Torts Flashcards
Battery
A harmful or offensive contact with P’s person intentionally caused by D
Person includes things connected to the person
Contact = offensive when not expressly or impliedly consented to by P
Assault
Intentional creation by D of a reasonable apprehension of immediate harmful or offensive contact to P’s person
Apprehension doesn’t mean fear
Mere words are not sufficient
False Imprisonment
An intentional act or omission by D that causes P to be confined or restrained to a bounded area
Confinement/restraint includes threats of force, false arrests, failure to provide a means of escape when under duty to do so
Ability escape must be reasonable (not disgusting, humiliating, etc.)
Intentional Infliction of Emotional Distress
Intentional extreme and outrageous conduct by D that causes P to suffer severe emotional distress
Physical injury not required
Trespass to Land
An intentional act by D that causes a physical invasion of P’s real property
D need not have intended to commit a trespass, only to do the act of entering onto land
Trespass to Chattels
An intentional act by D that causes an interference with P’s right of possession in a chattel, resulting in damages
Typically involves damage/disposition of P’s chattel
D need not have intended to commit trespass to the chattels, only to do the act that causes interference with chattel
Conversion
An intentional act by D that causes a serious interference with P’s right of possession in a chattel
D need not have intended conversion, only to do the act that constitutes a conversion
Interference with chattel is so serious as to require D to pay the full value of the chattel (in effect, a forced sale)
Doctrine of Transferred Intent
Intent will transfer from intended tort to committed tort, or from intended victim to actual victim
Both tort intended and tort committed must be battery, assault, false imprisonment, trespass to land, or trespass to chattels
Consent as a Defense
May be express or implied (apparent or implied by law)
P must have capacity to consent and D must not exceed the bounds of the consent
Self-Defense, Defense of Others, Defense of Property
D must reasonably believe that a tort is being or about to be committed against himself, a third person, or his property
Only reasonable force may be used
Reasonable Force - Deadly Force Appropriate?
Deadly force is permitted if reasonably believed to be necessary to prevent serious bodily injury
Deadly force is NEVER permitted to defend only property
Shop-Keeper’s Privilege
Permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods
Necessity as a Defense
D whose property tort was justified by a public necessity has an absolute defense
If justified only be PRIVATE necessity, defense is QUALIFIED (D must pay for damage caused)
Privilege trumps an property owner’s right to defend his property
Defamation at Common Law
Defamatory language concerning P published to a third person that causes damage to P’s reputation
Damage will be presumed IF defamation is libel (written) or if it is slander (spoken) WITH one of four per se categories
a) Business or profession;
b) Loathsome disease;
c) Crime of moral turpitude; or
d) Unchastity of a woman
Defamation of a Public Official/Concern
Apply constitutional rules if P is a public official or figure, or if the defamation involves a matter of public concern
1) P must prove statement was false;
2) Public officials must prove “actual malice”
3) Private figures suing on a matter of public concern must show (i) at least negligence as to truth or falsity, and (ii) actual injury (no presumed damages)
Actual Malice for Defamation
Statement was made with knowledge that its falsity or reckless disregard of its truth or falsity
Defenses to Defamation (3)
a) Truth (when constitutional requirement of proof of falsity does not apply)
b) Absolute privilege for statements in judicial, legislative, or executive proceedings
c) Qualified privilege for matters in the interest of the publisher and/or the recipient (may be lost if the statement is outside the scope of the privilege or made with actual malice)
Types of Invasion of Privacy (4)
1) Appropriation of P’s picture or name
2) Intrusion on P’s affairs or seclusion
3) Publication of facts placing P in a false light
4) Public disclosure of private facts about P
Appropriation of P’s Picture or Name
Type of invasion of privacy
Unauthorized use of P’s picture or name for D’s commercial advantage
Limited to the advertisement or promotion of products or services
Intrusion on P’s Affairs or Seclusion
Type of invasion of privacy
An act of prying or intruding on P’s private affairs or seclusion that would be highly offensive to a reasonable person
Publication of Facts Placing P in a False Light
Type of invasion of privacy
Publication of facts about P putting her in a false light in the public eye in a way that would be highly offensive to a reasonable person
Actual malice must be shown if the publication is in the public interest
Public Disclosure of Private Facts About P
Type of invasion of privacy
The public disclosure of private information about P such that the public disclosure would be highly offensive to a reasonable person
Defenses to Invasion of Privacy
1) Consent
2) Absolute or qualified privileges
Types of Misrepresentation
1) Intentional misrepresentation (fraud)
2) Negligence misrepresentation
Intentional Misrepresentation
Misrepresentation by D with
(i) SCIENTER (knowledge of falsity or reckless disregard as to truth/falsity);
(ii) INTENT to induce RELIANCE;
(iii) Causation (actual reliance on misrepresentation);
(iv) Justifiable reliance; and
(v) Damages
D generally has no duty to disclose material facts, but may be liable for active concealment
Negligent Misrepresentation
Misrepresentation by D
(i) in a BUSINESS or professional capacity;
(ii) Breach of duty to P;
(iii) Causation (actual reliance on misrepresentation);
(iv) Justifiable reliance; and
(v) Damages
D owes a duty only to those whom the misrepresentation was directed or those who D knew would rely on it
Interference with Business Relations
(i) A valid contractual relationship or business expectancy of P and third party;
(ii) D’s knowledge of the relationship;
(iii) Intentional interference by D - including a breach or termination of the relationship; and
(v) Damages
D’s conduct may be privileged if it is a proper attempt to obtain business or protect D’s interests
Malicious Prosecution
(i)Initiating a criminal proceeding;
(ii) Against P
(iii) Ending in P’s favor
(iv) Absence of probable cause for the prosecution;
(v) Improper purpose (malice); and
Damages
Elements of a Prima Facie Case of Negligence
- DUTY of care to conform to a specific standard of conduct;
- BREACH of that duty;
- Breach of duty was the ACTUAL and PROXIMATE CAUSE of P’s injury; and
- P suffered DAMAGES to person or property
General Standard of Care
Reasonable person/reasonably prudent person (RPP)
Average mental ability, but the same physical characteristics of D
Standard of Care for Professionals
Must exercise knowledge and skill or a member of the profession in good standing
Standard of Care for Children
Must conform to standard of care of a child of like age, education, intelligence, and experience
Adult standard applies if child is engaged in an adult activity
Standard of Care for Landowners
Depends on the status of the person injured on the property
Standard of Care Due to Trespassers
Landowner owes NO duty to UNDISCOVERED trespassers
For DISCOVERED and ANTICIPATED trespassers, landowner owes a duty to WARN of or MAKE SAFE know HIGHLY dangerous ARTIFICIAL conditions IF not obvious to the trespasser
Standard of Care Due to Invitees
Invitees are those entering as members of the PUBLIC or for a purpose connected to the BUSINESS of the landowner
Landowner’s duty is same as for licensees, but with additional duty to reasonably INSPECT for dangerous conditions
Standard of Care Due to Licensees
Licensees are those who come onto the land with EXPRESS or IMPLIED PERMISSION, but for their OWN purpose (includes social guests)
Landowner’s duty is the same as for discovered trespassers, except that it applies to ALL dangerous artificial AND natural conditions
Licensees
Licensees are those who come onto the land with EXPRESS or IMPLIED PERMISSION, but for their OWN purpose (includes social guests)
Invitees
Invitees are those entering as members of the PUBLIC or for a purpose connected to the BUSINESS of the landowner
Criminal Statute as a Standard of Care
A criminal statute may serve to establish a specific standard of care in place of the general standard of ordinary care if:
a) P is within the CLASS OF PERSONS that the statute was intended to protect; and
b) The statue was designed to prevent the TYPE OF HARM suffered
Attractive Nuisance Doctrine
Ordinary reasonable care standard applies for conditions on land that injure children
Negligent Infliction of Emotional Distress (NIED)
D breaches duty to P by creating a risk of physical injury and P suffers emotional distress as a result
P must be within the “zone of danger” and ordinarily must suffer physical symptoms from the distress
Bystander Exception to NIED
D breaches a duty to a bystander NOT in the “zone of danger” who (i) is closely related to the injured person, (ii) was present at the scene of the injury, AND (iii) personally observed or perceived the event
Breach of Duty
D breached applicable duty of care = question for trier of fact
Res Ipsa Loquitur
“The thing speaks for itself”
Fact that injury occurred may create inference that D breached his duty (type of thing that usually wouldn’t occur unless someone was negligent)
Res Ipsa Loquitur Requirements
1) The accident causing the injury is a type that would NOT have occurred ABSENT negligence;
2) The negligence is ATTRIBUTABLE to D (usually because D is in EXCLUSIVE control of the instrumentality causing the injury); and
3) The injury was not attributable to P’s own conduct
Types of Causation
1) Actual causation
2) Proximate causation
Actual Causation
Usually established by “but for” test
Act is actual cause of injury when it would not have occurred BUT FOR the act
Joint Causation
Type of actual causation
When two acts bring about an injury and EITHER ONE ALONE would have sufficed, EITHER of the acts is an actual cause of the injury if it was a “SUBSTANTIAL FACTOR” in bringing it about
Alternative Causation
Type of actual causation
When two acts were negligent, but it is NOT CLEAR which was the actual cause of the injury, the BURDEN SHIFTS to EACH of the negligent actors to show that his negligent act was not the actual cause
Proximate Cause
D is liable for ALL harmful results that are the normal incidents of and within the increased risk from D’s actions
Limits liability for unforeseeable consequences of D’s actions
Foreseeable intervening causes do not cut off D’s liability for the consequences of his negligent act
Indirect Cause Cases
An INTERVENING FORCE occurs after D’s negligent act and combines with it to cause the injury
Foreseeable intervening causes (such as negligent rescue) do not cut off D’s liability for the consequences of his negligent act
Damages
P must show actual harm or injury to complete prima facie case for negligence
Damages P Can Recover for Negligence
P can recover economic damages (e.g.: medical expenses) and non-economic damages (e.g.: pain and suffering)
Eggshell Victim Doctrine
Tortfeasor takes the victim as he finds him
Extent or severity of the harm need NOT have been foreseen
Defenses to Negligence (3)
1) Contributory negligence
2) Comparative negligence
3) Assumption of risk
Contributory Negligence
Defense to negligence
Standard of care required of P to avoid injury is judged using RPP standard
Comparative Negligence - Types
Pure and partial
Almost all states have rejected rule that P’s contributory negligence will totally bar her recovery
Pure Comparative Negligence
Defense to negligence
Negligent P can recover damages reduced by the percentage of her fault, EVEN IF she was PRIMARILY at fault
Partial Comparative Negligence
Defense to negligence
Negligent P can recover reduced damages as long as her fault is not above a certain level, usually NOT ABOVE 50%
If it is, she is barred from recovering
Assumption of Risk
Defense to negligence
Arises when P is AWARE of a risk and VOLUNTARILY assumes it (either expressly or impliedly)
In comparative negligence states, most implied assumption of risk situations are analyzed under comparative negligence rules
Strict Liability
Imposes liability on D for P’s injury even though D was not negligent
Strict Liability - Situations
1) Owner of a wild animal, or an abnormally dangerous domestic animal for injuries caused by the animal
2) One engaged in an abnormally dangerous activity - an activity that creates a FORESEEABLE risk of serious harm EVEN when reasonable care is exercised by all actors
Extent of Strict Liability
Harm must result for the KIND OF DANGER that makes the animal or activity abnormally dangerous
Most states apply comparative fault rules to strict liability cases
Products Liability - Theories
Liability for defective products may be brought under various theories of liability:
(i) Intent;
(ii) Negligence;
(iii) Strict liability;
(iv) Implied warranties of merchantability;
(v) Fitness for a particular purpose;
(vi) Representation theories
Products Liability
Arises when a commercial supplier supplies a product in a DEFECTIVE CONDITION unreasonably dangerous to users
Products Liability - Manufacturing Defect
Product VARIES from other products in the manufacturing process and is dangerous BEYOND the expectation of the ordinary customer
Products Liability - Design Defect
ALL products of the line have dangerous characteristics because of mechanical failures, packaging, or INADEQUATE warnings, AND a less dangerous modification or alternative was ECONOMICALLY FEASIBLE
Products Liability Based on Negligence
Standard elements of negligence prima facie case apply
Breach of duty is shown by NEGLIGENT conduct by D that LEADS to supplying a defective product to P
Products Liability Based on Strict Liability
Liability arises from supplying defective product, EVEN IF D exercised due care and was not negligent
Even a RETAILER who had NO opportunity to INSPECT the product may be held liable as a commercial supplier
Defect must have existed WHEN the product LEFT D’s control
Nuisance Actions - Types (2)
1) Private nuisances
2) Public nuisances
Nuisance
Type of harm that may be based on intent, negligence, or strict liability
Private Nuisance
A private nuisance is a SUBSTANTIAL, UNREASONABLE INTERFERENCE with another person’s USE or enjoyment of her property
Public Nuisance
A public nuisance is an act that UNREASONABLY INTERFERES with the HEALTH, SAFETY, or PROPERTY rights of the community
Remedies for a Nuisance Action
Usual remedy is damages, but injunctive relief may be available for a continuing nuisance
“Coming to the Nuisance” as a Defense
“Coming to the nuisance” is NOT a defense
One who has just moved onto land adjacent to a nuisance MAY bring a nuisance action
Vicarious Liability
D may be vicariously LIABLE for tort of ANOTHER based on RELATIONSHIP between D and tortfeasor
Vicarious Liability - Common Types (4)
a) Employer-Employee
b) Principal-Independent Contractor
c) Automobile Owner-Driver
d) Parent-Child
Respondeat Superior
Vicarious liability for employer-employee relationship
Employer is liable for torts of an employee that occur WITHIN THE SCOPE OF THE EMPLOYMENT RELATIONSHIP
Liability of Principal for Independent Contractor
General rule is that principal is NOT vicarious liable for the torts of an independent contractor, but BROAD exceptions exist
Exceptions:
a) Independent contractor is engaged in INHERENTLY DANGEROUS activities
b) The principal’s DUTY CANNOT BE DELEGATED because of public policy considerations
Liability of Automobile Owner for Driver
An automobile owner is NOT vicariously liable for the negligence of the driver, UNLESS the state has adopted:
a) A permissive use statute (imposing liability for the torts of anyone driving with permission); or
b) The family purpose doctrine (imposing liability for the torts of a family member driving without permission)
Permissive Use Statute
Imposes liability on the automobile owner for the torts of anyone driving with permission
Family Purpose Doctrine
Imposes liability on the automobile owner for the torts of a family member driving with permission
Liability of Parent for Child
A parent is NOT vicariously liable for a child’s torts at common law
Statutes in many states impose limited liability for child’s INTENTIONAL torts
Vicarious Liability - Liability for Own Negligence
Regardless if vicarious liability applies or not, D can be held LIABLE for his OWN NEGLIGENCE
(e.g.: negligence in hiring the employee, supervising the child, or entrusting the car to the driver)
Joint and Several Liability
When two or more tortious acts COMBINE to proximately cause an INDIVISIBLE injury to P, each tortfeasor is jointly and severally liable for the injury
Who Can P Recover from under Joint and Several Liability?
P can recover his ENTIRE damages from any ONE of the tortfeasors
Many states abolished rule for (i) tortfeasors less at fault than P, or (ii) all tortfeasors for non-economic damages
Joint and Several Liability - Contribution
Allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasors in proportion to their fault
Vicarious Liability - Survival
Survival statutes PRESERVE a victim’s cause of action AFTER his death, EXCEPT for torts involving INTANGIBLE PERSONAL interests
Vicarious Liability - Wrongful Death
Wrongful death statutes permit a personal REPRESENTATIVE or surviving spouse to RECOVER damages from a tortfeasor for the loss of the decedent’s support and companionship
Intra-Family Tort Immunity
Rule that one family member could NOT SUE another in tort for PERSONAL INJURY - abolished in most states
EXCEPT children, generally, cannot sue their parents for their exercise of parental supervision
Governmental Tort Immunities
Governments generally have waived their sovereign immunity from suit for MINISTERIAL acts, but have NOT waived immunity for DISCRETIONARY acts
Ministerial Acts
Acts performed at the operational level that do not require the exercise of judgment
Discretionary Acts
Acts taking place at the planning or decision-making level
