Torts Flashcards
Licensee
Person who enters land w/ permission for own purpose or business rather than for benefit of owner; Also Social Guest
Duty To protect against: (All KNOWN Traps)
o 1- (natural or artificial) Condition CONCEALED from licensee
AND
o 2- Condition is one D KNEW of in advance
No duty for D to inspect
No duty outside scope of invitation in different part of property
Invitee
Person enters w/ permission and confers econ. Benefit,
o OR land open to public as a whole (invitee at Mall)
Duty to warn or repair - if 2 part test (Reasonably knowable Traps on Land):
o 1- Dangerous condition concealed from Invitee
o 2- Dangerous condition Prop possessor either a) KNEW of in advance
o OR b) could’ve discovered through reasonable inspection (should’ve known)
Necessity Privilege Applies to…
privilege to interfere w/ real or personal prop of another where reasonably necessary to avert imminent harm
applies ONLY to 3 property torts (Trespass to land, Trespass to chattels, & conversion
Public, and Private Necessity (D liable for damage caused)
Pure Comparative Neg
P can recover no matter how much her fault was.
Partial Comparative Neg
plaintiff’s recovery will be barred if her negligence passes a threshold level of 49 or 50% (depending on juris). Combined Ds? plaintiff must still be less at fault than the COMBINED fault of Ds.
Most states have retained joint and several liability, whereby the plaintiff can recover all of her damages from either defendant. After the plaintiff recovers from one of the defendants, the paying defendant can then go after the nonpaying defendant for contribution.
Last Chance Doctrine - Inattentive Peril
Pf can recover despite his own contributory negligence under the doctrine of last clear chance. Under this rule, the person with the last clear chance to avoid an accident, who fails to do so, is liable for negligence. In effect, last clear chance is the plaintiff’s rebuttal against the defense of contributory negligence
If P has placed himself in INATTENTIVE peril (a position from which he could extricate himself if he were attentive), the defendant will be liable only if D actually KNOWS of the plaintiff’s predicament. (NOT liable if she only should have known of the peril.
Last Chance Doctrine - Helpless Peril
If a plaintiff has placed himself in a position of HELPLESS peril (a position from which he cannot extricate himself), the defendant is liable if she either had actual knowledge of the plaintiff’s peril or should have known of the peril.
Last Chance Doc - Exception
a defendant who was negligent prior to the accident is not liable if the plaintiff was contributorily negligent.
Scope of Assumption of Risk
Defense to reckless conduct. & wanton conduct, which is essentially gross negligence. Assumption of risk, however, is NOT a defense to intentional torts.
Knowingly and voluntarily assuming risk.
Assault
an act intended to cause Reasonable Apprehension (expectation) of Imminent harmful Contact; need intent and causation
Battery
act intended to cause harmful or offensive contact to Plaintiff or his person; Does NOT require damages; nominal damages are allowed
Ex.(could include removing P’s Chair as he sits, pushes bike as you sit on it,
Act in Concert
Creates Joint and Several Liab among all parties
False Imprisonment
1) Act (or Omission if spc duty) by D intended to 2) confine Vic w/in fixed boundaries and 3) causation • P Must be Conscious of Confinement • OR Harmed by it No reasonable means of escape • Length of confinement irrelevant.
transferred intent torts
A. Transferred Intent Applies (from person to person, or Tort to Tort) • 1. Assault • 2. Battery • 3. False Imprisonment • 4. Trespass to Land • 5. Trespass to Chattels
Torts damages Required
- Negligence
- IIED
- Trespass To Chattels
- Conversion
What are the Intentional torts?
All Babies Find interesting Teddies To Cuddle:
(7) Assault, Battery, False Imprisonment, IIED, Trespass to Land, Trespass to Chattels, Conversion
- No Incapacity Defense
Private Necessity
Qualified privilege to interfere w/ real or personal prop of another where reasonably necessary to avert imminent harm that is substantially more serious than invasion; NO liab for Trespass, but YES still liab for Damages
Conversion
act of Dominion and Control, intended to cause serious interference w/ P’s right to immediate possession.
• Remedy – fair market value of converted item at time of conversion – forced sale (NOT cost of replacement)
• “recover the board’s value” is signal for conversion
• INTEND – just means intend the consequences of act (ex. To take backgammon board)
o MISTAKE is NO DEFENSE
I can’t do stupid shit
Intent, causes, destruction of serious/substantial interference w/ P’s chattel.
Duty
ordinary duty to exercise reasonable care under the circumstances (for a person w/ those physical characteristics) Mental Deficiencies NOT relevant
Child standard of Reasonable Care
below 5 - NO duty
Ages 5 and UP: same education, intelligence, experience of child that age; doesn’t apply if adult activity
Attractive nuisance
(trespassing children doc); Jury usually must determine if Doc applies…
• Possessor of land is Subject to liab, for harm to trespassing children if:
o 1. Artificial dangerous condition on land (mine shaft)
o 2. Possessor knows or should know kids likely to trespass
o 3. bc of age, child fails to Appreciate danger or risk involved in specific act causing injury (often tested, subjective, THIS child)
o 4. Utility of maintain condition is SLIGHT compared to risks involved
-child need not have been harmed by what attracted him
S/L
S/L –(Abnormally dangerous activities, ultra hazardous activity, wild animal)
-Breach of absolute duty of care
-Actual Cause
-Proximate cause (type of harm expected)
Fleeing from the danger is included
-Damages!
Malice
knowing falsity or reckless disregard for truth (defamation)
o BOP - Private person, matter of Public Concern Defamation
Need to show Neg
Defamation
Tends to adversely affects Reputation
D – defamatory statement of Fact (tends to hurt reputation)
P – publication of statement to any TP who reasonably understands
D – Damages- general [injury to rep presumed] & special[pecuniary loss]
• Pecuniary loss NOT required for libel or slander per se
P – P must prove FAULT and FALSITY
If P is Public Official/figure –
• need actual malice (knowing falsity or reckless disregard for truth)
Private person, matter of Public Concern –
• need NEGLICENCE
Private person private concern –
• Need mere publication
D – Defenses (truth or privilege [qualified or absolute is fine])
Invasion of Privacy Torts– 4
- Commercial appropriation
- False light
- Public disclosure of private Facts
- Intrusion on Physical Seclusion
• Publication required for 1-3
Truth is NO defense
Special Damages NOT required
Privacy actions do NOT survive death.
-Newsworthy is DEFENSE for private facts disclosure
PRIVATE NUISANCE
Subtl and unreasonable interference w/ P’s use and enjoyment of his property;
Substantial = offensive, inconvenient, annoying to the average person in the community (no hypersensitivity)
Unreasonable? = balance severity of the injury against the utility of D’s conduct
-Reasonable Self Help/Abatement available to P after Notice and D’s refusal to act
Factors to determine if Feasible Altv Design (S/L Defect)
- Usefulness and desirability of the product;
- Availability of safer alternative products;
- The dangers of the product that have been identified by the time of trial;
- Likelihood and probable seriousness of injury;
- Obviousness of the danger;
- Normal public expectation of danger (especially for established products);
- Avoidability of injury by care in use of the product (including the role of instructions and warnings); and
- Feasibility of eliminating the danger without seriously impairing the product’s function or making it unduly expensive.
NOT Gov standards of compliance
breach of Mercantibility requires
seller is in business of that product
breach of Express Warranty
warranty must be part of the orig bargain
Implied warranty protection extends to…
a buyer’s family, household, and guests who suffer personal injury. (UCC)
Dramshop Act
creates c/a in favor of any TP injured by intoxicated vendee, creating liability. Only way to hold bartender liable (vicarious or otherwise)
battery
1) intent 2) harmful or offensive contact to P or his person, (not expressly or impiedly consented to) 3) causation
private nuisance
SUBSTANTIAL and
unreasonable (balancing test) interference w/ another’s use or enjoyment of his property - reas person standard
Defamation
1) defamatory statement 2) of or concerning P, 3) publication to TP (intentionally or negligently - if not reas forseeable no fault) and 4) damage to reputation
trespass to Chattels
1) act of D that interferes w/ P’s right of possession 2) intent to perform act (bringing about interference) 3) causation and
4) damages (more than just emotional);
Damages = cost of repair
Bailee for MUTUAL benefit -standard
ordinary due care
Bailee for only Bailee benefit -standard
bailee liable for even slight negligence; Bailor has duty to inform EE of known dangerous defects
Bailee for only Bailor benefit -standard
bailee liable only if grossly negligent
Must show Damages for lible?
no. Damages Presumed
Interference w/ business relations
1) existence of valid K between P and TP
OR a valid business expectancy of P;
2) D’s knowledge of said relationship/expectancy;
3) intentional interference w/ probable future biz relations which P had reas expectation of financial benefit
4) damage
however, PRIVILEGE if proper attempt to obtain biz (factors)
slander per se
Presumed Damages
• 1. Deals w/ P’s Business or Profession
• 2. Deals w/ Crime of Moral Turpitude (trickery, deceit, embezzlement, violence)
• 3. Imputing on Chastity to a Woman (slut, or sex before marriage)
• 4. P suffers from loathsome disease (leprosy, venereal disease STD)
Assumption of risk NOT available as defense for…
Intentional torts
status of Firefighter
LICENSEE (so inspection of property not required)
Intentional Tort “Intent” defn
person knows w/ substantial certainty that the expected consequence would result
(Ex. hit fan in stands w/ puck, touch woman; man would stay for bags)
qualified privilege for Defamation
- recipient of statement has interest in info and
2. it is reasonable for D to make the publication of the statement
Abnormally Dangerous Activity ADA requires
1) creates forseeable risk of serious harm even reas care is exercised by all and
2) activity is not a matter of common usage in the community
Intervening Force
an event that occurs after a tortfeasor’s initial act of negligence and causes injury/harm to a victim. Absolves the tortfeasor of liability only if the event is deemed unforseeable (ie a superseding cause).
Superseding force
unforeseeable intervening cause that breaks the chain of liability; both the act/event and the injury must be unforeseeable.
IIED
requires showing of 1) extreme or outrageous conduct, (beyond the bounds of decency)
2) done w/ intent to cause severe emotional distress (or recklessness as to the effects; neg is NOT suff),
3) causation, and
4) dmg of severe emotional distress
Bystander must be
1) present when injury occurs
2) close relative of victim and
3) Def must KNOW these facts or intend to cause B’s distress when he intentionally injures TP.
Intentional Tort defenses
POPCANS Defenses to intentional torts: POPCANS P- privilege O - Others (defense of) P- property (defense of) C - consent A - authority (ie police or private individ making arrest) N - necessity (only for 3 Prop Torts) S - self-defense NO defense of Incapacity.
Malicious Prosecution
Prima Facie Case
- w/o probable cause
- and for improper motive
- causes criminal proceeding to be instituted against P
- who prevails on the merits
- Damages
Abuse of Process
prohibits use of any form of process to bring about a result other than that for which the process was intended:
1) wrongful use of the process for ulterior motive
2) some definite act or threat against P to accomplish ulterior motive
False Light
revelation of facts that attribute to P views that she does not hold or action she did not take
1) publication of facts placing P in false light
2) false light is something that would be highly offensive to reas person
3) malice on D’s part where matter in public interest
Arrest Privilege
? misdemeanor arrest w/o warrant is privileged only if was breach of the peace and was committed in presence of arresting party.
Shopkeeper’s Privilege
Privilege for property owner or his agent to recapture his chattels by use of reasonable force (detention) or threat of force against individuals whom he reasonably believes to be in possession of shoplifted goods, provided action is in reasonable manner and for reasonable time.
-can also apply to any intentional tort;
to detain suspect if reas belief that theft was committed and detention is in reasonable manner and for reasonable amount of time.
duty Undiscovered Trespasser
no duty to undiscovered trespasser
duty Anticipated Trespasser
Duty to reasonably warn trespassers or make safe KNOWN Artificial conditions involving death or serious bodily harm
Torts Essay Approach
- Intentional Torts
- Defamation/Invasion of Privacy
- Negligence
- S/L
- Products Liability
- General Considerations (Vicarious or Joint Liab, wrongful death, immunities, contribution)
- Defenses
Trespass to Land
Interference w/ right of POSSESSION of the land
1. an act of physical invasion of P’s real property by D
2. Intent on D’s part to bring about physical invasion and (mere intent to enter land is suff)
3. causation (act causes invasion)
(can be brought by anyone in actual/constructive possession, even w/o title or legal right.
NIED
D created a foreseeable risk of physical injury to the Plaintiff.
- -w/in zone of danger
- Must show causation and
- Distress (manifested by physical symptoms)
Bystander must be
- closely related to victim
- present at the scene and
- perceived the injury as it occurred
Intentional Misrepresentation
(fraud, Deceit)
1. affirmative Misrep of a material fact (silence not suff)
2. made knowing or believing it to be false or there was no basis for the statement
3. intent to induce reliance
4. Actual reliance
5. justifiable reliance
and 6. Damages
Negligent Misrep
- Misrep by D in a business or professional capacity
- breach of duty toward P
- Causation
- justifiable reliance
and 5. damages
Duty of Care Cardozo
Majority View; owe a duty of care to all forseeable victims who are located within the zone of danger
Duty of Care Andrews
Minority View; All people are forseeable victims; Owe all people a duty of care
Rescuer
a rescuer is a forseeable victim when D negligently put himself or a TP in peril (danger invites rescue);
BUT a rescuer must be reasonably prudent in rescue or he will be liable for further harm
-duty of care due to rescuer
Negligence
- Duty of reasonable care to protect against unreasonable risk of injury to P
(common carrier/innkeeper has higher duty) - breach of duty
- actual cause
- proximate cause
and 5. damages to P’s person or property
Res Ipsa Loquitor
fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed permitting trier of fact to infer negligence.
MUST show 1. accident causing injury is the type that would not normally occur unless someone was neg
2. neg was attributable to D (Exclusive Control) and
3. Injury was not attributable to P
indemnification
Shifting ENTIRE loss between tortfeasors; if S/L each supplier has right of I against all PREVIOUS suppliers higher in the chain..not the other way around
Defenses to S/L products Liab
- misuse that is NOT forseeable OR
- assuming risk w/ knowledge of defect
OR 3. adequate warning
or no Knowledge of injury/problem before
NO privity required: strict duty owed to buyers, family, guests, friends, EEs of buyer, and forseeable bystanders
Products Liability
- Design Defect
- failure to Warn
- Manufacturing defect
Intrusion on Physical Seclusion
an act of intrusion upon the seclusion of P that would be highly offensive to a reasonable person, where the thing intruded upon is private
public disclosure of private facts
- publication or disclosure of P’s private information
- matter is such that its disclosure would be highly offensive to a reasonable person
Defenses - POPCANS; may be privileged if matter of one of legit public interest as long as NO malice
misappropriation
use of the likeness for commercial advantage
Defenses For Products Liab
- Assumption of Risk
- Product misuse
- Adequate warnings
- Contributory NEG IS NOT a DEFENSE!!!
Torts in Auto
CL Rule - auto owner not liable for torts committed by another person driving their car.
Statute - states have added liability
Family Car Rule - liable for conduct of immediate family member driving car or anyone driving w/ consent (permissible use rule)
Child Tort
parent NOT vicariously liable for torts of child
Assault
Tort- reasonable apprehension of harmful offensive contact
Crime - 1. Attempted Battery OR 2. reasonable apprehension of threat to bodily injury
