Torts Flashcards
What are the elements of a prima facie intentional torts case?
An act by the defendant
Intent by the defendant to bring about a physical or mental effect on another person.
Effect must have been caused by defendant.
What ways can intent be achieved?
Where the defendant has a desire or purpose to bring about the effect
Or
The defendant knows with substantial certainty that the effect will occur
What is transferred intent?
Where the defendant intended to effect one person but ended up affecting the other, the defendant can be charged with an intentional tort against the other person.
This also applies where harm is a different type of tort than intended
Is transferred intent available for conversion?
No
Is transferred intent applicable to iied?
No
Can causation be satisfied if defendants act was a substantial factor in bringing about the effect?
Yes
What are the elements of battery?
Intent
Harmful or offensive
Contact
What are the elements of assault?
Intent
Causing apprehension of
Imminent
Harmful or offensive contact
What are the elements of iied?
Intentionally causing
Severe emotional distress
By extreme and outrageous conduct
How is intent satisfied for iied?
- Desire and purpose to cause
- Has substantially certain knowledge effect will occur
- Reckless disregard for the high probability emotional distress will occur
When may there be third party liability for iied?
Defendant intentionally or recklessly directs extreme and outrageous conduct at someone other than the plaintiff and
- Plaintiff was physically present, known by defendant to be present and is a close relative to x
- Plaintiff suffers bodily harm as a result of the severe emotional distress
What are the elements of false imprisonment?
Intentionally Confined Bounded Area No reasonable means of escape Awareness of confinement
What is trespass to land?
Intentional physical invasion of the land of another
Is mistake as to land ownership a defense to trespass to land?
No
How may the physical invasion on the land of another be achieved?
- Entry without permission
- Remaining without right
- Placing or projecting an object upon the land without permission
What are the elements to trespass to chattel?
Intentionally
Interfere with use or possession of
Chattel
Damages
Is mistake as to ownership a defense to trespass to chattels?
No
What is the measure of damages in trespass to chattels cases?
Chattel’s loss of value cause by loss of use
What is conversion?
Intentional interference with a plaintiff’s possession or ownership so substantial that it warrants the defendant paying its fill value
Intent
Substantial interference with use or possession
Chattel
Damages
What are the defenses to intentional torts?
Consent Self defense Defense of others Defense of property Recapture of chattels Shopkeeper’s privilege Arrest under legal authority Necessity
What is the majority view as to whether a defendant can consent to a crime being committed?
Consent ineffective
Define self-defense
A person is entitled to use reasonable force to prevent harmful or offensive contact, and threatened confinement or imprisonment
When is deadly force acceptable?
Defendant in danger of death or sbi
How much force may one use in self-defense?
As much as necessary to prevent he threatened harm
When may a defendant use force in the defense of others?
Where the person he is defending would have been justified using that force
When may a defendant use reasonable force to defend his Real or personal property?
Where defendant had made a verbal demand that the intruder stop, or it reasonably appears futile or dangerous
When may a property owner use reasonable force to regain possession of chattels?
Fresh pursuit
Note: deadly force not permitted in recapture of chattel
What is shopkeeper’s privilege?
Shopkeepers can temporarily detain a person they reasonably believe to be in possession of stolen goods.
Must be temporary. Police must be called to make the arrest.
When may a person interfere with the real property of another pursuant to necessity?
Reasonably and apparently necessary to prevent gbh to another or the defendant
What damages ensue when property is damaged by public necessity?
No compensation allowed
What is the duty of care?
The duty to act as a reasonable person
To whom is the duty of care owed?
Foreseeable plaintiffs (Cardozo) Everyone (Andrews)
When does a defendant have an affirmative duty to act?
Special relationship
Causing the danger
Volunteer assistance
What is the fireman’s rule?
Firefighter and cops can’t sue for injuries in the line of duty that stem from risks inherent in the profession
To what standard of care are children held?
Conform to conduct of child of similar age, intelligence and experience.
Where child doing adult activity, held to an adult standard of care.
What is the duty of care of an owner of land to prevent outsiders from hazardous conditions?
No duty to prevent from hazardous natural conditions on premises, duty to prevent harm for unreasonably dangerous artificial hazards
What is a landowners duty of care to undiscovered trespasser?
No duty to make land safe or earn of hazardous conditions
What us landowners duty of care to known or frequent trespassers?
To warn of known dangers and artificial conditions that pose risk of death or sbi
What is the attractive nuisance doctrine?
Landowners must exercise ordinary care to avoid foreseeable injury to children if landowners
Knows kids trespass
Condition poses unreasonable risk of death/sbi
Children don’t discover risk because
Expense to remedy is slight compared to risk
Owner fails to use reasonable care to eliminate danger
What is a landowners duty to a licensee?
Warn of dangerous conditions
Use reasonable care
Does a landowner owe a licensee a duty to inspect or repair property?
No
What is an invitee?
A person who enters lands in response to an invitation to do business
Or public invited for land open to public at large
What duty owed to invitees?
Duty to reasonably inspect for hidden dangers and make reasonable repairs
What is a tenants duty to maintain premises?
Same as landowner’s
What are landlord’s duties?
Warn of existing dangers
Repair not negligently
Maintain common areas
What is negligence per se?
Violates statute Plaintiff is within protected class Harm is type of harm statute intends to prevent
What is res ipsa loquitor?
Creates an inference of negligence in situations where the type of accident doesn’t normally occur if no negligence, and other causes eliminated by evidence
What liability where there are joint tortfeasors?
Joint and several.
Is a defendant liable for intervening causes of injury?
Yes, if foreseeable
When are punitive damages available for torts?
Where defendant’s conduct wanton and willful
What is plaintiff’s obligations re damages?
Mitigate them (ie. Seek treatment)
What is contributory negligence?
Recovery barred where plaintiff contributed to his injuries
What is comparative negligence?
Damages in proportion to fault
What is assumption of risk?
A defense to negligence where plaintiff knew risk and consented despite
What liability for an owner whose animals trespass?
Strict liability for reasonably foreseeable damage
What liability for wild animals?
Strict where injuries from animal’s dangerous propensity that is the character of the species
When is there strict liability for an owner of a domestic animal?
Where owner knew of that animal’s dangerous tendencies
What is ultra hazardous activity?
1 high degree of harm
- Can’t elongate risk through care
- Activity uncommon
- Activity not appropriate for location
- danger outweighs value to community
Is contributory fault a defense to strict liability?
No
When is a seller liable for injuries caused by a product it sells?
Seller is a commercial supplier who placed item in stream of commerce
How is breach proven in products liability case?
Product is defective
What types of defects exist for products?
Manufacturing
Design
Warning defect
What tests do courts consider for design defects?
Consumer expectation test
Risk utility test
How does compliance with industry standards affect a finding of a product’s defectiveness?
Compliance not conclusive proof not defective
Noncompliance can establish defective
When are there damages for products liability.
Physical injury
Property damage
What are defenses to products liability?
Assumption of risk
Comparative/ contributory negligence
Disclaimers not a defense
Under what theories can product liability be established?
Intent Strict liability Negligence Warrantee Misrepresentation
What are the types of warrantees?
Express
Fit for merchantability, ordinary purpose
Fit for particular purpose
What are the defenses to warranty?
Assumption of risk
Comparative/contributory negligence for misuse
Failure to give notice of breach under UCC
When will seller be liable for misrepresentation of fact?
Material fact concerning quality or uses of goods
Intended to induce reliance
Did induce reliance
What are the elements of intentional misrepresentation?
Misrepresentation Scienter Intent to induce reliance Causation Justifiable reliance Pecuniary damages
What are the elements of negligent misrepresentation?
- Misrepresentation by defendant in business capacity
- Defendant acted with no reasonable grounds for believing the misrepresentation true
- Intent to induce plaintiff’s reliance
- Causation
- Justifiable reliance
- Pecuniary damages
What is a private nuisance?
Substantial
Unreasonable
Interference
With another’s use or enjoyment of his land
How is an unreasonable interference with property determined?
Harm outweighs utility
Harm greater than plaintiff should be required to bear without consideration
What is a public nuisance?
Substantial interference with health, morals, welfare, safety or property rights of the community
When may a private party recover for public nuisance?
When party suffered damage that is different in kind (not just degree) from damage suffered by general public
What are the defenses to nuisance?
Legislative authority
Assumption of risk
Coming to nuisance for purpose of bringing a lawsuit
What is defamation?
False
Defamatory statement
Published
Damages reputation
Do defamatory statements have to actually damage the plaintiff’s reputation?
No, plaintiff must show that it would have had it been believed
What is different about damages for libel v slander?
General damages are presumed in libel, in slander cases special damages must be proven, unless slander per se
What is slander per se?
Adversely reflects fitness to conduct business
Alleges loathsome disease
Alleges criminal behavior
Alleges serious sexual misconduct
What must be proven in addition to the elements of defamation to prove constitutional law defamation?
Public figure Actual malice (knowledge of falsity or reckless disregard)
Where actual malice shown for defamation of a public figure, what happens to damages?
They are presumed
Where a private person alleges defamation what must be proven?
Negligence regarding the false statement
What kind of damages where a private person proves defamation?
Only actual injury damages unless malice is shown.
Where malice shown, damages presumed and punitive damages permitted.
What are the defenses to defamation?
Consent
Truth
Absolute privilege
Qualified privilege
When is there absolute privilege to make defamatory statements?
Court/legislative proceedings
Between spouses
Privilege applies even where there is actual malice
How may a publication lose qualified privilege?
Acting with actual malice
Publishing excessively when not reasonably necessary
When does a publication have qualified privilege?
Statements made to protect publisher’s interests
To protect a third party
To act in the public interest to report
What does misappropriation of likeness require?
Unauthorized use
Picture or name
Commercial advantage
What is intrusion on plaintiff’s solitude?
Intrusion into a private aspect
Of plaintiff’s life
In a private place that is highly objectionable to
A reasonable person
What is placing a plaintiff in a false light?
Attributing views to plaintiff he doesn’t hold
Objectionable to a reasonable person
In respect to placing a plaintiff in a false light, when must actual malice be proven?
Public interest
Public figure
What is publicity of private life?
Public disclosure of private facts
Objectionable to a reasonable person
What is malicious prosecution?
Institution of criminal proceedings Termination in plaintiff’s favor Absence of PC Improper purpose Damages suffered by accused
Who may be liable for misuse of public process?
Any person actively involved in bringing proceedings.
Prosecutors immune.
What is respondeat superior?
Where employee commits torts with intent to further employer’s purpose, employer is jointly liable with employee
When may a party be liable for the acts of his independent contractor?
Negligent hiring Nondelegable duty (peculiar risk of harm or inherently dangerous activity)
What torts may not be pursued via a survival action?
Defamation, right to privacy, malicious prosecution
What is strict products liability?
Where defendant manufactures, sells, distributes a product that is defective, he is strictly liable where it is the actual and proximate cause of harm to plaintiff.
What is the Good Samaritan rule?
It limits liability on rescue to reckless acts
What is a landowner’s duty to known trespassers?
Warn of hidden dangers
What is landlord’s duty to warn tenant of?
Latent defects (dangerous artificial conditions known to landlord)
What kind of liability for possession of wild animals and abnormally dangerous activities?
Strict
How may defamation by matter of private concern be proven?
Publication
When is a temporary restraining order issued as a remedy for a tort?
Irreparable harm
Likely success on merits
Inadequate legal remedy
Balance of hardship
