TORTS Flashcards
(134 cards)
1
Q
What is an abnormally dangerous activity?
A
An activity is characterized as abnormally dangerous if it involves a substantial risk of serious harm to a person or property even if reasonable care is exercised. For example, fumigation uses toxic chemicals and so is an abnormally dangerous activity. Anyone engaging in an abnormally dangerous activity is STRICTLY LIABLE.
2
Q
What torts come under invasion of privacy?
A
4 small torts:
1. Appropriation - D uses P’s name/image for commercial purposes
2. Intrusion - invasion of P’s seclusion that would be highly offensive to a reasonable person
3. False Light - widespread dissemination of a material falsehood about P that would be highly offensive to average person
4. Disclosure - widespread dissemination of confidential info about P that would be offensive to the ordinary person
3
Q
Explain appropriation under the laws of privacy and the exception
A
To establish a prima facie case of invasion of privacy by appropriation of P’s picture or name, you only need to prove: unauthorized use by D of P’s picture/name for D’s commercial advantage. NOTE - liability is limited to use of P’s picture or name in connection with promotion/advertisement of a product or service. AND newsworthy exception: can put someone’s image in a newspaper.
4
Q
Explain Disclosure under the laws of privacy and any exceptions
A
Prima facie case =
(1) publication/public disclosure by D of private info about D, not generally known to public; and
(2) matter made public is such that its disclosure would be highly offensive to a reasonable person
(3) facts disclosed are NOT newsworthy = balance of social value of facts published vs. intrusion into private affairs
5
Q
Under which theories can a plaintiff bring a products liability claim?
A
- Intent
- Negligence
- Strict Liability
- Implied warranties
- Express warranties
6
Q
When does strict liability apply to a products liability claim?
A
When there is:
(1) A commercial supplier of a product
(2) Producing or selling a defective product
(3) Actual and proximate cause
(4) Damages
P must prove that defect existed when product left D’s control and product must reach P without substantial alteration.
7
Q
What is conversion and how is it established
A
An INTENTIONAL tort that occurs when a D intentionally commits an act depriving the P of possession of her chattel or interferes with the P’s chattel in a manner so serious as to deprive the P use of the chattel. I.e. it results in the complete loss of an item (unlike trespass to chattel). Must prove:
1. Act by D interfering with P’s right of possession of chattel
2. Intent to do the act
3. Causation
4. Damages
8
Q
To what kind of property does conversion apply?
A
Limited to tangible personal property and intangibles that have been reduced to physical from (e.g. a promissory note) and documents to which titled to a chattel is merged (e.g. a bill of lading/warehouse receipt).
9
Q
What are the remedies for conversion and when do they apply?
A
- Damages = the full value at the TIME of CONVERSION
- Replevin = chattel returned
10
Q
When are/aren’t punitive damages issued?
A
Generally, NOT available in negligence cases. Given in cases where D’s conduct was ‘wanton and willful’, reckless or malicious.
11
Q
What damages can a P receive for intentional torts?
A
- Compensatory Damages - compensate P for actual losses/harm suffered as a result of the tort (= special or general)
- Punitive Damages - punish D for intentional misconduct (D must have been reckless or malicious)
- Nominal Damages - where P has suffered little/no actual harm - awarded to recognize the legal right that has been violated.
- Injunctive Relief - in addition to or instead of monetary damages, a court may issue an injunction, which is a court order requiring the defendant to stop or refrain from certain actions. Injunctive relief is more common in cases where ongoing harm is threatened or where monetary damages are not sufficient.
12
Q
Does Conversion apply where the actor does not know that the item belongs to someone else?
A
Yes! Conversion occurs when an actor intentionally interacts with an item that is the personal property of another so as to deprive the rightful owner of possession. It is irrelevant whether the actor knows that the item belongs to another individual (even if they had reasonable belief) - liability will not be defeated.
If someone is acting under the orders of someone else it does not defeat liability - they just have to intentionally interact and so deprive someone of possession of the item.
(The only intent required is the intent to perform the act).
13
Q
When is a warning required on a product?
A
Most jurisdictions = required when the product is dangerous in a non-obvious way, the manufacturer knows about the danger and the danger is present when the product is used as it is intended or used in another reasonable and foreseeable way. Suppliers must anticipate reasonably foreseeable uses, even if they are ‘misuses’ of the product.
14
Q
What must the P show to prove a ‘defective design’ in products liability?
A
P must show a reasonable alternative design, i.e. that a less dangerous modification or alternative was economically feasible and practical (i.e. doesn’t interfere with product’s primary purpose).
15
Q
Economic loss and tort law
A
As a matter of public policy, courts will not find liability for purely economic losses in tort law (that is what contract law is for). E.g. in a negligence case, courts are unlikely to find proximate cause for a third party that was injured as a result of a party’s negligence where the damages are solely economic damages (i..e not accompanied by physical harm).
16
Q
But-for in negligence, what to remember?
A
To establish causation in negligence, the P must address both actual and proximate causation. Actual = but-for and proximate = foreseeable. SO if there is a situation where a company breaches a statute by not having a required element (e.g. a cruise co without a req’d no. of lifeboats), if harm then ensues that could NOT have been prevented, even if the co had complied with the statute, the breach of the statute is NOT the cause of the harm - it does not meet the causation tests. i.e. the harm would have happened with/without the co’s breach.
17
Q
What is required for a claim of IIED?
A
P must prove that a D engaged in extreme or outrageous conduct with an intent to cause severe emotional distress, causation and damages (severe emotional distress).
No physical injury is required.
18
Q
What is ‘outrageous conduct’ under IIED?
A
Conduct that transcends all bounds of decency tolerated by society. Factors:
- repetitive in nature (harassment etc)
- D is a common cattier or an inn keeper e.g. bus driver making insulting remarks to passengers
- P is a member of a fragile class of persons (young children, elderly, pregnant)
- known sensitivity - D deliberately targeting P’s sensitivity
19
Q
In the event of trespass, how can the landowner defend themselves legally?
A
Generally - one may use reasonable force to prevent the commission of a tort against her property. A request to desist must precede the use of force, unless the circs make it clear that the request would be futile or dangerous. SO a landowner can use reasonable force to prevent or end a trespasser’s intrusion upon his land to protect his property. He is NOT privileged to use force that threaten serious bodily injury unless the landowner was himself in danger of serous bodily harm.
20
Q
Abnormally dangerous activities = a strict liability tort but what is the extent of the liability for the D?
A
- The D is only liable to foreseeable Ps - persons to whom a reasonable person would have foreseen a risk of harm under the circs.
- The harm must result from ‘normally dangerous propensity’ - i.e. the kind of danger to be anticipated from the dangerous animal or abnormally dangerous activity.
21
Q
What are the requirements for negligent infliction of emotional distress?
A
To recover, P must: (i) have been in the ‘zone of danger’ and (ii) must suffer physical symptoms from the distress.
22
Q
What are the exceptions to the requirements of NIIED?
A
- When there is a special rship between D and P and a duty arises such that D’s negligence creates a great likelihood of emotional distress e.g. the mishandling of a relative’s corpse by mortuary OR dr negligently confuses patient’s file and tells patient he has a terminal illness.
- Bystander not within zone of danger exception - where (i) P and person injured by D are closely related , (ii) P was present at the scene of injury and (iii) P personally observed/perceived the event (most states also drop req for physical symptoms in this case).
23
Q
What kind of liability is imposed for damages caused by products?
A
Strict liability!
24
Q
What must a plaintiff prove to recover under a strict liability claim for products liability?
A
The P must prove that the defect existed when the product left the D’s control. If its not clear who caused the defect and when it occurred - i.e. a reasonable jury could believe either party, so the decision should be left to a jury.
25
What is the economic loss doctrine?
Parties are prohibited from recovering in tort when the negligence of another results in purely economic loss, as opposed to personal injury or property damage. E.g. where the only harm suffered by the P is lost revenue, a strict product liability claim would not be viable to recover those damages.
26
When is contributory negligence/vicarious liability imputed?
1. employer/employee - contrib negligence of employee/agent acting in scope of employment or the tortious act was authroized or instructed by the employer. PAGE 89 1L book
27
What 3 things need to be established for a prima facie case for intentional tor liability?
1. Act (by D)
2. Intent; and
3. Causation
28
What is an 'act'?
A volitional movement by the D e.g. if you put your hand out to break a fall and in doing so you struck someone else, the movement may have been reflexive BUT it was still dictated by the mind and so = volitional.
BUT - epileptic attack where you strike someone during it is NOT a volitional act.
29
What is intent?
Intent of the actor to bring about the consequences that are the basis of the tort.
Intent IF his PURPOSE in acting is to bring about these consequences OR he KNOWS with substantial certainty that these consequences will result.
30
Can you still be liable for an unintended injury?
YES! IF you intend to bring about 'basis of the tort' consequences.
E.g. You push B and they break their arm. You did not intend for them to break their arm but by pushing them you gave rise to a cause of action - battery. The consequences at the basis of battery are 'harmful and offensive contact to the P's person' SO your actions brought about the consequences even if you did not intend that B broke his arm.
31
Transferred intent can only be invoked when the tort intended and tort that results are:
1. Assault
2. Battery
3. False imprisonment
4. Trespass to land
5. Trespass to chattels
32
What is necessary to establish a prima facie case for intentional tort liability?
1. Act by defendant;
2. Intent; and
3. Causation.
33
When will a shoplifting detention be privileged? What conditions must be satisfied?
The following conditions must be satisfied:
1. There must be a reasonable belief as to the fact of theft;
2. The detention must be conducted in a reasonable manner and only nondeadly force can be used; and
3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation.
34
For 'outrageous conduct' under IIED, what must be proved?
Outrageous conduct is conduct that transcends all bounds of decency tolerated by society.
35
If conduct is not normally outrageous, how may it become so?
1. It is continuous in nature
2. It is committed by a certain type of D (common carriers or innkeepers may be liable even for mere “gross insults”)
3. It is directed toward a certain type of P (children, elderly persons, someone who is pregnant, supersensitive adults if the sensitivities are known to defendant)
36
Explain the requirements for IIED bystander cases
1. The P was present at the time
2. The distress resulted in bodily harm, OR the P was a close relative of the third party; and
3. The D KNEW these facts.
NOTE - P does not need to establish these requirements if she shows that the D had a design or purpose to cause severe distress to P.
37
What are the elements for a prima facie case of negligence
1. The existence of a legal duty owed by the D to that particular P;
2. Breach of that duty;
3. Actual and proximate cause; and
4. Damages
38
To whom is a DoC owed?
All foreseeable plaintiffs, i.e. the class of persons who were foreseeably endangered by the D's negligent conduct.
39
When is a rescuer a foreseeable plaintiff?
A rescuer is a foreseeable P when the D negligently put themselves/a 3rd person in peril
Danger invites rescue!
40
What is the firefighter's rule?
Firefighters and police officers are barred by the “firefighter’s
rule” from recovering for injuries caused by the inherent risks
of their jobs.
41
What is the basic standard of care owed under the duty?
Reasonably prudent person standard, i.e. did the D act with ordinary care?
OBJECTIVE standard - measured against what the average person would do.
All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims.
42
What happens where, in a negligent outcome, two or more causes have combined to cause an injury but none of the acts standing alone would have been sufficient? How are damages awarded?
But for any of the individual acts, the injury would NOT have occurred.
SO even though the P's damages resulted from negligence of 2 entities, neither sufficient to cause the full extend of the harm, the combined negligence satisfied the but for test.
The P can proceed against ONE party for all of his loss and this one party can then argue the other parties' liability in order to apportion or limit damages/implead them as a third party defendant or pursue an action for contribution after the judgment.
The absence of all the culpable parties from P's action does NOT affect the D's liability as jointly liable concurrent torfeasor, for the entire amount of P's awarded damages.
43
Is a Plaintiff required to introduce evidence to apportion responsibility between 2 negligent parties?
No, this is not for the P to do. The D will be liable for the entire amount of damages as a jointly liable concurrent tortfeasor and has several options to recoup damages.
44
Duty of care to unborn children - prenatal injuries. How might the parents of a child recover from a Dr's failure to diagnose a congential defect or properly perfrom a contraceptive procedure?
A duty of care is owed to a viable fetus.
HOWEVER, failure to diagnose a congenital defect/properly perform a contraceptive procedure does NOT permit an unborn, unwanted child to recover damages for 'wrongful life' (action brought by a child, a rarely successful claim, accepted by very few states).
The PARENTS (not the child) may recover economic damages for 'wrongful birth' and 'wrongful pregnancy'.
Wrongful birth = failure to diagnose the defect
Wrongful pregnancy = failure to properly perform a contraceptive procedure.
Generally - mother can recover damages for the medical expenses of labor and pain and suffering. Where child = disabled, patents may be able to recover damages for additional medical expenses of caring for child and in some states, may recover emotional distress too.
45
What is nuisance?
It is the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability.
46
What is a private nuisance?
A substantial, unreasonable interference with another private individual's use or enjoyment of property he actually possesses or to which he has a right of immediate possession.
It does not have to be continuous.
47
How can a plaintiff prevail on a private nuisance claim?
The P most demonstrate that:
The interference with P's right in his land is substantial. This means it's offensive, inconvenient or annoying to an average person in the community, i.e. not a P's hypersensitivity.
AND the nuisance is an unreasonable interference by showing that the injury outweighs the utility of the D's conduct
48
What can the P seek where a private nuisance cannot be removed without undue burden OR the nuisance has utility?
Damages for the reduction in property value of the affected P may be ordered.
IF nuisance has no utility and can be removed with no undue burden, the court might consider damages insignificant and grant injunctive relief to remove the issue.
49
What is a public nuisance?
An act that unreasonably interfered with the health, safety, or property rights of the community e.g. blocking a highway or using a building for criminal activities.
50
When is recovery available under a public nuisance?
Where a private party has suffered some UNIQUE damage not suffered by the public at large, e.g. pedestrian trips and falls due to an obstruction on sidewalk.
51
What are the defenses to nuisance?
1. Legislative authority - LA for a nuisance activity (e.g. a zoning ordinance) is NOT an absolute defense but is persuasive
2. Conduct of others - no one actor is liable for all damage caused by concurrence of their acts and others e.g. 2 mills are poluting a stream - each mill is responsible only for the pollution it causes
3. Coming to the nuisance - e.g. you buy land next to an already existing nuisance and then pursue an action - generally not a bar to P's action unless the P 'came to the nuisance' for the SOLE purpose of bringing a harassing lawsuit, SO - has plaintiff assumed the risk, thereby being barred from recovery by the fact that he has 'come to the nuisance'?
Prevailing rule: in the absence of prescriptive right, the D may NOT condemn surrounding premises to endure the nuisance - i.e. the purchaser is entitled to reasonable use or enjoyment of his land to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a harassing lawsuit.
4. Contributory negligence = generally no defense to nuisance unless P's case rests on a negligence theory.
52
What are the damages for nuisance?
Injunctive relief - used if legal remedy of damages = unavailable or inadequate (e.g. nuisance causes irreparable injury). Court will consider relative hardships. BUT hardships will NOT be balanced if D's conduct = willful.
Abatement by self-help - available after notice to D and their refusal to act. Only necessary force may be used. Public nuisance cases - only a public authority/private party who has suffered some UNIQUE damage can seek injunction or abatement.
53
How can trespass to land be distinguished from private nuisance?
In trespass to land, there is an interference with the landowner's EXCLUSIVE possession by a physical invasion of the land,
Private nuisance = interference with USE or ENJOYMENT.
54
What is recovery for the loss of the chance of survival? DO you need to establish cause in fact for it?
No, jurisdictions that allow recovery for the loss of the chance of survival have created an exception to the traditional common law rules of establishing cause in fact.
SO no need to state: 'but for D's action, would the P's harm have occured'.
Instead, the P is allowed to recover for their/the deceased's reduction in the deceased's chance of surviving that was caused by the negligence.
55
What must be established for a prima facie case for interference with business relations?
1. Existence of a valid contractual rship % P and a 3P OR valid business expectancy of the P
2. D's knowledge of the rship or expectancy
3. Intentional interference by the D inducing a breach or termination of the rship or expectancy
4. Damages
55
56
When might a D's conduct be privileged (i.e. a proper attempt to obtain business for itself or protect its interests) for the tort of interference with business relations?
Privilege = more likely to be found if the D:
1. interfered ONLY with P's prospective business rather than existing contracts;
2. used commercially acceptable means of persuasion rather than illegal or threatening tactics;
3. is a competitor of the P seeking the same prospective customers; or
4, has financial interest in or responsibility for the 3P/is responding to the 3P's request for business advice.
57
What are the 4 types of wrongs a P can recover for under invasion of privacy?
1. Appropriation of P's picture or name
2. Intrusion on the P's affairs or seclusion
3. Publication of facts placing the P in a false light
4. Public disclosure of private facts about the P
58
What needs to be met to establish a claim for 'intrusion on the P's affairs or seclusion' in invasion of privacy?
(1) an act of prying or intruding by the D on the affairs or seclusion of the P
(2) that the intrusion would be highly offensive to a reasonable person; and
(3) the thing to which there was an invasion or prying is private
This claim forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, and
other similar conduct.
59
To what claims is truth an absolute defense?
All types of defamation claims.
It is NOT a defense to invasion of privacy. A D can be held liable for public disclosure of private information, even if that information is true.
60
Do news-gathering and 'newsworthiness' provide a general immunity from tort law?
No!
61
What are the elements for battery?
1. harmful or offensive contact
2. contact must be with the P's person
(remember - for any intentional tort, you have to show: act; intent and causation. SO here it would be - harmful and offensive contact + intent by D to cause the harmful and offensive contact AND causation).
62
What constitutes 'harmful or offensive' contact in a battery claim?
Contact = harmful if it causes actual injury, pain or disfigurement
Contact = offensive if it would be considered offensive to a reasonable person.
63
In battery, can the contact be direct and/or indirect?
Yes, it can be both! E.g. direct - striking the P or indirect - setting a trap for P to fall into.
So it will be sufficient if the D sets in motion a force that brings about harmful or offensive contact to the P's person.
64
What does the Plaintiff's person mean for a battery claim?
Anything connected to the P e.g. clothing, purse
65
Do you need to show damages for a battery claim?
NO! P can recover nominal damages even if actual damages aren't proved.
P may recover punitive damages for malicious conduct.
66
Remember - what are the 3 things that must be established for any intentional tort?
1. An act by D
2. Intent by D
3. Causation of the result to the P from the D's act
Sentence to use: Liability for an intentional tort requires the P to prove that the D acted, with intent, and his action caused the result that gave rise to liability.
67
What is the doctrine of transferred intent? When does it apply?
Applies when the D intends to commit a tort against one person but instead:
- commits a different tort against that person
Commits the same tort as intended but against a different person OR
- commits a different tort against a different person
In such cases - the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.
e.g. a D who acts with the intent to commit an assault but whose conduct actually constitutes a battery is liable for battery.
68
Transferred intent may be invoked if both the tort and the intended tort that results are one of the following torts:
- Assault
- Battery
- False Imprisonment
- Trespass to land
- Trespass to chattels
69
If a D fires a shot at someone in self defense but that shot ricochets and hits someone else, will the D be liable to that P for battery under the doctrine of transferred intent?
No! The D was acting in self-defense. A defense to the intentional tort of battery is the privilege of self-defense - applies when the D reasonably believed that he was about to suffer harmful or offensive bodily conduct.
D is privileged to use the degree of force necessary to defend against such threatened harm. If D defended himself and harmed an innocent bystander in the process, this does not negate his self-defense shield. BECAUSE - self defense will transfer to a third party (i.e. injuries caused to a 3P) as long as the D did not act deliberately or negligently.
So even though doctrine of transferred intent applies, the acts of the D are privileged by self-defense.
70
How is self-defense determined?
When a D reasonably believes that they are being/about to be attacked, they must use such force as is reasonably necessary to protect against injury, i.e. D may only use the degree of force necessary to prevent that harm - D is liable for any force that was beyond what was necessary.
D has burden to prove that he reasonably believed that there was a real threat of harmful or offensive bodily contact or threatened confinement or imprisonment.
71
Is there a duty to retreat with self defense?
Majority rule = no duty to retreat.
BUT modern trend = duty to retreat before using deadly force if this can be done safely, unless the actor is in their home ('castle doctrine' - defend yourself w/o retreating in your own home).
72
Is self defense available to the initial aggressor?
NO, not unless the other party responds to the aggressors non-deadly force by using deadly force.
73
Can self-defense extend to 3P injuries (caused when the actor was defending themselves)?
Yes! But an actor might be liable to a third person if they DELIBERATELY injured the third person in trying to protect themselves.
74
What is defense of others? Is mistake permitted? How much force can be used?
One can use force to defend another when they reasonably believe that the other person could have used force to defend themselves.
Yes, a reasonable mistake as to the existence of the danger is allowed.
Defender may use as much force as they could have used in self defense if they were the one threatened with the injury.
75
What is defense of property? Is mistake allowed? How much force can be used?
One can use reasonable force to prevent the commission of a tort against their real or personal property. BUT must make a request to leave or desist first unless it would be clearly futile/dangerous.
Reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. Mistake is NOT allowed as to whether entrant has privilege (e.g. necessity) that supersedes the defense of property right.
Reasonable force may be used BUT you CANNOT use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm. ALSO means you can't set up deadly mechanical devises or traps to protect property.
76
What are the privilege that usurps defense of property (i.e. supersedes the defense of property right) and what does it entail?
Necessity = ONLY a defense to property torts.
A person may interfere with the real/personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
There is public or private necessity:
Public necessity = raised by D as a defense if they acted to avert an 'imminent public disaster'.
Private necessity = defense when the action was to prevent serious harm to a limited number of people. Actor must pay for any injury they case (unless act was to benefit the property owner).
77
What is an exception to the privilege of defense of property only applying to a tort that has not been committed?
You can use force in hot pursuit of another who has tortiously dispossessed the owner of the chattels because the tort is viewed as still in progress if the D is in the act of fleeing
78
Does the defense of property supersede someone with a privilege to enter onto the land of another (e.g. because of necessity, recapture of chattels etc)?
NO! The defense is not available against someone with a privilege. Whenever an actor has a privilege to enter onto the land of another, that privilege will supersede the privilege of the land possessor to defend their property.
79
How much force is allowed in self defense? And is mistake allowed?
One may use only that force that REASONABLY appears necessary to prevent the har, (including deadly force). If more force than is reasonably necessary is used, the defense is lost.
A reasonable mistake as to the existence of the danger is allowed.
80
What is a protective privilege?
It is a legal defense that justifies or excuses a prima facie tort.
It is a circumstance that recognizes a D's action stemmed from an interest of social importance and society wants to protect such interests by not punishing those who pursue them.
Includes: self defense, defense of others, defense of property
81
When can a protective privilege apply?
They are only available for PREVENTING THE COMMISSION of a tort - already committed torts do NOT qualify.
82
How do you apply the protective privilege - what 2 questions must you ask?
1. A determination that the privilege exists; AND
2. whether the D was privileged to use the degree of force that she did, in fact, use.
83
To what kind of torts is self-defense a defense? List the 6 most common examples of this.
Intentional torts (torts that result from an intentional act of the D):
1. Battery
2. Assault
3. False imprisonment
4. Trespass to land
5. Trespass to chattels
6. IIED
84
A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, what conditions must be satisfied?
1. A reasonable belief as to the fact of theft
2. The detention is conducted in a reasonable manner and only nondeadly force can be used
3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation
85
What are the key elements to the intentional tort of trespass to land? What intent is needed
1. Physical invasion
2. Of the P's real property
Intent to enter onto that particular pieced of land - D does NOT need to know that the land belonged to another.
86
Are damages required for trespass to land?
NO, the P can recover without showing actual injury to the land.
87
What qualifies as a physical invasion for trespass to land?
It can be made by a person or object.
If intangible matter enters (e.g. vibrations or odor) then the P may have a case of NUISANCE but is not trespass to land.
88
What is encompassed by 'real property' for the sake of the tort of trespass to land?
= not only the surface but also the airspace and subterranean space for a reasonable distance.
89
To whom does the trespass claim belong to?
The person with the right to possess the property - not necessarily the owner ,E.g. you enter a rented apt w/o permission - tenant has claim against YOU, not the LL!
90
Will a property owner still have a claim for trespass to property if he had been given notice of the intrusion before it occurred?
Yes!
91
In a dangerous storm, a driver parks his car in the driveway of someone's house. This is trespass BUT what defense could be used? What would happen if the landowner damaged the driver's car when expelling it from his driveway?
The driver did commit trespass as it was an intentional intrusion onto the homeowner's property. BUT this is privileged trespass because the storm created a necessity situation - so this is a protective privilege! The trespass was privileged by necessity.
A landowner has no right to forcibly expel a trespasser or a trespasser's property when the trespasser was driven by necessity to trespass on his land and the landowner is liable for any damage to the property of the trespasser
92
What are the 3 theories that a P can use to show proof of a breach of duty of care in a negligence claim?
1. Custom or usage
- can be used to show how a reasonable person should have behaved under the circumstance BIT not conclusive evidence - although a certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.
2. Violation of a statute
- where DoC is set by a statute under the riles that govern using statutes un negligence litigation, proof of violation of the statute = conclusive evidence of breach of duty = 'negligence per se'. P must still establish causation and damages.
3. Res Ipsa Loquitur - requires P to show:
(i) the accident causing the injury is a type that would not normally occur unless someone was negligent
(ii) the negligence is probably attributable to the D (this type of accident ordinarily happens because of the negligence of someone in the D's position) -> this can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the D.
(see separate card for effect).
93
What is the effect of res ipsa loquitur (when used prove that a DoC has been breached -> negligence).
When res ipsa loquitur is established, the P has made a prima facie case and no directed verdict can be given for the D. P can still lose if the inference of negligence is rejected by the trier of fact.
94
MBE questions re res ipsa loquitur often have the D making a motion for a directed verdict. What must you remember when addressing these questions?
1. Deny the D's motion for directed verdict (entered by judge when there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion) IF P has established res ipsa loquitur or presented some evidence of breach of duty (such as D's violation of a statute).
OR
2. Grant the D's motion if the P has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty.
95
What is joint and several liability? When does it come about?
When 2 or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (i.e. liable to the P for the entire damage incurred).
IF the injury is divisible, each D is only liable for the identifiable portion.
Joint and several liability applies even though each tortfeasor acted entirely independently.
96
Are medical professionals under a duty to warn 3Ps when a patient is a danger to himself and not others?
No
96
What is contribution and when is it NOT allowed?
Where joint and several liability exists, a P can recover the entire judgment from either D.
Contribution allows any tortfeasor required to pay more than his share of damages to have a claim against other jointly liable parties for the excess.
Contribution is NOT allowed in favor of those who committed intentional torts - even if the tortfeasor was equally culpable. Intentional tortfeasors will have to fully indemnify.
97
Explain the rule around intentional tortfeasors and contribution?
An intentional tortfeasor is liable for all the consequences of his wrongful action, intended, unintended and unforeseeable, including the negligent action of one who was affected by the wrongful act.
SO an intentional tortfeasor and a negligent actor may have both caused a crime but the intentional tortfeasor will have to fully indemnify the negligent actor (if the P pursued full judgment against them) for the full amount of the judgment.
98
In defamation, does it matter if no one believes the D and so the P's rep is not harmed?
No it doesn't matter, the defamatory statement just needs to be communicated to a 3P - (you can't prove that P's rep hasn't been affected in some way).
99
100
What must be estabslished for a negligence claim?
101
102
103
Are medical professionals under a duty to warn 3Ps when a patient is a danger to himself and not others?
No duty to warn others, such as the patient's family, of the danger. This is true even if the patient commits suicde and a close family member suffers great emotional distress as a result.
104
Where the D is a medical or social work professional who learns that a patient poses a specific danger to a third party, is there a duty on D to warn the 3rd party?
YES! Tarasoff case. There is a duty on medical professionals to warn a 3P if the 3P is in danger of harm by a patient but does not extend to situations where a patient is a danger only to himself.
105
For negligent infliction of emotional distress, explain how it can it can be tacked on to another tort?
When there has been PHYSICAL INJURY caused by the commission of a tort, the P can 'tack on' damages for emotional distress as a 'parasitic' element of their physical injury damages WITHOUT the need to consider the elements of the emotional distress torts.
BUT this will not work when the underlying claim is damage to property due to negligence - without any physical injury, courts generally do NOT permit non-economic emotional distress to be tacked on.
Property damage action generally allows damage sin form of reasonable cost of repair or FMV at time of accident.
106
What damages can a D seek for conversion?
FULL value of the item and replevin
= full value AT THE TIME OF THE CONVERSION
107
Is a common carrier strictly liable for injuries caused to a passenger whilst aboard the carrier?
NO! Common carriers are NOT strictly liable - they have a special DoC = the highest DoC and are liable for even the slightest negligence - this is NOT strictly liable (remember, strict liability = wild animals, defective products, abnormally dangerous activities).
108
Where someone is aboard a common carrier, is there an affirmative duty for a professional to act?
Yes, common carriers/passengers is an exception to the general rule that one is not under an affirmative duty to act.
109
Does someone have a legal duty to act? E.g. rescue?
No - there is no legal duty to act - there is NO duty to rescue. BUT there are exceptions to this.
110
What are the exceptions to there being no affirmative duty to act?
1. Special rship % parties e.g. parent/child, common carrier/passenger, innkeepers, shopkeepers
2. Peril due to own conduct - one has a duty to assist someone they have negligently or innocently placed in peril
3. Assumption of duty by acting - once a D undertakes to aid someone, they must do so w/reasonable care
[NB - good samaritan statutes enacted in many states - exempts drs, nurses etc, from liability for ordinary but not gross negligence].
4. Duty to prevent harm from 3Ps - only if one has the actual ability and authority to control a person's actions and knows/should know the person is likely to commit acts that would require exercise of this control.
111
Where there is a question in which a D is seeking a directed verdict, how must you approach?
A directed verdict is a ruling entered by a trial judge after determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a decision to the contrary.
SO for the D to be able to get one, he must show there is NO triable issue of fact - this is unlikely so usually the motion will be denied - there's almost always a triable issue of fact for the jury.
IF P moves for a directed verdict, their motion should always be denied except in the rare case where the plaintiff has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.
112
Is the intent for assault applicable to the intent for battery and why?
Because of the doctrine of transferred intent - when D intends to commit an assault (i.e. intended only to put P in FEAR of imminent or harmful contact), this will transfer to satisfy the intent element of battery. SO a D acting with the intent to commit an assault and ended up causing a harmful or offensive contact to the P, has committed a battery.
113
When is assumption of risk a defense?
To negligence and strict liability cases. NOT to intentional torts.
114
Does the actual contact in assault/battery have to be done personally by the D?
No, as long as the D set into motion an action with the purpose or knowledge to a substantial certainty that offensive or harmful touching would result.
115
What is apparent agency? What is the general rule?
General rule = a principal will not be held liable for tortious acts of his/her agent if they are an independent contractor.
The power of an agent to act on behalf of a principal. even if not expressly granted. This can arise if a third party reasonably infers, from the principal's conduct, that the principal granted this power to the agent. E.g. manufacturer supplying materials to an agent, agent's truck bearing manufacturer's logo and manufacturer being aware of agent's activities.
Means the P had a reason to believe that the person was an agent of the principal and would therefore have a basis for a claim against the principal.
116
What intent is required for intentional torts?
Intent to cause the harmful result OR acting with the knowledge that the harm is substantially certain to result
117
For IIED what other intent is there?
Intent to cause IIED
Acting with knowledge that IIED is substantially certain to result
Reckless disregard to the high probability that emotional distress would occur
118
For an IIED claim, the P must show severe/extreme emotional or mental distress. What does this require a showing of?
At a minimum = sufficiently sever that the P sought medical aid for it.
P must also show that conduct was such that a reasonable person would suffer such distress.
No recovery for an unusually sensitive.
Most modern courts do NOT require a showing of actual physical harm to establish severe distress.
119
Does NIED require the P to show that they had physical symptoms?
NIED requires the P to show emotional distress and this is sometimes (in some jx), physical symptoms, such as a heart attack.
120
Is mistake as to the lawfulness of entry a defense for trespass?
NO! As long as D intended entry upon that particular piece of land - intent to trespass is not necessary, only intent to enter the land is required.
As with most intentional torts - damages are presumed so don't need to show actual injury.
If D extends a property onto someone else's land and so is guilty of trespass, if he then sells the property, he is still liable in tort for his intentional trespass.
121
Does the doctrine of trasnferred intent apply when a LEGAL act results in harm to a P?
No - for the intent to be transferred, it needs to have been the intent to commit a tort.
e.g. someone is shooting a deer (a legal activity) and accidentally shoots a man - the hunter was doing a legal intent and so his intent cannot be transferred.
122
Why might a child D not be able to recover under attractive nuisance doctrine?
For attractive nuisance doctrine to apply, the child must be too young to appreciate the danger. Where a child is old enough to see what they are doing is dangerous, they cannot recover.
The attractive nuisance doctrine is an exception to a landowner not being liable for any unknown trespassers.
123
For a P to bring a claim of bystander emotional distress, must the D have been negligent?
There must have been a negligent
The accident that caused the emotional distress MUST have come about negligently. So the P must be in a close rship with the victim of the D's negligence, as well as be present and observe the event.
SO D must have at least acted negligently in a way that causes ED to the P.
124
Under what class of person is a shopper in a supermarket
They are an invitee =. a person who enters onto the premises in respect to an express/implied invitation of the landowner.
125
What are the 2 classes of invitee?
(1) those who enter as members of the public for a purpose for which the land is held open to the public (e.g. museums, churches, airports); and
(2) those who enter for a purpose connected with the business or other interests of the landowner or occupier (e.g. store customers, employees, delivery persons).
126
When does an invitee lose their status? What does it become?
If he exceeds the scope of his invitation - i.e. goes into portion of the premises where his invitation cannot be reasonably said to extend.
Their status becomes that of trespasser - known trespassers are still owed a duty of warning/making safe known artificial conditions that involve a risk of death or serious bodily harm that the trespasser is unlikely to discover.
So even though a business may avoid liability when an invitee exceeds the scope of the invitation by entering into unauthorized portions of the premises the building must still (at least) warn of known non-obvious artificial perils even when the invitee becomes a 'trespasser'.
127
What duty does a landowner own an invitee?
General duty to warn or make safe non-obvious, dangerous conditions known to the landowner and use ordinary care in active operations on the property (like a licensee) PLUS a duty to make reasonable inspections to discover dangerous conditions and make them safe.
128
when is the 'make safe' requirement met for an invitee?
When reasonable warning has been given. A duty to warn will not exist where the dangerous condition is so obvious that the invitee should reasonably have been aware of it, based on the surrounding circumstances.
129
What are the 3 exceptions to an express assumption of risk (/a contractual limitation of liability)?
3 exceptions:
(i) when the party protected by the clause either intentionally causes the harm, or causes it by reckless or grossly negligent conduct
(ii) when the bargaining power of the protected party is grossly greater than the other party - usually when the good/service being offered is 'essential' e.g. services of public carriers/utilities; and
(iii) when there is an overriding public interest that demands the court refuse to enforce the exculpatory clause (i.e. it would be against public policy to enforce it) - often overlaps with the exception regarding unequal bargaining power.
- A court might find that it is against public policy to permit individuals or businesses to insulate themselves from all liability because it would deter the exercise of caution without any fear of negligence liability
130
When there is a situation where a D thinks he is saving a P from a dangerous situation (which did not actually exist) and in the 'saving' he actually causes the P harm (e.g. pushes her out of the way of an oncoming car and P falls and breaks her leg), will the D be liable for battery?
General rule: if someone sees a 3P being attacked/in danger, they have the privilege of using reasonable force to intervene.
Protective privileges = defenses to intentional torts = self defense, defense of others, defense of property, shopkeeper's privilege
For defense of others - the person can make a reasonable mistake about the need for force and the degree of danger to the 3P.
SO if D makes a NEGLIGENT mistake about whether the 3P = in physical danger (i.e. unreasonably believes that they are in danger), or about whther their proposed physical contact will help avoid danger, the D will NOT be able to invoke the defense-of-others defense. AND so the D will be liable for a battery claim as it was unreasonable for the D to believe the P was in danger.
131
Where there is a scenario where a shopkeeper has negligently failed to set an alarm on a gun cabinet and a criminal is then able to steal a gun from the cabinet and shoot someone (P). Is P able to proceed against the shopkeeper for negligence on the basis that because the shopkeeper failed to set the alarm, the gun was stolen and he was shot? What is this question asking you to address?
The issue here is negligence and foreseeability.
Causation must be actual and proximate. Actual = 'but for, proximate = foreseeability and is a legal limit on actual causation to address unforeseeable harms.
HERE, there is a superseding event (the criminal coming in and stealing the gun). A Defendant is not liable for unforeseeable events that occur AFTER the D's actions and cause the harm. Classic example = acts of God and intentional crimes.
SO the criminal's intentional criminal act cuts off the shopkeeper's liability under proximate causation. BUT if the act of the criminal had been FORESEEABLE then the shopkeeper would be liable. SO if it had been a high crime area then an intentional crime is still potentially foreseeable. Looking to see - do such things normally happen?
132
Does the learned intermediary doctrine apply to the sale and use of over-the-counter medicine?
NO! The learned intermediary doctine insulates manufacturers of prescription drugs from liability if they provide adequate warnings to prescribing physicians - so it has NO application to over-the counter meds.
