Torts Flashcards
(119 cards)
1
Q
Prima facie case for. intentional tort
A
1) An act that is a volitional movement by the defendant
2) Intent must be either specific (acted intending to bring about certain consequences) or general (acting w with substantial certainty these consequences. will result. Does not need to intend the injury, though
3) Causation (result must be legally caused by D’s act
2
Q
What is the doctrine of transferred intent?
A
Applies when the D intends to commit a tort against one person but instead (i) commits a DIFFERENT tort against the same person, (ii) commits the same intended tort against another person, or (iii) commits a different tort against a different person.
3
Q
With what torts may transferred intent be invoked?
A
Only if both the tort intended and the tort that resulted were one of the following:
a) assault
b) battery
c) false imprisonment
d) trespass to land
e) trespass to chattel
4
Q
Is incapacity or incompetence a good defense against the intent requirement in tort law?
A
No. Everyone is “capable” of intent
5
Q
Elements of battery
A
a) harmful of offensive contact
b) to the plaintiff’s person
c) intent and
d) causation
6
Q
Must contact be direct and to the plaintiff’s actual body to constitute harmful or offensive contact?
A
No, it can be indirect, e.g., setting a trap, and it can be anything connected to the plaintiff’s person, including clothing or a purse.
7
Q
Are damages required to recover under battery?
A
No, plaintiff can recover nominal damages even if actual damages are not proved.
8
Q
Elements of assault
A
1) an act by D creating reasonable apprehension in plaintiff
2) of immediate harmful or offensive contact
3) intent and
4) causation
9
Q
How must apprehension be shown in assault?
A
The P must be aware of the threat from the D’s act, even if they don’t know their identity
10
Q
Elements of false imprisonment tort
A
1) an act or omission on the part of D that confines or restrains P to a bounded area
2) intent and
3) causation
11
Q
Must P be aware of the confinement in order to constitute false imprisonment?
A
Yes, P must know of the confinement or be harmed by it
12
Q
What are the elements of the prima facie case of intentional infliction of emotional distress?
A
I) An act by D amounting to extreme and outrageous conduct
Ii) intent or recklessness
iii) Causation
iv) damages = SEVERE emotional distress
13
Q
What is the extreme and outrageous conduct required for IIED?
A
conduct that transcends all bounds of decency.
14
Q
Causation of IIED in bystander cases
A
When D causes physical harm to a third person and P suffers from it, the P may recover by showing EITHER the prima facie case elements of emotional distress OR that (i) she was present when the injury occurred, (ii) she was a close relative of the injured person, and (iii) the D knew facts I and ii.
15
Q
Prima facie case of trespass to land
A
i) physical invasion of plaintiff’s real property
ii) intent
iii) causation
16
Q
Does an intangible matter, e.g., vibrations or strong odor, constitute a physical invasion?
A
No. But P may have a case for nuisance
17
Q
Can someone with constructive possession of the land maintain a trespass to land tort?
A
Yes.
18
Q
Elements of trespass to chattels
A
(i) an act by D that interferes with P’s right of possession in a chattel
(ii) intent
(iii) causation and
(iv) damages.
19
Q
Is D’s mistaken belief that he owns the chattel a defense against trespass against chattel?
A
No.
20
Q
What are the elements of the tort of conversion?
A
(i) An act by D that interferes with P’s right of possession in a chattel
(ii) intent
(iii) causation
(iv) damages – an interference serious enough in nature or consequences to warrant that D pay the chattel’s full value
21
Q
What are the available remedies to conversion?
A
Damages = FMV at time of conversion or
Possession = replevin
22
Q
What are six defenses to intentional torts?
A
1) Consent, including apparent consent
2) Self defense
3) Defense of others
4) Defense of property
5) Privilege of arrest
6) Necessity
23
Q
Is there a duty to retreat before invoking self-defense?
A
Majority rule is there is no duty to retreat; modern trend is to impose the duty before using deadly force if this can be done safely, UNLESS THE ACTOR IS IN THEIR HOME
24
Q
Is self-defense available to the initial aggressor?
A
No, unless the other party responds to non deadly force with deadly force
25
Is a reasonable mistake allowed as to the existence of danger when using the defense of self-defense?
Yes.
26
When is the defense of others available?
When the actor reasonably believes that the other person could have used force to defend themselves.
27
Is a reasonable mistake allowed as to the whether the other person is being attacked or has a right to defend themselves in the defense of others defense?
Yes, it is allowed
28
When is the defense of property defense available?
One may use reasonable force to prevent the commission of a tort against her real or personal property, but a request to desist or leave must be made first unless it clearly would be futile or dangerous.
29
is the defenses of property available against one with a privilege?
No. When an actor has privilege to enter one the land of another because of necessity, recapture of chattels, etc., then that privilege will supersede the privilege of the land possessor to defend her property.
30
Is mistake allowed in defense of property?
A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is NOT allowed as to whether the entrant has a privilege that supercedes defense of property
31
How much force may be used in defense of property?
Reasonable force but NOT force causing death of serious bodily injury unless the invasion of property also entails a serious threat of bodily harm.
32
Can one use force to reenter land wrongly possess?
At common law, yes, but now, no. There are summary proceeders such as ejectment for recovering possession of real property
33
Recapture of chattel as a defense to another intentional tort, e.g., assault, battery, or trespass to chattel?
When another's possession began lawfully, one may only use peaceful means to recover the chattel. Force may only be used when in hot pursuit of one who has obtained possession wrongfully, e.g., by theft
34
May one use force to recapture chattel in the hands of an innocent third party?
No.
35
When may a D enter onto land to remove chattel?
Privileged to enter onto the land and reclaim chattels, after first making a demand for their return (and this is true both for the land of the wrongdoer AND when the chattels are on the land of innocent party, so long as the owner gave notice.
36
What if chattels are on the land of another through the owner's fault, e.g., letting cattle wander, then is there a privilege to enter onto the land?
NO, they must be recovered only through the legal process.
37
Is mistake allowed regarding D's right to recapture the chattels or enter onto the land of another's?
No.
38
How much force may be used to recapture chattels?
Reasonable force not including force sufficient to cause death or serious bodily harm.
39
When do private citizens have the privilege of arrest?
When it's a felony: felony in fact must have been committed and the citizen must reasonably believe the person he arrests committed it.
When it's a misdemeanor: there must be a breach of peace and committed in the arresting party's presence
40
Conditions creating privilege of a shopkeeper to detain a suspected shoplifter for investigation
1) there must be a reasonable belief as to fact of theft
2) the detention must be conducted in a reasonable manner and only non deadly force can be used
3) must be for a reasonable period of time and only for the purpose of making Ian investigation.
41
Defense of necessity + the two types
A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury fro ma natural or other force and when the threatened injury is substantially more serious than the invasionn that is undertaken to avert it.
Two types = public and private
42
What is public necessity
When the act is for public good.
43
What is private necessity
When the act is solely to benefit a limited number of people.In that case, the actor must pay for any injury he causes (unless it was to benefit the property owner).
44
What are the elements of common law defamation?
1) defamatory language
2) of or concerning the plaintiff
3) publication thereof by defendant to a third person and
4) damage to the plaintiff's reputationn
45
What are the constitutional requirements of defamation?
in addition to the common law elements, if the defamation involves a matter of public concern, then the constitution requires the plaintiff to also prove
1) falsity of the defamatory language and
2) fault on the part of the D.
46
Can a deceased person be defamed?
No. Defamation of a deceased person is not actionable.
47
What is the requisite intent for defamation?
The intent to publish, aka, share with some third party, not the in intent to defame.
48
Is there defamation when a defamatory statement about plaintiff is made only to the plaintiff?
No, because there's no publication.
49
Is one who repeats a defamation liable to the same extent as the primary publisher, even if they make it clear they don't believe the defamation?
Yes.
50
What are the damages required to be proved in a defamation suit
It depends one the type of defamation.
If it's libel, written or printed publication of defamatory language, then plaintiff does not need to prove special damages and general damages are presumed.
If it's slander, spoken defamation, then the plaintiff must prove special damages, UNLESS it falls within slander per se categories.
51
What are the slander per se categories?
Statements that
1) adversely reflect on one's conduct in a business or profession
2) one has a loathsome disease
3) one is for was guilty of a crime involving moral turpitude (most common law crimes)
4) a woman is unchaste
52
When the defamation involves a matter of public concern, what else must the P prove?
1) falsity of the statement and
2) fault on the part of the defendant.
53
What is the level of fault required on the part of the defendant
It depends on the status of the plaintiff. If they are a public figure, then they must prove actual malice. If they are a private person, then must prove negligence if matter of public concern.
54
What is actual malice in the constitutional analysis for defamation?
knowledge that the statement was false or reckless disregard as to whether it was false.
55
In constitutional defamation cases, where the P is a private person and the D was negligent, what damages are recoverable? What about when actual malice found?
Only "actual injury" damages if just negligence. If actual malice, then damages are presumed and punitive damages allowed.
56
What constitutes actual injury?
Not just economic injury but also damages for impairment to reputation and personal humiliation, so long as the plaintiff presents evidence of such damages.
57
What are four defenses to defamation?
1) Consent
2) Truth (where P does not need to prove falsity, because it's not concerning a matter of public concern)
3) Absolute privilege --> remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by federal executive officials, in "compelled" broadcasts, and between spouses.
4) Qualified Privilege
58
What are the four branches of invasion to the right of privacy?
1) appropriation of plaintiff's picture or name -- unauthorized use of plaintiff's picture of name for D's commercial advantage
2) Intrusion on plaintiff's affairs or seclusion -- the act or prying or intruding must be highly offensive to a reasonable person and the thing into which there is an intrusion must be private.
3) Publication placing the plaintiff I a false light -- attributing views to Plaintiff that he does not hold and the "false light" must be highly offensive to a reasonable person
4) Public disclosure of private facts about plaintiff -- public disclosure must be highly offensive to a reasonable person. May attach even if the statement is true.
59
Do you have to prove special damages under the tort of invasion of the right of privacy?
No. Emotional distress and mental anguish are sufficient
60
Is truth a defense to the tort of invasion of the right of privacy?
no.
61
Does the right of privacy extend to family members?
No.
62
Does the right of privacy survive past death?
No.
63
Elements of intentional misrepresentation
1. Misrepresentationn of a material past or present fact
2. Scienter, ie., when D made the statement, she knew or believed it was false or that there was no basis for the statement
3. Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation.
4. Causation (actual reliance)
5. Justifiable reliance
6. Damages (P must suffer actual pecuniary loss)
64
Negligent misrepresentation
1) Misrepresentation by defendant in a business or professional capacity
2) Breach of duty toward a particular plaintiff
3) Causation
4) Justifiable reliance
5) Damages
Must generally be in a commercial setting
65
Interference with business relations
1) existence of valid contractual relationship between P and third party
2) defendant's knowledge of the relationship or epectancy
3) Intentional innterference by D inducing a breach or termination of relationship or expectancy and
4) Damages
Interference may be privileged if D is in the same business, they used commercially acceptable means of persuasion or has a financial interest in the third party.
66
Prima facie case of negligence
1) a duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against unreasonable risk of injury
2) A breach of that duty
3) The breach is the actual and proximate cause of plaintiff's injury and
4) Damage
67
To whom is a duty of care owed?
All foreseeable plaintiffs
68
When confronted with negligence questions, always ask these two initial questions:
1) Was the plaintiff foreseeable?
2) If so, what is the applicable standard of care
69
Is a rescuer a foreseeable plaintiff?
Yes, but firefighters and police officers might be barred by the "firefighters rule" from recovering for injuries caused by risk of rescue
70
Wrongful birth/wrongful pregnancy torts
Parents (not child) may recover damages for any additional medical expenses and for pain and suffering from labor. Not ordinary child-rearing expenses
71
What is the basic standard of care?
A reasonable person. It is objective standard, i.e., one's conduct is measured against what the average person would do.
72
Child's standard of conduct
Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. Children under 5 usually without capacity to be negligent.
73
Common carriers' standard of conduct
Held to a very high degree of care, i.e., liable for slight negligence towards passengers or guests
74
Bailment duties (i.e., someone loans their car to someone else)
Duties owed by bailee -- depends on who benefits from the bailment (i) for sole benefit of the bailor, there is a low standard of care; (ii) sole benefit of bailie there is a high standard of care, and (iii) for mutual benefit, e.g., bailment for hire), there is an ordinary care standard.
75
Duty owed to trespassers
No duty is owed to undiscovered trespassers. As to discovered or anticipated trespassers, the landowner must (1) warn of or make safe CONCEALED unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm and (2) use reasonable care in the exercise of "active operations." No duty for natural condition or less dangerous artificial conditions.
So, landowner makes a bear trap and disguises it. Have to warn or make safe.
76
Attractive nuisance doctrine
Court-imposed requirement that a landowner exercise ordinary care to avoid a reasonable forseeable rissk of harm to children caused by dangerous conditions on his property. Generally artificial but occasional natural condition will suffice. Four requirements for doctrine to apply:
1) a dangerous condition on the land the owner is aware of
2) the owner knows or should know children frequent the vicinity of the condition
3) the condition is likely to cause injury, ie is dangerous because of the child's inability to appreciate the risk
4) the expense of remedying the situation is slight compared with the magnitude of the risk.
77
Duty owned to licensees
1) warn or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee. and that the licensee is unlikely to discover and (ii) exercise reasonable care in the conduct of active operations.
78
What is a licensee?
Someone who enters onto the land with the possessor's permission for her own purpose or business, including social guests.
79
Duties owed to invitees
1) Warn or make safe dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover AND also a duty to make reasonable inspections to discover nonobvious dangerous conditions and thereafter, make them safe.
80
What are the duties or lessors and lessees
Lessee has a general duty to maintain the premises. Lessor must warn of existing defects of which he is aware or has reasons to know, and which he knows the lessee is not likely to discover on reasonable inspection. If lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable.
81
When will a statutory standard of care replace a more general common law duty?
1) the P is within the protected class and
2) the statute was designed to prevent the kind of harm suffered by the P
82
What is the duty to avoid negligent infliction of emotional distress and when may it be breached?
May be breached when defendant creates a foreseeable risk of physical injury to the plaintiff. In order to prevail, the plaintiff (i) must be within the "zone of danger" and (ii) the plaintiff must suffer physical symptoms from the distress (severe shock to the nervous system that causes physical symptoms will satisfy the requirement)
83
When can a bystander not in the "zone of danger" recover for negligent infliction of emotional distress after seeing injury to another?
One who sees the defendant negligently injuring another can recover damages for her own distress as log as 1) the plaintiff and the person injured are closely related; (ii) the plaintiff was present at the scene of the injury and (iii) the P personally observed or perceived the event. most states drop the requirement of physical symptoms
84
Assumption of duty by acting
One may assume a duty to act once they start undertaking aid
85
How may plaintiff show proof of breach in a negligence case (3 theories)
1. Custom or usage (BUT although certain behavior is custom in an industry a court could still find the whole industry is acting negligently)
2. Violation of a statute (negligence per se)
3. Res ipsa loquitur
86
What is res ipsa loquitur
1) the accident causing the injury is a type that would not normally occur unless someone was negligent and
2) the negligence is attributable to defendant
Often can be shown by evidence that the instrumentality causingn the injury was in the exclusive control of the D.
87
What is "actual cause" in torts + 3 tests
once negligent conduct is shown, plaintiff must show that the conduct was the cause of his injury
- "but for" test
- substantial factor (when several causes bring about an injury)
- Alternative causes -- acts but only one caused the injury and it's not known which one. Burden shifts to D to show his negligence was not the actual cause
88
What is proximate cause
Legal causation. The doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one's acts.
General rule is scope of foreseeable risk: A D is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.
89
When is D NOT liable under proximate cause theory?
Unforeseeable results caused by foreseeable intervening forces and unforeseeable results caused by unforeseeable intervening forces.
90
Measure of damages
- personal injury
- property
- punitive damages
Personal injury: P compensated for all damages (past, present, and protective), both economic damages, e.g., medical expenses, and noneconomic damages, e.g., pain and suffering and emotional suffering.
Property: measure of damage is reasonable cost of repair or FMV at the time of the accident if the property is nearly destroyed.
Punitive damages: punitive damages typically are not available but may be recoverable if D's conduct was reckless.
91
What is contributory negligence
Defense to negligence; it is negligence on the part of P that contributes to her injuries. In CL it was a complete bar for recovery
92
When is contributory negligence not a defense to negligence proved by D's violation of an applicable statute?
When the statute was designed to protect the class of plaintiffs from their incapacity or lack of judgment, e.g., children in a school zone hit by speeding car of D.
93
Last clear chance doctrine
Essentially it's a P's rebuttal to the defense of contributory negligence and it's the principle that P can recover despite contributory negligence. It's the principle that the person with the last clear chance to avoid an accident but fails to do so is liable for negligence.
94
Comparative negligence
Under comparative negligence, Plaintiff's contributory negligence is not a complete bar to recovery; rather, the trier of fact weighs P's negligence and reduces damages accordingly.
95
Pure v. partial comparative negligence
Pure = P can recover no matter how great her negligence
Comparative = P can recover only if Ds' negligence was greater than Ps
96
Two instances of strict liability
1) Trespassing animals
2) Abnormally dangerous activities
97
When will courts find an activity abnormally dangerous?
1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
2) the activity is not a matter of common usage in the community
98
strict liability =
Elements of strict liability
liability without fault. Doesn't matter how much care defendant gave.
Elements = 1) nature of defendant's activity imposes an absolute duty to make safe; 2) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff's injury; 3) the plaintiff suffered damage to person or property
99
What are the five theories of liability a plaintiff may use in a products liability case?
1) intent
2) negligence
3) strict liability
4) implied warranties of merchantability and fitness for a particular purpose
5) representation theories (express warranty and misrepresentation)
100
Common elements of products liability cases
1) a defect
(2) that was present when the product left D's control.
In almost all cases there will be no contractual privity between D and P, and that is fine. Any foreseeable plaintiff, including a bystander, can sue any commercial supplied in the chain of distribution.
101
Liability based on intent
Is very uncommon because typically it will be a battery case. But D will be liable to anyone injured by an unsafe product if D intended the consequences or knew they were substantially certain to occur.
102
Product liability based on negligence
To whom is duty of care owed?
Same as any negligence case -- duty, breach, actual and proximate cause, and damages.
Any foreseeable plaintiff
103
Elements of product liability based on strict tort liability
1) a commercial supplier of a product; 2) producing or selling a defective product; 3) actual and proximate cause; 4) damages
104
Are disclaimers effective in products liability cases?
No, not in negligence or strict liability cases
105
Implied warranty of merchantability
implied in every sale of good that the godos are of average acceptable quality and geenrally fit for the ordinary purpose for which the goods are used
106
Implied warranty of fitness for a particular purpose
Aries when seller knows or has reason to know the particular purpose for which goods are required and buyer is relying on the seller's skill and judgment in selecting the goods.
107
Representation theories (2)
1) Express warranty (anyone can sue, including bystanders, so long as someone relied on the express warranty)
2) Misrepresentation of fact -- material misrepresentation of fact and seller intended to induce reliance by the buyer in a particular transaction.
108
Is nuisance a separate tort?
No. It is a type of harm
109
Private nuisance definition
a substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or has a right of immediate possession.
110
What is substantial interference?
Interference that is offensive, inconvenient, or annoying to the average person in the community
111
What is unreasonable interference
The severity of the inflicted injury must outweigh the utility of defendant's conduct. In balancing interests, the courts take into account that every person is entitled to use his ownn land in a reasonable way, considering the neighborhood, land values, annd existence of any alternative courses of conduct open to D.
112
Public nuisance definition
An act that unreasonable interferes with the health, safety, or property rights of the community, e.g., using a building for criminal activities such as prostitution. Recovery by a private party is available only if the private party suffered unique damage not suffered by the public at large.
113
Abatement by self help
In the case of private nuisance, self-help abatement is available after notice to defendance and his refusal to act. Only necessary force may be used.
114
What is vicarious liability?
Liability that is derivatively imposed. One person commits a tortious act against a third party and another person will be liable to the third party.
115
Basic situations of vicarious liability (3)
(1) Employee/servant -- employer vicariously liable if tortious act was within the scope of employment relationship
(2) independent contractor -- employer of independent contractor not vicariously liable unless activity is inherently dangerous or duty is nondelegable on public policy grounds.
(3) Partner or joint venturer -- liable if within the scope of the partnership
116
Joint and several liability
each negligent actor liable to plaintiff for entire damage incurred.
117
What is satisfaction?
Full payment of damages. Only 1 satisfaction is allowed.
118
What is release?
discharge of tortfeasors. In most states release of one tortfeasor does not discharge others.
119
Contribution
Apportionment of damages between defendants to a P. Rule of contribution allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for excess.
