Torts!!! Flashcards
What is the intent requirement for intentional torts?
Acts with the purpose of causing the consequence, OR
Knows the consequence is SUBSTANTIALLY CERTAIN to follow
What is required to prove the tort of battery?
Causes a HARMFUL or OFFENSIVE
contact
with the person of another;
and acts with the INTENT to cause that contact or the apprehension of that contact
What does it mean, in a battery, for contact to be offensive?
Person of ordinary sensibilities would find contact offensive.
In a battery, does the victim need to be aware of the contact?
Nope! can be unconscious and still battery
Is it a battery if the contact is not objectively offensive, but the victim is hypersensitive?
Yes, IF the defendant knows that the victim is hypersensitive.
In a battery, what needs to be intended, specifically?
The contact, NOT the offense.
Does the doctrine of transferred intent apply to battery?
YES
What is required for punitive damages in a battery case?
Defendant to act, either:
OUTRAGEOUSLY, or
with MALICE
What is required to prove an assault?
Defendant does something that:
causes REASONABLE APPREHENSION
of an IMMINENT harmful/offensive bodily contact; and
INTENDS to cause such apprehension of contact or to cause the contact itself
What does it mean for an assault to cause apprehension of an IMMINENT contact?
Without SIGNIFICANT DELAY
What is required to prove intentional infliction of emotional distress (IIED)?
D intentionally or recklessly engaged in
EXTREME and OUTRAGEOUS conduct that causes P
severe emotional distress
For an IIED claim, what makes D’s conduct extreme and outrageous?
What will make a court more likely to find e+o conduct?
“exceeds possible limits of human decency, so as to be entirely intolerable in a civilized society.”
D is in position of AUTHORITY or INFLUENCE over P
P is member of group with HEIGHTENED SENSITIVITY (like kids or elderly)
When is a D liable for IIED to third parties?
Immediate family member: if present/perceives conduct, liable, regardless of injury
Bystander: if present/perceives and suffers bodily injury, liable
What is required for tort of false imprisonment?
D intends to CONFINE or RESTRAIN another within fixed boundaries
Actions directly OR indirectly result in confinement; and
P is CONSCIOUS of the confinement OR HARMED by it
What is the intent requirement for false imprisonment?
D acts with PURPOSE of confining P, OR
KNOWING that P’s confinement is SUBSTANTIALLY CERTAIN to result
Is consent by mistake a defense to intentional torts?
Yes, still a valid defense UNLESS D Caused mistake or
D knew of mistake and took advantage of it
Is fraudulent consent a defense against intentional tort claims?
No, consent by fraud is invalid IF it goes to an essential matter.
What is trespass to chattels?
Intentional interference
w/P’s right to possession of personal property by either:
1) dispossessing P of chattel; or
2) using/intermeddling with chattel, or
3) damaging chattel
What is conversion?
Intentionally
depriving P of possession of chattel or
interfering with P’s chattel in a manner so serious as to DEPRIVE him entirely of its use
Is mistake of law a defense to conversion? Mistake of fact?
Neither!
What’s the difference between trespass to chattels and conversion?
I.e., what factors do courts consider to tell the difference?
MORE EXTREME = MORE LIKELY CONVERSION
Duration/extent of interference
D’s intent to assert a right inconsistent with rightful possessor
D’s good faith
Expense or inconvenience to P
Extent of harm
What’s the difference between private necessity and public necessity as a defense to trespass?
What result for each?
Private: needed to trespass to prevent INJURY or HARM to self
Public: needed to trespass to protect a large number of people from public calamities (e.g., pool during a fire)
Different results: private = actual damages; public = no damages
What’s a private nuisance?
Activity that:
SUBSTANTIALLY and
UNREASONABLY
interferes with another’s
USE and ENJOYMENT of land
How do courts determine an interference is unreasonable in a private nuisance claim?
Balance interference with utility of nuisance
What’s a public nuisance?
Unreasonable interference with a right common to public as whole.
Who can sue for a PUBLIC nuisance?
Public official on behalf of public
Private individual ONLY IF harmed in a special or unique way, different from general public/
Is there a duty to an unforeseeable plaintiff?
NO! NO DUTY TO UNFORESEEABLE PLAINTIFF!
What are some exceptions to the lack of an affirmative duty to act?
Assumption of duty: voluntary undertaking to aid/rescue by you puts on you a duty of reasonable care in performance of that aid or rescue
placing another in danger
authority: person with ability/actual authority to control another must exercise reasonable care
relationship: e.g., innkeeper/guest
What effect do a D’s mental and emotional characteristics play on the standard of care applied to him?
NONE! presumed to have AVERAGE mental abilities and knowledge
What effect do a D’s physical characteristics play on the standard of care applied to him?
Modified standard: compared with reasonably prudent person with same characteristics
What effect does intoxication play on the standard of care applied to a D?
none, held to objective standard UNLESS intoxication was involuntary
What standard of care is applied to children?
Modified: reasonable child of similar age, intelligence, and experience
UNLESS child is engaged in HIGH-RISK, ADULT activities, then objective standard for adults is used
What is the standard of care applied to common carriers?
To innkeepers?
Common carriers: utmost care
Innkeepers: ordinary negligence (used to be utmost care)
What rules govern a standard of care of a bailee (someone who temporarily takes possession of another’s property)?
Bailor (owner) must warn a gratuitous bailee of KNOWN, dangerous conditions
IF bailor receives sole benefit, then bailee has lesser duty
IF bailee receives a benefit, then he has a higher duty of care
What is the standard of care applied to someone in an emergency situation?
That of a reasonable person under the same circumstances
What’s the difference between a trespasser, a licensee, and an invitee?
Under the traditional approach, what is the standard of care for each?
Under the modern (CA) approach?
Trespasser: someone on land without consent or privilege
–duty = refrain from willful, wanton, intentional, or reckless misconduct (e.g., no spring guns/traps)
Licensees: enters land with express/implied permission
–duty = reasonably safe; warn licensees of CONCEALED dangers (i.e., make it as safe as it is for you)
Invitees: someone on land for ECONOMIC or material purpose (business customers; public land)
–duty = reasonable care. inspect property; discover unreasonably dangerous conditions; take reasonable steps to address
CA approach: this is just a FACTOR. reasonable care standard
What duty is owed to UNDISCOVERED trespassers?
NO DUTY OWED
What duty is owed to discovered or anticipated trespassers?
Must warn or protected from hidden dangers
What is the attractive nuisance doctrine?
May be liable for injuries to CHILDREN trespassing on land if:
1) ARTIFICIAL condition exists where owner KNOWS or should know that children are likely to trespass;
2) owner knows/should know that the artificial condition poses an unreasonable risk of DEATH or serious BODILY HARM;
3) child, because of age, doesn’t discover/cannot appreciate danger;
4) utility of maintaining the condition is slight compared to risk of injury; and
5) owner fails to exercise reasonable care
Can a business/public land possessor avoid the duty of care by assigning care of property to an independent contractor?
NOPE!!!
Generally, how is custom used in establishing a standard of care?
Admissible, NOT dispositive
How is custom used in establishing a standard of care for “professionals” (doctors, lawyers, accountants, electricians)?
Admissible and DISPOSITIVE
Compliance with custom is a shield: NO breach
Deviation is a sword: BREACH
Do doctors have to explain risks of a medical procedure to patients?
Yes, but not if:
- they’re commonly KNOWN.
- patient is UNCONSCIOUS
- patient is INCOMPETENT
- patient WAIVES/REFUSES the info
- patient would be HARMED by disclosure (e.g., heart attack)
What is required for the breaking of a statute to constitute PER SE negligence?
1) Criminal law or regulatory statute imposes a particular DUTY for the benefit of others
2) D VIOLATED the statute
3) P is in CLASS intended to be protected by statute
4) Accident was TYPE OF HARM statute intended to protect against
5) harm was CAUSED by the violation
What defenses are available to excuse failure to comply with a statute such that it’s NOT per se negligence?
Compliance was MORE DANGEROUS than following
Compliance was IMPOSSIBLE
Emergency JUSTIFIED violation
Incapacity (physical)
Exercised reasonable care in attempt to comply
Law was too vague to follow
What is required for the doctrine of res ipsa loquitur to apply, traditionally? Third Restatement?
What’s the effect of the doctrine?
Traditional elements:
1) kind of accident that does not ORDINARILY OCCUR without negligence;
2) cause by agent within EXCLUSIVE CONTROL of D;
3) NOT DUE to any action on part of P
Third Restatement:
1) type of accident that ORDINARILY happens as result of negligence by a class of actors;
2) D is part of that class
Effect: GETS YOU TO THE JURY
What rule is applied when there are multiple causes of a tort?
Substantial factor (or multiple sufficient causes) test: was D’s tortious conduct a SUBSTANTIAL FACTOR in causing the harm?
What rule is applied when harm was caused by only one of a few Ds (typically two), but it’s impossible to know which one?
BURDEN SHIFT: all Ds are held JOINTLY AND SEVERALLY liable UNLESS one can show he did not cause the harm
What rule is applied when two or more tortfeasors were acting together collectively to cause P’s harm?
JOINT AND SEVERALLY LIABLE
What rule applies when a doctor negligently decreases P’s chance of survival, which was already under 50%, making the negligence NOT the but-for cause of the P’s death?
What can P recover?
P CAN recover for the lost chance of survival.
CANNOT get the entire amount of damages, but can recover the PORTION that represents the lost chance of survival.
What is the question one should ask in examining whether proximate cause exists?
Is the harm that occurred what made the conduct negligent to begin with??
I.e., you’re only liable for the RISKS that MADE YOUR CONDUCT NEGLIGENT.
What has to be foreseeable for there to be proximate cause?
The TYPE of HARM must be foreseeable (not the extent of the harm).
If you suffer physical damage, when can you recover for emotional damages?
ALWAYS
What’s the difference between compensatory and punitive damages?
compensatory = make P whole again
punitive = deter/punish
When are punitive damages available in a torts case?
When D acted willfully, wantonly, recklessly, or with malice, or if an INHERENTLY malicious tort is involved.
What limits exist on punitive damages?
May be statutory limits
SCOTUS: cannot be more than single-digit ratio (i.e., no more than 9x, not 10x) of compensatory damages.
What is the collateral source rule? Trad/modern?
Traditional: outside sources of payment cannot be considered
Modern: largely eliminated or lessened. don’t want double recovery
What compensatory damages are available for property damage?
General rule: difference in MARKET VALUE before and after injury
Alternatives: cost of repair; replacement value
When can a plaintiff recover for pure emotional harm, i.e., negligent infliction of emotional distress?
1) P was within ZONE OF DANGER of threatened PHYSICAL impact
2) threat of physical impact CAUSED emotional distress
When can a bystander recover for NIED?
bystander can recover for NIED if:
1) CLOSELY RELATED to person injured by D;
2) PRESENT at scene of injury;
3) PERSONALLY OBSERVED the injury
When can a special relationship allow for recovery for pure emotional harm?
negligent mishandling of a CORPSE
negligent MISDIAGNOSIS
Can a P recover for pure economic loss?
NO!!!! need personal injury or property damage
What’s the difference between a wrongful death claim and a survival action?
wrongful death = brought by spouse/rep for their losses
survival action = brought by decedent’s estate on behalf of decedent for personal injury/property damage
When is an employer vicariously liable for the negligence of an employee (respondeat superior)?
Employer is liable when conduct occurred WITHIN SCOPE OF EMPLOYMENT
Meaning, detours (minor deviations) are within scope, while frolics (major deviations) are outside scope.
Are employers liable for intentional torts committed by their employees?
Generally, no.
UNLESS: conduct is within scope of employment, i.e., FORCE IS INHERENT IN WORK (e.g., bouncer)
Are employers liable for torts committed by independent contractors?
What defines an independent contractor, compared to an employee?
Generally not liable, EXCEPT for non-delegable duties:
- inherently DANGEROUS activities
- DUTIES to public or specific Ps for certain types of work (e.g., road construction)
- shopkeepers have a duty to keep safe premises
- apparent agency doctrine: if IC is reasonably believed to be employee based on manifestations of employer, then liable
If employer retains a RIGHT OF CONTROL over way employee works –> employee, not IC.
Can business partners be liable for the torts of other partners?
YES, if within SCOPE OF BIZ’S PURPOSE
When are car owners liable for actions of other drivers in their car?
Negligent entrustment
ANY FAM MEMBER driving car WITH PERMISSION
IF owner liability statutes, ANYONE driving car with PERMISSION
Are parents generally vicariously liable for torts committed by their kids?
NOPE, only if they were directly negligent
When are government officials generally liable for torts?
IMMUNE when DISCRETIONARY
WAIVED when MINISTERIAL (i.e., required by law)
Can federal employees be liable in tort under state tort law?
NO, says the Westfall Act.
If a jury apportions each defendant a different percentage of fault, can each defendant still be jointly and severally liable, i.e., on the hook for the entire judgment if the others disappear?
YES, barring a statute that limits D’s liability to his fault (often if under 10%)
What is the difference between contributory negligence and comparative fault?
Contributory negligence = COMPLETE BAR TO RECOVERY
- common law
- largely abolished
Comparative fault = LIMITS recovery
What are the three kinds of comparative fault jx?
Pure comparative negligence = whatever percentage of fault you are, that’s what you pay
Modified comparative negligence 1 = if P is MORE at fault, then NO RECOVERY
Modified comparative negligence 2 = if P is EQUALLY or MORE at fault, then NO RECOVERY
What is the last clear chance doctrine?
IN CONTRIBUTORY NEGLIGENCE Jx ONLY!
Despite P’s negligence, if D had “last clear chance” to avoid injury, P can still recover
How do modified comparative negligence courts deal with multiple defendants when measuring comparative negligence?
Group the defendants together in order to see if P is MORE or LESS negligent, in order to decide if recovery is barred or not
Is comparative fault a defense to intentional torts?
NO!!!! only negligence!
When will an express assumption of risk be accepted by the court?
if (1) CLEAR; and
(2) ENFORCEABLE: not enforceable when:
- disclaims liability for RECKLESS or WANTON misconduct
- gross disparity of BARGAINING POWER
- party seeking enforcement offers IMPORTANT SERVICES (e.g., doctors)
- provision is subject to CONTRACT DEFENSES (e.g., fraud or duress)
- CONTRARY TO PUBLIC POLICY
When may a court find IMPLIED assumption of risk?
athletic events
unreasonably proceeding in face of KNOWN, SPECIFIC risk (THE FLOPPER)
What are the three general categories of torts where strict liability applies?
Abnormally DANGEROUS activities
Animals
Defective products
What makes an activity “abnormally dangerous” such that strict liability applies?
Creates a foreseeable and highly significant RISK OF HARM, even when actor takes DUE CARE
SEVERITY of harm
Appropriateness of LOCATION for activity
whether it has GREAT VALUE to community
To whom are you liable, and how, if you keep a WILD animal?
Strictly liable to licensees or invitees
NOT strictly liable to trespassers UNLESS (in some jx) you have a vicious watchdog
When are you strictly liable for attacks by a domestic animal?
Only SL if owner KNOWS or has REASON TO KNOW that the particular dog has dangerous PROPENSITIES
When are you liable and how when your animals trespass?
STRICTLY LIABLE for REASONABLY FORESEEABLE damage caused by trespassing animal
UNLESS household pet (though SL if KNOWS/SHOULD KNOW pet is intruding harmfully)
UNLESS trespassing on public roads, then NEGLIGENCE
Does contributory negligence apply to strict liability torts?
Does comparative negligence?
Does assumption of risk?
Contributory negligence DOES NOT BAR recovery
Comparative negligence may or may not (based on jx)
ASSUMPTION OF RISK IS COMPLETE BAR TO RECOVERY EVEN FOR SL TORTS
What are the three types of product defects?
Manufacturing defects (how it’s built)
Design defects (how it was drawn up)
Failure to warn (how it should’ve been presented)
What are the elements of a products liability claim?
1) product was DEFECTIVE (manufacturing, design, or failure to warn)
2) Defect existed when product LEFT D’S CONTROL; and
3) Defect caused P’s injury when used in a FORESEEABLE WAY
Who can be held strictly liable for a products defect claim?
ANYONE UP AND DOWN THE CHAIN, not just manufacturer or designer or seller, ALL SL.
Sellers can be liable IF in the BUSINESS of selling (not casual sellers, that’d be negligence)
What is the test to determine if there was a manufacturing defect?
Deviated from INTENDED DESIGN; or
does not conform to manufacturer’s own SPECIFICATIONS
What are the two tests to determine if there was a DESIGN defect? How do you know which test to use?
Consumer expectations test: product is defective if less safe than the ORDINARY CONSUMER would expect
Risk-utility test: defective if RISKS OUTWEIGH BENEFITS; AND REASONABLE ALTERNATIVE DESIGN EXISTED
Which one = more TECHNICAL, more likely use RISK UTILITY
When is there a failure to warn in products liability?
FORESEEABLE risk;
NOT OBVIOUS to ordinary user
What is the learned intermediary rule?
In failure to warn cases of products liability, the warning must go to the learned intermediary (i.e., for drugs, the doctor)
In direct to consumer cases, doesn’t apply
What damages can be recovered for a SL products liability claim?
Personal injury or property loss,
NOT pure economic loss
just like regular torts!
Can a manufacturer defend against a products liability claim by saying that the product was misused, modified, or altered?
NO, IF the misuse, modification, or alteration was FORESEEABLE!
NB: foreseeable misuses et al would likely be considered comparative negligence
What effect does compliance with government standards have on a products liability claim?
Compliance with safety standards is ADMISSIBLE EVIDENCE that a product is not defective, but NOT DISPOSITIVE
UNLESS: federal preemption (express or implied), then it is dispositive
What is the state of the art defense?
In products liability, saying AT TIME OF MANUFACTURE, “state of the art” was such that warning or defect was not a problem.
some jx evidence, some jx total bar to recovery
Do disclaimers, limitations, and waivers in a K bar recovery for strict liability product defects claims?
NO!!!!
What are the elements of a defamation claim?
P must prove that D:
Made a FALSE AND DEFAMATORY statement;
that is OF OR CONCERNING the P;
which was PUBLISHED to a THIRD PARTY who understood its defamatory nature; and
DAMAGE to P’s reputation results
What does it mean for langauge to be defamatory?
Diminishes respect, esteem, or good will toward P;
or deters others from associating with P;
FALSE
Can an opinion be defamatory?
No, UNLESS it IMPLIES FALSE FACTS
Who are public figures for defamation?
What are the defamation rules for a public official or public figure?
Public official (important government person)/general purpose public figure (kim k)/limited purpose public figure (Roger Clemens when re: sports)
Must show that person making statement KNEW it was false or acted with RECKLESS DISREGARD FOR THE TRUTH
What are the rules for a private individual for defamation?
Private individual, IF
matter of public concern: must show that statement is FALSE and person who made it was NEGLIGENT (should have known it was false)
not a matter of public concern: unclear if need prove anything, could be SL
What damages can be recovered for libel v. slander?
Libel (written defamation): can recover GENERAL damages (i.e., recovery without proof of measurable harm)
Slander (spoken defamation): P must prove special damages (economic loss), EXCEPT for slander per se:
- commission of serious crime
- unfitness for a trade/job
- loathsome disease
- severe sexual misconduct
What constitutional limits exist on damages for defamation?
If private individual + matter of public concern: ONLY ACTUAL DAMAGES, UNLESS ACTUAL MALICE
IF private individual but NOT matter of public concern: general damages allowed
What are the four invasion of privacy torts?
I FLAP:
intrusion upon seclusion
false light
appropriation of right to publicity
public disclosure of private facts
What is the intrusion upon seclusion tort?
D intrudes upon P’s private affairs, in manner that is OBJECTIONABLE TO REASONABLE person
e.g., wire tapping or peeping Toms
What is the false light tort?
D:
1) makes PUBLIC FACTS about the P; that
2) place P in a FALSE LIGHT;
3) which would be highly OFFENSIVE to a reasonable person
e.g., including someone’s mug shot in a story
What is the appropriation of right to publicity tort?
Property-like cause of action when D
1) appropriates another’s NAME OR LIKELESS
2) for the D’s ADVANTAGE
3) without CONSENT; and
4) causes injury
e. g., using someone’s voice in an ad
What is the public disclosure of private facts tort?
1) D PUBLICIZES a matter concerning private life of another; and
2) NOT OF LEGITIMATE CONCERN TO PUBLIC
What are the elements of INTENTIONAL MISREPRESENTATION (FRAUD)?
false representation
knows is false
intends to induce reliance
causes P to act/not act
justifiable reliance on false representation
actual, economic, pecuniary damages
What are the elements of negligent misrepresentation?
D provided False info to P
as result of D’s negligence in preparing info
during course of business
causing justifiable reliance
P is in K with D OR P is third party known by D to be member of group for whose benefit info is supplied
What are the elements of intentional interference with business relations?
valid K between P and third party
D knew of K
D INTENTIONALLY INTERFERED with K, resulting in BREACH
Breach caused damage to P
What are the elements of malicious prosecution?
Person intentionally
and maliciously
institutes or pursues legal action
for improper purpose
WITHOUT PROBABLE CAUSE
and action IS DISMISSED
