Torts Flashcards
1
Q
Intentional Torts
A
- Battery
- Assault
- IIED
- False Imprisonment
- Tresspass to Land/Chattel
- Conversion
2
Q
Battery
A
- Intent
- Harm/offensive contact
3
Q
Assault
A
- Intent
- Cause apprehension or imminent
- Harmful/offensive contact
4
Q
IIED
A
- Intent/Reckless
- Extreme/outrageous conduct
- Severe emotional distress
5
Q
False Imprisonment
A
- Intent
- Confine
- Bounded Area
- No reasonable means of escape
- P was aware or harmed
6
Q
Trespass to Land
A
- Intent
- physical invasion
- P has right to possession
7
Q
Conversion
A
- Trespass to Chattel
- Substantial Interference
- P pays full amount
8
Q
Intentional Tort Defenses
A
- Consent
- Self-defense
- Defense of Others
- Defense of Property
- Recapture Chattels
9
Q
Consent
A
- Express
- Implied
10
Q
Self Defense
A
Reasonable Belief
Reasonable Force
11
Q
Defense of Others
A
Reasonable belief that other could defend
Reasonable force
12
Q
Defense of Property
A
Reasonable force to prevent tort
13
Q
Recapture Chattels
A
- In pursuit
- Reasonable force
- Wrongful taking
14
Q
Negligence
A
defendant’s conduct causes unreasonable risk to another which results in injury.
Plaintiff must prove: Duty Breach Actual Cause Proximate Cause Actual Damages
15
Q
Duty/Standard of Care
A
A person has the duty to act as a reasonable person unless a special duty applies
- Reasonable Person
- Landowners Standard
- Negligence Per Se
16
Q
Reasonable Person Duty/Standard of Care
A
A person has the duty to act as a reasonable person to:
- Foreseeable plaintiffs (cordoza)
- Unforseeable plaintiffs = everyone (andrews)
17
Q
Landowners Duty/Standard of Care
A
- Licensee = Guests
Duty to warn of known dangerous conditions - Invitee = Business
Duty to make reasonable inspections to find hidden dangers - Trespasser
Even if a person is a trespasser, force that will cause death or serious bodily harm may not be used. Indirect deadly force also cannot be used as a means to protect property.
the landlord should recognize dangers and expected to notice and appreciate reasonable risk conditions of the common area, ex: “sprinkler head could be a hazard
18
Q
Negligence Per Se Duty/Standard of Care
A
- defendant violates the statute
- plaintiff within the class the statute was designed to protect
- statute was created to stop that kind of accident
19
Q
Breach
A
- Failure to meet standard of care
- violate negligence per se
- Res ipsa loquitur
20
Q
Actual Cause
A
But for test. The injury would not have happened but for the act of the defendant or the defendants conduct was a substantial factor in causing the injury
21
Q
Proximate Cause
A
- Also called legal cause, it is the direct cause = foreseeability = defendant is liable for all harmful results that were foreseeable
- Eggshell = defendant is liable for unforseen consequences to plaintiff because defendant takes plaintiff as they are
- intervening = defendant is liable for all foreseeable intervening causes (med mal & negligence by rescuer)
22
Q
Damages
A
General/Putatative
Duty to Mitigate
23
Q
Negligence Defenses
A
- Contributory Negligence
- Comparative Negligence
- Assumption of the Risk
24
Q
Contributory Negligence
A
A defense to negligence. Plaintiff was at fault as well so bars recovery
25
Comparative Negligence
A defense to negligence. Plaintiff was at fault as well but it does not bar recovery. Liability divided between plaintiff and defendant to their degree of fault
1. partial comparative = if plaintiff is over 50% bars recovery
2. pure comparative = allows recovery regardless of how much plaintiff is at fault. However recovery is reduced by the percentage of their own negligence
26
Assumption of the Risk
A defense to plaintiff knew of the risk and consented
27
Strict liability
1. Animals
| 2. Ultra hazardous activity
28
Animals Strict liability
owner is strictly liable for trespass of his animals
wild= injuries from animals dangerous propensities
domestic = injuries only if owner knew or had reason to know of animals dangerous propensities
29
Abnormally Dangerous Activity
A person or company can be held strictly liable for its actions of a abnormally dangerous activity if the actions involve a substantial risk of serious harm to a person or property even if reasonable care is exercised
- High risk of serious harm
- reasonable care won't eliminate risk
30
Defenses to Strict Liability
Assumption of the risk
31
Product Liability
1. Intent
2. Strict Liability
3. Negligence
4. Warranties
5. Misrepresentation
32
Intent Product Liability
plaintiff is liable if they had intent for it to happen or knew it was likely to happen
33
Strict Liability Product Liability
A commercial supplier can be held strictly liable for the sale of any product which is in a defective condition or unreasonably dangerous to the user. Knowledge of danger is not a element of strict liability. The defect must have existed at the time the product left the defendants control. The product must also be in substantially the same condition as it was at the time of purchase. Strict liability can be imposed upon a retailer and up the chain to the manufacturer for the sale of any product which is defective or unreasonably dangerous to the user and results in physical harm
1. commercial supplier
2. places product in the stream of commerce
3. product is defective
```
manufacturing defect(product deviated
from intended design)
```
design
warning. (manufactures must foresee reasonable misuses of a product even if a manufacturer used every available means to inspect and discover defects, the care exercised by the manufacturer is irrelevant in a strict liability action. The supplying of unreasonable dangerous defective product satisfies the breach of strict liability. but a product manufacturer is not liable if the injury results from an unintended and unforeseeable misuse of the product
4. actual cause
5. proximate cause
6. Damages
In order to recover damages against a manufacturer on the theory of strict liability, the product must have been defective at the time it left the control of the manufacturer.
34
Negligence Product liability
Rare because retailers/wholesalers only have a duty to inspect or warn of known dangers. A manufacturer would stil be liable under negligence theory
35
Warranties Product Liability
1. Express Warranties
2. Implied Warranties
3. Merchantability (implied warranty in every sale of good that it is fit for ordinary purpose
4. Fitness for a particular purpose (seller knows or has reason to know the buyer wants the good for a specific purpose
36
Misrepresentation Product Liability
Seller gave material fact that was relied on
37
Nuisance
1. Private Nuisance
- substantial unreasonable interference
- use/enjoyment of property
2. Public Nuisance
- substantial unreasonable interference
- health and safety of community
38
Nuisance Defenses
1. Coming to the Nuisance
| 2. Assumption of risk/contributory negligence
39
NIED
-Plaintiff suffers physical injury
-Plaintiff was in the zone of danger (majority)
minority = plaintiff observers the injury but not within the zone of danger
40
Defamation
1. Defamatory Statement
2. About defendant
3. publication to a 3rd party
4. Damages. Harmed the plaintiff
=libel
=slander (if slander the plaintiff must prove special damages which is damage to the plaintiff's property, occupation, trade, profession or business relationships) four exceptions where special damages are not required (1) criminal activity (2) misconduct of plaintiff occupation (3) sexual misconduct (4) plaintiff having a disease.
Public figure = malice
Private Figure = Negligence
41
Defamation Defenses
1. Consent
2. Truth
3. Privilege
42
Privacy Rights
1. Misappropriation
2. Intrusion on p's solitude
3. Publicity of Private Life
4. False Light
43
Misappropriation
Plaintiff name of picture
unauthorized use
defendant financially benefits
44
Intrusion on P's Solitude
Intrusion
Private Place
Highly offensive to a reasonable person
45
Publicity of Private Life
Publicized details
Private Life
Highly offensive to reasonable person
46
Vicarious Liability
3rd party liability.
- employment
- employee v. independent contractor
47
3rd Party Liability Multple Defendants
a.Joint and several liability
Two or more negligent acts combine to cause plaintiff harm each ∆ is liable for the entire harm. Ꙥ can recover from either
b.Contribution
Reimbursement from the other ∆
c.Indemnity
Shift the entire responsibility to the other ∆ so they can get reimbursed every penny they paid.
48
3rd Party Liability Multiple Defendants
a.Joint and several liability
Two or more negligent acts combine to cause plaintiff harm each ∆ is liable for the entire harm. Ꙥ can recover from either
b.Contribution
Reimbursement from the other ∆
c.Indemnity
Shift the entire responsibility to the other ∆ so they can get reimbursed every penny they paid.
49
Negligent Actions Unite with Another
When are defendants negligent act unites with another event, the defendants concurrent negligence will be considered the cause of at least part of the harm
50
Res Ipsa Loquitur
Infer negligence when no direct evidence that the defendant acted negligently. Plaintiff must prove
1. event would not have happened absent negligence
2. in the defendants exclusive control
3. plaintiff is not the one who caused it to happen.
51
Wrongful birth
parents may recover economic damages for the negligent failure to diagnosis a hereditary or congenital condition and if they knew about it they would not have had the baby
52
Non delegable Duty
A landowner who holds his land open to the public has a nondelegable duty to keep the premises safe for business visitors. The landowner is liable for any negligence that causes a guest to be injured by unsafe conditions on the premises, even the negligence of an independent contractor
53
Independent Contractor
Ordinarily a landowner would not be liable for the acts of an independent contractor, so long as the contractor was not negligently hired. Two broad exceptions exist
i. the independent contractor is engaged in inherently dangerous activity, (excavating next to a public sidewalk, blasting)
ii. the duty is non-delegable
