Torts Flashcards
What are the prima facie elements of an intentional tort?
- Voluntary act;
- Intent to cause harm;
- Causation; and
- Resulting harm
Define
doctrine of transferred intent
If D intends to commit a tort but causes injury to a different victim OR commits a different tort than intended, original intent is transferred to the new victim/tort
Elements of battery (intentional tort)
- Intentional act;
- That causes harmful or offensive contact
What are the defenses to battery?
- Consent;
- Self-defense;
- Defense of property; and
- Defense of others
Elements of assault
- Intentional act by D that creates;
- P’s reasonable apprehension;
- Of imminent harmful or offensive physical contact; and
- Causation
Elements of false imprisonment
- D intends to confine or restrain P in a bounded area;
- D actually confines or restrains P in bounded area; and
- P knows or is harmed by confinement
Define
shopkeeper’s privilege
A shopkeeper is not liable for false imprisonment if she:
- Has a reasonable suspicion that P has stolen goods;
- Uses reasonable force to detain P; and
- Only detains P for a reasonable time to confirm/deny the suspicion
⚠️ Note: Only non-deadly force allowed. Shopkeeper can be liable for P’s injuries if actions exceed scope of privilege.
Elements of IIED
- D acts intentionally or recklessly;
- With extreme and outrageous conduct; and
- Causes P severe emotional distress
Elements of trespass to land
- D intentionally;
- Physically invades P’s real property
Elements for trespass to chattel
- D intentionally;
- Intermeddles or uses;
- P’s personal property (chattel); and
- Causes damage or loss of use
Define
conversion
D intentionally exercises dominion and control over P’s property so as to deprive them of its use
What are the defenses to intentional torts?
- Consent (express & implied);
- Self-defense;
- Defense of others;
- Defense of property;
- Necessity; and
- Recapture
Elements for self-defense
- D subjectively and reasonably believes harm is imminent; and
- D uses proportional force to protect herself
What is the defense of others defense?
D is entitled to defend another as long as D has a reasonable belief that the party being protected would be entitled to self-defense
What is the necessity defense?
Allows D to reasonably interefere with P’s property to avoid a substantially greater harm (e.g. D damages P’s fence to try and save P’s burning house)
What elements are needed for a bystander recover for IIED?
- D intentionally or recklessly harmed a third party;
- P was present at the scene and witnessed the event;
- P was closely related to victim (i.e. immediate family);
- D knew P was present and closely related; and
- P suffers extreme emotional distress as a result
⚠️ Note: P does not need to prove the above elements if D’s design or purpose was to cause severe emotional distress to P
True or false: Intentionally wrongful actions render D liable for all consequences of those acts, even if unintended and unforeseen
True
Elements of negligence
- Duty of care;
- Breach;
- Actual cause;
- Proximate cause; and
- Damages
What general duty of care is owed?
D owes a duty of reasonable care (i.e. should act like a reasonably prudent person) to all foreseeable plaintiffs in the zone of harm
What is the reasonably prudent person standard of care?
D must act as a reasonably prudent person would under the same circumstances with the same knowledge and capacity as an average person
⭐️ Objective standard
When are children held to the adult standard of care (RPP)?
When engaging in inherently dangerous adult activities (e.g. driving a car or motorcycle)
Is there an affirmative duty to intervene, rescue, or aid another?
No, unless:
- D has a special relationship with P;
- D creates a need for rescue; or
- D undertakes the rescue and P relies on the rescue attempt
What duty is owed to licensees?
Property owner must:
- Exercise reasonable care on the property;
- Warn or correct concealed dangers;
- That are known or should be known;
- In areas where P has access as a licensee
⚠️ Note: No duty to inspect for dangers
What is the attractive nuisance doctrine?
D is liable for child trespassers if:
- D knows of a dangerous, artificial condition on the property;
- That poses a risk of death or great bodily harm to children;
- In a place that D knows or should know children are present;
- Children are too young to appreciate the danger;
- The risk of harm to children outweighs the burden of fixing the condition; and
- D failed to remedy the dangerous condition
What is the standard care for children?
Child must act as a child of similar age, experience, and intelligence would.
⭐️ More subjective than RPP standard
Elements for negligence per se
- Statute imposed duty;
- D did not perform duty;
- P is a member of a class that the statute was designed to protect; and
- Injury caused by D is the type of injury that the statute was designed to protect against
What duty is owed to invitees?
Property owner must:
- Inspect area where invitees have access;
- For non-obvious, unknown dangers;
- Warn the invitee of the dangers; and
- Protect them from the dangers
⚠️ Note: Duty is non-delegable
What is the duty of care for common carriers?
Highest duty of care; liable for even the slightest negligence
What is non-delegable duty?
Duty that does not absolve D of liability when contracted out to a third party (i.e. D is still ultimately liable)
What duty is owed to foreseeable adult trespassers?
Property owner must:
- Reasonably carry out activities conducted on land; and
- Correct or warn of dangerous artificial conditions on land that could cause death or serious bodily harm
What duty is owed to unforeseeable trespassers?
None
When has a breach of duty occurred?
When D fails to follow the appropriate standard of care
Elements of res ipsa loquitur
- Injury would not occur without negligence;
- D had exclusive control over instrumentality that caused the injury; and
- P did not contribute to the injury
What is actual cause (“cause-in-fact”) and what are the 3 tests to determine its existence?
Factual cause of P’s injuries.
Tests:
- “But-for;”
- Substantial factor; and
- Burden-shifting test
What is proximate cause?
Legal limitation on actual cause. Asks: “Is it legally fair to impose liability on D?”
Holds that P’s injuries must be foreseeable and a direct consequence of D’s actions (i.e. no intervening or superceding causes)
Define
superseding cause
Unforeseeable, freakish, or bizarre intervening event that breaks the chain of causation between the initial wrongful act and the ultimate injury.
Negates proximate cause, thereby relieving D of any liability.
Define
intervening cause
Event that happens after D’s conduct that contributes to P’s injuries (e.g. medical malpractice).
Can be either foreseeable or unforeseeable. If unforeseeable, D is relieved of liability.
What type of harm does P need to prove to recover on a negligence claim?
Actual damage; i.e. actual harm to person or property
Nominal damages & damages for solely for economic harm are not sufficient
What types of damages can P recover?
- Medical expenses (past & future);
- Pain and suffering (past & future);
- Lost income/earnings (past & future);
- Property damages (reasonable value of repair or fair market value at time of injury if irreparable)
What are the defenses to negligence?
- Contributory Negligence;
- Comparative Fault; and
- Assumption of Risk
⚠️ Note: Assume comparative negligence applies unless otherwise stated by MBE
What is the default jurisdiction on the MBE, contributory negligence or comparative fault?
Pure comparative fault in which joint and several liability applies
Define
pure comparative fault jurisdiction
Reduces P’s recovery in proportion to P’s fault
E.g. If P is 40% at fault, recovery will be reduced by 40%
Define
modified comparative fault jurisdiction
P cannot be more than 50% at fault for the resulting injury or else recovery will be barred.
If P is less than 50% at fault, recovery is reduced by percentage P was at fault (same as pure comparative negligence)
Define
negligent entrustment
D is liable for negligence if:
- Third party has a reputation or record that shows propensity to be dangerous when in possession of such instrumentality;
- D knew or should have known third party had this dangerous propensity;
- D provided third party with the dangerous instrumentality, and
- Third party injures P with dangerous instrumentality
Elements for negligent infliction of emotional distress (NIED)
- D’s negligence created foreseeable risk of harm to P;
- P was in the zone of danger; and
- P suffered emotional distress as a result
Elements for bystander negligent infliction of emotional distress (NIED)
- P is closely related to V;
- P was present at the scene of the injury;
- P witnessed or perceived the injury causing event; and
- P suffered severe emotional distress as a result
Elements needed establish a prima facie case for strict liability
- D’s activities imposes an absolute duty to make safe;
- Breach of duty;
- Actual cause;
- Proximate cause; and
- Damages
When is D strictly liable for injuries resulting from a wild animal?
When P’s injuries are:
- Unprovoked; and
- Caused by the animal’s foreseeable dangerous propensities or characteristics
⚠️ Note: D is only liable for injuries caused by the animal’s dangerous propensity. For example, if D owns a lion, and P is injured because she is allergic to the lion’s hair, D will not be strictly liable.
Define
abnormally dangerous activity
- Not of common usage; and
- Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors (i.e. cannot be performed safely no matter how much care is exercised)
Elements of a strict products liability claim
- D is a commercial manufacturer or supplier of the product;
- Product was defective;
- Defect existed when D sold the item;
- P used the product in an intended or foreseeable way; and
- Defect was an actual and proximate cause of P’s injuries
What are the 3 types of product defects?
- Manufacturing defects;
- Design defects; and
- Warning defects
What are the defenses to strict products liability claim?
- Unforeseeable user misuse/alteration/modification
- Assumption of risk; or
- Product changed significantly after it left D’s control
⚠️ Note: whether or not defense is a complete bar will depend whether or not it is a comparative fault or contributory negligence jurisdiction. Make sure to read the question carefully.
When is P considered to have “assumed the risk”?
- P knew of the defect/danger;
- P comprehended the consequences of the defect/danger; and
- P voluntarily exposed himself to that danger
Is the supplier of a component part liable for product defects?
Yes, if:
- Component itself was defective; or
- Supplier substantially participated in the manfucturing of the product and participation was integral to the defect
Elements of a products liability negligence claim
- Commercial supplier owes a duty of care to foreseeable users/P’s (bystanders, etc);
- Supplier breached duty by failing to reasonably inspect product;
- Breach was actual and proximate cause of injury; and
- P suffered physical damages or property damages (economic losses are insufficient)
What are the 2 implied warranties?
- Merchantability; and
- Fitness for a particular purpose
Elements for public nuisance claim
- D unreasonably interfered with a public right (typically right to health, safety, or property); and
- P suffered distinct and different harm from the public at large
Elements of private nuisance claim
Substantial and unreasonable interference of P’s use or enjoyment of her land
Differentiate between nuisance and trespass
Nuisance:
- No physical invasion required (can be light, smells, etc)
- Continuous
- Substantial interference
Trespass:
- Physical invasion required
- Does not need to be continuous
- Does not need substantial interference
Elements of defamation
- Defamatory statement;
- Concerning P;
- Published to a third party (either intentionally or negligently);
- That damages P’s reputation
** If matter is of public concern or P is a public figure, must also show → - D acted with actual malice
Define
slander per se
Defamatory statement that doesn’t require proof of special damages.
Accuses P of either:
- Misconduct that reflects poorly on P’s profession;
- Committing a crime involving moral turpitude;
- Having a loathsome disease; or
- Sexual misconduct or impropriety
If defamation involves a matter of public concern, what must P prove?
- Statement was false; and either:
- Actual malice (public figure) or negligence (private figure)
What are the 3 main defenses to defamation?
- Truth (absolute defense);
- Consent; or
- Privilege: absolute (complete defense) & qualified (can be revoked)
4 types of invasions of privacy
- Intrusion upon seclusion;
- Disclosure;
- False light; and
- Appropriation
Defenses for invasion of privacy torts
- Privilege (absolute or qualified);
- Consent
⚠️ Truth is not a valid defense
Define
respondeat superior
Doctrine that holds an employer liable for the unintentional tortious acts of an employee committed within the scope of their employment
Define
negligent hiring
Holds employers primarily liable for the negligent hiring, supervision, entrustment, or retention of an employee
When is an employer liable for an employee’s intentional tort?
When the tort falls within the scope of employment. Can fall within the scope of employment if:
- Force is inherent in the job (e.g. bouncer);
- Employer authorizes force; or
- Force is necessary to achieve employer’s goals
For vicarious liability, what acts are considered within the scope of employment?
Acts that:
- Employee was hired to do or are part of her official duties; or
- Benefit the employer
Define
joint and several liability
Each D is fully and independently liable for the full amount of damages owed
Ex. Both Max and Mat are jointly and severally liable for Brianne’s injuries. Brianne’s damages are $100,000. Brianne can collect $100,000 from Max or $100,000 from Mat, or $50,000 from Max and $50,000 from Mat (or another amount from each as long as the total doesn’t exceed $100,000).
More info: Joint and Several Liability
Define
contribution
If held jointly and severally liable, D can seek contribution from the other D’s for their share of the damages
Ex. If Brianne sought $100,000 from Max, he could seek contribution from Mat for his share of the damages.
More info: Contribution
Compare contribution with indemnification
Contribution: Equitable apportionment, or sharing, among D’s
Indemnification: Shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm
