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.
Negligence - LICENSEE AND INVITEE STANDARD OF CARE
No distinction between licensee and invitee; duty is of a reasonable person in the same situation.
Negligence - ATTRACTIVE NUISANCE DUTY OF CARE
Plaintiff must show (1) dangerous artificial condition on land, (2) whose owner should have know that kids frequent the vicinity, (3) that condition foreseeable to cause injury to children, and (4) expense to prevent child’s injury is slight compared to risk.
Negligence - NEGLIGENCE PER SE
To establish negligence per se, (1) statute must clearly define standard of conduct, (2) plaintiff is in the class the statute intends to protect. and (3) statute was designed to prevent the type of harm that the plaintiff suffered. With building code violations: defendant should have known of violation and failed to take reasonable steps to correct it.
Negligence - DUTY OF CARE FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The plaintiff must prove that (1) the defendant was negligent, (2) it was reasonably foreseeable that the defendant’s conduct would cause severe emotional distress, and (3) defendant’s conduct caused severe emotional distress.
Negligence - AFFIRMATIVE DUTY TO ACT RULE
A driver involved in an accident, regardless of fault, has a duty to render reasonable assistance.
Negligence - GOOD SAMARITAN RULE
Doctors who voluntarily render emergency treatment are not liable UNLESS gross, wanton, or intention negligent conduct occurred.
Negligence - DEFENDANT CAUSED PERIL
One whose conduct causes peril (negligent or not) has a duty to use reasonable care to aid or assist party injured by that peril.
Negligence - SPECIAL RELATIONSHIP DUTY
Parent-Child; Employer-Employee. May be liable for failure to act if plaintiff is in peril.
Breach of Duty - BREACH (GENERAL RULE)
Conduct fell short of the applicable standard of care; thus, show he acted unreasonably based upon what occurred.
Breach of Duty - CUSTOM OR USAGE
Custom or usage may be introduced to show some evidence of the standard of care, but not conclusive.
Breach of Duty - RES IPSA LOQUITUR
Show (1) event does not ordinarily occur without negligence, (2) in defendant’s control, and (3) not voluntary action by plaintiff.
Breach of Duty - RES IPSA AND MULTIPLE DEFENDANTS
With multiple parties in control, it is available if plaintiff can show similar past occurrence in close proximity of time.
Causation - CUASATION GENERAL RULE
Actual; but for defendant’s act/omission. Proximate if the harmful result of defendant’s conduct was foreseeable.
Causation - ACTUAL CAUSE (SUBSTANTIAL FACTOR TEST)
Where multiple causes bring about an injury and any one alone could have caused it, the burden shifts to the defendants.
Causation - PROXIMATE CAUSE (INDIRECT CAUSES)
Foreseeable harmful result or reaction from an intervening force, defendant is liable. Unforeseeable breaks chain.
Causation - PROXIMATE CAUSE (SUBSEQUENT MEDICAL MALPRACTICE)
Not foreseeable as a matter of law, but it is a question for the jury to find foreseeability.
Causation - PROXIMATE CAUSE (NEGLIGENT RESCUE)
Negligent rescue by a third party will not limit the defendant’s liability.
Damages - DAMAGES (GENERAL RULE)
Prove damages and is generally permitted to recover damages for personal injury, property, punitive, and pain and suffering.
Damages - PERSONAL INJURY DAMAGES
If continuous pain and suffering, plaintiff can use a per diem argument to get a pain and suffering award.
Damages - PROPERTY DAMAGES
The measure of property damages is the reasonable cost of repair or its fair market value if it is completely destroyed.
Damages - PUNITIVE DAMAGES (NC)
Available if fraud, malice, or willful and wanton conduct (intentional disregard and indifference that defendant should know is likely to result in injury). Amount limited to 3x compensatory or $250,000 (not DWI). Only consider (1) reprehensibility motive/conduct, (2) likelihood of harm, (3) actual damages, (4) concealment, (5) past similar conduct, (6) profit from conduct, and (7) ability to pay. NOT available if vicarious liability was only cause of action against defendant.
Damages - NON-RECOVERABLE DAMAGES
Cannot recover interest from date of damage in personal injury action or attorney’s fees.
Damages - DUTY TO MITIGATE DAMAGES
Reasonable steps to mitigate - appropriate treatment and preserve/safeguard property. NOT Seatbelt.
Damages - COLLATERAL SOURCE RULE
Damages NOT reduced by reason of benefits received from other sources. No right to subrogation.
Defenses to Negligence - CONTRIBUTORY NEGLIGENCE
Duty to use ordinary, prudent, and reasonable care. Retard held to standard of like person under circumstances.
Defenses to Negligence - LAST CLEAR CHANCE (EXCEPTION TO CONTRIBUTORY NEGLIGENCE)
Plaintiff can rebut if (1) he put himself in peril, (2) defendant saw or should have seen him in peril, (3) defendant had and failed to use time/means to avoid injuring him, and (4) caused plaintiff’s injuries.
Defenses to Negligence - HELPLESS PERIL (EXCEPTION TO CONTRIBUTORY NEGLIGENCE
Plaintiff negligently put himself in peril that he can’t get out of, and defendant should have known of plaintiff.
Defenses to Negligence - INATTENTIVE PERIL (EXCEPTION TO CONTRIBUTORY NEGLIGENCE)
Plaintiff negligently puts himself in peril and can’t get out because he is inattentive, and defendant should have known of predicament.
Defenses to Negligence - ASSUMPTION OF THE RISK
One assumes risk if he knew of the risk and voluntarily assumed it. Only allowed in contractual relationships.
Strict Liability - STRICT LIABILITY
Plaintiff must show (1) strict activity, (2) dangerous aspect of which was actual/proximate cause of injury, and (3) damages.
Strict Liability - WILD ANIMALS
Dangerous activity if one owns/possess wild animals and the injury was caused by the propensity of the animal.
Strict Liability - DOMESTICATED ANIMALS
If owner knows of its dangerous propensities in advance; or dog if fighting trained, or listed as potential danger.
Strict Liability - ABNORMALLY DANGEROUS ACTIVITIES
An activity is abnormally dangerous if it (1) creates a risk of serious harm even when reasonable care is exercised by all actors, and (2) the activity is not a matter of common usage in the community.
Strict Liability - CONTRIBUTORY NEGLIGENCE TO STRICT LIABILITY
If plaintiff (1) knew of the danger, and (2) his conduct was the very cause of the harm from animal/activity.
Strict Liability - PRODUCTS LIABILITY
Negligence only. Any unreasonable use will bar recovery, even if such misuse was reasonable foreseeable.
Nuisance - PRIVATE NUISANCE
A substantial and unreasonable interference with the use or enjoyment of land. Court will weigh equities of parties.
Nuisance - PRIVATE NUISANCE (NC - 2 TYPES)
Nuisance per se: always, regardless of location (spite fence). Damages presumed upon showing intent. Nuisance per accidens: plaintiff shows (1) intent or negligence, (2) damages - a substantial injury to comfort, health, or property; and if court (3) weighs equities in plaintiff’s favor.
Nuisance - PUBLIC NUISANCE
Conduct that causes physical or moral harm to the public in general, but suffers unique injury.
Nuisance - COMING TO THE NUISANCE
Generally, in absence of prescriptive right, the purchaser of land is still entitled to reasonable use or enjoyment of the land, even if he came to the nuisance, so long as he brought in good faith not for purpose of lawsuit. Farm/forestry operation for more than 1 year, can raise defense of coming to nuisance against surrounding land owners, when land area changes and was not a nuisance when began forestry.
Vicarious Liability - RESPONDEAT SUPERIOR
An employer is vicariously liable for employee’s torts committed within scope of employment. However, not liable for (1) major detour, or (2) intentional torts unless violence is part of the job.
Vicarious Liability - CAR OWNER/CAR DRIVER
Liable if (1) defendant owns or has right to control vehicle, (2) provided vehicle for use, pleasure, convenience of household, (3) driver had consent, and (4) driver is member of defendant’s household.
Vicarious Liability - PARENT/CHILD
Parent liable for up to $2000 for child’s malicious/willful/wanton injury to a person or property.
Vicarious Liability - DRAM SHOP ACTS
Plaintiff must show (1) negligence, (2) gave alcohol to someone who defendant should have known was noticeably intoxicated, and (3) the defendant should have known this person was going to drive.
Vicarious Liability - ALCOHOL TO MINORS (NC)
Vendor can be liable for negligence per se for the sale of alcohol to minors if injuries to a third party are caused by minor’s DWI. Social hosts liable of negligence if reasonable person knew kid drunk alcohol and was going to drive shortly thereafter.
Multiple Defendant Issues - JOINT AND SEVERAL LIABILITY
Where two or more acts combine to proximately cause an indivisible injury, each is jointly and severally liable. However, if the actions are independent, and injury is divisible/identifiable, each only liable for their portion.
Multiple Defendant Issues - ACTING IN CONCERT
When two or more parties act in concert and injure plaintiff, each will be joint/several liable even if divisible.
Multiple Defendant Issues - SATISFACTION
If plaintiff recovers in full or by settlement from one tortfeasor, it’s satisfied and he can’t recover from the other.
Multiple Defendant Issues - RELEASE
A release of one does not discharge the others unless expressly stated in the release agreement.
Multiple Defendant Issues - CONTRIBUTION
Paying defendant can recover proportional shares from other defendants.
Wrongful Death and Torts Expiration at Death - TORTS THAT EXPIRE ON VICTIM’S DEATH
Libel, slander, false imprisonment, and malicious prosecution expire because so personal, but not slander of title.
Wrongful Death and Torts Expiration at Death - WRONGFUL DEATH
Personal representative, spouse, or next of kin. Damages: (1) treatment expenses lesser of 4500 or 50% net recovery, (2) pain and suffering, (3) funeral expenses, (4) present money value of decedent’s life, and (5) punitive damages.
Tort Immunities - FAMILY IMMUNITY (INJURY TO PERSON)
NC abolished husband-wife immunity. Parent-child abolished for car accident and intentional torts.
Tort Immunities - FEDERAL GOVERNMENT IMMUNITY
Government has waived immunity except for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel/slander, fraud, and interference with contract. Also waived for ministerial acts, but not discretionary. Government contractor can also assert government immunity if following government standards.
Tort Immunities - STATE GOVERNMENT IMMUNITY
NC has waived negligence from employees in scope of employment, but cap of $500K unless agency carries liability insurance, then up to that amount plus $500K. Includes medical malpractice for prisoners.
Tort Immunities - MUNICIPALITY IMMUNITY
NC retains municipal immunity for government functions unless it waives by buying insurance.
Tort Immunities - PUBLIC OFFICIAL IMMUNITY
Public officer immune for discretionary acts, not if corrupt or malicious. Employee is never immune because his acts are always ministerial. If statute created job directly, then he is a public officer.
Tort Immunities - CHARITABLE IMMUNITY
Volunteers for charity work are immune from ordinary negligence; volunteer health provider immune for negligence; donors of food to nonprofit organizations immune from negligence.
Statutes of Limitations - NC
(Defamation-1) (Wrongful Death-2) (Intentional Torts-3) (Negligence-3, repose is 10) (Wrongful prosecution-3) (Medical Malpractice Latent Injury-1 from discovery, 4 from act) (Medical Malpractice Foreign Object-1 from discovery, 10 from act) (Products Liability-3, but 12 from purchase) (Unfair and Deceptive Trade Practices-4)
