Torts Flashcards
Battery
(1) Intentional
(2) Harmful or offensive contact
(3) With another person,
(4) Causation.
* Transferred intent applies.
Assault
(1) Intentional
(2) Act
(3) Causing
(4) V’s apprehension of imminent harm or offensive contact.
* Transferred intent applies.
IIED
(1) Intentional or reckless
(2) extreme and outrageous conduct that
(3) causes (was a SUBSTANTIAL FACTOR in)
(4) severe emotional distress.
* Third Parties:
When the defendant’s conduct is directed at a third-party victim, that defendant is liable if he intentionally or recklessly causes severe emotional distress to:
i) A member of the victim’s immediate family who is present at the time of the defendant’s conduct (and the defendant is aware of such presence), whether or not such distress results in bodily injury; or
ii) Any other bystander who is present at the time of the conduct (and the defendant is aware of such presence), if the distress results in bodily injury.
False Imprisonment
(1) Intent to confide or restain another w/in boundaries,
(2) causing confinement, and
(3) the victim is conscious of confinement or harmed by it.
Shopkeeper’s privilege
A shopkeeper may reasonably detain a suspected shoplifter
Intent for general intent crimes
Intent means a purposeful act, i.e., an act where D knows that the consequence (offensive touching, imminent apprehension, or confinement) is substantially certain to occur.
Defenses to Intentional Torts Involving Personal Injury
(1) Express or implied consent (invalidated by incapacity, duress, fraud as to essential matter, or mistakes caused or knowingly utilized by D);
(2) Self-defense (not available to initial aggressor, must use reasonable force, no duty to retreat, not liable for accidental non-negligent injuries to bystanders);
(3) Defense of Others (must reasonably believe the defended party is entitled to use force, must use reasonable force);
(4) Defense of Property (No deadly force allowed).
Trespass to Chattels
(1) Intentional
(2) interference with P’s right of possession by either (a) dispossessing or (b) using or intermeddling.
* NOTE 1: Only intent to do the act is necessary–transferred intent applies.
* NOTE 2: Mistake of law is not a defense.
Conversion
(1) Intentional
(2) interference with P’s right of possession
(3) so serious that it deprives P of the use of the chattel.
* NOTE 1: Only intent to do the act is necessary–transferred intent applies.
* NOTE 2: Mistake of law is not a defense.
Remedies for Conversion v. Trespass to Chattel
* Conversion: Damages for full value of property or replevin.
* Trespass to chattel: Diminished value or cost of repair and (if there was dispossession) loss of use.
Trespass to Land
(1) Intent to enter land or cause physical invasion,
(2) physical invasion,
(3) no public necessity.
Proper Plaintiff for Trespass to Land
Anyone in actual or constructive possession of land
What are the “necessity” defenses for trespass to land?
* Private necessity: Qualified privilege to enter another’s land to protect one’s person/property from harm. Must compensate for actual damages.
* Public necessity. Absolute privilege to enter land when reasonably believe necessary to avert imminent public disaster. No damages authorized.
Private Nuisance
An (1) intentional, negligent, reckless, or abnormally dangerous act that causes
(2) substantial and
(3) unreasonable
(4) interference with another’s use or enjoyment of his land.
* Interference is SUBSTANTIAL if it offensive to the average person in the community.
* It is UNREASONABLE if the injury caused outweighs the usefulness.
Proper Plaintiff for Private Nuisance
Anyone with possessory rights in the real property
Proper Plaintiff for Public Nuisance
A private citizen suffering harm different in kind form the general public.
Remedies for Nuisance
Damages or Injunction (balance the equities)
Public Nuisance
An (1) intentional, negligent, reckless, or abnormally dangerous act that (2) interferes with a right common to the general public.
Defenses to Nuisance
Regulatory Compliance (imperfect defense) and Coming to the Nuisance (not dispositive but jury may consider)
Right to Abatement in Nuisance
* Private Nuisance: Private party may use reasonable force to abate, but only after giving notice to D and D refuses to act.
* Public Nuisance: Absent unique injury, only public authority can abate nuisance.
Negligence
Negligence is the breach of a duty to protect a foreseeable victim against unreasonable risk of injury, which causes harm to the victim.
Negligence “duty analysis” - to whom is a duty owed?
An analysis of duty requires an examination of to whom the duty is owed and what the duty entails (otherwise known as the standard of care).
* Cardozo: A duty is only owed to Ps within the zone of foreseeable harm (Palsgraf rule, majority rule).
* Andrews: If D can foresee harm to anyone resulting from his negligence, D owed a duty to everyone harmed, whether foreseeable or not (minority rule)
Special Rules for Duties Owed to Rescuers
If D negligently places a person in danger, D also negligently placed their rescuer in danger. But:
(1) emergency professionals are barred from recovery if the injury results from risks of the job, and
(2) comparative fault principles apply if rescuers make unreasonable efforts.
Duty owed to fetus?
Beginning at viability
When does D have affirmative duty to act?
If D–
* Assumed the duty,
* Placed another in peril,
* Contracted for the duty, or
* Had a special relationship to the victim (employer-employee, parent-child, common carrier-passenger)
Does voluntary intoxication excuse D from negligence standard?
No
Negligence standard for children
A child must act with the same degree of care as a reasonable child of similar age, intelligence, and experience. But:
* A child engaged in a high-risk activity is held to an adult standard, and
* Children under 5 generally incapable of negligence.
Negligence Standard of Care for Professionals
Must show same skill, konwledge, and care as other practitioners in same community (physicians held to national standard). In addition:
* Standard must be shown by expert unless negligence is obvious to layperson, and
* Failure to comply with informed consent requirement is per se negligence unless risk is commonly known, patient is unconscious, patient waives, or disclosure too harmful.
Negligence Per Se
Applies when a criminal or regulatory statute imposes a specific duty of care that applies to D, D fails to conform to duty, and the resulting harm is the TYPE OF HARM to the TYPE OF PARTY contemplated by the statute.
Defenses:
* Compliance impossible or more dangerous than noncompliance,
* Violation reasonable under the circumstances,
* Statutory vagueness or ambiguity.
Standard of Care for Common Carrier
Highest duty of care consistent with practical operation of the business
Standard of Care for Innkeepers
Ordinary negligence (majority), slight negligence (CL)
Standard of care for bailor
Duty to warn all bailees of known dangerous defects, and bailees for hire of reasonably discoverable defects
Standard of care for bailee
* Gratuitous bailee: gross negligence,
* Bailee for mutual benefit: regular negligence,
* Bailee for hire: extraordinary care
Standard of care for sellers of real property
Must disclose known, concealed, unreasonably dangerous conditions. Liability to 3d parties continues until buyer has a reasonable opportunity to discover and remedy defect.
