Wa Bar Torts

Front 1

Tort: General Definition

Back 1

A tort is a civil wrong, other than a breach of K, for which the law provides a remedy

Front 2

Intentional Torts: Meaning of Intent

Back 2

Desire or knowledge to a substantial certainty that consequences (C) will happen if D does volitional act (A). A is not sufficient by itself.
i. Transferred intent – if D intends to accomplish one of these torts, and actually accomplishes another, then D’s intent transfers to the other tort
ii. Transferred Intent only applies if both the tort intended and the tort that resulted are ; Assault, Battery, False Impris., Trespass to land, or Trespass to Chattel

Front 3

Intentional Torts: Battery

Back 3

1. Battery – Can be an offensive battery (like blowing smoke in someone’s face). D intentionally inflicts
i. A harmful OR offensive
ii. contact with plaintiff’s person

Front 4

Intentional Torts: Assault

Back 4

Sleeping beauty cannot be assaulted. Requires
i. D’s intentional act (more than “mere words” but words plus walking towards someone sufficient)
ii. Causes P to have an apprehension of
iii. Imminent (cannot be threat to do something later) battery AND
iv. D has the present apparent (to P) ability to achieve the battery

Front 5

Intentional Torts: False Imprisonment

Back 5

3. False Imprisonment (Also called False arrest if a Police officer) – can be done through force, barriers, threat of force, duress of goods
i. D intentionally
ii. Confines P
iii. Within an area bounded in all directions (must keep in not out)
iv. With no reasonable escape route of which P is aware, AND
v. P is either aware of confinement, or harmed by it

Front 6

Intentional Torts: Outrage (IIMD)

Back 6

4. Outrage (IIMD)
i. P suffers severe mental distress
ii. Caused by D’s intentional or reckless behavior
iii. That is judged extreme and outrageous by plaintiff (subjective) AND a reasonable (objective) person OR
iv. By P alone if D knew P was specially vulnerable
v. Examples of IIMD include – threats of future violence, harassing methods of debt collection, stalking, vicious practical jokes. Look for a disparity of power between people

Front 7

Intentional Torts: Trespass to Land

Back 7

i. D’s intentional, even if reasonably mistaken
ii. Physical invasion of P’s land (whether on, over, or under)
iii. “By method of invasion.” E.g. going on land, causing others to go on land, causing objects to go on land, or exceeding license to go on

Front 8

Intentional Torts:Trespass to Chattel

Back 8

i. D’s intentional even if mistaken
ii. Use of or intermeddling in personal property of P’s possession
iii. Such that the chattel is impaired in its condition quality or value OR
iv. P is deprived of the chattel’s use for a substantial time
v. P limited to suing for T to C when intermeddling is minor – if this is the case, damages are limited to repair or rental costs plus any consequential damages.
vi. Minor and Major is determined by looking at the seriousness of D’s interference with P’s interest and the degree of D’s fault

Front 9

Intentional Torts: Conversion

Back 9

Essentially the same tort as T to C, except that D’s dominion or control over the chattel are major
i. If major, P may the elect conversion OR T to C
ii. If Conversion elected, P entitled to recover the fair market value of chattel plus any consequential damages

Front 10

Intentional Torts: Privileges - Consent

Back 10

1. Consent – willingness in fact (subjective) OR apparent consent (objective)
i. Consent destroyed if induced by fraud, OR
ii. D’s non-disclosure of material facts OR
iii. P’s withdrawal of consent
iv. Consent limited by its temporal, subject-matter, and geographical scope

Front 11

Intentional Torts: Privileges - Defense of Self & Others

Back 11

Reasonable force (usually proportional) used to protect oneself against threat of bodily harm from another person
i. P may be the attacker (p1) or a bystander (p2)
ii. D must believe (subjective) AND a reasonable person would have believed (objective) that the threat is real
iii. Forced used may include deadly force if necessary to meet deadly attack
iv. Reasonable mistake is allowed
3. Defense of Others – Same rules apply as Defense of self – reasonable mistake is allowed

Front 12

Intentional Torts: Privileges - Defense of Property

Back 12

i. Reasonable Force (but never deadly)
ii. To protect real property from intrusion OR
iii. Personal property from seizure OR
iv. To eject P from D’s real property, If request is made to leave or the request would be ineffectual
v. No reasonable mistakes allowed – MUST BE YOUR PROPERTY

Front 13

Intentional Torts: Privileges - Recapture of Chattel

Back 13

i. Reasonable but never deadly force to recovery D’s personal prop from P AND
ii. Acts in “hot pursuit” (first make a request to get back then use force)
iii. Reasonable mistake is not allowed

Front 14

Intentional Torts: Privileges - shopkeeper's privilege

Back 14

shopkeepers privileged to use
i. Reasonable but never deadly force to
ii. Detain P for a reasonable time
iii. For a reasonable investigation
iv. NOTE – D may have a reasonable (but can be mistaken) belief that P has stolen merchandise, AND P must be caught and detained In D’s store premises

Front 15

Intentional Torts: Privileges - Private Necessity

Back 15

D’s privilege to intrude on P’s property interest in order to prevent a greater loss to D’s own interest in personal property. D must pay damages for any harm caused to P’s interest in the property. If privilege applies, transferred intent is irrelevant, and P has no privilege to eject D or defend P’s interest in the property in question

Front 16

Intentional Torts: Privileges - Public Necessity

Back 16

D’s (may be public or private actor) privilege to intrude on P’s Property interests in order to prevent a greater loss to an entire community of persons. D need not pay damages for losses. May have to be just compensation if government is the actor

Front 17

Intentional Torts: Privileges - Authority of law

Back 17

9. Authority of Law
i. P.O. may use
a. Reasonable force (up to and including necessary deadly force) to arrest P for
b. A felony, IF
c. D has a reasonable belief that the felony was committed and that the P is the culprit, BUT
d. Only reasonable force (not deadly force) to arrest for a mis. Breach of peace committed in D’s presence
ii. If D is a private citizen
a. Rule regarding mis. Arrests is the same, but
b. Felonies MUST actually have occurred AND D must reasonably believe that P did it

Front 18

Negligence: Duty of Care - Generally

Back 18

No duty owed to unforeseen P’s. No duty owed to foreseeable plaintiffs who

only suffer pure economic loss (not personal injury or property damage). D is liable for the egg-shell plaintiff, apparently called the thin skull rule here. Remember there must be proximate cause

Front 19

Negligence: Duty of Care - RP

Back 19

The amount of care that a reasonable person would take in order to safeguard others from foreseeable risk of harm that flow from D’s activity

Front 20

Negligence: Duty of Care - Children

Back 20

– RP standard for inherently dangerous (adult) activities. For childrens activities, it is measured on a child just like D (subjective). Children under 6 incapable as a matter of law from committing contributory negligence

Front 21

Negligence: Duty of Care - Professionals

Back 21

a. In general – RP professional in D’s specialty within WA
b. Medical Profession Doctrine
i. Expert witness rule – expert witness must come in and testify that procedure D did was wrong
ii. Informed Consent Doctrine – duty to reveal all material facts regarding treatment. P must show that he (subjective) and a RP (objective) would not have consented to procedure had they known all material facts. However, medical doctors receive implied consent for treatment of life-threatening emergency in which P incapable of giving consent. If P completely declines treatment and D gives anyways, it is a battery

Front 22

Negligence: Duty of Care - Physically disabled

Back 22

– treated as RP with D’s physical characteristics. No relaxation of RP standard for mentally ill. May be relaxation if question is one regarding contributory negligence, or the disability is sudden onset with no prior warning

Front 23

Negligence: Duty of Care - Emergencies

Back 23

– allows for greater leeway for PR decisions in emergency situations unless D’s own prior negligence created the emergency

Front 24

Negligence: Duty of Care - Common Carriers/Inkeepers

Back 24

duty to avoid the slightest negligence towards passengers.

Front 25

Negligence: Duty of Care - Good Samaritans

Back 25

Liable only for gross negligence or willful/wanton behavior

Front 26

NOTE, FLASHCARDS MAY BE MISSING IN DUTY OF CARE SECTION NEED TO GO BACK AND CHECK

Back 26

REMEMBER TO DO THIS

Front 27

Breach of Duty: Basic Question

Back 27

Did D meet the standard of care

Front 28

Breach of Duty: Res Ipsa Loquitur

Back 28

permissive inference of negligence if P proves the following
a. Accident is of a type that usually does not occur absent negligence
b. D is connected with the accident
c. P was not at fault

Front 29

Causation - 2 part inquiry

Back 29

– 2 part inquiry, cause in fact and proximate cause

Front 30

Causation: Cause in Fact

Back 30

Cause in Fact
a. “But for” Test – But For D’s negligent action there would have been no harm to P
b. Substantial Factor – Test for sufficient but not necessary causes (two fires paradigm)
both D’s liable
c. Alternative Causes – Two or more negligent D’s but cannot show which one was
single cause (Both D’s are liable, BoP switches to D’s to show they are not the shooter)

Front 31

Causatin: Proximate Cause

Back 31

D is liable for all harms that are foreseeable at the time of D’s negligent act
a. Foreseeability Test
b. Exception - Thin Skull Plaintiff
c. Pure Economic Loss – foreseeable, but cannot collect

Front 32

Causation: Intervening and Supervening Causes

Back 32

a. Intervening – event that comes between D’s negligent action and P’s harm. Can be a natural occurrence OR a third parties actions
b. Only some intervening rise to level of Supervening cause that will cut off the original D’s liability
c. Supervening Cause Test – is the human or natural intervening reasonably foreseeable at the time the tort was committed. If not, SC breaks chain of causation and relieves original D from liability for ensuing harm
d. Natural events (even unusual ones) are not supervening, only EXTRAORDINARY ones (like earthquakes) will be supervening
e. Criminal Wrongdoing by 3rd party – often not foreseeable and therefore supervenes. But will not be where LL fails to repair locks or lights and someone breaks in.
f. Negligence of 3rd parties – not usually supervening, original D usually liable for second injury as well (doctrine of sequential harms)

Front 33

Causation: Rescue Doctrine

Back 33

Rescuer can sue original D for injuries in rescue attempt. Also applies to a cases where injured P attempts to rescue someone whose contributory negligence left them vulneralbe

Front 34

Causation: Good Samaritan doctrine

Back 34

not liable for mere negligence when rescued person is injured

Front 35

Harm

Back 35

1. Primarily Bodily integrity and property interest, NOT pure economic loss
2. Negligent Infliction of Mental Distress – no impact requirement, but P must prove foreseeability plus objective manifestation of distress – 3 categories
a. Fright – wasn’t hit by car, but almost hit
b. Direct Victim – where D actually knows person would be harmed
c. Bystander – must be at scene/come shortly after and must be close relative of victim

Front 36

Damages

Back 36

1. Special Damages – monetary losses ( medical expenses, lost wages, diminished earning cap.)
2. General Damages – non-monetary losses (pain and suffering) and other consequential losses
3. Duty to Mitigate – P has duty
a. Remunerative employment for which P is qualified in injured condition
b. Curative or ameliorative medical treatment to which RP would submit
4. Collateral Source Rule – Damages are not reduced for sums received from third parties (insurers, gov, gifts of money or assistance) on account of injuries for which P seeks compensation

Front 37

Defenses: Contributory Negligence

Back 37

P held to a level of care a RP takes in respect of his own safety. Special standards mentioned earlier apply equally in contributory negligence (child, phys. Disability, emergency)

Front 38

Defenses: Seatbelts and Infant Seats

Back 38

– failure to wear or use is not permitted evidence to prove neglig

Front 39

Defenses: Intoxication or commission of a felony

Back 39

intoxicated and more than 50% at fault, no recovery. IF P is committing a felony that is proximate cause of injury, no recovery

Front 40

Defenses: Comparative Fault

Back 40

WA has pure comparative fault. P (unfelonious and unintoxicated) can always recover something, no matter how high % of fault. Total damages are reduced by % at fault attributed to him by jury

Front 41

Defenses: Express assumption of the Risk

Back 41

P assumes risk of D’s negligence (usually a written release)
a. look out for coverage – is harm P suffered within terms of release
b. Void against public policy? Consider needs v. wants, needs more likely to be void. Consider the procedure, status, and substance of the agreement
c. Valid express assumption is a bar to recovery

Front 42

Defenses: Implied Assumption of the risk

Back 42

a. P actually knows of risk AND
b. Appreciates its magnitude AND
c. Voluntarily goes forward to take his chance
d. Not a bar to recovery, treated as item of P’s fault under comparative fault statute

Front 43

Nuisance: Private Nuisance

Back 43

substantial and unreasonable interference by D with P’s interest in the use and enjoyment of the land. Balance interests

Front 44

Nuisance: Public nuisance

Back 44

D’s act unreasonably interferes with health, safety, or property rights of ENTIRE COMMUNITY and P has special injuries not suffered by public at large

Front 45

Nuisance: Remedies and Defenses

Back 45

3. Remedies – Damages and/or injunction from continued wrongs
4. Defenses – legislative authority (like zoning) is relevant but not conclusive, if P came when nuisance already existed – only works if P came for the purpose of filing harassing lawsuit

Front 46

Strict Liability: Animals

Back 46

A. Animals (trespassing, wild, domestic, and dogs)
a. SL for trespass by animals – except dogs and cats
b. Personal Injures caused by animal
i. SL for wild animals, unless P is trespasser on private property
ii. Domestic animals – SL only if D had scienter, otherwise, liability only exists if D is negligent in handling animal
iii. WA dog statute – SL if P bitten in public place or while on private prop as invitee or licensee

Front 47

Strict Liability: Abnormally dangerous activity

Back 47

a. Activity involved a serious risk of harm AND
b. Residual risk of harm is present regardless of precautions taken
c. Activity is unusual in community– (this is why driving car not SL)
C. The Scope of Liability – not absolute liability. Extends only to harms proximately caused by activity – harms that are of the same type that caused the law to classify it as governed by SL
D. Defenses – same as for negligence

Front 48

WA PLA: In General

Back 48

applies if D’s product injures P in his person or property
A. Overview
a. Product – an object that has value, is capable of delivery, and was produced for commerce
b. Product Seller – everyone involved in the commercial chain of distribution of new products
c. Commercial Sellers of used products (e.g. used car dealers) and occasional sellers - not covered by the act.

Front 49

WA PLA: Manufacturer Liability

Back 49

a. Strict Liability for Defective Construction
b. Breach of Express and Implied Warranties
c. “Negligence” (term of art)
i. Design Defect
ii. Inadequate Warnings or Instructions

Front 50

WA PLA: Non-Manufacturer Liability

Back 50

only liable if one of three theories met
i. NM’s own negligence caused the harm
ii. Breach of NM’s own express warranty
iii. NM’s fraud regarding production
iv. EXCEPTIONS – NM’s liable if no solvent M in WA jurisdiction, NM provides plans/specs to M and they cause defect, seller under own trade name, integrated comp.

Front 51

WA PLA: Products Liability Claim

Back 51

(by Buyer, User, or Bystander)
a. Personal Injury or Property Damage
b. Pure Economic Loss goes to U.C.C.

Front 52

WA PLA: Defenses

Back 52

a. Custom & regulatory standards– evidence of these are admissible but not conclusive
b. Compliance with Government Contract Specifications – Gives absolute defense
c. Useful Safe Life (presumed 12 years) – no liability after this, liability governed by common law
d. Statute of Limitations – 3 years from time P discovered or should have discovered
i. Harm
ii. Its causal relation to the product, AND
iii. That the product may be defective
e. Comparative Fault for CN and IAR – can reduce P’s recovery under comparative fault statute. Misuse of item does not absolve manufacture from liability if misuse is reasonably foreseeable. Some misuse so extreme it can imply absence of defect

Front 53

Defamation: 7 elements

Back 53

1. Statement of Fact – not an opinion, but may be opinion that implies existence of fact
2. Published to a Third Person (includes republication) AND
3. Statement is False – Truth is a defense, usually P must prove false
4. Statement is Defamatory
i. Defamation per se – if it concerns the P’s trade, disease, turpitude-crime, or unchaste woman, OR
ii. Naturally tends to expose P to hatred, contempt, ridicule, or obloquy (merely unflattering, annoying, rude, or embarrassing statements are not defamatory)
iii. The statement may be defamatory on its face OR by virtue of extrinsic facts which require P to prove damage to reputation – in contrast to defamation per se, where damages are presumed
iv. Proof of extrinsic facts is called inducement. Proof of defamatory meaning is called innuendo. E.g. P is often at J’s house. P proves that J runs a crack house (inducement), and therefore the statement means that P is a crack addict (innuendo)
5. Statement is about Plaintiff (proof of indirect reference to P called colloquium) AND
6. Damage to Plaintiff’s Reputation – must be pleaded or proven, at least If possible const. privilege is involved. AND
7.  is at Fault
a. Public Figure: must prove by C&C evidence that D had Actual Malice or reckless disregard for the truth
b. Private Figure/Matter of Public Concern: P must prove neg. and actual injury
c. Private Figure/Private Concern: Negligence and  proves truth
8. Privileges (Defenses)
a. Absolute – judicial proceedings, legislators, executive duties, spouse-to-
spouse, legally compelled broadcast.
b. Qualified – reports of public proceedings, public interest, interest of D,
interest of recipient, common interest
c. Loss of qualified Privilege – D has actual malice or utters matters irrelevant to privilege

Front 54

Invasion of Privacy: Intrusion on P's private affairs

Back 54

purpose to protect privacy not reputation
1. Intrusion on Plaintiff’s Private Affairs – Act of (1) prying by D, AND (2) the
intrusion would be objectionable to a reasonable person

Front 55

Invasion of Privacy: Publication in False Light

Back 55

(1) D attributes to P things he did not say or do AND (2)
the false light would be regarded as objectionable to a reasonable person. (this and def.
can overlap, but need not) example: saying an anti-abortion reverend recently signed a petition to preserve Roe v. Wade. Malice must be present if a matter of public interest

Front 56

Invasion of Privacy: Public Disclosure of private facts

Back 56

(1) D publicly exposes P’s private info, especially if true,
AND (2) a reasonable person would object to its being made public. There is a constitutional
privilege for matters of legitimate public concern

Front 57

Invasion of Privacy: Appropriation of P's name or picture

Back 57

D’s unauthorized use for his commercial advantage (usually advertising, or promoting goods or services) of P’s name or likeness

Front 58

Consumer Protection Act

Back 58

A. Unfair or Deceptive Act – violation of unfair practice statutes (like price fixing or false ad) or acts that have capacity or tendency to deceive, intent not necessary
B. In Trade or Commerce – excludes counties and public utilities
C. Affecting the Public Interest – part of pattern with potential for repetition, not isolated events
D. Injuring Plaintiff in Business or Property – P must suffer injury- get attys fees and treble damages
E. Statute of Limitations – 4 years but tolled during pendency of enforcement action brought by AG

Front 59

General Considerations for all tort actions: Vicarious Liability

Back 59

1. Respondeat Superior (Master/Servant)
2. Partnership Liability – each partner vicariously liable for torts w/in scope of partnership
3. Automobile Owner Liability – no vicarious liability except family car doctrine
4. Parent for Child – no vicarious liability unless acting as parent’s agent. WA stat makes parents liable for up to 5,000 dollars for intentional torts

Front 60

General Considerations: Multiple D's

Back 60

1. Plaintiff not at Fault
a. Joint and Several Liability for Indivisible Injuries -
b. Apportionment for Divisible Injuries
c. Contribution – A D may seek this if paid more than his share for joint and sev.
2. Plaintiff at Fault
a. Comparative Fault -
b. Several Liability
c. No Contribution – it is irrelevant

Front 61

General Considerations: Survival/wrongful death/CP and family issues/SOL issues

Back 61

C. Survival of Actions – P must be a surviving spouse, child, or dependent parent or sibling. Conceived of as harm to decedent – pain and suffering to the decedent
D. Wrongful Death – action for covered beneficiaries to recover pecuniary damages and loss of consortium, not pain and suffering. Conceived of as harm to community
E. Community Property and Family Issues – no interfamily tort immunity. Child may not recover for mere negligent supervision.
F. Statutes of Limitations – 2 years for intentional torts, 3 years for all other torts except medical malpractice which is 3 years from date of wrongful act or 1 year from P’s discovery of the tort, whichever is longer

Front 62

Duties: Bailment Duties

Back 62

a. If bailment is for bailor benefit then duty is only slight care for bailee
b. If for the bailee’s benefit, then duty is extreme diligence
c. If for mutual benefit then ordinary RP standard applies

Front 63

Duties: Statutory Standards

Back 63

usually criminal laws that do not explicitly provide for tort liability
a. Adoption of stat. standard of care – only if both P and his harm are among those included in intent of statute
b. Effect of adoption – evidence of negligence. Negligence per se for drunk driving and for certain fire safety violations
c. Excuses for violations of stat. danger from compliance exceeds danger from violation, inability to comply, no reasonable knowledge of occasion for compliance.

Front 64

Duties: Landowners - Invitee

Back 64

i. Plaintiff - Includes business invitees (mutual dealings with O), and Public Invitee (O’s express or implied invitation to public)
ii. Duty – O has duty of reasonable care to make safe or warn AND discover problems (constructive notice if condition has been there long enough)

Front 65

Duties: Landowners - Licensee

Back 65

i. Plaintiff – There by O’s permission for “own” benefit – includes social guests
ii. Duty – P takes land as is. O’s only duty is to warn of known (latent defects

Front 66

Duties: Landowner - Trespasser

Back 66

i. Plaintiff – No permission, express or implied
ii. No duty except to avoid intentional torts and recklessness

Front 67

Duties: Attractive Nuisance -

Back 67

i. Plaintiff – young children trespassing
ii. Duty – O has duty to eliminate conditions that pose a danger to young children if
1. condition is dangerous in itself
2. it is alluring to young children
3. children can’t comprehend degree of danger
4. Area is left unguarded and accessible to children
5. there is a reasonably practical way to make condition safe without destroying O’s purpose in using the land

Front 68

Duty: Affirmative duty to act

Back 68

a. Generally – No duty to help strangers in peril
b. But duty to help if D’s tort caused P’s peril OR D’s actions increased P’s risk of harm OR
c. D has already undertaken to help

Front 69

Interference with a business relationship

Back 69

i. An existence of a valid contractual relationship between P and third party or a valid business expectancy.
ii. the D's knowledge of the relationship or expectancy
iii. intentional interference by the D inducing a breach oer termination of the relationship or expectancy, and
iv. Damages

Front 70

Trespass to Chattel - easier definition to remember

Back 70

Minor interference with the P's personal property that causes damages

Front 71

Conversion - Easier definition to remember

Back 71

Intentional interference with the P's right of possession in the chattel that is serious enough in nature or consequences to warrant that the D pay full value