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Torts Flashcards

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1
Q

Torts: Intentional Torts

What are the elements of battery?

A
  • D must commit harmful OR offensive touching
  • Contact has to be with P’s person

NOTE: Offensive = unpermitted. “With P’s person” includes anything P is carrying/holding/connected to. Ordinary objects ok.

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2
Q

Torts: Intentional Torts

What are the elements of assault?

A
  • D must place the P in reasonable apprehension
  • Of an immediate battery

NOTE: Apprehension = knowledge (fear inconsequential). Empty but reasonable threats = assault. Mere words lack immediacy and need conduct to be assault, but words may negate the immediacy the conduct.

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3
Q

Torts: Intentional Torts

What are the elements of false imprisonment?

A
  • D must commit an act of restraint
  • That confines P in a bounded area

NOTE: Threats are sufficient. Omissions can be acts of restrain if pre-existing duty. Restraint for purposes of FI requires awareness. Bounded areas can be undefined and means of escape must be reasonable, and reasonably discoverable.

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4
Q

Torts: Intentional Torts

What are the elements of intentional infliction of emotional distress?

A
  • D engaged in outrageous conduct
  • P suffered severe distress

Definition of “outrageous”: Conduct that is outrageous exceeds all bounds of decency tolerated in a civilized society.

NOTE: Mere insults are not outrageous. No mandatory evidentiary showing for level of distress.

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5
Q

Torts: Intentional Torts

What are some common forms of “outrageous” conduct that may be tested for purposes of IIED?

A
  1. Conduct that is continuous/repetitive
  2. D is a public transportation company or hotel- employees have duty of courtesy
  3. D is a member of fragile class of persons: Little kids, elderly persons, pregnant women
  4. D is aware that P has a particular emotional frailty/sensitivity and exploits it (1L Torts plaintiff)
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6
Q

Torts: Intentional Torts

What are the elements of trespass to land?

A
  • D must commit an act of physical invasion
  • Of another’s land

NOTE: D can trespass by entering or by throwing something tangible onto another’s land (for intangibles, see NUISANCE). Land includes air above and soil below. No intent to trespass needed, only intent in physical movement. Non-intentional act (heart attack, sleepwalk, falling) not trespass.

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7
Q

Torts: Intentional Torts

What is trespass to chattels, and how does it differ from conversion?

A

Trespass to chattels: An intentional interference with personal property.

For conversion, add: That is so serious it requires repayment of the chattel’s full value

NOTE: Personal property = anything you own except land/buildings. Interference can be damage or an improper possession. Modest/slight interference = TTC; serious harm/destruction = conversion. Damages for TTC = cost of repair; damages for conversion = full market value (operates as a forced sale).

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8
Q

Torts: Intentional Torts

What are the 3 affirmative defense to intentional torts?

A

Consent, protective privileges, necessity.

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9
Q

Torts: Intentional Torts

How can an individual consent to an intentional tort?

A
  1. Express Consent: Explicit declaration granting D permission to behave in challenged fashion

NOTE: Kids can consent to age-appropriate invasions of their interests. Express consent invalid if obtained by fraud/duress.

  1. Implied Consent: Consent obtained through custom of activity (contact that is customary in certain sports, etc.), or through the reasonable interpretation of the P’s OBJECTIVE conduct.
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10
Q

Torts: Intentional Torts

What are the 3 protective privileges that operate as affirmative defenses to intentional torts?

A

Self-defense, Defense of others, defense of property

FOR ALL: D must be responding to an imminent/in-progress threat against self, others, or property, and D must have a reasonable belief that the threat is genuine. Limited to amount of force necessary to respond to the threat (no deadly force for property defense). MD DISTINCTION: Retreat prior to deadly force, unless in own home.

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11
Q

Torts: Intentional Torts

What are the 2 doctrines of necessity as an affirmative defense to an intentional tort?

A
  1. Public Necessity: D commits a property tort in an ER to protect the community as a whole/significant group of people (ABSOLUTE DEFENSE to the property tort)
  2. Private Necessity: D commits a property tort in an ER to protect an interest of his own.

NOTE: Private necessity is a limited defense- D still must pay for any harm actually done, but s/he will never be liable for nominal/punitive damages. As long as ER continues, P cannot throw D off property.

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12
Q

Torts: Harm to Economic/Dignitary Interests

What are the elements of defamation?

A
  • D must make a defamatory statement that specifically identifies the P
  • D must publish that statement
  • There must be damage

NOTE: Only alive P’s can claim defamation. D must reveal defamatory statement to one person other than the P; the more far-reaching the reputational damage, the more damages the P may be eligible for.

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13
Q

Torts: Harm to Economic/Dignitary Interests

When are damages presumed in defamation cases?

A
  1. Libel Cases: When the defamatory statement is written down or captured in some form.
  2. Slander Per Se Cases: When the defamatory statements concerns (i) a statement about the P’s business or profession; (ii) a statement that the P has committed a morally turpitudinous crime; (iii) a statement imputing on chastity to a woman; and (iv) a statement that the person suffers from a loathsome disease (leprosy or and STI)
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14
Q

Torts: Harm to Economic/Dignitary Interests

When is a defamatory statement not slander per se?

A

When the statement causes an economic or social harm only.

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15
Q

Torts: Harm to Economic/Dignitary Interests

What are the 3 defenses to defamation?

A

Consent, truth, and privilege

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16
Q

Torts: Harm to Economic/Dignitary Interests

What are the 2 types of privilege that may serve as a defense to defamation?

A
  1. Absolute Privilege: Spouses, and officers of the 3 branches of gov’t (in conduct of their official functions).
  2. Qualified Privileges: Privilege based on the circumstances of the speech, rather than the ID of the speaker (EX: Recommendations)

NOTE: To be allowed a qualified privilege, the speaker must be speaking in good faith and must confine the subject of the speech to matters that are relevant to it.

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17
Q

Torts: Harm to Economic/Dignitary Interests

When the defamation relates to a matter of “public concern,” what are the additional elements the P must prove?

A
  1. Falsity (eliminates truth as a defense for the D)
  2. Fault (MALICE if P is a public figure, NEGLIGENCE is a private figure).

MD DISTINCTION: In MD, EVERY defamation P must prove these extra elements, even if the defamation does relate to a matter of public concern! No affirmative defense of truth for defamation in MD.

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18
Q

Torts: Negligence - Standard of Care

Negligent Infliction of Emotional Distress

“Near-Miss” case

A

Careless D who does not cause any direct harm to P, but almost does

P must demonstrate that D’s negligent conduct, placed him in a zone of PHYSICAL DANGER, and as a result, he suffered physical pains (heart attack, miscarriage, etc.) from the distress

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19
Q

Torts: Negligence - Standard of Care

Negligent Infliction of Emotional Distress

The “Bystander” Case

A

Negligend D badly injures or kills X, and P experiences grief over this

  1. P and X are very close (parent, child, spouse)
  2. P is physically present and must see the injury as it happens (within the zone of danger)
    - –although large variation from state to state
20
Q

Torts: Negligence - Standard of Care

Negligent Infliction of Emotional Distress

The “Special Relationshp” Case

A

P and D are in a pre-existing business relationship and the careless performance of the D causes emotional distress

21
Q

Torts: Negligence - Breach

Test-Taking Tips:

A
  1. Make sure to specificy whether the breach is an affirmative act or an omission
  2. Make sure to ID the reason this conduct is wrong . . . “Drinking 8 martinis before driving home was a breach because alcohol impairs the activity to drive carefully”
22
Q

Torts: Negligence - Breach

Res Ipsa Loquitur

A

Used by P’s who lack information on exactly what the D did wrong

Elements:

  1. The accident is one normally associated with negligence
  2. The accident is a type due to negligence of someone in D’s position

Res Ipsa only allows you to get past a directed verdict since you can’t prove the breach

23
Q

Torts: Negligence - Causation

Factual Causation - 3 standards

A
  1. But-for Causation: but for the breach, the P would not have been injured
  2. Merged Causes: Multiple negligent D’s, each of whom committed a breach putting some destructive force into action. These forces merge to cause harm to P
    - –Substantial Factor Test - When both breaches could have caused the damage all by itself, the D’s will be held jointly liable
  3. Alternative Causes - Both parties have been negligent, but there is no way to determine which party actually caused the injury
    - —Shifts the burden to D’s to show that their breach DID NOT cause the harm
24
Q

Torts: Negligence - Causation

Proximate Cause and 4 situations where need not prove proximate cause

A
  1. Was the plaintiff foreseeable? (Is it fair to hold D liable for P’s actions)
    Rough guidlines
    —Look at time, distance, and weirdness
  2. Intervening medical malpractice
  3. Intervening negligent rescue
  4. Intervening protection or reaction forces
  5. Subsequent disease or accident
25
Q

Torts: Negligence - Damages

“Eggshell Skull Doctrine”

A

D is liable for all injuries suffered by P even if they are surprisingly great

MD Distinction - cap for pain and suffering

APPLICABLE FOR EVERY TORT

26
Q

Torts: Negligence - Affirmative Defenses

3 defenses (2 are MD specific)

A
  1. Contributory Negligence - Evidence that P did not exercise proper care for his own safety - absolute bar to recovery
    Exception: Last clear chance doctrine - After P’s negligent act, D had a further opportunity to fix it and blew it
  2. Implied Assumption of Risk - P KNOWS he is interacting with a negligent defendant and VOLUNTARILY chooses to encounter that risk
  3. Comparative Negligence - Faulty P is assigned a percentage of blame by the jury; recovery is reduced based on the percentage of at fault
27
Q

Torts: Strict Liability

Animals

A
  1. Not strictly liable for house pets or livestock unless animal is particularly viscious for an animal of its kind
  2. If you keep a wild animal you are held strictly liable - regardless of the safety precautions you take
28
Q

Torts: Strict Liability

Abnormally Dangerous Activity

A

Strictly liable if engaging in activity that:

  1. Creates a foreseeable risk of serious harm when reasonable care is exercised
  2. Activity is not a matter of common usage in the community where defendant performs it (blasting, super dangerous chemical or biological materials, and anything involving nuclear energy)
29
Q

Torts: Strict Liability

Defective Product Liability

A

4 Elements for strict liability

  1. Defendant must be a merchant
  2. Product must be defective
    (a) Manufacturing defect
    (b) Design defect
    (c) Failure to warn
  3. Product has not been altered since it left the D’s hands
  4. P must be making a foreseeable use of the product at the time of the injury - MISUSE IS NOT THE TEST
30
Q

Torts: Strict Liability

Affirmative Defenses

A

Variation on comparative negligence

Any P’s stupidity or carelessness will result in an assignment of percentage numbers and a reduction in recovery

31
Q

Torts: Nuisance

2 kinds

A

D unreasonably interferes with P’s right to use and enjoy his property

Look for the answer that says “P wins if his ability to use and enjoy his land has been interfered with to an unreasonable degree” OR look for the answer choice balancing the interests

32
Q

Torts: Miscellaneous Topics

Vicarious Liability (4 situations)

A

Always about 4 kinds of relationships

  1. Employer and an employee
    - —Frolic or detour
    - —Normally outside the scope, unless the boss has granted the right of the employee to use force and employee uses excessive force
  2. Hiring party and independent contractor
  3. Car owner and driver
    - —No vicarious liability unless the driver is running an errand for the owner
  4. Parent and child
    - –Parent is NEVER held vicariously liable for child’s torts
33
Q

Torts: Miscellaneous Topics

Co-Defendants

A

One defendant pays the judgment and wants to be reimbursed by the other defendants - Paying defendant recovers based upon

  1. MBE - Assign each defendant a percentage based on their respective degrees of blame
  2. MD - Even, fractional shares

Can get full reimbursement if INDEMNIFICATION:

  1. A vicariously liable defendant can be indemnified by the other defendant
  2. In strict products liablity cases, a non-manufacturer, can get indemnification from the manufacturer
34
Q

Torts: Miscellaneous Topics

Loss of Consortium Claims

A

Where victim of tort is married, the uninjured spouse gets a derivative claim in his or her own name against all the same defendants
—Defendants can assert any defense against uninjured spouse that they could have asserted against the victim

3 situtations:

  1. Loss of services – with my spouse injured there is nobody to cook the meals, do the laundry, mow the lawn
  2. Loss of society (companionship) – with my spouse injured I have nobody to talk to
  3. Loss of sex – with my spouse injured I’m not getting sex
35
Q

Torts: Privacy

Appropriation

A

D uses P’s name or image for a commercial advantage

36
Q

Torts: Privacy

Intrusion

A

An invasion of P’s physical seclusion in a way that is highly offensive to an average person

37
Q

Torts: Privacy

False Light

A

Widespread dissemination of a major falsehood about the P that would be highly offensive to an average person.

38
Q

Torts: Privacy

Disclosure

A

The widespread dissemination of confidential info about the P that would be highly offensive to an average person.

39
Q

Torts: Privacy

Defenses to Privacy Actions

A
  1. Consent

2. Defamation privileges (absolute and qualified) are available to defend false light and disclosure claims

40
Q

Torts: Negligence

4 Elements

A

Remember: Dead Babies Can’t Dance

  1. Duty
  2. Breach
  3. Causation
  4. Damages
41
Q

Torts: Negligence

Duty

A

Ask 2 Questions:
1. To whom do you owe a duty of care?
- Foreseeable victims only- only those w/in Zone of Danger are foreseeable
BUT, rescuers are always foreseeable, don’t need to be in zone of danger

  1. How much care must be exercised?
    - As much as would be exercised by a reasonably prudent person acting under similar circumstances
    - EXCEPTIONS:
    a. If D has superior skill or knowledge, the standard becomes an RPP w/ same skill or knowledge
    b. Where relevant the RPP is presumed to have same physical characteristics as the P.
42
Q

Torts: Negligence

Duty: exceptions to RPP standard- CHILDREN

A
  • under age of 5 owe no DOC,
  • 5-18yo owe DOC of hypothetical child of similar age, experience and intelligence acting under similar circs.
    UNLESS, child is engaged in adult activity
43
Q

Torts: Negligence

Duty: exceptions to RPP standard- Professionals

A

Malpractice Claims- professional owes a client or patient the care of an average member of same profession practicing in a similar community

44
Q

Torts: Negligence

Duty: exceptions to RPP standard- Premises Liability Cases

A

P encounters a dangerous or hazardous condition while on someone else’s property. 4 SOC based on entrant:

  1. Undiscovered Trespasser
    - No DOC
  2. Discovered/ Anticipated Trespasser
    - Duty to protect if condition is ARTIFICIAL, HIGHLY DANGEROUS, CONCEALED, and property possessor KNEW about it in ADVANCE
  3. Licensee
    - Enters land w/ permission, but no econ benefit conferred on possessor
    - Duty when condition is CONCEALED and possessor KNEW about it
  4. Invitees
    - Enters w/ permission and confers econ benefit or land generally open to public
    - Condition must be CONCEALED and possessor either KNOWS or COULD HAVE DISCOVERED w/ reasonable inspection
45
Q

Torts: Negligence

Duty: exceptions to RPP standard- Statutory SOC

A 
When a criminal statute governs the conduct that leads to an accident that is now the action of a negligence lawsuit and P wants to borrow the statute as the standard DOC.
- P can borrow if he shows he is a member of a class of persons the statute is trying to protect and that the accident is in the class of risks that the statute is trying to prevent

Exceptions: don’t use if statutory compliance would be more dangerous that statutory violation or if compliance would have been impossible under the circumstances

46
Q

Torts: Negligence

Duty: exceptions to RPP standard- Duty to Act Affirmatively

A

There is never a duty to act affirmatively.

  • Good Samaritan: liable if they rescue carelessly or negligently
  • Good Sam laws: enacted b/c the law inhibits voluntary rescue, but MD only protects ppl in certain occupations

Exceptions:

  1. Pre-existing relationship can trigger a duty- Innkeeper/Guest; Business/Business Invitee
  2. When D puts P in peril

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