Torts - Black Letter Law Flashcards
1
Q
Intent
A
Intentional acts are done for the purpose of causing or with knowledge with a reasonable certainty that it will cause the result producing the injury.
2
Q
Transferred Intent
A
A defendant who intentionally acts to cause any tort injury to anyone is liable for every injury suffered, even if the victim or injury differs from that intended.
3
Q
Assault
A
Assault is an intentional act causing a reasonable apprehension of harmful or offensive contact.
4
Q
Battery
A
Battery is the intentional infliction of harmful or offensive bodily contact.
5
Q
False Imprisonment
A
False imprisonment is the intentional confinement or restraint of a person to a bounded area by threats, by assertion of legal authority, or by actual physical restraints.
6
Q
Defense of Shopkeeper’s privilege
A
A shopkeeper may detain a suspect in a reasonable manner for a reasonable time to investigate the ownership of property when the shopkeeper has a reasonable belief that there has been a theft.
7
Q
Trespass to property
A
Trespass to land is intentional act causing invasion or entry onto p’s land, without permission
8
Q
Trespass to Chattel
A
Trespass to chattel is an intentional, unauthorized interference with the chattel of another causing damage.
9
Q
Conversion
A
Conversion is a substantial interference with the personal property of another causing deprivation of possession. The remedy and measure of damages for conversion is a forced sale.
10
Q
Intentional Infliction of Emotional Distress
A
IIED is the intentional or reckless infliction of severe emotional or mental distress by extreme and outrageous conduct.
11
Q
Defense - Consent
A
Consent is a defense to intentional torts where it is informed, voluntary and given with legal capacity.
12
Q
Self-Defense
A
A person may use reasonable force to prevent threatened harmful or offensive bodily conduct, including deadly force, if threatened with death or serious bodily harm.
13
Q
Defense of Others
A
A person may use reasonable force to protect the safety of others.
14
Q
Defense of Property
A
A person may use reasonable force to protect his own property or the property of another, but deadly force cannot be used.
15
Q
Recapture of Chattel
A
A person may enter a wrongdoer’s land to recover chattel and may use reasonable force, but deadly force is not permitted. A person may enter the land of a third party to recover chattel at a reasonable time and peaceful manner.
16
Q
Privilege of Arrest
A
Proper execution of a valid warrant is a defense against intentional torts. Reasonable force may be used for such arrest.
17
Q
Defense - Necessity
A
A person has a privilege to harm the property of another where necessary to prevent great harm to third persons or to defendant himself. Private necessity requires that compensation be paid for actual damage to property. Public necessity does not.
18
Q
Defamation
A
Defamation is a false statement of material fact of or about the plaintiff published to another party causing damage to plaintiff’s reputation.
19
Q
Defamatory Statement
A
Oral defamation is slander. Slander per se includes: morally reprehensible criminal behavior, loathsome disease, inability to conduct business or professional activities, sexual misconduct.
Libel is written or printed defamation.
Of or concerning the Plaintiff
20
Q
Publication
A
Publication occurs when the defamatory statement is seen or heard by someone other than the plaintiff.
21
Q
Damages
A
Damages for defamation include injury to reputation and are presumed if the defamation involves libel or slander per se; otherwise special damages are required.
22
Q
Defamation=> Private Figure in a Private Matter
A
A private figure in a private matter must show at least negligence on the part of the defendant.
23
Q
Defamation => Public Official or Public Figure
A
Under New York Times v. Sullivan, a plaintiff who is a public official or public figure must prove actual malice and falsity. A public figure is one who injects himself into the public arena.
24
Q
Defamation=> Private figure in a matter of public concern
A
Under Gertz, a private figure in a matter of public concern must show at least negligence, but must show actual malice if seeking punitive damages.
25
Defamation => Actual Malice
Actual malice means that the statements were made with knowledge or reckless disregard of their truth or falsity.
26
Defense to Defamation => Truth
The truth of a statement is a defense to a claim of defamation.
27
Defense to Defamation => Consent
Consent is a defense to intentional torts where it is informed, voluntary and given with legal capacity.
28
Defense to Defamation => Absolute Privilege
There is an absolute privilege to make statements in legislative, judicial or government proceedings, and between husband and wife.
29
Defense to Defamation => Qualified Privilege
There is a qualified privilege for statements made without malice relevant to public proceedings, or to the public interest, or to the interest of the recipient or to the interest of the speaker.
30
Invasion of Privacy => Public Disclosure of Private Facts
Invasion of privacy based on public disclosure of private facts is the unreasonable disclosure of private facts about a person that a reasonable person would highly offensive.
31
Invasion of Privacy => Intrusion upon seclusion
Invasion of privacy based on intrusion upon seclusion is an unreasonable intrusion upon a person’s peace and solitude by improper means that would be highly offensive to a reasonable person.
32
Invasion of Privacy => False Light
Publicity or the publication of facts about a person placing the person in a false light that would be highly offensive to a reasonable person.
33
Invasion of Privacy => Appropriation of Name and Likeness
The unauthorized use of the name or likeness of another, without consent, in a manner that implied endorsement of a product or cause.
34
Negligence
Negligence is the failure to exercise the degree of care that a reasonably prudent person would use in the same situation. To prevail, a plaintiff must show duty, breach of duty, causation (actual and proximate cause) and damages suffered by plaintiff, and that there are no defenses.
35
DUTY
A defendant owes a duty of reasonable of care to foreseeable plaintiffs to act as a reasonably prudent person under the circumstances. [Under the Cardozo majority view, plaintiff is owed a duty if she is in the zone of danger. Under the Andrews minority view, plaintiff is owed a duty if she is a foreseeable plaintiff.
36
Duty => disabled person
The duty of a person with a disability is what a reasonable person of a like disability would do.
37
Duty=> person in an emergency
The duty of a person in an emergency is what a reasonable person under similar emergency circumstances would do.
38
Duty=> duty of a child
The duty of a child is to act as a child of like age and experience, but a child engaged in a dangerous adult activity normally pursued by adults is held to the duty of an adult. [As applicable: ] Children under four are not capable of negligence.
39
Duty=> Evidence of custom
Evidence of custom in the industry is admissible to show the duty of reasonable care by is not conclusive.
40
Duty=> Special Relationship
Special relationships may create a duty [parent/child, teacher/student, carrier/passenger, hotel/guest].
41
Duty => Common Carriers
Common carriers and innkeepers are liable for even slight negligence to passengers or guests.
42
Duty => Professional
A professional is held to a higher standard of care to act as a reasonably prudent professional in good standing in the profession, traditionally in the community in which they practice, and modernly, to a national standard.
43
Duty of Landowners/Occupiers => Undiscovered Trespasser
If the plaintiff is an undiscovered trespasser there is NO duty, therefore, there is no standard of care.
44
Duty of Landowners/Occupiers => Known or Anticipated Trespasser
An owner/occupier of land is liable for an Artificial Condition involving a risk of Serious Injury the owner/occupier knows of. The duty of an owner/occupier is to MAKE SAFE or WARN of any known artificial dangerous conditions that are not obvious.
45
Duty of Landowners/Occupiers => Attractive Nuisance Doctrine
A landowner has a special duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property.
46
Duty of Landowners/Occupiers => Licensees
A licensee is someone on the property with the owner’s permission, express or implied, for some purpose of his own (not a business purpose).
An owner/occupier of land is liable for All Dangerous Conditions (artificial or natural) that are not obvious if the owner/occupier knows of them. The duty of owner/occupier is to MAKE SAFE or WARN of the dangerous condition.
47
Duty of Landowners/Occupiers => Invitees
An invitee is someone on the land with permission of the owner/occupier for either a business purpose or when the land is open to the public.
An owner/occupier of land is liable for All Dangerous Conditions the owner/occupier knew or should have known of by reasonable inspection of the premises. The duty is to Make Safe or WARN of the dangerous conditions.
In most states there is no liability for very obvious dangerous conditions.
Person may lose status as invitee if exceeds scope of invitation and goes into portion of land where invitation is not extended, resulting in either licensee or trespasser
48
Negligence Per Se
Where a statute creates a duty of care, a defendant who, without excuse, violates the statute is considered negligent per se if the statute clearly defines the standard of care, the plaintiff is among those persons the statute was designed to protect and the injury caused is one that the statute was designed to prevent.
[As applicable] A duty of care based on a statute may be excused based on incapacity, emergency, inability to comply, or where compliance would involve greater risk of injury.
If an applicable statute has been violated there is a conclusive presumption (majority view) of negligent conduct (breach of duty) on the defendant’s part (must still show causation and damages).
49
Failure to Act
There is no affirmative duty to act.
Exceptions:
1. Relationship exception (family, employer-employee, common carriers-passengers, innkeepers-guest, owner/occupiers-business invìtees).
2. Where a duty may be imposed to control the conduct of third persons. Here, there must be a) the right and ability to control, and b) when defendant knows or should have known of facts that should have gotten defendant to do something.
3. Good Samaritan” Statutes:
a) Some states have enacted statutes that exempt health care professionals who voluntarily help another in an emergency from liability for ordinary negligence.
b) Liability will arise for gross negligence.
4. Creation of peril: One who negligently places another in a position of peril is under a duty to use reasonable care to assist.
50
Breach
A breach of duty is a failure to act with due care, that is, the failure to act as a reasonably prudent person would act under the circumstances.
51
Breach based on Risk/Utility Analysis
Breach may be established based on the Learned Hand risk utility analysis (B
52
Res Ipsa Loquitur
The doctrine of res ipsa loquitur may be used to prove breach of a duty of care if it can be shown that there is no direct evidence of negligence, the breach is not the type that normally would have occurred without negligence, the instrumentality was under defendant’s exclusive control and plaintiff was not negligent. Res ipsa loquitur allows the case to go to the jury, which can find for either side.
53
Actual Cause
Defendant is the actual cause of plaintiff’s injury where “But For” defendant’s negligent conduct would this have occurred?
54
Substantial Factor Test
The “substantial factor” test applies when there are two negligent defendants where the negligence of each (both) defendants caused the injury.
55
Alternative Cause Test [Summers v Tice]
The “Alternative Causes” test applies when there are two negligent defendants but only one of the two was responsible, the other is not, but it is unknown which defendant caused the injury. Here, the burden of proof is shifted to the defendants to determine which was liable. If defendants cannot so determine, they both are liable for the injury.
56
Proximate Cause
A defendant’s acts are the Proximate Cause of plaintiff’s injury if the type of injury is foreseeable, with no intervening, superseding forces to break the chain of causation.
57
Proximate Cause => Direct Cause
Where defendant’s act is the direct cause of plaintiff’s injury, and the chain of events between the negligent act and the injury is uninterrupted, defendant’s act proximately caused plaintiff’s injury.
58
Proximate Cause => Indirect Intervening Cause
Where there is an intervening act on the part of a third party, the defendant remains liable unless both the intervening act and the resulting harm are unforeseeable. In that case, the intervening act is a superseding cause of the harm and the defendant is relieved of liability.
[As applicable] negligence of third parties is foreseeable; negligent medical treatment is foreseeable; subsequent diseases are foreseeable; efforts to avoid or escape danger are foreseeable; rescue is foreseeable; criminal acts may [or may not] be foreseeable; Acts of God may [or may not] be foreseeable; intentional torts may [or may not] be foreseeable.]
59
Damages => Negligence
Plaintiff may recover general damages (pain and suffering or emotional distress, non-economic) and special damages (medical expenses and economic loss).
As noted above, defendant always takes the person of the plaintiff as he finds it.
Defendant always takes the property of the plaintiff as he finds it.
[Punitive damages are not recoverable for negligence. They are only recoverable for INTENTIONAL torts and reckless or wanton conduct].
Plaintiff has a duty to mitigate damages and cannot recover for harm which plaintiff reasonably could have avoided.
60
Defenses for Negligence => Contributory Negligence
In a contributory negligence jurisdiction (minority view) where plaintiff’s negligent conduct contributes to plaintiff’s injury, plaintiff’s recovery is completely barred.
61
Defenses for Negligence => Last Clear Chance Doctrine
Here, even after contributory negligence by plaintiff, if the defendant had a “last clear chance” to avoid the accident and because defendant did not take the chance, plaintiff should be relieved of the consequences of his earlier contributory negligence.
62
Defenses for Negligence => Comparative Negligence
In a comparative negligence jurisdiction (majority view) where plaintiff’s negligence contributes to the harm, plaintiff’s recovery is reduced by the percentage of plaintiff’s harm.
With pure comparative fault the plaintiff’s recovery is reduced by the percentage of the plaintiff’s negligence. In a modified comparative negligence jurisdiction, the same is true unless plaintiff’s negligence exceeds 50%, then plaintiff is barred from recovery.
63
Defenses for Negligence => Assumption of Risk
Where plaintiff assumes the risk of harm knowingly and voluntarily, whether impliedly or expressly, plaintiff’s recovery is barred.
64
Strict Liability
A defendant actor who caused the harm is liable even if the actor exercised reasonable care and did not intend to interfere with the plaintiff in any way.
65
Strict Liability => Elements of Prima Facie Case
1. The nature of defendant’s activity imposes an absolute duty to make safe;
2. The dangerous aspect of the activity is the actual and proximate cause of the plaintiffs injury;
3. The plaintiff suffered damage to person or property.
66
Liability => Abnormally Dangerous Activity
One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
67
Liability => Trespassing Animals
The owner of an animal is strictly liable for property damages caused by the animal if they trespass on another's land.
68
Liability => Wild Animals
A person who keeps a wild animal is strictly liable for all damage caused by the animal, as long as the damage results from a dangerous propensity ' typical of the animal's species.
69
Liability => Domestic Animals
The owner of a domestic animal is not strictly liable for damage caused by the animal unless the owner knows or has reason to know of the animal's dangerous propensities.
70
Products Liability => Negligence
One who negligently fails to use reasonable care to manufacture, design, label, pack or ship a product is liable for any harm to person or property caused by such negligence.
71
Products Liability => Strict Liability
A commercial supplier of a defective product is liable without fault for all harm caused by the product if the product is sold in a defective condition.
72
Strict Products Liability => Elements of a Prima Facie Case.
1. Absolute duty owed by commercial supplier.
2. Production or sale of defective product.
3. Actual and proximate cause.
4. Damages => personal injury and property damage
73
Strict Products Liability => Proper Defendant
Proper defendants include retailers, wholesalers, suppliers, manufacturers and distributors.
74
Strict Products Liability => Proper Plaintiff
Proper plaintiffs include anyone in the foreseeable zone of danger including bystanders and users who were not purchasers since privity is not required
75
Defective Product
A product is defective if it has a design defect, a manufacturing defect, or defective warning.
76
Manufacturing Defect
A product has a manufacturing defect if it was not made in the manner intended.
77
Warning Defect
A product has a warning defect if a warning given was not adequate, or a warning was appropriate, but not given.
78
Design Defect
A product has a design defect if it is not safe for its intended use, or could be made safe without adverse impact on its price and utility.
79
Reasonable Alternative Design
Feasible alternatives exist that could have made the product reasonably and materially safe without an adverse impact on its price and utility.
80
Consumer Expectation Test
Defective products fail to meet the consumer expectation test, that is, they do not conform to the expectation of a reasonable consumer regarding use of the product.
81
Defense => State of the Art
Evidence that a particular risk of the product was not known nor knowable by the application of scientific knowledge available at the time of manufacturing and or distribution of the product.
82
Breach of Express Warranty/ Misrepresentation
Defendant is liable for breach of express warranty where defendant sold goods with express representations about the goods, where plaintiff relied on the warranties, the warranties were breached and where the failure of the goods to perform as warranted, made it unreasonably dangerous, and where there is actual cause, proximate cause, and injury to plaintiff.
83
Breach of Implied Warranty for Merchantability
Defendant breaches the implied warranty of merchantability where defendant offers goods for sale that are not fit for the ordinary purpose for which such goods are used, when the goods are unreasonably dangerous for that use, and where there is actual and proximate cause, and injury to plaintiff.
84
Tortious Interference with Contract
Where defendant improperly induces another to breach a contract with plaintiff.
85
Fraud/ Misrepresentation
Where defendant made a misrepresentation (false statement of fact) intentionally, recklessly, or negligently, about a fact material to the transaction, plaintiff acted in justifiable reliance on that misrepresentation and suffered injury as a result.
86
Abuse of Process
Claim that a party started or continued a civil or criminal proceeding for an improper motive, out of ill will, and without an honest belief in the merits
87
Malicious Prosecution
Claim that a party maliciously started or continued a legal proceeding against plaintiff without an honest and reasonable belief probable cause existed, causing injury to the plaintiff.
88
Vicarious Liability
Where an employee commits a tort while acting the scope of his employment, the employer is liable based on respondeat superior.
89
Tortious Interference with Prospective Business Advantage.
Where due to defendant’s interference, plaintiff loses the benefit of prospective potential contracts.
90
Risk Utility Test
Products are defective where the danger posed by the product outweighs its utility given the commercial practicability of making it safer without destroying the product's utility.
91
Products Liability Damages
General and special damages for personal injury and property damage, but no recovery for purely economic loss. [Indemnification principles will apply.]
92
Negligence for Defective Products
Negligence is the failure to exercise the degree of care that a reasonably prudent person would use in the same situation. To prevail, a plaintiff must show duty, breach of duty, causation (actual and proximate cause) and damages suffered by plaintiff, and that there are no defenses.
93
Products Liability => Duty
A person [manufacturer, retailer, wholesaler] has a duty to act reasonably and not to place an unreasonably dangerous product into the stream of commerce causing personal injury to consumer or his property. A person [manufacturer, retailer, wholesaler] making express representations about a product assumes a duty to make sure they are accurate and do not create peril. The duty is owed to all plaintiffs injured by the product.
94
Products Liability => Breach
Defendant breaches the duty of care when it acts below the standard of care such that it creates a risk of harm to others. In products liability, a defendant can breach its duty by negligently designing a product, negligently manufacturing a product, negligently inspecting a product or negligently warning about a product’s risks.
95
Products Liability
Under product liability law, a plaintiff can sue a person who places an unreasonably dangerous product into the stream of commerce for liability on the following theories: negligence, strict liability, and express and implied warranty liability.
96
Strict Liability for Defective Product
Where a defective product causes personal injury, the retailer, manufacturer, and distributor are strictly liable for the harm caused without fault. To recover, the plaintiff must show that the plaintiff is a proper plaintiff, suing a proper defendant, that the product is defective, causation, and damages.
97
Breach of Implied warranty of fitness for a particular purpose.
A person breaches the implied warranty of fitness for a particular purpose where the person sells the product knowing plaintiff's specific intended use, plaintiff relies on defendant's skill or judgment in selecting the product, and there is actual and proximate cause and injury to plaintiff.
98
Defense to Products Liability => Misuse
Plaintiff’s misuse of a product can defeat plaintiff’s prima facie case if it shows the product was not defective and the misuse was not foreseeable.
99
Defense to Products Liability => Open and Obvious Danger
If the danger is obvious, there is no need to warn. If the danger is obvious, Plaintiff can lose the design defect and warning defect claims.
100
Defense to Products Liability => State of the Art
A defendant may use the state of the art defense to a product liability claim when the defendant could not have known about a particular hazard or danger at the time the product was sold, as it met health and safety standards at the time.
101
Hedonic Damages
Damages for the loss of the ability to enjoy life.
102
Collateral Source Rule
Plaintiff is allowed to recover out of pocket expenses, even if plaintiff was reimbursed for those losses by a third party.
103
Mitigation
Plaintiff cannot recover for any harm which, by the exercise of reasonable care, plaintiff could have avoided.
104
Contribution
Partial reimbursement available to a defendant from another defendant where two or more defendants are jointly and severally liable and one defendant pays more than its comparative share of responsibility.
105
Comparative Contribution
Contribution is imposed in proportion to the relative fault of the various tortfeasors.
106
Indemnification
Complete reimbursement of a loss by one who is only vicariously liable to another who is directly liable for the loss.
107
Joint and Several Liabilty
Each defendant is liable for the entire indivisible harm whether the defendants are concurrent tortfeasors or joint tortfeasors.
108
Release
Giving up a right or claim to the person against whom it could have been enforced.
109
Immunity
An absolution from tort liability based on a defendant’s status.
110
Governmental Immunity
Protects governmental agencies from being held liable for tortious conduct that caused injuries.
