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41 Cards in this Set
- Front
- Back
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Elements of Battery |
Harmful or offensive contact (objective) To person of another (or anything connected) Causation (direct or indirect) D's intent (transferred intent applies) |
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Elements of Assault |
Conduct or other circumstances (more than words) P must have reasonable apprehension and awareness of D's act Imminent threat of harm Intent (includes transferred intent) |
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Elements of IIED |
Intent (not transferred) or recklessness Extreme and outrageous conduct by D Third party liability (distresses member of victim's immediate family - with or without resulting bodily injury - or other bystander resulting in bodily injury) Causation (substantial factor test) Damages - severe emotional distress |
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False Imprisonment |
Confinement: Intent to confine or restrain another victim aware of or harmed by confinement methods of confinement: physical barriers, force, threats, invalid use of authority, duress, failure to provide means of escape time - immaterial except as to damages intent - purposeful act or knowing confinement is substantially certain to result damages - actual damages necessary only if P was unaware of confinement Shopkeeper's privilege - reasonable detention of suspected shoplifter |
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Defenses to Intentional Torts Involving Personal Injury |
Consent Self-Defense: Reasonable v. Deadly Force Defense of Others Defense of Property: No deadly force Parental Discipline Privilege of Arrest: Private v. Police |
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Trespass to Chattels (tangible personal property) |
Intentional interference with P's right of possession by either: (1.) dispossessing, or; (2.) using or intermeddling with P's chattel Only intent to do the act is necessary (transferred intent applies) Mistake about legality is not a defense Damages (actual and loss of use; no loss of use damages without dispossession) Remedy (compensation for diminished value or cost of repair) |
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Conversion |
Intentional Act (must only intend to commit the act that interferes; mistake no defense) Interference with P's right of possession (exercising dominion or control) So serious that is deprives P of the use of the chattel (duration/extent, intent to assert a right, D's good faith, extent of harm, and P's inconvenience) Damages (full value of property or replevin) |
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Trespass to Land |
Intent (to enter land or cause physical invasion, not to trespass; transferred intent applies) Physical Invasion of property Proper plaintiff (anyone in actual or constructive possession of the land) Necessity as a defense: Private - responsible for actual damages Public - not liable for damages if actions reasonable or reasonable belief that necessity existed |
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Private Nuisance |
Proper plaintiff - anyone with possessory rights in real property Interference must be intentional, negligent, reckless, or result of abnormally dangerous conduct Substantial offensive to average reasonable person in community (objective) Unreasonable injury caused outweighs usefulness of the action Defenses Regulatory Compliance - not determinative Coming to the nuisance - not determinative reasonable force permitted to abate - must give D notice of nuisance and D refuses to act |
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Public Nuisance |
unreasonable interference with a right common to the general public proper plaintiff - private citizen suffering different harm from general public absent unique injury - may be abated only by public authority |
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Negligence |
Duty Breach Causation Damages |
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Affirmative Duty to Act |
assumption of duty placing another in peril by contract by authority by relationship (employer-employee, parent-child, common carrier-passenger) |
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Standard of Care |
Reasonably prudent person - objective standard |
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negligence per se |
criminal or regulatory statute imposes a specific duty for protection of others D neglects to perform duty D liable to anyone in class of people intended to be protected by statute For harms of the type the statute was intended to protect against which were proximately caused by D's violation Defenses: compliance impossible or more dangerous than noncompliance violation reasonable under the circumstances statutory vagueness or amiguity |
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duty |
generally no duty to act MAJORITY RULE: D liable to Ps within zone of foreseeable harm MINORITY: if D can foresee harm to anyone resulting from his negligence, D owes duty to everyone harmed (foreseeable or not) |
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Special Foreseeable Ps |
Rescuers - d liable for negligently putting rescuer/rescued party in danger emergency professionals barred from recovery if injury results from risk of the job (firefighter's rule) fetuses - duty of care owed to fetuses viable at time of injury |
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Firefighters Rule |
emergency professionals barred from recovery if injury results from risk of the job |
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Standard of Care for Professionals |
Expected to show same skill, knowledge, and care as other practitioners in the same community; specialists may be held to higher standard |
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Standard of Care for Physicians |
Informed Consent National standard - average qualified practitioner |
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Common carrier standard of care (planes, trains, busses) |
highest duty of care consistent with practical operation of the business |
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innkeepers |
MAJORITY: ordinary negligence COMMON LAW: slight negligence |
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Automobile drivers |
MAJORITY: ordinary care to guests as well as passengers, absent guest statute MINORITY: refrain from wanton and willful misconduct |
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Bailor |
duty to warn all bailees of known dangerous defects; duty to warn bailee for hire of defects should have known about with reasonable diligence |
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bailee |
gratutuitous bailee liable only for gross negligence; bailee for hire must exercise extraordinary care; bailee for mutual benefit must take reasonable care |
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sellers of real property |
duty to disclose known, concealed, unreasonably dangerous conditions; liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect |
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duty owed to trespassers |
MAJORITY: refrain from willful, wanton, reckless or intentional misconduct discovered: warn or protect against concealed, dangerous, artificial conditions undiscovered: generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee (majority) attractive nuissance: liable for injuries to trespassing children and owner fails to exercise reasonable care to protect |
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duty owed to invitees |
invited to enter for purposes for which the land is held open or for business purposes reasonable care to inspect, discovery dangerous conditions, and protect invitee from them; non-delegable duty duty does not extend beyond scope of invitation |
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duty owed to licensees |
enters land of another with permission or privilege (social guest; emergency personnel) warn of concealed dangers that are known or should be obvious use reasonable care in conducting activities on the land no duty to inspect |
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strict liability elements |
absolute duty to make P's person or property safe breach actual and proximate causation damages |
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proper strict products liability Ds |
manufacturer, distributor, and retailer |
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defamation elements |
defamatory language of or concerning P publication falsity (public concern or public figure) Opinion only basis for defamation if implied knowledge of facts |
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defamation fault public figure private figure/matter of public concern private figure/not matter of public concern |
public figure - actual malice (d knows of falsity/reckless disregard of truth) Private with public concern - D acted with fault; either negligence or actual malice Private without public concern - at least negligence |
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damages p.f. private with public private without public |
p.f. - actual proven damages private with public - actual damages, but if actual malice proven punitive or presumed damages also permitted private without public - general, including presumed, damages without proving actual malice |
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defenses to defamation |
truth - complete defense consent - cannot exceed scope absolute privilege - judicial/legislative proceeding remarks, between spouses, in required publications qualified privilege - affecting important public interest, in the interest of D or third party; privilege is lost if abused; burden on D to prove privilege exists; burden on P to prove privilege abused and lost |
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Invasion of Privacy torts |
I FLAP (intrusion, false light, appropriation, private facts) applies only to individuals, terminates upon death damages: proof of emotional/mental distress enough, special damages not required defenses: consent, truth not a defense, absolute/qualified privilege for false light/public disclosure |
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intrusion upon seclusion |
D's act of intrusion into P's private affairs, objectionable to a reasonable person (no publication required) |
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false light |
publication of facts about P or attributing views/actions to P that place him in false light objectionable to reasonable person under circumstances; truth not always a defense; in matters of public interest, P must show malice |
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Misappropriation |
unauthorized use of P's picture or name for D's advantage; lack of consent; injury |
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Public Disclosure of Private Facts |
even if facts true, would be highly offensive to a reasonable person and is not of legitimate concern to the public; in tension with 1A - disfavored tort |
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Intentional Misrepresentation |
False representation of material fact - generally no duty to disclose Scienter - knowledge or reckless disregard of truth Intent to Induce - P to act or refrain in reliance on misrepresentation Causation - Actual reliance Justifiable reliance - not justifiable if statement obviously false or lay opinion Damages - actual economic loss/consequential damages, no nominal damages |
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negligent misrepresentation |
D provides false information to P as result of D's negligence in the course of D's business or profession P justifiably relies on info and incurs pecuniary damages as a result |
