Torts Flashcards
(16 cards)
Intentional Torts Involving Personal Injury:
Battery; Offensive Contact
Assault; Prevention of contact
IIED; Intent; Public Figures or Public Concern; Bystander IIED; Damages
False Imprisonment; Assertion of legal authority
Every intentional tort requires proof of three elements:
1. Act by D;
2. Intent (i.e., purpose or knowledge with substantial certainty);
and
3. Causation
Battery
* D intends to cause a contact with P; D’s conduct causes such a contact; and that contact causes bodily harm (i.e., physical injury, illness, disease, impariment, or death) or is offensive
* Contact is offensive if:
* A reasonable person would think it is or
* D knows it is highly offensive to P’s sense of personal dignity
Assault
* D intends to cause P to apprehend imminent harmful or offensive contact, and D’s conduct must cause P to apprehend (objective standard) such contact
* P is not required to take preventitive action
IIED
* D, by extreme and outrageous conduct (i.e., it exceeds the possible limits of human decency), intentionally or recklessly causes P severe emotional distress
* No transferred intent is allowed to satisfy the intent element
* Public Figures — Defamatory speech special rule: To recover IIED by reason of publication, public figures and public officials must show falsity and actual malice
* Bystander IIED: a D who intentionally or recklessly harms V may be liable to V’s close family members who witness D’s conduct and suffer severe emotional distress
* But if D’s purpose is to upset a third party, then that third party can recover without having witnessesd the conduct or being related to V
* Damages: P must prove severe emotional distress beyond what a reasonable person could endure unless D knows that P is hypersensitive to severe emotional distress
False Imprisonment
* D intends to confine P within a limited area; D causes P’s confinment, and P is conscious of the confinement
* In a minority of jurisdictions, P may still recover if P was harmed by the confinement
* Assertion of legal authority
Defenses to Intentional Torts Involving Personal Injury:
Consent; Scope of consent
Requirements for all defenses
Self Defense; Defense of Others; Defense of Property
Merchant’s Privilege
Consent
* P consents to D’s otherwise tortious conduct
* Express consent—P gives D verbal or written consent
* Implied consent—D can reasonably infer P’s consent based on custom or P’s observable conduct
* Scope of consemt—D can be held liable for conduct that exceeds the scope of P’s valid consent
PRIVILEGES
Requirements for all defenses:
* Reasonable belief—D must reasonably believe a tort is being or about to be committed
* Proper timing—tort must be in progress or imminent
* Reasonable force—must be proportionate to threat of harm
Self-Defense
* No duty to retreat
* Only available to niitial aggresor if initial threat has terminated or D responds to non-deadly force with deadly force
Defense of others
* D must have reasonable belief that person he is aiding would have right of self-defense
Defense of Property—available to prevent tort against property
* No deadly force is allowed
* Unavaiable if initial actor had a privilege to enter land
* Warning required unless reasonable belief that doing so would be futile
not intended or likely to cause death or serious bodily injury
Merchant’s Privilege
* Reasonable belief; reasonable time; reasonable means; on or immediately surrounding merchant’s premises
Harms to Personal Property and Land: Trespass to Chattels & Conversion; Trespass to Land
Necessity; Privat enecessity; Public necessity
Trespass to Chattels & Conversion
-
D interferes with P’s right of possession in personal property
- Only the intent to do the interfering act is needed
- Trespass — minor interference or damage
- Conversion — significant intereference or damage that justifies D paying the chattel’s full value
- Damages — there must be actual damage or dispossession to sue for trespass to chattels
Trespass to Land
* Intent to enter P’s land or cause a physical invasion
Necessity
Requirements:
* D’s interference with P’s property must be reasonably necessary to avoid an immediate threatened injury
* Threatened injury must be more serious than the interference undertaken to avert it
Private necessity—limited defense
* D invades P’s property to protect his own property or self or small group
* Limited defense—P can only recover damages for actual harm to D’s property
Public necessity—absolute defense
* D’s invasion of P’s property must be reasonably necessary to protect a large number of people from public disaster
* Absolute defense—P cannot recover any daamges
Property owner liability—if an owner repels or expels a trespasser who interfered with or invaded owner’s property out of a valid necessity, owner will be liable for any damage caused
Nuisance
* Private nuisance— a substantial, unreasonable interference with another’s use and enjoyment of his property
* Substantial interference — offensive, annoying, or intolerable to a normal person in the community and
* Unreasonable interference — severity of P’s injury must outweigh the utlity of D’s conduct
Public Nuisance
* Unreasonable interference with a right common to general public. P’s harm must be different in kind from that suffered by members of general public
Negligence: Duty
Duty of care; To whom a duty is owed; Default standard of care; Affirmative duties to act
Specialized Standards of Care; Common carriers; Professionals; Owners/occupiers of land; Child trespassers; Landlords and tenants
Duty of care: D owes a duty of care to act like a reasonably prudent person and use ordinary care
To whom duty of care is owed:
* A duty is owed to foreseeable Ps in the zone of danger (Majority rule: Cardozo)
* A duty is owed to everyone (Andrews view)
* Rescuer’s exception—A rescuer is a foreseeable P. “Danger invites rescue”
* Does not apply to emergency personnel if their injuries results from a risk inherent to the job
Default standard of care—reasonably prudent person
* A person has a duty to act as a RPP under the circumstances, unless a special duty standard of care applies
* RPP is considered to be someone with D’s physical characteristics but with knowledge and mental capacity of an ordinary person
Affirmative duties to act: A person generally has no duty to take affirmative actions to help another except:
* Assumption of duty
* Creation of risk
* By authority
* By relationship
* Land possessor
Specailized Standards of Care
* Common carriers—held to an “utmost care” standard (liable for even slight negligence)
* Professionals—must act with knowledge and skill of a member of their profession in the same community
* Medical professionals—held to national standard of care
* Owners/occupiers of land
* Invitees: Inspect for unknown dangers, make safe or warn, & prevent harm from active operations
* Licensees: Warn of known concealed dangers & use reasonable care in active operations
* Anticipated trespassers: Warn of known concealed artifical dangers
* Other trespassers: No duty owed. But D cannot act wantonly or willfully
* Attractive nuisance doctrine for child trespassers—Duty of reasonable care to child trespassers if:
* D discovers children trespassing
* D knows or shold know artifical condition involves risk of harm to children
* Children unable to recognize the danger involved
* Risk outweighs condition’s utlity & burden of eliminating risk
Negligence: Breach
To demonstrate a breach, P can argue; Res ipsa loquitur
Negligence Per Se; Rebuttal
D’s conduct falls short of his duty of care
To demonstrate a breach, P can argue:
* (a) D breached the applicable standard of care—includes:
* RPP standard
* Negligence per se—violation of a relevant statute
* Specialized standard of care
* Custom or usage in an industry—not an automatic breach, but may be relevant
* (b) Res ipsa loquitor — the very occurence of the accident causing P’s injuries suggests negligent conduct
* Requirements — P must show:
* Inference of negligence — the harm would not normally occur absent negligence
* Attributable to D — often satisfied by showing that the injury-causing instrument was in D’s exclusive control
* Injury was not attributable to P
(a) Negligence Per Se—duty and breach can be presumed if P proves that:
* D violates a statute
* Type of harm: P suffered type of harm statute intended to prevent
* Class of person: P is in class of persons statute was meant to protect
(b) Rebuttal — violation of statute may be excused if:
* Greater risk to comply
* Compliance is beyond D’s control
Negligence: Causation
Cause in Fact; Burden-shifting test
Proximate Cause; Eggshell Plaintiff Rule
Proximate Cause; Majority rule; Intervening cause; Superseding cause
P must prove that D’s actions were the cause of P’s injury
Actual Cause
* “But-for” test — but for D’s conduct, P’s injury would not have occured
* Subtantial factor test — for multiple causes of P’s injury
* D’s conduct is a substantial factor in causing P’s injuries
Burden-shifting test — for several possible causes of P’s injury
* Application — used if multiple Ds act, only one causes P’s injury, but it’s unclear which D caused the injury
* Burden of proving actual cause shifts to Ds
Proximate Cause
* The harm is of the same general type as the risk that made D’s conduct negligent
* Eggshell Plaintiff Rule — D is liable for the full extent of P’s injuries, regardless of whether they are foreseeable
Negligence: Damages
Types of damages
Pure economic loss
Duty to mitigate
Types of damages:
* Personal injury — D must compensate P for all damages
* Includes past, present, and prospective damages
* Economic and non-economic damages are recoverable
* Property Damage — P can recover reasonable cost of repair
* Punitive damages — only recoverable if D’s conduct is wanton and willful, reckless, or malicious
* Note — pure economic loss not recoverable without other tangible harm
Duty to mitigate — P must take reasonable steps to mitigate damages
Negligent infliction of emotional distress; Bystander recovery
NIED
P may recover for emotioanl distress resulting from D’s negligence
Elements:
* P must be in the zone of danger (i.e., D’s act must have nearly caused physical harm to P)
* D’s negligence causes P’s severe emotional distress
* Physical symptoms required in most jurisdictions
Bystander claims — P is not in the zone of danger, but contemporaneously perceives bodily injury to a close family member, resulting in emotional distress
Put differently, D’s negligence conduict placed P in danger of
Put differently, (1) D’s negligent conduct placed P in danger of immediate bodily harm and (2) that danger caused P severe emotional distress
Vicarious Liability:
Respondeat Superior
Liability for Independent Contractor’s Torts
Partnership
Dram-Shop Liability
Respondeat Superior — employers are liable for torts committed by employees within the scope of their employment
* Intentional torts — usually outside the scope, unless:
* The job requires use of force
* The job entails creating friction, or
* The intentional tort is done to further the employer’s goals
Independent contractors — employers are generally not liable for the contractor’s torts, except for acts that are inherently dangerous or duties that are non-delegable
Partnership — each partner is vicariously liable for anoy other’s partner’s torts committed within the scope of the partnership
Dram-Shop Liability — businesses serviing alchohal may be liable to a P injured by an intoxicated patron if the business was negligent in serving the patron
Joint and several liability; Contribution Pure and several liability; Contribution
Defenses to Negligence; Contributory Negligence; Comparative Negligence; Assumption of the Risk
Joint & several liability — the acts of two or more Ds combine to produce a single indivisible injury
* Each D is jointly and severally liable for the entire harm
* Ds acting in concert — if two or more Ds act in concert and injure P, each is joint and severally liable for P’s entire injury
Contribution—D who pays more than his share of damages can assert a claim against jointly liable parties for the excess paid
Pure several liability — apportionment of damages among multiple Ds by percentages of fault
Defenses to Negligence (none of these are defenses to intentional torts)
Contributory Negligence—P is barred from recovery if P’s negligence contributed to his injuries
* Last clear chance defense — P can rebut D’s contributory neligence claim by proving D had the last clear chance to avoid the injury-causing accident
Comparative negligence—D can establish that P’s injuries are at least partially the result of P’s own negligence
* Pure comparative negligence—P’s damages are merely reduced by his percentage of fault
* Partial/modified comparative negligence—the same as pure comparative fault, except that recovery is barred if P’s fault exceeds 50%
Assumption of the Risk—D can deny P’s recover by establishing that P assumed the risk of damage caused by D’s act
* Requirements—D must show:
- P knew of the risk and
- P voluntarily proceeded in the face of that risk
Strict Liability
Prima facie case
Abnormally Dangerous Activities
Animals; Trespassing animals; wild animals; domestic animals
Prima facie case:
* Absolute duty to make safe
* Causation — actual and proximate cause
* Damages to P’s person or property
Abnormally Dangerous Activities
* Requirements — abnormally dangerous activity/condition exists if:
* Severe risk
* Cannot be made safe
* Uncommon
Animals
* Trespassing animals — owners are strictly liable for reasonably foreseeable damage done by a trespass of his animals
* Wild Animals — owners are strictly liable for unprovoked injuries caused by their wild animals
* Domestic animals — no SL unless owners know of their animal’s unusually dangerous propensities
* Trespassers cannot recover
Products Liability:
Elements
Strict Products Liability; Types of Defects
Elements
* (1) D is a commercial supplier
* Commercial supplier = one who routinely deals in the product sold, including any merchant in the stream of commerce
* (2) Product is defective (in manufacture, design, or failure to warn)
* (3) Defective product caused P’s injury
* (4) P used the product in a foreseeable manner
Damages
* P can recover for physical injury or property damage, but not solely for economic loss
Types of Product Defects
(a) Manufacturing defect — Deviation from intended design (e.g., incorrect assembly)
(b) Design defect (design itself is faulty) — Foreseeable risk of harm that could have been mitigated by feasible alternative design
(c) Warning defect — No reasonable warnings/instructions instructions about nonobvious risks of harm
* Includes duty to warn of foreseeable dangers from misuse
* Learned-intermediary rule: A warning for a drug or medical device that is provided to the prescribing physician is sufficient
Assumption of the Risk — P knows of the product’s risk of harm and voluntarily uses the product despite that risk
* In contribution-negligence jurisdictions, assumption of the risk is a total bar to recovery
* In comaprative-negligence jurisdictions, it merely reduces recovery
Defamation; Public figure; Private person/matter of public concern; Libel; Slander; Defenses
Elements:
* A false
* Defamatory statement — dimishes respect, esteem or goodwill toward P
* Concerning P — a reasonable person would believe that it refers to P
* Publication — statement must be intentionally or negligently made to a third person
* Public figures, public officials — actual malice standard
* Private figure — negligence standard
* Harmful to P’s reputation
Libel — a written defamatory statement
Slander — a spoken defamatory statement
* P must prove “special damages” unless the statement constitutes slander per se
* Special damages — a specific economic loss
* Slander per se—the defamatory statement accuses P of
* Committing a crime
* Adversely reflects on P’s business or professional reputation
* Having a loathsome disease or
* Sexual misconduct
Defenses
* Truth
* Consent
* Absolute privileges — protects statements by govt. officials in their official capacity
* Qualified privileges — statements made:
* In the interest of the recipient of the statement or a third party
* Affecting an important public interest
Invasion of Privacy; Causes of Action
Damages
INVASION OF PRIVACY
Appropriation — unauthorized use of P’s name or likeness for commercial purposes without P’s consent
* Newsworthiness exception — no liability for use of P’s name or likeness for the purpose of reporting new
False light — D made public facts that placed P in a false light that would be highly offensive to a reasonable person
* This includes attributing views or actions to P
* Matters of public concern — proof of actual malice is required
Public disclosure of private information — disclosure must be:
* (1) Highly offensive to a reasonable person
* Public activies are not objectionable
* (2) Publicized — made available to a public audience
* Newsworthiness exception — no liability if private facts are newsworthy
Intrusion Upon Seclusion — intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person
* No publication is required
* Public activities are not objectionable
Damages
* P need not prove special damages for any of the invasion of privacy torts
Note: “
Note that when we say “highly offensive” concerning intrusion upon seclusion and publuc disclosure of private facts, the latter focuses on the the subject matter being disclosed while the former focuses on the act itself; e.g., opening personal email and sharing contents would be highly offensive for intrusion upon seclusion but whether or not it is highly offensive for public disclosure purposes depends on the contents of what is being shared
Misrepresentation
Intentional misrepresentation (fraud, deceit)
* Elements:
* D knowingly or recklessly misrepresented a material fact with the intent to induce P’s reliance and
* P justifiably relied on D’s misrepresentation and suffered damages as a result
* Note: P must prove actual damages
Negligent Misrepresentation
* Elements:
* D negligently provided false information to P
* P justifiably relied on the information and suffered pecuniary damages as a result
Intentional Interference with Business Relations
Intentional Interference with a Contract — P must prove:
* K between P and a third party
* D intentionally/improperly interfered with K’s performance
* The interfence caused P pecuniary loss
D knew about the K?
