• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/145

Click to flip

145 Cards in this Set

  • Front
  • Back
Who is the P in an intentional tort?
a person with reasonable sensitivity. there are no hyper-sensitive Ps. A child, drunk and crazy can commit and intentional tort
What are the 6 types of intentional torts?
battery, assault, false imprisonment, IIED, trespass to land, trespass to chattels/conversion
battery
4 elements
1. harmful or offensive contact
2. with Ps person
3. cause
4. intent
harmful or offensive
unpermitted by person of ordinary sensitivity
the Ps person
includes anything they are holding or touching or riding in the case of a horse
bodily contact
does not have to be immediate or instantaneous. you can poison someones food that later causes them harmful contact through eating it
Assault
4 Elements
1. D must place P in a reasonable apprehension of battery
2. the battery must be imminent
3. cause
4. intent
apprehension
knowledge! a reason to know or believe- does not have to be absolute knowledge
the unloaded gun
if p knows the gun is unloaded then p is not in apprehension. if p does not know the gun is unloaded then p is in apprehension of a battery
imminent or immediate
words alone do not suffice!
even if words promise action, it is still not immediate.
you must have immediate physical conduct.
words that accompany physical conduct
pay attention to words, they can negate the immediacy
words that promise future harm
the harm is not imminent so no apprehension
False Imprisonment
4 elements
1. D must commit an act of restraint
2. as a result P is confined to a bounded area
3. cause
4. intent
Act of Restraint
P must be harmed of or aware of act of restraint
Omission as an act of restraint
must be a pre-existing obligation on D to facilitate Ps movements
Threats as Acts of Restraint
a threat will suffice- do not have to have physical restraint. threat must operate in the mind of a normal person.
When is a confined area not bounded?
when there is a reasonable means of escape that the P can reasonably discover
When is a means of escape not reasonable?
dangerous, disgusting, humiliating or hidden
is excluding someone from a place false imprisonment?
no, never. just because u cant go inside the clinic to get an abortion does not mean u are being falsely imprisoned!
IIED
4 elements
1. Ds conduct must be outrageous
2. Ds conduct must cause P severe emotional distress
3. cause
4. intent
(negligent infliction of emo distress is different)
IIED standard
can be reckless or intentional
only intentional tort with the word intentional in it, but only one that doesnt require intent
outrageous definition
exceeds all bounds of decency tolerated by a civilized society
what are the hallmarks of outrageousness? (not a complete list)
1. continuous or repetitive in nature
2. D is transportation company or a hotel
3. p is a member of a fragile class of persons
a. child
b. elderly
c. pregnant woman
under IIED what if P is hyper-sensitive?
P can recover if D KNEW about Ps hyper-sensitivity because that would make Ds conduct Outrageous. it is outrageous to deliberately target Ps weak spots
what evidence is required for severe emotional distress?
p does not have to prove any specific damages like lost work or wages, dr bills etc. P just has to describe to jury what happened.
Exam trick for IIED where there is not severe emotional distress....
when the P was mildly annoyed by Ds really horrific conduct
IIED and 1st amendment rights
if you are exercising your first amendment rights your conduct cannot be deemed outrageous in a tort suit
Trespass to Land
2 elements
1. intentional act of physical invasion
2. there must be land
What constituites Physical Invasion?
1. D enters property
2. D throws physical object onto land
Ps intent and physical invasion?
P does not have to be aware he crossed a boundary, but he does have to get to the location on purpose
what are the non physcial forces that are not considered trespass?
1. sight
2. sound
3. smell
What constitutes land?
the earth below and air above in for a reasonable distance.
trespass to chattels/conversion
elements
intentional interference with Ps personal property/stuff
what constituties intentional interference
1. D damages Ps property
2. D takes Ps property away from P
What is the difference between trespass to chattels and conversion
1. Trespass to Chattels has slight harm
2. Conversion has more serious harm and the remedy. Conversion operates as forced sale. So the remedy can be the full value of the item not merely the cost of repair.
Whose vantage point do u look at to determine if it is trespass to chattels or conversion?
the Plaintiffs- the case where they neutered the ladys dog.
Defenses to Intentional Torts
1. Consent
2. Privileges
3. Necessity
Requirements to give consent
Must have legal capacity!
cant be drunk or a child and consent . children can consent to age appropriate invasions of their interests
express consent
an explicit declaration giving D permission to behave in a particular way.
Exception: fraud or duress
implied consent
2 types
1. custom or common usage (getting a hair cut/ physical contact and sports)
2. Ds reasonable interpretation of Ps objective conduct (body language consent)
consent and scope
all consent has scope, if d exceeds scope of consent he will be liable for a tort
3 types of protective privileges
1. self defense
2. defense of others
3. defense of property
what are the 2 requirements of protective privilege?
1. timing; the threat must be imminent or in progress
2. D must demonstrate a reasonable belief that the threat was genuine
what if D makes a mistake?
a reasonable mistake will not destroy a protective privilege
shopkeepers privilege
a shopkeeper can detain suspected shoplifters if reasonable to think they stole something
Privileges and use of force
Rule of proportionality.
can only use deadly force to meet deadly force
cannot use deadly force to defend property
Necessity applies to what 3 torts?
1. trespass to land
2. trespass to chattels
3. conversion
what is public necessity?
D invades property to protect community or group of people
this is an absolute defense
what is private necessity?
in an emergency D invades Ps property to protect himself of his property. this is a qualified defense and D has to pay for actual damage to Ps land. D never liable for nominal or punitive damages. P cannot force D to leave land in emergency.
What happens in an emergency when D acts to protect Ps property but damages Ps other property?
D will not be liable for damage to property
Defamation
3 elements P must Prove!
1. P must show D made defamatory statement concerning P
2. P must show Published
3. P must show Damages (maybe)
what is a defamatory statement?
one that adversely affects the P's reputation.
allegation of purported fact that reflects negatively on character trait of P.
3rd persons detered from working with P.
when is an opinion a defamatory statement?
when it implies an underlying factual basis.
Use the "what are u really saying" test.
Is name calling sufficient as defamation?
NO, never
what to do when a statement is not defamatory on its face?
P can provide context and/or surrounding circumstantial evidence.
What if Ps name is not used in defamation?
It can still be defamatory if the ambiguity can be resolved with additional evidence.
can you defame a dead person?
NO, never
what are the requirements for publication?
to a person other than P or D. republication is when it is repeated- all people are liable for republication. the more people shared with the greater the harm and the greater the damages
what standard is required for publication?
it need not be intentional, it can be negligent.
example: mailing defamatory information to the wrong person and they open it.
Damages maybe?
Damages are presumed for:
1. Libel
2. Slander Per Se
Must put on proof of damages for
1. Slander
Libel
Written, recorded, filmed, captured
Slander Per Se
4 categories
1.statement relates to Ps business or profession
2.Statement that P committed crime of moral turpitude
3. statement imputing unchastity to a woman
4.statement that P has a loathsome disease
Slander
oral or spoken
must show economic harm
hurt feelings or social stigma are not sufficient
Affirmative defenses to defamation...
1. consent
2. truth
3. privileges
Absolute Privilege to defamation applies to
1. spouses
2. officers of the government acting within the scope of their duties
3. members of the media engaged in reporting on public proceedings
qualified privilege to defamation applies to
1. public interest encouraging candor (letters of recommendation)
requirements for qualified privilege to defamation
1. good faith and reasonable belief that the statement is truthful (honest mistake)
2. D must confine himself to relevant topics
Defamation is a matter of Public Concern then P has to prove
1. defamatory statement
2. published
3. damages (maybe)
4. statement was false
5. D acted with fault
level of fault for defamation that is a matter of public concern (public v. private figure)
1. P is a public figure then P must prove D knew it was false and made statement anyway or D acted recklessly and made absolutely no check accuracy (malice)
2. P is private figure then p must show D was negligent and did not behave with reasonable prudence enough to investigate the statement
What are the 4 types of privacy actions?
1. Appropriation
2. Intrusion
3. false light
4. disclosure
appropriation: requirements and exceptions
Ds use of Ps name or image for commercial purposes
exception: newsworthiness
intrusion:
requirements
D invades Ps seclusion in a way thats highly offensive to a reasonable person.
P must be in a place where she has a reasonable expectation of privacy.
False Light: requirements
D makes widespread dissemination of a material falsehood about the P that would be highly offensive to a reasonable person
Policy: Dont Gossip!
No defense if it was made with good faith that it was accurate
Disclosure: requirements and exceptions
widespread dissemination of confidential information highly offensive to a reasonable person.
facts in question have to be truly confidential (no one can know- if some people know its not confidential)
exception: newsworthiness
affirmative defenses to privacy actions
1. consent - defense to all 4
2. absolute and qualified privileges- defenses to false light and disclosure
what are the 4 elements of negligence?
1. duty
2. breach
3. cause (actual and proximate)
4. damages
what are the 2 inquiries for duty?
1. to whom do I we a duty?
2. how much care do i owe?
to whom do we owe a duty?
to foreseeable victims of your carelessness.
Palsgraf: who is the unforeseeable victim?
one who is not in the zone of danger
who are the exception to the zone of danger/palsgraf rule?
rescuers. rescuers who are injured and who are not in the zone of danger can still recover except for firemen!
what is the standard of care? who much care do we owe?
the reasonable prudent person acting under similar circumstances.
what if the defendant has shortcomings, what standard do we use?
the same reasonably prudent person standard applies to all defendants even if they are mentally ill or disabled etc
What are the exceptions to the reasonably prudent person standard?
1. superior knowledge
2. physical characteristics
what standard applies to a person with superior knowledge?
if a D has superior knowledge about any aspect of the case (even a nugget of info) then the standard becomes a reasonably prudent person with that superior knowledge
what standard applies to a persons physical characteristics?
the reasonably prudent person always has the same physcial characteristics as the defendant.
Prima Facie Case for Intentional Tort
1. act by defendant
2. intent
3. cause
transferred intent is limited to...
can only be used if both the tort intended and the tort that results are:
1. assault
2. battery
3. false imprisonment
4. trespass to land
5. trespass to chattels
general rule of transferred intent
1. D intends to commit tort against A but instead
a. commits different tort against A
b. commits same tort as intended but against B
c. commits different tort against B
when can the defense of self-defense, defense of others or defense of property be used?
when the tort is either being committed now or is about to be committed
CANNOT be for a tort that was already committed
what is the rule with regard to duty to retreat/attempt to escape for self-defense, defense of others and defense of property?
there is a duty to retreat before deadly force can be used, if retreat can be done safely.
there is no duty to retreat in your own home.
What are the 6 special duty scenarios
1. children
2. professional
3. premises liability
4. statutory standards of care
5. duties to act affirmatively
6. negligent infliction of emotional distress
Duty owed by children 4-18
a.Children 4-18 owe the care of a hypothetical child of similar age, experience and intelligence acting under similar circumstances
b.This is a subjective standard unlike the reasonably prudent person that is objective
duty owed by child engaged in adult activity
same as a RPP
required that they operate a motor vehicle
duty owed by professionals
a.Dr or other pro owes her patients/clients the degree of care that would be exercised by the average member of that profession providing similar pro services
duty owed to undiscovered trespasser
none, they are palsgraf- unforeseeable!
duty owed to discovered/ anticipated trespasser
if possessor knows or should know then they need to protect against
1. artificial/manmade
2. highly dangerous
3.concealed or hidden
4. possesor knew about it in advance
aka: known manmade deathtraps
duty owed to licensee
duty to protect from
1. concealed hazardous condition
2. known about in advance
(dont have to be death traps like required for discovere trespassers)
duty owed to invitee
duty to protect against
1. concealed hazardous condition
2. known about in advance or discoverable through reasonable investigation
firemen and cops
cannot recover for injury due to
-inherent risk of their job!
Child trespassers/
Attractive nusiance
1. is there something on land that lures children in?
2. is it something child not likely to perceive risk of?
what are the 2 ways to avoil liability for premises liability?
1. fix, eliminate or repair hazard
2. Warn them about it!
cuidado piso mojado!
What is Negligence Per Se? When is it used?
It is when a statute provides for a criminal penalty and the P wants to use the statute to establish the duty of care and breach of the duty
when can a statute be borrowed and treated as negligence per se?
2 part test
1. P is member of class of persons statute is intended to protect
2. P can show that the injury is in the class of risks meant to be protected
AKA CLASS OF PERSON CLASS OF RISK
When is a statute NOT TO BE borrowed even if it meets the 2 part test?
2 instances
1. if complying with the statute would be more dangerous than violation.
example: D swered across double line so as not to hit child. If D was not allowed to cross line he would have hit child.
2. compliance would be impossible.
example: impossible for D not to cross line when he had a heart attack!
is there a duty to act affirmatively? to rescue?
NO - unless there is a pre-existing relationship or if D created the danger
pre-existing relationships that create a duty to act include
1.Formal legal one
2.Business owner and invitee
3.Common carrier and passenger
4. Innkeeper and guest
5.Employer and employee
6.Family member and family member
to what extent is there a duty to rescue
rescue reasonable under the circumstances
if no duty to rescue but u do it anyway what happens if u make an error?
u are liable!
what are the requirements for negligent infliction of emotional distress?
D must commit negligent act
P must suffer emotional harm NOT physcial harm
what are the 3 scenarios for NIED
1. near miss
2. bystander
3. relationship
Near Miss
1. Ds negligent act put P in a zone of danger
2. P must prove a subsequent physcial manifestation of distress
-heart attack, miscarriage, pooping pants
Bystander
1. D causes serious bodily injury to X
2. P is emotionally upset beause X is hurt
P must prove
1. P is closely related to X
2. P was there and saw X get hurt
Relationship Cases
1. P and D have pre-exisitng connection
2. highly foreseeable emotional distress if there is carelessness int he conduct of the relationship
-dr tells patient they are going to die when they arent
2 requirements of Breach
1. P must identify specific wrongful conduct that D engaged in
2. and say WHY it was wrongful
Res Ipsa Locquitor
2 part test
1. P has to convince us that the accident that occurred is ordinarily associated with negligence
2. the accident must be shown to ordinarily be due to the negligence of someone in Ds position
-the injury causing object was in control of D at the time of the accident
what happens if P meets 2 part res ipsa test?
goes to the jury!
2 types of cause
factual and legal
aka
actual and proxmate
factual cause
linkage between the breach and the injury!
A cause not The cause
Test:
The but for test!
what are the 2 situations where we do not use but for?
1. merged causes scenario
2. unascertainable causes
Merged Causes Scenario
2 fires started by 2 people
use the Substantial Factor test
Could EACH BREACH have caused the INJURY on their OWN? if yes they are substantial factors and jointly liable
unascertainable causes
when there are too many bullets or manufacturers of drugs and no way to ascertain who the proper defendant is the BURDEN SHIFTS to the defendant to explain why their BREACH did not CAUSE THE INJURY
if neither D can carry the shifted burden then they will BE JOINTLY LIABLE
legal/proximate cause
1. P suffered injury that was foreseeable
2. Injury was foreseeable consequence of Ds breach
Direct Cause Fact Patterns
breach followed almost instantaneously by an injury
continuous uninterrupted chain of events
exception to direct cause fact patterns
Freakish and Bizarre Results
hitting car full of dynamite
Indirect Cause Fact Patterns
D commits Breach then other events will occur until later the harm/injury happens
4 types of indirect cause where the D will be liable!
1. Interveneing Medical Negligence
2.interveining negligent rescue
3. interveining protection or reaction forces
4. Subsequent Disease or Accident
Indirect Causes That are not of list of 4
1. look at breach
2. ignore all events and look at the outcome
3. was the outcome expected when looking at the breach?
If NOT FORESEEABLE NO LIABILITY! example- shrimp and slipping in puke
Eggshell Plaintiff
take them as u find them!
this applies to every tort!
so if u punch someone who already has a broken eye socket and their eyeball falls out u are liable!
contributory negligence v. comparative/pure comparartive negligence v.
modified/partial comparative negligence
contributory: if u contribute at all u cant recover anything
comparative: P and Ds get assigned a %
modified comparative: if P is over 50% then P does NOT recover
strict liability- 3 types
1. animals
2. abnormally dangerous activity
3. product
Animals and strict liability
1. domestic animals:
p must prove negligence unless d knew of the animals dangerous propensities
2. wild animals:
no matter the precautions, if u keep one u are liable
test for abnormally dangerous activity
2 parts
i.It creates a foreseeable risk of serious harm even when reasonable care is exercised
ii.The activity is not a matter of common usage in the community
Look For:
explosives, toxins, nuclear energy
When looking a products liability whjy do u want to read the question carefully BARBARA?
if it says shes suing negligence then analyze negligence
if it says she suing strict liability then analyze strict liability
Strict Product Liability Test
1. Merchant
2. Product is defective
3. product has not been altered since it left Ds hands
presumed if product moved in ordinary channels of distribution
4. P must have been making a foreseeable use of the product at the time of the injury
3 types of defects
1. Manufacturing
departs from intended design/different from all others made
2. Design
there is a safer,cost effective, practical design
failure to conform to gov regulations is proof of defect
3. Warning/Information
risks that cannot be designed away that are not obvious to product users require an ADEQUATE warning or instructions
Defenses to Strict Liability Torts
Carelesness, Stupidity, cockiness by P can all reduce award to P but D is still strictly liable
What type of harm constitutes a nuisance?
a substantial and unreasonable interferenece with someone's ability to enjoy their own land
Objective test:
must be annoying, offensive or oppresive to normal person
What type of test is used to determine nuisance?
BALANCING TEST- D can use his land the way he wants but not to the degree that it makes Ps life miserable
LOOK for answers that include a balancing of interests
Vicarious Liability
4 relationships
1. employer/employee
2. hiring party/independent contractor
3. owner of car lends car
4. parent/child
Employer/employee liability exceptions
1. not in scope of employment
2. job authorizes use of force
3. job generates friction
4. tort committed by employee trying to serve employers interest
hiring party/independent contractor liability exceptions
business owner hires IC to do work on premises and he harms and Invitee
Owner lends car- liability?
if u lend car out for hire/to do errands for u then u can be vicariously liable because u become principle agent
Parent/Child Liability?
Exceptions?
there is none
BUT
P can be liable for their own recklessness if they leave a gun on table and C uses it to shoot someone - P breachs duty to others
Co-Defendants- when can a co-defendant get back his money when he paid a judgment alone?
1. when he is vicariously liable he can get indemnity from the active tortfeasor
2. any non-manufacturing party can get indemnity from the manufacturer in strict products case
Loss of consortium is available for ( the 3 Ss)
Spouse of V
1. loss of services
2. loss of society
2. loss of sex