Torts Flashcards
Assault
An act by the defendant that creates reasonable apprehension in the plaintiff of an immediate harmful or offensive touching.
Apprehension
not simply fear, but knowledge that the defendant has the apparent ability to carry out the harmful or offensive touching (e.g., the defendant threatens plaintiff with an unloaded weapon, but plaintiff is
unaware it is unloaded - the defendant can still be liable for assault).
Immediacy
The plaintiff must be apprehensive that s/he is about to become a victim of an immediate battery. Mere words or threats of future acts are insufficient.
Note: Words must be coupled with conduct to create an overt act (e.g., shaking of
fist).
Note: Conditional words will defeat immediacy (“I will kill you tomorrow” will negate the immediacy requirement. However, see intentional infliction of emotional distress).
Battery
A defendant is subject to liability for battery if:
1) S/he acts intending to cause a harmful or offensive contact, or an imminent apprehension of such a contact; and
2) An offensive or harmful contact with the person directly or indirectly results.
Consent will be implied for ordinary contacts of everyday life. There is no tort liability where a defendant causes harmful or offensive contact without intent (e.g., where the contact is negligent, reckless, or with wanton disregard).
Offensive Contact
Contact is offensive if a reasonable person would be offended by such contact. (Note: If it has been consented to, then the contact is not offensive).
Harmful Contact
Anything connected to the plaintiff’s person. The
defendant does not have to touch the plaintiff. Also, contact can be direct or indirect. (Indirect is where the defendant sets in forth the harm-producing force (e.g., defendant puts poison in plaintiff’s tea and
plaintiff dies).
3) The plaintiff does not have to suffer actual harm. Plaintiff can receive at least nominal damages even where no actual injury.
4) Note: If a surgeon operates and performs any additional surgery, the additional operation may be considered a battery.
False Imprisonment
(Also consider: Shopkeeper’s Privilege, Unlawful
Arrest).
a. Rule: An act or omission by the defendant that confines or restrains the plaintiff in a bounded area.
b. Other Considerations
1) Act or Omission
a) Act: Threats that are persuasive to a person of ordinary sensitivity suffice (must be a realistic threat).
b) Omission: It can be an act of restraint (e.g., failing to help a handicapped person off of a plane).
2) Confinement/Restraint Requirement: Only counts if the plaintiff is (a) aware of it; or (b) is harmed by it (can be a mental harm or physical harm).
i) Exception: A defendant may be liable for false imprisonment if s/he confines a child or mentally incompetent person even when the victim is not aware of the confinement.
3) Bounded Area: Plaintiff’s freedom of movement must be limited in all directions. (Note: Blocking someone’s travel in one direction, moral pressure, or a barricade is not False Imprisonment).
4) Defenses
a) There must be no reasonable means of escape that the plaintiff can reasonably discover. However, the plaintiff is not expected to injure himself/herself in an attempt to escape. Also, it is irrelevant if the
confinement is only for a short time.
b) Note: Actual physical barriers are not required. There can be physical force, threats of present force, failure to release, and invalid use of legal authority.
Potential Defenses to False Imprisonment
1) Shopkeeper’s Privilege: There is no action for false imprisonment against a shopkeeper who detains a suspected shoplifter if:
a) There are reasonable grounds to believe a theft has occurred;
b) The detention is conducted in a reasonable manner (no deadly force
allowed); and
3) The detention is limited to a reasonable period of time to make an
investigation.
2) An Unlawful Warrantless Arrest: The general rule is that a private citizen may make an arrest without a warrant where there is a breach of the peace or it reasonably appears one is about to be committed. However, a warrantless arrest may constitute false imprisonment where the resulting confinement is without legal authority. Confinement can result no matter how brief a time interval is involved (make sure you put the proper elements for a citizen’s arrest here).
Res Ipsa Loquitur - What is it and elements?
The circumstantial evidence doctrine of res ipsa loquitur (“the thing speaks for itself”) deals with situations where the mere fact that an injury occurred can establish or tend to establish a breach of duty. Where the facts strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer that the defendant was probably negligent. Res ipsa loquitur requires the plaintiff to show: (i) an inference of negligence (i.e., that the accident causing the injury is the type that would not normally occur unless someone in the defendant’s position was negligent); (ii) negligence attributable to the defendant (i.e., evidence that this type of accident normally happens because of negligence, such as that the instrumentality that caused the injury was in the defendant’s exclusive control); and (iii) that the plaintiff is free from negligence, meaning the injury was not attributable to him.
Negligent infliction of emotional distress - Third-party recovery
(i) was in a close relationship with the person injured by the defendant; (ii) was present at the scene of the injury; and (iii) personally observed or perceived the event.
Negligence Summary (EA)
In order for a plaintiff to recover in a negligence cause of action, a plaintiff must establish the following elements 1) that s/he is a foreseeable plaintiff, 2) owed a duty or a special relationship that 3) the defendant breached 4)the actual and proximate cause of P’s injuries and 5) damages.
Cardozo view (negligence)
Duty owed to only those plaintiff’s that are 1) foreseeable and 2) in the physical zone of danger.
Andrew’s view (Negligence)
A duty to all is owed.
Foreseeable Plaintiff
One has a duty to prevent an unreasonable risk of harm to others
General Duty (Negligence)
Defendant has a duty to act as a reasonable and prudent person would in the same or similar circumstances to avoid causing unreasonable risk of harm to others.
Exceptions: 1) Those with superior knowledge and 2) cases where a person’s physical characteristics should be taken into account.
Special Duty (Negligence)
If there is a special duty of care then one will be liable for even slight negligence.
Children - Standard of Care
Children over the age of 4 are held to the standard of care of a reasonable child of like age, intelligence and experience.
Subjective standard
BUT children engaged in adult activities must meet the standard of care of an adult.
Children under 4 owe no duty at any time.
Doctors - Standard of Care
Doctors - Generalists: Held to a standard of care of a reasonable physician in the same or similar locality.
Doctors - Specialists: Held to a national standard of care and must conduct themselves as a reasonable specialist would nationally.
Professionals (Not includ. Doctors) - Standard of Care
Must possess the minimum, common skill of members in good standing in the profession. Professionals must act as a reasonable expert would in like or similar circumstances.
Negligence Per Se Elements
In order to establish a civil standard of care for violation of a criminal statute or civil statute, it must be established that 1) the plaintiff was in the class of persons that the statute or rule was designed to protect, 2) the injury was the type the statute or rule was designed to protect against, and 3) the defendant violated the statute and the plaintiff’s injury was caused by the violation.
Majority View: The prima facie elements of duty and breach for negligence per se are proven by the above three part test.
Common Carriers and Innkeepers
Common Carriers are held to a higher standard of care to prevent the risk of harm to others. Liable for even slight neglignece.
Automobile Guests
The standard of care will depend on the jurisdiction and whether the guest is paying or gratuitous. At common law the driver owes full duty of care in the operation of a vehicle.
Paying - driver will owe full duty of care.
Non-paying - Driver will be liable only for gross negligence.
Owners and Occupiers of Land
Liability will depend on the status of the person entering the land.
Owners and Occupiers of Land - Adult Trespassers
Generally - no duty is owed to make the premises safe.
Modernly - A full duty is owed, even to trespassers. Also, a land occupier owes a known adult trespasser a duty to warn of dangerous conditions on the land.
Owners and Occupiers of Land - Attractive Nuisance Doctrine
A land occupier is liable to children only if 1) The possessor knows or has reason to know that children are likely to trespass, 2) land occupier knows or has reason to know the condition is dangerous to children; 3) risk to the child outweighs the utility of maintaining the condition and the burden of eliminating the danger and 4) the child is too young to appreciate and understand the risk.
Owners and Occupiers of Land - Invitees
People who come onto the land to confer some benefit on the occupier, such as paying customers.
Invitees have a duty to inspect, warn and make safe dangerous conditions on the land.
Off Premises: No duty except for “unreasonably dangerous artificial conditions” or structures abutting the adjacent land.
Omissions to Act
Generally - does not result in liability.
Good Samaritan Rule
One who though under no legal duty to do so, aids a person who is in hurt or peril, must exercise due care not to worsen the victim’s situation.
Duty to Control Third Persons - Children
In general, parents are not vicariously liable for acts of a child committed in their presence or otherwise.
However, a parent is liable if they know or should have known of the child’s dangerous propensities and had an opportunity to exercise control over the child.
Duty to Control Third Persons- Bailment Duties
If the owner of the chattel permits a third person to use his chattel, the bailor will be liable for failure to exercise due care to prevent intentional or negligent acts of a bailee if committed in his or her presence, or if knows or has reason to know that such a bailee is likely to commit such an act.
Breach of Duty Test
Would a reasonable person do what the defendant did in the same circumstances?
Highly fact intensive. Take the standard of care and apply to facts to conclude if there’s a breach.
Res Ipsa Loquitur Elements
Elements:
1) The accident would not have occurred in the absence of someone’s neglect.
2) The event was caused by an instrumentality in the exclusive control of the defendant; and
3) Plaintiff did not contribute to his or her injuries
Causation
To be liable for negligence the defendant’s actions must have been the actual and proximate cause of the plaintiff’s harm.
Actual Causation
Once breach has been shown the plaintiff must show the defendant’s conduct was the cause of the harm.
- “But For” test: But for the breach, plaintiff would have escaped injury
- Substantial Factor: Where “But/For” test does not work / alternate test
- Multiple defendants and alternative causes approach: The burden of proof shifts to DEFENDANTS and EACH must show that his negligence is not the actual cause. If the Defendant’s cannot prove who caused it hten hold them jointly and severely liable.
Defamation
Prima Facie Case:
1) Defamatory language on the part of the defendant.
2) Of or concerning the plaintiff
3) Publication
4) Damage to the reputation of the plaintiff
and
5) Absence of any applicable defenses.
Defamatory Language
The statement must tend to adversely affect the plaintiff’s reputation but must be more than mere name calling.
There must be an allegation of fact that reflects negatively on a trait of character. Can be oral or written.
Publication
Means communication of the defamation to someone other than the plaintiff.
Publication can be made either intentionally or negligently.
It is the intent to publish, not the intent to defame that is the requisite intent.
Each repetition is a separate publication (but for mags, newspapers all copies are treated as one publication.
Publication liability
Primary publishers, authors, speakers, or ones who repeat the defamatory statement. Secondary publishers (ones selling newspapers or playing tapes) are only liable if they knew of the defamatory content.
Libel
Defamatory language that is written , printed or recorded in some permanent form (i.e. TV or radio).
P does not need to prove special damages and general damages are presumed.
In a minority of jurisdictions, libel per se (defamatory on its face) and libel per quod (not defamatory on its face and extrinsic evidence is needed to prove that the statement was damaging to the plaintiff) are distinguished.
Slander
Slander is spoken defamation
Plaintiff must prove special damages.
Special Damages
Economic, non-emotional damages.
Such as damage to a plaintiff’s business, occupation, profession and or property. Special Damages means the plaintiff must have suffered some pecuniary loss in order to recover anything unless the defamation falls withing one of the Slander Per Se Categories.
Slander Per Se
A statement is slander per se if the defendant makes a statement that:
1. Adversely reflects on one’s conduct in a business or profession
2. Plaintiff has a loathsome disease
3. Plaintiff is guilty of a crime involving moral turpitude or
4. A woman is unchaste.
Libel v. Slander
Look at the permanency, the area of dissemination and the deliberate character of the publication.
Where the original defamation is libel any repetition, even if oral will also be libel. If the repetition is written, however, it will still be libel.
Falsity
In a case where plaintiff is constitutionally required to prove some type of fault, plaintiff also has burden of proving falsity
If a statement of public interest is true, plaintiff has no cause of action.
Fault
Type of fault to prove depends on plaintiff’s status
A public official or public figure: must prove malice
- Becomes a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a public controversy.
Malice for Defamation
1) Knowledge the statement is false or
2) Reckless disregard as to whether it was false.
- A subjective test. Spite or ill will not enough. Defendant must be subjectively aware that the statement published was false or that she was subjectively reckless in making the statement.
NOTE: Quote changes may be malice if alteration causes a material change in the meaning.
Private Persons do not need to prove malice - only negligence regarding falsity must be proven if the statement involves a matter of public concern.
Defamation Defenses:
Consent, Truth, Absolute Privilege.
Intent
All intentional torts require the element of intent. If acting with purpose or goal to produce the forbidden result –> intent will be met.
Battery
1) an act intending to cause a harmful or offensive contact, or an imminent apprehension of such a contact and
2) an offensive or harmful contact with the person directly or indirectly results.
Assault
1) an act by the defendant that creates a reasonable apprehension in the plaintiff
2) of an immediate harmful or offensive touching
*Merges into battery
False imprisonment
1) An act or omission that confines or restrains the plaintiff and
2) the result must be confinement of the plaintiff in a bounded area.
Intentional Infliction of Emotion Distress
Defendant must engage in conduct that is outrageous and the plaintiff must suffer extreme emotional distress.
Intent can be recklessness.
The Duty to avoid causing emotional distress to another is breached when the defendant creates a foreseable risk of physical injury to the plaintiff by either
1) causing a threat of physical impact that leads to emotional distress or
2) directly causing severe emotional distress that by itself is likely to result in physical symptoms.
General Duty - Children
- Under the age of 4: No duty of care
- 4 thru under 18: Must exercise the amount of care that would be exercised by a child of like age, education, intelligence and experience acting under similar circumstances.
Duties owed by bailor
Bailor (one who leaves goods in the custody of another):
a. Gratuitous bailment - Must inform ONLY of KNOWN dangerous defects in the chattel.
b. Bailment for Hire - Must inform of chattel defects of which he is or should be aware.
Duties owed by bailee
Bailee (one responsible for hte safekeeping + return of property.
a. For the sole benefit of the bailor: low standard of care
b. For the sole benefit of the bailee: high standard of care
c. Mutual benefit: Ordinary standard of care.
Duty to control third persons
No duty.
Reasonable Person Test
Where defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. Whether the duty is breached is a question for the jury.
Proximate Cause
Direct Causation: Where there is an uninterrupted chain of events from the negligent act to the plaintiff’s injury, defendant is liable for all foreseeable harmful results
Indirect Causation: Where an intervening force (act by 3rd party/God) comes into motion AFTER Defendant’s negligent act and combines with it to commit Plaintiff’s injury. There intervening forces are either foreseeable or not.
Eggshell Plaintiff
Defendant takes plaintiff as they find them - even if severity of damages was unforceable.
Negligence Damages
- Personal Injury: Plaintiff to be compensated for all his damages (past, present and prospective) both special and general.
- Property Damage: Reasonable cost of repair or if property nearly destroyed, fair market value at the time of the accident.
- Punitive Damages: Plaintiff may recover if Defedant’s conduct is wanton and willful
Duty to Mitigate
In all cases, PLaintiff has a duty to take reasonable steps to mitigate damages (ie seek appropriate treatment, “avoidable consequences rule”).
Strict Product Liability Elements
1) Existence of an absolute duty on the part of the defendant to make safe; 2) breach of that duty 3) The breach of the duty was the actual and proximate cause of the plaintiff’s injury and 4) damage to the plaintff’s person or property.
