Flashcards in Torts Deck (68):
if a defendant desires to produce a legally forbidden consequence then the intent is there even if a different consequence results or a different person is injured.
an intentional infliction of a harmful or offensive bodily contact.
1. An Act by Defendant creating Reasonable apprehension in plaintiff's person;
2. Of immediate harmful or offensive contact to plaintiff's person;
3. Intent; and
Occurs where the defendant intentionally causes the plaintiff to be confined, restrained, or detained to a bounded area with no reasonable means of escape, of which the plaintiff is either aware or harmed.
Intentional Infliction of Emotional Distress
the intentional or reckless infliction of severe emotional or mental distress caused by defendant's extreme and outrageous contract.
Trespass to Land
intentional physical invasion of the land of another.
Trespass to Chattels
1. An intentional act by defendant that interferes with plaintiff's right of possession in a chattel;
2. Causation; and
1. An act by defendant that interferes with plaintiff's right of possession in a chattel;
2. the interference is so serious that it warrants requiring defendant to pay the chattel's full value;
3. Intent; and
Defenses to Intentional Torts
1. Expressed Consent
2. Implied Consent
3. Self- Defense
4. Defense of Others
5. Defense of Property
6. Public Necessity
7. Private Necessity
Literal words spoken by plaintiff giving the defendant permission to act in a way that would be a tort.
implied consent from custom. or
Consent based on a defendant's reasonable interpretation of plaintiff's objective conduct. (Body language Consent)
Where the defendant has interfered with the property in an emergency but has done so to protect the community as a whole or a significant group of people.
When the defendant invades plaintiff's property in an emergency to protect an interest of his own. (not a complete defense)
1. The defendant makes a defamatory statement about the plaintiff
2. The defendant publishes the statement
Affirmative Defenses to Defamation
3. Absolute Privileges
4. Qualified Privilege
Defamation involving matter of public concern
1. The defendant makes defamatory statement
2. the defendant publishes the statement
Slander Per Se Categories
1. Adversely reflect's one's conduct in a business or profession;
2. one has a loathsome disease;
3. one is guilty of a crime of moral turpitude; or
4. A woman is unchaste.
The written or printed publication of defamatory language including radio and television programs
Malice for Defamation
Knowledge that the statement was false or Reckless disregard as to whether it was false.
Unauthorized use of plaintiff's picture or name for defendant's commercial advantage
where one attributes to plaintiff views he does not hold or actions he does not take. Must be something highly offensive to a reasonable person under the circumstances.
1. Misrepresentation of material fact
2. scienter- the defendant knew or believed the statement was false or that there was no basis for the statement;
5. Justifiable reliance
Arises when a someone enters a piece of real estate and gets hurt by a static condition on the property
Duty owed to Undiscovered Trespassers
No duty is owed
Duty owed to Discovered or Anticipated Trespassers
1. warn of or make safe concealed, artificial conditions known to the landowner involving risk of death or seriously bodily harm and
2. use reasonable care in the exercise of "active operations" on the property
A person who enters the property with permission of the possessor but they do not confer any economic benefit on the possessor ex. social guest
Duty owed to Licensee
1. Warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee an that the licensee is unlikely to discover; and
2. exercise reasonable care in the conduct of "active operation" on the property.
People who enter land with permission and confer economic benefit to possessor or the property is open to the public generally.
Duty owed to Invitee
Duty owed to protect from any condition that is
1. concealed from the invitee and
2. the possessor knew of the condition in advance or could have discovered through reasonable inspection.
Negligence Per Se
1. Plaintiff must show that the he is a member of the class of persons that the statute is trying to protect and
2. the plaintiff has to show that the accident falls int he class of risks that the statute was trying to protect
**** violation of a statute may be excused where compliance would be beyond the defendant's control.
Negligent Infliction of Emotional Distress (Near Miss Cases)
1. Plaintiff must show that he was in the zone of danger and
2. Plaintiff must show he suffered subsequent physical manifestations of emotional distress
Negligent Infliction of Emotional Distress (Bystander cases)
1. Plaintiff was closely related to the injured person and
2. Plaintiff must be physically present and see the victim get hurt in real time.
Negligent Infliction of Emotional Distress (Relationship Cases)
Plaintiff and Defendant are in a pre-existing business relationship where careless performance will foreseeably cause distress.
Resp Ipsa Loquitor
The plaintiff does not know actual conduct was must show:
1. the accident is a type normally associated with negligence and
2. Defendant has control over the injury causing instrumentality
"But For Test" - But for the breach plaintiff will be uninjured today.
A defendant generally is liable for harmful results that are the normal incidents of an within the increased risk caused by his acts (foreseeability test)
Affirmative Defenses to Negligence
1. Contributory Negligence
2. Assumption of Risk
3. Comparative Negligence
4. Modified or Partial Comparative Negligence
Negligence on the part of the plaintiff that contributes to her injuries. Completely bars plaintiff's right to recovery (minority view)
Assumption of Risk
Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have
1. known of the risk and
2. voluntarily proceeded in the face of the risk
Pure Comparative Negligence
Defendant shows that the plaintiff failed to exercise reasonable care for their own safety. Allows no recovery no matter how great or small the plaintiff's negligence was. (minority view)
Partial Comparative Negligence
Defendant shows that the plaintiff failed to exercise reasonable care for their own safety, the jury will award a percentage and the plaintiff's recovery will be reduced based on their amount of fault.
Liability for Abnormally dangerous activities
Strictly liable if:
1. the activity creates a foreseeable risk of serious harm even when reasonable care is exercised and
2. the activity must not be common in the place where defendant conducts it.
Products Liability -Strict Liability (Elements)
1. strict duty owed by commercial supplier
3. Actual and proximate causation
Defects for Products Liability
1. Manufacturer Defect
2. Design Defect
3. Information Defect
The product differs from all the others that came off the assembly line in a way that makes it more dangerous than consumers would expect, or when it departs from its original design.
There is another way that could have been built.
1. alternative design must be safer than the version that was actually sold
2. Alternative design must be economical and
3. Alternative design must be practical
A product cannot be physically redesigned and still has residual risks that consumers would not be aware of and it lacks warning about those risks.
a substantial, unreasonable interference with another private individual's use or enjoyment of his land or land in which he has an interest
Someone commits a tort and the victim wants to sue a second defendant unrelated to the injury.
Relationships for Vicarious Liability
2. Hiring Party/Independent contractor
3. Owner of a car/ driver of a car
Loss of Consortium
Uninjured Spouse gets causes of action for:
1. Loss of Services
2. Loss of Society
3. Loss of Sex
Theories of products liability
3. Strict liability
4. Implied warranties of merchantability and fitness for a specific purpose
5. Expressed warranties and misrepresentation
3 ways to satisfy intent for IIED
1. Desire & purpose to cause emotional distress; or
2. with knowledge with substantial certainty that emotional distress will result; or
3. extreme and outrageous conduct is that beyond all possible bounds of decency.
Recapture of Chattels
A property owner has the general right to use reasonable force to regain possession of chattels taken by someone else.
Shopkeepers have privilege to temporarily detain individuals whom they reasonably believe to be in possession of shoplifted goods.
Defendant's conduct imposes an unreasonable risk upon another, which results in injury to that other person. Plaintiff must prove, duty, breach, causation and actual damage.
Duty of Care
A person has a duty to act as a reasonable person. Discuss Standard of Care and if Foreseeable plaintiff.
an express warranty is any statement of fact or promise concerning goods.
Implied Warranty of Merchantability
An implied warranty of merchantability is implied in every sale of goods that they are fit for the ordinary purposes for which the goods are used.
Warranty of Fitness for Particular Purpose
implied in every sale of goods when the seller knows or has reason to know that the buyer wants the goods for a particular purpose and the buyer relies on the seller's judgment to recommend a suitable product.
A substantial, unreasonable interference with the health, morals, welfare, safety or property rights of the community.
Publicity of Private life
the public disclosure of private facts that re not a matter of legitimate public concern, the release of which is objectionable to a reasonable person where the disclosure is communicated to the public at large.
if an employee commits a tort during the course of the scope of his employment, his employer will be jointly liable with the employee.
Joint and Several Liability
exists where two or more negligent acts combine to proximate cause an indivisible harm, making each defendant liable for the entire harm.
allows a defendant who pays more than his pro rata share of responsibility to obtain reimbursement form another defendant.