Torts Flashcards
1
Q
Elements of Intentional Torts
A
Requires an act
Intent to bring physical or mental effect
Causation
2
Q
Intent for Torts
A
Either desire or purpose OR
Knows w/ substantial certainty effect will occur
3
Q
Transferred Intent Torts
A
Same tort different person
Different tort same person
Different tort different person
Cannot be invoked w/ conversion or IIED
4
Q
Causation Intentional Torts
A
Need not be direct (i.e. setting in motion)
5
Q
Assault Tort
A
Intentional causing of an
Apprehension of an
Imminent
Harmful or offensive contact
6
Q
Apprehension Assault
A
Must be reasonable
Must be aware
7
Q
Imminent Assault
A
Apparent present ability to
Carry out threat
Not future or hypothetical harm
8
Q
Harmful or offensive contact Assault
A
Touching that causes pain or bodily damage OR
Offends reasonable person’s sense of dignity
9
Q
Battery Tort
A
Intentional infliction of
Harmful or offensive
Bodily conduct
10
Q
Harmful or offensive Battery
A
Touching that causes pain or bodily damage OR
Offends reasonable person’s sense of dignity
11
Q
Bodily conduct Battery
A
Can be indirect including contact w/
Object closely identified w/ plaintiff’s body
12
Q
False Imprisonment
A
Intentionally causes
Plaintiff to be confined, restrained or detained to
Bounded area w/ no reasonable means of escape
Plaintiff is either aware or harmed
13
Q
Plaintiff to be confined, restrained or detained to False Imprisonment
A
Use of physical force, threats, duress,
Invalid legal authority OR refusing safe means of escape
14
Q
Shopkeeper’s privilege
A
For reasonable time and manner
Detain suspected shoplifter
Typically 10-15 minutes
15
Q
Bounded area False Imprisonment
A
Can be large and does not have to be stationary
16
Q
Plaintiff is either aware or harmed False Imprisonment
A
Must be conscious or, if not
Must be harmed in some way
17
Q
IIED
A
Intentional or reckless infliction of
Severe emotional or mental distress caused by
Defendant’s extreme & outrageous conduct
18
Q
Intent IIED
A
Desire or
Knows w/ substantial certainty OR
Reckless disregard for high
Probability distress will occur
19
Q
Severe emotional or mental distress IIED
A
Beyond reasonable person should endure
Can be evidenced by defendant’s conduct
Hypersensitivity
Only liable if defendant knew of sensitivity
20
Q
Extreme & outrageous conduct IIED
A
Beyond all possible bounds of decency
Usually if defendant in position of
Authority or influence OR
Plaintiff member of group w/ heightened sensitivity
21
Q
3rd Party Liability IIED
A
Plaintiff physically present & known by defendant AND
Close relation to other person OR
Suffers bodily harm as result of distress
22
Q
Trespass to Land
A
Can be brought by anyone w/ legal possession; not just owner Intentional Physical invasion to Land of another Mistake of fact not defense
23
Q
Physical invasion Trespass to Land
A
Entry w/ out permission
Remaining w/ out right to be there OR
Placing or projecting object w/out permission
24
Q
Trespass to Chattel
A
Intentional Interference w/ use or possession Of chattel Damages Mistake of fact not defense
25
Interference w/ use or possession Trespass to Chattel
Owner precluded from using or possessing
| Typically temporary
26
Damages Trespass to Chattel
Actual damages
Loss of value caused by loss of use OR
Cost of repair
27
Conversion
Intentional
Interference w/ use or possession that
So substantial warrants full value
Damages
28
Interference w/ use or possession that Conversion
Sells to 3rd party
Refuses to give back OR
Destroys
29
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
```
30
Damages Conversion
FMV at time of conversion
31
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
```
32
Defense of Others Torts
Reasonable force to defend
Another when
Reasonably believes that other person
Could have used force to defend himself
33
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)
34
Recapture of Chattel
Reasonable force to regain possession if:
Fresh pursuit
NO deadly force
35
Consent Defense Torts
May be express or implied
Scope:
Not beyond what consented to
Express or Implied
36
Express Consent Defense Torts
Must be willing and knowing
Consent by mistake valid defense
Consent by fraud invalid if essential matter
37
Implied Consent Defense Torts
Emergency
Injuries arising from athletic contests
Mutual consent to combat
38
Defense of Necessity Torts
Enters land or interferes with property to
Prevent injury or severe harm
Private or Public
39
Private Defense of Necessity Torts
Must pay for actual damages caused
Not liable for nominal damages
Landowner may not use force to exclude
40
Public Defense of Necessity Torts
When necessary to protect
| Large number of people from public calamities
41
Insanity Defense Torts
Generally no defense if able to
| Form requisite intent to do so
42
Negligence Torts
Defendant’s conduct imposes
Unreasonable risk upon another
Resulting in injury
Duty
Breach
Causation
Damages
43
Duty Negligence
```
Act as reasonable person
Who is it owed to
Foreseeable plaintiffs (majority):
In the zone of danger
Everyone (minority):
Including unforeseeable
```
44
Standard of Care Duty
Reasonable person under circumstances
Physical characteristics of defendant
Voluntarily intoxicated held to same standard as sober
Not mental characteristics
45
Special Duties Negligence
```
Common carrier
Innkeepers
Automobile drivers
Special relationship
Causing the danger
Volunteer assistance
```
46
Common carrier Duty
Highest duty of care w/
| Practical operation of business
47
Innkeepers Duty
```
Ordinary negligence (majority)
Slight negligence (minority)
```
48
Automobile drivers Duty
```
Ordinary care (majority)
Refrain from wanton & willful misconduct (minority)
```
49
Special relationship Duty based on:
Business or landowner holding premises open to public
Landlords and tenants
Or other special relationships
50
Volunteer assistance
Must proceed w/ reasonable care
51
Professional Duties
Required to possess knowledge and skill
| Of their profession or occupation
52
Fireman's Rule
Risk takers are prohibited from suing or
| Injuries stemming from assumed risk of profession
53
Children Duties
Conform to conduct of child of like
Age, intelligence, and experience
Exception
Child engaged in adult activity (i.e. driving)
54
Bailor Duties
For gratuitous, bailor must:
Inform of known, dangerous defects in chattel
Bailment for hire
Inform of defects of which should know
55
Bailee duties
```
Sole benefit for bailor
Standard is low
Sole benefit for bailee
Higher standard of care
Mutual benefit
Ordinary standard of care
```
56
Land Duties
Off Premises
Trespassers
Invitee
Licensee
57
Dutiy to Off Premises Injuries
Not liable for injuries resulting from natural conditions
58
Duty to Trespassers
Owes no duty to undiscovered trespassers but
| Must refrain from willful, wanton, or intentional misconduct
59
Duty to Discovered Trespasser
Warn or protect against concealed
| Dangerous artificial conditions
60
Duty to Undiscovered Trespasser
```
No duty unless owner should
Reasonably have known trespassers
Entering land
Then use reasonable care
No duty to inspect
```
61
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
```
62
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
```
63
Non-Delegable Duties
Make reasonable inspection to
Find hidden dangers AND
Take affirmative action to remedy
64
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
```
65
Negligence Per Se
Criminal or regulatory statute imposes specific duty
Establishes duty and breach
Must still prove causation and damages
66
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
67
Negligence Per Se Excused if:
Compliance creates greater risk of harm
Reasonable under circumstances
Statutory vagueness or ambiguity
Violations by plaintiff deemed comparative negligence
68
Breach Negligence
When defendant’s conduct fails to
| Conform to applicable standard of care
69
Trad Breach Negligence
What reasonably prudent person would do
70
Cost-Benefit Analysis Breach Negligence
Unreasonableness of risk vs
| Utility of act
71
Res Ipsa Loquitur
Establishes breach in situations where
| Event creates an inference defendant likely negligent
72
Elements of Res Ipsa Loquitur
Ordinarily not occur in absence of negligence
Cause w/ in exclusive control
Not due to action by plaintiff
73
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
74
Actual Causation
But for defendant’s act,
| Injury would not have occurred
75
Multiple Tortfeasors/Multiple Possible Causation
Substantial factor test
Concurrent tortfeasors acting in concert
Alternate causation
76
Substantial factor test
More than one at fault and
Conduct combined caused harm
Negligence was substantial factor to harm
77
Concurrent tortfeasors acting in concert
Joint and several liability
78
Alternate causation
Two acts of negligence, only one could
Cause injury but unknown
Burden shifts to defendants to show not them
79
Proximate Causation
Reasonable foreseeability
| Liable for all harm reasonably foreseeable
80
Eggshell-skull plaintiff
Liable for unforeseen harm that may be
Increased b/c of plaintiff’s pre-existing
Physical or mental conditions or vulnerability
81
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
82
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
83
Negligent infliction of emotional distress (NIED)
Liable when defendant engages in
Negligent conduct that causes plaintiff to
Suffer serious emotional distress
84
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)
```
85
Negligence Defenses
Contributory negligence
Comparative Negligence
Assumption of Risk
86
Contributory negligence
Negligence on part of plaintiff
| Bars recovery
87
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%
```
88
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
89
Strict Liability
Held liable for activities regardless of
Precautions taken to prevent harm
Animals or Abnormally Dangerous Activity
90
Trepass of Animal Strict Liability
Liable if
| Reasonably foreseeable damage
91
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
92
Domestic animals Strict Liability
S/L if knows or reason to know of
Dangerous propensities and harmful results
Public stray, then negligence
93
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
94
Defenses to Strict Liability
Assumption of risk
| NOT contributory negligence
95
Products Liability
Liability of seller of tangible item, which
Because of defect causes injury to purchaser
User or bystander
96
Intent Products Liability
Defendant intended consequences or
Knew to substantial certainty to occur
Defenses same as intentional torts
97
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
98
Types of Strict Products Liability
Manufacturing defect
Design Defect
Failure to Warn
99
Manufacturing defect
Product deviated from intended design
100
Design Defect
```
Consumer Expectation Test
Less safe than ordinary consumer would expect
Risk-utility Test
If risks outweigh benefits
Must show reasonable alternative design
```
101
Failure to Warn
```
Foreseeable risk NOT
Obvious to ordinary user
Prescription drugs
Warning goes to doctor UNLESS
Marketed directly to consumers (more common now)
```
102
Damages Products Strict Liability
No recovery for purely economic loss
103
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
```
104
Negligence Products
Retailers and wholesalers rarely liable
| Manufacturer likely could be
105
Types of Warranties Products Liabilities
Express
Implied Warranty of Merchantability
Fitness for Particular Purpose
106
Express Warranty Products Liabilities
Statement of fact or promise concerning goods
| Only need to show did not live up to promise
107
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
108
Defenses of Misrepresentation Products Liability
Comparative
| UNLESS intentional
109
Types of Privacy Claims
Misappropriation
Intrusion into Seclusion
False Light
Public Disclosure of Private Facts
110
Misappropriation
Unauthorized use of plaintiffs
Picture or name for
Defendant’s commercial advantage
111
Intrusion into Seclusion
Intrusion into private aspect of plaintiff’s
Life in private place
Highly objectionable to
Reasonable person
112
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
113
Public Disclosure of Private Facts
Public disclosure of private facts that
Not matter of legitimate public concern
Objectionable to reasonable person
114
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
115
Private Nuisance
Substantial
Unreasonable interference with
Another private individual’s
Use or enjoyment of his land
116
Substantial Private Nuisance
Interference offensive, inconvenient OR
| Annoying to average person
117
Unreasonable interference Private Nuisance
Harm caused outweighs utility OR
Harm caused greater than
Should be required to bear
118
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
119
Fraud Misrepresentation
```
Common law fraud or deceit
Misrepresentation of material fact
Scienter
Intent to induce plaintiff’s reliance
Causation
Justifiable reliance
Damages
```
120
Fraud Misrepresentation Justifiable reliance
Obviously false or opinion
121
Fraud Misrepresentation Damages
Actual economic loss/consequential damages
No nominal
No damages for emotional distress
122
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
123
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
124
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
125
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
126
Vicarious Liability Torts
When one person commits tortious act
Against third party AND
Special relationship between tortfeasor & defendant
127
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
128
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
129
Multiple Defendants
Jointly and severally liable where
| Two or more negligent acts combine for cause
130
Contribution for Multiple Defendants
Allows defendant who
Pays more than his pro rata share
To obtain reimbursement for
Amount paid over his share
131
Fed Gov't Immunity Torts
Traditionally immune but
Now limited by FTCA
Waived for intentional torts
Committed by law enforcement
132
State Gov't Immunity Torts
Most states have waived immunity
133
Wrongful Death
Recovery for pecuniary injury resulting to spouse AND
Next of kin for wrongful death AND
Allows for loss of support and consortium
134
Defamation
Defamatory Statement
Of/Concerning Plaintiff
Published to 3rd Party
135
Defamatory Statement
False statement that holds plaintiff
Up to contempt or public ridicule
Opinions or true statements NOT
Advance affect on rep
136
Of/Concerning Plaintiff
Plaintiff must be identifiable
137
Published to 3rd Party
Heard/Understood
Republication identifying OG
Speaker uncertainty to statement
May still satisfy element
138
Types of Defamation
Libel (Written)
Slander per se
Slander
139
Libel (Written)
Damages Presumed
140
Slander per se
```
CLUB:
Crime
Loathsome disease
Unclean woman
Business/Profession
Damages Presumed
```
141
Slander
Must show special damages
142
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
```
143
Public Figure/Public Official
```
Falsity AND
Actual malice
Knowledge of falsity or
Reckless disregard for truth
By clear and convincing evidence
Damages Presumed
```
144
Defenses to Defamation
Truth
Absolute Privilege
Qualified Privilege
145
Truth Defense to Defamation
Don’t have to defend if falsity is element
146
Absolute Privilege Defense to Defamation
Remarks during judicial or legislative proceedings
By Fed gov’t and state officials
Between spouses
147
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
