Torts Rules Flashcards
Transferred Intent Doctrine - Five Relevant Torts - You Can’t BAIL if you intended one tort but did something else
trespass to CHATTELS
BATTERY
ASSAULT
false IMPRISONMENT
trespass to LAND
Negligence - Elements to make out a Prima Facie case - Any band that puts out a DRAB CD is guilty of negligence to its fans.
DUTY to exercise
REASONABLE care
to ANYONE in plaintiff’s position
a BREACH of the duty to prevent the foreseeable risk of harm
CAUSATION (actual/”but for” and proximate/legal) resulting DAMAGES caused by the breach
Negligence - Alternative Standards of Care beyond “the reasonable person” - SKIDMART didn’t HELP that COUPLE so they’ll be held to a different standard of care.
- *S**CHOOL and pupils (special relationship)
- *K** duty (contractual special relationship)
INNKEEPER and guests (“highest” duty)
- *D**RAMSHOP laws impose liability upon drinking establishments
- *M**ALPRACTICE standards for professionals liability to AUTOMOTIVE non-paying guests for reckless driving
- *R**ES ipsa loquitur
- *T**RAVELERS aboard a common carrier (“highest” duty)
- *H**OSPITAL and patients (special relationship) EMPLOYER and employees (special relationship) LANDLORD and tenants (special relationship) PRISONERS held by law enforcement (special relationship)
- *C**REATION of harm - duty to alleviate consequences of defendant’s act when it creates risk of harm to others, even if act was not negligent
- *O**WNER/OCCUPIER of land - varying duties to invitees, licensees and trespassers
UNDERTAKING to act - may not abandon an attempted rescue if defendant leaves plaintiff in worse condition
negligence
- *P**ER SE - statute conclusively establishes standard for liability (reasonableness of defendant’s actions irrelevant)
- *L**OCAL ordinance violation by defendant is “evidence of negligence” by defendant - helps plaintiff establish prima facie case
- *E**MERGENCY situation will lower defendant’s standard of care unless defendant’s negligence caused the emergency
Causes of action related to Products Liability – I use PENS and when they explode, I sue for products liability.
- *I**MPLIED warranty under UCC 2-314 to 2-318 (merchantability, fitness for a particular purpose, remote purchasers covered)
- *P**UBLIC misrepresentation under restatement 402(B)
- *E**XPRESS warranty under UCC 2-313
- *N**EGLIGENCE
- *S**TRICT products liability - known as “Absolute Liability in Tort” under Restatement 402(A)
Bases of Strict Liability for Injury to Persons or Property - You will be strictly liable for missing the day if you are not UP at DAWN.
ULTRA-HAZARDOUS, abnormally dangerous activities
defective PRODUCTS
- *D**OMESTIC animals with known dangerous propensities
- *A**LL injuries caused by wild ANIMALS
- *W**ORKER’s compensation (statutory strict liability)
NO-FAULT automobile insurance (statutory strict liability)
Causes of Action for Economic Injury - Causing FAMINE is an economic tort.
- *F**RAUD- misrepresentation of a past or present material fact
- *A**BUSE of process - initiation of civil or criminal proceedings against plaintiff with malicious intent (prior action NEED NOT have terminated in favor of present plaintiff)
MALICIOUS prosecution - initiation of civil or ciminal proceeding against plaintiff with no probable cause that plaintiff is liable or guilty, malicious intent (prior action MUST have terminated in favor of present plaintiff) INJURIOUS falsehood (disparagement) - recklessly or intentionally published false assertion of fact leading to pecuniary injury caused by 3rd party’s response
NEGLIGENT misrepresentation - negligent misstatement of material fact in business of supplying information to others justifiably relied upon by plaintiff
interference with prospective ECONOMIC advantage, including contractual relations
Theories of Vicarious Liability - I DARE Plaintiff to Join vicariously liable tortfeasors.
DELEGATION of danger
AUTOMOBILE ownership
negligent entrustment (knew of unsafe driving habits)
use by family members for a family purpose
statutory liability for consenting to another’s use of the vehicle
RESPONDEAT superior - “master” liable for acts of “servant” if committed within scope of employment
Negligent ENTRUSTMENT of dangerous instrumentalities to a child
known PROPENSITIES (failure to control child’s known dangerous PROPENSITIES)
JOINT enterprise - when two or more persons act in concert
DELEGATION of non-delegable duties (inherently dangerous work, like excavation)
Defenses to Defamation – Privileges - It’s bad P.R. to defend FOGIES in defamation cases.
PROCEEDINGS of legislative or judicial branch where statement occurred
REPORTS of public proceedings
- *F**IRST amendment qualified privileges - non- malicious statements about public figures and public controversies, non-negligent statements about a private person
- *O**PINIONS (fair comment opinions)
GOVERNMENT officials’ official statements
- *I**NTEREST (statements made in the INTEREST of self, third persons or the public)
- *E**QUAL time broadcasts
- *S**POUSES Communication
Attractive Nuisance - Test To Determine Liability - An attractive nuisance is a REAL threat to the safety of children.
RECOGNITION of danger (that children fail)
- *E**XPENSE of making condition is slight compared to danger
- *A**RTIFICIAL (dangerous condition on property is ARTIFICIAL)
- *L**IKELY trespassors (children are LIKELY to trespass on property (and possessor knows or should know)
Statements that Constitute Slander Per Se - It’s slander per se to call someone SLIM.
SEXUAL misconduct (lack of chastity of a woman) LOATHSOME, communicable disease
INCOMPETENCE in trade or profession
conduct/crime involving MORAL turpitude
Defenses to Intentional Torts - Hell hath no fury like A SCORN’D tort victim.
- *A**RREST (use of reasonable force to effect an ARREST)
- *S**HOPKEEPER’s privilege to detain suspect for reasonable time using non-deadly force
CONSENT
defense of OTHERS if protected party was entitled to use same amount of force
RECAPTURE of property if entitled to immediate possession
NECESSITY for public purpose or to abate nuisance DEFENSE of self, land and chattels under protective privilege
Available Remedies - Damages, Restitution, Equity - Get back at a tortfeasor by Playing CLARINET.
PUNITIVE damages for willful, wanton or malicious conduct normally associated with intentional torts COMPENSATORY damages for past, present and foreseeable future loss or injury (unforeseeable special damages must be specifically pleaded)
equitable LIEN on defendant’s property to secure payment of debt owed to plaintiff
ASSUMPSIT(quasi-contract) suit to recover reasonable value of a benefit unjustly retained by defendant (plaintiff must waive tort liability)
- *R**EPLEVIN to recover possession of specific personal property wrongfully taken
- *I**NJUNCTION if there is inadequate remedy at law, threat of multiplicity of suits, damages are speculative or too small, and plaintiff will suffer from irreparable injury
- *N**OMINAL damages recoverable where no injury sustained
- *E**JECTMENT to restore possession of real property from which plaintiff was wrongfully ousted, PLUS mesne damages (rental value during that period)
constructive TRUST- equitable creation of a “trust” to compel defendant to reconvey title to property unjustly retained
Limitations on Awarding of Damages – You Can’t CUF tort damages without one of these.
damages must be CAUSED by defendant’s breach (“but for” causation)
sufficiently CERTAIN - damages cannot be speculative
UNAVOIDABLE - no recovery for losses which reasonably could have been avoided or mitigated FORESEEABLE - damage/injury must be foreseeable at the time duty is breached (proximate cause)
Defenses to Claims Brought in Equity - Rights in equity LAPSE if U assert a proper defense.
LACHES- equity aids the vigilant, not those who knowingly sit on rights waiting for a defendant to detrimentally change position
freedom of ASSOCIATION- equity will not interfere with the internal management of an ASSOCIATION (exception: where property right is embedded in association membership)
injunction against PROSECUTION- equity will not enjoin PROSECUTION of a crime (exception: where criminal statute has been declared unconstitutional)
freedom of SPEECH- equity will not enjoin SPEECH (exception: national security at stake, sometimes trade libel)
injunction to ENJOIN crime- equity will not ENJOIN crime (exception: public nuisance if criminal prosecution is an inadequate remedy)
UNCLEAN hands- he who seeks equity must do equity (where plaintiff’s unclean conduct is related to subject matter of suit and defendant is injured by it)
Absolute Privilege
The following communications are always protected against defamation claims regardless of content. This is because we as a society want to encourage open and free communication in these situations, or these parties have a special relationship that enable them to speak freely:
a) Spouses speaking to one another;
b) Communications occurring as a part of judicial proceedings;
c) Remarks made by legislators in debate;
d) Remarks by federal executive officers; and
e) Remarks made in ‘compelled’ broadcasts
i. Compelled broadcasts – A broadcast in which the station does not control the content, or the preceding or following message, and has no right to state the station’s agreement or disagreement.
Examples:
a) A husband tells his wife, “Our neighbor Fred is cheating on his wife.”
b) A witness on the stand says, “I heard that defense Attorney Andrews is an alcoholic.”
c) In an open session of Congress, Congressman Frank says, “Congressman Graham is a misogynist.”
d) In a statement to the press, the President says, “The leadership of Apple Corporation are thieving jerks.”
e) In a prepared ad sent by the FCC to radio stations, the stations played an ad that said, “Bob Francis of 45 Main Street, Kansas City, Kansas is a scumbag and cheats on his taxes.”
Qualified Privilege
Defendant’s speech can be protected by other relationships than those comprised by Absolute Privilege if they fall within one of the following categories:
a) Reports made of official proceedings;
b) Statements made in the interest of the publisher of the statement, often including defending the publisher’s actions, property, or reputation;
c) Statements made in the recipient of the statement’s interest; and
d) Statements made in the interest of both publisher and recipient;
These statements are protected because we as a society want to encourage candor so long as:
a) The Statements are made in good faith (had a reasonable belief of the truth of the statements); and
b) The Speaker did not act with Malice (either knowledge that the statement was false or reckless disregard of the statement’s truth).
Defendant bears the burden of proving the existence of a privilege.
Examples:
a) Citizen A publishes a statement in the newspaper saying that “I only attacked B because he was sleeping with my wife.” This statement is defamation if A had knowledge that B was not sleeping with A’s wife or did not bother to try and find out whether that statement was true before he published it.
b) Citizen C posts a flyer saying, “Citizen D, I won’t sue you, even though you are a criminal, because you are an alien and Earth laws don’t apply to you.” This statement is defamation, even though it’s for the benefit of D, because C does not have a reasonable belief about the truth of the statement.
Truth Defense
Truth of the statement is a complete defense to all common law defamation claims. However, when the target of the defamatory statement is a public figure, or the statement is about a matter of public interest, the lack of truth of the statement must be an element of the original defamation claim, and its absence prevents the claim from being complete.
Examples:
a) Frank writes a newspaper editorial claiming that his neighbor George trespassed on Frank’s land every time George mowed his lawn. Frank has a complete defense against George’s defamation claim by proving that the land is Frank’s and providing video footage of George mowing the law.
b) Ben writes a blog post about Governor Patrick claiming that Patrick has a illegitimate child with his maid. Patrick’s defamation claim must show, as a part of the claim, that he has no illegitimate children with his maid, or he no action for defamation.
INTENT
An act by the defendant: Some form of voluntary movement; often liberally construed.
Intent: If acting with purpose or goal to produce the forbidden result, intent will be met.
o Can be specific intent (the goal in acting is to bring about the specific consequences) or general intent (individual knows with substantial certainty that these consequences will result).
CAUSATION
If the defendant’s conduct was a substantial factor in bringing about the injury, causation will be satisfied.
DOCTRINE OF TRANSFERRED INTENT
Applies when a defendant intends to commit one tort but instead commits another (i.e., the intent is transferred from the intended tort to the committed tort for purposes of establishing a prima facie case.) The doctrine can be applied when the defendant intends to commit a tort against one person but instead commits:
o A different tort against that person;
o The same tort as intended but against a different person; or
o A different tort against a different person.
ASSAULT
An act by the defendant that creates a reasonable apprehension in the plaintiff of an immediate harmful or offensive touching.
o Apprehension is not simply fear, but knowledge that the defendant has the apparent ability to carry out the harmful or offensive touching (i.e., the defendant threatens plaintiff with an unloaded weapon, but plaintiff is unaware it is unloaded - the defendant can still be liable for assault).
o Immediacy: The plaintiff must be apprehensive that she is about to become a victim of an immediate battery. Mere words or threats of future acts are insufficient. If the defendant is too far away, will not suffice either
BATTERY
A defendant is subject to liability for battery if:
o He acts intending to cause a harmful or offensive contact, or an imminent apprehension of such a contact; and
o An offensive or harmful contact with the person directly or indirectly results
Types of contact:
○ Offensive: If a reasonable person would be offended by such contact. (NOTE: If it has been consented to = not offensive).
○ Harmful: Anything connected to the plaintiff’s person. The defendant does NOT have to touch the plaintiff. Also, contact can be direct or indirect.
FALSE IMPRISONMENT
An act or omission by the defendant that confines or restrains the plaintiff in a bounded area.
- *Act**: Threats that are persuasive to a person of ordinary sensitivity count (must be a realistic threat).
- *Omission**: Can be an act of restraint (i.e., failing to help a handicapped person off of a plane)
- *Confinement / Restraint Requirement**: Only counts if the plaintiff is (a) aware of it; OR (b) is harmed by it (can be a mental harm or physical harm). Exception: A defendant may be liable for false imprisonment if s/he confines a child or mentally incompetent person even when the victim is not aware of the confinement.
- *Bounded Area**: Plaintiff’s freedom of movement must be limited in all directions. (NOTE: blocking someone’s travel in one direction, moral pressure, or a barricade is NOT False Imprisonment).
INTENTIONAL INFLICTION OF EMTOTIONAL DISTRESS
Defendant must engage in conduct that is considered outrageous and the plaintiff must suffer extreme emotional distress.
Outrageous Conduct: This is conduct that transcends all bounds of decency tolerated in a civil society. Mere insults /words not outrageous but abusive language is. Ways to be outrageous:
o Continuous /Repetitive: Done over and over again, not once
o Defendant is a common carrier /innkeeper: (transportation company, hotel) higher standard of behavior
o Plaintiff is a member of a fragile class: Pregnant women, super-sensitive adults, elderly, young children, members of a race can be (though never tested).
Severe Emotional Distress: Plaintiff must suffer SEVERE emotional distress; badly upset, but need not see a shrink; not “mildly annoyed.”
Intent: Unlike other intentional torts, recklessness as to the effect of Defendant’s conduct WILL satisfy the intent requirement.
Damages: Actual damages (severe Emotional Distress) are required!
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The duty to avoid causing emotional distress to another is breached when the defendant creates a foreseeable risk of physical injury to the plaintiff either by:
o Causing a threat of physical impact that leads to emotional distress; or
o Directly causing severe emotional distress that by itself is likely to result in physical symptoms.
TRESPASS TO LAND
An act of physical invasion on the plaintiff’s Real Property.
o Intent: The defendant need not be aware that he is crossing a property line and does not need to intend to trespass. The intent is to be on that particular piece of land.
o Mistake is NOT a defense. The defendant need not know the land belonged to another.
o Potential plaintiffs: Anyone with actual possession or a right to possession (one by adverse possession and lessees count).
o Physical Invasion: Can be the defendant himself or propelling a tangible object onto the land
o Tangible Objects: Must be a physical object involved (i.e., throwing a baseball in someone else’s yard, causing a flood on the plaintiff’s land, throwing rocks).
o Intangible Objects: Things like sounds, smells, and vibrations are not a trespass but may be a nuisance.
ENCROACHMENT
A piece of real property hangs from one property over the property line of another landowner’s premises. The actual structure that encroaches might be a tree, bush, bay window, stairway, steps, stoop, garage, leaning fence, part of a building, or other fixture.
An encroaching structure is trespass because in order to build you had intent to enter another’s land.
- *Remedy**: Injunction: If the defendant had bad faith = tear the encroachment down. If the defendant is innocent then balance the harm to the plaintiff and the defendant.
- *Damages**: Rental values, Fair Market Value if permanent.
TRESPASS TO CHATTELS
A trespass to chattel may be committed by intentionally:
o Dispossessing another of the chattel; or
o Intermeddling with a chattel in the possession of another.
CONVERSION
An act by the defendant that interferes with plaintiff’s right of possession in personal property (chattel); and
The interference is so serious that it warrants requiring defendant to pay the property’s FULL VALUE at the time of the conversion.
Acts of Conversion: Includes theft, wrongful transfer / detention, and substantially changing, severely damaging, or misusing a chattel.
DEFENSES TO INTENTIONAL TORTS: CONSENT
A defendant will not be guilty of a tort if the plaintiff consented.
o Plaintiff must have legal capacity to consent (incompetents, drunks, very young children cannot consent).
o Scope: Defendant cannot assert consent as a defense if s/he exceeded the scope of the consent
Express: Through express words.
Implied Consent: Consent implied by law or where consent is apparent from the plaintiff’s conduct
DEFENSES TO INTENTIONAL TORTS: SELF-DEFENSE
- *When a person reasonably believes that she is being, or is about to be, attacked, she may use such force as is reasonably necessary to protect against injury.**
- *Initial Aggressor**: Self-defense is generally not available to the initial aggressor. BUT, if one uses deadly force against an initial aggressor who only uses non-deadly force, the initial aggressor may defend himself with deadly force.
- *Amount of Force**: Can only use the amount of force that is reasonably necessary to prevent the harm; any more force and the defense will not apply.
- *Retreat**: One need not attempt to escape, but the modern trend imposes a duty to retreat before using deadly force if this can be done safely (unless the actor is in her home). Thus, one can use deadly force to prevent death or serious bodily injury.
Third-party injuries: Self-defense may extend to third-party injuries. An actor might be liable to a third person if s/he deliberately or negligently injured him in trying to protect herself. Yet, if the defendant didn’t act with negligence or deliberately than accidental injury is privileged.
