Torts Flashcards
(20 cards)
Shopkeeper’s privilege
The shopkeeper’s privilege is a defense to false imprisonment when:
-the defendant is a merchant or a merchant’s employee or agent
-the defendant reasonably believes that the plaintiff has wrongfully taken or is attempting to take merchandise from its premises or failed to pay for personal property/services rendered there
-detainment occurs on, or in the immediate vicinity of, the merchant’s premises AND
-detainment is conducted for a reasonable amount of time and in a reasonable manner to investigate the matter, recapture the property, or facilitate the plaintiff’s arrest
Invasion of privacy based on publicity in a false light
Requires proof that:
-D publicized false information that placed the plaintiff in a false light
-the false light would be highly offensive to a reasonable person
-the publication was made with actual malice
-the plaintiff suffered damages
Apparent agency
Under the rule of apparent agency, a defendant may be vicariously liable for a third party’s torts if (1) the plaintiff reasonably believed that the third party was acting within the scope of an agency relationship with the defendant and (2) the belief was traceable to the defendant’s manifestations.
Vicarious liability and independent contractors
A principal is generally not vicariously liable for its independent contractor’s torts. However, vicarious liability will be imposed when the independent contractor breaches a nondelegable duty of care owed by the principal–e.g., land possessor’s duty to keep the premises safe for business visitors. (Example: hotel is liable for an independent contractor’s negligence in leaving an excavation unguarded and a guest falls into the excavation—hotel is vicariously liable and contractor is directly liable).
Negligence per se
Under the doctrine of negligence per se, the elements of duty and breach are presumed if: (meaning plaintiff doesn’t have to establish a prima facie negligence case by proving DBCD)
-the defendant violated the statute
-the statute was intended to prevent the type of harm suffered by the plaintiff and
-the plaintiff is within a class of persons that the statute was intended to protect.
Defenses to negligence per se
Violation of law excused by:
-use of reasonable care
-incapacity
-need to avoid greater risk of harm
-impossibility of complying
-vagueness of law
-reasonable ignorance (rare)
When are damages for trespass appropriate?
A defendant who intentionally enters the plaintiff’s land without permission is liable for intentional trespass, even if the entry does not harm the land or the plaintiff. In contract, a defendant whose entry results from negligent or reckless conduct is only liable for trespass if he causes actual damages.
Fraud (intentional misrepresentation)
A prima facie case of fraud (intentional misrepresentation or deceit) is established by proof of the following elements:
1. the defendant knowingly or recklessly misrepresented a material fact with the intent to induct the plaintiff’s reliance and
2. the plaintiff justifiably relied on the misrepresentation and suffered pecuniary (financial) loss as a result.
Note: Reliance was not justifiable if the representation was obviously false or the defendant was stating a lay opinion.
Strict products liability
Requires proof of the following elements:
-the defendant was a commercial seller (i.e., manufacturer, retailer, etc.)
-the product was defective at the time it left the defendant’s control
-the defect caused the plaintiff physical harm (i.e., bodily harm or property damage)
Claims for purely economic loss are NOT allowed. Purely economic losses include any harm to the defective product itself as well as consequential damages arising therefrom (e.g., lost profits).
Trespasser and duty owed
Trespasser: intentionally enter land without permission
Duty owed by land possessor: for known or frequent trespassers, duty to warn of known artificial dangers & use reasonable care in active operations; unknown or unanticipated trespassers–no duty
Licensee and duty owed
Licensee: one who enters land with permission (e.g., social guest)
Duty owed by land possessor: warn of known latent dangers & use reasonable care in active operations
Invitee and duty owed
Invitee: enters land open to public (e.g., churchgoer) or enters land for business purpose (e.g., store customer)
Duty owed by land possessor: inspect for unknown dangers; make premises safe or provide adequate warnings; prevent harm from active operations
Affirmative duty to act in regards to mental health professionals
A special relationship exists between mental-health professionals and their patients. Therefore, if a patient makes a credible threat of physical violence against an ascertainable victim, the mental-health professional must warn the would-be victim of the risk posed by the patient or take other steps to mitigate that risk.
Trespass and damages
Trespass is an intentional, unauthorized entry onto land in the plaintiff’s possession. The plaintiff can recover nominal damages for a harmless trespass or compensatory damages for a harmful trespass. Punitive damages and/or injunctive relief may also be available.
Tort causation
To succeed in a negligence claim, the P must prove that there was a causal link (i.e., connection) between the defendant’s tortious conduct and the plaintiff’s harm. This requires proof that D’s conduct was both the actual and proximate cause of that harm:
-actual cause: but for the defendant’s conduct, the plaintiff would not have been harmed
-proximate cause: P’s harm was a reasonably foreseeable consequence of D’s conduct, meaning that the conduct was of a type that generally increases the risk of that harm.
Invasion of privacy based on appropriation of name or likness
To recover damages for an invasion of privacy claim based on appropriation of name or likeness (i.e., misappropriation of the right to publicity), the plaintiff must prove that the defendant:
1. used the plaintiff’s picture, name, or likeness without authorization and
2. obtained a benefit (typically a commercial advantage) from that use
Libel
Defamation in words that are written, printed, or otherwise recorded in permanent form. Most courts have held that emails are considered libel. A libel claim requires proof of the following:
-the defendant knowingly made a false statement about the plaintiff or negligently failed to determine its falsity
-the statement was defamatory, meaning that the statement would have a general tendency to harm the plaintiff’s reputation
-the defendant published the statement by intentionally or negligently communicating it to a third party
Third-party liability for defamation
A third party who repeats a defamatory statement to someone else is independently liable for defamation. This is true even if the republisher identifies the originator of the statement and expresses a lack of knowledge as to its truthfulness.
Strict liability for livestock
Strict liability is imposed when livestock or other animals (not dogs or cats) enter another’s land and cause bodily harm or property damage typical of livestock. But since the cause of the intrusion must be foreseeable, strict liability is not imposed when the intrusion is caused by an unforeseeable event or force (like a stranger opening the gate, or an unpredictable tornado destroys the fence).
Private nuisance
Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff’s property. An interference arising from a natural condition on land is generally not a nuisance. However, a defendant is subject to nuisance liability for a natural condition on land that creates a risk of imminent danger to the plaintiff or P’s property when:
-the risk of harm is obvious or known to the defendant
-the defendant fails to take reasonable steps to eliminate or ameliorate the risk and
-the natural condition causes a substantial and unreasonable interference with the plaintiff’s use and enjoyment of the land
