Torts Flashcards
Battery
1) Intent
2) An act
3) That is harmful/offensive
4) Causation
Assault
1) An act
2) Intent to put the P in apprehension
3) of an imminent harmful/offensive contact
4) That actually causes such apprehension
Trespass to Land
1) Intent
2) Possession of the property by the P
3) Physical invasion of the property by the D
Trespass to Chattels
1) Intent
2) An act by the D that interferes with P’s right to possession of the chattel (but that is not so serious as to require D to pay the full value)
3) Causation
4) Damages
Conversion
1) Intent
2) An act by the D that interferes with P’s right to possession of the chattel that is serious enough to warrant that the D pay the full value
3) Causation
False Imprisonment
1) Intent
2) An act
3) Confinement to a bounded area
4) Causation
Defense to False Imprisonment
Shopkeeper’s privilege: (applies to LEO, farmers, merchants, transit agencies)
1) Has probable cause to believe that a theft has been committed
2) The property may be recovered by taking the offender into custody
3) Detention must be made in a reasonable manner for a reasonable amount of time
IIED
1) An act
2) Extreme/Outrageous conduct
3) Intent to cause P emotional distress
4) Causation
5) Damages
NIED
1) An act
2) Extreme/outrageous conduct
3) Negligence (instead of intent)
4) Causation
5) Damages
NIED - 3rd Person/Bystander
1) Anxiety about the safety of another
2) Close relationship with the injured party
3) Occurs w/in sensory perception as it was happening
4) Causation
5) Damages (physical impairment following the psychic trauma
NIED - Zone of Danger/Near Miss
D’s act does not physically harm the P, but it does place P in the zone of danger so that P fears for his physical safety and P suffers physical symptoms as a result
Defenses to Intentional Torts
1) Consent: Express or Implied (through custom or by law)
2) Self Defense/Defense of Others: Can use force (including deadly force) to defend self/others - No duty to retreat
3) Defense of Property: Can use non-deadly force - No duty to retreat
4) Private Necessity: Can interfere with P’s property to avoid imminent harm; D must pay for any damages caused to P’s property
5) Privilege: An excuse for committing a tort that states you had the right to act that way (i.e. pushing someone’s hand away as they are about to hit you)
Defamation
1) D published a false statement of fact
2) About the P
3) To a third party
4) And the falsity of the statement caused injury to the P
5) Culpability: Private individuals = negligence; Public figures = malice
Slander
An oral defamatory statement
Libel
A written defamatory statement
Defamation per se
Naturally harmful statements such as:
1) Accusing P of committing a crime
2) Accusing P of having an infectious disease/mental illness
3) Statement subjects P to hate/distrust
4) Statement injures P’s business or profession
Defenses to defamation
1) Truth
2) Opinion
3) Privilege
Invasion of Right to Privacy
Civil recognition of a Constitutional right
1) Intrusion of P’s affairs or seclusion
2) Appropriation of identity/likeness
3) Public disclosure of private facts
Negligence
1) Duty
2) Breach
3) Causation
4) Damages
Duty (Negligence)
Duty: A D has a duty to all foreseeable P’s in the zone of danger
Standard of Care:
General: Generally, there is a duty to act as a reasonably prudent person under the circumstances
Medical Professionals: Held to the same level of care, skill, and treatment as a reasonable healthcare provider in the same community under the circumstances
Minors: Must act as a reasonably prudent child with the same education, intelligence, and experiences under the circumstances…. Exception: Minors doing adult activities
Negligence - Duty (Premises Liability)
Invited Licensee: Duty to inspect and warn or make safe
Unknown Trespasser: Duty to refrain from intentional misconduct that injures the trespasser but no duty to warn
Known Trespasser: Duty to refrain from gross negligence and intentional misconduct that injures the trespasser and a duty to warn (w/in 24 hours)
Intoxicated Trespasser: No duty
Breach (Negligence)
D’s conduct falls below the duty of care owed to the P
Causation (Negligence)
The conduct was the cause of the P’s injury. Requires actual and proximate cause.
Actual Cause: “but for” the D’s acts, the injury would not have occurred”
Proximate Cause: Foreseeability: The injury is a foreseeable result of the act
Look out for intervening and superseding cause
Superseding Cause (Negligence)
An event that occurs after D’s initial act that substantially causes the accident. D is not liable since the initial act is not the proximate cause of P’s injuries.
Intervening Cause (Negligence)
An event that occurs after D’s initial act that combines with D’s act to cause injury to the P. D is liable for harm caused to the P regardless of whether he could foresee the extent/severity of the harm.
Negligence Per Se
An act that is negligent because it violates a statute.
1) A conclusive presumption of duty; and
2) Breach of that duty
In Florida, the statute must impose an affirmative duty to act and impose penalties for a failure to do so
Good Samaritan
In Florida, there is no duty to rescue, but if you do you can still be liable for negligence.
Medical Personnel: Good samaritan does not shield medical personnel if they act negligently or recklessly. Reckless if knew or should have known that actions created an unreasonable risk AND that risk was substantially greater than the risk if he acted negligently.
Medical Malpractice
Negligence analysis + the standard of care is the level of care, skill, and treatment that is acceptable and appropriate for a reasonably prudent health care provider in like circumstances.
If patient is unconscious – can infer negligence under res ipsa loquiter
Res Ipsa Loquiter
1) The accident that caused the injury isn’t the type of accident that occurs without negligence
2) The accident was attributable to the D (exclusive control)
3) P was not at fault
Negligence Defenses
1) Pure comparative negligence: In Florida, a party is only responsible for the percentage they were at fault
Exception: If legally drunk & >50% at fault
2) Sovereign Immunity: The gov’t cannot be held liable for its planning decisions, but can be held liable for its operation decisions.
Vicarious Liability
Respondeat Superior: An employer will be held liable for negligent acts committed by its employees within the scope of their employment
Negligent Hiring
Negligent Entrustment: A party will be held liable for negligence if they negligently provided another party with a dangerous instrument that injured a 3rd person
Dangerous Instrumentality: The owner of an inherently dangerous tool will be held liable for any injuries caused by that tool’s operation
Tort Damages
Compensatory: Damages awarded to make the P whole again
Punitive: Damages awarded to punish the D
Products Liability (Argue all 3!)
- Negligence
- Warranty: There was a warranty, product does not conform to warranty, product caused injuries
- Strict Products Liability
Strict Products Liability
- Proper P: Person who was injured
- Proper D: Someone in the chain of commerce… product passed through their possession with the defect in place
- Defective product:
Types of Defects: Design (all), manufacturing (some),
inadequate warning - Causation
- Damages
Defenses to Strict Products Liability
- Causation
- Comparative negligence
- Look to argue punitive damages
Wrongful Death
Damages caused by injury that result in death. Wife and minor children can recover for loss of companionship and mental pain and suffering.
Survivor Action
A claim for compensation for the expenses incurred by the deceased family member before his or her death
Malicious Prosecution
(prosecutors are immune)
- Criminal proceedings against the P
- The proceedings must be complete
- Absence of probable cause for the prosecution
- Improper purpose (something other than bringing justice)
- Damages
