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Flashcards in Torts Deck (97):

Prima Facie case: Intentional tort

(i) Volitional movement by defendant (act)
(ii) Intent (Specific or general)
(iii) Causation (substantial factor)


Transferred intent

Defendant intends to commit a tort against one person but instead commits a different tort against that person, the same tort against a different party, or a different tort against a different person


When can transferred intent be invoked?

Assault; battery; false imprisonment; trespass to land; trespass to chattel


Prima facie case: Battery

(i) Harmful or offensive contact (reasonable person); (direct or indirect)
(ii) To plaintiff's person (includes anything connected to person)
(iii) intent
(iv) causation


Prima facie case: Assault

(i) An act by defendant creating a reasonable apprehension in plaintiff (apparent ability of plaintiff to commit batter is enough)
(ii) of immediate harmful or offensive contact to plaintiff's person
(iii) Intent
(iv) Causation


Prima Facie Case: False Imprisonment

(i) An act or omission on the part of defendant that confines or restrains plaintiff
(ii) to a bounded area
(iii) Intent
(iv) Causation


False imprisonment: Sufficient methods of confinement

(i) Physical barriers
(ii) Physical force
(iii) Threats of force
(iv) Failure to release
(v) Invalid use of legal authority
(Exception) Moral pressure and future threats are insufficient


False Imprisonment: does the plaintiff need to know of confinement?

Yes; or at least be harmed by it


False imprisonment: what is a bounded area?

Freedom of movement must be limited in all directions; Must be no reasonable means of escape known to plaintiff


Prima facie case: IIED

(i) an act by defendant amounting to extreme and outrageous conduct
(ii) intent or recklessness
(iii) causation
(iv) Damages – Severe emotional distress


IIED: Extreme and outrageous conduct

Transcends all bounds of decency. May become so even if not initially if (i) continuous; (ii) directed towards a certain type of individual (children, elderly, pregnant women, supersensitive adult when defendant knows of sensitivity); (iii) committed by type of defendant (common carriers or innkeepers)


IIED: Causation in bystander case, what must they show?

(i) present when injury occurred
(ii) close relative of injured person
(iii) D knew facts (i) and (ii)


Prima facie case: Trespass to land

(i) Physical invasion of plaintiff's real property (must be person or object)
(ii) Intent (need only intent to enter land, not intend to trespass)
(iii) Causation


Prima facie case: Trespass to chattel

(i) Act by defendant that interferes with plaintiff's right of possession in a chattel (intermeddling (directly damaging) or dispossion (depriving lawful right to possession of chattel))
(ii) Intent
(iii) causation
(iv) Damages


Prima facie case: Conversion

(i) An act by defendant that interferes with plaintiff's right of possession in chattel
(ii) Interference is so serious that it warrants requiring defendant to pay the chattel's full value
(iii) Intent
(iv) Causation


Defense to intentional tort: Consent

(1) Cannot consent to a criminal act

(2) Express consent: exceptions; (i) mistake will undo express consent if defendant knew of and took advantage of the mistake; (ii) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; (iii) consent obtained by duress

(3) Implied consent: apparent consent is where reasonable person would infer from custom and usage or plaintiff's conduct; consent implied by law arises when action is necessary to save a person's life or some other important interest in person or property

(4) Individuals without capacity are incapable of consent


Defense to intentional tort: Self defense

(1) Reasonably beliefs that she is being or about to be attacked. May use such force as is reasonably necessary to protect against injury

(2) No need to attempt escape

(3) Not available to initial aggressor

(4) may extend to third party injuries

(5) Reasonable mistake as to existence of danger is allowed

(6) may only used that force that reasonably appears to be necessary to prevent the harm


Defense to intentional tort: Defense of others

(1) may use force to defend another when the actor reasonably believes that the other person could have used force to defend themselves

(2) reasonable mistake is allowed

(3) may use as much force as could have used in self-defense if he were the one threatened


Defense to intentional tort: Defense of property

(1) One may use reasonable force to prevent the commission of a tort against her real or personal property

(2) A request to desist or leave must first be made unless it would clearly be futile or dangerous

(3) one may not use after tort has been committed except hot pursuit

(4) mistake allowed whether intrusion or request to desist has been made; not allowed if defendant had privilege unless entrance is conducted in a manner to make the plaintiff believe no privilege

(5) No force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm


Defense to intentional tort: Reentry onto hand

Not allowed, but summary procedures are available


Defense to intentional tort: Recapture of chattels

Force may only be used when in hot pursuit of one who obtained possession wrongfully


Defense to intentional tort: Entry onto land to remove chattel

(1) privileged to enter land of wrongdoer and reclaim at a reasonable time and in a reasonable manner after first making a demand for return

(2) same for innocent party, but chattel owner will be liable for any actual damage caused by the entry

(3) no privilege if the chattels are on the land through the owner's fault


Defense to intentional tort: Privilege of arrest felony

(1) Felony must have been committed and citizen must reasonably believe that the person he arrests committed it

(2) can use force reasonably necessary to make the arrest; deadly force only when the suspect poses a threat of serious harm


Defense to intentional tort: Misdemeanor arrest

(1) Must be breach of peace and committed in the arresting party's presence

(2) Degree of force reasonably necessary; never deadly force


Defense to intentional tort: Necessity

(1) reasonably and apparently necessary to avoid threatened injury from a natural force or other force

(2) when threatened injury is substantially more serious than the invasion that is undertaken to avert it

(3) under private necessity, must pay for any injury caused


Defense to intentional tort: Discipline

parent or teacher may use reasonable force in disciplining children


Prima facie: Defamation

(i) defamatory language (tending to adversely affect one's reputation)
(ii) of or concerning the plaintiff
(iii) publication
(iv) damage to plaintiff's reputation


Defamation: Constitutional elements for matter of public concern

(1) Falsity of the defamatory language
(2) Fault on the part of defendant (knowledge that statement was false or reckless disregard as to whether it was false) (No malice need be show for private persons, only negligence)


Defamation: Group defamation

(1) defamatory refers to all members of a small group
(2) Statement refers to some members of a small group, plaintiff can recover if a reasonable person would view the statement as referring to plaintiff


Defamation: Libel

(1) Written or printed publication of defamatory language (includes radio broadcast)

(2) Does not need to prove special damages


Defamation: Slander

(1) must prove special damages unless slander per se: (i) adversely reflect one's conduct in business or profession; (ii) one has a loathsome disease (iii) guilty of a crime involving moral turpitude; (iv) a woman is unchaste.


Defense to defamation: Consent

Complete defense


Defense to defamation: Truth

Where falsity is not a required showing, defendant may prove truth as a complete defense


Defense to defamation: Absolute privilege

Remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in "compelled" broadcasts, between spouses


Defense to defamation: Qualified privilege

(1) can be lost through abuse; malice; or if not within scope of privilege
(2) Reports of official proceedings; statements in the interest of the publisher; defense of one's actions, property, or reputation; statements in the interest of the recipient; statements in the common interest of the publisher and recipient


Invasion of right of privacy: Appropriation of plaintiff's picture or name

(1) unauthorized use
(2) for defendant's commercial advantage


Invasion of right of privacy: Intrusion on Plaintiff's affairs or seclusion

(1) prying or intruding
(2) Highly offensive to a reasonable person
(3) must be intrusion into something private


Invasion of right of privacy: Publication of facts placing plaintiff in false light

(1) attributes to plaintiff
(2) views he does not hold or actions he did not take
(3) highly offensive to a reasonable person under the circumstances
(4) must be publicity
(5) if matter of public interest, malice on defendants part must be proved


Prima facie case: Intentional misrepresentation

(1) Misrepresentation of a material fact
(2) Scienter (knew or believed it was false or that there was no basis for the statement
(3) Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation
(4) causation (actual reliance)
(5) Justifiable reliance
(6) Damages


Prima facie case: Negligent misrepresentation

(1) Misrepresentation by defendant in business or professional capacity
(2) Breach of duty toward a particular plaintiff
(3) causation
(4) justifiable reliance
(5) damages


Prima facie case: Interference with business relations

(1) Existence of a valid contractual relationship between plaintiff and third party or valid business expectancy of plaintiff
(2) Defendant's knowledge of the relationship or expectancy
(3) Intentional interference by defendant inducing a breach or termination of the relationship or expectancy
(4) damages


Interference with business relations: privileges

where it is a proper attempt to obtain business for itself or protect its interests: (i) interfered with prospective business rather than existing contracts; (ii) used commercially acceptable means of persuasion; (iii) is a competitor of plaintiff seeking same prospective customers; (iv) has a financial interest in or responsibility for the third party, or is responding to the third party's request for business advice


Prima facie case: Malicious prosecution

(1) Institution of criminal proceedings against plaintiff
(2) termination in plaintiff's favor
(3) absence of probable cause for prior proceedings
(4) Improper purpose
(5) damages


Prima facie case: Abuse of process

(1) wrongful use of process for an ulterior purpose
(2) definite act or threat against plaintiff in order to accomplish ulterior purpose


Prima facie case: Negligence

(1) Duty to conform to a specific standard of care
(2) Breach of that duty
(3) actual and proximate cause
(4) Damages


Specific situations where duty is owed

(1) Rescuers (foreseeable) (but see "firefighters rule")
(2) Prenatal injuries: duty is owed to viable fetus
(3) intended beneficiaries of economic transactions


Standard of care

Reasonable person: objective. Same physical characteristics, but mental inexperience is not taken into account


Particular standards of conduct/care

(1) professionals: knowledge and skill of a member of the profession or occupation in good standing in similar communities. Duty to disclose risks of treatment.

(2) Children: Like age, education, intelligence, and experience unless engaged in adult activities

(3) Common carriers and innkeepers: very high degree of care

(4) Automobile driver to guest: duty of ordinary care (some states have liability for no paying passengers only for reckless tortious conduct)

(5) Bailment (duties owed by bailee): (i) for a sole benefit of bailor bailment, low standard of care; (ii) for sole benefit of bailee, high standard of care; (iii) mutual benefit ordinary standard of care

(6) Bailment (duty owed by bailor): For sole benefit of bailee, the bailor must inform the bailee of known dangerous defects in the chattel

(7) Emergency situations: as a reasonable person would act under the same emergency conditions


Duty of possessor of land to those off premises

(1) No duty to protect from natural conditions
(2) duty for unreasonably dangerous artificial conditions or structures abutting adjacent land


Duty of possessor of land: to trespassers

(1) No duty to undiscovered trespasser
(2) Duty to discovered or anticipated trespassers: (i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving death or serious bodily harm; (ii) use reasonable care in the exercise of "active operations" on the property


Duty of possessors of land: attractive nuisance

(1) ordinary care to avoid reasonably foreseeable risk of harm to children cause by artificial conditions on property
(2) elements: (i) dangerous condition on the land that the owner is or should be aware of; (ii) owner knows or should know children frequent the vicinity of the condition; (iii) the condition is likely to cause injury; (iv) the expense of remedying the situation is slight compared with the magnitude of the risk


Duty of possessor of land: licensees

(1) on property with possessor's permission for her own purpose or benefit
(2) duties: (i) warn of dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and the licensee is unlikely to discovery; (ii) exercise reasonable care in the conduct of "active operations" on the property.


Duty of possessor of land: Invitees

(1) on property with possessor's permission for possessors benefit, or land held open to public
(2) duty to licensee plus duty to make reasonable inspections to discover nonobvious dangerous conditions and make them safe


Duty of lessor and lessee

(1) Lessee: General duty to maintain the premises

(2) Lessor: must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection; liable for unreasonably dangerous conditions if covenant to repair; liable for negligent repairs if repairs


Statutory duties of care

(1) statute provides for criminal penalty
(2) statute clearly defines the standard of conduct
(3) Plaintiff is within the protected class
(4) designed to prevent the type of harm suffered


Duty for negligent infliction of emotional distress

(1) plaintiff must be in the "zone of danger"
(2) plaintiff must suffer from physical symptoms of distress


Negligent infliction of emotional distress special situations

(1) Outside zone of danger: (i) plaintiff and the person injured are closely related; (ii) plaintiff was present at the scene of the injury; (iii) plaintiff personally observed or perceived the event

(2) Special relationship between plaintiff and defendant: Doctor's negligence in misdiagnosis

(3) other: defendant's negligence creates a great likelihood of emotional distress (funeral parlor)


Affirmative duties to act

(1) Generally no duty to act
(2) one may assume a duty to act by acting (but see good samaritan statutes)
(3) peril due to defendant's conduct (duty to assist someone who you have put in peril)
(4) Special relationship between parties
(5) duty to control third persons: generally no duty to prevent a third person from injuring another; duty may be imposed if one has actual ability and authority to control a persons's actions and knows or should know the person is likely to commit acts that would require exercise of this control


Breach of duty

Falls short of the level of care required


Res ipsa loquitor

makes out prima facie case
Elements: (1) accident causing the injury is a type that would not normally occur unless someone was negligent
(2) negligence is attributable to defendant (exclusive control of instrumentality)


Actual cause: But for

Injury would not have occurred but for the act


Actual cause:joint causes - substantial factor

Where several causes bring about injury and any one alone would have been sufficient, defendant's conduct is the cause in fact if it was a substantial factor in causing the injury


Actual cause: Alternative causes

(1) two acts, only one cased injury, don't know which one
(2) Burden of proof shifts to defendants to show that their negligence was not the actual cause


Proximate cause: direct cause

(1) foreseeable
(2) Examples: (i) subsequent medical malpractice; (ii) negligence of rescuers; (iii) efforts to protect the person or property of oneself or another; (iv) injuries caused by another reacting to defendant's actions; (v) subsequent diseases cause by weakened condition; (vi) subsequent accident substantially caused by the original injury


Proximate cause: indirect cause

(1) an affirmative intervening force comes into motion after defendant's negligent act
(2) common examples: (i) negligent acts of third persons; (ii) crimes and intentional torts of third persons; (iii) acts of gods


Damages: personal injury

All damages both economic and noneconomic


Damages: property

Cost of repair or FMV at time of accident if severe (conversion)


Damages: Punitive

May recover for wanton and willful reckless or malicious behavior


Damages: Nonrecoverable

(1) interest from date of damage
(2) attorney's fees


Damages: duty to mitigate

Duty to take reasonable steps to mitigate damages


Damages: collateral source rule

Damages are not reduced just because plaintiff received benefits from other sources


Exceptions to contributory negligence

(1) no defense to intentional torts
(2) last clear chance: (i) helpless peril: (ii) inattentive peril; (iii) prior negligence


Imputation of contributory negligence

Contributory negligence is imputed to plaintiff only when relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence


Assumption of the risk

(1) elements: (i) knew of the risk; (ii) voluntarily proceeded in the face of the risk
(2) Implied assumption: where risk is one that an average person would clearly appreciate (no assumption if no alternative but proceeding in the face of the risk)
(3) no defense to intentional torts


Comparative negligence

(1) partial: if plaintiff is more negligent than defendant then no recovery
(2) pure: plaintiff can always recover


Prima facie case: Strict liability

(1) nature of activity imposes an absolute duty to make safe
(2) dangerous aspect of the activity was the actual and proximate cause of the injury
(3) damage


Strict liability: Animals

(1) trespassing animals: strictly liable for reasonably foreseeable damage done
(2) wild animals: strictly liable to licensees and invitees for injuries
(3) domestic animals: not strictly liable unless personal knowledge of particular animals dangerous propensity


Strict liability: abnormally dangerous activity

(1) activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
(2) activity is not a matter of common usage in the community


Products liability: theories of liability

(1) Intent
(2) Negligence
(3) Strict liability
(4) Implied warranty of merchantability and fitness for a particular purpose
(5) representation (express warranties and misrepresentation)


Products liability: Manufacturing defect

Dangerous because it differs from its intended design (failed to perform as safely as an ordinary consumer would expect)


Products liability: Design defect

Could have been made safe with alternative design that would not have serious impact on price or utility


Products liability: Inadequate warnings

Failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users (may have "learned intermediaries")


Products liability: compliance with government standards

(1) compliance is evidence of non defect
(2) noncompliance establishes defect


Products liability: unavoidably unsafe products

No liability for some dangerous products (knives) if the danger is apparent and there is no safer way to make the product


Products liability: causation in negligence

Intermediary's negligent failure to discover a defect does not supersede the original manufacturer's negligence unless it exceeds ordinary foreseeable negligence


Products liability: defenses/exceptions

(1) substantial alteration
(2) does not extend to services
(3) solely economic loss
(4) comparative negligence/assumption of the risk


Prima facie case: nuisance

(1) substantial, unreasonable interference (offensive, inconvenient, annoying to average person of the community) (must outweigh utility of defendant's conduct)
(2) with another private individual's use or enjoyment of property that he actually possesses (or right of immediate possession)


Respondeat superior

(1) employer is liable for tortious acts of employee within the scope of employment
(2) minor deviations still count, but if major no liability for employer
(3) Intentional torts: liability only (i) force is authorized in the employment; (ii) friction is generated by the employment; (iii) employee is furthering the business of the employer


Vicarious liability: independent contractors

(1) Generally not vicariously liable
(2) exceptions: (i) inherently dangerous activity; (ii) non delegable duty


Vicarious liability: automobile

(1) generally not liable for another person driving your car
(2) Family car doctrine: liable for conduct of immediate family driving with express or implied permission
(3) permissive use: liability on owner for damage caused by anyone driving with owner's consent
(4) negligent entrustment: may be liable for negligently entrusting car


Vicarious liability: Parent for child

(1) not vicariously liable at common law
(2) exceptions: (i) child acting as agent; (ii) parent's own negligence: may be liable for allowing the child to do something


Vicarious liability: tavern keepers

(1) no liability at common law
(2) modern law: dramshop acts



A defendant who pays more than his share of damages under joint and several liability can bring a claim for the excess against the other jointly liable parties



(1) shifts entire loss
(2) where applicable: (i) by contract; (ii) in vicarious liability situations; (iii) under strict liability; (iv) in some jurisdictions, where there has been an identifiable difference in degree of fault


Governmental tort immunity: federal government

(1) Waived immunity towards: (i) assault; (ii) battery; (iii) false imprisonment; (iv) false arrest; (v) malicious prosecution; (vi) abuse of process; (vii) libel and slander; (viii) misrepresentation and deceit; (ix) interference with contract rights
(2) not waived for acts that are "discretionary" as distinguished from "ministerial"


Governmental tort immunity: state and local

(1) generally waived to extent as federal
(2) Public duty rule: duty owed to public at large is not owed to any particular citizen absent a special relationship between the government body and the citizen


Government tort immunity: public officials

Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability can attach for ministerial acts