Torts Flashcards
(156 cards)
1
Q
Assault
A
An act by the defendant that creates reasonable apprehension in the plaintiff of an immediate harmful or offensive touching.
2
Q
Apprehension
A
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).
3
Q
Immediacy
A
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).
4
Q
Battery
A
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).
5
Q
Offensive Contact
A
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).
6
Q
Harmful Contact
A
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.
7
Q
False Imprisonment
A
(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.
8
Q
Potential Defenses to False Imprisonment
A
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).
9
Q
Res Ipsa Loquitur - What is it and elements?
A
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.
10
Q
Negligent infliction of emotional distress - Third-party recovery
A
(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.
11
Q
Negligence Summary (EA)
A
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.
12
Q
Cardozo view (negligence)
A
Duty owed to only those plaintiff’s that are 1) foreseeable and 2) in the physical zone of danger.
13
Q
Andrew’s view (Negligence)
A
A duty to all is owed.
14
Q
Foreseeable Plaintiff
A
One has a duty to prevent an unreasonable risk of harm to others
15
Q
General Duty (Negligence)
A
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.
16
Q
Special Duty (Negligence)
A
If there is a special duty of care then one will be liable for even slight negligence.
17
Q
Children - Standard of Care
A
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.
18
Q
Doctors - Standard of Care
A
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.
19
Q
Professionals (Not includ. Doctors) - Standard of Care
A
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.
20
Q
Negligence Per Se Elements
A
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.
21
Q
Common Carriers and Innkeepers
A
Common Carriers are held to a higher standard of care to prevent the risk of harm to others. Liable for even slight neglignece.
22
Q
Automobile Guests
A
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.
23
Q
Owners and Occupiers of Land
A
Liability will depend on the status of the person entering the land.
24
Q
Owners and Occupiers of Land - Adult Trespassers
A
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.
25
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.
26
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.
27
Omissions to Act
Generally - does not result in liability.
28
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.
29
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.
30
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.
31
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.
32
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
33
Causation
To be liable for negligence the defendant's actions must have been the actual and proximate cause of the plaintiff's harm.
34
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.
35
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.
36
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.
37
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.
38
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.
39
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.
40
Slander
Slander is spoken defamation
Plaintiff must prove special damages.
41
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.
42
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.
43
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.
44
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.
45
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.
46
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.
47
Defamation Defenses:
Consent, Truth, Absolute Privilege.
48
Intent
All intentional torts require the element of intent. If acting with purpose or goal to produce the forbidden result --> intent will be met.
49
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.
50
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
51
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.
52
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.
53
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.
54
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.
55
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.
56
Duty to control third persons
No duty.
57
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.
58
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.
59
Eggshell Plaintiff
Defendant takes plaintiff as they find them - even if severity of damages was unforceable.
60
Negligence Damages
1. Personal Injury: Plaintiff to be compensated for all his damages (past, present and prospective) both special and general.
2. Property Damage: Reasonable cost of repair or if property nearly destroyed, fair market value at the time of the accident.
3. Punitive Damages: Plaintiff may recover if Defedant's conduct is wanton and willful
61
Duty to Mitigate
In all cases, PLaintiff has a duty to take reasonable steps to mitigate damages (ie seek appropriate treatment, "avoidable consequences rule").
62
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.
63
Strict Liability Animals:
Domestic Animals: An owner is not strictly liable for injuries caused by domestic animals. EXCEPTION: 1) Owner has knowledge of that particular animal's dangerous propensities that are not common to the species then there is strictly liability.
Wild Animals: Stricly liable to licensees and invitees for injuries caused by wild animals as along as the injured person did nothing to bring about the injury. This is due to dangerous propensity of wild animials.
Liability for trespassers: Strict Liability will not generally be imposed in favor of a trespasser in the absence of the owner's negligence. EXCEPTION: A landowner may be liable on intentional tor grounds for injuries inflicted by vicious watchdogs.
64
Trespassing Animals
An owner is strictly liable for foreseeable damage done by a trespass of his or her animals(s).
65
Abnormally Dangerous Activity - Elements
1) Even when reasonable care is exercised, the activity still creates a foresseable risk of serious harm and
2) THe activity is not a matter of common usage in the community (maybe in one location but not others).
Using safety precautions is not a defense.
66
Abnormally Dangerous Activity - Extent of liability
Scope of Duty Owed to all foreseeable plaintiff's to make safe the normally dangoerus characteristic of the animal or activity.
Defenses:
Contributory Negligence = NO DEFENSE
Assumption of the risk
Comparative negligence
67
Product Liability - Rule and All Six Theories
To find product liability under any theory, the plaintiff must show 1) there is a defect and 2) the existence of the defect when the product left the defendant's control.
1) Intent, 2) Negligence, 3) Strict Liability, 4) Express Warranty, 5) Implied Warranty of Merchantability and Fitness for a Particular Purpose, 6) and Misrepresentation.
68
Types of Defects (product liability)
Manufacturing Defects - Product emerges from manufacturing that is different and more dangerous than the manufacturing of properly-made products.
- Can be proven by showing product failed to perform as safely as an ordinary consumer would expect.
- Defendant must anticipate reasonable misuse.
- Applies to defective food products
Design Defects: When all products of a line are the same but all have dangerous propensities.
- Plainiff should shoul a reasonable alternative design that makes product safer without serious impact on price or utility.
Inadequate Warnings: Failure to give adequate warnings as to risks invovled in using the product.
-Danger must not be apparent to users.
-Safety Standards: A product's non-compliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence, although not conclusive that the product is not defective.
69
Manufacturing defects
Manufacturing Defects - Product emerges from manufacturing that is different and more dangerous than the manufacturing of properly-made products.
- Can be proven by showing product failed to perform as safely as an ordinary consumer would expect.
- Defendant must anticipate reasonable misuse.
- Applies to defective food products
70
Design Defects
Design Defects: When all products of a line are the same but all have dangerous propensities.
- Plainiff should show a reasonable alternative design that makes product safer without serious impact on price or utility.
71
Inadequate Warnings
I-nadequate Warnings: Failure to give adequate warnings as to risks invovled in using the product.
-Danger must not be apparent to users.
-Safety Standards: A product's non-compliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence, although not conclusive that the product is not defective.
72
Abnormally Dangerous Activity - Strict Liability
In determining whether an activity is abnormally dangerous, courts may consider the following factors: (1) existence of a high degree of risk of some harm to the person, land, or chattels of others; (2) the likelihood that the harm that results from it will be great; (3) inability to eliminate the risk by the exercise of reasonable care; (4) extent to which the activity is not a matter of common usage; (5) inappropriateness of the activity to the place where it is carried on; and (6) extent to which its value to the community is outweighed by its dangerous attributes.
73
Trespass to Land:
An act of physical invasion on the plaintiff's real property
74
Encroachment
A piece of real property hangs from one property over the property line of another landowner's premises.
- An encroaching structure is a tresspass since you had to have intent to enter into another's land
- Encr... does not require harm
- INJUNCTION is a major issue here as well as NUISANCE and possible EASEMENT
75
Trespass to Chattel
-Intentionally
-Dispossessing another of the chattel or
- Intermeddling with a chattel in the possession of another
- Remedy: Cost of repair or rental
76
Conversion
- An act by the defendant that interferes with plaintff's right of possession in personal property (chattel) and
- the inference is so serious that it warrants requiring defendant to pay the property's full value at the time of the conversion
77
Intentional Tort Defenses:
- Consent
- Self-Defense
- Defense of others
Defense of property
Crime Prevention (privilege of arrest)
Recapture of Chattel - Reentry upon land
Necessity (public and private)
Qualified Privilege
Discipline
78
Consent
Where a plainitff is willing that the defendant invade her interests
79
Self-Defense
When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.
80
Defense of Others
One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.
81
Defense of Property
One may use reasonable force to prevent the commission of a tort against her real or personal property.
82
Crime Prevention
Arrest WITH a warrant: Not privileged unless the person arrested 1) is or the defendant reasonably believes to be sufficiently named or otherwise described in the warrant; or 2) although not the person in the warrant, has knowingly caused the actor to believe him to be so.
WITHOUT a warrant: Where a felony is being committed or reasonably appears about to be committed in his presence or 2) if the felony has in fact been committed and he has reasonable grounds to suspect person arrested has committed it.
83
Recapture of Chattel - ReEntry upon Land
An owner or possessor of land may forcibly enter onto the land where another has wrongfully entered or remained on the land.
84
Necessity - Public
An actor may enter the land of another to avert an imminent public disaster.
Privilege if protecting the community as a whole or a significant group of people. This is an absolute defense and the defendant is not liable for trespass or damage to property or chattel.
85
Necessity - Private
Where the defendant acts in an emergency and invades the plaintiff's property in order to protect an interest of his own.
- Its a defense BUT Will have to pay for damages.
86
Qualified privilege
Defendant is not liable for trespass but is liable for the damage to property/chattel.
- Privilege supersedes the property owner's right to defend property by reasonable force.
- Never owes damages
-As long as the emergency continues the plaintiff must allow the defendant to remain on his/her land in a position of safety.
87
Collateral Source Rule
Damages are NOT reduced just because the plaintiff received benefits from other sources (i.e. Health insurance).
88
Contributory Negligence
Negligence on part of the plaintiff that contributes to her injuries.
- Complete bar for recovery under common law
89
Last Clear Chance:
Permits plaintiff to recover despite her contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
- Effectively rebuts the defense's defense of contributory negligence on part of the plaintiff.
90
Imputed Contributory Negligence
The contributory negligence of a thrid party will be imputed to a plaintiff (and bar her claim) only when the relationship between the thrid party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence.
- Neg is imputed in employer/employee, partner/joint ventures
- Geg is NOT imputed between husband and wife, parent and child and auto owner and driver.
91
Assumption of Risk
Plaintiff may be denied recovery where she assumed the risk of any damage caused by defendant's act.
P must have KNOWN of the risk and voluntarily proceeded in the face of the risk.
Not a defense to intentional torts.
92
Comparative Negligence
Plaintiff's contributory negligence is NOT a complete bar to recovery.
- Computation: Plaintiff's recovery is reduced by plaintiff's amount of negligence.
93
Strict Liability Elements
1. Existence of an absolute duty on the part of the defendant to make safe
2. Breach of the duty
3. Breach was the actual and proximate cause of the injury
Damage to the plaintiff's person or property
94
Privacy - Public Disclosure
Requires the widespread disclosure of private information (matters of public record are not sufficient)
95
Appropriation of plaintiff's name or likeness
Defendant uses plaintiff's name or picture for commercial purpose
96
False light
Where one attibutes to Plaintiff views he does not hold or actions he did not take and there is widespread dissemination.
97
Intrusion into the plaintiff's private seclusion
Prying or intruding must be objectionable to a reasonable person.
98
Intentional Misrepresentation
Fraud, deceit
Remember: There is no duty to disclose and an opinion is not actionable unless rendered by someone with superior skills in the area.
99
Negligent Misrepresentation
Misrepresentation by the defendant in a business or professional capacity.
100
Transferred Intent Doctrine
Applies when a defendant intends one tort but instead commits another. Applies when the tort intended and the resulting torts are one of the following: assault, battery, false imprisonment, tresspass to land, trespass to chattels.
Incapacity is not a defense to intentional torts.
101
Outrageous
Conduct that transcends all bounds of decency tolerated in a civil society.
Examples:
- Continuous and repetitive behavior.
Common Carrier held to a higher standard of behavior.
102
Third Party IIED
Plaintiff may recover for emotional distress of another party if plaintiff proves:
1) Plaintiff was present when the injury occurred
2) Plaintiff is close family relative of the injured person
3) defendant knew both of these facts.
103
Bystander NIED
Can recover when:
1) The plaintiff and the bystander are closely related
2) plaintiff was present at the scene
3) plaintiff observed or perceived the injury
104
Negligent Infliction of Emotional Distress
The duty to avoid causing emotional distress to another is breached when the defendant creates a foreseeable risk of physical injury to the plaintiff either by:
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.
105
When physical injury is NOT required under NIED
- Erroneous report of relative's death
- mishandling of relative's corpse.
106
Negligence Essay Approach
1. Foreseeable Plaintiff - Cardoza (majority), Andrews (minor)
2. General Duty
3. Special Duty: Children, professionals, negligence per se, guests and common carriers, landowner liability (3 types), duty to control issues, omissions to act.
4. Breach
- Res Ipsa Loquitor
5. Causation
6. Actual
7. Proximate
- Direct
- Indirect (dependent vs. independent)
8. Damages
9. Defenses
-Contributory negligence
-Comparative negligence
-Assumption of Risk
107
Vicarious Liability for Negligence
Respondeat superior has two basic components to it:
(1) The relationship of employer and employee must exist, with the primary tortfeasor being the employee and the party sought to be held vicariously liable being the employer.
(2) When the employee committed the underlying tort, he or she must have been acting within the scope of their employment.
108
Manufacturing Defect
Product emerges from manufacturing different and more dangerous than the products made properly.
109
Design Defect
When all products of a line are the same, but have dangerous propensities,.
Plaintiff must usually show they could have made the product safer without serious impact on price or utility.
110
Failure to Give Adequate Warnings
Failure to give as to the risks involved in using the product, for liability to attach the danger must not have been apparent to users.
111
Misues
Courts generally require suppliers to anticipate reasonably foreseeable uses even if they are "misuses" of the product.
112
Products Liability based on intent
Where the dfendant intended the consequences or knew tha thtye were substantially certain to occur.
If intent is present most courts just go with battery
113
Products liability based on negligence
To establish:
Proper Plaintiff: Anyone within the foreseeable use of the product
Proper Defendant: Manufacturers, Product Designers, etc.
Duty: Act as a reasonable manufacturer or designer would in the same or similar circumstances in designing and manufacturing the product. Includes generally a duty to inspect, correct defects which a reasonable inspection would reveal. Duty to warn also. Retailer has no duty unless they know the product is dangerous. Res Ipsa Loquitor can apply.
Causation: Actual and Proximate
Damages
Defenses:
Contributory negligence
Comparative negligence
Assumption of the risk
114
Contributory Negligence
The negligence on part of the plaintiff that contributes to his or her injuries. It is a complete bar to recovery.
115
Comparative negligence
A partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury.
116
Strict Products Liability
A commercial supplier who places a product on the market which is in a defective condition, unreasonably dangerous to users, consumers or bystanders. Liable not only to buyers but also foreseeable third parties.
117
Implied Warranty of Merchantability and Fitness
There are two implied warranties in every sale of GOODS:
1) Merchantability - refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used.
2) Fitness for a particular use - Arises when 1) the seller knows or has reason to know the particular purpose for which the goods are required and 2) that the buyer is relying on the seller's skill in selecting the goods.
To prove:
1. ID the warranty
- SHow breach (proving fault not required)
- Causation (both)
- Damages
- Defenses: Assumption of the risk and contributory negligence
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Malicious Prosecution
1. Institution of Criminal Proceedings against the plaintiff
2. Termination in Plaintiff’s favor
3. Absence of probable cause for prior proceedings
4. Improper purpose (something other than bringing a person to justice
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Abuse of Process
1. Wrongful use of process for an ulterior purpose and
2. Definite act or threat against plaintiff in order to accomplish ulterior process.
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Interference with Contracts and Business Relations
Two separate torts with SAME analysis. Must prove:
1. Existence of a valid contractual relationship between the plaintiff and a third party or a valid business expectancy of plaintiff;
2. Defendant's knowledge of the relationship or expectancy
3. Intentional interference by defendant inducing a breach or termination of the relationship or expectancy and
4. Damages - actual, mental distress and punitive
5. Both these torts signal injunctive relief
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Private Nuisance
A substantial, unreasonable interference with another private individuals use or enjoyment of property that he actually possess or to which he has a right of immediate possession.
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Public nuisance
an act that unreasonably interferes with the health, safety or property rights of the community.
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Joint and Several Liability
Where two or more negligent acts combine to proximately cause an indivisable injury, each negligent actor will be jointly and severally laible. If it is divisible then each is liable only for their identifyable portion.
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Contribution and Indemnity
In Some States - Allows a torfeasor required to pay more than their share of damages to have a claim against the other jointly liable parties for the excess.
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Survival Tort Actions
Tort actions may survive death for torts of property and personal injury but not defmation, privacy rights, or malicious plaintiff (whatever that is).
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Wrongful Death
Recovery for pecuniary interest for injury to the spouse and next of kin. Limited only to amount deceased could have recovered.
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Prenatal Injuries
Due of care is owed to a viable fetus.
Wrongful life is not recoverable.
Wrongful birth is recoverable.
- Failure to ID a defect.
(Money for extra medical expenses and pain and suffering BUT not ordinary child-rearing expenses).
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Doctrine of Transferred intent
DOCTRINE OF TRANSFERRED INTENT: Applies when a defendant intends to commit one tort, but instead commits another (i.e., the intent is transferred from the intended tort to the committed tort for purposes of establishing a prima facie case.) The doctrine can be applied when the defendant intends to commit a tort against one person, but instead commits:
a. A different tort against that person;
b. The same tort as intended but against a different person; or
c. A different tort against a different person.
1) Limitations: Transferred intent may be invoked only if both the tort intended and the resulting torts are one of the following. Assault, Battery, False Imprisonment, Trespass to Land, or Trespass to Chattels.
2) Note: Incapacity is not a defense to intentional torts. Every defendant who commits the checklist of elements should be held liable. It does not matter if you are a child, insane or under the influence of drugs/alcohol
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Discipline
A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his or her child as s/he reasonably believes is necessary for the child’s proper control, training, or education. The child’s age and seriousness of child’s behavior must be taken into account.
b) Also, one other than a parent, who has been given by law or has voluntarily assumed, in whole or in part, the function of controlling, training or educating a child, is also privileged to use reasonable force as a parent would.
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Defamation (Essay Headings)
1 - Common Law Defamation:
(always discuss)
Defamatory Statement:
- Must adversely interfere with plaintiff's reputation
Of of concerning plaintiff
Publication
- Disclosure to someone other than plaintiff
Damage
- Libel (general presumed)
- Slander (must plead and prove special unless slander per se)
2- Constitutional Law Defamation
- Matter of Public Concern + Falsity
Fault on Defendant Part:
Public official --> Malice
Private Figure --> Negligence
3 - Defenses:
Truth
Opinion
Consent
Absolute Privilege
Qualified Privilege
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Privacy - Personal Right Essay Headings
A - Misappropriation of Picture or Name:
-Commercial Purpose
-Newsorthy Exception
-Exceptions: Consent, privilege
B- Intrusion on P's affairs or seclusion
-Intrusion - private space
- Priavate Affairs - REOP
-Objectionable to a reasonable person
(Highly offensive to ordinary reasonable person)
- Exceptions: Consent, privilege
C - False Light:
(Strict liability)
- Highly offensive to a reasonable person
- Knowledge of or acted in reckless disregard for falsity
- Exceptions: Consent, privilege
D- Public Disclosure of Private Facts:
- Public disclsure - give publicity to P
- Private facts
- Objectionable to a reasonable person
- Not of legitimate public concern
- Exception: Newsworthiness
ALL PRIVACY TORTS AT END:
- Causation ** Before defenses add ---"invasion of privacy must be proximate and actual cause of defendant's actions"
- Damages
- Defenses: Consent, Absolute privilege, qualified privilege
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Misappropriation of Picture or Name (Essay Headings)
A - Misappropriation of Picture or Name:
-Commercial Purpose
-Newsorthy Exception
-Exceptions: Consent, privilege
ALL PRIVACY TORTS AT END:
- Causation ** Before defenses add ---"invasion of privacy must be proximate and actual cause of defendant's actions"
- Damages
- Defenses: Consent, Absolute privilege, qualified privilege
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Intrusion on P's private affairs or seclusion
B- Intrusion on P's affairs or seclusion
-Intrusion - private space
- Private Affairs - REOP
-Objectionable to a reasonable person
(Highly offensive to ordinary reasonable person)
- Exceptions: Consent, privilege
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False Light
C - False Light:
(Strict liability)
- Highly offensive to a reasonable person
- Knowledge of or acted in reckless disregard for falsity
- Exceptions: Consent, privilege
ALL PRIVACY TORTS AT END:
- Causation ** Before defenses add ---"invasion of privacy must be proximate and actual cause of defendant's actions"
- Damages
- Defenses: Consent, Absolute privilege, qualified privilege
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Public Disclosure of Private Facts
D- Public Disclosure of Private Facts:
- Public disclsure - give publicity to P
- Private facts
- Objectionable to a reasonable person
- Not of legitimate public concern
- Exception: Newsworthiness
ALL PRIVACY TORTS AT END:
- Causation ** Before defenses add ---"invasion of privacy must be proximate and actual cause of defendant's actions"
- Damages
- Defenses: Consent, Absolute privilege, qualified privilege
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Common Law Defamation (Essay Heading)
In order to prove Common Law Defamation, a plaintiff will have to prove 1) a defamatory statement, 2) of or concerning the plaintiff, 3) publication, 4) damages adn 5) the absence of any applicable defenses.
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Defamatory Statement (essay headings)
The statement must tend to adversely affect the plaintiff's reputation.
Opinion is a defense in some jurisdictions
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Of or concerning the plaintiff
The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.
Pleading Colloquium - If statement does not refer to the plaintiff by name then extrinsic evidence may be used. If a large group but speaks to small amount of members than no win. If small group and small # of members then win.
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Publication
The defendant must communicate the statement to a third person who understands that it is about the plaintiff. Publication can be intentional or negligently done.
Required intent is to publish, not intent to defame.
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Publication
The defendant must communicate the statement to a third person who understands that it is about the plaintiff. Publication can be intentional or negligently done.
Required intent is to publish, not intent to defame.
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Damages to Plaintiff's Reputation (Defamation Heading)
The type of damage the plaintiff must prove depends on the type of defamation.
Libel: Defamatory language that is written, printed or recorded in some permanent form. General damages are presumed but P may offer actual evidence of damages to increase their award.
Libel Per Se and Libel per Quod:
In minority jurisdictions they distinguish between defamatory on its face and defamatory not on its face and extrinsic evidence is required to prove.
Slander: Refers to publication of defamatory matter by spoken words or transitory gesterures. The plaintiff must plead and prove special damages in order to maintian an action when a statement is not slander per se.
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Constitutional Defamation (heading)
When the defamation involves a matter of public concern, a plaintiff must prove three additional elements, its a matter of public concern, falsity of the statement, and fault on the defendant's part.
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Matter of Public Concern
A plaintiff must establish the oral or written statement of the defendant is a matter of public concern. This is typically a question of fact.
144
Falsity of the Defamatory Statement - Matter of Public Concern Essay
The plaintiff must prove the statement is inaccurate.
If statement is true consider instead IIED or Invasion of Privacy.
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Fault on the part of the Defendant
The type of fault a plaintiff must prove depends on the plaintiff's status:
Public Official - Malice
- Knowledge that the defamatory statement was false or reckless disregard as to the statement's truth. Plaintiff must show the defendant entertained serious doubts as to the truthfulness before publication.
- Subjective intent - Defendant must be aware the statement was false or reckless.
- Material change in quotes could demonstrate malice.
Private Figure - Negligence
- What is the reasonableness or carelessness regarding the falsity of the statement.
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Absolute Privilege (Defamation defense)
1) Communications between spouses;
2) Remarks made during judicial proceedings;
3) Remarks by legislators in debate;
4) Remarks by federal executive officials; and
5) Communication during ‘compelled’ broadcasts.
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Qualified Privilege
This privilege can be lost through abuse. Sometimes the speech may have a qualified privilege and be protected in the following circumstances:
1) Reports of official proceedings;
2) Statements in the interest of the publisher – defense of one’s actions, property, or reputation;
3) Statements in the interest of the recipient; and
4) Statements in the common interest of the publisher and recipient.
148
A personal Right - Privacy Essay Approach
The right of privacy is a personal right. It does not extend to members of family, it does not survive the death of the plaintiff, and it is not assignable or applicable to corporations.
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Misappropriation of Picture or Name (Essay Headings)
Misappropriation of Picture or Name:
- Commercial Purpose
- Newsworthy exception
Exceptions: Consent, privilege
1) It is an unauthorized use for defendant’s commercial advantage.
2) Liability is generally limited to ads or promotions of products or services.
3) Mere economic benefit to defendant (not in connection with promoting the product or service) by itself is not sufficient, e.g., celebrity image on an advertisement.
4) Newsworthy Exception: For example, there is no tortious wrongdoing if Sports Illustrated puts a famous person on the cover of their magazine.
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Intrusion on P's affairs or seclusion (essay headings)
Intrusion on Ps affairs
- Intrusion - Private space
- Private affairs REOP (reasonable expectation of prvcy)
- Objectionable to a reasonable person
(Highly offensive to ordinary reasonable person)
- Exceptions: Consent, privilege
Prying or intruding must be objectionable to a reasonable person.
1) For example, spying on someone with a hidden camera in his or her home.
a) In order to prevail, plaintiff must always be in a place where there is a reasonable expectation of privacy (e.g., a home or hotel room).
b) Photographs taken in public places are not actionable.
c) Trespass to land is not required to have an intrusion.
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Publication - False light (essay headings)
False Light (strict liability)
- Highly offensive to a reasonable person
- Knowledge of or acted in reckless disregard for falsity
- exceptions: consent, privilege
The false light must be something objectionable to a reasonable person under the circumstances. For liability to attach, there must be publicity.
1) Note: The false light publication must be told to a lot of people.
2) Types of Falsehoods: Almost any defamation will also give rise to false light liability if there is widespread dissemination.
3) Thus, if the falsity affects reputation, may also have defamation. Example: Statements that mischaracterize the plaintiff’s beliefs. (Dave tells everyone Pete is Roman Catholic when Pete is Jewish.)
4) Note: No requirement here of intent or negligence. This is a strict liability cause of action. Even if you act with a good-faith belief you will be liable if you get your facts wrong.
5) First Amendment Limitation. If the matter is in the public interest, malice on the defendant’s part must be proven.
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Public disclosure of private facts (essay headings)
Public Disclosure of private facts
Public disclosure
(give publicity to P)
Private Facts
Objectionable to a reasonable person
Not of legitimate public concern
Exception: newsworthiness
1) The public disclosure must be objectionable to a reasonable person of ordinary sensibilities.
2) Liability may attach even though the actual statement is true.
3) First Amendment limitations probably apply if the matter is of legitimate public interest.
4) Newsworthy Exception: For example, media can publish Mayor Garcetti’s medical report because it is of legitimate public interest.
5) Dual Life Fact Pattern: This issue occurs when a plaintiff operates in two or more separate spheres of activity (work/home world), and carries information from one sphere to another that is normally not actionable unless the information was truly private.
a) Example: Plaintiff is gay. He is out at home, not at work. One day he is at a marriage equality rally with his partner, when a straight co-worker sees him and tells everybody at their office. Plaintiff sues co-worker. Plaintiff’s recovery will be denied. Even though it was a private fact, it is now a public fact since Plaintiff was out at a rally.
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All privacy torts essays
Causation - "The invasion of the plaintiff interest and privacy must have been proximately caused by the defendant's conduct."
Damages:
Defenses: Consent, absolute privilege, qualified privilege
a. Causation: The invasion of plaintiff’s interest in privacy must have been proximately caused by defendant’s conduct.
b. No Proof of Special Damages: Plaintiff does not need to prove special damages. Emotional distress and mental anguish damages are sufficient.
c. Defenses: Consent and defamation privilege defenses apply only to False Light and Disclosure. Truth is generally not a good defense, nor is good faith or lack of malice.
Note: The right of privacy is a personal right and does not extend to family members; it does not survive the death of a plaintiff; it is not assignable; and it is not applicable to corporations.
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Express Warranty
An affirmation of fact or promise concerning goods that becomes part of the basis for the bargain creates an express warranty.
155
Frolic
An employee making a minor deviation/frolic is still in scope of employment; however, if the deviation in time or geographic area is substantial the employer is not liable. An example of a frolic would be a UPS driver stopping to get a soda at 7-11 during his route, whereas, a UPS driver using his truck to go to a baseball game would not be considered a frolic.
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Liability for Tort by Employees
Employers will not be vicariously liable for the intentional torts of their employees unless:
1) Force is authorized in the employment (bouncer); or
2) Friction is generated by the employment (bill collector); or
3) The employee is furthering business of the employer (e.g., removing rowdy customers).
c) Employers may be liable for their own negligence for hiring or supervising their employees negligently. (Note: This is not vicarious liability. Rather, it is negligent hiring/negligent supervision.)
