Torts - Overview Flashcards
Overview
A tort is a civil wrong committed against another. A tort may arise from the defendant’s intentional conduct, negligent conduct, or conduct that creates liability in the absence of fault (strict liability torts). A typical Torts essay question will involve multiple torts committed by and against multiple parties. For each potential tort, first identify the prima facie case elements of the tort and apply the elements to the facts provided. For those torts for which the prima facie case is established, consider any defenses that are supported by the facts. Finally, consider any supplemental rules that may apply, typically involving multiple parties (e.g., vicarious liability and joint tortfeasor rules). A Torts MBE question may test on any of the above issues.
INTENTIONAL TORTS - Battery
a. Defined: A harmful or offensive contact with the plaintiff’s person intentionally caused by the defendant
b. “Person” includes things connected to the person
c. Contact is deemed “offensive” if the plaintiff has not expressly or impliedly
consented to it
Assault
a. Defined: Intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person
b. “Apprehension” need not be fear
c. Words alone generally are not enough
False Imprisonment
a. Defined: An intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area
b. Confinement or restraint includes threats of force, false arrests, and failure to provide a means of escape when under a duty to do so
Intentional infliction of emotional distress
a. Defined: Intentional extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress
b. Physical injuries are not required, only severe emotional distress
Trespass to land
a. Defined: An intentional act by the defendant that causes a physical invasion of the plaintiff’s real property
b. The defendant need not have intended to commit a trespass, only to do the act of entering onto land
Trespass to chattels
a. Defined: An intentional act by the defendant that causes an interference with
the plaintiff’s right of possession in a chattel, resulting in damages
b. The tort typically involves damage to or dispossession of the plaintiff’s chattel
c. The defendant need not have intended to commit a trespass to the chattels,
only to do the act that causes interference with chattel
d. If the damage to the chattel is serious, conversion may be more appropriate
Conversion
a. Defined: An intentional act by the defendant that causes a serious interference
with the plaintiff’s right of possession in a chattel
b. The defendant need not have intended a conversion, only to do the act that
constitutes a conversion
c. The interference with the chattel is so serious as to require the defendant to
pay the full value of the chattel (in effect, a forced sale of the chattel)
INTENTIONAL TORTS - Considered Transferred Intent
- Intent will transfer from the intended tort to the committed tort, or from the intended victim to the actual victim
- Both the tort intended and the tort committed must be battery, assault, false imprisonment, trespass to land, or trespass to chattels
INTENTIONAL TORTS - Apply Relevant Defenses
- Consent
a. Consent may be either express or implied (apparent or implied by law)
b. The plaintiff must have capacity to consent and the defendant must not exceed
the bounds of the consent - Self-defense, defense of others, defense of property
a. The defendant must reasonably believe that a tort is being or about to be committed against himself, a third person, or his property
b. Only reasonable force may be used
1) Deadly force is permitted if reasonably believed to be necessary to prevent
serious bodily injury
2) Deadly force is never permitted to defend only property
c. The shopkeeper’s privilege permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods - Necessity
a. A defendant whose property tort was justified by a public necessity has an
absolute defense
b. If justified only by a private necessity, the defense is qualified (the defendant
must pay for any damage caused)
c. This privilege trumps a property owner’s right to defend his property
NEGLIGENCE - Elements of the Prima Facie Case
- The defendant owes a duty of care to conform to a specific standard of conduct
- The defendant breached that duty
- The breach of duty was the actual and proximate cause of the plaintiff’s injury
- The plaintiff suffered damages to person or property
NEGLIGENCE - Standards of Care
- The general standard of care is a reasonably prudent person under the same or similar circumstances (average mental ability but the same physical characteristics as the defendant if relevant)
- Professionals must exercise the knowledge and skill of a member of the profession in good standing
- Children must conform to standard of care of a child of like age, education, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity)
- A landowner’s standard of care under traditional rules usually depends on the status of the person injured on the property
a. Trespassers
1) The landowner owes no duty to undiscovered trespassers
2) For discovered and anticipated trespassers, the landowner owes a duty to
warn of or make safe known highly dangerous artificial conditions if not
obvious to the trespasser
b. Licensees
1) Licensees are those who come onto the land with express or implied permission but for their own purpose (includes social guests)
2) The landowner’s duty is the same as for discovered trespassers except that it applies to all dangerous artificial and natural conditions
c. Invitees
1) Invitees are those entering as members of the public or for a purpose
connected to the business of the landowner
2) The landowner’s duty is the same as for licensees but with the additional
duty to reasonably inspect for dangerous conditions
d. Note that the ordinary reasonable care standard applies for active operations on the property and for conditions on the land that injure children (the “attractive nuisance” doctrine) - A criminal statute may serve to establish a specific standard of care in place of the
general standard of ordinary care if:
a. The plaintiff is within the class that the statute was intended to protect
b. The statute was designed to prevent the type of harm suffered - Negligent infliction of emotional distress
a. General basis of liability: The defendant breaches a duty to the plaintiff by creating
a risk of physical injury and the plaintiff suffers emotional distress as a result
1) The plaintiff must be within the “zone of danger” and ordinarily must suffer
physical symptoms from the distress
2) Exception: The defendant breaches a duty to a bystander not in the zone of
danger who (i) is closely related to the injured person, (ii) was present at
the scene of the injury, and (iii) personally observed or perceived the event
3) Exception: A relationship exists between the defendant and the plaintiff
under which the defendant’s negligence has great potential to directly cause emotional distress (e.g., hospital erroneously reports death of plaintiff’s family member)
NEGLIGENCE - Breach of Duty
- Whether the defendant breached the applicable duty of care is a question for the trier of fact
- Under res ipsa loquitur, the fact that an injury occurred may create an inference that the defendant breached his duty. Three requirements:
a. The accident causing the injury is a type that would not have occurred absent
negligence
b. The negligence is attributable to the defendant (usually because the defendant
is in exclusive control of the instrumentality causing the injury)
c. The injury was not attributable to the plaintiff’s own conduct
NEGLIGENCE - Causation
- Actual cause
a. Usually established by the “but for” test—an act is the actual cause of an injury
when it would not have occurred but for the act
b. Merged causes—when two acts bring about an injury and either one alone
would have sufficed, either of the acts is an actual cause of the injury if it was a
“substantial factor” in bringing it about
c. Unascertainable causes—when two acts were negligent but it is not clear which
was the actual cause of the injury, the burden shifts to each of the negligent
actors to show that his negligent act was not the actual cause - Proximate cause
a. Limits liability for unforeseeable consequences of the defendant’s actions
b. The defendant is liable for all harmful results that are the normal incidents of
and within the increased risk from the defendant’s actions
c. Indirect cause cases: An intervening force occurs after the defendant’s
negligent act and combines with it to cause the injury
1) Foreseeable intervening forces (such as a negligent rescue) do not cut off
the defendant’s liability for the consequences of his negligent act
NEGLIGENCE - Damages
- The plaintiff must show actual harm or injury to complete the prima facie case
- The plaintiff can recover economic damages (e.g., medical expenses) and noneconomic damages (e.g., pain and suffering)
- The extent or severity of the harm need not have been foreseen (the tortfeasor takes his victim as he find him)