Torts Flashcards
Intentional Torts
1) Act by D — requires some volitional movement
2) Intent — specific or general
» Specific — intent to bring about a specific harm
» General — substantial certainty that tortious conduct will result from D’s act
3) Causation — substantial factor
» D’s conduct must be a substantial factor in bringing
about the resulting harm
Transferred Intent
Arises when D acts with the
intent to commit a given tort but:
a) Commits it against a different person than intended
b) Commits a different tort than intended
c) Both a) and b)
Torts Transferred Intent Applies To
1) Assault
2) Battery
3) False imprisonment
4) Trespass to land or chattel
Assault
An intentional act by D creating P’s reasonable apprehension of immediate harmful or offensive contact to P’s person
• Also considered an attempted battery
Elements of Assault
1) Act by D that creates a reasonable apprehension in P
2) Of immediate harmful or
3) Intent
4) Causation
Battery
An intentional harmful or offensive contact to P’s person by D
Elements of Battery
1) Harmful or offensive contact by D (reasonable person)
2) To P’s person
3) Intent
4) Causation
False Imprisonment
An act or failure to act by D resulting in P’s restraint or
confinement to a bounded area
Elements of False Imprisonment
1) Act (or omission) resulting in P’s restraint or confinement
2) P is confined to a bounded area
3) Intent
4) Causation
Shopkeeper’s Privilege
A store may detain a suspected
shoplifter on store property for a reasonable period of time
• Reasonable cause — store must have reasonable cause to
believe detainee stole or attempted to steal store property
• Limited duration — store may only detain the suspect for a
short period of time and only for purposes of investigation
• Shopkeeper may be held liable for any harm caused by acts exceeding the privilege
Assault Apprehension
» Apprehension = P is aware of D’s act
» Words alone are insufficient, unless coupled with conduct
» Note — beware of fact patterns where D appears incapable of accomplishing the threatened harm
• Apparent ability is sufficient, as long as it could reasonably create P’s apprehension
Act or Omission for Restraint or Confinement
» Restraint or confinement does not have to be physical
• E.g., threats of force, invalid use of legal authority
» Duration is not important; brief confinement will suffice
Confined to Bound Area
» P must be aware of, or be harmed by, the confinement
» P’s freedom of movement must be limited
» P must have no reasonable means of escape
• If a reasonable person could get out (e.g., by opening an unlocked door), no false imprisonment
IIED
Extreme and outrageous conduct by D causing P’s severe emotional distress
Elements of IIED
1) Extreme and outrageous conduct by D
2) Severe emotional distress in P
3) Intent or recklessness
4) Causation
Extreme & Outrageous Conduct
» Conduct that exceeds the bounds of decency in society
• Mere insults alone are insufficient
» Non-outrageous conduct may be actionable if:
a) D targets P’s known sensitivity or weakness;
b) D’s conduct is continuous or repetitive;
c) D targets a P who is a member of a “fragile” class
(e.g., elderly, children, pregnant women); or
d) D is a common carrier or innkeeper
Severe Distress
» P must suffer severe emotional distress from D’s conduct
• Physical symptoms are not necessary
» Note — watch for facts indicating extreme, outrageous
conduct but P is unbothered — this is not IIED
Bystander of Emotional Distress
A bystander closely related to a person physically injured or
killed by D’s conduct may recover for emotional distress
Elements for Bystander of Emotional Distress
1) D’s conduct seriously injured or killed a third person
2) P is closely related to the injured person
3) P was present when the injury occurred
4) D knew elements 2) and 3)
5) P suffers severe emotional distress
Trespass to Land
A physical invasion of P’s real property by D
Elements to Trespass to Land
1) Physical invasion of P’s real property by D
2) Intent
3) Causation
Physical Invasion of Land
» D enters P’s property or propels an object onto it
• E.g., D walks on P’s property, throws a ball onto P’s property, chases someone onto P’s property
» P must only have actual or constructive possession
• Ownership not required
» Must be a physical invasion
• Invasions by light, sound, smell are not trespass (but may give rise to nuisance)
» P’s real property includes surface space, airspace, and
subterranean space to a reasonable distance
Trespass to Chattel/Conversion
1) D interferes with P’s right of possession in tangible personal property (chattel) 2) Intent 3) Causation 4) Damages
Interference with Property
» Interference usually occurs through dispossession (depriving P of his possessory rights in chattel) or intermeddling (damaging P’s chattel)
» Trespass — minor interference or damage
» Conversion — significant interference or damage that justifies D paying the chattel’s full value
• A longer and/or more damaging use of P’s chattel gives rise to conversion
Trespass Damages
P must have some loss of use
» Trespass — P can recover cost of repair or rental
value of chattel
» Conversion — P can recover full market value at the
time of conversion or repossess the chattel
Consent Torts
A defense to all intentional torts
• If P consents to D’s otherwise tortious conduct, D is not liable for that act
• Capacity required — P must be capable of consenting
» E.g., drunks, mentally impaired, and young children are incapable of consenting to tortious conduct
Express Consent
P gives D verbal or written consent
• Nullified by duress, fraud, or mistake
Implied Consent
D can reasonably infer P’s consent based on custom or P’s observable conduct
• Often arises if P participates in an activity or goes to a place
where minor torts are common
Scope of Consent
D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)
Self Defense
No duty to retreat
• Reasonable mistake by D is allowed
• Only available to initial aggressor if D responds to non-deadly force with deadly force
Defense of Others
D steps in the shoes of the intended target
• D may not use greater force than the intended target could
have reasonably used
• Reasonable mistake by D is allowed
Defense of Property
Unavailable if initial actor had a privilege to enter the land (e.g., recapturing chattel)
• Reasonable mistake only allowed as to whether an intrusion occurred, not whether a privilege existed
Necessity
A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger
Necessity Requirements
1) D’s interference with P’s property must be reasonably
necessary to avoid an immediate threatened injury
2) Threatened injury must be more serious than the interference undertaken to avert it
Public Necessity
Absolute defense
• D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people
• Absolute defense — P cannot recover any damages
Private Necessity
Limited defense
• D invades P’s property to protect an individual or small group
• Limited defense — P can recover actual damages, but not
punitive or nominal damages (unless D’s act benefitted P)
Recapture of Chattels
A defense to trespass; D may use peaceful means to recover
possession of chattel taken unlawfully
Appropriation
Use of P’s name or likeness for commercial purposes (e.g., promotion or advertisement) without P’s consent
• Newsworthiness exception — no liability for use of P’s name
or likeness for the purpose of reporting news
False Light
Widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a
reasonable person
• Includes mischaracterization of P’s views or conduct
• Matters of public concern — D must have actual malice or reckless disregard for the truth of the matter publicized
Intrusion Upon Seclusion
Intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person
• P must have a reasonable expectation of privacy
» No reasonable expectation of privacy in a public place
• Must be highly offensive — e.g., peeping, eavesdropping, or using hidden cameras in P’s domain
• No newsworthiness exception
Disclosure
Public disclosure of P’s private information
Requirements of Disclosure
1) Highly offensive to a reasonable person
• Public activities are not objectionable
• E.g., D announces that the mayor frequents strip clubs — no liability b/c the acts occur in public
2) Public disclosure —publicized to some small extent
Defamation
A statement concerning P, made by D to a third person, that is
harmful to P’s reputation
• If statement involves a matter of public concern or a public
figure or official, falsity and fault may be required
Elements of Defamation
Defamatory Statement
Concerning P
Publication
Harmful to P’s Reputation
Additional Elements for Public Concern or Person
1) Falsity — P must prove the statement was false
2) Fault — P must prove D was at fault; standards differ for public vs. private figures:
» Public official or figure — actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
» Private figure — negligence standard
3 Persons for Defamation
Public figure = one who has pervasive fame or notoriety, or
who voluntarily assumes a central role in a public matter
• Public official = public office holder
• Matter of public concern = statement relates to a community interest or concern (includes national interests)
Types of Defamation
Libel
Slander
Slander per se
Libel
P does not have to prove special damages
• Libel = a written defamatory statement
» Note — TV and radio broadcasts are considered libel
Slander
P must prove special damages unless the statement constitutes slander per se
• Slander = a spoken defamatory statement
• Special damages — a specific economic loss
Slander per se
Presumed Damages
a) Concerns and adversely reflects on P’s business or
professional reputation;
b) Claims that P has a loathsome disease;
c) Claims that P committed a crime of moral turpitude; or
d) Imputes a woman’s chastity
Truth Defense Defamation
Truth is a complete defense to a defamation claim
Privilege Defense Defamation
Absolute privilege — protects statements by govt. officials
in their official capacity
• Qualified privilege — D’s liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness
Malicious Prosecution
• Arises when D initiates a frivolous charge or claim against P with an improper purpose (e.g., filing a false police report)
Elements of Malicious Prosecution
1) D commenced a prior criminal or civil legal proceeding
against P
2) Proceeding terminated in P’s favor
3) No probable cause for the original proceeding
4) D had an improper purpose in initiating the proceeding
5) Damages
Abuse of Process
Arises when D uses the legal system as an ulterior purpose
to threaten or act against P
Elements of Abuse of Process
1) Wrongful use of process for an ulterior purpose
2) Definite act or threat against P to accomplish an ulterior
purpose
Elements of Intentional Misrepresentation
1) D misrepresents a past or present material fact
2) D knows or believes the misrepresentation is false
3) D intends to induce P to act or refrain from acting in reliance on the misrepresentation
4) Actual reliance by P (causation)
5) Justifiable reliance by P
6) Damages — P must suffer monetary loss
Elements of Negligent Misrepresentation
1) D misrepresents a past or present material fact in a
business or professional setting
2) Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
3) Actual and justifiable reliance by P
4) Damages — P must suffer monetary loss
Elements of Intentional Interference w/ Business Relations
1) P has a valid contractual relationship or business expectancy
2) D has knowledge of the relationship or expectancy
3) D intentionally interferes with that relationship
4) D’s interference causes a breach or termination in P’s
contract or expectancy
5) Damages
Negligence Elements
Duty of Care
Breach of Duty
Causation
Damages
Duty of Care
D owes a duty of care to all foreseeable victims of his activities
Default Duty of Care
Reasonably prudent person (RPP)
• D’s duty is to behave like a reasonably prudent person under
the circumstances
» RPP is considered to be someone with D’s physical
characteristics, but with the knowledge and mental capacity of an ordinary person
Foreseeable Victims
Zone of danger = the area around D’s activities in which a P
could foreseeably be injured
Rescuer’s Exception
If D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable
» Does not apply to firefighters or police
Children Duty of Care
Held to the standard of care of a like child of similar age, education, intelligence, and experience (subjective test)
• Generally, children under seven lack capacity to be held negligent
Duty of Care Common Carriers & Innkeepers
Held to an “utmost care”
standard
• Liable for even slight negligence to passengers or guests
Duty of Care Custom or Usage in Industry
Can be used to establish a
standard of care, but failure to adhere does not automatically
give rise to a breach of duty
Duty of Care Professionals
Expected to act with the care of an average member of the profession in good standing in similar communities
• Specialists (e.g., neurosurgeons) are held to a national standard of care
Elements of Negligence per se
1) The statute provides a criminal penalty
2) Standard of conduct is clearly defined in the statute
3) P is within the class of people the statute was designed to
protect
4) The statute was designed to protect against the type of
harm P suffered
When Negligence per se does not apply
a) Compliance is more dangerous than non-compliance
b) Compliance is impossible under the circumstances
Duty of Care Unknown or Undiscovered Trespassers
No duty owed
Duty of Care Anticipated Trespassers
Where an owner has reason to
believe of trespassers on her land
• Activities — an owner has a duty of reasonable care in
carrying out activities on her property
• Dangerous conditions — an owner has a duty to warn or
make safe any conditions the owner knows of that are manmade, concealed, and dangerous
» Note — this is rare; look for spring guns, traps, etc.
Attractive Nuisance
An owner must take reasonable care to eliminate dangers on
her property or protect children from those dangers if:
1) She is aware or should be aware of a dangerous condition (natural or artificial) on her property
2) She knows or should know children are in the vicinity
3) The condition is likely to cause injury if encountered
4) The magnitude of the risk outweighs its utility or the
expense of remedying it
Duty of Care Licensee
Activities carried out on property — reasonable care
• Known dangerous conditions — duty to warn or make safe
• Duty to inspect — n/a for licensees
Duty of Care Invitee
Activities carried out on property (reasonable care)
Known dangerous conditions — duty to warn or make safe
Owners have a duty to conduct a reasonable inspection to discover non-obvious dangers and make them safe
Scope of Duty for Licensee & Invitee
Limited by the scope of the invitation/license
• Owner’s duty extends only to those areas where one is an
invitee or licensee (e.g., store owner does not owe a duty of
care in an employees-only area)
Breach of Duty
D breaches his duty when his conduct falls short of the
standard of care owed under the circumstances
Ways to Demonstrate a Breach
RPP standard
» Negligence per se — violation of a relevant statute
» Specialized standard of care
» Custom or usage in an industry — not an automatic
breach, but may be relevant
Res Ipsa Loquitor
The very occurrence of the accident causing P’s injuries suggests negligent conduct
» Arises if facts cannot establish a breach of duty because circumstances surrounding the event are unknown to P
Elements of Res Ipsa Loquitor
1) The harm would not normally occur without negligence
2) The type of harm is normally caused from negligence by someone in D’s position
3) The injury-causing instrument was in D’s exclusive control
Actual Cause
Establishes a causal connection between the alleged breach of
duty and the resulting injury
“But-for” test — but for D’s alleged breach of duty, P’s injury
would not have occurred
Substantial Factor Actual Cause
For multiple causes of P’s injury
• D’s breach is the actual cause if it was a substantial factor in
bringing about P’s injury
• Used if multiple causes bring about P’s injury and any one
alone would have caused the injury
» E.g., floods start on D1’s land and D2’s land, both of
which spread to P’s land and destroy P’s house
Burden Shifting Test Actual Cause
For several possible causes of P’s injury
• Used if multiple Ds act (often simultaneously), only one causes P’s injury, but unclear which D caused the injury
» E.g., P is hit by a stray bullet at a busy firing range and it’s unknown which shooter hit P
• Burden of proving actual cause shifts to Ds
» If no D can prove another D was responsible, all D’s are jointly and severally liable
Proximate Cause
Establishes that it is fair under the law to hold D responsible
for P’s injuries
Foreseeability — the measuring stick for proximate cause
• D is liable for the foreseeable outcome of his conduct
Direct causes — if P’s injury is the direct consequence of D’s
negligent conduct, D is liable unless the outcome is unusually
bizarre or unpredictable
Intervening Causes Proximate Cause
Where contributing acts occur
between D’s conduct and P’s injuries
• D is usually liable if the injury could have possibly resulted
even without the intervening forces
• Approach — consider the type of harm being protected against by holding D negligent for his conduct
» If P’s resulting injury is the type of harm being protected against, D’s conduct is the foreseeable,
legal cause of P’s injury
Eggshell Plaintiff Rule
D takes P as he finds him and is
liable for the full extent of P’s injuries, regardless of whether
they are foreseeable
Comparative Negligence
D can establish that P’s injuries are at least partially the result of P’s own negligence
• Court apportions fault between P and D and reduces P’s recoverable damages accordingly
• Partial/modified comparative negligence — P can only recover damages if he was less than 50% at fault
• Pure comparative negligence — P can recover damages even
if he was more than 50% at fault
Contributory Negligence
P is barred from recovery if D
establishes that P’s negligence contributed to her injuries
• Last clear chance defense — P can rebut D’s contributory
negligence claim by alleging D had the last clear chance to
avoid the injury-causing accident
Assumption of Risk
D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act
• Requirements — D must show:
1) P knew or should have known the risk (objective standard)
2) P voluntarily proceeded in the face of that risk
NEID
P may recover for emotional distress resulting from D’s
negligence, but only if P’s emotional distress gives rise to some physical manifestation
Elements NEID
1) D’s negligence results in a close risk of bodily harm to P
2) D’s negligence results in P’s severe emotional distress
3) P exhibits some physical manifestation attributable to her
emotional distress
Strict Liability
P can establish D’s liability for P’s injuries without proving D
acted negligently
Elements for Strict Liability
1) Nature of D’s activity imposes absolute duty to make safe
2) Causation — actual and proximate cause
3) Damages to P’s person or property
Defenses to Strict Liability
Assumption of risk, comparative negligence
Abnormally Dangerous Activities
Abnormally dangerous or ultrahazardous activities or conditions give rise to strict liability for any resulting injuries
Requirements for proving abnormally dangerous activity
1) The condition or activity imposes a severe risk of harm to persons or property
2) It cannot be made reasonably safe
» Cannot be performed without a serious risk of harm
3) The condition or activity is uncommon in the community
Strict Liability Animal Conduct
Wild animals — owners are strictly liable to licensees and
invitees for unprovoked injuries caused by their wild animals
• Domestic animals — no strict liability unless owners know
of their animal’s unusually dangerous propensities
» E.g., if a dog has previously bitten people, its owner is
strictly liable; but the negligence standard applies if this is the first time this dog has bitten anyone
• Trespassers cannot recover — trespassers are generally not
entitled to recovery under strict liability
Elements Product Liability Strict Liability
1) D is a merchant
2) Product is defective
3) Product is unaltered since leaving D’s control
4) P used the product in a foreseeable manner
Who can sue Product Liability Strict Liability
Foreseeable users or bystanders
Manufacturing Defect
When a product departs from its
intended design, causing it to be more dangerous than designed
• P must show that the product failed to perform as safely as
an ordinary consumer would expect
Design Defect
When a product creates an unreasonable risk of danger due to its faulty design
• P must show that a hypothetical alternative design exists that
is safer but has a comparable cost and purpose
Inadequate Warning
When a manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use
• The manufacturer also has a duty to warn of foreseeable
dangers from misuse of the product
Elements of Inadequate Warning
P must show that the product has risks that 1) Cannot be eliminated by redesign, and
2) Consumers would not ordinarily notice
Unavoidably Unsafe Products
1) Proper instructions for use, and
2) Adequate warnings of known dangers
Misrepresentation of Fact
Seller will be liable for any
misrepresentation made in the course of a sale if:
1) Seller made a misrepresentation regarding a material fact concerning the quality or use of the goods
2) Seller intended to induce reliance by buyer
3) The misrepresentation induced justifiable reliance
Nuisance
Tortious invasion of either public or private property rights
• Note — nuisance is a harm caused by tort, not a tort itself
Private Nuisance
A substantial, unreasonable interference with another individual’s use or enjoyment of her property
• Substantial interference — must be offensive, annoying, or
inconvenient to the average person in the community
» Interference is not substantial if P is hypersensitive or using property for a specialized, abnormal purpose
• Unreasonable interference — severity of P’s injury must
outweigh the utility of D’s conduct
Public Nuisance
Unreasonable interference with health, safety, or property rights of the community at large
• Recovery is only available to a private party if she suffered
unique damage not suffered by the public at large
• Govt. usually brings public nuisance suits
Defenses to Nuisance
P cannot recover if he “came to the nuisance” (e.g., bought
property next door) for the sole purpose of bringing suit
• Contributory negligence is available if P asserts a negligence theory and acted negligently in creating the nuisance
Vicarious Liability
When D commits a tort against P and a third person is held
liable due to his relationship with D
Respondeat Superior
Employers are liable for torts
committed by employees within the scope of their employment
• Intentional torts are usually outside the scope, unless:
a) The job requires use of force (e.g., bouncer)
b) The job entails creating friction (e.g., bail bondsman)
c) The intentional tort is done to further the employer’s
goals (e.g., physically breaking up a fight in a store)
Parent-Child Vicarious Liability
Parents are not liable for their children’s torts
• But parents may be separately negligent if they had reason
to know of a child’s propensity to injure or facilitated the tort
Tavernkeepers Vicarious Liability
Businesses serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron
Joint and Several Liability
Arises if the acts of two or more Ds combine to produce a single indivisible injury
• Each D is jointly and severally liable for the entire harm if his
actions were a factor in bringing about P’s injury
• Satisfaction — if P recovers fully from one D, she may not recover more from a jointly liable D
Contribution
D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid
• Not applicable to intentional tort liability
• Contribution is usually imposed in proportion to relative fault
Imdemnity
Involves shifting the entire loss between or amongst Ds
• Available by contract, in vicarious liability situations, or
under strict products liability
