Torts Flashcards
Definition of battery
- Harmful or offensive contact
- To P’s person
- Intent
- Causation
Definition of assault
- Act by D creating reasonable apprehension in P
- Of immediate harmful or offensive contact to P’s person
- Intent
- Causation
Can words be considered assault?
Words alone lack immediacy. Naked verbal threat w/o accompanying conduct isn’t enough
Definition of false imprisonment
- Act or omission by D that confines or restrains P
- To a bounded area
- Intent
- Causation
False imprisonment - what is a bounded area?
Area is not bounded if there’s REASONABLE means of escape that P can reasonably discover
Definition of intentional infliction of emotional distress
- Act by D amounting to extreme and outrageous conduct
- Intent or recklessness
- Causation
- Damages (severe emotional distress)
IIED - what is outrageous conduct?
Standard : exceeds all bounds of decency tolerated in civilized society
Def. of trespass to land
- Physical invasion of P’s real prop
- Intent
- Causation
Def. of trespass to chattels
- Act by D that interferes w/ P’s right of possession in a chattel
- Intent
- Causation
- Damages
Defense of private necessity is only a limited defense, D remains liable for
Compensatory damages. Not liable for nominal/punitive damages
Consent may be implied based on:
custom and usage or P’s conduct (e.g. normal contacts in body-contact sports)
General rule of transferred intent in intentional torts:
When D intends to commit a tort against one person but instead (i) commits a different tort against that person, (ii) commits the same tort but against a different person, or (iii) commits a different tort against a different person
Def. of conversion
- Act by D that interferes w/ P’s right of possession in a chattel
- Interference is so serious it warrants requiring D to pay chattel’s full value
- Intent
- Causation
2 part test for consent:
- Was there valid consent (no fraud)?
2. Did D stay w/in boundaries of the consent?
Elements of defamation:
- Defamatory language
- “Of or concerning” the P
- Publication to any 3rd person
- Damage to P’s rep (for slander, must have economic harm)
In defamation libel case, how to prove damages:
General damages always presumed (defamatory statement is written down)
In defamation slander (oral) cases, damages are presumed when:
Slander is so hurtful it is called “per se” slander:
Related to P’s biz, accusation of committing crime of moral turpitude,
When defamation involves a matter of public concern, P must additionally prove:
- False of the statement, and
2. Fault on part of D
In defamation of public concern, P must prove fault on part of D. Analysis depends on whether P is private or public official
Public official must prove malice (knowledge that statement was false or reckless disregard about truth)
Private person need not prove malice, only negligence
4 defenses to defamation:
Consent
Truth
Absolute privilege (e.g. spouses, gov officers)
Qualified privilege (letters of rec, statements to police), must be made in good faith
Invasion of right to privacy includes 4 kinds of wrongs
- Appropriation of P’s picture or name
- intrusion on P’s affairs or seclusion
- publication of facts placing P in false light (attaches views that are highly offensive to a reasonable person)
- public disclosure of private facts about P
Invasion of right to privacy tort… must show what damages?
No special damages. Emotional distress/mental anguish sufficient
Intentional misrepresentation (fraud/deceit) 5 elements:
Misrepresentation of material fact D must have made statement intentionally/recklessly Intent to induce reliance Actual reliance Damages
4 elements of negligence
duty
breach
causation
damages
Negligence:
You only owe a duty of care to:
Foreseeable victims. Must be in the foreseeable “zone of danger”
Two exceptions to zone of danger rule:
Rescuers (duty owed, even if rescuer starts from far away)
Fetuses (no duty owed, even if in zone)
Duty of care standard
Exercise amount of care as by a reasonably prudent person in similar circumstances
Exception for reasonably prudent person standards
Standard is one-way ratchet going up
If D has superior skill/knowledge, RPP standard is heightened
RPP assumed to have same physical characteristics (e.g. blind person)
Two exceptions to zone of danger rule:
Rescuers (duty owed, even if rescuer starts from far away)
Fetuses (no duty owed, even if in zone)
Duty of care standard
Exercise amount of care as by a reasonably prudent person in similar circumstances
Exception for reasonably prudent person standards
Standard is one-way ratchet going up
If D has superior skill/knowledge, RPP standard is heightened
RPP assumed to have same physical characteristics (e.g. blind person)
Duty of care of CHILDREN
Under 5, they owe no duty to anyone
5-18, they owe care of hypothetical child of similar age, experience, and intelligence acting under similar circumstances
But just normal duty if doing adult activity
Duty of care of PROFESSIONALS
Required to exercise skill and knowledge normally possessed by other members of profession in similar communities (empirical real-life standard)
Duty of care owed to UNDISCOVERED TRESPASSER
Zero duty of care
Duty of care owed to all entrants except undiscovered trespasser for active operations
Reasonable care
Duty of care owed to licensees (i.e. SOCIAL GUESTS)
Duty to warn/make safe known, dangerous conditions (both artificial and natural)
Duty of care owed to child entrants (if no attractive nuisance)
General RPP wrt any artificial condition, but RPP depends on how many kids you live near
Statutory standards of duty of care
Statute may replace CL duty of care if:
- statute provides for crim penalty
- statute clearly defines the standard of conduct
- P is w/in protected class
- Statute was designed to prevent the type of harm suffered by P
Unless compliance was impossible or would’ve been more dangerous
No fault insurance: denies right to sue but gives holder a guaranteed right of compensation.
Basic rules (beneficiaries and people barred):
First party benefits: policyholder, authorized driver of holder’s car, any pedestrian hit by car
Barred: Drunk drivers, drag racers, car thieves/fleeing felons
NY: you can still file negligence claim after no fault insurance if
You suffered a serious injury
Statutory standards of duty of care
Statute may replace CL duty of care if:
- statute provides for crim penalty
- statute clearly defines the standard of conduct
- P is w/in protected class
- Statute was designed to prevent the type of harm suffered by P
Unless compliance was impossible or would’ve been more dangerous
No fault insurance: denies right to sue but gives holder a guaranteed right of compensation.
People barred from getting no fault benefits:
Drunk drivers, drag racers, car thieves/fleeing felons
NY: you can still file negligence claim after no fault insurance if
You suffered a serious injury
Generally: no duty to rescue a stranger in peril
Exceptions:
if there’s preexisting relationship
if D put P in peril
There, duty to act reasonably, not rescue
Gratuitous rescuer who rescues w/o duty may be held liable
Negligence: breach
Res ipsa loquitor general rule
Must show accident is the kind normally associated w/ negligence
Accident of this type is normally due to negligence by someone in D’s position
Negligent IIED in a near miss case
Must be in zone of danger
There must be subsequent physical manifestation of stress
Negligent IIED in bystander case (negligent D who seriously injured individual who isn’t P)
Victim must be close family member and P was physically present was X got hurt
NY: P must be in zone of danger
Negligence: breach
Res ipsa loquitor general rule
Must show accident is the kind normally associated w/ negligence
Accident of this type is normally due to negligence by someone in D’s position
Negligence: causation
Always analyze two factors:
Factual cause
Proximate cause
Negligence: proximate cause is a test of
Foreseeability
Think of risks of the breach, and then what happened to P… is there a match?
Negligence: factual cause standard in multiple Ds and merged causes
See if each breach was a SUBSTANTIAL FACTOR in producing the harm
Negligence: factual cause standard in unascertainable cause cases
Burden of proof shifts to Ds, each must prove that his negligence is not the actual cause
Negligence: proximate cause is a test of
Foreseeability
Proximate cause: Results are considered foreseeable in some intervening situations:
Intervening medical negligence
Intervening negligent rescue
Intervening protection/reaction forces (bystanders freak out)
Subsequent disease or accident
Tort damages: general rule of the eggshell skull principle
P recovers all damages suffered, even if surprisingly great in scope
4 elements to getting an injunction
- P must show no adequate remedy at law ($ inadequate)
- P has particular right in the lawsuit
- Injunction must be enforceable (difficult w/ affirmative injunction)
- Balance of hardships must tip in P’s favor
Affirmative defenses to injunctions
- “Unclean hands” - P is guilty of some kind of offsetting conduct
- Laches doctrine - D has relied detrimentally on P’s acquiescence
- 1st amendment (there can be no prior restraint)
Default affirmative defense in negligence claims (MBE)
Pure comparative negligence - D must show P failed to exercise proper care for his own safety
P’s recovery will be reduced by P’s % of fault
Affirmative defenses in negligence claims (NY)
Primary assumption of risk - applies only to participants/spectators in sporting events
Alternative affirmative defense in negligence claim (not pure comparative) (MBE)
Modified/partial comparative fault - if P fault over 50%, absolute bar to recovery
Injuries caused by an animal - general rule
If injury is caused by domestic animal, no SL, unless you have knowledge of its vicious propensities
Injuries caused by an animal to a trespasser… SL?
NO SL, even if you have knowledge of its vicious propensities
Injuries caused by an animal (NY)
If injury is due to aggression by animal, knowledge of vicious propensity leads to SL. If injury is something else, it’s negligence
Injuries caused by wild animal that you keep
Always SL… safety precautions don’t matter
Abnormally dangerous activities are SL. 2 part test for abnormally dangerous:
- Creates foreseeable risk of serious harm even when reasonable care is exercised
- Activity is not commonly used in the community
E.g. blasting
Workers’ comp: who is not able to get benefits
Independent contractors do not get benefits under workers’ comp
Workers’ comp: basically all injuries are covered, w/ 3 exceptions:
- Drunken injury
- Intentionally injuring yourself
- Injured during voluntary, off-duty athletic activity
4 elements of strict product liability
- D must be a merchant
- P must show product is defective
- P must show product hasn’t been altered since leaving D’s control
- P must be making a foreseeable (not intended) use of product
For strict products liability, how to establish element that product is defective:
- Manufacturing defect (if it differs significantly from others… quality control method is irrelevant)
- Design defect (alternative design could’ve been safer, cost-effective, and practical)
- Information defect (warning must be adequate)
Nuisance tort general rule
Interference w/ P’s use or enjoyment of his land must be substantial (must be offensive, inconvenient, etc. to an AVERAGE person)
Vicarious liability: employer-employee general rule
Employer is liable for torts of employee if in scope of employment
Also if use of force is part of job and employee is excessive, or if tort is committed in misguided effort to serve employer’s interest
Vicarious liability: independent contractor general rule
No vicarious liability
Exception: if property owner brings independent contractor, and contractor hurts invitees… there’s VL
Vicarious liability: car owner and driver general rule (MBE)
No vicarious liability
Exception: if car is lent for you to run an errand for me, it’s principal-agent
Vicarious liability: car owner and driver general rule (NY)
VL imposed on owner for torts committed by anyone driving the car w/ permission
Vicarious liability: parent-child general rule
No vicarious liability
Torts: married couple, always think loss of consortium. General rule:
Uninjured spouse will get separate cause of action against all the same Ds
Loss of services
Loss of society (companionship)
Loss of sex
Measure of damages for conversion?
Fair market value of chattel. But D can keep the item (it’s like a forced sale)
