Torts Flashcards
Proximate Cause
Legal Cause, deals with limitations of liability for unforeseeable/unusual consequences
Negligence
Breach of duty which causes damages
Professionals
Required to possess the knowledge or skill of a good standing member of the profession
Negligent Infliction of Emotional Distress (NIED)
(1) P in zone of danger and (2) must suffer physical symptoms of distress
Vicarious Liability - Parent for child
not liable for forts of child unless acting as agent of parent
Standard of Care - common carriers and innkeepers
high degree of care, liable for slight negligence, P must be guest
Products Liability - Express warranty
an affirmation or promise concerning goods that is not met
Bystander Negligent Infliction of Emotional Distress
(1) P and injured are closely related (2) P was present at scene of injury and (3) P personally witnessed event
Vicarious Liability - Bailor for Bailee
generally not liable
Duties of Bailor
must inform bailee of dangerous defects, if for hire then must notify of defects which bailor is aware
Wrongful Prosecution
initiating a criminal proceeding against P w/o PC for an improper purpose which causes damages
Products Liability - Intent Theory
liability imposed of D intended the consequences or know they were substantially certain to occur
Negligent Misrepresentation
misrepresentation in a business capacity which breaches a professional duty that the P relied on that caused damages
Standard of Care - automobile driver to gues
ordinary care
Nuisance - Injunctive Relief
will be rewarded if legal remedy is inadequate or unavailable
Scope of Foreseeable Risk
proximate cause is limited only to foreseeable risks. not liable for unforeseeable harmful results
Actual Cause
causation in fact to injury.
- But-For – injury would not have occurred but for the act of X, applies with multiple acts
- Joint Causes – several causes bring injury but only 1 alone is enough to cause injury
- Alternative Causes – 2 simultaneous acts and any 1 alone is enough to cause, burden shifts to D to say it wasn’t him
Duties owed by bailee
a. Benefit of bailor – low standard of care (person giving chattel)
b. Benefit for bailee – high standard of care (person receiving chattel)
c. Mutual benefit – ordinary standard of care
Comparative Neglience
not a complete bar to recovery
Wild Animals Strict Liability
strict liability
Assault
intentionally causing reasonable fear of imminent harm or incomplete battery
Privilege
invasion of land to arrest 3rd party
Personal injury Damages
compensation for past, present, and prospective damages, economic & noneconomic
Negligence Per Se
Statutory Standards of Care – imposed by the law if (1) P is within the protected class and (2) the statute was designed to prevent the type of harm suffered by P, creates presumptive breach of duty. Excuse – may be excused if compliance with statute would cause more harm than violation
Indemnity
shifting the entire loss among tortfeasors. Available by (1) contract (2) vicarious liability situations (3) strict products liability (4) unknown degree of fault
Duty
Owed to all foreseeable Ps to conform to a specific standard of conduct
Duty to Licensees
enter for benefit of owner. (1) Duty to warn/make safe and (2) exercise reasonable care in conduct of operations
Assumptive of Risk
P may be denied recovery if P knew the risk and proceeded in face of the risk
Dramshop Acts
imposes liability based on ordinary negligence principles, also creates cause of action for 3rd person injured by intoxicated vendee
Proving a Defect - Scientifically Unknowable Risks
D is not held liable is dangers are not foreseeable at time of marketing
Vicarious Liability - Frolic and detour
minor deviation is still under scope of employment, if deviate is substantial then not liable
Breach - Custom or Usage
may be used to establish standard but does not control if negligent
Proving a Defect - Design Defect
D could have made the product safer w/o impact on price
Damages
not presumed and nominal damages are not available
Duties to People off Premises
no duty for natural conditions, only artificial if unreasonable dangerous
Bystander IIED
P is present during injury, P is closely related to injured person, D should have known that
Absolute Privilege
(1) remarks made during judicial processing, (2) legislators during proceedings, (3) federal executive in compelled broadcasts, and (4) between spouses
Shoplifting detention
may keep D if there is (1) reasonable belief to theft, (3) reasonable manner and nondeadly force, and (3) for a reasonable period of time for purpose of making an investigation
Discipline
parent or teacher may use reasonable force to discipline a child
Conversion
signification interference of possession of personal property
Last clear Chance Doctrine
person with last clear chance who fails to do so is negligent
Duties to Trespassers
no duty to undiscovered trespassers. If discovered duty to (1) warn/make safe, artificial conditions involving risk of death or bodily harm (2) reasonable care for active operations
Self Defense of Others
If intended target is allowed to use the D can use
Products Liability Theories
5 Theories: (1) Intent (2) Negligence (3) Strict (4) Warranties and (5) Representation
Intrusion upon Seclusion & Disclosure
prying into business that is highly offense to a reasonable person
Manufacturing Defects
comes from manufacturing more dangerous than if properly made
Proving a Defect - Gov. Safety Standards
noncompliance with gov. standard shows product is defective, compliance is not conclusive
Defense to Defamation: Truth
Truth
Duty to Invitees
land held open to public. Duty to (1) warn/make safe, (2) exercise reasonable care in operation, and (3) reasonable inspection
Qualified Privilege
can be lost through abuse (1) if not within scope of privilege or (2) actual malice
Standard Of Care for Medical Specialist
National standard of Care, also duty to disclose risk of treatment
Punitive Damages
not available unless D’s actions are wanton & willful, reckless or w/malice
Intentional Torts
voluntary action by plaintiff
Partial comparative neglience
bars P’s recovery if P is more that 50% negligence
Battery
intentional offensive touch or strike against another
Vicarious Liability - Intentional Torts
generally not liable unless force or friction is generated by nature of the job or furthering business of employer
Vicarious Liability - Automobiles
- Family use doctrine – is liable for household members driving with express or implied permission
- Permissive use – liability imposed on anyone driving with owner’s consent
- Negligent Entrustment – owner liable for own negligence in entrusting car to driver
Self Defense
D reasonably believed he or she is about to be attacked and uses force to protect oneself
Vicarious Liability
employer is liable for torts under employee if within scope of employment
Slander
spoken defamation, special damages required unless about
a. Conduct in one’s profession
b. STD
c. Chastity
d. Crime of moral turpitude (common law crimes)
Public Nuisance
act that unreasonably interferes with the health, safety, or property rights of the community
Trespass to Chattel
interference of possession of personal property
Inadequate warnings
manufacturer fails to give correct warnings
Domestic Animals
no strict liability unless D has knowledge of propensity, not duty for trespassers but strict liability for injuries inflicted by watchdogs
Self Defense of Property
may be used to prevent tort against property or in hot pursuit to recapture, D must request to leave/desist
Public Nuisance - Recovery by private party
only allowed if unique damages not suffered to public at large
Consent
allowing the tort to occur, may be expressed or implied
Duty to Act
no duty to act
- Good Samaritan Statues – exempt medical staff for ordinary but not gross negligence
- Peril – duty to assist if one negligently or innocently placed in peril
- Special Relationship – common carriers, innkeepers, and shopkeepers, reasonable care
Intention Infliction of Emotional Distress (IIED)
intentional or reckless extreme or outrageous conduct causing severe emotional distress
Actual malice
(1) knowledge that the statement was false or (2) reckless disregard
Contribution
D who pays more than his share under joint and several liability now has a claim to other liable parties for excess damages paid
Products Liability - Misrepresentation of fact
statement was material concerning quality of goods and seller intended to induce reliance
Products Liability - Strict Theory
(1) commercial supplier (2) produced/sold a defective product (3) that caused (4) damages
Intentional Interference with Business Relations
(1) contract exists (2) that D knew about (3) and intentionally interfered (4) which caused damages.
Duty to mitigate
P must take all reasonable steps to mitigate damages
Proving a Defect - Manufacturing Defect
P must show that product failed to be safe under ordinary circumstances
Pure Comparative Negligence
bars P’s recovery if negligence was more serious than defendant’s negligence
Products Liability - Breach of Warranty Theory
product fails to live up to standards and causes damages
Products Liability Negligence Theory
Commercial supplies were negligent in selling a defective product. Can be rebutted by cursory insoection
Extreme & Dangerous Activity
must create a foreseeable risk of serious harm when reasonable care is exercised and not a common activity
Release
release of 1 tortfeasor does not discharge others unless provided for
Collateral Source Rule
damages are not reduced by insurance
Proving a Defect - Unavoidably Unsafe Products
D not liable is danger is apparent by nature of product & no way to make safer
Design Defect
all products are the same but have dangerous propensities
Standard of Care bailment duties
bailee transfers possession of chattel but not title,
Nuisance
invasion of private property rights or public rights
Private Nuisance
substantial unreasonable interference with one’s use or enjoyment of land
Defamation of Public Concern
add (1) falsity of statement and (2) actual malice
Property Damages
reasonable cost of repair or fair market value at time of incident
Appropriation
using P’s image w/o consent for monetary gain
Trespass to Land
physical invasion of real property
Res Ipsa Loquitur
occurrence of event establishes a breach if (1) accident would not normally occur absent negligence and (2) negligence is attributed to D
Misrepresentation
making a false statement of material fact with for the intent of P to rely on statement which causes damages.
Warranty of Merchantability Theory
whether goods are of average quality and fit for ordinary purpose for which goods are used
Standard of Negligence
Objective. Reasonably Prudent Person
Rescuers
Are always foreseeable Ps
Libel
written defamation, general damages presumed
Satisfaction
recovery of full payment, only 1 allowed
Joint and Several Liability
2 or more negligent acts combined to cause an indivisible injury, each D is jointly and severally liable. If injury is divisible then each D is liable for their portion of injury
Vicarious Liability - Independent Contractor
not liable unless engaged in inherently dangerous activity or duty is nondelegable for public policy considerations
Necessity
may interfere with real or personal property when necessary to avoid threatened injury and threatened injury or substantially more serious than invasion. Public and private (actor must pay for an injury caused).
Contributory Negligence
attributing P’s action which bar recovery
Nonrecoverable Damages
cannot get back attorney’s fees or interest
False Light
(1) attributing highly offensive characteristics to P and publishing it or (2) publishing private info about P
Defamation
(1) defamatory language (2) about P that was (3) publicized to a 3rd person and (4) damaged P’s reputation
Defense to Defamation: Consent
complete defense
Duty of Lessor and Lesee
Lesee has duty to maintain, Lessor has duty to warn of existing defects
Warranty of Fitness for a Particular Purpose
seller knows purpose of what goods are used for and P relied on seller’s skill in selection
Standard of Care - Children
standard of a child of like age, education, intelligence, and experience. Subjective
Strict Liability
(1) absolute duty to make safe (2) the danger of the activity is the actual and proximate cause of P’s injury (3) damages.
Attractive Nuisance Doctrine
(1) owner knows of condition (2) owner knows kids are there (3) condition is likely to cause injury (4) expense of remedying situation is cheaper than risk
