Torts Flashcards
Strict Liability Types
o Abnormally dangerous activities
o Animals—wild and domestic
o Strict Products Liability
Invasion of Privacy Types
o Misappropriation
o Intrusion upon seclusion
o False light
o Public disclosure of private facts
Who is owed a duty?
All foreseeable plaintiffs
Majority view (Cardozo)—plaintiffs within the zone of foreseeable harm
Minority view (Andrews)—anyone who is harmed
Affirmative duty to act
Generally, there is no affirmative duty to aid or rescue someone.
Assumption of duty—if someone starts to aid or rescue, must act with reasonable ordinary care to not increase the risk of harm
Psychotherapists’ duty to warn—if a patient makes credible threats of physical violence, under a duty to warn the intended victim
Possessors of land
Modern Rule—must exercise reasonable care under the circumstances to all land entrants, except trespassers
Traditional Approach - whether plaintiff as a trespasser, invitee, or licensee.
• Trespasser—on the land without consent or permission
o Duty: to refrain from willful, wanton, reckless, or intentional misconduct
• Invitee—invited as member of the public or a business visitor
o Duty: to inspect and discover unreasonably dangerous conditions and protect the invitee from them
• Licensee—enters with express or implied permission for a specific purpose
o Duty: to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities
Attractive Nuisance
- An artificial condition exists in a place where the owner knows or should know that children are likely to trespass;
- The condition imposes and unreasonable risk of serious bodily injury;
- The children cannot appreciate the danger due to their youth;
- The burden of eliminating the danger is slight compared with the risk of harm; and
- The land possessor failed to exercise reasonable care to protect children
Duties of children
Duty to act as a reasonable child of the same age
If engaged in an adult activity (e.g., driving a car), duty to act as a reasonably prudent adult
Custom
Evidence of an industry or community custom is admissible as evidence of the relevant standard of care
Evidence of custom is not conclusive
Res Ipsa Loquitur
Arises when there is no direct evidence of the defendant’s negligent conduct
ALLOWS (permissible) the trier of fact to infer that there was negligent conduct when plaintiff proves:
a) The type of accident would not normally occur absent negligence;
b) The injury was caused by an agent or instrumentality within the exclusive control of the defendant; and
c) The injury was not due to the plaintiff’s own actions.
Actual Cause Types
- But-For
- Substantial Factor
- Alternative Causation (rare)
Substantial Factor Rule
- Arises when there are multiple causes of the harm and each alone would have been a factual cause of the injury
- The conduct of each defendant is a cause in fact if it was a substantial cause of the injury
Alternative Causation
- Arises when the plaintiff’s harm is caused by multiple defendants (2–5) and each defendant’s conduct was individually tortious
- The burden of proof can shift to the defendants to prove that each was not the cause in fact
Negligent Infliction of Emotional Distress (NIED)
Zone of Danger NIED:
- D negligent
- P within the zone of danger of the threatened physical impact
- P has physical manifestation of the emotional distress as result
Bystander NIED:
A bystander who is OUTSIDE the zone of danger may recover for NIED if the plaintiff:
1. closely related to a person harmed by the defendant’s negligence;
2. Was present at the scene of the injury; and
3. Personally observed the injury.
4. Must have some physical manifestation of the emotional distress as result
Contributory Negligence
If the plaintiff’s negligence contributed to his harm, it was a complete bar to recovery
Comparative Fault (modern rule)
o Pure comparative negligence (minority rule)—plaintiff’s recovery is reduced by the amount of the plaintiff’s fault, regardless of how at fault the plaintiff is
o Modified or partial comparative negligence (majority rule)—plaintiff’s recovery is reduced by the amount of the plaintiff’s fault, but the plaintiff cannot recover if he is more at fault than the defendant
Abnormally Dangerous Activity
Strict liability for personal injuries and property damage caused by the activity.
1• high risk of harm
2• not commonly found in the community,
3• has a risk that cannot be eliminated with due care
Defenses—Assumption of the Risk (full or partial defense)
Wild Animals
- Strict liability
- Domestic animals if the owner knows or has reason to know of a dangerous propensity
- Plaintiff must also show causation and damages
Strict Products Liability (General)
Defendant in the BUSINESS of selling a commercial product of that kind may be strictly liable for a defective product causing foreseeable injuries to a plaintiff or property
- manufacturer
- distributor, and
- retailer
Types:
- Failure to Warn
- Defect in Design
- Manufacturing Defect
If NOT strict, ALWAYS assess whether NEGLIGENT!!
Failure to Warn
Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings
can be an insufficient warning or NO warning at all
Exam Tip: Read the exam facts carefully. The defendant might provide a warning about one type of harm, but it is insufficient to warn about the type of harm that actually occurred.
Design Defect
Consumer-expectation test—plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer
Risk-utility test—plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably dangerous.
Exam Tip: Look for facts in the exam question about the availability of alternative designs and the cost of these alternative designs.
Manufacturing Defect
A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff
The test is whether the product conforms to the defendant’s own specifications.
one-off defect (one batch)
Product Liability Causation
Actual Causation
The product must have been defective when it left defendant’s control and the defect was the actual cause of the harm.
Proximate Causation
The defect causing the plaintiff’s injuries occurred when the product was being used in an intended or reasonably foreseeable way.
A defendant may still be liable if the plaintiff misuses the product, as long as the misuse is foreseeable.
Product Liability Damages
NO sole economic recovery!
Product Liability Defenses
Assumption of the Risk Contributory Fault (maybe...generally NOT a defense)
Express Warranty
o A promise or guarantee made by the defendant about the product
o If the product does not meet this warranty, the defendant has breached this warranty and plaintiff can recover damages.
Defamation
o Libel (written)—general damages are PRESUMED o Slander (oral)—damages NOT presumed (unless slander per se)
A plaintiff may bring an action for defamation if the defendant’s defamatory language:
o FALSE information*
o Is of or concerning the plaintiff;
o Is published to a third party who understands its defamatory nature; and
o Damages the plaintiff’s reputation*
EXPLAIN HOW its defamatory to plaintiff –diminishes the respect, esteem, or goodwill towards plaintiff.
- constitutional requirements
Libel
written statements—general damages are presumed
Slander
oral statements—damages are not presumed (unless slander per se)
Slander per se
statements involve professional reputation, disease, crimes of moral turpitude, or unchaste behavior
Constitutional Requirement Defamation: Malice
defendant either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement
If plaintiff is a public official or figure, must also prove that the defendant acted with actual malice
If the plaintiff is a private individual and the defendant’s statement involves a matter of public concern, the plaintiff is required to prove that the defendant acted with negligence or actual malice.
Constitutional Requirement Defamation: Limits on Damages
A public official or figure or a private individual and matter of public concern—plaintiff must prove ACTUAL damages
A private individual who can show actual malice may also recover punitive damages.
Defamation Defenses
- Truth
- Consent
- Absolute Privilege
o Used for remarks during judicial or legislative proceedings, between spouses, or in required publications
o CANNOT be lost - Qualified Privilege
o Affects an important public interest or is in the interest of defendant or a third party
o CAN be lost if exceeds the scope of the privilege OR the speaker acted with malice
Misappropriation
o The unauthorized use of plaintiff’s name, likeness, or identity
o for defendant’s advantage (commercial or otherwise)
o Plaintiff did NOT consent
o Plaintiff injury (Not compensated etc)
Intrusion upon Seclusion
Defendant’s acts of intrusion into plaintiff’s private affairs are objectionable to a reasonable person
*just offensive..NOT highly offensive
False Light
o defendant published facts about plaintiff or attributed views or actions to plaintiff
o that place him in a false light and
o are HIGHLY offensive to a reasonable person
Public Disclosure of Private Facts
o publication would be HIGHLY offensive to a reasonable person, and
o not of legitimate concern to the public
Battery
o harmful or offensive contact (objective standard) with the plaintiff’s person (or anything connected to it)
o intent by defendant to cause the touching (transferred intent applies),
o causation
Exam Tip: The intent requirement is met if the defendant has the desire to bring about the harmful contact OR the defendant engaged in an action knowing that the harm was substantially certain to occur.
Assault
o Requires an act or threat (mere words not enough)
placing the plaintiff in in reasonable apprehension of imminent harmful or
o offensive contact with his person,
o intent by defendant to place plaintiff in apprehension (transferred intent applies),
o causation
Intentional Infliction of Emotional Distress (IIED)
Extreme and outrageous conduct by the D
Causing severe emotional distress to P and
Intent by the D to cause distress. (beyond decency)
Liability to third parties:
Defendant can be liable if he distresses a member of victim’s immediate family
Defendant can be liable if he distresses a BYSTANDER (not family) if the distress results in bodily injury to the bystander
False imprisonment
o The intentional confinement or restraint of plaintiff (e.g., physical barriers or force, threats, invalid use of legal authority, duress) for any amount of time.
o No reasonable means of safe escape.
[o Actual damages if plaintiff was NOT aware of confinement]
Shopkeeper’s Privilege (Defense)
If a shopkeeper reasonably suspects plaintiff of stealing, he can detain the plaintiff for a reasonable amount of time in a reasonable manner.
Trespass to chattels (tangible personal property)
o Interference with the P’s possession of her chattel (use, interference, or intermeddling)
o Ds intent to perform THE ACT THAT INTERFERES with the possession (transferred intent applies)
o causation
o damages
Conversion
o Requires SERIOUS interference with P’s possession of her chattel,
o D’s intent to perform the act THAT INTERFERES with the possession (transferred intent does NOT apply),
o causation
o damages.
Trespass to land Defenses: Private Necessity
Allows a person to enter plaintiff’s land to protect her own person or property from harm
Responsible for actual damages caused!!
Trespass to land Defenses: Public Necessity
Allows a person to enter plaintiff’s land to prevent an imminent public disaster
NOT liable for damage if: (1) actions were reasonable OR (2) reasonable belief that necessity existed (even if the entry was not necessary)
Private Nuisance
- A SUBSTANTIAL (offensive to a reasonable person) and
- UNREASONABLE (balance the interests of the plaintiff and defendant)
- interference with another’s use or enjoyment of his land
Abatement (eliminating the nuisance)
1) Private Nuisance
• Reasonable force is permitted to abate the nuisance
• Plaintiff must give NOTICE of the nuisance and defendant must refuse to act before action can be taken
2) Public Nuisance
Unless plaintiff has a unique injury, public nuisance may be abated ONLY by public authority
Vicarious Liability
Employee v. Independent Contractor
o Generally, an employer is liable for the torts of an employee, but not for the torts of an independent contractor.
o The more control the employer exercises, the more likely the person is an employee
o Employer is liable for an employee’s torts committed within the scope of employment (can include intentional torts if within scope of employment)
Note: Might be liable for independent contractor’s torts IF non-delegable duties or inherently dangerous activities
NIED
- D was negligent
- P was in Zone of Danger
- Physical Manifestations of stress (unlike corpse)
