Torts Flashcards
Intentional: Assault
Assault is intentionally placing a person in reasonable apprehension of an immediate harmful or offensive contact. The P must be aware and actually fearful/anticipate the threat. Words alone are not imminent enough. Here,
Intentional: Battery
Battery is an intentional harmful or offensive contact with P’s person. Contact can be with anything connected to P’s person and P does not need to be aware of the contact if it’s one that society would deem harmful or offensive. Here,
Intentional: False Imprisonment
FI requires 1) an intentional act of confinement, 2) within a bounded area, 3) with no reasonable means of escape, that 4) causes injury. Threats of immediate violence are a sufficient act of confinement, but not future threats of violence or economic threats. Here,
Intentional: False Imprisonment - Shopkeeper’s Privilege
A store may detain a suspected shoplifter so long as they have 1) reasonable cause, 2) use reasonable force, and 3) only hold the suspect for a reasonable period. Here,
Intentional: False Imprisonment - Privilege of Arrest
A private citizen can detain a person using reasonable force based on a reasonable belief a felony occurred, or based on witnessing a misdemeanor involving breach of the peace. Here,
Intentional Infliction of Emotional Distress
D intentionally or recklessly engages in extreme or outrageous conduct causing P’s severe emotional distress. No physical symptoms required. Outrageous conduct is conduct that exceeds the bounds of decency in a civilized society. Courts will weigh 1) repetitiveness of conduct, 2) P’s special sensitivities, and 3) power disparity between P and D. Here,
Intentional: Trespass to Land
Trespass to Land requires a physical invasion of P’s land. Intent only requires a volitional act, not the intent to trespass. A physical invasion can be to the land’s surface, air above, or soil below. Nominal damages are sufficient. Here,
Intentional: Trespass to Chattel/Conversion
Trespass to Chattels is an intentional interference with P’s right of possession of personal property. Conversion is the serious interference or destruction of P’s personal property. The remedy for trespass is the cost to repair. The remedy for conversion is the full fair market value of the property, i.e. a forced sale where D keeps item and pays P fair value. Here,
Defenses CNDDD - Consent
Consent is a defense to ALL intentional torts. Consent must be given by one with capacity, and can either be express or implied by custom, emergency, or P’s conduct. However, D must stay within the scope of the consent. Here,
Defenses CNDDD - Necessity
Necessity is a defense to torts against property, and allows D to interfere with property of another if he reasonably believes it is necessary to avoid a greater harm. Private necessity is an incomplete defense and D must pay for the damaged property. Public necessity is an absolute defense and D is excused from damages. Here,
Defenses CNDDD - Defense of Self
Reasonable force is allowed if the D has a reasonable belief a tort is being or about to be committed against him. Here,
Defenses CNDDD - Defense of Others
Reasonable force is allowed to protect a victim who would have been able to use self-defense if the tort is in fact being committed or about to be committed against the victim. Here,
Defenses CNDDD - Defense of Property
Reasonable non-deadly force is allowed if D has a reasonable belief that a tort is being or about to be committed on his property. Here,
Defamation
Defamation is 1) a defamatory statement, 2) of or concerning the P, 3) published to a third party, that 4) causes injury to the P’s reputation. The defenses to defamation are truth, consent, and privilege (absolute and qualified).
Defamation - Defamatory Statement
A defamatory statement must be an allegation of FACT that would tend to lower P’s reputation within the community. Here,
Defamation - Of or Concerning P
The statement must identify the P, or a reasonable person must know the statement is about the P. A group of people can be identifiable depending on its size. A dead person cannot be defamed. Here,
Defamation - Published
A publication occurs when it is communicated to a third party who UNDERSTANDS it. Here,
Defamation - Damages
General damages are presumed if the defamatory statement is written/recorded (libel) or if a spoken statement is within the slander per se categories of statements about P’s 1) profession/business, 2) loathsome disease, 3) unchaste woman, or 4) moral turpitude. Here,
Matter of Public Concern - Constitutional Defense
Whenever the defamatory statement is regarding a matter of public concern, the P must prove the additional elements of falsity and fault. Here,
Matter of Public Concern - Constitutional Defense: Falsity
P has the burden to prove the statement was actually false by clear and convincing evidence. Here,
Matter of Public Concern - Constitutional Defense - Fault
The type of fault that P must prove depends on whether P is a private or public figure. A public figure is one who achieves fame or notoriety or is in government office. Here,
If P is a public figure, the P must show actual malice, meaning D had actual knowledge that the statement was false or was reckless in not knowing that the statement was false. Here,
If P is a private figure, the P must only show D was negligent in not knowing the statement was false. Here,
Def Defense: Consent
Consent is a complete defense to defamation. Here,
Def Defense: Truth
Where P does not need to prove the element of falsity, then D may prove truth as a complete defense. Here,
Def Defense: Absolute Privilege
Government officials have an absolute privilege that protects statements made in their official capacity. Here,
Def Defense: Qualified Privilege
A D’s liability for defamatory statement is limited if the purpose of the speech is to promote truthfulness.(credit reports, letters of recommendation, employment reference, etc.) Here,
Privacy: Commercial Misappropriation of Name/Likeness
Misappropriation is the use of P’s name or likeness for commercial purposes without P’s consent. However, there is a newsworthiness exception allowing the use of a name or likeness for the purposes of reporting the news. Here,
Privacy: False Light
False light is the widespread publication of a material misrepresentation or falsehood about P that was highly offensive to a reasonable person. This includes a mischaracterization of P’s views, beliefs, or conduct. If the matter is of public concern, D must have actual malice or reckless disregard for the truth of the matter publicized. Here,
Privacy: Intrusion of Privacy
Intrusion of privacy is the intentional intrusion upon a P’s physical zone of privacy or private affairs in a manner that would be highly offense to a reasonable person. Publication is not necessary, however, P must have a reasonable expectation of privacy in the place where the intrusion occurred. Here, (look out for public place)
Privacy: Public Disclosure of Private Facts
PDPF is the disclosure of P’s private information that would be highly offensive to a reasonable person. D avoids liability if the private facts are newsworthy or are a public interest. Here
Privacy: Defenses
The defenses of consent and privileges (false light and disclosure) are valid for privacy torts. Here,
Negligence
Negligence requires a showing of 1) duty, 2) breach, 3) causation, and 4) damages.
Duty
A general duty of care is owed to all reasonably foreseeable Ps. Under majority view, this duty extends to all P’s within zone of danger. Under minority view, this duty extends to anyone. Here,
Standard of Care - Reasonable Person
The general duty of care is to act as a reasonably prudent person under the same or similar circumstances. Here,
Standard of Care - Professionals
A professional is expected to act with the care of an average member of the profession in good standing in his community. However, specialists are held to a national standard of care. Here,
Standard of Care - Children
A child must act as a reasonable child of the same age, intelligence, and experience, unless the child is engaged in an adult activity, then the RPP standard applies. Children under 5 owe not duty of care. Parents have a duty to control children if there is knowledge of misbehavior. Here,
Standard of Care -Negligence Per Se
An existing statute may establish the standard of care so long as P is within the class of people the statute was designed to protect, and P suffered the type of harm the statute was designed to prevent. Here,
However, D is excused from violation of a statute if 1) compliance with the statute would have resulted in a harm greater than the harm produced by violation of the statute, or 2) compliance with the statute would have been impossible. Here,
Standard of Care - Common Carriers/Innkeepers
Common carriers and innkeepers are held to a higher standard of care and are liable for even slight negligence towards passengers or guests. Here,
Standard of Care - Adults w/Disabilities
Disabled adults are expected to act as a reasonable person with the same disability or diagnosis. Here,
Duty to Rescue
D has not duty to rescue unless: 1) D has a special relationship with the victim, 2) D has a contractual obligation to save, 3) D created the peril, or 4) D has voluntarily undertaken the rescue. Here,
Standard of Care - Landowners: Unknown Trespasser
Owners and occupiers of land do not owe a duty of care to unknown trespassers, however, they may have a duty of care for anticipated trespassers and child trespassers. Here,
Standard of Care - Landowners: Anticipated Trespassers
Where an owner has reason to believe trespassers are on his land, he has a duty to warn of or make safe any manmade, known concealed dangers that could cause serous injury. Here,
Standard of Care - Landowners: Child Trespassers Attractive Nuisance
A landowner owes child trespassers a duty to avoid reasonably foreseeable risk of harm caused by artificial conditions. To prevail on this theory, P must show that 1) there is a dangerous condition on D’s land, 2) D knew that children were frequent in the area, 3) the condition is likely to cause injury because of the child’s inability to appreciate the risk, and 4) the expense of remedying the situation is slight compared to the magnitude of the risk Here,
Standard of Care - Landowners: Licensee
A licensee is one who enters the land with owner’s permission (social guests). The landowner has a duty to warn or make safe any known dangers on the land. Here,
