Torts Flashcards
Prima Facie Case
I. Act
II. Intent (i.e., substantial certainty)
III. Causation
Transferred Intent
Applicable to Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattels
Battery
1) Harmful or Offensive (unpermitted) Contact
2) With Plaintiff’s Person
Assault
1) Apprehension (reasonable)
2) of an Immediate Battery
Words alone are not enough. Words + Conduct.
False Imprisonment
1) Sufficient Act of Restraint
- threats/inaction are both enough
- time period is irrelevant
- P’s knowledge required)
2) Bounded Area
- not bounded if P knows of a reasonable means of escape
Shoplifting Detentions
1) Reasonable belief as to theft
2) Reasonable manner of detention
3) Detention for a reasonable period of time
Intentional Infliction of Emotional Distress
1) Outrageous Conduct
- Must be extreme
- Or: continuous, type of P, type of D
2) Damages
- Physical injury or clear proof of substantial emotional distress
Trespass to Land
1) Act of physical invasion by D
- Requires some physical object
2) of P’s land
- Includes reasonable distance above and below surface
Trespass to Chattels/Conversion
Chattels: Some damage, get cost of repair.
Conversion: A lot of damage, get full market value
Consent Defense
1) Did P have capacity to consent?
2) Was consent expressly given or implied?
- Express? Look for mistake, fraud, or coercion.
- Apparent Implied? Custom/Usage or P’s conduct
- Implied by Law? E.g., emergencies
3) Did D stay within the boundaries of consent?
Defense Privileges (e.g., self defense)
1) Timing Requirement
- Tort is now occurring, or just about to occur
2) Defense Test
- Reasonable belief that tort is being committed
3) Did D use proper amount of force to defend?
- Reasonable force (if self or others)
- Reasonable force, but never force calculated to bring about serious bodily injury (if property)
Necessity
1) Property tort?
2) Public or private necessity?
- Public: Benefits many, absolute, unlimited privilege. No liability
- Private: Benefits few, limited privilege. Liable for actual damages.
Necessity prevails over defense of property.
Defamation
1) Defamatory statement about P
- Injures P’s reputation
- Reasonably understood to be about P
2) Publication
- Communication to a third person
3) Damage to P’s reputation
- Libel: damage is presumed
- Slander: P must prove special (money) damages
- Slander per se: presumed (business, crime involving moral turpitude, loathsome disease, unchastity to woman)
Public concern? Add two more steps.
4) Falsity (1st Am.): BoP of truth shifts to P
5) Fault (1st Am.)
- Public figure: intentional or reckless
- Private figure: negligent
Defenses
- Consent
- Truth (unless 1st Am. case)
- Privileges
- Absolute (btw spouses, 3 gov’t branches)
- Qualified: lost if abused
Invasion of Right to Privacy
1) Appropriation By D of P’s Name or Picture for D’s Commercial Advantage
2) Intrusion by D into P’s Privacy or Seclusion
- Highly offensive to a reasonable person?
3) Publication of Facts Placing P in “False Light”
- Highly offensive to a reasonable person?
- Wide dissemination?
4) Publication of Private Facts about P
- Highly offensive to a reasonable person?
- Wide dissemination?
Defenses
- Consent
- Absolute & Qualified Privileges (#s 3 and 4)
Misrepresentation
Intentional
1) Affirmative misrepresentation of fact
2) Scienter
3) Intent to Induce Reliance
4) Justifiable Reliance
5) Causation/Damages
Negligent
1) Negligence (instead of scienter)
2) Must be commercial setting
Interference with Business Relations
1) Valid relationship btw. P and 3rd Person
- Existing or prospective
2) D’s knowledge of relationship
3) Intentional interference
4) Damage
Defenses – Privileges
- Think about: D’s persuasion conduct, relationship btw. D and P, relationship btw. D and 3rd party
Negligence
1) Duty
2) Breach
3) Causation
4) Damages
Duty
Foreseeable P
- Unforeseeable = not within zone of danger
Standards of Care
Reasonable Person Standard of Care
Def: Reasonable Under the Circumstances
- Physical characteristics taken into account
Children Standard of Care
Def: Child of like age, intelligence, and experience
Professionals Standard of Care
Def: A reasonable professional in the same or similar communities
Common Carrier and Innkeepers Standard of Care
Def: Liability for even slight negligence
Owner-Occupier Standards of Care
1) Is D an O/O, or in privity with one?
2) Did injury occur on or off the land?
3) Undiscovered trespasser? No duty.
4) If not, was it an activity or dangerous condition?
- Activity: Ordinary negligence. Reasonable person standard.
- Dangerous Condition: P’s status is relevant.
5) If Dangerous condition, D’s responsibility depends on P’s status.
- Discovered Trespasser
- Licensee
- Invitee
Statutory Standards of Care/Negligence Per Se
1) P must fall within protected class
2) Statute must be designed to prevent this kind of harm
Exceptions: Compliance is more dangerous/impossible
Negligent Infliction of Emotional Distress
1) P must suffer physical injury
2) P must be within the target zone of D’s negligent conduct (includes relative perceiving the injury)
