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DSF Cal Bar > Torts > Flashcards

Torts Flashcards

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1
Q

Battery

A

(1) Intentional
(2) Harmful or offensive contact
(3) With another person,
(4) Causation.

* Transferred intent applies.

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2
Q

Assault

A

(1) Intentional
(2) Act
(3) Causing
(4) V’s apprehension of imminent harm or offensive contact.

* Transferred intent applies.

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3
Q

IIED

A

(1) Intentional or reckless
(2) extreme and outrageous conduct that
(3) causes (was a SUBSTANTIAL FACTOR in)
(4) severe emotional distress.

* Third Parties:

When the defendant’s conduct is directed at a third-party victim, that defendant is liable if he intentionally or recklessly causes severe emotional distress to:

i) A member of the victim’s immediate family who is present at the time of the defendant’s conduct (and the defendant is aware of such presence), whether or not such distress results in bodily injury; or
ii) Any other bystander who is present at the time of the conduct (and the defendant is aware of such presence), if the distress results in bodily injury.

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4
Q

False Imprisonment

A

(1) Intent to confide or restain another w/in boundaries,
(2) causing confinement, and
(3) the victim is conscious of confinement or harmed by it.

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5
Q

Shopkeeper’s privilege

A

A shopkeeper may reasonably detain a suspected shoplifter

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6
Q

Intent for general intent crimes

A

Intent means a purposeful act, i.e., an act where D knows that the consequence (offensive touching, imminent apprehension, or confinement) is substantially certain to occur.

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7
Q

Defenses to Intentional Torts Involving Personal Injury

A

(1) Express or implied consent (invalidated by incapacity, duress, fraud as to essential matter, or mistakes caused or knowingly utilized by D);
(2) Self-defense (not available to initial aggressor, must use reasonable force, no duty to retreat, not liable for accidental non-negligent injuries to bystanders);
(3) Defense of Others (must reasonably believe the defended party is entitled to use force, must use reasonable force);
(4) Defense of Property (No deadly force allowed).

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8
Q

Trespass to Chattels

A

(1) Intentional
(2) interference with P’s right of possession by either (a) dispossessing or (b) using or intermeddling.

* NOTE 1: Only intent to do the act is necessary–transferred intent applies.

* NOTE 2: Mistake of law is not a defense.

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9
Q

Conversion

A

(1) Intentional
(2) interference with P’s right of possession
(3) so serious that it deprives P of the use of the chattel.

* NOTE 1: Only intent to do the act is necessary–transferred intent applies.

* NOTE 2: Mistake of law is not a defense.

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10
Q

Remedies for Conversion v. Trespass to Chattel

A

* Conversion: Damages for full value of property or replevin.

* Trespass to chattel: Diminished value or cost of repair and (if there was dispossession) loss of use.

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11
Q

Trespass to Land

A

(1) Intent to enter land or cause physical invasion,
(2) physical invasion,
(3) no public necessity.

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12
Q

Proper Plaintiff for Trespass to Land

A

Anyone in actual or constructive possession of land

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13
Q

What are the “necessity” defenses for trespass to land?

A

* Private necessity: Qualified privilege to enter another’s land to protect one’s person/property from harm. Must compensate for actual damages.

* Public necessity. Absolute privilege to enter land when reasonably believe necessary to avert imminent public disaster. No damages authorized.

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14
Q

Private Nuisance

A

An (1) intentional, negligent, reckless, or abnormally dangerous act that causes

(2) substantial and
(3) unreasonable
(4) interference with another’s use or enjoyment of his land.

* Interference is SUBSTANTIAL if it offensive to the average person in the community.

* It is UNREASONABLE if the injury caused outweighs the usefulness.

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15
Q

Proper Plaintiff for Private Nuisance

A

Anyone with possessory rights in the real property

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16
Q

Proper Plaintiff for Public Nuisance

A

A private citizen suffering harm different in kind form the general public.

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17
Q

Remedies for Nuisance

A

Damages or Injunction (balance the equities)

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18
Q

Public Nuisance

A

An (1) intentional, negligent, reckless, or abnormally dangerous act that (2) interferes with a right common to the general public.

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19
Q

Defenses to Nuisance

A

Regulatory Compliance (imperfect defense) and Coming to the Nuisance (not dispositive but jury may consider)

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20
Q

Right to Abatement in Nuisance

A

* Private Nuisance: Private party may use reasonable force to abate, but only after giving notice to D and D refuses to act.

* Public Nuisance: Absent unique injury, only public authority can abate nuisance.

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21
Q

Negligence

A

Negligence is the breach of a duty to protect a foreseeable victim against unreasonable risk of injury, which causes harm to the victim.

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22
Q

Negligence “duty analysis” - to whom is a duty owed?

A

An analysis of duty requires an examination of to whom the duty is owed and what the duty entails (otherwise known as the standard of care).

* Cardozo: A duty is only owed to Ps within the zone of foreseeable harm (Palsgraf rule, majority rule).

* Andrews: If D can foresee harm to anyone resulting from his negligence, D owed a duty to everyone harmed, whether foreseeable or not (minority rule)

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23
Q

Special Rules for Duties Owed to Rescuers

A

If D negligently places a person in danger, D also negligently placed their rescuer in danger. But:

(1) emergency professionals are barred from recovery if the injury results from risks of the job, and
(2) comparative fault principles apply if rescuers make unreasonable efforts.

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24
Q

Duty owed to fetus?

A

Beginning at viability

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25
When does D have affirmative duty to act?
If D-- \* Assumed the duty, \* Placed another in peril, \* Contracted for the duty, or \* Had a special relationship to the victim (employer-employee, parent-child, common carrier-passenger)
26
Does voluntary intoxication excuse D from negligence standard?
No
27
Negligence standard for children
A child must act with the same degree of care as a reasonable child of similar age, intelligence, and experience. But: \* A child engaged in a high-risk activity is held to an adult standard, and \* Children under 5 generally incapable of negligence.
28
Negligence Standard of Care for Professionals
Must show same skill, konwledge, and care as other practitioners in same community (physicians held to national standard). In addition: \* Standard must be shown by expert unless negligence is obvious to layperson, and \* Failure to comply with informed consent requirement is per se negligence unless risk is commonly known, patient is unconscious, patient waives, or disclosure too harmful.
29
Negligence Per Se
Applies when a criminal or regulatory statute imposes a specific duty of care that applies to D, D fails to conform to duty, and the resulting harm is the TYPE OF HARM to the TYPE OF PARTY contemplated by the statute. Defenses: \* Compliance impossible or more dangerous than noncompliance, \* Violation reasonable under the circumstances, \* Statutory vagueness or ambiguity.
30
Standard of Care for Common Carrier
Highest duty of care consistent with practical operation of the business
31
Standard of Care for Innkeepers
Ordinary negligence (majority), slight negligence (CL)
32
Standard of care for bailor
Duty to warn all bailees of known dangerous defects, and bailees for hire of reasonably discoverable defects
33
Standard of care for bailee
\* Gratuitous bailee: gross negligence, \* Bailee for mutual benefit: regular negligence, \* Bailee for hire: extraordinary care
34
Standard of care for sellers of real property
Must disclose known, concealed, unreasonably dangerous conditions. Liability to 3d parties continues until buyer has a reasonable opportunity to discover and remedy defect.
35
Standard of care for possessors of land
\* All trespassers: No willful, wanton, reckless, or intentional misconduct. \* Undiscovered trespassers: No duty unless owner has constructive notice, in which case similar to licensee. \* Discovered trespassers: warn against all concealed, dangerous, artificial conditions. \* Licensee (e.g., social guest): Warn of known concealed dangerous conditions. \* Invitee (invited to enter for business purposes): reasonable care to inspect, discover dangerous conditions, and protect invitee from them (when invitee is acting w/in scope of invitation).
36
Standard of care for landlords
Liable for all injuries in common areas from hidden dangers w/ failure to warn, or as a result by a hazard caused by negligent repair or failure to repair.
37
Standard of care for tenants
Tenants are liable to injuries to third parties due to conditions within the tenant's control.
38
Attractive Nuisance
D is liable if: (1) an artificlal condition on land poses an (2) unreasonable risk of serious bodily injury, (3) children cannot appreciate the danger, (4) the burden of eliminating the danger is slight compared to the risk of harm, and (5) the owner failed to exercise reasonable care to protect children.
39
Breach Analysis
Cost-benefit analysis: What is the likelihood that D's conduct would cause harm, at what severity, and what would cost have been to avoid such harm?
40
Res Ipsa Loquitur
This doctrine creates an inference of negligence where the dangerous instrumentality was in the exclusive control of D (or group of Ds), and the type of harm that occurred is not the kind of harm that usually would have resulted absent D's negligence.
41
When is joint and several liability appropriate?
When 2+ Ds are each of a factual cause of P's harm, and acted with a common plan or design.
42
What is "loss of chance" recovery?
When P had a \<50% chance of survival and D made chances worse, some jurisdictions allow P's survivors to recover the value of the lost chance to survive.
43
Intervening Cause v. Superseding Cause
Unforeseeable intervening causes break the chain of proximate causation. Negligent rescuers are always foreseeable, but may lead to joint and several liability.
44
Are emotional damages recoverable for negligence?
Only if tort caused physical damages.
45
NIED
Either: (1) D's negligence placed P in the "zone of danger," resulting in physical injury AND emotional distress; (2) D's negligence placed Third Party in the "zone of danger," resulting in physical injury AND emotional distress for a witness family member; or (3) D had a special relationship to P (such as a mortician or doctor) and D's negligence resulted in physical injury AND emotional distress to P.
46
Wrongful Death - Types of Damages Allowed
Loss of support, companionship, society and affection (or loss of services for child), but not P's pain and suffering. Capped at decedent's recovery.
47
Survival Action - Damages Allowed
Whatever decedent would have been entitled to had he lived, but no double recovery with wrongful death.
48
When is employer liable for independent contractor's torts?
When the employer negligently selected the contractor, attempted to delegate a non-delegable duty, or hired the contractor to perofrm an inherently dangerous activity.
49
Car owner liability
(1) Negligent entrustment and (2) (a) family purpose doctrine (just family members driving with permission) versus (b) owner liability statutes (anyone driving with permission)
50
Parent-child liability
Negligent supervision if parent (1) can control child and (2) knows or should know of necessity and opportunity for exercising control.
51
Dram shop liability
Liability against seller of intoxicating beverages to minors or intoxicated persons; many states extend to social hosts?.
52
Federal Sovereign Immunity - When Waived Under FTCA
Waived for ministerial acts and intentional torts by LEOs Not waived for enumerated torts, discretionary functions, gov't contractor product liability, most traditional gov't activities
53
State Sovereign Immunity - When Waived
Immunity usually applies to governmental functions only Public duty rule: No liability to any one citizen for municipality's violation of duty owed to public at large, unless special relationship
54
Joint and Several Liability v. Several Liability
\* Joint and Several: Where D is liable for a single indivisible harm, liable for entire harm. \* Pure Several Liability: D only liable for proportionate share.
55
Is an action for contribution available to intentional tortfeasors?
Generally no
56
Defenses to Negligence
1. Contributory Negligence 2. Comparative Fault 3. Assumption of the Risk
57
Assumption of the Risk - Elements
If P unreasonably proceeded in the face of a known specific risk, P cannot later recover for harm caused by that risk \* Contributor Negligence Jurisdiction: No Recovery \* Comparative Negligence Jurisdiction: Recovery proportionate to fault
58
Do contributory and comparative negligence reduce recovery for intentional tort?
No
59
Limitations on Exculpatory Clauses in Contracts
Unenforceable if: \* Disclaims liability for gross negligence or recklessness \* Gross disparity in bargaining power \* Exculpated party offers service of great importance/necessity to the public \* Other K defenses
60
S/L for Abnormally Dangerous Activities
An activity is abnormally dangerous, giving rise to S/L, if: \* It is not commonly engaged in, \* there is an inherent and foreseeable risk of harm, \* Which is significant for the community, \* And cannot be fully mitigated through due care.
61
S/L for Animals
\* Wild animals: Animal not usually kept domestically. Owner is S/L for harm by wild animal if harm arises for dangerous propensity of animal about which owner has reason to know. \* Domestic animals: Owner only S/L if knows/has reason to know of dangerous propensities
62
Defenses to Strict Liability
\* Contrib is NOT a defense \* Comparative fault is SOMETIMES allowed \* Assumption of the Risk bars recovery \* Statutory privilege: No S/L for D performing essential public services.
63
Strict Products Liability - Elements
\* Product was defective (manufacture, defect, failure to warn), \* when it left D's control, and \* Defect caused P's injury when used in a reasonably foreseeable way.
64
Negligence in Products Liability or Strict Products Liability - May P recover pure economic loss?
No, only under K or warranty action.
65
Manufacturing Defect, Defined
Product does not conform t design specs
66
Design Defect, defined
Product as designed does not adequately protect against reasonably foreseeable risks of harm, including from reasonably foreseeable misuses
67
Failure to Warn Defect, Defined
\*Product entails a foreseeable risk of harm, \* Not obvious to an ordinary user of the product, and \* the risk could have been reduced or avoided with instructions/warnings
68
Learned Intermediary Rule
Prescription drug manufacturer avoids "failure to warn" by warning prescribing physician about drug risks, unless (1) manufacturer knows drug will be dispensed w/out personal intervention or (2) birth control pills
69
Products Liability - Does P need to be in stream of commerce?
No, anyone foreseeably injured can sue
70
Does strict products liability apply to all D's?
No, only those in business of selling. Casual sellers an auctioneers not covered.
71
Defenses to Strict Products Liability
\* Contrib is NOT a defense if P's negligence was foreseeable \* Comparative Fault DOES reduce recovery (most states) \* Assumption of Risk DOES reduce recovery \* Unforeseeable misuses and alterations \* Compliance w/ Government Safety Standards (not dispositive but may be offered)
72
When does SOL begin to run for strict products liability?
When P discovers (or should discover) his injury AND its connection to the product
73
Can a disclaimer for a consumer good limit consequential damages for personal injury?
No, this is unconscionable
74
Defamation
(1) Defamatory language (i.e., language that diminishes respect and goodwill), (2) Of or concerning P (either explicitly or implicitly), (3) Publication (i.e., communicated intentionally or negligently to a third party), (4) Falsity (pure opinions don't count, and for matters of public concern and public figures, P must prove falsity), and (5) Fault (default is negligence, public figure must show recklessness).
75
Damages in Defamation Suit
\* Public Figure: Limited to actual proven damages \* Private person/matter of public concern: if "actual malice" shown, nominal or presumed damages permitted \* Private person: General and nominal damages permitted regardless of malice
76
Defenses to Defamation
\* Truth \* Consent \* Absolute Privilege (remarks in judicial and legislative proceedings, between spouses, or in required publications) \* Qualified privilege (matter affecting important public interest, disclosure in another person's interest). This privilege can be lost if abused.
77
Theft of Trade Secret
\* P owns a trade secret, i.e., information that provides a business advantage; \* It is not generally known; \* P took reasonable precautions to protect it, and \* D took the secret by improper means.
78
Invasion of Privacy Torts
I-FLAP **I**ntrusion Upon Seclusion **F**alse **L**ight Mis**A**ppropriation **P**ublic Disclosure of Private Facts
79
Intrusion upon Seclusion
D's Act intrudes into P's private affairs, objectionable to a reasonable person.
80
False Light
(1) Publication of facts about P that (2) places him in false light objectionable to a reasonable person under the circumstances. \* Truth not always a defense. \* P must show malice
81
Misappropriation
Unauthorized use of P's picture or name for D's advantage, AND injury to P.
82
Public Disclosure of Private Facts
Public disclosure of private facts (whether true or false) that would be HIGHLY OFFENSIVE to a reasonable person and is NOT OF LEGITIMATE PUBLIC CONCERN.
83
Special damages required for IFLAP torts?
No, proof of emotional/mental distress is enough.
84
Defenses to IFLAP torts
Absolute/Qualified Privileges; Consent; Truth is NOT a defense.
85
Intentional Misrepresentation
(1) Knowing or Reckless (2) False Misrepresentation of a Material Fact (3) With INTENT to induce P to act in reliance; (4) Causation (5) Justifiable reliance, and (6) Actual Damages \* Damages: Actual economic loss and consequentials
86
Negligent Misrepresentation
(1) D is in contractual relationship w/ P or knows P will use D's information, and (2) Provides FALSE INFORMATION to P (3) As a result of D's Negligence, and (4) P JUSTIFIABLY RELIES on D's information, (5) Causing pecuniary damages. \* Damages: Reliance and Consequential
87
Intentional Interference w/ Contract
(1) D knew of valid K btwn P and 3d Party, (2) D intentionally interfered with K (3) In a way that SUBSTANTIALLY EXCEEDS fair competition and free expression, (4) Resulting in Breach, (5) Which caused damages to P. Defenses: Motivated by health, safety, or morals; K was terminable at will; D is a business competitor.

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