Torts Flashcards
(68 cards)
1
Q
Name the kinds of torts
A
Intentional Torts
Dignitary Torts
Negligence
Strict Liability
Nuisance
2
Q
Name the Intentional Torts
A
Battery
Assault
False Imprisonment
Intentional Infliction of Emotional Distress
Trespass to Land
Trespass to Chattel
Conversion
3
Q
Name the defenses to intentional torts
A
Consent
Self Defense
Defense of Others
Defense of Property
Privilege of Arrest
Necessity
Discipline
Note:
- NO extreme sensitivity of a plaintiff
- NO incapacity defense
4
Q
Elements of Battery
A
Defendant commits a harmful OR offensive contact with plaintiff’s person.
NOTES:
- Offensive = unpermitted by normally sensitive plaintiff
- Person includes anything plaintiff is touching/holding/carrying/wearing
- Delay is ok (ex: poisoned sandwich)
5
Q
Elements of Assault
A
Defendant places plaintiff in reasonable apprehension of immediate battery (harmful or offensive contact).
NOTES:
- Plaintiff has to see it coming
- Unloaded gun problem is resolved by Apparent Ability- If plaintiff doesn’t know whether the gun is loaded, determine if plaintiff’s belief of the threat is reasonable in that the defendant has the ability to do the thing.
- Immediate = there MUST be conduct. Words alone are not enough to satisfy the element, though they are enough to destroy the conduct.
6
Q
Elements of False Imprisonment
A
Defendant commits an act of restraint that confines the plaintiff in a bounded area.
NOTES:
- Threats = sufficient as acts of restraint provided that the threat would act on the mind of an ordinary plaintiff.
- Omission = can be an act of restraint if there is a pre-existing duty.
- Bounded area = does not need specified boundaries or to be specifically delineated, but can be approximated.
- An area is NOT bounded if there is a reasonable means of escape (not dangerous, humiliating, disgusting) that plaintiff can reasonably discover (not hidden).
7
Q
Elements of Intentional Infliction of Emotional Distress
A
Defendant commits intentional OR reckless outrageous conduct that causes plaintiff to suffer severe distress.
NOTES:
- Outrageous = exceeds all bounds of decency tolerated in a civilized society.
- Insults alone are not outrageous
- Hallmarks of outrageousness: repeated bad behavior over time; common carrier/inkeeper deliberate attempts to distress a patron; fragile class (kids, elderly, preggos)
- Deliberately targeting plaintiff’s emotional sensitivity known to defendant is outrageous
8
Q
Emotional Distress: Proof and Sub/Objectivity
A
- No required WAY to prove severe distress; plaintiff can do it however it wants.
- The Q of severe distress is SUBJECTIVE –> look for hints in facts that negate severity.
9
Q
Elements of Trespass to Land
A
Defendant commits an act of physical invasion that interferes with plaintiff’s exclusive possession of the land.
NOTES:
- 2 ways to commit physical invasion: go onto property or throw something onto the land
- Mistake about entitlement to be there is NO defense.
- Claim of interference belongs to the lawful possessor, NOT the owner.
- Entitlement not limited to surface of property (reasonable air above and ground below);
10
Q
Elements of Trespass to Chattels
A
A defendant intentionally commits an act to interfere with the plaintiff’s right of possession in a chattel.
NOTES:
- Interference can be intermeddling (damaging it) or a dispossession (depriving of right to possess/taking away).
- Mistaken belief of ownership is NO defense.
11
Q
Elements of Conversion
A
Defendant commits an intentional act to interfere with the plaintiff’s right of possession in a chattel that is SO SERIOUS it warrants defendant to pay the full market value.
12
Q
Defenses to Intentional Torts
A
Consent
Protective Privileges
Necessity Defenses
13
Q
Consent as a Defense
A
Look to see whether plaintiff CAN consent
If yes, assess whether it could be express or implied consent.
Express = explicit consent in words giving defendant permission, though invalid if given under fraud or duress
Implied = apparent consent which a reasonable person would infer from custom and usage of plaintiff’s conduct.
NOTES:
- “rules of the game” are NOT custom/usage
- Jury determines reasonableness of implied consent interpretation
- ALL consent has a scope
14
Q
Protective Privileges as Defense to Intentional Torts
A
Self defense, defense of others, defense of property.
Occur when plaintiff is being threatening and defendant’s tort is a response to plaintiff.
All of these defenses require:
- Proper timing - the threat must either be in progress or imminent –> retaliation and revenge are not allowed
- Reasonable belief that threat is genuine (reasonable mistake ok)
- Assuming you’ve met the timing and belief requirements, you can only use PROPORTIONAL force under the circumstances.
- Deadly force is ok in life-threatening situations ONLY, and NEVER ok in defense of property.
15
Q
Necessity Defenses to Intentional Torts
A
Only available if the tort alleged is one of the three property intentional torts: trespass to land/chattel, conversion):
Public Necessity and Private Necessity
16
Q
Public Necessity
A
A defense to intentional torts against property (trespass to land/chattel, conversion).
Defendant invades plaintiff’s property in an emergency but does so to protect community or a significant group of people as a whole.
A complete defense.
Fact pattern will have a large-scale emergency such as a natural disaster, mass shooter, disease, etc.
17
Q
Private Necessity
A
A defense to intentional torts against property (trespass to land/chattel, conversion).
Defendant commits the tort to protect an interest of his own.
NOT a complete defense.
Legal Consequences:
- Defendant is liable for compensatory/actual damages, but NOT for punitive or nominal damages.
- As long as the emergency continues, plaintiff cannot throw defendant off the land/force him back into the emergency.
18
Q
List the Dignitary Torts
Harm to dignitary/economic interest
A
Defamation
Invasion of Right to Privacy
Intentional Misrepresentation
19
Q
Elements of Defamation
A
- Defendant must make a defamatory statement about the plaintiff;
- Mere namecalling =/= defamatory
- Statement must generally be a factual allegation in nature (opinions and non-facially defamatory statements are included here if they induce defamatory meaning by innuendo)
“Publication” of the statement;
- Defendant must reveal the defamatory statement to at least one person other than the plaintiff
- The more people get the publication, the more damages
- Publication can be negligent, reckless, careless, etc.
Damages - depend on type of defamation
20
Q
Damages in a Defamation Case
A
Libel - damages are presumed
Slander - Plantiff has to put in evidence of actual damages in the form of economic loss.
Slander Per Se - presumed damages
21
Q
Types of Defamation
A
Libel - The statement is by definition permanently embodied in some medium of expression.
Slander - The statement is spoken
Slander Per Se - 4 kinds:
- Statement about plaintiff’s business/profession;
- Statement that plaintiff has committed a serious crime (moral turpitude);
- Statement imputing the chastity of a woman; and
- Statement that plaintiff suffers from a loathsome disease (only leprosy and venereal disease)
22
Q
Affirmative Defenses to Defamation
A
- Consent, express or implied
- Truth
- Privileges, absolute and qualified
NOTES:
- If these defenses apply and there is no defamation, nevertheless consider intentional infliction of emotional distress or invasion of right to privacy (unless plaintiff is public figure or a matter of public concern is involved)
23
Q
Privileges as Defenses to Defamation: Absolute Privilege
A
Absolute Privilege - based on status of defendant.
2 Types:
- Spouses communicating with each other
- Officers of the three branches of government
- Most important in judicial context, also granted to witnesses and lawyers in litigation.
24
Q
Privileges as Defenses to Defamation: Qualified Privilege
A
Qualified Privilege - based on circumstances of speech, not status of speaker
Arise when public interest in encouraging candor.
2 Requirements to earn Qualified Privilege:
- Defendant must make statement in good faith –> reasonable basis; AND
- Speaker must confine himself to relevant matters at hand.
25
Matters of Public Concern
When a defamation involves a matter of public concern, plaintiff must prove in addition to the common law elements:
1. Falsity of the statement;
- Plaintiff must show that the statement is materially inaccurate
2. Fault on the part of defendant
- Statements not made in good faith
- If plaintiff is a public figure, recklessness in the form of no effort to fact-check.
- If plaintiff is a private figure, negligence is enough.
26
Invasion of Right to Privacy as Intentional Tort
Four Types:
Appropriation
Intrusion on Plaintiff's Affairs or Seclusion
False Light
Disclosure
27
Elements of Appropriation
Defendant uses plaintiff's name or picture for commercial purposes without permission.
28
Elements of Intrusion
Invasion of plaintiff's seclusion in a way that would be highly offensive to the average person
Examples: wire tapping, peeping tom, etc.
29
Elements of False Light
The widespread dissemination of a material falsehood about plaintiff that would be highly offensive to an average person (not necessarily negative).
- If a matter of public interest, actual malice by defendant must be proved
Essentially false gossip.
Unlike defamation, you get DIGNITARY damages (non-economic)
Example: Mischaracterization of beliefs.
30
Public Disclosure of Private Facts
Widespread dissemination about confidential information about plaintiff that the dissemination would be highly offensive to the average person.
Tort of "true gossip"
- Newsworthiness exception
- Facts must be truly private/confidential
31
Affirmative Defenses to Invasion of Right to Privacy
Consent
Defamation privileges apply to false light and disclosure
32
Elements of Negligence
Duty of Care
Breach of Duty
Causation (factual and proximate)
Damages
33
Duty of Care
Everyone owes a duty to take precautions to foreseeable victims.
Unforeseeable victims always lose becaus eno duty is owed to them.
How much care is due? OBJECTIVE STANDARD
- As much as would have been taken by a hypothetical reasonably prudent person under similar circumstances.
Exceptions to objective standard:
- If defendant has specialized skills OR knowledge on a subject matter, compare defendant to a reasonably prudent person with the same skills or knowledge. (Ex: Stupid person with specialized knowledge of an intersection by means of living there for 20 years and knowing about it being dangerous).
- Where RELEVANT, incorporate physical traits into reasonably person standard (blindness, height where relevant, etc).
34
Special Standards of Care
These do not use the Reasonable Person Standard:
Negligence claims against children
Professionals
Premises Liability
Statutory Standards of Care
Affirmative Duties
Negligent Infliction of Emotional Distress
35
Standard of Care for Negligence by Children
Under age 4 = no owed standard of care
Single-digit age = children must behave as a hypothetical child of similar age, experience, and intelligence acting under similar circumstances
SUBJECTIVE, extremely so. Every child has its own SOC
EXCEPTION: Adult activities (typically operating a vehicle with a motor) require RPPS
36
Standard of Care for Professionals
Professionals are obligated to conform to the usual skills and knowledge possessed by members of the same profession in good standing.
NOTES:
- In other words, must behave with the same care as an average member of the profession
- Professional = any person who is in the practice of their trade and needs special occupational training, license, etc.
- Custom is DISPOSITIVE --> national standard
- Will probably need an EW to establish the national standard
- NO reasonableness. No "reasonable doctor"!!
37
Premises Liability: Name the categories of entrant
Unknown/undiscovered trespasser
Known/Anticipated trespasser (Owner either knew or should have known they were there; often established by pattern of trespassing)
Licensee - people who enter with permission but who do not confer economic benefit to the possessor (social guests, solicitors)
Invitee - Typically business customers
38
DOC Owed to Unknown/Undiscovered Trespasser
Unknown/undiscovered trespasser - NO DOC
Plaintiff always loses
39
DOC Owed to Known/Anticipated Trespasser
4 Part test, must satisfy ALL elements to warrant DOC:
1. Artificial condition created by humans
2. Highly dangerous
3. Concealed from entrant (hidden)
4. Defendant has prior knowledge.
In short: known, man-made death traps on the land.
If so, owner must fix the hazard OR give warning
40
DOC Owed to Licensees
Duty to warn or make safe of dangerous conditions known to the owner that create unreasonable risk of harm and that licensee is unlikely to discover, and duty to exercise reasonable care in conduct of the "active operations" on the property.
No duty to inspect/repair, however
41
DOC Owed to Invitees
Duty to warn or make safe a hidden condition that the possessor actually knew about OR could have discovered through reasonable inspection.
Reasonable inspection = one that would be undertaken by a RPP
42
Premises Liability: DOC owed to Police/Fire fighters
Never recover if the injury is an INHERENT risk of their job
43
Premises Liability: DOC owed to child trespassers
DOC of reasonable care to prevent child trespassers from being hurt.
Attractive Nuisance Doctrine - reasonableness will depend on the likelihood of child trespass in the area, and whether there is something attractive on the property.
Duty to warn if foreseeable risk is greater than expense of eliminating danger.
44
Statutory Standard of Care
Negligence Per Se
Adopting a statute as the SOC, such that violating the statute indicates negligence.
Test: Class of Person/Class of Risk Test
1. Plaintiff must demonstrate that he is a member of the class of persons the statute is trying to protect; and
2. Plaintiff demonstrates that the accident is within a class of risks that the statute is designed to prevent.
Exceptions: litigate under the RPPS when:
1. Statutory compliance would be more dangerous than statutory violation; or
2. If compliance was impossible under the circumstances.
45
Affirmative Duties
NONE, generally.
Exceptions:
1. Pre-existing relationship --> typically formal relationship where there are labels (ER/EE, common carrier/passenger, hotel/guest); OR
2. If defendant caused the peril in the first place, even for non-negligent behavior. However, NO obligation to put your own life at risk.
NOTES:
- If someone chooses to act, they are obligated to do it reasonably and will be liable for negligence unless there is a Good Samaritan statute.
46
Negligent Infliction of Emotional Distress
Only applies if defendant was negligent AND plaintiff did no suffer any physical harm.
In an essay, need a two-tier discussion:
1. Prove the underlying negligence
2. Establish the plaintiff's entitlement for pure emotional damages in one of the three following ways:
- Near-miss cases
- Bystander cases
- Relationship cases
47
NIED: Near-Miss Cases
Defendant did not physically injure plaintiff, but ALMOST did, and the near-miss left plaintiff agitated.
Key trait: fear
Plaintiff can recover upon showing:
1. Defendant's negligence put plaintiff in a zone of physical danger; and
2. most courts require a subsequent physical manifestation of distress (heart attack, tremor, rash, etc.)
48
NIED: Bystander Cases
1. Defendant injured a third party in a very severe way
2. Plaintiff was a contemporaneous witness, close in space and time, and suffers because of sadness of what happened
3. The victim was closely related to the plaintiff (spouse, child, parent)
Key trait: sadness/grief
49
NIED: Relationship Cases
Plaintiff and defendant have pre-existing business relationship, and it is HIGHLY foreseeable that careless performance (negligence) by defendant will cause significant distress.
ex: false medical diagnosis where performance of test was negligent.
ex: negligent behavior by funeral establishment
50
Breach of Duty
Define and Identify ways of proving
Plaintiff must identify specific conduct that falls short of the SOC.
In an essay: "Plaintiff will allege that the unreasonable conduct was ___." and "Plaintiff will argue that this was unreasonable because _____."
Res Ipsa Loquitor
51
Res Ipsa Loquitor
A way of proving breach of duty
Res Ipsa arises when plaintiff does not have factual information about what the defendant did wrong.
Requirements:
- Plaintiff must show the accident was the type normally associated with negligence, and
- Plaintiff demonstrates that accident would notmally have been due to the negligence of someone in this defendant's position.
If you prove this, you earn an inference of negligence. It goes to the jury and they get to decide what happens.
52
Types of Cause
Factual Cause
Legal/Proximate Cause
53
Factual Cause
Links action to injury
-But-for cause
Problem Situations:
1. Merged causes - each negligent defendant releases a destructive force with the world that, when joined, hurt the plaintiff. Use SUBSTANTIAL FACTOR TEST
2. Unascertainable Causes (ex: quail-hunting) - shift the BOP to defendant. If the defendants cannot figure out who did it they are jointly and severally liable.
54
Proximate/Legal Cause
Essentially a fairness requirement.
Proximate Cause = plaintiff must show that liability would be fair because the injury was a foreseeable consequence of the defendant's actions.
Factors: time passage, distance, weirdness
Scenarios w/precedent where defendant is liable (4):
1. Intervening negligent medical treatment - negligence by doctor foreseeable, so defendant is liable
2. Intervening negligent rescue
3. Intervening reaction or protection forces -- ex: defendant runs over plaintiff in crosswalk and plaintiff gets stampeded
4. Subsequent disease/accident - foreseeable that if you leave someone injured/weak they are more likely to be harmed more a second time.
55
Damages
Eggshell plaintiff rule - take the plaintiff as you find him
56
Defenses to Negligence
Comparative Negligence - shown by proof that plaintiff failed to exercise proper care for his own safety (generally, use reasonable care)
- Can also show violation of a self-protective statute
- Jury will assign a percentage of fault to each person, and plaintiff gets damages minus percentage fault.
57
Variations on Comparative Negligence
1. Pure Comparative Negligence - go by the jury's designated percentage to reduce damages.
2. Partial/Modified Comparative Fault - Plaintuff under 50% fault recovers the damages minus fault, BUT a plaintiff with more than 50% fault gets barred.
58
Strict Liability: 3 types
Animals (domesticated/wild)
Abnormally Dangerous Activities
Products Liability - ONLY strict liability if plead as such; can recover under other theories so PAY ATTENTION
59
Strict Liability: Animals
Domesticated animals - no SL; have to show negligence.
Exception: knowledge of dangerous propensity of the particular animal.
Exception to the exception: does not apply to people trespassing on your land.
Wild animals - SL for ALL such animals, no matter how many precautions.
60
Strict Liability: Abnormally Dangerous Activities
An activity which:
1. Creates a foreseeable risk or SERIOUS harm even when reasonable care is exercised; and
2. Activity cannot be common in the location where conducted (out of place/conduct)
ex: crop dusting in non-agricultural community, blasting, explosions, handling/transporting extremely dangerous chemicals, radiation/nuclear
61
Products Liability: 4 Elements
1. Plaintiff must show defendant is a merchant
2. Product is defective
3. Defect existed when product left defendant's hands (presumed satisfied if product moved in ordinary channels of distribution)
4. Plaintiff must be making FORESEEABLE (not necessary intended) use of product at time of injury.
62
Products liability: Proving Defendant is Merchant
4 ways of testing merchants:
1. Casual sellers are NOT merchants
2. Service providers are NOT merchants - often make products available during the course of the service
3. Lessors - Commercial lessors (people who rent products to others) ARE merchants (ex: rental car)
4. Products up the distribution chain ARE merchants (no privity required)
63
Products Liability: Proving defect
Manufacturing Defect - differs from all the other products that come out of the same factory in a way that makes it more dangerous than consumers would expect.
Design Defect - Negligence in disguise ... a design is defective only when it fails a risk/utility test in that the danger of the product is greater than the value such that a reasonable person would not have put it on the market.
- Plaintiff must show viable alternative design - viable if it would have been safer than design actually sold but no more expensive and not impractical
Information Defect - occurs if i cannot be redesigned in a cost-effective way and his residual risks unknown to consumers and lack warning about the risks. All warnings are not created equal
64
Affirmative Defenses to Strict Liability
Comparative responsibility - essential comparative negligence test
65
Nuisance
A tort and the harm suffered by it
- Interference with ability to use and enjoy real estate that reaches an unreasonable degree
Key = whether the degree of interference is too much; has to be a big deal. Balance interests.
66
Vicarious Liability
Available when there is a relationship.
A doctrine of last resort - first ask whether defendant can be held liable for his OWN behavior: negligent supervision/entrustment/hiring etc.
1. ER/EE
2. Hiring Partnet/IC - generally no VL for IC's behavior, except a business where IC is working on the property and hurts a customer.
3. Automobile driver/owner - Owner not liable for torts of the driver, unless driver is running and errand for the owner.
4. Parent/child: NO VL
67
Adjustment between Co-Defendants
If plaintiff can recover judgment from all defendants and one pays in full, what remedy does paying defendant have against the others?
Comparative Contribution - Each defendant is responsible for his own portion of the blame and can collect from the other defendants if it has to pay all or more.
- Exceptions - Indemnification, 2 ways:
1. If you're VL and active tortfeasor is in the case, the VL defendant can collect all of it back from active defendant.
2. Products liability where out of pocket defendant is a retailer who can collect from the manifacturer.
68
Loss of Consortium
Where V of any tort is married, spouse has a separate COA.
- Defenses against the defendant for the victim's case can also be raised against the uninjured spouse (derivative).
3 kinds of damage --> must be ACTUALLY PROVED to get damages:
1. loss of services
2. loss of society
3. loss of sex
