Torts - MC Flashcards
elements of conversion
intentional exertion of dominion or control over P’s chattel that
- so seriously interferes w P’s ownership rights that —> D is liable for fair market value of chattel at time of conversion
elements of conversion (when chattel initially used with permission)
- intentionally uses chattel in manner that exceeds scope of permission, AND
- seriously violates P’s right to control chattel
elements of IIED
- by extreme and outrageous conduct
- intentionally or recklessly causes P severe emotional distress
definition of extreme and outrageous, IIED
exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society
list of special relationships imposing duty to protect others
Please Help Eliminate Safety Concerns Causing Injuries
1. parent/child; 2. hospital/patient; 3. employer/ee; 4. shopkeeper/business invitees; 5. common carrier / passengers; 6. custodian / person in custody; 7. innkeeper/guests
basic negligence action elements
- duty
- breach
- causation
- damages
under negligence per se, P’s neg is presumed if…
- P violated statute
- statute was intended to prevent the type of harm suffered by P, AND
- P is within a class of persons the statute was intended to protect
what duty does a land possessor owe to a known or anticipated trespasser?
- warn them about hidden, artificial dangers that are known to land possessor but unlikely to be discovered by trespassers, and
- use reasonable care in active operations
elements of traditional approach to res ipsa loquitor
majority view
1. P’s harm would not normally occur unless someone was negligent
2. D had exclusive control or was responsible for all others who had control over thing that caused harm AND
3. P did nothing to cause harm
3rd restatement view of res ipsa
minority view
1. accident that caused P’s harm is type that ord happens due to neg of class actors
2. D is relevant member of that class
majority vs. minority rule in handling factual cause when multiple causes
majority, 2nd restatement: D’s conduct was subst factor causing P’s harm
min, 3rd: D’s conduct regarded as factual cause of P’s harm
when commercial seller in distribution chain is subject to strict products liability
if 1. commercial seller’s product contained defect when it left commercial seller’s control, and
2. that defect caused the P harm
two types of defamation
libel
slander
requirements for defamation claim based on slander
- D, at min, negligently made a false statement about the P
- that type of statement would tend to harm and did harm P’s rep, and
- D published statement to 3rd party who understood its defamatory nature
who is typically owed a duty?
all foreseeable plaintiffs
cardozo majority view: Ps within the zone of foreseeable harm
minority andrews: anyone who is harmed
when is there an affirmative duty to act?
- assumption of duty: someone starts to aid or rescue (must act w/reasonable ordinary care to not increase risk of harm)
- psychotherapist duty to warn - if credible threats of phys violence
general standard of care
to act as a reasonably prudent person under the circumstances
on the exam, how should you determine what standard of care applies?
general standard of care (reas prudent person under circs), UNLESS
special standard applies
or there is a statute
modern rule: standard of care for possessors of land
exercise reasonable care under circs, except trespassers
traditional approach to standard of care for land possessors - first step
categorize as trespasser, invitee, licensee
trespass - on land w/o consent or permission
invitee - invited as member of public or business visitor
licensee - enters w express or implied permission for spec purpose
(trad view, land possessors) standard of care / duty owed to trespassers
refrain from willful wanton reckless or intentional misconduct
(trad view, land possessors) duty to invitee
refrain from willful wanton reckless or intentional misconduct
(trad view, land possessors) duty to licensee
to warn of concealed dangers that are known or should be obvious and use reasoable care in conducting activities
P may bring defamation action if D’s defamatory language is…
- of or concerning the P
- published to 3rd party who understands its defamatory nature; and
- it damages the P’s rep
summary of physician duty of care
A prima facie case of neg requires proof of a duty, breach of that duty, causation, and damages.
In gen, a duty of care is owed to all foreseeable persons who may fs be injured by D’s failure to act as a reasonable person of ordinary prudence under the circs. A physician is held to a natl std and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.
market share liability doctrine
if P’s injuries are caused by fungible product (all the same from diff manufact) and imposs to ID which D placed harmful product into mkt, jury can apportion liab by market share
alternative causation theory
when multiple Ds and difficult to ascertain. applies if harm caused by:
1. one of small number of Ds
2. each of whose conduct was tortious
and 3. all of whom present before court
each then must prove his conduct not cause in fact
concert of action doctrine
if 2+ tortfeasors acting pursuant to common plan or design and acts of one or more tortiously caused P’s harm then all D’s held jointly and severally liable
three ways of obtaining liability when multiple Ds with uncertain cause
- market share liability
- alternative causation theory
- concert of action doctrine
intentional interference w/ a K elements
- valid K existed between P and 3rd p
- D knew of that rel
- D intentionally and improperly interfered w/K perform AND
- interf caused P monetary / pecun loss
false imprisonment occurs when…
- D intends to confine P within limited area
- D’s conduct causes such confinement; OR D fails to release despite owing duty to do so, AND
- P is conscious of confinement, OR, in min jx/3rd rstmt, P was harmed by confinement
modern vs. traditional approach to land possessor liability
- traditional: obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers
- duty of reas care gen owed to trespassers, but only traditional laxer standard applied to flagrant trespassers (unless they are imperiled / unable to defend themselves)
when can P sue for IIED after witnessing harm to another?
- D engaged in extreme and outrageous conduct that emot/phys harmed P’s close family member
- D’s conduct intentional or reckless (D knew P was present and closely related)
- P contemporaneously perceived the conduct and suffered severe emotional distress
elements of intrusion upon seclusion
- D intentionally intrudes on
- P’s private affairs,
- in a manner that would be highly offensive to a reasonable person
elements of recovery for a special situations theory of negligent infliction of emotional distress
defendant negligently either:
1. delivered erroneous announcement of death or illness
2. mishandled corpse or bodily remains
3. contaminated food with repulsive foreign object
and
caused plaintiff serious emotional distress
