Torts Flashcards
(116 cards)
1
Q
What must a D have done to be liable for an intentional tort?
A
Performed volitional act with intent to bring about a particular consequence
2
Q
When are children liable for intentional torts?
A
If have capacity to intend the natural consequences and intended those consequences
3
Q
Is incapacity a defense to intentional torts?
A
No
4
Q
Intent
A
Desire to produce the legally forbidden consequence
5
Q
Specific intent
A
D acted with specific purpose to bring about a consequence
6
Q
General intent
A
D had knowledge to a substantial certainty that consequence would occur
7
Q
Transferred intent doctrine
A
D’s specific intent transfers to tortious conduct that actually occurred, including to other torts and parties
8
Q
Battery
A
Intentional act bringing about harmful or offensive contact to P’s person
1. D intended to contact P
2. Contact is objectively harmful or offensive
3. Harmful contact results
9
Q
Battery
- Harmful
- Offensive
- P’s person
A
- Causing injury, pain, or disfigurement
- Reasonable person would find the contact objectionable or would offend their dignity (must be objectively offensive unless D knew P would find it highly offensive)
- Extends to anything intimately connected with P’s body
10
Q
Assault
A
Intentional creation of reasonable apprehension of an imminent harmful or offensive contact
1. D intended to cause apprehension
2. Plausible that contact could have occurred
11
Q
What acts count as assault?
A
- Apparent ability to act is sufficient, even if factually impossible to occur (e.g. pointing unloaded gun)
- Words alone not sufficient, overt act is necessary
- Threats of future battery are not sufficient
12
Q
False imprisonment
A
Direct, known restraint of the physical liberty of a person
1. D intended to confine P
2. P was conscious of confinement
3. P did not consent to confinement
4. D lacked authority to confine P
13
Q
False imprisonment
What do restraints include?
A
- Threats
- Failure to act if D had a legal duty to do so (e.g. leaving disabled person behind)
14
Q
What may a P recover for from false imprisonment?
A
- P must be aware of confinement to recover for mental anguish
- May recover for physical injuries without awareness
15
Q
False imprisonment
Means of escape
A
- Must be no reasonable means of escape known to P
- Includes if way out is dangerous, disgusting, humiliating, or hidden
16
Q
Shopkeeper’s privilege
A
- Shopkeeper may detain someone they reasonably believe has committed theft
- Detention must be done in a reasonable manner, including using reasonable force and only detaining for as long as necessary
17
Q
Intentional infliction of emotional distress
A
Extreme and outrageous conduct that is intended to cause severe emotional distress
18
Q
IIED
“Extreme and outrageous”
A
Exceeds all bounds of decency tolerated in civilized society
Mere insults not sufficient
Factors supporting outrageousness:
* Conduct is repetitive in nature
* D is common carrier (transportation company) or innkeeper
* P is a member of fragile class (young, elderly, pregnant)
* D targets P’s known sensitivity
19
Q
IIED
“Severe emotional distress”
A
- Mild annoyance not sufficient
- Physical symptoms not required
20
Q
Defenses
Actual consent
A
P has expressly shown willingness to consent to D’s conduct
Limitations:
* Cannot do anything a reasonable person would think is beyond scope of consent
* Cannot obtain consent through fraud, unless fraud goes to collateral matter
* D must have capacity to consent
* Modern view: can consent to criminal act so long as criminal act does not breach the peace
21
Q
Defenses for people
Implied consent
A
- Apparent consent: consent a reasonable person would assume was given by a P’s conduct
- Consent implied by law: harmful or offensive touching is needed to save a person’s life
22
Q
Defenses for people
Self-defense
A
- If person has reasonable grounds to believe they are or will be attacked, they may use reasonably necessary force for protection
- Defense available even if actually injure someone else
- Can only use deadly force if reasonable to believe there is danger of serious injury or death
- Retaliation not permitted
23
Q
Defenses for people
Defense of others
A
Available if person reasonably believes that the person being attacked would have had the right of self-defense
24
Q
Trespass to land
A
Unauthorized entry onto the land of another by physical means
1. D acted intentionally to enter land
2. D entered another’s land or caused an object or third party to do so
3. D remained on land or failed to leave when requested
25
What acts are sufficient for trespass to land?
Sufficient acts:
* Throwing object onto P's land
* Chasing third person onto P's land
* Cutting someone off in traffic which leads to car to go on P's property
* Throwing object over P's land
Insufficient acts:
* Vibrations
* Smells
* Sounds
* Shining lights
26
# Trespass to land
1. Does D need to intend to trespass?
2. Does P need to be owner of land?
3. Does the transferred intent doctrine apply?
4. Are damages required?
1. No, only to enter land
2. No, includes anyone in actual or constructive possession
3. Yes
4. No
27
# Trespass to land
What does "land" include?
Air above and soil below to a reasonable distance
28
Trespass to chattels
Intentional act of interference with P's right to possess their chattel
1. D acted intentionally
2. D interfered with P's chattel
3. Damages resulted
29
What are sufficient acts for trespass to chattels?
* Acts of dispossession (not allowing P to use property, even temporarily)
* Acts that damage property
30
Conversion
Intentional exercise of control over a chattel such that the owner is wholly deprived of use
1. D intentionally exercised total control over chattel
2. Interference caused severe damage such that P can no longer use chattel
31
What are the damages for conversion?
D must pay fair market value of chattel
32
# Defenses for property
Defense of property
Personal may use reasonable force to defend property
* Must first ask person to stop
* Cannot use deadly force or force that could cause serious bodily harm
* Cannot use boobie traps
33
# Defenses for property
Recapture of chattels
Owner may use reasonable force to take back property that someone has wrongfully taken
* Must first ask person to give it back unless doing so would be futile
* Can only recapture from tortfeasor or someone who knew the chattel was tortiously taken
34
# Defenses for property
Necessity
Person may interfere with another's property if reasonably necessary to avoid an injury substantially more serious than invasion
35
# Defenses for property
Public necessity
* Needed to prevent a public disaster
* Not liable for trespass or damaging property
* Example: fire fighters put foam on house to prevent spread of fire
36
# Defenses for property
Private necessity
* Protect harm to person or limited number of people
* Not liable for trespass; liable for actual damage
* Exception: not liable for either if act was to benefit landowner
37
Negligence
Conduct that falls below standard of care expected of a reasonably prudent person in the same circumstances
1. D owed P a duty of care
2. D breached this duty
3. Causal connection between conduct and injury
4. P incurred actual loss or damages
38
# Negligence
Duty of care
* Legally imposed obligation to take risk reducing precautions for benefit of others
* D owes same amount of care that a reasonably prudent person acting under similar circumstances would have exercised
* Not taken into account if mentally incompetent, drunk, amateur, uninformed
39
# Negligence
What are exceptions to the general rule that duty of care is objective?
* If D possesses superior skill or knowledge, held to the reasonably prudent person with the same superior skill or knowledge
* If D possesses relevant physical characteristics (e.g. is blind), held to the reasonably prudent person with the same physical characteristic - but only if characteristic is actually relevant
40
# Negligence
To whom does a D owe a duty of care?
* Duty only owed to foreseeable victim - someone within the “zone of danger”
* Exception: rescuers are considered foreseeable victims, even if not foreseeable victim at the time of the negligent conduct
41
What is the balancing test to determine duty in negligence cases?
Cost of preventing loss v. probability and gravity of loss
42
# Negligence
What must P show regarding D's breach?
* Concrete, specific behavior by D that falls short of relevant standard of care
* Must state explicitly why D’s conduct breached duty
43
Res ipsa loquitur
Tool that raises permissible inference that there has been breach of duty based on circumstantial evidence
1. Cause of P's injury does not normally happen absent negligence
2. Accident that occured would normally result from the negligence of someone in D’s position (usually proven by showing D had exclusive control over injury-causing instrumentality)
44
Eggshell plaintiff rule
P can recover for all damages suffered, even if surprisingly great in scope
45
# Negligence
Factual cause
Injury would not have occurred but for the negligent conduct
46
# Negligence factual causation
What happens if two Ds were negligent, but P cannot prove which D's negligence caused the injury?
Burden shifts to Ds to prove their negligent act did not cause the injury
47
# Negligence factual cause
What happens if Ds acting independently each commit breaches which merge into a single indivisible harm?
* P only needs to show that each of Ds’ breaches were a substantial factor in the P’s injury
* If one of the breaches alone would be sufficient to cause entire harm, it is definitely a substantial factor
48
# Negligence
Proximate cause
D only liable if harm caused by conduct was foreseeable
49
# Negligence
What establishes proximate cause?
* Direct chain of events results in injury with no intervening forces
* D's negligence creates foreseeable risk that independent force would harm P
* Foreseeable result is caused by foreseeable intervening force
50
# Negligence
What does not establish proximate cause?
* D’s negligence creates foreseeable risk of harm, but entirely different and unforeseeable harm results
* Unforeseeable and independent intervening force results in injury (usually includes criminal acts and acts of God)
51
# Negligence proximate cause
What types of injuries are recoverable because they are caused by a foreseeable intervening force?
* Medical malpractice related to treatment of original injury
* Negligent rescue
* People protecting themselves or reacting to D’s negligence
* Subsequent disease or accident
52
# Negligence
When is there no proximate cause?
* D's negligence creates foreseeable risk of harm, but results in entirely different and unforeseeable harm
* Unforeseeable, independent intervening force (usually includes criminal acts and acts of God)
53
What damages are available in a negligence claim?
Personal injuries
* Medical bills
* Lost earnings
* Pain and suffering
* Future earnings (present amount which, if securely invested, would produce the income jury awards to P)
Harm to property
* Cost of repair
* Fair market value
54
What damages are not available in a negligence claim?
* Purely economic loss
* Punitive damages
* Interest from date of damage
* Attorney's fees unless provided by state
55
If P receives money from another source, does this reduce damages they can recover from D?
No
56
What is liability when there are multiple Ds?
* If one injury was caused by one D, and another by another D, each D is liable for the injury they caused
* If one injury was caused by both Ds, Ds are jointly and severally liable and P may collect full amount split between Ds or any one D
57
Contributory negligence state
If P in any way negligent, cannot recover any damages from D
58
Assumption of risk
P cannot recover any damages from D if:
* P knew or must have known the risk, and
* P voluntarily continued doing the activity
59
Partial comparative negligence state
* Damages reduced by proportion of P's negligence
* P cannot recover if P's negligence exceeds D's negligence
60
Pure comparative negligence state
* Damages reduced by proportion of P's negligence
* P can recover for the full proportion of D's fault regardless of proportion
61
What are the types of product defects?
* Manufacturing defects
* Design defects
* Information defects
62
Manufacturing defects
Defect that occurs in manufacturing process resulting in a differentiated product that is dangerous beyond expectation of ordinary consumer because of a departure from its intended design
63
Design defects
All products manufactured are equally dangerous because of an inherent feature of the product’s design
P must show that a less dangerous alternative design that was:
* Safer
* Practical
* Economically feasible
64
Information defect
Hidden risks without adequate warnings or instructions
“Adequate warning”:
* Prominent
* Comprehensible
* May need to provide information about mitigating risk
65
# Strict products liability
What do information defects usually refer to?
* Misprinted or missing labels
* Misdated products
* Flawed user instructions
* Inadequate or missing warnings
66
# Negligence standards of care
D is child
* Under 5, no standard of care
* Aged 5-18, hypothetical child of similar age, experience, and intelligence acting under similar circumstances
* Subjective, pro-defendant standard
* Exception: if child is engaging in an adult activity, reasonably prudent standard applies (e.g. operating a motorized vehicle)
67
# Negligence standards of care
D is professional
* D owes same care as average member of the profession providing similar professional services
* National standard of care, so may use experts from different states to establish standard of care
* Exception: if D is a specialist, expert witness must come from same speciality
68
# Negligence standards of care
D is landowner and P is an unknown trespasser
No duty owed
69
# Negligence standards of care
D is landowner and P is known trespasser
Look for pattern of past trespassing
D owes duty if hazardous condition is:
* Artificial (not icy steps),
* Highly dangerous,
* Concealed from trespasser, and
* Known by D
70
# Negligence standards of care
D is landowner and P is licensee
D owes duty if hazardous condition is concealed from licensee, and known by D
71
# Negligence standards of care
Licensee
* Person who enters land with permission but without financial benefit to possessor
* Examples: social guests, service providers soliciting services
72
# Negligence standards of care
Invitee
* Person who enters land with permission for the financial benefit of D, or land which is open to the public at large
* May lose status if exceed scope of invitation
* Examples: business customers, church goers
73
# Negligence standards of care
D is landowner and P is invitee
D owes duty if hazardous condition is:
* Concealed from invitee, and
* Known by D or could have been discovered through reasonable inspection
“Reasonable inspection”: reasonably thorough inspections that occur at reasonable time intervals
74
# Negligence standards of care
D is landowner and P is firefighter or police officer
D does not owe any duty for risks inherent to the job
75
# Negligence standards of care
D is landowner and P is trespassing child
* D owes duty of reasonably prudent person under the circumstances to protect the child trespasser from artificial hazards
* Look for something on property that is appealing to children and will draw them in
76
# Negligence standards of care
D violated a statute
If D violated statute, statute replaces standard of care and duty and breach are established automatically
P must show:
* Statute is legally appropriate, and
* D violated statutory command
77
# Negligence standards of care
Statutory violation: "legally appropriate"
* P is within class protected by statute (must be more specific than the public as a whole)
* Harm suffered is within risks statute tries to prevent (must be more specific than “injury” or “accident”)
78
# Negligence standards of care
What are exceptions to the rule about statutory violations?
Court will not use statutory standard if:
* Compliance would have been more dangerous than normal duty standard (e.g. swerving into the wrong name to avoid hitting someone)
* Compliance would have been impossible (e.g. driver has stroke and car rolls onto sidewalk)
79
# Negligence standards of care
D had duty to act affirmatively
D has duty to act reasonably under the circumstances when:
* Pre-existing relationship between parties (e.g. innkeeper-guest, common carrier-passenger, employer-employee, family members)
* D caused peril
No duty to rescue
D is never obligated to put their own life in danger
80
# Negligence standards of care
D is a rescuer
* Under common law, if person voluntarily undertakes rescue they are liable for negligent rescue
* Good Samaritan laws may insulate negligent rescuer from liability
81
Negligent infliction of emotional distress
If D’s conduct did not result in physical injuries, P may still recover for purely emotional distress damages
82
# NIED
Near-miss case
If D’s negligence almost injured P, P may recover for emotional distress if show:
* D’s negligence put P in zone of physical danger
* Distress caused P to suffer physical symptoms (e.g. stress-induced heart attack)
83
# NIED
Bystander case
If D’s negligence kills or severely injures third party, bystander P may recover for emotional distress if show:
* P and third party are closely related (spouse, parent, or minor child only)
* P was present at the scene and observed event
84
# NIED
Business-relationship case
If highly foreseeable that D’s negligent business-related conduct makes emotional distress highly foreseeable, P may recover for emotional damages
Examples:
* Medical laboratory erroneously concludes that patient has cancer
* Funeral parlor improperly prepares body for open-casket funeral
* NOT: dry cleaner loses customer’s clothes
85
# Strict liability
Domesticated animals
No strict liability unless D knew the animal had dangerous propensities
* No strict liability the first time a dog bites; strict liability for any subsequent bites
* Dangerous propensity must be peculiar to the animal, not to the species
* No strict liability if P is a trespasser
* Strict liability for reasonably foreseeable damage caused by animals trespassing (except for cats and dogs)
86
# Strict liability
Wild animals
* Strict liability for injuries caused by any non-domesticated animals D possesses
* No strict liability if P is a trespasser
87
# Strict liability
Abnormally dangerous activities
* Activity that cannot be made reasonably safe, even exercising ordinary care, and is uncommon in the area
* Examples: explosives, handling and transporting dangerous chemical or biological materials, use of nuclear energy or high-dose radiation
88
Elements of strict products liability
1. D is a merchant
2. Product is defective
3. Product was not substantially altered since leaving D's control
4. P was making foreseeable use of product
89
# Strict products liability
"Merchant"
* Someone who regularly deals in goods of this kind
* Does not include: casual seller, service provider
* Includes: commercial lenders (e.g. rental car company), everyone in distribution chain
90
# Strict products liability
"Not substantially altered"
Presumption of no alteration if product moved in ordinary channels of distribution
91
# Strict products liability
"Foreseeable use"
* Does not need to be intended or appropriate use
* Misuses may be foreseeable
92
# Strict liability
What are the defenses to strict liability?
If P knowingly encountered a dangerous situation:
* Traditional rule: cannot recover anything
* Modern (default) rule: assign comparative responsibility
93
Nuisance
D’s behavior interfered to a substantial degree with P’s ability to use and enjoy their real property
94
# Nuisance
What must the P show for nuisance?
* Must show D was acting intentionally or negligently
* Only needs to show that D knew the act would cause interference, not that D intended to annoy P
* Interference must be intolerable, minor interferences are not actionable
95
# Nuisance
When do nuisance issues usually arise?
Typically arises when neighbors:
* Use property inconsistently (e.g. commercial v. residential)
* Act out of spite
* Are grossly inconsiderate
96
Vicarious liability
Party who did not commit the tort may be liable to P based on relationship with active tortfeasor
97
# Vicarious liability
When is an employer vicariously liable for an employee's torts?
If employee was acting within the scope of employment at time of the incident
* Liable if employee makes a mere detour from employment (minor departure), e.g. employee goes on lunch break
* Not liable if employee is off on a frolic of their own (major departure)
98
# Vicarious liability
Is an employer liable for the intentional torts of an employee?
Intentional torts generally considered outside scope of employment, unless:
* Committed to further employer’s purposes
* Occupation authorizes physical force and employee misuses that force
* Friction is generated by employment
99
Are employers ever directly liable for their employees?
Employers may be directly liable for negligently selecting or supervising employees
100
# Vicarious liability
Is a hiring party vicariously liable for the torts of independent contractors?
Generally not
* Exception: business owner liable if hires independent contractor to work on the business premises, and the independent contractor hurts a customer
* Hiring party may be directly liable for negligently selecting or supervising independent contractor
101
When may a co-D indemnify another co-D?
May seek full reimbursement if D was:
* Only held vicariously liable
* Non-manufacturer D (retailer) in strict products liability case
102
Defamation elements
1. D made defamatory statement specifically identifying P
2. Statement published to a third party
3. Statement was false
4. Fault shown
5. P incurred damages
103
# Defamation
"Defamatory statement"
Any statement of fact which tends to adversely affect reputation
Not defamatory:
* Pure statements of opinion
* Name-calling
104
# Defamation
"Identifying P"
* Do not need to state P’s name, any identifying information is sufficient
* If identifies small group, all group members have a claim
* If identifies large group, no group members have a claim
* P must have been living at the time the statement was made
105
# Defamation
"Publication"
* Statements made to P privately are not actionable
* Publication need not be intentional, negligent publication is sufficient
106
# Defamation
If P is a private person, what must they show about D making the statement?
Only needs to show that D make statement negligently
Factors:
* Credibility of sources
* Time sensitivity of information
* Public interest in information
* Potential harm if statement turns out to be false
107
# Defamation
If P is a public figure, what must they show about D making the statement?
* If P is a public figure, must show D made statement knowingly or with reckless disregard of its falsity
* Includes people who are otherwise private involved in event of public concern
108
# Defamation
When are damages presumed?
* Libel case (statement is permanently recorded in any way)
* Slander per se case (spoken or oral statement so clearly defamatory that ordinary person would understand injury)
* Topics of slander per se: P’s business or profession, serious crime, serious sexual misconduct, loathsome disease (leprosy or STD)
109
# Defamation
When must P prove economic harm?
Slander case (spoken or oral statements)
110
Absolute privilege to defamation
No liability for defamation if statement is made:
* Between spouses
* By government officers in connection with official duties
* Includes lawyers and witnesses
111
Qualified privilege to defamation
No liability for statements made by D in good faith which turn out to be defamatory if there is public interest in encouraging candor
Examples:
* Statements made in references and recommendations
* Statements made between colleagues within same organization
112
Appropriation
* D uses P’s name or image without permission for commercial purpose
* Exception: may publish P’s name or image if P does something newsworthy
* Does not only apply to celebrities
113
Intrusion
* Invasion of P’s seclusion in a way which would be highly offensive to reasonable person
* Examples: eavesdropping, wiretapping, intercepting emails
* P must have been in a place in which P had reasonable expectation of privacy
114
False light
* Widespread dissemination of material falsehood about P that would be highly offensive to reasonable person
* Recover emotional damages
* False statement about someone’s beliefs is actionable as false light, but not as defamation
115
Disclosure
* Widespread dissemination of confidential information about P that is not of legitimate concern of the public and which would be highly offensive to reasonable person
* Example: spreading P’s medical or financial information
* Tabloids generally not liable for disclosure
116
Affirmative defenses in privacy claims
Absolute and qualified defamation privileges available in false light and disclosure claims only
