2010 Mbe Torts

Front 1

Transferred intent

Back 1

1. so long as D desires any forbidden outcome
2. He acts intentionally
3. does not matter that a different outcome comes to pass

Front 2

There are no incapacity for

Back 2

all intentional torts!

Children, dunks, and mentally ill are all liable!

Front 3

Battery

Back 3

1. D makes a harmful or OFFENSIVE contact

2, the contact is with P's person

Front 4

Assault

Back 4

1. D must place P in a reasonable apprehension
2. of an immediate battery

Front 5

Assault: Reasonable apprehension"

Back 5

Means knowledge - NOT FEAR

Unloaded gun problem -
If P knows --> no injury
I P does not know --> injured

Front 6

Assault: immediacy

Back 6

A naked verbal threat lacks immediacy - MUST HAVE A MENACING GESTURE

Even if there is a menacing gesture, if D uses conditional words or threatens FUTURE harms, then no immediacy.

Front 7

False Imprisonment

Back 7

1. D must commit an act of restraint
2. P must be confined in a bounded area

Front 8

False Imprisonment: Act of restraint

Back 8

Reasonable or plausible threats are sufficient acts of restraint
OR
An omission if there was a preexisting duty to help

Front 9

Intentional Infliction of emotional distress

Back 9

1. D must engage in outrageous behavior
- fragile class (tort baby)

2. P must suffer emotional distress (need no be physical)

Front 10

Trespass to Land

Back 10

1. D must commit a physical invasion

(includes air above and soil below, but only to a reasonable difference)

Front 11

Trespass to Chattels

Back 11

1. intentional interference w/ P's personal property
- interference = damage or stealing

2. slight degree of harm

3. Remedy = cost of repair

Front 12

Conversion

Back 12

1. intentional interference w/ P's personal property
- interference = damage or steal

2. significant or extensive damage

3. remedy = FMV of the chattel

Front 13

Affirmative Defenses: Consent

Back 13

P must have capacity

Consent applies to all intentional torts

Cannot exceed the scope of consent

Front 14

Affirmative Defenses: Consent

Express consent exception

Back 14

void if there is fraud or duress such as concealment

Front 15

Affirmative Defenses: Consent

Implied consent (2 ways)

Back 15

1. By custom (reasonable person would infer from custom or usage) ex: sports, doctor

2. case-by-case: based on D's reasonable interpretation of P's objective conduct

Front 16

3 Protective privileges

Back 16

1. Self -defense
2. defense of others
3. defense of property

Front 17

Elements of protective privileges

Back 17

1. threat must be imminent or in progress
2. D must have a reasonable belief that the threat is genuine
3. Only allowed to use the amt of force necessary under the circumstance

(deadly force cannot be used to protect property alone)

Front 18

Protective privileges - FL

Back 18

presumed to have a fear of death or great bodily injury if you enter your dwelling place or an occupied vehicle

Front 19

Necessity - Public necessity arises when D invades P's property in an emergency

Back 19

to protect the community as a whole or a significant group of people

absolute defense!

Front 20

Necessity - Private necessity arises when D invades P's property in an emergency

Back 20

to protect an interest of his own

Front 21

3 Protective privileges

Back 21

1. Self -defense
2. defense of others
3. defense of property

Front 22

Elements of protective privileges

Back 22

1. threat must be imminent or in progress
2. D must have a reasonable belief that the threat is genuine
3. Only allowed to use the amt of force necessary under the circumstance

(deadly force cannot be used to protect property alone)

Front 23

Protective privileges - FL

Back 23

presumed to have a fear of death or great bodily injury if you enter your dwelling place or an occupied vehicle

Front 24

Necessity - Public necessity arises when D invades P's property in an emergency

Back 24

to protect the community as a whole or a significant group of people

absolute defense!

Front 25

Necessity - Private necessity arises when D invades P's property in an emergency

Back 25

to protect an interest of his own

D must pay for actual harm done to the property, but not liable for nominal or punitive damages

So long as the emergency continues, P must allow D to remain on his land in a position of safety (right of sanctuary)

Front 26

Defamation

Back 26

1. must make a defamatory statement that specifically identifies P

2. there must be a publication of the statement

Front 27

Defamation: "Defamatory statement"

Back 27

is an assertion of fact that tends to adversely affect P's reputation

Front 28

Defamation: Publication

Back 28

must share with 1 person other than P himself

Publication does need to be intentional (negligent or careless counts)

Front 29

Slander per se falls w/in 4 categories

Back 29

1. relating to P's business or profession

2. accusing P of a crime of moral turpitude

3. accusing a woman of not being a virgin

4. P suffers from a loathsome disease

Front 30

Affirmative defenses to slander

Back 30

1. consent
2. truth
3. privileges

Front 31

Slander: 3 absolute privileges

Back 31

1. spousal communication

2. gov officers speaking as part of official duties

3. media - may repeat or broadcast public proceedings w/o any defamation liability

Front 32

Slander: qualified privilege

Applies any time there is a public interest in encouraging candor

2 requirements

Back 32

1. reasonable belief that what you're saying is accurate

2. must confine yourself to relevant material

Front 33

Slander: special case = matters o public concern

Must prove 2 extra elements

Back 33

1. P must prove falsity of the statement

2. P must prove fault by the D

- public figure = malice

-private figure = negligence

Front 34

Privacy Torts:
Appropriation

Back 34

a use of P's name or likeness for a commercial advantage

Front 35

Privacy Torts:
Intrusion

Back 35

a physical invasion of P's seclusion in a way objectionable to an avg person

(electronic surveillance, wiretapping, etc.)

P must be located in a place where there is a reasonable expectation of privacy before there is a cause of action

Front 36

Privacy Torts:
False light

Back 36

WIDESPREAD dissemination of material falsehood about P that would be highly offensive to a reasonable person.

FL doesn't recognize

Front 37

Privacy Torts:
Disclosure

Back 37

widespread dissemination of confidential info about P that would be objectionable to an avg person

Fact must be truly private
Newsworthy exception

Front 38

Privacy Torts:
Defenses

Back 38

1. consent

2. defamation privileges (only applies in false light and disclosure)

Front 39

Negligence Torts:
Duty

Back 39

obligation to take precautions to lower the chance that you might hurt others?

Front 40

Negligence Torts:
Duty to whom?

Back 40

1. Foreseeable victims
Exception:
Rescuers

Front 41

Negligence Torts:
How much duty of care do you owe?

Back 41

Reasonably prudent person - make NO allowances for D's personal characteristics

Exceptions:
1. superior skill or knowledge
2. physical characteristic if relevant (blind, tall, etc.)

Front 42

Negligence Torts:
6 Special Duties

Back 42

1. Negligence against children
2. Professional Malpractice
3. Premises liability
4. statutory stds of care
5. No duty to rescue
6. Negligent infliction of emotional distress

Front 43

Negligence Torts:
Special duty:
Negligence against children

Back 43

1. <4 owe NO duty of care and can never be held liable for a negligent tort
2. 5 - 18 owe a duty of care of similar age and intelligence acting under similar circumstances

EXCEPTION: adult activities
If child engaged in an adult activity, then use the reasonably prudent std

Front 44

Negligence Torts:
Special Duty:
Professional Malpractice

Back 44

Care of the average member of that profession performing a similar service (how other docs behave)

Obligation on P to produce an expert witness

Front 45

Negligence Torts:
Special Duty:
Professional Malpractice in FL Pre-suit obligations

Back 45

1. Must give D 90 days advance notice before filing a complaint
2. must have obtained a pre-suit evaluation of claim by D's malpractice carrier
3. Pain and suffering damages are capped

No Fault Scheme:
Neurological injury to new born OBGYN (must go to an admin agency)

Front 46

Negligence Torts:
Special Duty:
Premises Liability - 4 std

Back 46

1. undiscovered trespasser
2. discovered and anticipated trespasser
3.Licensee
4. Invitee

Front 47

Undiscovered Trespasser

Back 47

NO DUTY

Front 48

Discovered and anticipated trespasser (there has been prior trespassing): There is a duty to protect if:

Back 48

1. it is an artificial condition
2. condition must be highly dangerous
3. condition must be concealed
4. Possessor must have had prior knowledge of the condition

Possessors owe discovered trespassers ONLY from known, man-made, death traps

Front 49

Licensee is a person who enters the property with permission

Back 49

WITHOUT incurring any economic benefit on the landowner

ex: guests and door-to-door salespersons

Front 50

Licensee
Possessor owes the licensee a duty from any condition that meets a 2 part test:

Back 50

1. concealed from a licensee AND
2. know in advance by the land possessor

Possessor needs to protect licenses from all known traps

Front 51

Invitees are persons who enter land with permission

Back 51

to infer an economic benefit to the possessor of land generally open to public (airport, church, mall)

Front 52

Invitee
Possessor owes an invitee a duty to protect from any condition that is

Back 52

1. concealed from the invitee
2. the possessor either knew or should have known about the condition through reasonable inspection (does not mean every day or every hour)

Front 53

Premises liability: special cases for Florida

Back 53

social guests are INVITEES and therefore get the higher std

uninvited licensees=discovered trespassers

absolutely no tort liability for those engaged in a felony on the property

Front 54

Premises liability for firefighters and police officers

FL rule

Back 54

Considered licensees - never recover for injuries that are inherent risks of their job

FL - firefighter and POs are treated as invitees and can recover like any other invitees

Front 55

Premises liability: Child trespassers

Back 55

Owed a standard of reasonable prudence under the circumstances

Is there something luring the children? then as a reasonably prudent person, you should have seen it coming

FL - infant trespasser only recovers from the thing that lured them in

Front 56

In any premises liability case, can satisfy a duty of care in 2 ways

Back 56

1. fix it
2. give a warning (converts hidden dangers into open and obvious dangers)

Front 57

Statutory Standards of Care:
violation of a statutory std of care is

Back 57

negligence per se

Front 58

Statutory Standards of Care:
2 par test

Back 58

1. P must convince the crt that he is a member of the class of persons that the statute is seeking to protect

2. P must show that the accident that occurred is in the class of risks that the statute is trying to prevent

Class of person/class of risk test

Front 59

Statutory Standards of care: FL and violations of traffic statutes

Back 59

is no negligence per se, but only evidence of negligence

Front 60

Statutory Standards of Care: Exceptions (apply in FL and MBE)

Back 60

1. If compliance is more dangerous than violation, then there is no statutory stds of care

2. when statutory compliance was impossible under the circumstances

Front 61

No Duty to Rescue:
Exceptions

Back 61

1. Pre-existing relationship b/t D and person in peril
2. P is in peril - no duty to put your own life in peril
3. if opted to rescue and then screw up, you will be liable for errors

Front 62

FL good Samaritan law

Back 62

Not liable when you rescue unless negligent (meaningless)

Front 63

Negligent Infliction of Emotional Distress: D's negligence (under some other duty) left P mentally distressed

3 scenarios for recovery

Back 63

1. Near miss cases
2. Bystander Cases
3. Relationship cases

Front 64

Negligent Infliction of Emotional Distress: Near Miss Cases

Back 64

1. D's negligence does not cause a harm to P's body but put P in a ZONE OF PHYSICAL DANGER

FL - actually has to be some impact to P's body, but the impact may be trivial

Front 65

Negligent Infliction of Emotional Distress: Bystander Cases

Back 65

P must be a contemporaneous observer of a negligent physical injury to a close family member

FL - recovery is allowed so long as you arrive on the scene while your injured relative is still there (dont have to see it while it happens)

Front 66

Negligent Infliction of Emotional Distress: Relationship Cases

Back 66

If P & D are in a preexisting relationship and if emotional distress is a highly foreseeable consequence of carelessness in the relationship, then P can recover

Ex: false positive at a doctors office

Front 67

Breach: Res Ipsa loquitor

Requires 2 things

Back 67

1. accidents of a type normally associated w/ negligence

2. accident is normally due to the negligence of someone in D's position

If satisfies both - then P gets to go to the jury

Front 68

Causation: Factual Causation

Back 68

1. Always discussing a breach as a cause
2. Breach is A factual cause and not THE cause
3. but-for test: but for the breach would P be healthy today

Front 69

Causation: Factual Causation

Merged Cause Cases - 2 D's acting independently and both breach a duty and merged forces will hurt the P

2 tests

Back 69

1. substantial factor test - a breach is a substantial factor if it was capable of causing harm all by itself (if each D's breach was a substantial factor, then jointly liable)

2. Unascertainable Cause
- D's have the burden of showing that their carelessness did not cause the harm
- if neither D can carry the shifted burden, then jointly liable

Front 70

Causation: Proximate Causation

Back 70

1. P must demonstrate that liability is fair
2. Was the consequence foreseeable from D's breach

Front 71

Causation: Indirect Causation (4)

These are foreseeable circumstances and liability is fair

Back 71

1. intervening medical malpractice
2. intervening negligent rescue
3. intervening protection or reaction forces
4. subsequent disease or accident

Front 72

Injury: Eggshell Skull Rule

Back 72

wherever D has committed the other elements of the claim, then D is liable for all damages suffered even if great in scope

FL - punitive damages are only available in intentional torts and there is a cap

Front 73

Negligent Torts: Affirmative Defenses
Comparative Negligence

Back 73

P failed to exercise proper care and each part is then assigned % of fault and P's recovery is reduced by P's degree of fault

Front 74

Negligent Torts: Affirmative Defenses
Pure Comparative Fault

Back 74

P always recovers even if only 1%.

FL follows this rule unless P was drunk and then if P has >50% of the blame, then no recovery

Front 75

Negligent Torts: Affirmative Defenses
Partial (modified) Comparative Negligence

Back 75

If P's fault <50% then recovery reduced

If P's fault is > 50% then P gets nothing

Front 76

Strict Liability:
Injuries cause by domesticated animals

Injuries by non-domesticated animals

Back 76

no SL unless you have knowledge of your pet's vicious propensities

SL

Front 77

Strict Liability: Abnormally dangerous activity

An activity is abnormally dangerous if

Back 77

1. activity creates a foreseeable risk of severe harm even when reasonable care is exercised AND

2. activity is not a matter of common usage in community where D performs it

Front 78

Strict Liability: Product Liability

4 requirements

Back 78

1. D must be a merchant
2. product must be defective
3. the defect existed when product left D's hands
4. P must be making a foreseeable use of the product at the time of the injury

Front 79

Strict Liability: Product Liability

Manufacturing Defect

Back 79

Came off the assembly line in a way that makes it more dangerous than consumers would expect

-D's safety precautions are irrelevant

Front 80

Strict Liability: Product Liability

Design Defect

Back 80

1. the alt design defect must be safer than the version marketed

2. must be cost effective

3. must be practical

Front 81

Strict Liability: Product Liability

Information/Warnings

Back 81

If it cannot be physically redesigned, but has residual safety risks that are not apparent to users, then the product must have a warning or it will be defective.

Front 82

Strict Liability: Product Liability

FL

Back 82

If a product is put on the market doesnt comply with a fed or state safety code that was a precondition of sale, the non compliance raises a presumption of product defect

Front 83

Strict Liability: Product Liability
Defenses

Back 83

Comparative responsibility only

Front 84

Vicarious Liability
4 relationships of no vicarious liability

Back 84

1. Employer and employee
2. hiring and independent contractor
3. owner of a car and an authorized driver
4. parent - child

Front 85

Vicarious Liability - no vicarious liability for intentional torts unless

Back 85

1. job has authorized use of force
2. job predictable generates tension of friction
3. any intentional tort that serves employers interest

Front 86

Vicarious Liability
independent contractor exception

Back 86

land possessor is liable if independent contractor hurts invitee

Front 87

Vicarious Liability:
Car + authorized driver exception

Back 87

If using car as an agent (running an errand)

FL: permissive use doctrine - owner liable for any one driving with permission (not rental car companies)

Front 88

Vicarious Liability
Parent child FL exception

Back 88

Vicarious liability for theft (3 x actual damage)

Front 89

Joint and Several Liability in FL

Back 89

Abolished

D only pays his portion of % liability

Front 90

Loss of consortium (3)

Back 90

1. loss of services
2. loss of society/companionship
3. loss of sexual intimacy