Torts Flashcards
Assault
(i) an attempt to commit a battery, or (ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm
Battery
battery requires plaintiff to prove (i) an act by defendant that brings about a harmful or offensive contact to the plaintiff’s person, (ii) intent on defendant’s part to bring about harmful or offensive contact, and (iii) causation
Trespass to Chattel
(i) an act of defendant that interferes with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages. The act of interference may be either dispossession of or damage to the chattel.—Damages = replevin or repair costs
Necessity Defenses
Private—not liable for trespass but will be liable for damages to property (themselves, family, or 1 person of community)
Public—absolute defense (to save members (non-family) of the community)
IIED
Extreme and outrageous conduct—YES, high likelihood that they will suffer extreme distress.
Physical injury NOT required.
Interference with Business Relations
(i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant’s knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff
Negligence
(i) the existence of a duty (owe a duty of reasonable care to everyone) on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable risk of injury, (ii) breach of that duty by the defendant, (iii) that the breach of duty was the actual and proximate cause of plaintiff’s injury, and (iv) damage to plaintiff’s person or property
Although the extent of precautions necessary may not be as great when the defendant’s conduct poses a risk of harm only to property and not to persons, the same general rules of negligence apply.
Rescuers
Rescuers are always foreseeable actors. Only liable for injuries if they don’t do so in a manner in which a reasonably prudent person would.
Negligent Hiring/Supervision—Right to Indemnification
Parents can be liable, however, for their own negligence, i.e., in not exercising due care under the circumstances.
Can be held for frolic/outside scope if gave means to commit the tort
Where one is vicariously liable for the torts of another, the former has a right of indemnity against the latter.
Prox Cause
whether or not the cause was foreseeable. Usually criminal acts break the causation unless put in dangerous area
Pure Comparative Negligence
Held to proportional share of liability (default)
Dramshop Acts
create a cause of action in favor of any third person injured by the intoxicated vendee.
Emotional Distress
most states allow recovery only if: (i) the plaintiff and the person injured by the defendant are closely related; (ii) the plaintiff was present at the scene of the injury; and (iii) the plaintiff personally observed or perceived the event.
Distress flowing from fear for her own safety, but she may prevail only if the defendant’s negligence placed her in a zone of danger
RIL
While res ipsa loquitur is not generally available where more than one person may have been in control of the instrumentality causing the injury, it is available in a case where a particular defendant had the power of control over the site of the injury.
Defective Products
Prove breach of duty in products liability case based on negligence P must show: (i) negligent conduct by D leading to (ii) the supplying of a defective product by D
May invoke res ipsa to show negligence—to rely on this, P must show the injury is the type that would not normally occur absent negligence and it usually occurse because of the manu’s negligence.
SL
Defective products; Wild Animals; Dangerous Activities—if injured while running then still SL
Defamation
(i) defamatory language on the part of the LIVING defendant; (ii) the defamatory language must be “of or concerning” the plaintiff (i.e., it must identify the plaintiff to a reasonable reader, listener, or viewer); (iii) publication (means communication of falsehood) of the defamatory language by the defendant to a third person; and (iv) damage to the reputation of the plaintiff.
Best defense is truth
Qualified Privilege
As a former employer responding to queries of a prospective employer about a job applicant, the doctor has a qualified privilege. Such a privilege is not absolute; it exists only if exercised in a reasonable manner and for a proper purpose
Or if asked by P about their opinion
Privacy—False Light
following elements must be proved: (i) publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye; and (ii) the “false light” must be something that would be highly offensive to a reasonable person under the circumstances
Privacy—Public Disclosure of Private Facts
(i) publication or public disclosure by D of private info about P and (ii) the matter made public is such that its disclosure would be highly offensive to a reasonable person—as long as made without actual malice, case may be privileged if matter of legit public interest
Reasonable mistake about consent not a valid defense
Nuisance
o Private: substantial interference with P’s use and enjoyment of their land
o Public: Everyone in community experiences
o Defense: Hyper sensitive P
o Coming to the nuisance is not a defense
o Q80: Hypersensitive P is a defense; ordinary sensibilities would not be disturbed.
Dr/Patient
o If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the health care professional has breached this duty. However, breach of duty is only one element of a cause of action for negligence. The plaintiff must also establish actual and proximate cause and some damage to plaintiff’s person or property. Damage means actual harm or injury. Unlike for some intentional torts, damage will not be presumed and nominal damages are not available.
Complete absence of consent to a medical or surgical procedure may often constitute battery, which does not require damage as an element. However, a nondisclosure of the risks of the procedure is characterized instead as a breach of the duty of care.
