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134 Cards in this Set
- Front
- Back
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PFC for all Intentional Torts
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1. Volitional act by D
2. Intent (Specific, general, or transferred. Incapacity NOT a defense) 3. Causation |
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Battery
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1. Intentional harm or offensive contact
2. To P's person/anything closely connected to it 3. Causation |
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Assault
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1. Intentional Act by D creating r/able apprehension in P
2. Of immediate harm or offensive contact to P's person 3. Causation. |
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False imprisonment
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1. Act or ommission by D that confines or restrains P
2. to bounded area 3. Intent 4 Causation |
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IIED
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1. Extreme and outrageous conduct
2. intent or recklessness 3. Causation 4. Damages (must be severe emotional distress) |
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Trespass
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1. Physical invasion of P's real property
2. Intent 3. Causation |
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Trespass to Chattels
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D's act interferes w/ P's right of possession
2. Intent 3. Causation 4. Damages |
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Conversion
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1. D's act substantially interferes w/P's right of possession in a chattel
2. Interference is so serious it warrants requiring D to pay full value 3. Intent 4. Causation |
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Remedies for conversion
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1. FMV
2. Possession/replevin |
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Defenses to ITs
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1. Consent
2. Self Defense 3. Defense of others 4. Defense of property 5. Recapture of chattels 6. Privilege to arrest 7. Necessity |
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Consent
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- D's actions must stay w/in scope of valid consent.
- Exceptions to express or actual consent: 1) D knew of and took advantage of mistake 2) Induced by fraud if goes to an essential matter 3) Obtained by threats of present harm - Implied 1) apparent (inferred from custom and usage, P's conduct) 2) Implied by law (when necessary to save a person's life, other imp interest in pers/prop) - Capacity required |
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Elements of S/D
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- Person r/ably believed she is being or is about to be attacked.
- May use such force as r/ably necessary to protect // injury |
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When is S/D available?
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1. Need not attempt to escape unless DF. Duty to retreat before using DF if it can be done safely, actor not in home)
2. Not available to initial aggressor 3. May extend to 3P injuries caused unless deliberate 4. R/able mistake to existence of danger allowed |
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Defense of Others (D/O)
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- May defend other if r/ably believe other person could have used S/D.
- R/able mistake re: whether other is being attacked or has right to S/D - As much force as permissible w/ S/D |
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Defense of Property (D/P)
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- Request to desist unless futile
- Doesn't continue, ends w/ tort - Not available w/ person w/priv - Mistake NOT allowed re: privilege, unless D r/ably believes no priv bc of P conduct - No DF unless invasion = serious threat of bodily harm |
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Recapture of chattels (R/C)
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- May only use peaceful means to recover a chattle unless hot pursuit
- Must demand to return unless futile, dangerous - Recap only from 3P who knows/should have known tortiously obtained - No mistake allowed - R/able force but not DF |
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R/C w/ entry on land to recover chattels
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- w/in r/able time and in r/able manner.
- must demand return first |
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R/C on land of innocent party
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- Chattel owner may enter and reclaim at r/able time, in peaceful manner after landowner gets notice and refuses to return.
- Chattel owner liable for damages caused by entry |
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Privilege to Arrest (P/A)
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May enter another's land to effect the arrest.
Arrestor liable for subsequent misconduct |
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Mistake w/ P/A
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- In misdemeanor, priv'd only if arrestor witnesses br/peace.
- In felony, a police officer may make a r/able mistake. Citizens can make r/able mistake re:identity, but not whether felony occurred. |
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How much force w/P/A?
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- Misdemeanor, No DF. Just what's necessary
- Felony - Force necessary, DF only when suspect threat of serious harm. |
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Necessity
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- Person may interfere w/real or personal property of another when 1) r/ably and apparently necessary to avoid threatened injury and 2) threatened injury is substantiall more serious than invasion
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2 Types of Necessity
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1. Public: Do not have to pay for damages to burdened property.
2. Private: actor must pay for damages to burdened property |
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Elements of Defamation
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1. Defmatory language
2. Of or concerning P 3. Publication 4. Damage to P's reputation |
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Defamatory Language
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- Tending to adversely affect one's reputation
- Inducement and innuendo - if no defamation on it's face, P may plead add'l facts as to inducement to est defam meaning by innuendo - Living person or corporation |
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Defamation "of or concerning P"
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- R/able person would understand statement referred to P.
- Groups: if all members of a small group = liability. - If re: large grou, no member can recover. - If re: some members of small group, individuals prove r/able person would interpret statement as re:P. |
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As to publication, who's liable?
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- Primary publishers, speaker/author and repeaters
- Secondary publishers = one selling papers or playing tapes only if knows/should know of defam content. |
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Damage to P's reputation in defamation cases
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Libel = No special damages req
Slander = Special damages unless slander per se |
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Slander Per Se
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1. Reflect's one's conduct in biz or professions
2. Loathesome disease 3. Guilty of crime of moral turpitude 4. Woman is unchaste |
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Libel
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Permanent, wide distro, deliberate.
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Defam re: matter of public concern
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Must also have
- Falsity - Fault on D's part. |
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When fault is at issue in Def, difference btw pub and priv figure
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Public = P must show malice
Private = P must show negligence |
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Defenses to Defamation
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1. Consent
2. Truth 3. Absolute privilege 4. Qualified privilege |
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Absolute privilege
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1. Court proceedings
2. Legislators in debate 3. Federal executive officials 4. Compelled broadcasts 5. Between spouses |
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Qualified privilege
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1. Reports of official proceedings
2. Statements in publisher's interest 3. Statements in recipient's interest 4. Statements in common interest of recipient & publisher YOU LOSE PRIVILEGE IF the statement is not w/in scope, or if speaker acted with malice. |
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Invasion of Right to Privacy
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1. One of the following:
A. Appropriation of P's name or likeness for D's commercial advantage B. Intrusion upon P's private affairs/seclusion C. False light publicatoin D. Public disclosure of private fact 2. Causation (D conduct proximate cause of invasion) 3. Damages (ED enough) |
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Intrusion upon P's private affairs/seclusion AND Public disclosure of private facts
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Would be objectionable to r/able person
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False light publication
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- Attributes to P views he does not hold/actions he did not take
- False light is objectionable to r/able person in circs - If matter of public concern, must show D had malice |
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Defenses to Invasion of Right to Privacy
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- Consent and defamation privileges
- Truth, GF, inadvertence and lack of malice are NOT defenses |
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Intentional misrepresentation
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- Affirmative misrep of material fact
- Scienter - Intent to induce D to act or abstain in reliance upon misrep - Causation (actual justifiable reliance) - Damages (MUST BE PECUNIARY) NO DEFENSES! |
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Duty of care: F/able
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Zone of danger - RP would have foreseen a risk of injury to P under the circumstances
Intended bennies of economic transaxn are f/able Ps |
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Duty of Care: Rescuers
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F/able P if D negligently put himself or 3P in peril
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Duty of Care: Prenatal Injuries
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- Duty to fetus at viability
- Child may NOT recover for wrongful life (??) - Parents may recover for wrongful birth/pregnancy - addt'l medical expenses, pain and suffering from labor |
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Basic Standard of Care
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- D's conduct measured // what a r/able person would do
- Mental deficiencies and inexperience NOT considered - But, RP considered to have same physical characteristics as D |
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Standard of Care: Professionals
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Knowledge and skill of a member of the profession in good standing in similar communities
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Standard of Care: Kids
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Child of like age, edu, intelligence, and experience
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Standard of Care: Common Carriers and Innkeepers
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Very high standard; liable for slightest negligence
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Standard of Care: Car driver to guest
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Ordinary duty of care
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Bailment Duties Owed by Bailor
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- For gratuitous bailment, bailor must inform of know, dangerous defects in chattel
- For bailment for hire, bailor must inform of chattel defects of which he should be aware. |
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Bailment Duties owed by bailee
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- Sole benefit of bailor (low standard)
- Sole benefit of bailee (high standard) - Mutual benefits (ordinary standard) |
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standard of Care in an Emergency
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- Act as a r/able person would under circs
- Do not consider emergency if D created it. |
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Duty of Possessor of Land to Those Off Premises
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- No duty to protect from natural conditions
- Duty for unr/ably dangerous artificial conditions or structures abutting adjacent land - Must carry out activites on property to avoid unr/able risk of harm to those outside. |
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Duty to Trespassers
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- No duty to undiscovered trespassers
- Warn/make safe known concealed, artificial conditions w/ risk of death/serious bodily harm if known/anticipated trespassers - Use r/able care w/activities on land |
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Attactive Nuisance
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Duty to avoid r/ably f/able risk of harm to kids from artificial conditions.
1. Owner knows or should know of danger 2. Knows or should know children frequent 3. Condition likely to cause injury bc of child's inability to appreciate the risk 4. Expense of fixing is slight compared to magnitude of risk |
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Licensees
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- Enters w/possessor's permission for her own purpose or biz and not for possessor's benefit
- Duty to warn of known dangerous conditions licensee is unlikely to discover that = unr/able risk of harm - Exercise r/able care in activities on prop |
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Invitees
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- Enter land for purpose connected w/biz of owner or bc land is held open to the public
- Make r/able inspections to discover non-obvious dangerous conditions and make them safe |
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Users of Recreational Land
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- Landowner permits public to use land for recreation w/o charging them
- Not liable for injuries unless owner willfully and maliciously failed to guard against/ warn |
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Duties of Lessee
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General duty to maintain premises
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Duties of lessor
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Warn of existing defects of which he is aware or has reason to know and lessee is unlikely to discover.
If LL covenants to repair he is liable for unr/ably dangerous conditions. Iff volunteers to repair and does so negligently, LIABLE. |
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Duties of Vendor of Realty
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Disclose to the vendee concealed, unr/ably dangerous conditions of which vendor knows or has reason to know and vendee is unlikely to discover
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Duty re: NIED
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D creates f/able risk of physical injury to P by
1. Causing a threat of physical impact that leads to ED or 2. Directly causing severe ED that by itself is likely to resut in physical symptoms |
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NIED physical injury requirement
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Must be some physical injury unless it's the erroneous report of relative's death or the mishandling of a relative's corpse.
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NIED zone of danger req.
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If P's distress is caused by threat of physical harm, the threat must be directed at P or someone in her immediate presence.
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Affirmative Duties to Act
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- Assumption of Duty by Acting
- Creator of the Peril - Special relationship btw Parties |
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Special relationship btw parties creating aff duty to act
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- Common carriers
- Innkeepers - Shopkeepers - Parent-child - Others that gather the public for profit - Places of public accommodation - Duty to control 3P if there's ability and authority and D knows should know likely to commit acts rquring this control |
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Breach of Duty
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- Custom or Usage: establishes standard of care, does not control whether conduct amounted to negligence.
- Violation of statute - Res Ipsa Loquitor |
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Res Ipsa Loquitor
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- Very occurrence of the event shows breach
- Accident causing injury is of the type that would not normally occur absent negligence - D had exclusive control of instrumentality causing injury |
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But for test of actual causation
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Injuy would not have occurred by for the D's act
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Substantial factor test actual causation
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When several causes bring about injury, D's act is substantial factor in causing the injury
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Alternative Causes Approach
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- Two acts, only one of which causes injury, but unknown which one
- Burden shifts to Ds and each must show his act not actual cause |
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Proximate cause in direct cause cases
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Uninterrupted chain of events from negligent act to P's harm.
D liable for all f/able results despite unusual manner or timing |
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Proximate cause in indirect cause cases
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Affirmative intervening force comes into motion after D's negligent act and combines with it to cause P's harm.
D liable for f/able results from f/able intervening forces Usually liable for f/able results from unf/able forces. |
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Common dependent intervening forces
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- Medical malpractice
- Negligent rescue - Defense of self or property - Another reacting to D's actions - Subsequent disease from weakened condition - Subsequent accident caused by original injury |
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Independent intervening forces
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- Not a natural response to a situation D created
- Negligent acts, crimes, and ITs of 3Ps - Acts of God - F/able if D's negligence increased risk of harm from these or D knew of them |
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Damages
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- Personal injury
- Property damage - Punitive damage - Duty to mitigate - Collateral source rule |
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Defenses
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- Contributory negligence
- Assumption of risk - Comparative negligence |
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Contributory Negligence
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- Minority/CL rule
- Barred P's recovery. - Last Clear Chance rule allows recovery - Imputed to 3P only when court could find P vicariously liable for 3P's negligence |
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Assumption of risk
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- P knew of risk and voluntarily proceeded despite risk
- Implied or Express. - risk must be one that average person would appreciate |
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When assumption of risk doesn't apply
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When P had no available alternative
Fraud Force Emergency Members of statutorily protected class |
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Comparative negligence
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- Trier of fact weighs P's negligence and reduces damages accordingly
- No Last Clear Chance Doctrine - Pure = no cap on P's portion - Modified = P doesn't recover if contributed more than 50%. |
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Strict Liability
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- D has absolute duty to make safe
- Br/ (due care irrelevant) - Actual and Proximate Cause - Damage to P's person or prop |
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Trespassing Animals and S/L
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Owner is S/L for r/ably f/able damage from trespass of his animals.
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Personal injury S/L
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- S/L for wild injuries, but not for trespassers unless D negligent.
- P can't have brought about injury. - No S/L for domestic animals unless owner knows of dangerous propensity |
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Ultra-hazardous/abnormally dangerous activities
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- Activity involves risk of serious harm
- Activity cannot be performed w/o risk of serious harm - Not commonly done in the particular community |
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Scope of duty owed w/ S/L
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Absolute duty to all f/able Ps.
Make safe the dangerous characteristics |
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Defenses to S/L
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- Contributory negligence
- Comparative negligence - Assumption of risk |
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Products Liability
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Defect present when product left D's control
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Types of Defects
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Manufacturing - single unit is diff & more dangerous
Design Inadequate warning |
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Proving a manufacturing defect
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Show product failed to perform as safely as an ordinary consumer would expect.
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Proving a design defect
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Show D could have made the product safer without serious impact on product's price or utility
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Proving a defect w. noncompliance with gov safety standards
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Noncompliance establishes defect.
Compliance doesn't establish that it's not defective. |
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Scientifically unknowable risks
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No Liability
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Unavoidably unsafe products
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Not liable if danger apparent
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Products Liability - Liability based on intent
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- D intended the consequences or knew they were substantially certain to occur.
- Compensatory and punies Defenses - same as IT |
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Products liability - liability based on negligence - DUTY
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Duty is to any f/able P, not thieves. Owed by manufacturers, wholesalers, and retailers. But, W and R meet duty w/inspection
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Products liability - liability based on negligence - Breach
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D's negligent conduct led to supplying the defective product.
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Products liability - negligence - Causation
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Intermediary's neg failure to discover defect does not supersede orignial manufacturer's neg
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PL - Neg - Damages
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Physical injury or property damage req'd, no purely economic loss
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PL - Neg - Defenses
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Same as general negligence, disclaimers ineffective
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Liability based on SL
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Duty - commercial duty to supply safe products to all f/able Ps.
Br/ - defect makes product unr/ably dangerous Causation - actual or proximate Damages - no econ loss, requires physical injury, prop damage Defenses: Ass of risk, comp neg, cont neg |
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Implied warranties of merchantability & fitness
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Two warranties: Merchantibility and Fitness for a particular purpose
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Merchantability
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Goods are generally fit for their ordinary purposes
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Fitness for a particular purpose
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S knows/has reason to know particular purpose for goods and B relies on S's skills and judgment in selecting
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Causation in warranties
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Same as general negligence
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Damages in warranties
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Personal injury, property damage, and purely economic loss
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Defenses in warranties
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Ass of risk, cont neg, failure to notify of br.
Disclaimers no good for PI, but okay for econ losses |
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Express warranty
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- Affirmation of fact or promise that forms part of basis of bargain.
Br/ show only that product did not live up to warranty Causation, damages, and defenses - implied warranties Disclaimers- only if consistent w/ warranty |
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Misrepresentation of fact
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Seller liable for misrep of facts re: product where statement was of material fact re: quality or uses of goods, or seller intended to induce reliance by the buyer
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Misrep of fact reqs
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Justifiable reliance required
Causation (actual cause shown w/relince, proximate cause same as S/L) damages same as S/L |
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Defenses to misrep of facts
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No Ass of risk
Cont. negligence same as S/L. ---not available in intentional misrep. |
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Private nuisance
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- Substantial and unr/able interference. Severity of injury outweights utility of D's conduct.
- W/another's use or enjoyment of his property. |
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Public nuisance
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- Unr/able interference w/health, safety, or prop rights of the community
- For private person to recver, must show unique harm. |
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Remedies to nuisance-
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Damages, injunction, abatement by self-help
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Abatement by self-help
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If private N, can use self-help after D has notice and refuses to act. Only necessary force.
If public N, only public authority or private party w/ special damages can seek. |
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Defenses to nuisance
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Zoning authority
Conduct of others Contributory negligence Coming to the nuisance |
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Vicarious liability - respondeat superior
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- Emplyer VL for torts by ee if occurs w/in scope of employment.
- Not for substantial detour. - Er also liable for negligence in hiring, supervising |
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Intentional torts by ees
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Er not liable unless force authorized by job, friction generated by job, or ee is furthering bz of er.
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Independent K'ers
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No VL if agent is IC unless engaged in inherently dangerous activity or non-delegable duty.
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Partners and Joint Venturers
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Each member VL for other members' torts if w/in scope and course of Pship/JV affairs
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Joint and Several Liability
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2+ neg acts combine to proximately cause an indivisible injury. Each actor liable for all.
if divisible, only for identifiable portion. |
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D's acting in concernt
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Each is joint and severally liable even if the harm is divisible.
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Contribution to JS Liability
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- Allows D who pays more than his share of damages under joint and several liability to claim against other JTs for excess.
Apportion responsibility Not for intentional torts |
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Methods of Contribiution
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Comparative - impose in proportion to relative fault of the various Ds
Equal shares of all Ds - minority. |
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Indemnity
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- Shifts entire loss between/among JTs in VL.
- By K and in Strict Products Liability |
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Survival of tort actions
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Property and PI torts COAs survive the death of parties
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Wrongful death
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- By statute
- Recovery for pecuniary injury resulting to the spouse and next of kin - Decedent's creditors cannot claim against amount awarded. - recover only what deceased could have recovered had he lived. |
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Tortious interference w/ Family relationships - husband-wife
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Spouse may bring action for interference w/consortium and services caused by D's conduct against other spouse.
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Tortious interference w/ fam relationshps - Parent-Child
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Parent can sue for loss of child's services as result of D's tort, COA not available for child.
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Defenses to tortious interference w/family relationships
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Any defense that would prevent recovery by injured family member also prevents recovery for interference w/family relationship
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Intra-family tort immunities
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Mostly abolished. Where it is allowed, only for ITs.
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Governmental tort immunities
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Mostly abolished, but where it survives it attaches to the government, not proprietary functions.
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Federal Tort Claims Act
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- US has waived immunity for tortious acts for ministerial, not diescretional, acts
but, immunity still attaches for: Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, defamation, misrepresentation and deceit, inand interference w/K rights |
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State and Local Gov and Torts
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- Most states have waived to same extent as federal gov.
- Where municipal immunity abolished, public duty rule provides a duty owed to public at larged, it is not owed to any particular citizen absent a special relationship between gov and citizen. where municipal immunity DOES exist, no immunity for proprietary functions. |
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Public Officials and tort
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- Public officials carrying out official duties are immune from tort liability for discretionary acts done w/o malice or improper purpose.
Liability for ministerial acts. |
