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49 Cards in this Set
- Front
- Back
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Intentional Torts
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1. D must have made voluntary act
2. D must have intended the consequences of D's act 3. Intent can be proven by transferred intent - either tort to tort or person to person 4. Motive is not relevant 5. Mentally incompetent adults and children can be held liable for intentional torts 6. Causation: D's act must have caused or been a substantial factor in causing the result 7. Actual damages are not needed for intentional torts (nominal damages can be awarded) 8. Possibility of punitive damages if D's behavior was willful, wanton, and malicious 9. Unlike in negligence, D in an intentional tort case is liable for all harm caused even if harm was not foreseeable |
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Assault
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P's reasonable apprehension of imminent harmful or offensive contact, plus D's intent and causation
1. D must intend to cause P's apprehension (or transferred intent) 2. No actual contact needed 3. Words alone are not sufficient to prove assault; there must be some physical act by D (unless P is blind) 4. P must be aware of D's act 5. D must have actual/apparent ability to cause harmful/offensive contact 6. P must prove reasonable person would have been placed in apprehension |
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Battery
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D's harmful or offensive contact with P, plus intent and causation
1. D must intend to cause harmful or offensive contact 2. Intent to commit an assault will satisfy intent for battery 3. Contact can be with P's body or something connected to P's body; battery established by D setting in motion something that causes contact (ex. pulling chair away) 4. Harmfulness of contact based on reasonable person standard (unless D knew of P's sensitivity) 5. P's awareness of contact is not needed for battery |
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False Imprisonment (FI)
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1. D's act must confine/restrain P to bounded area; D's act must be voluntary and with intent to confine
2. Confinement includes physical barrier, physical force, and threats of immediate physical force 3. Bounded area means no reasonable exit 4. Being excluded from an area is not FI (ex. locked out of house) 5. Length of confinement is not relevant to prove FI (just damages) 6. P must be aware of confinement 7. Transferred intent applies to FI 8. Motive not relevant; actual damages not needed |
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Intentional Infliction of Emotional Distress
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D's intentional or reckless extremely outrageous behavior which causes P severe emotional distress
1. D's act must be extreme (words enough if outrageous enough) 2. P's special sensitivity considered only if D knows of it 3. D's identity is relevant (ex. common carrier = higher standard) 4. P's identity relevant (ex. pregnant or very old P) 5. Severe emotional distress required (ex. complete breakdown) 6. Intent is proven not only by actual desire and substantial certainty, but also reckless behavior 7. Transferred intent does not apply |
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Trespass to Land
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1. Trespass to land involves D's voluntary and intentional physical invasion of P's land
2. Physical invasion includes D's personal entrance, throwing tangible items on P's land, D's remaining on P's land after being told to leave, or D's leaving objects on P's land after being told to remove them 3. D must have intent to physically invade, but no need to prove intent to trespass 4. D's good faith, honest, reasonable belief that land belongs to D is not a defense 5. Harm to land not needed |
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Conversion and Trespass to Chattel
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Conversion = intentional destruction or wrongful possession for a significant period of time of another's personal property; remedies = damages (fair market value) or replevin (return)
Trespass to Chattel = some harm or short wrongful possession of another's personal property; requires actual damages (reduction in value or value of loss of use) D's good faith reasonable belief that chattel belongs to D is not a defense |
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Consent
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1. Defense to all torts
2. Consent based on duress is invalid 3. Consent based on P's mistake invalid if D was aware of P's mistake 4. If express consent based on misrepresentation going to essence of the touching, consent invalid; if based on misrepresentation as to collateral matter, consent is valid defense 5. Consent can be implied from participating in activities known to include physical contact (ex. riding bus, playing sport) 6. Consent is valid, and thus not tort, it D was reasonable in believing P consented even if D was mistaken that P consented 7. P must have capacity to consent 8. If D acts beyond scope of consent, consent becomes invalid |
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Self Defense
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1. D entitled to use reasonable force to prevent intentional tort that D reasonably believes is about to be committed against D
2. Reasonable belief of D is valid defense even if D was wrong for need to use self-defense 3. Force must be reasonable 4. No duty to retreat (modern trend requires retreat if self defense force causes death or serious bodily harm, unless D in own home) 5. Self defense does not include retaliation 6. Injured bystanders: D not liable to bystander (if reasonable) |
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Defense of Other Persons
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1. Reasonable force may be used to protected a 3rd person, even a stranger
2. Even if defender is mistaken as to right of self defense of 3rd person, defense is valid, and defender not liable for battery as long as defender had reasonable belief that 3rd person had right of self-defense |
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Defense of Land or Chattels
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1. Reasonable, nondeadly forces, may be used to protect land/chattels
2. Retaliation is not allowed 3. Reasonable, nondeadly force to regain possession of chattel is allowed if original taking was illegal, in fresh pursuit, and request for return is useless or dangerous 4. When chattel is located on land of wrongdoer, owner of chattel is privileged to enter wrongdoer's land and reclaim chattel in reasonable manner |
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Necessity
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1. Defense to trespass to land, trespass to chattel, and conversion
2. Public necessity defense: if D's acts, although a tort, avoided greater injury to public, there is no liability 3. Private necessity defense: if D's acts, although a tort, avoided greater injury to a small number of persons, D is only liable for any actual damage caused |
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Discipline
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persons in charge of children are permitted to use reasonable force to control a child
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Merchant's Privilege
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defense to false imprisonment; shopowner is not liable if reasonable belief that person detained has shoplifted even if no shoplifting actually occurred
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Defamation
-Slander = purely spoken -Libel = written; statements on tv -Defamatory = lowers P's reputation in the community (respectable society) |
-Statement defamatory if reasonable person would find statement defamatory
-Statements of fact, not opinions -Individual of group can only bring individual action if group is small -No dead defamation Ps -Defamation requires publication (communication to 3rd party) -Person who repeats defamatory statement is also liable -If statement defamatory, damages presumed (P need not prove actual damages); economic damages needed for slander (unless crime of moral turpitude; std, sexual or business misconduct involved) -Truth is defense for D to prove; P not required to prove falsity -Public officials/celebrities must prove by clear and convincing evidence that statement was false and that D acted with malice -Private person P need not prove falsity, malice, or negligence |
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Invasion of Privacy
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1. Misappropriation of P's picture or name for commercial advantage
2. Unreasonable intrusion into P's affairs or seclusion (ex. wiretapping, repeated phone calls); intrusion must be into something private and must be objectionable to a reasonable person (no communication to 3rd party needed) 3. Public disclosure of private facts about P that a reasonable person wouldn't want made public; facts are true, not generally known about P, not part of public record, and not of legitimate public interest 4. False light: false attribution of belief or action which reasonable person would find objectionable that is publicized in public way (malice needs to be proven) |
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Deceit-Fraudulent Misrepresentation
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1. Misrepresentation of material fact
2. As general rule, opinions and silence cannot be the basis of deceit 3. Deceit can be based on an expert opinion; and on silence if there is a fiduciary relationship and duty to speak 4. D must have intent to deceive or reckless disregard for truth 5. Transferred intent does not apply 6. P must prove reasonable reliance and actual damages |
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Negligent Misrepresentation
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1. Misrepresentation of fact as a result of D's negligence (narrow tort; covers only misrepresentations made by D as part of D's business)
2. Only persons that D knew would rely on D's statement are proper Ps 3. P must prove reasonable reliance and actual damages |
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Tortuous Interference with Contract
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1. P must prove P had valid K with T that D knew about; that D intentionally interfered with K; and that P suffered actual damages
2. Interference with K signed or a prospective K is only actionable if D used wrongful tactics (ex. violence) |
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Negligence - was a duty owed?
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1. Everyone has duty not to affirmatively act in a manner to create unreasonable risk of harm to others
2. There is no duty to take precautions against events that are not reasonably foreseeable 3. Duty only owed to foreseeable Ps 4. Rescuers are foreseeable as long as rescue is reasonable 5. No duty to aid someone in need of help (unless special relationship or someone causes another's injury) 6. Good Samaritan - person who begins to help must complete help with reasonable care; doctors have no duty to help injured persons 7. No duty to prevent 3rd person from committing tort |
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Negligence - Standard of Care
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1. Objective standard of reasonable care - ordinary, prudent person
2. Less bright, less experienced adults are not held to a lower standard; insanity is not defense 3. Greater knowledge/experience of D will be considered 4. Physical disabilities considered in determining reasonableness 5. Child standard - what is reasonable for someone of like age, knowledge, education, intelligence, experience (if child engaged in adult activity, use adult standard) 6. Professionals' standard - what is reasonable for average member of profession in good standing in the same or similar community 7. Standard for specialist - extra knowledge is considered (national standard in evaluating specialist) 8. Guest statutes - driver owes non-paying rider less than reasonable care (only liable for gross negligence or recklessness) |
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Negligence - Duty Owed by Owners and Occupiers of Land - General
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1. Was P injured while on D's land or off D's land?
2. Was P injured by artificial condition, natural condition, or activity? |
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Negligence - Duty Owed by Owners and Occupiers of Land - If P was injured off land
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a. by natural condition: no duty owed to P except if P was injured by decaying tree next to sidewalk in a city
b. by artificial condition: no duty owed to P except if P injured by dangerous condition on edge of property (ex. explosives or uncovered excavated hole) c. by an activity: duty of reasonable care owed to P |
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Negligence - Duty Owed by Owners and Occupiers of Land - if P injured on D's land
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a. first, label P as trespasser, licensee or invitee
b. Trespasser is person on D's land without D's permission c. Different types of trespassers: 1. Undiscovered 2. Discovered 3. Anticipated 4. Child trespasser and attractive nuisance doctrine d.Licensee e. Invitee |
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Undiscovered trespasser
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no duty owed if P was injured by activity or artificial or natural condition
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Discovered trespasser
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no duty owed if P was injured by natural condition or non-dangerous artificial condition; duty to warn or make safe if injured by highly dangerous artificial condition; duty of reasonable care owed if injured by activity
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Anticipated trespasser
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no duty owed if P was injured by natural condition or non-dangerous artificial condition; duty to warn or make safe if injured by highly dangerous artificial condition; duty of reasonable care owed if injured by activity
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Child trespasser and attractive nuisance doctrine
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attractive nuisance doctrine = owner or occupier of land owes child trespasser duty of reasonable care; applies if:
1. dangerous, artificial condition (ex. swimming pool) 2. D knew or should have known that children are likely to come by the artificial condition 3. P was incapable of appreciating the danger 4. Expense of making condition safe is slight compared to danger -Artificial condition need not be the motive for the child's trespass |
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Licensee
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Social guest or person on D's property for her own economic benefit (door to door salesperson); police/firefighters on D's land are also treated as licensees
If licensee injured by an activity, D owes P duty of reasonable care; if licensee is injured by a condition (artificial or natural), D owes P duty to warn or make safe non-obvious dangerous conditions of which D knows; no duty to inspect |
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Invitees
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2 Types:
1. Business invitee - on D's property for economic benefit to D; include customers, persons accompanying customers, repair person in D's home 2. Public invitees - persons on D's property for public purpose; airport passengers, museum tourists, church attendees If invitee injured by activity, D owes P duty of reasonable care; if invitee injured by condition (natural or artificial), D owes P duty to warn or make safe non-obvious dangerous conditions of which D knows; D owes P duty to make reasonable inspection |
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Negligence - Breach of Duty
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1. Burden to prove D's breach is on P
2. P might have direct evidence of unreasonable conduct or P can rely on circumstantial evidence 3. If res ipsa loquitur established, P will avoid directed verdict (RIL established by showing that what happened ordinarily occurs only if someone was negligent, and that more probable than not, it was this D who committed the negligent act because of this D's exclusive control of the injury producing instrumentality) |
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Custom of the Trade and Use of an Expert Witness
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Evidence of custom is admissible to prove breach of duty
Compliance with custom dos not lead to verdict for D as matter of law because jury could find that custom itself is unreasonable, and thus D was acting unreasonably even if in compliance with the custom Expert testimony - expert will testify on what is custom and whether in expert's opinion D violated the custom |
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Violation of Statute
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1. P may rely on D's violation to prove negligence
2. Majority - negligence per se - 3 things must be true: a. violation of statute was unexcused (balance harm of complying vs. harm if violated) b. type of harm must be same type of harm statute was aimed at preventing c. P must be member of class of persons statute was intended to protect 3. D's compliance with statute relevant but not conclusive; reasonable person may have to go beyond statute's requirement |
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Negligence - Actual Causation
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1. use the "but for" test when there is one tortfeasor
2. if there is more than one tortfeasor, do not use "but for" test 3. use the substantial factor test if there is more than one negligent actor 4. if two D's are acting jointly, all D's are actual cause of entire injury 5. If two D's are not acting jointly, if negligence of either one would have caused entire injury, each is actual cause of entire injury 6. If two D's are not acting jointly, and the negligence of both combines to cause greater injury than what would have resulted from the separate negligence of each, D is actual cause of entire injury 7. If two D's are not acting jointly,and P is injured by negligence of one D, not both, and it is impossible to determine which one, both D's are viewed as the actual cause, unless one D can prove that the other was the actual cause (burden is on D) |
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Proximate Cause
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1. Harm suffered by P must have been reasonably foreseeable to D at time of D's negligent act
2. Type of harm must be foreseeable, but not the extent of harm (take your victim as you find him; eggshell plaintiff) 3. Proximate cause does not extend to economic harm suffered by 3rd persons 4. Intervening cause = third person conduct or event which occurs subsequent to D's tort and which causes additional harm to P; if foreseeable, D is liable for additional harm; if unforeseeable, cause is superceding and D is not liable for additional harm 5. Medical malpractice is a foreseeable intervening event 6. Crimes and intentional torts are generally held to be unforeseeable 7. But a crime may be foreseeable (stolen car with keys left inside) |
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Damages
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1. Actual damages required for negligence
2. Types of damages: pain and suffering; diminished earning capacity; medical expenses; loss of consortium 3. Emotional distress: majority view requires some physical injury or symptom; also, P must have been impacted or within zone of danger; modern approach covers P who was present at the scene who views close family member being impacted 4. Possible trend: damages for NEID may also be available by an act which by itself is likely to result in physical symptoms, even absent any physical impact or close physical impact (false diagnosis of terminal illness of plaintiff) |
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Assumption of Risk
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if P assumed risk, P collects nothing; P must subjectively actually know and understand the risk, and voluntarily accept it; not applicable to rescuers
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Contributory Negligence
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when P's unreasonable conduct is actual and proximate cause of P's actual damages (same law of negligence as applied to D); even if P is only slightly contributorily negligent, P collects nothing
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Last Clear Chance Doctrine
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although P was contributorily negligent, if D had not acted after P's contributory negligence, P would not have been injured, and therefore P can collect because of the last clear chance doctrine
Often wrong answer choice |
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Comparative Negligence (majority)
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P's recovery calculated by percentage of fault attributable to P
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Partial or Modified Comparative Negligence
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I P is more than 50% responsible for injury, P gets nothing
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Strict Liability
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-no fault liability
-there is strict liability for harm caused by an abnormally dangerous activity (that involves high risk of harm which cannot be eliminated no matter how much care is take and activity is not usual for the area - ex. blasting and storage of explosives) -there is strict liability for injuries by wild injuries (bull is not wild) -strict liability for domestic animals requires knowledge of animal's dangerous propensity -assumption of risk is defense; contributory negligence is not a defense |
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Products Liability and Negligence
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1. Unreasonable conduct involving manufacture or sale of product which is actual and proximate cause of P's injury; P must be reasonably foreseeable victim; privity not needed; typical D is manufacturer, but also includes seller and component part maker
2. Negligent failure to discover a defect is not a superseding cause; if seller is negligent in failing to correct a manufacturer's negligence, manufacturer remains liable |
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Products Liability and Strict Liability
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1. No fault liability for injury caused by a product which is defective and unreasonably dangerous
2. P must first prove a defect (design, manufacture, warning, instruction) 3. P must prove product is unreasonably dangerous 4. Foreseeable unintended use is not a defense - design must account for unintended foreseeable uses; there is a duty to warn about unintended but foreseeable uses 5. Causation - defect must have caused injury 6. D must be commercial supplier of product 7. Must be physical damage to person or property 8. Strict liability does not apply to services 9. No strict liability for unavoidably unsafe products (ex. knives) |
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Nuisance
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1. D's substantial/unreasonable interference with P's use and enjoyment of property
2. Interference must be substantial to average person; P's special sensitivity never considered 3. No need to prove intent to be nuisance 4. Actual harm needed 5. Remedies: equitable (close down or limit hours); damages (reduction in property value) 6. Public nuisance - when health, safety or property rights of general public are effected; private P must prove separate injury apart from that of public to prevail |
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Vicarious Liability
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1. Liability based on status, not fault
2. Employer/employee - servant or IC: a. servant - right to control; paid salaries, not highly skilled, do not have own business, use boss' tolls at boss' place of business, long term workers b. IC - no right to control; have own business, have more skill, paid by the hour, have own tools, short term workers 3. No vicarious liability for IC unless IC is engaged in inherently dangerous activity; liability for negligent hiring or supervision of IC is not vicarious liability 4. Vicarious liability for servant if servant's tort within scope of employment 5. Commuting from house to work is not within scope 6. Vicarious liability applies to all torts 7. Even if employer is vicariously liable, employee is also liable for own tort |
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Multiple Tortfeasors
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1. General rule - joint and several liability
2. Contribution: if D1 paid more than her pro rata share to P, D1 entitled to contribution from D2 to equalize payment based on # of tortfeasors 3. Indemnification: why D seeks full reimbursement from another (ex. seller liable under SL seeks indemnification from manufacturer; employer held vicariously liable seeks indemnification from employee) |
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Deceased Tort Victim
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1. common law: cause of action died along with victim (no more)
2. wrongful death statute: damages for loss of support, services, companionship and consortium; damages paid to surviving family members of deceased victim 3. survival statute: damages suffered between time of tort and death (medical expenses); damages paid to estate of deceased victim 4. beneficiaries have no greater rights than victim would have had if victim had lived |
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Immunities
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1. Spousal - spouses can sue one another
2. Parent-child - minor child can sue parents 3. Charitable - charity can be sued 4. Federal govt - sovereign immunity protects against tort suit, but FTCA waives immunity for negligence; no punitive damages or strict liability claims 5. State govt - sovereign immunity, but most have limited waiver 6. Municipal govt - immune while engaged in governmental functions but not proprietary ones, for example, trash collection and parking lots |
