Torts

Front 1

Trespass - Elements

Back 1

1) an act of PHYSICAL invasion of the P's real property

2) Intent on the D's part to bring about a physical invasion of the P's real property

3) Causation

*mistake of belief of ownership no excuse

Front 2

Negligence - Prima Facie

Back 2

1) duty on the part of the D to conform to a specific standard of care/conduct for the protection of the P against an unreasonable risk of injury

3) that such breach is the ACTUAL and PROXIMATE cause of the P's injury, and

4) Damage

Front 3

Assault - Intent

Back 3

1) an act by the D creating a reasonable apprehension in the P of IMMEDIATE HARMFUL/OFFENSIVE contact to the P's person

2) intent on the part of the D to bring about in the P such apprehension and

3) Causation

Front 4

Battery

Back 4

1) an act by the D that brings about harmful or offensive contact to the P's person;

2) Intent on the part of the D to bring about such contact, and

3) Causation

Front 5

Transferred Intent

Back 5

The intent to commit a tort against one person is txf'd to the other tort or to the injured person for purposes of est. a prima facie case

Front 6

Privilege of Necessity

Back 6

a person may interfere w/ property of another where it is REASONABLY and APPARENTLY necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that seeks to avert it.

Private necessity - still pay - benefit limited persons.

Front 7

Licensee

Back 7

enters land w/ owner's permission for own purpose and benefit rather than owner's.

*duty to warn license of any KNOWN dangerous conditions that creates an UNREASONABLE RISK OF HARM.

*no duty to inspect

Front 8

Invasion of Privacy

Back 8

1) public disclosure of private facts about P

2) Reasonable person would object to having been made public

*no liability for matters occurring in a public place

Front 9

False Light Invasion of Privacy

Back 9

1) publication of facts about P by D placing P in a FALSE LIGHT in the public eye; and

2) the FALSE LIGHT must be something that would be OBJECTIONABLE to a reasonable person under the circumstances

**3) malice - on th epart of the D where the published matter is in the PUBLIC INTEREST

Front 10

what are the 4 categories of invasion of privacy actions?

Back 10

1. Appropriation of P's picture or name for D's commercial advantage

2. intrusion upon P's affairs or seclusion;

3. publication of facts that place the P in a false light; and

4. public disclosure of private facts about P by D

Front 11

Vicarious Liability - Respondent Superior

Back 11

Relationship must exist; and employee/servant acted within the scope of employment

Front 12

Respondent Superior

Back 12

generally a principal is not liable for tortious acts of agent who is an independ contractor

Front 13

Independent Contractor

Back 13

1. engaged in a distinct business of her own;

2. controls the manner and method by which she performs her tasks;

3. hired to do a particular job;

4. supplies her own tools and materials

5. paid a given amount for the job; and

6. hired to do a short-term, specific job

Front 14

When can a principal be liable for the tortious acts of an independent contractor?

Back 14

1. the i/c is engaged in an inherently dangerous activity(s), OR

2. the principal has a duty that is nondelegable on public policy grounds

3. hiring incompetent i/c

Front 15

Strict Liability - for defective product - what are the prima facie elements

Back 15

1. strict duty owed by a commercial supplier;

2. breach of that duty by the sale of a product in a defective condition unreasonably dangerous to users;

3. actual and prox cause; and

4. damages

Front 16

Appropriation - elements

Back 16

P need only prove the UNAUTHORIZED use by the D of the P's picture or name for the D's commercial advantage.

Generally, liability is limited to the use of the P's picture or name in connection w/ the promotion or advertisement of a product or service.

*mistake is NOT a valid defense nor consent

Front 17

Attractive Nuisance

Back 17

Generally - landowner needs to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions of the land

Elements:
1. a dangerous condition present on the land which the owner is or should be aware;

2. the owner knows or should know that young persons frequent the vicinity of this dangerous condition

3. the condition is likely to cause injury b/c of child's inability to appreciate the risk; and

4. the expense of remedying the situation is slight compared w/ the magnitude of the risk

*defense - aware of the risk, and assume it- **child must APPRECIATE the risk.

Front 18

What is the defense to a S/L suit for defective product?

Back 18

Defense of assumption of risk - aware of the risk and voluntarily assumed it.

Front 19

what is the breach of duty for a design defect?

Back 19

that there existed a reasonable alternative design (that a less dangerous modification or alternative was economically feasible)

**whether the defect as it existed rendered the product use UNREASONABLY DANGEROUS

Front 20

What are defenses to negligence?

Back 20

1. Contributory Negligence

2. Assumption of Risk (express or implied)

3. Comparative Negligence

Front 21

Contributory Negligence

Back 21

C/L - bars recovery for finding of any contributory negligence on the part of the D.

Front 22

Assumption of Risk

Back 22

Known of the RISK and VOLUNTARILY assumed it - doesn't matter whether the P's choice is unreasonable.

Front 23

Comparative Negligence

Back 23

Allows percentage of recoveries for damages. Weighs P's negligence against tha tof D and reduces P's damages accordingly

Front 24

Types of Comparative Negligence

Back 24

1. Partial - barred recovery is P's neg was more serious (more than 50%) or at least as serious

2. Pure Comparative - doesn't matter the amount of P's nelgience

Front 25

Negligence per se - Elements

Back 25

1) P is in a class intended to be protected by the statute,

2) the statute was designed to prevent the type of harm that was suffered, and

3) the statutory standards are clearly defined

Front 26

Res Ipsa Loquitur

Back 26

1) injury is of type that would not normally occur in the absence of negligence, and

2) that such negligence is attributable to the D - (e.g. showing that the instrumentality causing the injury was in the exclusive control of the D)

**allows trier of fact to infer negligence

Front 27

Interference to K or prospective economic Advantage

Back 27

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

2) the D's knowledge of the expectancy

3) intentional interference by the D that induces a breach or termination of the relationship or expectancy; and

4) damage to P

Front 28

Defamatory

Back 28

language that tends to adversely affect one's REPUTATIONS in the community, such as impeaching the individual's honesty, integrity, virtue, sanity, or the like

Front 29

Defamatory - elements

Back 29

Need to show:

1) D made statements w/ MALICE (e.g. knowledge that the statement was false or reckless disregard as to its truth or falsity)

Front 30

What are the duties owed to undiscovered trespassers?

Back 30

None - no duty owed to UNDISCOVERED trespassers

Front 31

What are the duties owed to discovered trespassers?

Back 31

Discovered trespassers - must warn of or make safe articifical conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is UNLIKELY to discover

Front 32

Intentional Infliction of Emotional Distress - elements?

Back 32

1) an act by the D amounting to EXTREME and OUTRAGEOUS conduct,

2) intent to cause severe emotional distress or recklessness as the effect of D's act

3) causation

4) damages (severe emotional distress)

Front 33

Negligent Infliction of Emotional Distress

Back 33

*needs physical harm

Duty to avoid negligent infliction of emotional distress, breached when D creates a FORESEEABLE RISK of physical injury to P - threat of physical impact that leads to emotional distress - physical injuries solely b/c of the emotional distress.

**exceptions to some scenario, where D's negligence creates a great likelihood of severe emotional distress.

Front 34

Defamatory - Elements?

Back 34

1) Defamatory language on the part of the D

2) language must be "of or concerning the P" - ID P to reasonable reader, listener, or viewer

3) PUBLICATION to a third person;

4) damages to the REPUTATION of the P

**intent to PUBLISH

Front 35

can an intermediary's failure to discover a defect on product relieve manufacturer's liability?

Back 35

NO - under either theory of negligence or strict liability, failure to discover a defect is NOT a superseding/intervening cause.

Front 36

Right of indemnification

Back 36

Applies to PREVIOUS suppliers (go up the chain)

Front 37

Douche bag children

Back 37

Parents not generally vicarious liable for child's tortious acts - UNLESS - they knew of the child's propensity of being a douche, would create a duty

Front 38

Intrusion to seclusion

Back 38

1) intrusion to one's private matters, and

2) such intrusion is objectionable to a reasonable person.

**highly offensive and/or outrageous intrusion relating to private facts, objectionable to a reasonable person

Front 39

Defamation involving - public figures/ public concern

Back 39

D may not be held liable for defamation on a matter of public concern not involving a public figure, UNLESS in addition to publishing a false story, it was at least NEGLIGENT in ascertaining the truth or falsity of its facts.

Front 40

Privacy: Intrusion of Seclusion

Back 40

1) an act of prying or intruding on the affairs or seclusion of P by D;

2) the intrusion must be something htat would be objectionable to a reasonable person; and

3) the thing to which there is an intrusion or prying must be "private"

Front 41

What types of facts will be considered "false light"?

Back 41

1) views that he does not hold, or

2) actions that he did not take

Front 42

False Imprisonment

Back 42

1) Act or omission that confines P to bounded area

2) Intent to confine

3) Causation

Defenses:
-Privilege of Arrest
-Shopkeeper's Privilege

Front 43

Malicious Prosecution

Back 43

1) Institution of criminal proceeds against P;

2) Termination favorable to P,

3) Absence of probable cause for prosecution

4) Improper purpose of D; and

5) Damages

Front 44

Privilege of Arrest - how is it asserted?

Back 44

A misdemeanor arrest w/out a warrant is privileged only if the misdemeanor was a BREACH OF THE PEACE and was committed in the PRESENCE of the arresting party.

Front 45

Shopkeeper's Privilege

Back 45

A shopkeeper has a privilege to detain a suspect if:

1) reason to believe that a theft was committed

2) Detention is conducted in a reasonable manner, and

3) for a reasonable time

*cannot use deadly force.

Front 46

Abuse of Process

Back 46

P must show:

1) wrongful use of the process for an ulterior purpose, and

2) some definite act or threat against P to accomplish the ulterior purpose.

Front 47

Nuisance

Back 47

An invasion of private property rights by conduct that is either intentional, negligence, or subject to S/L.

Substantial interference to use and enjoyment of the land. (S/L - nuisance)

Front 48

Negligence - Intentional - standard?

Back 48

Unreasonableness - that injury outweighs the utility of D's conduct/use.

Front 49

Proximate Cause

Back 49

D is liable for ALL harmful results that are the normal incidents of and within the increased risk cause by his acts - foreseeability (w/in the zone of danger)

Front 50

Independent Intervening Force

Back 50

Does not cut liability or chain of causation, where the intervening force is forseeable, and that such force increases the risk of harm

Front 51

Negligent Infliction of Emotion Distress (elements) - zone of danger approach

Back 51

1) P and the person injured by D are closely related;

2) P was preset at the scene of the injury, and

3) P personally observed or perceived the event

***must show physical injury resulted from the distress - emotional distress alone is insufficient in the usual case

Front 52

Invitees

Back 52

Owed duty by the land owner - but only within the scope of the premises for the invitees, no duty for those invitees that go beyond it