Torts

Front 1

Three main elements of intentional torts

Back 1

1) Act by defendant

2) Intent

3) Causation

Front 2

Intentional torts- Act by defendant element rule

Back 2

the act requires a voluntary movement by a defendant

Front 3

Intent definition for intentional torts

Back 3

intent may be either specific or general (with substantial certainty that the consequences will result)

Front 4

Ways intent can be transferred (3)

Back 4

1) commits a different tort against that person

2) commits the same tort as intended but against a different person

3) commits a different tort against a different person

Front 5

Transferred intent is limited to the following intentional torts (5)

Back 5

1) battery

2) assault

3) false imprisonment

4) trespass to land

5) trespass to chattels

Front 6

Causation definition

Back 6

d's causes the result when his conduct was a substantial factor in bringing about the injury

Front 7

Battery elements (4)

Back 7

1) harmful or offensive conduct

2) to the plaintiff's person (anything connected to the plaintiff)

3) intent

4) causation

Front 8

Harmful contact defined

Back 8

contact is harmful it causes actual injury, pain, or disfigurement

Front 9

Offensive contact defined

Back 9

contact is offensive if it would considered offensive to a reasonable person

Front 10

Assault elements (4)

Back 10

1) act by D that creates a reasonable apprehension in plaintiff

2) of immediate harmful or offensive contact

3) intent

4) causation

Front 11

Effect of words on reasonable apprehension

Back 11

words alone are not enough. The words must be coupled with conduct

Front 12

False imprisonment elements (3)

Back 12

1) an act or omission by D that confines or restrains P to a bounded area

2) intent

3) causation

Front 13

Two common insufficient methods of confinement for false imprisonment

Back 13

1) moral pressure

2) future threats

Front 14

Time of confinement rule

Back 14

it is irrelevant how short the period of the confinement is

Front 15

Punitive damages in intentional torts

Back 15

can be recovered if D acted maliciously

Front 16

IIED elements (4)

Back 16

1) d's acts amounts to extreme and outrageous conduct

2) intent or recklessness

3) causation

4) damages- severe emotional distress

Front 17

extreme and all outrageous conduct defined

Back 17

conduct that transcends all bounds of decency

Front 18

conduct that is not normally outrageous may become so if...(3)

Back 18

1) it is continuous

2) directed at certain type of plaintiff (child, elderly, pregnant woman)

3) committed by a common carrier or inkeeper

Front 19

Causation in bystander cases for IIED

Back 19

1) p was present when the injury occurred

2) p is a close relative of the injured person

3) and D knew of 1 and 2

or just use regular IIED elements

Front 20

Trespass to land elements (3)

Back 20

1) physical invasion of plaintiff's real property

2) intent

3) causation

Front 21

Physical invasion for trespass

Back 21

can be by a person or object, but not an intangible matter such as vibrations or odor

Front 22

Intent for trespass

Back 22

D needs to only intend to enter onto that particular space, doesn't matter if he knows who owns it

Front 23

Trespass to chattels elements (4)

Back 23

1) act by D that interferes with P's right of possession

2) intent

3) causation

4) damages

Front 24

Two types of interference with trespass to chattels

Back 24

1) damaging the chattel

2) depriving the plaintiff of his lawful right of possession

Front 25

Intent requirement with trespass to chattels

Back 25

intent to trespass is not required. All that is required is that D intended to do the act. D's mistaken belief of ownership is not a defense

Front 26

Conversion elements (4)

Back 26

1) act by D that interferes with P's right of possession in the chattel

2) interference is so serious that it warrants requiring D pay full value of chattel

3) intent

4) causation

Front 27

Replevin

Back 27

P recovering possession of a chattel that he has rightful ownership (conversion cases)

Front 28

D is not liable of P gives express consent to D's conduct, unless ( 3 exceptions )

Back 28

1) mistake will undo express consent if D knew of and took advantage of the mistake

2) consent induced by fraud, if to an essential matter

3) consent obtained by duress

Front 29

Apparent consent (type of implied consent)

Back 29

consent in that which a reasonable person would infer from custom and usage or plaintiff's conduct

Front 30

Consent implied by law (type of implied consent)

Back 30

consent that arises when action is necessary to save a person's life or some other important interest in the person or property

Front 31

Three types of people incapable of giving consent

Back 31

1) drunk

2) very young children

3) incompetents

Front 32

Self defense in intentional tort cases rule

Back 32

when a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury

Front 33

Duty to retreat rule

Back 33

Majority rule is that there is no duty to retreat. Modern trend imposes that duty when using deadly force, except when D is in their home

Front 34

Self defense by initial aggressor rule

Back 34

defense is not available to this person, unless D uses non-deadly force, and P responded with deadly force

Front 35

Defense against property rule

Back 35

one may use reasonable force to prevent the commission of a tort against real or personal property

Front 36

Two primary requirements before you can use force to defend property

Back 36

1) request to desist or leave, unless it is futile or dangerous

2) must be before the the tort has been committed, or in hot pursuit of another

Front 37

Necessity defense

Back 37

person may interfere with real or personal property when it is reasonably and apparently necessary to avoid threatened injury

Front 38

Two types of necessity

Back 38

1) public- act for public good, complete defense

2) private- act is solely to benefit a limited number a people (still liable)

Front 39

Discipline defense

Back 39

Parent or teacher may use reasonable force in disciplining children

Front 40

Defamation elements (4)

Back 40

1) defamatory language

2) of or concerning the plaintiff

3) publication by the D to a third person and

4) damage to plaintiff's reputation

Front 41

Constitutional requirements for defamation

Back 41

If the defamation involves a matter of public concern, Constitution requires the plaintiff to also prove the falsity of the defamatory language and fault on part of D

Front 42

Defamatory language definition

Back 42

defined as language tending to adversely affect one's reputation

Front 43

Opinion as defamatory

Back 43

Opinion is defamatory only if it is based on specific facts that are defamatory

Front 44

Of or concerning the plaintiff requirement for defamation

Back 44

P must establish that a reasonable listener/reader would understand that the defamatory statement referred to P

Front 45

Small group defamation (of or concerning)

Back 45

if statement refers to all members, each person must just show that there are a group member

if statement refers to some members, must meet the reasonable person requirement of or concerning

Front 46

Large group defamation

Back 46

No defamation because you can't prove the of and concerning element

Front 47

publication of defamatory statement-definition

Back 47

publication means communication of the defamation to a third person who understands it

Front 48

publication of defamatory statement- intent requirement

Back 48

publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defame

Front 49

Secondary publishers and liability for defamation

Back 49

secondary publishers don't repeat the statement (ex. selling newspapers). They are only liable if they know or should have known of the defamatory content

Front 50

Libel

Back 50

written or printed publication of defamatory language

Front 51

Libel damages

Back 51

P does not need to prove special damages and general damages are presumed

Front 52

Slander

Back 52

slander is spoken defamation

Front 53

Slander damages

Back 53

P must prove special damages (pecuniary loss), unless it is slander per se

Front 54

Slander per se categories are defamatory statements that (4 options)

Back 54

1) adversely reflect on one's conduct in a business/profession

2) one has a loathsome disease

3) one is or was guilty of a crime involving moral turpitude or

4) a woman is unchaste

Front 55

Radio and television broadcasts are treated as (for defamation)

Back 55

Libel

Front 56

Matters of public concern defamation fault (public figure or public official)

Back 56

Public figure must prove actual malice by

1) knowledge that the statement was false or

2) reckless disregard as to whether it was false

Front 57

Public figure definition

Back 57

a person is a public figure by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a public controversy

Front 58

Matters of public definition fault- (private plaintiff)

Back 58

Private plaintiff must prove the defendant was negligent regarding the falsity of the statement

Front 59

Damages for private plaintiff in defamation

Back 59

If statement was of public concern and there was only negligence, then you only get actual damages. If there was malice, then there are presumed damages and punitive damages are allowed

Front 60

Defenses to defamation

Back 60

1) consent

2) truth of the statement

3) actual privilege (legislatures, judicial proceedings)

4) qualified privilege

Front 61

Appropriation of plaintiffs picture or name

Back 61

an unauthorized use of plaintiff's picture or name for defendant's commercial advantage

Front 62

Intrusion on plaintiff's affairs or seclusion

Back 62

prying or intruding into P's private matters that are highly offensive to a reasonable person

Front 63

False light

Back 63

where one attributes to plaintiff views he does not hold or actions he did not take. Must be highly offensive to a reasonable person

Front 64

First amendment limitation on false light

Back 64

if the matter is of public interest, actual malice on D's part must be proved

Front 65

Public disclosure of private facts

Back 65

public disclosure of private information that would be highly offensive to a reasonable person of ordinary sensibilities

Front 66

Proof of damages for invasion of privacy

Back 66

Don't need to show special damages. Emotional distress and mental anguish is sufficient

Front 67

Intentional misrepresentation elements (6)

Back 67

1) misrepresentation of material fact

2) scienter (knew or believed it was false)

3) intent to induce P's reliance on statement

4) causation (actual reliance)

5) justifiable reliance and

6) damages (actual pecuniary loss)

Front 68

Duty to disclose material facts (3)

Back 68

1) fiduciary relationship

2) Selling real property and P doesn't know of the fact, or can't reasonably discover it

3) has spoken and her utterance deceives the plaintiff

Front 69

Liability for intentional misrepresentation to third party

Back 69

if a third party relies on D's representation, D is liable if they could reasonably foresee that the third party would rely on it

Front 70

Reliance on an opinion

Back 70

Generally must be a fact, so no liability, Unless D has superior knowledge of the subject matter

Front 71

negligent misrepresentation elements (5)

Back 71

1) misrepresentation by D in a business or professional capacity

2) breach of duty

3) causation

4) justifiable reliance

5) damages

Front 72

Negligent misrepresentation is generally limited to what type of setting

Back 72

Commercial setting

Front 73

Interference with business relations elements (4)

Back 73

1) existence of a valid contractual relationship between P and 3rd party or valid business expectancy

2) D's knowledge of this relationship

3) intentional interference by inducing a breach of termination of the relationship

4) damages

Front 74

Defense to interference with business relations

Back 74

D's conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interest

Front 75

Negligence elements (4)

Back 75

1) duty

2) breach of duty

3) actual and proximate cause

4) damages

Front 76

To whom is a duty of care owed?

Back 76

To all foreseeable plaintiffs

Front 77

Who is a foreseeable plaintiff?

Back 77

If D's conduct creates an unreasonable risk of injury to persons in the position of P, there is a duty of care to them

Front 78

Majority rule on unforeseeable second plaintiff

Back 78

P2 can only recover if she can establish that they were located in the foreseeable zone of danger

Front 79

Minority view (andrews dissent) on forseeability

Back 79

Everyone is foreseeable

Front 80

When is a rescuer a foreseeable plaintiff?

Back 80

When D negligently put himself or third party in peril

Front 81

Firefighters rule

Back 81

Firefighters and police officers may be barred from negligence recoveries because of assumption of risk

Front 82

What damages may a parent recover for breach of duty to a viable fetus by a third party?

Back 82

1) medical expenses

2) pain and suffering from labor

CANT recover child rearing expenses

Front 83

Basic standard of care rule

Back 83

You must exercise the amount of care that would be taken by a reasonably prudent person under similar circumstances

Front 84

Standard of care- mental and physical characteristics rule

Back 84

1) mental deficiencies and inexperience are not taken into account

2) physical characteristics are taken into account

Front 85

Standard of care- professionals

Back 85

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

Front 86

Doctor's duty to disclose risks of treatment

Back 86

Doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person would have withheld consent on learning of this risk

Front 87

Standard of care- children

Back 87

children are held to the standard of a child of like age, education, intelligence, and experience

Front 88

Standard of care- children exception

Back 88

children engage in adult activities may be required to conform to an adult standard of care

Front 89

Age where child is deemed incapable of being negligent

Back 89

4

Front 90

Standard of care for common carriers and innkeepers

Back 90

Higher degree- liable for slight negligence if P is a passenger or guest

Front 91

Bailee's standard of care depends on what?

Back 91

Who benefits from the bailment

Front 92

Bailee's standard of care- for benefit of bailor

Back 92

Low standard of care

Front 93

Bailee's standard of care- for benefit of bailee

Back 93

Higher standard of care

Front 94

Bailee's standard of care- mutual benefit

Back 94

Ordinary negligence

Front 95

When looking at duties of landowner, make distinction between two types of dangers

Back 95

1) natural conditions (usually no duty except falling tree branches)

2) artificial conditions

Front 96

Duty owed to undiscovered trespasser

Back 96

No duty owed

Front 97

Duty owed to undiscovered or anticipated trespassers

Back 97

1) warn of or make safe concealed artificial conditions known to the landowner than can cause serious bodily injury

2) reasonable care in active operations

Front 98

Type of care owed when attractive nuisance doctrine applies

Back 98

Ordinary care

Front 99

Elements needed to apply attractive nuisance doctrine (4)

Back 99

1) dangerous condition that owner is or should be aware of

2) children frequent the vicinity of the condition

3) likely to cause injury

4) expense of remedying is slight compared with magnitude of the risk

Front 100

Duty owed to licensee's

Back 100

1) warn of and make safe dangerous conditions known to the owner and that licensee is unlikely to discover

2) reasonable care in active operations

Front 101

Duty owed to invitees

Back 101

1) warn and make safe dangerous conditions that licensee is unlikely to discover

2) make reasonable inspections to discover nonobvious dangers

3) reasonable care in active operations

Front 102

Duties of lessor of land

Back 102

Duty to maintain the premises in safe condition. Can be liable to tenant or to tenant's guests

Front 103

Safety statutes may replace common law duty of care if (3 things)

Back 103

1) clearly stated specific duty imposed by statute

2) P is within the protected class and

3) statute was designed to prevent the type of harm suffered

Front 104

Excuse for violation of safety statute

Back 104

If compliance would cause more danger than violation, no breach of duty

Front 105

To collect on negligent infliction of emotional distress, what are two requirements for P?

Back 105

1) Within the zone of danger (threat of physical impact)

2) Physical symptoms (emotional distress not enough)

Front 106

When do you have an affirmative duty to act?

Back 106

1) negligence put person in peril

2) special relationship (parent, innkeeper, common carriers)

3) D has ability and authority to control third person from acting

Front 107

Res Ipsa Loquitur elements (2)

Back 107

1) accident causing the injury is a type that would not normally occur unless someone was negligent

2) negligence is attributable to D (D was in control)

Front 108

Effect of meeting Rs Ipsa elements (2)

Back 108

1) prima facie case of negligence

2) no directed verdict may be given to D

Front 109

Can the trier of fact reject a prima facie case of res ipsa? Whats the result?

Back 109

YES! So do not give a directed verdict to either P or D

Front 110

Actual cause tests

Back 110

"But for"

Substantial Factor - joint causes bring about injury

Alternative causes - two acts, only one causes the injury; burden of proof shifts to Ds

Front 111

Proximate cause

Back 111

foreseeability test; D is liable for all harmful results that are the normal incidents of and within the risk caused by his acts

Front 112

Damages for personal injury and property damage

Back 112

Personal injury - can recover for past, present, and future economic damages and noneconomic damages such as pain and suffering

Property - measure of damage is the cost of repair, or if destroyed, fair market value

Front 113

collateral source rule

Back 113

damages are not reduced because plaintiff received benefits from other sources (like health insurance)

Front 114

Assumption of risk elements

Back 114

Plaintiff knew of the risk and voluntarily proceeded in the face of the risk

Front 115

Contributory negligence

Back 115

negligence on the part of the plaintiff that contributes to injuries

does not apply to wanton and willful misconduct or intentional tortious conduct

last clear chance doctrine permits plaintiff to recover despite her contributory negligence

Front 116

Comparative Negligence

Back 116

Plaintiff's contributory negligence is not a bar to recover but instead reduces damages accordingly

Partial comparative negligence - bars recover if negligence was more serious than defendant's negligence

Pure - allows recovery no matter how great plaintiff's negligence was

Front 117

Strict liability prima facie case

Back 117

1. nature of the D's activity imposes an absolute duty to make safe

2. the dangers aspect of the activity was the actual and proximate cause of P's injury

3. plaintiff suffered damage to person or property

Front 118

Abnormally dangers activity requirements

Back 118

1. activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors

2. the activity is not a matter of common usage in the community

Front 119

Common elements to impose products liability

Back 119

1. defect

2. existence of the defect when the product left defendant's control

Front 120

Types of products liability defects

Back 120

Manufacturing - product emerges from mfg different from and more dangerous than the products that were made properly

Design - all products of the line are the same but have dangerous propensities

Inadequate warnings - mfg fails to give adequate warning as to the risks involved with product that may not be apparent to users

Front 121

Proving products liability defect

Back 121

Mfg defect - product failed to perform as safely as an ordinary consumer would expect (anticipating reasonable misuse)

Design defect - D could have made product safer without serious impact on the product's price of utility ("feasible alternative")

Gov't Safety Standards - noncompliance establishes defect; compliance is evidence, but not conclusive, that product is not defective

Unavoidably safe products - no liability for dangerous products if danger is apparent and there is no safe way to make product (e.g., knives)

Front 122

Products liability based on negligence

Back 122

1. Duty (owed to all foreseeable plaintiffs)

2. breach of duty (negligent conduct leading to supplying the defective product)

3. actual and proximate cause

4. damage

Front 123

Strict tort liability products liability

Back 123

1. commercial supplier of a product

2. producing or selling a defective product

3. actual and proximate cause

4. damages

Front 124

Implied warranty of merchantability

Back 124

sale by merchant

goods must be of average acceptable quality and generally fit for the ordinary purpose for which the goods are used

Front 125

Implied warranty of fitness for particular purpose

Back 125

arises when seller knows or has reason to know the particular purpose for which goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods

Front 126

Express Warranty

Back 126

any affirmation of fact or promise concerning goods that becomes part fo the basis of the bargain

Front 127

Private nuisance elements

Back 127

substantial and unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession

Front 128

Substantial interference

Back 128

interference that is offensive, inconvenient, or annoying to the average person in the community

Front 129

Unreasonable interference

Back 129

severity of the inflicted injury must outweigh the utility of defendant's conduct

Front 130

Public Nuisance Elements

Back 130

an act that unreasonably interferes with the health, safety, or property rights of the community

Front 131

Recovery by private party for public nuisance

Back 131

private party must suffer unique damage not suffered by public at large

Front 132

Nuisance Abatement/Self-help

Back 132

Private nuisance - available after notice to D and his refusal to act; only necessary force allowed

Public - only public authority or private party who suffered unique damage can seek injunction or abatement

Front 133

Doctrine of respondeat superior

Back 133

master/employer is liable for tortious acts committed by servant/employee that occur within the scope of the employment relationship

Front 134

Liability for intentional supports under respondeat superior arises when:

Back 134

1. Force is authorized in the employment

2. friction is generated by the employment

3. employee is furthering the business of the employer

Front 135

Liability for independent contractors

Back 135

1. inherently dangerous activities

2. duty, because of public policy, is non-delegable

Front 136

Liability of partners or joint venturers

Back 136

Each member is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture

Front 137

Liability for automobile owner for driver

Back 137

No liability

ex - family car doctrine

ex - permissive use (driving with owner's consent)

ex - liability for own negligence under theory of negligent entrustment

Front 138

Joint and several liability

Back 138

Where or two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (liable to plaintiff for the entire damage occurred)

Front 139

Methods of apportionment for contribution

Back 139

1. comparative contribution = imposed in proportion to the relative fault of the various defendants

2. equal shares - minority; apportioned in equal shares regardless of fault

Front 140

Situations where indemnity is available

Back 140

1. contract

2. vicarious liability

3. strict products liability

4. identifiable difference in degree of fault

Front 141

Survival of Tort Actions

Back 141

Acts that allow one's cause of action to survive death

Recovery goes to estate

Front 142

Wrongful death

Back 142

Acts that grant recovery for pecuniary injury resulting to the spouse and the next of kin