TORTS RULES! Flashcards
Intentional Torts - INTENT
Intent is satisfied if defendant intended the consequence or was substantially certain the consequence would result.
Intentional Torts - TRANSFERRED INTENT
Intent can transfer from victim to victim or from tort to tort, but only within the torts of assault, battery, false imprisonment, trespass to land, and trespass to chattels.
Intentional Torts - CAUSATION
Causation is satisfied if defendant’s conduct was a substantial factor in bringing about the injury.
Intentional Torts - BATTERY
Battery is intentionally causing a harmful or offensive contact to the plaintiff’s person. No actual damages required. Punitives allowed.
Intentional Torts - ASSAULT
Assault is intentionally causing a reasonable apprehension in plaintiff of an immediate harmful contact with plaintiff’s person.
Intentional Torts - FALSE IMPRISONMENT
False imprisonment is intentionally causing plaintiff to be confined or restrained to a bounded area with no reasonable means of escape.
Intentional Torts - IIED
Intentional infliction of emotional distress is intentionally, or recklessly, by extreme and outrageous conduct, causing plaintiff severe emotional distress. To satisfy, a mental or emotional disorder must be recognized and diagnosed by a professional.
Intentional Torts - TRESPASS TO LAND
Trespass to land is the intentional act of physical invasion to another’s land.
Intentional Torts - TRESPASS TO CHATTELS
Trespass to chattels is intentionally interfering with the plaintiff’s right of possession of personal property that causes damages.
Intentional Torts - CONVERSION
Conversion is intentional interfering with plaintiff’s right of ownership which is so serious that if proven, defendant would have to pay fair market value with interest from conversion date.
Intentional Torts - DEFENSE (CONSENT)
The defendant is not liable if the plaintiff consented to act expressly, or implicitly, by custom, conduct, or words. One cannot consent to criminal acts, but jury can consider that consent in determining mitigation.
Intentional Torts - DEFENSE (SELF-DEFENSE)
Defendant is not liable if justified in using reasonable force to prevent a reasonable imminent threat of force (subjective and objectively reasonable). The Defendant has no duty to retreat if felonious assault, and he is not at fault in provoking. No duty to retreat in home.
Intentional Torts - DEFENSE (DEFENSE OF PROPERTY)
Defendant may use reasonable force, and must request that plaintiff desist until futile or dangerous to do so. Deadly force never allowed in defense of property, but a rebuttable presumption exists in the defense of home/work/car, that defendant is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or another.
Intentional Torts - DEFENSE (NECESSITY - PROPERTY ONLY)
If interference is reasonable and necessary to avoid threatened injury or other force, and threat is more serious than aversion, the defense of necessity would apply. The defense is qualified though, in that the defendant must pay for injury caused by necessary aversion. (ex. plane landing in corn field)
Intentional Torts - DEFENSE (DISCIPLINE)
A parent or teacher may use reasonable force in disciplining children; considering the age, sex, and nature of the child’s behavior.
Defamation - COMMON LAW (PRIVATE PERSON AND PRIVATE CONCERN)
To prove defamation at common law, plaintiff must prove (1) defamatory language of defendant, (2) of or concerning plaintiff, (3) made negligently, (4) with publication by defendant to third party, and (4) damages to plaintiff’s reputation. A statement is defamatory if it injures plaintiff’s reputation, but defendant can assert the truth defense.
Defamation - DEFAMATION INVOLVING MATTER OF PUBLIC CONCERN
For defamation involving a matter of public concern, plaintiff must prove (1) false defamatory language of defendant, (2) of or concerning the plaintiff, (3) scienter, (4) publication by defendant to a 3rd party, and (5) damages to plaintiff’s reputation. Thus, plaintiff has the burden of proving the statement was false. If the plaintiff is a public official/figure, which would include sheriffs, police, taxi inspectors, he must prove by clear and convincing evidence that the statement was made with actual malice, that is he knew it was false or acted with reckless disregard as to its truth or falsity.
Defamation - DAMAGES (SLANDER)
With slander, plaintiff must prove special damages; show pecuniary loss as a result of statement’s effect on reputation. However, Jury may presume damages if slander per se: regarding trade/profession, serious crime, or infectious disease.
Defamation - DAMAGES (LIBEL)
With libel, damages depend upon three categories: (1) per se, (2) per quod (not defamatory on its face, but plaintiff can show extrinsic evidence and proof of special damages), and (3) an ambiguous interpretation. However, if one makes an oral statement that is likely to appear in print, and it does so appear in print, defendant is liable for both slander and libel.
Defamation - DEFENSES TO DEFAMATION
Absolute privilege against defamation include: (1) judicial or legislative hearing, (2) spousal communication. There is also a qualified privilege against defamation in reference letters.
Invasion of Right to Privacy - APPROPRIATION OF PICTURE OR NAME
Plaintiff must prove that the defendant used his or her picture or name for commercial advantage without authorization. Liability limited to the use of plaintiff’s likeness in connection with advertising, promotional, or labeling purposes. Not name in book.
Invasion of Right to Privacy - INTRUSION UPON SECLUSION
To establish intrusion upon seclusion, you must prove: (1) an authorized prying or intruding on the affairs or seclusion of plaintiff; (2) intrusion is highly offensive to reasonable person, and (3) the thing intruded upon was private.
Fraud - INTENTIONAL MISREPRESENTATION (DECEIT)
To prove intentional misrepresentation requires five elements: (1) misrepresentation of a material fact, (2) with the knowledge that it was false with intent to deceive, and (3) intent to induce plaintiff’s reliance, resulting in (4) actual and justified reliance (causation), and (5) damages.
Fraud - NEGLIGENT MISREPRESENTATION
To establish negligent misrepresentation, one must prove that (1) the defendant negligently, (2) made a material misrepresentation, (3) in a commercial setting, (4) which plaintiff justifiably relied upon, (4) causing, (5) damages.
Interference with business relations - INTERFERENCE WITH CONTRACT
Plaintiff must prove that the defendant knew of a valid contract between plaintiff and third party, and intentionally induced the third party to breach it without justification causing actual damages to plaintiff.
Interference with business relations - TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
The plaintiff must prove that the defendant induced third party to refrain from entering into a contract with plaintiff without justification, causing actual damages to plaintiff.
Wrongful Prosecution/Abuse of Process - MALICIOUS PROSECUTION
Plaintiff must prove: (1) institution of criminal proceedings initiated by defendant, (2) terminated favorably for plaintiff, (3) with no probable cause for prosecution, (4) and showing malice (the purpose was not justified), and (5) damages.
Wrongful Prosecution/Abuse of Process - WRONGFUL CIVIL PROCEEDINGS
Plaintiff must prove (1) civil proceeding from defendant, (2) ended in favor of plaintiff, (3) with no probable cause to initiate action, showing (4) malice, and (5) special or pecuniary damages (substantial interference with plaintiff’s person or property).
Wrongful Prosecution/Abuse of Process - ABUSE OF PROCESS
Plaintiff must show (1) wrongful use of the process for an ulterior purpose, and (2) some definite act or threat against plaintiff to accomplish the ulterior purpose (garnished account to force plaintiff to sign lease).
Negligence - DUTY OF CARE
A person owes a legal duty, to foreseeable plaintiffs, to act as an ordinary, prudent, and reasonable person.
Negligence - UNFORESEEABLE PLAINTIFF
Reasonable person would have foreseen a risk of injury in her circumstances: in foreseeable zone of danger.
Negligence - FORESEEABLE PLAINTIFFS AS A MATTER OF LAW
The following are always foreseeable as a matter of law: (1) rescuers, (2) viable fetus, and (3) intended economic beneficiaries.
Negligence - WRONGFUL CONCEPTION/PREGNACY
Parents have an action for wrongful conception if the doctor’s negligence caused an unintended conception.
Negligence - PROFESSIONAL STANDARD OF CARE
A professional must exercise the knowledge and skill of a member in good standing in their profession, in a similar community.
Negligence - CHILD’S STANDARD OF CARE
Rule of 7’s: Under 7 = no negligence; 7-13 = presumption of no negligence; 14+ = presumption of negligence.
Negligence - COMMON CARRIERS AND INNKEEPERS STANDARD OF CARE
Liable for slight negligence; also owe duty to passengers and prospective passengers; can not delegate duty.
Negligence - EMERGENCY SITUATIONS STANDARD OF CARE
One must act as the reasonable person would under the same emergency unless defendant caused the emergency.
Negligence - TRESPASSER STANDARD OF CARE
No duty for even discovered trespassers, but cannot willfully or wantonly make traps. Manmade deathtraps not allowed.
