Torts Flashcards
1
Q
What are the intentional torts (7)?
A
- Battery
- Assault
- False imprisonment
- Intentional infliction of emotional distress (IIED)
- Trespass to land
- Trespass to chattels
- Conversion
2
Q
For intentional torts, what is the rule regarding extreme or hypersensitive plaintiffs?
A
Ignore the hypersensitivity in making a judgment as to whether P has a valid claim
Always assume you are dealing with a normal person
3
Q
For intentional torts, what are the incapacity defenses?
A
There are none
Hold everyone liable just the same
4
Q
What is a common element to all intentional torts?
How do you determine if it is present?
A
D must act intentionally, which will be the case if D either:
- Desires to produce a legally forbidden consequence
- Knows to a certainty that a legally forbidden consequence will result
5
Q
What are the elements of battery?
A
- Harmful or offensive contact
- With P’s person
6
Q
For purposes of battery, when is contact offensive?
A
If unpermitted by a person of ordinary sensitivity
7
Q
For purposes of battery, when is contact with P’s person?
A
When the contact is either with:
- P directly
- Anything P is holding
- Anything P is touching
- Anything that P will touch later on
8
Q
What are the elements of assault?
A
- D places P in reasonable apprehension
- Of an immediate battery
9
Q
For purposes of assault, what is reasonable apprehension?
A
Apprehension means both fear and knowledge
In order for P to experience reasonable apprehension, he must know (or reasonably think) that the immediate battery is coming
10
Q
For purposes of assault, what is meant by immediate battery?
A
Words alone lack immediacy, there must be conduct
Until D makes an actual move, D is just running his mouth
11
Q
For purposes of assault, when can words affect the immediate battery requirement?
A
Words can negate immediacy if they are:
- Conditional
- Future tense
Give the words their natural meaning
12
Q
What are the elements of false imprisonment?
A
- D must commit an act of restraint
- P must be confined in a bounded area
13
Q
For purposes of false imprisonment, what is an act of restraint?
A
- Physical restraint
- Plausible threat
- E.g., store security guard threatening to call the cops if you leave
- Omission (if pre-existing duty)
- E.g., leaving a handicapped person behind after placing her somewhere
14
Q
For purposes of false imprisonment, what is required with regard to knowledge of the act of restraint?
A
P must be aware of the restraint
E.g., if D locks P in his bedroom while P is asleep, not actionable
15
Q
For purposes of false imprisonment, what is a bounded area?
A
- An area is only bounded if freedom of movement is limited in all directions
- If there is a reasonable means of escape from the area, the area is not bounded, BUT:
- P must be aware of means of scape
- Escape not reasonable if:
- Disgusting
- Dangerous
- Humiliating
- Hidden
16
Q
What are the elements of intentional infliction of emotional distress (IIED)?
A
- P must engage in outrageous conduct
- P must suffer severe emotional distress
DOES NOT REQUIRE INTENT
17
Q
For purposes of IIED, what is outrageous conduct?
A
“Exceeds all bounds of decency tolerated in a civilzed society”
- If D has prior knowledge of P’s emotional weakness and exploits that weakenss - outrageous
- Mere insults are not sufficient
-
Plus factors that make bad cases worse:
- Continuous/repetitive conduct
- D is common carrier or innkeeper
- P is member of fragile case
- Kids
- Elders
- Pregnant women
18
Q
For purposes of IIED, what is severe emotional distress?
A
It will be clear
Being mildly annoyed will negate this
19
Q
What are the elements of trespass to land?
A
- Act of physical invasion
- That interferes with P’s exclusive possession
20
Q
For purposes of trespass to land, what is a physical invasion?
A
D does not need to know he’s crossing a boundary; he just needs to get there intentionally (e.g., not sleepwalking)
- Walking or driving on land
- Throwing something on property (even if benign)
21
Q
For purposes of trespass to land, what is not a physical invasion?
A
Intangible invasions (e.g., loud music, shining lights, wafting odors)
22
Q
For purposes of trespass to land, what is interference with exclusive possession?
A
- Tort belongs to the posessor, not the owner
- Right to possess includes air above and soil below to a reasonable distance
23
Q
What are the elements of both:
Trespass to chattels
Conversion
A
D either:
- Takes away P’s personal property
- Damages P’s personal property
24
Q
For purposes of trespass to chattels and conversion, what does personal property include?
A
- Normal personal items
- Cash
- Computer files
25
What is the difference between trespass to chattels and conversion?
The difference is in the _degree of interference_
26
What are the remedies for trespass to chattels and conversion, respectively?
Conversion
* Full FMV of item (operates as forced sale)
* You break it you buy it
Trespass
* Cost of repair
27
What are the affirmative defenses to intentional torts?
1. Consent
2. Protective privileges
* Self-defense
* Defense of property
* Defense of others
3. Necessity
* Public necessity
* Private necessity
28
What is required for the defense of consent?
P must have had _legal capacity_ to give consent
Children can give consent to _age-appropriate acts_ (i.e., as they get older, this list of acts increases)
29
What are the different types of consent?
1. Express
2. Implied
30
What is express consent?
What is the exception to this defense?
Consent based on _words in quotes_
Exception:
* Fraud or duress negates consent
31
What is implied consent?
* _Custom and usage_
* If P went somewhere and did something where invasions are customary - implied consent
* E.g., shoving on metro
* E.g., tacking in sports
* E.g., false imprisonment for penalty box
* _D's reasonable interpretation_ of P's objective conduct based on the surrounding circumstances
* Body language consent
* E.g., a kiss after a date
* E.g., shaking hands at a networking event
32
What is the effect of the scope of consent?
If D exceeds the scope, the defense is lost
E.g., stomping on a football player's head
33
What is required for the protective privileges?
* D responds to a _threat emanating from P_:
* At a _proper time_
* Based on reasonable belief that _threat is genuine_
* With _force necessary_ under the circumstances
34
For purposes of the protective privileges, what is required for D to act at a proper time?
Threat must be either:
* In progress
* Imminent
No _preemptive action_
No _revenge_
35
For purposes of the protective privileges, when is force necessary under the circumstances?
In a _life threatening_ situation or reasonable belief thereof:
* _Deadly force_ is appropriate, unless:
* Defense of _property_ (deadly force never okay)
36
When can the defense of necessity be used?
Only against property torts (e.g., trespass to land, trespass to chattel, conversion)
37
What is the public necessity defense?
What distinguishes it from private necessity?
* D commits property tort in _emergency_ to protect either:
* The community
* Significant group of people
An emergency is usually both:
* A big deal (e.g., natural disaster)
* Rolling (e.g., culminating in a big event)
THIS IS AN ABSOLUTE DEFENSE
38
What is the private necessity defense?
What distinguishes it from public necessity?
D commits a property tort in an _emergency_ to:
* Protect an _interest of his own_
THIS IS A LIMITED DEFENSE
* D remains liable for _actual harm_ (i.e., compensatory damages)
* D is not liable for _nominal_ or _punitive_ damages
* P cannot throw D off his property while the danger still exists (if he does, P is liable for the harm caused)
39
What are the elements of defamation?
1. D made a _defamatory statement_ specifically _identifying P_
2. D _published_ the statement
40
What are the different types of defamation cases?
1. _Libel_ cases
* D's statement was _written_ down or reduced to some other _permanent form_
2. _Slander_ cases
* D's statement was _spoken_
41
For purposes of defamation, what does it mean for a statement to be defamatory?
The statement:
* Tends to _adversely affect P's reputation_
* Takes the form of _purported or alleged fact_
* That _reflects negatively_ on P's traits or character
42
For purposes of defamation, what does not count as a defamatory statement?
* Mere _name-calling_
* Mere _statements of opinion_
43
For purposes of defamation, what is required for D to have identified P in his statement?
* Specifically _name_ P
* _Describe_ P based on:
* Address
* Occupation
* P _must be living_ at the time of the statement
44
For purposes of defamation, what does it mean for D to publish the statement?
D must share it or reveal it to _at least one person other than P_
The more people, the more damages, but only one is needed
Publication _need not be intentional_, it can be _negligent_ (but D must know it is being published - wiretapping not enough)
45
What is the rule on damages in libel defamation cases?
Damages are presumed
46
What is the rule on damages in slander defamation cases?
Damages are _presumed if_ either:
* Statement relating to P's _business or profession_
* Statement that claims P committed _serious crime_
* Crime involving violence or dishonesty
* Statement _imputing unchastity_
* Statement that P suffers from a _loathesome disease_
* Leperacy or venereal disease
_Otherwise_, P must prove:
* Economic harm
* E.g., P got fired because of statement
* E.g., P's revenues went down because of statement
* Not social harm
* Not emotional harm
*
47
What are the affirmative defenses to defamation?
1. **Consent**
* Express
* Implied
2. **Truth**
* _D has burden_ to establish by preponderance
3. **Privileges**
* _Absolute_
* Spouses communicating with eachother
* Officials of government branches communicating in their course of duties
* In judicial branch, extends to:
* Judges
* Witnesses
* Lawyers
* _Qualified_
* Applies anytime there is a _public interest in encouraging candor_
* E.g., letters of recommendation
* Two conditions:
1. Statement must be in _good faith_, based on a _reasonable belief in its truth_
2. Statement must be a _relevant_ matter
48
What is the so-called special defamation case?
When the allegedly defamatory statement relates to a _matter of public concern_, D must prove:
Two additional elements:
1. Statement is _false_ (no longer presumed)
2. D either:
1. _Knew_ it was false
2. Or
* If _public_ figure:
* Acted _recklessly_ as to its falsehood in publishing
* If _private_ figure:
* Acted _neligently_ as to its falsehood in publishing
49
What are the privacy torts?
1. Appropriation
2. Intrusion
3. False light
4. Disclosure
50
What is appropriation?
* D uses P's _name or image_
* For a _commercial purpose_
51
What is the exception to appropriation?
If D's use of P's name or image is _newsworthy_, not a tort
52
What are the remedies for appropriation?
* Damages
* Injunction
53
What is intrusion?
_Invasion_ of P's _seclusion_ in a way that is _highly offensive_ to an average person
Must be in a place where P has an _expectation of privacy_
E.g., wiretapping, peeping tom
54
What is false light?
_Widespread dissemination_ of a _material falsehood_ that would be _highly offensive_ to an average person
E.g., inadvertent juxtaposition - putting two things together that suggest something false
55
How does false light overlap with defamation?
What is the distinction?
Defamation does not require _widespread dissemination_
Damages
* False light
* Emotional damages
* Social damages
* Defamation
* Economic damages
56
What is disclosure?
_Widespread dissemination_ of _confidential information_ that would be _highly offensive_ to an average person
(Tort of gossip)
57
What is the exception to disclosure?
If D's use of P's confidential information is _newsworthy_, not a tort
58
What are the defenses to privacy torts?
All privacy torts
* Consent
* Express
* Implied
Defamation
* Defamation privileges
* Absolute
* Qualified
59
What are the elements of negligence?
1. Duty of care
2. Breach
3. Causation
* Actual
* Proximate
4. Damage
60
For negligence, who is the duty of care owed to?
Only foreseeable victims
* People near you, depending on type of activity (e.g., if juggling nuclear weapons, large scope)
Exception:
* Rescuers
* Even if they are not near, they are presumed foreseeable
61
For negligence, what is the amount of duty owed?
Hypothetical _reasonably prudent_ person acting under _similar circumstances_
62
For negligence, do you take D's shortcoming into account?
Generally, no
Exceptions:
* Take into account:
* Superior _skill_
* Something that involves training
* E.g., NASCAR driver, reasonably prudent NASCAR driver
* Superior _knowledge_
* Something that you specifically know
* E.g., knowing which intersections are dangerous, reasonably prudent person who knows that
* _Physical_ characteristics _if relevant_
* E.g., D is blind, reasonably prudent blind person
63
What are the special standards of care for negligence claims (6)?
1. Care owed by _children_
2. Care owed by _professionals_
3. Care owed by _possessors of land_
4. _Statutory_ standard of care
5. Duty to _rescue_
6. Negligent infliction of emotional distress _(NIED)_
64
What is the care owed by a child?
Less than 5 years old
* Absolutely no duty of care (cannot be negligent)
Older than 5 years old
* Owes the duty of care of someone of similar:
* Age
* Intelligence
* Experience
* Acting under _similar circumstances_
* _Exception_:
* Normal standard of care (i.e., personably prudent person) applies if child engages in _adult activities_
* E.g., anything with an engine
65
What is the care owed by professionals?
The duty of care of:
* An _average member of the profession_ (in good standing)
* Be a conformist
* Follow custom
DO NOT USE TERM REASONABLE
66
What are the categories of people that possessors of land may owe a duty to?
1. Unknown trespassers
2. Known (or anticipated) trespassers
3. Licensees
4. Invitees (customers)
67
What is the care owed by possessors of land to unknown trespassers?
What are unkown trespassers?
Duty
* Absolutely no duty
Unknown trespassers
* No express or implied permission to enter
* Possessor never knew they would enter
68
What is the care owed by possessor of land to known (or anticipated) trespassers?
What are known (or anticipated) trespassers?
Duty
* Must protect from:
* Known
* Mandmade
* Death traps
Known (or anticipated) trespassers
* No express or implied permission
* D either:
* Knew P was there
* Anticipated P's entrance
* Based on prior activity
69
What is the care owed by possessors of land to licensees?
What are licensees?
Duty
* Must protect from:
* Known
* Traps
Licensees
* Express or implied permission
* Does not provide economic benefit to land possessor
* Categories
* Social guests
* Recreational users
* Solicitors
70
What is the care owed by possessors of land to invitees?
What are invitees?
Duty
* Must protect from:
* Reasonably knowable
* Traps
Invitees
* Express or implied permission
* Entrance either:
* Open to public
* For those who provide economic benefit
71
What is the care owed by possessors of land to firefighters and cops?
No duty
They will never recover for injuries that are inherent risks of their jobs
72
What is the care owed by possessors of land to trespassing children?
Posessors must exercise _reasonable care_ to protect children from _artificial conditions_
If possessors _should expect_ kids to come, they should childproof the premises
When to expect kids
* Premises near playground
* Premises near school
* Premises has attractive nuisance
73
In a premises liability case, how can D always fulfill his duty?
* Fixing the hazard
* Providing a warning
* Sign
* Yellow tape
* Orally warning guests
74
What is the statutory standard of care?
P can borrow a criminal statute and use that as a standard of care if:
* Class of person
* P is a _member of the class_ the statute tries to protect
* Class of risk
* The _accident is in the class of risks_ the statue protects
75
What are the exceptions to the statutory standard of care?
1. Statutory compliance _more dangerous_ than violation
2. Statutory compliance _impossible_ under circumstances
In these situations, just use reasonably prudent person standard
76
What is the duty to rescue?
No matter how despicable D's conduct, no duty to rescue
Exceptions:
* In these situations, duty to _act reasonably_ under circumstances
1. Pre-existing relationship
* E.g., innkeeper-guest
* business-invitee/customer
2. D caused the peril
* But never duty to put own life in peril
3. Gratuitous rescuers
* If you undertake rescue and screw it up, you are liable
77
What are the different types of NIED cases?
1. Near-miss
2. Bystander
3. Relationship
78
What is a near-miss NIED case?
Negligent D doesn't harm P but it was a close call
* Elements:
1. D was _negligent_ (based on breach of some duty)
2. D's negligence put P in _zone of physical danger_
3. P suffered _subsequent physical manifestations_ from the distress
79
What is a bystander NIED case?
Negligent D seriously injures or kills X (a third party) and P is distressed about it
* Elements:
1. D was _negligent_ (based on breach of some duty)
2. P and X are _close family members_ (spouse, parent, child)
3. P _saw_ X get hurt _in real time_ (i.e., contemporaneous observation)
80
What is a relationship NIED case?
Negligent D is in a _business relationship_ with P in which it was _highly foreseeable_ that carelessness would cause _significant distress_
* E.g., false positive medical results
* E.g., mistaken cremation
81
How does P establish breach in a negligence claim?
By establishing _specific conduct_ that falls short of D's duty of care, including:
* Facts
* Reason (never too obvious)
82
In establishing a breach of duty in a negligence claim, what sort of conduct can be raised?
* Act
* Omission
* Res ipsa loquitur
83
How does P establish res ipsa loquitur in a negligence claim?
What is the result if it is established?
1. Accident is a type _normally associated_ with negligence
* Sometimes requires expert testimony
2. Accident would _normally be due_ to the negligence of someone in D's position
* If D had control over the object, sufficient
If established, CASE GOES TO THE _JURY_
84
In a negligence claim, what are the different types of causation that P must establish?
1. Factual causation
* But for the breach, P would not be injured today
2. Proximate causation
* Imposing liabilyt on D is fair
85
What are the two special situations with respect to factual causation/
1. _Merged cause_ cases
* E.g., two separate negligently caused fires combine to cause damage to P
* _Substantial factor test_:
* Could either breach have caused all the harm itself?
* If so, that D is liable (could be joint liability)
2. _Unascertainable cause_ cases
* E.g., one pellet hits P's eye after two separate gunshots
* _Burden shifts_ to D:
* D must establish that he is not the cause
* Otherwise:
* Joint liability
86
What is the test for proximate causation?
Foreseeability
* P's injury must have been foreseeable at the time of the accident
87
What are the common scenarios in which proximate causation is established (i.e., foreseeability presumed)?
Foreseeability presumed if:
1. Intervening _medical negligence_
* Always foreseeable that doctor may be careless
2. Intervening _medical rescue_
* __Always foreseeable that rescuer may be careless
3. Intervening _protection and reaction forces_
* __Always foreseeable that people will react carelessly
4. Subsequent _disease or accident_
* Always foreseeable that P's injuries may worsen
88
What is important with regard to the damage element of negligence?
Eggshell skull doctrine - i.e., take your victim as you find him
This applies to every tort on the bar exam
89
What are the affirmative defenses to negligence?
1. Implied assumption of the risk
2. Contributory negligence/comparative negligence
90
In Virginia, what is the affirmative defense to negligence?
What about the majority?
Virginia - contributory negligence
* Absolute defense
Majority - comparative negligence
* Limited defense
* P's recovery reduced by percentage of fault
* Unless otherwise noted, it does not matter if P was more responsible
91
What are the different categories for strict liability?
1. Liability for _animals_
2. Liability for _abnormally dangerous activities_
3. Liability for _defective products_
92
When is D strictly liable for animals?
Note: _trespassers_ generally cannot take advantage of strict liability
_Domesticated_ animals (e.g., house pets and livestock)
* No strict liability
* Exception:
* One-bite rule
* If you have knowledge of animal's vicious propensities, then strict liability
* E.g., behavior not common to species
_Wild_ animals (e.g., circus animals)
* Strict liability
93
When is D strictly liable for abnormally dangerous activities?
What are common examples?
Whenever, based on the activity:
1. There is a _foreseeable risk of serious harm_ even if reasonable care is used (i.e., activity can't be made safe)
2. The activity is _uncommon_ where conducted (i.e., out of context)
Examples:
* Dynamite or high-powered explosives
* Toxic chemicals or biohazards
* High levels of radiation
94
When is D strictly liable for defective products?
P must show:
1. D is a _merchant_
2. Product is _defective_
3. Product _has not been altered_ since leaving D's control
4. P made a _foreseeable use_ of the product when hurt
95
For purposes of strict products liability, who is a merchant?
Who is not?
Merchant
* Commercial lessor (e.g., rent-a-car)
* Everyone in distribution chain, including:
* Retailer
* Wholesaler
* Manufacturer
Not merchant
* Casual seller
* Service provider
96
For purposes of strict products liability, when is a product defective?
1. _Manufacturing_ defect
* One in a million product
* Differs so much from all others that came of the assembly line that it is more dangerous than the consumer would expect
2. _Design_ defect
* Superior alternative design
* Product could have been build in another way that would have been:
1. Safer
2. Economical
3. Practical
3. _Information_ defect
* Three conditions are satisfied:
1. Product has _residual risks_ that cannot be designed away economically
2. Consumers _would not be aware_ of the risks
3. Product lacks _effective_ warnings of the risks
97
For purposes of strict products liability, what is important regarding the non-alteration requirement?
_Presumption_ of non-alteration if product moved in normal channels
98
For purposes of strict products liability, what is important regarding the foreseeable use requirement?
Foreseeable is not necessarily appropriate or intended
E.g., use of screwdriver to open can of paint foreseeable
99
What is the affirmative defense to strict liability claims?
Comparative responsibility
Similar to comparative negligence in procedure
100
How does P prove a nuisance claim?
D _disturbed P's ability to use and enjoy_ (not right to possess - that is trespass) real estate to an _unreasonable degree_
Court balances P's interests against D's
101
What are the different relationships that raise vicarious liability problems for torts? Explain.
1. Employer-employee
* Must be within scope of employment
* Intentionnal torts outside scope unless:
* Authorization to use force
* Job creates friction
* Tort was to serve employer
2. Independent contractors
* No vicarious liability unless:
* Contractor hurts invitee/customer at place of business
3. Owner-driver
* No vicarious liability unless:
* Owner asks driver to run errand
4. Parent-child
* No vicarious liability ever
102
When co-defendants are sued in a tort action, what rights do they have against one another?
Contribution
* If D1 is liable, he has a right of contribution against D2, just like comparative negligence
* Jury will assign fault to each D, but P can collect from either D
* It is up to the D's to seek contribution
Indemnification
* If D1 is liable he can get fully reimbursed by D2 if:
* D2 was active fortfeasor and D1 is vicariously liable
* D2 was the manufacturer and D1 is retailer in products liability case
103
What is loss of consortium?
What does it allow recovery of?
Definition
* If victim of tort is _married_, uninjured spouse has _derivative action_ against anyone the victim would have an action against
* D's _defenses_ work against uninjured spouse
Recovery
* Loss of services
* Loss of society (e.g., companionship)
* Loss of sex
104
What duty of care does a bailor owe a bailee when the bailment was for:
* The sole benefit of the bailee (gratuitous loan of property)
* A fee (compensated loan of property)
Sole benefit of the bailee
* Bailor has a duty to inform bailee of _known_ dangerous defects
Fee
* Bailor has a duty to inform bailee of _known or reasonably knowable_ dangerous defects
105
What duty of care does a bailee owe a bailor when the bailment is for:
* The sole benefit of the bailor
* The sole benefit of the bailee
Sole benefit of bailor
* The bailee is only liable for gross negligence
Sole benefit of bailee
* The bailee is liable for even slight negligence
106
What are the elements of intentional interference with business relations?
* Valid contractual relationship between P and third party or valid business expectancy
* Knowledge of the relationship or expectancy
* Intentional interference that breaches the relationship or expectancy
* Damages
107
What is the last clear chance doctrine?
A mitigation of the all or nothing effect of contributory negligence - i.e., if you are barred from recovery because you were contributorily negligence, you may still recover of the defendant had the last clear chance to avoid harm
