Torts Flashcards
Battery
- Intentional (voluntary and substantially certain that act will cause..)
- harmful or offensive contact
- to P’s person
Assault
Intentional act that causes reasonable apprehension of imminent harmful or offensive contact with the P’s person.
P must be aware of D’s act AND D is able to commit act
False Imprisonment
Act or omission that causes P to be restrained to a bounded area.
Restraint does not need to be physical or confined to one place.
P must be aware of confinement OR physically harmed by it
Intentional Infliction of Emotional Distress
P must show:
- extreme and outrageous conduct by D
- intent or recklessness
- D’s act caused extreme emotional distress, AND
- P actually suffered severe emotional distress
Bystander IIED
- present when injury incurred
- P is a close relative to victim
- D knew P was present and a close relative
Trespass to Land
Intentional physical invasion of P’s real property
Reckless or negligent entries only subject to liability if D causes harm to land
Trespass to Chattel
Intentional interference with P’s right of possession in chattel. Amount of damages is small
Conversion
Same as chattel but the amount of damage is so substantial that D is liable for the full market value of the chattel involved.
Transferred Intent
Still liable if you meant to hit X by hit Y instead
Intentional Tort Defense: Consent
Express or implied through words or conduct. D/s actions CANNOT exceed bounds of consent given.
NOTE: Cannot consent to a crime
Intentional Tort Defense: Necessity
Public Necessity - If intrusion was for the the protection of the community as a whole, NO liability for trespass and damages
Private Necessity - If to protect own interest, not liable for trespass, BUT liable for actual damage
Intentional Tort Defense: Self-Defense/ Defense of Others
D reasonably believed that P was going to harm him or another, AND D used only amount of force that was reasonably necessary to protect himself or another
Shopkeeper’s Privilege
Shopkeeper may detain for reasonable time and manner if reasonably believes person committed theft in order to conduct an investigation
Prima facie case of neglience
- Duty
- Breach
- Causation: Actual and Proximate
- Damages
Must show sufficient evidence for each element for it to be a prima facie case
To whom is a duty owed?
Every person has duty to act as a reasonable person would in similar circumstances.
Duty owed to all foreseeable plaintiffs
(Cardozo view: foreseeable Ps in zone of danger)
Affirmative duty rule
No general duty to act affirmatively.
Duty arises if there is a legal relationship
Child’s duty of care
Under 4 yrs old: NO liablity.
4-18 yrs old: care of a child of similar age, intelligence and experience under similar circumstances, UNLESS child is engaged in adult activity
Landlord’s Duty to Tenants
Landlord has a duty to take reasonable precautions to protect tenants against foreseeable attacks
Attractive Nuisance
Landowner owes a duty to child trespassers to warn of or make safe ARTIFCIAL conditions on his land.
Reqts:
- dangerous condition on land that landowner knows or should have been aware of
- owner knows or should know that kids frequent the area, AND
- risk of harm outweighs the expense of making the conditions safe
Reasonable Person Standard
Every person owes a duty to act as a reasonable prudent person would act under the circumstances
Landowners Standard of Care: Undiscovered trespassers
No duty of care, but no traps
Landowners Standard of Care: Discovered/Anticipated Trespassers
Duty to warn of concealed dangerous artificial conditions
No duty to inspect or repair
Landowners Standard of Care: Licensees
Social guests.
Duty to warn of all KNOWN dangerous conditions that are not apparent to guest
Landowners Standard of Care: Invitee
Business guests
Duty to warn of all KNOWN dangerous conditions AND any dangerous condition that could be discovered through reasonable inspection
Negligence Per Se
Statute can be used to substitute common law duty of care. Duty and breach assumed if statute is violated. For causation and damages, P must show
- statute’s purpose is to prevent the type of injury, AND
- P was in the class of persons the statute was meant to protect
Res Ipsa Loquitor
“thing speaks for itself”
- injury does not typically occur in the absence of negligence, AND
- thing/object that caused injury was in D’s exclusive control
Causation
Actual Cause: “But for” test - but for D’s negligence, P would not have been injured
Proximate Cause: Injury was foreseeable to D that his breach would cause this type of injury
Intervening Cause
Any act that occurs after D’s breach that contributes to the harm. D still liable if foreseeable.
Superseding cause, if intervening cause was unforeseeable/foreseeable AND causes an unforeseeable injury, then D will not be liable
Eggshell Plaintiff Rule
D is liable for all harm a P suffers as a result of his conduct, EVEN if P suffers from a preexisting mental or physical condition that makes the harm worse than it wold have been
Comparative negligence
P partly contributed to his injury. Jury assigns % of fault.
Pure compar. neg. - P’s damage reduced by percentage of his fault
Partial compar. neg. - P recovers % of fault if fault is less than 50%. If greater than 50%, claim is barred
Contributory negligence
Minority view - if P contributed to his own injury, then barred from recovery. EXCEPT:
- when D had last clear chance to avoid accident, OR
- D was reckless
Assumption of Risk
Defense to negligence. P knew of the risk and voluntarily proceeded.
Negligent infliction of emotional distress
P must show:
- D was negligent
- P was within zone of physical danger
- physical manifestation of that stress
Respondeat Superior
Employer is liable for an employee’s negligent acts if employee was acting within scope of employment.
No employer liability for intentional torts, UNLESS:
- authorized or ratified by employer
- part of the nature of the job, OR
- motivated by desire to benefit employer
Joint and Several Liability
If two or more negligent are proximate cause to P’s injury, then P may recover the entire amount from any one of the Ds
Doctrine of Alternative Liability
If multiple Ds are negligent, but unclear which one caused P’s injuries, jury can find that ALL Ds are liable
Indemnification
Shifts loss between or among tortfeasors (comes up in VL or by contract)
Basically, a D is entitled to indemnity if D is passive tortfeasor and seeks to assert its claim against an active tortfeasor. Can recover full amount from active tortfeasor.
Contribution
Theory of recovery when there are joint tortfeasors.
Joint tortfeasor can seek contribution from other joint tortfeasors for their percentage of fault.
Defamation requirements
- Defamatory language concerning P
- published by D to a third party, AND
- damages
Slander
An oral defamatory statement. Need to show economic harm.
Slander per se categories, presume damages:
- business integrity or skill
- unchastity about an unmarried woman
- loathsome disease
- crime of moral turpitude
Libel
Defamation embodied in some permanent format. Does not need to prove damages.
Defamation of public figure
Must prove malice (D knows statement is not true or acted in reckless disregard in making statement
Defamation of private figure
Must only prove negligence. Showing of damage required.
If malice proved, than damages are presumed
Intentional Interference with Business relations
- P had a valid contract or business relationship
- D knew of contract/relationship
- D intetionally interfered to induce breach or termination
- contract/relationship ended, AND
- P suffered damages
Intentional Misrepresentation (Fraud/Deceit)
- D made misrepresentation of material fact
- D knew statement was false
- intended to induce P
- P relied on info, AND
- damages
Negligent Misrepresentation
- D owed duty to P (special relationship to give correct information)
- D made false representation that they should have known was incorrect
- D knew info was going to be used by P in a serious matter
- P relied on info
- damages
Nuisance: Public and Private
Public: unreasonable interference w/ health, safety or property rights of the community
Private: substantial and unreasonable interference with a person’s use or enjoyment of their property
Strict liability for animals
Wild animals - strict liability, no excuses
Domestic animals - liability if owner has knowledge of the animal’s vicious propensities
Ultra hazardous activity
Strict liability
- inherently dangerous
- uncommon to the area
- cannot be made safe
- risk of activity outweighs its social utility
Strict product liability
P must show
- D was a merchant dealing in goods of this type
- defective product when it left hands of the manufacturer/seller
- P used it in an intended or unintended foreesable way
Types of product defects
Manufacturing defect - product differs from other off the assembly and failed to perform as safely as an ordinary consumer would expect
Design defect - there was a safer, more practical and more cost effective way to build the product
Inadequate (failure to) warning - P was not warned of risks regarding use of product, which are not obvious to an ordinary user. Warning must be proportional to risk of use
