Torts LAST PUSH Flashcards
Transferred Intent Torts
(a) assault
(b) battery
(c) false imprisonment
(d) trespass to land
(e) trespass to chattels
Battery
harmful or offensive contact with the Plaintiff’s person
Assault
act by defendant creating a reasonable apprehension in the plaintiff of an immediate battery
False Imprisonment
an act or omission by the defendant that constrains or restrains the plaintiff to a bounded area
Methods of Confinement for False Imprisonment
(a) physical barriers
(b) physical force directed against the Plaintiff, immediate family, or personal property
(c) direct threats of force
(d) indirect or implied threats of force
(e) failure to release the Plaintiff when under a legal duty
(f) invalid use of legal authority
Intentional Infliction of Emotional Distress
an act by the defendant amounting to extreme and outrageous conduct that causes the Plaintiff to suffer severe emotional distress
Conduct Not Normally “Extreme and Outrageous” May Become So If:
(i) continuous in nature
(ii) committed by a certain type of defendant
(iii) directed towards a certain type of plaintiff
Trespass to Land
physical invasion of the Plaintiff’s real property
Trespass to Chattels
act by the defendant that interferes with the Plaintiff’s right of possession in a chattel
Conversion
act by the defendant that interferes with the Plaintiff’s right of possession in a chattel - serious enough in nature and consequences to warrant that the defendant pay the chattels full value
Defenses to Intentional Torts
(A) Consent
(B) Protective Privileges
(C) Necessity
Express (Actual) Consent EXCEPTIONS:
(1) mistake will undo express consent if the defendant knew or took advantage of the mistake
(2) consent induced by fraud will be invalidated if it goes to an essential matter, not a collateral one
(3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation
Shopkeepers Privilege
(1) reasonable belief as to the fact of theft
(2) detention conducted in a reasonable manner and only nondeadly force
(3) detention made for a reasonable period of time and only for the purpose of making an investigation
Public Necessity
a defendant can raise public necessity as a defense if they acted to avert an imminent public disaster
Private Necessity
action was to prevent serious harm to a limited number of people - actor must pay for any injury caused
Duty Owed to Undiscovered Trespasser
artificial conditions: no duty
natural conditions: no duty
Duty Owed to Discovered or Anticipated Trespasser
artificial conditions: duty of reasonable care to warn of or make safe known conditions if nonobvious and highly dangerous
natural conditions: no duty
Duty Owed to Licensee (social guest)
artificial condition: duty of reasonable care to warn of or make safe known conditions if nonobvious and dangerous
natural conditions: duty of reasonable care to warn of or make safe known conditions if nonobvious and dangerous
Duty Owed to Invitee
artificial condition: duty of reasonable care to make reasonable inspections to discover nonobvious dangerous conditions and to warn or make them safe
natural condition: duty of reasonable care to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe
Attractive Nuisance
(1) a dangerous condition on the land that the owner is or should be aware of
(2) owner knows or should know that children might trespass on the land
(3) condition is likely to cause injury
(4) expense of remedying the situation is slight compared with the magnitude of risk
Statutory Standard of Care
only if:
(1) plaintiff is within the protected class
(2) statute was designed to prevent that type of harm suffered by the Plaintiff
Negligent Infliction of Emotional Distress
when defendant creates a foreseeable risk of physical injury to the plaintiff - satisfying the following two elements:
(1) plaintiff must be within the “zone of danger”
(2) must suffer physical symptoms from the distress
Bystander Recovery for NIED
a bystander outside the zone of danger of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as:
(1) plaintiff and person injured are closely related and
(2) plaintiff was present at the scene of the injury and personally observed or perceived the event
Res Ipsa Loquitor
(1) accident causing the injury is a type that would not normally occur unless someone was negligent
(2) negligence is probably attributable to the defendant
Common Foreseeable Intervening Forces
normal responses or reactions to the situation created by the defendant’s negligent act are almost always foreseeable:
(1) medical malpractice
(2) negligence or rescuer
(3) protection or reaction forces to the defendant’s conduct, including efforts to protect person or property
(4) disease or accident substantially caused by the original injury
Assumption of Risk
Plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendants act - plaintiff must have:
(1) known of the risk and
(2) voluntarily proceeded in the face of the risk
Liability for Animals
an owner is not strictly liable for injuries caused by domesticated animals unless they have knowledge of that particular animal’s dangerous propensities that are not common to the species
Abnormally Dangerous Activities
courts generally impose two requirements for finding an activity to be abnormally dangerous:
(1) activity must create a foreseeable risk of serious harm even when reasonable care is exercised
(2) activity is not a matter of common usage
Product Liability Theories
(1) Intent
(2) Negligence
(3) Implied Warranties of Merchantability and Fitness for a Particular Purpose
(4) Representation theories
(5) Strict Liability
Product Liability Strict Liability
(a) the defendant is a merchant
(b) the product is defective
(c) product was not substantially altered since leaving defendant’s control
(d) plaintiff was making a foreseeable use of the product at the time of the injury
Product Liability - Manufacturing Defects
if a product emerges from the manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect
Plaintiff must show that the product failed to perform as safely as an ordinary consumer would expect
Product Liability - Design Defect
when all products of a line are the same but have dangerous propensities, they may be found to have a design defect
plaintiff must show that the defendant could have made the product safer without serious impact on the products utility or price
Products Liability - Information Defects
a product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent users
Implied Warranties
(1) merchantability
(2) fitness for a particular purpose
Warranty of Merchantability
whether the goods are of average acceptance quality and are generally fit for the ordinary purpose for which he goods are used
Warranty of Fitness for a Particular Purposes
arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the sellers skill and judgment in selecting the goods
Products Liability - Representation Theory
a defendant may be liable when a product does not live up to some affirmative representations
Two Representation Theories
(a) express warranty
(b) misrepresentation of fact
Express Warranty
any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty
Misrepresentation of Fact
a seller will be liable for misrepresentation of facts concerning a product where:
(1) the statement was of a material fact concerning quality or uses of goods
(2) the seller intended to induce reliance by the buyer in a particular transaction
Private Nuisance
substantial, unreasonable interference with another private individuals use or enjoyment of property the other individual actually possess or has a right of immediate possession
Public Nuisance
an act that unreasonably interferes with the health, safety, or property rights of the community
Employer-Employee Vicarious Liability
an employer will be vicariously liable for tortious acts committed by their employee if the act occurs within the scope of employment relationship
Employer-Employee Vicarious Liability - Intentional Torts EXCEPTIONS
(A) employee is furthering the business of the employer
(B) force is authorized in the employment
(C) friction is generated by the employment
Vicarious Liability Independent Contractor
employer of independent contractor is not vicariously liable unless the activity is inherently dangerous or a duty is nondelegable on public policy grounds
Indemnification
shifting the entire loss between or among tortfeasors - available:
(1) in vicarious liability situations
(2) strict products liability for the non-manufacturer
Defamation
(1) a defamatory statement that specifically identifies the plaintiff
(2) published to a a third party
(3) damage to plaintiff’s reputation
(4) falsity of the language
(5) fault on the part of the defendant
Libel
(damages generally presumed) embodied in permanent form
Slander
spoken - plaintiff must prove special damages unless it falls into slander per se categories
Slander Per Se
(i) adversely reflects on the plaintiff’s business or profession
(ii) state that the plaintiff committed a serious crime
(iii) impute that the plaintiff has engaged in serious sexual misconduct
(iv) state that the plaintiff has a loathsome disease
Invasion of Right to Privacy
(1) appropriation of the plaintiff’s picture or name
(2) intrusion on the plaintiff’s affairs or seclusion
(3) publication of facts placing the plaintiff in a false light
(4) public disclosure of private facts about the plaintiff
Invasion of Privacy - Appropriation
unauthorized use of the plaintiff’s picture or name for the the defendant’s commercial advantage
Invasion of Privacy - Intrusion Upon Seclusion
claim forbids such as eavesdropping, spying, interception - act of prying or intruding must be highly offensive to a reasonable person
Invasion of Privacy - Publication of Facts Placing Plaintiff in False Light
one attributes to the plaintiff views they do not hold or actions they did not take - highly offensive to a reasonable person
Invasion of Privacy - Public Disclosure of Private Facts
wrong involves public disclosure of private information about the plaintiff - highly offensive to a reasonable person
Misrepresentation
(A) misrepresentation of a material past or present fact
(B) scienter
(C) intent to induce the plaintiff to act or refrain from acting in reliance upon
(D) causation
(E) justifiable reliance
(F) damages
Duty to Disclose
(1) stands in a fiduciary relationship to the plaintiff
(2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction, (3) has spoken and their utterance deceives the plaintiff
Negligent Misrepresentation
(1) misrepresentation by the defendant in a business or professional capacity
(2) breach of duty toward a particular plaintiff
(3) causation
(4) justifiable reliance
(5) damages
Interference with Business Relations
(A) existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff
(B) defendant’s knoweldge of the relationship or expectancy
(C) intentional interference by the defendant in inducing a breach or termination of the relationship or epxectancy
(D) damages
