Torts Flashcards
(89 cards)
1
Q
Intentional Torts
A
Prima Facie case: D intentionally acts (specific or general) with desire to cause a legally forbidden consequence
In general incapacity cannot be used and hypersensitivity is ignored.
2
Q
Tranferred Intent
A
When D tried to commit a tort against a person but instead: commits a different tort against same person, commits same tort against different person, or commits different tort against different person. But only applies to: intentional torts
3
Q
Battery
A
Elements: D intentionally caused a harmful or offensive contact w/ P’s person.
4
Q
Offensive contact
A
contact unpermitted by an ordinary sensitive person
5
Q
P’s person
A
anything P is touching or holding at the time the event occurs
6
Q
Causation (Intentional tort)
A
Indirect contact is enough
7
Q
Assault
A
Elements: D must intentionally cause P to be in reasonable apprehension/anticipation of an immediate battery
8
Q
Apprehension
A
knowledge or awareness but does not need to be afraid
9
Q
Immediate
A
words alone are not enough, needs D’s conduct. Even when menacing conduct is present, words can negate it.
Present ability to do so
10
Q
False imprisonment
A
Elements: An act or omission on the part of D that intends to confine or restrain P to bounded area
11
Q
Act of restraint
A
physical barrier, threats, failure to act if preexisting duty existed, time is irrelevant
12
Q
Awareness: false imprisonment
A
P must be aware of act. Unless P is injured awareness not required.
13
Q
Bounded area
A
area does not need to be specific but must have no reasonable means of escape that P can discover. (dangerous, disgusting, humiliating, hidden)
14
Q
Intentional infliction of emotional distress
A
Elements: extreme and outrageous conduct intended by D causing P severe distress
15
Q
Extreme and outrageous
A
must exceed all bounds of decency tolerated by civilized society. Thus mere insults are not enough. Even if conduct is not enough, it can become so if: 1. Repetitive in nature, 2. Directed at children, Elderly, or pregnant women, 4. Committed by innkeeper or common carrier. 5. Supersensitive if known to D.
16
Q
Severe distress
A
some evidence is required but no specific kind. Careful of facts that negate sever distress (P is unbothered)
17
Q
Trespass to land (not strict liability)
A
Elements: D must commit intentional act of physical invasion of D’s land
18
Q
Physical invasion
A
walk/drive/fly overland even if unaware it is someone else’s land or if you throw something tangible onto the land even if not destructive
19
Q
Anothers property
A
includes land beneath and air above property within reasonable distance
20
Q
Trespass to chattels/conversion
A
Elements: intentional interference with personal property of another
21
Q
property Interference
A
if minor then use trespass but if major you use conversion
22
Q
Damages related to trespass to chattel/conversion
A
- Chattels: Cost of repair
2. Conversion: full market value of item.
23
Q
Consent (Intentional Torts)
A
Consent can be overridden if fraud/duress exists and if the P does not have the mental capacity.
24
Q
Implied consent
A
- Custom or usage: P voluntarily engages in conduct where invasion are routine (sports) or if D reasonably interprets P’s objective conduct and surrounding circumstances.
- If you exceed scope of consent then it is waived.
25
Express consent
1. Explicit words that allow one to act in a given way.
| a. Oral, written but if P made a mistake and you knew of it, consent invalid
26
Protective privileges
| Self-defense, defense of others, defense of property
Rule: D needs to objectively reasonably believe that threat coming from P is imminent or in progress and can use force reasonably necessary to protect themselves, others, or their personal property, against injury.
P cannot act to soon or too late
Defense of others: can use force to defend another when actor reasonably believes the other person could have used force to defend himself, (Proportional force)
27
How much force can be used for protective defenses
P can use force that is proportional to imminent threat.
1. Deadly force allowed to prevent SBI,
2. No requirement to retreat,
3. Not allowed to protect property unless someone enters home there is a presumption there are a danger. Garage is iffy. If attached can use deadly force but if not, questionable.
4. Reasonable mistake is allowed
28
Necessity
Rule: person may interfere with real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
29
Public necessity
emergency situation and D commits a property tort to mitigate disaster is an absolute defense.
30
Private necessity
arises in an emergency to protect the interests of his own or someone else. However, D remains liable for any harm he does to someone else’s property. No nominative or punitive damages.
31
Negligence
P must show D owed P a duty, D breached the duty, causation and damages
32
Duty
Rule: A legally imposed obligation to take risk reducing precautions for the benefit of others.
Who is “others”: foreseeable victims w/in the zone of danger but not those outside of it.
1. Rescuers exception: duty owed to rescuers even if rescuer does not start w/in zone of danger.
What standard: RPP w/in similar circumstances. Disabilities, mental illness are not taken into account but can include D’s physical characteristics where relevant (blind RPP)
33
Specialized care:
| Children
children under age of 5 owe no standard of care but those between 5 and 16 owe a standard of care similar to kids of same age, experience, and intelligence unless engaged in adult activities.
34
Specialized care: professionals
standard of care is that of those in same profession and in good standing in similar circumstances
35
Specialized care:
| common carriers/innkeepers
liable for slight negligence to guest or passenger
36
Specialized care:
| premises liability
Unknown trespasser: person who comes on land without permission and LO does not know they are there.
i. No duty is owed
Known or anticipated trespasser: someone you expect to trespass (on test will be told there is a pattern.
i. Duty: needs to protect from hazards that:
Are artificial, highly dangerous, not open and obvious, and are known by D.
Licensees: persons who come on to land with either express or implied permission w/out economic purpose.
i. Duty: protect from any concealed condition tha tis known to the D.
Invitee: Person enters premises w/ express or implied permission for economic purpose or land is held open to the public.
i. Duty to protect from hazardous conditions concealed to invitee and the property owner knew or should have known through reasonable inspection
37
how to satisfy duty owed by LO
Duty can be satisfied by eliminating hazardous condition or giving adequate warning.
Exception: firefighter rule: no duty for risks inherent to the job.
Exception: trespassing children: attractive nuisance i.e. Artificial hazards
1. P must show there is a dangerous condition on the land that LO knows or should know about, the LO knows or should know children frequent the vicinity of the condition
3. the condition is likely to cause injury ( child unable to appreciate risk)
4. dangers outweigh expense to remedy situation
38
negligence per se
a. P must be within class that the statute intended to protect
b. Statute designed to protect from type of harm suffered.
c. Exception: can’t use statute if compliance is more dangerous or it is impossible to comply
39
Affirmative duty to act
a. In general no affirmative duty to act but must act reasonable under the circumstances if there is a prior relationship, or if D caused peril
b. Good Samaritan laws limit liability for careless rescues. Otherwise liable
40
7. Negligent infliction of emotional distress
a. There is no physical harm to P but P can recover if
i. Near miss: focus on fear and anxiety
1. D’s negligence placed P in zone of physical danger and as a result P suffered from subsequent physical manifestations.
ii. Bystander: Negligent D caused SBI to party not involved (grief)
1. P and direct physical victim are close family members and P was physically present to incident.
iii. Business relationship:
1. Must have preexisting business relationship and
2. It was highly foreseeable that careless performance by D will produce emotional distress.
41
Breach
Rule: D’s conduct fell below the required standard of care.
| Plaintiff must be able to point to act or omission (explain why the conduct falls short)
42
Res ipsa loquitor
1. The accident is normally associated with negligence
2. And the negligence is attributable to D (D had exclusive control in injury causing instrument)
3. cannot be attributed to P or 3rd person
43
causation
P must show the breach was the factual and proximate cause of the breach
44
Factual Cause
P must show a connection between breach and harm (but for test)
45
substantial factor test
D is liable if breach substantially contributed to P’s injuries
a. Multiple negligent acts and either one alone would be enough to cause injury. (joint and several liability
46
Unascertainable cause
multiple negligent acts but only one is caused the injury. Burden shifts to Ds to show their negligent act is not the actual cause
47
Proximate cause
fairness: Rule: a limitation on liability. Whether the harm caused by D was foreseeable
48
Direct cause cases
when there is an uninterrupted chain of events, D is liable for all foreseeable damages regardless of the manner on which they arose
49
Indirect causes
arises when an intervening force combines with D’s act and causes P’s harm
50
ID: Foreseeable results caused by foreseeable intervening forces
a. D liable for foreseeable harmful responses from a dependent intervening force.
b. Intervening foreseeable cause: P wins if
i. Medical malpractice
ii. Negligent rescue
iii. Protection or reaction forces
iv. Subsequent disease or accident
Or created a foreseeable risk that an independent intervening force would harm P.
c. Independent intervening forces:
i. Negligent 3rd person, criminal act of third person, act of god
51
2. Foreseeable results from unforeseeable intervening forces
Liable
52
3. Unforeseeable result caused by foreseeable intervening force
not liable
53
Damages
Rule: P must show they suffered actual harm or injury
| Eggshell plaintiff: take P as they come
54
Negligence defenses
Comparative negligence: D shows P failed to exercise care for their own safety and P’s recovery is reduced based on their percentage of fault. (reasonable prudence and statutes)
Assumption of risk: D avoids liability of D shows that P was aware of danger and proceeded despite the risk
55
Strict liability
Prima Facie Case: The nature of D's activity imposes the absolute duty to make safe, the dangerous aspect of the activity was the actual and proximate cause, of P’s injury
56
Injuries caused by animals
1. Domestic: no strict liability except if D has knowledge animal has dangerous propensity. Except D is never liable to trespassers
2. Wild animals: strict liability
57
Abnormally dangerous activities
Rule: 1. Type of uncommon activity that cannot be made reasonably safe even when exercising ordinary care. damage must come from its danger and 2. activity is not of common usage
b. Explosives, chemicals, radiation, nuclear materials, demolition
c. harm must result from the dangerous characteristics
58
Products liability
D is a merchant that routinely deals in goods of this type, the product is defective, product must not have been altered since leaving D's hands, product was used in a foreseeable way
59
Manufacturing defect
Product differs from all other products in way that makes it more dangerous than consumers would expect (quality control not a defenses)
60
Design
if a safer practical (utility), and economically feasible modification or alternative exists
61
information defect
product has hidden risks to users and no adequate warnings and instructions
must be a prominent, understandable, warning that mitigates risks
62
Liability based on intent
D liable to anyone injured by unsafe product if D intended consequences or knew they were substantially certain to occur
63
Liability based on negligence
negligence elements
1. Negligence:
a. Manufacturing res ipsa
b. Design defect: knew or should have known of danger as designed.
2. Causation: intermediary’s negligence in failure to discover defect is not a superseding cause unless conduct is above ordinary negligence
64
Liability based on implied warranties
Rule: Implied in every sale of goods is a warranty of merchantability and warranty of fitness for a particular purpose.
Elements: (1) warranty, (2) breach (product does not live up to either of the above standards), (3) causation, (4) damages (property, personal, and purely economic are all recoverable).
who: purchaser, family, guests, household
65
Implied Warranty of Merchantability
sellers warrants that the goods are of average acceptable quality (without defects) and generally fit for ordinary purposes
66
Fitness for a particular purpose
arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods.
67
strict liability defenses
Rule: comparative negligence or in traditional JX if P knowingly encountered situation
Government safety standards: compliance with govt standard is evidence tha the product is not defective but it is not conclusive.
Scientifically unknowable risks: D not liable for dangers not foreseeable at time of marketing
Unavoidably unsafe products: the manufacturer will not be liable for dangers that are apparent and there is no safer way to make the product
68
Nuissance
Rule: D’s unreasonable interference w/ P’s ability to use and enjoy their property
69
property
| Private nuissance
: substantial and unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession
70
Substantial interference
interference that is offensive, inconvenient, or annoying to the average person in the community. Ignore hypersensitivity, or specialized use of property.
71
Unreasonable
required for nuisance based on intent or negligence, the severity of the inflicted injury must outweigh the utility of D’s conduct.
72
Public nuissance
act that unreasonably interferes w/ health, safety, or property of the community. Recover only to a private party if they suffered a unique damage not suffered by public at large
73
nuissance defenses
P can recover if they came to the nuissance. Contributory negligence is available if P asserts negligence theory and acted negligently in creating nuissance
74
Vicarious liability
D is liable to 3rd party for another's tortious acts
75
Respondeat superior
Employer can be held liable if employee was acting w/in scope of employment
a. Detour=liability
b. Frolic= no liability
c. Intentional torts are outside scope but misuse of permitted force is within scoped
76
Independent contractor
traditionally the hiring party is not liable
a. unless contractor is working on premises of business owner and negligently hurts customer
b. engaged in inherently dangerous activities
77
multiple defendants
Joint and several liability: if P wins all D’s are liable. If one D pays more than their share, they can recover from other Ds
Indemnification: to be fully reimbursed, applies to
1. vicarious liable party
2. strict products liability against manufacturer
78
Loss of consortium
uninsured spouse can recover for
1. loss of household services
2. loss of companionship
3. loss of sex
79
Privacy and defamation
Elements: defamatory language of or concerning P publicized by D to 3rd person resulting in damage to P’s person
80
Defamatory language
language that adversely affects one’s reputation, deceased person’s defamed name is not actionable.
81
Of or concerning
a reasonable person would understand the defamatory statement as pertaining to the P. Colloquium: when language is not defamatory on its face, P can use extrinsic evidence
82
Publication
communication to third person who understands it. can be intentional or negligent. Intent is to publish not defame
83
Damage to one’s reputation
1. libel: written or printed publication P does not need to show special damages, general damages are presumed.
2. Slander: spokenP must show special damages unless statement falls under per se categories
a. Adversely affects one’s conduct in business or profession
b. Loathsome disease
c. One was guilty of crime involving crime of moral turpitude
d. Woman is unchaste
84
1st Amendment and defamation
Rule: when defamation involves matter of public concern, P must prove, in addition to CL elements, falsity and fault on D.
1. Falsity of statement and
a. P’s burden
2. Fault on D
a. If public figure, P must prove actual malice
i. PF: fame, notoriety or voluntarily assuming role in a certain public controversy
ii. Actual malice: knowledge statement was false or reckless disregard to truth
b. Private person but public concern must show negligence
i. Public concern: content, form and context of publication
85
Defamation defenses
Consent: complete defense
Truth: in private manner, D may prove truth as complete defense.
Absolute privilege: remarks during judicial proceeding, legislator during proceedings, federal executives in compelled broadcasts, or between spouses
Qualified: reports of official proceedings, statement in interest of publisher or recipient, common interest of publisher and recipient, lost if not w/in scope of privilege, or it is shown speaker acted w/ malice
86
Privacy
| Appropriation of P’s Picture or Name
unauthorized use of P’s picture or name for D’s commercial advantage. Liability is generally limited to ads or promotions of products or services. Mistake re: consent, even if reasonable is not a valid defense.
87
Privacy: Intrusion on P’s Affairs or Seclusion
act of prying or intruding must be highly offense to a reasonable person. Also, the thing into which there is an intrusion must be private taking pictures in public places are not actionable.
88
Privacy
| Publication of Facts placing P in False Light
exists where one attributes to P views he does not hold or actions he did not take. Must be highly offensive to a reasonable person under the circumstances. For liability to attach, there must be publicity. If first amendment, actual malice on D’s part must be proved.
89
Privacy
| Public Disclosure of Private Facts About P
The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability will attach even if the actual statement is true. First Amendment limitations apply if the matter is of legitimate public interest
