TORTS Flashcards
(72 cards)
1
Q
Transferred Intent
A
The intent to commit a tort against one person is transferred to the other tort or to the injured person
Only applies when: assault, battery, false imprisonment, trespass to land, and trespass to chattels
2
Q
Battery
A
An volitional act which brings about harmful or offensive contact to another person
Contact (offensive to a reasonable person of ordinary sensibilities)
3
Q
Assault
A
A volitional act that creates a reasonable apprehension of immediate harmful or offensive contact to another person
4
Q
False Imprisonment
A
An act intending to confine someone within boundaries fixed by the actor, directly or indirectly resulting in such confinement, and the confined person is either conscious of the confinement or harmed by it
5
Q
False Imprisonment Defenses
A
Shopkeeper privilege: reasonable grounds to believe theft occurred, may detain one for a reasonable time and in a reasonable manner to ascertain what has happened
Crime prevention: reasonable belief crime has occurred - must involve disturbing the peace
6
Q
Trespass to Chattels/Conversion
A
An act which dispossesses the personal property of another which causes harm to, or the loss of use of the personal property
Conversion: interference is serious enough in result to warrant that defendant pays the full value of the chattel at the time of conversion
7
Q
Intentional Infliction of Emotional Distress
A
Extreme and outrageous conduct that causes severe emotional distress
No requirement for actual/physical harm (only needed for NIED)
8
Q
Abuse of Process
A
Use of a legitimate process, for a wrongful purpose (harass, waste time) and an act or threat against the plaintiff to accomplish the wrongful purpose
9
Q
Malicious Prosecution
A
Initiation of civil or criminal proceedings against plaintiff without PC, for a wrongful purpose, and the favorable termination of the proceedings on the merits in favor of current plaintiff
notes: damages must be proved, DA’s are absolutely privileged
10
Q
Trespass to land
A
An act of physical invasion of another persons property
11
Q
Trespass to Chattels/Conversion Remedy
A
Damages: fair market value at the tgime and place of conversion
Replevin: getting the chattel back
12
Q
Defense to Intentional Torts
A
Consent
- express or implied
Self-Defense
- a defense of self-defense is available when there is a reasonable belief, retaliation is not allowed, retreat is not necessary, not available to aggressor
13
Q
Defamation
A
A Defamatory statement, of or concerning the plaintiff, publication (communicated the statement to a third person), and there’s a harm to reputation (unless defamation per se)
slander is oral
libel is written or broadcast
14
Q
Defamation Defenses
A
Truth: complete defense
Privilege: absolute or qualified
15
Q
Absolute Privilege
A
Statements made in:
- the proper discharge of an official duty
- legislative proceeding
- judicial proceeding
- in any other official proceeding authorized by law
- in the initiation or course of any other proceeding authorized by law
16
Q
Qualified Privilege
A
Statement is made without malice, and to a person interested therein:
- by one who is also interested, or
- by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or
- who is requested by the person interested to give the information
17
Q
Defamation Constitutional Issues
A
- 1st amendment issue: discuss falsity of the defamatory language and fault
- public official or public figure: must prove that the statement is false AND defendant acted with malice
- private plaintiff but matter of public concern (usually media defendant): requires that the defendant made the false statement at least through negligence to recover actual damages; still requires malice to recover presumed/punitive damages
18
Q
Libel
A
Libel is a defamatory statement recorded in writing or some other permanent form
general damages are presumed
19
Q
Slander
A
Slander is spoken defamation. Defamation is less permanent and less physical form compared to libel
damages are not presumed unless it's slander per se: which involves the following 4: 1. business or profession 2. loathsome disease 3. crime involving moral turpitude 4. unchastity of a woman
20
Q
Invasion of Privacy: Intrusion
A
Unreasonably and seriously interferes with another’s interest in not having affairs known; conduct would offend person of reasonable sensibilities
21
Q
Invasion of Privacy: Public Disclosure of Private Fact
A
- public disclosure
- of a private fact
- that would be offensive and objectionable to the reasonable person
- that is not of legitimate public concern
constitutional issue: no liability if truthful information obtained lawfully
22
Q
False Light
A
- defendant publicizes a private matter concerning the plaintiff
- that places the plaintiff before the public in false light
- that would be highly offensive to a reasonable person
- and if matter of public concern, defendant acted with malice (knowledge or reckless disregard for the truth of the matter and the false light)
23
Q
Appropriation
A
- An appropriation or use
- of the plaintiff’s identity
- by the defendant
- for the defendant’s commercial purpose
24
Q
Misrepresentation: Intentional Misrepresentation
A
- Defendant made a false representation concerning a presently existing material fact
- scienter - That the defendant either knew was false or made recklessly knowing that he had insufficient knowledge on which to base the representation
- for the purpose of inducing the other party to act on the representation
- that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
- was thereby induced to act to his injury and damage
25
Misrepresentation: Negligent Misrepresentation
1. defendant made a false representation concerning a presently existing material fact
2. scienter - defendant should have known the truth - was careless in ascertaining the truth
3. for the purpose of inducing the other party to action the representation
4. that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
5. was thereby induced to act to his injury and damage
26
Concealment
1. defendant made a representation concerning a presently existing material fact, but omitted material facts, which omission makes the statement misleading
2. scienter - that the defendant knew was misleading
3. for the purpose of inducing the other party to act on the representation
4. that the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
5. was thereby induced to act to his injury and damage
27
Interference with Economic Relationships: with Contract
1. interference
2. which is intentional and
3. improper or unlawful
4. in a contract between two other persons
5. causing one of them to not perform the contract
28
Interference with Economic Relationships: with Relationship
1. an economic relationship between plaintiff and third parties
2. knowledge by the defendant of the existence of the relationship
3. intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship
4. actual disruption of the relationship
5. damages proximately caused by the acts
29
Negligence
The 5 elements of negligence are: duty, breach, actual cause, proximate cause, and harm
30
Duty
When a person engages in an activity, they are under a legal duty to act as an ordinary, prudent, reasonable person
a duty is owed only to foreseeable plaintiffs: class of persons who were foreseeably endangered by the defendant's negligent conduct. someone who is not within the "zone of danger" from the defendant's conduct cannot recover
31
Prenatal Injuries: Wrongful Birth and Wrongful Pregnancy
child's parents bring the action: either for failure to diagnose the defect (wrongful birth) or for failure to properly perform a contraceptive procedure (wrongful pregnancy)
- mom can recover damages for the unwanted labor
- if defect, parents may recover the additional medical expenses to care for the child
32
Duty of Care: Professionals
Required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing
For doctors: national standard of care and there's a duty to disclose risks of treatment and get informed consent
33
Duty of Care: Children
Child is required to conform to the standard of care of a child of like age, education, intelligence, and experience. (subjective)
Children engaged in adult activities: required to conform to the same standard of care as an adult in such activity
34
Duty of Care: Common Carriers and Innkeepers
A very high degree of care toward their passengers and guests
i.e., liable for slight negligence
35
Duty of Care: Automobile Driver to Guest
One of ordinary care
36
Duty of Care: Firefighter's Rule
This bars firefighters/police from recovering for injuries caused by risks of doing the scope of their job
37
Duty of Care: Rescuees
Duty to rescuers if need for rescue is due to rescue's own negligence
38
Duty of Care: Custom
Custom/usage in industry or trade may be evidence of a duty or lack of duty
39
Duty of Care: Possessors of Land
Generally, a landowner owes NO DUTY to protect someone OUTSIDE the premises from either natural or artificial condition on the land.
Exception: trees
Two exceptions for artificial conditions: a duty to protect from unreasonable dangerous artificial conditions, duty to take precautions to protect persons passing by from dangerous condition
40
Duty of Care: Duty to Invitee
Duty to inspect, discover, repair and protect against known or discoverable dangers
Duty to invitee if Possessor:
- knows or by the exercise of reasonable care, should have discovered, the condition and should realize that it poses an unreasonable risk of harm to invitees; and
- should expect that the invitee will not discover or realize the danger or will fail to protect themselves against it
41
Duty of Care: Duty to Licensee
Duty to repair and protect against known dangers
Duty to licensee if Possessor:
- knows or has reason to know of the condition and should realize that it involved an unreasonable risk of harm to the licensees and should expect that the licensees will not discover or realize the danger; and
- fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and the risk involved; and
- the licensees do not know or have reason to know of the condition or the risk involved
42
Duty of Care: Duty to Trespassers
Duty only extends to artificial dangerous condition:
Known trespassers: duty to warn of artificial, non-obvious dangerous conditions maintained by landowner
unknown trespassers: duty not to use willful and wanton conduct
43
Duty of Care: Attractive Nuisance
- Landowner knows or should know of dangerous condition
- Owner knows children are frequenting the area
- Dangerous condition likely to cause harm - child's inability to appreciate risk
- Expense of remedy slight compared to level of risk
44
Negligent Infliction of Emotional Distress
Generally no duty to prevent emotional distress in the absence of physical harm and plaintiff in zone of danger
Exceptions to the zone of danger requirement:
- plaintiff and victim closely related, plaintiff present and perceived the injury
- duty arises from special relationship
- mishandling of corpse of relative
- erroneous statement that relative has died
45
Duty of Care: Peril Due to Defendant's Conduct
One whose conduct places another in a position of peril is under a duty to use reasonable care to aid or assist that person
46
Breach
Where defendant's behavior falls short of that level required by the applicable standard of care
Explain why and how
47
Res Ipsa Loquitor
Discuss ONLY if the act constituting breach is unknown:
1. defendant had control of the instrumentality of the harm
2. harm would not have occurred in the absence of negligence
48
Negligence Per Se
If there is a violation of a criminal statute, alternatively consider Negligence Per Se to establish statutory duty and breach
1. statute or ordinance must be a criminal statute; includes traffic and safety and regulatory infractions
2. the plaintiff must be a member of the class of person intended to be protected by the statute; and
3. the claimed harm must be the type of harm intended to be protected against by the statute
* is an alternative type of standard of care - a statutory standard of care
* even if there is negligence per se, discuss all 5 elements of negligence as if negligence per se is not established
ORDER OF ANALYSIS
1. ordinary duty
2. specialized duties
3. ordinary breach
4. breach of specialized duties if any
5. statutory duty and breach (negligence per se)
6. actual cause
7. proximate cause
8. harm
49
Actual Cause
There must be a cause in fact of the injury
"but for" test.
i. e., but for d's breach, P would not have been injured
* if there are joint causes, then you use the substantial factor test: sufficient defendant's conduct was a substantial factor in causing the injury
50
Proximate Cause
Issue: whether this type of harm was foreseeable from this type of conduct
51
Duty: Cardozo and Andrews Split View
Cardozo: narrow def. of duty of care: defendant is liable ONLY to those people he could have reasonably FORESEEN would be injured. These are the people in the zone of danger
Andrews: broad def. of duty of care: defendant is liable to people who were injured by his act, even if it was not foreseeable that they would be injured
52
Harm
Include a sentence on harm:
C was harmed because she suffered physical injuries and injuries to her car.
* DO NOT FORGET TO CONCLUDE WHETHER THERE IS A PRIMA FACIE CASE OF NEGLIGENCE
53
Negligence Defenses: Contributory Negligence
Is a complete bar for plaintiffs right to recover
*UNLESS D had last clear chance
54
Last Clear Chance
Permits the plaintiff to recover despite his own contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is liable for negligence
55
Negligence Defenses: Comparative Fault - Partial
A plaintiff will be barred to recover if his negligence was more serious than that of the defendant
56
Negligence Defenses: Comparative Fault - Pure
Allows a plaintiff to recover no matter how great plaintiff's negligence is
*MBE go with pure comparative unless they state otherwise
57
Negligence Defenses: Assumption of Risk
Plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant's acts. May be express or implied. Plaintiff must have known of the risk and voluntarily assumed it
58
Strict Liability: Animals
Trespassing animals: owner is strictly liable for the damage done by the trespass of his animals (other than household pets) as long as it was reasonably foreseeable
Wild animals:
- defendant owned a wild animal
- that caused harm to plaintiff of a kind typically due to the wildness of the animal
Domestic animals: liable if the owner has knowledge of the animal's dangerous propensities
59
Strict Liability: Abnormally Dangerous Activities
- carrying on of an abnormally dangerous activity (high degree of risk or harm, gravity of the harm, inability to eliminate the risk by using reasonable care)
- which causes harm
- the risk of which make the activity abnormally dangerous
60
Strict Liability: Products Liability
There are three distinct theories in regards to products liability: strict products liability, negligence, and breach of warranty.
MUST DISCUSS ALL THREE
61
Strict Liability: Products Liability - Strict Products Liability
- defendant is in the business of selling or otherwise distributing products (commercial supplier - includes manufactures, wholesalers, retailers, distributors)
- defendant sells or distributes a defective product (places it in the stream of commerce) and product remains unchanged (manufacturing defect, design defect, inadequate instructions or warnings)
- the defect actually and proximately causes the harm to a foreseeable person
* DEFENSES: comparative negligence and assumption of the risk are defenses
62
Strict Liability: Products Liability - Strict Products Liability Defects
1. manufacturing - product departs from design
i. e., error on the assembly line
2. design - risk/utility OR reasonable and feasible alternative design
3. failure to warn
- knows or has reason to know
- that the product is likely to be dangerous for the use for which it is supplied
- has no reason to believe that the users of the product will realize its dangerous condition
- fails to adequately and sufficiently warn about the dangerousness of the product
63
Strict Liability: Products Liability - Negligence
```
Duty: duty to make a safe product; duty owed to purchaser AND to others than immediate purchaser if reasonably certain to imperil user or likely to be used by others without inspection/tests
Breach
Actual Cause
Proximate Cause
Harm
```
* Defenses:
- contributory negligence, comparative negligence, assumption of the risk
64
Strict Liability: Products Liability - Breach of Warranty
Three types: express warranty, implied warranties of merchantability, implied warranties of fitness for a particular purpose
Fault free: even if the defendant did everything right, if the goods that the defendant sells are not as warranted, defendant is in breach and owes plaintiff damages
65
Express Warranty
Warranty is expressly made (affirmation of fact)
Relied on by purchaser
Breach causes harm to foreseeable person
66
Merchantability
Average quality
Fit for ordinary purpose
Adequately packaged
Conforms to promises on label
67
Fit for a particular purpose
Seller knows of plaintiff's special need
| Recommends product with that knowledge
68
Nuisance - Public Nuisance
Common public interest
| No private cause of action unless harm is different in kind from that suffered by public
69
Nuisance - Private Nuisance
An unreasonable invasion of another's interest in the use or enjoyment of his or her land;
and the invasion is either intentional; or unintentional and otherwise actionable as negligence, reckless, or abnormally dangerous conditions or activities
* balance the harms unless intentional and unreasonable
* remember hypersensitive plaintiffs
70
Defense: Coming to the Nuisance
Plaintiff assumed the risk, thereby being barred from recovery by the fact that he has "come to the nuisance"
71
Vicarious Liability - Negligence
Employers are vicariously liable for the negligence of their employees, committed while the employee is acting within the scope of their agency.
FOR IC: (independent contractors)
1. the IC is engaged in inherently dangerous activities; OR
2. the duty is non-delegable (duty to keep premises safe, house safe, car in good condition)
72
Vicarious Liability - Intentional Torts
Principals liable for intentional torts of agents IF:
1. force is authorized by employment
2. friction is generated by employment
3. employee furthering business of employer (discuss types of authority - express, implied, apparent)
VC is not a defense for employee
Employee liable to principal through indemnity
