Torts Flashcards
Intentional torts (general):
(1) a voluntary act; (2) committed with intent (either specific or general intent); AND (3) causation (“but for” causation or conduct was a substantial factor).
Specific intent exists when a person desires that his conduct cause the resulting circumstances. General intent exists when a person is substantially certain that his conduct will cause the resulting circumstances.
Battery:
(1) an intentional, (2) harmful or offensive contact, (3) with the plaintiff’s person (including anything connected to the plaintiff).
Bodily harm: physical pain, illness, or physical impairment to another’s body.
Offensive: offends a reasonable sense of personal dignity.
Damages: A claim may be supported by nominal damages; plaintiff need not suffer actual damages.
IIED:
(1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous (conduct that transcends all bounds of decency); (3) causation; AND (4) the plaintiff actually suffered severe emotional distress.
Third Person: defendant is liable if he intentionally or recklessly causes severe emotional distress: (a) to a member of such person’s immediate family who is present at the time (whether or not such distress results in bodily harm); OR (b) to any other person present, if such distress results in bodily harm.
Trespass to Land:
defendant (1) intentionally, (2) either (a) enters the land in the possession of another without permission; OR (b) causes an object or a third person to enter the land of another without permission.
Intent: not specific to commit trespass, just general intent to enter or remain.
Damages: nominal damages; plaintiff need not suffer actual damages. If plaintiff suffers actual damages, he may recover either: (a) the decrease in value of the property; OR (b) the cost to repair the property.
Trespass to Chattels & Conversion:
Trespass to Chattels: (1) intentional (2) interference with another’s personal property, AND (3) the amount of damage is small.
Conversion: amount of interference is substantial due to: (i) extent and duration of dominion/control; (ii) intent to deprive the owner of possession; (iii) the tortfeasor’s bad faith; (iv) extent and duration of resulting interference; (v) harm done to the chattel; and (vi) inconvenience and expense caused.
Damages: Liable for the full market value of the chattel involved.
Mistaken ownership of the property is NOT a defense to either tort.
Reasonable person standard:
A reasonable prudent person takes appropriate measures to avoid foreseeable risks. This duty of care is owed to all foreseeable plaintiffs. Following community customs and statutory requirements may be relevant as to what conduct is reasonable, but are NOT dispositive.
Negligence per se:
statute may be used to substitute the duty of care and breach. Plaintiff must show: (1) that the statute’s purpose is to prevent the type of harm that the plaintiff has suffered; AND (2) that the plaintiff is in the class of persons the statute seeks to protect.
Exceptions: defendant’s compliance with statute would have been 1) more dangerous, or 2) impossible.
Causation: Actual and Proximate Cause:
A plaintiff must show that the defendant’s conduct was BOTH the actual and proximate cause of the injury.
Actual cause: “but for” cause—but for defendant’s negligence, plaintiff would not have been injured. Under the Substantial Factor Test, something that is a substantial factor in bringing about the injury is an actual cause (even if the injury had multiple causes).
Proximate cause: legal cause, which means that the injury must have been a foreseeable result of the breach. A defendant is NOT liable for harms that are too remote from the defendant’s conduct.
Causation: Intervening Causes:
Any act that occurs after the defendant’s breach that contributes to the harm is an intervening cause. Intervening causes that are dependent on a natural reaction to the defendant’s wrongful acts are usually foreseeable. If the intervening cause resulted in an unexpected injury to the plaintiff, it is usually deemed unforeseeable and will absolve the defendant of liability to the plaintiff.
Intervening criminal acts: usually not foreseeable UNLESS: (a) the defendant should have anticipated the criminal act; OR (b) if the defendant’s conduct makes the criminal act more likely to occur.
Assumption of Risk:
Defense to negligence, and applies if the plaintiff (1) voluntarily assumed (2) a known risk. The assumption of risk may be: (a) express: by agreement; OR (b) implied: where an average person would appreciate the risks involved.
Negligent Infliction of Emotional Distress:
Generally, there are three scenarios where a plaintiff may recover for negligent infliction of emotional distress: (a) a zone-of-danger claim; (b) a bystander claim; or (c) in certain situations where a pre-existing relationship exists.
Zone-of-danger: (1) there must be negligence by the defendant, (2) which creates a foreseeable risk of physical injury, (3) the plaintiff must be in the zone of danger, AND (4) the plaintiff must manifest physical symptoms.
Bystander claim: (1) there must be negligence by the defendant; (2) the plaintiff must be a contemporaneous witness to a negligent bodily injury inflicted on a close family member (i.e. parent, child, spouse); AND (3) the plaintiff must manifest physical symptoms (some jurisdictions do not require this). A few jurisdictions require that the plaintiff be in the zone of danger to recover.
Pre-existing relationship: 1) between the plaintiff and defendant; AND (2) the negligent act can foreseeably cause distress. Recovery is rare, and is usually only available in egregious situations.
Defamation:
(1) a false defamatory statement (a statement that tends to harm the reputation of another), (2) of and concerning the plaintiff made by the defendant, (3) publication by the defendant to a third party, AND (4) damages. The statement must be one of fact, NOT a statement of opinion. A person CANNOT be found liable for defamation of a dead person.
Slander: oral defamatory statement. Plaintiff ALWAYS needs to prove special damages, unless 1) the statement falls within one of the slander per se categories AND 2) is clearly defamatory.
Slander per se: (a) impugning the business integrity or skill of the plaintiff, (b) a statement of unchastity about an unmarried woman, (c) a statement that the plaintiff has or had a loathsome disease, or (d) attributing to the plaintiff a crime of moral turpitude.
Libel: defamation embodied in some permanent format. Plaintiff does not need to prove special damages.
Heightened Defamation:
Plaintiff public figure: injected herself into a public controversy or having achieved widespread notoriety. There is a heightened standard to prove defamation, which requires the plaintiff to prove: that the defendant spoke with actual malice: (a) recklessness as to the truth of the statement, or (b) with knowledge of its falsity.
Matter of public concern: if plaintiff is a private figure, must also prove speaker was negligent.
Privileges to Defamation:
Qualified privilege: defense to defamation when their speech serves a socially useful purpose.
Examples: individual is recommending an employee, someone is reporting a wrongdoing to an agency, or reporting facts to a police officer.
But, the speaker must be speaking in good faith AND must not be reckless as to the truth of his statement or say something affirmatively untrue.
Absolute privilege: exists for defamatory statements made about the parties or those participating in a judicial proceeding. In such situation, the declarant is immune from civil liability for defamation.
Intentional Misrepresentation:
Plaintiff must show: (1) misrepresentation of a material fact by the defendant; (2) the defendant knew that the statement was false (scienter); (3) intent of the defendant to induce the plaintiff; (4) actual and reasonable reliance by the plaintiff; AND (5) damages.
Concealment (an affirmative act intended to keep another from learning of a fact) is equivalent to a misrepresentation (a false statement of fact).
Generally, there is no duty to disclose information.
UNLESS: (a) a fiduciary relationship exists; (b) it is necessary to correct an earlier mistake; (c) active concealment of a material fact occurs; OR (d) a person is selling real property and knows material facts that affect the value of the property (that the buyer is unaware of and cannot reasonably discover).
