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85 Cards in this Set
- Front
- Back
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Battery
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The defendant acts with an intent to cause the plaintiff to suffer a harmful or offensive contact and causes the plaintiff to suffer such contact.
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Assult
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The defendant acts with an intent to cause the plaintiff to suffer reasonable apprehension of an immediate harmful or offensive contact and causes the plaintiff to suffer such apprehension.
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False Impriosnment
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The defendant acts with an intent to cause the plaintiff to be confined within a bounded area with no reasonable means of escape, and causes the plaintiff to be so confined.
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Trespass to Land
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The defendant commits an intentional act which results in the entry of the plaintiffs land.
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Trespass to Chattels
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The defendant commits an intentional act which interferes with the plaintiffs personal property.
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Conversion
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The defendant commits an intentional act which results in the exercise of dominion and control over the plaintiffs personal property.
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Intentional Infliction of Emotional Distress
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The defendant commits an outrageous act, with an intent to cause the plaintiff to suffer severe emotional distress, and causes the plaintiff to suffer a severe emotional distress. |
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Defenses to Intentional Torts
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Consent Self Defense Defense of Others Defense of Property Public Necessity Private Necessity Shopkeepers Privelege Recapture of Chattels Discipline Arrest
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Consent
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The consent of the person damaged will generally avoid liability for intentional interference with the person or property. Consent is and express or implied willingness to be subjected to otherwise tortious conduct. Consent may not be obtained by fraud or duress.
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Self Defense
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A person who has been attacked or is about to be attacked may use reasonable force to defend himself against harm. Deadly force may be used when the plaintiff is threatened with immediate danger to life or great bodily injury.
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Defense of Others
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A person may use reasonable force to defend a third party from attack. Under the majority view the good samaritian is not liable if he reasonably and honestly believe he was helping the victim. Under the minority view, the defender steps into the shoes of the third party and thus the defender may only use the amount of force with the third party could have used.
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Defense of Property
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Reasonable force may be used to defend property from being taken, or to recover such property. Absent a threat to the defendants life deadly force may not be used to defend ones property.
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Recapture of Chattels
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Property owners have a limited privilege to retake stolen property and may use reasonable force to do so.
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Discipline
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A parent, or 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. |
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Arrest
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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.
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Shopkeepers Privelege
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A storeowner who reasonably suspects a person of stealing goods may detain the person for a reasonable time in order to conduct an investigation.
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Private Necessity
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A privilege to act to prevent a threatened injury resulting from a cause not brought about by the person claiming the privilege. Where the defendant acts to protect a private interest, the privilege is more limited than with public necessity. The defendant may trespass onto private property to prevent injury to him or his property or to prevent injury to a third party or his property but is responsible for damages to plaintiffs land or property.
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Public Necessity
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A privilege to act to prevent a threatened injury resulting from a cause not brought about by the person claiming the privilege. Where the danger affects the entire community, or a large part of it, the deft is justified in acting to prevent harm to that group. There must be an immediate peril to the community, and there must be a need for the deft to destroy private property in order to prevent the damage to the community as a whole. Should the defense be successful, there is no liability for damages to the plaintiff’s land or property.
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Negligence
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The elements of negligence are: duty, breach, actual cause, proximate cause, and damages.
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General Duty of Care
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When the defendant takes affirmative action, the defendant owes a duty to act with reasonable care to foreseeable plaintiffs and those in the zone of danger of the defendant’s affirmative conduct.
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Special Duty of Care
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Common Carriers Landowners to Trespassers Landowners to trespassing children Landowners to Licensees Landowners to Invitees Lessor Health Care Providers Children Nonfeasance |
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Common Carriers |
Held to a high standard of care to use the utmost care and diligence to protect customers from harm.
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Landowners to Trespassers
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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.
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Landowners to Trespassing Children
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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.
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Landowners to Licensees
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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
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Landowners to Invitees
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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.
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Lessors
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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.
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Health Care Providers
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Must act with skill and learning of similarly situated providers in the community.
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Standard of Care: Children
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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).
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Nonfeasance
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Failure to act, passive failure to take steps to protect others from injury. General Rule: With some exceptions, nonfeasance does not serve as a basis for liability.
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Exceptions and Qualifications to Nonfeasance |
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).
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Breach of Duty
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Failure to act as a reasonable person to protect the plaintiff from foreseeable harm.
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Violation of Statute
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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.
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Learned Hand Calculus
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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.
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Res Ipsa Loquitur
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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 no ordinarily occur without negligence, and the harm was not caused by the plaintiff.
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Causation
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The plaintiff must show that the deft was the actual and proximate cause of the plaintiff’s injuries.
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Actual Cause
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Has the deft’s act or omission caused injury to plaintiff?
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But For Test
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But for def’t act or omission, plaintiff would not have been injured. The harm actually resulted from the act or omission
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Substantial Factor Test
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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.
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Proximate Cause
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Deft is only liable for harms that were reasonable foreseeable and there is no superseding cause.
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Unforeseeable Plaintiff Limitation (Palsgraf situation)
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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.
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Intervening Act
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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
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Thin Skull Plaintiff Doctrine
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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.
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Defenses
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Contributory Negligence Last Clear Chance |
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Contributory Negligence
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The negligence of the plaintiff, no matter how slight, bars recovery
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Last Clear Chance Doctorine
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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.
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Comparative Negligence
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Pure Comparative Negligence Partial Comparative Negligence |
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Partial Comparative Negligence
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If the plaintiff’s fault is more than that of the deft’s, plaintiff is barred from recovery.
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Pure Comparative Negligence
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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.
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Assumption of the Risk
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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.
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Strict Liability
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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.
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Possession of Animals
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Strict liability is imposed on owners of wild animals or vicious domestic animals, which the owner knows are vicious
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Abnormally Dangerous Activities
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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)
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Strict Liability in Tort
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Those in the chain of production of defective products, which are unreasonably dangerous, are liable to the consumer for damages caused by the product.
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Proper Plaintiff |
Does not have to be in privity with the manufacturer, as the seller or manufacturer has the duty to inspect and warn potential plaintiffs.
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Proper Defendant
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Those in the chain of production, i.e. the manufacturer, designer, wholesaler, and retailer.
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Defect
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Design, failure to warn, manufacturing, inadequate testing, inadequate inspection, breach of warranty, defective products.
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Manner of Proof for Defect
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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.
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Breach of Warranty
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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).
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Express Warranty
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Seller makes a material representation as to a product’s safety, durability, or performance.
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Implied Warranty
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UCC 2-314 provides that a seller impliedly warrants that the product sold it fit for the ordinary purpose for which it is made.
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Defamation
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Slander and Libel
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Defamatory Statement
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A statement which causes the plaintiff to be ridiculed or scorned. The statement must concern the plaintiff.
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Publication
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The statement must be hard by someone other than the plaintiff.
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Libel
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Defamation resulting from the written or printed word. Considered more serious than slander because libel is more permanent.
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Slander
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Defamation in spoken form, not permanently preserved.
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NY Times v. Sullivan
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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).
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Gertz v. Welch
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Private persons engaged in public controversies need not prove actual malice before recovering for defamation
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Invasion of Privacy |
Intrusion Upon Seclusion False Light Disclosure Private Fact Appropriation of Likeness |
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Intrusion into Seclusion
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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”.
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Appropriation
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Appropriating for one’s own use or benefiting from the name or likeness of another, i.e. the unauthorized endorsement of a product.
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Public Disclosure
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Publication of private facts that are highly offensive to a reasonable person and are not of legitimate public interest
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False Light
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Publication of false facts that a reasonable person would object to. The publication must be to a substantial number of people.
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Interference with Contract
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Intentionally inducing a third party to break a contract with the plaintiff.
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Interference with Prospective Advantage
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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.
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Misrepresentation
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Deceit Negligent Misrepresentation |
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Deceit
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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.
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Negligent Misrepresentation
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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.
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Public Nuisance
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An unreasonable interference with a right common to the general public, i.e. a substantial interference with the public health, peace, or safety.
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Private Nuisance
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Unreasonable interference with the use or enjoyment of the owner or possessor’s property interest.
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Damages
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Compensatory Punitive |
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Compensatory Damages
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Damages awarded as compensation, indemnity, or restitution for harm suffered by the plaintiff. Can include both pecuniary and non-pecuniary losses.
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Punative
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Awarded when a tort is committed with malice. Designed to punish and deter egregious conduct.
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Vicarious Liability
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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.
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Joint and Several Liability
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Joint torfeasors are jointly and severally liable for the plaintiff’s total damages. Each of the tortfeasors is liable for the entire damage award.
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