Flashcards in Torts 2.0 Deck (33)
What are the 3 elements of defamation?
1. statement by D about P
2. Published (to at least 1 other person other than P, regardless of mistake)
3. Damages (types depend on whether slander (oral- need proof of economic harm)/ libel (written- no damages requried))
What 5 types of defamation via slander DO NOT require proof of economic damages?
When there is slander per se including:
1. statements about business incompetence
2. criminal/ moral turpitude
3. loathsome disease
4. sexual misconduct
What are the 5 elements of a misrepresenation fraud tort claim?
1. misrepresentation of fact by D
2. intent/ recklessness (good faith/ reasonable misstatement ok)
3. purpose of statement to induce P's reliance
4. P does rely
5. Damages (economic, $)
What are the 4 elements of an intentional interference w/ business relations claim?
1. valid K
2. D knows of K
3. D induces 3rd party to breach/ abandon K
4. there is subsequent breach
What are the 2 key parts of the tort of false imprisonment?
1. D engages in act of restraint/ confining AND
2. P confined in bounded area (must be locked in space w/o reasonable means of escape)
What are 4 signs of outrageous conduct for IIED?
1. repetitive/ continuous conduct
2. D is common carrier/ innkeeper (ex: too ugly to stay here)
3. P member of fragile class (preggo, old)
4. deliberate explotation of known sensitive/ phobia
What are the 2 key parts of the tort of assault?
1. actual apprehension
2. immediate offensive contact
What 2 factors must be shown to constitute tort of battery?
1. D engaged in harmful/ offensive contact &
2. contact was w/ P's person (or anything connected to P, ex: horse touching, holding, carrying)
What is an offensive touching for a battery?
contact that is unpermitted by a person of ordinary sensitivity
What are the 2 parts of the tort of intentional infliction of emotional distress (IIED)?
1. D's outrageous conduct
2. causes P's severe distress
What 3 types of P's lack capacity to consent to tortious conduct?
2. mentally ill
3. children (can consent to age-appropriate conduct i.e. sports, not sex)
What happens if a D exceeds scope of consent?
D will be found liable
Is an honest mistake or good faith belief a defense to trespass to land?
NO, all required is intent to enter land
-same true for trespass to chattels and conversion
What are examples of a physical invasion? (trespass to land)
1. throw/ propel tangble object
2. intangible force (ex. light, sound, smell, not physical invasion)
What is the key distinction b/w trespass to chattels and conversion?
chattels applied to small harm
conversion is substantial interference w/ personal property (ex. D lost/ refuses to return property)
What are the 3 main defenses to claims for physical harms?
3. immunities (necessary for property torts)
What are the 2 types of consent?
1. express (oral/ written)
-custom/ usage (subway)
- D's reasonable interpretation of P's overt conduct (objective standard)
What is public necessity immunity?
D invades P's property to protect community as a whole (D escaped lion on P's land), not liable
What is private necessity immunity?
D invades P's property in an emergency to protect D's own interest, liable for damages done to P's property (no nominal/punitive damages)
What are the 4 elements of a prima facie case for negligence?
1. legal duty
2. breach of duty
3. actual & proximate causation
What are the 3 types of protective priviledges?
2. defense of others
3. defense of property
What are 2 exceptions to the general rule that there is no duty of care to unforeseeable P's?
2. prenatal/ fetal injuries
What is the main exception to the rule that there is generally no duty of care to conduct of 3rd parties?
duty arises where a special relationship exists between D & 3rd party (ex. parolee and parole officer, child and parent)
-standard: D knows/ shouldve known actor likely to cause bodily harm to others
Do parents owe a special duty to children to excercise due care in supervising day-to-day activities?
-does have duty to protect from foreseeable harm that is subject to parents control
What 2 factors must a D show to invoke a protective privilege?
1. proper timing (imminent/ inprogress)
2. reasonable belief tort is about to be committed
-> reasonable mistake will not negate privilege
What is the rule of symmetry/ proportionality? (protective privilege)
D must limit response to force necessary under the circumstances
What type of duty is owed to an undiscovered trespasser?
No duty owed, undiscovered trespasser always loses neg claim
What are the 2 types of discovered trespassers?
Trespassers occupier has
1. actual knowledge of
2. anticipated trespassers (past pattern of regular trepass)
When is deadly force permitted?
When human life is in jeopardy (or reasonable belief)
-not allowed to protect property
Who does a person hold a general duty to?
foreseeable victims of his carelessness
What is the common standard of care a person should observe?
person should act like reasonably prudent person would in similar circumstances (objective standard)
What are the 3 situations where the general standards of care could be different?
1. D w/ superior knowledge (raise standard)
2. child D (under 4, incapable of neg; 4-18, use subjective standard unless child engaged in adult activitiy)
3. professional D (avg member of profession- apples to apples)
4. duty owed by occupiers of land