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153 Cards in this Set
- Front
- Back
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These things necessary for an intentional tort commission
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Volitional act and
specific intent causation (substantial factor in causing injury) |
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What are the five intentional torts that doctrine of transferred intent applies to?
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Assault,
Battery, False Imprisonment Trespass to Land and Trespass to Chattels |
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Battery has four elements. What are they?
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Volitional intentional act
Done with intent to cause plaintiff immediate apprehension harmful offensive contact without consent |
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What are two examples where life implies contact, sometimes offensive?
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Contact sports and riding on a bus.
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The elements of false imprisonment are
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A volitional act, done intentionally with Intent to confine P
to a bounded area that causes confinement without consent. |
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Assault. Elements.
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Intent
Cause Reasonable apprehension immediate harmful or offensive contact |
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What are elements of Intentional Infliction Emotional Distress?
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Extreme and outrageous conduct
Intent or recklessness highly likely to and which does cause severe emotional distress |
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What is extreme and outrageous conduct for IIED?
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Conduct that exceeds all bounds of decency and it may become that way if it is continuous, or committed on weak people or by assholes.
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What is the mental state for IIED?
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Recklessness or intent to do so.
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What damages must be shown for IIED?
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Physical injury unnecessary but must show severe emotional distress. Only intentional tort that requires proof of damages.
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Name the elements of trespass to land
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Intentional physical invasion into p's real property (by person or object)
intent to enter that land causation is the entry Damages not required because this is concerned with the right to exclusive possession |
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Trespass to chattels... elements?
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Intentional act
which takes chattel away from another or using or intermeddling with chattel causation and proof of damages |
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Conversion is different from Trespass to chattels because.....
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Intentional act
interfering with plaintiff's right of possession that causes the need to replace of chattel. P may get chattel through replevin |
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Consent is a defense to intentional tort. What are the limits of consent?
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1. Was there valid consent?
2. Did d stay within bounds of consent. |
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What is defamation?
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False statement damaging reputation that is published.
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Mental state for defamation is
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Negligence
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Differences between libel and slander
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Slander P must show damages and pecuniary harm unless slander per se
Libel harm is presumed |
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What things are slander per se?
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Crime of moral turpitude loathsome disease unchaste woman unfit for profession
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In addition to common law elements of defamation what must P prove when public matter?
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1. Falsity
2. Defendant's fault |
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What is constiutional public figure defamation?
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Knowledge that the statement was false or
Reckless disregard that it was false. (subjective) |
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What is a Gertz v Welch plaintiff?
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Private person, matter of public concern. With malice, damages presumed, with negligence, only actual damages are recoverable.
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What are defendant's privileges in speech in the context of defamation?
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Judicial
Compelled speech federal executive officials legislators in debate |
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What is Dan's definition of negligence?
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An actor has a duty of reasonable care to forseeable others to avoid creating an unreasonable risk of harm. OBJECTIVE
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Negligence is duty (name it just to review) and also
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Breach of duty, causation and damages
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Special duties for special people like
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Child held to std for age etc
handicapped person must know their limits but lower std |
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What is the duty for professionals
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Held to standard of skill and knowledge of those similarly situated in similar area
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What are negligence per se elements?
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statute with criminal penalties
P in person protected by stat Stat clearly defines standard of conduct Harm is kind statute designed to protect against |
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What is the duty owed to a rescuer?
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A rescuer is a forseeable plaintiff for a defendant who places himself or another in peril.
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Common carriers and innkeepers have this duty of care
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High degree of care to passenger/guest leaving them liable for slight negligence.
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Duty of landowner to those on premises
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Modern approach is reasonable person status on land
or Invitees those who enter for landllord's business purpose Licensee there for own purpose Trespasser no duty |
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Negligent infliction emotional distress
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d breaches duty and causes emotional distress to a forseeable other by either being in zone of danger or watching loved one where another is hurt
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Affirmative duties to act exist when
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Common carrier or innkeeper
D put p in peril where one has undertaken action |
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How to establish breach of duty
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Custom establishes std of care
viol of statute Res Ipsa Loquitir |
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Res Ipsa Loquitir
HInt: AIIPN |
Accident is the kind that does not happen w/o negligence Instrumentality causing ps injury under ds control
P did not contribute to harm No other direct evidence of D participating |
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Is defendant liable for forseeable results caused by unforseeable intervening forces?
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Yes. Med Mal?
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Is defendant liable for unforseeable results caused by forseeable intervening forces?
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No. Plaintiff in street, run over by stampeding elephant?
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Defendant liable for unforseeable extent of harm.
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What is eggshell plaintiff?
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How are property damages compensated in a PI case?
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Repair or Replacement value.
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Name the kinds of damages compensated in PI case?
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Past present and future special and general
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Cont Negl
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is ps negligence
cannot be raised in intentional tort case. |
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Tell me how contributory negligence affected P's recovery at common law.
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Barred it.
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Comparative negligence has three systems. What are they.?
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Pure, where % of p's fault reduces her award
Partial where p's damage award reduced by the % she is at fault. If above threshold level, recovery is barred. |
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Causation can be seen in these forms
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Actual but for (What is a butfor?)
Two tortfeasors each of which is a substantial factor (2 we don't know who as in Summers v Tice) Two tortfeasors we don't know which |
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Proximate cause is the cut off point for liability.
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Forseeability is the knife.
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Intervening cause is
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If not forseeable, then superseding, destroying the liability chain. When the forseeability chain breaks and there is a force which takes effect after the original act of negligence which is part of the causal chain then you have intervening cause.
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Joint and several liability is when>>>>>
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Where P injured and each of multiple Ds are liable for damages in full
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Summers v Tice held that
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When multiple tortfeasors and one injury, burden shifts to them to show that they did not cause harm
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Elements of Negligent Infliction Emotional Distress are:
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Plaintiff in zone of danger
created by D's risk Injured by shocking event Distress causes physical harm |
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Respondeat Superior has some elements. What are they?
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Employer liable for the torts of employee if committed within the scope and course of his employment
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Independent contractors do not engender RSuperior but there are two exceptions...they are?
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when engaged in a hazardous duty or where builder/contractor fails to put fence around excavation
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Assumption of Risk is a defense. What are the elements?
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Plaintiff knew of a substantial and unjustifiable risk and proceeded anyway.
Doesn't work where no other alternative to proceed with. |
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Strict Liability for Animals and Ultrahazardous activities. Name elements.
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D liable for all forseeable damage caused by trespassing animals.
Ultrahazardous activities include blasting and nuclear shit. The activity poses a risk of harm to people on the land not commonly engaged in the community and cannot be done without risk of harm THIS GETS YOU STRICT LIABILITY. |
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Three ways to make a dangerous product.
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Defective manufacture
Defective Design Inadequate warning |
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How do you prove a manufacturing defect?
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P must show that the product failed to meet ordinary consumer expectation.
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Design defects can be proven by showing what?
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That the product could have been made safer without serious price impact.
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Strict Product Tort liability is proven by showing that an
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Unaltered product was placed in the stream of commerce in a defective or unreasonably dangerous condition by one who is a seller and that the product caused the P's injuries.
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Warranty theory for suits involving products can be brought on what theories?
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Implied warranty of merchantability and Express warranty.
Plaintiff does not have to show any fault on D's part. This is a contract. Must give notice of breach under UCC or barred. |
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There are 4 general elements to defamation/slander/libel and they are:
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defendant made a false and defamatory statement about P . This was unprivileged and to third party w/ at least negligence in making the communication. Damages are presumed with publication
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The Sullivan standard is for public officials and it means that
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Actionable statements about a public person must be made with actual malice or reckless disregard for falsity
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Gertz is a private person, matter of public concern
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actionable if actual malice or failed to inquire about statement was false or defamatory
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False imprisonment plaintiff must be aware that he is confined. True or False?
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True, or he must be physically injured.
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Defendant must know which person he is falsely imprisoning in order to be liable for false imprisonment.
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False.
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Shoplifter exception to false imprisonment tort has what elements:
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1. Reasonable belief as to theft
2. detained reasonable manner w/o deadly force 3. detain only as long as needed to investigate |
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What is the intent requirement for trespass to land?
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Intent to enter, mistake is no defense. Not intent to trespass.
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How liable is one who is privileged to enter the land of another for damages to that property?
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Liable.
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To what degree is one liable for negligent entry to another's land?
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Liable to the extent that it is damaged.
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What is the difference between conversion and trespass?
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How serious the interference with possessory rights.
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What are the elements of conversion?
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Intneional excercise of dominion/control over a chattel which
seriously interferes with the rights of another. |
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Can real property be object of conversion or trespass?
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No, only personal property.Trespass on real property gets trespass as a COA.
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What factors affect the decision whether there is trespass to chattel or conversion?
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Extent/duration of D's control
D's good faith D's intent to assert rights inconsistent with true owner Harm done to chattel (always personal never real) |
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What are defenses to intentional torts?
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1. Privilege
2. Mistake (acting in self defense or public interest-necessary to act on appearances) 3. Consent |
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Express consent as a defense to intentional torts invalid when
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1. Induced by fraud or duress
2. Mistake IF def caused Mistake 3. Informed consent must be fully informed 4. Incapacity exists (child) |
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Is consent a defense or an element of plaintiff's case?
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Lack of consent is an element of plaintiff's proof.
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Self Defense is a defense to intentional torts. What are the elements?
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Actor may use SD vs. unprivileged harmful or offensive contact or other bodily harm that he reasonably believes that another is about to inflict intentionally on him.
Retreat not necessary, can act on mistaken appearances. |
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Defense of property allows the use of force under what circumstances?
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1. Only the use of force will terminate the intrusion and the intrusion cannot be privileged.
2. Cannot use deadly force unless that is the minimum that will work |
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Recapture of chattels can justify the use of force when that force:
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1. Is in response to a taking by duress or fraud, or other tortious act:
2. D refuses to surrender that item. |
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Private necessity to enter land is qualified in that:
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1. Def enters against and superior to P right to defend
2. D still liable for damage to property |
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When can one use self defense in response to intentional tort?
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Battery with proportional force may be used to repel battery so long as reasonable.
No duty to retreat |
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Is mistake a defense to battery in intentional torts?
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Reasonable, proportional mistake is ok. Unreasonable not ok.
No retailiation. |
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Defense of property has limits. What are they?
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No deadly force (except to protect people)
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Necessity can be used as a defense to committing trespass. What are the limits?
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If defense applies then P entitled to actual but not nominal damages.
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How can one recapture their chattel?
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Without force. Think repo laws.
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Consent is implied to treat someone who is unable to give consent. To what extent?
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To treat immediate problem, not to do vasectomy.
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What is the arrest privilege for police?
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they can use force necessary to effect an arrest.
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Private necessity is a qualified privilege in that actor is
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Not liable for trespass but is liable for damage to land or chattel
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There are four overall components of negligence law. What are they?
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1. Duty of Care, D has legal duty to protect P from unreas risk of harm
2. Breach of duty where D fails to conform to duty of care 3. Causation where D's failure to conform actually and proximately caused P's harm 4. Damages or actual harm to P which can be measured. That's where it all fits in. |
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What is the reasonable person?
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Someone who acts to excerise the care that a reasonable person would
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Duty of care is owed to?
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Forseeable plaintiffs.
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Who are forseeable plaintiffs?
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Rescuers (damger invites rescue) and intended beneficiaries of economic transactions (will beneficiaries)
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What can mother recover for in wrongful birth situations?
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1. Mother pain of child birth
2. Severely handicapped child parents can recover for extraordinary child rearing expenses. Keep in mind this all relates to Defendant's duty of care.....in this instance as to pregnant mother with fetus. |
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Standard of care for person with limitations
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To know physical limits and excercise appropriate care.
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Adult standard of care applied to child when
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Child engaged in adult activity or using hazardous item that has motor
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Adults liable for child's negligent act only when
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They negligently fail to supervise.
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Children are liable for intentional tort when
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They are capable of forming culpable mental state
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What is a landowner's duty to those off his premises?
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Generally, none except when:
a. duty to prevent structures abutting land from becoming hazardous b. To mind what is on his property to keep it from hitting others off property (tree branch) |
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What is a landowners duty to Undiscovered trespassers?
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None, but no dangerous instrumentalities on the land like spring guns.
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What is the duty for expected, discovered trespassers?
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1. Make known dangerous concealed conditions safe;
2. No duty for natural or unknown unsafe conditions 3. Take children's curiousity into account |
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What is the duty to invitees?
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1. To warn of dangerous natural or artificial conditions that are
2. Known to create an unreasonable risk of harm to invitee 3. That invitee is unlikely to discover |
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There are two standards of care applied to doctors. What are they?
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1. Similar type of practice in similar locality.
2. Specialists are examined under a national standard. |
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In proving what is reasonable, custom can be used to show what?
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Evidence of what is reasonable but it does not set the standard for reasonableness (think objective test)
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Attractive nuisance doctrine no longer applies. What do we use now?
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Reasonableness standard. Nuisance no longer has to be attractive. We ask:
1. Are children likely to trespass? 2. Does condition pose threat to children? 3. Children will not realize risk 4. Burden of cleaning up less than benefit of leaving it |
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What is the duty to act in an emergency situation?
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1. Less than in a situation where emergent thinking not required.
2. Not lenient when defendant created situation of emergency |
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What are exceptions to the "no duty to rescue rule"?
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1. When Defendant put plaintiff in region of harm
2. Defendant starts to rescue and does so negligently 3. Co-adventurers (two hikers one falls) 4. Contractual such as lifeguard, innkeeper |
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What is the fireman's rule?
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If injured on the job by your negligence, no cause of action. Opposite true if intentional
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Fire, police and EMT are ________________ on your property.
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Licensees.
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Elements of negligence per se.
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1.Safety statute
2. Plaintiff in class of persons protected by that statute 3. Harm is that type protected from by the statute |
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In Negligent inlfiction of emotional distress no need to have physical injury when
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1. Mishandling of corpse
2. Negligent information of relatives death 3. Or if defendant is landlord, bill collector |
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What is the economic loss rule in tort law?
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Cannot recover for purely economic loss in tort
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"Dependent" intervening forces are forseeable. Some examples are::
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Negligence of rescuers
Medical malpractice Efforts to protect others or their property Subsequent accident caused by original injury |
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Independent intervening causes are
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Not forseeable but look carefully at situations where intervening forces are expected (valet leaving keys in car and it gets stolen)
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Name the result. 2 tortfeasors and we don't know who caused injury or apportion injury among the two
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Result; both are liable, jointly and severally. Same is true with two tortfeasors, indistinguishable injuries resulting from same type harm.
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Do damages have to be forseeable to be recoverable?
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No.
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Are contribution and contributory negligence the same?
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No, contribution is between defendants and contributory negligence is for plaintiffs who take unnecessary and unreasonable risks.
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What are three tests for determining causation?
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But for, substantial factor (summers v tice when hard to apportion) and market share.
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Old fashioned contributory negligence completely barred plaintiff's claim. True or false?
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True.
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What is the exception to old fashioned contributory negligence?
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Last clear chance doctrine.
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What is the last clear chance doctrine?
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If defendant had last clear chance to avoid injury and did not then he is still liable even if plaintiff got the ball rolling.
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Contributory negligence is where plaintiff's recovery is diminished by his contribution to the situation giving rise to the injury. What are the two types?
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Modified comparative #1 where P negligence must be less than defendants, or at most 49%.
Modified comparative #2 where P can recover so long as his negligence is less than defendants. |
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Implied assumption of the risk takes place when
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We imply knowledge of risk from RPP standards
Must be reasonable alternative to taking the risk, otherwise, no choice. |
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What is the difference between a frolic and a detour?
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Frolic is a major deviation from employers purpose and is not part of Respondeat Superior while detour is a minor deviation.
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Employers are not liable for torts of independent contractors unless:
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They give non-delegable duty or
IC engaged in hazardous activities |
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When does liability attach to hazardous activities?
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Always. This is the beginnings of strict liability.
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Abnormally dangerous activities carry with them what degree of duty?
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Absolute.
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What makes an activity hazardous?
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One that carries serious risk of harm to persons or property or
one that cannot be performed without serious risk of harm in spite of the care taken One that is not commonly engaged in by people |
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Domestic animal owners are liable for their animals actions when
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they have knowledge of dangerous propensity.
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Owners are strictly liable for torts of dangerous wild animals they keep if
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The plainitff did not contribute and the animal caused an injury consistent with its nondomestic status
Zoos are held to negligence standard, not strict liability |
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Plaintiff can be contributorily negligent for injury from ultrahazardous activity if
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He knew of the ultrahazardous activity. Reasonably forseeable misuse is not a defense.
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What kind of consumers can sue under negligence theory for product liability?
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any forseeable plaintiff
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Is is difficult to show that retailers and distributors have met their duty to inspect a product?
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They do have that duty, but they can satisfy their duty through showing cursory inspection
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You can be liable for product injury three ways. What are they?
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Express misrepresentation, Implied warranty of merchantability under the UCC and breach of express warranty for particular purpose.
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Strict liability recovery can take place even if
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Defendant took all due care and there is no privity between defendant and plaintiff
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What must be present for strict liablity?
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Seller must be in the business of selling the product
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Plaintiff in product liability action can be
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User
Consumer Bystander |
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Plaintiff in PL action can sue
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Manufacturer
Retailer and Distributor |
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Can plaintiff recover purely economic losses in PL action?
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No, only personal or property injury or even damage to product itself
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What are the two tests for defective product unreasonably dangerous?
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Consumer expectation test, or what the consumer expected, and
the risk utility test, which asks how the product could be made more safely w/o destroying its utility |
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Three kinds of PLdefects and they are
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Design,
Manufacturing and Warning |
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What is a manufacturing defect?
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When product leaves the manufacturer in a condition more dangerous than it was intended.
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What must plaintiff prove in manufacturing defect cases?
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Plaintiff must show that product did not perform safely as he would expect.
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What is the definition of design defect?
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When all products of that line leave the manufacturer in a defective and dangerous condition.
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What must plaintiff prove in design defect case?
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Defendant could have made product more safely without affecting use or price
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What is a defense to design defect case claim?
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That manufacturer could not have known that product's dangerous propensity.
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What must be shown to establish warning claim in PL context?
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No apparent danger,
High social utillity and latent defect otherwise safe if properly labeled. |
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What makes a plaintiff contributorily negligent in a PL case?
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When they apprehend danger and their conduct was the CAUSE of the unreasonably dangerous conduct taking place.
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Normal wear and tear which causes a product to become defective and unreasonably dangerous is or is not a defense to PL claim
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Wear and tear is not something the manufacturer does, so it is a defense
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Nuisance has elements:
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A substantial unreasonable interference with the use of land
You can recover for pure economic loss in this particular tort. |
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When is it easier to prove nuisance than trespass?
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When land interference does not involve physical entry onto land.
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Defamation has four elements
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Defamatory statement
of or concerning plaintiff with publication to 3p that causes damages to plaintiff |
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In slander what must be shown
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Actual damages (pecuniary) unless slander per se
affects business chastity loathsome disease or crime of moral turpitude |
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What is a major difference between libel and slander
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In libel you do not have to show damages because they are presumed
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Defamation, statement re: public official or figure
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Must show malice, false statement with reckless disregard for its falsity
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Defamation, private person statement need only be
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Made negligently, either in the publishing or the making of the statement
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Defamation has three defenses
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Truth
Consent Privilege (DA, Court, Legislators on floor) Reasonable belief as to truth in something like job context |
