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80 Cards in this Set
- Front
- Back
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Prima Facie Case Generally
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(1) Act by Defendant
(2) Intent; And (3) Causation |
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Transfered Intent
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X intend to commit tort against Y, will be transfered when:
(1) different tort against Y (2) Same tort but non-Y (3) Different tort and non-Y Tort Intended and Resulting Tort Must be on this List: (a) Assault (b) Battery (c) False Imprisonment (d) Trespass to Land (e) Trespass to Chattels |
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Battery: Prima Facie Case
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(1) Act by D that brings about harmful or offensive (unpermitted) contact to P's person (or anything connected to them)
(2) Intent to bring about harmful or offensive contact (3) Causation |
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Assault: Prima Facie Case
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(1) Act by D creating reasonable apprehension in P of immediate harmful or offensive contact to P's person
(2) Intent by D to bring about P's apprehension (expectation) of immediate harmful or offensive contact with P's person (3) Causation |
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Assault: Immediacy Requirement
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Apprehension must be of immediate contact. Threat of future contact not enough or if D is too far away to harm or is merely preparing for a future harmful act
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False Imprisonment: Prima Facie Case
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(1) Act or omission by D that confines or restraints P to a bounded area
(2) Intent by D to restrain P to bounded area (3) Causation |
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False Imprisonment: Methods of Confinement
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(1) Physical Barriers
(2) Physical Force on P/P's Family Member/P's Property (3) Direct Threats to Above/Indirect Threats if Reasonable (4) Failure to Provide Means of Escape (5) Invalid Use of Legal Authority (False Arrest, Unreasonable belief, manner, or time for Shoplifting) |
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Intentional Infliction of Emotional Distress: Prima Facia Case
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(1) Act by D that was extreme and outragous
(2) Intent of D to cause P severe emotional distress or recklessness as to the effect on P (3) Causation (4) Damages: severe emotional distress |
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Trespass to Land: Prima Facia Case
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(1) Act of physical invasion of P's real property
(2) Intent of D to bring about physical invasion (intent to enter land) (3) Causation |
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Trespass to Chattels: Prima Facia Case
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(1) Act that interferes with P's right of possession in the chattle (physical damage or dispossession)
(2) Intent to perform the acting bringing about the interferece (3) Causation (4) Damages (diminished valued) |
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Conversion: Prima Facia Case
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(1) Act of interference with P's right of possession (physical damage or dispossession) that is serious enough to warrant requiring D to pay for full value of the chattel
(2) Intent of D to perform act with brings about interference (3) Causation (full value) |
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Intentional Torts: Defenses
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(1) Consent
(A) Whether P had capacity to consent (except emergencies) (B) Type of consent (I) Express - sufficient presence of mistake, fraud, or coercion (II) Implied - Custom/usage, P's conduct, implied by law (C) Did D stay within boundaries of consent given (2) Self-Defense, Others, or Property (A) Correct timing - tort now occurring or just about to occur (already committed no defense) (B) Reasonable belief - no duty to retreat (C) Proper Force - reasonable force always except defense of property never force calculated to bring serious bodily injury (3) Recapture of Chattels (Hot Pursuit) (4) Privilege of Arrest (5) Necessity - avoid injury or force where injury is substantially more serious than invasion (A) Property tort (B) Type of necessity (I) Public - benefits many, absolute privilege (II) Private - benefits few, no tort but liable for actual damage (6) Discipline (reasonable and accounts for age of child and serioiusness of conduct) |
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Defamation: Prima Facia Case
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(1) Defamatory language (statement of fact)
(2) Language must be "of or concerning the P" (statement reasonably understood to be about P) (3) Intentional or negligent publication to 3rd person (4) Damage to the reputation ----If Public Person/Matter of Public Concern Also---- (5) Falsity of defamatory language (6) Fault on D's part (A) Public Figure - malice (B) Private Figure - negligent |
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Defamation: Damages
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Libel - general damges presumed (includes radio/TV broadcasts)
Slander - must plead and prove special damages otherwise not actionable unless slander per se involving (A) Business/Profession (B) Loathsome Disease (C) Crime Involving Moral Turpitude (common law crimes) (D) Unchastity of a Woman |
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Defamation: Defenses
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(1) Consent
(2) Truth (3) Absolute Privilege (Judicial Proceeding, Legislative Proceeding, Executive Proceedings, Compelled Publication, Communication between Spouses) (4) Qualified Privilege (Report of Public Proceeding, Public Interest, Interest of Publisher, Interst of Recipient, Common Interst of Publisher and Recipient) - can be losted if statement not within scope of privilege or done with malice |
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Invasion of Right to Privacy: Types
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(1) Approrpation of P's name or picture for D's commercial advantage
(2) Intrusion of P's affairs or seclusion (3) Publication of facts placing P in a false light (4) Public disclosure of private facts |
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Invasion of Right to Privacy: Appropriation of P Name/Picture
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(1) Unauthorized use of name/picture
(2) For commercial advantage (promotion of good/services) |
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Invasion of Right to Privacy: Intrusion into P's Privacy or Seclusion
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(1) Act of prying or intruding
(2) Intrusion highly offensive to reasonable person (3) Thing intruding on is private |
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Invasion of Right to Privacy: False Light
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(1) Publication (wide dissemination) of facts that place P in a false light (alleged views/actions) in the public eye
(2) False light would be highly offensive to reasonable person (3) Malice where matter is in the public interest/figure |
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Invasion of Right to Privacy: Disclosure of Private Facts
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(1) Publication (wide dissemination) of private facts about P
(2) Matter made public would be highly offensive to a reasonable person |
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Invasion of Right to Privacy: Defenses
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(1) Consent
(2) Absolute Privilege (3) Qualified Privilege |
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Misrepresentation: Intentional
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(1) Misrepresentation of fact
(2) Scienter (malice) (3) Intent to induce reliance (4) Justifiable Reliance (5) Causation (actual reliance) (6) Damages |
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Misrepresentation: Negligent
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(1) Misrepresentation by D in a business or professional capacity
(2) Breach of duty to particular P (3) Causation (4) Justifiable Reliance (5) Damages |
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Interference with Business Relations: Prima Facie Case
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(1) Valid contractual relationship between P and 3rd party or valid business expectancy
(2) D's knowledge of the relationship (3) Intentional Interference including breach or interference (4) Damage |
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Interference with Business Relations: Privileges
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Factors
(1) Type of business relationship (2) Means of persuasion used (3) Whether D is a competitor (4) D's relationship with 3rd party |
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Malicious Prosecution: Prima Facie Case
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(1) D must being institution of criminal proceedings (not prosecutor or witness)
(2) Termination favorable to P (3) Absence of probable cause (4) Improper purpose of D (5) Damages |
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Wrongful Civil Process
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(1) D must being institution of criminal proceedings
(2) Termination favorable to P (3) Absence of probable cause (4) Improper purpose of D (5) Damages |
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Abuse of Process
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(1) Wrongful use of process for an ulterior purpose
(2) Definite act or threat against P to accomplish ulterior purpose |
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Negligence: Prima Facie Case
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(1) Duty of D to conform to specific standard of care
(2) Breach (3) Actual & proximate cause (4) Damages |
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Negligence: Whom is a Duty of Care Owed?
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(1) Foreseeable P (P2 when breach of duty to P1 and P2 within "zone of danger" (reasonable person have foreseen risk of injury to P2))
(2) Rescuer even if negligent (3) Fetus if viable at time of injury (4) Intended beneficiary of economic transaction |
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Negligence: Standard of Care - Basic
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(1) Objective standard
(2) Reasonable person (3) Same physical characteristics (4) Average mental ability (5) Average knowledge unless D has more knowledge |
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Negligence: Standard of Care - Specialized
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(1) Professions: posses and exercise knowledge and skills of member of profession
(2) Children (A) Subjective standard (B) Child of like age, education, intelligence, and experience (C) Engaged in adult activities then standard of care as adult in that activity (3) Common Carriers & Innkeepers: liable for slight negligence to passenger or guest (4) Bailment ----Bailee---- (A) Sole Benefit Bailor - gross negligence (B) Sole Benefit Bailee - slight negligence (C) Mutual Benefit - ordinary due care (D) Modern Trend - ordinary ----Bailor---- (A) Sole Benefit Bailee - Inform of known dangerous defects in chattel (B) Bailment for Hire - inform of defects known or could have known by exercise of reasonable dilgence |
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Negligence: Standard of Care - Owner-Occupier
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Step 1: Is D an owner-occupier or in privity with one?
Step 2: Injury off the land (A) Off - Natural Conditions - No duty to protect (B) Off - Artificial Conditions - No duty except (i) unreasonably dangerous conditions abutting adjacent land or (ii) must take precautions to protecting persons passing by (iii) duty to exercise reasonable care with his activities on the land and control conduct of those on the property to avoid unreasonable risk of harm to others outside property Step 3: On the Land (A) Undiscovered Trespasser? No Duty Step 4: Type of Activity/Dangerous Condition (A) Activity - Ordinary negligence status irrelevant (B) Dangerous Condition (i) Trespasser - artificial conditions involving risk of serious injury which o/o knows of (ii) Licensee (social guest) - Dangerous conditions o/o knows of (iii) Invitee (come connected w/ business or held open to public) - Dangerous conditions o/o should know of |
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Negligence: Standard of Care - Owner-Occupier - Special Issues
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(1) Duty discharged by either warning or making safe the dangerous condition
(2) Very obvious dangerous conditions are there own inherent warning (3) Attractive Nuisance (i) Dangerous condition o/o should be aware (ii) O/o should know that young persons frequent vicinity of dangerous condition (iii) Condition is likely to cause injury (child inability to apprciate risk) (iv) Expense to remedy slight in comarison to risk |
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Negligence: Standard of Care - Statutory (Negligence Per Se)
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(1) Statute provides for criminal penalty
(2) P within protected class (3) Statute designed to prevent this type of harm (4) Standard of conduct, when & where expected, and of whom is clearly defined (5) No Excuse (i) compliance would cause more danger (ii) compliance would be impossible Effect: conclusive presumption of duty and breach (not causation and damages) |
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Negligence: Negligent Infliction of Emotional Distress
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(1) P within zone of danger OR
(i) P and injured party closely related and (ii) P observed the event (2) P suffered physical symptoms from distress OR Special situation that creates great likelihood of emotional distress |
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Negligence: Standard of Care - Duty to Act
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No affirmative duty to act for benefit of another except
(1) assumptoin of duty to act by acting (2)Peril due to D's conduct (3) Special relationship between parties (common carriers places of public accommodation) (4) Duty to control 3rd person if (i) right and ability to control (ii) know or should know that 3rd person likely to commit such act |
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Negligence: Breach
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(1) D did not meet standard of care
(2) Res Ipsa Loquitur: If P does not have enough hard evidence to establish D's negligent conduct - (i) Interence that injury would not happen unless someone was negligent (ii) negligence attributable to D (instrumentality under exclusive control) (iii) P not contributorily negligent (3) Violation of Statute |
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Intentional Tort Defenses: Self-Defense
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(1) Reasonable Belief
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Tort Checklist
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Step 1 - Identify Tort
(1) Intentional Tort? (2) Strict Liability? (A) Abnormally dangerous activity (B) Dangerous Animal (D) Dangerously Defective Product (3) Negligence? Step 2 - Liability of D (A) Can P establish prima facie case? (B) Can D assert any affirmative defenses? Step 3 - General Considerations (A) Vicarious liability (B) Multiple defendants (C) Wrongful death (D) Tort immunities |
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Property Damage Checklist
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(1) Major or Minor invasion of rights
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IIED vs. NIED
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(1) Extreme/outrageous conduct
(2) Intent (A) Intent = IIED (B) Negligent/Careless/Accidental = NIED & within Zone of Danger (3) Harm (a) IIED - Psychic injury only / reasonable person (b) NIED - Psychic & physical |
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Respondeat Supiror
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Employers are vicariously liable for the negligence of their employees within the scope of their employment
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Partial Comparative Negligence
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multiple D's ok as long as P >50%
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Strict Liability - Prima Facie Case
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(1) Nature of D's activity imposes absolute duty to make safe
(2) Activity is actual and proximate cause of P's injury (3) Damage |
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Strict Liability - Animals
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(1) Trespass of animals (not household pets) as long as reasonably foreseeable
(2) Wild animals and abnormally dangerous domestic animals where D knows dangerous propensities (3) Licensee & Invitee - strict liability; trespasser must prove D knew trespasser on land and failed to warn |
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Strict Liability - Abnormally Dangerous Activities: Prima Facie Case
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(1) Foreseeable risk of serious harm even when reasonable care is exercised
(2) Activity is not a matter of common usage in community |
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Strict Liability - Extent of Liability
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(1) Resulting harm must be kind of danger anticipated from activity
(2) Actual/Proximate causation (3) Contributory negligence - defense only if p knew of danger and P's unreasonable conduct was cause of resulting harm |
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Product Liability - Theories
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(1) Intent
(2) Negligence (3) Strict Liability (4) Implied warranty of merchantability and fitness for particular purpose (5) Express warranty/misrepresentation |
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Product Liability - Defects
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(1) Manufacturing defects - dangerous beyond the expectation of the ordinary consumer
(2) Design defect - less dangerous modification was economically feasible |
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Product Liability - Negligence
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(1) Duty
(A) D must be commercial supplier (2) Breach (A) negligent conduct (design, manufacture, warning, inspection) (I) For retailer cursory inspection ok if reputable supplier (B) supplied defective product (3) Causation (A) Intermediary negligent failure to discover defect is no a supersceding cause (4) Damages (A) Economic loss only must be brought under breach of warranty |
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Product Liability - Strict Liability
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(1) D is a commercial supplier
(2) Production/sale of defective product (3) Actual and proximate cause (A) Defect must have existed when product left D's control (4) Damages |
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Product Liability - Implied Warranty of Merchantability and Fitness
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(1) Merchantability - Merchant sells goods that they are of a quality equal to that generally accepted among that type of good and generally fit for ordinary purpose
(2) Fitness for Purpose (A) Seller knows/reason to know that (B) particular purpose for which goods are required; AND (C) Buyer is relying on seller's skill/judgment to select suitable goods |
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Product Liability - Express Warranty
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(1) Express Warranty
(A) Seller makes affirmation of fact or promise to buyer re: goods that becomes basis of the bargain |
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Nuisance
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(1) Private Nuisance
(A) Substantial interference to average person in community (B) Unreasonable interference - severity of injury outweigh utility of D's conduct (2) Public Nuisance (A) Unreasonable interference with health, safty, property rights of the community (B) Recovery available only if private party suffered unique damage |
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Contributory Negligence
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(1) Knowing vs. unknowing Negligence
(A) Knowing - Negligence AND assumption of risk when (I) knew of risk and (II) voluntarily proceeded in face of it (2) Last clear chance - after P's negligence, D still had last clear chance to avoid accident (3) D's conduct was reckless (B) Unknowing - only negligence |
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Intentional Torts
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ABC-FITT
(1) Assault (2) Battery (3) Conversion (4) False Imprisonment (5) IIED (6) Trespass to Chattle (7) Trespass to Land |
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Definition of Intent
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Desire, purpose, or substantial certainty
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Conversion & Trespass Damages
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(1) Conversion - FMV of the chattle at time of conversion
(2) Trespass - cost of repair |
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Rescuers Conduct
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Must act reasonably under emergency conditions
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Wrongful Death Actions
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(1) Vicarious Liability (acting within scope)
(2) Negligent Hiring (does not require proof that employee acted within scope of employment) (3) Negligent Entrustment |
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Defective Products
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(1) Strict Liability
(A) Defective - Unreasonably dangerous to average consumer (B) Possible D: Commercial supplier of that product (C) Possible P: Buyer, users, forseeable bystanders, rescueer (D) Lease product if commercial supplier (E) Is misue if forseeable, than still liable (G) Defective when it left P's control (H) Contributory negligence no defense (I) Assumption of risk is a defense (J) must case physical damage, not only emotional |
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Nuisance
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(1) Private - major, substantial interference with use an enjoyment
(2) Interference must be unreasonable to reasonable person (3) Preexisting nuisance irrelevant |
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False Imprisonment Items
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Act can be directed at P's property if its effect is to restrain P from leaving; intending to hold luggage alone enough if substantially certain traveler will stay
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Intent for Torts
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Intent if substantial certainty that consequence will result
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Baliee & Misuse of Property
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Liable for conversion if bailee uses chattle in a manner as to constitue material breach of agreement
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Consent for Medical Treatment
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Complete absences of consent will be a battery
Nondisclosure of risks is a breach of duty of care |
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Loss of A Persons's Status License/Invitee Status
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P goes onto portion of property where invivation cannot reasonable be said to extend
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Assumption of Risk Availability
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Available in comparative AND contributory negligance
(1) Knew of Risk (2) voluntarily proceeded in face of hte risk Does not apply to common carriers and utilities and protected classes |
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Recovery of Emotional Distress
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Recoverable for NEGLIGENCE if has some physical injury as well
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Wrongful Pregnancy
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(1) D performed procedure
(2) D failed to tell P of its failure Child rearing expenses cannot be recovered |
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Comparative Neligance & Willful Conduct
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Willful conduct will not prevent P's negligence from being taken into account
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Empoyer's Duty to Employee
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Has affirmative duty to benefit employee when employee injured in course of employment
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Defamation Standard When Matter is of Public Concern
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(1) Public figure - malice
(2) Private figure - negligence STILL MUST PROVE FALSITY |
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Qualified Privilege
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Qualified privilege - statement in interest of publisher (defense of their actions), interest of recipient, common interest of both
Maybe lost if beyond scope or done with malice |
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Assault & Self Defense
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If defense is privileged, not assult
If party is going to use force that would inflict serious injury, 3rd party can use deadly force and not liable for assault |
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Rescuer's and Negligence
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D will be liable for injuries rom an attempted rescue as long rescue is not wanton
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Negligent IIED
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By standard can recover if (1) p closely related to person injured (2) P was present at scene (3) P perceived the event (inlcudes sound)
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Defamation - Actual Malice
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D subjectively entertained seroius dobts as to the truthfulness of hte publication
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Defense of Property
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When possession began lawfully, owner can only use peaceful means to recover; can only use force to recapture chattle when in hot pursuit
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