Flashcards in Torts Deck (72):
Is lack of consent a defense for all 7 intentional torts?
Intentional Tort: Battery (3)
2. Offensive or harmful touching
3. Such touching occurs
Can you recover for the emotional damages you've suffered as a result of false imprisonment?
• Defense to which tort?
Defense to False Imprisonment: If an owner or security guard of a store believes that a theft has occurred, he may make a (1) reasonable detention in a (2) reasonable manner for a (3) reasonable amount of time
note - cannot use force that is intended or likely to cause serious bodily harm
Intentional Tort: Conversion
• Measure of Damages
Definition: Serious interference of P's personal property
Damages: FMV of the chattel at the time of the conversion
Intentional Tort: Trespass to Chattel
Definition: Minor interference with the P's personal property
Damages: cost of repairs
Intentional Tort: Trespass to Land
• What isn't a defense?
• Who can bring this COA?
Intent to cause a physical, tangible thing to enter the P's land (interference with right of possession)
• cattle, own person, golf ball, baseball, residue
Mistake of ownership is NOT a defense
Can be brought by anyone in actual or constructive possession, even if that possession is w/out title or legal right
• Types (2)
D comes onto your property intentionally to avoid a greater harm
Private Necessity v. Public Necessity
• Extent of Defense
D enters P's land to save himself or his family or one member of the community
• NL for trespass for land
• L for damages caused to land
• Extent of Defense
D enters P's land to save non-family members of the community
Intentional Tort: Intentional Infliction of Emotional Distress
1. Extreme and outrageous conduct
2. Severe emotional distress
Negligent Infliction of Emotional Distress
Actual damages (physical harm)
Negligent Infliction of Emotional Distress: Exceptions to Actual Damages Req't (2)
1. Mishandling of a corpse
2. False report of a death
What type of force is unreasonable when defending property?
Force that will cause death or serious bodily harm
Negligence: Elements (4)
Vicarious Liability: Parent-Child
Are rescuers foreseeable plaintiffs? If so, what legal effect?
Yes - that means the ppl who need rescuing have a duty to their rescuers, provided the attempt to rescue wasn't reckless
Emergency: When is a rescuer liable for injuries?
Gross negligence or recklessness
Right to break a statute or two
VL v. Negligent Hiring/Entrustment: Key Difference
VL: Employee acting w/in scope of employment
Negligent Hiring: No "scope of employment" req't
Negligence: Standard of Care: Professionals
Held to a higher standard of care: must exercise superior skill/judgment/knowledge
Negligence: Standard of Care: Child
Objective Standard: What would a similar child (age/experience/edu) have done under the circumstances?
Exception - engaged in adult activity: reasonable person standard
Negligence: Standard of Care: To an Invitee (Biz customer)
Highest standard of care:
1. Duty to inspect
2. Duty to make safe
Highest standard of care - all "reasonably" knowable: prior knowledge or could have learned via a reasonable inspection
Can a person's status as an invitee drop down to an anticipated trespasser?
Yes - if they exceed the scope of where they are allowed to be
Negligence: Standard of Care: To an Anticipated Trespasser
• Duty of ?
• But no duty to ?
Duty to warn of known, dangerous, and artificial conditions on the property
No duty to warn of NATURAL conditions
Common Carriers - what kind of duty to they have?
Duty to inspect and make safe
Criminal acts of third parties foreseeable?
Generally, no - breaks the chain of causation
PURE Comparative Negligence
Majority Rule - P can recover even if their fault is greater than that of the D's
• though the amount P recovers may be limited to the percentage of damage attributed to the D
Note - MBE rule!!
MODIFIED ("PARTIAL") Comparative Negligence
Minority Rule - P recovers only if their fault is less than that of the D's
• Threshold Req't: P's fault = 49% or less
If you're open to the public, can you delegate that duty?
Products Liability: Failure to Discover the Defect
Failure to discover the defect when it was possible to do so is a lack of reasonable care
Products Liability: Defective Product
• What theory of liability?
• Who can P sue?
Strict Liability: One who sells a product in a defective condition unreasonably dangerous to the user/consumer is strictly liable for the resulting harm/injury
Everyone in the chain of sale, provided they're in the biz of selling that good
Strict Liability: Defective Product: Unforeseeable Misuse Defense
The misuse really has to be unforeseeable
Strict Liability: Defective Product: Assumption of Risk Defense
1. Know of the risk AND
2. Voluntarily assume it
Defective Product: must you buy the product to bring a strict liability claim?
No, provided you're a foreseeable user or bystander
Are bulls on a farm wild animals?
No - domesticated animals
Wild Animals: Basic Rules (2)
1. P must suffer the type of injury associated with that animal's dangerous propensities
2. If you're injured while fleeing, still may recover for SL
Strict Liability: Abnormally Dangerous Activites
Not commonly kept in the community
If you're fleeing, still may recover for SL
• Elements (3)
• Best Defense
• Types of Ps
1. False statement by the D
2. Published to someone other than the P
3. Damage to reputation
Best Defense: The Truth
Private Figures vs. Public Figures
Standard: D was negligent
Standard: D acted maliciously - published the statement with:
1. knowledge of the falsity OR
2. Reckless disregard for the truth
• Types of COA - ("CLIP")
• Emotional damages ok?
Intrusions into One's Seclusion/Solitude
Public Disclosure of Private Facts
Damages may include emotional damages
Best Defense to Privacy
Which privacy tort doesn't require a publication?
Intrusions into One's Seclusion/Solitude
Private Nuisance (2)
1. SUBSTANTIAL interference
2. With P's use and enjoyment of his land
Only affects one party (not the community)
General grievance that everyone in the community is experiencing
Nuisance: Hypersensitive Plaintiff Defense
A hypersensitive P doesn't prevail because he isn't a person of ordinary sensibilities in the community
Negligence: Standard of Care: Person w/ Disability
Ordinary and reasonable care for a person w/ that disability
Are children liable for their intentional torts?
Only if they are capable of forming the requisite intent
When are nominal damages appropriate?
Intentional tort suits where P can't show actual harm
Negligence: Res Ipsa Loquitur
• Rule (2 elements)
Rule: Trier of fact may infer a breach of duty if the facts strongly indicate that P's injuries resulted from D's negligence
1. Event doesn't usually occur unless someone was negligent AND
2. P doesn't know which D caused the injury
Req't: the object causing injury must have been in the D's sole control
Exception: even if multiple Ds may have been in control of the OBJECT that caused the injury, RIL is still ok if one D had control over the SITE of the injury
Effect: Creates a prima facie case of negligence
Intentional Tort: False Imprisonment
1. Physical barrier
2. Intending to confine (ok even if confined for a short time)
Attractive Nuisance Doctrine (2?)
1. Child trespasser
2. Injured by a dangerous artificial condition
note - kid need not have actually been attracted to come onto the property by the condition
Negligence: Standard of Care: Licensee (Social Guest)
Must warn of a hidden/concealed condition if you actually know about it
Negligence: Standard of Care: Statute
• Exceptions (2)
Req't: Prove that a statute imposes a specific duty
Exceptions - may excuse a statutory violation if:
1. Compliance would cause more danger than violation OR
2. Compliance beyond the D's control
note - may establish P's contributory negligence by his statutory violation
Joint and Several Liability
When two or more tortious acts combine to proximately cause an indivisible injury to P, each tortfeasor is liable to the P for the ENTIRE damage incurred (full amount)
• each D is responsible for the combined liability of all Ds
Rule: Completely bars recovery if P contributed negligence
Exception: not a defense if D was reckless and wanton
Products Liability: Negligent Design
Standard: Mfr knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed
note - claim doesn't work if the danger of the product becomes apparent only AFTER the product reaches the public
Negligence: Standard of Care: Duty to an Unknown Trespasser
Landowner or occupier owes NO DUTY
Intentional Tort: Assault (2)
1. Intent to create
2. Reasonable apprehension of immediate harmful or offensive contact
Defamation: Slander Per Se v. Any Other Slander: Damages
Per Se - damages are presumed
Any Other Slander - actual damages (econ harm, not social)
Defamation: Slander Per Se: Types (4)
1. Biz or Profession
2. Loathsome Disease (leprosy; venereal disease)
3. Imputes Unchastity to a woman (susie is a slut) OR
4. Serious crime
Begins to run once the patient becomes aware of the injury
Intrusion of Privacy: Public Disclosure of Private Facts
• Test (2)
• Is the disclosure ever privileged?
1. Publication or pubic disclosure by D of private info a/b P
2. The matter made public is such that a reasonable person would object to having it made public
note - publication may be privileged if it's a matter of legitimate public interest as long as it's made w/out malice
note - fallback tort when P can't sue for defamation b/c the statement is true
Intrusion of Privacy: False Light
"False Gossip": widespread dissemination of a material falsehood a/b the P that would be highly offensive to an average person
Note - fallback tort when P can't sue for defamation b/c the statement is true
Intrusion of Privacy: Intrusion into One's Seclusion
Invade P's seclusion in a way that is highly offensive to an average person
• reasonable expectation of privacy req't
Ex: wiretapping; peering through window; listening at keyhole; covert video surveillance
Intrusion of Privacy: Commercial Appropriation
Use P's name and image for a commercial purpose
• exception: newsworthiness
Note - not limited to celebrities
Wrongful Death Action: Recovery Rule
Recovery is allowed only to the extent that the deceased would have recovered had she lived
May be implied where a reasonable person would infer consent from the P's action
Owners of Trespassing Animals: Liability Rule
Strictly liable for damages as long as it was reasonably foreseeable
CL: Owners of Automobiles: Liability Rule
An automobile owner is not liable for torts committed by another person driving the automobile