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California Bar Summer 2014 > Torts > Flashcards

Flashcards in Torts Deck (19):
1

 

Vicarious Liability 

One person commits a tortious act against a third party and another person will be liable to the third party for this act.

2

 

Vicarious Liability: Employer and Employee


 

Employers are vicariously liable for the negligence of their employees committed while the servants are acting within the scope of their employment. However, they are not liable for intentional torts, which are normally outside scope of employment. There are three exceptions: 

 

  1. If job authorizes use force
  2. If job involves friction/tension/conflict
  3. Intentional tort is being conducted in effort to advance interest of employer

 

 

3

 

Vicarious Liability: Indepent Contractor and Hiring Party


 


 

A principal is vicariously liable for the negligence of their independent contractor in two situations: (1) the independent contractor is engaged in inherently dangerous activities; or (2) the duty is not delegable (e.g. the duty of a business to keep its premises safe or the duty of an owner of property to keep it from being dangerous to those off site). 

 

If the employee or independent contractor causes an employer or principal to be vicariously liable, that does not relieve the employee or independent contractor of liability absent a special statute. Under the common law, they are also liable to the plaintiff.

 

 

4

 

Vicarious Liability: Automobile Owner and Driver



 

Generally, there is no vicarious liability.

 

  • Exception: if the driver is doing an errand for the owner, then vicarious liability is triggered (now there is an agency relationship)

 

5

 

Vicarious Libability: Parents and Children


 

Generally, parents are not responsible for torts of their kids. There are no exceptions.

 

 

6

 

Duty to Control the Conduct of Others


 

Where a defendant has the ability and authority to control the third person’s conduct, defendant has an affirmative duty to control the conduct if the defendant knows or reasonably should know that the third person is likely to commit acts that would require the exercise of control.

 

  • Children
    • If a parent is aware of a child’s propensity for committing intentional torts, a parent does have a duty to control their child
  • Dogs
    • The owner of domestica animal is not strictly liable for the injuries it causes, but is only liable if the owner has knowledge of the animal’s particular propensities

 

 

7

 

Transferred Intent 


 

Where a defendant intends to commit a particular tort against a particular person, but instead commits a different tort against that person, or commits the tort against a different person, the intent is transferred to the tort actually committed. Applies to:


 

  • Assault
  • Battery

  • False imprisonment

  • Trespass to land

  • Trespass to chattels

     

     

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8

 

Assault


 

(1) A volitional act (2) done with intent to cause either harmful or offensive contact or an apprehension of imminent harmful or offensive contact that (3) causes (4) the reasonable apprehension of harmful or offensive contact.

 

A volitional act

Done with the intent to cause either;


 

  • Harmful or offensive contact that; OR
  • An apprehension of imminent harmful or offensive contact that
    • Look for facts that show immediate harm, not 10 minutes later
    • Words alone lack immediacy
      • Must be overt conduct; menacing gesture
    • Even when there is conduct, accompanying words may negate immediacy
      • e.g. If you weren’t my best friend, I would beat you up
      • e.g. If you don’t have the money by 4 p.m. today, I will beat you up

Causes

The reasonable apprehension of harmful or offensive contact


 

  • Not fear
  • Synonym for knowledge
  • “Unloaded gun problem”
    • D acts in threatening way, but facts reveal it is a bluff or idle threat
    • Focus on the knowledge of the P or what is reasonable suspect in the situation if no information is known
  • Look for ducking, jumping out of the way, fainting, etc.

 

 

9

 

Battery

(1) A volitional act; (2) done with intent to cause either harmful or offensive contact with P’s person or an apprehension of imminent harmful or offensive contact that (3) causes (4) harmful or offensive contact.

 


 

A volitional act

 

Done with the intent to cause either;


 

  • Harmful or offensive contact with P’s person; OR
    • Includes anything P is holding or anything connected to P’s person
  • An apprehension of imminent harmful or offensive contact that

Causes

Harmful or offensive contact


 

  • This is an objective test: what would society regard as offensive
  • Harmful contact is even the slightest physical change in condition
  • Unpermitted by a person of reasonable or normal sensitivity
  • Exception if quirkiness is made known

10

 

False Imprisonment


 

(1) An act intending to confine someone within boundaries fixed by the actor; (2) directly or indirectly resulting in such confinement, and (3) the confined person is either aware of the confinement or harmed by it.

 


 

An act intending to confine someone within boundaries fixed by the actor


 

  • Threats are sufficient so long as they are threatening to a reasonable person
  • Omission can be act of restraint, provided there was preexisting duty

    • e.g. left woman in wheelchair on airplane without assistant

​​​Directly or indirectly resulting in such confinement, and


  •  

    Area is bounded even if it does not have specific boundaries such as walls or fences (e.g. park)

    • Boundary is determined by threat

  • Area is not considered bounded if there is a reasonable means of escape that P can reasonably discovery

  • Disgusting, hidden, dangerous, harmful or humiliating means of escape do not count

 

The confined person is either conscious (aware) of the confinement or harmed by it

  • Confinement includes denial of the means to leave the particular boundaries set up by the defendant
  • Threats are sufficient
    • e.g. If you leave this room I will kill your children
  • Movement must be restricted in all directions
    • Roadblock one way is not false imprisonment

 

Defenses

  • Shopkeeper Privilege: reasonable grounds to believe theft occurred, may detain one for a reasonable time and in a reasonable manner to ascertain what has happened
    • Look for this where a shopkeeper or store security holds plaintiff.
  • Crime Prevention: reasonable belief crime has occurred - must involve disturbing the peace

 

 

 

 

11

 

Trespass to Land


 

(1) D must commit act of physical invasion and (2) the act must interfere with P’s exclusive possession of the land.

 


 

D must commit act of physical invasion


 

  • Occurs either through:
    • Entry on to property (by foot or vehicle)
      • D does not need to be aware
      • Mistaken entry is not defense
      • Accidental entry is not invasion
        • e.g. heart attack and fall into someone’s yard
    • Throwing something onto land
      • ​​​Thing thrown must be physical or tangible

 

Act must interfere with P’s exclusive possession of the land


 

  • Proper P is who is in legal possession
  • Interest in parcel land includes air above and soil below out to a reasonable distance

 

 

 

 

12

 

Trespass to Chattels and Conversion 


 

Trespass to Chattels: (1) An act which is an intermeddling or dispossession (2) of the personal property (3) of another (4) which causes harm to, or the loss of use of the personal property

 

  • Relatively minor interference with the possessory interest of another through damage or theft.
  • Requires actual damages unless there is actual dispossession

 

Conversion: (1) an intentional act that interferes with plaintiff’s right to possession of a chattel (2) so seriously that it warrants requiring the defendant to pay the chattel’s full value.

 

 

13

 

Affirmative Defense to Intentional Torts:

Intentional Infliction of Emotional Distress



 

(1) Intent to cause severe emotional distress and (2) D must engage in outrageous conduct and (3) P must suffer severe emotional upset or distress.

 

Intent to cause severe emotional distress; and

D must engage in outrageous conduct



 

  • Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society
  • Mere insults are not outrageous - even when delivered with intent to distress another

    • Insults may be part of a package of behavior that is outrageous
       

  • Hallmarks of outrageous conduct


    • Conduct is continuous or repetitive in nature
    • Defendant is common carrier or innkeeper
    • P is member of fragile class
      • Children
      • Extreme elderly
      • Pregnant women
    • Deliberately targeting someone's known emotional sensitivity
  • Reckless conduct qualifies

P must suffer severe emotional upset or distress

  • No requirement for actual/physical harm
  • Bar tends to negate element in body of question
    • e.g. Pam was mildly annoyed
  • Malice required for IIED for public officials

 

 

14

 

Affirmative Defense: Consent 


 

  • Only someone with legal capacity can give valid consent
  • Children and those with mental disabilities can consent to things they capable of consenting to
  • Two kinds of consent
    • Express: explicit declaration granting D to behave in certain way that would otherwise be a tort
      • Exception: if obtained through fraud or duress
    • Implied
      • Comes up by usage or custom
        • e.g. barbershop, sports
      • Defendant’s reasonable interpretation of plaintiff’s objective conduct and surrounding circumstances or body language consent
    • Consent only extends to scope

 

 

 

15

 

Affirmative Defense to Intentional Torts:

Protective Priviliges


 

Whether the privilege exists

  • Timing: may respond to threat only when threatened or tort is in progress
  • Reasonable belief that threat is genuine
    • Do not lose privilege if genuine mistake
  • Response must be what was necessary under the circumstances and no more

 

Self Defense

Defense of Others


 

  • Reasonable belief that the person being aided would have had the right to self-defense.

Defense of Property


 

  • Can never use deadly force to protect property

 

 

16

 

Affirmative Defense to Intentional Torts:

Necessity Defenses 


 

Only relate to 3 property torts


 

  • Public Necessity: arises when D invades P’s property in an emergency to protect community as a whole or significant group of people
    • e.g. natural disaster; D is good samaritan
  • Private Necessity: D invades property in emergency to protect interest of their own
    • Legal consequences:
      • D remains liable for actual damage to property (compensatory damages)
    • D is not liable for nominal or punitive damages
    • As long as emergency continues, P cannot throw D off land

 

 

 

 

17

 

Abuse of Process


 

(1) Use of a legitimate process (2) for a wrongful purpose (3) and an act or threat against the P to accomplish the wrongful purpose

 

  • Use of a legitimate process
    • e.g. Filing a complaint, service, discovery
  • For a wrongful purpose (harass, waste time)
  • And an act or threat against the P to accomplish the wrongful purpose
  • Prohibits the use of any form of process to bring about a result other than that which the process was intended

 

 

18

 

Malicious Prosecution


 

(1) Initiation of civil, administrative or criminal proceedings against the plaintiff( 2) without probable cause (3) or a wrongful purpose (4) and the favorable termination of the proceedings on the merits in favor of current plaintiff (defendant in the original case).

 

 

 

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