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Flashcards in Torts Deck (107)

What are the intentional torts (7)?

  1. Battery
  2. Assault
  3. False imprisonment
  4. Intentional infliction of emotional distress (IIED)
  5. Trespass to land
  6. Trespass to chattels
  7. Conversion


For intentional torts, what is the rule regarding extreme or hypersensitive plaintiffs?

Ignore the hypersensitivity in making a judgment as to whether P has a valid claim

Always assume you are dealing with a normal person


For intentional torts, what are the incapacity defenses?

There are none

Hold everyone liable just the same


What is a common element to all intentional torts?

How do you determine if it is present?

D must act intentionally, which will be the case if D either:

  • Desires to produce a legally forbidden consequence
  • Knows to a certainty that a legally forbidden consequence will result


What are the elements of battery?

  1. Harmful or offensive contact
  2. With P's person


For purposes of battery, when is contact offensive?

If unpermitted by a person of ordinary sensitivity


For purposes of battery, when is contact with P's person?

When the contact is either with:

  • P directly
  • Anything P is holding
  • Anything P is touching
  • Anything that P will touch later on


What are the elements of assault?

  1. D places P in reasonable apprehension
  2. Of an immediate battery


For purposes of assault, what is reasonable apprehension?

Apprehension means both fear and knowledge

In order for P to experience reasonable apprehension, he must know (or reasonably think) that the immediate battery is coming


For purposes of assault, what is meant by immediate battery?

Words alone lack immediacy, there must be conduct

Until D makes an actual move, D is just running his mouth


For purposes of assault, when can words affect the immediate battery requirement?

Words can negate immediacy if they are:

  • Conditional
  • Future tense

Give the words their natural meaning



What are the elements of false imprisonment?

  1. D must commit an act of restraint
  2. P must be confined in a bounded area


For purposes of false imprisonment, what is an act of restraint?

  • Physical restraint
  • Plausible threat
    • E.g., store security guard threatening to call the cops if you leave
  • Omission (if pre-existing duty)
    • E.g., leaving a handicapped person behind after placing her somewhere


For purposes of false imprisonment, what is required with regard to knowledge of the act of restraint?

P must be aware of the restraint

E.g., if D locks P in his bedroom while P is asleep, not actionable


For purposes of false imprisonment, what is a bounded area?

  • An area is only bounded if freedom of movement is limited in all directions

  • If there is a reasonable means of escape from the area, the area is not bounded, BUT:

    • P must be aware of means of scape

    • Escape not reasonable if:

      • Disgusting

      • Dangerous

      • Humiliating

      • Hidden


What are the elements of intentional infliction of emotional distress (IIED)?

  1. P must engage in outrageous conduct
  2. P must suffer severe emotional distress



For purposes of IIED, what is outrageous conduct?

"Exceeds all bounds of decency tolerated in a civilzed society"

  • If D has prior knowledge of P's emotional weakness and exploits that weakenss - outrageous
  • Mere insults are not sufficient
  • Plus factors that make bad cases worse:
    • Continuous/repetitive conduct
    • D is common carrier or innkeeper
    • P is member of fragile case
      • Kids
      • Elders
      • Pregnant women



For purposes of IIED, what is severe emotional distress?

It will be clear

Being mildly annoyed will negate this


What are the elements of trespass to land?

  1. Act of physical invasion
  2. That interferes with P's exclusive possession


For purposes of trespass to land, what is a physical invasion?

D does not need to know he's crossing a boundary; he just needs to get there intentionally (e.g., not sleepwalking)

  • Walking or driving on land
  • Throwing something on property (even if benign)


For purposes of trespass to land, what is not a physical invasion?

Intangible invasions (e.g., loud music, shining lights, wafting odors)


For purposes of trespass to land, what is interference with exclusive possession?

  • Tort belongs to the posessor, not the owner
  • Right to possess includes air above and soil below to a reasonable distance


What are the elements of both:

Trespass to chattels


D either:

  • Takes away P's personal property
  • Damages P's personal property


For purposes of trespass to chattels and conversion, what does personal property include?

  • Normal personal items
  • Cash
  • Computer files


What is the difference between trespass to chattels and conversion?

The difference is in the degree of interference


What are the remedies for trespass to chattels and conversion, respectively?


  • Full FMV of item (operates as forced sale)
    • You break it you buy it


  • Cost of repair


What are the affirmative defenses to intentional torts?

  1. Consent
  2. Protective privileges
    • Self-defense
    • Defense of property
    • Defense of others
  3. Necessity
    • Public necessity
    • Private necessity


What is required for the defense of consent?

P must have had legal capacity to give consent

Children can give consent to age-appropriate acts (i.e., as they get older, this list of acts increases)


What are the different types of consent?

  1. Express
  2. Implied


What is express consent?

What is the exception to this defense?

Consent based on words in quotes


  • Fraud or duress negates consent


What is implied consent?

  • Custom and usage
    • If P went somewhere and did something where invasions are customary - implied consent
      • E.g., shoving on metro
      • E.g., tacking in sports
      • E.g., false imprisonment for penalty box
  • D's reasonable interpretation of P's objective conduct based on the surrounding circumstances
    • Body language consent
      • E.g., a kiss after a date
      • E.g., shaking hands at a networking event


What is the effect of the scope of consent?

If D exceeds the scope, the defense is lost

E.g., stomping on a football player's head


What is required for the protective privileges?

  • D responds to a threat emanating from P:
    • At a proper time
    • Based on reasonable belief that threat is genuine
    • With force necessary under the circumstances


For purposes of the protective privileges, what is required for D to act at a proper time?

Threat must be either:

  • In progress

  • Imminent

No preemptive action

No revenge


For purposes of the protective privileges, when is force necessary under the circumstances?

In a life threatening situation or reasonable belief thereof:

  • Deadly force is appropriate, unless:
    • Defense of property (deadly force never okay)


When can the defense of necessity be used?

Only against property torts (e.g., trespass to land, trespass to chattel, conversion)


What is the public necessity defense?

What distinguishes it from private necessity?

  • D commits property tort in emergency to protect either:
    • The community
    • Significant group of people

An emergency is usually both:

  • A big deal (e.g., natural disaster)
  • Rolling (e.g., culminating in a big event)



What is the private necessity defense?

What distinguishes it from public necessity?

D commits a property tort in an emergency to:

  • Protect an interest of his own


  • D remains liable for actual harm (i.e., compensatory damages)
  • D is not liable for nominal or punitive damages
  • P cannot throw D off his property while the danger still exists (if he does, P is liable for the harm caused)


What are the elements of defamation?

  1. D made a defamatory statement specifically identifying P
  2. published the statement


What are the different types of defamation cases?

  1. Libel cases
    • D's statement was written down or reduced to some other permanent form
  2. Slander cases
    • D's statement was spoken


For purposes of defamation, what does it mean for a statement to be defamatory?

The statement:

  • Tends to adversely affect P's reputation
    • Takes the form of purported or alleged fact
    • That reflects negatively on P's traits or character



For purposes of defamation, what does not count as a defamatory statement?

  • Mere name-calling
  • Mere statements of opinion


For purposes of defamation, what is required for D to have identified P in his statement?

  • Specifically name P
  • Describe P based on:
    • Address
    • Occupation
  • P must be living at the time of the statement


For purposes of defamation, what does it mean for D to publish the statement?

D must share it or reveal it to at least one person other than P

The more people, the more damages, but only one is needed

Publication need not be intentional, it can be negligent (but D must know it is being published - wiretapping not enough)


What is the rule on damages in libel defamation cases?

Damages are presumed


What is the rule on damages in slander defamation cases?

Damages are presumed if either:

  • Statement relating to P's business or profession
  • Statement that claims P committed serious crime
    • Crime involving violence or dishonesty
  • Statement imputing unchastity
  • Statement that P suffers from a loathesome disease
    • Leperacy or venereal disease

Otherwise, P must prove:

  • Economic harm
    • E.g., P got fired because of statement
    • E.g., P's revenues went down because of statement
    • Not social harm
    • Not emotional harm


What are the affirmative defenses to defamation?

  1. Consent
    • Express
    • Implied
  2. Truth
    • D has burden to establish by preponderance
  3. Privileges
    • Absolute
      • Spouses communicating with eachother
      • Officials of government branches communicating in their course of duties
        • In judicial branch, extends to:
          • Judges
          • Witnesses
          • Lawyers
    • Qualified
      • Applies anytime there is a public interest in encouraging candor
        • E.g., letters of recommendation
      • Two conditions:
        1. Statement must be in good faith, based on a reasonable belief in its truth
        2. Statement must be a relevant matter


What is the so-called special defamation case?

When the allegedly defamatory statement relates to a matter of public concern, D must prove:

Two additional elements:

  1. Statement is false (no longer presumed)
  2. D either:
    1. Knew it was false
    2. Or
      • If public figure:
        • Acted recklessly as to its falsehood in publishing
      • If private figure:
        • Acted neligently as to its falsehood in publishing


What are the privacy torts?

  1. Appropriation
  2. Intrusion
  3. False light
  4. Disclosure


What is appropriation?

  • D uses P's name or image
  • For a commercial purpose


What is the exception to appropriation?

If D's use of P's name or image is newsworthy, not a tort


What are the remedies for appropriation?

  • Damages
  • Injunction


What is intrusion?

Invasion of P's seclusion in a way that is highly offensive to an average person

Must be in a place where P has an expectation of privacy

E.g., wiretapping, peeping tom


What is false light?

Widespread dissemination of a material falsehood that would be highly offensive to an average person

E.g., inadvertent juxtaposition - putting two things together that suggest something false


How does false light overlap with defamation?

What is the distinction?

Defamation does not require widespread dissemination


  • False light
    • Emotional damages
    • Social damages
  • Defamation
    • Economic damages


What is disclosure?

Widespread dissemination of confidential information that would be highly offensive to an average person

(Tort of gossip)


What is the exception to disclosure?

If D's use of P's confidential information is newsworthy, not a tort


What are the defenses to privacy torts?

All privacy torts

  • Consent
    • Express
    • Implied


  • Defamation privileges
    • Absolute
    • Qualified


What are the elements of negligence?

  1. Duty of care
  2. Breach
  3. Causation
    • Actual
    • Proximate
  4. Damage


For negligence, who is the duty of care owed to?

Only foreseeable victims

  • People near you, depending on type of activity (e.g., if juggling nuclear weapons, large scope)


  • Rescuers
    • Even if they are not near, they are presumed foreseeable


For negligence, what is the amount of duty owed?

Hypothetical reasonably prudent person acting under similar circumstances



For negligence, do you take D's shortcoming into account?

Generally, no


  • Take into account:
    • Superior skill
      • Something that involves training
        • E.g., NASCAR driver, reasonably prudent NASCAR driver
    • Superior knowledge
      • Something that you specifically know
        • E.g., knowing which intersections are dangerous, reasonably prudent person who knows that
    • Physical characteristics if relevant
      • E.g., D is blind, reasonably prudent blind person


What are the special standards of care for negligence claims (6)?

  1. Care owed by children
  2. Care owed by professionals
  3. Care owed by possessors of land
  4. Statutory standard of care
  5. Duty to rescue
  6. Negligent infliction of emotional distress (NIED)


What is the care owed by a child?

Less than 5 years old

  • Absolutely no duty of care (cannot be negligent)

Older than 5 years old

  • Owes the duty of care of someone of similar:
    • Age
    • Intelligence
    • Experience
  • Acting under similar circumstances
  • Exception:
    • Normal standard of care (i.e., personably prudent person) applies if child engages in adult activities
      • E.g., anything with an engine


What is the care owed by professionals?

The duty of care of:

  • An average member of the profession (in good standing)
    • Be a conformist
    • Follow custom




What are the categories of people that possessors of land may owe a duty to?

  1. Unknown trespassers
  2. Known (or anticipated) trespassers
  3. Licensees
  4. Invitees (customers)


What is the care owed by possessors of land to unknown trespassers?

What are unkown trespassers?



  • Absolutely no duty

Unknown trespassers

  • No express or implied permission to enter
  • Possessor never knew they would enter


What is the care owed by possessor of land to known (or anticipated) trespassers?

What are known (or anticipated) trespassers?


  • Must protect from:
    • Known
    • Mandmade
    • Death traps

Known (or anticipated) trespassers

  • No express or implied permission
  • D either:
    • Knew P was there
    • Anticipated P's entrance
      • Based on prior activity


What is the care owed by possessors of land to licensees?

What are licensees?


  • Must protect from:
    • Known
    • Traps


  • Express or implied permission
  • Does not provide economic benefit to land possessor
  • Categories
    • Social guests
    • Recreational users
    • Solicitors


What is the care owed by possessors of land to invitees?

What are invitees?


  • Must protect from:
    • Reasonably knowable
    • Traps


  • Express or implied permission
  • Entrance either:
    • Open to public
    • For those who provide economic benefit


What is the care owed by possessors of land to firefighters and cops?

No duty

They will never recover for injuries that are inherent risks of their jobs


What is the care owed by possessors of land to trespassing children?

Posessors must exercise reasonable care to protect children from artificial conditions

If possessors should expect kids to come, they should childproof the premises

When to expect kids

  • Premises near playground
  • Premises near school
  • Premises has attractive nuisance



In a premises liability case, how can D always fulfill his duty?

  • Fixing the hazard
  • Providing a warning
    • Sign
    • Yellow tape
    • Orally warning guests


What is the statutory standard of care?

P can borrow a criminal statute and use that as a standard of care if:

  • Class of person
    • P is a member of the class the statute tries to protect
  • Class of risk
    • The accident is in the class of risks the statue protects



What are the exceptions to the statutory standard of care?

  1. Statutory compliance more dangerous than violation
  2. Statutory compliance impossible under circumstances

In these situations, just use reasonably prudent person standard


What is the duty to rescue?

No matter how despicable D's conduct, no duty to rescue


  • In these situations, duty to act reasonably under circumstances
    1. Pre-existing relationship
      • E.g., innkeeper-guest
      • business-invitee/customer
    2. D caused the peril
      • But never duty to put own life in peril
    3. Gratuitous rescuers
      • If you undertake rescue and screw it up, you are liable


What are the different types of NIED cases?

  1. Near-miss
  2. Bystander
  3. Relationship


What is a near-miss NIED case?

Negligent D doesn't harm P but it was a close call

  • Elements:
    1. D was negligent (based on breach of some duty)
    2. D's negligence put P in zone of physical danger
    3. P suffered subsequent physical manifestations from the distress



What is a bystander NIED case?

Negligent D seriously injures or kills X (a third party) and P is distressed about it

  • Elements:
    1. D was negligent (based on breach of some duty)
    2. P and X are close family members (spouse, parent, child)
    3. P saw X get hurt in real time (i.e., contemporaneous observation)


What is a relationship NIED case?

Negligent D is in a business relationship with P in which it was highly foreseeable that carelessness would cause significant distress

  • E.g., false positive medical results
  • E.g., mistaken cremation


How does P establish breach in a negligence claim?

By establishing specific conduct that falls short of D's duty of care, including:

  • Facts
  • Reason (never too obvious)


In establishing a breach of duty in a negligence claim, what sort of conduct can be raised?

  • Act
  • Omission
  • Res ipsa loquitur


How does P establish res ipsa loquitur in a negligence claim?

What is the result if it is established?

  1. Accident is a type normally associated with negligence
    • Sometimes requires expert testimony
  2. Accident would normally be due to the negligence of someone in D's position
    • If D had control over the object, sufficient

If established, CASE GOES TO THE JURY


In a negligence claim, what are the different types of causation that P must establish?

  1. Factual causation
    • But for the breach, P would not be injured today
  2. Proximate causation
    • Imposing liabilyt on D is fair


What are the two special situations with respect to factual causation/

  1. Merged cause cases
    • E.g., two separate negligently caused fires combine to cause damage to P
    • Substantial factor test:
      • Could either breach have caused all the harm itself?
        • If so, that D is liable (could be joint liability)
  2. Unascertainable cause cases
    • E.g., one pellet hits P's eye after two separate gunshots 
    • Burden shifts to D:
      • D must establish that he is not the cause
      • Otherwise:
        • Joint liability


What is the test for proximate causation?


  • P's injury must have been foreseeable at the time of the accident


What are the common scenarios in which proximate causation is established (i.e., foreseeability presumed)?

Foreseeability presumed if:

  1. Intervening medical negligence
    • Always foreseeable that doctor may be careless
  2. Intervening medical rescue
    • ​​Always foreseeable that rescuer may be careless
  3. Intervening protection and reaction forces
    • Always foreseeable that people will react carelessly
  4. Subsequent disease or accident
    • Always foreseeable that P's injuries may worsen


What is important with regard to the damage element of negligence?

Eggshell skull doctrine - i.e., take your victim as you find him

This applies to every tort on the bar exam


What are the affirmative defenses to negligence?

  1. Implied assumption of the risk
  2. Contributory negligence/comparative negligence


In Virginia, what is the affirmative defense to negligence?

What about the majority?

Virginia - contributory negligence

  • Absolute defense

Majority - comparative negligence

  • Limited defense
    • P's recovery reduced by percentage of fault
    • Unless otherwise noted, it does not matter if P was more responsible


What are the different categories for strict liability?

  1.  Liability for animals
  2. Liability for abnormally dangerous activities
  3. Liability for defective products


When is D strictly liable for animals?

Note: trespassers generally cannot take advantage of strict liability


Domesticated animals (e.g., house pets and livestock)

  • No strict liability
  • Exception:
    • One-bite rule
      • If you have knowledge of animal's vicious propensities, then strict liability
        • E.g., behavior not common to species

Wild animals (e.g., circus animals)

  • Strict liability


When is D strictly liable for abnormally dangerous activities?

What are common examples?

Whenever, based on the activity:

  1. There is a foreseeable risk of serious harm even if reasonable care is used (i.e., activity can't be made safe)
  2. The activity is uncommon where conducted (i.e., out of context)


  • Dynamite or high-powered explosives
  • Toxic chemicals or biohazards
  • High levels of radiation


When is D strictly liable for defective products?

P must show:

  1. D is a merchant
  2. Product is defective
  3. Product has not been altered since leaving D's control
  4. P made a foreseeable use of the product when hurt


For purposes of strict products liability, who is a merchant?

Who is not?


  • Commercial lessor (e.g., rent-a-car)
  • Everyone in distribution chain, including:
    • Retailer
    • Wholesaler
    • Manufacturer

Not merchant

  • Casual seller
  • Service provider


For purposes of strict products liability, when is a product defective?

  1. Manufacturing defect
    • One in a million product
      • Differs so much from all others that came of the assembly line that it is more dangerous than the consumer would expect
  2. Design defect
    • Superior alternative design
      • Product could have been build in another way that would have been:
        1. Safer
        2. Economical
        3. Practical
  3. Information defect
    • Three conditions are satisfied:
      1. Product has residual risks that cannot be designed away economically
      2. Consumers would not be aware of the risks
      3. Product lacks effective warnings of the risks


For purposes of strict products liability, what is important regarding the non-alteration requirement?

Presumption of non-alteration if product moved in normal channels


For purposes of strict products liability, what is important regarding the foreseeable use requirement?

Foreseeable is not necessarily appropriate or intended

E.g., use of screwdriver to open can of paint foreseeable


What is the affirmative defense to strict liability claims?

Comparative responsibility

Similar to comparative negligence in procedure


How does P prove a nuisance claim?

D disturbed P's ability to use and enjoy (not right to possess - that is trespass) real estate to an unreasonable degree

Court balances P's interests against D's


What are the different relationships that raise vicarious liability problems for torts? Explain.

  1. Employer-employee
    • Must be within scope of employment
    • Intentionnal torts outside scope unless:
      • Authorization to use force
      • Job creates friction
      • Tort was to serve employer
  2. Independent contractors
    • No vicarious liability unless:
      • Contractor hurts invitee/customer at place of business
  3. Owner-driver
    • No vicarious liability unless:
      • Owner asks driver to run errand
  4. Parent-child
    • No vicarious liability ever


When co-defendants are sued in a tort action, what rights do they have against one another?


  • If D1 is liable, he has a right of contribution against D2, just like comparative negligence
  • Jury will assign fault to each D, but P can collect from either D
  • It is up to the D's to seek contribution


  • If D1 is liable he can get fully reimbursed by D2 if:
    • D2 was active fortfeasor and D1 is vicariously liable
    • D2 was the manufacturer and D1 is retailer in products liability case


What is loss of consortium?

What does it allow recovery of?


  • If victim of tort is married, uninjured spouse has derivative action against anyone the victim would have an action against
  • D's defenses work against uninjured spouse


  • Loss of services
  • Loss of society (e.g., companionship)
  • Loss of sex


What duty of care does a bailor owe a bailee when the bailment was for:

  • The sole benefit of the bailee (gratuitous loan of property)
  • A fee (compensated loan of property)

Sole benefit of the bailee

  • Bailor has a duty to inform bailee of known dangerous defects


  • Bailor has a duty to inform bailee of known or reasonably knowable dangerous defects



What duty of care does a bailee owe a bailor when the bailment is for:

  • The sole benefit of the bailor
  • The sole benefit of the bailee

Sole benefit of bailor

  • The bailee is only liable for gross negligence

Sole benefit of bailee

  • The bailee is liable for even slight negligence


What are the elements of intentional interference with business relations?

  • Valid contractual relationship between P and third party or valid business expectancy
  • Knowledge of the relationship or expectancy
  • Intentional interference that breaches the relationship or expectancy
  • Damages


What is the last clear chance doctrine?

A mitigation of the all or nothing effect of contributory negligence - i.e., if you are barred from recovery because you were contributorily  negligence, you may still recover of the defendant had the last clear chance to avoid harm