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52 Cards in this Set

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Intentional torts (7)
Require intent (with one (ironic) exception) and even incapacitated people (e.g., the insane) are liable.

1. Battery ((1) harmful or offensive touching of (2) P's person)

2. Assault (put P in (1) reasonable apprehension (knowledge) of (2) immediate battery)

3. False imprisonment (D must engage in an (1) act of restraint to (2) confine P to a bounded area)

4. Intentional affliction of emotional (/mental) distress [can be made out by reckless conduct] (D engages in (1) outrageous conduct that (2) causes P to suffer severe emotional distress)

5. Trespass to land (physically invade land of another)

6. Trespass to chattels

7. Conversion
Outrageous conduct for purposes of intentional infliction of emotional distress
Exceeds all bounds of decency tolerated in a civil society.
Hallmarks:
(1) behavior repeated over and over,
(2) D is a common carrier or innkeeper,
(3) P is a member of a fragile class (e.g. children, extreme elderly, and pregnant women), and/or
(4) Deliberately targeting someone's known emotional sensitivity
Severe emotional distress
Have to prove it, but no magic formula (i.e., it can be doctor's testimony, or evidence of uncontrollable sobbing for days).

On the bar, look out for subtle negation of this element by describing the victim as only "mildly upset".
Trespass - intent
As long as it's a voluntary act to go there, it's trespass. Need not know that it's someone else's land, can be chased there by swarming bees, etc.
Trespass to chattels vs. conversion
Same tort, just different degrees. Conversion is more serious; if it's a minor interference, it's just trespass to chattels.

Remedy:
Conversion = full rental market value
Trespass to Chattels = damages
Affirmative defenses to intentional torts (3)
1. Consent (can be express or implied)

2. Defense of self, others, or property (must be reasonable and relatively contemporaneous)

3. Necessity (apply only to property torts--the last 3)
Public vs. private necessity defenses
Public necessity is when you commit the tort to protect the community as a whole or a significant group of people. This is an absolute defense--no liability at all!

Private necessity is when you commit the tort to protect your own interests. Legal consequences: you're liable for actual damage to P's property, but not nominal or punitive damages, and the property owner can't kick you off until after the emergency ends.
Defamation (3 parts)
1. Defamatory statement (one that tends to adversely affect her reputation) that specifically identifies the D.

2. Publication: must reveal it to a third party (can be accomplished via carelessness, need not be intentional)

3. Damages: some types get presumption of damages, for others it must be proven.

(2 more elements added if there are First Amendment concerns)
Libel
Written defamation. There is a presumption of damages.
Slander
Spoken defamation (remember: both start with 'S'!). Can be either slander per se or regular slander--only the former get a presumption of damages; regular slander requires proof of _economic_ harm.
Slander per se (4 types)
Presumption of damages for these.

1. Statements about P's business or profession.

2. Statement that P committed a crime of moral turpitude (basically anything serious).

3. Imputing unchastity to a woman.

4. Statement that P suffers from a loathsome disease, e.g., leprosy or a venereal disease.
Affirmative defenses to slander (3)
1. Consent

2. Truth--D bears the burden of proof on this, though.

3. Privilege. Can either be absolute or qualified.
a. Absolute privilege: If you slander someone to your spouse that doesn't count; if the D is an officer of the court or a legislator, not liable for statements made in those contexts.
b. Qualified privilege: If there's a public interest in candor, e.g., references and recommendations. Speaker (i) must act in good faith, meaning they believe their statements to be accurate, and (ii) is only protected on relevant matters.
Defamation and First Amendment concerns (2 F's to match _F_irst Amendment)
If the defamation is about a "public concern" then we add two more elements to the P's case:

4. Falsity: Statement is presumed true and P must prove it is false.

5. Fault: statement must not have been made in good faith. Level of fault required depends on who you defamed:
a. Defaming public figures: need to show speaker knew of the falsity or acted in reckless disregard to it.
b. Defaming private figures: just need to show negligence.
Invasion of Privacy Torts (4)
1. Appropriation (Appropriation by a defendant of a plaintiff’s picture or name for the defendant’s commercial advantage)

2. Intrusion (Intrusion by a defendant into a plaintiff’s affairs or seclusion)

3. False Light (Publication by a defendant of facts placing a plaintiff in a false light)

4. Disclosure (Public disclosure of private facts about a plaintiff by a defendant)
Appropriation
Use P's name or image for a commercial purpose. Not limited to celebrities--you could sue on this cause of action, too! (See what I did there, subtly assuming that you, reader of this publicly available flashcard, are not famous?)
Intrusion
Invasion of P's seclusion in a way that is highly offensive to the average person, e.g., videotaping you in your house or recording your phone calls.
False light/invasion of privacy
Widespread dissemination of a major falsehood about the P that would be highly offensive to the average person--the tort of spreading lies.

NB: this overlaps with defamation, but the difference here is that now the harm can be social, not just economic damages. Example: telling everyone you're Roman Catholic when you're a devout Jew--highly offensive to the average person to have your religion lied about to everybody.

(This tort is not universally recognized)
Disclosure
Widespread dissemination of confidential info about P that is highly offensive to the average person.

Exception: for newsworthy people there's a broad exception--you can publish a lot of their confidential info.

Also, note that the info has to be truly private, not just compartmentalized so that, e.g., your work colleagues don't know about it but everyone else in your life does.
Defenses to privacy torts
Consent applies to all 4.

Defamation privileges (absolute and qualified) apply to false light and disclosure (the last 2).
Negligence
1. Duty
2. Breach
3. Causation
4. Damages
Rescuers
You owe them a duty of care! Legal fiction: you should foresee rescuers.
Reasonable person standard (and 2 exceptions)
Care of a reasonable, prudent person--the human buzzkill. No accounting for individual D's actual intelligence or background or diseases.

Exceptions:
1. The ratchet: if you have special skills or knowledge, you'll be held to that higher standard. But remember, it's called the ratchet because it only increases your standard of care, never lowers it.
2. Physical characteristics of the D will be taken into account, such as blindness or height (when relevant).
Kids and the duty of care
Kids under 5 owe the world no duty of care at all.

Kids between the ages of 5 and 18 owe the same duty of care as a reasonable child of similar age, experience, and intelligence acting under similar circumstances. Kids get a subjective test!

Exception: for adult activities (basically operating a vehicle), kids are subject to the regular, adult reasonable person objective standard.
4 different types of entry for premises liability
1. Undiscovered trespasser
2. Discovered (or anticipated) trespasser
3. Licensee
4. Invitee

NB: to defeat liability for any of these, you can either fix the problem beforehand or just give a warning.]
Duty of care to undiscovered trespasser
None. Zero. Undiscovered trespasser always loses.
Duty of care to discovered/anticipated trespasser
Property owner must protect them from known, man-made death traps on the land, aka the danger must be:
(i) Artificial, built by humans (not natural);
(ii) Highly dangerous;
(iii) Hidden or concealed from the trespasser, not open and obvious; and
(iv) Property owner must have had prior knowledge of the danger.
Licensees
People who enter your land with your permission but confer no economic benefit on you. Friends you invite over are the classic example, but you impliedly allow girl scouts to walk up to your door to sell cookies, too.

Duty owed: You must protect licensees from known traps, aka dangers that (i) are concealed from them; and (ii) known in advance by the property owner. [NB: these are the last two elements of the duty of care test for discovered trespassers--memorizing just got EASY, woot!]
Invitees
People who enter with your permission and DO confer economic benefit on you. Classic example is a business customer, but also covers a guy who picks his friend up at the train station and people who come to public museums.

Must protect invitees from all reasonably knowable traps on land, aka dangers that (i) are concealed from them; and (ii) the possessor either knew about or could have discovered via reasonable inspection.
Firefighters and police officers
They assume the risk when they come onto your land, so they can never recover for injuries they sustain on your land.
Attractive nuisance doctrine
If an artificial condition is particularly attractive (and dangerous) to kids, you can be liable for their injuries on it.
Negligence per se (2-part test)
(It would make more sense to call this breach per se . . .)

This is when the P wants to use the violation of a criminal statute to conclusively prove the breach of a duty part of a negligence claim.

We allow this when:
(i) P is a member of the class that the criminal statute seeks to protect; and
(ii) P can show that this accident was in the class of risks the statute was trying to prevent.
Exceptions to the negligence per se doctrine (2)
Even if P can meet the 2-part test, we don't permit her to import a criminal statute as the duty and prove breach via its violation when either:
(i) Compliance with the statute would be more dangerous than violating it; or
(ii) Impossible to comply with the statute (running a red light doesn't prove breach if you had an unforeseeable heart attack behind the wheel).
Affirmative duties (rule and 2 exceptions)
Generally, none at all!

Exceptions:
(i) Where there was a pre-existing relationship between the rescuer and the person in peril (e.g., common carrier-passenger or property owner-invitee); or
(ii) If you put the person in peril.

In these situations you may not have a duty to _rescue_, but you do have to do what a reasonably prudent person would do (call 9-1-1, for example).
Good Samaritan laws
General rule is that people who voluntarily undertake to rescue someone (i.e., under no duty to do so) are liable for negligent rescues. But that disincentivizes rescuing, so GS laws immunize (some of) them.
Negligent infliction of emotional distress (2 parts, three scenarios)
1. There must be a negligent D but a P who was not physically harmed.

2. Must be a viable claim for emotional injury. 3 ways to satisfy this:
(i) Near-miss scenario: D _almost_ harms P really badly. P must be in the "zone of danger"--very close to getting hit! Many states also require a physical manifestation of the emotional trauma.
(ii) Bystander scenario: P isn't harmed but a third party is severely hurt or killed, and this upsets P a lot. Note that emotional distress here is very different than in (i); there it was fear/anxiety, here it's more grief/melancholy/sadness. The harmed victim must also be P's close family member.
(iii) Relationship scenario: if P and D have a pre-existing business relationship and it is highly foreseeable that careless performance will cause distress, then P can recover against D. Classic example: HIV clinic gives you a false positive.
Res ipsa loquitur (2 requirements)
Satisfies the BREACH element of a negligence case (the step where P has to identify specific conduct on D's part and explain why it's wrongful). Requires two things:
(i) Show that the accident that occurred is normally associated with negligence;
(ii) Show that the accident is of a type that is normally due to someone in the D's position (aka "I probably sued the right guy").

If res ipsa kicks in, you have a prima facie case for the breach element.
Actual causation
But-for causation
Merged causes
If two D's both independently do something and their actions merge and cause harm to the P, they are both liable if their acts were a substantial factor. Classic example: 2 people each start fires, they converge and burn down P's house.
Unascertainable causes
Summer v Tice: two hunters shoot, one hits the guy, no way to know who did it. Result: joint and several liability for the D's (unless one can prove it wasn't her).
Proximate cause (4 settled scenarios)
Better name is just fairness. Look at the time between D's action and P's injury, as well as the physical distance. It gets murky, use common sense. But there are 4 well-settled scenarios that DO exhibit proximate cause and thus D is liable:

1. Intervening medical negligence: you negligently hit someone, while being operated on in the hospital they negligently give P gangrene and her leg needs to be amputated. You are liable for the amputation!

2. Intervening negligent rescue: if you negligently hit someone in your car; a rescuer ends up hurting P worse. You're liable for the botched rescue!

3. Intervening protection/reaction forces: If you negligently hurt someone and it causes a stampede for safety, you're liable for injuries to P.

4. Subsequent disease or accident: if you hurt P, she gets crutches, then slips on the crutches the next day and breaks her arm, you're liable for the broken arm too!
Eggshell plaintiff
D is liable for ALL harm she causes to a P, even if it's due to P being hypersensitive or having a pre-existing condition you unwittingly exacerbated. Take the plaintiff as you find her!
Contributory negligence
[learn about this]
Contributory negligence
Only get the portion of the damages that you weren't at fault. Pure vs. partial?
Strict liability claims
1. (Some) Animals

2. Abnormally dangerous activities

3. Product liability

(The defense to these is comparative responsibility, directly analogous to comparative negligence.)
Strict liability for animals
For domesticated animals, only strict liability if you have notice that the animal has harmed people in the past (and even then not to a trespasser).

For wild animals, ALWAYS strict liability.
Strict liability for abnormally dangerous activities
What is an abnormally dangerous activity? It (i) must create a foreseeable risk of harm, even when reasonable care is used; and (ii) must not be a matter of common usage in the community.

Strict liability only for harm caused by the abnormally dangerous part of the activity.
Strict product liability (4 elements)
1. D must be a merchant, aka someone who routinely deals in the types of goods that hurt P.
Not a merchant: casual sellers hawking stuff on Craigslist, or your doctor when a chair in her waiting room breaks (incidental to her business).
Merchants: commercial lessors (think car rental places) and every firm in the distribution chain of a product.

2. Must show product was defective. (3 ways for this to happen)

3. P must show that defect existed when the product left D's control (this is presumptively met when the product moves in the ordinary channels of distribution, so it's mostly only ever an issue for second-hand goods).

4. P must be making a foreseeable use of the product. (Standing on a chair is actually foreseeable because everyone does it to reach things.)
3 ways a product can be defective
1. Manufacturing defect: the product comes off the assembly line different from all the others in a way that makes it more dangerous.

2. Design defect: there's another way a product could have been built (a hypothetical alternative design) that meets this 3-part test:
(i) Must be safer than the actual version;
(ii) Must be economical (can't be way more expensive); and
(iii) Must be practical--can't interfere with product's primary use
Classic example of this is a crib with slats that have too much space between them.

3. Information defect: if a product has residual risks that cannot be designed out and are not obvious to consumers, it must have adequate warnings of that defect. (Design defects can't be fixed by slapping on a disclaimer.)
Nuisance
The name of the tort and the injury you suffer in it--how meta! Occurs when your use and enjoyment of the land is significantly negatively impacted--D can perpetuate this nuisance intentionally, carelessly/accidentally, or even despite all efforts to stop it.

Subjective test: whose use is more valuable? Weigh the factors and winner wins!
Vicarious liability (4 types)
1. Employer/employee - normal respondeat superior.

2. Hiring party/independent contractor - normally no liability; one exception is when ICs injure and invitee

3. Car owner and borrower - owner is liable if the driver borrowed it so that she could run an errand for the owner (principal/agent relationship exists), but no liability if borrower is taking it for her own use.

4. Parent/child - parents are NEVER vicariously liable for their kids' acts.
Loss of consortium (3 types of damages)
If a tort victim is married, the victim's spouse can sue for loss of consortium. 3 types of damages are possible:

1. Loss of services - nobody to cook, mow the lawn, whatever around the house.

2. Loss of society - nobody to talk to!

3. Loss of sexual intimacy - if victim can't have sex, spouse gets cash.
To establish a prima facie case of intentional misrepresentation, fraud, or deceit, what elements must be proved? (6)
(i) A misrepresentation by the defendant;

(ii) Scienter;

(iii) An intent to induce the plaintiff’s reliance on the misrepresentation;

(iv) Causation (i.e., actual reliance on the misrepresentation);

(v) Justifiable reliance by the plaintiff on the misrepresentation; and

(vi) Damages.