Torts

Front 1

Elements of Intentional Torts

Back 1

1. Volitional act by defendant
2. Intent: specific or general
3. Causation: d's act was a susbstantial factor in bringing about injury

Front 2

Transferred Intent

Back 2

Intends to injure one but
1. commits a different tort against that person
2. commits the tort against another person
3. different tort against different person
Only applies to
1. Assault
2. Battery
3. False Imprisonment
4. Trespass to land
5. Trespass to chattels

Front 3

Battery

Back 3

1. Harmful or offensive contact (reasonable person standard) (direct or indirect contact sufficient)
2. to plaintiff's person (includes anything connected)
3. intent
4. causation
(consent to contact is implied for ordinary everyday contacts)

Front 4

Assault

Back 4

1. D's act that creates a reasonable apprehension in p (not necessarily fear or intimidation, consider whether apparent ability to commit battery)
2. of immediate harmful or offensive contact to p's person
3. intent
4. causation
Words alone are insufficient to be assault, but they can negate reasonable apprehension
Battery must be imminent

Front 5

False Imprisonment

Back 5

1. d's act or ommission that confines or restrains p (physical barriers, physical force, threats of force, failure to release, and invalid use of legal authority, not moral pressure and future threats)
2. to a bounded area (freedom of movement limited in all direction, no reasonable means of escape known to p)
3. intent
4. causation
P must know of confinement or be harmed by it

Front 6

Intentional Infliction of Emotional Distress

Back 6

1. d's act amounting to extreme and outrageous conduct: transcends all boundaries of decency, can become so if
a. continuous
b. directed to a certain type of p if sensitivites are known to d
c. certain type of d (common carriers, innkeepers)
2. intent or recklessness
3. causation
4. damages: severe emotional distress

Front 7

Zone of Danger

Back 7

When d intentionally causes physical harm to a 3rd person, p may recover showing emotional distress or
1. present when injury occurred
2. close relative of injured
3. and d knew facts 1 & 2

Front 8

Trespass to Property

Back 8

1. physical invasion of p's real property (may be by person or object) (nuisance if odor, etc.)
2. intent (to enter that land, intent to trespass not necessary)
3. causation

Front 9

Trespass to Chattels

Back 9

1. d's act that interferes w/ p's right of possession
2. chattel
3. causation
4. damages (to chattel or possessory right)

Front 10

Conversion

Back 10

1. d's act that interferes w/ p's right of possession
2. interference is so seroius that it warrants requiring d to pay chattel's full value
3. intent (mistake of ownership is no defense)
4. causation
Remedies: replevin (possession) or fair market value at time of conversion

Front 11

Defenses to Intentional Torts

Back 11

1. Consent
2. Defense to self, other, property
3. Privilege of Arrest
4. Necessity
5. Discipline

Front 12

Consent

Back 12

1. was consent valid: no if fraud, incapable, etc.
2. did d stay w/in boundary of consent? (gun in boxing match)

Front 13

Express Consent

Back 13

EXCEPTIONS
1. mistake will undo express consent if de knew of and took advantage of mistake
2. induced by fraud if it goes to essential matter
3. duress unless the duress is only threats of future action or future economic harm

Front 14

Implied Consent

Back 14

Reasonable person would infer from custom and usage or p's conduct.
Consent implied in law: action is necessary to save p's life or some other important interest in person or property

Front 15

Defense to self, others, property: questions to ask

Back 15

1. is the privilege available? (tort must be about to happen, already commited torts do not qualify)
2. Is a mistake permissible as to whethr the tort bring defended against is actually being committed?
3. Was a proper amount of force used?

Front 16

Self Defense

Back 16

Reasonably necessary force to protect against injury. Duty to retreat befure using deadly force if can do so safely. No such duty in your home. Defense extend to 3rd party injuries unless injury to 3rd is deliberate.
Reasonable mistake as to existence of danger is allowed.

Front 17

Defense to Others

Back 17

Can defend 3rd person when that person would have right to self defense.
Reasonable mistake is permitted.

Front 18

Defense of Property

Back 18

1. Must first request to desist or leave unless it would be clearly futile
2. May use reasonable force to prevent commission of tort
3. Cannot use force after tort is committed
4. Tort still in commission if in hot pursuit of another who has tortiously dispossessed the owenr of her chattels.
Reasonable mistake as to whether intrusion occurred, but not as to whether entrant has a privilege unless entrant misleads property owner.
Reasonable force but not deadly force.

Front 19

Recapture of Chattels

Back 19

Can recapute by force if in hot pursuit
1. Must make timely demand to return
2. May recover from tortfeasor, but not from innocent party
3. If chattle is on wrongdoer's or innocent party's land, owner has privilege to enter and recover in a reasonable time and manner after making a demand (liable for damage to land)
4. If chattel is on another's land through owner's fault, no privilege to enter, must use legal means to recover
5. Mistake is not allowed, but shopkeepers may detain for a reasonable period those who they reasonably believe shoplifted
6. Reasonable force, not deadly force

Front 20

3rd person arrest

Back 20

1. privilege to arrest carries privilege to enter another's land to effect the arrest
2. arestor is still liable for misconduct
3. Misdemeanor: only privilege for breach of peace that occurs in front of the arrestor
4. Felony: police may make a reasonable mistake. Citizens may make reasonable mistake regarding felony's identity, but not commission of felony

Front 21

Necessity

Back 21

May interfere w/ real or personal property of another to avoid threatened injury that is substantially more serious than the invasion undertaken.
Private necessity: pay for damage cause
Public: no obligation to pay

Front 22

Defamation Elements

Back 22

1. Defamatory language
2. Of or concerning the plaintiff (reasonable audience would understand the language is about plaintiff)
3. Publication thereof by d to a 3rd party
4. damage to p's reputation
If defamation involves a materr of public concern, p must prove
1. falsity of language; and
2. d's fault

Front 23

Defamatory Language

Back 23

1. Must appear to be based on specific facts.
2. Can be language that induces another to establish defamatory meaning by innuendo
3. Defamation of a deceased person is not actionable

Front 24

Group Defamation

Back 24

1. Small Group: if refers to all members, any member has claim; if to some, p must prove he is among those
2. Large group: no action

Front 25

Publication (Defamation)

Back 25

Communication of the defamation to someone other than p. Publication can be intentional or negligent. Intent to defame no necessary. Each repetition is a separate publication.
Author/speaker and primary publishers are liable.
Secondary publisher only liable if he knows/should know of the defamatory content.

Front 26

Libel

Back 26

Written or printed publication of defamatory language. P need not prove special damages. General damages are presumed.
Where the original defamation is libel, any repretition (even oral) is also libel. Written repetition of slander is also libel.
Radio and tv programs are liabels.

Front 27

Slander

Back 27

Spoken defamation. P must prove special damages UNLESS defamation falls w/in slander per se:
1. adversely relfect on one's conduct in a business profession
2. one has a loathsome disease
3. one is guilty of a crime involving moral turpitude; or
4. a woman is unchaste

Front 28

Matter of Public Concer: prove fault

Back 28

1. Public official: malice (knowledge that statement was falso or reckless diregard whether it was false) required.
2. Private Person/Public concern: only negligence regarding falsity need be proven.
3. If negligent, actual injury damages recoverable. If malice, damages presumed and punitives allowed

Front 29

Defenses to Defamation

Back 29

1. Consent
2. Truth
3. Absolute Privilege: remarks made during judicial proceedings, by legislators in debate, by federal executive officials, in compelled broadcasts, and between spouses
4. Qualified Privilege (can be lost through abuse): reports of official proceedings, defense to one's actions, property, or reputation, statements in the interest of the recipient, statements in the common interest of the publisher and recipient

Front 30

Defamation Mitigating Factors

Back 30

No malice, retraction, anger of the speaker provoked by plaintiff--considered regarding damages, not defenses to liability

Front 31

Invasion of Right to Privacy: Appropriation of P's Picture or Name

Back 31

1. Unauthorized use for
2. D's commercial advantage

Front 32

Invasion of Right to Privacy: Intrusion upon P's Affairs or Seclusion

Back 32

1. act of prying or intruding must be objectionable to a reaosnable person
2. Thing into which there is an intrusion must be private
Photos taken in public places not actionable

Front 33

Invasion of Right to Privacy: Publication of Facts Placing P in False Light

Back 33

1. one attributes to p view he does not hold or actions he did not take
2. must be actionable to a reasonable person
3. must be publicity
4. prove malice if the matter is in public interest

Front 34

Invasion of Right to Privacy: Public disclosure of Private Facts about P

Back 34

1. disclosure must be objectionable to a reasonable person
2. liability may attach even though the statement is true
3. first amendment applies if legitimate state interest

Front 35

Invasion of Right to Privacy general elements

Back 35

1. invasion
2. causation
3. proof of special damages unnecessary. emotional distress is sufficient
4. defenses: consent and privilege
5. personal right, does not extend to family and does not survive death, does not apply to corporations

Front 36

Intentional Misrepresentation (fraud, deceit)

Back 36

1. misrepresentation of a material fact. Silent insufficient (no duty to disclose, opinion not actionable unless by someone w/ superior skill in an area)
2. scienter: when d made statement, she knew or believed it was false or that there was no basis for statement
3. Intent to induce p to act or refrain from acting in reliance upon the misrepresentation
4. causation (actual reliance)
5. justifiable reliance
6. damages (suffer actual pecuniary loss)
7. No defenses

Front 37

Negligent Misrepresentation

Back 37

1. misrepresentation by d in a business or professional capacity
2. breach of duty toward p
3. causation
4. justifiable reliance
5. damages

Front 38

Wrongful Institution of Legal Proceedings

Back 38

1. Malicious prosecution
a. institution of criminal proceedings against p
b. termination in p's favor
c. absence of probable cause for proceedings
d. improper purpose; and
e. damages (prosecutors immune from liability)
2. Abuse of Process
a. wrongful use of process for alterior purpose
b. definite act or threat against p in order to accomplish ulterior purpose

Front 39

Interference w/ Business Relations

Back 39

1. existence of a valid contractual relationship between p and 3rd party or valid business expectancy of p
2. d's knowledge of the relatinoship or expectancy
3. intentional interference by d inducing a breach or termination of the relationship or expectancy
4. damages
D's conduct privileged where it is a proper attempt to obtain business for itself or protect its interests

Front 40

Negligence

Back 40

1. Duty on d to conform to a specific standard of care
2. breach of duty
3. breach is actual/proximate cause of p's injury
4. damage

Front 41

Duty of Care

Back 41

1. Only owed to forseeable plaintiffs
Majority: zone of danger required for 3rd party
Minority: all 3rd parties are foreseeable
2. Rescuers are foreseeable plaintiffs
3. Owed to viable fetus for additional medical expenses and pain & suffering from labor
4. intended beneficiaries of economic transactions
4.

Front 42

Standards of Care: basic standard

Back 42

Objective standard: d's mental deficiencies and inexperience not taken into account.
Physical characteristcs considered

Front 43

Standards of Care: Professionals

Back 43

Required to possess knowledge and skill of a member of the profession or occupation in good standing in similar communities.
Specialists held to a national standard.
Doctor has duty to disclose risks of treatment and enable patient to make informed decision

Front 44

Standards of Care: children

Back 44

A child of like age, education, intelligence, and experience.
Subjective test
Child under four lacks capacity to be negligent
Children engaged in adult activities may be required to conform to adult standard of care

Front 45

Standards of Care: common carriers

Back 45

Liable for slight negligence if p is a passenger or guest

Front 46

Standards of Care: automobile driver to guest

Back 46

Ordinary care unless state has a guest statute, then liable to nonpaying passengers only for reckless tortious conduct.

Front 47

Standards of Care: Bailment duties

Back 47

1. Owed by Bailor: for gratuitous bailment, bailor must inform of known, dangerous defects in the chattel. If bailment for hire, bailor must inform of chattel defects of which he is or should be aware
2. Owed by Bailee: for a sole benefit of the bailor bailment there is a low standard of care; for a sole benefit of the bailee bailment there is a high standrd of care; for mutual benefit, tehre is an orindary standard of care

Front 48

Standards of Care: emergency situations

Back 48

Act as reasonable person would under the same emergency conditions. Emergency not considered if it is d's own making.

Front 49

Standards of Care: duty of possessor to those off premises

Back 49

No duty to protect one off premises from natural conditions on the premises
There is a duty for unreasonably dangerous artifical conditions or structures abutting adjacent land.
One must carry on activities on property so as to avoid unreasonable risk of harm to others outside the property.

Front 50

Standards of Care: duty of possessor to trespassers

Back 50

1. No duty to undiscovered trespasser
2. Discovered/Anticipated Trespassers: warn of or make safe concealed unsafe artificial conditions known to the landowner involving risk of death or serious bodily harm; use reasonable care in the exercise of active operation on the property. Easement and license holders owe a duty of reasonable care to trespassers.
3. Infant trespassers (attractive nuisance): duty to exercise ordinary care for harm caused by artifical conditions. Consider
1. owner was/should be aware of risk
2. owner knows/should know children frequest vicinity
3. condition is likely to cause injury
4. expense of remedying is slight compared w/ risk

Front 51

Standards of Care: duty of possessor to licensees

Back 51

Licensee enters the land w/ posessor's permission for her own purpose or business, rather than possessor's benefit. Duty to
1. warn of known dangerous conditions
2. exercise reasonable care in active operations on property
3. no duty to inspect/repair

Front 52

Standards of Care: duty of possessor to invitees

Back 52

Connected w/ business of landowner.
1. Same duty to licensee; and 2. duty to make reasonable inspections to discover nonobvious dangerous conditions and thereafter make them safe
3. lose invitee status by exceeding scope of the invitation

Front 53

Standards of Care: duty of possessor to users of recreational land

Back 53

If allow users to use w/out charging a fee, then not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity

Front 54

Standards of Care: duty of lessor and lessee of realty

Back 54

Lessee: general duty to maintain the premises
Lessor: must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.
If lessor covenants to repair, he is liable for unreasonably dangerous conditions.
If lessor volunteers to repair and does so negligently, he is liable.

Front 55

Standards of Care: duties of vendor of realty

Back 55

Must disclose to vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.

Front 56

Standards of Care: Negligent inflication of emotional distress

Back 56

Duty to avoid. Breached when d
1. creates a foreseeable risk of physical injury to p
2. phsycial injury required to recover UNLESS
a. erroneous report of a relative's death; or
b. mishandling of a relative's corpse

Front 57

Statutory Standards of Care

Back 57

May replace common law duty if statute
1. provides for a criminal penalty
2. clearly identifies the standard of conduct
3. plaintiff is w/in the protected class
4. was designed to prevent the type of harm suffered by the plaintiff

Front 58

Zone of Danger Requirement

Back 58

If p's distress is caused by threat of physical impact, most courts require that the threat be direct at p or someone in her immediate presence. Foreseeable factors:
1. p and injured person are closely related
2. p was present at the scene
3. p observed or perceived the injury

Front 59

Affirmative Duties to Act

Back 59

1. Assumption of Duty by acting
2. Peril Due to D's Conduct
3. Special Relationship between Parties
4. Duty to Control 3rd Persons

Front 60

Breach of Duty Theories

Back 60

1. Custom or Usage
2. Violation of Statute
3. Res Ipsa Loquitur

Front 61

Causation

Back 61

Must show actual cause and proximate cause

Front 62

Causation in Fact (actual cause) Tests

Back 62

1. "But for" test:
2. Substantial Factor test: both parties cause harm
3. Alternative Causes Approach: one of two parties caused harm

Front 63

Proximate Cause (legal cause)

Back 63

1. Foreseeability Test: is the harm the normal result of and w/in the increased risk caused by the act.

Front 64

Liability in Indirect Cause Cases

Back 64

Intervening force & d's act causes injury. D is liable where his neligence cause a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm P.
1. subsequent medical malpractice
2. negligence of rescuers
3. defense of self or property
4. 3rd party reacts to d's actions
5. subsequent diseases caused by a weakened condition
6. subsequent accident substantially caused by the oiriginal injury
7. negligent acts of 3rd persons
8. crimes and intentional torts of 3rd persons
9. acts of God

Front 65

Nominal Damages

Back 65

Not available

Front 66

Personal Injury Damages

Back 66

Compensation for past, present, and prosective harm, both special and general.

Front 67

Property Damages

Back 67

Reasonable cost of repair, or the fair market value at the time of the accident

Front 68

Punitive Damages

Back 68

If conduct is "wonton & willful," reckless or malicious.

Front 69

Nonrecoverable Items

Back 69

Interest from the date of damage in a personal injury action; attorney's fees

Front 70

Duty to Mitigate

Back 70

Duty to take reasonable steps to mitigate damages

Front 71

Collateral Source Rule

Back 71

Damages are not reduced just because P received benefits from other sources; e.g. health insurance

Front 72

Defenses to Negligence

Back 72

1. Contributory Negligence
2. Assumption of Risk
3. Comparative Negligence

Front 73

Contributory Negligence

Back 73

P's negligence that contributes to injuries.
1. Not a defense to intentional torts
2. Last clear chance exception: person w/ last clear chance to avoid accident is liable.
3. Contributory negligence of 3rd party is imputed to P if master-servant, partner, joint venturer relationships.

Front 74

Comparative Negligence

Back 74

Pure comparative negligence: P recovers no matter how great of P's negligence
Partial Comparative Negligence: only recover is D is as or more negligent that P.
Due no apply last clear chance rule
Generally does not apply to intentional torts

Front 75

Strict Liability

Back 75

1. existence of absolute duty for D to make safe
2. breach of duty
3. Actual and Proximate Cause
4. Damages

Front 76

Liability for Animals

Back 76

1. Owner is strictly liable for reasonably foreseeable property damages done by his trespassing animals
2. Strict liability for wild animals to licensees and invitees
3. No strict liability for domestic animals UNLESS he has knowledge of that particular animal's dangerous propensities that are not common to the species.
4. Strict liability not available to trespassers

Front 77

Ultrahazardous or Abnormally Dangerous Conditions

Back 77

1. the activity must involve risk of serious harm to persons or property
2. the activity must be one that cannot be performed w/out risk of serious harm no matter how much care is taken;
3. the activity is not commonly engaged in the particular community

Front 78

Defenses to Strict Liability

Back 78

1. Contributory negligence ONLY if P knew of the danger and his unreasonable conduct was the very cause of the ultrahazardous activity miscarrying
2. Comparative negligence

Front 79

Products Liability: Theories of Liability

Back 79

1. Intent
2. Negligence
3. Strict Liability
4. Implied Warranties
5. Representation theories (express warranty and misrepresentation)

Front 80

Elements of Products Liability

Back 80

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

Front 81

Types of Defects for Products Liability

Back 81

1. Manufacturing Defects: failed to perform safely as an ordinary consumer would expect
2. Design Defects: D could have made product safer w/out serious impact on product's price or utility
3. Inadequate Warnings: noncompliance w/ govt safety standards, etc.
4. NOT LIABLE for dangers no foreseeable at the time of marketing
5. Unavoidably unsafe products

Front 82

Private Nuisance

Back 82

Substantial (offensive, inconvenient, or annoying to the average person in the community), unreasonable (severity of inflicted injury must outweigh the utility of D's conduct) interference w/ another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

Front 83

Public Nuisance

Back 83

An act that unreasonably interferes w/ the health, safety, or property rights of the community.
Private party recovery only available only if the party suffered unique damage not suffered by the public at large

Front 84

Defenses to Nuisance

Back 84

1. Legislative Authority
2. Conduct of Others
3. Contributory negligence: no defense unless P's case rests on a negligence theory
4. Coming to the Nuisance a defense only if P came to the nuisance to bring a harrassing lawsuit.

Front 85

Remedies for Nuisance

Back 85

1. Damages
2. Injunctive Relief
3. Abatement by Self-Help: in private nuisance only necessary force may be used; in public nuisance only law enforcement or unique damage sufferer may seek injunction or abatement.

Front 86

Vicarious Liability

Back 86

Liability that is derivatively imposed.
1. Respondeat Superior
2. Independent Contractors
3. Partners and Joint Venturers
4. Automobile Owner/Driver
5. Bailor/Bailee
6. Parent for Child
7. Tavernkeepers

Front 87

Respondeat Superior

Back 87

1. Master liable for servant if in the scope of employment (minor deviation still qualifies).
2. Intentional torts not w/in scope unless
a. force is authorized in employment,
b. friction is generated by employment
c. employee is furthering the business of employer
3. Negligently selecting or supervising employees (master's own liability, not vicarious liability)

Front 88

Various Liability: independent contractors

Back 88

A principal will not be vicariously liable for tortious acts of an independent contractor UNLESS
1. independent contractor is engaged in inherently dangerous activies
2. duty is nondelegable

Front 89

Various Liability: partners and joint venturers

Back 89

Vicariously liable of another member committed in the scope and course of the affairs of the partnership or join venture

Front 90

Various Liability: automobile owner for driver

Back 90

No vicarious liability unless driver is
1. owner's agent
2. immediate family or household member
3. some states: permissive use
4. negligent entrustment (owner's negligence, not vicarious liability)

Front 91

Various Liability: bailor for bailee

Back 91

No vicarious liability
1. Possibly negligent

Front 92

Various Liability: parent for child

Back 92

No vicarious liability UNLESS
1. State statutes may impose it for willful and intentional torts.
2. child is acting as agent for parents
3. parent may be liable for own negligence in allowing child to do something

Front 93

Various Liability: tavernkeepers

Back 93

Common Law: no vicarious liability for vendee's intoxication
Dramshop Acts: impose vicarious liability

Front 94

Joint and Several Liability

Back 94

Two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable. If injury is divisible, each defendant is liable only for the identifiable portion.
1. If defendants act in concert, each is jointly and severally liable even if injury is divisible.
2. states may have done away and created proportional liability

Front 95

Satisfaction and Release

Back 95

Satisfaction: recovery of full payment. Only one satisfaction allowed. Until satisfaction, may proceed against all jointly liable parties.
Release: at commonlaw, release of one joint tortfeasor was release of all, most states have changed that.

Front 96

Contribution

Back 96

1. Both defendants have a measurable degree of culpability for the tort.
2. Doctrine apportions responsibility among those at fault.
3. Not applicable to intentional torts
4. Comparative Contribution: contribution is imposed in proportion to relative fault
5. Equal Shares: apportionment in equal shares regardless of degree of fault

Front 97

Indemnity

Back 97

1. Usually applies when one party is much more responsible than the other. Available by
1. Contract
2. In vicarious liability situations
3. Under strict products liability
4. identifiable difference in degree of fault, in some jurisdictions

Front 98

Survival of Tort Actions

Back 98

Survival Acts allow a cause of action to survive the death of a party/parties.
However, defamation, invasion of privacy, and malicious prosecution expire upon victim's death.

Front 99

Wrongful Death

Back 99

Pecuniary interest for spouse and next of kin. Creditors have no claim against award.

Front 100

Tortious Interference w/ Family Relationships

Back 100

1. Husband/Wife
2. Parent for Child

Front 101

Tort Immunities: Intra-Family

Back 101

1. Intra-family Immunity: at commonlaw, complete immunity. Now states abolish it for husband-wife immunity, some abolished parent-child immunity. Never applies for intentional torts or automobile accidents to the extent of insurance coverage.

Front 102

Tort Immunities: Fed Govt Immunity

Back 102

1. Fed Govt waived immunity for torts unless discretionary rights
a. assault
b. battery
c. false imprisonment
d. false arrest
e. malicious prosecution
f. abuse of process
g. libel and slander
h. misrepresentation and deceit
i. interference w/ contract rights

Front 103

Tort Immunities: Public Officials

Back 103

immune when carrying out official duties for discretionary acts done w/out malie or improper purpose