Torts Flashcards
Intentional Torts: Battery + Remember Offensive Meaning + Remember “Person”
A HARMFUL or OFFENSIVE CONTACT with the P’s PERSON intentionally caused by the D
Remember: Offensive means UNPERMITTED
Remember: Things touching or resting on a person (e.g. chair, horse, car)
Intentional Torts: Assault + Remember “Apprehension” + Remember Words Alone + Tip for Conditional or Future Acts
Intentional creation by D of a REASONABLE APPREHENSION of IMMEDIATE harmful or offensive contact to the P’s person
Remember: Apprehension may also mean knowledge
Remember: Words ALONE generally are not enough to rise to an assault
Tip: Look out for conditional words (e.g. I would hit you if…) or future acts (e.g. tomorrow I will beat you up), these ARE NOT ENOUGH to reach “reasonable apprehension”
Intentional Torts: False Imprisonment + Examples of Restraint + Remember D’s Knowledge + Remember Bounded Area
An intentional act or OMISSION by the D that causes the P to be CONFINED or RESTRAINED to a BOUNDED AREA
Examples of Restraint: THREAT of force, false arrests, and FAILURE TO PROVIDE a means of escape when UNDER A DUTY to do so
Remember: False imprisonment will only work if D KNOWS of the confinement or restraint AND is harmed by it
Remember: Bounded area means there is no REASONABLE means of escape the P can REASONABLY discover (i.e. escape cannot be dangerous, disgusting, humiliating, or hidden)
Intentional Torts: Intentional Infliction of Emotional Distress (IIED) + Remember Mere Insults and Repetitive Conduct + Remember Common Carriers and Innkeepers + Remember Advanced Notice of D’s Weakness + Tip for Proof of Distress
Intentional (or reckless) EXTREME and OUTRAGEOUS conduct causing SEVERE EMOTIONAL DISTRESS
Remember: Mere insults ARE NEVER considered outrageous for IIED; however, repetitive conduct of insults could be considered outrageous
Remember: Common carriers and inn keepers actions are held to a higher standard for “outrageous”
Remember: If D has advance information that P has some emotional weakness, then targeting that weakness IS OUTRAGEOUS
Tip: a P DOES NOT NEED to show evidence of severe emotional distress, so if an answer option states no IIED because no evidence, it is wrong
Intentional Torts: Trespass to Land + Remember Real Property Scope
An intentional act causing a PHYSICAL INVASION of plaintiff’s REAL PROPERTY
Remember: Real property extends beneath the property to the soil and above the property through the air
Intentional Torts: Trespass to Chattels + Compare with Conversion + Remember Conversion Remedy
An intentional act that causes an INTERFERENCE with the P’s RIGHT OF POSSESSION in a chattel, resulting in DAMAGES
Conversion: Very similar, but a more serious damage to the chattels
Remember: If conversion, the remedy is the FULL MARKET VALUE of the chattel (trespass to chattels is generally just cost of repair)
Doctrine of Transferred Intent + Intentional Torts Included in this Doctrine
Intent will transfer from the intended tort to the committed tort OR from the intended victim to the actual victim
Torts: Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattels
Intentional Tort Defenses: Consent + Exception + Remember Capacity + Remember Body Language
P’s EXPRESS or IMPLIED consent to D’s conduct is a valid defense to all intentional torts
Exception: If the consent was obtained through FRAUD or DURESS, the consent is invalid
Remember: P MUST HAVE capacity to consent and the D MUST NOT EXCEED the bounds of consent
Remember: A person may draw reasonable inferences from a persons body language to conclude implied consent
Intentional Tort Defenses: Self Defense, Defense of Others, Defense of Property + Remember Timing + Remember Reasonable Force
Defendant must REASONABLY BELIEVE that a tort is being or about to be committed against himself, a third person, or his property
Remember: Self-defense is ONLY AVAILABLE if the threat is IN PROGRESS or IMMINENT
Remember: Only REASONABLE FORCE may be used
Intentional Tort Defenses: Self Defense, Defense of Others, Defense of Property - Deadly Force + Remember Property
Deadly force is permitted if REASONABLY BELIEVED to be necessary to prevent SERIOUS BODILY INJURY
Remember: Deadly force is NEVER PERMITTED to defend ONLY PROPERTY
Intentional Tort Defenses: Self Defense, Defense of Others, Defense of Property - Shopkeeper’s Privilege
Permits the REASONABLE DETENTION of someone the shopkeeper REASONABLY BELIEVES has shoplifted goods
Intentional Tort Defenses: Public Necessity v. Private Necessity + Remember Partial or Absolute Defense + Remember Right of Sanctuary
Public: D commits a property tort to PROTECT THE COMMUNITY as a whole or a significant group of people (ABSOLUTE DEFENSE)
Private: D commits a property tort to PROTECT HIS OWN INTERESTS (PARTIAL DEFENSE)
Remember: In an emergency, the person is allowed to continue to trespass if the danger persists
Negligence: Elements of Prima Facie Negligence Claim
- Duty
- Breach
- Causation (Actual & Proximate)
- Damages
Negligence: Duty - General Standard of Care + Remember Reasonable Physical Characteristics
The general standard of care is that a person owes of a reasonable person acting under similar circumstances to foreseeable victims of their behavior
Remember: Where relevant, Ds physical characteristics are taken into consideration (e.g. blind D would have a standard of a reasonably prudent blind person)
Negligence: Duty - Exceptions to General Standard of Care
1) PROFESSIONALS must exercise the KNOWLEDGE and SKILL of an average member of the profession;
2) CHILDREN must conform to standard of care of a child of LIKE AGE, EDUCATION, INTELLIGENCE, AND EXPERIENCE (UNLESS engaged in an adult activity);
Negligence: Duty - Premises Liability Standards for Unknown Trespassers
Owed zero duty of care
Negligence: Duty - Premises Liability Standards for Known Trespasser (Anticipated Trespasser) + Remember Natural Conditions + Tip to Remember Elements
(i) Condition must be ARTIFICIAL to trigger a duty, (ii) condition must be HIGHLY DANGEROUS, (iii) condition must be CONCEALED (not opened and obvious), and (iv) owner of property must have PRIOR KNOWLEDGE of condition
Remember: No duty for natural conditions on the property
Tip: Look for KNOWN MAN-MADE DEATH TRAPS
Negligence: Duty - Premises Liability Standards for Licensee (Def + Duty) + Tip to Remember
Licensee’s enter land with express or implied permission, but for their own purpose (e.g. social guests)
Duty: Same duty as known trespassers (known man-made death traps) BUT ALSO all dangerous (moderately or slightly) artificial AND NATURAL conditions
Tip: Owners have a duty to protect licensees from ALL KNOWN TRAPS
Negligence: Duty - Premises Liability Standards for Invitees (Def + Duty) + Tip
Invitees are those entering as members of the public or for a business purpose (e.g. customers)
Landowner’s duty is same as for licensees (all known traps) PLUS the duty to REASONABLY INSPECT for dangerous conditions
Tip: Owners owe invitees the duty of REASONABLY KNOWABLE TRAPS
Negligence: Duty - Premises Liability Standards for Firefighters or Police Officers
Firefighters and Police Officers MAY NOT recover for any injury that is an INHERENT injury of THEIR JOB
Negligence: Duty - Premises Liability Standards for Trespassing Kids (Attractive Nuisance Doctrine)
Owners owe reasonably prudent care to prevent injuries to trespassing children from artificial conditions on the land
Negligence: Duty - Excusing Duties for Premises Liability
Notices that clearly warn others of dangers on property can excuse duty for premises liability for property owners (e.g. slippery when wet signs)
Negligence: Duty - Criminal Statutes Creating Liability (Negligence Per Se) + Exception + Tip
Criminal statutes may serve to establish standard of care, if:
1) the P is within the class that the statute was intended to protect, and
2) the statute was designed to prevent the type of harm suffered
Except: 1) When statutory compliance would have been more dangerous than violation, and 2) If statutory compliance is impossible (e.g. motorist has heart attack)
Tip: Look for violations of traffic codes to meet negligence per se duty
Negligence: Duties to Act Affirmatively + Example + Exceptions
There are no duties in the law that require citizens to act affirmatively
Example: There is no duty to rescue someone in peril
Exceptions: 1) If there is a pre-existing relationship there may be a duty to act reasonably (e.g. parent-child, employer-employee, innkeeper-guest)
2) If D is the one WHO CAUSED the peril, he has a duty to act reasonably, and
3) If a rescuer chooses to act, they must act reasonable
Negligence: Negligent Infliction of Emotional Distress Types of Cases and Elements + Remember Establishing Duty
Near Miss Cases: P must prove he was within the ZONE OF DANGER and ordinarily must SUFFER PHYSICAL SYMPTOMS from the distress
Bystander Case: Negligent D causes serious injury or death to someone NOT in the zone of danger who (i) is CLOSELY RELATED to the injured person, (ii) was present at the SCENE of the injury, and (iii) PERSONALLY OBSERVED or perceived the event
Business Relationship: A relationship exists between the D and P under which the D’s negligence has great potential to cause emotional distress (e.g. hospital erroneously reports death of P’s family)
Remember: D must still have an established duty of care, either reasonable person standard or other
Proving Breach on Essay + Tip
To prove someone breached their duty a P must show the FACTS/EVENTS of D’s breach and the REASON it was a breach of duty of care.
Tip: To prove breach use FACT + REASON
Breach: Cost Benefit Analysis
If the cost of preventing the harm is outweighed by the probability and extent of the harm, then it may be considered a breach to not take that precaution
Breach: Res Ipsa Loquitur Doctrine
P infer D breached duty without knowledge of action if: (i) the accident causing the injury is a type that WOULD NOT HAVE OCCURRED absent negligence, (ii) the D was in EXCLUSIVE CONTROL of the instrumentality causing the injury, and (iii) the injury was NOT ATTRIBUTABLE to P’s conduct
Causation: Actual Cause (But-For Test)
P shows he would not have been injured BUT-FOR D’s actions
Causation: Actual Cause - Joint Causes (Substantial Factor Test)
When two acts bring about an injury and EITHER ONE ALONE would have sufficed, EITHER of the acts is an ACTUAL CAUSE of the injury if: it was a SUBSTANTIAL FACTOR in bringing it about
Causation: Alternative Causes
When TWO OR MORE acts were negligent but it is NOT CLEAR which was the actual cause, the BURDEN SHIFTS to each of the negligent actors to show that his negligence was NOT the actual cause
Causation: Proximate Cause + Remember Four Areas of Precedent
The P’s injury must be a FORESEEABLE CONSEQUENCE of D’s actions
Remember: Courts have determined P’s injuries are ALWAYS a proximate cause of D’s actions in cases involving:
1) intervening NEGLIGENT MEDICAL TREATMENT,
2) intervening NEGLIGENT RESCUE,
3) intervening PROTECTION or REACTION forces, and
4) SUBSEQUENT DISEASE or ACCIDENT
How to Prove Damages
P must show ACTUAL harm or injury to complete the prima facie case
Damages: Egg Shell Plaintiff Doctrine
Plaintiff will recover for ALL HARM SUFFERED, even if it more than typically expected
Negligence Defenses: Contributory Negligence
If P was negligent in some way, that negligence COMPLETELY PRECLUDES P’s recovery
Negligence Defenses: Comparative Negligence + Pure v. Partial + Remember Default
Court REDUCES P’s ability to recover based on his negligence
Pure (Default) - A negligent P can recover damages reduced by the percentage of her fault, even if it was 90% negligent
Partial (or modified)- A negligent P can recover damages AS LONG AS her fault is NOT ABOVE 50%, anything over and P is barred from recovery
Strict Liability: Animals (Domesticated v. Wild) + Remember Unique Requirement + Remember Safety Precautions for Wild Animals
Domesticated: Generally, no strict liability from injury by a domestic animal, UNLESS it is known to have vicious tendency
Remember: The vicious tendency MUST BE UNIQUE to that one animal
Wild: Owners are strictly liable from the beginning of ownership
Remember: Safety precautions DO NOT lower liability for owners of wild animals
Strict Liability: Abnormally Dangerous Activities Definition + Tip for Typical Abnormally Dangerous Activities
Activity that: 1) creates a foreseeable risk of significant harm EVEN when reasonable care is exercised, and 2) uncommon in the community
Tip: Look for EXPLOSIVES, TOXIC/CHEMICAL material, and RADIATION/NUCLEAR energy
Strict Liability: Product Liability Elements + Remember Types of Defects + Remember Presumption of Non-Alteration
1) D is a MERCHANT,
2) Product is DEFECTIVE,
(Remember: (i) manufacturing defect - product varies from its intended design, (ii) design defect - all products of the line have dangerous characteristics because of mechanical features, packaging, or inadequate warnings, and less dangerous alternative was ECONOMICALLY FEASIBLE, (iii) information defect - residual risks that cannot be designed out and is not obvious, it must have adequate warnings and instructions)
3) Product has not been altered since it left D’s hand
(Remember: There is a presumption that P has not changed product IF it went through ordinary channels of distribution)
4) P was making a foreseeable use of product at the time of injury
Nuisance Doctrine + Remember Basis of Claim
The unreasonable interference with P’s ability to use and enjoy property
Remember: A nuisance may be based on intent, negligence, or strict liability
Nuisance: Private v. Public
Private: a substantial, unreasonable interference with another person’s use or enjoyment of her property
Public: an act that unreasonably interferes with the health, safety, or property rights of the community
Nuisance: Remedies
The usual remedy is damages, but injunctive relief may be available for a continuing nuisance
Vicarious Liability Doctrine
The D may be vicariously liability for the tort of another based on the relationship between the defendant and the tortfeasor
Vicarious Liability: Employer-Employee Relationship
The employer is liable for torts of an employee that occur WITHIN THE SCOPE OF EMPLOYMENT
Vicarious Liability: Principal - Independent Contractor + Exceptions
The general rule is that a principal is NOT vicariously liable for the torts of an independent contractor, but broad EXCEPTIONS exist:
1) The independent contractor is engaged in INHERENTLY DANGEROUS activities,
2) The principal’s duty CANNOT BE DELEGATED because of public policy considerations
Vicarious Liability: Automobile Owner - Driver + Exceptions
An automobile owner IS NOT vicariously liable for the negligence of the driver UNLESS the state has adopted:
1) A permissive use statute - imposes liability for the torts of ANYONE driving with permission), or
2) the family purpose doctrine - imposes liability for the torts of a family member driving with permission)
Vicarious Liability: Parent-Child
NO VICARIOUS LIABILITY at all for a parent’s child
Multiple Defendant Issues: Joint and Several Liability Doctrine
When two or more tortious acts combine to proximately cause an indivisible injury to the plaintiff, each tortfeasor is JOINTLY AND SEVERALLY LIABLE for the injury and P may recover for his entire damages from ANY tortfeasor
Multiple Defendant Issues: Joint and Several Liability - Contribution
Contribution allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasor in proportion to their fault
Survival Statutes
Preserve a victim’s cause of action after his death, EXCEPT for torts involving intangible personal interest (e.g. defamation)
Wrongful Death Statutes
Permit a personal representative or surviving spouse to recover damages from a tortfeasor for loss of the decedent’s support and companionship
Immunities: Intra-Family Tort Immunities + Exception
The old rule that one family member cannot sue another for personal injury is ABOLISHED in most states, EXCEPT that children generally cannot sue their parents for exercise of parental supervision
Immunities: Governmental Immunities
Governments generally waive their sovereign immunity from suit for MINISTERIAL ACTS (acts performed at the OPERATIONAL LEVEL that do not require exercise of judgment), BUT have not waived immunity for DISCRETIONARY ACTS
Defamation: Common Law Cause of Action Elements + Define Defamatory + Remember Death + Remember Publication Minimum
1) DEFAMATORY LANGUAGE concerning the P,
2) In a PUBLICATION, and
3) P suffers damages
Define: Defamatory means a statement purporting to be factual that damages the reputation of a person
Remember: This claim is unavailable for deceased people
Remember: Publication need only be communication of defamation to ONE PERSON, but the less people told the less damages owed
Defamation: Libel v. Slander + Damages
Libel: Defamation in permanent form (writing, recorded, etc.). No damages need to be proved
Slander: Spoken words. Damages are presumed if within one of the four per se categories (business/profession, loathsome disease, crime of moral turpitude, or chastity of a woman).
Damages are NOT presumed for all other slander, and must offer evidence of economic harm
Defamation: Public Officials or Figures (Constitutional Test)
If the P is a public official or figure:
1) The P must prove that the statement was false
2) Public officials must prove “actual malice”
Defamation: Affirmative Defenses
1) Consent
2) Truth
3) Absolute Privilege (applies to communication between spouses OR statements in a judicial, legislative, or executive proceedings)
4) Qualified Privilege (matters in the interest of the publisher and/or the recipient, but can be lost if the statement is outside the scope of the privilege or made with actual malice)
Privacy Claims: Appropriation + Exception + Remember Possibility of Ds
D uses P’s name or image for a commercial purpose
Exception: Newsworthiness
Remember: ANYONE has a claim for appropriation, not just famous people
Privacy Claims: Intrusion + Remember REOP
An invasion of Ps SECLUSION in an offensive way as measured by a reasonable person (e.g. eavesdropping, intercepting emails, bugging homes)
Remember: P must have a reasonable expectation of privacy
Privacy Claims: False Light + Tip
The widespread dissemination of a material falsehood about P that would be highly offensive to the average person
Tip: Look for accidental dissemination
Privacy Claims: Disclosure + Remember Defense
Widespread dissemination of CONFIDENTIAL INFORMATION about the P that would be offensive to a reasonable person
Remember: 1) Qualified Immunity can protect information that benefits the public and 2) consent
