Torts

Front 1

Hyper sensitive plaintiffs?

Back 1

In deciding if a plaintiff has satisfied an element, P's hyper sensitivity is ignored. Always assume P is a normal / reasonable person of standard sensibility.

Front 2

Intentional torts committed by infants, others without "capacity"?

Back 2

Every D is liable for their intentional torts, regardless of incapacity. There are no incapacity defenses.

Front 3

Battery

Back 3

1. harmful or offensive contact committed by Defendant

2. upon the Plaintiff's person

Front 4

Battery elements explanation?

Back 4

1. Harmful/offensive contact?
offensive = unpermitted; if a person of ordinary sensitivity would not permit the contact, then it is offensive

2. Plaintiffs "person"
anything the person is holding, touching or connected with.

Front 5

Assault

Back 5

1. D places the P in apprehension

2. of and immediate battery

Front 6

Assault elements explanation?

Back 6

1. Apprehension means the victim has knowledge they are about to have a battery committed against them.

2. Immediate: words alone lack immediacy; words can also negate immediacy (If you weren't a woman I'd hit you while shaking your fist.)

Front 7

False Imprisonment

Back 7

1. Defendant engages in an act of restraint

2. that results in P being confined to a bounded area

Front 8

False Imprisonment elements explanation?

Back 8

1. Act of restraint -
a) P must know of the confinement or be harmed by it
b)threats or omissions can be acts of restraint

2. bounded area: an area is not bounded if there is a reasonable means of escape that P can reasonably discover

Front 9

Intentional Infliction of Emotional Distress

Back 9

1. Outrageous Conduct by Defendant

2. P, as a result, suffers severe emotional distress

Front 10

Intentional Infliction of Emotional Distress elements explanation?

Back 10

1. Outrageous Conduct
a) intentional or reckless conduct that exceeds all bounds of decency tolerated in a civilized society
b) mere insults are insufficient

2. Severe emotional distress: just needs to be severe in the estimation of the jury - de minimus requirement

Front 11

Signals of outrageous conduct?
(Intentional Infliction of Emotional Distress)

Back 11

1. conduct in question is continuous / repetitive

2. Common Carriers and innkeepers are held to standard of courteousness to customers so their conduct will more easily be found outrageous

3. P belongs to a fragile class:
a) young children
b) the elderly
c) pregnant women

4. it is outrageous to target someone's known emotional vulnerability

Front 12

Trespass to Land

Back 12

1. Defendant commits an act of physical invasion.

2. to land

Front 13

Trespass to land explanation of elements?

Back 13

1. trespass:
a) does not require knowledge you crossed a boundary line, just a volitional act.
b) must be a tangible act (crossing onto the land or throwing something onto it - light and sound don't count)

2. land includes the air above and soil below out to a reasonable distance (where you could use)

Front 14

Trespass to Chattels and Conversion

Back 14

Intentional interference with a Chattel

Small Harm = Trespass to Chattels

Big Harm = Conversion. Conversion Plaintiffs get the full market value of the item (you break it you bought it)

Front 15

Trespass to Chattels explanation?

Back 15

Chattel - an item of personal property (not land or real estate, includes money)

Front 16

Affirmative defenses to intentional torts?

Back 16

1. Consent (Aff. Defense to all 7)

2. Protective Privileges (Self Defense, Defense of Others, and Defense of Property)

3. Defense of Necessity (only to the 3 property torts)

Front 17

Affirmative defense of consent?

Back 17

1. Only a defendant with legal capacity can consent to have a tort committed on them.
2. If D exceeds the scope of consent they will be liable for the tort.

2. Types of consent:
a) Express Consent
b) Implied Consent
c) D's reasonable interpretation of P's objective conduct.

Front 18

Express Consent?

Back 18

literal words spoken or written by the Plaintiff given the D permission to behave in the challenged way

Exception: Fraud or duress negates express consent.

Front 19

Implied Consent?

Back 19

Consent by custom and usage - the decision to go to a place implies the person consents to what happens there. (when you go to play football you consent to being tackled)

Front 20

The Protective Privileges?

Back 20

Self Defense
Defense of Others and
Defense of Property

1. Timing - only can use privilege in responding to conduct that is in progress or is imminent.

2. Accuracy - must have a reasonable belief the threat is genuine.

3. Amount: proportional force - can't go beyond what's necessary

Front 21

Mistake in asserting the protective privilege?

Back 21

A reasonable mistake will not defeat the availability of these defenses.

Front 22

Defense of Necessity

Back 22

Only applies to the three property torts (trespas to land, trespass to chattels, conversion)

1. Public Necessity - D interferes w/ P's property in an emergency situation to protect the community as a whole or a significant group of people.

2. Private Necessity - a circumstance where D invades P's property in an emergency to protect an interest of his own. This is a limited or qualified defense.
a) D must pay for harm done
b) D not liable for nominal or punitive damages
c) D is privileged to stay on P's land until in a position of safety

Front 23

Defamation

Back 23

(Tort of injury to reputation.)

1. D makes a defamatory statement that specifically identifies Plaintiff (P must be alive at time statement is made)

2. D must negligently or intentionally publish the statement

Types of defamation: Libel and Slander

Front 24

What is a defamatory statement?

Back 24

A statement that would harm the reputation of the plaintiff.

dafamatory = an allegation of fact pertaining to the plaintiff that reflect negatively on a trait of character (such as honesty, loyalty, sexual morality).

Front 25

What does it mean to 'publish' a defamatory statement?

Back 25

D must reveal or share the statement with at least one person other than plaintiff.

Front 26

Libel

Back 26

Defamation that is recorded, written down, or embodied in a permanent format.

No need to show damage in a libel case.

Front 27

Slander

Back 27

Spoken defamation (spoken in any setting).

Must show damages unless its slander per se.

Slander per se (don't have to show damages)
1. D makes a spoken statement of alleged fact concerning the P's business or profession
2. D makes a spoken statement that P committed a crime or moral turpitude
3. A spoken statement imputing unchastidy to a woman.
4. Statement that P is suffering from a loathsome disease.


To show damages must show economic loss.

Front 28

Affirmative defenses to defamation?

Back 28

1. consent

2. truth

3. absolute privilege (spouses, government officer engaged in duties of office)

4. Qualified privilage - arises where speech is socially useful (where there is a public interest in encouraging candor) such as former employers giving recommendations
a) must be speaking in good faith
b) must be a reasonable basis in the statement being made
c) needs to be relevant

Front 29

Constitutional overlay w/ defamation?

Back 29

Free speech issues...
Is what D published of public concern? If yes, then must use Constitutional analysis.

If public concern, P must prove:
1. Falsity (shifts truth from affirmative defense to an element)
2. Fault: P show D did not have a reasonable basis or a good faith belief in accuracy.
a) Public Figure - P must show D was deliberate or reckless
b) Private figure - fault can be shown by D's negligence and P must prove pecuniary damages

Front 30

Appropriation

Back 30

Unauthorized use of P's name or likeness for a commercial purpose.

Front 31

Intrusion

Back 31

Invasion by D of P's seclusion.

1. P must be in a place where there is a reasonable expectation of privacy.
2. Physical trespass not required.
3. Must be objectionable to a reasonable person.

Front 32

False Light

Back 32

Widespread dissemination by D of a material falsehood about P that would be objectionable to a reasonable person.

May recover for social and emotional harm caused.

Not an intentional tort - will be liable even if D has a good faith belief the information is accurate.

Front 33

Disclosure

Back 33

Widespread dissemination of confidential information about the P that would be objectionable to the average person.
1. underlying information is truthful
2. information is truly private

Exception: newsworthy information (avoiding 1st amendment violation)

Front 34

Privacy Tort Defenses

Back 34

1. Consent
2. Absolute Privileges
2. Qualified Privilege

Front 35

Other torts:

Fraud

Inducing breach of contract

abuse of process

malicious prosecution

Back 35

fraud: deliberately lying to get an advantage

rest are what they sound like

Front 36

Elements of a Negligence Action?

Back 36

Duty
Breach
Causation

then must show Damage

Front 37

To whom to we owe a duty of care?

Back 37

1. Foreseeable Victims (No duty owed to unforeseeable victims) - those in the zone of danger

2. Exception: Rescuers are not barred by the fact that they were outside of the zone of danger at the beginning of the fact pattern.

Front 38

How much care do we owe?

Back 38

Reasonably prudent person acting under similar circumstances.

This is an objective standard of care - do not make allowances for the individual attributes or characteristics of D.
Exceptions:
1. Superior Knowledge: standard becomes a reasonably prudent person with the superior knowledge
2. Physical Characteristics - a reasonably prudent person always has the same physical attributes as the D in the case (blind, crippled, etc.)

Front 39

Standard for Professionals

Back 39

Professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities.

Front 40

Standard for Professionals - Medical (Malpractice)

Back 40

A doctor has a duty to disclose the risks of treatment to enable a patient to make informed consent.

Primary Care physicians are judged by others in similar geographic communities.

Specialists are held to a community wide standard (national; cardiologists held to standard of cardiologists)

Front 41

Standard of care for children.

Back 41

Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test.

A child under 4 is usually w/out the capacity to be negligent.

Children engaged in adult activities may be required to conform to an adult standard of care.

Front 42

Standard of care for innkeepers and common carriers.

Back 42

Held to a very high degree of care - they are liable for slight negligence.

*Plaintiff must be a passenger or guest.

Front 43

Standard of care for automobile driver to guest

Back 43

duty of ordinary care

Front 44

Duties owed by a bailor?

Back 44

Gratuitous bailment: bailor must inform of known, dangerous defects in the chattel.

Bailment for hire: bailor must inform of chattel defects of which he is or should be aware.

Front 45

Duties owed by bailee?

Back 45

1. Bailment for sole benefit of the bailor: bailee owes a low standard of care

2. Bailment for the sole benefit of the bailee: Bailee owes a high standard of care

3. Bailment for the mutual benefit of bailor and bailee: Bailee has ordinary standard of care.

Front 46

Duty of care in emergency situations?

Back 46

A D must act as a reasonable person would under the same emergency conditions.

Exception: the emergency is not to be considered if it of the defendant's own making.

Front 47

How to determine the duty of care owed by owners and occupiers of land?

Back 47

Depends upon:
1. where the injury occurred and
2. the status of the plaintiff

Front 48

Duty of possessor of land to non-entrants (people walking by on the street)?

Back 48

Generally, a non-entrant is owed only the normal standard of care.

1. There is no duty to protect those off premises from natural conditions.
2. There is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.

*In urban areas, the owner/occupier is liable for damage cauesd off the premises by trees on the premises.

Front 49

Duty of possessor of land to undiscovered trespassers?

Back 49

No duty of care.

Front 50

Duty to anticipated or discovered trespassers?

Back 50

all trespassers the possessor knew of or should have known of. Duty to protect from:

1. Highly dangerous (capable of killing or maiming)

2. Artificial conditions (zero duty to protect from natural conditions on land)

3. that are hidden (no duty to protect from open and obvious conditions)

4. and the possessor knew about the condition in advance

Only need to protect trespassers from the known, man-made, death-traps on land.

Front 51

Duty of possessor of land to licensees?
(Definition of licensee?)

Back 51

Licensees: those who enter with permission but with no purpose of conferring commercial / business benefit on the possessor (social guest).

1. must protect a licensee from any condition that is concealed to the licensee and
2. the condition is known in advance by the possessor of land

*You must protect licensees from all known traps on land.

Front 52

Duty of possessor of land to invitees?
(Definition of invitee?)

Back 52

Invitee - person entering to confirm a business benefit or the land is open generally to the public.

Owe a duty if:
1. the condition is concealed from invitee
2. the possessor either knew or could have discovered the condition through reasonable inspection

*Possessor of land must protect invitees from all reasonably knowable traps on the land.

Front 53

Duty owed to emergency responders on land?

Back 53

Firefighters, police officers will never recover for injuries that are an inherent risk of their job.

Front 54

Duty owed to child trespassers?

Back 54

(Attractive nuisance doctrine) Possessor must exercise reasonable prudence to protect child trespassers from artificial conditions on the land:

1. a property owner who notices a feature of the land that will act as a kid-magnet should be spurred to a higher degree of caution

2. a reasonable person's actions will be bound to the likelihood a child would be on the land

3. whether children can reasonably take action to protect themselves is also a factor

Front 55

How can a possessor of land satisfy their duty / avoid liability?

Back 55

1. give a warning or
2. repair the condition

Front 56

When will a statutory standard of care replace the common law duty of care?

Back 56

Where:
1. criminal statute
2. clearly defines the applicable standard of care and
3. plaintiff can show he is a member of the class of person the statute seeks to protect and
4. the accident is in the class of risks the statute seeks to prevent

EXCEPTIONS:
a) where compliance would be more dangerous than violating the statute (P then held to default standard of care)
b) compliance is impossible (default standard of care applied)

Front 57

When is there an affirmative duty to act?

Back 57

Generally, there is ABSOLUTELY no duty to act.

Having decided to rescue, the gratuitous rescuer can be liable if they don't rescue like a reasonably prudent person.

Exceptions:
1. A preexisting relationship between the person in trouble and the potential rescuer. (inkeepers, common carriers, brother-sister, land possessor and invitee)
2. D is the cause of the peril
*A person w/ a duty to rescue only has a duty to act reasonably under the circumstances.

Front 58

Negligent infliction of emotional distress?

Back 58

NEAR MISS: P will recover if
1. they were in a zone of physical danger produced by the D's negligence.
2. subsequent physical manifestations of the distress are required.

BYSTANDER: Negligent defendant injured someone. The distressed person witnessed the injury as it happened and is a close relative of the victim.

Front 59

Breach

Back 59

Plaintiff identifies the specific unreasonable conduct the defendant did AND gives a reason why it was unreasonable. (FACT + ELEMENT)

or

res ipsa loquitor

Front 60

res ipsa loquitor?

Back 60

Where plaintiff lacks information about what the defendant did wrong:

1. the accident that occurred does not normally occur in the absence of negligence

and

2. the accident is normally due to the negligence of someone in defendant's position (show D had control over the dangerous thing)

Front 61

Causation?

Back 61

Need
1. factual causation and then
2. proximate causation

Front 62

Factual Causation?

Back 62

Links the breach to injury

D's breach is a BUT FOR cause of the injury.

Front 63

Factual causation with multiple defendants?

Back 63

Substantial Factor Test: used when there is a merged cause.
If each breach was theoretically capable of causing the damage by itself, then the two defendants will be jointly liable with each other.

In an unascertainable cause case, the burden shifts to the defendants. If they can't then joint and several liability.

Front 64

Proximate Cause?

Back 64

Proximate cause requires that liability is fair.

If the result of the breach is an unforeseeable outcome, we let the defendant avoid liability. This comes LAST in negligence analysis.

Front 65

Proximate Cause in indirect cause cases?

Back 65

Well settled quartet:

1. Intervening Medical Malpractice: medical malpractice is a foreseeable result of negligence.

2. Intervening Negligent Rescue: negligent rescue is foreseeable result of negligence

3. Intervening Protection or Reaction Forces: crowd freak outs are a foreseeable consequence of negligence.

4. Subsequent Disease or Accident: for example, patient falls while using his crutches in his house after car accident = foreseeable

Front 66

Eggshell Plaintiff Principal

Back 66

Once Plaintiff has established all the elements of a cause of action, the plaintiff recovers for all the damages suffered, even if they are surprisingly great in scope.

You take your plaintiff as you find your plaintiff.

Front 67

Defenses to negligence?

Back 67

1. Contributory Negligence
2. Comparative Negligence

Front 68

Contributory Negligence Doctrine?

Back 68

Does not exist in most states anymore...

Front 69

Comparative Negligence Doctrine?

Back 69

Defendant will show that plaintiff failed to exercise proper care for his own safety.

Care for one's own safety is normally reasonable prudence, but it can be statutory (like don't jaywalk).

a) pure comparative negligence - will always recover something; an 80% at fault plaintiff will still receive 20% damages

b) Modified or Partial Comparative Negligence - when the plaintiff is more than 50% at fault, plaintiff recovers $0

Front 70

Strict Liability

Back 70

Domestic Animals
Wild Animals
Abnormally Dangerous Activities
Product Injuries

Front 71

Domestic Animal Cases

Back 71

1. There is no strict liability imposed on those who keep domestic animals (pets, farm animals).

2. However, if you have knowledge of your domestic animals vicious propensities then you are strictly liable (does not apply to trespassers).

3. Deadly dog kept on uninhabited property is an intentional tort - liable for battery (like using a deadly trap).

Front 72

Wild Animal Cases

Back 72

Those who keep wild animals are strictly liable. Safety precautions are legally irrelevant.

Front 73

Abnormally dangerous activities.

Back 73

Those who engage in them are strictly liable.

An abnormally dangerous activity is one that:
1. creates a foreseeable risk of severe harm, even when reasonable care is being exercised
2. the activity is not a matter of common usage in the community where the defendant conducts it

(safety precautions pretty much irrelevant)

Front 74

Product Injuries

Back 74

To establish a strict liability products claim:
1. D was a merchant.
2. The product must be defective.
3. Plaintiff must show product hasn't been altered since it left merchant's hands.
4. D must have been using for a foreseeable use.

Front 75

Strict Liability Products Claims:
Explanation of "merchant" element?

Back 75

A merchant is someone who routinely deals in goods of that type. Only a merchant can be strictly liable.

Casual Sellers (Garage Sale) = NOT merchant

Service Providers - not a merchant for goods they make collaterally available (seats in a movie theater)

Commercial Lessors - merchants (who rent instead of sell)

Every party in the distribution chain is a merchant and has strict liability. There is no requirement of privity of contract.

Front 76

Strict Liability Products Claims:
Explanation of "defective" element?

Back 76

The product came off the assembly line in a way that makes it more dangerous then consumers would expect.

Safety precautions are irrelevant (strict liability).

Design defects - a product has a design defect if there is another way it could have been built and the hypothetical alternative design:
1. must be safer than the version actually put on the market
2. must be economical
3. must be practical

Front 77

Design defects and product information:
warnings and instructions

Back 77

If a product can't be physically redesigned, but still has residual safety risks that would not be obvious to consumers, then the warnings and information are necessary.

Adequate warning required to avoid strict liability.

If a product can be redesigned you can't escape strict liability with adequate warnings and instructions.

Front 78

Strict Liability Products Claims:
Explanation of "hasn't been altered" element?

Back 78

If product mored in ordinary channels of distribution then there is an assumption of no alteration. (Defendant bears burden)

Front 79

Strict Liability Products Claims:
Explanation of "foreseeable use" element?

Back 79

Plaintiff must have been using the product for a foreseeable use. Misuse doesn't defeat recovery if it was foreseeable.

Front 80

Defenses to Strict Liability Torts

Back 80

Comparitive Responsibility and Comparitive Fault (Jury assigns %s and P's recovery is reduced)

Front 81

Nuisance

Back 81

A nuisance is a type of harm not a type of tort.

Occurs when a person's ability to use and enjoy their land is interfered with to an unreasonable degree.

Can be caused by negligence, intentional infliction or no fault.

Front 82

Nuisance remedy?

Back 82

Court will balance the equities / interests.

Front 83

Vicarious Liability: Employer - Employee

Back 83

Employer is vicariously liable if tort was committed w/in the scope of employment.

Normally no vicarious liability for intentional torts.
EXCEPTION: If job requires authorized use of force (bouncer, security guard); anytime employee is acting overzealously to serve employer's interest

Front 84

Vicarious Liability: Independent Contract - Hiring Party?

Back 84

No vicarious liability.

Exception: a land possessor is vicaroiusly liable fo rharm to an invitee as a result of an independent contractor.

Front 85

Vicarious Liability: Automobile owner - Authorized Driver

Back 85

Generally, no vicarious liability.

EXCEPTION: if driver is doing an errand for owner

Front 86

Vicarious Liability: Parent - Child

Back 86

Never vicarious liability.

Front 87

Co-Defendants and comparitive contribution?

Back 87

Co-defendants can collect from each other based on % of fault of each???

EXCEPTIONS:
1. Indemnification = where you get all your money back.
2. Vicariously liable party gets all $ back / is indemnified by the actual tortfeasor.
3. Any merchant who is not a manufacturer and is held strictly liable under a products claim is indemnified by manufacturer.

Front 88

Loss of Consortium Claims

Back 88

1. Loss of Services (having to hire a housekeeper, etc.)
2. Loss of Society (no one to talk to)
3. Loss of Sex