Torts Flashcards
Effect of hypersensitivity of plaintiff
None
Incapacity defense
None. Always have capacity
7 intentional torts
battery, assault, false imprisonment, IIED, trespass to land, trespass to chattel, conversion
Elements of battery
1) defendant committed a harmful or offensive contact; and 2) contact was with the plaintiff’s person
Offensive touching
offends reasonable sense of personal dignity
Contact
has to be with plaintiff’s person, including anything touching plaintiff
Elements of Assault
1) defendant must place plaintiff in reasonable apprehension; 2) of an immediate battery
Reasonable Apprehension
plaintiff has reason to know or believe, does not indicate fear
Effect of words on assault
words alone lack immediacy, need some sort of conduct (menacing gesture); can also negate immediacy
Conditional threats
do not suffice for immediacy for assault
Effect of plaintiff not seeing action in anticipation of a battery
no assault
Elements of false imprisonment
1) defendant commits act of restraint; and 2) plaintiff confined in a bounded area
Types of acts of restraint
1) threats which must act on the mind of a reasonable person; 2) omissions if pre-existing duty to help plaintiff move about
Effect of plaintiff not knowing about restraint
no false imprisonment
What is not a bounded area
area not bounded if there is a reasonable means of escape that plaintiff can reasonably discover. If way out is disgusting/humiliating then not reasonable
Elements of IIED
1) defendant must engage in outrageous conduct; 2) plaintiff must suffer severe emotional distress
Intent for IIED
can be either intent or recklessness
Outrageous conduct by defendant without severe emotional distress on the part of the plaintiff
no IIED
Restatement definition of outrageous conduct
conduct that exceeds all bounds of decency tolerated in civil society, mere insults not outrageous
Hallmarks of outrageous conduct
conduct that is continuous or repetitive, defendant is a common carrier or innkeeper, plaintiff member of a “fragile class” of persons, when defendant knows about plaintiff’s hypersensitivity and exploits it
Fragile class of persons
young children, the elderly, pregnant women
Evidence to prove IIED
evidence that plaintiff severely distressed, but do not need any particular evidence NOR that plaintiff suffered physical symptoms
Elements of trespass to land
1) defendant commits an act of physical invasion that; 2) interferes with plaintiff’s exclusive possession of the land
Ways to commit trespass to land
1) physically entering the land; 2) throwing a physical object onto the land (not floodlights or loud noise)
Effect of intent of defendant in trespass to land
none. Defendant does not need to know that he has trespassed. Only need intent to get to location in question. However, if plaintiff is unconscious, then no intent (e.g., sleep walking, fainting)
Who the claim of interference with possession of land belongs to
actual possessor of the land, not necessarily the owner if owner is renting out, etc
Possessor’s land rights
right to air above and soil below out to a reasonable distance
Trespass to chattels/conversion
Intentional interference with personal property
Personal Property
Anything you own that is not real estate or buildings
Ways to interfere with personal property
1) physically damage; 2) steal it
Trespass to chattels v. conversion
Degree of interference. modest = t.c.; severe = conversion (basically a forced sale)
Affirmative defenses to intentional torts
1) consent; 2) protective privileges; 3) necessity
Defense of consent
defense to all 7 intentional torts, first question is did plaintiff have legal capacity to consent?
Capacity for consent vis-a-vis children
children have capacity to consent to age appropriate touching
Remedy for trespass to chattels
cost of repair
Remedy for conversion
full value of item damaged
Types of consent
express; implied
Express consent
declaration in words giving the defendant permission to act in a way that otherwise would be a tort
Exceptions to express consent
Consent void if obtained by fraud or duress
Implied consent
arise from custom where plaintiff goes to a place/engages in an activity where certain invasions routinely take place; can be based on reasonable interpretation of plaintiff’s objective conduct
Scope of consent
all consent has scope and if exceeded then no defense
Scope of consent for medical procedures
doctor operates on remote area = no implied consent; doctor operates on immediate area = implied consent
Protective privileges (intentional torts)
self defense; defense of others; defense of property. All involve responding to a threat
Rules of protective privileges
1) proper timing (must react to threat as it happens or when it it imminent); 2) defendant must have reasonable belief that threat is genuine (allows for reasonable mistake); 3) response must be proportional/ncessary
Deadly force and privileges
can use deadly force for self defense and defense of others when other person threatens with deadly force; NOT allowed for defense of property (nor can you use deadly mechanical devices to protect property)
Defense of necessity
only applies to property torts
Types of defense of necessity
1) public necessity; 2) private necessity
Public necessity
defendant invades plaintiff’s property in an emergency to protect community as a whole or a significant group of people. Absolute defense
Private necessity
defendant invades property of plaintiff in an emergency to protect interest of his own (safety or goods)
Consequences of private necessity
1) defendant liable for compensatory damages (actual harm to property); 2) defendant never liable for nominal or punitive damages; 3) as long as emergency continues defendant cannot be thrown off plaintiff’s land
Elements of defamation
1) defendant must make a defamatory statement that specifically identifies the plaintiff; 2) must be publication of the statement; 3) damages
Defamatory statement
statement that adversely effects reputation (typically factual statement reflecting poorly on one’s character; mere name calling does not suffice)
Identify plaintiff (defamatory statement)
name actual used or identify plaintiff by some other easily identifiable information; plaintiff must be alive at time statement made
Statement that speaks of a group
small group = each member has coa; big group = no one has coa
Publication
nothing to do with books or printing presses, suffices to merely tell one other person (can say defaming statement to plaintiff alone), doesn’t have to be intentional, can be negligent
Libel
written/recorded defamatory statement
Slander
spoken/oral defamatory statement
Slander per se
presumed damages; 4 categories (closed list)
Categories of slander per se
1) statement deals with plaintiff’s business or profession; 2) statement that plaintiff committed a crime of moral turpitude; 3) statement imputing chastity on a female (premarital sex); 4) statement that plaintiff suffers from loathsome disease (leprosy or STD)
Slander not per se
no presumption of damages and have to prove economic loss
Affirmative defenses to defamation
1) consent; 2) truth (defendant has bop); 3) privileges
Absolute privileges to defamation
Based on status of communicator. 1) spouses; 2) judicial/legislative/executive in conduct of activities (note for judicial includes judge, jury, witness, parties, counsel); 3) members of the media for fair reporting on public proceedings (if accurate)
Qualified privileges to defamation
based on circumstances of speech. Comes into existence when public interest in encouraging candor. 1) speak/act in good faith; 2) have to confine to statements that are relevant
Matter of public concern
special case of privilege for defamation. Something that is newsworthy and public benefits from knowing. In these cases plaintiff must also prove: 1) falsity of statement; 2) fault (if plaintiff a public figure - plaintiff must show defendant knew statement false or was reckless in publishing; if plaintiff private - plaintiff may also show negligence in publishing)
Privacy
1) appropriation; 2) intrusion; 3) false light; 4) disclosure
Appropriation
defendant uses plaintiff’s name or image for commercial purpose (does not need to be a celebrity). Newsworthiness exception (e.g., cover of newspaper/Sports Illustrated)
Intrusion
an invasion of plaintiff’s seclusion by the defendant in a way highly offensive to the average person; must be in a place with expectation of privacy
False light
defendant makes widespread dissemination of a material falsehood about plaintiff highly offensive to average person (can overlap with defamation. Get economic damages for defamation, get emotional damages for false light)
Disclosure
widespread dissemination of confidential information about plaintiff that would be highly offensive to average person. Newsworthiness exception and only available if facts truly private and not just compartmentalized private
Elements of negligence
1) duty; 2) breach; 3) causation (legal and factual); 4) damage
Duty (negligence)
legally imposed obligation to take risk reducing precautions
Who duty is owed to (negligence)
foreseeable victims
Unforeseeable victim
individuals outside zone of danger (Palsgraf). Exception: rescuers
Amount of duty owed
that equal to amount given by reasonably prudent person acting under similar circumstances. Objective standard, don’t make allowances for plaintiff’s particular characteristics
2 exceptions to reasonably prudent person standard
1) superior skill/knowledge about material relevant to case - then standard becomes a reasonably prudent person with that skill/knowledge (can be body of knowledge or specific knowledge); 2) defendant’s physical characteristics where relevant
Special duty of care rules
children, professionals, premises liability, duties to act affirmatively, NIED
Duty of care for children
<5, none; 5-18, hypothetical child of similar age, experience, intelligence acting under similar circumstances EXCEPT when child is engaging in an adult activity
Adult activity
one that imposes a significant risk of harm. Usually operating a motor vehicle
Duty of care for professionals
obligated to exercise skill and knowledge normally possessed by those in that same profession in good standing in similar community (conformism)
Similar community
community analogous to one where defendant primarily works, geographic (i.e., big city docs to big city docs; small down docs to small town docs)
Types of entrants
undiscovered trespasser, discovered/anticipated trespasser, licensee, invitee
duty owed to undiscovered trespasser
none
discovered/anticipated trespasser
where possessor knows that people continually trespass on property
duty to discovered trespasser
duty to protect from conditions that are 1) artificial, 2) highly dangerous, 3) concealed (not open and obvious), 4) were known in advance to possessor (no duty to investigate)
licensee
enter land with permission from possessor but not for possessor’s economic or business benefit; also people who come to solicit at your door have implied license to be there
duty to licensee
duty to protect from conditions that are 1) concealed/hidden (not open and obvious), and 2) that were known about in advance (no duty to investigate)
invitee
enter land with permission and either 1) confer economic benefit to possessor or 2) land is open to the public
duty to invitees
protect from conditions that are 1) concealed to invitee, and 2) condition defendant knew about in advance OR could have discovered through reasonable inspection (duty to protect against all reasonably knowable traps on land)
firefighter exception
firefighters and police officers never recover for negligence for injuries that are inherent risks of their job
Child trespassers/attractive nuisance doctrine
property possessor owes vanilla negligence standard of care (reasonably prudent person) to protect trespassing children from dangerous artificial conditions on land; liable even if the thing that attracted the kid onto the land in the first place wasn’t what hurt the kid
Ways to satisfy duty of care in premises liability
1) fix problem; 2) give warning
Statutory standards of care
Can borrow std of care from criminal statute if 1) plaintiff can show he’s a member of the class of persons the statute is designed to protect, and 2) plaintiff shows the accident is in the class of risks statute trying to prevent (class of person-class of risk test)
Effect of failure to borrow from criminal statute
Litigated under r.p.p. standard
Exceptions to statutory standards of care
1) if statutory compliance more dangerous than compliance; 2) if statutory compliance impossible
Duties to affirmatively
none (ex: no duty to rescue) EXCEPT 1) pre-existing relationship with person in peril (common law: legal relationship; modern: trend toward any relationship); 2) defendant put plaintiff in peril/caused the peril (even if defendant not negligent)
NIED
negligent defendant, no trauma to plaintiff’s body, but plaintiff left emotionally distressed
Types of NIED
1) near miss: defendant’s negligence didn’t hurt plaintiff but almost did; 2) bystander case: defendant negligently hurt X, and plaintiff suffers emotionally for seeing it; 3) relationship cases: plaintiff and defendant in pre-existing business relationship AND highly foreseeable that if business done carelessly, distress will result (e.g., patient’s lab work)
Near miss rule for recovery
plaintiff can only recover if he was in “zone of danger” and had subsequent, physical manifestations
Bystander case rule for recovery
1) plaintiff and X must be close family (spouse and child always count); 2) plaintiff must be physically present and see the accident as it happens)
Res ipsa loquitor elements
1) plaintiff must show accident type that is normally associated with negligence and 2) accident is of a type normally due to someone in defendant’s position
Effect of showing res ipsa
case gets to go to the jury, and jury gets to decide if it wants to accept or reject
Types of causation
1) Factual causation (establishes connection between breach and injury); 2) proximate causation (i.e., fairness/foreseeability)
Standard test for factual causation
but-for; requires us to imagine alternative universe where defendant acted carefully and if plaintiff escapes injury in that world then defendant but-for cause
Types of multiple defendant cases
1) merged causes (multiple defendants each of whom commit own breach and the destructive forces then combine/merge to hurt plaintiff); 2) unascertainable cause (multiple breaches/defendants, each equally likely to cause the singular harm and plaintiff cannot show preponderance of the evidence who caused it)
Merged cause test
substantial factor test: breach that could have caused all the harm if it had been the only force in the story then both defendants held jointly and severably liable
Effect of unascertainable cause
BOP shifts to each defendant to show not their breach, and if they can’t do it then they are jointly and severably liable
Proximate cause groups
1) direct cause question (defendant breaches, plaintiff suffers near immediate harm) - harm almost always foreseeable, only deny recovery if consequences freakish and bizarre; 2) indirect cause (something happens between breach and injury)
4 situations (well-settled quartet) where courts find foreseeability
1) intervening medical malpractice; 2) intervening defective rescue; 3) intervening protective or reactive forces; 4) subsequent disease or accident
Other fact patterns foreseeability test for proximate cause
Ask what is the harm I’m worried about with this breach. If matched with plaintiff’s injury, then defendant’s breach is proximate cause
Eggshell skull doctrine
once plaintiff establishes all other elements of negligence except damages, defendant liable for all damaged suffered by plaintiff even if surprisingly large (note: covers every tort)
Affirmative defense to negligence
Comparative negligence: defendant allowed to show plaintiff failed to exercise proper care for own safety (reasonable prudence). Once it comes in, jury must evaluate percentages of fault and reduce plaintiff’s recovery to that effect
Types of strict liability
1) injuries caused by animals; 2) abnormally dangerous activities; 3) products liability
Types of claims for injuries caused by animals
1) domesticated animals; 2) wild animals
Rule for injuries caused by domesticated animals
generally no strict liability except when owner aware of animal’s dangerous propensities (one bite rule) EXCEPT for trespassers
Rule for injuries caused by wild animals
Strict liability even if reasonable precautions taken
Test for abnormally dangerous activity
1) one with foreseeable risk of serious harm even when reasonable care exercised (cannot be made safe); 2) not common in community where defendant conducts the activity…most common: blasting, dangerous chemicals/biological items, radiation/nuclear energy
Elements of products liability
1) must be a merchant; 2) product is defective (plaintiff has bop); 3) product has not been altered since it left defendant’s hands); 4) plaintiff has show he was making foreseeable use of the product (certain product uses are foreseeable)
Merchant
one who routinely deals in goods of this type (NOT casual sellers)
4 types of merchant problems
1) casual seller (not); 2) service providers providing products incident to service (not); 3) commercial lessor (are); 4) every firm in distribution chain subject to strict liability and consumer has coa against each
Types of defective products
1) manufacturing defect; 2) design defect; 3) information defect
Manufacturing defect
if product differs from all others that came off assembly line in a way that makes it more dangerous than consumers expect (safety precautions don’t matter)
Test for design defect
If there’s another way product could have been made and 1) safer alternative design exists, and 2) a.d. cost effective or equal, and 3) a.d. practical (doesn’t interfere with primary purpose)
Information defect
if product has residual risk that can’t get rid of, and consumers wouldn’t be aware of those risks and the product lacks an adequate warning (adding warning only applies to residual risks cannot design out AND must be adequate)
Presumption for if product has been altered since leaving defendant’s hands
If product has moved in ordinary channels of distribution (i.e., isn’t sold used), then presumption that product hasn’t been altered since leaving defendant’s hands
Defense to strict liability
comparative responsibility, any plaintiff fault results in assignment of fault and reduction in recovery
Nuisance
plaintiff proves that defendant interferes with ability to enjoy his property to an excessive or unreasonable degree
Test for nuisance
balance interests of defendant’s interest in using land in accordance with zoning laws and plaintiff’s interest in being able to enjoy property without unreasonable/excessive interference
Vicarious liability
Holds passive party liable for someone else’s tort based on relationships
Relationships implicated for vicarious liability
1) employer-employee; 2) hiring party-independent contractor; 3) auto owner-driver; 4) parent-children
Employer-employee VL
employer liable for tortfeasor employee if employee acting in scope of employment
VL for intentional employee torts
No liability except when 1) physical force part of job description; 2) job that generates friction; 3) any intentional tort that’s an effort to serve employer’s interest
hiring party-independent contractor VL
hiring party not generally liable except when independent contractor hurts an invitee on the property
parent-children VL
not generally liable with some small statutory exceptions
auto owner-driver VL
generally not liable except when owner lends car to driver to carry out an errand for the owner
General rule for recovery by one co-defendant from other co-defendants after plaintiff’s debt satisfied entirely from one defendant
jury assigns percentage of fault and each defendant liable for that percentage, so the one defendant can collect the percentages of damages from the others
Exceptions to rule of recovery from co-defendants by singular co-defendant
1) defendant held vicariously liable - then gets full indemnification from tortfeasor; 2) in products case - retailer can get full indemnification from manufacturer
Loss of consortium
if tort victim married, uninjured spouse can get separate coa against original defendants
Types of loss of consortium damages
1) loss of services; 2) loss of society; 3) loss of sex
