final review Flashcards
fortheloveofgodpleasememorizethesetorts (55 cards)
1
Q
What are the intentional torts?
A
Battery
Assault
False Imprisonment
Intentional Infliction of Emotional Distress
Trespass to Chattels – Trespass to Land
Conversion
2
Q
Tell me about intent
A
- Specific intent: D has a conscious purpose or desire to cause the consequences of his act (specific intent)
- General intent: D is substantially certain that consequence will result
Intent is usually determined by looking at the Δ’s words and actions. D does not have to INTEND a tort.
3
Q
What do we need to establish a “prima facie” case for all intentional torts ?
A
Voluntary act, intent, causation
4
Q
What is transferred intent? When can it not be used?
A
Your intent to do X (ex: hit someone) can be transferred and used to support liability for another tort.
Can transfer person-to-person or tort-to-tort.
Transferred intent cannot be used for conversion or IIED.
5
Q
Elements of Battery?
A
- Volitional act
- Intent
- Causation
- Harmful or offensive contact with π’s person.
6
Q
Elements of Assault?
A
- Volitional act
- Intent – to cause a harmful or offensive contact or an intent to cause apprehension
- Causation
- Reasonable apprehension of an immediate harmful or offensive contact.
7
Q
Elements of False Imprisonment?
A
- Volitional act
- Intent to confine
- Causation
- Confinement
Confinement = no reasonable means of escape. can be (but doesn’t have to be) to a bounded area.
You must know you’re confined when it happens.
Defense - shopkeeper’s privilege (reasonable belief of theft)
8
Q
Elements of IIED (Intentional Infliction of Emotional Distress)?
A
- Volitional act
- Intent [or recklessness in some jdxs]
- Extreme and outrageous conduct (exceed the bounds of human decency)
- Causation
- Severe emotional distress [most jdxs require that there be manifestations of the distress]. ex: PTSD
*No transferred intent.
9
Q
Elements of Trespass to Land?
A
- Volitional act
- Intent to enter the property
- Causation
- Physical invasion of P’s possession of real property.
*P does not have to be the owner of the property. Anyone with possession can maintain the suit.
**D’s mistaken belief that he’s the owner is not a defense.
***No damages required.
10
Q
Elements of Trespass to Chattels?
A
- Volitional act
- Intent to intermeddle or interfere with the chattel
- Causation
- Intermeddling or interference with the chattel
- Actual harm (damage to property, significant dispossession of the property, or injury to P)
*Mistake is not a defense.
11
Q
Elements of Conversion?
A
- Volitional act
- Intent to exercise dominion or control
- Causation
- Exercise of dominion or control
- Exercise of dominion or control is sufficient to require D to pay for the full value of the chattel (results in a forced sale)
Ex: permanent deprivation (lost or destroyed), stealing
*D still liable for conversion even when they don’t know the items were stolen.
12
Q
What are the defenses to intentional torts?
A
- Consent
- Self Defense
- Defense of others
- Defense of property
- Necessity (for trespass)
- Justification
- Shopkeeper’s Privilege
13
Q
Elements of Negligence?
A
- Duty (was duty owed and what standard of care?)
- Breach
- Causation—Actual and Proximate
- Damages
14
Q
Talk to me about DUTY (negligence)
A
Duty = what is the standard of care owed, and to who?
To whom is it owed? Palsgraf test.
1. Andrews (minority): all who are harmed by proximate cause
2. Cardozo (majority): only to those within zone of danger
In general, no affirmative duty to act or help others. Except when:
- D places P in danger.
- D has duty to act imposed by law
- D begins to aid P
- D has special relationship w/ P
15
Q
When is standard of care adjusted?
A
- Children—held to the standard of a child of like age, education and experience.
- People with physical disabilities—held to the standard of a reasonable person with that disability.
- Mentally ill people—held to the reasonable standard of care; no allowance is made for their mental disability.
- Professionals—held to the standard of a professional in good standing in that profession. Specialists are required to live up to the standard of a specialist in that field.
16
Q
Talk to me about BREACH (negligence)
A
Breach = D’s conduct falls below the standard of care owed.
B < P x L → breach
(B = burden of precaution
P = probability of harm
L = loss / amt of harm)
How can breach be established?
- Expert testimony
- Circumstantial evidence
- Negligence per se
- Res ipsa loquitur
17
Q
What is negligence per se?
A
Establishes Duty + Breach ONLY.
Requirements:
1. D violated criminal STATUTE without excuse
2. P is in the class of ppl protected by statute
3. P suffered harm the statute protected against
As a result, the only thing that must be proven at trial is causation (whether the violation was the cause in fact and proximate cause of the plaintiff’s injury)
18
Q
What is res ipsa loquitur?
A
BURDEN SHIFTING, NOT A CLAIM!
Allows P to infer a breach of duty WITHOUT direct evidence of D’s conduct.
Establishes Duty + Breach ONLY.
Requirements:
1. Harm was a kind that ordinarily does NOT occur in the absence of negligence,
2. Caused by an agent or instrumentality within D’s exclusive control
3. Not due to any action by P
Notes:
- Allows P to avoid having their case dismissed on SJ
- Shifts burden of proof to D to prove he wasn’t negligent
(think of “throwing sack of flour out the 2nd story of a building” case)
19
Q
How do courts treat res ipsa?
A
- Some courts treat it as mere evidence of Δ’s negligence which the jury could reject.
- Some courts treat it as creating a presumption of negligence on the part of Δ. Shifts burden of proof to D to prove that he wasn’t negligent.
20
Q
What is the general standard of care owed?
A
“Reasonable person standard of care” = D owes P the standard of care of a reasonably prudent person under like circumstances, as measured by an objective standard
21
Q
What are some other special duty situations?
A
- Parents generally have no duty to control their children. A duty is imposed when parents know of a minor’s dangerous tendencies..
- Parents not vicariously liable for the negligence of their children except many jurisdictions impose liability by statute up to a certain dollar amount for certain misconduct.
- Psychiatrist has a duty to warn a 3rd party threatened with imminent danger by a patient.
22
Q
Tell me about Duties Based on Contract
A
- D must show that he was “in privity” of a contract in order to sue for breach of contractual duty (this has broken down a lot tho)
- Products liability cases: No more privity required (manufacturers owe duty of care to all consumers)
- Nonfeasance (not performing): privity required to sue
- Misfeasance (performing negligently): no privity required to sue
- No duty is imposed where the contract was for the benefit of the general public (like supplying water) and D failed to perform.
23
Q
Causation - ACTUAL (negligence)
A
- But/for test
- When multiple actions → look at whether Δ’s conduct was a substantial contributing factor to harm
- Court can shift the burden to the Δ’s when both acted negligently to the P but only one caused the harm.
24
Q
Causation - PROXIMATE (negligence)
A
There is proximate cause when P’s injury is the direct and foreseeable consequence.
Proximate cause allows court to cut of D’s liability. When:
- Harm not foreseeable
- Unforeseeable intervening force (ex. criminal conduct)
- Public policy reason to cut off liability
25
Special Duties of Owners/Occupiers of Land
In general, landowners are not liable to those outside the property for natural conditions on the land. (ie. trees, unless could be discovered through inspection)
By contrast, landowners are usually liable for those activities caused by human activity.
Duties to those who come onto land owned or occupied by Δ:
1. Trespassers: Enters the land possessor’s property without valid consent or necessity. Generally no duty of care owed, except to discovered trespassers or frequent trespassers to at least warn of dangerous conditions.
- The attractive nuisance doctrine also imposes a duty on landowners to avoid conditions likely to be dangerous to trespassing children where the children would not be able to appreciate the risk.
2. Licensees: Social guest. Duty to warn the licensee of dangers known to owner/occupier.
3. Invitees: Person there for owner’s business.
Duty to make premises reasonably safe
Does a landlord owe duties to a tenant’s invitees? ---> Generally no, but there may be liability for landlords who rent knowing the tenant intends to operate an establishment for the general public.
Does a landlord owe a duty to a tenant to protect the tenant from criminal assaults?
---> Yes, if the landlord was aware of criminal activity on the premises and didn’t take reasonable steps to guard against the harm.
26
Defenses to Negligence?
1. Contributory negligence (OLD)
---> If P's negligent contributed, then P cannot recover.
2. Comparative negligence (MODERN APPROACH)
---> Allow recovery even when P contributorily negligent. P's recovery reduced by the amount P was negligent.
3. Assumption of the risk
---> P knew of the risk and voluntarily proceeded (waiver of liability)
---> Doesn’t apply when P had no other choice.
---> Modernly part of comparative fault.
27
Tell me about the different comparative negligence jdxs
Types of comparative negligence jxds:
1. Pure Comparative –
P could be 60% at fault and still recover against D.
2. Modified (49%)
P’s negligence must be “less than” or “not as great as” D’s.
3. Modified (50%)
P’s negligence cannot be more than D’s. (but it can be equal).
When a plaintiff fails to mitigate his damages, recovery can be reduced.
28
4 situations where strict liability is imposed?
1. Dangerous instrumentalities on the land which escape and cause harm
2. Animals (wild and domestic)
3. Strict liability for "ultra-hazardous activities"
4. Strict products liability
29
Strict liability for animals? (wild and domestic)
Wild - strict liability for activities consistent with an animal’s dangerous nature
Domestic - strict liability is only imposed when the owner knows of the animal’s dangerous propensity. Otherwise the standard is negligence
30
Strict liability for ultra-hazardous activities?
1. activity must be on that poses a risk of serious harm even when reasonable care is exercised
2. activity cannot be a matter of common usage in the community
Ex: Blasting, storing dynamite in an urban area
Strict liability only imposed as to those harms which are the normal consequence of the ultra-dangerous activity
31
Products liability -- when a product is defective, what are the different theories P can recover under?
1. Strict liability
2. Negligence
3. Implied warranty (merchantability; fitness for purpose)
4. Express warranty
*NO privity necessary!
32
Tell me about strict products liability
1. D is a commercial supplier (manufacturer, wholesaler, retailer)
2. Product reached consumer w/o substantial alteration
3. Breach: Product in a defective condition unreasonably dangerous to the consumer. A product can be defective if there is a manufacturing defect; a design defect; or a warning defect:
- Manufacturing defect
- Design defect -- Risk-utility analysis/Consumer expectation test, Modernly this req fault.. Most courts use risk-utility test
- Inadequate instructions/warnings. Modernly this req fault
4. Causation
- Actual (defect existed when product left defendant’s control)
- Proximate
5. Damages
- Physical injury or property damage must be shown. Pure economic loss insufficient.
*** Comparative negligence is applicable in strict products liability actions.
33
Tell me about negligence theory under products liability
1. Duty:
- To act as a reasonable mfr., wholesaler, or retailer
- Owed to P - no need for privity.
2. Breach
- P must show that D fell below the standard of care. The mere fact that the product is defective is insufficient. P must show unreasonable conduct by D.
3. Causation
- Actual
- Proximate
4. Damages
- Physical injury or property damage must be shown. Pure economic loss insufficient.
34
Express warranty under products liability?
1. Oral or written warranty that product would perform in a certain manner
2. Product fails to perform as promised
3. Causation (actual + proximate)
4. Damages
35
Implied warranty of merchantability
1. D is a commercial supplier. By selling the product, D is impliedly warranting product is safe for ordinary use.
2. Product is unsafe
3. Causation (actual + proximate)
4. Damages
*Can recover for pure economic loss
36
Implied warranty of fitness for particular purpose
1. Defendant is a commercial supplier
2. Seller is aware of π’s particular purpose
3. By selling product, Δ impliedly warrants product is safe for that particular purpose
4. Produce is unsafe when used for particular purpose
5. Causation (actual + proximate)
6. Damages
*Can recover for pure economic loss
37
Tell me about Statutes of Limitations
These are defenses. They key issue is when does the cause of action begin to run - time of discovery.
Majority approach is that the cause of action occurs when the harm is discovered or reasonably should have been discovered
38
Tell me about Immunity
a. interspousal - modernly eliminated or restricted.
b. parental - retained by most jurisdictions but abolished by some jurisdiction. Where it is abolished, the reasonable parent standard is imposed.
c. charitable - eliminated (but reinstated for volunteers)
d. governmental - eliminated or lifted (for negligent claims, not intentional torts) in part by legislative action such as the Federal Torts Claims Act.
e. govts are not liable for failure to provide general crime prevention but can be held liable for failing to properly respond to 911 calls
39
Tell me about Joint Tortfeasors
**Mechanism for allocating damages among multiple defendants in a way that maximizes the plaintiff's ability to recover the full amount awarded**
Ds contributed to a single, indivisible injury to P are each fully liable for that injury.
a. Joint participants can both be liable even though only 1 caused the harm. (Drag racing).
b. Each of several tortfeasors is jointly liable with the others and each can be made liable for the full amount of judgment
c. Joint and several liability is still retained in a majority of jxs even though we now have comparative fault.
d. After paying, Ds can seek *contribution* from other responsible parties.
Purpose: Joint and several liability aims to ensure that the plaintiff can recover the full amount of damages awarded, even if some defendants are unable to pay.
Allocation of responsibility: Under this doctrine, each defendant can be held responsible for the entire amount of damages, regardless of their individual degree of fault.
40
Types of damages?
1. Nominal damages = awarded when P's rights have been violated but suffered no actual harm or loss. meant to recognize the wrongdoing
2. Compensatory damages = awarded to compensate or make the P whole
3. Punitive damages = awarded to punish D, make an example of him, and to deter him and others.
---> If D acted willfully, wantonly, maliciously
In general, only awarded in intentional cases (not avail in negligence cases)
4. Special damages or “specials” = damages susceptible to objective measurement
---> Ex: Lost earnings, medical expenses
5. General damages = not valued objectively
---> Ex: Pain and suffering
***P has duty to take reasonable steps to mitigate damages.
41
What is the collateral source rule? (damages)
P’s recovery not reduced bc of payments from collateral source.
Ex: Gratuitous or discounted medical services
42
What is satisfaction?
1. (Outdated) If you’ve already had your judgment or damages satisfied you can’t collect against another tortfeasor. Historically, a release of one tortfeasor released all.
2. The MODERN APPROACH is more flexible. Allows a release or covenant not to sue and to allow the action to be maintained against the non-settling Δ.
Partial settlements are allowed: A plaintiff can settle with one defendant without automatically releasing all other defendants from liability.
43
What is Contribution?
a. D can seek contribution from anyone else (party or nonparty) who contributed to P’s injuries.
b. You can’t get contribution when the person you are seeking contribution from is immune from liability to P.
*for negligence claims, not intentional torts
43
What is Indemnity?
- One D seeks recovery for the full amount from the other D.
- Shifts the entire cost of judgment/settlement to another.
- Total shifting of liability. Modernly, indemnification is allowed but if both parties are at fault, a comparative fault analysis is applied.
- Often arises by contract, where a party agrees to indemnify and hold harmless another.
- Usually limited to cases where person seeking indemnity is held derivatively or vicariously liable for the wrongful act of another.
43
What is the survival statute?
A decedent’s estate can recover for damages suffered by decedent up until the decedent’s death. Not all tort actions survive. Most notably defamation and invasion of privacy don’t survive.
44
Tell me about wrongful death / survival
a. π can sue for wrongful death of decedent.
b. Wrongful death is for the loss of earnings, society and companionship of the decedent.
45
What is vicarious liability?
Holding someone liable for someone else’s tort
46
What is respondeat superior?
(Type of vicarious liability.)
An employer liable for tortious acts committed by employee, if act occurs within scope of employment
Elements:
1. Employer/employee relationship
2. Employee acting within scope of employment
Notes:
-- Doesn’t typically cover commute (going-and-coming rule)
-- Frolic and detour = if employee substantially deviates from their duties, the employer not liable
-- Employers not liable for independent contractors
-- Exceptions: if D actively directs the contractor or if duty is “nondelegable
47
Tell me about Joint venture / joint enterprise
(Type of vicarious liability.)
In a joint venture, members can be held vicariously liable for the negligent acts of other members
A party cannot recover against an alleged joint venturer of one who has committed negligence if the alleged joint venturer has no financial stake in the venture
To hold a person liable as a joint venturer, the person must have some economic gain in the venture.
Four elements:
1. an agreement among the members of the group;
2. a common purpose;
3. a community of pecuniary interest in that purpose;
4. an equal right to a voice in the direction of the enterprise.
48
Bailment --- what is the family car doctrine?
The family car doctrine makes the owner of a vehicle liable for the negligence of the driver when the driver is operating the vehicle with the owner’s permission and using the vehicle for the business or pleasure of the owner’s family.
The owner is not being held liable for his own negligence, rather the owner is vicariously liable for the tortious acts of the driver.
49
Tell me about necessity (as a defense to trespass)
May be used when emergency occurs that requires D to harm property in order to prevent greater harm to herself or others.
TWO KINDS:
1. Public Necessity (complete defense)
--- When D’s interference is done to protect the general public / community at large.
--- D need not be public employee.
--- Complete privilege → D has NO liability.
2. Private Necessity (incomplete defense)
--- D’s interference is done to protect a private interest.
--- Person is allowed to prevent injury to himself/property by interfering with another person/property if there is no way of preventing the harm.
--- Incomplete privilege → D still liable for damages caused.
50
Tell me about "Recovery of Property/Chattel" as a defense?
- When someone dispossesses you of property, you’re allowed to use reasonable force to retrieve it.
- Must first demand for return before using force.
- Must have promptly pursued right after property was taken (fresh pursuit)
51
Tell me about "Defense of others" as a defense?
- You have the right to defend others from attacks.
* Majority: D can use reasonable force to defend others from attack if D has reasonable belief other is in danger. Allows for reasonable mistakes.
* Minority: D must step into the other person's shoes. Their right to defend is limited to the actual rights of the person being defended. D has right to defend using same force the original person would use. Ds intervene at their own risk (potential liability).
52
Tell me about Self Defense
A person has the right to use reasonable force to defend herself from a threatened battery
- Must have a reasonable belief that you’re threatened with force.
- Courts allow this defense even if you’re mistaken.
- Retreat?
--- Minority of jurisdictions require retreat before using deadly force, but MAJORITY don't.
- Insults, verbal threats don’t justify self-defense.... must be accompanied by threat of contact
53
What is joint and several liability
Under this doctrine, when two or more parties are responsible for the plaintiff’s injuries, the parties are jointly and severally liable. This means that the plaintiff can collect all of his damages from a single defendant and it is up to that defendant to seek contribution from the other defendants.
