Torts Flashcards
1
Q
Elements for intentional torts
A
- Voluntary Act
- Intent
- Causation
- Harm
2
Q
What is a voluntary act?
A
Something conscious or willed, as opposed to purely reflective.
3
Q
What intent is required for a voluntary tort?
A
Purpose, knowledge, or transferred intent
4
Q
What is purpose intent?
A
D desires the act to cause the harmful result
5
Q
What is knowledge intent?
A
D knows with substantial certainty that the result will occur
6
Q
What is transferred intent?
A
if D acts with necessary intent to inflict certain intentional torts to against A, but causes harm against B, intent is transferred to B.
7
Q
Which torts does transferred intent apply to?
A
Battery, assault, false imprisonment, trespass to land, trespass to chattels
8
Q
What is tort battery?
A
D intentionally or knowingly causes harmful or offensive contact to the person or something physically closely connected to the person.
P doesn’t need to be aware, doesn’t have to prove actual injury
9
Q
What is a harmful or offensive contact
A
Inflicts pain or impairs any function of the body; or offensive to a reasonable person
10
Q
What is assault in torts?
A
D intentionally or knowingly causes P to be in reasonable apprehension of an imminent harmful or offensive contact.
Words alone are not enough.
11
Q
What is reasonable apprehension?
A
Objective standard - a reasonable person in the same position would have experienced the same apprehension.
Factual impossibility is not a defense - doesn’t matter whether D could actually carry out the threat.
12
Q
What is the tort of false imprisonment?
A
D intentionally or knowingly causes P to be confined to a bounded area against P’s will and P knows of the confinement or is injured by it.
13
Q
What is confinement in a bounded area?
A
No duration requirement.
No knowledge of a reasonable means of escape - can’t risk harm to P or property or exposure to risk of embarrassment.
14
Q
What is intentional infliction of emotional distress?
A
D engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distress.
15
Q
What is recklessness?
A
D knows of a high degree of risk and acts in conscious disregard of it.
16
Q
What is extreme and outrageous conduct?
A
Conduct that exceeds all bounds tolerated by civilized society
17
Q
Is offensive or insulting language considered extreme and outrageous conduct for intentional infliction of emotional distress?
A
No.
Unless:
- D is a common carrier or innkeeper
- D knows of P’s particular sensitivity
- D is an authority figure using racial/ethnic slurs against a subordinate
18
Q
What is severe emotional distress?
A
Greater than the reasonable person would be expected to endure. Objective test.
Does not need to prove physical injury.
Must be substantial/long lasting, not just trivial/transitory.
19
Q
What is trespass to land?
A
Intentional or knowing physical invasion of P’s land that interferes with P’s possessory interest in the land.
Mistake is not a defense.
Anyone in possession of the land can bring a claim.
20
Q
What is physical invasion of land?
A
Entry or causing someone or something to enter.
Refusal to leave when under a legal duty to do so.
21
Q
What remedies are available for trespass to land?
A
Nominal damages, full extend of harm, restitutionary remedy of ejectment
22
Q
What is trespass to chattels?
A
D interferes with (uses or borrows without authorization) P’s chattel (personal property) causing damages.
Mistake is not a defense.
Actual damages to chattel or value of loss of use or cost to remedy.
23
Q
What are the remedies for trespass to chattels?
A
Cost of repair, fair market rental value, potentially punitive damages if willful, wanton, or malicious conduct.
Replevin - getting back personal property of which you’ve been wrongly dispossessed.
24
Q
What is the tort of conversion?
A
Intentional act by D, where D exercises dominion or control that causes the destruction of, or serious and substantial interference with, P’s chattel.
Mistake is not a defense.
25
What are the remedies for conversion?
Forced sale: price will be the fair market value at the time converted.
Replevin: action brought by P to get personal property back.
D is liable for the full value of the chattel at time of conversion.
26
What are the defenses to intentional torts?
1. Privilege
2. Defense of others
3. Defense of property
4. Consent
5. Authority
6. Necessity
7. Self-Defense
27
What is defense of others for torts?
Have the right the right to defend others if it reasonably appears they would have the right to defend themselves.
A reasonable and honest mistake is allowed.
28
When can you defend property?
Can use reasonable force.
Can never use deadly force.
29
What is recapture of chattels?
Can use reasonable, non deadly force to get back your own personal property if:
- you request it’s return first, or request would be futile. AND
- you’re in hot pursuit.
30
What is express consent for intentional torts?
Affirmatively communicates permission for D to act.
Limited by reasonability. Cannot exceed scope of consent.
31
What is implied consent for intentional torts?
A reasonable person would interpret P’s conduct as evidencing permission to act.
Ex: participating in a football game implies consent to battery.
32
When can mistake/deception negate consent for intentional torts?
when it goes to the consequences or nature of the act, not just a collateral matter.
33
Who can assert authority as a defense for an intentional tort?
A police officer.
A shopkeeper.
A parent or teacher.
34
What is the shopkeeper’s privilege?
A shopkeeper is not liable for false imprisonment if he had a reasonable suspicion that P stole.
Can hold P for a reasonable period and in a reasonable manner on the premises or immediate vicinity.
35
What is the necessity defense to intentional torts?
D is permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater harm to the public, self, or D’s property.
36
When is private necessity a defense?
If a reasonable person would believe the act taken was necessary to avoid the harm, even if D made an honest mistake.
D is not liable for the tort, but will be liable for the harm caused.
37
What is self-defense for intentional torts?
When D honestly and reasonably believes D used reasonably force to prevent P from engaging in an imminent and unprivileged attack.
Must respond with proportional force - never use deadly force against a non-deadly threat.
One never has to retreat from their own home.
38
What are the elements of negligence?
1. Duty (Standard of care)
2. Breach
3. Cause in fact (actual cause)
4. Proximate cause
5. Damages
39
What duty does the defendant owe in negligence cases?
D has a duty to act as an ordinary, prudent, reasonable person taking precaution against an unreasonable risk of injury to foreseeable Ps.
40
Who are foreseeable plaintiffs?
Persons inside the geographic zone of danger at the time of negligence.
Nonprofessional rescuers are always foreseeable Ps.
41
What is nonfeasance?
Failure to act when a legal duty is owed.
42
Who has a duty to rescue?
- D tortious act creates the need to rescue.
- A person must act reasonably if they undertake a rescue - can’t leave them worse off.
- a special relationship of dependence or mutual dependence.
43
When do you have a duty to control a 3rd party?
Not generally, but you do have a duty if you’re in a special relationship that gives the 3rd party a right of protection or imposes a duty to control conduct.
44
What duty do providers of alcohol have?
Traditionally - no responsibility for DUI injuries
Dram shop acts: impose liability when the establishment knows or should know that a patron is drunk and drives while intoxicated.
45
What is negligent entrustment?
When D gives something dangerous to someone D knows or should know is not competent to handle it.
46
When do you have a duty to protect?
When there’s a special relationship.
47
When does a governmental entity owe a duty?
Depends on function.
- proprietary function (acting in private area): treated like any other D.
- discretionary activity: no duty.
- ministerial function: duty once government has undertaken to act.
48
What is the public duty doctrine (professional rescuers)?
Professional rescuers have no duty when they fail to provide an adequate response unless:
- special relationship
- the agency has increased the danger beyond what would otherwise exist.
49
What is negligent infliction of emotional distress?
D engages in negligent conduct, and, as a result, P suffers emotional distress with physical manifestation.
P must be in zone of danger and have physical manifestation, unless:
- negligent mishandling of corpse
- negligent sharing of information about death of loved one.
50
What are bystander actions?
- P was located near the scene of the accident
- P suffered severe emotional distress
- as a result of an injury to a close relative.
51
What is wrongful conception?
Birth of a healthy child after the P took steps to avoid conception.
Often a negligently performed sterilization procedure.
52
What is wrongful birth?
Birth of a child with abnormalities, disease, or disability when the physician negligently failed to diagnose issues during the pregnancy.
P must claim she would have ended the pregnancy had she had the information.
53
What is wrongful life?
Child’s claim for having been born with abnormalities, disease, or disability because the physician failed to diagnose issues during the pregnancy.
54
What is an invitee?
P who enters land at D express or implied invitation for a purpose relating to D interest or activities.
55
What duties are owed to invitees?
- reasonable care to prevent injuries caused by activities on D’s land
- duty to reasonably search out dangers on the property.
56
What is a licensee?
P who enters D’s land with express or implied permission, and is not there for a purpose benefiting D or D’s activities, not public land.
Social guests.
57
What duties are owed to licensees?
Warn of known concealed dangers that are not obvious/
58
What duties are owed to trespassers?
Generally, avoid willful or wanton harm.
Known/frequent trespassers - warn of known and concealed dangerous artificial conditions.
59
What is attractive nuisance?
A trespassing child will be treated as an invitee if:
- child is too young to appreciate the danger
- D knows or has reason to know of the trespass
- D knows of dangerous condition
- Condition is artificial
The risk of danger of the condition outweighs its utility and burden to fix it.
60
What duties are owed to Ps adjacent to land?
Artificial condition - reasonable care
Natural condition - no duty except trees in urban areas
61
When is a landlord liable to tenants for negligent conduct?
- common areas over which LL retains control
- negligent repairs
- at time of lease, LL knows of concealed dangerous conditions
OR
- LL knows that T is going to hold property open to public
62
What is the standard of care for negligence?
A reasonably prudent person under the same or similar circumstances. Objective expectation of conduct within the community.
Can take into account physical conditions and emergencies not of D’s own making.
Individuals with special skill/knowledge should use that.
63
What is the standard of care for children?
What a reasonable child of the same age, experience, education, and intelligence as D.
Unless: Child engaging in inherently dangerous adult activities is held to an adult standard of care.
64
What is negligence per se?
Where D’s conduct also violates a statute that does not provide for civil liability, that statute can provide the standard of conduct or breach of duty purposes.
P would still need to prove causation and damages.
65
When does negligence per se apply?
- P is a member of the class the law is designed to protect.
- injury cased by the conduct is the type the statute sought to protect.
66
What is the standard of care for doctors?
The knowledge, skill, and training of other physicians in good standing in the relevant geographic community.
- Specialists are held to a national standard.
67
What is the standard of care for non-medical professionals?
Custom - the professional has not breached if they follow a reasonable/not outdated custom.
68
When is a doctor liable for lack of consent/divulging risk?
- liable for battery if no informed consent about risk.
- Traditional - must divulge risks that are customarily divulged in the same circumstances.
- New Trend - physician must divulge material risks - ones a reasonable patient would want to know.
69
When is there a breach for slip and fall cases?
When D was negligent for not discovering and repairing the dangerous condition.
The dangerous condition must be present long enough that D should have noticed it.
Invitee - duty to reasonably search out dangers.
70
What is res ipsa loquitur?
Allows jury to infer D’s breach based on the nature of the accident and D’s relationship to it.
P must show:
- this sort of accident doesn’t occur without negligence
- D is probably the responsible party because D had control over the instrumentality of the harm
- P did not contribute to injury.
Usually can’t use in multiple D cases unless the team is acting as a unit.
71
What is cause in fact (actual cause)?
But for cause
72
What is multiple causes/substantial factor test?
When 2 D’s cause harm, but each D would have been enough to cause entire harm along.
Each D is a cause in fact if each was a substantial factor in causing harm.
73
What is loss of chance caustation?
Usually medical malpractice, minority rule.
P must show that but for the medical malpractice, P would not have lost the chance to survive.
Can reduce damages, but not extinguish.
74
What is alternative liability theory?
- all D’s are tortious/neglient
- all are being sued together
- small number of Ds
- unclear which one caused the harm
Burden shifts to D’s to show they were not the cause - if not, they’ll be jointly/severally liable
75
What is market share liability?
- several defendants acting independently
- each manufacturing or selling a generic, identical product
- apportions liability based on each defendant’s market share for the product
76
What is the eggshell skull rule?
Take your victims as you find them. It’s doesn’t matter if the extend of the harm is unforeseeable, so long as the type of harm is foreseeable.
77
What is a superseding cause?
Unforeseeable, intervening cause that breaks the chain of causation and relieves liability for lack of proximate cause.
78
What are compensatory damages in torts?
Returns P to the pre-injury position.
- type of damages must be foreseeable
- must be reasonably certain
- not avoidable
79
What is the avoidable consequences rule?
P must take reasonable steps after injury to not increase or exacerbate injury.
80
When are punitive damages appropriate in torts?
Never for just simple negligence. Must be willful, malicious, or reckless.
No more than 10 times compensatory damages.
81
What are the defenses to negligence?
1. Contributory negligence/comparative fault
* Assume pure comparative fault
2. Assumption of the risk
82
What is contributory negligence?
Any fault by P bars recovery.
83
What is the last clear chance doctrine?
Only applies in context of contributory negligence.
If D had last clear chance to avoid the harm, then P is entitled to full recovery.
84
What is comparative fault?
ASSUME COMPARATIVE FAULT UNLESS TOLD OTHERWISE
P can recover no matter how much at fault, but damages limited by proportion that P is at fault.
85
What is modified comparative fault?
P is barred from recovery if P is as much at fault or more at fault than D.
86
What is assumption of risk?
P relieves D of responsibility to be non-negligent, usually through waiver.
Not allowed for necessities.
87
When does P impliedly assume the risk?
When P
- knew of and appreciated the nature of the risk
- appreciated specific danger that injured P
AND
- voluntarily chose to subject themselves to that danger.
88
Can professional rescuers recover for negligence?
NO - they assume the risk.
Where P is a professional rescuer and is injured due to the inherent risk of the job, they cannot recover in negligence against the person who created the need for the rescue.
This is different from Good Samaritans.
89
When is strict liability applied?
Wild Animals
Abnormally Dangerous Activities
Products
90
What is the Wild Animal Rule?
If D keeps a wild animal and P gets injured because it does something characteristic of that wild animal, D is liable regardless of how unforeseeable the harm.
Ex: D liable for attack by pet tiger, even if usually gentle, but not liable to someone allergic to tiger fur.
91
What is the domestic pet rule?
Every dog gets one free bite. Owner not liable unless on notice of the danger.
92
What is an abnormally dangerous activity?
- there is serious risk of harm to others
- D cannot engage in the activity without risk and cannot eliminate risk
- not a commonly undertaken activity in the community
P can recover absent proof of fault as long as D was involved and the activity caused the har,
P must be injured by the risk that makes the activity dangerous.
93
Is contributory negligence a defense for strict liability?
Generally no.
Unless: P knew of danger and his action caused the danger to manifest.
94
Who can sue for strict products liability?
Any P who is a user, consumer, or bystander physically injured by the product.
95
Who can be sued for strict products liability?
Commercial suppliers at all levels of the distribution chain, including retailers. Does not include occasional sellers and service suppliers, unless the goods predominate the service.
96
What are the three categories of defect for strict products liability?
- Manufacturing defect
- design defect
- defective warning
97
What is a manufacturing defect?
Product is in a condition not intended by the manufacturer and the defect existed when the product left the manufacturer’s hands.
98
What is a design defect for strict products liability?
Made as intended by manufacturer, but still presents a danger due to a flawed design.
99
What are the two tests for a design defect for strict products liability?
Ordinary consumer expectation test - more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community.
Risk-Utility Balancing Test - jury determines whether the danger of the design outweighs its utility to society. Product found defective if an alternative design could have reduced danger at about the same cost.
100
When is a warning defective for strict products liability?
Warning is inadequate - does the warning reasonably inform a reader of the risks of the product and how to reduce them?
No warning - manufacturer has to warn about the risks it knows or should know of. Consider risk and gravity of harm.
101
How is cause in fact shown in strict products liability?
The defect that injured P was in existence at the time the product left D’s control.
102
What is the learned intermediary doctrine for strict products liability?
If a manufacturer provides warning to a doctor, the manufacturer can expect the doctor will pass the warning on to the patient. If not, the doctor is a superseding cause of P’s harm.
103
When are damages recoverable for strict products liability?
When there is personal injury or property damage other than to the product itself. Consequential/subsequent economic damages are not enough.
104
What are defenses to strict products liability?
- Misuse - P’s use is not intended or foreseeable.
- Alteration - must occur after the product left control of manufacturer and before injury.
- Assumption of risk - knew of defect, comprehended risk, voluntarily chose to expose to risk.
105
When can a P bring a product liability claim on a warranty theory?
Express warranty - D makes specific representation that becomes basis of bargain.
Implied warranty of merchantability - goods are of average quality for goods of that kind and generally for for the purpose for which they are used.
- Only claim P can pursue when only harm is to the product itself.
106
What is a public nuisance?
An unreasonable interference with a right common to the general public
- individual must show specific harm different from other members of the public to bring claim.
107
What is a private nuisance?
A thing or activity that substantially and unreasonably interfered with P’s use and enjoyment of P’s land
- usually intentional, once D is placed on notice and doesn’t stop.
108
What are the factors for balancing private nuisance?
1. Value of D’s activity
2. Whether there are alternatives
3. Nature of locality
4. extent of P’s injury
5. Who was there first
109
What is the remedy for private nuisance?
Injunction - equitable relief
Must show that P is suffering of will suffer irreparable harm and damages are inadequate.
110
What is defamation?
D intentionally or negligently published defamatory material concerning P that caused reputational harm.
- someone other than p must see the message.
111
What is the republication rule for defamation?
Other people who repeat the defamatory message are potentially liable as well as the person who originated it.
112
What is defamatory material?
Subjects P to scorn, ridicule, or deters others from dealing with P causing reputational harm,
113
What is libel?
Defamatory message embodied in any relatively permanent form.
Reputational harm is presumed, but damages have to be proven.
114
What is slander?
Defamation in spoken form.
P must prove special damages - specific economic losses.
115
What is slander per se?
- behavior or characteristics incompatible with the proper conduct of D’s business, profession, or office.
- commission of a crime involving moral turpitude or infamous punishment (prison/death)
- loathsome disease
- women’s chastity
116
What are absolute privileges to defamation?
- spousal communication
- on the floor of the legislature
- in judicial proceedings
- can make a defamatory statement to someone to allow them to protect their interests, (but not if someone else can hear)
117
Defamation of a public official or public figure
If about capacity as a public official, P must prove actual malice by clear and convincing evidence.
Truth is a defense.
118
Defamation of a private figure
Public concern - P must show negligence. For presumed or punitive damages, show actual malice. Truth is a defense.
Private concern - P does not have to show malice for damages. Truth is a defense.
119
What is intrusion into seclusion?
D unreasonably intrudes into P’s seclusion (zone of privacy).
Intrusion must be highly objectionable to a reasonably person.
120
What is commercial appropriation of likeness or identity?
Unauthorized use of P’s name, voice, or likeness for D’s commercial advantage.
Newsworthy purpose is exempt.
121
What is public disclosure of private facts?
Disclosure of private facts, disclosure of which is highly offensive to a reasonable person and not newsworthy or public record. Requires publication or dissemination.
Can get injunction.
122
What is portrayal in a false light?
Publication of false information, the divulging of which is highly offensive to a reasonable person, and some level of fault (like defamation rules)
123
What is malicious prosecution/wrongful institution of civil proceedings?
Legal proceedings instituted by D for an improper purpose and without probable cause, that terminate favorably for P and cause P damages.
P must win underlying case on the merits.
124
What is Abuse of Process?
D intentionally misuses a judicial process for a purpose other than that for which it was intended.
125
What is intentional misrepresentation (torts)?
Intentional material misrepresentation by D of past or present fact, made with knowledge, on which P justifiably relies to P’s economic detriment.
Can be false assertion or active concealment.
126
When is a failure to disclose an intentional misrepresentation (torts)?
- fiduciary relationship
- ambitious or misleading statement causes reliance
- D makes an assertion believing it to be true but doesn’t correct later
- D makes a false assertion not intending reliance but later discovers reliance and doesn’t correct.
- P reasonably expects disclosure
127
What is negligent misrepresentation?
No duty to avoid negligent infliction of pure economic loss.
Exceptions:
- special relationship
- D acts for 3rd party and 3rd party relies and suffers loss
128
What is interference with contractual relations?
- d knew of a contract between p and 3rd party
- D acted with the purpose of having the contract breached or making it harder to perform
129
What is interference with prospective economic advantage?
D knew of prospective economic advantage and acted to interfere with it for improper motives.
D is allowed to act to protect their own competitive interests.
130
What is injurious falsehood?
False statement made with actual malice, knowingly, or reckless to truth, made to another or published, causing specific economic injury to P
131
When is an employer liable for actions of employees?
- Directly liable if negligent hiring
- vicariously liable if negligence within scope of employment
- may be liable for intentional torts to further employers purpose
132
When is a parent liable for torts of their child?
Not generally.
May be liable for negligent supervision or entrustment.
133
What are survival statutes?
The death of the victim or tortfeasor does not terminate a claim. Claim can be brought by estate of decedent.
134
What is a wrongful death action?
Heirs or estate can bring action for wrongful death for their own losses resulting from the victims death.
135
What is loss of consortium?
When a spouse is killed, the surviving spouse can bring a claim for intangible injuries of loss, comfort, companionship, etc.
136
What must be proven for attorney malpractice?
1. Attorney negligence
2. But for the attorney negligence, the client would have recovered
