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134 Cards in this Set

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PFC for all Intentional Torts
1. Volitional act by D
2. Intent (Specific, general, or transferred. Incapacity NOT a defense)
3. Causation
Battery
1. Intentional harm or offensive contact
2. To P's person/anything closely connected to it
3. Causation
Assault
1. Intentional Act by D creating r/able apprehension in P
2. Of immediate harm or offensive contact to P's person
3. Causation.
False imprisonment
1. Act or ommission by D that confines or restrains P
2. to bounded area
3. Intent
4 Causation
IIED
1. Extreme and outrageous conduct
2. intent or recklessness
3. Causation
4. Damages (must be severe emotional distress)
Trespass
1. Physical invasion of P's real property
2. Intent
3. Causation
Trespass to Chattels
D's act interferes w/ P's right of possession
2. Intent
3. Causation
4. Damages
Conversion
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
Remedies for conversion
1. FMV
2. Possession/replevin
Defenses to ITs
1. Consent
2. Self Defense
3. Defense of others
4. Defense of property
5. Recapture of chattels
6. Privilege to arrest
7. Necessity
Consent
- 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
Elements of S/D
- Person r/ably believed she is being or is about to be attacked.
- May use such force as r/ably necessary to protect // injury
When is S/D available?
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
Defense of Others (D/O)
- 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
Defense of Property (D/P)
- 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
Recapture of chattels (R/C)
- 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
R/C w/ entry on land to recover chattels
- w/in r/able time and in r/able manner.
- must demand return first
R/C on land of innocent party
- 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
Privilege to Arrest (P/A)
May enter another's land to effect the arrest.

Arrestor liable for subsequent misconduct
Mistake w/ P/A
- 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.
How much force w/P/A?
- Misdemeanor, No DF. Just what's necessary

- Felony - Force necessary, DF only when suspect threat of serious harm.
Necessity
- 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
2 Types of Necessity
1. Public: Do not have to pay for damages to burdened property.

2. Private: actor must pay for damages to burdened property
Elements of Defamation
1. Defmatory language
2. Of or concerning P
3. Publication
4. Damage to P's reputation
Defamatory Language
- 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
Defamation "of or concerning P"
- 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.
As to publication, who's liable?
- Primary publishers, speaker/author and repeaters
- Secondary publishers = one selling papers or playing tapes only if knows/should know of defam content.
Damage to P's reputation in defamation cases
Libel = No special damages req

Slander = Special damages unless slander per se
Slander Per Se
1. Reflect's one's conduct in biz or professions
2. Loathesome disease
3. Guilty of crime of moral turpitude
4. Woman is unchaste
Libel
Permanent, wide distro, deliberate.
Defam re: matter of public concern
Must also have
- Falsity
- Fault on D's part.
When fault is at issue in Def, difference btw pub and priv figure
Public = P must show malice

Private = P must show negligence
Defenses to Defamation
1. Consent
2. Truth
3. Absolute privilege
4. Qualified privilege
Absolute privilege
1. Court proceedings
2. Legislators in debate
3. Federal executive officials
4. Compelled broadcasts
5. Between spouses
Qualified privilege
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.
Invasion of Right to Privacy
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)
Intrusion upon P's private affairs/seclusion AND Public disclosure of private facts
Would be objectionable to r/able person
False light publication
- 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
Defenses to Invasion of Right to Privacy
- Consent and defamation privileges
- Truth, GF, inadvertence and lack of malice are NOT defenses
Intentional misrepresentation
- 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!
Duty of care: F/able
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
Duty of Care: Rescuers
F/able P if D negligently put himself or 3P in peril
Duty of Care: Prenatal Injuries
- 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
Basic Standard of Care
- 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
Standard of Care: Professionals
Knowledge and skill of a member of the profession in good standing in similar communities
Standard of Care: Kids
Child of like age, edu, intelligence, and experience
Standard of Care: Common Carriers and Innkeepers
Very high standard; liable for slightest negligence
Standard of Care: Car driver to guest
Ordinary duty of care
Bailment Duties Owed by Bailor
- 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.
Bailment Duties owed by bailee
- Sole benefit of bailor (low standard)

- Sole benefit of bailee (high standard)

- Mutual benefits (ordinary standard)
standard of Care in an Emergency
- Act as a r/able person would under circs
- Do not consider emergency if D created it.
Duty of Possessor of Land to Those Off Premises
- 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.
Duty to Trespassers
- 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
Attactive Nuisance
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
Licensees
- 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
Invitees
- 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
Users of Recreational Land
- 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
Duties of Lessee
General duty to maintain premises
Duties of lessor
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.
Duties of Vendor of Realty
Disclose to the vendee concealed, unr/ably dangerous conditions of which vendor knows or has reason to know and vendee is unlikely to discover
Duty re: NIED
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
NIED physical injury requirement
Must be some physical injury unless it's the erroneous report of relative's death or the mishandling of a relative's corpse.
NIED zone of danger req.
If P's distress is caused by threat of physical harm, the threat must be directed at P or someone in her immediate presence.
Affirmative Duties to Act
- Assumption of Duty by Acting
- Creator of the Peril
- Special relationship btw Parties
Special relationship btw parties creating aff duty to act
- 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
Breach of Duty
- Custom or Usage: establishes standard of care, does not control whether conduct amounted to negligence.

- Violation of statute

- Res Ipsa Loquitor
Res Ipsa Loquitor
- 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
But for test of actual causation
Injuy would not have occurred by for the D's act
Substantial factor test actual causation
When several causes bring about injury, D's act is substantial factor in causing the injury
Alternative Causes Approach
- 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
Proximate cause in direct cause cases
Uninterrupted chain of events from negligent act to P's harm.

D liable for all f/able results despite unusual manner or timing
Proximate cause in indirect cause cases
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.
Common dependent intervening forces
- 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
Independent intervening forces
- 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
Damages
- Personal injury
- Property damage
- Punitive damage
- Duty to mitigate
- Collateral source rule
Defenses
- Contributory negligence
- Assumption of risk
- Comparative negligence
Contributory Negligence
- 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
Assumption of risk
- P knew of risk and voluntarily proceeded despite risk
- Implied or Express.

- risk must be one that average person would appreciate
When assumption of risk doesn't apply
When P had no available alternative

Fraud

Force

Emergency

Members of statutorily protected class
Comparative negligence
- 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%.
Strict Liability
- D has absolute duty to make safe
- Br/ (due care irrelevant)
- Actual and Proximate Cause
- Damage to P's person or prop
Trespassing Animals and S/L
Owner is S/L for r/ably f/able damage from trespass of his animals.
Personal injury S/L
- 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
Ultra-hazardous/abnormally dangerous activities
- Activity involves risk of serious harm
- Activity cannot be performed w/o risk of serious harm
- Not commonly done in the particular community
Scope of duty owed w/ S/L
Absolute duty to all f/able Ps.

Make safe the dangerous characteristics
Defenses to S/L
- Contributory negligence
- Comparative negligence
- Assumption of risk
Products Liability
Defect present when product left D's control
Types of Defects
Manufacturing - single unit is diff & more dangerous

Design

Inadequate warning
Proving a manufacturing defect
Show product failed to perform as safely as an ordinary consumer would expect.
Proving a design defect
Show D could have made the product safer without serious impact on product's price or utility
Proving a defect w. noncompliance with gov safety standards
Noncompliance establishes defect.

Compliance doesn't establish that it's not defective.
Scientifically unknowable risks
No Liability
Unavoidably unsafe products
Not liable if danger apparent
Products Liability - Liability based on intent
- D intended the consequences or knew they were substantially certain to occur.

- Compensatory and punies

Defenses - same as IT
Products liability - liability based on negligence - DUTY
Duty is to any f/able P, not thieves. Owed by manufacturers, wholesalers, and retailers. But, W and R meet duty w/inspection
Products liability - liability based on negligence - Breach
D's negligent conduct led to supplying the defective product.
Products liability - negligence - Causation
Intermediary's neg failure to discover defect does not supersede orignial manufacturer's neg
PL - Neg - Damages
Physical injury or property damage req'd, no purely economic loss
PL - Neg - Defenses
Same as general negligence, disclaimers ineffective
Liability based on SL
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
Implied warranties of merchantability & fitness
Two warranties: Merchantibility and Fitness for a particular purpose
Merchantability
Goods are generally fit for their ordinary purposes
Fitness for a particular purpose
S knows/has reason to know particular purpose for goods and B relies on S's skills and judgment in selecting
Causation in warranties
Same as general negligence
Damages in warranties
Personal injury, property damage, and purely economic loss
Defenses in warranties
Ass of risk, cont neg, failure to notify of br.

Disclaimers no good for PI, but okay for econ losses
Express warranty
- 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
Misrepresentation of fact
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
Misrep of fact reqs
Justifiable reliance required

Causation (actual cause shown w/relince, proximate cause same as S/L)

damages same as S/L
Defenses to misrep of facts
No Ass of risk

Cont. negligence same as S/L.
---not available in intentional misrep.
Private nuisance
- Substantial and unr/able interference. Severity of injury outweights utility of D's conduct.
- W/another's use or enjoyment of his property.
Public nuisance
- Unr/able interference w/health, safety, or prop rights of the community
- For private person to recver, must show unique harm.
Remedies to nuisance-
Damages, injunction, abatement by self-help
Abatement by self-help
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.
Defenses to nuisance
Zoning authority
Conduct of others
Contributory negligence
Coming to the nuisance
Vicarious liability - respondeat superior
- 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
Intentional torts by ees
Er not liable unless force authorized by job, friction generated by job, or ee is furthering bz of er.
Independent K'ers
No VL if agent is IC unless engaged in inherently dangerous activity or non-delegable duty.
Partners and Joint Venturers
Each member VL for other members' torts if w/in scope and course of Pship/JV affairs
Joint and Several Liability
2+ neg acts combine to proximately cause an indivisible injury. Each actor liable for all.

if divisible, only for identifiable portion.
D's acting in concernt
Each is joint and severally liable even if the harm is divisible.
Contribution to JS Liability
- 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
Methods of Contribiution
Comparative - impose in proportion to relative fault of the various Ds

Equal shares of all Ds - minority.
Indemnity
- Shifts entire loss between/among JTs in VL.

- By K and in Strict Products Liability
Survival of tort actions
Property and PI torts COAs survive the death of parties
Wrongful death
- 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.
Tortious interference w/ Family relationships - husband-wife
Spouse may bring action for interference w/consortium and services caused by D's conduct against other spouse.
Tortious interference w/ fam relationshps - Parent-Child
Parent can sue for loss of child's services as result of D's tort, COA not available for child.
Defenses to tortious interference w/family relationships
Any defense that would prevent recovery by injured family member also prevents recovery for interference w/family relationship
Intra-family tort immunities
Mostly abolished. Where it is allowed, only for ITs.
Governmental tort immunities
Mostly abolished, but where it survives it attaches to the government, not proprietary functions.
Federal Tort Claims Act
- 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
State and Local Gov and Torts
- 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.
Public Officials and tort
- 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.