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Flashcards in Torts Deck (40)
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Basic Rules of interpreting INtentional Torts

  1. Two Steps
    1. identify the elements that P needs to get to jury
    2. identify the affirmative defenses
  2. Prima Facie Case
    1. Act - voluntary movement
    2. specific intent or general intetn to effect certain consequenses
      1. intent may be transferred in limited circumstances
      2. incapacity not a good defense.  minors, crazies, and drunks all capable of intentionaltort
      3. ignor the extreme or hyper sensitiv P
    3. result must have been legally caused by D act or seomtihng set in motion by D.  satisfied if D conduct was a substantial factor in bringing about injury



  1. harmful/offensive contact - unpermitted by an ordinary or reasonable person (judged on the reaosnable person standard
  2. to p's person (includes anything attached to )
  3. with intent (D desires forbidden outcome, or is virtually certain that it will occur
  4. causation
    1. actual damages not required



  1. act by D creating reasonable apprehension
  2. of an immediate battery
  3. intent 
  4. causation
    1. reasonable apprehension judged by reasonable person standard
      1. knowledge of act is required
      2. D must have at least apparent ability to commit the act. P's knowlecdge or lack there of important (loaded/unloaded gun example)
    2. Immediate battery goes to the urgency of the threat
      1. words alone alack necessaryimmediacy.  physical conduct needed
      2. words  can negate immediacy
        1. ifyoudothen,thenii'lldothat.noimmediacy
        2. threattoharminthefuturenoimmediacy


False Imprisonment

  1. act or ommission by D that restrains or
    1. restraint - physical barriers, physical force, threat of force,
    2. restraint does not equal moral pressure or future threat
    3. restraint judged by reasonable person standard
    4. if duty to facilitate someone's movement, failure to do so is restraintconfines P
    5. time period of restraint not necessary for prima facie c
    6. P must know of confirnement, or at least be physically harmed by it
  2. to a bounded area
    1. area may be bounded by threat
    2. keeping someone out of an area is not equal to confinement
  3. intent
  4. causation


Intentional Infliction Emotional Distress IIED

1.  Act by D amounting to extreme and outrageous conduct 2. intent or recklessness as to effect of act, 3.  that caused 4.  severe emotional distress to P

  1. Outrageous conduct - exceeds all bounds of decency tolerated in a civilized socieity
    1. Insults alone are not outrageous
    2. continuous, repetivie conduct increases liklihood of outrageousness
    3. common carriers, inkeepers, have a hgh duty to treat patrions with respect.  so they are more susceptible to outrageous conduct
    4. Where D targets bad behavior at the emotionally vulnerable, conduct is more likly to be found outrageous (insults at elderey, children, minorities)
  2. ii. Bystanders may recover IIED if meets all IIED elements (i.e. shows that D’s purpose was to cause bystander severe emotional harm) OR
    1. P was present when injury occurred
    2. P was a close releative to injured person  and
    3. D knew 1 and 2


Trespass to Land

(i) physical invasion of Ps real property (ii) intent to enter that particular piece of land (no need to intend to trespass) (iii) invasion was legally caused by the D’s act.

  1. Physical invation equals entereling land or propelling any object onto P's property
  2. real property includes the air above and soil below, to a reasonable distancee


Trespas to Chattels

(personal property): (i) act by the D that interfered w/ Ps right of possession (either via damage to the chattel or deprivation of the right to possess the chattel), (ii) intent, (iii) causation, (iv) actual damages

  1. i Involves modest, slight harm (keying a car)
  2. Allows P to recover the cost of repair.
  3.  Mistaken belief that it is your own property is not a valid defense.



(i) act by the D that interfered with Ps right of possession, (ii) interference is so serious that it warrants requiring D to pay the chattel’s full value (iii) intent, (iv) causation.

  1. Involves significant, extensive harm (demolishing a car) (the longer the withholding and the more extensive the use more likely a finding of conversion).
  2. allows P to recover the full value of the item involved – forced sale 


Consent - defense to IT

P consented to D’s conduct

  1. Was the consent valid?
    1. Individuals w/out capacity (drunks, children, crazy people) are deemed incapable of valid consent.
    2. Sane, sober adults may consent via express consent.        
      But, express consent is void if given as a result of duress or fraud (including failure to reveal sexually transmitted disease in consensual sex).
    3. Plus consent may be implied by:
      1. Custom and usage (ex. being shoved during a basketball game).
      2. Reasonable interpretation of the P’s objective conduct (jury determination of reasonableness of D’s interpretation; P’s subjective thoughts are irrelevant).
  2. Did the D stay within boundaries of conest?
    1. If D exceeded the implied/express scope of consent, D is liable


Self Defense, Defense of Others, Defense of Property.  

Defense to IT

Need Timing, Accuracy , and Force
  1. Timing: The conduct to which the D is responding is in progress or eminent.  Must act in real time.  No revenge.
    1. Self-defense: when the tort is now being or about to be committed
    2. D of others: when the actor reasonably believes that the other person could have used force to defend himself
    3. D of property: after request to desist or leave (unless clearly futile/dangerous)
  2. Accuracy: The D must have a reasonable belief that his interests are being threatened.  But, reasonable mistakes as to threat are allowed.
    1. Self-defense: reasonable mistake as to existence of danger allowed
    2. D of others: reasonable mistake as to whether the other person is being attacked or has a right to defend himself allowed
    3. D of property: reasonable mistake as to whether an intrusion has occurred or whether a request to desist is required allowed.  No mistake allowed as to whether the entrant has a privilege
  3. Force: May only use the amount of force necessary to guard against the conduct.
    1. Reasonable force may be used, but excessive force → tort liability
    2. No deadly force unless threat of serious bodily harm.
    3. But, deadly force (or traps) never acceptable to protect property


Privilege of Arrest

is a defense to IT

D has the privilege to arrest/detain the P?  Appropriate force?

  1.  Felony arrest by PO: officer must reasonably believe that a felony has been committed and the person he arrests has committed it.  Reasonable degree of force; deadly only when threat of serious harm.
  2. Felony arrest by private citizen: felony must haven in fact been committed, and person must reasonably believe the arrestee committed it.  Reasonable degree of force; deadly only when threat of serious harm.
  3. Misdemeanor arrests: must be a breach of peace and committed in the presence of the arresting party.  Reasonable degree of force; never deadly force.


Necessity as defense to IT

person may interfere w/ real or personal property where there is a reasonable necessity to avoid threatened harm (only applies to property torts).

  1. Public necessity: arises when a D invades P’s property in an emergency to protect the community as a whole or a significant group of people (absolute defense to liability).
  2. Private necessity: arises when a D invades P’s property in an emergency to protect a personal interest (only a limited defense).
    1. Private necessity D must pay for actual harm done to P’s property
    2. Private necessity D not liable for nominal or punitive damages (P can’t even get $1 in nominals)
    3. So long as the emergency continues, private necessity D may remain on P’s land (P has no privilege to chase D away, if P does, P is liable).


Discipline as defense to IT

parent/teacher may use reasonable force in disciplining children


Nuisance as tort

balance the interests; and avoid undue interference with the P’s land

  1. Private Nuisance: substantial, unreasonable interference with a private individual’s use or enjoyment of property which he actually possess or to which he has a right of immediate possession.
  2. Public Nuisance: unreasonable interference w/ the health, safety, property rights of the community.
  3. Remedies: P usually awarded damages.  If damages inadequate or unavailable, injunctive relief will be available.  Self-help for private nuisance (only necessary force may be used).
  4. Defenses: (1) legislative authority, (2) multiple actors, (3) coming to the nuisance



  1. Common Law Defamation Prima Facie Case:
    1. Defamatory statement (written or oral stmt that adversely affects one’s reputation)
      1. Usually need allegation of fact reflecting negatively on a trait of character (loyalty, honesty, etc,).  Name-calling is not enough.
      2. Opinions may be actionable if the listener would assume that the opinion is based on fact
    2. Of or concerning P (reasonable person would understand the stmts as referring to P) 
    3. Publication of the statements by D to a 3rd Person
      1. Either intentionally or negligently; orally (slander) or in writing (libel)
      2. Need intent to publish, not intent to defame;
      3. 3rd party must understand the communication.
    4. Damages (maybe) to P’s reputation: depends on type of defamation
      1. Libel (anything memorialized as permanent, i.e. written or published):
        1. General damages presumed: no need to prove damages
          1. Special damages need not be proven
          2. ncludes oral repetitions of printed material (i.e. radio stmts).
      2. Slander (spoken or oral defamation)
        1. Generally, injury is not presumed, so must prove special damages: economic loss (got fired, lost a contract)
        2. But, injury is presumed – slander per se – for statements that:
          1. Adversely reflect on one’s conduct in business or profession
          2. P currently has a loathsome disease
          3. P is or was guilty of a crime involving moral turpitude
          4. A woman is unchaste


Defenses to Defamation

  1. Consent (complete defense)
  2. Truth (complete defense) (D bears burden of proof).
  3. Absolute privilege: based on who the D is: remarks made by federal executive officials engaged in their official duty, in “compelled” broadcast, and between spouses (ex. husband communicates defamation re 3rd party to wife, no liability)
  4. Qualified privilege: circumstances where we want to encourage candor (job applications, letter of recommendation).  If you limit yourself to matters relevant to the subject at hand, you are not liable for a reasonable misstatement of fact that is defamatory.  But, qualified privilege lost if you deliberately spread lies about someone.
    1. Examples where QP applies: reports of official proceedings; statements in the interest of the publisher – defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.


First Amendment Defamation

If the defamation involves a matter of public concern, the Constitution requires proof of two additional elements:

  1. Falsity of the defamatory language (shifts the burden of proof back to P).
    Fault on the part of the D
    1. If public official/figure: must prove malice (knowledge that the statement was false or reckless disregard as to its truth). 
      1. If actual malice → damages presumed → liability imposed
    2. If private person: need only prove negligence as to falsity (no reasonable investigation as to the statements accuracy).
      1. If negligence + proof of actual injury → liability imposed
      2. If actual malice → damages presumed → liability imposed


Invasion of Right to Privacy – 4 Types

  1. Appropriation of P’s picture or name: must show unauthorized use for commercial advantage (usually advertisement/promotion of product/services).  Exception for newsworthiness (e.g. Sports Illustrated putting picture of Tiger on the cover).
  2. Intrusion upon Ps affairs or seclusion: must be objectionable to a reasonable person; P must be in a place where there’s an expectation of privacy (photos taken in public places don’t count); no requirement for physical entry into the P’s property (no trespass needed, but trespass may be a part of the intrusion)
  3. Publication of fact placing P in false light: wide spread dissemination of a major misrepresentation about the P that would be objectionable to a reasonable person.  Statement can be, but need not be defamatory.  Allows P to recover emotional damages.  This is not an intentional tort, so an inadvertent misrepresentation still constitutes false life.  If concerns matter of public interest must prove malice. 
  4. Public disclosure of private facts: wide-spread dissemination of confidential information about the P that would be objectionable to a reasonable person.  Deals with truthful information.  Exception for newsworthiness information (e.g. no liability for publishing Cheney’s medical records).  Information must be private (e.g. can’t sue co-worker for telling the office that P is gay after seeing him at a gay-pride rally)
  5. Defenses: Consent; defamation privileges (only apply in false light and disclosure cases)


Intentional Misrepresenation (fraud)

i. [Affirmative] misrepresentation of a material fact
ii. Which D knew/believed to be false or had no foundation when she made the stmt
iii. Intent to induce P to act or refrain from acting in reliance on the misrepresentation
iv. Actual reliance (causation)
v. Reliance was justifiable (usually requires that the stmt is fast not just opinion)
vi. Damages: P must suffer actual pecuniary loss.


Negligent Misrepresentation

i. Misrepresentation by D in a business or professional capacity
ii. Breach of duty toward a particular P
iii. Causation
iv. Justifiable reliance; and
v. Damages


D. Wrongful Institution of Legal Proceedings

a. Malicious Prosecution:

  1. institution of criminal (or civil) proceedings against P;
  2. termination in P’s favor;
  3. absence of probable cause for prior proceedings;
  4. improper purpose; and
  5. damages.  Prosecutors are immune from liability.

b. Abuse of Process:

  1. wrongful use of process for an ulterior motive and
  2. definite act or threat against P in order to accomplish ulterior motive.



Prima Facie Case

a. A duty on the part of the D to conform to a specific standard of care for protection of P against unreasonable risk of injury;
b. Breach of that duty by D;
c. The breach is the actual and proximate cause of P’s injury; and
d. Damage


Duty of Care

duty of care is owed to all foreseeable Ps.  

  1. Is P within Zone of Danger (foreseeabile victim - majority view)
    1. Unforeseeable victims can’t recover.  Farther away the victim, the less likely the victim is foreseeable.
    2. Exception for rescuers: it’s foreseeable that a rescuer would come where D negligently put himself or a 3rd party in danger
    3. Intended beneficiaries may be foreseeable (i.e. beneficiary of a will).
    4. Medical professionals owe duty of care to viable fetuses
      1. 1. Note: in botched abortion cases, child may not recover for wrongful life, but parents may recover medical expenses and pain & suffering in labor
  2. If P is in zone of danger, what is the applicable standard of care? - it is that of the reasonably prudent person acting under similar circumstances
    1. The standard never changes.  It’s always that of a reasonable person under similar circumstances.  No exception for personal attributes (stupidity, insanity, etc.)
    2. But, there are two exceptions:
      1. Superior knowledge: if the person has superior knowledge, that person is held to the standard of member of the profession in good standing in similar communities
      2. Physical attributes: if person is blind, confined in a wheel chair, etc., held tp the standard of the person with those same limitations.
    3. If emergency – duty of care of reasonable person under the same emergency conditions (But, if the D made the emergency, don’t consider it).
  3. Special standards of care - see additional card


Special Standards of Care

  1. Children held to the standard of a child of like age, education, intelligence and experience acting under similar circumstances.  Children under 4 can’t be liable for negligence.  Note: this is a subjective standard, so it’s very lenient.  Pro-defendant.  Exception: if a child is engaged in an adult activity, no special standard (operating a vehicle w/ a motor).
  2. Professionals (w/ special skills, like doctors) must give the patient or client the care of an average member of that profession practicing in a similar community (big city v. small city).  This is not a hypothetical comparison.  Instead, comparison to real people in the profession.  Requires testimony of expert witness.
  3. Common carriers and innkeepers held to a very high standard to passengers/guest
  4. Occupiers/Owners of land: look for (1) the type of entrant (trespasser, etc.), and    (2) how the entrant got hurt (activity being conducted on the land by the occupier OR encountering a dangerous condition on the land).
    1. No duty to undiscovered trespassers.  He always looses negligence claims.
    2. Duty to discovered or anticipated trespassers to (1) use reasonable care in the exercise of “active operations” and (2) warn of/make safe artificial conditions which are highly dangerous, concealed from the entrant, and known to the owner to cause risk of death or serious bodily injury (duty to protect from known, man-made, death traps) (no duty to protect from natural conditions, moderately dangerous, easily visible, unknown dangers).
    3. Duty to licensees (those entering the premises w/ permission but property is not open to the public; i.e. social guests) to (1) exercise reasonable care in active operations on the property, (2) warn of dangerous conditions (natural or artificial) concealed to the guest, but known in advance to the occupier.
    4. Duty to invitees (those who enter land open to the public generally) to (1) exercise reasonable care in the active operations on the property, (2) warn of dangerous conditions concealed to the invitee, which the occupier knew about in advance, or could have discovered though a reasonable investigation (duty to inspect and repair).
    5. Duty to child trespassers of reasonably prudent care (attractive nuisance).  If (1) owner knows or should have known of dangerous artificial condition, (2) owner knows/should know that children frequent the vicinity of the condition, (3) likely to cause injury, (4) expense of remedying the situation is slight compared to the magnitude of the risk.
  5. Statutory Standards of Care: statutory violation = negligence per se if class of person, class of risk
    1. Statute may replace more general common law duty if:
      1. P is w/in the class of persons the statute was designed to protect, and
      2. The statute was designed to prevent the type of harm suffered by P
    2. Where test is not met apply ordinary reasonably prudent person standard.
    3. Exceptions: (1) if statutory compliance would be more dangerous than statutory violation, don’t use the statute → apply reasonably prudent person standard.  (2) where statutory compliance is impossible → apply reasonably prudent…
  6. NO duty to act affirmatively (no duty to rescue), except:

1. Duty to assist someone you have placed in peril
2. Pre-existing relationship between parties creates a duty (family member, common-carrier/innkeeper and patron, land-occupier and invitee), but reasonableness standard.
3. Duty to prevent harm by third parties under your authority and control
4. Once D undertakes to aid someone, he must do so w/ reasonable care 


Breach of Duty

  1. Generally, where a D’s conduct falls short of the level required by the applicable standard of cared owed, she has breached her duty.
  2. Where the duty standard is reasonableness, prove breach by one of the following theories
    1. Identifying conduct, and explaining why it is unreasonable.
    2. Custom or usage may establish standard of care, but does not control whether certain conduct = negligence (entire industry may be acting negligently)
  3. Violation of applicable statute = negligence per se
  4. Res Ipsa Loquitor: occurrence of an event may establish breach of duty.  Used by P who cannot say with precision what the D did wrong.  Must show: (1) the accident causing the injury is of a type normally associated with negligence, (2) this type of accident normally occurs b/c of the negligence of someone in this D’s position/D had control of the means.  Procedural implication


  1. If you show res ipsa, you get to the jury → deny D’s motion for a DV.
  2.  If you fail to make a res ipsa case → try to prove other neglgence.
  3.  Note, if you prove res ipsa + negligence per se, and there are no proximate cause issues → grant P’s motion for a DV.  



  1. P must show that D’s conduct was BOTH the actual cause AND proximate cause of her injury
  2. Actual cause (cause in fact) – several tests:
    1. “But for” Test: injury would not have occurred but for D’s act or omission.  Rebuttal: “even if” the D had not done X, P still would have been injured.
    2. If multiple Ds, “but for” does not work, so use alternate test:
      1. Mingled Causes – Substantial Factor Test: Where several causes bring about an injury, and any one alone would have been sufficient, D’s conduct is the cause in fact if it was a substantial factor in causing the injury.
      2. Unascertainable Causes Approach: more than one act, only one causes injury, but it is unascertainable which.  Burden of proof shifts to the Ds, and each must show that his negligence is not the actual cause.  If they can’t escape liability, hold them both jointly and separately liable.
    3. Proximate cause (legal cause): is it fair to impose liability?
      1. General rule: D is liable for all foreseeable harm
      2. Direct cause: D commits breach → harm → foreseeability
      3. Indirect cause: D commits breach → intervening act → P suffers full extent of harm.      4 well settled areas where liability will be imposed (for all harm) despite intervening act.
        1. Intervening negligent medical treatment
        2. Intervening negligent rescu
        3. Intervening protection or reaction forces:
        4. Subsequent disease or accident


Tort Damages

Only actual damages available.. must be proven. no nominal damages

a. Egg-Shell Skull: P compensated for all physical injury even if harm is surprising great in scope (foreseeability is irrelevant, takes P as he finds him)  Note: not limited to negligence, applies to every tort.
b. P may recover punitive damages if D’s conduct is wanton and willful, reckless or malicious
c. P has duty to take reasonable steps to mitigate damages


Special Negligence Causes of Action

  1. Negligent Infliction of Emotional Distress: general duty to avoid causing emotional distress to another.
    1. To recover w/out physical trauma, P must show:
      1. Breach of some other duty (i.e. negligence)
      2. Near miss.  Almost suffered physical injury.  W/in the zone of danger.
      3. As a result of the near miss, P suffers subsequent physical manifestations   (i.e. heart attack, miscarriage, rash).
    2. Still need causation and damages (i.e. Ds conduct caused tangible physical injury)
    3. Bystanders may recover if (1) P and the person injured are closely related, (2) P was physically present at the scene, and (3) P observed or perceived the injury.
  2. Attorney Malpractice: an attorney owes a duty toward her client to act as a reasonably competent attorney.  A reasonably competent attorney would…
    1. Go through each negligence element
    2. Damages: P must prove a case within a case.  That is, P must prove that absent the attorney malpractice, P would have prevailed in the underlying action.  Examine the P’s underlying cause of action to determine the likely outcome of the lawsuit.


Contributory Negligence

Defined - Ps own negligence contributes to her injury
Effect - P’s claim completely barred
Exceptions: D had last clear chance; D was wanton or reckless.


Implied Assumption of Risk

Defined - P knew of a risk of injury and voluntarily assumed it
Effect - Ps claim completely barred