Torts Flashcards
(30 cards)
Battery
Intends (substantial certainty)
Harmful (Physically hurts Π)
or
Offensive (Unpermitted contact with Π)
contact with
Π’s person (As long as Π physically holds item touched)
Assault
∆ places Π in reasonable apprehension (no “fear” req. … check if Π knows gun is unloaded)
of an
immediate batterty (need more than mere words … words can also negate immediacy)
False Imprisonment
∆ commits an act of restraint (Threats, ommissions, physical restraints)
and
Π is confined to a bounded area. (Is there a reasonable means of escape that Π can discover?)
I.I.E.D.
∆ engages in outrageous conduct
- continuous/repetitive;
- common carrier/innkeeper;
- Π is “fragile person”; or
- ∆ has prior knowledge of a Π’s specific senstivity.
and
Π suffers severe distress (No specific proof req. but must be severe!)
Trespass to Land
∆ commits a physical invasion (∆ walking on his own volition)
of
land. (reasonable air above and support below)
Trespass to Chattels (and Conversion)
Deliberate and intentional interference with Π’s personal property
Level of harm: T-pass to chattels < Conversion
Remedies–
- T-pass to chattels = Cost of repairs
- Converstion = Full value of item (“you break it, you buy it”)
Affirmative Defenses - Consent
Π must have legal capacity to consent
Express consent - Π’s “words”
Implied consent - by–
- custom (Π is tackled playing football)
- Π’s body language (kiss at end of dinner)
Cannot exceed the scope
Affirmative Defenses - Protective Privileges
Need proper timing (No revenge)
∆ has reasonable belief the threat is genuine (a reasonable mistake doesn’t destroy the privilege)
∆’s use of force = the threat
Affirmative Defenses - Necessity
Public necessity - Absolute defense
Private necessity - ∆ liable for compensatory damages (not nominal/punitive) … Π can’t evict until emergency is over
Defamation
∆ makes a defamatory statement, identifying the** Π** (Affects Π’s reputation)
and
“publishes” the statement (∆ tells it to more than 1 person)
and
Π is damaged
- libel/slander per se … damages presumed
- slander … P must prove economic harm
Defamation - Affirmative Defenses
Consent
Truth
Privileges (the statement is false!)
- Absolute… [status of ∆] convos between spouses & gov’t officers
-
Qualified… [circumstance of speech] Public interest wants candor
- in good faith
- about relevant matters
Statements of public concern. Π must also prove: (NY Times v. Sullivan)
- statement is false (presumed true)
- ∆ was at faut (intent of ∆ in making statements)
In Mass., every P must prove at least negligent publication (even if it is not a matter of public concern).
Negligence
Duty
Breach
Causation
Damages
Negligence - Duty
Who does ∆ owe duty? Foreseeable vicitms (Rescuers are foreseeable)
What is duty? Reasonably Prudent Person (RPP) unless 6 exceptions–
- Children
- Professionals
- Premises
- Statutory (Negligence per se)
- Affirmative Act?
- N.I.E.D.
Negligence - Duty - Children
No duty under 5 years old
After 5 (before 18) duty is hypothetical child of similar age, experience, and intelligence acting under similar circumstances (SUBJECTIVE, no RPP’s objective)
unless
child engaged in adult activity
Negligance - Duty - Professionals
Restatement: “Exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities.”
∆ compared to his real-world colleageus
Impirical standard
Negligence - Duty - Premises Liability
Undiscovered Trespasser - No liability (unforeseeable victim)
Discovered (aka “anticipated”) Trespasser - Duty if condition is–
- artificial (Man-made);
- Highly dangerous;
- Concealed from trespasser; and
- landowner has Prior knowledge.
Licensee - (non econoimc guest) Duty if Concealed and Prior knowldge
Invitee - (economic guests) Duty if–
- Concealed from invitee; and
- Possessor has Prior knowledge or could have Discovered through a reasonable inspection.
Trespassing Children - Duty of reasonable prudence to protect from an artificial condition.
- know/should know kids will come (if you build it, they will come)
- dangerous b/c child is unable to appreciate the risk
- cost of remedying is slight compared to magnitude of risk
Firefighter’s Rule - cops/firemen can never recover for injuries sustain in their job.
(In Mass., Lawful entrants = (general duty of reasonable prudence under the circumstances) versus Unlawful entrants = No duty owed at all. Except a trespasser known in a possession of peril, duty to prevent injury (reasonable care))
Negligence - Duty - Negligence Per Se
Π can establish automatic breach of duty when statute covers class of person/class of risk (“CPR”)
Except if compliance with statute is more dangerous or impossible.
Negligence - Duty - Duty to Act (rescue)
No duty to rescue unless–
- Pre-existing relationship
- ∆ put Π in peril
- ∆ decides to rescue.
Negligence - Duty - N.I.E.D.
Need to show ∆’s negligent act;
then
Π** injured** (physical symptoms) by–
- “near-miss” (Π is in FEAR because Π is in zone of danger);
- “bystander case” (Π is in GRIEF becuase Π is close relative of victim and contemporaneous viewer)
- “relationship case” (Π and ∆ have a business relationship and highly foreseeable that carelessness will produce significant stress.)
Negligence - Breach
Identify specific [conduct] + [reason] conduct is bad–
- ∆ had 8 drinks and got into his car, this is unreasonable because drinking alcohol impairs your ability to drive.
Res ipsa loquitor: The accidient is–
- normally associated w/ negligence; and
- normally due to negligence of someone in ∆’s position.
Negligence - Causation
Factual Cause - “BUT FOR” test … (“Π will argue ∆’s consumption of 8 drinks is A factual cause”)
- If 2 ∆s … Show each is a substantial factor (each could’ve caused it by themselves)
- If ∆s … Show an unascertainable cause (shifts burden to ∆ to show he wasn’t at fault).
Proximate Cause - Foreseeability, look for wierdness/remoteness… Is Franz Ferdinand’s hungover body guard liable for the holocaust?
- Medical negligence - ∆ liable for negligent docs
- Negligent rescue - ∆ liable for negligent rescues
- Protective/reactive forces - ∆ liable for causing chaos that injures Π
- Subsequent disease/accident - ∆ liable for Π falling in his cast.
Negligence - Damages
Eggshell skull doctrine - ∆ liable for frail Πs
Pure comparative negligence - Π recovers no matter how much @ fault he is.
- Partial comparative negligence
Joint and several liability - Each ∆ liable for entire damage incurred.
Contribution (after joint/several liablity applies) - ∆ can go after other parties who are at fault.
Negligence - Defenses
Comparative Negligence - ∆ can show Π was liable for % of fault & reduce damages by that %.
Strict Liablity
∆’s safety precautions are irrelevant
Animals
- Domestic: First bite rule
- Wild: Strict liablity
Abnormally dangerous activities
- creates a foreseeable risk of serious harm even when reasonable care is exercised and not a matter of common usage
- blasing (explosives); using/transporting hazmats; and nuclear energy/radioactive materials.
Product liability … ∆ is a merchant and product is defective– (and was defective when it left ∆)
- Mfr. defect - the coke bottle with a toe in it (“one in a million”)
- Design defect - there’s a safer and feasible alternative which is not terribly more expensive and doesn’t interfere with use.
- But see Info defect - risk cannot be designed away and unaware consumers are not warned.
