• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

Card Range To Study



Play button


Play button




Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

115 Cards in this Set

  • Front
  • Back
What is the best approach to answering a torts question?
1. Can P establish prima facie case requirements? If no, D wins. If yes, ask:

2. Can D establish affirmative defenses? If no, P wins. If yes D wins

3. Discuss general considerations (if any applicable). E.g., vicarious liability,multiple D issue/tort immunity, etc.
Hypersensitive P
Hypersensitivity of P not taken into account when deciding whether a tort was committed
Who is liable for intentional torts?
Every D is liable for their intentional torts, regardless of incapacity. There are no incapacity defenses for intentional torts.
Intentional torts to the person (4)
- Battery
- Assault
- False Imprisonment
- Intentional Infliction of Emotional Distress
Intentional torts to property (3)
- Trespass to Land
- Trespass to Chattels
- Conversion
Elements of Battery (2)
1. D commits harmful or offensive contact
2. Contact is with P's person

-Offensive means unpermitted by a person with ordinary sensitivity
-“P's person” includes anything held by plaintiff (i.e., briefcase)

+ Intent & causation
Elements of Assault (2)
1. D puts P in apprehension
2. Apprehension is of IMMEDIATE battery

-Apprehension means P's knowledge or awareness that unpermitted touching will follow

+ Intent & causation
Effect of words to create assault
Words alone are not sufficient; must be coupled with conduct. Future words destroy immediacy
Elements of False Imprisonment (2)
1. An act/omission by D that confines or restrains P
2. To a bounded area (locked, or no reasonably discoverable means of escape known to plaintiff)

+ Intent & causation
To claim false imprisonment, plaintiff must
know of the restraint or suffer harm from it
Elements of Intentional Infliction of Emotional Distress
- Act by D amounting to extreme and outrageous conduct
- Intent or Recklessness
- Causation
- Damages: severe emotional distress
Hallmarks of IIED re:Outrageous conduct
Outrageous conduct—exceeds all bounds of decency tolerated by a civilized society

Mere insults are never outrageous unless:
(1) Humiliated in a public place
(2) Repetitive or continuous conduct
(3) D is a common carrier or innkeeper (applies only when P is passengers or guests)
(4) P is a member of a fragile class (Young child, Elderly, Pregnant)
Hypersensitivity and IIED
Hypersensitivity is not enough unless D knew of and exploited the sensitivity
IIED is the only tort to the person that requires
Damages (severe emotional distress enough. Proof of physical injury NOT required)
IIED causation in bystander cases: plaintiff may recover by showing (3)
1. Present when the injury occurred
2. Close relative to injured person
3. D knew facts 1. & 2.
Elements of Trespass to Land (2)
1. Intent to go to the challenged location (whether D is aware or not that property is private)
2. Act of physical invasion (i.e., throwing a rock onto land of another) of plaintiff's land.

*Land = air above and soil below where owner can use the space
Trespass of intangible matter (i.e. sound, smell) more likely to give rise to claim of
Elements of Trespass to Chattels
- An act by D that interfers with Plaintiff's right of possession
- Intent
- Causation
- Damages: P gets repair cost
Elements of Conversion
- Act by D that interfers with plaintiff's right of possession
- Interefence is serious enough to require D to pay full value for chattel
- Intent
- Causation
Subject matter of conversion
Tangible and intangibles reduced to physical form (i.e. promissory note)
Potential plaintiff's in an action for Conversion
Anyone with possession or the immediate right to posession (lessee)
Defenses to intentional torts (5)
1. Consent
2. Self-defense
3. Defense of Others
4. Defense of Property
5. Necessity
CONSENT (Defense to intentional tort)
1. Must be valid
-Plaintiff had legal capacity to consent

2. D stayed within the bounds of the consent
How is implied consent determined? (as defense to intentional tort)
(1) Custom and Usage (i.e., football; hockey)
(2) D’s reasonable interpretation of P's objective conduct
How is expressed consent determined? (as defense to intentional tort)
(1) Actual words spoken or written
(2) Exception: duress, fraud, mistake
Self-Defense Privilege
The defendant must reasonably believe he or she is in IMMINENT danger.

Force used must be proportional to the threat.

Mistakes are allowed as long as the defendant’s beliefs were reasonable.
Defense of Others Privilege
When the D REASONABLY BELIEVES that other person could have used the force, D may act in their defense as they could have.

Mistakes are NOT allowed even if the defendant’s beliefs were reasonable.
Defense of Property Privilege
Defense of property claims require a reasonable belief of injury. Deadly force, including traps set on property, is never permissible for defense of property.
What intentional torts is the necessity defense limited to?
Necessity applies to property torts only--tresspass to land, tresspass to chattels, and Conversion
Public Necessity
It's an absolute defense.- Arises when D invades P's property in an emergency to protect community or significant group of people
Private Necessity
Arises when D invades P's property in an emergency to protect his own private interest.

-Not an absolute defense
(a) D must pay for actual harm caused
(b) D not liable for nominal or punitive damages
(c) P/owner must tolerate presence on land during emergency (sanctuary until emergency is over)
Elements of Defamation
i) Defamatory statement—alleged factual statement that tends to adversely affect reputation of P.

ii) Published—communication to a third person (intentionally or negligently)

iii) Damages, maybe (if P must prove damages, P limited to economic injury)
i) Defamation embodied in permanent form (i.e., writing, videotape)

ii) P need not show actual damages but can if he wants to
Spoken defamation.

P must prove actual damages, specifically economic harm.
Slander per se
A special category of slander where there is no obligation for the plaintiff to prove damages.

Slander per se is based on common law and includes statements that:
- are about a plaintiff’s profession,
-impute unchastity to a woman,
-imply that the plaintiff has a loathsome disease,
-or accuse the plaintiff of a crime of moral turpitude.
Two additional elements if Defamation involves a matter of Public Concern
1. Fault: The plaintiff must prove that the defendant acted with a certain level of fault.
--For public figures and officials: reckless disregard for the truth.

For private figures regarding events that are a public concern, a simple negligence standard applies.

2. Falsity: The plaintiff must prove that the defamatory statements are false.
Defamation by inducement and innuendo
Plaintiff may plead additional facts to establish defamatory meaning.
Defamation re: dead persons
Cannot defame dead persons
For defamation a public figure must also prove
Define Malice for purposes of defamation claim by a public figure
- Know the statement was false
- Reckless disregard for falsity
Statements involving matter of public concern against a private individual only need to show
Negligence regarding falsity
Defenses to Defamation (5)
1. Truth
2. Consent
3. Humor
4. Absolute Privilege
5. Qualified Privilege
Trueth: Defense to Defamation
Always a defense in matters of private concern. For matters of public concern, the plaintiff has the burden to prove falsity as an element of the claim.
Consent: Defense to Defamation
A defense in all defamation matters. If the defendant has permission to make the defamatory statements, the plaintiff cannot support a valid claim.
Humor: Defense to Defamation
There is a first amendment defense related to humor if the defendant can prove that the audience believed the statements were made in jest.
Absolute privilege: Defense to Defamation
Applies in very limited circumstances. This includes statements made by government officials in the conduct of their official duties (e.g., a judge making statements during a court proceeding), as well as political candidate broadcasts and communication between spouses.

- Also a defense to False Light and Disclosure.
Qualified Privilege: Defense to Defamation
Applies when the defendant makes statements under a good faith impression that they are true, and the statements both have a socially useful purpose and are connected to that purpose (e.g., a letter of recommendation).

- Also a defense to False Light and Disclosure.
Privacy Torts (4)
1. Appropriation
2. Intrusion
3. False light
4. Disclosure
Use of plaintiff’s name or picture without permission for commercial advantage (e.g., Tiger Woods).

Exception: newsworthiness
i) Invasion of P’s seclusion in a way objectionable to average person (e.g., eavesdropping)

ii) P must have an expectation of privacy

iii) No trespass requirement
False Light
i) Widespread dissemination of major misrepresentation concerning P's character, history, or beliefs that would be objectionable to an average person

ii) Damages are emotional and psychological loss

iii) Non-defamatory falsehood can be false light (e.g., Jewish guy portrayed as devout catholic)

iv) Careless or negligent act is enough. No intent required.
i) Widespread dissemination of CONFIDENTIAL information about P that is objectionable to average person

ii) E.g., medical records, transcripts, etc.

iii) Exception: Newsworthiness
Dual Life Fact Pattern in a Disclosure Claim
P operates in two public spheres of activity; information obtained from one sphere to the other is not disclosure (e.g., gay pride guy openly gay at rallies; has not come out at work; secretary sees him at gay rally and tells other workers; secretary not liable for disclosure)
Defenses to Privacy Torts
i) Consent is a defense in all types of privacy claims.

ii) Defamation privileges (absolute and qualified privileges) apply to false light and disclosure only
Duty of care extends to
Cardozo (majority) view: All FORESEEABLE plaintiffs under the circumstances (including rescuers, viable fetuses, & intended beneficiaries of economic transactions).-Zone of danger.

Andrews (minority) view: Everyone is foreseeable.
Standard of care
Reasonably prudent person under the circumstances
General exceptions to the RPP Standard of Care
Consider D's superior knowledge of a fact and D’s relevant physical attributes

(a) If D has superior knowledge, standard is RPP with that knowledge
(b) D’s relevant physical attributes are considered
Particular standards of care
- Professionals
- Children
- Common Carriers & Innkeepers
Standard of care among professionals
Average member of the profession practicing in a similar community
Standard of care among childen
(a) Under 4 = no negligence

(b) Over 4 = care of a hypothetical child of like age, experience, and intelligence

UNLESS: engaged in adult activities (e.g.,motorized vehicles; boats, cars, etc.)
Standard of Care among Common Carriers and Innkeepers
Plaintiff must be a customer; Held to a high degree of care; Liable for even slight negligence
Duty of care owed to Undiscovered Trespasser
1. Never owed duty of care under negligence theory

2. But can sue under intentional tort theory
Duty of Care owed to Discovered/Anticipated Trespasser/Constant Trespasser
Owed a duty of reasonable care if known, manmade death trap on the land

a. Artificial condition
b. Highly dangerous
c. Concealed from trespasser
d. Occupier had advanced knowledge of the condition
What is a Licensee?
A person who has the owner’s consent to be upon the land but who does not have a business purpose for being there. E.g., Social Guest, emergency rescuer --firefighter or police)
Duty of Care owed to Licensees
Owed a duty of reasonable care for all known traps
a. Occupier knows
b. Licensee unlikely to discover
3. Firefighters and Officers (licensees) may never recover from injury inherent in the job
What is an Invitee?
Persons who are invited by the owner onto the land to conduct -directly or indirectly- business with him. Also those who are invited as members of the public for purposes for which the land is help open to the public.
Duty of Care owed to Invitees
Owed a duty of reasonable care for all reasonably knowable traps on land.

a. Concealed from invitee
b. Owner knows in advance OR
c. Owner could discover with reasonable inspection
Duty of Care to Child Trespassers
Reasonable Care
To claim Attractive Nuisance Doctrine, infant trespassers must show (5)
1. Dangerous condition on land that landowner knows or should've known of;

2. Owner aware children may or did frequent land;

3. Condition likely to cause injury; (because of inability to appreciate risk)

4. Expense of remedy is slight compared with magnitude of risk
How to decide whether a statute should be adopted as the standard of care in a negligence case?

-Statutory Standard of Care (Negligence Per Se)
1. Examine the statute that D violated to establish the duty and breach;

2. P must be in the class of person protected by the statute; AND

3. Injury must be in the class of risks sought to be avoided by the statute
Exceptions to the statutory standard of care
No statutory standard of care if:

(i) Compliance with statute would be more dangerous than a violation

(ii) Compliance is impossible under the circumstances
There is NO affirmative duty to act or to rescue strangers, UNLESS:
1. D caused P's peril ;

2. There's a preexisting relationship between the parties:
-common carrier and innkeeper

3. If ∆ undertakes the rescue, must finish the rescue
Negligent Infliction of Emotional Distress (two situations)
1. D's negligence exposed P to physical harm but missed
- Subsequent physical manifestations from the distress (i.e., heart attack)

2. Grief or anxiety over injury caused to another
(i) P is a bystander present
(ii) Victim is close family member
(iii) High foreseeability of agitation but no risk of physical harm
Res Ipsa Loquitur - Plaintiff to show (2)
1. Accident of type not normally to occur unless someone was negligent
2. The negligence is attributable to the D (because it was in D's exclusive control)
Effect of establishing Res Ipsa Loquitur
No directed verdict for D; but plaintiff may still lose if inference of negligence is rejected (Jury MAY, but need not, draw inference of negligence)
Proximate Causation: Is it Fair to Make D Pay?
(1) D liable for foreseeable consequences of his actions

(2) Direct Cause Fact Patterns: One-Two Punch: D acts carelessly and P immediately hurt

(3) Indirect Cause Fact Patterns: Intervening Acts: D acts, minor or no harm, intervening event makes the harm worse or brings it to fruition

(4) Defendant always liable:
(a) Intervening medical negligence
(b) Intervening rescuer’s negligence
(c) Intervening protection or reaction forces
(d) Subsequent disease or accident
Actual Causation tests (3):
(1) General Rule: But for D’s conduct, injury would not have occurred

(2) Multiple Defendants; Mingled Causation—Substantial Factor Test (if D’s conduct was a substantial factor in the injury, D caused the injury)

(3) Multiple Defendants; Unascertainable Causation—Burden shifts to D's to disprove their negligence
D must pay for what damages?
D must pay for all damages suffered by P even if extent of damages is unforeseeably great (remember eggshell doctrine-D takes P as she finds him).
What are the three defenses to negligence?
(1) Contributory Negligence

(2) Comparative Negligence - pure & modified

(3) Assumption of the Risk
Defenses to Negligence: Contributory Negligence State
Any degree of P’s fault bars recovery.

This defense does NOT apply to intentional torts.
Exception to Contributory Negligence Defense: Last Clear Chance
(1) Defendant had the last clear chance to avoid the injury (could have been avoided even if P was also negligent), and

(2) Defendant's conduct was reckless.
Defenses to Negligence: Pure Comparative Negligence
Recovery reduced by P’s fault. E.g, if P is 60% at fault, will only recover 40%, etc.
Defenses to Negligence: Partial/Modified Comparative Negligence
(1) If P’s fault under 50%= recovery

(2) If P’s fault over 50%= no recovery
Defenses to Negligence: Assumption of Risk
Plaintiff must have:

1. Known of the risk; and

2. Voluntarily assumed it

It is irrelevant that plaintiff's choice is unreasonable
What situations will bar an implied assumption of the risk defense?
(1) plaintiff has no other viable alternative,

2. Personal injury liability by common carrier/public utility cannot be disclaimed

3. Statute enacted to protect a class, members of that class are not deemed to have assumed any risk

4. Fraud, force, or emergency
Strict Liability Prima Facie Case
To establish a prima facie case for strict liability, the following elements must be shown:

1. The nature of the defendant's activity imposes an absolute duty to make safe;

2. The dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury; and

3. The plaintiff suffered damage to person or property
Strict liability re: domesticated animals
No strict liability UNLESS D has knowledge of vicious propensities.
Strict Liability re: Trespassing Cattle and Wild Animals
Always strict liability
What's an ultra hazardous activity?
i) Activity that cannot be made safe

ii) Severe risk of harm

iii) Uncommon in area where conducted

iv) Fact patterns
(1) Major explosives
(2) Toxic chemicals
(3) Nuclear energy
Strict Liability re: ultra hazardous activity
Always strict liability
Public Nuisance defined
Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.

Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large.
Private Nuisance defined
Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property he actually possesses or to which he has a right of immediate possession.
Can a plaintiff maintain a nuisance suit even when he came to the nuisance?
Yes. There is no 'coming to the nuisance' defense.
What makes an invasion of a public right or land owner's right to use and enjoyment of his property 'unreasonable'?
The harm caused to plaintiff outweighs the utility of defendant's conduct.
In general, who is a proper defendant in a products liability case based on negligence?
The manufacturer only
Who is a proper plaintiff in a products liability suit?
Anyone in the zone of danger, including bystanders.
What types of conduct by a manufacturer may give rise to a products liability suit based on negligence?
Negligent: (1) design, (2) manufacture, (3) warning, or (4) inspection.
Who is a proper defendant in a products liability case based on strict liability?
Manufacturer OR seller
When is strict liability appropriate in a products liability case?
When the product is sold in 'unreasonably dangerous condition.'
When might adequate warning be inadequate to insulate a manufacturer from liability in a products liability suit?
When the defect could have been cured for a minor amount relative to the risk involved.
What are the general considerations for all tort cases?
(1) Vicarious liability,

(2) Multiple defendant issues,

(3) Survival actions,

(4) Tort immunities
Vicarious Liability defined
Imposes responsibility upon one person for the negligence of another, with whom the person has a special relationship.
Respondeat Superior Doctrine
Employers are vicariously liable for torts committed by their employees within the scope of employment.
What constitutes 'scope of employment'?
(1) Rule of Detour = liability for employee’s minor detours on the job

(2) Rule of Frolic = no liability for employee’s major detours on the job
Employers are not vicariously liable for...
Intentional torts, UNLESS:

(1) Employer authorizes the tort,

(2) Force is required for the job (i.e., bouncer, etc.),

(3) Employee is attempting to further employer's business.
Are automobile owners generally liable for the torts of other people who drive their cars?

(1) In a 'family car' jurisdiction, a household member uses the vehicle with permission or,

(2) In a 'permissive use' jurisdiction, anyone uses the vehicle with permission.
Are parents generally liable for their children's torts?
No. However, parents can be held liable for their own negligent acts, such as failure to supervise a child, or failure to keep a dangerous instrument such as a handgun outside the reach of their children.
What is the general rule regarding joint tortfeasors?
Where mutiple acts cause an indivisible injury, all tortfeasors are jointly and severally liable.
Joint & Several Liability
P can recover entire judgment from any one or all Ds.
Recovery against joint defendant
Out-of-Pocket D can recover from co-D pursuant to percentage of fault found by the jury.
Indemnity Exception to Joint & Several Liability
Out-of-pocket D can recover 100% from co-defendants if:

(1) Out-of-pocket D was vicariously liable only (employer on a guilty employee)

(2) Products Liability Case: any party other than mfg. can get indemnity from mfg.
Wrongful death action
A type of lawsuit brought on behalf of a deceased person's heirs or beneficiaries alleging that the death was attributable to the willful or negligent act of another.

The suit is entirely derivative. Thus D can raise any defense that would’ve worked against decedent, including contributory negligence.
When is a plaintiff barred from recovering in a derivative suit?
When the person from whom the plaintiff derives the suit would be barred from recovery.
Governmental Immunity
(1) Gov't immune when engaging in traditional governmental activities involving discretionary decisionmaking or

(2) Duty owed to the public as a whole and not just to the plaintiff at the time
Loss of Consortium
i) Must be married

ii) Uninjured spouse gets separate action against tortfeasor

iii) Gets compensation for (1) loss of services (2) loss of society or companionship (3) loss of sex