Torts Flashcards
What is a tort?
A civil wrong committed against another
What conduct does torts arise from?
Defendant’s (1) intentional conduct, (2) negligent conduct, or (3) conduct that creates liability without fault (strict liability)
How to analyze a torts question
(1) Identify prima facie elements of tort, apply to facts, (2) consider any defenses supported by the facts, and (3) consider any supplemental rules that may apply (multiple parties)
Intentional torts
Battery
Assault
False imprisonment
Intentional infliction of emotional distress
Tresspass to land
Trespass to chattel
Conversion
To which intentional torts does transferred intent apply?
Battery
Assault
False imprisonment
Trespass to land
Trespass to chattels
What is the doctrine of transferred intent?
Defendant’s intent will transfer when he intends to commit a tort against one person and instead:
- commits a different tort against that person
- commits the intended tort against a different person
- commits a different tort against a different person
Both the intended and committed tort must be battery, assault, false imprisonment, or trespass to land/chattels
Battery
(1) Harmful or offensive contact (contact to which plaintiff has not consented)
(2) with plaintiff’s person (inc. things connected to their person)
(3) intentionally caused by defendant
- nominal damages available
Assault
(1) Intentional creation by the defendant
(2) of a reasonable apprehension (expectation) of immediate harmful or offensive contact (plaintiff must be aware of D’s act at time of occurrence)
(3) to the plaintiff’s person
*words alone generally not enough
False imprisonment
(1) An intentional act or omission by the defendant
(2) that causes the plaintiff to be confined or restrained to a bounded area
- threats of force, false arrests, failure to provide a means of escape when under a duty to do so
- Plaintiff must not know of any reasonable escape
- Actual damages not required, nominal ok
- Punitive damages available if D acted maliciously
Intentional infliction of emotional distress
(1) Intentional extreme and outrageous conduct (recklessness is sufficient)
(2) by the defendant
(3) that causes the plaintiff to suffer severe emotional distress
- Physical injury not required
- Actual, not nominal, damages required
- Fallback tort, so choose a different alternative if it will also allow plaintiff to recover over this
Can a bystander recover under IIED?
If the defendant intended his conduct for a third person and a bystander plaintiff suffers severe emotional distress, plaintiff must prove:
- prima facie elements of IIED, OR
(1) they were present when injury occurred
(2) the distress resulted in bodily harm or plaintiff is a close relative of the (intended) third person, and
(3) defendant knew these facts
Trespass to land
(1) an intentional act by the defendant
(2) that causes a physical invasion of the plaintiff’s real property
*Only intent to do the act of entering needed, not intent to trespass
Trespass to chattels
(1) an intentional act by the plaintiff
(2) that causes an interference with the plaintiff’s right of possession in a chattel (damage, intermeddling, dispossession)
(3) resulting in actual damages to possessory right/harm to chattel/loss of use
* only intent to do act that causes interference needed, not intent to trespass
*is conversion more appropriate?
Conversion
(1) an intentional act by the defendant
(2) that causes a serious interference to plaintiff’s possession in a chattel (a forced sale of the chattel such that D has to pay its full value)
*only intent to do act that causes conversion needed, not intent to convert
What are acts of conversion?
- Wrongful acquisition (theft)
- Wrongful transfer
- Wrongful detention
- Substantially changing, severely damaging, misusing a chattel
How may a plaintiff recover under conversion?
- Damages in the amount of fair market value at time of conversion
- Replevin (possession)
Defenses to intentional torts
Consent (express or implied)
Self defense
Defense of others
Defense of property
Necessity
Consent
- Express or implied (apparent/by law)
- Plaintiff must have had capacity to consent
- Defendant must not exceed bounds of consent
Self defense
- Defendant must reasonably believe a tort is being/about to be committed against himself (already committed torts don’t apply)
- Only reasonable force may be used (deadly force only if reasonably believed necessary to prevent serious bodily injury)
- Defendant’s conduct is prompted by plaintiff
- Reasonable mistake allowed
When is self-defense available to the initial aggressor?
Only when the other party responds to the aggressor’s non-deadly force with deadly force
When may self-defense extend to third-party injuries?
If the third party’s injuries were caused while actor was defending himself, and if actor deliberately injured the third person in trying to protect themself
Defense of others
- Defendant must reasonably believe a tort is being/about to be committed against a third person (already committed torts don’t apply)
- Defendant must reasonably believe other party could have used force to defend themselves
- Only reasonable force may be used (deadly force only if reasonably believed necessary to prevent serious bodily injury)
- Defendant’s conduct is prompted by plaintiff
- Reasonable mistake allowed
Defense of property
- Defendant must reasonably believe a tort is being/about to be committed against his property (already committed torts don’t apply)
- Only reasonable force may be used (deadly force never allowed to defend only property)
- Necessity/other privilege trumps property owner’s right to defend property
- Defendant’s conduct prompted by plaintiff
- Reasonable mistake allowed re if an intrusion has occurred or if request to desist required, not re if entrant/plaintiff has a privilege trumping defense
- General duty to request to desist before using force unless such request would be pointless
When may indirect deadly force be used?
One may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used
When is there a duty to retreat?
- Majority rule - never
- Modern trend - before using deadly force if retreat can be done safely, unless actor is in their home
What is the shopkeeper’s privilege?
Permits reasonable detention (as to length and manner of detention) of a person shopkeeper reasonably believes has shoplifted goods
Privilege of public necessity
If defendant’s property tort was justified by public necessity, this is an absolute defense (trumps property owner’s right to defend property)
Privilege of private necessity
A person may interfere with real/personal property of another when interference is reasonably and apparently necessary to avoid threatened injury from natural/other force and threatened injury is substantially more serious than invasion undertaken to avert it.
- Private necessity –> qualified defense (D must pay for any damage caused)
Recapture of chattels
Defense to trespass of chattels
- When another’s possession of owner’s chattel began lawfully, owner may use only peaceful means to recover the chattel
- Force may be used to recapture chattel only when in “hot pursuit” of one who obtained possession wrongfully, and timely demand to return must precede force
What are the prima facie elements of an intentional tort?
(1) Defendant’s act (volitional movement)
(2) Defendant’s intent
(3) Causation of result/damage to plaintiff by defendant’s act
What is tortious intent?
The intent to bring about the forbidden consequences that are the basis for the tort (not the intent to cause the specific injury that results)
- Incapacity not a defense
What is harmful contact?
Direct or indirect contact that causes actual injury, pain, or disfigurement
What is causation?
Defendant’s conduct was a substantial factor in bringing about plaintiff’s injury/result
What is offensive contact?
Direct or indirect contact that would be considered offensive to a reasonable person and that has not been consented to/permitted
What are the prima facie elements of negligence?
(1) Duty of defendant
(2) Breach of duty by defendant
(3) Causation (actual AND proximate) between breach and plaintiff injury
(4) Damages
General duty of care
Duty to act as a reasonably prudent person in avoiding creating an unreasonable risk of injury to foreseeable plaintiffs
- Objective standard; mental deficiencies/inexperience not considered
- Reasonable person expected to have same physical characteristics as defendant if relevant to claim
- Minimum standard of care; defendant with superior skills/knowledge required to exercise that experience
What is the duty of care of children
Subjective test, held to standard of child of like age, intelligence, and experience
- Child under 5 is without capacity to be negligent
- Children engaging in potentially dangerous adult activities may be held to adult standard
What is the duty of care of professionals?
Required to possess knowledge and skill of average member of profession or occupation in good standing
What are the duties of care of doctors?
- Doctors must possess knowledge and skill of average member of their profession in good standing
- Doctors have a duty to disclose risk of treatment (enabling patient to give informed consent) (breached if undisclosed risk so serious as to cause reasonable person in patient’s position to withhold consent on learning of risk)
To whom is a duty of cared owed?
All foreseeable plaintiffs
When is a rescuer a foreseeable plaintiff?
When the defendant negligently put themselves or a third person in peril (danger invites rescue)
What is the firefighter’s rule?
Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs
What is a possessor of land’s duty of care?
Depends on trespasser’s status as
- Unknown trespasser
- Known trespasser
- Lincensee
- Invitee
What is a possessor of land’s duty of care to unknown trespassers?
No duty owed to undiscovered trespasser
What is a possessor of land’s duty of care to known trespassers?
As to discovered/anticipated trespassers, land possesser must warn/make safe any conditions that are:
- artificial
- highly dangerous (risk of death/serious bodily harm
- concealed
- known to land possessor in advance
What is a possessor of land’s duty of care to licensees?
Land possessor has duty to warn of/make safe any hazardous conditions that are:
- Concealed
- Known to land possessor in advance
- Land possessor must exercise reasonable care in conduct of operations on property (no duty to inspect/repair)
Who is a licensee?
One who enters onto land with possessor’s permission for their own purpose or business (rather than for possessor’s benefit)
- inc. social guests
- Police and firefighters owed no duty of care regarding risks inherent to their jobs
Who is an invitee?
One who enters onto land in response to invitation by possessor of land
- Purpose connected with business of land possessor
- Enter as members of public for purpose for which land is held open to public
- Will lose invitee status if exceed scope of invitation
What is a land possessor’s duty of care to invitees?
Landowner/occupier owes duty to invitees regarding hazardous conditions that are:
- concealed
- known to land possessor in advance or could have been discovered by reasonable inspection
What is the attractive nuisance doctrine?
Special duty of care owed by landowner/possessor to children
- Dangerous artificial condition on land that owner is/should be aware of
- Owner knows/should know children might trespass on land
- Condition likely to cause injury (dangerous because of child’s inability to appreciate risk)
- Expense of remedying situation is slight compared with magnitude of risk
What is a landowner’s duty of care to recreational land users?
If no fee for public use of land for recreational purposes, no liability for injuries caused unless landowner maliciously and willfully failed to guard against/warn of dangerous condition/activity
When is a general duty of care replaced by a statutory standard of care?
- Clearly stated specific duty imposed by statute providing for criminal penalties
- Plaintiff within protected class
- Statute designed to prevent type of harm suffered by plaintiff
When is a person excused from violating a statutory standard of care?
Where compliance would cause more danger than violation, or where compliance would be beyond defendant’s control
What is the effect of a statutory violation?
Unexcused violation is negligence per se (conclusive presumption of duty and breach of duty)
- (1) specific duty imposed by the statute must be clearly stated; plaintiff also must show that: (2) she is in the class intended to be protected by the statute, and (3) the statute was designed to prevent the type of harm that the plaintiff suffered
- While violation may be negligence, compliance doesn’t establish due care
When is there an affirmative duty to act?
- Special relationship between parties (parent-child, spousal)
- Parties that gather public for profit (common carrier, innkeeper) to aid/assist patrons
- Peril to others due to own conduct
- Assumption of duty by acting
- To prevent harm from third person if one has ability to control their actions and knows/should know person likely to commit acts that require exercise of this control
What is the duty of care owed by innkeepers and common carriers?
Liable for slight negligence (very high standard) if plaintiff is passenger/guest
What duty is owed by an automobile driver to passenger?
Duty of ordinary care
- Guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct
What is the duty of cared owed in a bailment relationship?
- Bailor transfers to bailee possession of chattel but not title
What is the duty of care owed in emergency situations?
Defendant must act as reasonably prudent person would under same emergency conditions
- Emergency not to be considered if of defendant’s own making
Negligent infliction of emotional distress
Breached when:
- Defendant creates foreseeable risk of physical injury to plaintiff
- Plaintiff within zone of danger (sufficiently close to defendant as to be subject to high risk of physical impact)
- Plaintiff’s emotional distress manifested as physical symptoms
Negligent infliction of emotional distress to bystander
- Plaintiff is outside zone of danger, distress caused by seeing D negligently injure another
- Plaintiff and injured person closely related
- Plaintiff present at scene of injury and personally observed/perceived event
Negligent infliction of emotional distress in special relationship
D may be liable for directly causing P severe emotional distress when duty arises from special relationship (commercial in nature) such that D’s negligence has great potential to cause emotional distress (physical symptoms not required)
What constitutes breach of duty in negligence cases?
D’s conduct falls short of that level required by applicable standard of care owed to P
- Question for trier of fact
Under which theories can plaintiff prove breach in negligence cases?
- Custom or usage of others (reasonable prudence standard)
- Violation of statute (negligence per se)
- Res Ipsa Loquitur
What is res ipsa loquitur?
- Very occurrence of event tends to establish breach of duty
- Accident causing injury is type that would not normally occur without negligence
- Negligence probably attributable to defendant
- Can be shown by evidence that instrumentality causing injury was in exclusive control of defendant
- Prevents directed verdict
When should a defendant’s motion for directed verdict be granted?
When P has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty
When should a plaintiff’s motion for directed verdict be granted?
When P has established negligence per se through violation of applicable statute AND no issues of proximate cause
What is the “but for” test?
Used to prove factual/actual causation where several acts (each insufficient to cause injury alone) combine to cause P’s injury, and injury would not have occurred but for D’s act/omission
- D can refute by showing injury would have happened even without act/omission
What is the substantial factor test?
Used to prove factual/actual causation where multiple sufficient causes for injury present, and D’s conduct was substantial factor in causing injury
- Both parties acted negligently and both parties caused harm
What is the “unascertainable causes” approach?
Used to prove factual/actual causation where there are two acts, only one of which causes injury, but unknown which one
- Burden shifts to D, and each must show their negligence not actual cause
- Both parties acted negligently, one party caused harm
What is the doctrine of proximate cause?
Limits defendants’ liability to harmful results that are the normal incidents of and within increased risk caused by their negligent acts
- Foreseeability
- If any issue of foreseeability/proximate cause for trier of fact, motion for summary judgment should be denied
