9 Torts, Mbe, 2013

Front 1

Intentional torts to the person

Back 1

- Battery
- Assault
- False Imprisonment
- Intentional Infliction of Emotional Distress

Prima Facie Case: Act (volitional movement), intent (specific or general: knows with substantial certainty consequences will result), causation. [Damages only required for IIED]

Front 2

Torts to property

Back 2

- Trespass to Land
- Trespass to Chattels
- Conversion

Prima Facie Case: Physical invasion of π's real property, intent, and causation. [Damages only required for T to Chattels]

Front 3

Elements of Battery

Back 3

- Harmful or offensive contact
- To plaintiff's person
- Intent
- Causation

Front 4

Elements of Assault

Back 4

- Act by D creating reasonable apprehension (knowledge)
- Of immediate harmful or offensive contact
- Intent
- Causation

Front 5

Effect of words to create assault

Back 5

Words alone are not sufficient; must be coupled with conduct; can negate apprehension

Front 6

Elements of False Imprisonment

Back 6

- An ACT/omission by D that CONFINES or restrains
- To a BOUNDED AREA (no reasonable means of escape known to plaintiff)
- Intent
- Causation
- AWARE of confinement OR suffered CONCRETE HARM from confinement

Front 7

Elements of Intentional Infliction of Emotional Distress (IIED - a fallback)

Back 7

- Act by D amounting to extreme and outrageous conduct
- Intent or Recklessness
- Causation
AND
- Damages: sever emotional distress

Front 8

Conduct will be Extreme and Outrageous if it:

Back 8

transcends all bounds of decendy. Or, if

- conduct continuous/repetitive
- D as an inkeeper/common carrier
- Plaintiff is a member of a fragile class (children, elderly, pregnant)

Front 9

IIED is the only tort to the person that requires

Back 9

Damages (severe emotional distress - proof of physical injury NOT required)

Front 10

Bystanders may recover for IIED if

Back 10

1. Present when the injury occurred
2. Close relative to injured person
AND
3. D knew facts 1. & 2.

Front 11

Elements of Trespass to Land

Back 11

- Physical invasion of plaintiff's real property
- Intent (to enter that particular land)
- Causation

Front 12

Trespass of intangible matter (i.e. sound, smell) more likely to give rise to claim of

Back 12

Nuisance

Front 13

"Property" in Trespass to Land includes

Back 13

Surface, Airspace, and Subterranean space for reasonable distance

Front 14

Elements of Trespass to Chattels

Back 14

- An act by D that interfers with Plaintiff's right of possession
- Intent
- Causation
- Damages (actual damages, includes damages to possessory right)

Front 15

Elements of Conversion

Back 15

- Act by D that interfers with plaintiff's right of possession
- Interefence is Serious enough to require D pay full value for chattel
- Intent
- Causation

Front 16

Subject matter of conversion

Back 16

Tangible and intangibles reduced to physical form (i.e. promissory note)

Front 17

Potential plaintiff's in an action for Conversion

Back 17

Anyone with possession or the immediate right to posession

Front 18

Remedies for Conversion

Back 18

Damages of FMV at time of conversion

OR

possession (replevin)

Front 19

Defenses to intentional torts (3)

Back 19

1. Consent
2. Self-defense
3. Necessity

Front 20

There is consent if:

Back 20

1. Valid
2. Did D stay within the bounds of the consent

Front 21

How do you determine if there is implied consent? What kinds of implied consent are common?

Back 21

Objectively

Apparent consent: through circumstances.

OR

Consent by law: The law will deem consent to save plaintiff from substantial harm (consent to enter property to stop fire form burning house down)

Front 22

Three questions to ask when dealing with Self-Defense

Back 22

1. Is the threat IMMINENT (hasn't already occurred)
2. Does D posses a REASONABLE BELIEF in the tortuous invasion
AND
3. Was the PROPER AMOUNT OF FORCE used to counter (rule of symmetry)

Front 23

Defense of others:

Back 23

One may use force to defend another when the actor REASONABLY BELIEVES that the other person could have used force to defend himself.

Front 24

When may you use self defense to protect your property?

Back 24

If you use REASONABLE FORCE in prevention of harm to property.

OR

If you use REASONABLE FORCE to regain possession from another who tortiously dispossessed the owner of chattels (hot pursuit).

Front 25

You cannot use self defense against a person who:

Back 25

Has a privilege to enter on the land of another b/c of necessity or recapture of chattels.

Front 26

You may only use force to recapture chattel from:

Back 26

Tortfeasor or some third party with knowledge;

not from an innocent third party

Front 27

Defense of necessity is limited to what kind of torts

Back 27

Property torts only

Front 28

When is Necessity a defense?

Back 28

When it is REASONABLY AND APPARENTLY necessary to avoid THREATENED INJURY that is substantially more serious than the invasion that is undertaken to avert it.

Front 29

Public Necessity & Private Necessity

Back 29

Public: act is for public good.

Private: Act is solely to benefit a limited number of people. Actor must pay for damages he caused to property.

Front 30

Elements of Defamation

Back 30

(i) Publication of
(ii) Defamatory language
(iii) "Of or concerning plaintiff"
(iv) that is damaging to plaintiff's rep.

Front 31

If the defamation involves a matter of public concern, the π must also establish:

Back 31

(i) that the statement is false, and
(ii) that the publisher is at fault.

Front 32

Defamation of a deceased person

Back 32

Is not actionable

Front 33

"of and concerning" the π if language refers to a group

Back 33

Would a reasonable person understand that the defamatory statement referred to the π?

- Small: each can allege "of and concerning"
- Large: none can allege

Front 34

Publication requirement for defamation

Back 34

It is the intent to publish that is the requisite intent.

Publication must be to someone other than the π.

Front 35

Type of damages for slander

Back 35

Plaintiff must prove special damages (pecuniary loss).

Front 36

Type of damages for libel

Back 36

General damages presumed; no need to prove special damages (radio is libel).

Front 37

Slander per se categories that do not require proof of special damages:

Back 37

1. Adversely reflect on one's conduct in a business/profession
2. One has a loathsome diease
3. One is/was guilty of a crime involving moral turpitude
OR
4. A woman is unchaste

Front 38

No cause of action for defamation if the statement is of public interest and it is:

Back 38

True;

Consider instead IIED or invasion of right of privacy (unless plaintiff is a public figure)

Front 39

Defamation of Public Figure, must show falsity (because of public interest) and

Back 39

Malice:

- Know the statement was false
OR
- Reckless Disregard for falsity

Front 40

Defamation of private individual with a matter of public concern must show falsity, and

Back 40

Negligence regarding falsity

Front 41

Defenses to defamation

Back 41

1. Consent
2. Truth (in cases of purely private concern, π is not required to prove falsity, ∆ may prove truth as a complete defense).
3. Absolute Privilege: judicial/executive/legislative proceedings.
4. Qualified Privilege: Public interest, Reports of public proceedings.

Front 42

Invasion of Right to Privacy:

Back 42

1. Appropriation of Plaintiff's picture or name
2. Intrusion upon plaintiff's affairs or seclusion
3. Publication of facts placing plaintiff in false light
4. Public disclosure of private facts about plaintiff

Front 43

Appropriation of Plaintiff's picture or name

Back 43

UNAUTHORIZED use for defendant's COMMERCIAL ADVANTAGE

Front 44

Intrusion upon plaintiff's affairs or seclusion

Back 44

Must be private affairs; Prying or intruding that would be highly offensive to a reasonable person.

Front 45

Publication of facts placing plaintiff in false light

Back 45

Attributing views to plaintiff he doesn't hold or actions he didn't take; must be highly offensive to a reasonable person

Front 46

Public disclosure of private facts about plaintiff

Back 46

Accurate but confidential information (i.e. medical records); widespread dissemination about plaintiff that would be highly offensive to the average person; newsworthy exception

Front 47

Intentional Misrepresentation Prima Facie Case

Back 47

(i) Misrepresentation of a material fact
(ii) Scienter (knew or believed it was false)
(iii) Intent to induce π to act in reliance
(iv) Causation (actual reliance)
(v) Justifiable reliance, and
(vi) Damages

Front 48

Interference with Business Relations Prima Facie Case:

Back 48

(i) Valid K relationship
(ii) ∆ knows of relationship
(iii) intentional interference inducing breach
(iv) damages

Front 49

Duty of care extends to

Back 49

All foreseeable plaintiffs under the circumstances

(including rescuers, viable fetuses, & intended beneficiaries of economic transactions)

Front 50

Standard of care

Back 50

Reasonable person - gotta do as a good as a reasonably prudent person

Front 51

Particular standards of care

Back 51

- Professionals
- Children
- Common Carriers & Innkeepers
- Emergency actors

Front 52

Standard of care among professionals

Back 52

A member of the profession or occupation in good standing in similar communities.

Front 53

Standard of care among childen

Back 53

Of like age, education, intelligence, and experience; UNLESS engaged in adult activities, then held to reasonably prudent person (adult).

Front 54

Standard of care among Common Carriers and Innkeepers

Back 54

Plaintiff must be a customer; Held to a high degree of care; Liable for slight negligence

Front 55

Duty of possessor of land to those off premises

Back 55

No duty regarding natural conditions (except trees, exam favorite);
duty for unreasonably dangerous artificial conditions

Front 56

Duty of possessor land to those on premises - status of entrant

Back 56

- Trespassers
- Licensees
- Invitees

Front 57

Undiscovered trespassers

Back 57

Always lose. No duty is owed to undiscovered trespassers.

Front 58

Discovered or anticipated trespassers

Back 58

Landowner must WARN or MAKE SAFE
- Concealed
- Artifical conditions
- Known to the landowner
- Risk of death/serious bodily harm

Front 59

Attractive Nuisance Doctrine: Landowner must exercise ordinary care if (4)

Back 59

1. Dangerous condition on land owner should know of
2. Owner knows/should children frequent the condition
3. Condition is likely to cause injury (child unlikely to appreciate the risk)
4. Expense of remedy is slight compared with magnitude of risk

Front 60

Licensee: Status and Duty.

Back 60

Enters with owner's permission for her own purpose or business rather than for landowner's benefit (social guest, firefighters, police).

Landowner must WARN:
- Known conditions
- unreasonable risk of harm
- entrant is unlikely to discover

Front 61

Invitee: Status and Duty.

Back 61

In response to invitation from landowner, for purpose of landowner's business, or land held open to public.

Landowner must WARN:
- Known conditions
- unreasonable risk of harm
- entrant is unlikely to discover AND
- make reasonable inspections

Front 62

Lessor/Lessee Duty of Care

Back 62

Lessee has a general duty to maintain the premises.

Lessor must warn of existing defects he should know about, and which he knows lessee is not likely to discover.

Front 63

A statute's specific duty may replace the more general common law duty of care if (4)

Back 63

Class of Person
Class of Risk
1. It provides for a criminal penalty
2. It clearly defines the standard of conduct
3. Plaintiff is within the protected class
AND
4. It was designed to prevent the type of harm suffered by plaintiff.

Front 64

When to not borrow a staute

Back 64

- If compliance would be more dangerous (cross double yellow lines)
- If compliance would not be possible (heart attack while driving)

Front 65

Effect of violation of borrowed statute

Back 65

Negligence per se: a conclusive presumption of duty and breach, still must prove causation and damages.

Front 66

Negligent Infliction of Emotional Distress

Back 66

- D creates a foreseeable risk of physical injury to plaintiff. π must be (i) within the zone of danger; and (ii) the π must suffer physical symptoms from the distress.

Front 67

Zone of Danger and Physical Injuries reqs not necessary for NIED if:

Back 67

1. Closely related parties
2. Plaintiff was present at the scene
AND
3. Plaintiff observed or perceived the injury

OR

1. Erroneous report of a relative's death
2. Mishandling of a relative's corpse

Front 68

When does one have an affirmative duty to act?

Back 68

1. Assumption of duty by acting
2. Peril due to your conduct
3. Special relationship between parties (common carriers, innkeepers)
4. Duty to control third persons (has actual ability to control and knows/should person is likely to commit acts that would require exercise of this control)

Example: Ryan is extremely violent, Mitchell knows this, and has the ability to control her actions, so Mitchell has a duty to control a third person.

Front 69

Res Ipsa Loquitur - Plaintiff must show (2)

Back 69

1. Accident of type not normally to occur unless someone was negligent
2. The negligence is attributable to the ∆ (in ∆'s possession the whole time)

Front 70

To show negligence attributable to the D in a Res Ipsa claim

Back 70

Establish the instrumentality was in D's exclusive control

Front 71

Effect of establishing Res Ipsa Loquitur

Back 71

π has made a prima facie case for negligence. No directed verdict for the ∆.

Front 72

Actual Cause (causation in fact) tests (3)

Back 72

- "But for" test
- Joint causes: substantial factor test
- Alternative causes approach

Front 73

Joint Cause approach

Back 73

Both parties caused the harm;
D's conduct is the cause in fact if it was a substantial factor

Front 74

Alternative Causes approach

Back 74

Both parties acted negligently, but only one caused the harm (two hunters fired shots, only one bullet struck π)

Front 75

Proximate Cause (legal causation)

Back 75

The ∆ is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. FORESEEABILITY. ("plaintiff will prevail IF it was reasonably foreseeable that...")

Limitation on liability

Front 76

If the results are foreseeable, regardless of the foreseeability of the intervening forces:

Back 76

D liabile

Front 77

Common dependent intervening forces that are foreseeable:

Back 77

- Negligence of rescuers
- Subsequent medical malpractice
- Injuries caused by another reacting to D's actions
- Efforts to protect the personor property
- Subsequent disease caused by weekend condition
- Subsequent accident caused by original injury

Front 78

Damages for Negligence

Back 78

Will not be presumed, no nominal damages allowed for negligence.

π must be compensated for economic and noneconomic harm (pain and suffering). Eggshell Skull says you take your π as you find him. π does have a duty to mitigate. Damages are not reduced just because π received benefits from other sources (like insurance).

Front 79

Punitive damages available where

Back 79

D's conduct is "wanton and willfull", reckless, or malicious.

Front 80

Cap on punitive damages

Back 80

3x actual damages, up to 1 million (except no limit where D was drunk)

Front 81

Defenses to Negligence

Back 81

Contributory Negligence: traditionally, a complete bar to π's recover. Now, almost all jurisdictions favor (below)

Comparative Negligence: Weigh plaintiff's negligence and reduce damages accordingly; many bar recovery where plaintiff more than 50% liable (partial comparative).

Assumption of Risk: if π assumed risk knowingly and voluntarily, denied recovery.

Front 82

Pure Comparative Fault

Back 82

Default scheme on the bar. π can recover even if more at faul (greater than 50%) than the ∆.

Front 83

Strict Liability Prima Facie Case

Back 83

(i) the nature of ∆'s activity imposes an absolute duty to make safe.
(ii) the dangerous aspect of the activity was the actual and proximate cause of the π's injuries AND
(iii) the π suffered damage to person or property

Front 84

Common Strict Liability Activities

Back 84

Trespassing Animals: Liable for reasonably foreseeable damage.
Wild Animals: liable to licensees and invitees for any injuries caused by wild animals.
Domestic Animals: If knowledge of dangerous propensities.
Abnormally Dangerous Activities: (i) risk of serious harm even when reasonable care exercised, AND (ii) activity is not a matter of common usage in the community

Front 85

Types of product defect (3)

Back 85

1. Manufacturing defect
2. Desgin defect
3. Inadeqaute warning

Front 86

Manufacturing defect

Back 86

Product emerges different and more dangerous b/c of the difference; must anticipate reasonable misuse

Front 87

Design defect

Back 87

ALL products are dangerous There exists a better, hypothectical alternative design that is
- safer
- cost neutral
- practical

Front 88

Inadequate warning

Back 88

Manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users.

Drugs: warnings to "learned intermediaries" (prescribing physician) will usually suffice in lieu of warning patient.

Front 89

Noncompliance with governemnt safety standards

Back 89

Will establish defect

Front 90

Compliance with government safety standard

Back 90

Evidence, but not conclusive, not defective

Front 91

Unavoidably unsafe products - not liable if

Back 91

- The danger is apparent
AND
- No safer way to make the same product

Front 92

Products Liability based on Negligence, Intermediary's duty to inspect

Back 92

A wholesaler or retailer's negligent failure to discover a defect does NOT supersede the original manufacturer's negligence, unless the intermediary's conduct exceeds ordinary foreseeable negligence.

Front 93

Products Liability based on Strict Tort Liability

Back 93

(i) A strict duty owed by a COMMERCIAL SUPPLIER of a product (ii) PRODUCTION or SALE of a defective product (iii) actual and proximate CAUSE, and (iv) DAMAGES

Front 94

Products Liability based on Strict Tort Liability - Intermediary's Liability

Back 94

Retailer may be liable even if no opportunity to inspect.

Front 95

Nuisance

Back 95

Private: A SUBSTANTIAL or UNREASONABLE INTERFERENCE with use or enjoyment of property the π actually possesses or has a right of immediate possession.

Public: An act that UNREASONABLY INTERFERES with the health, safety, or property rights of the community. Individual π must suffer unique damages not suffered by the public at large.

Front 96

Doctrine of Resondeat Superior

Back 96

An ER will be vicariously liable for tortious acts committed by EE if acts within the scope of the employment relationship.

Front 97

Are intentional torts "within the scope of employment"?

Back 97

Generally, no. But there are three exceptions.

1. Force is authorized in the employment (bouncer)
2. Friction is generated by employment (bill collector)
3. The employee is furthering the business of the employer (kicking out rowdy customers)

Front 98

Vicarious liability for independant contractors

Back 98

Generally not liable, but two exceptions:

Independent Contractor is hired to perform inherently dangerous activities (like blasting).
Hired to do a non delegable duty (like the duty to use care in building a fence around an excavation site?)

Front 99

Is the owner of a vehicle vicariously liable for acts committed by a driver?

Back 99

Generally, no. But some states have employed specific theories:

- Family/household members driving with consent.
- Anyone driving with consent
- Negligent entrustment, or negligence when present in car

Front 100

Is a parent liable for the tortious conduct of their children?

Back 100

Generally, no. At least not at common law. Exceptions:

- Most states however have made parents liable for WILLFUL and INTENTIONAL TORTS of their minor children up to a certain dollar amount (like $10K)
- Child acting as AGENT for parent.
- Parent's own NEGLIGENT PERMISSION to do dangerous act.
- Parent knows of CHILD'S VIOLENT TENDENCIES but fails to act accordingly.

Front 101

Is a Tavernkeeper liable for acts committed by drunken patrons after they leave?

Back 101

Generally, no. But a Dramshop act creates a cause of action in favor of third persons injured by intoxicated patrons.

Front 102

When is Joint and Several Liability appropriate?

Back 102

Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be joint and severally liable (liable to the π for the entire damage incurred).