Torts Flashcards
Elements of Intentional Torts
- Voluntary Act
- Intent
- Causation
- Harm
- Lack of privilege or defense
Transferred Intent
If D acts with the necessary intent to inflict certain intentional torts against P, but causes injury to V, then D’s intent is transferred to V. (Only applies to battery, assault, false imprisonment, and trespass)
Intent
D either desires to cause harmful result or knows with substantial certainty that it will come about
Battery
- Intent (desire to cause contact or know that such contact is substantially certain to occur)
- Harmful or offensive contact
- To the person or something physically closely connected to person
(P doesn’t have to show injury)
Assault
- Intent (act with desire to cause an immediate harmful contact or the apprehension of such contact or know that such a result will occur)
- Reasonable apprehension
- Imminent battery
False Imprisonment
- Intent (desire to confine or restrain or know that such confinement is certain to result)
- Confinement to a bounded area
- Against P’s will
- P is aware of the confinement or injured by it
Intentional Infliction of Emotional Distress
- Intentional or Reckless conduct
- Extreme or outrageous conduct
- Severe emotional distress (greater than reasonable person would expect to endure)
Trespass to Land
- Intent (D entered or caused something to enter or knew that land entry was substantially certain to result)
- Entry
- On P’s land
Remedies for Trespass to Land
Damages: Nominal damages or punitive damages if D causes injury
Ejectment: P must prove (1) legal title (2) right to possession (3) wrongful possession by D
Mesne Damages: Compensates the loss of use of the land/benefit received by the wrongful possessor, whichever is greater
Trespass to Chattels
- Intent (D interferes with P’s chattel)
- Interference
- P’s chattel
- Actual damages (including loss of use of the chattel)
Remedies for Trespass to Chattels
Cost of repair, fair market value, and potentially punitive damages if D is a bad actor
Replevin-get back the chattel
Conversion
- Intent
- Dominion and control
- Destruction or serious and substantial interference
Remedies for Conversion
Forced sale (market value at time converted) Replevin
POPCANS
Privilege Others (defense of) Property Consent Authority Necessity Self-Defense
Defense of Property
Can use reasonable force; never deadly force
Shopkeeper Privilege
Not liable for false imprisonment if they had a reasonable suspicion that P stole. Can detain for a reasonable period in a reasonable manner on the premises/immediate vicinity.
Self-Defense
D honestly and reasonably believes that she used reasonable force to prevent P from engaging in an imminent and unprivileged attack. D needs to use reasonable and proportionate force.
Duty to Rescue
No duty to rescue, unless
- D’s tortious conduct created the need to rescue
- Rescuer undertook rescue and now must act reasonably
- Special relationship
Special Relationships
- Employer employee
- Common carrier/innkeeper customer
- School student
- Parent child
- Business patron
- Jailer prisoner
Duty to Control 3rd Parties
There is no duty to control 3rd parties unless a special relationship exists
Dram Shop Acts
Imposes liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a 3rd party
Negligent Entrustment
When D gives something dangerous to someone D knows, or should know is not competent to handle it
Duty to Protect
There is no duty to protect another person from 3rd party criminal conduct, unless a special relationship exists and some jurisdictions require prior similar incidents that make criminal conduct foreseeable
D as Gov
- If gov is acting in private area then it is treated as any other D for duty analysis
- If gov is using judgment and allocating resources then it doesn’t owe a duty
- If gov is exercising ministerial functions then it has a duty once it has undertaken to act
Public Duty Doctrine
Courts find no duty when police.firefighters fail to provide an adequate response, unless there is a special relationship or the agency increased the danger beyond what would otherwise exist
Negligent infliction of Emotional Distress
- D engages in negligent conduct
- P was in the zone of danger
- P suffers emotional distress AND
- P suffers some sort of physical manifestation of that distress
Exception: misinformation about loved one or mishandling of corpse
Wrongful Conception, Birth, and Life
Courts will usually only award damages for wrongful conception due to the doctor’s failure to properly conduct a contraceptive operation and damages only cover the cost of birth and to fix ineffective birth control
Invitees
D has duty to exercise reasonable care to prevent injuries caused by activities conduct on D’s land
Licensees
D has duty to warm of known concealed dangers
Trespassers
D has duty to avoid infliction of willful or wanton harm
Activities on Land
D has a duty of reasonable care to all except trespassers. For invitees D has a duty to reasonably search out dangers on the property
Frequent Trespassers
D has a duty to warn of concealed dangerous artificial conditions
Child Trespassers
The child will be treated as an invitee if:
- too young to appreciate the danger
- D knows, or has reason to know, of trespass
- D knows of dangerous condition
- Condition is artificial
- Risk of danger of the artificial condition outweighs it utility and burden to fix
Duty Held by Landlord’s
Landlord generally not liable, unless:
- Common area over which LL retains control
- Negligent repairs
- At time of lease, LL knows of concealed dangerous condition
- LL knows that T is going to hold property open to public
P not on Land
D must exercise reasonable care to prevent a P not on his land from an injury deriving from D’s activities and from unreasonably dangerous artificial conditions that protrude onto adjacent land
Reasonably Prudent Person
Objective standard that only accounts for physical conditions, such as blindness, deafness, or amputee, and emergencies not created by D.
Children
Was D’s conduct reasonable according to what a child of the same age, experience, education, and intelligence would have done?
Negligence Per Se
- P is a member of a class the law aimed to protect AND
2. Injury caused by D’s conduct is the type the statute sought to protect
Professionals
Specialists-National Standards
General Practitioners-Locality Standards
Standard of Materiality
Doctors must divulge all material risks, risks that a reasonable patient would want to know in deciding whether to undergo the procedure. Failure to divulge material risk is malpractice if P can show he would have refused the procedure if risk was disclosed.
Res Ipsa Loquitur
P needs to show:
- This sort of thing doesn’t occur absent negligence
- D is probably responsible because D had control over instrumentality of harm.
- P didn’t contribute to injury
Damages
- Personal injury and property damages
- Compensatory damages (damage must be foreseeable, must be reasonably certain, and not avoidable)
- Special damages (medical costs, lost wages, cost of repair)
- General damages (pain and suffering)
- Punitive damages (D must be more culpable than just negligent)
Pure Comparative Fault
P can recover no matter how much at fault. Subtract out P’s percentage of fault.
Modified Comparative Fault
P cannot recover if at fault.
Assumption of Risk
- P knew of an appreciated the nature of the risk
- Appreciated the specific danger that injured him, and
- Voluntarily chose to subject himself to that danger
Manufacturing Defect
P must show the product is more dangerous than a consumer would reasonably expect when using the product in its intended manner or it is in a condition not intended by the manufacturer and defect existed when leaving manufacturer’s hands
Ordinary Consumer Expectation Test
Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community
Risk-Utility Balancing
Jury determines whether the danger the design threatens outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost.
Warnings
Does the warning reasonably inform a reading of the risks and how to reduce them? Should have D warned at all?
Defamation
- Defamatory message
- Publication
- Public official must prove actual malice
Slander per se
- imputes to P behavior or characteristic that are incompatible with the proper conduct of P’s business, profession, or office
- Imputes to P commission of a crime involving moral turpitude or infamous punishment
- Allegations P has a loathsome disease
- Imputing lack of chastity on a woman
Intentional Misrepresentation
- Intentional material misrepresentation by D
- of past or present facts
- made with knowledge
- on which P justifiably relies to P’s economic detriment
Negligent Misrepresentation
- negligent material misrepresentation by D
- of past or present facts
- made without knowledge of truth or falsity
- on which P justifiably relies to P’s economic detriment
* No duty to avoid negligent misrepresentation for pure economic loss
Injurious Falsehood
- False statement
- Actual malice
- Made to another or published
- Causing specific economic injury to P
