Torts Flashcards
Torts - VICARIOUS LIABILITY FOR NEGLIGENCE
1) of EMPLOYEES committed while acting within the scope of employment
2) of INDEPENDENT CONTRACTOR engaged in an inherently dangerous activity OR non-delegable duty
Torts - VICARIOUS LIABILITY FOR INTENTIONAL TORTS
Of employee or independent contractor IF:
1) force is authorized by the employment,
2) friction is generated by the employment, OR
3) he is furthering the principal’s business (3 types of authority)
Torts - ASSAULT
1) A volitional act
2) Done w/ intent to cause EITHER:
- harmful or offensive contact OR
- apprehension of imminent harmful or offensive contact
3) That causes the reasonable apprehension of harmful or offensive contact
Torts - BATTERY
1) A volitional act
2) Done w/ intent to cause EITHER:
- harmful or offensive contact OR
- apprehension of imminent harmful or offensive contact
3) That causes harmful or offensive contact
Torts - FALSE IMPRISONMENT
1) An act intending to confine someone w/in boundaries fixed by the actor
2) Directly or indirectly resulting in such confinement, and
3) the confined person is EITHER conscious of the confinement OR harmed by it
Torts - FALSE IMPRISONMENT DEFENSE
SHOPKEEPER’S PRIVILEGE
Where a shopkeeper has reasonable grounds to believe that theft has occurred, he may detain for a reasonable time and in a reasonable manner to ascertain the facts
CRIME PREVENTION
A private person may arrest if he has a reasonable belief that crime has occurred that involves a breach of the peace
Torts - TRESPASS TO CHATTELS
1) An act which is an intermeddling or dispossession
2) Of the personal property
3) Of another
4) Which causes harm to or loss of use of the property
Torts - CONVERSION
1) An act which is an intermeddling or dispossession
2) Of the personal property
3) Of another
4) Which causes harm to or loss of use of the property, and
5) is serious enough in result to warrant that ∆ pay the full value at the time of conversion
Torts - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
1) Intentional act
2) that amounts to extreme and outrageous conduct that
3) causes severe emotional distress
Torts - TRESPASS TO LAND
1) Intentional entry onto or remaining upon
2) Land in the possession of another
3) w/o a privilege to do so
Torts - ABUSE OF PROCESS
1) Use of a legitimate process
2) For a wrongful purpose
3) and an act or threat against π to accomplish the wrongful purpose
Torts - MALICIOUS PROSECUTION
1) Initiation of civil, criminal, or administrative proceedings against current π
2) w/o probable cause
3) For a wrongful purpose
4) and the favorable termination of the proceedings on the merits in favor of current π
Torts - NEGLIGENCE UMBRELLA
The elements of negligence are:
1) Duty
2) Breach
3) Actual cause
4) Proximate cause
5) Harm
Torts - Negligence - ORDINARY DUTY
Act reasonably under the circumstances
Torts - Negligence - LAND POSSESSOR’S DUTY TO PEOPLE OUTSIDE PREMISES
1) Protect from unreasonably dangerous artificial conditions abutting adjacent land
2) Take due precaution to protect passersby from dangerous artificial conditions
Torts - Negligence - LAND POSSESSOR’S DUTY TO INVITEE
People on premises for business purpose of possessor
Duty to inspect, discover, repair, and protect against known or discoverable non-obvious dangers that pose an unreasonable risk of harm
Torts - Negligence - LAND POSSESSOR’S DUTY TO LICENSEE
Person on premises for own purposes
Duty to repair and protect against known, non-obvious dangers that pose an unreasonable risk of harm
Torts - Negligence - LAND POSSESSOR’S DUTY TO TRESPASSERS
KNOWN
Duty to warn of non-obvious dangerous artificial conditions
UNKNOWN
Duty not to use willful and wanton conduct
Torts - Negligence - ATTRACTIVE NUISANCE
1) Landowner knows/should know of dangerous condition
2) Knows children frequent the area
3) Dangerous condition is likely to cause harm b/c of child’s inability to appreciate the risk
4) expenses of remedying the situation is slight compared with the magnitude of risk
Torts - Negligence - DUTY TO CONTROL CONDUCT OF THIRD PARTY
Where ∆ has the ability and authority to control the conduct of a 3rd person or domestic animal, he has an affirmative duty to do so IF he knows or reasonably should know that the 3rd person is likely to commit acts that would require the exercise of control
Torts - Negligence - BREACH
Where ∆’s behavior falls short of that level required by the applicable standard of care
Torts - Negligence - RES IPSA LOQUITOR
Where the act constituting the breach is unknown, the fact finder can infer negligence IF:
1) ∆ had control over the instrumentality of harm and
2) the harm would not have occurred in the absence of negligence
Torts - Negligence - NEGLIGENCE PER SE
Where ∆ violated a statute, there is a conclusive presumption of duty and breach IF:
1) the statute or ordinance is criminal
2) π is a member of the class of persons intended to be protected by the statute, and
3) the claimed harm is of the type intended to be protected against by the statute
Torts - Negligence - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
There is no duty to prevent emotional distress in the absence of physical harm UNLESS:
1) π and the person injured are closely related and π was present at the scene and perceived the injury,
2) the relationship between π and ∆ is such that negligence has great potential to cause emotional distress, OR
3) ∆ mishandles a corpse or erroneously states that a relative has died
Torts - Negligence - CAUSATION
ACTUAL
- But for OR
- Substantial factor
PROXIMATE
- Foreseeable π AND
- foreseeable type of harm
Torts - NEGLIGENCE DEFENSES
- Contributory negligence = complete bar
- Comparative fault = % reduction
- Assumption of risk = π knows of the particular risk and voluntarily assumes it
- Emergency not of ∆’s own creation
Torts - PUBLIC NUISANCE
Unreasonable interference w/ a common public interest in health, safety, or morals
Does NOT give rise to a private CoA UNLESS π’s harm is different in kind from the public harm
Torts - PRIVATE NUISANCE
1) Unreasonable and substantial invasion of π’s interest in the use or enjoyment of his land AND
2) the invasion is EITHER
- intentional OR
- unintentional AND otherwise actionable as negligence, recklessness, or an abnormally dangerous condition or activity
Torts - STRICT LIABILITY FOR WILD ANIMALS
1) ∆ owns a wild animal,
2) Animal causes harm to π of the kind caused by its wildness, and
3) ∆ knew or had reason to know of the animals vicious tendencies
*Exception - public zookeepers are only liable if they are negligent
Torts - STRICT LIABILITY FOR ABNORMALLY DANGEROUS ACTIVITIES
1) Carrying on of an abnormally dangerous activity
- high degree of risk of harm
- gravity of harm
- inability to eliminate the risk by using reasonable care
2) which causes harm
3) the risk of which makes the activity abnormally dangerous
Torts - STRICT PRODUCTS LIABILITY
1) ∆ is in the business of selling/distributing products
2) ∆ sells or distributes a defective product that remains unchanged when it reaches the consumer
3) the defect causes harm to a foreseeable person
contributory negligence is NOT a defense
Torts - MANUFACTURING DEFECT
Product departs from its intended design
Torts - DESIGN DEFECT
1) Creates an inherently unreasonable risk OR
2) the foreseeable risks could have been avoided or reduced by the adoption of a reasonable alternative design and the omission of such a design renders the product not reasonably safe
Torts - WARNING DEFECT
1) ∆ knows or has reason to know that
2) Product is likely to be dangerous for the use for which it is supplied, and
3) has no reason to believe users will realize its dangerous condition, and
4) ∆ fails to adequately inform users of the product’s dangerous condition or the facts which make the product likely to be dangerous
Torts - NEGLIGENT PRODUCTS LIABILITY
Duty to make a safe product is owed to purchasers and any others the manufacturer foreseeably knows will use the product w/o further inspection/tests, where the product when negligently made is reasonably certain to place users in peril
Torts - BREACH OF EXPRESS WARRANTY
1) ∆ makes an affirmation of fact concerning the product that is part of the basis of the bargain
2) π relies on the warranty in purchasing the product
3) warranty is not fulfilled
4) π is harmed as a result of the failure of the warranty
Torts - IMPLIED WARRANTY OF MERCHANTABILITY
1) Product is sold by a merchant in goods of the kind sold
2) implied warranty that goods:
- -are of fair, average quality and fit for the ordinary purpose for which such goods are used,
- -are adequately packaged/labeled, and
- -conform to promises or affirmation on the container/label
3) Products are not such quality/fitness
4) π suffered loss as a result
Torts - IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
1) Seller knows/should know of a particular or special need of buyer at the time of sale AND
2) recommended the product w/ that knowledge
3) product is not fit for such purpose
4) π suffered loss as a result
Torts - DEFAMATION ELEMENTS
1) Defamatory statement - assertion of fact that tends to hold π in disrepute
2) Of and concerning π
3) Publication
4) Harm
Torts - SLANDER PER SE
Oral statement that:
1) is an accusation of crime
2) imputes presence of contagious/loathsome disease
3) tends directly to injure in respect to office, trade, profession, or business
4) imputes impotence or want of chastity
5) causes actual damage
Torts - DEFAMATION DEFENSE
1) Truth
2) Absolute Privilege
- -between spouses
- -on floor of legislature
- -between high-ranking officials
- -in the conduct of judicial proceedings
3) Qualified Privilege
- -made w/o malice where speaker and receiver have a mutual interest in the subject matter
Torts - DEFAMATION CONSTITUTIONAL ISSUES
PUBLIC OFFICIAL/FIGURE
1) Actual malice for any damages (knowledge or reckless disregard of true)
2) Falsity
PUBLIC CONCERN
1) Falsity
2) Actual malice for presumed or punitive damages
3) At least negligence for any damages
Torts - INTRUSION INTO SECLUSION
∆ unreasonably and seriously interferes w/ π’s interest in not having his affairs known
Objective standard - ∆ should have realized his conduct would have offended a person of ordinary sensibilities
Torts - PUBLIC DISCLOSURE OF PRIVATE FACTS
1) Public disclosure
2) Of a private fact
- -one π has made reasonable attempts to keep private
2) That would be offensive and objectionable to a reasonable person
4) That is NOT of legitimate public concern
- social value of facts published
- depth of intrusion into ostensibly private affairs
- extent to which π voluntarily acceded to a position of public notoriety
Torts - FALSE LIGHT
1) ∆ publicizes a private matter concerning π
2) that places π before the public in a false light
3) that would be highly offensive and objectionable to a reasonable person
4) and, if it involves a matter of public interest, ∆ acted w/ malice
Torts - APPROPRIATION OF COMMERCIAL IDENTITY
1) Appropriation or use
2) Of π’s identity
3) by ∆
4) for ∆’s commercial purposes
Torts - INTENTIONAL MISREPRESENTATION
1) ∆ made a false representation concerning a presently existing material fact
2) that he either knew was false OR made recklessly, knowing he had insufficient knowledge on which to base the representation
3) for the purpose of inducing π to act on the representation
4) that π, acting reasonably or justifiably and in ignorance of the falsity, actually relied on
5) and was thereby induced to act to his injury
Torts - NEGLIGENT MISREPRESENTATION
1) ∆ made a false representation concerning a presently existing material fact
2) Honestly believing it to be true but w/o reasonable grounds for such belief
3) for the purpose of inducing π to act on the representation
4) that π, acting reasonably or justifiably and in ignorance of the falsity, actually relied on
5) and was thereby induced to act to his injury
Torts - CONCEALMENT
1) ∆ omits a material fact, which makes his statement misleading or untrue
2) knowing it was misleading
3) for the purpose of inducing π to act on the representation
4) that π, acting reasonably or justifiably and in ignorance of the falsity, actually relied on
5) and was thereby induced to act to his injury.
Torts - INTERFERENCE WITH A CONTRACT
1) Interference
2) Which is intentional and
3) improper or unlawful
4) in a K between 2 other persons
5) causing one of them to not perform the K
Torts - INTERFERENCE WITH PROSPECTIVE ECONOMIC RELATIONSHIPS
1) Economic relationship between π and 3P
2) knowledge by ∆ of the existence of the relationship
3) intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship
4) actual disruption of the relationship
5) and, damages proximately caused by the acts
Torts - INJURIOUS FALSEHOOD
1) False statement
2) Actual malice
3) Made to another or published
4) Causing specific economic injury to π
