Torts Flashcards
(174 cards)
1
Q
Intentional Torts - General elements
A
Volitional act (affirmative, not reflexive or unconscious), intent (not motive, “volition” shown by desiring consequences or having purpose to bring about consequences or knowing such consequences are substantially certain to occur, children can form intent), actual causation (but for/substantial factor, liable for all consequences).
2
Q
Intentional Torts - Transferred intent
A
A intends to commit a tort but instead commits a different tort against the same or different person, in both cases, the intent is transferred to the actual tort or person. Applies to battery, assault, false imprisonment, trespass to land, trespass to chattels.
3
Q
Intentional Torts - Battery
A
Harmful or offensive contact with P’s person; A acted with intent to cause such contact or imminent apprehension of such contact with P’s person; A’s act caused such contact.
4
Q
Battery - Intent
A
If something closely connected to P. Intent need not be aware of contact. Delayed contact OK.
5
Q
Intentional Torts - Assault
A
Act by A creating reasonable apprehension in P of imminent harmful/offensive contact with P’s person; A acted with intent to cause such apprehension or contact; A’s act caused P’s reasonable apprehension of such contact.
6
Q
Intentional Torts - False imprisonment
A
Intentional confinement of P to bounded area against P’s will; P must be aware of or harmed by confinement. No reasonable means of escape known to P. Embarrassment OK. Not by purported harm to future threats.
7
Q
False imprisonment - Shopkeeper’s privilege
A
Shopkeeper can detain a shoplifter for a reasonable period of time in a reasonable manner (can also be defense to battery if the shopkeeper has reasonable suspicion to believe that the detained person committed or attempted to steal store property).
8
Q
Intentional Torts - Intentional infliction of emotional distress (IIED)
A
Extreme and outrageous conduct intentionally or recklessly intended by A that causes severe emotional distress (actual damages) (only intentional tort requiring damages).
9
Q
IIED - Damages
A
Actual damages for severe emotional distress, not nominal damages, is required.
10
Q
IIED - Third parties
A
A intentionally or recklessly causes severe emotional distress; 1. A knows P is present + distress is caused by P’s close family relative of 3P (bodily harm not required) + 3P’s emotional distress is so bad that it results in bodily harm to 3P (heart attack, stroke, etc).
11
Q
Intentional Torts - Trespass to land
A
A’s intentional act (not necessarily to trespass) causes physical invasion of P’s real property.
12
Q
Trespass to land - Physical invasion
A
If A intentionally enters, causes physical invasion (e.g., light, pesticide) land, not 3P, noise or vibration.
13
Q
Trespass to land - Damages
A
Not required for intentional entry. Required for negligent, reckless, strict liability trespasses.
14
Q
Intentional Torts - Trespass to chattels
A
Intentional interference with P’s possessory right to personal property (includes pets).
15
Q
Trespass to chattels - Dispossession
A
Direct interference with possession - taking or intermeddling (damaging).
16
Q
Trespass to chattels - Conversion
A
Substantial interference with P’s possessory right to personal property.
17
Q
Conversion - Remedy
A
May recover rental value or full FMV at time of trespass/conversion (damages) or possession (replevin).
18
Q
Intentional Torts - Defenses
A
Consent: A’s conduct, not its consequences. It had capacity + express/implied consent + within scope.
19
Q
Defenses - Self-defense
A
A may use force reasonably believed to be necessary to avoid imminent harm by P.
20
Q
Self-defense - Reasonable
A
Reasonable and proportionate to P’s force if reasonable person would have believed under attack.
21
Q
Self-defense - Deadly
A
Where there is a duty to retreat (e.g., state), it only applies when deadly force is being threatened, and there is a safe way of escape. No duty to retreat from home.
22
Q
Defenses - Defense of property
A
A must first demand that P vacate the conduct before using reasonable force in defense.
23
Q
Defenses - Defense of others
A
A may act if A reasonably believed that the force is necessary to avoid imminent harm (to the same extent that 3P would be entitled to defend himself from P).
24
Q
Defenses - Necessity
A
Property torts only, e.g., trespass to real property (land) or interference on personal property.
25
Necessity - Public necessity
A may interfere with P's property to protect public from harm (absolute defense).
26
Necessity - Private necessity
A may interfere with P's property if threatened harm is substantially greater than harm A caused by interference. A is liable for any harm caused (unless benefit to P).
27
Negligence
28
Negligence - Duty
To be liable for negligence, A must fail to exercise such care as a reasonable person in his position would have exercised, his conduct must be foreseeable to the risk of harm to anyone in P's position, and this harm must cause P's damages.
29
Duty - Cardozo's Majority View
A owes a duty not to subject P to unreasonable risk of harm. Only to foreseeable Ps.
30
Duty - Andrews' Minority View
A has a duty of care to everyone, foreseeable or unforeseeable.
31
Duty - Foreseeable harm
A duty is owed to P only if P is among the foreseeable victims who might be harmed (Cardozo - Majority View).
32
Duty - Special relationships
Parent-child, common carriers, innkeepers, school-student. Duty to control third parties.
33
Negligence - Rescue
A has no duty to rescue except if A’s rescue caused further harm or the rescuer was negligent. A has a duty to act as a reasonably prudent person in a similar situation.
34
Negligence - Negligent infliction of emotional distress (NIED)
P must be in zone of danger and have suffered physical symptoms (shock). Bystander liability applies if P was present, close relative, and suffered emotional distress.
35
Negligence - Standard of care
Duty to act as a reasonably prudent person in similar circumstances. Higher standard for professionals and children held to standard of children of similar age, experience, intelligence.
36
Negligence - Standard of care (statutory)
Applicable when a statute provides for criminal penalty and defines the standard if 1) the class of persons the statute was designed to protect, and 2) injury type statute designed to prevent. Violation is negligence per se. EXCEPTIONS: Compliance is beyond A’s control or more dangerous than violation.
37
Negligence - Children
Held to standard of reasonable child of same age, experience, intelligence, unless adult activity
38
Negligence - Landowners
Different types of duty to different types of entrants.
39
Landowners - Invitee
Someone who enters land open to public with intent to confer economic benefit. Exercise reasonable care to prevent injuries.
40
Landowners - Licensee
Someone who enters land not open to public, but no intent to confer economic benefit (guest). Duty to warn of or make safe known dangers.
41
Landowners - Trespasser
Someone who enters land without express/implied consent.
42
Landowners - Anticipated/known trespasser
Duty to warn or make safe known, artificial, highly dangerous conditions.
43
Landowners - Children
Attractive nuisance doctrine: Duty to exercise ordinary care to avoid foreseeable risk of harm to children caused by artificial conditions on property. 1) Dangerous condition known/should be aware, 2) Owner knows/should know children frequent vicinity, 3) Condition likely to cause injury (because of child’s inability to appreciate risk), 4) Expense of remedying danger is outweighed by risk.
44
Landowners - LL-T liability
Common areas (lobby), negligent repairs, known hidden defects, reasonable care to discover and repair defects if LL knows T is going to hold property open to public.
45
Negligence - Professionals
Required to possess and exercise the knowledge and skill of a member of the profession in good standing. Medical specialists held to national standard. General practitioners held to local standard.
46
Negligence - Custom or usage
Evidence to establish standard of care, but a court may find that entire industry is negligent.
47
Negligence - Breach
A’s conduct falls below the required standard of care. Hand formula: Probability of harm x Magnitude of potential harm > Burden of precautions.
48
Negligence - Res ipsa loquitur
Creates an inference of negligence if: 1) Injury ordinarily does not occur without negligence, 2) Injury attributable to A (A had sole control of instrumentality), and 3) P did not contribute to injury.
49
Negligence - Causation
Actual cause (but for/substantial factor) + proximate cause (legal).
50
Causation - But for
Injury would not have occurred but for A’s conduct.
51
Causation - Substantial factor
Multiple causes: Each A’s conduct alone would have been sufficient to bring about injury.
52
Causation - Indivisible injury
Assume joint and several liability.
53
Causation - Alternative causes
Multiple acts: Burden shifts to As to prove their conduct did not cause injury.
54
Causation - Proximate cause
A is liable for harmful results caused by his acts if they were foreseeable (in any manner or harm, e.g., eggshell skull rule).
55
Causation - Superseding cause
Breaks the chain of causation and becomes the proximate cause.
56
Causation - Intervening cause
Does not cut off liability if foreseeable.
57
Causation - Foreseeable
If A should have realized the risk, may still be liable for intentional 3P acts, negligence of rescuers, subsequent medical malpractice, diseases caused by weakened condition, subsequent accident substantially caused by injury.
58
Negligence - Damages
P must prove actual harm (economic: medical expenses, lost earnings, non-economic: pain and suffering). Compensatory damages include past, present, future medical expenses, lost earnings, pain and suffering. No recovery for pure economic loss (loss of money, except in NIED).
59
Negligence - Defenses
Contributory, Assumption of risk, avoidable consequences, professional rescuer
60
Defenses - Contributory negligence
Any fault by P bars recovery. If P had last clear chance to avoid harm, P can recover fully.
61
Defenses - Assumption of risk
P may be barred if I knew of the risk and voluntarily assumed it (subjective standard). Express assumption of risk: clear written/oral release.
62
Defenses - Professional rescuer/firefighter's rule
If P is injured by risk inherent in occupation (fireman’s rule), recovery for negligence is barred (assumed risk as part of job).
63
Defenses - Avoidable consequences
P fails to take reasonable steps to mitigate damages.
64
Strict Liability
65
Strict Liability - Animals
66
Animals - Wild animals
If P is injured by animal’s characteristic propensity, A is strictly liable to invitees and licensees.
67
Animals - Domestic animals
Keeper is not liable unless he knew or had reason to know of its dangerous propensity.
68
Strict Liability - Abnormally dangerous activity (ultrahazardous)
An activity that is not common usage in the area and creates foreseeable risk of harm even when reasonable care is exercised (e.g., explosives).
69
Strict Liability - Defenses
Contributory negligence: If P knew of the danger, comparative negligence, assumption of risk.
70
Products Liability
Different types of liability for services, e.g., repair, malpractice.
71
Products Liability - Strict liability
Any commercial supplier in distribution chain of the product has an absolute duty to supply safe products to any foreseeable P (including bystanders). No privity required.
72
Strict Liability - Duty
Must show a type of defect in the product when it left A’s control (breach of absolute duty).
73
Strict Liability - Product defect
1. Product must not be expected to or actually undergo significant changes before it reaches the user. 2. Manufacturing defect: Product came out more dangerous than intended. Prove defect with:
74
Manufacturing defect - Ordinary consumer expectation test
Product failed to perform as safely as an ordinary consumer would expect.
75
Manufacturing defect - Design defect
Very design resulted in product not safe for its intended use. Prove defect with: Design, Risk Utility
76
Design defect - Feasible alternative test
Product could have been made safer without serious impact on product’s price or utility.
77
Design defect - Risk-utility test
Danger of design vs. utility to society, feasibility of alternate designs, adequate warnings defect: Product must have clear and complete warnings of dangers that may not be apparent to users. One language OK. Unneeded if obviously dangerous (e.g., knife).
78
Strict Liability - Causation
Actual cause: Defect existed when product left A’s control (P need not prove fault). Proximate cause: Type of injury was foreseeable at the time product was placed in stream of commerce.
79
Strict Liability - Damages
Physical injury or property damages are recoverable. Purely economic losses NOT recoverable.
80
Strict Liability - Duty to mitigate
A has a duty to take reasonable steps to mitigate damages.
81
Products Liability - Defenses
Misuse (in an unintended and unforeseeable way), assumption of risk, comparative negligence, contributory negligence if P discovered defect, alteration (3P unforeseeably changes the product).
82
Negligence Liability
Analysis similar to ordinary negligence (duty, breach, causation, damages).
83
Negligence Liability - Duty
Any foreseeable P. Standard of care of reasonably prudent commercial seller.
84
Negligence Liability - Breach
Reasonableness of A’s conduct whose failure resulted in supplying a defective product.
85
Negligence Liability - Causation
Actual cause and proximate cause. Learned intermediary rule may also apply.
86
Negligence Liability - Damages
Physical injury or property damages. Purely economic losses NOT recoverable.
87
Negligence Liability - Defenses
Same as in general negligence.
88
Implied Warranties
Merchantability, fitness
89
Implied Warranties - Merchantability
Quality and fitness for ordinary purposes.
90
Implied Warranties - Fitness for particular purpose
Seller knows the particular purposes the goods are required for and the buyer is relying on the seller’s skill and judgment in selecting the goods.
91
Implied Warranties - Breach
If product fails to live up to the warranties, P can recover damages for personal injury, property damages, and purely economic loss.
92
Implied Warranties - Causation
Actual + proximate cause same as in general negligence.
93
Implied Warranties - Damages
Personal injury, property damages, purely economic losses are recoverable.
94
Implied Warranties - Defenses
Assumption of risk (using while knowing breach), contributory negligence if P discovered defect, failure to give notice of breach (under UCC).
95
Negligence - Defenses
Contributory, assumption of risk, professional, avoidable consequences
96
Defenses - Contributory negligence
Any fault by P bars recovery. If P had last clear chance to avoid harm, P can recover fully.
97
Defenses - Assumption of risk
P may be barred if I knew of the risk and voluntarily assumed it (subjective standard). Express assumption of risk: clear written/oral release.
98
Defenses - Professional rescuer/firefighter's rule
If P is injured by risk inherent in occupation (fireman’s rule), recovery for negligence is barred (assumed risk as part of job).
99
Defenses - Avoidable consequences
P fails to take reasonable steps to mitigate damages.
100
Strict Liability
Strictly liable regardless of mens rea
101
Strict Liability - Animals
Wild and domestic
102
Animals - Wild animals
If P is injured by animal’s characteristic propensity, A is strictly liable to invitees and licensees.
103
Animals - Domestic animals
Keeper is not liable unless he knew or had reason to know of its dangerous propensity.
104
Strict Liability - Abnormally dangerous activity (ultrahazardous)
An activity that is not common usage in the area and creates foreseeable risk of harm even when reasonable care is exercised (e.g., explosives).
105
Strict Liability - Defenses
Contributory negligence: If P knew of the danger, comparative negligence, assumption of risk.
106
Products Liability
Different types of liability for services, e.g., repair, malpractice.
107
Products Liability - Strict liability
Any commercial supplier in distribution chain of the product has an absolute duty to supply safe products to any foreseeable P (including bystanders). No privity required.
108
Strict Liability - Duty
Must show a type of defect in the product when it left A’s control (breach of absolute duty).
109
Strict Liability - Product defect
1. Product must not be expected to or actually undergo significant changes before it reaches the user. 2. Manufacturing defect: Product came out more dangerous than intended. Prove defect with:
110
Manufacturing defect - Ordinary consumer expectation test
Product failed to perform as safely as an ordinary consumer would expect.
111
Manufacturing defect - Design defect
Very design resulted in product not safe for its intended use. Prove defect with:
112
Design defect - Feasible alternative test
Product could have been made safer without serious impact on product’s price or utility.
113
Design defect - Risk-utility test
Danger of design vs. utility to society, feasibility of alternate designs, adequate warnings defect: Product must have clear and complete warnings of dangers that may not be apparent to users. One language OK. Unneeded if obviously dangerous (e.g., knife).
114
Strict Liability - Causation
Actual cause: Defect existed when product left A’s control (P need not prove fault). Proximate cause: Type of injury was foreseeable at the time product was placed in stream of commerce.
115
Strict Liability - Damages
Physical injury or property damages are recoverable. Purely economic losses NOT recoverable.
116
Strict Liability - Duty to mitigate
A has a duty to take reasonable steps to mitigate damages.
117
Products Liability - Defenses
Misuse (in an unintended and unforeseeable way), assumption of risk, comparative negligence, contributory negligence if P discovered defect, alteration (3P unforeseeably changes the product).
118
Negligence Liability
Analysis similar to ordinary negligence (duty, breach, causation, damages).
119
Negligence Liability - Duty
Any foreseeable P. Standard of care of reasonably prudent commercial seller.
120
Negligence Liability - Breach
Reasonableness of A’s conduct whose failure resulted in supplying a defective product.
121
Negligence Liability - Causation
Actual cause and proximate cause. Learned intermediary rule may also apply.
122
Negligence Liability - Damages
Physical injury or property damages. Purely economic losses NOT recoverable.
123
Negligence Liability - Defenses
Same as in general negligence.
124
Implied Warranties
125
Implied Warranties - Merchantability
Quality and fitness for ordinary purposes.
126
Implied Warranties - Fitness for particular purpose
Seller knows the particular purposes the goods are required for and the buyer is relying on the seller’s skill and judgment in selecting the goods.
127
Implied Warranties - Breach
If product fails to live up to the warranties, P can recover damages for personal injury, property damages, and purely economic loss.
128
Implied Warranties - Causation
Actual + proximate cause same as in general negligence.
129
Implied Warranties - Damages
Personal injury, property damages, purely economic losses are recoverable.
130
Implied Warranties - Defenses
Assumption of risk (using while knowing breach), contributory negligence if P discovered defect, failure to give notice of breach (under UCC).
131
Defamation
To establish a prima facie case for defamation, the following 4 elements must be proved:
132
Defamation - Defamatory language
Language tending to adversely affect one's reputation. Opinions must be based on specific facts to be actionable.
133
Defamation - Of or concerning P
Reasonable person would understand that the statement referred to P (incl. within a small group).
134
Defamation - Publication
Someone other than P received and reasonably understood the defamatory matter about P. A's negligent or intentional publication (intend to publish, not to defame).
135
Defamation - Damage to P's reputation
Must be proved depending on the type of defamation (libel or slander).
136
Defamation - Libel
Any communication that has some permanence (e.g., writing, radio, TV, photo). General damages presumed.
137
Defamation - Slander
Spoken or oral defamation. P must prove special (pecuniary) damages, unless slander per se (impute improper conduct in P's trade, accusation of crime involving moral turpitude, current loathsome disease, lack of chastity of woman).
138
Defamation - Constitutional issues
Further analysis for any case of defamation involving matters of public concern.
139
Constitutional Issues - Falsity
P must prove that the statement was false. If not, P may still raise IIED or privacy torts.
140
Constitutional Issues - Fault
If P is: 1) Public official/figure: A public figure has achieved fame or notoriety or has voluntarily assumed a central role in a public controversy. P must show malice (knowledge of falsity of statement or reckless disregard as to truth or falsity). 2) Private person, public concern: P need only prove negligence regarding falsity and actual injury (actual damages). 3) Private person: Constitutional restrictions do not apply. Prove publication only.
141
Defamation - Defenses
142
Defenses - Qualified privilege
Common: A that appears reasonably necessary to protect A’s own legitimate interests or is of interest to recipient (e.g., past employer’s reference, reports of public hearings, newsworthy events).
143
Qualified privilege - Exceptions
A loses privilege if acted with malice (know falsity or recklessly disregard truth) or statement is outside the scope of privilege.
144
Defenses - Truth
If A can prove substantial truth, it would be a defense (It’s burden to prove falsity).
145
Defenses - Absolute privilege
Privilege until repeated in a context where there is no privilege. Statements made by legislators (or aides) on floor, between federal executive officials, judicial proceedings, comm’n between spouses.
146
Nuisance
147
Nuisance - Private nuisance
A substantial and unreasonable interference with P’s use and enjoyment of possessed land by intentional, negligent, or abnormally dangerous conduct.
148
Private nuisance - Substantial
Offensive, inconvenient, or annoying to an average person in the community.
149
Private nuisance - Unreasonable
Severity of injury > utility of A’s conduct.
150
Nuisance - Public nuisance
Unreasonable interference with health, safety, moral right common to the general public. Suit typically brought by gov’t actor. Private party can bring action if he suffered unique damage.
151
Privacy Torts
152
Privacy Torts - Commercial appropriation
Unauthorized (no permission or negligent in verifying) use of P’s picture or name for A’s commercial purpose. Intent not needed if identified by name as long as clear that the ad is meant to depict that person.
153
Privacy Torts - Intrusion into seclusion
A intentionally interferes with P’s zone of privacy in a manner offensive to a reasonable person (for example, eavesdropping, wiretapping, stalking).
154
Privacy Torts - Public disclosure of private facts
Disclosure of true facts that 1) would be highly offensive to a reasonable person and 2) is not newsworthy (not a matter of public interest).
155
Privacy Torts - Portrayal in a false light
Publication of false information that would be highly offensive to a reasonable person.
156
Miscellaneous - Vicarious liability of employer or supervisor for
157
Vicarious liability - Respondeat superior
If an employee’s negligent within scope of employment, under employer’s direction, or while engaged in employer’s business, employer is vicariously liable for employee’s tortious acts.
158
Respondeat superior - Frolic and detour
An employee making a minor detour from the employer’s business for own purposes is still acting within the scope of employment (detour).
159
Respondeat superior - Intentional torts
Employer may be liable for intentional torts if committed for employer’s benefit or authorized (e.g., bouncer, bill collector).
160
Miscellaneous - Independent contractor (IC)
Person whose hirer has no IC is not vicariously liable for negligence of IC unless IC is engaged in inherently dangerous activity (excavating next to public sidewalk), or duty is non-delegable (as a matter of public policy or safety).
161
Miscellaneous - Negligent hiring/supervision
Employers may be liable for own negligence by hiring or supervising employee or IC. This is not “vicarious liability.”
162
Miscellaneous - Joint venture
Undertaking to carry out objectives that associates have equal voice or direct enterprise. Each participant vicariously liable for tortious acts within the scope of the enterprise.
163
Miscellaneous - Bailment
Bailee (holder of goods) liable for damages if there is a bailment and the bailee is negligent.
164
Vicarious Liability - Child
A parent is under a duty to exercise reasonable care to control his minor child to prevent intentional harm or risk of harm to others if the parent 1) knows or has reason to know that he can control his child and 2) knows or should know of the necessity and opportunity for exercising such control. Parents are not vicariously liable for their children’s tort, UNLESS the child committed a tort while acting as the agent for the parents. Negligent supervision/entrustment: Parents may be liable for own torts where they had a reason to know of any propensities of the child; they owe a duty to those who might be injured by the child.
165
Misrepresentation
166
Misrepresentation - Fraudulent misrepresentation
Material misrepresentation made with intent or knowledge to mislead, and P reasonably relied on the misrepresentation.
167
Misrepresentation - Negligent misrepresentation
Material misrepresentation made with negligent or innocent scienter, and P reasonably relied on the misrepresentation.
168
Misrepresentation - Fraudulent nondisclosure
Silence when there was a duty to disclose a material fact, and P reasonably expected disclosure.
169
Wrongful Institution of Proceedings - Malicious prosecution
Institution of criminal/civil proceedings against P (former A) without probable cause, without proper purpose (malice), where P prevailed on the merits, and P suffered damages.
170
Wrongful Institution of Proceedings - Abuse of process
Wrongful use of process for an ulterior purpose + act or threat against P to accomplish purpose.
171
Interference with Contractual Relations
A knew of valid K between P and 3P + acted with purpose of having K breached or made harder to perform + damages.
172
Loss of Consortium and Services
P spouse may recover against A for injuring P’s spouse and depriving the benefits of the spousal relationship, including the loss of companionship, comfort, society, and sexual relations.
173
Survival Action
Cause of action that survives the death of a party, only applicable to injury to property and person, not to personal interests (e.g., defamation, privacy, malicious prosecution) which expire upon death.
174
Wrongful Death
Actions based on wrongful death provide monetary relief for injury resulting to the spouse and next of kin (but not to creditors). Recovery is allowed to the extent that the deceased could have recovered in an action had he lived; e.g., decedent’s contributory negligence reduces wrongful death recovery in comparative negligence jurisdictions.
