Torts

Front 1

Intent

Back 1

Where the defendant desires to cause the harmful result of his act or where there is a substantial certain the result will occur.

Front 2

Transferred Intent

Back 2

Where D intends to commit an intentional tort with respect to one individual, but harms another in the same or similar manner.

Front 3

Assault

Back 3

A voluntary intentional act which causes P to experience an reasonable apprehension of an immediate harmful or offensive contact (battery).

Front 4

Battery

Back 4

A voluntary intentional act which causes P a harmful or offensive contact.

Front 5

False Imprisonment

Back 5

False imprisonment occurs where the D intentionally confines (either physically or by overcoming P’s will) the P to a definable area from which there is no reasonable apparent means of escape.

Front 6

Intentional Infliction of Emotional Distress

Back 6

Infliction of emotional distress occurs where the D, via extreme and outrageous conduct, intentionally or recklessly causes the P to suffer sever emotional distress.

Third Persons: P may recover if P is present when D’s wrongful conduct occurs, D is aware of P’s presence, and P is closely related to the person attacked.

Front 7

Trespass to Land

Back 7

A trespass to land occurs when the D intentionally enters the land of another or causes a thing or object onto someone else’s property without permission.

If D enters negligently or recklessly, only liable for damage to land.

Front 8

Trespass to Chattel

Back 8

Trespass to chattel occurs when the D intentionally interferes with the P’s chattel and P suffers actual damages.

Front 9

Conversion

Back 9

Conversion occurs when the D intentionally causes the destruction or serious and substantial interference (dominion and control), with plaintiff’s chattel.

Remedies: Fair market value plus consequential damages or replevin.

Front 10

Defenses to Intentional Torts

Back 10

Consent, self defense, defense of others, defense of property, private necessity, public necessity and authority (shop keepers privilege).

Front 11

Consent

Back 11

Where the P expressly, implicity or as a matter of law effectively consented to the conduct in question, the defendant’s acts or normally privileged so long as D does not exceed the scope of the consent.

Consent is not effect if it is the product of mistake, fraud, duress, a criminal statute, incapacity, lack of informed consent.

Front 12

Self-Defense

Back 12

Where D reasonably believes that P is about to cause an imminent, unpriviledged, and offensive attack, he may use reasonable force to prevent such attack.

Reasonable apprehension ok. No general duty to retreat.

Front 13

Defense of Others

Back 13

Where the defendant reasonably believes that the P is about to harm another, the D is entitled to use reasonable force to prevent such harm

D liable if mistaken.

Front 14

Defense of Property

Back 14

A D may use reasonable force in defense of her property.

No lethal force in defense of property. D must first demand that P desist the conduct.

Avoiding injury to property: reasonable force.

Recovery of property: reasonable force, prompt recovery (hot pursuit), must demand return, no force if P acted under claim of right, liable if mistaken, may enter land to recover.

Front 15

Necessity

Back 15

Where one reasonably believes that his (or the publics) interests outweigh the loss or harm which will be incurred to another because of his conduct, his actions are privileged.

Private necessity: substantially greater harm, liable for actual damages
Public necessity: severe harm, no liability

Front 16

Authority

Back 16

Arrest: D/Police officer making arrest pursuant to a warrant, not liable.
No warrant: no liability if arresting to prevent felony in his presence.
After felony committed: police permitted all reasonable mistakes. Citizens only reasonable mistakes as to identity.
Breach of peace in presence: neither liable without a warrant, reasonable mistake permitted

Front 17

Shopkeepers Privilege

Back 17

Where a storekeeper has a reasonable suspicion that a customer has committed a theft, the former may restrain the latter with reasonable force for a reasonable amount of time and in a reasonable manner, on the premises or in the immediate vicinity.

Front 18

Negligence Standards of Care

Back 18

Adults: must ordinarily act with due care like a reasonable person under the circumstances.
Children: must ordinarily act with the due care of a child of like age, intelligence and experience. But adult activity = adult standard of care.
Particular Profession: are required to act with due care customarily exercised by members of that profession in that or similar communities.

Front 19

Negligence Elements

Back 19

To establish negligence, P must prove that D owed a legal duty of care to conform to a specific standard of conduct for the protection of P against unreasonable risk of injury, D breached that duty, D’s breach of duty was the actual and legal (proximate) cause of the injury to P, and that P suffered damages as a result of D’s conduct.

Front 20

Duty (Negligence)

Back 20

When a person engages in an activity, owes a legal duty to foreseeable P’s to act as an ordinary, prudent, reasonable person. P owes a duty to an unforeseen P if P was in a foreseeable zone of danger.

Front 21

Duty to Take Affirmative Action

Back 21

General rule: no duty to act in benefit of others.

Front 22

Duty to Take Affirmative Actions (Exceptions)

Back 22

1. If D's conduct is responsible for placing P in the postion, D has a duty to take action.
2. Once one who acts for the benefit of another, they are under a duty to act like an ordinary, prudent, reasonable person and continue assistance.
3. A D having a special relationship to P has a duty to act. (reasonable care)
- parent-child
- employer-employee
- Common Carriers
- places of pulbic accomodation
4. D has a duty to control a third party where there is a special relationship between them and P gets an economic benefit or occupies a postion of power over third party.

Front 23

Breach of Duty (Negligence)

Back 23

A defendant breaches the duty to P if he fails to conduct himself as a reasonable person would in the same circumstances.

(Hand): is the burden (cost) on D of taking precautions against the threatened riskwas outweighed by the likelihood that P would be injured by the activity.

Front 24

Res Ipsa Loquitor

Back 24

To establish the D failed to act with due care without direct evidence, the P can show that the accident was the type which ordinarily does not occur, except in the absence of due care, that D had a duty to protect the P from harm with respect to the instrumentality or activity in question, and that P was in no manner responsible for his injuries.

Front 25

Negligence Per Se

Back 25

A failure to act with due care can be established by showing the D unjustifiably violated a criminal statute when the injury caused by D's conduct is the type which the statute was intended to prevent, the P is a member of the class intended to be protected by the statute, and D's violation of the statute is not excused.

Front 26

Landowner's Duties (Negligence)

Back 26

Trespassers: D has no duty of care as to an unknown trespasser. If D becomes aware of a trespasser D has a duty to exercise reasonable care.

Licensees: (soical guest) A D has a duty to exercise reasonable care to protect licensees from injury in activities and artificial and natural conditions that D is aware of.

Invitees: (business purpose) A D has a duty of reasonable care to protect invitees from harm in activities and to discover dangerous artifical and natural conditions and to warn them of such conditions.

Front 27

Attractive Nuisance (Children Trespassers)

Back 27

D owes the same duty to a child as an adult where activities and natural conditions are involved.

A heightened stadard of care applies to artificial conditions where: the D knew or should have known of the risk, D knew or should have known that children are likely to trespass, the child trespasser is unaware of the risk, and the utility of maintaining the conditions is outweighed by the burden of protecting against the risk.

Front 28

Actual Cause (Negligence)

Back 28

The D's failure to act with due care must have been the cause-in-fact of P's injury.

D's condut was the cause-in-fact of an event that would not have occured but for the existence of the conduct.

Two or More D's:
Substantial Factor Test: A D's conduct is the cause-in-fact of P's injury if that conduct was a substantial factor in bringing about the injury.
Summers v. Tice Test: Where two or more D's have failed to exercise due care, but it is impossible for P to prove whose conduct actually caused his harm, each and every D is regarded as a cause-in-fact of the injury.

Front 29

Proximate Cause (Negligence)

Back 29

D's breach of duty must be the legal, or proximate, casue of P's injuries.

D's conduct is the proximate cause of P's harm if the type of harm and the manner in which the harm occured was reasonably foreseeable.

Front 30

Contributory Negligence

Back 30

Where the P's failure to act with due care is, to any degree, responsible for causing the accident, the D has a compelte defense.

Front 31

Last Clear Chance

Back 31

If the P was in helpless peril, and the D knew, or should have known of P's predicament, has the present ability to avoid the accident, and fails to avoid the accident, the P's contributory negligence is negated.

Front 32

Comparative Negligence

Back 32

Under pure comparative negligence principles, a P's recovery is reduced by a proportion equal to her falut in the action.

Under partial comparative negligence principles, damages are apportioned only if D's responsibilty exceeds P's (50%).

Front 33

Assumption of Risk

Back 33

Where the P appreciated the risk and then knowingly and voluntarily assumed the particular risk upon which his negligence action is premised, the D has a complete defense.

Front 34

Strict Liability

Back 34

D is liable whether he exercied due care or not.

D can be held strictly liable for personal injuries infliced by his anime if it has known dangerous propensities.

Wild animials: generally have known dangerous propensities.

Domestic Animals: D will be strictly liable for domestic animals that have known dangerous propensities.

Abnormally Dangerous Activities: An activity is abnormally dangerous if it creates a risk of serious injury, the risk cannot be elminated by the exercise of due care, and the activity is not usually conducted in that area.

Front 35

Defenses (Strict Liability)

Back 35

Contributory Negligence: generally no

Comparative Negligence: can reduce the recovery

Assumption of the Risk: complete bar

Front 36

Products Liability

Back 36

A commercial supplier who, in the regular course of business, provides a defective product is liable to a purchaser or user for personal injuries and property damage resulting from such defect.

Front 37

Manufacturing Flaws

Back 37

Manufacturing flaws: A product manufactured in a form other than the manufacturer intended contains a manufacturing flaw. (Defective product element)

Front 38

Design Defects

Back 38

A product manufactured as intended but that still presents a danger of injury or damage to P suffers from a design defect.

Consumer Expectation Test: A product is dangerously defective if a reasonably foreseeable purchaser would not have expected it to present a danger which resulted in his injury.

Danger-Utility Test: A product is defective if the cost of injury outweighs its utility to society.

Hindsight-Negligence: A product is defective if a reasonable person, knowing of the danger it presented, would not have placed it in the stream of commerce.

Front 39

Absence of Warning

Back 39

D's failure to warn P that a product presents a threat of peronal injury may be considered a dangerous defect.

Front 40

Causation (Products Liability)

Back 40

P must establish that a defect attributable to D (or to D's control) caused P's injury.

Front 41

Defenses (Products Liability)

Back 41

Contributory Negligence: misues or abnormal use bars recovery.

Comparative Negligence: in some states

Assumption of Risk: if P is warned and voluntarily continues use or alters the product.

Front 42

Product Liablity on a Negligence Theory

Back 42

Duty, Breach, Causation, Damages

Breach: D fails to inspect

Front 43

Express Warranty

Back 43

An express warranty exists where a commercial supplier makes a representation as to the nature or quality of the product

Front 44

Implied Warranty

Back 44

Implied warranty of fitness for a particular purpose.

Implied warranty of merchantability.

Front 45

Private Nuisance

Back 45

Private nuisance is a substantial and unreasonable interference with P's use and enjoyment of P's land.

Unreasonable interference: gravity of harm outweighs the utility of the conduct.

Front 46

Public Nuisance

Back 46

Public nusiance is an unreasonable interference with the health, safety, or property rights of the community at large.

Generally broght by a public official. Can be brought by a private citizen only if P can establish he suffered damages different from that suffered by the public.

Front 47

Defamation

Back 47

P must establish that D published defamatory material concerning P which caused damage to P's reputation.

Where defamation includes a public figure or a matter of public concern must also include falsity and fault (malice) on D's part.

Malice = knowledge that statement was false or reckless disregard as to its truth or falsity.

Front 48

Libel

Back 48

Written form of defamation or a defamatory message embodied in a relatively permanet form (sound recording, video recording, picture, etc...)

Goes to damgages part of defamation
General damages presumed.

Front 49

Slander

Back 49

Spoken defamation (not preserved is permanent form.
Goes to damgages part of defamation.

Spcecial damages required.

Front 50

Slander Per Se

Back 50

Slander per se is slander that is so harmful that it is presumed that P suffered damages from the very fact of its utterance.

Notrious Crime
Loathsome Disease
Business Trade, Profesison, or office
Unchastity

Front 51

Defenses to Defamation

Back 51

Consent
Truth
Absolute Privilege (Judicial proceedings, legislative proceedings, executive proceedings
Compelled Broadcast or Publication
Communications between spouses
Qualified Privilege: public interest, D's own or others interest.

Front 52

Invasion of Privacy

Back 52

Intrusion into seclusion: if D unreasonably intrudes into P's seclusion

Appropriation of Identity or Likeness: unauthorized use of P's identiy or likeness for D's commerical advantage.

Public Disclosure of Private Facts: D's unreasonable public disclosure of private facts about P.

Portrayal in a False Light: where D publishes matters which protray P in a flase light

Front 53

Defenses to Invation of Privacy

Back 53

Truth: not a defense to disclosure, complete defense to false light

Consent: defense to disclosure, false light, intrusion

Privilege: applicable to disclosure and false light

Front 54

Malicious Prosecution

Back 54

Is the institution of criminal proceedings by D, done for an improper purpose, and without probable cause, which terminate favorably to P and which cause P damages.

Front 55

Wrongful Institution of Civil Proceedings

Back 55

Same as malicious prosecution.

Front 56

Abuse of Process

Back 56

Where D intentionally misuses a judicial process for a purpose other than that for which the process is intended.

Front 57

Fraud

Back 57

A misrepresentation made with scienter (knowingly)and an intent to induce P's reliance on the misrepresentation, causation, justifiable reliance by P and damages.

Front 58

Interference with Contract or Prosepective Advantage

Back 58

Inducing Breach of Contract: D intentionally causes a third person to breach an existing contract with P.

Interference with Prospective Economic Advantage: same as contract except no existing contract necessary. Potential business relationship sufficent.

Front 59

Injurious Falsehood

Back 59

A false statement made to another by D which causes economic injury to P.

Front 60

Vicarious Liabliity

Back 60

An employer is liable for the negligent acts of his empolyees occuring within the scope of employment and in furtherance of the employers business.

Front 61

Independent Contractor

Back 61

General rule: employer not liable.

Exceptions:
1) nondelegable duty
2) inherently dangerous activity
3) D is owner/occupier and P is business invite.