Torts Flashcards
Assault
1) A volitional act 2) done with the intent to cause either a) harmful or offensive contact or b) apprehension of imminent harmful or offensive contact that 3) causes the reasonable apprehension of imminent harmful or offensive contact
Battery
1) A volitional act 2) done with the intent to cause either a) harmful or offensive contact or b) apprehension of imminent harmful or offensive contact that 3) causes harmful or offensive contact with P’s person
False Imprisonment
1) An act intending to confine someone within a bounded area 2) that results in such confinement & 3) P is either conscious of or harmed by the confinement
False Imprisonment - Shopkeeper’s Privilege
1) D reasonably believes a theft has occurred & 2) holds P for a reasonable time to ascertain the facts 3) in a reasonable manner
False Imprisonment - Crime Prevention
Private person may arrest someone if he has a reasonable belief that a crime involving a breach of the peace occurred
Trespass to Land
1) Entry onto or remaining upon the land 2) of another 3) without a privilege to do so
Trespass to Chattels
1) An intermeddling or dispossession 2) of another’s personal property 3) which causes harm to, or the loss of use of, the personal property
Conversion
1) Interference with P’s right of possession 2) serious enough to warrant that D pay the full value of the chattel at the time of conversion
Intentional Infliction of Emotional Distress
1) Intent to cause severe emotional distress & 2) extreme & outrageous conduct that 3) causes severe emotional distress
Insults alone aren’t enough
Negligent Infliction of Emotional Distress
Requires P to show physical harm from the emotional distress
No physical harm required if there’s mishandling of a relative’s corpse, false positive diagnosis, or where P & injured person are closely related & P was present at the scene & saw the injury
Abuse of Process
1) Using a legitimate process 2) for a wrongful purpose & 3) an act or threat against P to accomplish the wrongful purpose
Malicious Prosecution
1) Initiation of a proceeding 2) without probable cause 3) for a wrongful purpose & 4) the favorable termination of the proceeding on the merits
Negligence - Umbrella Rule
Negligence requires duty, breach of duty, actual causation, proximate causation, and harm
Duty - Ordinary Duty
D has a duty to act as a reasonable person under the circumstances. D had a duty to X to avoid Y
Duty of Landowners - General
Landowner owes no duty to protect passersby outside the premises from natural conditions
Duty of Landowners - General Exceptions
1) Duty to protect passersby from unreasonably dangerous artificial conditions abutting the land
2) Duty to take precautions to protect passersby from dangerous conditions
Duty to Invitee
Enters the land for business purpose of possessor (customer)
Duty to inspect, discover, repair/warn against known or discoverable dangerous conditions
Duty to Licensee
Enters the land for own purpose (social guest)
Duty to repair or warn against known dangers
Duty to Known Trespasser
Duty to warn of artificial, non-obvious dangerous conditions maintained by landowner
Attractive Nuisance Doctrine
P must show 1) owner knows or should know of dangerous condition on the land; 2) owner knows kids frequent the vicinity of the dangerous condition; 3) the condition is likely to cause injury because of the kid’s inability to appreciate the risk; & 4) the cost of remedying the risk is slight compared to the magnitude of the risk
Duty to Control the Conduct of Others
If D has the ability & authority to control a 3rd party or domestic animal, D has an affirmative duty to control its conduct if D knows or should know of the 3rd party or domestic animal’s propensity to act in a dangerous way
Firefighter’s Rule
Bars firefighters and police officers from recovering from injuries caused by the risks of their job or effectuating a rescue
Rescuer’s Rule
Rescuee is liable to a rescuer if the rescuee’s negligence put herself in the position to be rescued
Breach of Duty - ordinary
D breached her duty to X when she Y
Negligence per se
1) There’s a criminal law, 2) P is a member of the class of persons intended to be protected by the law, & 3) P’s harm is the type of harm intended to be protected against by the law
Actual Cause - But For
But for D’s breach, P would not have been harmed
Actual Cause - Concurrent Causes
If there are concurrent causes & either alone is sufficient as a cause, use the substantial factor test
Proximate Cause
D is liable for all harmful risks foreseeable from the conduct. It’s foreseeable that X may cause Y
Harm
P must be harmed as a result of D’s conduct. P was injured because Z
Can’t recover for purely economic harm
Negligence Defense - Contributory Negligence + Last Clear Chance Doctrine
If P is contributorily negligent, P is barred from all recovery
D is still liable if D had the last clear chance to avoid the harm
Negligence Defense - Pure Comparative Negligence
Reduces recovery by the percentage of harm attributable to P’s fault
Negligence Defense - Assumption of Risk
P is denied recovery if she knows of and voluntarily assumes the risk
Negligence Defense - Emergency
If D didn’t create the emergency, the duty is to act a circumstantially reasonable person
Vicarious Liability - Negligence of Employee
Employees are vicariously liable for the negligence of their employee committed while the employee is acting within the scope of employment
Detour
If a deviation is minor in time or geographic scope, the employee is still within the scope of employment
Frolic
If a deviation is not minor in time or geographic area, the employee is not within the scope of employment
Vicarious Liability - Negligence of Independent Contractor
A principal is vicariously liable for the negligence of an independent contract if 1) the IC is engaged in an inherently dangerous activity, or 2) the duty is non-delegable
Vicarious Liability - Intentional Torts
Employers are generally not liable for an employee’s intentional tort unless 1) force is authorized in the employment, 2) friction/tension is generated by the employment, or 3) the employee is furthering the business of the employer (show authority)
Public Nuisance
A private party can only bring an action for public nuisance if the private party suffers harm different in kind from the harm suffered by the public
Private Nuisance
A substantial & objectively unreasonable invasion of another’s interest in the use or enjoyment of her land
If the invasion is intentional or unreasonable, the court won’t balance the harms for an injunction
Strict Liability - Animals
1) D owns a wild animal/livestock 2) that causes harm to P of a kind caused by the wildness of the animal
Strict Liability - Abnormally Dangerous Activities
1) Carrying on of an abnormally dangerous activity 2) which causes harm, 3) the risk of which makes the activity abnormally dangerous
Products Liability - General
The three theories of products liability are strict products liability, negligence, & breach of warranty
Strict Products Liability - General Elements
1) D is in the business of selling or otherwise distributing products; 2) D sells or distributes a defective product that remains unchanged when it gets to the consumer; & 3) the defect harms a foreseeable person
Strict Products Liability - Manufacturing Defect
Where the product departs from its intended design
Strict Products Liability - Design Defect
There is a flaw common to the entire product line
Design Defect - Risk-Utility Theory
There’s an inherently unreasonable risk because the risk of harm is significant & there’s little or no utility to the product
Design Defect - Reasonable Alternative Theory
There’s a reasonable alternative design that is safer & economically feasible
Strict Products Liability - Failure to Warn Defect
Products must have clear & complete warnings of dangers that may not be apparent to users
Products Liability - Negligence
Same negligence elements
Manufacturer owes a duty to make safe products, & the duty extends to all foreseeable uses & bystanders if product is reasonably likely to imperial & likely to be used without tests
Products Liability - Breach of Express Warranty
1) The making of an express warranty, 2) reliance by the consumer on the warranty, & 3) a breach of the warranty that harms a foreseeable person
Products Liability - Breach of Implied Warranty of Merchantability
1) The existence of the warranty, 2) reliance on it by the purchaser, 3) breach, & 4) the breach proximately caused the harm
Merchantability - the goods are sold by a merchant & are of average quality & fit for their ordinary purpose
Products Liability - Breach of Implied Warranty of Fitness for a Particular Purpose
1) Existence of the warranty, 2) breach, & 3) the breach proximately caused the harm
Seller knows of buyer’s special needs at the time of sale & recommends the product with that in mind
Defamation - Elements
1) A defamatory statement, 2) of or concerning P, 3) publication, & 4) harm to P’s reputation
Slander per se Categories
1) Accusation of crime
2) Imputes presence of contagious or loathsome disease
3) Statement about P’s business or profession
4) Impotence or want of chastity
5) Statement that causes actual damage
Slander Damages
Unless slander per se, no recovery for slander absent proof of special damages (pecuniary loss)
Libel Damages
Libel per se (defamatory on its face) has presumed damages
Libel per quod, requiring proof of extrinsic facts (inducement) & the defamatory meaning in light of those facts (innuendo), requires proof of special damages before awarding general damages
Defamation Defenses
Truth
Privilege
Defamation Defense - Absolute Privilege
Applies to remarks made: during judicial proceedings, by legislators during proceedings, by federal executive officials, in compelled broadcasts, & between spouses
Defamation Defense - Qualified Privilege
Applies to: reports of official proceedings, statements in the publisher’s interest, statements in the recipient’s interest, & statements in the publisher & recipient’s common interest
Privilege lost if the statement isn’t within the scope of privilege or speaker had malice
Defamation of Public Officials & Public Figures
P must also prove that the statement was false & made with actual malice (intent or recklessness)
Defamation of Private Person & Matters of Public Concern
P must also prove falsity & that D made the false statement at least negligently
To get presumed damages or punitive damages, P must show malice
Intrusion
Unreasonable & serious interference with another’s interest in not having her affairs known
Public Disclosure of Private Fact
1) Public disclosure 2) of a private fact 3) that isn’t of legitimate public concern 4) that would be offensive & objectionable to a reasonable person
False Light
1) D publicizes a private matter concerning P 2) that places P before the public in a false light 3) that would be highly offensive to a reasonable person, & 4) if it’s a matter of public interest, D acted with malice
Appropriation
1) Use 2) of P’s identity 3) by D 4) for D’s commercial purposes
Intentional Misrepresentation
1) D made a false representation concerning a presently existing material fact 2) that D either a) knew was false or b) made recklessly 3) to induce P to act on the representation, 4) P reasonably relied on it, & 5) was thereby induced to act to her injury
Negligent Misrepresentation
1) D made a false representation concerning a presently existing material fact 2) that D honestly but unreasonably believed to be true 3) to induce P to act on the representation, 4) P reasonably relied on it, & 5) was thereby induced to act to her injury
Deceit (Concealment)
1) D omits a material fact making what D said misleading or untrue 2) to induce P to act on the representation, 3) P reasonably relied on it, & 4) P was induced to act to her injury
Intentional Interference with a Contract
1) Intentional & 2) improper or unlawful 3) interference 4) in a K between two other people 5) causing one of them to not perform the K
Interference with Prospective Economic Relations
1) An economic relationship between P & a 3rd party 2) that D knows about; 3) intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship; 4) actual disruption of the relationship; & 5) damages proximately caused by the acts
Contribution
Allows a D required to pay more than her share of the damages to have a claim against the other jointly & severally liable Ds for the excess paid
Indemnity
Involves shifting the entire loss between or among tortfeasors
Available by K; where party is only vicariously liable; where different levels of fault exist; & in strict products liability, one D in the vertical chain of distribution can get indemnification from any D higher up the chain
Res Ipsa Loquitor
Negligence is inferred if 1) D had control of the instrumentality of harm & 2) the harm wouldn’t have occurred in the absence of negligence
Used when the act constituting the breach is unknown
