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66 Cards in this Set
- Front
- Back
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Intentional Torts>
4 prima facie elements |
1. Volitional Act
2. Intent 3. Causation 4. Damages (Tort specific) |
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Intentional Torts>
Volitional Act |
A volitional act is a VOLUNTARY and CONSCIOUS act.
It is not something Reflexive. |
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Intentional Torts>
Intent |
DESIRE to cause the CONSEQUENCE. Or,
Knowledge to SUBSTANTIAL CERTAINTY that consequence will occur. |
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Intentional Torts>
Causation |
Def. must be both:
1. Actual Cause of P's Injury, and 2. Legal Cause |
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Intentional Tort>
Battery |
1. Volitional Act
2. Intent to Cause 3. Harmful or Offensive Contact of Another 4. No Actual Damages Required. |
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Intentional Tort>
Defenses to Battery |
1. Consent
2. Privilege |
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Intentional Tort>
Defense of Consent |
Can be Express or Implied. P must have had:
1. Capacity to Consent, and 2. Touching did Not Exceed Scope of Consent |
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Intentional Tort>
Defense(s) of Privilege- 3 types |
1. Defense of Self
2. Defense of Others 3. Defense of Property |
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Intentional Tort>
Defense of Self |
Requires:
1. Reasonable Belief (Objective), that 2. Reasonably Necessary to 3. Protect from Imminent Attack. |
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Intentional Tort>
Defense of Others |
Allowed if:
1. Reasonably Believe (Objective), that 2. Other Person could have used the same force to defend themselves. |
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Intentional Tort>
Defense of Property |
G/R- Deadly force is never allowed in defense of Property.
Even Reasonable Force is not allowed, unless it Hot Pursuit. |
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Intentional Tort>
Assault |
1. Volitional Act, with
2. Intent to place Another, in 3. Reasonable Apprehension of 4. Immediate Harmful or Offensive Contact 5. Causing apprehension in P. 6. No actual damages needed. |
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Intentional Tort>
False Imprisonment |
1. Volitional Act,
2. Placing Another 3. with Intent, to 4. Boundaries Set by Def. 5. By Force or Threat of Force 6. with Awareness by P of these boundaries, and with 7. No reasonable means of escape. |
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Intentional Torts>
Defenses to False Imprisonment |
1. Consent
2. Shopkeeper's Privilege 3. Other Privileges |
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Intentional Torts>
Shopkeeper's Privilege |
1. Reasonable Belief that crime was committed by D.
2. For Reasonable Length of Time 3. Reasonable Confinement/ Touching/ Manner (Time, Purpose, Manner, Belief) |
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Intentional Tort>
Intentional Infliction of Emotional Distress |
Requires:
1. Volitional Act that is 2. Extreme and Outrageous Conduct with 3. Intent to Cause or Reckless Disregard that 4. Severe Emotional Distress occurs 5. No Actual (physical) damage required. |
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Intentional Tort>
Intentional Infliction of Emotional Distress> Bystander Recovery |
Bystander will recover if Def was:
1. Aware of B's Presence, and 2. Aware of B's Relationship to V. Unrelated Persons will recover if they can show a Physical Manifestation of Injury. |
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Intentional Tort>
Trespass to Land |
1. Volitional Act (Physical Entry) with
2. Intent to Cause Entry to land 3. That belongs to Another. 4. No damages required. (Mistake is no defense) |
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Intentional Torts>
Defense to Trespass |
1. Consent
2. Public Necessity 3. Private Necessity |
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Intentional Torts>
Public Necessity |
D's interference with P's land arose out of an Emergency to protect Community or Large group of people.
Public Necessity is a Absolute Defense to Trespass |
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Intentional Tort>
Private Necessity |
D's entry onto P's land was for P's own emergency or that of a small group of people.
D will only be liable for actual damage on P's land. |
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Intentional Torts>
Trespass to Chattels |
1. Volitional Act
2. Intent to Interfere, with 3. Chattel of Another, 4. Causing 5. Minor Damage or Interference (loss of use) |
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Intentional Torts>
Conversion |
1. Volitional Act
2. Intent to Interfere 3. Causing 4. Significant Interference (total loss) 5. Allowing Full Recovery (Forced Sale) |
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Common Law Defamation
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1. A False Defamatory Statement
2. Of and Concerning the P 3. Published to a 3rd Party 4. Causing 5. Damages to P's Reputation |
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Common Law Defamation>
Presumption of Damages |
Libel (written) and Slander Per Se presume Damages. Slander (spoken) alone must prove damages.
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Common Law Defamation>
Presumption of Damages> Slander per Se |
Slander Per Se is any defamatory statement about a person's:
1. Business or Profession 2. Serious Crime 3. Loathsome Disease 4. Unchastity |
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Defamation>
Constitutional Requirements Approach |
Discuss
1.1st Amendment > 2.Balance of Individual Reputation versus Freedom of Speech> 3. Requires 2 Elements: a. Falsity of Statement (proven by P) and b. Fault by Def. Fault depends on whether P was a Public or Private Figure. And whether it is a matter of private concern. b1. a Public figure is Pervasively famous. b2. If P is a Public Figure, P must prove Malice (NYT v. Sullivan) b3. Malice is Knowledge of falsity or reckless disregard or serious doubts regarding the truth. If malice is proven, damages are presumed. b4. If P is a Private Figure, P only need show negligence. If shown negligent, damages are presumed. |
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Defamation>
Common Law Defenses |
1. Truth
2. Consent |
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Defamation>
Common Law Privileges |
1. Absolute Privileges
2. Qualified Privileges |
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Defamation>
Absolute Privilege |
1. Judicial- Statements made during judicial proceedings.
2. Legislative 3. Executive 4. Between Spouses |
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Defamation>
Qualified Privilege |
Allowed where the Public has a interest in candor.
1. Requires Speaker have a Reasonable Belief as to its Accuracy |
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Invasion of Privacy
4 Individual Torts |
1. False Light
2. Public Disclosure of Private Facts 3. Commercial Appropriation 4. Intrusion into P's Exclusion |
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Invasion of Privacy>
False Light |
1. Publication
2. Of False Information 3. Objectionable to Average Person |
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Invasion of Privacy>
Public Disclosure of Private Facts |
1. Publication
2. Confidential Information of P 3. Objectionable to Avg. Person. |
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Invasion of Privacy>
Commercial Appropriation |
1. Unauthorized use of P's Identity
2. For a Commercial Purpose. |
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Invasion of Privacy>
Intrusion into P's Exclusion |
1. Intrusion in P's Exclusion, where
2. P has a Reasonable expectation of privacy, and 3. The Intrusion is objectionable to the avg. person. |
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Economic Torts>
Intentional Misrepresentation |
1. False Material statement
2. Intent to induce reliance 3. Scienter (knowledge of falsity) 4. Reliance by P. 5. Causing 6. Actual Pecuniary Damages. |
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Economic Torts>
Negligent Misrepresentation |
1. Misrepresentation by Def in a Business or Profession
2. Breach of duty to P 3. Causing 4. Reliance, and 5. Damages |
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Economic Tort>
Interference with Business/Contractual Relationship |
1. existence of valid contractual relationship
2. Def Knows of Relationship 3. Intentional Interference by Def 4. Causing Termination of relationship 5. Resulting in Damages |
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Economic Tort>
Malicious Prosecution |
1. Institution of criminal proceedings against P, for
2. A Improper Purpose 3. That terminated in P's favor, because 4. lacked Probable Cause 5. Damages |
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Economic Tort>
Abuse of Process |
1. Intentional Misuse of Process
2. For any purpose other than that for which intended 3. Causing Harm |
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Negligence
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Duty
Standard of Care Breach Causation (Actual/ Proximate) Damages |
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Negligence>
Duty |
Duty owed to all Foreseeable Plaintiffs.
2 Views: 1. Cardozo (Maj)- Zone of Danger Test 2. Andrews- (Min)- Duty to one is a duty to all. |
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Negligence>
Standard of Care |
G/R- Reas. Care under Totality of the Circumstances.
Exceptions: Common Carrier Child Professional |
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Negligence>
Breach |
1. RPP
2. Negligence Per Se 3. Res Ipsa Loquitor |
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Negligence>
Duty> Land Owner/ Occupier- Trespassers |
A. No Duty to Undiscovered Trespassers
B. Discovered/Anticipated Trespassers- 4 part Test 1. Duty only arises when condition is Artificial in Nature (built by humans.) Thus, no need to protect from hazardous natural conditions. 2. Condition must be highly dangerous capable of killing or severely injuring. Thus, no need to protect from mildly dangerous conditions. 3. Hazard must be concealed from the trespasser. No duty to protect from open or obvious condition. 4. Def. must have known about the condition in advance. Must have prior knowledge. |
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Negligence>
Duty> Land Owner/ Occupier- Licensees |
Licensees- enter real estate with permission, but do not give any economic benefit to the possessor.
L/O must: 1. Warn or Make Safe Known Artificial and Natural Condition that are Dangerous, through 2. Reasonable Care. |
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Negligence>
Duty> Land Owner/ Occupier- Invitees |
Invitee- enters to confer a economic benefit or the property has been open to everyone
L/O owes: Duty of Reasonable Care to discover dangerous natural conditions of which invitee would not reasonably be aware and to warn invitees of such conditions or make them safe, if warning is insufficient. |
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Negligence>
Duty> Child Trespasser aka Attractive Nuisance (Trad) aka Artificial Condition Highly Dangerous to Trespassing Children (Mod) |
L/O owes children who trespass a duty to take Reasonable Care to make Safe Artificial Conditions if:
1. L/O know children are likely to trespass 2. L/O knows of a artificial condition on his property that is highly dangerous to children, and 3. Child is unable to Recognize/ Appreciate the danger, and 4. The Expense of Remedying the Artificial Condition is greatly outweighed by the Risk of Danger. |
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Negligence>
Breach> Negligence Per Se |
1. P is in the Class of Persons the statute was designed to protect.
2. Statute intended to Prevent the Type of Harm that P suffered. |
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Negligence>
Breach> Res Ipsa Loquitor |
If the P lacks information or cannot identify what the Def. has done wrong. It requires:
1. The accident would not normally occur unless someone was negligent. 2. Negligence is attributable to the defendant. Not to P. 3. Cause of Injury was in the Exclusive Control of the Defendant. *It does not guarantee a jury verdict, only the right to go to the jury. |
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Negligence>
Breach> Reasonably Prudent Person Standard |
Reasonable Person Test (Learned Hand Calculus)- "Totality of the Circumstances" states: Reasonableness can be determined by Balancing the Gravity and Probability of Harm to P ( likelihood and seriousness of injury) against the Burden of D of Taking Adequate Precautions and the Utility of D’s Unaltered Conduct (Acts to eliminate the risk and benefits of not changing acts.
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Negligence>
Causation |
Requires Actual and Proximate causation:
1. Actual- "But For" Test or "Substantial Factor" 2. Proximate- Is it "Fair" to hold Def. liable for the consequence of actions. (Foreseeability) |
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Strict Liability>
3 Areas |
1. Animals
2. Abnormally Dangerous Activities 3. Strict Products liability |
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Strict Liability>
Animals |
Owner is S/L for damage caused by animal if they are a:
1. Wild Animal, or 2. Domestic Animal, but Owner knew of Animal's Dangerous Propensities |
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Strict Liability>
Abnormally Dangerous Activities |
Def is held Strictly Liable for damages suffered by P caused by Def’s ‘Abnormally Dangerous Activities’ if they:
1. present a Serious Risk of Injury to P, 2. Risk of Injury Cannot Be Eliminated (no matter how much care is taken) and 3. Activity is not common in the area where the activity takes place. (+Causation, +Damages, +Defenses) |
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Strict Liability>
Strict Products Liability |
1. Proper Parties
2. Unreasonably Dangerous Defective Product a. Manufacturing Defect b. Design Defect- b1. Consumer Expectation Test b1a. Feasibility of Alternative Designs b2. Risk/Benefit Test c. Warning Defect 3. Causation 4. Damages |
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Products Liability
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1. Strict Products Liability
2. Negligent Products Liability 3. Express Warranty Theory 4. Implied Warranty |
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Products Liability>
Negligent Products Liability |
1. Proper Damages- PI or PD, pure economic injury is insufficient.
2. Proper Plaintiff- Duty of Care to Foreseeable Plaintiff's 3. Proper Def- Same as S/L 4. Standard of Care- Reasonable Care under the Circumstances. 5. Causation 6. Defenses |
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Products Liability>
Express Warranty |
1. Proper Damages- Same
2. Proper Parties a. Plaintiff- Anyone who relies on statement. b. Def.- Any person who makes representation. 3. Standard- Explicit to Statement on Product. 4. Causation- Same. 5. Defenses- Same as S/L plus K defenses. |
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Products Liability>
Implied Warranty |
1. Implied Warranty of Merchantibility- Fit for the Ordinary Purpose for which it was Intended.
2. Warranty of Fitness- Sold for a particular purpose but does not conform to that purpose. |
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Nuisance>
Private Nuisance |
P must prove Def’s conduct was a non-physical trespasory invasion of Def’s land, that Substantially and Unreasonably Interfered with his Use and Enjoyment of his Land. To determine whether the Def causes a Substantial and Unreasonable Interference with the Use and Enjoyment of land, the Court will Balance the Harm Plaintiff Suffered versus the Utility of the Defendant’s Conduct.
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Nuisance>
Public Nuisance |
a volitional act, done with the requisite intent, which unreasonably interferes with the health, safety, or property rights of the community at large. Only a Public Official or a Private party who suffered damages different from that inflicted on the general public may bring the action.
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Vicarious Liability>
Respondeat Superior |
Employer may be held liable for injuries caused by torts of employee if the tort was committed within the Scope of Employment or to Further the Employer’s Purpose.
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Vicarious Liability>
Parents |
generally not liable for torts of their children. If a parent knows the child has dangerous tendencies and does not control the child, this may result in Direct Liability
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Vicarious Liability>
Independent Contractors |
ndependent Contracts (unlike employees) will not be held vicariously liable for their torts unless they were involved in an inherently dangerous activity or their work involved a non-delegable duty or if the IC is an owner-occupier and the injured party was a business invitee.
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