Torts Flashcards
(230 cards)
1
Q
What are the elements of an intentional tort?
A
- Voluntary act
- Intent
- Causation
- Harm
- Lack of defense
2
Q
Example: Dex hits Pop during an epileptic seizure. What is this an example of?
A
Involuntary act. A defendant is not liable in tort for acts that are not voluntary.
3
Q
How do you establish intent for intentional torts?
A
Defendant either: (i) desires that his act will cause the harmful result described by the tort, or (ii) knows that it is substantially certain that such a result will occur.
4
Q
When a D desires that his act will cause the harmful result … what does this establish?
A
Intent.
5
Q
When a D knows that it is substantially certain that such a result will occur from his act … what does this establish?
A
Intent.
6
Q
What is the rule regarding incompetency and intentional torts?
A
The fact that a D is mentally incompetent or a minor DOES NOT preclude a finding that he possessed the intent to commit an intentional tort, but incompetency may affect whether intent existed.
7
Q
What is transferred intent?
A
If a Defendant acts with thenevessary intent to inflict certain intentional torts, but for some reason causes injury to a different victim than intended, intent is transferred to the actual victim.
8
Q
Example: Dan swung a bat, intending to strike Astrid. However, Astrid ducked and Dan hit Paul. What is this an example of?
A
Transferred Intent
9
Q
What are the elements of intentional torts?
A
A voluntary act, with intent, causation and harm, that lacks a privilege or defense.
V.I.C.H and no defense.
10
Q
What intentional torts does transferred intent apply to?
A
Battery, Assault, False imprisonment and trespass to land or chattels.
11
Q
Does transferred intent apply to battery and assault?
A
Yes.
12
Q
Does transferred intent apply to false imprisonment or trespass to chattels?
A
Yes.
13
Q
What is causation?
A
As to intentional torts, the Defendant’s act or a force set in motion by that act must cause the plaintiffs injury.
14
Q
What is battery?
A
An intentional act that causes a harmful or offensive contact with the plaintiff or with something closely connected thereto.
15
Q
An intentional act that causes a harmful or offensive touching with plaintiff - what does this define?
A
Battery.
16
Q
What is required for intent to commit battery?
A
Defendant must either (i) desire to cause an immediate harmful or offensive contact, or (ii) know such contact is substantially certain to occur.
17
Q
True or False: Knowledge that Defendant’s act is substantially certain to cause immediate harmful or offensive touching is sufficient intent for intentional tort?
A
True.
18
Q
True or False: Knowledge that Defendant’s act is substantially certain to cause harmful or offensive touching at some point in future is sufficient intent for intentional tort.
A
False. Harmful or offensive touching must be IMMEDIATE.
19
Q
Example: Dagwood intentionally swings his first into Paul’s face, intending to hit Paul. What has Dagwood done?
A
Committed battery.
20
Q
What is required to satisfy the harmful or offense touching element of battery?
A
(i) Inflicts impairment of bodily function or pain
(ii) Reasonable person regards it as offensive.
21
Q
An act is considered offensive by a reasonable person - does it meet the “harmful or offensive contact” element required to commit battery?
A
Yes
22
Q
Does the plaintiff need to be aware of touching to commit battery?
A
No. Plaintiff need not be aware of contact for D to commit battery.
23
Q
Is it sufficient for battery if the D causes a contact with something close the P, like D snatching hat from P’s hand?
A
Yes
24
Q
Example: Ryan intentionally spits on Prudence while she is asleep. Several weeks later, P learns of Ryan’s act, is Ryan liable for battery?
A
Yes
25
What are the elements of Assault?
An assault is an intentional act that causes the P to experience a reasonable apprehension of an immediate harmful or offensive contact.
26
If P is in reasonable apprehension of an immediate harmful or offensive touching - what is the likely tort claim?
Assault.
Intentional act + causes P to experience reasonable apprehension of an immediate harmful or offensive contact.
27
What is the proper definition of intent for assault?
The D must act with the desire to cause an immediate harmful or offensive contact or the immediate apprehension of such contact, or know that such a result is substantially certain to occur.
28
If D acts with knowledge that an immediate harmful or offensive contact is substantially certain to occur - what tort?
Assault.
29
True or False: Liability for assault will not be found where reasonable person in the same position would have experienced the same apprehension?
False.
Assault lies on reasonable person in same position would have experienced the same apprehension.
30
True or False: If P's apprehension reasonable, the fact that D lacked actual ability to cause harmful or offensive touching does defeat liability.
False.
Key is apprehension, even if D lacked ability to cause actual harmful or offensive touching.
31
Example: An assault is committed if D points an unloaded gun at Paulson and Paulson had reason to believe the gun was loaded?
Yes, this is assault.
32
True or False: Reasonable apprehension is satisfied if the contact threatened would (i) inflict pain or impairment of body or (ii) if reasonable person would regard as offensive?
True
33
Ex. D holds a knife to P's throat and threatens to hurt her. What is he guilty of?
Assault and Battery
34
D robs a bank and points a gun at the hostages yelling "everyone lie down and keep quiet or I'll shoot". What is D guilty of?
Assault.
Intentional act that causes reasonable apprehension of an immediate harmful or offensive touching.
35
What is the definition of false imprisonment?
An intentional act that causes a plaintiff to be confined or restrained to a bounded area against the plaintiffs will, and the plaintiff knows of the confinement or is injured thereby.
36
If P is confined or restrained to bounded area against their will, what is D likely guilty of?
False imprisonment.
37
What are the elements of false imprisonment?
Intentional act that causes,
P to be confined to bounded area against P's will, and
P knows of confinement.
38
What is required to prove intent to commit false imprisonment?
(i) D desires to confine ot restrain P to bounded area, or
| (ii) knows that such confinement is virtually certain to occur.
39
True or False: P may be confined by use of physical barriers? And what tort is likely?
True - False Imprisonment
40
True or False: P may be confined by failing to release the P where the D has a legal duty to do so?
True - False Imprisonment
41
True or False: P may be confined by D's invalid assertion of legal authority?
True - False Imprisonment
42
Is a minimum duration requirement to support a claim for false imprisonment?
No - no duration is required, a very brief confinement will suffice.
43
What are the elements of defamation?
P must establish that the D (i) published defamatory material (ii) concerned P (iii) that causes reputational damage.
One must check for:
1. Defamatory message
2. Certain pleading problems
3. Publication of the message
4. the type of defamation
5. damages
6. Common law defenses and
7. Constitutional issues
44
What is the definition of "defamatory message"?
A message is defamatory if it lowers a plating in the esteem of the community or discourages a third person from associating with him.
45
What is key element that defamatory message is actionable?
Causes third persons to avoid contract with P. Or in the case of businesses - causes persons to stop doing business with the entity.
46
What action is the most to be defamatory?
Statements.
47
True or False: Expressions of opinions are never actionable for defamation?
False. However Expressions of opinion which imply that the speaker knows certain facts to be true, or imply such facts exist, MAY be actionable for defamation.
TEST: Would a reasonable person consider it as fact? Examine whether it is more specific or detailed.
48
Example: Is this a likely case to support defamation claim? "In our opinion, Paxton was involved in the planning of the Kennedy assassination."
Yes. The paper may be subject to defamation claim because the opinion is specific.
49
Example: Is this a likely case to support defamation claim? "Paxton was once a very stylish dresser, but this year his clothes seem drab."
No. A reasonable person would not likely disassociate with Paxton over this.
50
What are the four key points when analyzing whether a statement is defamatory?
1. Lowers plaintiff in esteem of community
2. Has required injurious effect on any substantial minority of reasonable people
3. Understood by person who receives it, and
4. A statement (though also examine opinions which imply the fact exists).
51
True or False: To bring an action for defamation, the party suffering the defamation must be living or existing organization?
True. A defamatory message published about a third person is actionable only to the extent it also defames the plaintiff.
52
Example: A sports writer published an article stating all 20 members of the university football team used illegal steroids - is there an actionable defamation claim?
Yes. Each member of team is permitted to bring an action against sports writer.
53
What is the analysis for defamation claims made against groups of people?
Typically a claim about a group does not create a right of action for all members of group. The circumstances should indicate to a reasonable person that a particular plaintiff is subject of the defamatory message.
Key - individuals must be able to make claims on their own. Small groups where all are implicated clearly could meet this test.
54
True or False: A defamatory statement is typically a spoken or written statement.
True.
55
Example: The Daily states that the longest serving torts professor at Acme School of Law does not know the difference between battery and assault. What is necessary to support a claim of defamation?
The professor must proof that he is the longest serving torts professor at Acme to proceed in his claim.
56
True or False: If a Plaintiff is not specifically named in a alleged defamatory statement, the claim automatically fail.
False. The plaintiff can alleged through proof (colloquium ) that some people will interpret the communication to be about him specifically.
57
Example: A defendant makes a defamatory to the plaintiff and no one else is in the vicinity to hear the statement - does the plaintiff have an actionable claim for defamation?
No. It is not actionable to utter a defamatory messaged to the plaintiff alone.
58
True or False: If it is reasonably foreseeable that a third person might overhear a message - there is sufficient publication (defamation).
True. A message is published if D negligently permitted it to be communicated to third persons.
59
True or False. A defendant who originates the defamatory message and it is only repeated by third parties is not liable for defamation.
False. If the D originates the statement, and others repeated it, D may still be liable to P.
All persons who participate in originating a defamatory message are liable as primary publishers.
60
Example: The author of a book defamatory to a plaintiff submitted it to an editor for editing and a publisher for distribution. Who is likely liable as defendants?
The author, the editor and the publisher are all liable as primary publishers.
61
Example: A bookseller sold a book by an author that contained a clear defamatory statement against P. Is the bookseller liable?
Only it the bookseller had KNOWLEDGE the material distributed contained the defamatory message.
62
What are the two types of defamation claims?
1. Libel
| 2. Slander
63
What type of defamation claim is typically spoken?
Slander. Today, a defamatory message not preserved in permanent form is classified as slander.
64
What type of defamation claim is typically written?
Libel. Today, a defamatory messaged embodied in any relatively permanent form is a libel.
65
What is libel per quod?
Libel, where it is not apparent on the face of the communication that it is defamatory.
66
What is slander per se?
A type of slander historically regarded as so harmful that it was presumed that the plaintiff suffered damaged from the very fact of its utterance.
67
What are 4 examples of slander per se?
1. slander that alleged crime involving moral turpitude or infamous punishment.
2. Allegations that P has loathsome disease. Ex. incurable/gross - Leprosy.
3. slander which imputes to the P behavior or characteristics that are INCOMPATIBLE with the proper conduct of business/profession/office.
4. falsely impute unchastity to a woman.
68
True or False. Allegations of insanity or tuberculosis have been held as slander per se.
False.
Slander per se - mere utterance causes plaintiff damage. Typically allegations of loathsome disease are an example, but such disease must persist overtime.
69
What factors distinguish libel from slander?
1. Permanence of form,
2. Area of dissemination, and
the extent to which the message was planned vs. spontaneous.
70
What type of damages are recoverable to defamation?
1. Pecuniary (quantifiable monetary losses suffered)
2. General (non pecuniary aspects of injury, such as humiliation)
3. Punitive (assessed against D as punishment).
71
What are the common law defenses to defamation?
1. Truth
| 2. Absolute privilege
72
What are examples of absolute privilege?
Absolute privilege is a defense to defamation. Examples include:
1. Legislator on the floor.
2. Participant in judicial proceedings where statement is reasonably related.
3. Officials in the course of their duties & relevant
4. Defamatory message commented by one spouse to another.
73
What is a qualified privilege?
Regarding defamation, a defendant is not held liable for otherwise defamatory message he utters unless he loses the privilege.
74
What are the constitutional issues concerned defamation?
Free speech
75
Does the nature of a plaintiff potentially alter the analysis of a possible defamation claim?
Yes. Public officials -- Plaintiff must establish malice before any recovery.
76
What is required to prove defamation against public officials.
Malice, defined as knowing falsity or recklessness as to the truth of falsity.
77
What is the definition of malice and what tort does it typically relate.
Malice --> knowing falsity or recklessness as to the truth.
| It is required to proof defamation claim against public official.
78
What is the definition of a "public official" with respect to defamation claims?
Person who either:
1. Achieved pervasive fame or notoriety (celebrity), or
2. Voluntary injected himself into a particular public controversy.
79
What is the definition of public nuisance?
An unreasonable interference with a right common to the general public.
80
What is the definition of a private nuisance?
A thing or activity that substantially and unreasonable interferes with the plaintiffs use and enjoyment of her land.
81
Private nuisance - what is required to meeting interference element?
Interference must be substantial -- This means that it must be offensive, inconvenient or annoying to an average person in the community.
82
True or False. A plaintiff can, by devoting his land to an unusually sensitive use, complain of a nuisance based on conduct that would otherwise be harmless.
False.
83
What is the definition of unreasonable interference with respect to nuisance claims?
1. Gravity of harm outweighs the utility of D's conduct, or
2. If intentional, the harm caused by the D's conduct is substantial and the financial burden of compensating for this and other harms does not render unfeasible the continuation of conduct.
84
True or False. Private nuisance claims required a physical intrusion?
False. Not required (sound and smell could potentially interference with P's use and enjoyment of land).
85
True or False. A trespass is an invasion of plaintiff's interest in the exclusive possession of land.
True.
86
Example. A is a writer. Everyday she writes in the morning. Her neighbor Callie, calls her every morning. Is this a private nuisance?
Likely no.
87
Example: A is a writer. Everyday she writes in the morning. Her neighbor Callie, calls her 15 times every morning, even after A said not to. Is this a private nuisance?
Likely yes.
88
Private nuisance requires property rights, what are typical examples of those who have property rights?
1. Possessors of land,
2. Owners of easements and profits in the land, and
3. Owners of non-possessory estates in the land that are detrimentally affected by interferences with its use and enjoyment.
89
True or False: Owners of a non-possessory estate in the land that are detrimentally affected by interferences are eligible to bring a claim of private nuisance?
True.
90
There are two cases when a defendant is subject to liability for private nuisance - what are they?
Only if his conduct is a legal cause of invasion of another's interest in the private use and enjoyment of land AND the invasion is either:
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent and reckless conduct.
91
Exam Tip: What is the likely question when evaluating private nuisance?
Whether the D's conduct was REASONBLE OR UNREASONABLE.
92
Exam Tip: What is the test for evaluating reasonableness with respect to D's conduct and a private nuisance claim?
Weighing the gravity of harm done to P against the utility of D's activity.
93
What are the defenses to nuisance claims?
1. Contributory Negligence
2. Assumption of Risk
3. Coming to the Nuisance
4. Compliance with Statute
94
What is the definition of contributory negligence with respect to nuisance claims?
When a nuisance results from negligent conduct of the defendant, the contributory negligence of the P is a defense to the same extent as other negligence claims.
95
True or False: Contributory negligence is a defense to intentional or reckless harms?
False. When the harm is intentional or the result of recklessness, contributory negligence IS NOT a defense.
96
When is contributory negligence a defense to nuisance resulting from abnormally dangerous conditions?
Only where the plaintiff has voluntarily and unreasonably subjected himself to the risk of harm, then contributory negligence can be used as a defense.
97
What is the typical remedy for nuisance claims?
Damages.
98
True or False: A court will not grant injunctive relief with respect to nuisance claims.
False. Where the legal remedy is inadequate, the court may grant injunctive relief.
The court will balance the equities, including:
1. relative economic hardship to the parties, and
2. public interest in the D's activity continuing.
99
What is the definition of an injunction?
A court order directed to a person or entity, usually to refrain from doing a particular act.
100
When is injunctive relief available as a remedy?
When money damages would not afford adequate relief.
101
Example: is injunctive relief typically a primary remedy in civil rights litigation?
Yes - be cause a deprivation of the individuals constitutional right is not deemed remediable by money damages.
102
When is injunctive relief typically unavailable?
1. Stay court proceedings (unless necessary to prevent a multiplicity of proceedings)
2. Enforce the criminal laws other than those that restrain a public nuisance, or
3. Prevent a breach of contract that is not specifically enforceable.
103
What factors are typically applied when determining with TROs or preliminary injunctions are appropriate?
1. Is the plaintiff likely to succeed on the merits of the underlying claim?
2. The complaint shows the plaintiff is entitled to relief demanded.
3. Denial of injunctive relief would produce waste or great irreparable injury, and
4. Public interest.
104
What is required for a permanent injunction?
P must have prevailed on the substantive claim and shown a need for continuing protection to be eligible.
105
What is the definition of intentional infliction of emotional distress (IIED)?
An intentional or reckless act amounting to extreme and outrageous conduct that causes the P severe mental distress.
106
What mental state is required for D to be guilty of IIED?
D must act with INTENT TO CAUSE SEVERE MENTAL DISTRESS or be reckless in creating the risk of emotional distress.
107
If D acts with recklessness in creating the risk of emotional distress - does this meet mental state required for IIED?
Yes. Recovery is allowed where D acts RECKLESSLY, meaning that the D acts with deliberate disregard of a high degree of probability that emotional distress will follow.
108
IIED: What is rule regarding D's recklessness?
D acted with deliberate disregard of a high degree of probability that emotional distress will follow.
109
True or False: With respect to IIED, reckless conduct is less wrongful than intentional conduct.
False - for this tort only. Recovery is allowed because the D acted recklessly, acting with deliberate disregard of high probability that emotional distress will follow.
110
What is considered "extreme and outrageous conduct"?
An element of IIED.
D's conduct is beyond the bounds of decency - conduct that a civilized society will not tolerate.
111
True or False: Offensive and insulting language is generally considered extreme and outrageous conduct?
False. EXCEPT:
1. Common carriers, innkeepers or
2. Plaintiffs with known sensitivity: Elderly, children or pregnant women.
112
Example: D does not like children. For fun, he decided to dress up like a monster and shout "I am going to eat all your little children" at a kindergarten class. What result when analyzing for IIED?
His conduct may be considered EXTREME AND OUTRAGEOUS because children have a known sensitivity.
Elements of IIED:
(a) Intentional or reckless act
(b) that amounts to extreme and outrageous conduct
(c) that causes severe mental stress.
113
True or False: A P will recover for IIED when receiving offensive insults made by one position in a position of authority at work.
True. Extreme and Outrageous conduct by a workplace supervisor is likely to support claim of IIED.
114
What is required to prove severe mental distress? (IIED)
P must prove that distress is more than reasonable person would ensure.
Must be substantial.
115
True or False: To claim IIED, a P must show actual physical injury.
MBE: False. Most states no longer require the P to show actual physical injury accompanied with severe emotional distress.
116
Can a Plaintiff recover for IIED where D's conduct is directed at a third party?
Yes (where other elements of tort are met).
1. Immediate family member or close relative AND P is present at time and D is aware of P's presence. or
2. Regardless of relationship and distress results in bodily harm and D is aware of P's presence.
117
What is required for a third party plaintiff to recover for IIED for family member/close relative?
P is immediate family member/close relative,
present at time, and
D is aware of P's presence.
118
Can third party P recover for IIED if D causes severe emotional distress to unrelated third party?
Yes, if third party is present (meaning P is on the scene) and such distress results in bodily harm, and D is aware of P's presence.
119
What are the elements of trespass to land?
An intentional act that causes physical invasion of the P's land.
120
What intent is required for trespass to land?
D acts with intent to cause physical invasion of particular piece of land (not the specific intent to invade P's land).
121
True or False: D made intentional entry to P's land but did not realize he had crossed a boundary, it was purely an accident. D is not guilty of trespass to land.
False. Mistake is not a defense to a trespass action.
122
True or False. Pam is a renter on property X. Dan mistakenly crossed into property X to pick apples, believing that the apple tress were on his side of the property line. Dan is guilty of trespass and Pam can bring the action.
True.
1. Mistake is not a defense.
2. Pam is in actual possession of the land.
123
What is required for plaintiff to bring a action for trespass?
Plaintiff must be in actual possession of have the right to immediate possession of that land.
**Ownership is not required. Possessor or lessee may maintain such action.
124
True or False: Barney is the owner of Property Z, he has rented to Pam for 5 years. Barney has not set foot on the land in 10 years. When Barney here's Dan has crossed onto his land, it brought up old feelings and he is within his right to bring a trespass claim.
False. A person who holds legal titled to the land is not in possession, that person may not maintain a trespass action as to that land.
125
True or False: Regarding trespass to land, where D enters or causes a third person or object to ender onto P's land - D has met element of Physical Invasion?
True. This includes when D enters onto land lawfully but fails to leave under legal duty and failure to remove an object from P's land when under legal duty to do so.
126
Example: Paul calls can and asks him to remove a basement that Don accidentally hit onto P's land - is Don guilty of trespass.
Maybe, likely essay example.
127
Example: Don is hitting baseballs in his backyard. For fun, he decides to see if he can hit a baseball to Paul's yard (100 yards away). If he succeeds, is he liable for trespass to property?
Yes, where he proceeded without Paul's consent.
128
Exam Tip: Where D enters P's land and causes harm, what torts should be considered?
1. Nuisance
2. Strict Liability
3. Trespass to Land
129
Where D enters the air above P's land, is this likely considered trespass to land?
Yes. Both the area above and beneath the surface are included as "plaintiffs land" for the purpose of deterring trespass to land.
130
Example. Debbie loves to climb trees. Yesterday, Debbie climbed a onto a limb of a tree in her yard that hangs over Peggy's land - is Debbie liable for trespass?
Likely yess.
131
True or False: Aircraft flying at or above normal flight altitude are not considered trespassing?
True. An intrusion of P's airspace may be considered trespass where:
(i) it enters into the "immediate reaches" of that airspace and
(ii) interferes substantially with he use and enjoyment of plaintiffs land.
132
Example: D likes to fly his new drone around the neighborhood. What is required for his neighbor to make a claim for trespass against D?
Drone enters "immediate reaches" of neighbors airspace AND drone interferes substantially with neighbors use and enjoyment.
133
Example: D likes to fly his new drone around the neighborhood. However, he is very careful to make sure his neighbors can't see or hear the drone. In fact he makes every effort to fly very high. Is he guilty of trespass to property?
Likely not - conduct analysis:
Does drone enter "immediate reaches" of neighbor airspace AND
Does drone interfere substantially with neighbors use and enjoyment.
134
Example: Dex drives on Paula's landed, believing wrongly that he has permission. While on the land, driving with all possible care, Dex hits a concealed pothole, loses control of the car, and destroys a rare and expensive bush on Paula's property. Is Dex liable and for what?
Yes - trespass to property.
135
What is ejectment?
An action at law to recover possession of real property.
136
What are the elements required for ejectment?
1. Proof of legal title,
2. Proof of the plaintiffs right of possession, and
3. Wrongful possession by the defendant.
137
What are mesne damages and when do they apply?
Mesne damages compensate for the loss of use of the land and are measured but the rental value of the property or benefit gained by wrongful possessor (whichever is greater).
It may be raised in ejectment claim.
138
Example: Dex mistakenly believed that a grove of apple trees were on his property. He noticed the were a bit forgotten. So he spent several days pruning the apple trees and adding a fence to protect them from predators. That year the trees produced a bountiful harvest. Turns out the trees are actually on Paul's land. Is Dex liable to Paul and how?
Yes -- Dex is liable for trespass. Paul can recover the property and need not compensate Dex for these improvements.
139
What is trespass to chattels?
An intentional act by the D that interferes with the P's chattel, causing harm.
140
What is required to prove intent for trespass to chattels?
Intent is satisfied when the D intentionally performs the physical act that interferes with he plaintiff's chattel.
141
True or False: Mistake is a defense to trespass to chattels.
False. The defendant is liable even though he did not intend or recognize the legal significant of his act.
142
Example: D needs a black evening bag for a sorority event. Without asking P's permission, D goes into P's room in the sorority house, takes P's bag to the formal and returns it the next morning. Because of D's act P did not have a bag for the formal - what result?
D is liable for trespass to chattels.
143
What is the definition of chattel?
Tangible personal property or intangible property that has a physical representation (such as promissory note) or documents in which title to a chattel are merged (such as warehouse receipts.
144
There are three types of interference where trespass it chattels is actionable - what are they?
1. Dispossession
2. Intermeddling
3. Conversion
145
What is the definition of dispossession?
Regarding trespass to chattels:
A direct interference with he plaintiffs possession, such as where D temporarily takes the P chattel or wrongfully refuses to return.
146
What is the definition of intermeddling?
An interference with chattel that does not direct affect the plaintiff's possession.
This is a type of interference for trespass to chattels.
147
Example: D smears mud and spray paint on P's truck - what is P's claim?
P can make claim for trespass to chattels.
D is guilty of intermeddling.
148
What is conversion?
An intentional act by a D that causes the destruction of or a serious/substantial interferences with P's chattel.
149
What are 7 defenses/privileges to intentional torts?
1. Privilege
2. Consent
3. Self-Defense
4. Defense of Others
5. Defense of Property
6. Necessity
7. Authority
150
What is the definition of the defense of authority?
Authority (arrest) is a defense used by police officers acting pursuant to duly issued warrant.
151
What is the shop keeper's privilege?
Defense to intentional torts; A D-shopkeeper is not liable for false imprisonment or related tort when is has reasonable suspicion the P has stolen goods, uses reasonable force to detain the P and only detains reasonably.
152
What is the defense of privilege?
Under certain circumstances, a D may not be liable for conduct where:
(i) the person affected by the D's conduct consents,
(ii) some important personal or public interest and the interest justifies the harm caused by D's conduct
(iii) D must act freely in order to perform essential function.
153
What is the defense of consent?
Even though D committed an intentional tort, he is not liable to P if P consented to the act which constituted the tort.
154
Regarding defense of consent, how does P manifest consent?
1. Express
| 2. Implied - under the circumstances a reasonable person would interpret the Ps conduct as evidencing permission to act.
155
Example: D (a football player) tackles P, a player on the other team. Because both are engaged in football - what is this an example of?
D gave implied consent - therefore to any intentional tort claim - D can raise defense of consent.
156
What are the defenses to consent?
1. Mistake
2. Fraud
3. Duress
4. Incapacity
5. Violation of criminal statute
P raises these when D raises successful defense of consent, P will argue that the circumstances are such that CONSENT IS INEFFECTIVE.
157
What is the argument of mistake regarding the consent defense?
Consent is ineffective if it is the product of mistake of the D's act
158
What is the argument of fraud regarding consent defense?
Consent is ineffective if its induce by D's intentional deceit.
159
What is the argument of duress regarding the consent defense?
Consent is ineffective if its induced by threat if imminent harm.
160
What is the argument of incapacity regarding the consent defense?
Young children and people with impaired mental capacities are incapable of consenting.
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What is the definition of self-defense?
A D charged with self-defense may defend on ground that he used reasonable force to prevent the plaintiff from engaging in an imminent unprivileged attack.
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What is the rule regarding self-defense and force?
D may only use the degree of force reasonably necessary to avoid harm threatened. (cannot escalate to deadly force if unnecessary to avoid harm).
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Example: P says to D, "I am going to come back here tomorrow and kill you." Does D have self-defense claim?
No - D cannot successfully assert self-defense when the purported threat is not about to happen.
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What is the defense of others defense?
D is entitled to defend another person from an attach by the P to the same extent one is able to protect themselves.
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What is the defense of property?
Defense to intentional torts.
A defendant is permitted to use reasonable force to prevent a plaintiff from committing a tort against the defendant's property.
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Example: P takes D's gold bracelet. P knows that the bracelet belongs to P, but takes it anyway. D asks P to give it anyway, but P refuses. Can D grab bracelet from P?
Yes.
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What is the definition of the necessity defense?
A D is permitted to injure a P's property if this is reasonably necessary o avoid a substantially greater harm to the public, himself or his property.
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If there is no actual necessity, can D still raise necessity defense?
Only if D reasonably but mistakenly believes that his actions are justified under objective standard.
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What are the elements of negligence?
The four elements that a plaintiff must prove to win a negligence suit are 1) Duty, 2) Breach, 3) Cause, and 4) Harm.
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What is the definition of duty?
An obligation, requiring D to conform to a certain standard of conduct.
Did the D have a duty to P to conform to some standard of conduct?
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What is the rule regarding foreseeable plaintiffs and negligence?
(Palsgraf) Regarding negligence, a D owes a duty only to foreseeable plaintiffs.
Traditional rule is that there is no affirmative duty to take action to aid or protect a P who is at risk of injury UNLESS such action is take. (if you do act, use reasonable care).
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What is a negligent omission?
A negligent omission occurs when the D fails to do something that a reasonable person would have done, such as stopping at a stop sign.
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True or False: If the D's conduct is responsible for placing the P in a position where he requires aid, D has a duty to take action to aid P?
True.
Ex. if D is speeding because they are late to an appointment and hit a biker. Biker is knocked down, D has a duty to stop and help biker out of the road.
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Does a D have a duty to take affirmative action?
No.
D has no general duty to take affirmative action to aid plaintiff, but generally, once they do act, he has a duty to exercise due case as to his subsequent conduct.
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What is the general rule regarding rescuers and negligence?
A rescuer must act reasonably in effecting the rescue. However, many jurisdictions have a Good Samaritan statute, which limit liability of rescuers who provide emergency aid.
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What are the common examples where D has a duty to take affirmative action in aid of plaintiff? (Special Relationships)
If D is in position of power, there is a duty to take action.
Ex:
1. Employer/employee (in scope of employment)
2. common carrier/innkeeper
3. School/pupil
4. parent/child
5. business/patron
6. jailer-prisoner
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When is there a duty to control the conduct of third parties?
1. Special relationship exists between D and third party that imposes duty on D, or
2. Special relationship exists between D and third party that gives third party a right of protection.
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Example: D is in a movie theater, sitting next to P. They don't know each other. P gets angry with the usher and decides to hit him. Does D have a duty to control P?
No - no special relationship between D and P.
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What is the rule regarding duty and parents?
A parent is under a duty to exercise reasonable care to control his minor child so as to prevent the child from intentionally harming others or creating unreasonable risk.
Parent has duty where (1) parent knows or has reason to know he has ability to control child, or (2) knows or should know of the necessity and opportunity for exercising such control.
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What is respondent superior?
Where the negligent conduct is that of employee and liability is attributed by law to employer.
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What is negligent infliction of emotional distress?
P's injury is not personal injury or property damage, duty issues arise.
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What is required to collection for negligent infliction of emotional distress?
P must be in zone of danger - at risk of being physically injured.
(DIRECT CLAIM)
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What are the categories where landowners and occupiers of land could be liable for P injury?
1. Activities
2. Artificial conditions - injury to P derived from land circumstances (buildings)
3. Natural conditions (fallen trees or boulders).
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What are categories of plaintiffs possible for land possessor liability claims?
1. Invitees
2. Licensees
3. Trespassers
4. Privileged Entrants
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What is an invitee?
A person who enters on D's land at the D's express or implied permission, and who enters for a purpose relating to the D's interests or activities.
Including: (i) business invitee or (ii) public invitee
Ex. (i) Customers, (ii) Visitors to airport
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What is a licensee?
A person who enters on the D's land with the D's express or implied permission AND WHO DOES NOT enter for a purpose benefitting the D or D's activities.
Ex: Visiting relatives, social guests
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What is the duty owed by land owner to invitees?
A D has a duty to exercise reasonable care to prevent injuries to invitees caused by activities.
Duty to 1. inspect premises and 2. make safe for protection of invitees
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True or False: A D's duty to invitees with regard to dangerous natural conditions is the same as that applicable to artificial conditions?
True.
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When can an invitee be regarded as a licensee or trespasser?
When Invitee enters D's land with express or implied permission if he enters areas which his invitation does not extend.
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What duty is owed by land owner to licensee?
Ordinary care - duty to warn of dangerous conditions
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What is a trespasser?
P enters D's land without D's permission or privilege to enter.
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What duty of care is due to unknown trespasser?
D has no duty of care to unknown trespasser. D has not duty to inspect land to attempt to discover unknown trespassers.
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What duty of care is due to known trespasser?
Most jurisdictions require the D to exercise a reasonable degree of care to protect a known trespasser from injuries deriving from activities on his land.
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What duty of care is due to known trespasser regarding natural conditions on land?
No duty to protect a known trespasser from injuries deriving from natural conditions on land
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True or False: Standard of care may be higher to known frequent trespassers?
True. If D knows or reasonably should have known that trespassers frequently enter on his land, the standard may be high than that for unknown trespassers.
Frequent trespassers owed same duty of care as known trespassers
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What is the attractive nuisance doctrine?
It is foreseeable that children are likely to trespass where artificial condition is located. ITS REASONABLY KNOWN.
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When do you apply a heightened standard of care owed to child trespassers?
1. Artificial condition is foreseeable risk to trespassing children.
2. Foreseeable children are likely to trespass there
3. child trespasser is unaware of risk
4. risk of artificial condition outweighs utility
Ex. Dangerous dumpsite or query or rusty automobile.
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What is the default standard of care?
Reasonably prudent person under the same or similar circumstances.
Exception --> reasonably prudent person
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What is the standard of care required from children?
Most jurisdictions, a minors conduct is assessed according to what a reasonable child of the same age, education, intelligence and experience would have done.
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What is the standard of care required from children engaging in adult activities?
Exception to standard child rule, children engaging in adult activities are held to the adult standard of care.
201
What is the negligence per se rule?
A D's violation of a criminal statute has the effect of establishing the standard of care only when all three conditions present:
1. Injury caused by D's conduct is the type statute was intended to prevent
2. P is a member of the class intended to be protected by the statute and
3. D's violation of statute is not excused
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What is the standard of care owed by professionals?
The customary practice of professionals in good standing sets the standard of care.
If D deviates from standard, he has breached his duty of care.
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How does P meet burden of proving D breach duty of care where direct evidence is not available?
Res Ipsa Loquitor (helps P where he cannot prove D's conduct failed to meet standard of care).
Most jurisdictions: Permits the jury to infer D's breach of duty.
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What are the elements of res ipsa loquitur?
1. Event that caused injury would NOT normally occur in absence of negligence.
2. More likely than not that D's negligence was responsible for injury causing event, and
3. P was not responsible for event that caused injury.
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Define actual cause (regarding negligence).
Cause-in-fact element ties D's breach of duty to the P's injury.
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What are the tests for proving actual cause?
1. But-for Test
2. "Substantial Factor" Test
3. Alternative Liability Theory
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What is the but-for test?
Test to prove Actual Cause under negligence claim.
But-for the D's conduct, even would not have occurred.
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What is the substantial factor test?
Test to prove actual cause under negligence claim.
D's conduct was cause in fact if conduct was a substantial factor in bringing about the injury.
Common with cases with multi-Ds.
209
What is alternative liability theory.
In negligence, where a P's injury arises from the negligent conduct of two or more independently acting defendants, only 1 of whom can be responsible, and P is unable to establish who --- each and ever D's conduct is considered as cause-in-fact of injury unless D can prove he did not cause injury.
Ex. Two D's negligently shoot in direction of bush, where P was. Only one bullet hits. Both are liable unless D can proof he is not.
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What is proximate (legal) cause?
In addition to being a cause-in-fact to a plaintiffs harm, the D's conduct must also be a proximate, or legal, cause of the injury.
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What is the test for proximate clause?
D owes a duty of reasonable care only to FORESEEABLE PLAINTIFFS.
The majority view holds that a D only owes a duty of care to a foreseeable plaintiff who are within the ZONE OF DANGER.
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True or False: D is not liable for negligence where he could not foresee the plaintiffs extent of harm?
False. If D's conduct is a substantial factor in bringing about the harm of another, mere fact that he did not forsee extent of harm DOES NOT prevent him from being liable.
213
What is the eggshell plaintiff rule?
A D is liable for the full consequences of a P's injury, even though due to D's particular susceptibility to harm (to which D was unaware).
214
What is a superseding cause?
An unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act AND the ultimate injury.
215
What are common examples of superseding causes?
1. Natural event
2. Criminal acts of third party
3. Intentional torts of third party
4. Extraordinary forms of negligent
216
What is an intervening force?
An intervening force is one that actively operates in producing harm to another after the actor has already committed his negligent act or omission.
As a general rule, a D will be held liable for harm caused by foreseeable intervening forces.
217
True or False: The original tortfeasor is usually held liable for the ordinary negligence of the P's treating physician?
TRUE.
D is liable for injury caused by misdiagnosed brain hemmorage where it was the result of Nurse suggesting they did not need medical advice.
218
What are the defenses to negligence?
1. Contributory Negligence
2. Comparative Negligence
3. Assumption of Risk
219
What is contributory negligence?
A defense to negligence claim. Where P's own negligence may bar the plaintiffs recovery.
220
How must D prove contributory negligence?
D must prove by a preponderance of the evidence that the P fell below the relevant standard of care and that this failure was the cause if fact and proximate cause of P's damages.
221
What is comparative negligence?
Defense to negligence claim.
Plaintiffs negligence has contribute to his injuries, then the total damages caused but eh D may be apportioned based upon a determination of relative fault of both parties.
222
What is pure comparative negligence?
Where apportionment tracks apportionment of fault EXACTLY. Even if P is 75% responsible.
223
What is partial comparative negligence?
Damages are apportioned only if the D's responsibility exceeds the P's responsibility.
224
What is assumption of the risk?
Legal theory that P assumes the risk of injury from a D's negligence if P expressly or impliedly consents to undergo the risk created by D's conduct.
225
What is strict liability?
D is liable for injuring P whether or not the D exercised due care.
226
What are the two categories of strict liability?
1. Possession of animals
| 2. Abnormally dangerous activities.
227
What is strict products liability?
Strict product liability is invoked when a defective product injures a plaintiff.
228
What factors are relevant to strict products liability analysis?
1. Proper P
2. Proper D
3. Proper contact for strict products liability.
4. Defect (manufacturing or design or absence of warnings)
5. Cause in fact
6. Proximate cause
7. Damages
229
What are the defenses to strict products liability?
1. Misuse
2. Alteration
3. Contributory negligence
4. Comparative negligence
230
What is products liability on a negligence theory?
Under this theory, P must establish greater personal degree of fault.
