Torts Flashcards
1
Q
Intentional Torts Elements - generally (3)
A
C - Causation
I - intent
A - act
2
Q
Transferred Intent
A
- Same Intentional Tort / Different Person
- Different Intentional Tort / Same Person
- Diff Tort / Diff Person
3
Q
Battery elements
A
1) Intentional to cause
2) Harmful or Offensive Contact w/ another
3) Results in Harmful of Offensive Contact
4
Q
Battery - does Plaintiff need to be conscious?
A
No - doesn’t need to be aware
5
Q
Battery - person is hyper sensitive to contact, still Victim?
A
Yes - if actor KNOWS about sensitivity
6
Q
Battery - what if just contact w/ person’s hat ?
A
Yes - anything connected to the victim / plaintiff
7
Q
Battery - The intent; to cause the contact or the resulting harm?
A
Intent of Harm does NOT Matter
Intent to make CONACT is enough!
8
Q
Battery - Eggshell Plaintiff -
A
Defendant responsible for ALL HARM resulting ..even if worse than expected
9
Q
Battery Defense =
A
Consent - implied or express
10
Q
Assault elements
A
1) Intent to Cause
2) Reasonable Apprehension
3) Imminent Harmful or Offensive Contact
4) Causes apprehension
11
Q
Assault - Must Plaintiff be aware of imminent contact ?
A
Yes - can’t be apprehensive of unknown
12
Q
Assault - what if Plaintiff far away and threatens to punch ?
A
No - b/c must be REASONABLE apprehension
13
Q
Assault - future harm
A
No Good - Not Imminent
14
Q
Assault - mere words?
A
No Good - mere words are NOT Enough (unless able to carry out the threat and takes action designed to put in fear .. maybe - dark alley ..”Your money or your life”
15
Q
Assault - Intent can be either
A
- Intent to cause apprehension
~or~ - Intent to contact
16
Q
Intentional Infliction of Emotional Distress
(IIED) elements
A
1) Intentionally (or Recklessly)
2) Extreme or Outrageous Conduct
3) Causes Severe Emotional Distress
17
Q
IIED Intent - either
A
- Intent to Cause Severe Emotional Distress
~or~ - Acts w/ Recklessness as to the Risk of Causing Severe Distress
18
Q
IIED - Public Figures - ED from Defamation
A
- False Statement
2. Actual Malice (Know it’s false or reckless disregard of the truth)
19
Q
IIED - Private Person - ED from Defamation
A
No Recovery if Matter of Public Concern
20
Q
IIED - 3rd Party - Immediate Family Member
A
- Present at time
- Perceives Conduct
- Results in ED
- may recover even if no bodily harm manifested
21
Q
IIED - 3rd Party - Bystander
A
- Present
- Perceives Conduct
- Results in ED but - MUST Manifest Physically
22
Q
IIED - person is hyper sensitive and unreasonable level of Emotional Distress - still Victim?
A
Only if Defendant is Aware of the Hypersensitivity
23
Q
False Imprisonment elements
A
1) Intent to Confine or Restrain w/in fixed boundaries
2) Directly or Indirectly Results in Confinement
3) Plaintiff Conscious or Harmed
24
Q
False Imprisonment - can it be by authority ?
A
Yes - legal authority, duress, or refuse to provide a safe means of escape
25
False Imprisonment - shopkeeper
Can restrain for reasonable time and manner for shoplifting
26
False Imprisonment - time of confinement
Does NOT Matter
27
False Imprisonment - intent can be either
1. Purpose to confine
~or~
2. Knowledge that confinement is CERTAIN
28
5 Defenses
- Consent
- Self Defense
- Defense of Others
- Defense of Property
- Privilege of Arrest
29
Defense - Consent
Manifested a willingness to submit to conduct
30
Defense - Consent - Mistake of believing there was consent
Then Defendant = ok Unless Def caused the mistake
31
Defense - Consent - Fraud used to obtain consent ?
No good if essential matter
32
Defense - Consent - capacity to consent
NO - intoxication, young, incompetency (metal)
33
Defense - Consent - Emergencies / Sports
Implied Consent = ok
34
Defense - Self Defense is ...
Reasonable Force
35
Defense - Self Defense - Duty to retreat
No duty to retreat usually
36
Defense - Self Defense - if you started it
No unless they responded to to non-deadly force w/ deadly force
37
Defense - Defense of Others -
Reasonable Force
38
Defense - Defense of Property
Reasonable Force - NOT Deadly force
39
Defense - Privilege of Arrest
1) Private Citizen = Felony Actually Committed + Reasonably Believes Person is the Actor //
Mistake as to Actor = OK
Mistake as to whether felony committed = No
2) Police - Mistake as to Felony Committed = OK
40
Trespass to Chattel elements
1. Intentional Interference (dispossess, Using, Damaging)
2. Right to Posses
3. Personal Property
41
Trespass to Chattel - intent
to interfering act ,
| — not intent to interfere
42
Trespass to Chattel or Conversion - Mistake Defense
Not of legality of the action
43
Trespass to Chattel - Damages = only
Actual Damages
44
Conversion elements
Intentional Depriving the Plaintiff of his property as to deprive him of it permanently
45
Conversion - Damages
Full Value
46
Trespass to Land
Intentionally causes a physical invasion of land
47
Trespass to Land - Intent
Intent to enter is enough / or cause the physical invasion
- intent to do ACT that caused invasion
- NOT intent of result
- - Mistake of Fact (it's your land) is NOT a Defense
48
Trespass to Land - who can be a Plaintiff
Anyone in Possession of the Land - NOT just the owner (ex: lessee)
49
Trespass to Land - Defense : Necessity
Available when to prevent an injury or severe harm
50
Trespass to Land - Defense of Necessity : Damages
```
Private = Actual Damages/ no force to expel person
Public = Not liable for Damages
```
51
Nuisance Private
Substantially and Unreasonably
Interferes w/ Another's
Use and Enjoyment of land
52
Nuisance Private - hypersensitive
No Cause of action
53
Nuisance Private - Not Sensitive
Can Still have cause of action if reasonable person annoyed
54
Nuisance Private Defenses
Came to the nuisance = no defense to action
Compliance w/ Regulation - partial defense
55
Nuisance Public
Unreasonable Interference
| w/ Right Common to the Public as a Whole
56
Nuisance Public - who can bring action
Public Official - can bring action
Private person - not unless harmed different than general public
57
Negligence elements
Duty
Breach
Causation
Damages
58
Negligence - Duty
Legal Duty:
- Reasonable Care (NOT utmost care)
- To the Plaintiff who could FORESEEABLY be in danger
59
Negligence - Duty - to unforeseeable Plaintiff?
```
No Duty to Unforeseeable Plaintiff
- only to class of persons who might be harmed
```
60
Negligence - Duty to Rescuers
Yes - danger invites rescue
| - can be a crime victim recue too
61
Negligence - Duty to Act
- Rescue or assumption of duty
- Placing another in danger (knock into pool)
- Authority over another (Prison warden)
- Relationship (Innkeeper, common carrier)
* All Must use Reasonable Care *
62
Negligence - Standard of Care for regular people
Reasonable
- Mental or emotional = Doesn't matter
- Physical = Modified for person of like traits
- Intoxication = Only if Involuntary
- Children = Modified for age
63
Negligence - Standard of Care for
1. Common Carriers / Inn Keepers
2. Auto Drivers
3. Bailor
4. Emergency Situations
1. Highest care - esp for common carriers / inn keepers sometimes not
2. Normal - reasonable
3. Normal - reasonable - must warn of dangerous
4. Normal - reasonable
64
Negligence - Standard of Care for Land Owners
1. Trespasser = lowest
2. Licensee = intermediate
3. Invitee = highest
65
Negligence - Land Owners to Trespasser
(On Land w/o Consent)
Duty to refrain from intentional or reckless conduct
- Undiscovered = no duty
- Discovered / Anticipated = Warn of Hidden Dangers
66
Negligence - Land Owners to Trespasser
| >> Attractive Nuisance
- Attractive Nuisance Kids = Reasonable care
> Artificial Condition
> Risk of harm
> Reason to Know Kids there
> Children can't appreciate danger b/c of age, etc
> risk to fix less than risk of harm
67
Negligence - Land Owners to Licensee
(Friends w/ permission)
Reasonable care + to make safe or warn of hidden dangers
- NO Duty to Inspect
68
Negligence - Land Owners to Invitee
(Comes for Economic / Business)
| Reasonable w/ Duty to Inspect
69
Negligence - Land Owners : Landlord / Tenant
Maintain Common Areas / Repair Hazards + Warn of Hidden Dangers
70
Negligence - Breach
1. Custom
2. Professional.
3. Doctors
1. Custom = admissible but not determinative
2. Pro = same as others in region
3. Dr = National Standard
> Explain risks not commonly known, not if patient refuses knowledge, not if unconscious, not if patient harmed by disclosure
71
Negligence - Breach : Negligence Per Se / Statute Violation
Is plaintiff in the class of persons that this statute designed to protect ? If Yes = Duty
72
Negligence - Breach Negligence Per Se : DEFENSE
Excuse = complying w/ statute would be MORE Dangerous
— walking wrong way on road
73
Negligence - Res Ipsa Loquitur
- Not ordinarily occur w/o negligence
- in exclusive control of defendant
- not due to action of Plaintiff
74
Negligence - Cause in Fact
But For ...
(Multiple possible - could both defendants have done harm? Then they must prove they didn't )
- All joint / severable liable
75
Negligence - Med Mal Loss of chance
Subtract from before and after
76
Negligence - Proximate Cause
Legal Cause
NO Duty or Proximate (Legal) Cause for
-- UNFORSEEABLE Plaintiff / Unforeseeable harm
-- HARM Not w/in scope of breach (kid drops gun on foot)
77
Negligence - Damages: Eggshell
Yes - Liable for full extent
78
Negligence - Damages: Regular Person
Make whole
- Physical + Emotional
- Plaintiff must mitigate
- Punitive = If Intentional cause harm
79
Negligent Infliction of Emotional Distress
(NIED) elements
> (Top Gun) >
1. W/In Zone of Danger
| 2. Threat of Impact Caused Emotional Distress (w/ physical manifestation)
80
Negligent Infliction of Emotional Distress
| (NIED) - Pure Economic Damages
NO Go !
81
Negligence - Vicarious Liability : Employees
Employer and Employee can both be held liable
- Must be in the scope of employment -
- Deviation must be minor not major
- Not Liable for Intentional Torts of Employee
- Not Liable for Independent Contractors
> can't delegate inherently dangerous activities
> if person reasonably believed that employee was agent - employer said something
82
Negligence - Vicarious Liability
1. Children
2. Cars
1. Parents not liable
| 2. Only if entrusted negligently
83
Negligence - Defense to Damages
1. Contributory
2. Comparative Pure
3. Comparative Modified
1. Precludes damages - old / rarely used
2. Pure = Reduced by amount (%) of Plaintiff's Fault
3. Modified
- Plaintiff more at fault = No recovery
- P equally at fault = No recovery
- P less at fault = reduced by amount of P's fault
(Multiple Def = combine defs fault to compare)
84
Negligence - Defense : Assumption of the Risk
Knowingly and Willingly Assume Risk
- Express = written (unless disavows reckless or gross disparity in bargaining power)
- Implied = Athletic events or proceeding in face of known unreasonable danger
85
To recover in a STRICT PRODUCTS LIABILITY action, Plaintiff must prove -->
1. The product is defective (i.e., manufacturing, design, or contains inadequate instructions or warnings);
2. The defect existed when the product left the defendant’s control; and
3. The defect caused the plaintiff’s injury when the product was used in an intended or reasonably foreseeable way.
(A plaintiff is not required to be in privity of contract with the defendant)
86
The owner or possessor of an Animal is STRICTLY LIABLE for injuries caused
1. If he knows or has reason to know that the animal has dangerous propensities abnormal for the animal's species, and
2. Harm results from those dangerous propensities.
(Otherwise, at common law, the owner of a domestic animal is generally liable ONLY Negligence)
87
Owner of a WILD ANIMAL - trespasser
Generally NOT Strictly Liable to a trespasser who is injured by the wild animal,
-- except for injuries caused by a vicious watchdog --
88
A defendant engaged in an abnormally dangerous activity may be held strictly liable -- WHEN ...
(without any proof of negligence) for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm.
---strict liability for an abnormally dangerous activity exists ONLY if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place.
89
The possessor of a WILD Animal is STRICTLY Liable..
for harm done (in spite of any precautions taken)
and the harm arises from a dangerous propensity that is characteristic of such wild animals or the owner has reason to know
-- As long as the PLAINTIFF did not knowingly do anything to bring about the injury --
90
Product NEGLIGENCE ... plaintiff must establish
1. That the defect exists
2. That had the defendant exercised reasonable care in the inspection or sale of the product, the defect would have been discovered, and the plaintiff would not have been harmed.
91
An action brought under a FAILURE TO WARN theory is essentially the same as a design defect claim
The defect in question is the manufacturer’s failure to provide an adequate warning related to the risks of using the product.
1) A defect exists if there were foreseeable risks
2) Not readily recognized by an ordinary user of the product
3) Which could have been reduced or avoided with reasonable instructions or warnings
92
STRICT Products Liability -- what negates it ??
The misuse, alteration, or MODIFICATION of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates liability.
- not exactly street legal -
93
Strict Liability - Design Defect
-- you have 2 of the same kind product, 1 safe and 1 not so safe but give warning to buyer ..still liable if he buys not safe one?
YES - Will be liable if alt designs avail to produce. If you did not or sold the bad design, then you'll be liable
-- Cannot warn away a known defect --
94
Strict Liability for a defective product / food - business entity liability
Must be in the business of selling or otherwise distributing product of the type that harmed P
95
Strict liability - A product is defective when
At the time of sale or distribution, it contains a manufacturing, design defect, or has inadequate warnings
96
If you know negligence probably exists - then ..
Res ipsa loquitur
— prove w/in defendant’s exclusive control
— harm would not have occurred if ordinary care was used
— plaintiff not responsible for his own injury
BUT MUST BE 1 Def EXCLUSIVE CONTROL
97
Strict Product Liability - Adequate Warnings
- Risk in product
- Not apparent to the ordinary user
- Providing Adequate Warning would reduce or eliminate the risk
98
Strict Product Liability - Deign Defect
| 2 Tests
1. Consumer Expectation Test
- the product failed to meet reasonable expectations of consumers that made it unreasonably dangerous
2. Alternative Design Test
- There is a reasonable alternative design available that was economically feasible and the Defendant failed to use it which made the product unsafe
