Torts Flashcards
Elements of Intentional Torts
Requires an act
Intent to bring physical or mental effect
Causation
Intent for Torts
Either desire or purpose OR
Knows w/ substantial certainty effect will occur
Transferred Intent Torts
Same tort different person
Different tort same person
Different tort different person
Cannot be invoked w/ conversion or IIED
Causation Intentional Torts
Need not be direct (i.e. setting in motion)
Assault 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 Assault
Touching that causes pain or bodily damage OR
Offends reasonable person’s sense of dignity
Battery Tort
Intentional infliction of
Harmful or offensive
Bodily conduct
Harmful or offensive Battery
Touching that causes pain or bodily damage OR
Offends reasonable person’s sense of dignity
Bodily conduct Battery
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 to 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 False Imprisonment
Can be large and does not have to be stationary
Plaintiff is either aware or harmed False Imprisonment
Must be conscious or, if not
Must be harmed in some way
IIED
Intentional or reckless infliction of
Severe emotional or mental distress caused by
Defendant’s extreme & outrageous conduct
Intent IIED
Desire or
Knows w/ substantial certainty OR
Reckless disregard for high
Probability distress will occur
Severe emotional or mental distress IIED
Beyond reasonable person should endure
Can be evidenced by defendant’s conduct
Hypersensitivity
Only liable if defendant knew of sensitivity
Extreme & outrageous conduct IIED
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
Trespass to Land
Can be brought by anyone w/ legal possession; not just owner Intentional Physical invasion to Land of another Mistake of fact not defense
Physical invasion Trespass to Land
Entry w/ out permission
Remaining w/ out right to be there OR
Placing or projecting object w/out permission
Trespass to Chattel
Intentional Interference w/ use or possession Of chattel Damages Mistake of fact not defense
Interference w/ use or possession Trespass to 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
Conversion
Intentional
Interference w/ use or possession that
So substantial warrants full value
Damages
Interference w/ use or possession that Conversion
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 Torts
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 Torts
Reasonable force to defend
Another when
Reasonably believes that other person
Could have used force to defend himself
Defense of Property Torts
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 Torts
May be express or implied
Scope:
Not beyond what consented to
Express or Implied
Express Consent Defense Torts
Must be willing and knowing
Consent by mistake valid defense
Consent by fraud invalid if essential matter
Implied Consent Defense Torts
Emergency
Injuries arising from athletic contests
Mutual consent to combat
Defense of Necessity Torts
Enters land or interferes with property to
Prevent injury or severe harm
Private or Public
Private Defense of Necessity Torts
Must pay for actual damages caused
Not liable for nominal damages
Landowner may not use force to exclude
Public Defense of Necessity Torts
When necessary to protect
Large number of people from public calamities
Insanity Defense Torts
Generally no defense if able to
Form requisite intent to do so
Negligence Torts
Defendant’s conduct imposes
Unreasonable risk upon another
Resulting in injury
Duty
Breach
Causation
Damages
Duty Negligence
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
Reasonable person under circumstances
Physical characteristics of defendant
Voluntarily intoxicated held to same standard as sober
Not mental characteristics
Special Duties Negligence
Common carrier Innkeepers Automobile drivers Special relationship Causing the danger Volunteer assistance
Common carrier Duty
Highest duty of care w/
Practical operation of business
Innkeepers Duty
Ordinary negligence (majority) Slight negligence (minority)
Automobile drivers Duty
Ordinary care (majority) Refrain from wanton & willful misconduct (minority)
Special relationship Duty based on:
Business or landowner holding premises open to public
Landlords and tenants
Or other special relationships
Volunteer assistance
Must proceed w/ reasonable care
Professional Duties
Required to possess knowledge and skill
Of their profession or occupation
Fireman’s Rule
Risk takers are prohibited from suing or
Injuries stemming from assumed risk of profession
Children Duties
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
Land Duties
Off Premises
Trespassers
Invitee
Licensee
Dutiy to Off Premises Injuries
Not liable for injuries resulting from natural conditions
Duty to Trespassers
Owes no duty to undiscovered trespassers but
Must refrain from willful, wanton, or intentional misconduct
Duty to Discovered Trespasser
Warn or protect against concealed
Dangerous artificial conditions
Duty to Undiscovered Trespasser
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
Duty to Invitees
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 Duties
Make reasonable inspection to
Find hidden dangers AND
Take affirmative action to remedy
Duty to Licensee
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
Negligence Per Se
Criminal or regulatory statute imposes specific duty
Establishes duty and breach
Must still prove causation and damages
Req of Negligence Per Se
Violation of statute
W/ in class of people intended to be protected
Harm statute intended to protect against
If fails, consider regular negligence
Negligence Per Se Excused if:
Compliance creates greater risk of harm
Reasonable under circumstances
Statutory vagueness or ambiguity
Violations by plaintiff deemed comparative negligence
Breach Negligence
When defendant’s conduct fails to
Conform to applicable standard of care
Trad Breach Negligence
What reasonably prudent person would do
Cost-Benefit Analysis Breach Negligence
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 Trends 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
But for defendant’s act,
Injury would not have occurred
Multiple Tortfeasors/Multiple Possible Causation
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
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 Proximate Cause
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
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 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)
Negligence Defenses
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 Negligence: 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 or Abnormally Dangerous Activity
Trepass 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 to 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
Intent Products Liability
Defendant intended consequences or
Knew to substantial certainty to occur
Defenses same as intentional torts
Strict Products Liability Elements
Product was defective
Defect existed when left defendant’s control (actual cause)
Caused injury when used in foreseeable way (proximate cause)
Damages
Types of Strict Products 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)
Damages Products Strict Liability
No recovery for purely economic loss
Defenses to Products Strict Liability
Assumption of risk Comparative negligence BUT NOT If plaintiff’s neg or misuse foreseeable Disclaimers not effective Compliance w/ industry standards NOT defense
Negligence Products
Retailers and wholesalers rarely liable
Manufacturer likely could be
Types of Warranties Products Liabilities
Express
Implied Warranty of Merchantability
Fitness for Particular Purpose
Express Warranty Products Liabilities
Statement of fact or promise concerning goods
Only need to show did not live up to promise
Misrepresentation Products 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 of Misrepresentation Products Liability
Comparative
UNLESS intentional
Types of Privacy Claims
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
Public Nuisance
Substantial, unreasonable interference w/
Health, morals, welfare, safety, or prop rights to community
Only if:
Suffered damage different in kind AND
Not merely in degree
Private Nuisance
Substantial
Unreasonable interference with
Another private individual’s
Use or enjoyment of his land
Substantial Private Nuisance
Interference offensive, inconvenient OR
Annoying to average person
Unreasonable interference Private Nuisance
Harm caused outweighs utility OR
Harm caused greater than
Should be required to bear
Defenses to Nuisance
Legislative authority
Persuasive but not absolute
Assumption of risk and comparative neg IF
Complaint rests on neg theory
Coming to nuisance
Only for sole purpose of
Brining harassing lawsuit
Fraud Misrepresentation
Common law fraud or deceit Misrepresentation of material fact Scienter Intent to induce plaintiff’s reliance Causation Justifiable reliance Damages
Fraud Misrepresentation Justifiable reliance
Obviously false or opinion
Fraud Misrepresentation Damages
Actual economic loss/consequential damages
No nominal
No damages for emotional distress
Negligent misrepresentation
Misrepresentation in business or professional capacity
Acted w/ no reasonable grounds for believing misrep to be true
Intent to induce plaintiff reliance
Causation
Justifiable reliance
Defenses
Damages
Malicious Prosecution
Institution of criminal proceedings against plaintiff
Prosecutors immune from liability
Termination of proceedings in plaintiff’s favor
W/ no probable cause
Improper purpose of accuser in bringing suit
Damages
Abuse of Process
Intentionally misuses legal procedures (i.e. depos, discovery)
For ulterior motive AND
Defendant committed willful act in wrongful manner
Caused damage to plaintiff
Intentional interference with Business Relations
Existence of valid contractual relationship OR valid business expectancy
Defendant knew or should have known of relationship
Intentional interference by defendant inducing breach
Damages
Vicarious Liability Torts
When one person commits tortious act
Against third party AND
Special relationship between tortfeasor & defendant
Respondeat superior
When employee commits tort
Employee is one who works subject to
Close control of person who hired him
During course and scope of employment
Acting w/ intent to
Further employer’s business purpose
Even if act itself forbidden
Employer liable
Independent Contractor Torts
One who hires independent contract
Generally not liable UNLESS
Employer neg in hiring them OR duty non-delegable b/c work occurs in public place OR involves inherently dangerous activity
Multiple Defendants
Jointly and severally liable where
Two or more negligent acts combine for cause
Contribution for Multiple Defendants
Allows defendant who
Pays more than his pro rata share
To obtain reimbursement for
Amount paid over his share
Fed Gov’t Immunity Torts
Traditionally immune but
Now limited by FTCA
Waived for intentional torts
Committed by law enforcement
State Gov’t Immunity Torts
Most states have waived immunity
Wrongful Death
Recovery for pecuniary injury resulting to spouse AND
Next of kin for wrongful death AND
Allows for loss of support and consortium
Defamation
Defamatory Statement
Of/Concerning Plaintiff
Published to 3rd Party
Defamatory Statement
False statement that holds plaintiff
Up to contempt or public ridicule
Opinions or true statements NOT
Advance affect on rep
Of/Concerning Plaintiff
Plaintiff must be identifiable
Published to 3rd Party
Heard/Understood
Republication identifying OG
Speaker uncertainty to statement
May still satisfy element
Types of Defamation
Libel (Written)
Slander per se
Slander
Libel (Written)
Damages Presumed
Slander per se
CLUB: Crime Loathsome disease Unclean woman Business/Profession Damages Presumed
Slander
Must show special damages
Private Person/Public Concern
Falsity Actual Malice OR Knowledge of falsity or Reckless disregard for truth By clear and convincing evidence Negligence AND Actual Injury
Public Figure/Public Official
Falsity AND Actual malice Knowledge of falsity or Reckless disregard for truth By clear and convincing evidence Damages Presumed
Defenses to Defamation
Truth
Absolute Privilege
Qualified Privilege
Truth Defense to Defamation
Don’t have to defend if falsity is element
Absolute Privilege Defense to Defamation
Remarks during judicial or legislative proceedings
By Fed gov’t and state officials
Between spouses
Qualified Privilege Defense to Defamation
Affecting important public interest
In interest of defendant OR
Third party
Can be lost if defendant abuses w/ actual malice
