Torts Flashcards
Intentional Torts [Three Elements]
- Act
- Intent
- Causation
Intent
Acts with purpose of cause consequence, or knows consequence is substantially certain.
Transferred Intent
Intent to cause tort or a tort can be transferred to different person and/or tort.
Battery
- Harmful or offensive contact
- Causes injury pain or illness
- OR is offensive to person of ordinary sensibility
- Must intend the contact
- Can recover nominal damages
- No battery if there is consent
Assault
- Reasonable apprehension of imminent harm
- Intends to cause apprehension or contact
- Plaintiff must be aware, must be reasonable
- Imminent, no substantial delay
- More than mere words
- Can recover nominal damages
Intentional Infliction of Emotional Distress
- Intend to cause distress or act with recklessness
- Engage in extreme and outrageous conduct that causes the distress
- Must be cause of harm
- Prove damages beyond distress an ordinary person would endure
- Exception for public figures, must show false statement made with actual malice (recklessness of knowledge of falsity)
- hypersensitivity only a factor if P was aware of it
Can end up causing harm to third parties. If bystander requires actual physical harm.
False Imprisonment
- confine or restrain within fixed boundaries
- Plaintiff is aware OR harmed
- can be through physical barriers, restraint, or threat. Or failure to provide reasonable means to escape where there is duty
- Intent or knowing
- Can recover nominal damages
Defenses to Intentional Torts
- Consent
- Self-defense
- Defense of Others
- Defense of Property
- Parental Discipline
- Privilege of Arrest
Consent
Express consent: words or actions, willingness to submit to conduct
Implied consent: silent where silence can reasonably construed of consent. i.e. emergencies, injury, mutual consent to combat
Self-defense
Use of reasonable force - proportionate to defend against harm
Generally, no duty to retreat in modern states.
Not liable for accidental injury to bystanders absent negligence.
May use reasonable force in defense of others
Defense of Property
Reasonable force if necessary to prevent tortious harm.
May never use deadly force.
Citizen Arrest
Must know felony has been committed and reasonably believe person is perp.
Tresspass to Chattel
- disposses, use, interfere or damage chatell
- Intend act
- Only actual damages
Tresspass to land
- physical invasion of land
- intent to enter land
- no actual damages required
- Necessity as defense to trespass, still liable for actual damages in private necessity.
Private Nuisance
substantially and unreasonably interferes with use and enjoyment
annoying to ordinary, reasonable person.
Defense: regulatory compliance, coming to the nuisance
Public Nuisance
Unreasonable interference with public as a whole. Private plaintiff must show special or unique harm.
Elements of Negligence
- Duty
- Breach
- Causation
- Damages
Is there a duty
Duty of care to those who may be foreseeably harmed by conduct.
No affirmative duty
Scope of Duty
Foreseeability of Harm & Foreseeability of Plaintiff
Standard of Care
Reasonably prudent person under the circumstances - Objective standard.
Presumed to have average mental abilities
Intoxication not considered unless involuntary
Standard of Care [children]
modified standard to reasonable child of similar age, unless child is engaged in high-risk adult activity
Standard of Care [tresspasser]
Refrain from willful, wanton, intentional, or reckless misconduct
Attractive nuisance doctrine
- artificial condition where knows children are likley to trespass
- condition poses unreasonable risk of death or harm
- children do not discover or cannot appreciate danger
- slight utility of maintaining compared to risk of injury
- fails to exercise reasonable care
Standard of Care [licensee]
Must make reasonably safe and/or warn of concealed dangers. No duty to inspect
Standard of Care [invitees]
owes duty of reasonable care, to inspect, discover dangerous conditions, and protect from them.
Non-delegable duty
Breach of Duty
Reasonable Person Standard or B
Breach for Professionals
evidence of custom admissible, dispositive
Breach for Physicians
- modern trend to national standard
- patients must give consent and docs. must explain risks unless:
a. risks are commonly known
b. patient is unconcious
c. patient waives/refuses the information
d. patient is incompetent; or
e. would be harmed by disclsoure
Breach of statutes
negligence per se
- law imposes duty
- vioaltes statute
- P in class intended to be protected by law
- accident type of harm sought to be avoided by law
- harm was caused by violation of statute.
-can excuse/rebut if complying with statue was more dangerous than violating or compliance was impossible
Res ipsa Loquitur
In some cases, circumstantial evidence can be enough.
- accident is type that does not normally occur without negligence
- was caused by something within exclusive control of D
- was not due to any negligence by P
Res Ipsa modern trends
- Med Mal. hold all D’s jointly & severably liable
- Products liability, will often ignore exclusivity requriements
- comparative-fault - many loosely apply third element
Causation
Cause in fact, actual cause
Proximate Cuase, legal cause
Cause in fact
But for test
Substantial factor Test
when multople factors make actual cause difficult, can apply subtantial factor test.
Loss of chance
In case of disease where death is more likely than not, D can recover loss of chance
Proximate cause
Is injury within scope of breach/
1. Foreseeability of harm
superseding cause
cause that breaks the chain of causation
Intervening cause
does not break the chain of causation
Compensatory Damages
Make plaintiff whole again.
Can include “parasitic damages”: of emotional distress associated with physical injury
Generally i)medical expense, ii)earning capactiy, iii) pain and suffering
difference in market value for property
Collateral Source Rule
Traditionally do not account for outside payments, generally shifting to modify in a way that avoids double recovery
Punitive damages
may be available if D was willful, reckless, wanton, ,or with malice
Negligent Infliction of Emotional Distress
Needs either:
- zone of danger and caused distress
- Bystander: i) cloesely related, ii) present, iii) personally observed.
- Negigent medical info or mishandling of a corpse
- Most require some physical manifestation
Wrongful Death
brough by a spouse or rep. to cover losses suffered by spouse or rep.
Survivial Action
brough on behalf of decedent for claims that would have been available at death
Vicarious liability
Held liable for another persons negligece
Respondeat Superior
Employer held vicariously liable for acts that are within the scope of employment
Does not generally include intentional torts
Scope of employment
Detour: minor deviation, employer still liable
Frolic: major deviation, employer no longer liable
Independent Contractors
Employer generally not liable unless employer retains control or non-delegable
Non-delegable duties
- inherently dangerous
- duties to public or specific people for certain work
- shopkeepers
Other liability
- biz partners if within scope of biz
- Auto owners, negligent entrustment, family purpose, owner liability
-General rule is parents not liable for children’s torts
Dram shop laws
Bar owners, bartenders, and social hosts liable when caused person to drink to much and injured third-parties.
Govt. Immunity
generally immune, has been waived, Federal Tort Claims Act.
Generally, discretionary govt. functions not waived, but ministerial functions is waived.
Firefighters Rule
An emergency proffesional is barred from recovering for the negligence if the injury is from an inherent risk of the job.
Joint and Several Liability
two or more defendants are each liable for a single and indivisible harm to the plaintiff for the entire harm.
- two or more tortfeasors
- Tortfeasoers acting in consert
- Employer and employee are liable
- Res Ipsa for mulitple d’s
Contributory Negligence
completely bars the palintiff’s recovery
Last Clear Chance Doctrine
Allows a negligent plaintiff to recover upon showing that defendant had the last clear chance to avoid injuring plaintiff
Comparative fault
Not a complete bar to recovery, but limits recovery.
Modifiend comparative negligence
P is more at fault than D, then P’s recovery is barred
Assumption of the Risk
Analogous to consent, Applies when party knowingly and willingly embraces a risk for some purpose of their own
Express Assumption of Risk
Waiver, if clear and enforcable
No reckless or wanton conduct or gross disparity of bargaining power.
Strict Liability
- Abnormally dangerous activiies,
- Wild animals
- Defective products
Abnormally Dangerous Activity
- Creates a foreseeable and highly signifiant risk of harm
- Severity of harm resulting from activity
- Appropriateness of activity
- Value to activity
Wild Animals
species or class not cutsomarily kept in the service of humankind.
Liable for dangerous propensity
Domestic Animals
liable if has reason to know animal has dangerous propensity
Strict Products Liability
- manufacturing defects
- design defects
- failure to warn
Elements of SPL claim
- defective product
- defect existed when left D’s control
- Injury from defect when product used in a foreseeable way
Manufacturing Defect
Product deviated from Intended Design
Does not conform to Manufacturers own specs
Design Defect
Consumer Expectation Test - defective if less safe than ordinary consumer would expect
Risk-Utility Test - product is defective in design if risks outweigh benefits, must show that there is reasonable alternative design
failure to Warn
Of foreseeable risk no obvious to ordinary user
Learned intermediary
Drug maker may warn physician only unless drug is marketed directly to consumers
Implied Warranty of Merchantability
- Suitable for the Ordinary Purpose for which it is sold
Implied Warranty of Fitness for a Particular Purpose
Seller nows particular purpose, and buyer relies on seller’s skill or judgment
Defamation
- defamatory statement
- concerning plaintiff
- published to third party who understood nature
- damage to P’s reputation
Public Figure Defamtation
kew or acted with reckless disregard that statement was false. Actual Malice Standard
Private person defamation
must prove statement is fales and that person was negligent with respect to falsehood.
not a matter of public concern
Libel
written, printed, or recorded statement
Slander
spoken statment
absolute privilege release from defemation
- judicial proceeding
- legislative proceeding
- between spouses
- if required by publications on TV etc.
Conditional privilage from defamtion
Good faith statement made to some duty or responsibility
Intrusion Upon Seclusion
intrudes upon private affairs in manner objectionable to a reasonable person
False LIght
- make public facts about P
- That place p in false light
- which would be highly offensive to reasonable person
Appropriation of Right to Publicity
- another’s name or likeness
- for the D’s advantage
- without consent
- causes injury
Public Disclsoure of private Facts
- publicses matter concerning private life of another
- Highly offense to reasonable person
- Not of legitimate concern to public
Intentional Misrepresentation
- False representation
- Scienter
- Intent to induce reliance
- Causation
- Justifiable Reliance
- Damages
Negligent Misrepesntation
- false infor
- resulting from negligence
- during course of bus
- causing justifiable relaince
- in contractual relationhp or limited group for whose benefit info is supplied
Intentional INterference with a Contract
- valid K
- D knew of K
- D intentionaly interfered resulting in breach
- Breach caused damages
-d’s conduct must exceed the bounds of free competition and expression
Interference with a Prospective Economic Advantage
D intentionally interferes with relaitionph or benefit absent a contract, otherwise same elements
Misappropriation of Trade Secrets
- P has info generally known
- P has taken reasonable precaustions to protect
- D acquires secret by improper means
Trade Libel
- Publication
- Of false or derogatory statement
- With Malice
- Relating to P’s title, business, wuality of biz, or products
- causing special damages as result of interefernce or damage iwth relationship
Slander of Title
- Publication
- Of a false statement
- Derogatory to P’s title
- with malice
- causing special damages
- diminsh value in eyes of 3rd party
Malicous PRosecution
intentionally and malicously institutes or pursues a legal action for an improper prupose, without probable cause, and aciton is dismissd in favor of D
Abuse of Process
Sets inmotion legal proceeding but has abused it for some alterior motive.
Must also cause damages
