Torts Flashcards
(41 cards)
1
Q
Intentional Torts
Transferred Intent
A
The intent to harm one party can be transferred when the D had the intent to commit a tort against one particular person, but instead
1. commits a different tort against that person, or
2. another person is injured.
2
Q
Intentional Torts
Battery
A
A D is liable for Battery when there is
1. an intentional,
2. harmful or offensive contact,
3. with the plaintiff’s person (including anything connected to the P).
3
Q
Intentional Torts
Assault
A
A D is liable for Assault when there is
1. an intentional act,
2. that causes the P to be placed in reasonable apprehension,
3. of imminent harmful or offensive contact with the plaintiff’s person.
4
Q
Intentional Torts
False Imprisonment
A
A D is liable for False Imprisonment when he
1. intentionally acts,
2. to restrain P to fixed boundaries, and
3. the P is aware of the confinement or is harmed by it.
5
Q
Intentional Torts
Trespass to Land
A
- A D is liable for Trespass to Land when he
1. intentionally,
2. either
(a) enters the land of another,
(b) causes an object or a third person to enter the land,
(c) remains on the land, or
(d) fails to remove an object from the land. - Intent to trespass is not required; the only intent required is that the D intended to enter/remain on the subject land.
- Intangible Entry (gas, pollution, noise) is not sufficient for a trespass to land claim.
6
Q
Intentional Torts
(Nominal Damages)
A
Battery - Trespass to Land
A claim may be supported by nominal damages; P need not suffer actual damages.
7
Q
Intentional Torts
Trespass to Chattels & Conversion
A
- A D is liable for Trespass to Chattels when he
1. intentionally
2. interferes with another’s personal property, and
3. the amount of damage is small. - A D is liable for Conversion if the amount of interference is substantial.
- Mistaken ownership of the property is not a defense to either tort.
8
Q
Intentional Torts
Intentional Infliction of Emotional Distress
A
A D is liable for IIED if:
1. the D acted intentionally or recklessly,
2. the D’s conduct was extreme and outrageous,
3. the D’s act caused extreme emotional distress (causation), and
4. the P actually suffered severe emotional distress (damages).
9
Q
Intentional Tort Defense(s)
Consent
A
Consent is a defense to intentional torts, and may be express or implied through words or conduct.
10
Q
Negligence
Negligence Elements
A
A prima facie case for negligence requires:
1. duty (a duty of due care),
2. breach (a breach of that duty),
3. causation, and
4. damages
11
Q
Negligence
To Whom a Duty is Owed
A
- Under the Andrews view, a duty of care is owed to all foreseeable Ps.
- Under the Cardozo view, a duty of care is only owed to foreseeable Ps who are within the zone of danger.
12
Q
Negligence
Affirmative Duty to Act
A
Generally, there is no duty to act affirmatively, unless:
(a) a pre-existing relationship exists between the parties (i.e. parent-child, landowner-entrant),
(b) the D put the P in peril, or
(c) the D has already undertaken to rescue the P.
13
Q
Negligence
General Standard of Care
A
- General standard of care is that of reasonable prudent person (RPP). An RPP takes appropriate measures to avoid foreseeable risks.
- Following community customs and statutory requirements may be relevant as to what conduct is reasonable, but are not dispositive.
14
Q
Negligence
Standard of Care (Children)
A
- Children must act as a hypothetical child of similar age, experience, and intelligence.
- If a child is engaged in an adult activity, the child has a duty to act as a reasonable adult.
15
Q
Negligence
Standard of Care (Medical Doctors)
A
- A medical doctor is held to the degree of care and skill of the average qualified practitioner.
- A doctor has a duty to obtain informed consent from his patient before treatment.
16
Q
Negligence
Standard of Care (Land Owner)
A
What duty of care is owed by a landowner or possessor is determined by the type of entrant.
- Undiscovered Trespasser: No duty is owed by the landowner.
-
Anticipated Trespasser: The landowner must:
1. exercise reasonable care in operations on the property, and
2. warn of (or make safe) highly dangerous artificial conditions that the landowner knows of. -
Licensee (social guest): The landowner must:
1. exercise reasonable care in operations on the property, and
2. warn of (or make safe) dangerous conditions that are known to the landowner but not apparent to a guest. - Invitee (enters for the owner’s benefit, shop or business): The landowner owes all the duties he would to a licensee. In addition, the landowner has a duty to make reasonable inspections of the property to find and make safe non-obvious dangerous conditions.
17
Q
Negligence
Negligence Per Se
A
- Under the doctrine of negligence per se, the elements of duty and breach are established when the D breaches the statute.
- To use negligence per se, P must show that
1. the statute’s purpose is to prevent the type of harm that the P has suffered, and
2. the P is in the class of persons the statute seeks to protect.
18
Q
Negligence
Causation
A
- A P must show that the D’s conduct was both the actual and proximate cause of the injurry.
- Actual cause is the “but for” cause - but for D’s negligence, P would not have been injured.
- Proximate cause is the legal cause, which means that the injury must have been foreseeable result of the breach.
19
Q
Negligence
Intervening Causes
A
- Any act that occurs after the D’s breach that contributes to the harm is an intervening cause.
- Intervening causes that are dependent on (a natural reaction to) the D’s wrongful acts are usually foreseeable.
- If the intervening cause resulted in an unexpected injury, it is usually deemed unforeseeable, and the D is not liable.
- Intervening medical malpractice is always deemed foreseeable. Intervening criminal acts are usually not foreseeable.
- A negligent tortfeasor who causes the initial injury is usually liable for increased harm caused by others providing aid.
20
Q
Negligence
Eggshell Plaintiff Rule
A
The Eggshell Plaintiff Rule means that a tortfeasor takes his victim as he finds him. Thus, a D is liable for all harm a P suffers from a pre-existing mental or physical condition that makes the harm worse than what a normal person might suffer.
21
Q
Defenses to Negligence Claims
Assumption of Risk
A
- Assumption of risk is a defense to negligence, and applies if the P voluntarily assumed a known risk. It may be expressed or implied.
- A professional rescuer or firefighter assumes the risk of injury related to the job.
22
Q
Defenses to Negligence Claims
Comparative & Contributory Negligence
A
- Under pure comparative negligence (majority), the P’s negligence or assumption of risk will reduce his recoverable damages by the percentage of his own fault.
- In a contributory negligence jurisdiction, a P cannot recover damages if he contributed to his own injury.
23
Q
Negligent Infliction of Emotional Distress (NIED)
A
- Two major scenarios where a P may recover for NIED are: (1) zone-of-danger claim, and (2) bystander claim.
- Prima facie case of a zone-of-danger claim is:
1. the D’s negligence,
2. creates a foreseeable risk of physical injury,
3. the P is in the zone of danger, and
4. the P manifests physical symptoms. - Prima facie case of a bystander claim is:
1. the D’s negligence,
2. the P is a contemporaneous witness to a bodily injury inflicted on the P’s close family member, and
3. the P manifests physical symptoms.
24
Q
Vicarious Liability
Vicarious Liability (Employer)
A
- An employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment (performing work assigned by the employer, or engaging in a course of conduct subject to the employer’s control).
- An employee’s intentional torts are genereally not within the scope of employment.
25
# Vicarious Liability
Vicarious Liability (Independent Contractor)
* A party is generally not vicariously liable for the torts of an independent contractor.
* Generally, if the principal has the right to control the manner and method in which the job is performed, then the person is deemed to be an employee of the principal.
26
# Liability of Multiple Defendants
Joint and Several Liability
If multiple Ds are the proximate cause of a single indivisible harm, then the P may recover the entire amount of his damages from any D.
27
# Economic & Dignitary Torts
Defamation
* Prima facie case of defamation is:
1. a **false defamatory statement**,
2. **of and concerning the P** made by the D,
3. **publication** by the D to a third party, and
4. **damages**.
* Truth of the statement is a defense to a defamation claim.
28
Defamation (Slander, Libel)
* **Slander** is an oral defamatory statement. For slander, the P needs to prove special damages (pecuniary damages), unless the statement is "slander per se" (e.g. impugning business integrity of the P, attributing to the P a crime of moral turpitude).
* **Libel** is defamation in a permanent format. For libel, the P does not need to prove special damages.
29
Defamation (Constitutional Requirements)
* If the P is a _public figure_, the P must prove the D's reckless disregard for truth for knowledge of the falsity.
* If the P is a _private figure speaking about a matter of public concern_, the P must prove that the speaker was negligent.
30
Defamation (Qualified Privilege)
* A party can claim qualified privilege as a defense to defamation when their speech serves a socially useful purpose. (e.g. An individual is recommending an employee, reporting a wrongdoing to an agency).
* The speaker must be speaking in good faith.
31
# Economic & Dignitary Torts
False Light
* False light occurs when:
1. the D causes widespread dissemination,
2. of the P's beliefs, thoughts, or actions,
3. in a *false light*,
4. that would be highly objectionable to a reasonable person.
* If the P is a public figure or involves a matter of public concern, the P must show the D's reckless disregard for truth or knowlege of the falsity.
32
# Economic & Dignitary Torts
Public Disclosure of Private Facts
* Public disclosure of private facts occurs when:
1. the D causes widespread dissemination,
2. of *truthful* private information,
3. that would be highly objectionable to a reasonable person.
* Newsworthiness is a defense unless actual malice is present.
33
# Economic & Dignitary Torts
Intrusion of Privacy
Intrusion of privacy occurs when:
1. the D intrudes into the private affairs of the P, and
2. that would be highly objectionable to a reasonable person (i.e. reading private mail, illegal wiretapping).
34
# Economic & Dignitary Torts
Intentinal & Negligent Misrepresentation
_Intentional Misrepresentation_
To state a prima facie case for intentional misrepresentation, a P must show:
1. misrepresentation of a material fact,
2. the D knew that the statement was false,
3. intent of the D to induce the P,
4. actual and reasonable reliance by the P, and
5. damages.
_Negligent Misrepresentation_
To state a prima facie case for negligent misrepresentation, a P must show:
1. a misrepresentation by the D in a business transaction,
2. intent of the D to induce the P,
3. the D was negligent in obtaining or communicating the false information,
4. actual and reasonable reliance by the P, and
5. damages.
35
# Economic & Dignitary Torts
Malicious Prosecution & Wrongful Civil Proceedings
* A claim for _Malicious Procecution_ requires:
1. initiation of criminal proceedings against the accused (i.e. filing a police report),
2. the claim was initiated for an improper purpose (not for obtaining justice),
3. the claim was not supported by probable cause,
4. the claim ended in the P's favor, and
5. the P suffered damages.
* A claim for _Wrongful Civil Proceedings_ requires the same elements as above, except that it requires the initiation of civil proceedings.
36
# Economic & Dignitary Torts
Nuisance
* A _public nuisance_ is:
1. an unreasonable interference,
2. with the health, safety, or property rights,
3. of the community (a considerable number of people).
* To recover damages, the injured party must show actual damages.
* A _private nuisance_ is:
1. a substantial and unreasonable interference,
2. with a person's use or enjoyment of her property.
* P will be entitled to damages or an injunction.
* The primary defenses to the tort of nuisance are:
1. coming to the nuisance, and
2. statutory compliance.
37
# Strict Liability
Abnormally Dangerous Activity
* A D is strictly liable for damages caused to a P when engaging in an abnormally dangerous activity.
* An abnormally dangerous activity is one that:
1. is not of common usage in the community, and
2. creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).
38
# Products Liability
Strict Products Liability
* A commercial supplier of a *defective* product is subject to strict liability for any harm caused by the product.
* A claim for strict PL requires the P to show:
1. the product was defective when it left the hands of the D;
2. the product was not altered when it reached the P;
3. the product caused an injury to P when it was being used in an intended or unintended foreseeable use; and
4. the D is a commercial supplier who routinely deals in goods of this type.
39
Strict Products Liability (Types of Defects)
Proving that the product was defective is based upon one of three theorires: (1) manufacturing defect, (2) failure to warn, or (3) design defect.
* **Manufacturing Defect** exists when the product:
1. differs from the intended design, and
2. is more dangerous than if made properly.
* **Failure to Warn** exists when:
1. the P was not warned of the risks of the product,
2. which are not obvious to an ordinary user but known to the designer/manufacturer.
* **Design Defect** exists if the product can be made or manufactured safer, more practical, and at a similar cost.
40
# Products Liability
Liability for Negligence
A prima facie case for negligence requires:
1. duty
2. breach
3. causation, and
4. damages
41
# Products Liability
Liability for Breach of Warranty
* The **Implied Warranty of Merchantability** is implied in all sales of goods Ks, and all goods sold by a merchant (a person dealing in goods of the kind) must be fit for their ordinary purpose.
* An **Implied Warranty of Fitness for a Particular Purpose** is created when:
1. a seller knows of the buyer's particular purpose for the goods; and
2. the buyer relies on the seller's skill or judgment to select or furnish suitable goods.
* An **Express Warranty** is created when:
1. a seller makes an affirmation of fact, promise, description, or provides a sample;
2. which relates to the goods; and
3. it becomes part of the basis of the bargain.
