Mbe Torts

Front 1

Two over-arching rules to follow when analyzing all intentional torts

Back 1

-P hypersensitivity is ignored

-Every D should be held liable, regardless of "capacity" (infants too!)

Front 2

Intentional torts to the person

Back 2

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

Front 3

Torts to property

Back 3

- Trespass to Land
- Trespass to Chattels
- Conversion

Front 4

Battery

Back 4

an intentional act causing harmful or offense contact to the plaintiff's person (anything connected to the plaintiff)

Front 5

Assault

Back 5

An intentional act that creates reasonable apprehension (knowledge) of an immediate harmful or offensive contact with his person

Front 6

What is meant by "offensive"

Back 6

Unpermitted by a person of ordinary sensibility

Front 7

Effect of words to create assault

Back 7

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

Front 8

False Imprisonment

Back 8

An intentional act or omission that confines the plaintiff to a bounded area (no reasonable means of escape known to plaintiff)

moral pressure or future threats is insufficient

Front 9

To claim false imprisonment, plaintiff must show

Back 9

- Aware of
OR
- Suffered actual harm

Front 10

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

Back 10

Intentional or reckless extreme and outrageous conduct that causes severe emotional distress

Front 11

Conduct that is not normally extreme and outrageous can become so if

Back 11

- conduct continuous/repetitive
- D as an inkeeper/common carrier
- Plaintiff is a member of a fragile class (children, elderly, pregnant women)
- P knows of a mental weakness in defendant

Front 12

IIED requires the plaintiff to prove

Back 12

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

Front 13

Causation in bystander cases of IIED: plaintiff may recover by showing (3)

Back 13

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

Front 14

Trespass to Land

Back 14

An intentional act causing physical invasion of plaintiff's real property

Front 15

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

Back 15

Nuisance

Front 16

Property re: trespass includes

Back 16

Surface, Airspace, and Subterranean space for reasonable distance

Front 17

Trespass to Chattels

Back 17

An intentional act that causes damage to plaintiff's personal property interest

Front 18

Conversion

Back 18

An intentional act that causes damage to plaintiff's personal property interest to such an extent to require the defendant pay full value for the personal property

Front 19

Subject matter of conversion

Back 19

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

Front 20

Potential plaintiff's in an action for Conversion

Back 20

Anyone with possession or the immediate right to posession

Front 21

Remedies for Conversion

Back 21

Damages of FMV at time of conversion or possession (replevin)

Front 22

Defenses to intentional torts

Back 22

1. Consent
2. Self-defense
3. Necessity

Front 23

Elements of Trespass to chattels vs. conversion

Back 23

-Trespass to chattels = vandalism
-Conversion = theft or significant damage

Front 24

Two inquiries to be made for consent

Back 24

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

Front 25

Implied consent is determined by what standard

Back 25

An objective standard; plaintiff's subjective thought is not relevant

Front 26

Self-Defense Requirements

Back 26

1. Must show proper timing- Threat must be in progress or imminent

2. Must have a reasonable belief that the threat was genuine- A reasonable mistake does not destroy the privilege

3. Must limit a protective response to force necessary under the circumstances- Excessive force will subject person to liability for a tort

Front 27

NV: Self-defense distinction - Presumption is

Back 27

If someone enters your home, it is always considered a deadly threat and deadly force is always okay

Front 28

Defense of property in hot pursuit

Back 28

May use force in hot pursuit of another who has tortiously dispossed the owner of chattels - viewed as still being committed

Front 29

Hot pursuit defense of property defense superseded when

Back 29

Actor has a privilege to enter on the land of another b/c of necessity or recapture of chattels as long as the chattel is not there due to the owner's fault

Front 30

Restriction on force to recapture chattels

Back 30

Limited to recapture from tortfeasor or some third party with knowledge; not from an innocent thrid party

Front 31

Defense of necessity is limited to what kind of torts

Back 31

Property torts only

Front 32

Public Necessity

Back 32

Arises when D invades plaintiff's property in an emergency to protect community as a whole or a significant group of people

Front 33

Private Necessity

Back 33

D invades plaintiff's property in an emergency to protect an interest of his own

Front 34

What is an acceptable level or force that may be used for a protective privilege?

Back 34

Proportional force

Front 35

Private Necessity Liability

Back 35

1. Must pay for actual damages caused
2. Immunity from nominal/punitive damages

Front 36

Scope of Private Necessity

Back 36

As long as emergency continues, D may remain in a position of safety on plaintiff's land

Front 37

Elements of Defamation

Back 37

- Defamatory language
- "Of or concerning plaintiff"
- Publication (intentional or negligent)
- Damage to plaintiff's reputation

Front 38

Two additional elements if defamation involves a matter of Public Concern

Back 38

- Falsity
- Fault
1. public figure- malice
2. private figure- negligence

Front 39

A statement of opinion is actionable as defamation when

Back 39

it is an assertion as a fact

Front 40

Defamation by inducement and innuendo

Back 40

Plaintiff may plead additional facts to establish defamatory meaning

Front 41

Who may be defamed

Back 41

Only a living person.
Defamation of a deceased person is not actionable

Front 42

Type of damages for slander

Back 42

Plaintiff must prove special damages

Front 43

What are the requirements for a 'publication'?

Back 43

-Info must get to a third person

NOTE: negligent publication is enough

Front 44

Type of damages for libel

Back 44

General damages presumed; no need to prove special damages

Front 45

Slander per se categories (4)(i.e. no need to prove up special damages)

Back 45

1. Business/profession
2. Loathsome disease
3. One is guilty of a crime involving moral turpitude
4. A woman is unchaste

Front 46

No cause of action for defamation against a statement of public interest that is...; consider instead

Back 46

True; IIED or invasion of right of privacy (unless plaintiff is a public figure)

Front 47

For defamation a public figure must also prove

Back 47

Malice

Front 48

Define malice for purposes of defamation claim by a public figure

Back 48

- Know the statement was false
OR
- Reckless disregard for falsity (must personally have doubts as to the truth, an unreasonable mistake if truly held will negate liability)

Front 49

Statements involving matter of public concern against a private individual only need to show

Back 49

Negligence regarding falsity

Front 50

Defenses to defamation

Back 50

1. Consent
2. Truth
3. Absolute privilege (cannot be lost)
4. Qualified privilege (can be lost by abuse)

Front 51

Invasion of Right to Privacy (4) types

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1. Appropriation of Plaintiff's picture of 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 52

Appropriation

Back 52

Unauthorized use of plaintiff's picture or name for defendant's commercial advantage

Front 53

Intrusion

Back 53

Prying or intruding that would be highly offensive to a reasonable person

Must be private place or affairs

Front 54

False Light

Back 54

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

Front 55

Disclosure

Back 55

Public disclosure of private information about plaintiff that would be highly offensive to the ordinary person;

Newsworthy exception

Front 56

Duty of care extends to

Back 56

All foreseeable plaintiffs

Front 57

Standard of care

Back 57

Reasonable prudent person under the circumstances

Front 58

special standards of care categories of duty

Back 58

- Professionals
- Children
- Common Carriers & Innkeepers

Front 59

Standard of care among professionals

Back 59

Custom of profession sets the standard
Average knowledge and skill of those in the profession (avoid reasonable)

Front 60

Standard of care among childen

Back 60

Of like age, education, intelligence, and experience;
UNLESS engaged in adult activities

Front 61

Standard of care among Common Carriers and Innkeepers

Back 61

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

Front 62

Duty of possessor of land to those off premises

Back 62

No duty regarding natural conditions
Duty for unreasonably dangerous artificial conditions
Duty for landscaping on land extends to damages off land

Front 63

Undiscovered trespassers

Back 63

Always lose

Front 64

Discovered or anticipated trespassers

Back 64

Known man made death traps
- Concealed
- Artificial conditions
- Known to the landowner
- Risk of death/serious bodily harm

Front 65

Attractive Nuisance Doctrine - infant trespassers must show (4)

Back 65

1. Dangerous condition on land owner should know of
2. Owner knows/should children frequent the condition
3. Condition is likely to cause injury and children do not appreciate the danger
4. Expense of remedy is slight compared with magnitude of risk

Front 66

Licensee

Back 66

A social guest
Enters land with permission for his own purpose/business

Front 67

Invitee

Back 67

For a purpose connected with the business of the landowner
OR
As members of the public where land is held open to the public

Front 68

Duty owed to licensees

Back 68

Protect from all known traps
1. known to the landowner
2. natural or artificial
3. risk of harm

no duty to inspect

Front 69

Duty owed to invitees

Back 69

Protect from all reasonably knowable traps
1. land owner knows of should have known
2. natural or artificial
3. risk of harm

duty to inspect

Front 70

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

Back 70

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
4. It was designed to prevent the type of harm suffered by plaintiff.

Front 71

When to not apply a statute as the standard of care

Back 71

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

Front 72

Effect of violation of borrowed statute

Back 72

Negligence per se: a conclusive presumption of duty and breach

Front 73

Instances where physical injury not required for NIED

Back 73

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

Front 74

Negligent Infliction of Emotional Distress

Back 74

- D creates a foreseeable risk of physical injury to plaintiff

1. must be in the zone of danger
2. must suffer physical symptoms from distress

Front 75

Elements of Abuse of process

Back 75

-Wrongful use of process with ulterior motive (harass)
-ACT or THREAT against P in order to accomplish ulterior purpose

Front 76

Zone of Danger requirement for NIED

Back 76

The threat must be directed at plaintiff or someone in her immediate presence

Front 77

Elements of Interference with Business Relations

Back 77

-Prior K relationship (or valid K expectancy)
-D has knowledge of the relationship/expectancy
-Intentional interference inducing breach
-Damages

Front 78

special situations of NIED

Back 78

- Seeing injury to another
1. Closely related parties
2. Plaintiff was present at the scene
3. Plaintiff observed or perceived the injury

- Special relationship between plaintiff and defendant (dr./ patient)

Front 79

Affirmative Duties to Act

Back 79

1. Assumption of duty by acting
2. Peril due to D's conduct
3. Special relationship between parties (parents, common carriers, innkeepers)

Front 80

Res Ipsa Loquitur - Plaintiff to show (2)

Back 80

1. Accident of thus type does not normally occur unless someone was negligent
2. The negligence is attributable to the D (D was in control of the instrumentality that caused the injury)

Front 81

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

Back 81

Establish the instrumentality was in D's exclusive control

Front 82

Effect of establishing Res Ipsa Loquitur

Back 82

No directed verdict for D; but plaintiff may still lose if inference of negligence is rejected

Front 83

Grant D's motion for a directed verdict where there is no showing of

Back 83

1. Res Ipsa
OR
2. Evidence of some other breach of duty

Front 84

Plaintiff moving for a directed verdict

Back 84

May do so, but will almost always be denied; usually still a question of causation

Front 85

Actual Cause (causation in fact) tests (3)

Back 85

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

Front 86

Joint Cause approach

Back 86

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

Front 87

Alternative Causes approach to causation

Back 87

-Both parties acted negligently, but only one caused the harm
-Burden of proof shifts to defendant to show they are not liable

Front 88

Proximate Cause (legal causation)

Back 88

Liable for all harmful results that were foreseeable

Front 89

Foreseeable results caused by foreseeable intervening forces

Back 89

D liabile

Front 90

Common intervening forces (almost always foreseeable)

Back 90

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

Front 91

Foreseeable results caused by unforeseeable intervening forces

Back 91

D usually liable unless it was an unforeseeable crime or intentional tort

Front 92

Unforeseeable results caused by forseeable intervening forces

Back 92

D not liable

Front 93

Unforeseeable results caused by unforseeable intervening forces

Back 93

D not liable

Front 94

Punitive damages available where

Back 94

D's conduct is "wanton and willfull"

Front 95

Comparative Negligence

Back 95

Weigh plaintiff's negligence and reduce damages accordingly;
Many jurisdictions prohibit recovery where plaintiff was more than 50% liable

Front 96

Liability for wild animals

Back 96

Strict liability

Front 97

Liability for domestic animals

Back 97

Not strict UNLESS knowledge of dangerous propensity

Front 98

Types of product defect (3)

Back 98

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

Front 99

Manufacturing defect

Back 99

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

strict liability for all in the chin of supply

Front 100

Design defect

Back 100

There exists a better, hypothetical alternative design that is
- safer
- cost neutral
- same utility

Front 101

when is a warning required

Back 101

Danger must not be apparent and obvious

Front 102

Noncompliance with government safety standards

Back 102

Will establish defect

Front 103

Compliance with government safety standard

Back 103

Evidence, but not conclusive, not defective

Front 104

Unavoidably unsafe products - not liable if

Back 104

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

Front 105

Doctrine of Resondeat Superior

Back 105

Vicariously liable for tortious acts committed within the scope of employment

Front 106

Intentional Torts are usually held not within the scope of employment - 3 exceptions

Back 106

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 107

Vicarious liability for independant contractors

Back 107

Generally not liable

Front 108

2 exceptions where principal can be vicariously liable for tortious acts of an independent contractor

Back 108

1. Engaged in inherently dangerous activity
2. Estoppel

Front 109

Vicarious liability for auto owner of driver

Back 109

Generally not liable

Front 110

Parent's liability for their children's tortious conduct

Back 110

No vicarious liability
Could be liable for negligence in not taking precautions for dangers they are aware of

Front 111

requirement to prove intentional tort

Back 111

1. volitional act by defendant
2. intent

Front 112

intent means

Back 112

1. specific intent- goal is to bring about the consequence, or
2. general intent- know with substantial certainty consequence will result

Front 113

extreme and outrageous conduct

Back 113

beyond the bounds of what civilized society will tolerate

Front 114

Defamatory language

Back 114

language tending to adversely affect one's reputation

Front 115

Absolute privileges

Back 115

a. Conversation between spouses
b. Officers of the government acting in their official capacity
c. Compelled radio of tv broadcasts

Front 116

Proof of damages in defamation case

Back 116

libel- presumed
slander per se- presumed
slander- must show some sort of economic harm, then can get emotional as well

Front 117

Consent of children

Back 117

Can consent to age appropriate activities

Front 118

Implied consent

Back 118

1. Based on custom or usage
2. Body language consent

Front 119

Damage requirements for invasions to right of privacy

Back 119

Emotional distress and mental anguish are sufficient
Special damages are not required

Front 120

Defenses to negligence

Back 120

- contributory negligence
- comparative negligence
- assumption of the risk

Front 121

trespassers coming to the wild animal

Back 121

no strict liability unless the owner was negligent

Front 122

vicious watchdogs

Back 122

will be treated as an intentional tort

Front 123

Abnormally dangerous activities

Back 123

1. foreseeable risk of serious harm even when reasonable care is exercised

2. the activity is not common in the community

3. the injury must occur from the actual dangerous propensity of that activity

Front 124

duty for infants

Back 124

not liable of negligence under the age of 4

Front 125

private nuisance and standard

Back 125

substantial interference with another person's use or enjoyment of their land (based on an average person)

Front 126

public nuisance

Back 126

act that unreasonably interferes with the health, safety, or property rights of the community

Front 127

public figure

Back 127

1. achieve such fame and notoriety that they have become a public figure for all purposes

2. voluntarily assume a central role in a particular public controversy and thus become a public figure for a limited range of issues

Front 128

for all defamation cases, also consider

Back 128

- what type of defamation

- intentional and negligent infliction of emotional distress

- the 4 invasions to right of privacy

Front 129

survival of tort claim

Back 129

a tort claim will survive death and permit recovery for all damages from the time of the injury to the time of death

Front 130

wrongful death

Back 130

allows for the recovery of loss of support and loss of consortium

Front 131

qualified privilege

Back 131

1. reports of public proceedings
2. public interest
3. interest of publisher
4. interest of recipient

Front 132

loss of qualified privilege

Back 132

1. malice
2. not within scope of privilege

Front 133

misrepresentation

Back 133

1. misrepresentation
2. knowledge
3. intent to induce reliance
4. justifiable reliance
5. damages
6. causation

Front 134

What are the 5 main elements of a products liability for case under strict liability?

Back 134

-D is a merchant

-Product has a defect (incl. lacking adequate warning)

-Product has not been subsequently altered

-P must be making foreseeable use of the

-Product caused the harm

Front 135

Which merchants can be held liable for products strict liability

Back 135

applies to EVERY merchant in supply chain

Front 136

What is the presumption regarding P's alteration, and what is the EXCEPTION?

Back 136

Presumption that product has not been altered if it has traveled in ordinary channels of commerce

EXCEPTION: Presumption does not apply if bought second-hand

Front 137

What is the only available defense to ANY strict liability case?

Back 137

Comparative fault

Front 138

What's the EXCEPTION to the general rule that Hiring Parties are NOT vicariously liable for Independent contractors

Back 138

land possessor is liable if independent contractor hurts at invitee on land

Front 139

What's the EXCEPTION to the general rule that Owner of car is NOT vicariously liable for driver of car

Back 139

Errand for owner of the car

Front 140

When may a Joint Tortfeasors recover the FULL amount from another party

Back 140

(1) Where out-of-pocket D was only liable b/c of VICARIOUS LIABILTIY, can get full indemnification from actual tortfeasor

(2) Where out-of-pocket D was a NON-MANUFACTURER held strictly liable for a product defect, can seem full indemnification from the manufacturer