Torts Flashcards
1
Q
Intentional torts to person
A
- Assault
- intentional
- causing apprehension of
- imminent
- harmful/offensive contact - Battery
- intentional infliction
- harmful/offensive contact - False imprisonment
- intentional
- confinement/restraint
- bounded area
- no reasonable means of escape
- P aware or harmed - Intentional infliction of emotional distress (IIED)
- intentional/reckless infliction by
- extreme and outrageous conduct
- causing severe emotional distress
- if outside zone of danger:
- a. P closely related
- b. at the scene
- c. saw the injury
2
Q
Intentional torts to property
A
- Trespass to land
- intentional
- physical invasion of
- real property of another
- ejectment: action at law to recover possession of real property - Trespass to chattels
- intentional
- interference with
- P’s right of possession
- in a chattel
- replevin: action at law to recover chattels wrongfully taken - Conversion
- tresspass to chattels and
- substantial interference
- P pays full value
3
Q
Defenses to intentional torts
A
- Consent
- express unless:
- a. mistake (D knew and took advantage)
- b. fraud
- c. duress
- d. D exceeds scope
- e. lack capacity
- implied - by custom or conduct - Self-defense
- reasonable belief of imminent danger
- reasonable force - Defense of others
- reasonable belief other person could defend
- reasonable force - Defense of property
- reasonable force to
- prevent property tort - Recapture chattels
- fresh pursuit
- reasonable force
- wrongful taking - Necessity
- reasonably necessary
- to prevent great harm
- public: no damages
- private: pay for damage - Arrest
- for misdemeanor, D may use reas, non-deadly force to arrest
- D may use deadly force for serious harm - Shopkeeper privilege
- reas belief stolen
- reas manner (non-deadly force only)
- reas time (only to conduct investigation) - Discipline (parent or teacher)
4
Q
Defamation
A
- Common law
- defamatory language
- of or concerning P
- publication by D to 3rd P
- damage to P’s reputation - Constitution (matter of public concern)
- falsity
- fault:
- a. pub official/figure: actual malice (knowledge/reckless disregard)
- b. private person: negligence - Libel - written or printed publication of defamatory language. P does not need to prove special damages.
- Slander - spoken defamation. P must prove special damages unless:
- adversely reflect on one’s conduct in a business;
- loathsome disease;
- guilty of crime involving moral turpitude; or
- unchaste woman
Defenses
- consent
- truth
- privilege
- absolute: judicial proceedings, legislators during proceedings, fed executive officials, between spouses
- qualified: reports of official proceedings, statements in publisher’s/recipient’s interest. May be lost if (a) statement not within scope of privilege, or (b) actual malice.
5
Q
Invasion of privacy
A
- Misappropriation of P’s Picture or Name
- P’s name or picture
- unauthorized use
- for financial benefit - Intrusion on P’s Seclusion
- not in public place
- highly offensive to reas person - False Light
- attributing to P view he does not hold
- highly offensive to reas person
- public publication
- 1A: public interest: malice, public figure: actual malice - Public Disclosure of Private Facts: private info, highly offensive to reas person
+ proximate causation by D’s conduct
6
Q
Misrepresentation
A
- Intentional misrepresentation
- misrepresentation of material fact
- scienter (D knew/believed statement false)
- intent to induce P’s reliance
- causation (actual reliance)
- justifiable reliance
- damages (actual pecuniary loss) - Negligent misrepresentation
- misrepresentation by D in a business/professional capacity
- breach of duty to P
- causation
- justifiable reliance
- damages
7
Q
Interference with business relations
A
- valid K relationship or business expectancy by P
- D knows of relationship/expectancy
- intentional interference
- damages
Defenses:
- competitor’s privilege
- financial interest privilege
8
Q
Misuse of legal proceedings
A
- Malicious Prosecution (prosecutors exempt)
- institution of criminal proceeding against P
- terminating in P’s favor
- no probable cause
- improper purpose
- damages - Abuse of Process
- wrongful use/process
- ulterior purpose
- act or threat against P
9
Q
Negligence
A
- Duty to conform to a specific standard of conduct
- duty of care is owed to all foreseeable Ps.
- Cardozo: foreseeable P are those located in the zone of danger
- Andrews: all Ps are foreseeable Ps - Breach of duty
- Actual cause
- but for test
- substantial factor (both Ds caused harm)
- alternate causes (both Ds negligent but only one D caused harm, burden shifts to Ds) - Proximate cause
- D is liable for all foreseeable harmful results - Damages
10
Q
Standard of care
A
- general rule - reas person
- children
- subjective standard
- child of like age, education, intelligence and experience - professionals
- knowledge/skill of a member of same profession in similar circs
- doctors: must disclose risks - common carriers - higher standard if P is guest
- trespassers:
- undiscovered: no duty
- discovered/anticipated: warn/make safe artificial, highly dangerous conditions known to landowner - attractive nuisance:
- dangerous condition on land owner is/should be aware of;
- owner knows/should know children frequent vicinity of condition;
- condition likely to cause injury;
- expense of fixing < risk of harm - licensees: (enter for own purpose or business)
- warn/make safe known dangerous conditions
- licensee unlikely to discover
- exercise reas care of “active operations” on property - Invitees: (enter for owner’s purpose) - licensee duty + reasonable inspections and make safe
11
Q
Negligence per se
A
Conclusive presumption of duty + breach of duty if:
- violation of statute;
- P within protected class; and
- statute designed to prevent type of harm suffered by P.
Excused if:
A. compliance would cause more harm than violation; or
B. compliance beyond D’s control.
12
Q
Negligent infliction of emotional distress
A
D engages in negligent conduct that causes P to suffer serious emotional distress
P in zone of danger:
- threat of physical impact or severe emotional distress
- physical symptoms from distress
Bystander:
- injured party is close relative
- P present at scene
- P personally observes D cause injury
- physical symptoms from distress
13
Q
Affirmative duties to act
A
- assumption of duty by acting
- peril due to D’s conduct
- special relationship between parties
14
Q
Res Ipsa Loquitor
A
Breach of duty if:
- accident causing injury is type not normally occur unless someone is negligent; and
- negligence is attributable to D (D has exclusive control over instrumentality causing injury)
15
Q
Defenses to negligence
A
- contributory negligence - P’s negligence complete bar to recovery
- assumption of the risk
- P know risk
- voluntarily proceeded in face of risk - comparative negligence
- pure: recover based on % fault
- partial: recover only if P’s fault < D’s
16
Q
Strict liability
A
Prima facie case:
- absolute duty to make safe b/c D’s dangerous activity;
- D’s dangerous activity actual and prox cause of P’s injury; and
- P suffered damage.
Wild animals:
- to licencsees and invitees
- unless P instigated/caused injury
Trespassing animals
Domestic animals: only if D knows/should know animal’s abnormally dangerous propensities
Abnormally dangerous activities:
- foreseeable risk of serious harm
- even when reas care exercised; and
- uncommon activity in community
17
Q
Products liability theories of liability
A
MUST SHOW:
- defect
- existence of defect when product left D’s control
- Types of product defects
- manufacturing defect: different and more dangerous than properly made product
- design defect: product has dangerous propensities
- - test: product fails to perform as ordinary consumer would expect
- - test: D could make safer w/o serious impact on price and utility
- inadequate warnings
- - D knew of risks, not apparent to users
- - failed to adequately warn consumers - intentional tort (i.e. battery)
- negligence (duty, breach, causation, injury)
- strict liability
- D is commercial supplier of product
- breach - product defective when left D’s control
- causation (actual and proximate cause)
- damages
- defenses
- - contributory negligence - no defense if P failed to discover defect or misuse was foreseeable
- - assumption of the risk: ok
- - comparative negligence: ok - implied warranties
- merchantability: goods are average quality and fit for ordinary purposes used.
- fitness for a particular purpose: sell knows purpose and buyer is relying on seller’s skill and judgment in selecting goods.
- defenses
- -. assumption of risk
- - contributory neg
- - failure to give notice of breach - representation theories (express warranty and misrepresentation)
18
Q
Nuisance
A
- Private nuisance
- substantial, unreasonable interference
- w/ P’s use and enjoyment of property
- to average person in community (no hypersensitivity) - Public nuisance
- unreasonable interference
- with health, safety or property rights
- of the community - Remedies
- damages
- injunctive relief
- abatement by self-help - Defences
- legislation (persuasive, not absolute)
- conduct of others (only liable for damage D caused)
- assumption of the risk/contributory negligence
- coming to the nuisance (only if P purchased land for sole purpose of lawsuit/harassment)
19
Q
Vicarious liability
A
- respondeat superior
- employer & employee relationship
- within scope of relationship
- - detour: minor deviation (wihtin scope)
- - frolic: major deviation (outside scope) - independent contractors, liability only if:
- inherenly dangerous activity; or
- non-delegable b/c of public policy - partners/joint venturers - if within scope and course of the affairs
- automobile - not liable except:
- family car doctrine
- negligent entrustment
20
Q
Multiple tort defendants
A
each D joint and several liability for all damages
21
Q
Tort damages
A
- actual
- definite and certain
- duty to mitigate - reas steps to reduce harm
