torts short Flashcards
(108 cards)
1
Q
Intent
A
conscious desire or knowledge that some result will occur or that a result is substantially certain to occur.
2
Q
Transferred Intent
A
Imposes liability for an unforeseen P when the D acts intentionally to injure another. Foreseeable.
4
Q
Assault
A
imminent apprehension of a harmful or offensive contact. Awareness is necessary. Words alone not sufficient. Actual damage not required. Words + present ability to carry out threat. Reasonable person standard.
5
Q
False Imprisonment
A
intentional confinement within a bounded area of a person by threats, by assertions of legal authority or by actual physical restraint.
6
Q
IIED
A
the intentional or reckless infliction of severe emotional or mental distress by extreme and outrageous conduct. Conduct beyond all possible bounds of decency. Actual damages are required. Conscious desire or knowledge or reckless disregard.
7
Q
Battery
A
Intentional infliction of a harmful or offensive bodily contact. Awareness not necessary. Actual damage not required. Reasonable person standard.
8
Q
Trespass to Land
A
Occurs when a D intentionally enters, remains on, or puts an object on a Ps land without permission. Actual damages not required.
9
Q
Trespass to Chattel
A
an intentional interference with a persons use or possession of chattel. Actual damages are required.
10
Q
Conversion
A
a substantial intentional interference with a persons use or possession of chattel resulting in a forced sale.
11
Q
Defense of Consent
A
May relieve a D from liability and may be a complete defense to intentional interference with person or property. Consent by fraud/duress is invalid. Must have mental capacity, not intoxicated, not child. Express or implied. Implied: custom & usage; implied: in law – where a reasonable person in P’s place would have given consent – medical.
12
Q
Self Defense
A
a person is entitled to use reasonable force to prevent a threatened harmful or offensive bodily contact of confinement. Not available to initial aggressor. Majority rule – no retreat necessary. Minority rule – retreat if possible to do so safely.
13
Q
Defense of Necessity
A
the D has a privilege to harm the Ps property interest where it is necessary to prevent great harm to third persons or to the D himself. Public: NO compensation Private: compensation for actual damages.
14
Q
Shopkeepers Privilege
A
privilege to reasonably detain individuals believed to be in possession of shoplifted goods.
15
Q
Negligence
A
Defendant may be liable for Negligence if defendant owed a duty of care to plaintiff, he breached that duty, and plaintiff suffered damages which were actually and proximately caused by that breach.
16
Q
xxx
A
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17
Q
Duty Owed to Plaintiff
A
Under common law there was no general duty to act affirmatively to protect others. Modernly (majority of states) a defendant owes a duty of due care to all Ps in the foreseeable zone of danger. (minority of states) a defendant owes a duty of due care to everyone.
18
Q
Duty (also include respondeat superior duty - employer has the vicarious liability/duty of all her employees engaged in normal business activities)
A
to act as a reasonably prudent person would act under the same or similar circumstances and not subject others to unreasonable risks of harm. OR by an omission OR Ds owe a duty of care to foreseeable Ps Exception: non-psychosis disabilities. objective test.
19
Q
Custom/Usage
A
may be used to establish standard of care – not dispositive - factor
20
Q
Duty of Child
A
Subjective test –children under 4yo incapable of negligent acts. 4-17 rebuttable.
21
Q
Duty of Professional
A
Objective test – to act as would a reasonable professional in the same or similar communities. Specialists held to a higher degree of care.
22
Q
Duty to Unknown Trespasser
A
NO duty = NO standard of care
23
Q
Duty to Known Trespasser
A
Owner/occupiers duty is to warn or make safe where owner/occupier knows of any non-obvious artificial conditions involving a risk of serious injury.
24
Q
Attractive Nuisance Doctrine
A
a landowner has a special duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property.The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, andThe condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to the children, andThe children, because of their youth, do not realize the risk, andThe utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, andThe possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
25
Q
Duty to Licensee
A
on the property with owners permission(express or implied) – non-business(not landowners benefit – for their own purpose or business). Liable for all non-obvious known dangerous conditions. Duty to make safe or warn. No duty to inspect. Police/firefighters because of public policy or assumption of the risk due to the nature of their profession.
26
Duty to Invitee
on the property with owners permission – business or land is open to the public. Liable for all dangerous conditions owner knew or should have known of. Duty to inspect, warn or make safe. Most states => no liability for very obvious dangerous conditions. Reasonable inspection. May lose status as invitee if exceeds scope of invitation and goes into portion of land where invitation is not extended => licensee or trespasser.
27
NIED
D is liable if the conduct places P in imminent danger of bodily harm resulting in distress OR occurs in a special relationship in which negligent conduct is likely to cause emotional distress. Needs physical symptoms. P must be within the zone of danger.
28
Negligenc Per Se
violations of statute establishes a lack of due care if (1) the statute was intended to prevent the type of harm which in fact occurred and (2) the P was within the class the statute sought to protect. Violation of statute establishes a presumption and a breach of duty. Exceptions/rebuttable: where compliance would be more dangerous or impossible or emergency
29
Breach of General Duty
did not meet the applicable standard of care. Fact that the P was injured does not prove breach. The D did something or did NOT do something - that a reasonable person would/would not have done.5 types: breach of general duty; negligence per se; res ipsa; custom & usage; B
30
Affirmative Duty to Act
NO affirmative duty to act. Exceptions: relationship(family/employer-employee/carriers - passengers/3rd party conduct)
31
Res Ipsa Loquitur - breach/duty
the thing speaks for itself
the use of res ipsa shifts the burden of proof to the D.
where cause of injury is not known (and not known if there even was negligent conduct) – a P must show 1) “this injury would not normally happen unless someone was negligent”; and 2) the D was in sole control of the instrumentality; and 3) P must be free from contributory negligence. Allows the case to go to the jury which can then find for either side. [1) someone probably was negligent; and 2) it probably was this D; and 3) P free from contributory negligence.]
32
Breach of Custom & Usage
where Ds conduct is not consistent with the custom and usage in the industry – the D has breached the standard of care.
33
Learned Hand Risk Utility Rule - breach
if B < PL, and d did nothing, d is negligent. B is burden of prevention of harm. PL is probability of harm multiplied by magnitude of harmwhere the burden of prevention is > the probability and magnitude of the harm, the D is not liable if he takes no steps to prevent the harm. Where the burden of prevention is < the probability and magnitude of the harm, the D IS liable if he takes no steps to prevent the harm.
34
Learned Hand Risk Utility Rule - breach
if B < PL, defendant is negligent. B is burden of prevention of harm. PL is probability of harm multiplied by magnitude of harmwhere the burden of prevention is > the probability and magnitude of the harm, the D is not liable if he takes no steps to prevent the harm. Where the burden of prevention is < the probability and magnitude of the harm, the D IS liable if he takes no steps to prevent the harm.
35
Proximate Causation
legal theory that extends or limits liability based on intervening causes and foreseeable harm to plaintiffs. The P must convince us that liability is fair and not unduly attenuated. Is there any reason the defendant should be relieved of liability? look for thin skulled P.
36
An Independent Intervening Superseding Cause
a separate act or omission that breaks the chain of causation between the defendants actions and an injury to another person, that relieves the defendant of liability for that injury. Where there is an intervening act by a 3rd party, the D remains liable unless both the intervening act and the resulting harm are unforeseeable. A thin skulled P is NOT unforeseeable… and will not relieve liability.
37
Damages
the D always takes the P as he finds him. “P was harmed”general damages: non-economic; pain and suffering, emotional distress…Special Damages: measureable economic; lost wages, medical bills…Punitive damages:NOT recoverable for negligence. Only can recover for intentional torts and reckless or wanton conduct.P has a duty to mitigate damages and cannot recover for harm which P reasonably could have avoided. Payments received from a collateral source does NOT offset Ps recovery.
38
Contributory Negligence - defense
affirmative defense: modernly, in a minority of jurisdictions, where a Ps negligent conduct contributes to Ps injuries, Ps recovery is completely barred. Defense not available for intentional, willful and wanton conduct, or negligence per se.
39
Breach of Negligence Per Se
the violation of statute may establish breach of duty of care as discussed above.
40
Assumption of Risk - defense
affirmative defense: a party assumes the risk if he knowingly undertakes an activity with full knowledge of the risk. Is a total bar to recovery.
41
Last Clear Chance - comparative negligence exception
even after contributory negligence by the P, if the D had a last clear chance to avoid the accident and because the D did not take that chance, P should be relieved of the consequences of his earlier contributory negligence.
42
Comparative Negligence - defense
affirmative defense: when a P is a contributing cause of Ps injury, Ps recovery is reduced in proportion to Ps fault. Pure vs. modified. Pure: here P always recovers something. Modified: Ps fault < 50% reduces recovery. Ps fault > 50% absolute bar.
43
Strict Liability
an act or failure to act which breaches an absolute duty of care to make safe to another resulting in injury to others person or property.
44
Animals Strict Liability
SL for damages done by trespass or harm done to persons or property by wild animals. Activity is not common for people to keep wild animals. NO SL for domestic animals unless D aware of dangerous propensities.
45
Abnormally Dangerous Activities Strict Liability
1) activity involves serious risk of harm; 2) activity cannot be performed without risk of serious harm regardless of due care; 3) activity is not common in particular community.
46
Abnormally Dangerous Activities Duty Strict Liability
Duty owed is absolute duty to make safe to all foreseeable Ps. Damages limited to those that are inherent to the abnormally dangerous activity.
47
Causation/Damages Non-Products Strict Liability
Same as regular negligence. Breach is strict liability… thus needs no analysis for the breach.
48
five possible theories for products liability
products liability refers to the liability a supplier of a defective product owes to one who has suffered an injury caused by that defective product. product liability can be based on five tort theories: intentional(rare), negligence, strict liability in tort, breach of implied warranty, breach of express warranty/misrepresentation.
a commercial supplier that puts a defective product into the stream of commerce can be held liable under several theories of products liability.
Intentional liability: battery. desire(intent) or, knowledge of substantial certainty, that it will cause P damage.
Negligence - products liability:
Strict liability in tort/Strict Product Liability:A product has a manufacturing defect if it was not made in the manner intended
A product has a warning defect if a warning given was not adequate, or a warning was appropriate, but not given.
A product has a design defect if it is not safe for its intended use, or could not be made safe without adverse impact on its price and utility.
Implied warranties:
Implied warranty of merchantability: if goods are sold by a merchant who deals in those types of goods, then there is an implied warranty that the goods are generally fit for the ordinary purposes for which the goods are to be use.
Implied warranty fitness for a particular purpose: seller knows or has reason to know the particular purpose for which the goods are required and that buyer is relying on sellers skill and judgment to select or furnish suitable goods
Express warranty/misrepresentation: where D sold goods with express representations which made them unreasonably dangerous, where there is actual cause, proximate cause, and injury to P.
49
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50
Products Negligence
in addition to proving a strict liability in tort claim, a P must etablish that a D is negligent.
51
General Duty Products Negligence
reasonable duty owed by commercial supplier not to supply a defective product that is the actual and proximate cause of a P’s damages. modernly all users, consumers, bystanders are foreseeable and there is no privity.
52
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53
Defenses for Non-Products Strict Liability
Assumption of the risk/Comparative negligence: same as negligenceContributory negligence: Knowing contrib. is a complete defense and there is no SL recovery.Unknowing contrib. is NO defense and P will recover.
54
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55
Breach Products Negligence Res Ipsa Loquitur
| the use of res ipsa shifts the burden of proof to the D.
same as negligence
56
Breach Products Negligence Learned Hand Risk Utility
same as negligence
57
Strict Liability in Tort Defective Product
a commercial supplier is a party involved in the commercial supply chain of the product such as a manufacturer, distributor, wholesaler, retailer... etc. commercial suppliers are strictly liable(absolute duty) for injuries caused by defective products. here The product was defective when it left the control of the D and the product has not been substantially altered. Here a D is expected to anticipate foreseeable misuse of the product by any foreseeable P. modernly all users, consumers and bystanders are foreseeable and there is no privity(contractual relationship) necessary.
58
Strict Liability in Tort Defective Product
a commercial supplier is a party involved in the commercial supply chain of the product such as th manufacturer, distributor, wholesaler, retailer... etc. commercial suppliers are strictly liable(absolute duty) for injuries caused by defective products. here The product was defective when it left the control of the D and the product has not been substantially altered. Here a D is expected to anticipate foreseeable misuse of the product by a P. modernly all users, consumers, bystanders are foreseeable and there is no privity(contractual relationship).
59
Products Negligence Actual Cause/Proximate Cause/Damages/Defenses
same as negligence
60
Strict Liability in Tort Defective Product Commercial Supplier
a commercial supplier is a party involved in the commercial supply chainof the product such as th manufacturer, distributor, wholesaler, retailer... etc. The product was defective when it left the control of the D and the product was not substantially altered. Here a D is expected to anticipate foreseeable misuse of the product by a P.
61
Breach of Duty Strict Liability in Tort
a product is defective if it is unreasonably dangerous - dangerous beyond the expectations of an ordinary consumer.
62
define three types of defective products
A product has a manufacturing defect if it was not made in the manner intended
A product has a warning defect if a warning given was not adequate, or a warning was appropriate, but not given. The danger must not be apparent to users.
A product has a design defect if it is not safe for its intended use, or could not be made safe without adverse impact on its price and utility.
63
Strict Liability in Tort Defective Product Proper Defendant
a proper D is someone involved in the chain of marketing of the product. manufacturers, wholesalers, distributors, retailers…
64
Strict Liability in Tort Defective Product Risk Utility Test/FAD/RAD/HAD
if Risk of injury to P outweighs the benefit of using the product, then the D will be liable. If the benefit of using the product outweighs the risk of injuries to the P, then the D will not be liable. Products are defective where the danger posed by the product outweighs its utility – where you can easily make it safer without destroying the products current utility. Question of fact – jury question.
65
Strict Liability in Tort Defective Product Consumer Expectation Test
a defective product does not conform to the expectation of a reasonable consumer regarding the use of the product.
66
Strict Liability in Tort Defective Product Actual Cause/Proximate Cause
same as negligence
67
Breach of Implied Warranty of Fitness for a particular Purpose
a particular product is fit for the purpose for which it was promised by a knowledgeable sellers personal experience.
68
Breach of Impliede Warranty of Merchantability
a particular product is suited for the ordinary purpose for which it was intended.
69
Breach of Implied Warranty of Merchantability
a particular product is suited for the ordinary purpose for which it was intended.
70
Strict Liability in Tort Defective Product Defenses
assumption of the risk(knew of the risk and voluntarily assumed it) and misuse of product. comparative negligence.
71
Implied Warranty causation/Damage
same as negligence
72
Implied Warranty Privity
all buyers are proper Ps. Most states extend protection to buyers household and guests who suffer personal injury. some states extend protection to any person who suffers personal injury. few state extend protection to any person who suffers any injury
73
Breach of Express Warranty/Misrepresentation
Supra must be communicated to P in writing, orally or by use of a sample or model. must be an affirmation of fact or promise to buyer that becomes part of the basis of the bargain. No privity.
74
Breach of Express Warranty/Misrepresentation
Supra must be communicated to P in writing, orally or by use of a sample or model. must be an affirmation of fact or promise to buyer that becomes part of the basis of the bargain. No privity. diclaimers are valid if they can be read consistently with any express warranties made.
75
Implied Warranty Disclaimers
must be specific and narrowly construed. Limitations on personal injury are unconscionable and are not enforceable.
76
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77
What is the overall rule definition for Defamation
DEFAMATORY STATEMENT, OF OR CONCERNING THE P, PUBLISHED TO A THIRD PARTY, that causes DAMAGES to the P.
78
Common Law Defamation
Common Law Defamation
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A Defamatory Statement
a statement that tends to lower the Ps reputation within the community. Reputation harm, scorn, ridicule. May be defamatory if fact based - not just opinion/hyperbole.
80
Of or Concerning the P
A reasonable person must have understood that the statement was of or concerning the P. Small group can show statement referred to each member. Large group cannot. For small group a single P can recover if a reasonable person would understand statement to refer to P.Here, D specifically used Ps first and last name in the statement. Thus, this element is met.
81
Published to a Third Party
statement must be published to a third party who understood it. Can be intentional or negligent. Intent is to publish… NOT to defame. Each repetition is actionable. NOT for internet providers.
82
Define Libel and Libel Per Se
Libel is a defamatory statement recorded in writing. Radio/TV are considered libel. Libel per se – understood just as written that it pertains to the P. Libel per quod – needs additional facts to show that it pertains to the P.
83
Define Slander and Slander per Se
Slander is spoken defamatory statement. Slander per se is understood just as said that it pertains to the P. slander per quod – needs additional facts to show that it pertains to the P.
84
Constitutional Defamation
Common law defamation + fault + falsityIf there is NO CONSTITUTIONAL DEFAMATION => proceed with common law defamation to damages/defenses. With Constitutional Defamation you add the elements of Fault and Falsity after you analyze common law defamation!Whenever there is a matter of public concern, then the P must also prove the additional elements of fault and falsity. Here, arguably the matter is one of public concern as it deals with…….blah blah blah… Thus, the P will have to show both fault and falsity. (If the statement is about a public figure, then there is an argument that it is a matter of public concern)
85
State and define the two special requirements for Constitutional defamation
Falsity: P is required to prove falsity of the statement. Analysis. Conclusion.
Fault: The type of fault that P must prove depends on whether P is a public or private figure. A public figure is one who achieves fame or notoriety or is in government office.If P is a public figure, he must prove New York Times malice which requires a showing of knowledge that that statement was false, or reckless disregard as to whether it was false. A subjective test. Spite or ill will is not malice.If P is a private figure, he must prove Gertz negligence which means he need only show negligence regarding the falsity of the statement if that statement involves a matter of public concern. Where D is only negligent, only actual injury damages are recoverable. However, if a private P can show malice on the part of the D, then damages may be presumed and the P may be able to recover punitive damages. Here….
86
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Damages for Defamation
General damages(non-economic – harm to reputation, emotional distress, humiliation, embarrassment… etc.) are presumed for libel or slander per se (CLUB) else injury is NOT presumed and special(pecuniary loss to reputation, loss of customers, job… etc) or pecuniary damages must be plead/proven/shown. (club: criminal offense, loathsome disease, unchastity, business misconduct). For special damages – u must prove something.
88
Defenses at Common Law
truth/consent/absolute privileges/qualified privileges/mitigating factors.
89
Mitigating Factors
lack of malice and retraction. Many states have statutes for retraction.
90
Describe the available Absolute Privileges for Defamation
an absolute privilege can never be lost Remarks in judicial proceedings: Legislators in debate: Federal Executive Officials: Compelled Broadcasts: Between Spouses: Publications Required by Law:
91
Describe the available Qualified Privileges for Defamation
D bears the burden of proving that a privilege exists.Official Reports:Statements in Interest of Publisher: such as defense of ones action, property, or reputation Statements in Interest of Recipient: can be lost if statement is NOT withing scoper of the privilege or speaker acts with MALICE.
92
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Invasion of Privacy Torts
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Malice
Knowledge of falsity or reckless disregard.
95
requirements for False Light Invasion of Privacy
Publicity about another placing a person in a false light before the public.Publicizing – communication of false facts to a substantial number of people. NOT limited to statements that harm reputation – this is broader than defamation! Highly offensive to a reasonable person. For matters of public interest – MALICE is required!MALICE =>>> Knowledge of falsity or reckless disregard.Damages – no requirement of special damages. Damages are presumed/assumed to exist.Defenses – Truth is NOT a defense. Consent is a defense. Qualified/Absolute privileges apply
96
requirements for Intrusion upon Seclusion Invasion of Privacy
Intentional intrusion on another’s privacy in a highly offensive manner.Intentionally intrudes by improper means. Physically or otherwise interferes with another’s zone of privacy.Highly offensive to a reasonable person. NO publication required. Causation/damages…
97
requirements for Invasion of Privacy based on Misappropriation of Name or Likeness
Unauthorized use for commercial advantage. Can be name, likeness or voice. economic benefit without advertisement is not enough Damages/injunction – actual/nominal damagesMatters of public record have first amendment protection. Consent MB express – NOT implied. Newsworthiness IS a defense.
98
requirements for Public Disclosure of Private Facts Invasion of Privacy
Publication of private facts about PWide dissemination is required. Falsity is NOT required. A reasonable person would be highly offended by the disclosure. Information NOT a matter of public concern. Causation, damages, defenses: publication regarding legitimate public interest is privileged if made without malice. Also newsworthiness. Truth is NOT a defense.
99
Defenses to Invasion of Privacy
Consent: some states require a writing.Absolute privileges: available for false light and public disclosure of private facts.Qualified privileges: available for false light and public disclosure of private facts.Truth: IS a defense ONLY to false light.
100
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requirements for Public Nuisance
intentional/abnormally dangerous/negligent conduct that causes an unreasonable substantial interference with a right common to the general public.
102
requirements for Private Nuisance
an act by defendant that causes an unreasonable and substantial interference with the use and enjoyment of the Ps property. Competing interests. Intentional/abnormally dangerous/negligent – injunction. Smoke, fumes, odors, noise, light, obstruction, aircraft.
103
Vicarious Liability/Respondeat Superior
respondeat superior – an employer is liable for torts (intentional/negligent) committed by its employee if done within the course and scope of their duties. A rational basis for holding a passive party liable for a tort committed by someone else.
104
Vicarious Liability/Independent Contractor
generally, principal not liable, except for inherently dangerous activity OR non-delegable duty.
105
Vicarious Liability
partner or joint venturer, driver of auto, bailees, children and tavern patron.
106
Joint and Several Liability
where two or more Ds act in concert or cause one indivisible injury. all Ds are joint and severally liable for all of the harm caused.
107
Indemnity
permits a party found liable to shift the entire loss to the actual wrongdoer who is primarily liable for the harm.
108
Contribution
liability is equally apportioned among joint tortfeasors. A right of contribution exists for a D who has paid more than his pro rata share of liability.
109
interference with prospective economic advantage
Where a defendant acts intentionally to interfere with a plaintiffs economic relationship.
