. (defenses still available)
Survival - lawsuits brought by a decedent’s estate for claims that deceased could have brought if she survived subject to defenses had there not been a death.

82
Q

immunity

A

Family immunity - none
Government immunity
a. No immunity when govt engaged in proprietary function (function that a private party would normally carry out)
b. Retains immunity when engaging in traditional government activity unless abrogated by statute
Charitable immunity - mostly abolished

83
Q

respondeat superior

A

look this up

84
Q

negligence - duty

attractive nuisance

A

A possessor of land is liable if 4 conditions are met:

  1. An artificial dangerous condition exists
  2. Possessor knows or should know that children are likely to trespass
  3. Child herself, b/c of age or immaturity fails to realize the risk or appreciate the danger involved
  4. Utility to maintain the condition is slight compared to the risk involved

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