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111 Cards in this Set
- Front
- Back
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Intentional torts to the person
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- Battery
- Assault - False Imprisonment - Intentional Infliction of Emtional Distress |
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Torts to property
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- Trespass to Land
- Trespass to Chattels - Conversion |
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Elements of Battery
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- Harmful or offensive contact
- To plaintiff's person - Intent - Causation |
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Elements of Assault
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- Act by D creating reasonable apprehension (knowledge)
- Of immediate harmful or offensive contact - Intent - Causation |
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Effect of words to create assault
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Words alone are not sufficient; must be coupled with conduct; can negate apprehension
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Elements of False Imprisonment
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- An act/omission by D that confines or restrains
- To a bounded area (no reasonable means of escape known to plaintiff) - Intent - Causation |
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To claim false imprisonment, plaintiff must show
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- Aware of
OR - Suffered conrete harm |
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Elements of Intentional Infliction of Emotional Distress (IIED - a fallback)
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- Act by D amounting to extreme and outrageous conduct
- Intent or Recklessness - Causation AND - Damages: sever emotional distress |
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Hallmarks of IIED
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- conduct continuous/repetitive
- D as an inkeeper/common carrier - Plaintiff is a member of a fragile class |
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IIED is the only tort to the person that requires
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Damages (severe emotional distree - proof of injury NOT required)
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Causation in bystander cases: plaintiff may recover by showing (3)
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1. Present when the injury occurred
2. Close relative to injured person AND 3. D knew facts 1.&2. |
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Elements of Trespass to Land
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- Physical invasion of plaintiff's real property
- Intent (to enter that particular land) - Causation |
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Trespass of intangible matter (i.e. sound, smell) more likely to give rise to claim of
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Nuisance
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Property re: trespass includes
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Surface, Airspace, and Subterranean space for reasonable distance
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Elements of Trespass to Chattels
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- An act by D that interfers with Plaintiff's right of possession
- Intent - Causation - Damages |
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Elements of Conversion
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- Act by D that interfers with plaintiff's right of possession
- Interefence is Serious enough to require D pay full value for chattel - Intent - Causation |
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Subject matter of conversion
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Tangible and intangibles reduced to physical form (i.e. promissory note)
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Potential plaintiff's in an action for Conversion
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Anyone with possession or the immediate right to posession
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Remedies for Conversion
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Damages of FMV at time of conversion or possession (replevin)
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Defenses to intentional torts (3)
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1. Consent
2. Self-defense 3. Necessity |
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Two inquiries to be made for consent
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1. Valid
2. Did D stay within the bounds of the consent |
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Implied consent is determined by what standard
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An objective standard; plaintiff's subjective thought is not relevant
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Three questions to ask when dealing with Self-Defense
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1. Is the threat imminent
2. Does D posses a reasonable belief in the toritous invasion AND 3. Was the proper amount of force used to counter (rule of symetry) |
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Self-defense of property and hot pursuit
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May use force in hot pursuit of another who has tortiously dispossed the owner of chattels - viewed as still being committed
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Hot pursuit defense of property defense superseded when
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Actor has a privilege to enter on the land of another b/c of necessity or recapture of chattels
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Restriction on force to recapture chattels
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Limited to recapture from tortfeasor or some third party with knowledge; not from an innocent thrid party
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Defense of necessity is limited to what kind of torts
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Property torts only
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Public Necessity
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Arises when D invades plaintiff's property in an emergency to protect community as a whole or a significant group of people
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Private Necessity
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D ivades plaintiff's property in an emergency to protect an interest of his own
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Private Necessity - liability for damages
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1. Must pay for actual damages caused
2. Immunitiy from nominal/punitive damages |
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Scope of Private Necessity
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As long as emergency continues, D may remain in a position of safety on plaintiff's land
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Elements of Defamation
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- Defamtory langugage
- "Of or concerning plaintiff" - Publication - Damage to plaintiff's rep. |
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Two additional elements if defamation involves a matter of Public Concern
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- Falisty
- Fault |
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A statement of opinion is actionable as defemation only if it appears
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To be based on facts
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Defamation by inducement and innuendo
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Plaintiff may plead additional facts to establish defamtory meaning
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Defamation's living person requirement
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Defamation of a deceased person is not actionable
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Group defemation distinguised by size
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- Small: each can allege "of and concerning"
- Large: none can allege |
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Publication requirement for defamation
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It is the intent to publish that is the requisite intent
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Type of damages for slander
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Plaintiff must prove special damages
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Type of damages for libel
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General damages presumed; no need to prove special damages
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Slander per se categories (4)(i.e. no need to prove up special damages)
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1. Adversely reflect on one's conduct in a business/profession
2. One has a loathsome diease 3. One is /was guilty of a crim involving moral turpitude OR 4. A woman is unchaste |
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No cause of action for defamation against a statement of public interest that is...; consider instead
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True; IIED or invasion of right of privacy (unless plaintiff is a public figure)
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For defamtion a public figure must also prove
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Malice
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Define Malice for purposes of defamation claim by a public figure
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- Know the statement was false
OR - Reckless Disregard for falsity |
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Statements involving matter of public concern against a private individual only need to show
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Negligence regarding falsity
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Defenses to defamation
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1. Consent
2. Truth (in constitutional defamation cases - not common law cases) |
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Qualified privilege of speech based on
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Circumstances, purpose, or occasion of speech
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Invasion of Right to Privacy (4) types
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1. Appropriation of Plaintiff's picture of name
2. Intrusion upon plaintiff's affairs or seclusion 3. Publication of facts placing plaintiff in false light 4. Public disclosure of private facts about plaintiff |
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Appropriation of Plaintiff's picture of name
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Unathorized use for defendant's commercial advantage
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Intrusion upon plaintiff's affairs or seclusion
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Must be private affiars; Prying or intruding that would be objectionable to a reasonable person
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Publication of facts placing plaintiff in false light
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Attributing views to plaintiff he doesn't hold or actions he didn't take; must be objectionable to a reasonable person
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Public disclosure of private facts about plaintiff
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Accurate but confidential information (i.e. medical records); widespread dissemination about plaintiff that would be objectionable to the average person; newsworthy exception
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Duty of care extends to
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All foreseeable plaintiffs under the circumstances (including rescuers, viable fetuses, & intended beneficiaries of economic transactions)
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Standard of care
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Reasonable person - gotta do as a good as a reasonably prudent person
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Particular standards of care
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- Professionals
- Children - Common Carriers & Innkeepers - Emergency actors |
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Standard of care among professionals
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Custom of profession sets the standard (avoid reasonable)
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Standard of care among childen
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Of like age, education, intelligence, and experience; UNLESS engaged in adult activities
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Standard of care among Common Carriers and Innkeepers
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Plaintiff must be a customer; Held to a high degree of care; Liable for slight negligence
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Duty of possessor of land to those off premises
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No duty regarding natural conditions; duty for unreasonably dangerous artifical conditions; duty for trees on land extends to damages off land
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Duty of possessor land to those on premises - status of entrant
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- Trespassers
- Infant Trespassers - Licensees - Invitees |
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Undiscovered trespassers
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Always lose
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Discovered or anticipated trespassers
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Care of reasonable person; Known man made death traps
- Concealed - Artifical conditions - Known to the landowner - Risk of death/serious bodily harm |
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Attractive Nuisance Doctrine - infant trespassers must show (4)
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1. Dangerous condition on land owner should know of
2. Owner knows/should children frequent the condition 3. Condition is likely to cause injury 4. Expense of remedy is slight compared with magnitude of risk |
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A licensee on property is
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A social guest; enters land with permission for his pwn purpose/business
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An invitee enters property how
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In response to invitation from landowner.
- For a purpose connected with the business of the landowner OR - As members of the public where land is held open to the public |
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Duty owed to licensees
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Protect from all known traps
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Duty owed to invitees
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Protect from all reasonably knowable traps
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A statute's specific duty may replace the more general common law duty of care if (4)
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Class of Person
Class of Risk 1. It provides for a criminal penalty 2. It clearly defines the standard of conduct 3. Plaintiff is within the protected class AND 4. It was designed to prevent the type of harm suffered by plaintiff. |
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General fule relating to firefighters and FL distinction
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No recovery where person faces inherent danger in job; FL treats them as invitees.
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When to not borrow a staute
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- If compliance would be more dangerous (cross double yellow lines)
- If compliance would not be possible (heart attack while driving) |
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Effect of violation of borrowed statute
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Negligence per se: a conclusive presumption of duty and breach
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Two instances where physical injury not required for NIED
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1. Erroneous report of a relative's death
2. Mishandling of a relative's corpse |
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Negligent Infliction of Emotional Distress
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- D creates a foreseeable risk of physical injury to plaintiff
- by threat of physical impact OR emotional distress manifesting physical symptoms (objectively measurable) |
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Zone of Danger requirement for NIED
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The threat must be directed at plaintiff or someone in her immediate presence
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Foreseeability factors establishing liability for NIED (3)
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1. Closely related parties
2. Plaintiff was present at the scene OR 3. Plaintiff observed or perceived the injury |
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Two approaches to NIED physcial impact requirement
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1. Zone of Danger
2. Foreseeability Factors |
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Affirmative Duties to Act (3)
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1. Assumption of duty by acting
2. Peril due to D's conduct 3. Special relationship between parties (common carriers, innkeepers) |
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In discussing Breach include
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The facts and the argument - link the action; more specific the duty the less you need to discuss the breach
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Res Ipsa Loquitur - Plaintiff to show (2)
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1. Accident of type not normally to occur unless someone was negligent
2. The negligence is attributable to the D |
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To show negligence attributable to the D in a Res Ipsa claim
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Establish the instrumentality was in D's exclusive control
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Effect of establishing Res Ipsa Loquitur
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No directed verdict for D; but plaintiff may still lose if inference of negligence is rejected
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Grant D's motion for a directed verdict where there is no showing of (2)
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1. Res Ipsa
OR 2. Evidence of some other breach of duty |
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Plaintiff moving fore a directed verdict
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May do so, but will almost always be denied; usually still a question of causation
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Actual Cause (causation in fact) tests (3)
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- "But for" test
- Joint causes: substantial factor test - Alternative causes approach |
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Joint Cause approach
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Both parties caused the harm; D's conduct is the cause in fact it it was a substantial factor
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Alternative Causes approach
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Both parties acted negligently, but only one caused the harm
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Proximate Cause (legal causation)
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Liabile for all harmful results that foreseeable ("plaintiff will prevail IF it was reasonably foreseeable that...")
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Foreseeable results caused by foreseeable intervening forces
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D liabile
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Common dependant intervening forces
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- Negligence of rescuers
- Subsequent med mal - Injuries caused by another reacting to D's actions - Efforts to protect the person of property one oneself or another - Subsequent disease caused by weekend condition - Subsequent accident caused by original injury |
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Foreseeable results caused by unforseeable intervening forces
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D usually liable
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Unforeseeable results caused by forseeable intervening forces
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D not liable
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Unforeseeable results caused by unforseeable intervening forces
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D not liable
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Punitive damages available where
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D's conduct is "wanton and willfull"
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Cap on punitive damages
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3x actual damages, up to 1 million (except no limit where D was drunk)
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Comparative Negligence
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Weigh plaintiff's negligence and reduce damages accordingly; many bar recovery where plaintiff more than 50% liable
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MA is a Pure comparative negligence state
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Will allow recovery even where plaintiff is over 50% at fault
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Liability for wild animals
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Strict liability
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Liability for domestiv animals
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Not strict UNLESS knowledge of dangerous propensity
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Types of product defect (3)
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1. Manufacturing defect
2. Desgin defect 3. Inadeqaute warning |
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Manufacturing defect
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Product emerges different and more dangerous b/c of the difference; must anticipate reasonable misuse
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Design defect
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There exists a better, hypothectical alternative design that is
- safer - cost neutral - practical |
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Inadequate warning
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Danger must not be apparent
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Noncompliance with governemnt safety standards
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Will establish defect
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Compliance with government safety standard
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Evidence, but not conclusive, not defective
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Unavoidably unsafe products - not liable if
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- The danger is apparent
AND - No safer way to make the same product |
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Doctrine of Resondeat Superior
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Vicariously liable for tortious acts committed within the scope of employment
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Intentional Torts are usually held not within the scope of employment - 3 exceptions
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1.Force is authorized in the employment (bouncer)
2. Friction is generated by employment (bill collector) 3. The employee is furthering the business of the employer (kicking out rowdy customers) |
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Vicarious liability for independant contractors
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Generally not liable
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2 exceptions where principal can be vicariously liable for toritous acts of an independant contractor
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1. Engaged in inherently dangerous activity
2. Non-delegable duty |
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Vicarious liability for auto owner of driver
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Generally not liable
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Parent's liability for their children's toritous conduct
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No vicarious liability
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