Torts Flashcards
Battery
(1) harmful or offensive contact; (2) to plaintiff’s person; (3) defendant intent; (4) causation.
Harmful = serious injury; offensive = “unpermitted” by ordinary person; plaintiff’s person = anything connected to plaintiff.
Damages not required.
Assault
(1) reasonable apprehension; (2) of immediate battery; (3) defendant intent; (4) causation.
Apprehension = knowledge (i.e., P must be know/be aware of the assault); reasonable = defendant has apparent ability to act (reasonable person standard).
Words alone insufficient.
Damages not required.
False imprisonment
(1) act of physical restraint (incl. threats); (2) with P in bounded area (no reasonable means of escape); (3) defendant intent; (4) causation.
Reasonable means of escape = not
Damages not required, no time requirement.
Shopkeeper’s privilege: (1) reasonable belief as to theft; (2) detention in reasonable manner; (3) detention for reasonable time for investigation.
IIED
(1) extreme or outrageous conduct by D; (2) intent OR RECKLESSNESS by D; (3) causation; (4) damages (severe emotional distress).
No physical manifestation required. Look for common carriers, fragile class P, known sensitivity.
Bystander cases: When another person is injured and P suffers severe emotional distress: (5) P was present when injury occurred; (6) plaintiff was a close relative of victim; (7) P observed the event; (8) D knew all of this.
Trespass to Chattels
(1) Act of interference with ownership interest; (2) intent to perform the act; (3) causation; (4) damages.
Mistake is no defense (intent goes to intent to do the act, not intent to trespass to chattels).
Conversion
(1) Act of interference with ownership interest; (2) intent to perform the act; (3) causation; (4) damages.
Can recover full market value of the thing.
Mistaken conversion is no defense (intent goes to intent to do the act, not intent to trespass to chattels).
Consent defense re: intentional torts
Consent (express or implied) is defense to ALL intentional torts
Consentor must have capacity to give consent (NOT drunks, incompetents, or very young children);
Mistaken consent is still valid but fraud is not.
Protective privileges defenses re: intentional torts
Defense of self, others, or property:
(1) threat must be imminent or in progress and (2) D must have reasonable belief threat is genuine (reasonable mistakes on that do not defeat the privilege)
Force must be proportional, can include deadly force but not ever for property.
Privilege not available to initial aggressor.
For property, request to desist usually required.
Necessity privileges re: intentional torts
Only apply to property torts!
Public necessity: D commits a property tort to protect community or group of people (e.g., guy trespasses to put out a fire); total defense.
Private necessity: D commits tort to protect himself or his stuff; partial defense only, must pay for actual harm caused, if any.
Trespass to land
(1) act of physical invasion; (2) intent; (3) causation.
No damages required; mistake is no defense.
Invasion = land below and air above, includes projectiles. Does not include light, sounds, smells, etc; means entrant has no privilege to enter.
Plaintiffs can be owners or lessees.
Ordinary duties of care re: adults and children
Ordinary duty of care = take risk reducing measures that would be taken by reasonably prudent person to mitigate foreseeable risks.
Children under 5 y/o = no duty of care.
Children over 5 = similar age, experience, intelligence, circumstances. But if doing adult activity (operating motor vehicle) then adult duty of care.
Make allowances for physical but not mental infirmities.
Duty of care owed to “foreseeable” victims = within zone of danger, INCLUDING rescuers (who are ALWAYS foreseeable).
Duty of care re: professional
Duty to exercise duty of care equivalent to average member of profession in good standing.
Re: doctors, includes duty to disclose risks of treatment to secure “informed consent” to procedure.
Duty of care re: common carriers and innkeepers
Very high duty of care, liable for even slight negligence.
Duty of care re: bailment
If sole benefit of bailor (e.g., “Would you hold this while I’m on vacation?”) = bailee only liable for gross negligence
If sole benefit of bailee (e.g., “Can I borrow your lawnmower?”) = liable for slight negligence
If mutual benefit = ordinary duty of care
Duty of care re: possessors of land to those off the premises
Natural conditions = no duty of care
Artificial conditions = no duty of care, two exceptions:
(1) unreasonably dangerous man-made conditions abutting adjacent land; (2) to take due precautions to protect passersby from man-made conditions.
Duty of care re: trespassers
Undiscovered trespassers = no duty of care
Discovered or anticipated trespassers = known man-made death traps (must warn or make safe)
Anticipated = pattern of trespass before
Duty of care re: attractive nuisance
When landowner knows or should know that kids are around, ordinary care to avoid harm by known man-made traps.
Not necessary to prove that the child was actually attracted by the dangerous thing.
Duty of care re: licensee
licensee = social guest, not there for economic benefit (has a revocable LICENSE to be there)
Duty to warn or make safe known man-made traps THAT THE LICENSEE WOULD BE UNLIKELY TO DISCOVER
Applies to firefighters and police officers.
Duty of care re: invitee
invitee = business patron or a place open to public
Duty to warn or make safe known man-made traps + make reasonable inspections.
Duty of care re: lessor on premises
Lessee owes duty re: any and all parts under his lease.
Other areas (e.g., common areas like hallways and stairs), the lessor has the duty of care.
Duty of care re: statute
“Negligence per se”
When a statute imposes a clearly stated duty of care, it replaces the general duty if both conditions are met: (1) P is in class designed to protect, (2) the conduct is the kind designed to prevent.
Satisfying establishes conclusive presumption of duty and breach (no directed verdict for D ever)
This does not apply when (1) compliance is impossible or (2) compliance would have caused more harm.
No assumption of risk: When a statute applies and is enacted to protect a class, members of that class will not be deemed to have assumed any risk.
Duty re: NIED
Duty, breach, causation, damages. Breach shown by:
1st person NIED: When P was almost hurt: zone of danger + physical manifestations.
3rd person NIED: “close in time, close in space, close in relationship”: P was there and saw it, close in relationship to victim.
Business relationship where careless performance is highly likely to cause emotional harm.
Duties to Act
In general no duty to act to give assistance. Three major exceptions.
(1) But when you act to give assistance, you assume the duty to act like ordinary prudent person. If you breach this duty you could be liable (BUT many states shield with good samaritan laws).
(2) You have a duty to take reasonable care to assist a person YOU put in peril in the first place.
(3) Common carriers/innkeepers have duty to assist with reasonable care.
Res ipsa loquiter requirements and effect
To invoke RIL, P must show:
• (1) the accident is a type normally associated with negligence
• (2) The accident would normally be due to negligence of someone in D’s position (to help ensure we’re suing the right person) -> show by showing that the object/thing was in D’s control (actual legal “possession” not required)
(3) P was not negligent
Does NOT create a presumption of negligence, just prima facie case.
No directed verdict for defendant. But defendant can rebut the presumption by putting on own evidence and then jury decides.
Causation: actual cause
But-for test for actual causation. Applies in normal situations and concurrent causes situations (where no single cause would have been sufficient but together they were).
Merged causes: when two causes merge to cause harm and any one alone would have been sufficient: P can show causation by showing D was merely a “substantial factor” in causing the harm.
Alternative causes: when only one D caused harm but we have no way of knowing who did it: burden then shifts to D to show he did NOT cause the harm.
Causation: proximate cause
Look at “fairness” by “foreseeability.” If the harm was foreseeable, it’s fair to hold D accountable; if not foreseeable, then not fair.
When chain is uninterrupted, if harm foreseeable D liable; if harm not foreseeable D not liable.
Some intervening forces always foreseeable and D liable: (e.g., med mal, rescuer negligence, subsequent disease, subsequent accident).
Some “independent” intervening force cause harm, judge by foreseeability: (e.g., negligent/intentional tort/crime of third person, acts of God).
Unforeseeable extent of harm does not relieve D; “eggshell skull.”
Comparative negligence
Pure comparative negligence: Jury decides how much P was negligent and award is reduced by that amount.
“Partial comparative negligence” or “modified comparative negligence”: not more than 50% rule.
Strict liability: animals
Duty, breach, causation, damages: the duty is to make absolutely safe.
Domesticated animals: no strict liability unless D knew it had violent tendencies unique to it.
Wild animals: yes strict liability, precautions don’t matter. But when wild animal attacks unknown trespasser, the trespasser must prove negligence (they don’t get benefit of strict liability).
Trespassing animals: If the trespass was FORESEEABLE, D strictly liable for harms caused by his own NON-HOUSEHOLD PET animals trespassing on to P’s land.
P can recover from actual harm inflicted by the wild animal, OR even injuries sustained while fleeing away from the wild animal.
Strict liability: abnormally dangerous activities
Duty, breach, causation, damages: the duty is to make absolutely safe.
(1) There is FORESEEABLE RISK of SEVERE harm even when careful; (2) The activity is UNCOMMON where it is taking place
E.g., explosives; highly toxic materials; radiation or nuclear energy.
Safety precautions are irrelevant.
Matter of law, not fact. Judge can decide on directed verdict.
Strict liability: products liability: elements + theories
P must show (1) D is a “merchant” who (2) sold defective product; and (3) product has not been altered since D sold it; and (4) P was making foreseeable use of the product. This is strict liability, so company precautions are not a defense.
“Defect” can mean (A) manufacturing defect (different from others on assembly line);
(B) design defect (“Costs” (i.e., tendency to hurt) of design outweigh benefits (e.g., comfort, speed, price to consumer) such that no reasonable merchant would have sold it. How does P establish this? Evidence of reasonable alternative design that is (1) safer, (2) same price (roughly), (3) practical.
(C) Information defect: P must show product has residual risk not apparent to user and product needs adequate warning re: foreseeable uses. To prove actual cause, D is entitled to presumption than an adequate warning would have been read and heeded.
Nuisance
Type of invasion of property right, usually intentional.
Private nuisance: substantial (average person would think so) and unreasonable (balancing) interference with another private individual’s use or enjoyment of property.
Vicarious liability: employees versus IC’s
Respondeat superior: employer liable for acts within scope of employment. Re: scope: Minor detours (short duration, small geographic deviation) versus frolics make a difference.
Usually intentional torts are not within scope of employment, but sometimes they are (e.g., security guard).
Independent contractors: Principal usually not liable for IC, two major exceptions:
(1) the IC is engaged in inherently dangerous activity;
(2) public policy makes the duty non delegable (e.g., security guard).
Joint and several liability versus indemnification
Each tortfeasor is on the hook for the whole amount, but they can seek “contribution” from one another afterwards based on percentage of fault.
“Indemnity” is for recovering whole amount.
Defamation
(1) defamatory language about the plaintiff, (2) publication, (3) damaging to reputation. If P a public figure or concern, then (4) falsity and (5) fault.
Defamatory language fact or fact-laden
Publication just one other person than P and D
Damages to reputation presumed in libel and “slander per se” (statements re: P profession/business, that P committed serious crime, that P woman unchaste, P has “loathsome” disease)
Damages not presumed in other cases of slander.
“Fault”: If D is a public figure, P must show D made statement with “Malice,” knowingly false or reckless disregard of its truth or falsity. If D is a private figure, P must show D made statement “negligently,” failure to take reasonable steps to confirm its truth or falsity.
Defamation defenses
Consent, Truth, Privilege
Absolute Privileges: spouses, government officials in their work
Qualified Privileges: public interest encouraging candor (professional references).
Invasion of right to privacy: four forms
Mnemonic: CLIP
(1) appropriation of P’s picture or name for business purpose
(2) False light: Widespread dissemination of material falsehood about P highly offensive to reasonable person. When public interest, also malice.
(2) intrusion upon affairs or seclusion (wiretapping, peeping) that would be highly offensive to reasonable person
(4) Disclosing private facts that would be highly offensive to reasonable person (E.g., doctor accidentally emails P’s medical records to all of his patients) [newsworthiness exception!]
Products liability negligence theory
Duty, breach, causation, damages.
Breach of duty requires showing (i) negligent conduct by the defendant leading to (ii) the supplying of a defective product by the defendant.
P may use res ipsa loquitur.
Evidence that manufacture complied with all statutes and regulations can be admitted as evidence of observing the required duty of care, but it is not conclusive evidence.
A manufacturer lower down the chain using negligently made parts by someone up the chain will liable for that guy up the chain.
In IIED, is physical manifestation required?
No.
When it might normally apply, what can defeat a finding of negligence per se?
(1) compliance was impossible, (2) compliance would have been more harmful than violation.
Defendant young children re: intentional torts and negligence
Intentional torts: can be liable if had requisite intent, no matter age.
Negligence: Under 5 years old, not liable. Over 5 years old, look to “should have known better” with age, education, experience.
IIED versus NIED
IIED:
P himself was harmed versus P was bystander
A) P himself was harmed: (1) extreme or outrageous conduct, (2) intent or recklessness, (3) causation, (4) damages–extreme emotional distress. No physical manifestation required.
NIED:
Two bystander cases:
A) P in zone of danger: (1) P in zone of danger; (2) P physical symptoms; (3) causation; (4) damages.
B) P NOT in zone of danger: (1) P close by, (2) P close in relationship; (3) P observed event; (4) causation; (5) damages. (*Many states don’t require physical symptoms in this case.)
Also professional cases (e.g., doctor misdiagnosis).
