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Flashcards in Torts Deck (21)
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1
Q

Intentional torts to person

A
  1. Assault
    - intentional
    - causing apprehension of
    - imminent
    - harmful/offensive contact
  2. Battery
    - intentional infliction
    - harmful/offensive contact
  3. False imprisonment
    - intentional
    - confinement/restraint
    - bounded area
    - no reasonable means of escape
    - P aware or harmed
  4. Intentional infliction of emotional distress (IIED)
    - intentional/reckless infliction by
    - extreme and outrageous conduct
    - causing severe emotional distress
    - if outside zone of danger:
    - a. P closely related
    - b. at the scene
    - c. saw the injury
2
Q

Intentional torts to property

A
  1. Trespass to land
    - intentional
    - physical invasion of
    - real property of another
    - ejectment: action at law to recover possession of real property
  2. Trespass to chattels
    - intentional
    - interference with
    - P’s right of possession
    - in a chattel
    - replevin: action at law to recover chattels wrongfully taken
  3. Conversion
    - tresspass to chattels and
    - substantial interference
    - P pays full value
3
Q

Defenses to intentional torts

A
  1. Consent
    - express unless:
    - a. mistake (D knew and took advantage)
    - b. fraud
    - c. duress
    - d. D exceeds scope
    - e. lack capacity
    - implied - by custom or conduct
  2. Self-defense
    - reasonable belief of imminent danger
    - reasonable force
  3. Defense of others
    - reasonable belief other person could defend
    - reasonable force
  4. Defense of property
    - reasonable force to
    - prevent property tort
  5. Recapture chattels
    - fresh pursuit
    - reasonable force
    - wrongful taking
  6. Necessity
    - reasonably necessary
    - to prevent great harm
    - public: no damages
    - private: pay for damage
  7. Arrest
    - for misdemeanor, D may use reas, non-deadly force to arrest
    - D may use deadly force for serious harm
  8. Shopkeeper privilege
    - reas belief stolen
    - reas manner (non-deadly force only)
    - reas time (only to conduct investigation)
  9. Discipline (parent or teacher)
4
Q

Defamation

A
  1. Common law
    - defamatory language
    - of or concerning P
    - publication by D to 3rd P
    - damage to P’s reputation
  2. Constitution (matter of public concern)
    - falsity
    - fault:
    - a. pub official/figure: actual malice (knowledge/reckless disregard)
    - b. private person: negligence
  3. Libel - written or printed publication of defamatory language. P does not need to prove special damages.
  4. Slander - spoken defamation. P must prove special damages unless:
    - adversely reflect on one’s conduct in a business;
    - loathsome disease;
    - guilty of crime involving moral turpitude; or
    - unchaste woman

Defenses

  1. consent
  2. truth
  3. privilege
    - absolute: judicial proceedings, legislators during proceedings, fed executive officials, between spouses
    - qualified: reports of official proceedings, statements in publisher’s/recipient’s interest. May be lost if (a) statement not within scope of privilege, or (b) actual malice.
5
Q

Invasion of privacy

A
  1. Misappropriation of P’s Picture or Name
    - P’s name or picture
    - unauthorized use
    - for financial benefit
  2. Intrusion on P’s Seclusion
    - not in public place
    - highly offensive to reas person
  3. False Light
    - attributing to P view he does not hold
    - highly offensive to reas person
    - public publication
    - 1A: public interest: malice, public figure: actual malice
  4. Public Disclosure of Private Facts: private info, highly offensive to reas person

+ proximate causation by D’s conduct

6
Q

Misrepresentation

A
  1. Intentional misrepresentation
    - misrepresentation of material fact
    - scienter (D knew/believed statement false)
    - intent to induce P’s reliance
    - causation (actual reliance)
    - justifiable reliance
    - damages (actual pecuniary loss)
  2. Negligent misrepresentation
    - misrepresentation by D in a business/professional capacity
    - breach of duty to P
    - causation
    - justifiable reliance
    - damages
7
Q

Interference with business relations

A
  1. valid K relationship or business expectancy by P
  2. D knows of relationship/expectancy
  3. intentional interference
  4. damages

Defenses:

  1. competitor’s privilege
  2. financial interest privilege
8
Q

Misuse of legal proceedings

A
  1. Malicious Prosecution (prosecutors exempt)
    - institution of criminal proceeding against P
    - terminating in P’s favor
    - no probable cause
    - improper purpose
    - damages
  2. Abuse of Process
    - wrongful use/process
    - ulterior purpose
    - act or threat against P
9
Q

Negligence

A
  1. Duty to conform to a specific standard of conduct
    - duty of care is owed to all foreseeable Ps.
    - Cardozo: foreseeable P are those located in the zone of danger
    - Andrews: all Ps are foreseeable Ps
  2. Breach of duty
  3. Actual cause
    - but for test
    - substantial factor (both Ds caused harm)
    - alternate causes (both Ds negligent but only one D caused harm, burden shifts to Ds)
  4. Proximate cause
    - D is liable for all foreseeable harmful results
  5. Damages
10
Q

Standard of care

A
  1. general rule - reas person
  2. children
    - subjective standard
    - child of like age, education, intelligence and experience
  3. professionals
    - knowledge/skill of a member of same profession in similar circs
    - doctors: must disclose risks
  4. common carriers - higher standard if P is guest
  5. trespassers:
    - undiscovered: no duty
    - discovered/anticipated: warn/make safe artificial, highly dangerous conditions known to landowner
  6. attractive nuisance:
    - dangerous condition on land owner is/should be aware of;
    - owner knows/should know children frequent vicinity of condition;
    - condition likely to cause injury;
    - expense of fixing < risk of harm
  7. licensees: (enter for own purpose or business)
    - warn/make safe known dangerous conditions
    - licensee unlikely to discover
    - exercise reas care of “active operations” on property
  8. Invitees: (enter for owner’s purpose) - licensee duty + reasonable inspections and make safe
11
Q

Negligence per se

A

Conclusive presumption of duty + breach of duty if:

  1. violation of statute;
  2. P within protected class; and
  3. statute designed to prevent type of harm suffered by P.

Excused if:
A. compliance would cause more harm than violation; or
B. compliance beyond D’s control.

12
Q

Negligent infliction of emotional distress

A

D engages in negligent conduct that causes P to suffer serious emotional distress

P in zone of danger:

  1. threat of physical impact or severe emotional distress
  2. physical symptoms from distress

Bystander:

  1. injured party is close relative
  2. P present at scene
  3. P personally observes D cause injury
  4. physical symptoms from distress
13
Q

Affirmative duties to act

A
  1. assumption of duty by acting
  2. peril due to D’s conduct
  3. special relationship between parties
14
Q

Res Ipsa Loquitor

A

Breach of duty if:

  1. accident causing injury is type not normally occur unless someone is negligent; and
  2. negligence is attributable to D (D has exclusive control over instrumentality causing injury)
15
Q

Defenses to negligence

A
  1. contributory negligence - P’s negligence complete bar to recovery
  2. assumption of the risk
    - P know risk
    - voluntarily proceeded in face of risk
  3. comparative negligence
    - pure: recover based on % fault
    - partial: recover only if P’s fault < D’s
16
Q

Strict liability

A

Prima facie case:

  1. absolute duty to make safe b/c D’s dangerous activity;
  2. D’s dangerous activity actual and prox cause of P’s injury; and
  3. P suffered damage.

Wild animals:

  • to licencsees and invitees
  • unless P instigated/caused injury

Trespassing animals

Domestic animals: only if D knows/should know animal’s abnormally dangerous propensities

Abnormally dangerous activities:

  • foreseeable risk of serious harm
  • even when reas care exercised; and
  • uncommon activity in community
17
Q

Products liability theories of liability

A

MUST SHOW:

  • defect
  • existence of defect when product left D’s control
  1. Types of product defects
    - manufacturing defect: different and more dangerous than properly made product
    - design defect: product has dangerous propensities
    - - test: product fails to perform as ordinary consumer would expect
    - - test: D could make safer w/o serious impact on price and utility
    - inadequate warnings
    - - D knew of risks, not apparent to users
    - - failed to adequately warn consumers
  2. intentional tort (i.e. battery)
  3. negligence (duty, breach, causation, injury)
  4. strict liability
    - D is commercial supplier of product
    - breach - product defective when left D’s control
    - causation (actual and proximate cause)
    - damages
    - defenses
    - - contributory negligence - no defense if P failed to discover defect or misuse was foreseeable
    - - assumption of the risk: ok
    - - comparative negligence: ok
  5. implied warranties
    - merchantability: goods are average quality and fit for ordinary purposes used.
    - fitness for a particular purpose: sell knows purpose and buyer is relying on seller’s skill and judgment in selecting goods.
    - defenses
    - -. assumption of risk
    - - contributory neg
    - - failure to give notice of breach
  6. representation theories (express warranty and misrepresentation)
18
Q

Nuisance

A
  1. Private nuisance
    - substantial, unreasonable interference
    - w/ P’s use and enjoyment of property
    - to average person in community (no hypersensitivity)
  2. Public nuisance
    - unreasonable interference
    - with health, safety or property rights
    - of the community
  3. Remedies
    - damages
    - injunctive relief
    - abatement by self-help
  4. Defences
    - legislation (persuasive, not absolute)
    - conduct of others (only liable for damage D caused)
    - assumption of the risk/contributory negligence
    - coming to the nuisance (only if P purchased land for sole purpose of lawsuit/harassment)
19
Q

Vicarious liability

A
  1. respondeat superior
    - employer & employee relationship
    - within scope of relationship
    - - detour: minor deviation (wihtin scope)
    - - frolic: major deviation (outside scope)
  2. independent contractors, liability only if:
    - inherenly dangerous activity; or
    - non-delegable b/c of public policy
  3. partners/joint venturers - if within scope and course of the affairs
  4. automobile - not liable except:
    - family car doctrine
    - negligent entrustment
20
Q

Multiple tort defendants

A

each D joint and several liability for all damages

21
Q

Tort damages

A
  1. actual
  2. definite and certain
  3. duty to mitigate - reas steps to reduce harm