Torts Flashcards
ASSAULT: TORTIOUS INTENT and IMMEDIACY. Assault requires D to tortiously intend and create a reasonable apprehension of immediate harm in P and actually cause it. If D makes a future threat, he has to do it with an overt act then and there (picking up a weapon) because mere threats are not enough.
When D creates (1) Reasonable Apprehension of (2) Immediate Harm/Offensive Contact to P and has (3) Tortious Intent and (4) Causes It
IMMEDIATE HARM - Does threatening future harm count? Only when you add in an overt act (“I’ll kill your family tomorrow” I say, while waving a gun)
MERE THREAT/WORDS ALONE - insufficient without a threat and an overt act
TORTIOUS INTENT - it’s not assault if you just wanted to play a prank on your friend and jumped out in front of P instead, scaring her
BATTERY: TORTIOUS INTENT. It’s enough just to intend to make contact with the person, even if you didn’t mean to actually injure them.
Intent to cause harmful or offensive contact to P’s person is met as soon as there is an intent to make contact enough. The best defense to battery would then be that there’s no intention to make contact at all. Intent to also cause fear is enough to meet the requisite mens rea (like with assault).
IIED (NO physical symptoms required): “Extreme and Outrageous”
(1) EXTREME and OUTRAGEOUS CONDUCT** because of
(2) D’s INTENT or RECKLESSNESS
(3) Causing Emotional Distress (no physical symptoms required here)
“Is it really Extreme and Outrageous?”
Yes, when:
- P has a sensitivity or is part of a fragile class
- D keeps fucking doing it (Continuous)
Bystander IIED (NO physical symptoms required): “Present at Scene” and “D Knew P was there”
(1) SERIOUS INJURY OR MURDER OF 3rd PERSON
(2) CLOSELY RELATED TO P
(3) AND P WAS ACTUALLY THERE AT THE SCENE and D KNEW IT and P SUFFERED EMOTIONAL DISTRESS (physical symptoms not required)
NIED (physical symptoms ARE required): “Zone of Danger” + Physical Symptoms
Can recover from D’s negligence if you were:
1) In ZONE OF DANGER
(2) You have emotional distress that created PHYSICAL SYMPTOMS (heart attack, miscarriage, etc.
Bystander NIED (NO physical symptoms required): “Present at Scene”
(1) INJURY OF 3rd PERSON
(2) CLOSELY RELATED TO P
(3) AND P WAS ACTUALLY THERE AT THE SCENE
Weird Negligent Situations that have a “Great Likelihood” of causing Emotional Distress, even without proving physical symptoms (NIED) or having the person be at the scene or in the zone of danger.
- Telling someone they are terminally ill when they aren’t!
- Mishandling a loved one’s corpse
- Telling someone their kid died when they didn’t! Oops.
Not implicated where doctor’s ordinary negligence causes emotional distress of a family member and there is no “great likelihood” element.
Defamation (FOR NORMIES): Third Party + Damage in Community
Defamation (FOR FAMOUS PEOPLE): Third Party + Damage in Community + Actual Malice (knew it was a lie)
A (1) Defamatory remark, made to a (2) Third-party who understands it, even if they don’t share it, that causes (3) Damage to P’s Reputation in the Community (it’s enough for people just to hear it)
If it’s a famous person, you need all this plus ACTUAL MALICE (knew the statement was false and lied or recklessly disregarded it anyway)
What’s Qualified Privilege? If you claim it, can you still be sued?
This is a defense against a Defamation claim if the person who made the defamatory remark only to promote truthfulness or if it was related to a fair comment and criticism (e.g., reporters, critics, letters of recommendation)
Still on the hook for ACTUAL MALICE.
News-reporting exceptions apply for these media-related torts:
- APPROPRIATION - use of P’s name or likeness for commercial purposes without P’s consent (unless reporting or reenacting news)
- DISCLOSURE - public disclosure of P’s private information (unless private facts are revealed in the course of reporting the news)
If D causes a “chain” car accident, are they liable for injuries of 2nd Plaintiff they never saw?
Yes, because D created a foreseeable risk of injury at the time of the original accident, so he owes the 2nd Plaintiff a duty of care.
Specialized Duties of Care
- COMMON CARRIERS & PASSENGERS - company has duty to protect customers and passengers from foreseeable acts of third-parties or animals in conditions that the company created.
- PARENTS PROTECTING CHILDREN - heightened duty to protect and supervise.
- HOSPITAL & MENTAL PATIENT - even outside “scope of employment”
- WARDEN & INMATE
Negligence Per Se
Violation of a statute means P must only prove causation and not breach of duty, where the statute (1) provided a criminal penalty or clearly defined conduct; (2) P is in a class of people the statute tried to protect and (3) suffered the harm the statute tried to prevent
Negligence Per Se Defenses
- Compliance with the statute was more dangerous than non-compliance, or
- Compliance was impossible under the circumstances, or
- Non-compliance did not CAUSE the accident in the first place
Duty of Care to Trespassers (Anticipated & Not Anticipated)
- Not Anticipated: NO DUTY
- Anticipated Trespassers: (1) RC & (2) Duty to Warn/Make Safe
Duty of Care to Licensees (Friends, Social Guests)
RC & Duty to Warn/Make Safe
Duty of Care to Invitees (Business Customers)
RC & Duty to Warn/Make Safe & (3) Duty to Inspect for non-obvious dangers
Slander Per Se (don’t have to prove there was an economic loss)
Defamatory statement that concerns P’s:
(1) Professional Reputation;
(2) Loathsome Disease;
(3) Crime Involving Moral Turpitude; or
(4) Woman’s chastity
Defenses to Res Ipsa Loquitor (inference of negligence due to D’s exclusive control with injury not attributable to P)
D didn’t have exclusive control over the instrument:
- Presents evidence that somebody else had access to it
- Or that harm occurred way after they had access to it (e.g., 2 years after D sold the instrument)
If P contributed to their own injury (crashed his bike), is D still the ACTUAL CAUSE of the injury (hit him with car after)?
Yes. Even if P recklessly contributed to the injury, it is D’s negligence that is a substantial factor in bringing about P’s injury.
Where contributing acts occur after D’s conduct and combine with that conduct to cause P’s injuries, D will be liable if the injury was foreseeable.
D is still liable for these after the injury occurs because they are all considered to be FORESEEABLE:
(1) Doctor’s negligence after injury
(2) Rescuer’s negligence
(3) P refusing treatment or subsequently injuring themselves after the injury
(4) Third party’s negligence
(5) Third party’s criminal act
(6) Foreseeable acts of God (e.g., hammer falls off roof)
ONLY NOT LIABLE FOR UNFORESEEN ACTS OF GOD LIKE BRIDGE COLLAPSING AFTER ACCIDENT
If two people cause the injury, who is liable?
Both are liable for the ENTIRE harm, not just half, where their conduct combined to cause the injury. They will be jointly and severally liable.
Pure Comparative Negligence (MBE default)
P can still recover even if he is more than 50% at fault.
Modified Comparative Negligence
P can only recover if he is less than 50% at fault.
You’re in a Pure Comparative Negligence jurisdiction. There’s an accident and P wins $100,000 in damages. P is 40% at fault, D1 is 30% at fault, and D2 is 30% at fault. How much can you recover from D1 under Joint & Several Liability? Under Several Liability?
- P can still recover if he’s 40% at fault, both under Pure and Modified Comparative Negligence
- Can collect 60% from D1 under J&S Liability (and D1 can seek a Contribution Claim against D2)
- Can only collect 30% from D1 under Several Liability
Strict Liability for Animal Conduct:
(1) There’s REASONABLY FORESEEABLE property damage from a wild animal (not domestic);
(2) Reaction to a wild animal causes an injury;
(3) Owner of a domestic animal had reason to know of animal’s dangerous propensity (2nd bite law)
**Doesn’t apply to trespassers injured by wild animal
Strict Liability for Products:
(1) Is it from a Commercial Supplier or a Service Provider? SL will only apply to Commercial Supplier and it won’t matter if they satisfied a duty of care (e.g., manufacturer, distributor, supplier, salesman, etc. NOT technician or dentist)
(2) Product defective when it left D’s control (not just during usage);
(3) Defect of product caused P’s injury when product was;
(4) Used in a foreseeable manner (even an arsonist using a lighter to light a cigarette)
Defenses to Strict Products Liability
- INDEMNIFICATION: if another party (like the designer) is solely responsible for the defect, the manufacturer can seek indemnification against the designer for a design defect
- ASSUMPTION OF THE RISK: assumed that specific risk; cannot just extend from using a product or taking a product you weren’t allowed to take (foreseeable)
- PURE COMPARATIVE NEGLIGENCE
Private Nuisance v. Public Nuisance
PRIVATE NUISANCE - substantial interference with someone’s enjoyment of their property in a way that is annoying or offensive to an average person in the community (even if that person doesn’t specifically feel it). The creator of a Private Nuisance will be liable for all harm resulting proximately from the nuisance, both personal and property. It doesn’t matter if there was no reasonable alternative for the party who caused it.
PUBLIC NUISANCE - unreasonable interference with health, safety, convenience, or property rights of the community at large (blocking a public highway, etc.); can get damages if you suffered an injury unique to the ordinary damages everybody else suffered in the community
When is an Employer Vicariously Liable for his Employee?
(1) Employer is vicariously liable for negligence committed by his employee during the “scope of employment”;
(2) Employer is liable for the intentional torts of his employee only if force was an inherent part of the job.
When is an Employer Vicariously Liable for an Independent Contractor?
Usually, an Employer is not Vicariously Liable for an Independent Contractor UNLESS:
(1) Contractor is doing an inherently dangerous act (blasting or window-washing); or
(2) Contractor’s duties are non-delegable
Using Self-Defense to Defend Another
Anyone can go to the defense of another threatened with SERIOUS BODILY INJURY. The third-party may use any force reasonably necessary for such defense, like DEADLY FORCE in response to the threat of SERIOUS BODILY INJURY. The threat of harm to the other person must be immediate (no past attacks or future threats).
Invasion of Privacy is actually the general tort encompassing Appropriation, Intrusion on Seclusion, Disclosure, and False Light. A store using a celebrity’s photo as an endorsement, even if they thought they had permission, is Appropriation.
Appropriation occurs when someone’s image or name is used for their another party’s commercial advantage, without the consent of the person. Mistaken belief of permission is not a defense, especially when there’s no reasonable attempt to get permission.
Is “Inviting Libel” a valid Defense to Libel?
Yes. The consent of another to the publication of defamatory matter concerning him is a complete DEFENSE to his action for defamation. This is implicated where a professor authorizes agents to investigate his case and get an honest Letter of Recommendation from a dean of the school.
False Imprisonment
(1) Willful detention;
(2) Without consent;
(3) Unlawful (not unlawful if done in self-defense or defense of others)
Negligent Misrepresentation vs. Fraud
Negligent Misrepresentation: made by the defendant in a business or professional capacity (not by a casual seller)
Fraud: (1) Defendant makes misrepresentation; (2) Knows it was false; (3) Defendant intended to induce Plaintiff’s reliance on the misrepresentation; (4) Plaintiff relied on it; (5) Reliance was justifiable; and (6) There are damages.
