Torts Flashcards
Intentional tort generally:
P must prove (1) act (2)intent and (3) causation
Intent in intentional tort:
D acts with the
(1) purpose of causing the consequence OR
(2) knowledge that the consequence is substantially certain to follow.
Battery element
D causes a
(a) harmful or offensive contact
(b) with the person of another
(c) with intent to cause that contact or apprehension
Single-intent rule for battery intent (majority rule)
D liable if (1) intends to cause the contact but (2) need not intend that the contact be harmful/offensive
Damage requirement for battery
no proof of actual harm required
Assault elements
act or threat by D that causes
(a) reasonable apprehension of
(b) imminent, AND harmful/offensive bodily contact and
(c) D intended to cause that contact or apprehension
Mere words generally not sufficient.
Imminent means no threats of future harm
Intentional infliction of emotional distress (IIED) elements
D
(a) intends to cause severe emotional distress or acts with reckless disregard as to the risk
(b) does extreme & outrageous conduct
(c) that causes P’s severe emotional distress
IIED: outrageous
a conduct is outrageous if it exceeds the possible limits of human decency
© mere insults/threats not outrageous,
unless words + conduct (1) D is in a position of authority OR (2) P is in a group that has heightened sensitivities (e.g. children)
IIED: Transferred intent
Transferred intent does not apply to IIED when if you intended battery against A and end up committing IIED against A or B.
Transferred intent applies if you intended IIED against A and end up committing against B (like family or bystander).
IIED: Family member of the victim may recover for IIED if
(a) D intentionally or recklessly causes severe emotional distress to P’s family member;
(b) D act extreme outrageous conduct
(c) P was present at the time and perceived such conduct
intentional or reckless (ie, D knew that P was present and closely related to the injured person)
IIED: Nonfamily bystander of a victim can recover for IIED if
(a) D intentionally or recklessly causes severe emotional distress to victim;
(b) D act extreme outrageous conduct
(c) P was present at the time and perceived such conduct
(d) bodily injury / require proof of actual harm.
IIED: Damages
No proof of actual harm required (except for bystander)
False imprisonment: elements
D
(a) intends to confine/restrain another
(b) confine/restrain
(c) P is conscious or is harmed
False imprisonment: Intent requirement
(1) acts with the purpose of confining or
(2) acts with knowledge that confinement is substantially certain to result.
NOT negligence.
False imprisonment: Damages
no proof of actual harm required unless D unaware
False imprisonment: Confinement
threats, force, false authority, failure to provide a means of escape © future threats does not constitute confinement or restraint
Shopkeeper’s privilege:
reasonable detention of suspected shoplifter
Intentional torts involving personal injury:
Consent
A defense
Express or Implied consent by custom, emergencies, consensual athletics
Intentional torts involving personal injury:
Consent is not a defense/is negated when
(1) mistaken consent is caused or knowingly utilized by D;
(2) fraud;
(3) duress
(4) incapacity/incompetency
(5) intoxication
Intentional torts involving personal injury:
Self-defense is a defense if
reasonable force proportionate to anticipated harm
© initial aggressor
Initial aggressor doctrine
Initial aggressor can’t claim self-defense unless the other party responded to nondeadly force with deadly force
Self-defense: reasonable mistake
Allowed
Self-defense: liability for injury to bystander while self-defense
Person acting in self-defense has no liability if injuries were (a) accidental and actor was (b) not negligent toward the injured bystander
Use of force in defense of property:
reasonable force OK if used based on reasonable belief that it is necessary to prevent tortious harm.
No deadly force allowed
Use of force when taking back personal property wrongfully taken:
Reasonable force OK but only if you first request its return unless doing so would be futile
Use of force when taking back possession of land:
No use of force
Use of force when preventing trespass on one’s land:
use reasonable force to remove trespasser only if
(a) D reasonably believed force is necessary to end trespass and
(b) D first asked P to leave (or futile)
© visitor acting under necessity
Private arrest privilege if:
if (a) felony was actually committed and
(b) reasonable to suspect that the person committed it
Public arrest privilege if
if (a) reasonable to believe felony was committed and (b) reasonable to suspect that the person committed it.
Privilege of arrest for misdemeanor:
Public arrest allowed only if committed in officer’s presence.
Private arrest allowed only if breach of the peace.
Trespass to chattel elements
intentional interference with P’s right of possession by dispossessing or use/intermeddling
P must show actual harm to or deprivation of use for a substantial time.
Trespass to chattel: intent
only intent to do the act is necessary.
Transferred intent applies.
Conversion elements
(a) intentional interference with P’s right of possession so serious that
(b) it deprives P of the use of the chattel
© no conversion if able to repair.
Conversion: Intent
intent to convert—to take or exercise dominion over personal property.
© not accidentally damaging if permission to use
©© if accident occurred while using outside scope of consent
Transferred intent does not apply—must intend to control the particular property
Trespass to chattel: Mistake of law or fact
Not a defense
Conversion: Mistake of law or fact
Not a defense
Conversion: Accidental damage
Not conversion if permission to use
©© if accident occurred while using outside scope of consent
Trespass to land element
(a) intent to enter land
(b) physical invasion
Trespass to land: Intent
intent to trespass not required. just intent to enter the land
Trespass to land: Damages
no proof of actual damages required
Trespass to land: mistake of fact
Not a defense
Defense to trespass in land: private necessity
Liability for damages
A defense if entered to protect own person/property from serious harm.
Still responsible for damages
Defense to trespass in land: public necessity
Liability for damages
A defense if entered to avert imminent public disaster.
Not liable for damage if actions reasonable or reasonable belief that necessity existed
Negligence:
Duty
owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care (Cardozo)
Andrews: duty owed to everyone if a conduct can harm them.
Duty: Are rescuers foreseeable persons for the purpose of duty?
Yes. Rescuers who get injured are foreseeable P’s.
© Firefighter’s rule (emergency professionals if injury results from the risk of the job–even if caused by D’s negligence)
No affirmative duty to act—Exceptions:
(1) Assumption of duty
(2) place another in danger
(3) by authority
(4) by relationship
(5) by contract
(6) by statute
Standard of care is
reasonably prudent person
A reasonably prudent person standard takes into consideration:
(1) D’s physical characteristics, not mental
(2) Intoxication (held to the same std as sober unless involuntary)
(3) D’s age © adult activities
standard of care: common carrier and innkeepers
common carriers–highest duty of care consistent with the practical of operation (Majority)
Innkeepers– ordinary negligence (Majority)
Standard of care: for professionals:
A professional person, like an electrician, is expected to exhibit the same skill, knowledge, and care as an ordinary professional in the same community.
Bailor’s duty to warn:
to gratuitous bailee
to compensated bailee
To gratuitous: duty to warn of known dangerous defects
To compensated: duty to warn of defects that are known or that bailor should have known with reasonable diligence
Landowner standard of care to trespassers generally
Only duty to refrain from willful, wanton, intentional or reckless conduct.
Landowner duty to trespassers: Duty to warn?
Duty to warn discovered/anticipated trespassers against hidden dangers.
No duty to undiscovered trespassers
Attractive nuisance doctrine:
A landowner may be liable to trespassing children if ∑
(a) artificial condition where owner knows or reason to know that children are likely to trespass
(b) owner knows that condition poses an unreasonable risk of serious harm
(c) children do not discover or do not appreciate the danger
(d) utility of maintaining the condition is slight compared to the risk
(e) owner fails to exercise reasonable care
Landowner duty to licensees:
(1) Duty to warn licensees of hidden, known dangers
(2) Use reasonable care in conducting activities on land.
(3) No duty to inspect
Landowner duty to invitees:
(1) Duty to exercise reasonable care to inspect,
(2) Duty to discover dangerous conditions, and
(3) Duty protect invitees from them.
Landowner duty to invitees is non-delegable. This means:
A landowner can’t avoid duty by assigning care of the property to an independent contractor.
3d Restatement approach for landowner duty:
Reasonable standard of care to all except flagrant trespassers
Landowner duty to off-premise victims for injury caused by natural conditions:
no duty.
Landowner duty to off-premise victims for injury caused by artificial conditions:
duty to prevent unreasonable risk of harm caused by artificial conditions.
Breach occurs when (traditional approach)
violation of the standard of care.
Breach occurs if D’s conduct isn’t what a reasonably prudent person would do under the circs
Breach: modern approach
Breach occurs when B < PL.
Discuss (1) burden to prevent harm (2) foreseeability of harm (3) severity of harm
B = burden $$$; P = probability; L = loss $$$
Breach: burden of proof standard for breach
preponderance (more likely than not that D failed to meet standard of care)
Breach: evidence of custom
Admissible to prove breach, but not dispositive, UNLESS professionals.
For professionals, compliance with custom = no breach. Deviation from custom = breach.
Breach: doctors’ informed consent
Doctors must inform the patient of risks unless
(1) risk commonly known
(2) patient unconscious
(3) patient waives
(4) patient incompetent
(5) patient would be harmed by the disclosure
Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence)
As with any other negligence, P must prove duty+breach, causation and injury.
Breach: negligent per se function (not elements)
when a law establishes a standard of care, violation of that law constitutes a breach.
Unexcused violation of the law constitutes negligence per se
Breach: negligence per se elements
Unexcused violation of the law constitutes negligence per se.
(a) statute imposes a specific duty for protection of others
(b) D neglects to perform the duty
(c) D is liable to anyone in the class of people intended to be protected by the statute
(d) for type of harm the statute was intended to protect against
Breach: negligence per se defenses 4
(1) compliance impossible or would’ve been more dangerous than noncompliance
(2) violation reasonable under the circs
(3) statute vague
(4) compliance with federal reg pre-empts state tort action
Breach: res ipsa loquitur function
allows circumstantial evidence of negligence to get to jury
Breach: res ipsa loquitur elements
(a) accident was a kind that doesn’t ordinarily occur in the absence of negligence
(b) it was caused by agent/instrumentality within D’s exclusive control
(c) P not responsible for the injury (P’s negligence didn’t increase likelihood of D’s negligence.
© exclusive control requirement ignored for product liability
Causation: cause in fact (actual cause) established
if P shows the injury would not have occurred but for D’s negligence
Causation: If there are 2+ Ds or 2+ causes in negligence action, causation test applied is
substantial factor test.
Causation: loss of chance doctrine
if P’s recovery was <50% before D’s conduct; can recover % of total damages equal to their reduced chance of survival
Causation: proximate causation
P must show that injury was a foreseeable result of D’s conduct
Causation: intervening cause
Foreseeable intervening cause does not cut off liability.
Unforeseeable intervening cause cuts off D liability.
If foreseeable, does not cut off D’s liability (e.g. subsequent medical malpractice, disease, or accident; negligence of rescuers; normal forces of nature; or efforts to protect a person or property; negligent intervening acts)
Causation: unforeseeable superseding causes
criminal acts and/or intentional torts by third parties, natural forces.
© if D had a duty to protect P, breached it, and P is harmed by crime, D remains liable.
Damages: damage limitations for negligence
Parasitic damages:
must prove actual harm (personal or property harm).
- CANNOT sue if only economic loss.
- No damages for defamation for dead P
a P who suffers physical injury in negligence lawsuit can also recover emotional damages
Damages: three categories of compensatory damages
(1) past/future medical expenses;
(2) past/future pain and suffering; and
(3) lost income/reduced future earnings
Damages: collateral source rule
P’s recovery is not reduced by benefits or payments to P from outside sources (P’s insurance)
Damages: collateral source rule exception
P’s recovery is reduced by payment by D’s insurer
Damages: punitive damages in negligence suits
Rule
Limitation
awarded if willful & wanton, malicious, or reckless behavior.
© Cannot exceed single digit ratio to compensatory damages
Negligent infliction of emotional distress (NIED) elements ∑
NIED requires proof that
(a) D’s negligent conduct placed P in zone of danger of threatened physical impact
(danger of immediate bodily harm) and
(b) the threat of physical impact caused P to suffer emotional distress.
P outside the zone of danger can recover for negligent infliction of emotional distress if ∑
(a) closely related to victim
(b) present at the scene of injury and
(c) personally observe the injury.
Damages requirement for NIED
physical symptoms required
Damages requirement for people with a special relationship in NIED
no threat of physical impact or physical symptoms required
Respondent superior
Employer is vicariously liable for the negligence of an employee if it occurred within the scope of employment.
Employer liability for employee’s intentional torts
Employer not liable for intentional torts unless
(1) force inherent to job (e.g. bouncer) OR
(2) EE authorized to act/speak for ER and position provided opportunity for the tort (fraudulent contract as ER’s agent)
Detour
minor deviation from the scope of employment
Employer still liable
Frolic
major deviation from the scope of employment
Employer not liable
Employee vs. Independent contractor
Employee when employer has a right to control the means and methods of employee.
Independent contractor—Employers generally not liable for IC’s torts except
(1) negligent selection of IC (primary negligence);
(2) vicarious liability for non-delegable duty; or
(3) vicarious liability for IC acting under apparent authority
Negligent entrustment
A car owner can be directly liable for negligently entrusting vehicle (if D knows or should know of driver’s negligent propensities )
Family purpose doctrine
A car owner can be vicariously liable for family members driving with permission
Owner liability statute
A car owner can be vicariously liable for anyone driving with permission
Parent direct liability for negligence for children’s conduct
Negligent if fails to exercise reasonable care to prevent minor child from intentionally or negligently harming 3rd party if the parent ∑
(a) can control child and
(b) knows/should know the necessity and opportunity for exercising such control
Parent vicarious liability for children’s conduct
Parent not generally vicariously liable unless child acting as agent or assumed liability
Dram shop liability
Seller of alcohol directly liable if 3rd party is subsequently injured due to buyer’s intoxication
Federal government immunity for torts
Immune under FTCA for enumerated torts, discretionary functions, traditional gov activities.
Government officials immunity for torts
Immunity when performing discretionary functions but not ministerial acts
Law enforcement officers immunity for torts
Immunity unless intentional torts
Public duty rule
state/local government not liable to any one citizen for the municipality’s failure to fulfill a duty that owed to public at large, unless special relationship creates a duty
Damages: Joint & several liability
Each D found liable for single indivisible harm is liable for the entire harm.
Damages: Pure several liability
Each D liable only for his proportionate share.
Damages: Joint tortfeasor’s right to contribution
and exception
Tortfeasor who paid more than their fair share can recover excess from other joint tortfeasor.
© not available for intentional tortfeasors
Defense: contributory negligence definition
Contributory negligence occurs when P fails to exercise reasonable care for her own safety and thereby contributes to her own injury.
P’s negligence must have some way contributed to the cause of the accident
Defense: contributory negligence for negligence claims
total bar in contributory JX © last chance doctrine.
reduces recovery in comparative JX.
Defense: last chance doctrine when P is helpless peril
If P is contributorily negligent and in helpless peril, D liable if knew/should have known of P’s peril and could have avoided harming P.
Defense: last chance doctrine when P is inattentive/oblivious
If P is contributorily negligent and is inattentive/oblivious (in peril but he could escape if he were paying attention), D liable only if actual knowledge of P’s inattention
Defense: contributory negligence for strict liability claims
not a defense in contributory JX.
reduces recovery in comparative JX.
Defense: contributory negligence for intentional torts claims
not a defense in both contributory and comparative JX.
Defense: assumption of risk for negligence claims
total bar in contributory JX.
reduces recovery in comparative JX.
Defense: assumption of risk for SL claims
total bar in both contributory and comparative JX.
Assumption of risk definition
arises when P unreasonably and voluntarily proceeds in the face of known, specific risk.
Defense: exculpatory clause for negligence claims
Who can contract to disclaim liability for negligence?
Generally everyone, unless common carriers, innkeepers, employers
Defense: exculpatory clause for negligence claims
Exculpatory clauses in contracts are unenforceable if
total bar to recovery in both contributory and comparative JX.
If clause disclaims liability for (1) reckless/wanton misconduct or gross negligence;
(2) gross disparity of bargaining power;
(3) exculpated party offers services of great importance/public necessity;
(4) subject to K defenses; or
(5) against public policy.
Damages: pure comparative JX
P’s recovery is reduced by P’s percentage fault.
Damages: modified comparative JX
If P is less at fault than Ds combined, P’s recovery reduced by percentage of fault.
If P is more at fault than Ds combined, P recovers nothing.
Damages: modified comparative JX if equally at fault.
If P and D are equally at fault, P recovers 50% (minority jurisdiction says P gets nothing)
