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51 Cards in this Set
- Front
- Back
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Intentional Torts
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1. Intentional Torts: either intends to cause consequences of the act or if there’s substantial certainty that tort will result.
a. consent is a defense. If defendant exceeds consent he can he held liable. i. Assault b. Battery c. Fi d. Trespass to chattels e. Conversion f. Iied g. Trespass to land |
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Defense to Intentional Torts
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consent is a defense. If defendant exceeds consent he can he held liable
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IIED & 3rd party recovery
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must be a close family member and must be present and defendant must be aware or should be aware of the family member’s presence.
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ED w/o physical injury or bodily harm
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no damages
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mistake of ownership
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no defense to conversion
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trespass to chattels
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a SLIGHT interference to chattels. If defendant commits a trespass to chattels, then he’s liable for the diminished value of the chattel.
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conversion
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where the defendant exercises dominion or control over the chattel of another and it’s a substantial or significant interference with plaintiff’s ownership rights. At CL, a forced sale and defendant is liable for the full value of the chattel.
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Mistaken trespass?
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Mistake is no defense for intentional trespass
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liability for intentional entry onto property of another
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nominal damage even if no harm
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Negligent or reckless entries
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liable only if damage
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Accidental entries
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no liability if non-negligent and unintentional
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Non-negligent accidental entry and unintentional
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13. Non-negligent accidental entry and unintentional. No liability! ACCIDENTAL UNINTENTIONAL.
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False Imprisonment:
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D must act intending to confine the plaintiff w/in certain fixed boundaries
An actual confinement must occur. Plaintiff must be aware of the confinement or injured by it. |
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Shopkeeper:
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Shopkeeper: who reasonably believes that a theft has occurred is priv to make a detention in a reasonable manner for a reas. Period of time to determine if theft has occurred. This is VERY limited. Shopkeeper must do on scene, what is nec. To det if theft has occurred. If unreas. Length (30 min +) then priv is lost and shopkeeper can be held liable for false imprisonment.
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duty to control the conduct of a 3rd person
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No duty to control the conduct of a 3rd person unless a special relationship exists between the parties. Prosser says, a special relationship exists here
Common carrier & its passengers Innkeeper and its guests Landlord and tenants Jailors and prisoners Schools and pupils* When the teacher noticed that T had gun, teacher owes a duty to take action in order to disarm student. By failing to take action, teacher has breached duty of care owed and school can be held liable for the student’s criminal acts that follow. Look for proximity as well. |
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duty owed to licensees
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Licensees: A guest. Someone who has permission to enter on to your property. A possessor or owner of land owes a duty to WARN the licensee of KNOWN DANGEROUS CONDITIONS that exist.
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Invitees
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Invitees: customer in a store. 2-fold duty owed. There are customers and there are buildings open to members of the public – like airports, hotels, museums, churches, you’re still an invitee and duty of care is to:
Inspect the premises and Make safe for the protection of the invitees who enter |
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Automobile passengers
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Gratuitous passengers – a licensee. A duty to warn him or her of known dangerous conditions.
Paying passengers – chip in for gas or pay tolls – an invitee |
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Hotel guest
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Hotel guest is an invitee. Duty to inspect the premises and make safe for his or her protection.
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Attractive nuisance doctrine
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19. Attractive nuisance doctrine: the trespassing children’s doctrine
There must be an artificial dangerous condition on the property The owner of the land must know or should know of the existence of the dangerous condition A trespassing child must enter the property *The child, b/c of youth, age, or immaturity fails to appreciate the danger or realize the risk. The utility of maintaining the dangerous condition is slight compared to the risk. Subjective test: did child SUBJECTIVELY appreciate the danger or not? Obejctive for general negligence. Subjective for attractive nuisance. |
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Neg per se or violation of statute
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Must be member of the class pf persons intended to be protected by the statute and
The harm suffered must be of a type the statute was designed to protect against. * Blue law prohib. Sunday morning alcohol sales isn’t designed to prevent accidents. This is designed to aid in the observance of the Sabbath. |
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Res ipsa
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Res ipsa: inference of negligence.
The accident does not normally occur absent negligence on the part of the defendant. The instrumentality causing the accident was within the defendant’s exclusive control. *Defendant parked the car on the hill, 2 is met, and inference that he is negligent because the car rolled down the hill. |
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Respondeat Superior
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Respondeat Superior: employer is vicariously liable for negligence of employee that occurs w/in the scope of the employment relationship.
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indemnification
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Employer vicariously liable. Indem shifts loss form one person required to pay to another person who should be liable instead. Can seek full amount from the other.
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independent contractor
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A person who hires an independent contractor is not vicariously liable for the negligence of the independent contractor.
2 exceptions *Unless contractor engaged in a nondelegable duty, then employer IS vic liable Usually on MBE, if it’s a non-del duty, situation where someone hires a person to perform work in a public area or in a public place. You own 10-story office building in Chicago. You hire painter. Since work is being performed in a public area and there’s a risk to pedestrians b/c of i.e. scaffold, then the duties are non delegable and the employer is vicariously liable for the negligence of the ind. Cont. But if you hire painter to pain at your personal home, and the painter injures someone, then NO vicarious liability. Or if contractor engaged in ultrahazardous activity. |
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Joint tort feasors
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Joint tort feasors: where you have 2+ tort feasors whose combined negligent acts cause an indivisible injury (incapable of apportionment) then each tort feasor is jointly severally liable for damages suffered by plaintiff.
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Intervening Causes
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Intervening Causes: X is negligent and that causes Y to be injured. Y is taken to hospital. ER doc acts negligently. Is that intervening act foreseeable or unforeseeable? If it’s foreseeable, then X will be liable for the new or aggravated injuries suffered by the plaintiff. An unforeseeable intervening force is a superceding force and BREAKS chain of causation and relieves X of any further tort liability.
Break chain Acts of god Criminal acts of 3rd persons Intentional tortuous acts of 3rd persons |
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abnormally dangerous activity
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Restatement of Torts 522: one who carries on an abnormally dangerous activity is subject to strict liability for the resulting harm even though it is caused by a force of nature.
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Foreseeable Intervening cause
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Subsequent medical malpractice.
Negligence of rescuers Subsequent disease Subsequent accidents |
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Strict Liability
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3 types
Abnormally dangerous activities Strict products liability Wild animals |
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Fireworks
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Fireworks- so commonplace that we apply a neg standard rather than strict liability. BUT if someone is storing fireworks in a warehouse and there’s an explosion then STRICT LIABILITY because storing explosives is ultrahazardous activity.
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Radiation treatment
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Radiation treatment is deemed to be ultrahazardous. Doctor is held strictly liable for the injuries to the plaintiff.
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Strict products liability
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Strict products liability: one who sells a product in a defective condition unreas dangerous to user or consumer is held strictly liable. They must be engaged in business of sale, manuf, distributor, retailer… everyone who is engaged in the business of sale if the product leaves the seller’s hands in a defective condition. CN is never a defense. The only defense in SL is AOR.
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products dangerous when consumed in an excessive quantity
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Seller is not required to warn with respect to products which are only dangerous when consumed in excessive quantity or over a long period of time when the danger is generally known and recognized.
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thief and defective product
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A thief is not deemed a foreseeable user.
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who may recover for SL?
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Any foreseeable or ordinary user of a defectively dangerous product may recover for strict liability. A thief is not deemed a foreseeable user.
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SL and AOR
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37. SL: AOR is a subjective test. The plaintiff must be subjectively aware of the risk and knowingly expose himself or herself to the danger.
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Wild animals
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38. Wild animals: owner or possessor of a wild animal, you are SL for harm or injury the animal causes. You can never domesticate a wild animal.
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negligent misrepresentation
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Defendant made a false statement to plaintiff
Scienter – defendant must know or should know the falsity of his or her statement D must intend to induce P to act in reliance on the false statement Justifiable reliance by the plaintiff Damages/pecuniary loss suffered by the plaintiff |
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Nondisclosure
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40. Nondisclosure – failure to disclose info. Generally, non-d is not actionable for fraud or deceit unless there is a fiduciary relationship between the parties.
Fiduciary relationships Maj & min shareholder Executor & beneficiaries Bank and its depositors Close family members, h & w, bro & sis |
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nuisance
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nuisance: disturbance… creates a substantial and unreasonable interference with one’s use and enjoyment of the property. In determining a nuisance, Court may take into account fears and feelings common to members in the community or locality. In this regard, fear or dread of contagen may make it a nuisance even though there is no support in scientific fact or data.
The disturbance must be annoying, inconvenient, or offensive to a normal or average person in the locality. |
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Coming to the nuisance
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never an absolute defense – it is simply one factor that a Court will consider in balancing the equities.
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Sound waves
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are not tangible.
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remedies for nuisance
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Money damages
Injunctive relief Abatement by self-help Restatement 951: in an action for injunction, the Court may in addition to granting the injunction, also award a judgment for money damages. |
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Defamation: 2 types
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Libel – written defamation
Slander – spoken defamation P must plead and prove special damages. But in slander per se, damage to P’s reputation is presumed and no need to plead and prove special damages. Loathsome disease Unchastity to a woman Improper conduct in one’s trade, business, or profession Where the defendant falsely accused the plaintiff of committing a crime |
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Publication
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Publication: defamatory statement must be communicated to someone other than the person defamed. It must be understood by the 3rd person. Words spoken in other language are not actionable unless they are heard by someone who understands the language.
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Defenses for defamation
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Truth – an absolute defense
Absolute Priv. defense Judicial Proceedings Leg. Proceedings Exec. Proceedings Qualified Priv. defense* QP to make def. statements in the public interest and in the interest of others. i.e. job recommendations – as long as former employer reasonably believes the info. To be true, QP to act in the interest of others. D is a better answer than C. |
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invasion of right to privacy
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invasion of right to privacy. 4 distinct causes of action
Appropriation False light cases Public disclosure of private facts about plaintiff Intrusion on one’s seclusion or solitude |
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Public disclosure
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facts disclosed must be private facts
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Embarrassment
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Embarrassment bars recovery on a negligence theory… in negligence actions, (neid, neg. misrep) we don’t allow recovery for mental suffering or distress unless accompanied by physical injury or bodily harm.
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defamation vs. invasion of privacy
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Defamatory statement must lower his good name in esteem of the community. Book placed him in false light.
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