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,
Standard of Care - Landowners: Invitee
An invitee is one who enters the land with owner’s permission and for owner’s commercial benefit. The landowner owes the invitee a duty to make reasonable inspection of the property and repair all known dangers. An invitee may exceed scope of invitation by entering unpermitted spaces. Here,
Breach
D breaches his duty when his conduct falls short of the standard of care owed to P. Here,
Breach - Res Ipsa Loquitur
RIL doctrine is applied if P cannot establish a breach of duty, but the accident would only occur with negligence and D had exclusive control of the instrument causing hte injury. Here,
Breach - Negligence Per Se
Violation of a statute is negligence per se, meaning P must only prove causation and damages. Here,
Actual Cause
D’s conduct will be the actual cause of P’s injury if the injury would not have occurred “but for” the alleged breach of duty. Here,
Actual Cause - Substantial Factor Test
If there are simultaneous joint causes for P’s injury, but any cause alone would have been sufficient to cause the injury, then courts will apply substantial factor test and both D’s will be jointly and severally liable. Here,
Actual Cause - Alternative Cause
If two D’s acted negligently, but it’s uncertain which act caused the injury, the burden will shift to the D to prove they are not liable. Otherwise, both D’s will be jointly and severally liable. Here,
Proximate Cause
In addition to being the actual cause, P must prove his injury is a foreseeable result of D’s conduct. Intervening forces that are foreseeable will not break the chain of causation. Direct natural reactions to the D’s negligence are also foreseeable. However, if the intervening force is unforeseeable such as a crime or intentional tort of a 3rd party, this will cut the chain of causation for D. Here,
Damages
P must prove actual damages. Here,
Damages - Eggshell Plaintiff
D takes his P as he finds him and is liable for the full extent of P’s injuries, regardless of whether or not the extend of the injury is surprising in scope. Here,
Punitive Damages
Punitive damages are ONLY meant to punish the D for his reckless, malicious, or wanton conduct. Here,
Neg Defenses: Contributory Negligence
In a contributory negligence jurisdiction, P is completely barred from recovery if D establishes that P’s negligence contributed to her injuries. Here,
Neg Defenses: Contributory Negligence - Last Clear Chance
P can rebut D’s contributory negligence claim be alleging D had the last clear chance to avoid the injury-causing accident. Here,
Neg Defenses: Comparative Negligence
In a pure comparative negligence jurisdiction, D can reduce his liability by the percentage of P’s own negligence that caused injury. In a partial comparative jurisdiction, the P must be less than 50% at fault, and if so, damages are allocated according to percentage of fault. Here,
Neg Defenses: Assumption of the Risk
P cannot recover if P either expressly or impliedly assumed the risk of injury. P must have known of the risk and voluntarily assumed it. Here,
Negligent Infliction of Emotional Distress
P may recover for emotional distress resulting from D’s negligence, but ONLY IF P’s emotional distress gives rise to some physical manifestation. NIED requires that 1) D’s negligence nearly caused P physical harm, 2) P suffers severe emotional distress, 3) P exhibits some physical manifestation of her emotional distress. Here,
NEID Bystander Claims for Emotional Distress
A bystander closely related to a person physically injured or killed by D’s conduct may recover for emotional distress. P must show 1) D’s conduct caused a serious bodily injury or death to family member or very close friend, 2) P was present when the injury occurred and observed the injury, and 3) P suffered severe emotional distress. However, no physical manifestation is required. Here,
Strict Liability
Strict Liability torts do not require proof of negligence, rather P must only prove causation and damages. SL applies to involvement in abnormally dangerous activities or if someone is harmed by D’s animal.
SL - Abnormally Dangerous/Ultra Hazardous Activities
Those engaged in abnormally dangerous activities are SL for any injuries resulting from those activities. An activity is “abnormally dangerous” if: 1) the activity imposes a severe risk of harm, 2) it cannot be made reasonably safe, and 3) the activity is uncommon in the community. P must be injured by the ultra-hazardous activity, or fleeing from the ultra-hazardous activity, and not merely be one engaged in the activity. Here,
SL - Domestic Animals
Domestic animal owners are SL for injuries ONLY if they know of their animal’s dangerous propensities. i.e. the one-bite rule. However, domestic animal owners are SL for all reasonably foreseeable damage resulting from their animal’s trespass onto another’s property. Here,
SL - Wild Animals
Wild animal owners are SL for injuries caused by their wild animals. This includes any injury suffered while fleeing a wild animal. However, trespassers are generally not entitled to recovery under SL. Here,
Products Liability
Merchants may be SL, or liable in negligence, for the products they place in the stream of commerce.
Strict Products Liability
A merchant who places a product in the stream of commerce may be SL for injuries caused. To prevail on SL cause of action, P must show 1) D is a merchant, 2) product was defective, and 3) defective product was the actual and proximate cause of P’s injuries. Here,
Strict Products Liability - Merchant
A merchant can be a manufacturer, retailer, or distributor who routinely deals in the type of goods sold (not services). No contractual privity is required between the merchant and P as long as the merchant placed the product in the stream of commerce. Casual sellers are not SL. Here,
Strict Products Liability - Defective Product
P must prove there was a manufacturing defect, design defect, or inadequate warning. Here,
Strict Products Liability - Defective Product: Manufacturing Defect
A manufacturing defect occurs when a product emerges from manufacturing different and more dangerous than other products made properly. One way to prove a manufacturing defect is if the product failed to perform as safely as an ordinary consumer would expect. Here,
Strict Products Liability - Defective Product: Design Defect
A design defect occurs when a product has a feasible alternative design that could have been made safer without a serious impact on the product’s price or liability. Here,
Strict Products Liability - Defective Product: Inadequate Warnings
An inadequate warning occurs when a manufacturer fails to give adequate warnings about an unapparent risk involved in using the product. Here,
Strict Products Liability - Defective Product: Government Safety Standards
Noncompliance with government product safety standards establishes the product is defective, but compliance is not conclusive proof the product is not defective. Here,
Strict Products Liability - Actual Cause
P must show the defect existed when product left D’s control. Here,
Strict Products Liability - Proximate Cause
P must show type of injury suffered was foreseeable at the time the product was placed in the stream of commerce. P’s misuse of the product can be foreseeable. Here,
Strict Products Liability - Damages
The consumer must have actually suffered damages. Here,
Strict Products Liability - Defenses
P may be denied recovery if she assumed the risk of any damages caused by D’s product. P must have known the risk and voluntarily proceeded in face of risk. Also, Contributory/Comparative negligence is a defense.
Negligence in Products Liability
In order for P to prevail in a negligence product liability cause of action, P must show duty, breach, causation, and damages. Here,
Neg Products Liability - Duty
A duty of care is owed to all foreseeable P’s. A foreseeable P is anyone in the zone of danger. Users of products, bystanders, and consumers of the product are all foreseeable Ps. Privity with the D is NOT required. All foreseeable P’s are owed a standard of care of that of a reasonably prudent manufacturing company. Here,
Neg Products Liability - Breach
Breach is shown when D’s negligence leads to the supplying of a defective product. However, retailer and wholesalers satisfy due care by a cursory inspection of the product. Here,
Neg Products Liability - Actual Cause
P must show the defect existed when product left D’s control. Here,
Neg Products Liability - Proximate Cause
P’s misuse of the product can be foreseeable. Further, a retailer’s failure to discover a defect does not supersede the original manufacturer’s negligence unless the wholesaler’s conduct exceeds ordinary foreseeable negligence. Here,
Neg Products Liability - Damages
Physical or property damages must be shown in order to recover. Here,
Implied Warranty of Merchantability
Implied in every sale of goods is a warranty that the goods are fit for their ordinary purpose. Here,
Implied Warranty of Fitness for a Particular Purpose
If the seller knows or has reason to know the buyer will use the product for a particular purpose, and the buyer relies on the seller’s skills or judgment, then the sale implies that the goods are fit for that purpose. Here,
Express Warranty
An express warranty is when the seller makes a factual statement about the characteristics of the goods that becomes part of the basis of the bargain. The seller may be liable if a product falls short of an express warranty made by the seller. Here,
Misrepresentation
A seller will be liable for misrepresentation if a statement of a material fact is made concerning the quality or uses of goods and the seller intended the statement to induce reliance by the buyer. Mere puffery is not sufficient. Here,
Vicarious Liability: Respondeat Superior
An employer is responsible for the tortious acts of their employees if the tort was committed within the scope of their employment. Employers are usually not responsible for the intentional torts of their employees unless their job duties include use of force (bouncers). Here,
Vicarious Liability: Independent Contractor
Generally, the principal is not liable for the acts of an independent contractor unless: 1) the contractor was engaged in an inherently dangerous activity, or 2) the duty now non-delegable by the principal. Here,
Vicarious Liability: Partner or Joint Venture
Each partner is vicariously liable for any other partner’s torts committed within the scope of the partnership. Here,
Vicarious Liability: Driver/Owner of Automobile
Under common law, owner of an automobile is not vicariously liable for the tortious acts of the driver. However, under modern law, an owner may be held liable if his…
Vicarious Liability: Parent/Child
Parents are generally not liable for the torts of their children. However, a parent may be held separately negligent if they had reason to know of a child’s propensity to injure or the parent’s conduct facilitated the child’s tort (i.e. leaving a gun out). Here,
Vicarious Liability: Tavern Keeper
Businesses serving alcohol may be held liable if a P is injured by an intoxicated patron if the business was negligent in serving the patron alcohol. Here,
Joint and Several Liability
J/S liability arises if the acts of two or more D’s combine to produce a single injury. Each D is jointly and severally liable for the entire harm if his individual act was a substantial factor in bringing about P’s injury. Here,
J/S Liability: Contribution
A D who pays more than her share of the damages under J/S liability can assert a claim against other liable parties for the excess paid. Contribution is usually imposed in proportion to relative fault. Here,
J/S Liability: Indemnity
Indemnity is the shifting of the loss between and amongst Ds. It is available by contract, in vicarious liability situations, or under strict products liability. Here,
Wrongful Death
A spouse can also bring wrongful death claim on behalf of estate. At common law, a tort action abated at the death of the victim. However, most states now have “survival acts” allowing a victim’s cause of action to survive and permits recovery of all damages from time of injury to time of death. Recoverable damages are medical bills, funeral expenses, lost wages, damages for pain and suffering. Here,
Immunities
Parent/child immunity - suits between parents and un-emancipated minor children
Spousal immunity - most states have abolished
Charitable immunity - nonprofits, schools, museums (most states have abolished)
Government immunity - for discretionary functions. Policy making decisions, allocation of money
Malicious Prosecution
To establish a prima facie case for malicious prosecution, P must show that 1) the institution of criminal proceedings against P, 2) termination of proceedings in favor of P, 3) D had no probable cause for the original proceeding, 4) D had an improper purpose in initiating the proceeding, and 5) damages. Here,
Abuse of Process
Abuse of process arises when D uses the legal system as an ulterior purpose to threaten or act against P. P must show 1) wrongful use of process for an ulterior purpose, 2) a definite act or threat against P to accomplish an ulterior motive, and 3) damages. Here,
Tortious Interference with Contract
P must show: 1) P has a valid contract or business relationship, 2) D has knowledge of the contract or relationship, 3) D intentionally interferes with that relationship, 4) D’s interference causes a breach or termination of the contract, and 5) damages. Here,
Intentional Misrepresentation (Fraud)
Intentional misrepresentation requires a showing of: 1) affirmative misrepresentation of a material fact, 2) knowledge that the misrepresentation is false, 3) intent to induce P to act or refrain from acting in reliance on the misrepresentation, 4) actual and justifiable reliance by P, and 5) damages. Here,
Negligent Misrepresentation
Negligent misrepresentation requires a showing of: 1) a misrepresentation by D concerning a past or existing material fact, 2)_ that breaches the duty of care owed to P, 3) D has no reasonable grounds to believe the statement is true, 4) actual and justifiable reliance by P, and 5) damages. Here,
Nuisance
Tortious invasion of either public or private property rights. Nuisance is a harm caused by tort, not a tort itself.
Public Nuisance
A public nuisance is the unreasonable interference with health, safety, or property rights of the community at large. The G usually brings these suits. Here,
Public Nuisance - Special Damages
For a private individual to bring this type of suit, they must show some sort of “special damage” beyond that of what the public in general is suffering. Here,
Private Nuisance
A private nuisance is a substantial and unreasonable interference with another individual’s use and enjoyment of her property. Here,
Private Nuisance - Substantial Interference
The interference must be offensive, annoying, or inconvenient to the average person in the community. Here, (look out for sensitivities)
Private Nuisance - Unreasonable Interference - Balancing
Severity of P’s injury must outweigh the utility of D’s conduct. Here,
Coming to the Nuisance
A P cannot recover if he “came to the nuisance” for the sole purpose of bringing suit. Here,
