Torts Flashcards
(86 cards)
1
Q
Intentional Torts Burden of Proof
A
Plaintiff must establish:
- Act
- Intent
- Causation
2
Q
Battery
A
Harmful or offensive contact with the plaintiffs person intentionally caused by the defendant
“offensive” = if P has not expressly or impliedly consented to it / objectionable to a reasonable person
Person of another = persons and their items
3
Q
Assault
A
Intentionally places P in a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person
- words alone generally not enough
- apprehension = awareness not fear
- immediate contact = no significant delay
4
Q
False Imprisonment
A
Intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area
Confinement/restraint includes: threats of force, false arrests, failure to provide means of escape, physical barriers
*no reasonable means of escape known to the P
5
Q
Intentional Infliction of Emotional Distress
A
Extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress
(physical injuries NOT required)
outrageous conduct = exceeds all bounds of decency
- mere insults NOT outrageous
- if D has knowledge about known sensitivity of P –> can rise to outrageous
*reckless conduct is sufficient to prove intent requirement
*Transferred intent doesn’t apply
6
Q
Trespass to Land
A
Act done with intent to enter the land and results in invasion of the land of another
- D need not have intended to commit a trespass, only deliberate act required
- D doesn’t have to know the land belonged to another
- Intent doesn’t have to be for it to be someone else’s land
- physical invasion = any invasion of land by a person or object is sufficient
- Land = surface above, space above and ground beneath
7
Q
Trespass to Chattels = SMALL harm
A
Intentional act by the defendant that causes an interference with the plaintiff’s right of possession in a chattel
- Damages (physical damage or lost use) chattel/dispossession/deprives P of their lawful right of the chattel
- Intent to do act of interference is all that’s needed
8
Q
Conversion = BIG Harm
A
Intentional act that causes a substantial interference with the plaintiff’s right of possession in a chattel
- D need not intended the conversion, just that the act constitutes a conversion
- P entitled to recover full FMV of the item (at time of conversion) or possession
9
Q
Transferred Intent Doctrine
A
Intent will transfer from the intended tor to the committed tort or from the intended victim to the actual victim
Both intended tort and tort committed must be: battery, assault, false imprisonment, trespass to land, trespass to chattels
*often tested with battery and assault
*Does NOT apply to IIED
10
Q
Defenses to Intentional Torts
A
- Consent
- Self-Defense, Defense of Others, Defense of property
- Necessity
11
Q
Consent
A
- Can be express or implied
- Plaintiff must have capacity to consent and the defendant must not exceed bounds of consent
(drunk people/children cannot consent)
Implied consent: that which a reasonable person would infer from custom and usage or P’s conduct (looks specifically to the facts)
Exceeding consent: if D exceeds scope of consent by committing a more intrusive invasion or by invading a different interest than the one P referenced –> D can be liable
12
Q
Self Defense
A
When person reasonably believes they are being or about to be attacked –> may use force as reasonably necessary to protect against injury
Majority = no duty to retreat
Modern = imposes duty to retreat before using deadly force
person not required to retreat from their own home
Deadly force permitted if reasonably believed to be necessary to prevent serious bodily injury
13
Q
Defense of Others
A
May use reasonably force to defend another when reasonably believes that the other person could have used force to defend themselves
May use as much force as they could have used in self-defense if they were the one threatened with injury
14
Q
Defense of Property
A
May use reasonable force (NOT DEADLY FORCE) to prevent commission of tort against real/personal property
15
Q
Shopkeepers Privilege
A
Shopkeepers entitled to reasonable detention of someone shopkeeper reasonably believes has shoplifted goods
- Detention must be conducted in reasonable manner and only non-deadly force can be used
- Detention must be for a reasonable period of time and only for the purpose of making an investigation
16
Q
Necessity
A
Person may interfere with real or personal property of another when it’s 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 invasion that is taken to avert it
*need to bring up trespass to land, trespass to chattels, or conversion first; then the defense
17
Q
Public Necessity
A
D can raise public necessity as defense if they acted to avert an imminent public disaster
- If public defense, D not liable for any tort (complete defense)
- Doesn’t have to pay for damages
18
Q
Private Necessity
A
Can be a defense when the action was to prevent serious harm to a limited number of people (small group)
- Actor must pay for any injury they cause (damages caused to P’s property)
- Can remain as long as emergency continues
*much more likely to be tested than public necessity
19
Q
Negligence - Prima Facie Case
A
- Defendant owes a duty of care to conform to a specific standard of conduct
- Defendant breached that duty
- The breach of duty was actual and proximate cause of the plaintiff’s injury
- Plaintiff suffered damages to person or property
20
Q
General Standard of Care
A
To act as a reasonably prudent person under the same or similar circumstances (average mental abilities, and defendants physical characteristics taken into account).
- Superior skill/mental abilities taken into account
- Superior physical characteristics taken into account
*No special standard of care for mental disability BUT there is a special disability for persons with major physical activity (blindness)
21
Q
Special Standards of Care
A
- Persons w/ major physical disability (blindness)
- Children
- Professionals
- Trespassers to Land
22
Q
Professionals Standard of Care
A
Exercise the knowledge and skill of an ordinary member of the profession in good standing
When professional is a doctor, they also have a duty to warn a patient of all serious risks in medical procedures
23
Q
Child Standard of Care
A
Children must conform to the standard of care of a child of like age, intelligence, and experience unless engaged in an adult-oriented activity
24
Q
Landowners’s Standard of Care to Trespassers
A
- No duty to undiscovered trespassers
- For discovered/anticipated trespassers –> landowner owes a duty to warn of or make safe known highly dangerous artificial conditions if not obvious to the trespasser
25
Landowner's Standard of Care to Licensees
Those who come onto the land with express or implied permission but for their own purpose = social guests and solicitors
Duty to warn or make safe all dangerous artificial and natural conditions (concealed dangerous conditions known to owner)
26
Landowner's Standard of Care to Invitees
Invitees: those entering as members of the public or for a purpose connected to the business/owner (customers/their children regardless of if they buy anything)
(1) Duty to warn of or make safe all dangerous artificial and natural conditions that land owner knows of or should know of; and (2) reasonably inspect for dangerous conditions
27
Landowners Duty to Trespassing Children - Attractive Nuisance Doctrine
Duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property
P must show:
1. Dangerous condition on land that owner is or should be aware of;
2. Owner knows or should know that children might trespass on land;
3. Condition is likely to cause injury;
4. Expense of remedying the situation is slight compared with magnitude of risk
*child trespasser who is injured by a dangerous artificial condition need not have been attracted onto the property by said condition
28
Negligence Per Se -- will change the general standard of ordinary care
When a criminal statute establishes a specific standard of care, replacing the general standard of ordinary care IF:
(1) plaintiff is within the class that the statute was intended to protect;
(2) statute was designed to prevent the type of harm suffered
EXCEPTIONS:
If above requirements are met, but compliance with statute would have been MORE dangerous or IMPOSSIBLE --> will not arise to negligence per se.
*If statute NOT designed to protect against specific harm or if the plaintiff is not within the class protected:
- Statute will not replace general standard of care
- P may still be able to establish a breach of the general standard of care
29
Duty to Act
Generally, no duty to act/rescue unless special relationship
1. Parent/child
2. Innkeeper/guest
3. Common carrier/passenger
4. Business owner/customer
**where the defendant's actions have placed another person in peril or caused another's injury, the D has a duty to make reasonable efforts to rescue the imperiled person or render aid to his victim.
**one who gratuitously acts for the benefit of another is then under a duty to act reasonably
30
Negligent Infliction of Emotional Distress
When the defendant breaches a duty to the plaintiff by creating a risk of physical injury and the plaintiff suffers emotional distress as a result:
1. P must be within "zone of danger' and ordinarily must suffer physical symptoms
31
Exceptions to NIED Zone of Danger
1. Defendant breaches a duty to bystander not in the zone of danger who is (1) closely related to the injured person; (2) was present at scene of the injury; (3) personally observed or perceived the event
2. Relationship exists between the defendant and P under which the defendant's negligence has great potential to cause emotional distress (hospital erroneously reports death of P's family member)
32
Breach of Duty
When D's conduct falls short of the level required by the applicable standard of care, D has breached their duty
Could be based on:
1. custom/usage
2. statute violation = negligence per se
3. Res ipsa loquitur
33
Res Ipsa Loquitor Requirements
The fact that an injury occurred may create an inference thats the D breached his duty:
1. Accident causing the injury is a type that would not have occurred absent negligence
2. Negligence is attributable to the defendant (usually because D is in exclusive control of instrumentality causing the injury)
*If P establishes res ipsa, any answer that states "P wins" or "D loses" is wrong --> pick motion that denies motion for directed verdict and send case to the jury
34
Dramshop act
These acts create a cause of action in favor of any third person injured by the intoxicated vendee --> w/ dramshop act bartender will be vicariously liable
Under common law, without a dramshop act --> bartender will not be vicariously liable
35
Actual cause
An act is the actual cause of an injury when it would not have occurred but for the act
36
Merged Cause = Substantial Factor Test
When two acts bring about an injury and either one alone would have sufficed, either of the two acts is an actual cause of the injury if it was a "substantial factor" in bringing it about
37
Unascertainable Causes = Only one party caused the harm
When two acts were negligent but it's not clear which was the actual cause of the injury, the burden shifts to each of the negligent actors to show that his negligent act was not the actual cause
38
Proximate Cause
D is liable for all harmful results that are the normal incidents of and within the increased risk by their negligence act
*foreseeably caused by the D's negligent act
39
Indirect cause/Intervening force
Occurs after the defendants negligent act and combines with it to cause the injury
*foreseeable intervening forces (negligent rescue/medical malpractice) does not cut off the defendant's liability for the consequences of his negligent act
40
Damages
1. Plaintiff must show actual harm or injury to complete the prima facie case
2. The plaintiff can recover economic damages (medical expenses) and noneconomic damages (pain/suffering)
3. Extent or severity of the harm need not have been foreseen (tortfeasor takes victim as he finds him)
41
Eggshell Plaintiff Rule
If Defendant is liable for SOME injury to the Plaintiff, the Defendant is liable for ALL of the plaintiff's physical injuries
Could be worded in various ways:
- "extent of the plaintiff's harm need not be foreseeable"
- "defendant takes the plaintiff as she finds him"
42
Defenses to Negligence
1. Contributory negligence
2. Comparative negligence
3. Assumption of Risk
43
Contributory Negligence
Any negligence on part of P that contributed to the harm is a complete defense
- Standard of care required of P to avoid injury is judged using reasonable person standard
*almost all states have rejected rule that a plaintiffs contributory negligence will totally bar recovery
44
Comparative Negligence
**Pure Comparative Negligence:** negligent P can recover damages reduced by the percentage of her fault even if she was primarily at fault
*(assume this)* unless specifies otherwise
**Partial/Modified Comparative Negligence State:** negligent P can recover reduced damages as long as her fault is not above a certain level (typically 50%); if over 50%, then P is barred from recovering
- only apply if it says jurisdiction has adopted this rule
45
Assumption of Risk
P may be denied recovery if they assumed the risk of any damage caused by the D's act. P may have:
1. Known of risk and
2. Voluntarily proceeded in face of risk
*mostly analyzed under comparative negligence rules
*knowledge may be implied where risk is one that average person would clearly appreciate
46
Strict Liability Applies When
1. On owner of wild animal or abnormally dangerous domestic animal for injuries caused by the animal
2. On one engaged in an abnormally dangerous activity - activity that creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors / activity not common usage in community
3. Sale of unreasonably dangerous defective product
(explosives/storing transporting chemicals/nuclear energy/radiation)
*in these situations doesn't matter whether owner was exercising reasonable care
*ONLY LIABLE to foreseeable plaintiffs; watch out for facts
47
Domestic Animals
House pets + farm animals
- bulls/honeybees = farm animals
owner not strictly liable for injuries caused by domestic animals, unless they have knowledge of that particular animals dangerous propensities not common to the species
48
Products Liability
Liability arises when a commercial supplier supplies a product in a defective condition unreasonably dangerous to users
- can be based on negligence or strict product liability (if defendant is user or one-time seller then it can only be based on negligence)
49
Manufacturing Defect
When product varies from other products in the manufacturing process and is dangerous beyond the expectation of the ordinary consumer
50
Design Defect
When all products of the line have dangerous characteristics because of mechanical features or packaging
51
Information defect
When users are given inadequate warnings and instructions and a less dangerous modification or alternative was economically feasible
52
Products Liability Based on Negligence
1. Standard elements of negligence
2. Breach of duty shown by negligent conduct by D that leads to supplying a defective product to the plaintiff
53
Products Liability Based on Strict Liability
1. Defendant was commercial supplier of product
2. Product was in a defective unreasonably dangerous condition at time defendant sold it or placed it in the stream of commerce
3. Defective product caused plaintiff's injury
- Even a retailer who had no opportunity to inspect product may be liable as commercial supplier
- defect could be in design/assembly/failure to contain adequate warnings
54
Defenses to Strict Products Liability Actions
1. Failure to establish prima facie case
2. Assumption of risk where plaintiff knew of risk and voluntarily encountered it
3. Misuse of the product if the misuse was not reasonably foreseeable
55
NON-Defenses to Strict Products Liability Actions
1. Plaintiff's ordinary contributory negligence (unless comparative negligence rules applies)
2. Exercise of Reasonable Care by Defendant
3. Plaintiff's foreseeable misuse of the product
4. Plaintiff did not purchase the product from defendant (lack of privity)
56
Nuisance
Type of harm that interferes with use and enjoyment of property
57
Private Nuisance
A substantial, unreasonable interference with another person's use or enjoyment of her property
Substantial = offensive, inconvenient, unreasonable interference with the Plaintiff's use of their land
58
Public Nuisance
Act that unreasonably interferes with the health, safety, or property rights of the community
59
Remedies for Nuisance
Damages or injunctive relief
Private --> self help available after notice to D and their refusal to act
Public --> only public authority/private party who has suffered unique damage can seek injunction/abatement
60
Vicarious liability
D may be vicariously liable for the tort of another based on the relationship between the D and tortfeasor
1. Respondeat Superior
2. Principal-independent contractor
3. Automobile owner-driver
4. Parent-child
61
Respondeat Superior
Employer is liable for torts of an employee the occur within the scope of the employment relationship
minor detour vs. frolic of own
62
Principal-independent contractor
Generally principal not liable for torts of indepdendent contractor, as long as P does not attempt to control the manner and method in which the work is done.
Exceptions:
- independent contractor engaged in inherently dangerous activities
- Principal's duty is nondelegable
63
Automobile owner-driver
Automobile driver is not vicariously liable for negligence of driver unless:
1. permissive use statute (imposing liability for torts of anyone with permission;)
2. Family purpose doctrine (imposing liability for torts of a family member driving w/ permission)
64
Defendant can always be liable for...
OWN NEGLIGENCE!!
*negligence in hiring, supervising a child, entrusting car to driver
65
Joint & Several Liability
When two or more tortious acts combine to proximately cause an indivisible injury to the P, each tortfeasor is jointly and severally liable for the injury
1. P can recover his entire damage from any one of the tortfeasors
2. If applies, contribution allows tortfeasor who paid more than his share of damages to recover excess from other tortfeasors in proportion to their fault
66
Defamation prima facie case
Defamatory language concerning the plaintiff published to a third person that causes damage to the plaintiff's reputation, falsity of the statement, and fault by the defendant
67
Damages presumed in defamation when:
Libel (writing or other permanent form)
Slander (spoken)
Slander per se - words so clearly defamatory that ordinary person would understand injury:
- business/profession
- loathsome disease
- crime of moral turpitude
- sexual misconduct
68
Proving defamation for public officials/figures
1. P must prove that the statement was false
2. Actual malice = statement was made with knowledge of its falsity or reckless disregard of its truth/falsity
69
Private figures suing on a matter of public concern for defamation must show:
1. At least negligence as to truth or falsity;
2. Actual injury
70
Defenses to defamation
1. Truth of statement;
2. Absolute privilege for statements in judicial, legislative, or executive proceedings
3. Qualified privilege for matters of interest in publisher/recipient
71
Invasion of Privacy
Right of privacy = personal
- Doesn't extend to family
- Doesn't survive death
4 categories:
1. Appropriation of plaintiff's picture or name
2. Intrusion on plaintiff's affairs/seclusion
3. Publication of facts placing P in a false light
4. Public disclosure of private facts about plaintiff
5. Defenses - consent and absolute or qualified privileges
72
Appropriation of plaintiffs picture/name
Unauthorized use of the P's picture or name for the D's commercial advantage
(limited to advertisement/promotion of products/services)
73
Intrusion on plaintiff's affairs/seclusion
Act of prying or intruding on the plaintiff's private affairs or seclusion that would be highly offensive to a reasonable person
74
Publication of facts placing P in false light
Publication of facts about P putting her in a false light in public eye in a way that would be highly offensive to a reasonable person
- actual malice shown if publication is in the public interest
75
Public Disclosure of Private Facts about P
Public disclosure of private information about the P such that the disclosure would be highly offensive to a reasonable person
requires publicity, not just publication to a few people
76
Defenses to Privacy
1. Consent
2. Privileges
77
Intentional misrepresentation
Misrepresentation by the defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation, justifiable reliance, and damages
Scented involves defendant statement of mind --> P required to show that defendant made a statement knowing it to be false/made it with reckless disregard as to its truth/falsity.
78
Negligent Misrepresentation
Misrepresentation by the D in a business or professional capacity; breach of duty to the P; causation; justifiable reliance; and damages
**BOTH parties need to be acting in professional/business capacity**
79
Interference w/ Business Relations
1. A valid contractual relationship or business expectancy of the plaintiff and a third party, the defendant's knowledge of the relationship, intentional interference by the defendant inducing a breach/termination of the relationship AND damages
2. Defendants conduct may be privileged if it's a proper attempt to obtain business or protect the defendants interest
80
Malicious Prosecution
Initiating a criminal proceeding against the P ending in P's favor, absence of probable cause for prosecution, improper purpose and damages
81
Automobile Owner/Driver General Rule
Absent a statute to the contrary, an automobile owner is no vicariously liable for the tortious conduct of another driving the owner's automobile. The owner may be liable for its own negligence in entrusting the car to a particular driver.
*pay attention to if the automobile owner would have KNOWN the driver who they were entrusting their vehicle too was a bad driver = look for this answer choice
82
Deadly Force
Any force capable of causing death or serious physical injury (death not required)
- never used for defense of property
83
Standard of Care for Persons with a Major Physical Disability
Required to exercise the degree of care that would be reasonable for a person with that disability
*blindness
84
If damage to chattel is substantial, P can choose between conversion and trespass to chattel
1. Trespass to chattel = P keeps the claim AND gets damages from defendant
2. Conversion = D keeps property but gets compensated for FMV at the time of conversion
85
Negligence Tips
1. Court decides if D owes duty and what standard of care
2. Jury decides if D breached the duty
86
Even when circumstances are extraordinary (no visibility/slippery roads/violent storm) the correct standard of care is:
Still reasonable care under THOSE specific circumstances
