Torts Flashcards
(28 cards)
Intent
Defendant acts intentionally IF:
- Acts with the purpose of causing the consequences of his act; OR
- He acts knowing that the consequence is substantially certain to result.
Transferred Intent
- Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits either:
a. A different intentional tort against that person;
b. The intended tort against a different person; or
c. A different intentional tort against a different person.
Battery
A defendant is liable to the plaintiff for battery when he:
- Causes a harmful or offensive contact with the person of another; AND
- Acts with the intent to cause such contact or the apprehension of such contact
Assault
An actor is subject to liability to another for assault if:
- he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
- the other is thereby put in such imminent apprehension.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
i. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
ii. Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
1. to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
2. to any other person who is present at the time, if such distress results in bodily harm.
False Imprisonment
False imprisonment occurs when a person acts:
i. Intending to confine or restrain another within boundaries fixed by the actor;
ii. Those actions directly or indirectly result in such confinement; and
iii. The other is conscious of the confinement or is harmed by it.
Shopkeeper’s Privilege
A shopkeeper’s reasonable detention of a suspected shoplifter is NOT an invalid use of authority and therefore not false imprisonment. The detention must be reasonable in both duration and manner.
Trespass
Tangible invasion by an actor of property possessed by another, whether by the actor herself, or by other persons, animals, mechanized devices, or natural or artificial substances for which the actor is responsible.
Trespass to Chattels
a. A defendant is liable for trespass to chattels (e.g., tangible personal property) if he intentionally interferes with the plaintiff’s right of possession by either:
i. Dispossessing the plaintiff of the chattel; or
ii. Using or intermeddling with the plaintiff’s chattel.
Conversion
a. A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff’s damages are the chattel’s full value at the time of conversion.
i. Only personal property and intangibles that have been reduced to physical form (example: promissory note) can be converted.
Negligence
- P has suffered an injury
- P can establish that she was owed a duty of care
- P can show that D breached that duty of care
- Causation: D’s actions caused P’s injury
(Cause in fact and Proximate cause)
Injury (Negligence)
a. P must show an adverse effect in order to recover:
i. Physical harm: bodily harms or harms to tangible property
ii. Economic harm:
iii. Emotional distress:
Duty (Negligence)
i. An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.
ii. In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.
Premises Liability
Generally, possessor owes the trespasser NO duty of care; the possessor owes the licensee the duty to make safe dangers of which the possessor is aware; and the possessor owes invitees the duty to exercise reasonable care to protect them against BOTH known dangers and those that would be revealed by inspection.
Negligence Per Se
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.
Res Ipsa Loquitor
“The Thing Speaks For Itself”
- Defendant had exclusive control of the thing causing the injury
- The accident is of such a nature that it ordinarily would not occur in the absence of negligence by D
- P not contributorily negligent
Causation
P must show that D actually caused P’s injuries, and that he did so proximately (non-fortuitously) by a preponderance of the evidence. Generally a question for the JURY.
Negligence Defenses
i. Ways that the law might deal with P’s negligence:
1. Intentional torts: Ignore P’s negligence.
2. Contributory negligence. : Make P’s negligence a bar to P recovering. Advantages: efficiency, individualistic ethic, holding individuals responsible for their own actions. No resources to administer complicated apportionment of fault and damages among parties. Plaintiff may be the lowest cost avoider.
3. Admiralty rule: Equally divide responsibility between P and D when both P and D are negligent, regardless of their degrees of fault.
4. Comparative responsibility: Allocate responsibility between P and D based on their relative degrees of fault. Advantages: creates incentives for both plaintiffs and defendants to avoid accidents jointly. Also, people who are primarily responsible for their own losses should be made to bear them.
Strict Liability
While negligence requires showing D was at-fault, under strict liability D is liable without fault.
Elements of Products Liability
P must suffer an injury.
D must be selling a product. (NOT sale of services)
D must be a commercial seller.
The defect must have been the actual and proximate cause of P’s injury.
When D sold the product, the product must have been defective.
Manufacturing: Product is alleged to have deviated from the manufacturer’s specifications.
Design
Products Liability Defenses
i. Comparative responsibility
ii. Assumption of risk
iii. Product misuse (in some jurisdictions).
iv. Pre-emption
Respondeat Superior
i. If an employee commits a tort while acting within the scope of his employment, employer may also be held liable. (Applies to all torts.)
1. Employer may be both directly liable for its own negligence (hiring an employee they should have checked out, improperly supervising, etc.) and vicariously liable for the employee’s negligence ð employer is jointly and severally liable to P with the tortfeasor employee
Defamation
a. A plaintiff may bring an action for defamation:
i. If the defendant’s defamatory language;
ii. Is of or concerning the plaintiff;
iii. Is published to a third party who understands its defamatory nature; and
iv. It damages the plaintiff’s reputation.
Defamation Defenses
i. Truth: Truth is an absolute defense to a claim of defamation.
ii. Consent: Consent by the plaintiff is a defense, but as with other torts, a defendant cannot exceed the scope of the plaintiff’s consent.
iii. Absolute Privileges: Statements made under the following circumstances are shielded by absolute privilege:
1. In the course of judicial proceedings;
2. In the course of legislative proceedings;
3. Between husband and wife; and
4. Required publications by radio, television or newspaper.
