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Flashcards in Torts Deck (111):

Elements of battery?

1.Harmful or offensive conduct
2. With the plaintiffs person
3. Intentional



Cannot lack the capacity for intent. If the defendants purpose was to bring about the consequence or of the d knows that the harm will occur with substAntial certainty


What is harmful or offensive contact?

Unpermitted contact


Plaintiffs person?

The plaintiffs body or anything physically connected to the plaintiff. Ex. Car or plate


Elements of assault?

3. Of an immediate contact



Must be reasonable, does not involve fear or intimidation.
Apparent ability counts


Immediacy for assault?

Words and conduct. Unless!!! The words undo the conduct


Elements of false imprisonment?

1. Intent
2..Sufficient act of restraint
3. To a bounded area


What is a specific act of Restraint?

Threats are enough, inaction can be enough if there is an understanding that D would act for the benefit of P

P must be aware of confinement, length of time is irrelevant


What is a bounded area?

More than an inconvenience, not bounded if reasonable means of escape of which plaintiff is aware.


Elements of intentional infliction of emotional distress?

1. Intent
2. Outrageous conduct
3. Damages


What is outrageous conduct?

Something you are not expected to deal with every day.
Continuous conduct, plaintiff type ( child, elderly, pregnant), defendant type (common carrier or innkeeper)


Damages in intentional infliction of emotional distress?

Prove severe emotional distress not physical injury

Only intentional tort that requires damages


Intent In intentional infliction?

Recklessness can suffice, cannot normally transfer this intent. (Exception if D knows a close relative is present)


Elements of trespass to land?

2. Act of physical intrusion
3. Land


Physical invasion of land includes:

No knowledge of crossing property line required( only requires the intent to move consciously) propelling an object onto property suffices.


Land includes?

Airspace above and subsurface below so long as at a distance where the landowner can make a reasonable use of the land


Elements to Trespass to chattels and conversion?

1. Intent
2. Act of invasion
3. To personal property


Difference between chattels and conversion?

Some damage- chattels
Severe damage or total destruction- conversion
Conversion also includes any serious interference with possessory rights


Defenses to intentional torts?

Self defense
Defense of others
Defense of property


Defense of consent: intentional tort

Capacity (does not include kids, mental impairment, coercion, fraud or mistake)
Express or implied ( through custom or usage or P own conduct)


Self defense

Reasonable force is justified to prevent what a person reasonably believes to be an imminent threat of force against him
Reasonable belief requires a subjective belief that the person is in danger and that the belief is reasonable
Reasonable force: only the degree of force reasonably necessary to avoid threatened harm


Deadly force

Reasonable only when the defender reasonably believes that he or she is facing a threat of deadly force. Response has to be commensurate in scope with threat

Retreat: generally you can stand your ground and not retreat unless deadly force, the modern trend is that you need to retreat before using deadly force( assuming you can safely do so) unless you are in your own home


Defense of others

One person may defend another person in the same manner and under the se conditions as the victim would be entitled too defend himself. Defender put in the shoes of the victim.

Mistaken belief: traditionally cannot assert defense if apparent victim does not have the right. Modern: can assert defense if reasonable mistake

In Ohio: if the apparent victim is the aggressor, the defense cannot be raised


Defense of property

Reasonable gorse to defend real or personal property BUT cannot use deadly force to protect property alone

Hot pursuit: can use reasonable force to regain property when in hot pursuit but not after

Shoplifter: a shop owner can detain in a reasonable manner and for a reasonable time



Only used in conjunction with intentional torts to property.
Public necessity: unlimited and unqualified privilege to protect a lot of people
Private necessity: qualified privilege to protect self or a limited number of people but have to pay for damage you cause


Discipline defense

Parent or teacher can use reasonable force to discipline a chile. Child's age and the nature of activity are taken into account


Defamation elements:

Common law:
1. Defamatory statement that is false and injures the Ps reputation
2. Of and concerning the plaintiff: reasonably refers to p
3. Statement published to 3rd party: communicated in an understandable way to a 3rd party. D must intend others to hear it
4. Damages
Constitution adds 2 more elements
1. Plaintiff must prove statement was false
2. Plaintiff must prove fault (actual malice for pub people and at least negligence for others)


Damages in defamation.

If spoken (slander) the plaintiff must prove special damages: monetary loss associated with damage
If written or broadcast (libel) jury may presume damage


Slander per se

1 impune one's trade of profession
2. Accuse the P of committing a serious crime (usuall punishable by imprisonment)
3. Imply P has a loathesome disease, leprosy or VD
4. Impute unchastity in a woman ( some states have eliminated this one others added men)


Common law defenses to defamation

Absolute privilege (judicial proceedings, legislative proceedings, communications between spouses)
Qualified privilege (in course of legit public debate. Made to serve a purpose)


First amending protection

Protects speech on matters of public concern adds two elements of falsity and fault.
Must prove actual malice for presumed and punitive damages


Actual malice

The d knew the statement was false or had a reckless disregard for the truth


Right to privacy

Really 4 torts
1. Appropriation
2. Intrusion
3. False light
4. Public disclosure of a private fact



The use of a Ps name or picture for commercial advantage without permission

Limitation: must be used for advertising, promotional or labeling purposes.

Ohio: doesn't require formal commercial use, just the d uses the p for d's benefit



Interference with a plaintiffs seclusion in such a way that would be highly offensive to a reasonable person

Do not have to intrude on land just somewhere where the p has a expectation of privacy


False light

The widespread dissemination of information that is in someway inaccurate and that would be highly offensive to a reasonable person

In Ohio have to prove actual malice

Can be for good things too, if someone proclaimed a hero falsly can use this because of embarrassment caused by having to correct story


Public disclosure of private facts

Widespread dissemination of factually accurate information that would normally be considered confidential and the disclosure of which would be highly offensive to a reasonable person
Exception: newsworthy disclosures are not actionable


Common law fraud elements

1. Affirmative misrepresentation: silence does not generally suffice
2. Fault: had to know it to be false (scienter)
3. Intention to induce reliance: statement must be material or a central feature of the transaction
4. Actual and justifiable reliance: normally justifiable to rely on someone's opinion who has superior skill or knowledge I. Subject matter of transaction
5. Damages: fraud is no harm, no foul cause of action


Negligent misrepresentation

A false statement made carelessly.
Normally limited to commercial transactions
Normally confined to a particular plaintiff whose reliance is contemplated.


Intentional interference with business relations

1. Inducing a breach of contract: intentional action causes 3rd person to breach an existing contract with the plaintiff
2. Interference with contractual relations: interference with a plaintiffs contractual relations makes performance more difficult even if interference does not cause a breach.
3. Interference with prospective economic advantage. Interference with a plaintiffs expectation of economic benefit from throw persons even in the absence of a contract. (Very hard to prove)


Negligence elements:

1 duty
2 breach
3 causation
4 damages


To whom is a duty owed?

To all people who are foreseeable victims of your failure to take precautions

Generally only a duty to those In and around the area in which you are acting


Plaintiffs foreseeable as a matter of law

Viable fetuses: even if defendant has no knowledge of it


How much care must you exercise?

The amount of care that would be taken by a reasonably prudent person under the same or similar circumstances (poindexter rule)

D is expected to use superior skill or expertise to Ps benefit

D's physical disabilities are attributed to the reasonably prudent person (blind/deaf)

The reasonably prudent perso. Is a fixed constant, it is objective and rigid and generally harsh on the D


Duty of children?

Majority: a reasonable child of like age, intelligence and experiences

This is a more subjective standard


Rule of sevens (traditional child duty rule)

Under 7- child incapable of negligence (Ohio rule too)

7-13 rebuttable presumption of incapable of negligence

14 and older rebuttable presumption of negligence

Any child engaged in an adult activity is held to adult standard


Professionals duty of care

Required to possess and exercise the knowledge and skill of an ordinary member of the profession in good standing

Basically the profession is self regulating

Informed consent in med map: have to give risks and alternative treatments

Legal mal: P must prove causation, mistake actually caused damages


Variables in source of injury while on another land?

Conduct of activity on the land
Static condition on the land


4 potential statuses of a plaintiff

1. Undiscovered trespasser
2. Discovered trespasser: ex. Hikers you know cross onto your rural property
3. Licensee: social guest or people there for their own purpose ( like a meter reader)
4. Invitee: business visitor, anyone who comes onto land open to the public at large

Some states have abolished the categories and do reasonable duty alone


What duty does a landowner owe an undiscovered trespasser?

No duty, the undiscovered trespasser always loses


Duty to discovered trespasser?

Injured as result of activity? Reasonable care
Injured because of static condition? Protect from man made death traps (artificial, highly dangerous, concealed, known)


Duty to licensee?

Activity: Reasonable care
Static condition: duty to protect from any known hidden condition (concealed and known to owner)


Duty to invitee?

Activity: reasonable care
Condition: duty to protect from any concealed condition or condition that could have been learned by reasonable inspection (duty to inspect)


To satisfy legal obligation to static condition a land owner can:

1. Go to condition and make it safe
2. Give a warning


Standard for child trespasser?

Reasonable prudence standard


Attractive nuisance doctrine

Takes into account factors such a D being aware of children on or near property, and would the child appreciate the danger

In Ohio the duty of care extends to any adult who would come to the land to rescue the child


Negligence per se

When the plaintiff can borrow a standard of duty from a statute, (such as a criminal or regulatory statute)
Plaintiff has to fall into class of persons which the statute protects and the harm caused must fall into the class of risk which the statute protects against

Ex. Elevator barricades


Exceptions to negligence per se

1. Compliance with the statute is more dangerous than violating the statute ( driver crosses center lane to avoid hitting child)
2. Compliance is impossible under the circumstances ( heart attack means impossible to hit brakes at red light)


Is there an affirmative duty to act?

NO!!! There is no duty to rescue

When you act you must take precautions but you don't have to act to begin with


Exceptions to no duty to act

1. Relationships: close family, common carrier or innkeeper, and inviter/inviter relationship

2. Duty to control third persons if the defendant has the actual ability and authority to control (ex parent can control running toddler)


Negligent infliction of emotional distress

Generally no duty but if the D conduct exposed the P to physical risk and the P later suffers physical manifestations (hives) there are exceptions which would allow P to recover:
1. Zone of danger: plaintiff must be in the zone( basically a near miss situation)
2. Bystander recovery: person at the scene and had a close relationship with the victim

Ohio- does not require physical manifestation, only severe emotional harm

Court can liberalize the rule where the defendants negligence creates a great likelihood of severe emotional distress
1. Erroneous report of death
2. Mishandling a corpse
3. Dr wrongfully diagnosing or wrongfully telling someone a diagnosis


Breach of duty

Plaintiff must point to specific conduct that is alleged to violate the duty


Proof of Specific conduct: evidence of custom

Trying to equate reasonableness with typicality
Always admissible but never conclusive (everyone but D does something, no one but D does something)


Res ipsa loquitur

Used by desperate plaintiffs who have no idea what happened

Must prove two substitute facts
1. The event is one that does not normally occur in the absence of negligence (usually requires expert testimony)
2. Any negligence would be attributable to the defendant: the defendant has control over the injury causing apparatus or has the power to control everything involved in the accident


Consequence successful of res ipsa?

Plaintiff gets to jury. But jury can still reject the argument and D can prevail


Kinds if Causation

Cause in fact: actual causation

Proximate cause; legal causation


Cause in fact/ actual causation: the but for test

A defendants conduct is the cause in fact of an injury when the unjust would not have occurred but for the defendants conduct.

Think? Did the bad action cause the injury


Substantial factor test

Used with multiple defendants and a co-mingled cause.

Two or more defendants negligently operate in the world and their negligence combines to injure the plaintiff

Ex. Two negligently started fires combine to burn down plaintiffs house

Was the conduct of each defendant a substantial factor in bringing about the harm


Burden shifting causation

Use in cases with multiple defendants and an unknown cause

Both act negligently, not sure who caused the injury

The burden shifts to the defendants to exonerate themselves. If none can exonerate themselves they are jointly and severally liable


Proximate cause/ legal causation

Is a limitation on a defendants liability
A person is only liable for those harms that are within the risk of his activity
Look at the defendants conduct: why was it negligent? What were you worried about happening? Does the injury match what you were worried about?


Proximate causation: Direct cause

If the defendants negligent conduct is foreseeable, the defendant is liable

Err on the side of finding for the plaintiff


Proximate cause: indirect cause fact pattern

Defendant acts, then someone or something acts and then plaintiff is injured.

Generally ask: was the intervening event foreseeable? Was the outcome foreseeable?

If both foreseeable: P wins
if neither foreseeable: D wins
If one of each: can go either way


4 cases in which intervening cause will not cut off liability

1. Subsequent medical malpractice (hit a pedestrian, dr negligently sets leg)
2. Negligent rescue: rescuer drags hurt pedestrian out of harms way but hurts him further
3. Reaction forces: D shoots gun in crowd, P breaks arm when knocked over by fleeing crowd
4. Subsequent diseases or accidents: driver breaks pedestrians leg, pedestrian later falls down stairs when using crutches and breaks arm


Cases in which intervening cause will not cut off liability if D could anticipate the intervening cause

1. Negligence of a third party: D blocks sidewalk, p gets hit by car, d responsible
2. Criminal conduct: D fails to lock side door of parking garage, criminal attacks p in garage
3. Acts of god: workman leaves tools on roof despite forecast of wind


Damages in negligence

A plaintiff must prove actual damages which include;
1. Past and futures social expenses
2. Past and future lost wages
3. Pain and suffering


Eggshell plaintiff rule

You have to take the plaintiff as you find them. If you accidentally cut someone and they turn out to be a hemophiliac and bleed to death, you are responsible for everything.

Ohio caps certain damages: no economic and punitive


Defenses to negligence.

Contributory negligence
Assumption of risk
Comparative negligence


Contributory negligence (traditional)

Plaintiffs failure to use the relevant degree of care for his or her own safety bars recovery from others negligence

Consequence: complete bar to recovery

Ameliorating doctrine: doctrine of last clear chance: if the D had the last clear chance to avoid the accident and failed to do so, p can still recover


Express Assumption of risk

Like express consent.
Consequence: complete bar to recovery
Exception: disregarded if applying law violates a public policy. (Ex. Have to assume risk before receiving medical treatment)

But in recreational context, assumption of risk will be enforced.


Implied assumption of the risk

1. Plaintiff must have knowledge of risk.
2. Must show that encounter with risk was voluntary.

The absence of alternatives destroys voluntariness

Emergencies destroy voluntariness
Consequence: traditionally complete bar, now more comparative


Pure comparative negligence

Plaintiff will always recover something even if plaintiff was predominantly negligent


Modified (partial) comparative negligence

Plaintiff recovery reduced proportionally until a certain threshold, then recovery barred

In Ohio, if P more than 50% responsible- no recovery


Comparative negligence supplants

All other affirmative defenses except express assumption of risk

In Ohio: any conduct of plaintiff (express, negligence implied) is characterized as fault and jury assigns % based on that


Struck liability: animals

Trespassing animals: strict liability for foreseeable harm caused by animals other than household pets

Personal injury:
Domesticated animal: no strict liability unless you know of animals dangerous propensity in advance (oh has a dog bite statute so liable notated what)

Wild animal: strictly liable unless the P knowingly or voluntarily does something to cause the harm


Abnormally dangerous activity

1. The activity is incapable of being conducted except with high risk ( it cannot be made safe)
2. Of harm occurs it is likely to be severe.
3. The activity must be atypical, unusual, or uncommon in the community which it takes place

Ex. Blasting, nuclear energy, radioactive activity etc

Any precautions are irrelevant!!!
BUT proximate cause still applies to limit the scope.
Driver carrying plutonium hits a pedestrian- negligence not strict liability.


Products related injury

Can be pursued under many theories: negligence, breach of warranty, strict liability

1. Defendant is a merchant of the type of goods involved
2. Product is defective
3. The defect existed when the product left the sellers hands
4. The plaintiff made a foreseeable use of the product


Defendant is merchant of goods involved

Generally manufacturers, wholesales and retailers

Ohio limits to manufacturers with few exceptions


Manufacturing defect

The product is an anomaly and the difference between the product in hand and all others is the difference that made the product dangerous


Design defect

A problem common to each until that the seller could have eliminated through a reasonable alternative Design.
Cost effective way to make the product safe without impairing utility

More controversial


Product presumed defective when it left sellers hands if:

The product moved in ordinary channels of distribution


Defenses to product liability

Traditional: equivalent of contributory negligence will not bar recovery but equivalent of assumption of risk will bar recovery

Ohio: if against manufacturer for strict liability: assumption of risk a complete defense. If against distributor for negligence: comparative negligence


Let wholesales and retailers off the hook when theory is



Adequate warning

Usually insulates from strict liability


If there is a feasible alternative

Liable of design defect theory even if there is a warning


Foreseeable and intended use

Foreseeable use is NOT intended use

Very pro plaintiff here


If product use is incidental or tangential to performance of service

Strict liability unavailable


Private nuisance

Conduct that causes substantial and unreasonable interference with the use and enjoyment of land

Court will weigh the equities of the parties to decide on injunction


Public nuisance

Conduct that caused physical or moral harm to the public in general.
A private plaintiff can maintain a public nuisance action if the plait off suffered an injury that is different in nature from the public harm


Vicarious liability: employee/ employer

Employer is vicariously liable for employees torts committed within the scope of employment

Frolic v detour


Intentional tort: vicarious liability

An employer is not liable for employees intentional tort unless violence is part of the job (night club bouncer, debt collector)


Independent contractor: vicarious liability

Generally no vicarious liability unless:
1. Independent contractor is engaged in inherently dangerous activity
2. Public policy exception ( land owners cannot insulate themselves from duty to invitees) ex. Grocer responsible for ice cream spill on indep contractor


Car owner car driver vicarious liability

Generally none unless
1. Driver performing an errand (agency relationship formed)
2 minority rules:
Family car states: owner v. Liable for torts of any household member driving car with owners permission
Permissive use states: owner vicariously liable for the trots of any body driving car with permission


Parent child liability

Parent is not liable for child's torts

In Ohio: parent liable for property damage up to 10k is malicious or willingly damaged


Joint and several liability

Any one of multiple defendants can be liable to Plaintiff for the entire damage incurred
1 concert of action (drag race)
2. Indivisible harm (both negligent, one harm)

Ohio limits joint and several to
1. D more than 50 % responsible
2. D committing intentional torts



Passive defendant receives full reimbursement from active defendant



All D's are active participants in bringing about harm

Traditional rule: paying d can receive proportional shares from other d's

Comparative contribution: recovery based on relative fault of each tort feast ( majority rule)


Wrongful death action

Not a desperate cause of action. Brought be deceased beneficiaries for their own loss of support and companionship that the deceased would have provided

Subject to defenses that could have been raised If deceased had brought action


Survival action

Brought be deceased's estate based on claims that the deceased could have brought if not for death

Subject to any defenses that could have been raised Is the deceased brought the case


Family and charitable immunity

Abolished in most jurisdictions


Governmental immunity/ sovereign immunity

No immunity if a proprietary function: the government is acting in a way normally carried out by private citizen (operating a parking garage)

Immunity if discretionary or governmental activity ex. Police and fire protection activity or military activity