Torts Flashcards
Intentional Torts - Transferred Intent Applies to:
- Assault
- Battery
- False imprisonment
- Trespass to land
- Trespass to chattels
Intentional Torts - Damages required for:
- IIED
- Trespass to chattels
- Conversion
Tortious Intent
D must intend the consequences of his act:
- Act
- Intent
- Causation
False Imprisonment
- Act by D intended to confine P w/in fixed boundaries
- P must be conscious of confinement or harmed by it
- Damages not required
- Time of confinement irrelevant
IIED
- Extreme and outrageous act intended or substantially certain to cause severe emotional distress
- Damages required, but physical injury not required
Trespass to Land
Intent for physical, tangible thing to enter another’s land
Necessity
- Private Necessity - D enters to save himself, family, or one other member of community; D will be liable for damages to property
- Public Necessity - D enters to save members (multiple) of community; no liability for damages
Conversion
- Act of dominion and control intended or substantially certain to cause serious interference w/ P’s right to immediate possession
- Remedy: FMV at the time of conversion
- Mistake is no defense to conversion
Trespass to Chattels
Minor interference w/ P’s personal property; damages are the cost of repairs
Negligence - Standard of Care
- General Rule: D owes duty of ordinary and reasonable care under circumstances
- Physical Disability: D owes duty of reasonable care for a person w/ that disability
- Mental deficiency is not an excuse for negligent conduct
- Professionals are held to a higher standard of care!
Negligence - Directed Verdict
○ P has to show duty and breach to avoid defense motion for directed verdict
○ P’s mtn for directed verdict is almost always denied b/c almost always triable issue of fact for jury
D mtn for directed verdict usually denied
Vicarious Liability
- Respondeat Superior - vicariously liable only for negligent act of subordinate
- Exception: Where force is inherent in nature of employment, superior can be liable for intentional acts
Unknown Trespasser
No duty
Known or Anticipated trespasser
Must warn of known, dangerous, artificial conditions
Licensee or Social Guest
Duty to warn of known, dangerous, artificial, or natural conditions.
- Only for hidden conditions
Invitee
Duty regarding known, dangerous, artificial, or natural conditions.
- Must inspect and make safe
Attractive Nuisance
Possessor of land is liable if:
- Artificial, dangerous condition exists on land
- Possessor knows or should know children are likely to trespass
- Child, because of age or immaturity, fails to realize risk or appreciate danger involved
Utility of maintaining condition is slight compared to risk involved
Negligence per se
- Presumption of negligence
- Breach of statutory duty of care which creates presumption of negligence
- P must be member of class of persons statute designed to protect
- P’s harm must be of the type statute intended to protect
- Defense:
When D is confronted w/ emergency beyond his control
Pure COMPARATIVE Negligence
P can recover no matter his portion of damages.
This is the assumption on MBE!
MODIFIED Comparative Negligence
P can only recover if less than 50% at fault
Traditional CONTRIBUTORY Negligence
P cannot recover if P was negligent.
Rebuttals:
- Last clear chance - D had last clear chance to avoid P’s harm and failed to do so.
- D’s conduct more egregious than P
Joint and Several Liability
Each tortfeasor is liable for full amnt of P’s harm
Products Liability
- A commercial seller is strictly liable for any defective condition unreasonably dangerous existing at the time of sale
- Class of Ps: any foreseeable user, consumer, or bystander
- Class of Ds: any commercial seller (all up manufacturing chain)
Products Liability - Defenses
- Assumption of risk - complete defense to products liability
- Product misuse
- Warnings
- If harm has never occurred before, then not knowing about the mnf defect is a defense
- Contributory negligence is no defense!
- Reasonable misuse is foreseeable and NOT a defense!
Strict Liability
Breach of absolute duty of care proximately causing harm to P:
- Abnormally dangerous activities – the activity itself has to cause the harm
- Ultrahazardous activities
- Wild animals
Defamation - Elements
(DPDPD)
- D - Defamatory statement of fact
- P - publication to any third party who reasonably understands
- D - damages: general (injury to reputation; presumed); special damages (pecuniary loss; not required for slander per se or libel)
- P - Plaintiff’s status
- D - Defenses
Defamation - Plaintiff’s Status
- P has to prove fault and falsity
- If public figure or official, P must prove malice - knowing falsity or reckless disregard to truth
- If private person:
□ Matter of public concern - P must show negligence
□ Matter of private concern - P only has to show publication
Invasion of Privacy
- Types: ○ False light (publication needed) ○ Commercial appropriation (publication needed) ○ Public disclosure of private facts (publication needed) ○ Intrusion (no publication required) - Special damages not required - Truth is no defense - Consent is best defense - Privacy actions do not survive death
Private Nuisance
- Substantial and unreasonable interference w/ P’s use and enjoyment of his land
- To determine unreasonableness, court uses balancing test: utility of D’s conduct against gravity of harm to P
○ If utility outweighs harm, no injunction, but can get damages
Common Carriers
Have duty to inspect vehicles and make them safe
