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111 Cards in this Set

  • Front
  • Back
Tort liability
Liability that is involuntarily assumed, as imposed by law
Tort law
gives persons relief from civil wrongs or injuries to their persons, property, and economic interests.
3 objectives of tort law
1) Compensate persons who sustain harm or loss resulting from another's conduct
2)place the cost of that compensation only on those parties who should bear it
3) prevent future harms and losses
4 components of a tort
1) a duty is owed by one person to another
2) this duty is breached
3) proximate cause
4) injury/damage to the owner of a legally protected interest
3 levels of tort liability
1) Intentional
2) Negligent
3) Without fault (strict liability)
Punitive Damages
Damages over and above the amount necessary to compensate the plaintiff.

Awarded for intentional and outrageous torts, showing malice/fradulent/evil motive
Tort law: common or statutory?
Common Law

-The restatments present many important areas of common law, including torts (persuasive but not binding)
the actor desires to cause the consequences of his act or believes the consequences are substantially certain.
Privileged conduct
Furthers an interest of social importance:
-defense of property
-defense of others
-plaintiff's consent to defendant's conduct
Harm to the person (Intentional)
-False Imprisonment
-Infliction of emotional distress
intentional infliction of harmful or offensive conduct (offensive conduct would offend a reasonable person's sense of dignity)
intentional conduct that places another in apprehension of immediate bodily harm or offensive conduct
False Imprisonment (false arrest)
intentionally confining a person against herwill within fixed boundaries if the person is conscious of the confinement or harmed by it.
Merchants protected for detaining suspected shoplifters if:
1)probable cause
2)reasonable manner
3)not for more than a reasonable time
Infliction of Emotional Distress
when a person, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress

-liable for emotional distress and resulting bodily harm
conduct that evidences a conscious disregard of or an indifference to the consequences of the act committed
Harm to the right of dignity covers ...
3)freedom from unjustifiable litigation
false communication that injures a person's reputation by disgracing him and diminishing the respect in which he is held
Elements of Defamation
1)false and defamatory statement concerning another
2)unprivileged publication(communication) to a 3rd party
3)sometimes- some degree of fault on her part in knowing or failing to ascertain the falsity of the statment
4)sometimes- proof of special harm caused by the publication
defamatory communication that is handwritten, type-written, printed, pictorial, or in any other medium with similar commicative power
spoken or oral defamatory communication
communication of defamatory information to person(s) other than the one who is defamed
Types of Defense to Defamation
1)Absolute privilege
2)Conditional Privilege
3)Constitutional Privilege
Absolute privilege
protects defendant from defamation suit regardless of his motive or intent
1)statements made by participants in a judicial proceeding, regarding that proceeding; 2)statements made by members of Congress on the floor of congress; 3)statements made by certain executive branch officers while performing their governmental duties; 4)statements regarding a third party made between spouses when they are alone
Conditional privilege (qualified privilege)
A person has a conditional privilege to publish defamatory matter to protect her own legitimate interests, or (sometimes) the interests of another

Also extends to cases where publisher and recipient have a common interest (reference letters)

Forfeited when publisher acts in an excessive manner, without probable cause, or for an improper purpose
Constitutional Privilege
privilege extended by the first amendment to protect statements made about public officials or public figures so long as it is done without malice
Malice (concerning constitutional privilege)
not ill will, but clear and convincing proof of the publishers knowledge of falsity or reckless disregard of the truth.
Requirements for defamation suit brought by private person against member of news media
plaintiff must prove that the defendant published the defamatory and false comment with malice and negligence
Requirements for defamation suit brought by private person against another who is not a member of the news media
Currently unresolved as to whether the plaintiff must prove anything beyond the fact that a defamatory statement has been made
Invasion of privacy torts
1)(appropriation)appropriation of a person's name or likeness; 2)(intrustion) unreasonable intrusion on the seclusion of another; 3)(public disclosure) unreasonable public disclosures or private facts; 4) (false light)unreasonable publicity the places another in a false light in the publict eye
appropriation of a person's name or likeness for one's own benefit

-promoting/advertising a product or service, also known as "right of publicity"
unreasonable and highly offensive intrusion on the seclusion of another

-improper entry into another's dwelling
-examination of private papers and records

Publicity not required
Public Disclosure of Private Facts
unreasonable public disclosures or private facts

Requires publicity, unlike intrusion

Publicized- communicated to public at large
False Light
unreasonable publicity the places another in a false light in the publict eye

Must be publicized and objectionable to a reasonable person, although need not be defamatory
Defenses for invasion of privacy torts
Same as defamation (absolute, conditional, and constitutional)
Misuse of Legal Procedure
1)Malicious prosecution
2)wrongful civil proceedings
3)Abuse of process
Intentional Harm to Property Torts
1)Trespass to real property
3)Trespass to personal property
Real Property
Land and anything attached to it, such as buildings, trees, and minerals

Owner has right to exclusive use and quiet enjoyment of
Trespass to real property
Liable if:
1) enters or remains on land in the possession of another
2)causes a thing/person to so enter or remain
3)fails to remove from the land a thing that he is under a duty to remove.

No damage required
Is an intruder liable for trespassing if they are unaware they are trespassing?
Nuisance to real property
non-trespassory invasion of another's interest in the private use and enjoyment of land.

(unpleasant odors, smoke, dust, gas, pollution of water)
Personal property
any type of property other than an interest in land
Trespass to personal property
intentional dispossession or unauthorized use of the personal property of another
Liability for trespass to personal property if...
1)dispossesses the other of the property; 2)substantially impairs the condition, quality, or value of the property; 3)deprives the possessor of use of the property for a substantial time
Conversion to personal property
intentional excercise of dominion or control over another's personal property that so seriously interferes with the other's right of control as to justify payment of full value for the property
Economic (pecuniary) interests
1)existing and prospective contractual relations
2)business reputation
3)name and likeness
4)freedom from deception
Interference with contractual relations
interfering intentionally and improperly with the performance of a contract by inducing one of the parties not to perform it, extends to prospective contractual relations (lease renewal/financing for construction)

Must act with purpose or motive of interfering with another's contract, or with the knowledge will result in probable impairment of contract
Offer of a better contract that interferes with an existing contract
Disparagement (Injurious Falsehood)
Imposes liability upon one who publishes a false statement that results in harm to another's monetary interests if the publisher knows that the statement is false or acts in reckless disregard of its truth or falsity
Defenses to disparagement
Same as defamation (absolute, conditional, constitutional)

Competitor has conditional privilege to compare her products favorably to those of a competitor
Damages plaintiff entitled to recover for disparagement
1)pecuniary loss immediately resulting from impairment of the marketability of the property disparaged
2)Expenses necessary to counteract the false publication, including litigation expenses, cost of notifying customers, and the cost of publishing denials
Fraudulent Misrepresenation
imposes liability for the monetary loss caused by a justifiable reliance on a misrepresentation of fact intentionally made for the purpose of inducing the relying party to act.
conduct that creates an unreasonable risk of harm
Failure to exercise reasonable care.
Strict liability
based on the nature of the activity in which one is engaging

Defendants are liable, even if they maintain utmost care, for injuries they cause if they engage in certain activities (keeping animals, maintaining abnormally dangerous conditions, etc.)
Restatement definition of negligence
"conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm"
General rule concerning negligence
a person is under duty to all others at all times to exercise reasonable care for the safety of other persons and their property
3 elements of negligence
1)Breach of duty of care
2)proximate cause
Breach of duty of care (component of negligence)
that a legal duty required the defendant to conform to the standard and conduct established for the protection of others and that the defendant failed to conform to that standard
Proximate Cause (component of negligence)
that the defendant's failure to conform to the required standard of conduct proximately caused the injury and harm the plaintiff sustained
Injury (component of negligence)
that the injury and harm is of a type protected against the defendant's negligent conduct
Factors when evaluating risk of harm (negligence)
1)probability the harm would occur
2)the gravity or seriousness of the resulting harm
3)the social utility of the conduct creating the risk
4)the cost of taking precautions that would have reduced the risk
Reasonable Person
a fictitious individual who is always careful and prudent, and never negligent

external and objective
Reasonable person (children)
compared to child of like age, intelligence, and experience under circumstances
Reasonable person (Physical disability)
compared to reasonable person having like disability
Reasonable person (mental deficiency)
court does not allow for the insanity, volunary intoxication, or other mental deficiency of a defendant

Compared to a reasonable person who is not insane, etc.
Reasonable person (Superior Skill or Knowledge)
Persons who are qualified are required to use the same care and skill that members of their profession or trade normally possess.

Applies to physicians, dentists, etc.
Reasonable person (emergency)
emergency = sudden and unexpected event that calls for immediate action and permits no time for deliberation

the standard is that of a reasonable person under the circumstances

exception: defendant always liable if they created the emergency
Reasonable person (Violation of statute)
Standard may be established by legistlation, so long as:
1)the legislation provides for civil liability,
2)the statute is intended to protect a class of citizens that includes the plaintiff
Negligence per se
if an action violates a statute that applies, many courts hold that the violation shows negligence conclusively

legislative standards form minimum standards
Duty to act
No one is required to aid another in peril
Exceptions to duty to act
1)Parental relationship
Extended duty to act
duty to act also imposed on those whose conduct, whether tortious or innocent, has injured another and left him helpless and in danger of further harm

a person who has come to the voluntary assistance of another incurs the duty to exercise care
Duties of possessors of land
Right to use land for benefit/enjoyment restricted by duty to do so in a reasonable manner

1)Duty to trespassers
2)Duty to licensees
3)Duty to invitees
a person who enters or remains on land without the permission or privilege to do so
Duty to trespasser
Lawful possessor of the land not liable to trespassers for failure to maintain the land in a safe condition

Not free to inflict intentional injury on trespasser

Upon discovery of trespasser, possessor required to exercise reasonable care/warn trespassers of unsafe conditions of which they are unlikely to discover
a person who is privileged to enter or remain on land only by virtue of the lawful possessor's consent

(members of the possessor's household, social guests, and salespersons calling at private homes)
Duty to licensee
Possessor must warn licensee of dangerous activities and conditions of which the possessor has knowledge and the licensee does not and is not likely to discover
A person invited upon land as a member of of the public or for a business purpose
Public invitee
a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public (parks, beaches, pools, post office
Business visitor
a person invited to enter or remain on premises for a purpose directly or indirectly concerning business dealings with the possessor of the land (someone who enters a store, worker who enters a residence to make repairs)
Duty to invitees
to exercise reasonable care to protect against dangerous conditions about which the possessor should reasonably know and which the invitee is unlikely to discover
Res Ipsa Loquitur
"the thing speaks for itself"

applies when the event is of a kind that ordinarily would not occur in the absence of negligence and other possible causes are sufficiently eliminated by the evidence
Proximate cause
consists of the judicially imposed limitations on a person's liability for the consequences of his negligence
causation in fact
Defendant's conduct must be shown to be the cause of the injury

Apply the "but for" rule
"but for" rule
a person's conduct was the cause of an event if the event would not have occurred but for the person's negligent conduct

An act/omission is not the cause in fact if the event would have occurred regardless of the act/omission
Substantial factor
Addresses situations with more than 1 contributing party

negligent conduct is a legal cause of harm to another if the conduct is a substantial factor in bringing about the harm
Limitations on Causation in Fact
1)Unforseeable consequences
2)Superseding cause
Unforseeable consequences
even if the defendant's negligent conduct is a cause in fact of harm to the plaintiff, the conduct is not the proximate cause unless the defendant could have reasonably anticipated injuring the plaintiff or a class of persons of which the plaintiff is a member
Superseding cause
an intervening cause that occurs after the defendant's negligent conduct and with that negligence causes the injury

Public sidewalk excavation (darkness - not superseding, Carson hurls bogues - superseding)
Plaintiff must prove that the defendant's negligent conduct proximately caused harm to a legally protected interest
Defenses to negligence not available for intentional torts
1)Contributory negligence
2)Comparative Negligence
3)Assumption of Risk
Contributory Negligence
defined as conduct on the part of the plaintiff that falls below the standard to which he should conform for his own protection and that is a legal cause of the plaintiff's harm
Last clear chance
associated with contributorily negligence

plaintiff may still recover if the defendant had a "last clear chance" to avoid injury to the plaintiff but did not avail himself of such a chance
Pure comparative negligence
damages are divided between the parties in proportion to the degree of fault or negligence found against them
Modified comparitive negligence
the plaintiff recovers as in pure comparative negligence unless her contributory negligence was equal to or greater than that of the defendant, in which case the plaintiff recovers nothing
Express assumption of risk
the plaintiff expressly agrees to assume the risk of harm from the defendant's conduct

usually agreed to by contract
Implied assumption of risk
the plaintiff voluntarily proceeds to encounter a known danger
Current State of Implied Voluntary Assumption
The third restatement has abandoned the doctrine of implied voluntary assumption of risk: it is no longer a defense that the plaintiff was aware of a risk and confronted it
Strict liability (absolute liability, liability without fault)
A person may be held liable for injuries he has caused even though he has not acted intentionally or negligently
Activities that give rise to strict liability
1)performing abnormally dangerous activities
2)keeping animals
3)selling defective, unreasonably dangerous products
Abnormally dangerous activities
(1)necessarily involves a high degree or risk of serious harm to the persons and this risk cannot be eliminated by the exercise of reasonable care


(2) is not a matter of common usage.
Examples of abnormally dangerous activities
-storing explosives or flammable liquids
-blasting or pile driving
-crop dusting
-drilling/refining oil in populated areas
-emitting gases/fumes into a community
Keeping of Animals
Those who possess animals must protect against harm those animals may cause to people and property
Trespassing animals
Holders of animals are held liable for any damage their animals cause by trespassing on the property
Exceptions to trespassing animals
1)keepers of cats and dogs are liable only for negligence, except where a statute or ordinance imposes strict liability
2)keepers of animals are not strictly liable for animals straying from a highway on which are being lawfully driven (owner may be held for negligence)
3)in some western states, keepers of farm animals (cattle) are not strictly liable for harm caused by their trespassing animals that are allowed to graze freely
Nontrespassing animals
Keepers of wild animals are strictly liable for harm caused by such animals, whether or not they are trespassing
Wild Animals
defined as those that, in the region they're kept, are known to be likely to inflict serious damage and that cannot be considered safe
(bears, lions, monkeys, tigers, deer, raccoons)
Domestic Animals
are those animals that are traditionally devoted to the service of humankind and that is a class that are considered safe
Liability and domestic animals
Keepers of domestic animals are liable if they knew, or should have known, of an animal's dangerous propensity
Products liability
limited form of strict liability on manufacturers and merchants who sell goods in a defective condition unreasonably dangerous to the user or consumer
Defenses to strict liability
Contributory negligence not a defense

Some states apply comparative negligence, most states apply it to strict product liability

Voluntary assumption of risk is a defense to an action based on strict liability