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199 Cards in this Set
- Front
- Back
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Assault
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D acts to place the P in apprehension of imminent harmful or offensive contact
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Assault : (element) apprehension
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awareness/ knowledge (fear is not necessary). Unaware or unconscious victims can't claim assault.
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False Imprisonment
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D unlawfully and intentionally acts to confine or restrain P in a bounded area.
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False Imprisonment: (element) restraint or confinement
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Restraint can be with barriers, physical force (e.g. body guard at only exit) or through threats against self, property or 3rd party (e.g."I’ll hurt your little girl if you move from this room"). There can be no reasonable route of escape. Size of area immaterial.
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Elements of Intentional Infliction of Emotional Distress
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D by exteme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress
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False imprisonment Exception
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Shopkeeper's privilege to detain a suspected thief with reasonable suspicion for a reasonable time (reasonableness inquiry applies to all aspects)
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IIED: outrageous conduct: standards for determining
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RST 2nd is useless: "conduct ... so outrageous in character, and so extreme in degree, as to [be] utterly intolerable in a civilized community."
Actually useful things to know: pregnant women and children are given a more protected status; non-outrageous conduct can rise to the level if continuous or repeated; a history with the victim (e.g. history of domestic abuse), or special knowledge of the victim's special characteristics (e.g. knoweldge of vic's fear of spiders when put a spider in his bed) can affect whether or not the conduct is determined to be outrageous |
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Trespass to Land
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1. Defendant commits an act of physical invasion.
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Trespass to land element: intent
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intent not required to trespass, but simply to enter the land
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Trespass to Chattels
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interference with another's personal (not real) property rights through dispossession or intermeddling (intermeddling means interference, e.g. infecting computer with virus)
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Trespass to chattels element: intent
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intent not to dispossess or intermeddle, but simply to take or act on the property (e.g. mistake is no defense if you take someone's identical backpack home)
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Affirmative defenses to intentional torts
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self defense, defense of others, consent, privilege
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Intentional tort defenses: consent limitations
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youth intoxication, duress, or incompetence may invalidate consent. Mistake sometimes will invalidate (if D takes advantage of, or induces through fraud as to an essential matter).
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Defense for intentional torts: what is Express Consent
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actual words spoken or written by P that gave D permission to behave in the challenged way (e.g. "Keep my lighter so I can't smoke")
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Defense for intentional torts: Implied Consent
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1) P silent when a reasonable person would consent; 2) Implied by law (e.g. statute dictates that vic is considered to have given implied consent to medical treatment when unconscious); 3) Implied by custom, e.g. in playing contact sport -- BUT consents to reasonable expectations for the sport, and not to injuries from intentional misconduct.
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Defense for intentional torts: self defense
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An individual can act with force proportionate to the threat if she reasonably believes harm is about to be inflicted on her
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Defense for intentional torts: self defense: effect of mistake
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A mistake will not defeat the availability of self defense as a defense, as long as the mistake was reasonable
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Defense for intentional torts: public necessity
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D interferes with a P's property in an emergency situation to protect the community or society as a whole from a greater harm that would have occurred if the defendant had not committed trespass. Absolute defense.
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Defamation -- P must show...
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1) Defamatory language (false language that which diminishes the respect, esteem or goodwill of the P or deters other from associating with her); 2) of or concerning the P; 3) published to a 3rd party who understands the defamatory content; and 4) damages to the P's reputation
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What is a defamatory statement?
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A false statement that which diminishes the respect, esteem or goodwill of the P or deters other from associating with her
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What does it mean to 'publish' a defamatory statement?
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D must reveal or share the statement with at least one person other than plaintiff.
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Libel
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Defamation that is written or otherwise recorded
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Slander
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Spoken defamation (spoken in any setting).
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T/F Truth is an affirmative defense to defamation
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true
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Is what D published of public concern? If yes
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then must use Constitutional analysis.
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Appropriation
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Unauthorized use of P's name or likeness for a commercial purpose.
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Intrusion
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Invasion by D of P's seclusion.
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False Light
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Widespread dissemination by D of a material falsehood about P that would be objectionable to a reasonable person.
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Disclosure
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Widespread dissemination of confidential information about the P that would be objectionable to the average person.
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Elements of a Negligence Action?
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Act, Duty, Breach, Causation, Damages
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To whom to we owe a duty of care?
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1. Foreseeable Victims (No duty owed to unforeseeable victims) - those in the zone of danger
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How much care do we generally owe foreseeable victims?
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Reasonably prudent person acting under similar circumstances.
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What are the effects of physical and mental infirmities in determining the reasonable standard duty of care?
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consider the physical characteristics (but not old age) so as to determine what a reasonable person with similar physical characteristics would do -- e.g. a reasonable blind person. No concession for mental infirmities (no reasonable schizophrenics), including being intoxicated
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Standard for Professionals
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Professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities.
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Standard for Professionals - Informed Consent
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A doctor has a duty to disclose the risks of treatment to enable a patient to make informed consent.
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Standard of care for children.
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Children are held to the standard of a child of like age
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Standard of care for innkeepers and common carriers.
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Held to a very high degree of care - they are liable for slight negligence.
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Standard of care for automobile driver to guest
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duty of ordinary care, unless there is a guest statute (Then a lesser standard-- avoid willful/wanton)
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Duties owed by a bailor?
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Gratuitous bailment: bailor must inform of known dangers
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Duties owed by bailee where sole benefit is to bailor
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1. Bailment for sole benefit of the bailor: bailee owes a low standard of care
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Duty of care in emergency situations?
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A D must act as a reasonable person would under the same emergency conditions.
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How to determine the duty of care owed by owners and occupiers of land?
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Depends upon:
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Duty of possessor of land to non-entrants (people walking by on the street)?
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Generally
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*In urban areas
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the owner/occupier is liable for damage cauesd off the premises by trees on the premises.
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Duty of possessor of land to undiscovered trespassers?
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No duty of care.
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Duty to anticipated or discovered trespassers?
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all trespassers the possessor knew of or should have known of. Duty to protect from:
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Only need to protect trespassers from the known
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man-made
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(Definition of licensee?)
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Licensees: those who enter with permission but with no purpose of conferring commercial / business benefit on the possessor (social guest).
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What is an invitee
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Invitee - person entering for mutual gain/benefit (usu business guest); or the land is open generally to the public.
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Duty owed to emergency responders on land?
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Firefighters
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Attractive nuisance doctrine
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i)artificial condition exists where children are likely to trespass ii)owner knows of unreasonable risk of death or serious injury iii) children b/c of youth won’t discover or appreciate danger, iv) risk/utility analysis: the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; AND v)landowner fails to use reasonable care to protect children from harm. All 5 need to exist – so even if risk utility not in owner’s failure, taking reasonable care will excuse him. NO need for the feature to entice the child on to the property. (Attractive nuisance doctrine) Possessor must exercise reasonable prudence to protect child trespassers from artificial conditions on the land:
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How can a possessor of land satisfy their duty / avoid liability?
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1. give a warning or
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What is negligence per se?
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When the P is in the class of people intended to be protected by the statute; when the type of harm is that intended to be prevented by the harm; when the interest was of the type intended to be protected by the statute ; and the harm materialized in the manner of legislative concern. E.g. statute re. crossing the street in the cross walk is presumably to protect pedestrians from being hit by a car. If a pedestrian is punched by another pedestrian while jaywalking the first ped is not negligent per se.
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When is there an affirmative duty to act?
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Generally
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Having decided to rescue
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the gratuitous rescuer can be liable if they don't rescue like a reasonably prudent person.
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1. A preexisting relationship between the person in trouble and the potential rescuer. (inkeepers
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common carriers
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Negligent infliction of emotional distress?
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NEAR MISS: P will recover if
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Breach
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Plaintiff identifies the specific unreasonable conduct the defendant did AND gives a reason why it was unreasonable. (FACT + ELEMENT)
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What is the typical legal use of res ipsa loquitor?
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To prove a prima facie case based on primarily circumstantial evidence so as to get to the jury
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Causation?
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Need
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Factual Causation?
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Links the breach to injury
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Factual causation with multiple defendants?
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Substantial Factor Test: used when there is a merged cause.
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If each breach was theoretically capable of causing the damage by itself
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then the two defendants will be jointly liable with each other.
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In an unascertainable cause case
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the burden shifts to the defendants. If they can't then joint and several liability.
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Proximate Cause?
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Proximate cause requires that liability is fair.
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If the result of the breach is an unforeseeable outcome
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we let the defendant avoid liability. This comes LAST in negligence analysis.
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Proximate Cause in indirect cause cases?
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Well settled quartet:
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4. Subsequent Disease or Accident: for example
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patient falls while using his crutches in his house after car accident = foreseeable
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Eggshell Plaintiff Principal
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Once Plaintiff has established all the elements of a cause of action
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Defenses to negligence?
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1. Contributory Negligence
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Contributory Negligence Doctrine?
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Does not exist in most states anymore...
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Comparative Negligence Doctrine?
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Defendant will show that plaintiff failed to exercise proper care for his own safety.
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Care for one's own safety is normally reasonable prudence
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but it can be statutory (like don't jaywalk).
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Modified or Partial Comparative Negligence - 2 parties
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when the plaintiff > 50% -- or >= 50% in some modified jurisdictions--P recovers $0
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When are you strictly liable for domesticated pet actions?
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No, but if you have knowledge of your domestic animals vicious propensities and the kind of harm is that expected, either because of the type of pet (e.g. doberman biting) or the particular pet's propensities, then you are strictly liable. No strict liability for trespass damage from marauding cats and dogs.
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Wild Animal Cases
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Those who keep wild animals are strictly liable. Safety precautions are legally irrelevant. There seems to be an exception to strict liability when the victim did something (presumably intentionally? but maybe negligence works too) to provoke the harm.
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Abnormally dangerous activities.
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Those who engage in them are strictly liable.
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1. creates a foreseeable risk of severe harm
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even when reasonable care is being exercised
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Product Injuries
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To establish a strict liability products claim:
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What is a "merchant" for purposes of strict liability
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A merchant is someone who routinely deals in goods of that type. A casual seller cannot be strictly liable.
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Explanation of "defective" element?
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The product came off the assembly line in a way that makes it more dangerous then consumers would expect.
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warnings and instructions
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If a product can't be physically redesigned
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Explanation of "hasn't been altered" element?
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If product mored in ordinary channels of distribution then there is an assumption of no alteration. (Defendant bears burden)
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Explanation of "foreseeable use" element?
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Plaintiff must have been using the product for a foreseeable use. Misuse doesn't defeat recovery if it was foreseeable.
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Defenses to Strict Liability Torts
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Comparitive Responsibility and Comparitive Fault (Jury assigns %s and P's recovery is reduced)
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Nuisance
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Interference with another's use or enjoyment of their property
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Can be caused by negligence
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intentional infliction or no fault.
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Nuisance remedy?
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Court will balance the equities / interests.
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Is the employer vicariously responsible for his employees' tortious acts?
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Generally yes if the tort was committed w/in the scope of employment, or if the employer gave the employee the opportunity to commit the tort (e.g. fraud).
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EXCEPTIONs for employer vicarious responsibility for employee acts
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if employee commits an intentional tort (counter exception when job fcn inherently involves force, e.g. bouncer); when employee on a frolic vs. a detour
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Vicarious Liability: Independent Contract - Hiring Party?
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No vicarious liability.
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Vicarious Liability: Automobile owner - Authorized Driver
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If statutorily mandated
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Liability of parent for a child's tortious acts
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Generally no vicarious (may be exception under family driving statutes, or if child is acting as parent's agent). Negligent supervision if parent was aware of child's tendency towards tortious behavior and did not act reasonably to prevent harms to others.
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Co-Defendants and comparitive contribution?
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Co-defendants can collect from each other based on % of fault of each???
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Loss of Consortium Claims
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1. Loss of Services (having to hire a housekeeper
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What are the elements of negligence?
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Duty
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To whom does P owe a duty?
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Foreseeable victims
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To whom does P not owe a duty?
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Unforeseeable victims - outside the zone of danger
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How will unforeseeable victims do on a negligence claim?
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They will always lose
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You negligently drive your car off the road and into a tree. The person behind you comes up to help, and is injured due to his negligent rescue attempt. Are you liable for his injuries?
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Yes, unless he was reckless. Rescuers are always foreseeable victims
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How careful must D be to avoid harming foreseeable Ps?
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Reasonable care - As careful as the hypothetical reasonably prudent person would be under similar circumstances
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What are the physical characteristics of a reasonably prudent person?
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Same as those of D
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What are the other characteristics of a reasonably prudent person.
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Careful
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How is the RPP standard harsh?
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It makes no allowances for D's personal mental conditions (e.g.
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What is the RPP standard for children?
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A child of like age
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What is the standard of negligence for common carriers and innkeepers
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Slight negligence - IF P is a guest
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Mark threw a harmless bug intending to hit Kathy, not knowing that she had a phobia about bugs. Kathy did not see him throw it. The bug missed and fell on the ground next to her. She saw it and started hyperventilating and had to go to the ER. Is there any tort theory under which she might prevail?
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No, most likely not. NO assault b/c she didn't see. No battery b/c he missed. IIED doesn't have transferred intent, and Mark's behavior was not intended to cause such an extreme action, neither was it outrageous or reckless. No NIED b/c she never thought she was going to be hit by the bug (and no threat of injury regardless).
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Reasonably prudent person standard for children < 4
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Unlikely to find liability
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RPP standard for children over 4 under 18
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Care of a hypothetical child of similar age
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Why is the RPP standard for children pro-defendant
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It's so customized to their personal situations that it's an uphill struggle for P
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RPP standard for children over 4 under 18 engaged in adult activity
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RPP objective standard
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Will a 5 year old be held liable for an accident while driving a car?
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Yes b/c considered an adult activity, held to adult standard
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What is the standard for professionals?
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Required to possess the knowledge/skill of a member of the profession/occupation in good standing in similar communities - conformity to the custom of that profession
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What is a doctor's duty to disclose?
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Doctors must disclose risks of treatment to enable person to make informed consent
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How does P educate jury on standard of care?
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Expert witness
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What is a "community" for primary care physicians?
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same or similar locality: the trend is to hold specialists to a national standard and general practitioners to a same or similar locality standard.
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How does "community" effect specialists?
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It means the community of comparable specialists
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What duty of care is owed to undiscovered trespassers?
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None - they can never recover on negligence claim against landowner/possessor
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Is an owner/occupier liable for damages caused off-premises by trees on the premises?
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Yes
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Why is an undiscovered trespasser owed no duty?
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He is an unforeseeable plaintiff - see Palsgraff
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What duty of care is owed to anticipated/discovered trespassers?
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Activities - RPP standard; known
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If people typically shortcut through field
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what type of trespasser would an unknown trespasser be?
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What is a licensee?
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A person who enters land w/ permission but don't confer economic benefit on owner - e.g.
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What duty of care is owed to licensee?
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Activities - reasonable care; conditions - warn of known dangerous conditions
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What is the attractive nuisance doctrine?
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RPP to avoid risk of harm to children caused by artificial conditions
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What must P show to establish that the attractive nuisance doctrine applies? (4)
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Dangerous condition that owner knows or should know of
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What duty of care is owed to invitees?
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Activities - RPP; conditions - warn of concealed traps
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What is an invitee?
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A person who comes on property to confer economic benefit or because property is open to the public
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Does a child have to be attracted onto land by the dangerous condition for the attractive nuisance doctrine to apply?
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No
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When does an invitee lose that status?
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When the invitee exceeds the scope of the invitation
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What is the firefighters rule?
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They can never recover for inherent risks of their job.
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What duty is owed to users of recreational land?
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No liability for injuries suffered by recreational user
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What to consider re child trespassers?
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How likely is it that children will trespass? Is the danger artificial? Does it have an unreasonable risk of death /bodily harm? Can children appreciate danger themselves? Cost benefit analysis of removal of condition vs. keeping. reasonable care in mitigation/elimination of risk
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How to satisfy duty to people who come on land?
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Adequate warning or repair - either works
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When is violation of statute excused in negligence torts?
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When compliance would cause more danger than violation
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Does compliance with a statute establish due care?
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Not necessarily
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When does peril matter?
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Last chance doctrine under contributory negligence-- D harmed P when P was in peril due to own negligence and D had a last clear chance to avoid the injury. Helpless peril -- P knows, D knows or should know; oblivious peril--P doesn't know, D knows.
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What are the exceptions triggering duty to rescue?
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Assumption of duty by acting (but see good Samaritan law)
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Does a landowner have a duty to rescue an invitee?
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Yes
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When can bystander outside the "zone of danger" recover for negligent infliction of emotional distress?
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P and negligently injured person are closely related
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Res ipsa loquitur
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Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of negligence in the absence of direct evidence of such negligence. For the doctrine to apply, the plaintiff must prove that (i) the plaintiff’s injury or damage was caused by an instrumentality or condition that was under the defendant’s exclusive control or the defendant is responsible for all others in control at the relevant times, (ii) the plaintiff’s harm would not have occurred if the defendant had used ordinary care while the instrumentality was under his control, and (iii) the plaintiff was not responsible for his own injury. Accident causing the injury is of a type that normally wouldn't occur unless someone was negligent
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Does Res Ipsa ensure a guilty verdict for D?
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No
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What is the burden of proof in a torts case?
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Preponderance of the evidence
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What essentially is proximate causation trying to show?
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That it's fair to make D pay for P's injury
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What common intervening forces are almost always foreseeable when a P suffers injury?
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Subsequent medical malpractice
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Is D liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force?
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Yes
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Is D liable where a totally unforeseeable result was caused by a foreseeable intervening force?
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Generally
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Is D liable when unforeseeable intervening forces cause unforeseeable results?
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No - these are superseding causes
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Is D liable when the harm resulting from his breach is unforeseeably severe?
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Yes. Eggshell skull plaintiff
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Which torts does the eggshell plaintiff rule apply to?
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All torts
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How are damages determined in a pure comparative fault system?
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Strictly by the #s
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What is the measure of property damages?
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Reasonable cost of repair
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When may P recover punitive damages?
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When D's conduct is "wanton and willful"
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What are nonrecovery items in personal injury suits?
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Attorney fees; Interest from date of damage
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Does P have a duty to mitigate?
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Yes
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How are damages affected if P receives benefits from his own insurance?
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They are not affected.
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When is an employer liable for act of independent contractor?
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Generally no, but yes when the duty is nondelegable on public policy grounds, e.g. inherently dangerous activities
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Is a parent vicariously liable for the torts of her children?
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No
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Can a parent be liable for the tortious actions of his child?
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Under a negligence theory if he knows of child's predisposition etc and fails to control. Not under vicarious liability.
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Battery: intent
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only as to harmful/offensive touching, not to harm
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What are the elements of intentional interference of contract/prospective economic advantage?
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Existence of valid contractual relationship between P&3d party/economic expectancy of ; D's knowledge of the expectancy; intentional interference by D inducing breach/termination of the contractual relationship/expectancy; damage to P
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How is a hotel's duty measured vis a vis guests - as innkeeper or land occupier/invitees?
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Analyze both - innkeeper's high duty of care toward guests; land occupier's duty to make premises safe for invitees
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What can create a legal duty to affirmatively act for the benefit of others?
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The existence of a special relationship
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Does an employer owe an employee a duty to protect him from unreasonable risk of injury when the employee was acting w/I the scope of his employment?
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Yes
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Battery
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D acts intentionally to create harmful or offensive (unpermittable to normal person in the society) contact with the person
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For which torts can liability be found without damages being shown?
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trespass, assault, battery, false imprisonment (if victim is aware of confinement), and negligent infliction of emotional distress (NIED) in two special cases -- i) where a corpse has been mishandled, or ii) where misinformation has been given that a family member has died
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Can nuisance damages include personal injury?
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Yes, such as headaches from smells, noise.
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Are damages required for a nuisance suit
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No (yes under common law, but now abatement or injunction can be remedies )
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Can a P recover any economic losses in a strict liability action for a product defect?
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No. Damages in strict liability are permitted to the extent that they include any personal injury to plaintiff or property damage
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Can a neighbor whose enjoyment or use of his property is not impacted by a neighbor's activities prevail in a nuisance action?
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Yes, possibly; the standard is for interference by an ordinary person in the community. However, the neighbor's recovery is likely to be limited if he can show no impact.
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Can an neighbor recover under nuisance for special sensistivity (e.g. asthma, finely calibrated equipment) where harm results from the neighbor's activities?
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No, because the standard is that of the ordinary person in the community.
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Intentional Torts: prima facie case
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Must include 1) volitional act; 2) intent or substantial certainty of the outcome; and 3) causation
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Joint Enterprise Doctrine
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A kind of vicarious liability. The joint-enterprise doctrine allows the jury to impute one defendant’s negligence to other defendants who are engaged in a common project and who have an understanding about how the project is to be carried out.
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Alternative liability
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Summers v. Tice -- all parties acted tortiously, and any could have caused the harm that resulted, but can't prove which actually did. Not joint and severally liability, but with the same effect. Relieves of burden of finding single indivisible harm form multiple tortfeasors, or of identifying the responsible parties. Used in products, such as when drugs manufactured by several companies are found to cause problems long afterwards; and for fires started from multiple sources.
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Joint and several liability
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Joint and several liability can be found where the acts of two or more defendants, acting independently or in concert, cause a single harm which is indivisible, and each is held liable for the entire amount of damages.
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Is the standard for doctor's informed consent that of the reasonable doctor in the community?
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No -- it is the information that a reasonable patient would want to know.
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If trespass to chattels results in disposition, the plaintiff may recover __
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actual damages and loss of use
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If trespass to chattels is simply through intermeddling, the plaintiff must show
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actual damages
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When does conversion aply?
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Dispossession or interference with personal property so serious that plaintiff is deprived. D must pay value of property at time of conversion. E.g. a masterpiece painting is slashed with a knife, or someone steals and sells your car
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If chattel was rightfully obtained, what must happen before a P can bring a conversion action?
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Make a demand for its return, and the the demand must be refused
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To determine whether the interference is serious enough to warrant conversion, what factors are weighed?
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1) duration and extent; 2) intent to deprive; 3) good faith action; 4) inconvenience/expense; 5) extent of damage
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If a P simply wants the chattel back, he can bring an action so require its return, called ____
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replevin
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What is replevin
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A remedy by which chattel is returned to the P
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When is deadly force allowed?
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Where a victim reasonably believes that that serious bodily injury or death is threatened
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Majority rule: is there a duty to retreat before acting in self defense?
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No
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Minority rule: is there a duty to retreat before acting in self defense?
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yes, as long as it can be done safely. Exception: no duty to retreat in your home or its curtilage.
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Restatement rule: how does the duty to retreat vary from the minority rule?
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the duty to retreat extends to the home/curtilate, as long as it can be done safely.
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When can the first offender allowed to use deadly force?
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When the conflict has escalated by the actions of the other party (Mike punches Joe and Joe pulls out a gun; Mike can now pull out a knife in self defense)
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Self defense -- responsibility to third parties
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a person acting in self defense is not liable for injury to a third party unless the injury was intentional
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When can a person act in defense of another?
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when the person reasonably believes that the other is entitled to use self-defense. Reasonable mistake is ok.
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Can deadly force ever be used to protect property?
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no
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Defense of property
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OK to defend from the commission of a tort to property if owner reasonably believes in the apparent necessity of that use of force and he uses only a reasonable and proportionate degree of force.
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In defense of property, is it ok if the D made a mistake about the property boundary?
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yes, as long as it was a reasonable mistake
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Language that is not defamatory on its face can become defamatory when coupled with an __
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extrinsic fact. (e.g. saying "Sarah is sleeping with richard," where both parties know Sarah is married)
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For the publication element of a defamation showing, must the communication be intentional?
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No, negligence is sufficient
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A deceased person (may /may not be ) defamed
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may not be
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Defenses to defamation under qualified privilege are...
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1) affecting an important public interest; 2) in the interest of the publisher (e.g. defending his own reputation); 3) in the interest of a third party or the recipient (e.g. telling employer actual but mistaken belief that a co-worker is embezzling)
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Defenses to defamtion for qualified privilege can be lost if -__
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they are abused, generally with a show of malice, or exceeding the scope of the privilege
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what are absolute privileges for purposes of defamation
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legislative or judicial proceedings, husband and wife, mandatory publications by broadcast media
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