Torts Flashcards
(122 cards)
1
Q
Transferred Intent <br></br>(Intentional Torts)
A
The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead <br></br>(i) commits a different tort against that person, <br></br>(ii) commits the same tort against a different person, or <br></br>(iii) commits a different tort against a different person. Applies only to assault, battery, false imprisonment trespass to land, or trespass to chattels.
2
Q
Battery
A
Elements of a prima facie case: <br></br>(i) harmful or offensive contact; <br></br>(ii) to plaintiff’s person, <br></br>(iii) intent; and <br></br>(iv) causation. Plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct.
3
Q
Assault
A
Elements of a prima facie case: <br></br>(i) An act by defendant creating a reasonable apprehension in plaintiff; <br></br>(ii) Of immediate harmful or offensive contact to plaintiff’s person; <br></br>(iii) Intent; and <br></br>(iv) Causation. Plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.
4
Q
False Imprisonment
A
Elements of a prima facie case: <br></br>(i) An act or omission on the part of defendant that confines or restrains plaintiff; <br></br>(ii) to a bounded area; <br></br>(iii) Intent; and <br></br>(iv) Causation. Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if defendant acted maliciously.
5
Q
Intentional Infliction of Emotional Distress
A
Elements of a prima facie case: <br></br>(i) an act by defendant amounting to extreme or outrageous conduct; <br></br>(ii) Intent or recklessness; <br></br>(iii) causation; and <br></br>(iv) damages ‘ severe emotional distress
6
Q
Bystander Liability for Intentional Infliction of Emotional Distress
A
When the defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie elements of emotional distress or that <br></br>(i) she was present when the injury occurred, <br></br>(ii) she is a close relative of the injured person, and <br></br>(iii) the defendant knew facts <br></br>(i) and <br></br>(ii).
7
Q
Trespass to Land
A
Elements of a prima facie case: <br></br>(i) physical invasion of plaintiff’s real property; <br></br>(ii) Intent; and <br></br>(iii) Causation Plaintiff can recover without showing actual injury to the land.
8
Q
Trespass to Chattels
A
Elements of a prima facie case: <br></br>(i) An act by defendant that interferes with plaintiff’s right of possession in a chattel; <br></br>(ii) Intent; <br></br>(iii) Causation; and <br></br>(iv) Damages. Actual damages- not necessarily to the chattel, but at least to a possessory right ‘ are required.
9
Q
Conversion
A
Elements of the prima facie case: <br></br>(i) An act by defendant that interferes with plaintiff’s right to possession in chattel; <br></br>(ii) The interference is so serious that it warrants requiring defendant to pay the chattel’s full value, <br></br>(iii) Intent, and <br></br>(iv) Causation. CF Trespass to Chattels -> Degree of harm
10
Q
Consent
A
Plaintiff’s consent to defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act.
11
Q
Express Consent
A
Defendant is not liable if plaintiff expressly consents to defendant’s conduct. Exceptions: <br></br>(i) mistake will undo express consent if defendant knew of and took advantage of the mistake; <br></br>(ii) consent induced by fraud will be invalidated if it goes to an essential matter; and <br></br>(iii) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.
12
Q
Implied Consent
A
Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff’s conduct. Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property.
13
Q
Self-defense
A
When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.
14
Q
Defense of Others
A
One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.
15
Q
Defense of Property
A
One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortuously dispossessed the owner of her chattels because the tort is viewed as still being committed.
16
Q
Common Law Defamation
A
The elements of common law defamation are: <br></br>(i) Defamatory language; <br></br>(ii) Of or concerning the plaintiff; <br></br>(iii) Publication thereof by defendant to a third person; and <br></br>(iv) Damage to plaintiff’s reputation. If the defamation involves a matter of public concern, the Constitution requires two additional elements: <br></br>(v) Falsity of the defamatory language; and <br></br>(vi) Fault on the part of the defendant. <br></br>(varies based on D).
17
Q
Libel
A
Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed. The minority position distinguishes between libel per se and libel per quod <br></br>(not defamatory on its face).
18
Q
Slander
A
Slander is spoken defamation. Plaintiff must prove special damages, unless defamation falls within the slander per se categories.
19
Q
Slander per se
A
Defamatory statements that: <br></br>(1) adversely reflect on one’s conduct in a business or profession; <br></br>(2) One has a loathsome disease [venereal or leprosy]; <br></br>(3) One is or was guilty of a crime involving moral turpitude; or <br></br>(4) A woman is unchaste.
20
Q
Fault on Defendant’s Part
A
<br></br>(1) Public official or figure must prove malice. [presumed damages] -Knowledge that the statement was false, or reckless disregard as to whether it was false. <br></br>(2) Private persons need not prove malice. Only negligence regarding the falsity must be proved if the statement involves a matter of public concern. [presumed damages]. Where the defendant is negligent, only actual injury damages are recoverable. However, where malice is found, damages may be presumed and punitive damages allowed.
21
Q
Defenses to Defamation
A
<br></br>(a) Consent <br></br>(b) Truth. Where a plaintiff does not need to prove falsity, defendant may prove truth as a complete defense. <br></br>(c) Absolute Privilege. Defendant may be protected for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, and between spouses. <br></br>(d) Qualified Privilege. Reports of official proceedings; statements in the interest of the publisher; and statements in the common interest of the publisher and recipient.
22
Q
Appropriation
A
It is necessary to show unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to defendant <br></br>(not in connection with promoting a product or service) by itself is not sufficient.
23
Q
Intrusion
A
The act of prying or intruding must be highly offensive to a reasonable person. Furthermore, the thing into which there is an intrusion must be private. Photographs taken in public places are not actionable.
24
Q
Publication of False Light
A
False light exists where one attributes to plaintiff views that he does not hold or actions he did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, there must be publicity.
25
Public Disclosure of Private Facts
This wrong involves public disclosure of private information about plaintiff. The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true.
26
Intentional Misrepresentation
Prima facie case:
(i) Misrepresentation of a material fact. Silence is generally not enough; one must make affirmative misrepresentations.
(ii) Scienter, when a D made the statement, she knew or believed it was false.
(iii) Intent to induce P to act or refrain from acting in reliance upon the misrepresentation.
(iv) Causation.
(v) Justifiable reliance, and
(vi) Damages.
(i) Misrepresentation of a material fact. Silence is generally not enough; one must make affirmative misrepresentations.
(ii) Scienter, when a D made the statement, she knew or believed it was false.
(iii) Intent to induce P to act or refrain from acting in reliance upon the misrepresentation.
(iv) Causation.
(v) Justifiable reliance, and
(vi) Damages.
27
Negligent Misrepresentation
Prima facie case:
(i) misrepresentation by defendant in a business or professional capacity;
(ii) breach of duty toward a particular plaintiff;
(iii) causation;
(iv) justifiable reliance; and
(v) damages.
(i) misrepresentation by defendant in a business or professional capacity;
(ii) breach of duty toward a particular plaintiff;
(iii) causation;
(iv) justifiable reliance; and
(v) damages.
28
Interference with Business Relations
Prima facie case:
(i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;
(ii) defendant's knowledge of the relationship or expectancy;
(iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy and
(iv) damages.
(i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;
(ii) defendant's knowledge of the relationship or expectancy;
(iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy and
(iv) damages.
29
Malicious Prosecution
Prima facie case:
(i) institution of criminal proceedings against plaintiff [although this has been extended to civil in some states];
(ii) termination in plaintiff's favor;
(iii) absence of probable cause for prior proceedings
(insufficient facts for a reasonable person to believe that plaintiff was guilty);
(iv) improper purpose; and
(v) damages.
(i) institution of criminal proceedings against plaintiff [although this has been extended to civil in some states];
(ii) termination in plaintiff's favor;
(iii) absence of probable cause for prior proceedings
(insufficient facts for a reasonable person to believe that plaintiff was guilty);
(iv) improper purpose; and
(v) damages.
30
Abuse of Process
Prima facie case:
(i) wrongful use of process for an ulterior purpose, and
(ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose.
(i) wrongful use of process for an ulterior purpose, and
(ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose.
31
Prima Facie Case of Negligence
(i) a duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
(ii) a breach of that duty by defendant;
(iii) the breach is the actual and proximate cause of plaintiff's injury; and
(iv) damage.
32
Foreseeable Plaintiffs
Cardozo View
(Majority) ' Foreseeable Zone of Danger -> a distant plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances. Andrews View
(Minority) ' Everyone is Foreseeable -> a distant plaintiff may establish the existence of a duty extending from defendant to her by showing that defendant breached a duty owed to a prior plaintiff.
(Majority) ' Foreseeable Zone of Danger -> a distant plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances. Andrews View
(Minority) ' Everyone is Foreseeable -> a distant plaintiff may establish the existence of a duty extending from defendant to her by showing that defendant breached a duty owed to a prior plaintiff.
33
Rescuers
A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril
(danger invites rescue). However, firefighters and police officers may be barred by the 'firefighter's rule' from recovering for injuries caused by the risks of a rescue.
(danger invites rescue). However, firefighters and police officers may be barred by the 'firefighter's rule' from recovering for injuries caused by the risks of a rescue.
34
Intended Beneficiaries of Economic Transactions
A third party for whose economic benefit a legal or business transaction was made may be a foreseeable plaintiff.
35
Basic Standard of Care
The reasonable person standard is an objective standard. A defendant's mental deficiencies and inexperience are not taken into account. However, the reasonable person is considered to have the same physical characteristics as defendant.
36
Professional Standard of Care
A professional is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Medical specialists will be held to a national standard of care.
37
Child Standard of Care
Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. A child under four is usually without the capacity to be negligent. Children engaged in adult activities may be required to conform to an adult standard of care.
38
Standard of Care for Common Carriers and Innkeepers
Common carriers and innkeepers are held to a very high degree of care. For the higher standard to apply, the plaintiff must be a passenger or guest.
39
Automobile Driver to Guest
A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.
40
Bailment Duties
(a) Duties owed by Bailee:
(i) for a sole benefit of the bailor bailment, there is a low standard of care;
(ii) for a sole benefit of the bailee bailment, there is a high standard of care; and
(iii) for a mutual benefit bailment, there is an ordinary care standard.
(b) Duties owed by Bailor: For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware.
41
Emergency Situations
A defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if its of defendant's own making.
42
Duty of Possessor to Those Off Premises
There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises. [In urban areas, the owner/occupier is liable for damage caused off the premises by tress on the premises
(e.g. falling branches). This has been an exam favorite in recent years].
(e.g. falling branches). This has been an exam favorite in recent years].
43
Duty Owed to Trespassers
No duty is owed to an undiscovered trespasser. As to discovered or anticipated trespassers, the landowner must:
(i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and
(ii) use reasonable care in the exercise of active operations on the property. Easement and license holders owe a duty of reasonable care to trespassers.
(i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and
(ii) use reasonable care in the exercise of active operations on the property. Easement and license holders owe a duty of reasonable care to trespassers.
44
Attractive Nuisance Doctrine
Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show:
(i) a dangerous condition on the land that the owner is or should be aware of,
(ii) the owner knows or should know children frequent the vicinity of the condition,
(iii) the condition is likely to cause injury, and
(iv) the expense of remedying the situation is slight compared with the magnitude of the risk. [For liability to attach, the four requirements must be shown. The child does not have to be attracted onto the land by a dangerous condition].
(i) a dangerous condition on the land that the owner is or should be aware of,
(ii) the owner knows or should know children frequent the vicinity of the condition,
(iii) the condition is likely to cause injury, and
(iv) the expense of remedying the situation is slight compared with the magnitude of the risk. [For liability to attach, the four requirements must be shown. The child does not have to be attracted onto the land by a dangerous condition].
45
Duty Owed to Licensees
A licensee is one who enters onto the land with the possessor's permission for her own purpose or business, rather than for possessor's benefit. The possessor has a duty to
(i) warn of dangerous conditions
(natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and
(ii) exercise reasonable care in the conduct of active operations on the property. The possessor has not duty to inspect or repair
(Remember: social guests are considered licensees.)
(i) warn of dangerous conditions
(natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and
(ii) exercise reasonable care in the conduct of active operations on the property. The possessor has not duty to inspect or repair
(Remember: social guests are considered licensees.)
46
Duty Owed to Invitees
Invitees enter onto the land in response to an invitation by the landowner
(i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public). The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation.
(i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public). The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation.
47
Duties Owed to Users of Recreational Land
A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
48
Duties of Lessor and Lessee of Realty
The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable. [If the guest of a tenant is injured, the landlord may be liable as lessor of the premises. But don't stop there ' remember that the tenant may also be liable to the guest because of the tenant's status as the owner/occupier of the premises.]
49
Duties of a Vendor of Realty
A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.
50
Statutory Standard of Care
A statute's specific duty may replace the more general common law duty of due care if:
(i) the statute provides for a criminal penalty,
(ii) the statute clearly defines the standard of conduct,
(iii) plaintiff is within the protected class, and
(iv) the statute was designed to prevent the type of harm suffered by plaintiff. Under the majority view, an unexcused statutory violation is negligence per se, a conclusive presumption of duty and breach of duty. However, violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond defendant's control.
(i) the statute provides for a criminal penalty,
(ii) the statute clearly defines the standard of conduct,
(iii) plaintiff is within the protected class, and
(iv) the statute was designed to prevent the type of harm suffered by plaintiff. Under the majority view, an unexcused statutory violation is negligence per se, a conclusive presumption of duty and breach of duty. However, violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond defendant's control.
51
Duty regarding Negligent Infliction of Emotional Distress
The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail:
(i) the plaintiff must be within the zone of danger, and
(ii) the plaintiff must suffer physical symptoms from the distress. Special situations:
(i) bystander not in the zone of danger seeing injury to another, and
(ii) special relationships between plaintiff and defendant.
(i) the plaintiff must be within the zone of danger, and
(ii) the plaintiff must suffer physical symptoms from the distress. Special situations:
(i) bystander not in the zone of danger seeing injury to another, and
(ii) special relationships between plaintiff and defendant.
52
Affirmative Duties to Act
(i) Assumption of Duty by Acting: One may assume a duty by acting
(e.g. once D undertakes to aid, he must do so with reasonable care).
(ii) Peril Due to Defendant's Conduct: One has a duty to assist someone he has negligently or innocently placed in peril.
(iii) Special Relationship Between Parties: A special relationship between parties may create a duty to act. E.g. parent-child, innkeeper, common carrier, shopkeeper.
(iv) Duty to Control Third Persons: An affirmative duty may be imposed if one has actual ability and authority to control a person's actions.
53
General Breach of Duty
Where a defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty.
54
Custom or Usage
Custom or usage may be used to establish standard of care, but does not control the question of whether certain conduct amounted to negligence.
55
Violation of Statute
Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that defendant violated an applicable statute
('negligence per se'). Causation and damages must still be established by plaintiff.
('negligence per se'). Causation and damages must still be established by plaintiff.
56
Res Ipsa Loquitur
The doctrine of res ipsa loquitur requires plaintiff to show that
(i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and
(ii) the negligence is attributable to defendant. Where res ipsa loquitur is established, a plaintiff has made a prima facie case and no directed verdict may be given for defendant.
(i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and
(ii) the negligence is attributable to defendant. Where res ipsa loquitur is established, a plaintiff has made a prima facie case and no directed verdict may be given for defendant.
57
Res Ipsa Loquitur and the Directed Verdict
(i) Deny defendant's motion for directed verdict if plaintiff has established res ipsa loquitur or presented some other evidence of breach of duty;
(ii) Grant defendant's motion if plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty. Occasionally, plaintiff may also move for directed verdict. Plaintiff's motion should always be denied except in the rare case where plaintiff has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.
58
Causation in Fact
(Actual Cause)
(Actual Cause)
Plaintiff must establish that defendant's conduct was the cause in fact of her injury. Several tests exist:
(i) 'But for' Test: Act or omission is the cause in fact of an injury when injury would not have occurred but for the act.
(ii) Substantial Factor Test: where several causes bring about injury, and any one alone would have been sufficient, defendant's conduct is the cause in fact if it was a substantial factor in causing the injury.
(iii) Alternative Causes Approach: Applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.
(i) 'But for' Test: Act or omission is the cause in fact of an injury when injury would not have occurred but for the act.
(ii) Substantial Factor Test: where several causes bring about injury, and any one alone would have been sufficient, defendant's conduct is the cause in fact if it was a substantial factor in causing the injury.
(iii) Alternative Causes Approach: Applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.
59
Legal Causation
(Proximate Cause)
(Proximate Cause)
The doctrine of proximate causation is a limitation on liability and deals with liability or nonliability for unforeseeable consequences of one's acts. As such, a defendant is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This is a foreseeability test.
60
Direct Cause Cases
In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff's injury, defendant is liable for all foreseeable harmful results, regardless of the unusual manner in which they arose or the unusual timing of cause and effect.
61
Indirect Cause Cases
(i) Defendant is liable for foreseeable results caused by foreseeable intervening forces;
(ii) Defendant is usually liable for foreseeable results caused by unforeseeable intervening forces [unless intervening force is crime or intentional tort];
(iii) Defendant is not liable for unforeseeable results caused by foreseeable intervening forces;
(iv) Defendant is not liable for unforeseeable results caused by unforeseeable intervening forces
62
Foreseeable Dependent Intervening Forces
(i) subsequent medical malpractice;
(ii) negligence of rescuers;
(iii) efforts to protect the person or property of oneself or another;
(iv) injuries caused by another reacting to defendant's actions;
(v) subsequent diseases caused by a weakened condition; and
(vi) subsequent accident substantially caused by the original injury
63
Foreseeable Independent Intervening Forces
The following are foreseeable if defendant's negligence increased the risk of harm from these forces:
(i) negligent acts of third persons;
(ii) crimes and intentional torts of third persons, and
(iii) acts of God.
(i) negligent acts of third persons;
(ii) crimes and intentional torts of third persons, and
(iii) acts of God.
64
Unforeseeable Extent or Severity of Harm
In all cases, defendant takes his plaintiff as he finds him; i.e., the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is known as the 'eggshell-skull plaintiff' rule.
65
Personal Injury
Plaintiff is to be compensated for all his damages, both economic damages and noneconomic damages. A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.
66
Property Damage
The measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, its fair market value at the time of the accident.
67
Punitive Damages
Plaintiff may recover punitive damages if defendant's conduct is 'wanton and willful,' reckless, or malicious.
68
Nonrecoverable Items
Nonrecoverable items include:
(i) interest from the date of damage in a personal injury action, and
(ii) attorneys' fees.
(i) interest from the date of damage in a personal injury action, and
(ii) attorneys' fees.
69
Duty to Mitigate
As in all cases, plaintiff has a duty to take reasonable steps to mitigate damages.
70
Collateral Source Rule
Damages are not reduced just because plaintiff received benefits from other sources
(e.g. health insurance).
(e.g. health insurance).
71
Contributory Negligence
Contributory negligence is negligence on the party of the plaintiff that contributes to her injuries. May be used as a defense to negligence proved by a violation of a statute, but not as a defense to intentional torts. Further, as a general rule, contributory negligence of a third party will be imputed to a plaintiff only when the relationship between the third party and plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence. The application of contributory negligence is subject to an exception for the 'last clear chance'. Bars ''s recovery.
72
Last Clear Chance ' An Exception to Contributory Negligence
Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
(i) Helpless Peril ' In many states, where the plaintiff is in helpless peril, defendant will be liable if he knew or should have known of plaintiff's predicament.
(ii) Inattentive Peril ' In inattentive peril situations, defendant must actually have known of plaintiff's predicament.
(iii) Prior Negligence Cases ' Defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If Defendant's only negligence occurred earlier, the doctrine will not apply.
(i) Helpless Peril ' In many states, where the plaintiff is in helpless peril, defendant will be liable if he knew or should have known of plaintiff's predicament.
(ii) Inattentive Peril ' In inattentive peril situations, defendant must actually have known of plaintiff's predicament.
(iii) Prior Negligence Cases ' Defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If Defendant's only negligence occurred earlier, the doctrine will not apply.
73
Assumption of Risk
Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have
(i) known of the risk and
(ii) voluntarily proceeded in the face of the risk. May be expressly or impliedly assumed. Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful miscounduct.
(i) known of the risk and
(ii) voluntarily proceeded in the face of the risk. May be expressly or impliedly assumed. Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful miscounduct.
74
Implied Assumption of Risk
Knowledge may be implied where the risk is one that an average person would clearly appreciate. Plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency.
75
Comparative Negligence
In comparative negligence states, the trier of fact weighs plaintiff's negligence and reduces damages accordingly. A majority of states have adopted partial comparative negligence, which still bars plaintiff's recovery if his negligence was more serious than defendant's negligence. State that have adopted pure comparative negligence allow recover no matter how great plaintiff's negligence was.
76
Prima Facie Case of Strict Liability
For strict liability, the following elements must be shown:
(i) the nature of the defendant's activity imposed an absolute duty to make safe;
(ii) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff's injury; and
(iii) the plaintiff suffered damage to person or property.
(i) the nature of the defendant's activity imposed an absolute duty to make safe;
(ii) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff's injury; and
(iii) the plaintiff suffered damage to person or property.
77
Trespassing Animals
An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
78
Personal Injuries from Wild Animals
An owner is strictly liable to licensees and invitees for injuries caused by wild animals
(even those kept as pets).
(even those kept as pets).
79
Personal Injuries from Domestic Animals
An owner is not strictly liable for injuries caused by domestic animals unless he has knowledge of that particular animal's dangerous propensities that are not common to the species.
80
Personal Injuries of Trespassers from Animals
Strict liability will generally not be imposed in favor of trespassers in the absence of the owner's negligence. However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watch dogs.
81
Abnormally Dangerous Activities
Courts generally impose two requirements for finding an activity to be abnormally dangerous:
(i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
(ii) the activity is not a matter of common usage in the community.
(i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
(ii) the activity is not a matter of common usage in the community.
82
Scope of Duty Owed
The duty owed is the absolute duty to make safe the normally dangerous characteristic of the animal or activity. It is owed to all foreseeable plaintiffs.
83
Defenses to Strict Liability
In contributory negligence states, contributory negligence is no defense if plaintiff has failed to realize the danger or guard against it. It is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or unreasonably dangerous activity. Assumption of the risk is a good defense to strict liability. Most comparative negligence states apply their comparative negligence rules to strict liability cases.
84
Theories of Liability
There are five theories of liability that a plaintiff may use:
(i) intent;
(ii) negligence;
(iii) strict liability [easiest to prove];
(iv) implied warranties of merchantability and fitness for a particular purpose, and
(v) representation theories
(express warranty and misrepresentation).
(i) intent;
(ii) negligence;
(iii) strict liability [easiest to prove];
(iv) implied warranties of merchantability and fitness for a particular purpose, and
(v) representation theories
(express warranty and misrepresentation).
85
Manufacturing Defects
If a product emerges from manufacturing different and more dangerous than the products that were made properly, it has a manufacturing defect. For a manufacturing defect, defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect.
86
Design Defects
When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. For a design defect, plaintiff usually must show that the defendant could have made the product safer without serious impact on the product's price or utility.
87
Inadequate Warnings
A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to learned intermediaries will usually suffice in lieu of warnings to the patient.
88
Government Safety Standards
A product's noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence ' but not conclusive ' that the product is not defective.
89
Scientifically Unknowable Risks
Defendant will not be held liable for dangers not foreseeable at the time of marketing.
90
Unavoidably Unsafe Products
Manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product.
91
Inference of Existence of Defect
The existence of the defect when the product left defendant's control will be inferred if the product moved through normal channels of distribution.
92
Liability Based on Intent
Defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur. If intent is present, the most likely tort is battery. Privity is not required, so any injured plaintiff can sue. In addition to compensatory damages, punitive damages are available. The defenses available are those in other intentional tort cases.
93
Liability Based on Negligence
Plaintiff must show
(i) duty,
(ii) breach,
(iii) actual and proximate cause, and
(iv) damages. A duty of care is owed to any foreseeable plaintiff. Privity is no longer required, so any foreseeable plaintiff can sue. Commercial suppliers such as manufacturers, wholesalers, and retailers can be held liable. Breach of duty is shown by
(i) negligent conduct of defendant leading to
(ii) the supplying of a defective product. An intermediary's negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence.
(i) duty,
(ii) breach,
(iii) actual and proximate cause, and
(iv) damages. A duty of care is owed to any foreseeable plaintiff. Privity is no longer required, so any foreseeable plaintiff can sue. Commercial suppliers such as manufacturers, wholesalers, and retailers can be held liable. Breach of duty is shown by
(i) negligent conduct of defendant leading to
(ii) the supplying of a defective product. An intermediary's negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence.
94
Liability Based on Strict Tort Liability
A plaintiff must show
(i) a strict duty owed by a commercial supplier of a product;
(ii) production or sale of a defective product,
(iii) actual and proximate cause; and
(iv) damages. Privity not required. Any commercial supplier can be held liable. Plaintiff must show the product is defective in a manner that makes the product dangerous beyond the expectation of an ordinary consumer.
(i) a strict duty owed by a commercial supplier of a product;
(ii) production or sale of a defective product,
(iii) actual and proximate cause; and
(iv) damages. Privity not required. Any commercial supplier can be held liable. Plaintiff must show the product is defective in a manner that makes the product dangerous beyond the expectation of an ordinary consumer.
95
Liability Based on Implied Warranties of Merchantability and Fitness
(i) Merchantability refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used; and
(ii) Fitness for a particular purpose, which arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods. Generally buyer, family, household, and guests can sue for personal injuries. Personal injury and property damages, and purely economic loss, are recoverable.
96
Liability Based on Representation Theories
(i) Express Warranty, any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. Any consumer, user, or bystander can sue.
(ii) Misrepresentation of Fact, a seller will be liable for misrepresentations of fact where:
(1) the statement was of a material fact concerning quality or uses of goods, and
(2) the seller intended to induce reliance by the buyer in a particular transaction. Justifiable reliance is required.
97
Private Nuisance
Private nuisance is a substantial, unreasonable interference with another private individuals use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.
98
Substantial Interference
Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community.
99
Unreasonable Interference
To establish unreasonable interference, the severity of the inflicted injury must outweigh the utility of defendant's conduct.
100
Public Nuisance
Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.
101
Pre-existing Nuisance
It is generally not a bar to plaintiff's action that the nuisance pre-existed plaintiff's right unless plaintiff came to the nuisance for the sole purpose of bringing a harassing lawsuit.
102
Vicarious Liability
Vicarious liability is liability that is derivatively imposed. The basic situations of vicarious liability are:
(1) Respondeat Superior
(2) Independent Contractor Situations
(3) Partners and Joint Venturers
(4) Automobile Owners for Driver
(5) Bailor for Bailee
(6) Parent for Child
(7) Tavernkeepers
(1) Respondeat Superior
(2) Independent Contractor Situations
(3) Partners and Joint Venturers
(4) Automobile Owners for Driver
(5) Bailor for Bailee
(6) Parent for Child
(7) Tavernkeepers
103
Respondeat Superior
A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship. Intentional torts are usually held outside the scope of employment unless:
(1) force is authorized in employment,
(2) friction is generated by the employment, or
(3) the employee is furthering the business of the employer. Employers may be liable for their own negligence by negligently selecting or supervising their employees
(not vicarious liability).
(1) force is authorized in employment,
(2) friction is generated by the employment, or
(3) the employee is furthering the business of the employer. Employers may be liable for their own negligence by negligently selecting or supervising their employees
(not vicarious liability).
104
Independent Contractor Situations
In general, a principal will not be vicariously liable for tortious acts of her agent if the agent is an independent contract. Two broad exceptions exist:
(i) the independent contractor is engaged in inherently dangerous activities, and
(ii) the duty, because of public policy considerations, is simply nondelegable. The employer may be liviable for her own negligence in selecting or supervising the independent contractor
(not vicarious liability).
(i) the independent contractor is engaged in inherently dangerous activities, and
(ii) the duty, because of public policy considerations, is simply nondelegable. The employer may be liviable for her own negligence in selecting or supervising the independent contractor
(not vicarious liability).
105
Partners and Joint Venturers
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.
106
Automobile Owner for Driver
The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving his automobile. In some jurisdictions, courts employ theories other than vicarious liability to hold an automobile owner liable.
107
Family Car Doctrine
In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission.
108
Permissive Use Doctrine
A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner's consent.
109
Negligent Entrustment
An owner may be liable for her own negligence in entrusting the car to a driver.
110
Bailor for Bailee
Under the general rule, the bailor is not vicariously liable for the tortious conduct of his bailee. However, the bailor may be liable for her own negligence in entrusting the bailed object
(negligent entrustment).
(negligent entrustment).
111
Parent for Child
A parent is not vicariously liable for the tortious conduct of the child at common law. Courts may impose vicarious liability, however, if the child committed a tort while acting as the agent for the parents. Also, the parents may be held liable for their own negligence in allowing the child to do something.
112
Tavernkeepers
Common Law: No liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee's intoxication, whether the injuries were sustained by the vendee or by a third person as a result of vendee's conduct. Modern Law: Many states have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated vendee.
113
Contribution
The rule of contribution allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for the excess.
114
Indemnity
Indemnity involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances:
(i) by contract,
(ii) in vicarious liability situations,
(iii) under strict products liability, and
(iv) in some jurisdictions, where there has been an identifiable difference in degree of fault.
(i) by contract,
(ii) in vicarious liability situations,
(iii) under strict products liability, and
(iv) in some jurisdictions, where there has been an identifiable difference in degree of fault.
115
Comparative Contribution
Most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to the relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.
116
Survival of Tort Actions
Survival acts allow one's cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interests
(e.g. defamation, invasion of right of privacy, malicious prosecution) expire upon the victim's death.
(e.g. defamation, invasion of right of privacy, malicious prosecution) expire upon the victim's death.
117
Wrongful Death Actions
Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin. A decedent's creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had he lived. Hence, the decedent's contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiary's contributory negligence reduces her share of the recovery in comparative negligence states.
118
Tortious Interference with Family Relationships
Husband-Wife: Either spouse may bring an action for indirect interference with consortium and services caused by defendant's intentional or negligent tortious conduct against the other spouse. Parent-Child: A parent may maintain an action for loss of a child's services as a result of defendant's tortious conduct, whether intentional or negligent. A child, however, has no action in most states. Actions such interference are derivative. Hence, any defense that would reduce or bar recovery by the injured family member operates in the same capacity in a tortious interference with family relationship action.
119
Intra-Family Tort Immunities
Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have abolished husband-wife immunity. A slight majority have also abolished parent-child immunity. Those that retain parent-child immunity do not apply it in
(i) cases alleging intentional tortious conduct, or
(ii) automobile accident cases to the extent of insurance coverage.
(i) cases alleging intentional tortious conduct, or
(ii) automobile accident cases to the extent of insurance coverage.
120
Federal Government Tort Immunity
Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts. However, immunity will still attach for
(i) assault,
(ii) battery,
(iii) false imprisonment,
(iv) false arrest,
(v) malicious prosecution,
(vi) abuse of process,
(vii) libel and slander,
(viii) misrepresentation and deceit, and
(ix) interference with contract rights. Immunity is not waived for acts that are characterized as discretionary as distinguished from those acts terms ministerial.
(i) assault,
(ii) battery,
(iii) false imprisonment,
(iv) false arrest,
(v) malicious prosecution,
(vi) abuse of process,
(vii) libel and slander,
(viii) misrepresentation and deceit, and
(ix) interference with contract rights. Immunity is not waived for acts that are characterized as discretionary as distinguished from those acts terms ministerial.
121
State and Local Gov't Tort Immunity
Most states have substantially waived their immunity. Where municipal immunity has been abolished, the public duty rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen. Where municipal immunity still exists, contrast governmental functions
(functions that could only be performed adequately by the government) and proprietary functions
(functions that might as well have been provided by a private corporation). Courts limit application of sovereign immunity by not granting it for proprietary functions.
(functions that could only be performed adequately by the government) and proprietary functions
(functions that might as well have been provided by a private corporation). Courts limit application of sovereign immunity by not granting it for proprietary functions.
122
Immunity of Public Officials
Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.
