Torts Flashcards
(45 cards)
Battery
is an (1) intentional, (2) harmful or offensive contact (that offends a reasonable sense of personal dignity), (3) with the P’s person (including anything connected to P).
− Intentional = (a) a desire to bring about the harm/contact; OR (b) knowing the harm/contact is substantially certain to occur.
*Nominal damages alone are sufficient.
Assault
is an (1) intentional act, (2) that causes P to be placed in reasonable apprehension, (3) of an imminent harmful or offensive contact with P’s person.
− Intentional = (a) for the purpose of causing such apprehension; OR (b) with knowledge to a substantial certainty that the apprehension will result.
− Reasonable Apprehension = P must be aware of D’s act AND believe D is able to commit the act.
*Nominal damages alone are sufficient.
False Imprisonment
is an (1) intentional act, (2) to restrain P to fixed boundaries (with no reasonable means of escape), AND (3) P is aware of the confinement or harmed by it.
− Intentional = (a) purposely bringing about the confinement; OR (b) knowing the confinement is substantially certain to occur.
− Restraint → by physical force or through threats.
*Nominal damages alone are sufficient.
Intentional Infliction of Emotional Distress
is (1) intentional or reckless conduct, (2) that was extreme and outrageous (transcends all bounds of decency), (3) that causes extreme emotional distress (causation), AND (4) P actually suffers severe emotional distress (damages).
− Intentional = the person (a) desires to inflict severe emotional distress; OR (b) knows that such distress is certain or substantially certain to result.
− Reckless = a deliberate disregard of a high risk that emotional distress will follow.
If conduct is directed at a third-party, D is liable for intentional/reckless infliction of emotional caused to:
a) A member of such person’s immediate family present at the time; OR
b) Any other person present, if it results in bodily harm.
Trespass to Land
D is liable if: (1) he intentionally,
(2) either (a) enters the land physically (or remains on the land) or (b) propels physical objects or a third-person onto the land (or fails to remove an object he is under a duty to remove).
− P must be the possessor of the land at the time of the trespass.
− Nominal damages alone may support a claim.
Intent = (a) desire; OR (b) knows entry is substantially certain to occur.
− Intent to trespass is NOT required – only the intent to be on the land is required.
Actual Damages – P may recover for physical harm to:
a) Land; AND/OR
b) Land possessor (or their family).
Trespass to Chattels & Conversion
Trespass to Chattels – liable when:
1) D intentionally interferes with personal property of another (damage, preventing use by the owner); AND
2) The amount of damage is small.
Conversion – liable when:
1) D intentionally interferes with personal property of another (damage, preventing use), AND
2) The amount of damage is substantial.
*P can recover the full market value of the property.
Doctrine of Transferred Intent
The intent to harm one party can be transferred when:
1) D intends to commit a tort against one particular individual; AND
2) Either:
a) commits a different tort against that person; OR
b) another person is injured by the same or different tort.
*Applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels.
Consent
may be express or implied through words or conduct.
− CANNOT exceed the bounds of the consent given.
− P must have capacity to consent.
− May be withdrawn at any time.
− P cannot consent to a crime (some courts).
Apparent Consent → words/conduct are reasonably understood to be consent (i.e. customary practice, failure to object).
Implied by Law Consent → occurs in special circumstances, such as medical emergencies.
Privilege
Is conduct that normally would subject the actor to liability, but is excused under the circumstances.
Necessity – D is NOT liable for harm to P’s property if D’s intrusion was (or reasonably appeared to be) necessary to prevent serious harm to a person or property.
− Applicable only to intentional torts against property.
− Public Necessity (compete defense) → when D acts for the public good.
− Private Necessity (incomplete defense) → when D is protecting his own (or a few others) property interests. D is liable for damages UNLESS the purpose was to help P.
Self-Defense / Defense of Others – D is not liable for harm to P if he:
1) reasonably believed P was going to harm him or another; AND
2) used reasonable force that was necessary to protect himself or another.
Defense of Property – may use reasonable force to defend property, but CANNOT use deadly force.
Recapture of Chattels – An owner of wrongfully taken chattels may take prompt action and use reasonable, non-deadly force to recover the chattels from the wrongdoer.
− Force is deemed unreasonable without first making a demand to return the item UNLESS the demand is dangerous or futile.
Detain for Investigation – Shopkeepers MAY (1) temporarily detain, (2) a person reasonably suspected of theft, (3) in or near their store, (4) for the purpose of investigation.
− When a request to remain has been made and refused, reasonable non-deadly force may be used to detain.
Negligence
Prima Facie Case – Elements:
1) Duty,
2) Breach of duty,
3) Causation (actual and proximate cause), AND
4) Damages.
*A party must offer sufficient evidence to prove ALL of the above elements.
Affirmative Duty
There is NO general duty to act affirmatively EXCEPT IF:
a) A special pre-existing relationship exists between the parties (i.e. parent-child, landowner-entrant);
b) D put P in peril;
c) D has already undertaken to rescue P (but liable only if it increases the risk of harm or harm is suffered because of reliance on the person providing help); OR
d) A duty imposed by law.
Reasonable Person Standard
Every person owes a duty to act as a reasonable prudent person would act under the circumstances.
− Following community customs & statutory requirements are relevant, but not dispositive.
It is merely evidence of reasonable care.
Physical Disability → must act as a reasonable person with the disability would act.
Mental Disability or Below Average Intelligence → must act as a reasonable person without the disability would act.
Children
must act as a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
− EXCEPTION → If engaging in an adult activity, the child has a duty to act as reasonable adult.
Professionals
Must act with the knowledge and skill as an average member of that profession participating in a similar community.
− Professional → doctors, lawyers, accountants, engineers, architects, nurses.
Specialist – If holding oneself out as a specialist, then must act as an average member of that profession practicing that specialty.
Medical Doctor – Held to the degree of care and skill of an average qualified practitioner under a national standard. Psychologist / Psychotherapist – Also have a duty to warn victims when their patient makes a credible threat if: (1) the therapist believed the patient posed a real risk,
(2) of serious physical violence, (3) to a readily identifiable victim, and (4) failed to take steps to warn the victim.
Land Owner / Possessor Duty to Entrants
Some States → Landowner/Possessor must exercise reasonable care under the circumstances to ALL entrants.
Other States → Duty of care is determined by the type of entrant:
− Undiscovered Trespasser → no duty is owed.
− Anticipated Trespasser (without permission, but expected) → (1) reasonable care in operations on the property, AND (2) must warn of (or make safe) highly dangerous artificial conditions that the land owner knows of.
− Licensee (social guest) → (1) reasonable care in operations; AND (2) must warn of (or make safe) dangerous conditions that are known, but not apparent to a guest.
− Invitee (enters for the owner’s benefit, shop, or business) → The same duty as a Licensee + the duty to make reasonable inspections to find and make safe non-obvious dangerous conditions.
Attractive Nuisance – Landowner/Possessor owes a duty to child trespassers to make the premises reasonably safe or warn of hidden dangers on the land.
− Will be liable if:
1) knows (should know) of a dangerous artificial condition – likely to cause death or serious bodily injury;
2) knows (should know) children are likely to frequent the area;
3) children are unlikely to discover the condition or appreciate the risks; AND
4) the risk of harm outweighs the expense of making the condition safe.
*Attractive nuisance doctrine DOES NOT apply if the child is engaging in an adult activity.
Landlord’s Duty to Tenants
Landlord generally has NO duty to maintain the leased premises (unless provided for by law or contract).
− But, landlord MUST warn of latent defects.
Duty to Make Premises Safe from Criminal Acts:
− Common Law → Landlord has NO duty to provide a safe premises so that tenants are safe from criminal acts of third-persons.
− Modern View → Landlord has a duty to take reasonable precautions to protect a tenant against foreseeable attacks.
Negligence Per Se
The elements of duty & breach are established when D breaches a statute.
To use Negligence Per Se, P must show:
1) Statute’s purpose is to prevent the type of harm P suffered; AND
2) P is in the class of persons the statute seeks to protect.
Two Exceptions:
▪ Exception #1 → Compliance with the statute would have been more dangerous than the violation of it.
▪ Exception #2 → Compliance was impossible.
Res Ipsa Loquitur
Can be used when the breach element is difficult to prove.
Restatement (Second) Test – Plaintiff must show that:
1) the injury is of a kind that typically does not occur in the absence of negligence;
2) other responsible causes are sufficiently eliminated by the evidence (including the conduct of P and third persons); AND
3) the negligence was within the scope of duty D owed to P.
Causation
P must show that D’s conduct was BOTH the actual and proximate cause of the injury.
Actual Cause → the “but for” cause.
− Substantial Factor Test – deemed an actual cause if it’s a substantial factor in bringing about the injury (even if there are multiple causes).
Proximate Cause → injury must have been a foreseeable result of the breach.
− D is NOT liable for remote harms caused.
Intervening Cause
Is an act that occurs after the breach that contributes to the harm.
− Intervening causes that are dependent (a natural reaction to) D’s wrongful acts → usually deemed foreseeable.
− If the intervening cause resulted in an unexpected injury → it’s usually deemed unforeseeable and D is NOT liable.
Medical Malpractice → is ALWAYS deemed foreseeable.
Criminal Acts → usually NOT foreseeable UNLESS:
a) D should have anticipated the criminal act; OR
b) D’s conduct makes the criminal act more likely.
Eggshell Plaintiff Rule
“Take P as you find P” D is liable for all harm P suffers as a result of his conduct, even if P suffers from a pre-existing mental or physical condition that makes the harm worse than what a normal person might suffer.
Comparative & Contributory Negligence
Comparative & Contributory Negligence
Pure Comparative Negligence → P’s negligence (or assumption of risk) will reduce his recoverable damages by the percentage of his own fault.
Partial Comparative Negligence → If P is 50% or more at fault, then P’s claim is barred.
− If P is less than 50% at fault, then damages are reduced by the percentage of his own fault.
Contributory Negligence → P’s claim is barred if he contributed to his injury.
− Exception #1 → D had the last opportunity to avoid the accident.
− Exception #2 → D was reckless.
Exam Tip → Only apply pure comparative negligence (unless explicitly instructed otherwise).
Assumption of Risk
Is a defense to negligence, and applies if P voluntarily assumed a known risk.
− May be express (by agreement) OR implied (an average person would appreciate the risk).
Negligent Infliction of Emotional Distress
Three scenarios where a P can recover:
− Near Miss Case → (1) D’s negligence, (2) creates a foreseeable risk of physical injury, (3) P is in the zone of danger, AND (4) P manifests physical symptoms.
− Bystander Claim → (1) negligence by D, (2) P is a contemporaneous witness to negligent bodily injury inflicted on P’s close family member (parent, child, spouse), AND (3) P manifests physical symptoms.
▪ In a few states → P must also be in the zone of danger.
− Pre-Existing Relationship → (1) a pre-existing relationship between the parties, AND (2) D’s negligent act foreseeably causes distress.
▪ Recovery is rare; only available in egregious situations.
