Torts

Front 1

Intentional torts

Back 1

intent, volitional act, causation, injury

Front 2

Intent

Back 2

desire to bring about a certain result or knowledge to a substantial certainty it will occur.

Front 3

Transferred intent

Back 3

a defendant who intends to commit a particular tort against a particular plaintiff but instead commits a different tort or the tort is committed against a different plaintiff may be held liable for the tort committed against the plaintiff

Front 4

Battery

Back 4

the volitional intentional causing of a harmful or offensive touching with plaintiff’s person.

Front 5

Assault

Back 5

the intentional volitional causing of fear or apprehension of an imminent battery

Front 6

False Imprisonment

Back 6

the intentional volitional confinement of plaintiff in a bounded area for any appreciable time

Front 7

Trespass to Land

Back 7

the intentional physical invasion of real property in the possession of another

Front 8

Trespass to Chattels

Back 8

the intentional interference with the personal property of another

Front 9

Conversion

Back 9

An intentional major interference with a person’s ownership rights in chattel. Differs from trespass to chattels in that the interference substantially affects the value of the chattel such that the plaintiff is entitled to the full value of the chattel at the time of the conversion.

Front 10

Intentional Infliction of Emotional Distress

Back 10

intentional or reckless infliction of severe mental distress by extreme and outrageous conduct

Front 11

Consent

Back 11

occurs when the asserted victim gives permission, making what would otherwise be tortious privileged.

Front 12

Self-Defense

Back 12

one is privileged to use reasonable force in defense of an imminent unprivileged attack against his person.

Front 13

Defense of Third Persons

Back 13

one is privileged to use reasonable force in defense of a third person to prevent an imminent unprivileged attack.

Front 14

Defense of Property

Back 14

one is privileged to use reasonable force to prevent a tort directed at his property. However deadly force is never reasonable to protect only property and force that is directed at an innocent party is not privileged.

Front 15

Recapture of Chattels

Back 15

property owners have a limited privilege to retake stolen property and may use reasonable force to do so

Front 16

Discipline

Back 16

A parent or one standing in loco parentis is privileged to use reasonable force for discipline and control. This privilege extends to teachers but the use of excessive force is an assault (and perhaps a criminal act).

Front 17

Arrest

Back 17

Law enforcement officers acting within their territorial and subject matter jurisdiction may arrest a person if the officer has probable cause to believe the person has committed a crime. Citizens may make an arrest (or in some jurisdictions may detain the defendant) to prevent a felony or breach of the peace committed in the citizen’s presence. Some jurisdictions require a misdemeanor to be committed in the officer’s presence before he or she can make a warrantless arrest for the crime.

Front 18

Shopkeeper’s Privilege

Back 18

A storeowner who reasonably suspects a person of stealing goods may detain the person for a reasonable time in order to conduct an investigation.

Front 19

Private Necessity

Back 19

A privilege to act to prevent a threatened injury resulting from a cause not brought about by the person claiming the privilege.

Front 20

Public Necessity

Back 20

one is privileged, in acting in the interest of the public to commit a tort against a plaintiff or his property to prevent an imminent public disaster

Front 21

Negligence (general definition)

Back 21

The elements of negligence are: duty standard of care breach actual cause proximate cause and damages.

Front 22

General Duty of Care

Back 22

legal obligation to conform to a standard of care to protect others from harm

Front 23

Negligent infliction of emotional distress

Back 23

Requires negligent conduct and physical manifestations. For bystander recovery there must be a close relationship to the victim, present and aware, and suffer emotional distress.

Front 24

Common Carriers

Back 24

Held to a high standard of care to use the utmost care and diligence to protect customers from harm.

Front 25

Landowners to Trespassers

Back 25

Landowner and tenants not liable for injury to trespassers caused by the failure to the landowner or tenant to reasonably put land in a same condition. Some jurisdictions have abandoned rules related to the intruder’s status and choose to focus on the foreseeability of harm. Under the majority rule once the presence of the trespasser is discovered there is a duty to use reasonable care to avoid injuring him or her. The minority view is that the landowner is only responsible for willful and wanton conduct resulting in injury to the trespasser.

Front 26

Landowners to Trespassing Children

Back 26

Landowners liable to trespassing children if the occupier should anticipate children being at the place of danger the occupier knows or should know of the condition, the child does not or cannot appreciate the danger involved and the risk to the child is greater than the utility of the condition to the occupier.

Front 27

Landowners to Licensees

Back 27

A licensee comes onto the land with consent of the possessor but enters for the licensees benefit not the possessors. The possessor owes the licensee no duty to inspect and owes no affirmative duty to make the premises safe. The possessor must warn the licensee of known concealed dangers on the property.

Front 28

Landowners to Invitees

Back 28

An invitee enters with consent and is present for the benefit of the possessor. The possessor is under a duty to warn the invitee of known dangers and the possessor also must take reasonable care to discover and fix dangerous conditions on the property. There is thus an affirmative duty to make the premises safe. The obligation only extends to the area of invitation.

Front 29

Lessors

Back 29

Must warn lessees of dangerous conditions and lessors must use reasonable care to make common areas safe, and lessors are liable for negligent repairs to such areas. The person who occupies the premises is responsible to invitees licensees and trespassers even though they may only rent the home or apartment.

Front 30

Health Care Providers

Back 30

Must act with skill and learning of similarly situated providers in the community.

Front 31

Children

Back 31

Held to the standard of care of a child of that age and experience unless the child is engaged in an adult activity in which case the adult standard is used (i.e. operating a motor vehicle).

Front 32

Nonfeasance

Back 32

failure to act passive failure to take steps to protect others from injury.

Front 33

General Rule

Back 33

With some exceptions nonfeasance does not serve as a basis for liability

Front 34

Exceptions and Qualifications

Back 34

Where there is a special relationship between the parties (i.e. common carriers have to aid passengers in peril restaurant owners must protect patron in cases of fire jailer has duty to aid prisoner who is hurt, parent must protect child etc). While there is generally not a duty to rescues a deft that caused the peril has such a duty to try to aid the plaintiff. If one chooses to come to the aid of another the Good Samaritan cannot leave the victim in a worse position than he was found. Also there may be a statutory obligation to aid (i.e. police officers enforcing orders of protection in domestic violence situations).

Front 35

Breach of Duty

Back 35

failure to act to reasonable protect the plaintiff from foreseeable harm.

Front 36

Violation of Statute

Back 36

A statute may be interpreted as establishing the standard of care required for all reasonable persons. The plaintiff must be within the class sought to be protected by the statute and the harm must result from a violation of the statute and the violation of the statute must not be excused.

Front 37

Learned Hand Calculus

Back 37

B is less than LxP where B=burden on deft to avoid the risk of harm L= gravity of potential harm and P= probability of harm that could occur from defendant’s conduct.

Front 38

Res Ipsa Loquitur

Back 38

A doctrine of law which permits the finder of fact to find negligence on the part of the deft absent direct proof of such negligence. The plaintiff must show that the instrumentality causing the harm was under the control of the deft and the harm would not ordinarily occur without negligence and the harm was not caused by the plaintiff.

Front 39

Causation

Back 39

The plaintiff must show that the deft was the actual and proximate cause of the plaintiff's injuries.

Front 40

Actual Cause

Back 40

Has the deft’s act or omission caused injury to plaintiff?

Front 41

But For Test

Back 41

But for deft act or omission plaintiff would not have been injured. The harm actually resulted from the act or omission

Front 42

Substantial Factor Test

Back 42

where two or more causes have led to injury deft’s act will be considered the actual cause if the act was a material and substantial factor in bringing the event about. There may be joint and several liability for such “co-acting” defendants.

Front 43

Proximate Cause

Back 43

Deft is only liable for harms that were reasonable foreseeable.

Front 44

Unforeseeable Plaintiff Limitation (Palsgraf situation)

Back 44

Liability is limited to harms to person who under the circumstances could have been reasonably foreseen by the deft—those persons within the “zone of danger” created by the deft’s acts.

Front 45

Intervening Act

Back 45

A negligent deft is liable for any harm resulting from an unbroken sequence following the tortuous act absent an intervening act. An intervening act takes place after the deft’s negligence. Foreseeable intervening acts do not break the causation chain; unforeseeable acts break the chain because the initial negligence is no longer the proximate cause of the injury.

Front 46

Thin Skull Plaintiff Doctrine

Back 46

Deft takes the victim as he or she finds him that is Courts do not require that the type of injury suffered by the plaintiff be foreseeable.

Front 47

Contributory Negligence

Back 47

The negligence of the plaintiff no matter how slight bars recovery.

Front 48

Last Clear Chance

Back 48

Allows a plaintiff to recover despite contributory negligence if the plaintiff can show that the deft had the last clear chance to avoid injury to plaintiff.

Front 49

Pure Comparative Negligence

Back 49

Negligence on the part of the plaintiff not a bar to recovery but plaintiff’s recovery is reduced by his or her negligence. In “pure” comparative jurisdictions the plaintiff is not barred from recovery even if the plaintiff is largely at fault.

Front 50

Partial Comparative Negligence (Modified)

Back 50

If the plaintiff’s fault is more than that of the deft’s plaintiff is barred from recovery.

Front 51

Assumption of the Risk

Back 51

Plaintiff who knowingly puts him or herself in a position where he or she is likely to be injured has assumed the risk. Plaintiff can assume the risk expressly or impliedly.

Front 52

Strict Liability

Back 52

Liability is imposed without the requirement of showing an intent to interfere with the plaintiff or the breach of a duty owed. Plaintiff need only establish that injury was proximately caused by one of the activities listed below.

Front 53

Possession of Animals

Back 53

Strict liability is imposed on owners of wild animals or vicious domestic animals which the owner knows are vicious.

Front 54

Abnormally Dangerous Activities

Back 54

Activities involving a high degree of risk of serious injuries to persons or property (i.e. use of dynamite rocket testing maintaining nuclear reactors and crop dusting)

Front 55

Products liability

Back 55

The liability of a seller of a tangible item, which because of a defect causes injury to its purchaser, user, or sometimes bystanders.

Front 56

Strict Liability in Tort

Back 56

Those in the chain of production of defective products which are unreasonably dangerous are liable to the consumer for damages caused by the product. The elements of a strict liability claim are: proper plaintiff proper defendant defect actual cause proximate cause and damages.

Front 57

Proper Plaintiff

Back 57

Does not have to be in privity with the manufacturer as the seller or manufacturer has the duty to inspect and warn potential plaintiffs.

Front 58

Proper Defendant

Back 58

Those in the chain of production i.e. the manufacturer designer wholesaler and retailer.

Front 59

Types of Defects

Back 59

design failure to warn manufacturing inadequate testing inadequate inspection breach of warranty defective products.

Front 60

Manner of Proof

Back 60

Plaintiff must show that the product was the cause of the injury that is was defective and that the defect was present when it left the deft’s control.

Front 61

Products liability: Negligence theory

Back 61

Elements: duty, standard of care (manufacture, design, failure to warn), causation (actual and proximate), damages (personal injury, property damage, no pure economic harm), defenses (contributory, comparative, assumption of risk)

Front 62

Products liability: Breach of warranty theory

Back 62

Elements: express warranty, implied warranty (fitness for a particular purpose, implied warranty of merchantability), privity, causation (actual and proximate), damages (personal injury, property damage, pure economic harm), defenses (comparative negligence, assumption of risk, disclaimer of liability; no contributory negligence)

Front 63

Breach of Warranty

Back 63

UCC 2-318 give the benefit of express and implied warranties to the buyer and family and household members of the buyer (some jurisdictions extend the protection to all persons).

Front 64

Express

Back 64

Seller makes a material representation as to a product’s safety durability or performance.

Front 65

Implied

Back 65

UCC 2-314 provides that a seller impliedly warrants that the product sold it fit for the ordinary purpose for which it is made.

Front 66

Defamation

Back 66

Includes the torts of slander and libel.

Front 67

Defamatory Statement

Back 67

A statement which causes the plaintiff to be ridiculed or scorned. The statement must concern the plaintiff.

Front 68

Defamation Common law

Back 68

Defamatory statement of fact concerning plaintiff published to 3rd party, damaging to plaintiff.

Front 69

Defamation Constitutional law

Back 69

P = public/private figure
Subject matter = public/private matter
Was standard violated?
Pub. figure v media/non media D=NYT malice
Pub. figure v. non media D pub. concern=malice/presumed
Priv. figure v non media d pub. concern-negligence/actual
Priv. figure v non media d priv. concern=negligence/presumed

Front 70

Defamation privileges/defenses

Back 70

Truth, retraction, consent
Spousal/Legislative/Judicial/Executive communications

Front 71

Publication

Back 71

The statement must be hard by someone other than the plaintiff.

Front 72

Libel

Back 72

Defamation resulting from the written or printed word. Considered more serious than slander because libel is more permanent.

Front 73

Slander

Back 73

Defamation in spoken form not permanently preserved.

Front 74

NY Times v. Sullivan

Back 74

Public official cannot recover for defamation unless he or she can show the statement was made with actual malice that is with knowledge that is was false (or with reckless disregard for whether it was false).

Front 75

Gertz v. Welch

Back 75

Private persons engaged in public controversies need not prove actual malice before recovering for defamation.

Front 76

Intrusion into Seclusion

Back 76

Intentional intrusion upon the solitude or seclusion of another or his or her private affairs or concerns. This is the intrusion into the victim’s “zone of privacy”.

Front 77

Appropriation

Back 77

Appropriating for one’s own use or benefiting from the name or likeness of another i.e. the unauthorized endorsement of a product.

Front 78

Public Disclosure

Back 78

Publication of private facts that are highly offensive to a reasonable person and are not of legitimate public interest.

Front 79

False Light

Back 79

Publication of false facts that a reasonable person would object to. The publication must be to a substantial number of people.

Front 80

Interference with Contract

Back 80

Intentionally inducing a third party to break a contract with the plaintiff.

Front 81

Interference with Prospective Advantage

Back 81

There must be a valid contract between the plaintiff and a third party; the deft must know of the contract or economic expectancy; the deft intended to interfere with the contract or expectancy; deft actually interfered; and plaintiff was injured.

Front 82

Deceit

Back 82

There must be a material misrepresentation; the deft knew the statement was false; the deft intended to induce reliance on the statement; the plaintiff justifiably relied on the misrepresentation; and plaintiff was damaged as a result.

Front 83

Negligent Misrepresentation

Back 83

Defendant who in the course of his or her trade or profession negligently provides information to the plaintiff who relies on the information and suffers a detriment as a result. The person providing the information must know that the information will be used for a business purpose and that the person relying on the statement will be injured if the statement is false.

Front 84

Public Nuisance

Back 84

An unreasonable interference with a right common to the general public i.e. a substantial interference with the public health peace or safety.

Front 85

Private Nuisance

Back 85

Unreasonable interference with the use or enjoyment of the owner or possessor’s property interest.

Front 86

Compensatory Damages

Back 86

Damages awarded as compensation indemnity, or restitution for harm suffered by the plaintiff. Can include both pecuniary and non-pecuniary losses.

Front 87

Compensatory Damages

Back 87

Personal injury - general and special
Property - where defendant destroys, damages, or takes

Front 88

Punitive Damages

Back 88

Awarded when a tort is committed with malice. Designed to punish and deter egregious conduct.

Front 89

Vicarious Liability

Back 89

A deft may be jointly liable for the actions of another i.e. under the doctrine of respondeat superior. An employer for example is responsible for the torts of an employee committed within the scope of employment.

Front 90

Joint and Several LiabilityIndemnity and contribution

Back 90

Joint tortfeasors are jointly and severally liable for the plaintiff’s total damages. Each of the tortfeasors is liable for the entire damage award.

Front 91

Indemnity and contribution

Back 91

indemnity allows defendant to collect all or part of amount paid to plaintiff from 3rd party.
Contribution allows other tortfeasors to contribute (modern principle. traditionally, contribution not allowed)

Front 92

Damages awarded for specific torts (assault, battery, false imprisonment, mental distress)

Back 92

Nominal
Compensatory
Punitive (if defendant acts with malice)

Front 93

Damages awarded for specific torts (trespass to real property)

Back 93

Ouster = rental value, benefit to defendant
Severance injury = diminution in value, cost of repair

Front 94

Damages awarded for specific torts (nuisance)

Back 94

Public: OK if special type of injury
Private: permanent nuisance - diminution in value, loss of use or enjoyment

Front 95

Damages awarded for specific torts (trespass to chattel)

Back 95

Depends on nature and extent of damages (diminution in value or cost of repair)

Front 96

Damages awarded for specific torts (conversion)

Back 96

fair market value

Front 97

Proximate cause test

Back 97

defendant will be held liable for all harm that is foreseeably caused by defendant's conduct, but must be within the scope of harm that was created by defendant's conduct.

Front 98

Products liability: Strict liability in tort theory

Back 98

Elements: proper parties (proper plaintiff: buyer, user, etc.; proper defendant: seller, manufacturer, retailer), defect (risk/utility test, consumer expectation test), causation (actual and proximate), damages (personal injury, property damage, NO pure economic harm), defenses (product state of the art, unavoidably unsafe, product misuse, comparative fault, assumption of risk).