Torts Flashcards
Req of Intentional Torts
Act
Intent
Causation
Damages
Intent to bring physical or mental effect
Either desire or purpose OR
Knows w/ substantial certainty effect will occur
Transferred Intent Tort
Same tort different person
Different tort same person
Different tort different person
Cannot be invoked w/ conversion or IIED
Causation Int Torts
Need not be direct (i.e. setting in motion)
Assault Req Tort
Intentional causing of an
Apprehension of an
Imminent
Harmful or offensive contact
Apprehension Assault
Must be reasonable
Must be aware
Imminent Assault
Apparent present ability to
Carry out threat
Not future or hypothetical harm
Harmful or offensive contact
Touching that causes pain or bodily damage OR
Offends reasonable person’s sense of dignity
Battery Req Tort
Intentional infliction of
Harmful or offensive
Bodily conduct
Bodily Conduct Battery Tort
Can be indirect including contact w/
Object closely identified w/ plaintiff’s body
False Imprisonment
Intentionally causes
Plaintiff to be confined, restrained or detained to
Bounded area w/ no reasonable means of escape
Plaintiff is either aware or harmed
Plaintiff to be confined, restrained or detained False Imprisonment
Use of physical force, threats, duress,
Invalid legal authority OR refusing safe means of escape
Shopkeeper’s privilege
For reasonable time and manner
Detain suspected shoplifter
Typically 10-15 minutes
Bounded area
Can be large and does not have to be stationary
Plaintiff is either aware or harmed
Must be conscious or, if not
Must be harmed in some way
Req IIED
Intentional or reckless infliction of
Severe emotional or mental distress caused by
Defendant’s extreme & outrageous conduct
Intentional or reckless infliction IIED
Desire or
Knows w/ substantial certainty OR
Reckless disregard for high
Probability distress will occur
Severe emotional or mental distress caused by
Beyond reasonable person should endure
Can be evidenced by defendant’s conduct
Hypersensitivity
Only liable if defendant knew of sensitivity
Defendant’s extreme & outrageous conduct
Beyond all possible bounds of decency
Usually if defendant in position of
Authority or influence OR
Plaintiff member of group w/ heightened sensitivity
3rd Party Liability IIED
Plaintiff physically present & known by defendant AND
Close relation to other person OR
Suffers bodily harm as result of distress
Req of Trespass to Land
Can be brought by anyone w/ Legal possession; not just owner Intentional Physical invasion to Land of another
Physical Invasion Trespass to Land
Entry w/ out permission
Remaining w/ out right to be there OR
Placing or projecting object w/out permission
Req of Trespass to Chattel
Intentional
Interference w/ use or possession
Of chattel
Damages
Interference w/ use or possession Chattel
Owner precluded from using or possessing
Typically temporary
Damages Trespass to Chattel
Actual damages
Loss of value caused by loss of use OR
Cost of repair
Req of Conversion
Intentional
Interference w/ use or possession that
So substantial warrants full value
Damages
Interference w/ use or possession that
Sells to 3rd party
Refuses to give back OR
Destroys
So substantial warrants full value Conversion
Courts take into account: Duration & extent of interference Intent to assert right inconsistent w/ Rightful possess w/ good faith Expense or inconvenience to plaintiff Extent of harm
Damages Conversion
FMV at time of conversion
Self Defense Tort
Reasonable force to prevent Threatened harm or offensive contact AND Threatened confinement or imprisonment Deadly force Only allowed if defendant in Danger of death or SBI Degree of force Only degree necessary to Prevent threatened harm
Defense of Others Tort
Reasonable force to defend
Another when
Reasonably believes that other person
Could have used force to defend himself
Defense of Property Tort
Reasonable force to defend against Tortious harm to property Warning required Unless appears futile or dangerous Deadly force Only if non-deadly force will not suffice AND Reasonably believes danger of death or SBI NO mechanical devices (i.e. Home Alone)
Recapture of Chattel
Reasonable force to regain possession if:
Fresh pursuit
NO deadly force
Consent Defense Tort
May be express or implied
Scope
Not beyond what consented to
Express Consent Defense Tort
Must be willing and knowing
Consent by mistake valid defense
Consent by fraud invalid if essential matter
Implied Consent Defense Tort
Emergency
Injuries arising from athletic contests
Mutual consent to combat
Necessity Defense Tort
Enters land or interferes with property to
Prevent injury or severe harm
Private Necessity Defense Tort
Must pay for actual damages caused
Not liable for nominal damages
Landowner may not use force to exclude
Public Necessity Defense Tort
When necessary to protect
Large number of people from public calamities
Insanity Defense Tort
Generally no defense if able to
Form requisite intent to do so
Negligence
Defendant’s conduct imposes
Unreasonable risk upon another
Resulting in injury
Req of Negligence
Duty
Breach
Causation
Damage
Duty Neg
Act as reasonable person Who is it owed to Foreseeable plaintiffs (majority) In the zone of danger Everyone (minority) Including unforeseeable
Standard of Care Duty Neg
Reasonable person under circumstances
Physical characteristics of defendant
Voluntarily intoxicated held to same standard as sober
Not mental characteristics
Special Duties with Affirmative Duty to Act
Common carrier Innkeepers Automobile drivers Special relationship Causing the danger Volunteer assistance
Common carrier Duty
Highest duty of care w/
Practical operation of business
Innkeeper Duty
Ordinary negligence (majority) Slight negligence (minority)
Automobile drivers Duty
Ordinary care (majority) Refrain from wanton & willful misconduct (minority)
Special relationship Duty
Business or landowner holding premises open to public
Landlords and tenants
Or other special relationships
Volunteer Assistance Duty
Must proceed w/ reasonable care
Professional Duty
Required to possess knowledge and skill
Of their profession or occupation
Fireman’s Rule Prof Duty
Risk takers are prohibited from suing or
Injuries stemming from assumed risk of profession
Children Duty
Conform to conduct of child of like
Age, intelligence, and experience
Exception
Child engaged in adult activity (i.e. driving)
Bailor Duties
For gratuitous, bailor must:
Inform of known, dangerous defects in chattel
Bailment for hire:
Inform of defects of which should know
Bailee Duties
Sole benefit for bailor: Standard is low Sole benefit for bailee: Higher standard of care Mutual benefit: Ordinary standard of care
Off Premises Injuries
Not liable for injuries resulting from natural conditions
Categories for Duties Owed Land
Trespasser
Invitee
Licensee
Trespasser Duty
Owes no duty to undiscovered trespassers but
Must refrain from willful, wanton, or intentional misconduct
Discovered Trespasser Duty
Warn or protect against concealed
Dangerous artificial conditions
Undiscovered Trespasser Duty
No duty unless owner should Reasonably have known trespassers Entering land Then use reasonable care No duty to inspect
Attractive Nuisance
Liable to trespassing children if
Artificial condition poses
Unreasonable risk of SBI AND
Because of age, children cannot appreciate danger or do not find burden of eliminating danger
Slight compared to risk of harm AND owner fails to exercise reasonable care
Invitee Duty
One who enters land in response to Invitation by owner to do Business w/ owner OR Public invitee for land open To public at large
Non-Delegable Duty
Make reasonable inspection to
Find hidden dangers AND
Take affirmative action to remedy
Licensee Duty
One who enters land w/ owner’s consent For his own purpose (social guest) Duty to: Warn to all known dangerous conditions that create unreasonable risk of harm that unlikely to discover AND to use Reasonable care in conducting activities NO duty to repair or inspect
Breach Neg
When defendant’s conduct fails to
Conform to applicable standard of care
Trad Breach Neg
What reasonably prudent person would do
Cost-Benefit Analysis Breach Neg
Unreasonableness of risk vs
Utility of act
Res Ipsa Loquitur
Establishes breach in situations where
Event creates an inference defendant likely negligent
Elements of Res Ipsa Loquitur
Ordinarily not occur in absence of negligence
Cause w/ in exclusive control
Not due to action by plaintiff
Modern Trend Res Ipsa Loquitur
Shifts burden of medical holding all jointly and severally liable
Products liability when came from upstream
Generous interpretation of exclusivity
Actual Causation Neg
But for defendant’s act,
Injury would not have occurred
Multiple Tortfeasors/Multiple Possible Actual Cause Neg
Substantial factor test
Concurrent tortfeasors acting in concert
Alternate causation
Substantial factor test
More than one at fault and
Conduct combined caused harm
Negligence was substantial factor to harm
Concurrent tortfeasors acting in concert
Joint and several liability
Alternate causation
Two acts of negligence, only one could
Cause injury but unknown
Burden shifts to defendants to show not them
Proximate Causation Neg
Reasonable foreseeability
Liable for all harm reasonably foreseeable
Eggshell-skull plaintiff
Liable for unforeseen harm that may be
Increased b/c of plaintiff’s pre-existing
Physical or mental conditions or vulnerability
Intervening Causes
Foreseeable, then still liable:
I.e. medical malpractice or negligence by rescuers
Unforeseeable, generally not liable if broke chain of causation:
I.e. fender bender, get hits by another car
Collateral Source Rule Torts
Benefits from outside sources (P’s insurance) not
Credited against liability BUT
D’s insurance is
Modernly statutes have eliminated or modified
Negligent infliction of emotional distress (NIED)
Liable when defendant engages in
Negligent conduct that causes plaintiff to
Suffer serious emotional distress
Types of Negligent infliction of emotional distress (NIED)
Actual impact or threat OR Zone of danger OR Bystander but must be Related and Personally witnessed OR Special relationship (i.e. mishandling a corpse or misdiagnosis)
Defenses to Negligence
Contributory negligence
Comparative Negligence
Assumption of Risk
Contributory negligence
Negligence on part of plaintiff
Bars recovery
Comparative Negligence
Negligence on part of plaintiff but Does not bar recovery Pure: Reduces in proportion to fault Partial Comparative: Reduces if less than 51% Bars if more than 50%
Assumption of Risk
Bars if assumed risk of damage where knew of risk and voluntarily consented
Comparative fault:
May reduce recovery but does not bar
Strict Liability
Held liable for activities regardless of
Precautions taken to prevent harm
Animals
Abnormally Dangerous Activities
Trespass of Animal Strict Liability
Liable if reasonably foreseeable damage
Wild Animals Strict Liability
Not custom to keep type of animal
S/L despite precautions so long as arises from dangerous propensity of animal OR which owner knows about
S/L for fearful reaction of unrestrained animal
No S/L of undiscovered trespasser
EXCEPT vicious watchdog
Domestic animals Strict Liability
S/L if knows or reason to know of dangerous propensities and harmful results
Public stray, then negligence
Abnormally Dangerous Activities
High degree of risk or serious harm
Cannot be eliminated by exercise of reasonable care
Danger outweighs activity’s value to community
Not appropriate for location
Not common activity
Defenses of Strict Liability
Assumption of risk
NOT contributory negligence
Products Liability
Liability of seller of tangible item, which
Because of defect causes injury to purchaser
User or bystander based on Intent
Intent Products Liability
Defendant intended consequences or
Knew to substantial certainty to occur
Defenses same as intentional torts
Product Strict Liability
Manufacturing Defect
Design Defect
Failure to Warn
Manufacturing defect
Product deviated from intended design
Design Defect
Consumer Expectation Test: Less safe than ordinary consumer would expect Risk-utility Test: If risks outweigh benefits Must show reasonable alternative design
Failure to Warn
Foreseeable risk NOT Obvious to ordinary user Prescription drugs Warning goes to doctor UNLESS Marketed directly to consumers (more common now)
Req of Strict Products Liability
Product Defective
Defect existed when left defendant’s control (actual cause)
Caused injury when used in foreseeable way (proximate cause)
Damages
Defenses to Strict Products Liability
Assumption of risk Comparative negligence BUT NOT If plaintiff’s neg or misuse foreseeable Disclaimers not effective Compliance w/ industry standards NOT defense
Products Negligence
Retailers and wholesalers rarely liable
Manufacturer likely could be
Products Warranty
Express
Implied Warranty of Merchantability
Fitness for Particular Purpose
Express Warranty Products
Statement of fact or promise concerning goods
Only need to show did not live up to promise
Defenses to Products Warranty
Assumption of risk
Comparative/contributory negligence
Unless neg/misuse foreseeable
Failure to give notice of breach under UCC
Misrepresentation Prod Liability
Liable for misrepresentation of fact when
Statement was material fact concerning
Quality or uses of goods AND
Seller intended to induce reliance buyer AND
Buyer did in fact rely
Must still prove causation and damages
Defenses to Misrepresentation Prod Liability
Comparative
UNLESS intentional
Privacy Claims
Only for individuals & terminates upon death
Misappropriation
Intrusion into Seclusion
False Light
Public Disclosure of Private Facts
Misappropriation
Unauthorized use of plaintiffs
Picture or name for
Defendant’s commercial advantage
Intrusion into Seclusion
Intrusion into private aspect of plaintiff’s
Life in private place
Highly objectionable to
Reasonable person
False Light
One attributes to plaintiff views he does not hold
Objectionable to reasonable person under circum
Publication is public
If public interest, malice required
Truth not defense
Public Disclosure of Private Facts
Public disclosure of private facts that
Not matter of legitimate public concern
Objectionable to reasonable person
