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Washington Bar > Torts > Flashcards

Torts Flashcards

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1
Q

Intentional Torts

A
  1. Battery
  2. Assault
  3. False Imprisonment
  4. Intentional Infliction of Emotional Distress
  5. Trespass to Lands
  6. Trespass to Chattels
  7. Conversion
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2
Q

Battery

A
  1. Harmful or Offensive Contact
  2. to Plaintiff’s person
  3. Intent; and
  4. Causation

Damages not Required

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3
Q

Assault

A
  1. D must place the P in a reasonable apprehension
  2. That apprehension must be of an immediate harmful or offensive contact
  3. Intent; and
  4. Causation

Damages not Required

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4
Q

False Imprisonment

A
  1. D must commit an act of restraint
  2. P is confined in a bounded area
  3. Intent; and
  4. Causation

Damages not Required

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5
Q

An act of restraint

A
  • Restraint can be physical, but threats are sufficient - that would operate on the mind of an ordinary person
  • An omission can be an act of restraint - Only true if there was a pre-existing duty owed by the P
  • An act of restraint only counts if the P is aware of it or harmed by it
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6
Q

An area is not bounded if:

A

There is a reasonable means of escape the P can reasonably discover

  • moral pressure and future threats are insufficient
  • If the only way out is dangerous, disgusting or humiliating - it is not a reasonable means
  • If it is hidden - it is not reasonably discoverable
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7
Q

Awareness of Confinement

A

P must know of the confinement or be harmed by it

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8
Q

Intentional Infliction of Emotional Distress (IIED)

A
  1. Extreme & Outrageous Conduct
  2. Intent or Recklessness
  3. Causation; and
  4. Damages - Severe Emotional Distress

This is a fall back tort, find another one before using this alternative

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9
Q

Factors that lead to Outrageousness

A
  1. Conduct is repetitive in nature
    • Ex: abusive debt collection practices repeated daily
  2. D is a common carrier (airline) or innkeeper (hotel)
    • These types of businesses are held to a hire standard of courtesy to their customer
  3. P is a member of a fragile class of persons
  4. If D had prior knowledge of a particular emotional sensitivity by the P, exploiting that is outrageous (it is outrageous to push somebody’s buttons)
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10
Q

Exception to when an insult would be enough to be outrageous:

A

P is a member of a fragile class of persons

  • Insults are outrageous to these classes (pick on someone your own size)
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11
Q

Fragile Classes of Persons

A
  1. Young children
  2. Elderly
  3. Pregnant women
    • You would have to know the woman is pregnant
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12
Q

Requisite Intent for IIED

A

Recklessness is sufficient

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13
Q

Proof of Severe Distress

A
  • No specific evidence required
  • P can prove however he wants
  • Do not have to prove specific symptoms
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14
Q

Causation in Bystander Cases for IIED

A

When the D intentionally causes physical harm to a 3rd person and the P suffers sever emotional distress because of it, the P may recover by showing either the PFC for emotional distress or that:

  1. she was present when the injury occured
  2. she is a close relative of the injured person, and
  3. the D knew the facts of 1 and 2.
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15
Q

Damages for IIED

A
  • IIED is the only intentional tort where damages is required
  • Actual damages (severe emotional distress), not nominal, are required
  • Proof of physical injury is not required
    • the more the outrageous conduct, the less proof of damages is required
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16
Q

Privacy COAs

A
  1. Appropriation of Ps Picture or Name
  2. Intrusion on Ps Affairs or Seclusion
  3. Publication of Facts Placing P in False Light
  4. Public Disclosure of Private Facts About P
17
Q

The Extent of the Right of Privacy

A
  1. right of privacy is a personal right and does not extend to members of a family
  2. does not survive after the death of the P
  3. not assignable
  4. not applicable to corporation
18
Q

Privacy COA Defenses

A
  1. Consent
    1. Express
    2. Or implied
  2. Absolute and qualified privilege defeat:
    1. False light
    2. And disclosur
19
Q

Intentional Misrepresentation COA

A
  1. Misrepresentation of a material past or present fact
  2. Scienter - she knew or believed it was false or that there was no basis for the statement
  3. Intent to induce P to act or refrain from acting in reliance upon misrepresentation
  4. Causation (actual reliance)
  5. Justifiable Reliance; and
  6. Damages (P must suffer actual pecuniary loss)
20
Q

When there a General Duty to Disclose Material Fact under Intentional Misrepresentation?

A
  1. D stands in a fiduciary relationship to the P
  2. D is selling property to P and knows that the P is unaware of, or cannot reasonably discover, material info about the transaction; or
  3. D has spoken and her utternance decieves the P

Physical concealment of a material fact may also constitute a misrepresentation.

21
Q

Negligent Misrepresentation PFC

A
  1. Misrepresentation by D in a business or professional capacity
  2. Breach of duty owed toward the P
  3. Causation
  4. Justifiable reliance; and
  5. Damages

This is usually made in the commercial setting

22
Q

Negligent Infliction of Emotional Distress (NIED)

A
  • Negligent D who does not inflict bodily trauma on P, but leaves P with emotional trauma
  • Need two tiers of analysis:
    1. Establish you have a negligent D
      • Articulate another standard of care
    2. Show a breach

Once analysis is proven, then can get to NIED claim: 3 alternative scenarios

23
Q

3 NIED Scenarios

A
  1. A near miss case
  2. Bystander Claim
  3. The relationship cases
24
Q

NIED: Near Miss

A
  • D does not physically harm, but almost does (close call)
  • 2 reqs to recover
    1. P has to show Ds negligent act placed the P in a zone of physical danger
    2. You also must suffer subsequent physical manifestations (not mental)
      • Ex: Heart attack
25
Q

NIED: Bystander Claim

A
  • D will badly injure or kill a 3rd party - the P is emotionally distraught from witnessing
  • P has to show
    1. You and the injured/killed 3rd party are family members with a close relationship
      • Spouse/parent/child
    2. You must be a contemporaneous witness
      • You have to see the injury to the 3rd party as it happens
26
Q

NIED: Relationship Cases

A
  • Arises with a business or commercial relationship
  • There is a high probability that careless performance will produce emotional distress
    • Ex: Medical patient/lab; customer/funeral parlor
27
Q

Res Ipsa Loquitor

A
  • happens when P lacks info about what the D did wrong

Have to Show

  1. Accident is one of a type normally associated with negligent conduct
    • Appeal to statistics
  2. And an accident of this of type would normally be due to the negligence of someone in this Ds position
    • Shown through D having control over the injury causing object
28
Q

Strict Liability for Abnormally Dangerous Activities Test:

A
  1. Activity creates a serious risk of foreseeable harm even when reasonable care is being exercised; and
    • Cannot be made safe with existing tech
  2. The activity is not common within the community for which it is done
    • Ex: Crop dusting in SF

SAFETY PRECAUTIONS ARE IRRELEVANT

29
Q

Activites that are Abnormally Dangerous for Strict Liability

A
  1. Blasting
  2. Dealing w highly toxic chemical or biological material
  3. Anything involving high quantities of radiation and nuclear energy (not X-ray machine)
30
Q

Private Nuisance

A

subtantial (or unreasonable) interference with a person’s use or enjoyment of the land

31
Q

What is substantial (and not) and unreasonable interference for private nuisance?

A
  • substantial = offensive, inconvenient or annoying to an average person in the community
  • not substantial if injury is merely a result of the P’s hypersensativity or specialized use of the property
  • unreasonable is where the severity of the injury outweighs the utility of the D’s conduct
32
Q

Public Nuisance

A

an act that unreasonably interferes with the health, safety or property right of the community

Washington Bar (11 decks)

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