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97 Cards in this Set
- Front
- Back
Intentional Torts |
1. Act |
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Intentional Torts |
The intent to commit a tort against one person is transferred to the person actually injured, or to the tort actually committed |
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Intentional Torts
Torts that the transferred intent rule applies to |
Only applies if the tort intended and the tort resulting are: |
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Intentional Torts |
Everyone is liable for torts! |
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Intentional Torts |
The injuries must be caused by defendant's act or something set in motion by defendant's act. |
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Battery elements
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1. harmful or offensive contact 3. D's intent, and 4. causation |
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The Supersensitive Plaintiff Rule |
The plaintiff's supersensitivities are irrelevant |
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Battery Damages
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Real damages not required. |
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Assault Elements |
1. Act creating reasonable apprehension in P; |
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Intentional Torts |
Not subjective intimidation or fear |
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Intentional Torts |
Reasonable apprehension is created even if no harm is possible |
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Intentional Torts |
Words alone are not enough. (D must say words coupled with action.) |
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**Exam Tip |
Battery
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Intentional Torts |
No damages required |
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Intentional Torts |
1. An act or omission on the part of defendant that confines or restrains P; |
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Intentional Torts |
Sufficient include: |
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Intentional Torts |
*Time of confinement not relevant, can be very short |
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Intentional Torts |
Bounded area |
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Intentional Torts |
Damages not required. |
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Intentional Torts |
No False imprisonment if: |
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Intentional Torts |
1. Act by defendant is extreme and outrageous conduct; |
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Intentional Torts -conduct may become outrageous in three scenarios |
Conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if: |
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Intentional Torts |
Actual damages are required (not nominal). -injury is substantial emotional distress |
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Intentional Torts |
D intentionally causes physical harm to a 3rd person and P suffers emotional distress because of it. |
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Intentional Torts
Trespass to Land elements |
1. Act of physical invasion of real property |
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Intentional Torts |
1. An act that interferes with plaintiff's right of possession in a chattel; |
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Intentional Torts |
*intermeddling--directly damaging the chattel, or |
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Intentional Torts |
1. An act that interferes with P's right of possession in chattel |
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Intentional Torts -Act -Intent -Remedy |
1. Act by Defendant |
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Intentional Torts: Defenses |
D is not liable for injuries to P, if P consents to D's conduct. (Note: you cannot consent to a criminal act.) -you can exceed the scope of consent and be held liable (bring a gun to a boxing match) |
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Intentional Torts: Defenses -consent implied by law |
Apparent consent |
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Intentional Torts: Defenses |
1.tort is imminent or in progress |
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Intentional Torts: Defenses |
**not available to the initial aggressor unless the other party responds to the aggressor's nondeadly force by using deadly force |
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Intentional Torts: Defenses |
One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself |
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Intentional Torts: Defenses |
One may use reasonable force to prevent the commission of a tort against her real or personal property. |
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Intentional Torts: Defenses |
A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious that the invasion. |
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Defamation elements (common law) |
1. defamatory statement about P, 2. publication to a 3rd party, 3. damage to P's reputation |
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Const. Defamation D's fault: 1. if P is a public figure 2. if P is a private figure |
1. Public figure: malice (D knowing of the falsity of acting in reckless disregard. Damages preesumed)
2. Private figure: negligence (malice = damages presumed) |
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Defamation |
communication to a 3rd person ****know it was about D |
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Defamation |
Libel: written or broadcast (TV/radio) |
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Defamation Defenses |
Absolute privileges (cannot be lost) |
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Defamation defenses
*consent |
consent is a complete defense to defamation. Works similarly to consent to intentional torts. |
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Invasion of right to privacy
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1. appropriation of P's picture or name |
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Invasion of right to privacy defenses |
*consent (see defamation and intentional torts) |
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Misrepresentation |
1. affirmative misrepresentation of a material fact; 5. Causation (actual reliance);and |
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Misrepresentation |
See intentional misrepresentation |
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Interference with Business Relations |
1. existence of a valid contractual relationship between P and a 3rd party, OR a valid business expectancy of P; |
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Interference with Business Relations
*Defenses (privileges) |
Existence of a privilege is a question of fact. |
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Negligent Torts |
*a duty on the part of D to conform with a specific standard of conduct for protection of plaintiff against unreasonable risk of injury; breach of that duty; breach was the actual and proximate cause of P's injury; and damage |
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Negligent Torts |
-reasonable person under the circumstances |
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Negligent Torts: standards of care
-the children standard |
-children of like age, intelligence, and experience
*subjective standard *individual intelligence is taken into account **Exception: where the child is engaged in adult activity, the reasonable person standard applies |
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Negligent Torts: standards of care
-the professionals standard |
a reasonable professional in the same or similar communities
*the more specialized training the professional has, the higher standard they will be held to |
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Negligent torts: standards of care
Common carrier and Innkeepers standard |
liability for even slight negligence
*P must be passenger or guest |
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standards of care
O/O of land duty to: *undiscovered trespassers *discovered or anticipated trespassers |
*undiscovered trespassers |
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standards of care |
O/O liable if P shows:
-dangerous condition that D knows or should know of; -O/O knows or should know children frequent the vicinity of the condition; -the condition is likely to cause injury (child cannot appreciate the risk); and -the expense of remedying the situation is slight compared with the magnitude of the risk The child DOES NOT have to be attracted onto the land by the dangerous condition |
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standards of care |
Licensee: on the land for his/her own purpose with O/O's permission (salesman, social guest) |
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standards of care
O/O of land *duty to invitees |
invitee: on the land for the O/O purpose (e.g. O/O is a store owner) |
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O/O of land
*If unclear if P is an invitee or licensee |
treat P as an invitee
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O/O of land
*discharge of duties |
-adequate warning discharges D's duties, or
-very obvious dangerous conditions |
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Negligent torts: standards of care
*statutory standards *effect of noncompliance *defenses for noncompliance |
for the statutory standard to apply: |
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Negligent torts
NIED elements |
P must suffer a physical injury (shock is enough)
P must be within the "target zone" of D's negligent conduct |
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Negligent Torts
Duty to act (4 exceptions) |
No affirmative duty to act, unless: |
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Negligent Torts |
1. injury would not happen unless someone was negligent |
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Negligent Torts |
1. D's breach was the but for cause of P's injury; |
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Negligent Torts |
D is liable for all injuries that were the foreseeable result of his negligent actions.
*unforeseeable intervening force: D still liable unless intervening force is crime or intentional tort *eggshell skull P: D takes the P as he finds him. the extent of the injuries do not need to be foreseeable, only that the injury could occur |
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Negligent Torts |
Damage will not be presumed (and nominal damages are not available) |
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Negligent Torts -defense to defendant's violation of a statute |
Contributory negligence: negligence on the part of the plaintiff that contributes to her injuries.
Defense to d's violation of a statute *contributory negligence is a defense to defendant's violation of a statute, unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment. (e.g., a child injured after darting into the street in a school zone getting hit by a D who is speeding.) |
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Defenses to Negligence Assumption of Risk (2-part test) |
Plaintiff denied recovery because she assumed the risk of any damage caused by D's act. Requires that:
1. Plaintiff knew of the risk, and 2. voluntarily proceeded in the face of the risk. |
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Defenses to Negligence Implied Assumption of the Risk *When is risk not implied *Defense to intentional torts |
knowledge of risk is implied where the risk is one that an average person would clearly appreciate.
risk is not implied if there is no alternative to proceeding in situations involving fraud, force, or emergency.
implied assumption of the risk is not a defense to intentional torts. But is a defense to willful and wanton negligence. |
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When is there implied assumption of the risk and contributory negligence? (3-part test) |
Plaintiff: 1. unreasonably, and 2. voluntarily, 3. takes on a known risk |
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Negligence Defenses:Effect of Contributory Negligence 1. Contributory Negligence states 2. Comparative Negligence States 2a. Partial Compartive Negligence 2b. Pure Comparative Negligence |
1. Contributory negligence state: P's contributory negligence completely bars recovery.
2. Comparative negligence state: P's contributory negligence reduces the recovery.
2a. Partial comparative negligence state: P cannot recover if P was more negligent than any other party.
2b. Pure comparative negligence state: P can recover even though P was more negligent than the other party.
***Always assume that you are in a pure comparative negligence jurisdiction on the MBE*** |
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Strict Liability Torts Prima facie case |
No standard of care. P must show 1. D had an absolute duty to make safe; 2. the dangerous aspect of the activity was the actual and proximate cause of P's injury; and 3. P suffered damages |
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Strict Liability Torts Liability for animals 1. Trespassing animals 2. Personal injuries (wild animals, domestic animals, as to trespassers) |
1. trespassing animals: a owner is strictly liable for foreseeable damage done by the trespass of his animals.
2. an owner is strictly liable for injuries caused by wild animals; no strict liability for domestic animals unless the owner knows of the animal's dangerous propensities (one bite free rule); strict liability will generally not be imposed in favor of trespassers in the absence of the owner's negligence |
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Strict Liability Torts Abnormally dangerous activities (2-part test) |
1. activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and 2. the activity is not a matter of common usage in the community
*injuries must be caused by the abnormally dangerous characteristics of the activity (D not liable under strict liability claim if a dynamite-filled truck speeds and hits someone but the dynamite does not explode).
**D is liable no matter how careful D was being because it is a strict liability tort!! |
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Products Liability Who can be held liable? |
any commercial supplier if P can show:
1. defect causing the injury existed at the time the product left that defendant's control, and 2. plaintiff needs a "workable" theory: negligence or strict liability |
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Products liability Negligence Theories *duty to inspect |
focus is on D's conduct. Possible negligent conduct: 1. negligent design 2. negligent manufacture 3. negligent warnings 4. negligent inspections (res ipsa is available)
duty to inspect: retailers and wholesalers usually satisfy their duty of care through a cursory inspection |
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Products liability Strict liability elements *who can be a defendant |
1. a commercial supplier of a product, 2. producing or selling a defective product "an unreasonably dangerous condition"
*everyone can be sued! indemnification up the chain applies |
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Nuisance 1. Definition 2. Private Nuisance 3. Public Nuisance |
1.Nuisance is not a tort, it a a type of harm. Nuisance actions can be based on intentional, negligent, or strict liability theories
2. Private nuisnce: substantial and unreasonable interference with one's use and enjoyment of land
3. Public nuisance: act which unreasonably interferes with health, safety, or property rights of the community |
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Nuisance Who can bring the action? |
Private: P must have possesion or the right to immediate possesion of the land
Public: P can recover only if she has suffered a unique damage no suffered by the public. |
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Nuisance Standard |
Objective. The conduct must be objectionable to an average person (e.g., not specific to P's allergies) |
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Nuisance Can P come to the nuisance and win the law suit? |
Yes, it doesn't matter if P came to a preexisting nuisance |
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Nuisance Balancing test |
unreasonable interference if: the severity of the injury to P outweighs the utility of D's conduct |
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Vicarious liability Respondeat Superior Intentional Torts |
Respondeat Superior: Employers will be held vicariously liable for the actions of their employees if the tortious acts occur within the scope of the employment relationship.
1. Intentional torts: generally not within the scope of employment, unless. a. authorized by employer (bouncer), b. generated by employer (bill collector), or c. furthering the business of the employer (removing rowdy customers). |
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Vicarious Liability Car Owners/Drivers |
Car owners are not vicariously liable for the torts of other drivers. Except:
1. family car doctrine: household member using the car with permission, or
2. permissive use doctrine: anyone using with permission |
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Vicarious Liability
Parents/Children |
Parents are not vicariously liable for the torts of their children.
But many states make parents liable for the wilfull and intentional torts of their children by statute (up to a fixed dollar amount). |
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Joint and several liability |
where 2 or more negligent acts combine to proximately cause an injury, each negligent actor will be liable to P for the entire damage incurred.
*if the injury is divisble, each D is liable only for their identifiable portion |
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Ds acting in concert |
where 2 or more Ds act in concert and injure P, each is jointly and severally liable, even if the injury is divisible. |
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contribution |
allows a D who pays more than his share of the damages under joint and several liability to have a claim against other jointly liable parties for the excess (apportions responsibility) |
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Contribution and intention intentional torts |
contribution is not allowed among intentional tortfeasors |
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Indemnification |
D can get entire award amount back from other defendant(s) |
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When indemnifation applies |
1. by contract 2. vicarious liability situations 3. the other D is a lot more responsible 4. under strict products liability |
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comparative contribution |
Defendants split up judgment according to "relative fault" (rather than each D being liable for the full amount) |
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Survival and Wrongful Death |
Derivative recoveries, you will recover no more than the decendent would have if he/she had lived. |
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Survival of torts actions |
allow one's cause of action to survive the death of the party. Applies to torts to property and personal injury torts.
Does not apply to torts invading intangible personal interests (defamation, invasion of right to privacy, malicious prosectution).
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Wrongful death |
grant recovery for $ injury resulting to the spouse and next of kin.
creditors have no claim against amount awarded |
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Tort Immunities
Intra-family tort immunities |
traditional view: one family member could not sue another in tort for personal injury.
ABOLISHED
even in states that retain parent-child immunity: children can always sue parents for a. intentional torts, or b. car accident cases to the extent of insurance coverage |
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Tort immunities
Governmental tort immunity |
immunity is available for governmental functions, not proprietary actions.
Would a private person normally perform this function? If yes, no immunity |