Torts Lecture Flashcards

120 vocabulary flashcards covering the core concepts of Torts based on the provided lecture transcript.

Intentional Tort + what π must prove

A tort committed on purpose that results in physical injury, such as battery, assault, or intentional infliction of emotional distress

π must prove…

• 1) An act/tortious conduct/omission

• 2) Committed with intent/requisite mental state (either purposefully or knowing with substantial certainty consequence was going to occur)

  • Kids and mentally incompetent people can still be held liable if they meet this

• 3) Causation (∆’s act actually resulted in injury)

Transferred Intent

A legal doctrine where the intent to commit one intentional tort against a person is applied to the tort actually committed or the different person actually harmed.

Battery: Elements, Damages, Defense (+hypersensitive victim?)

An intentional act that causes harmful or offensive contact with another person.

1) Act: causes harmful or offensive contact with another

• Can also be an omission if special duty (i.e. caregiver intentionally not strapping elderly patient into harness)

2) Intent: acts with intent to cause contact or apprehension of contact

• Majority: ∆ only needed to intend to cause the objectively harmful/offensive contact

• Minority — dual intent: ∆ needs to have intended to cause contact AND intend that the contact be harmful/offensive

• Victim doesn’t need to be conscious of touching (unlike assault)

3) Causation: act results in contact of a harmful or offensive nature (objective standard)

• Hypersensitive victim who finds everything offensive: not going to work, unless ∆ knows victim is hypersensitive and does act they know will be offensive to them —> possibly liable

• Contact doesn’t need to be direct (you just have to have caused it)

Damages:

• If no proof of actual harm/(no real injury): nominal damages

• If physical harm flows from battery: compensatory

  • Eggshell plaintiff applies

• Punitive damages: available if ∆ acted outrageously with malice

Defense: no battery if express or implied consent

Assault (Elements, Damages)

An intentional act that causes either…

• 1) Reasonable apprehension of imminent harmful or offensive bodily contact AND

  • Imminent: can’t be with significant delay — assault is not about threats of future/hypothetical harm… it’s about right now

  • Victim needs to be conscious/aware

• 2) Intends to cause apprehension of such contact OR to cause such contact itself

• No bodily harm required

• Words generally not assault, unless able to carry out imminently AND with action to frighten

  • I.e. “give me your money or I’ll shoot you,” while holding a gun to your head → able to carry out immediately AND taking action intended to frighten” —> assault

Damages:

• No physical injury —> nominal damages

• Physical injury —> compensatory damages

• Punitive damages can be available if particularly outrageous

Eggshell Plaintiff Rule

A rule stating the defendant is liable for the full extent of the plaintiff's injuries, even if the severity of the harm was not foreseeable or the plaintiff was particularly fragile.

Intentional Infliction of Emotional Distress (IIED) — Elements (+ hypersensitive plaintiff) Causation, Damages

When a defendant…

1) Intentionally or recklessly engages in 2) extreme or outrageous conduct that 3) causes the plaintiff severe emotional distress.

• Extreme and outrageous conduct: conduct that exceeds the possible limits of human decency so as to be entirely intolerable in a civilized society

  • Circumstances More Likely to Find:

    • ∆ in position of authority or influence

      • School principal verbally harassing student

    • π is member of group of heightened sensitivity (young kids/elderly)

    • Repeated or prolonged conduct

      • Repeated threats of violence, stalking

    • if ∆ exploits known psychological/physical vulnerability (phobia, disability): hypersensitive plaintiff

    • Indecent/beyond bounds of human decency

      • Secretly videotaping someone undressing

Damages: must prove severe distress beyond what a reasonable person should endure (usually outrageous nature of conduct itself is evidence of π’s distress)

• Compensatory: emotional distress, physical damages (for loss of sleep), lost wages/earning capacity, medical bills

For outrageous conduct via speech or publication — Constitutional Limitations

For third parties —> IIED: Conduct Towards Third-Parties

IIED: Conduct Towards Third-Parties — Liable?

Conduct Towards Third Parties: third parties can sue for the emotional distress they experience as a result of outrageous conduct directed toward someone else in 2 situations:

• Related bystander: immediate family member of victim may recover if…

  • 1) Present at the time of conduct

  • 2) Saw/heard the conduct while it happened

  • 3) ∆ knows/has reason to know that π is there/witnessing conduct

• Unrelated Bystander: ∆ either intentionally or recklessly cause third-party’s distress (same mens rea requirement as normal IIED)

  • 1) Present at time when conduct occurred

  • 2) Saw/heard conduct while it happened

  • 3) ∆ knows/has reason to know that π is there/witnessing conduct

  • 4) Plaintiff suffered severe emotional distress that resulted in bodily harm

    • Bodily harm can just be losing sleep/weight/etc.

Outrageous Conduct (IIED) Via Speech/Publication: Constitutional Limitations (matter of public concern + unique IIED elements for public figures) and Comparison to Defamation

Matter of Public Concern: if peaceful speech relates to a matter of public concern, might not be able to recover on IIED due to First Amendment protections

Public Figures: if public officials/figures/celebrities want to claim IIED on basis of speech/publication, must show…

• 1) Words contain false statement of fact AND

• 2) Made with actual malice (knowledge or reckless disregard of statement’s potential falsity)

Compare to Defamation: IIED protects plaintiff’s emotional wellbeing, defamation protects plaintiff’s reputation

Circumstances More Likely to Find IIED

• ∆ in position of authority or influence

  • School principal verbally harassing student

• π is member of group of heightened sensitivity (young kids/elderly)

• Repeated or prolonged conduct

  • Repeated threats of violence, stalking

• if ∆ exploits known psychological/physical vulnerability (phobia, disability)

• Indecent/beyond bounds of human decency

  • Secretly videotaping someone undressing

Related Bystander (IIED)

An immediate family member who can recover for IIED if they were present, witnessed the conduct, and the defendant knew they were witnessing it.

False Imprisonment (Elements, 1 Exception, Damages, length of imprisonment?)

The intentional confinement or restraint of another person within fixed boundaries where the plaintiff is conscious of or harmed by the confinement.

When a defendant…

1) Intends (purposefully or knowing confinement is substantially certain) to confine or restrain another within fixed boundaries

• If result of negligence — not false imprisonment (doesn’t meet intent)

• Fixed boundaries: can be as large as a state

2) The actions (or inactions) directly or indirectly result in confinement AND

• I.e. threats/barriers/pretending to be a cop/duress/not providing safe means of escape/refusing to help victim escape (getting locked in dressing room, dressing room attendant purposefully not helping you — she has a duty to help because she’s intentionally refused/can help you/it’s part of her job)

3) π is conscious of or harmed by confinement

Length of imprisonment doesn’t matter

Damages:

• Nominal damages: no real damages/loss — just symbolizing you can’t restrict people’s movement

  • I.e. dressing room attendant locked you in dressing room for 5 minutes

• Compensatory damages: physical harm, emotional distress, loss wages,

Exception: Shopkeeper’s Privilege

Shopkeeper's Privilege

A defense for false imprisonment allowing a merchant to detain a suspected shoplifter for a reasonable time and in a reasonable manner in or in vicinity of the store.

6 Defenses for Intentional Torts (just list them)

• 1) Consent

• 2) Self-Defense

• 3) Defense of Others

• 4) Defense of Property

• 5) Parental Discipline

• 6) Privilege of Arrest

Intentional Tort Defense #1: Consent (2 types of consent, what about capacity)

Willingness manifested by the plaintiff's words or actions to submit to the defendant's conduct.

• Actual Consent: when the plaintiff, by words or actions, manifests a willingness to submit to the defendant’s conduct — but defendant still bound to scope of that consent

  • Consent by mistake: when consent is given by plaintiff on mistaken facts

    • Valid as long as ∆ did not cause OR know of and take advantage of mistake

  • Consent by fraud: when defendant tries to induce plaintiff to consent by some fraudulent means/lying

    • Valid if lie immaterial/collateral matter that induced plaintiff to agree —> basically, plaintiff agrees to contact but under a not super important false pretense (jx-squishy)

    • Invalid if fraud/lie goes to essential matter

• Implied Consent: when the plaintiff is silent in a context where silence and continued participation can reasonably be construed as consent

  • I.e. emergencies; consent within scope of sport (wrestling, hitting someone with a chair); mutual consent to combat

  • But still restrained by scope/level of contact plaintiff is presumed to have given

But lack of capacity (minor, incompetent, intoxicated) can undermine validity of consent

Intentional Tort Defense #2: Self Defense (Initial Aggressors, Duty to Retreat?)

Defendant may use proportionate, reasonable force to defend against offensive contact or bodily harm.

BUT Limit on Initial Aggressors: initial aggressor generally not permitted to claim self-defense

• Exception 1: initial aggressor instigated using non-deadly force (punch) and then other party tried to use deadly force in return (gun) — initial aggressor can use reasonable force in return (also gun) and claim self-defense

• Exception 2: initial aggressor thinks twice and decides to withdraw — if other party comes at you again and then you hit them to protect yourself… can claim self-defense

Duty to Retreat?: Majority jx say no duty to retreat — can go directly to reasonable but proportional force

What if You’re Acting in Self-Defense and Injure a Bystander?

Can still claim self-defense/not face liability as long as:

• 1) Injury was accidental AND

• 2) Actor was not being negligent towards bystander

Intentional Tort Defense #3: Defense of Others

The right to use reasonable force to defend another person if that person would have been entitled to use self-defense.

• So force still needs to be reasonable/proportionate

Intentional Tort Defense #4: Defense of Property (Defense of Property vs. Recapture of Chattels vs. Force to Regain Possession of Land)

Defense of Property: reasonable force can be used if person reasonably believes that force is necessary to prevent tortious harm to the property

• But deadly force (or deadly mechanical devices) NEVER allowed in defense of property

Recapture of Chattels: reasonable force can be used to reclaim personal property that was wrongfully taken, but only if you request its return first

• Exception: if request to return would be useless — can proceed to use reasonable force without requesting

• But if original taking was lawful/consensual (they borrowed it) — only peaceful methods can be used to reclaim

Force to Regain Possession of Land: never allowed — need to use normal legal processes

Intentional Tort Defense #5: Parental Discipline

The right of parents to use reasonable force as necessary to discipline their children, such as spanking or sending them to their room.

Intentional Tort Defense #6: Privilege of Arrest (Private Citizen)

A defense for a citizen using reasonable force to arrest for a felony, as long as…

• 1) Felony was actually committed AND

• 2) Citizen reasonably believes that person committed it

If private citizen ends up being wrong (no felony actually happened) —> no defense

Main Street Bank’s alarm accidentally activates, but no robbery has occurred. Dan (private citizen) is outside and sees Paula (who is late for her yoga class) running form the bank while hearing the alarm blaring. Dan arrests Paula. Can her assert privilege of arrest defense?

NO — even though his belief that a felony occurred and that Paula committed it was reasonable, no felony was actually committed

Intentional Tort Defense #6: Privilege of Arrest (Police Officer)

A defense for an officer who reasonably believes that…

• 1) Reasonably believes that a felony was committed

• 2) Reasonably believes the person they arrested is the one who committed it

Compare to Private Citizen: even if no actual felony was committed, police officers are still protected by this (versus private citizens)

If Paul hears about a crime at a nearby restaurant and then sees a black guy walking down the street “suspiciously” and then arrests him, can he assert the privilege of arrest defense? What if that guy actually DID do the crime?

Paul can’t arrest him because he’s lowkey racist and thinks the black guy did the crime. Even if that guy DID do the crime, John is not going to be able to assert privilege of arrest as a defense because he DIDN’T have reasonable grounds to suspect that that guy committed the felony.

*Also make sure in these questions that the person committed an actual felony (not a misdemeanor)

Trespass to Chattels (Elements, Defenses Not Available, Damages)

Defendant’s intentional interference with a plaintiff's right to possess personal property through defendant dispossessing plaintiff of chattel OR using/intermeddling with chattel

• Intent: the actual dispossession/use/meddling with chattel needs to be intended but doesn’t need to intend to damage to be liable

• But if dispossession/intermeddling is crazy — upgrade to conversion

Defense: NOT mistake of fact

• Mistake of fact: if Dan intentionally takes someone’s bike mistakenly believing it’s his, no defense — still intended the taking

Damages — Depends on Type of Interference (and Whether You Actually Damaged the Chattel):

• Dispossession: actionable for sole reason that π lost possession (even if chattel was unharmed)

  • Damages: losses from deprivation of possession (loss of profits/wages, substitute rental, expenses incurred recovering the property), if you also broke it — repair costs, diminution in value

• Use or Intermeddling with Chattel: must show some actual harm intermeddling without injury not actionable (not even nominal), actionable only if…

  • Impairs chattel’s condition, quality or value

  • Deprives π of use for substantial time OR

  • Causes bodily harm

  • Damages: reasonable repair costs, diminution in value, proven consequential loss-of-use damages, compensatory damages for medical bills/whatever (if bodily harm)

Dan intentionally coats Paula’s cup with a substance without permission. He does not intend to harm Paula, but the substance causes a foreseeable allergic or toxic reaction requiring $5,000 in medical treatment. What, if anything, could he be liable for? Damages?

Trespass to Chattels — he intentionally meddled with the cup!

Liability: Even though the damage to Paula (her allergic reaction/medical issues) wasn’t intended by Dan interfering with her cup (by intentionally putting this substance on it) WAS intended

Damages: Paula may recover her reasonable medical expenses and other losses caused by the reaction (as well as damage to the cup, if any)

Conversion

An intentional act that interferes with another's chattel so seriously that it justifies forcing the defendant to pay the full value of the property.

Trespass to Chattel vs. Conversion

Trespass to Land

Intentionally causing a physical invasion of someone else's land, whether by entering personally or causing an object to enter.

Private Necessity

A defense to trespass where a person interferes with property to prevent injury; the actor is not liable for nominal damages but must pay for actual damages.

Public Necessity

A defense used when private property is damaged to protect the public from a calamity, usually meaning the defendant is not liable for any damages.

Private Nuisance

An activity that substantially and unreasonably interferes with another person’s use and enjoyment of their land, such as through noise or odors.

Public Nuisance

An unreasonable interference with a right common to the general public, such as air or water pollution.

Negligence

The failure to exercise the care that a reasonably prudent person would exercise in like circumstances, involving duty, breach, causation, and damages.

Duty of Care

A legal obligation to act in a certain way, generally owed to all people who may foreseeably be injured by one's conduct.

Cardozo View (Duty)

The majority view that a duty of care is owed only to plaintiffs located within the foreseeable zone of danger.

Andrews View (Duty)

The minority view that if a defendant is negligent to anyone, they owe a duty of care to everyone in the world.

Affirmative Duty to Act

The general rule that there is no duty to aid or rescue others unless a special relationship exists or the defendant caused the danger.

Reasonable Person Standard

An objective standard used to measure breach, asking what an ordinarily prudent person would do under the same circumstances.

Child Standard of Care

A modified standard comparing a child to others of similar age, intelligence, and experience, unless they engage in high-risk adult activities.

Professional Standard of Care

A standard for licensed individuals (doctors, lawyers, etc.) where custom is both admissible and dispositive in determining negligence.

Common Carrier Standard

The traditional rule requiring the 'utmost care' for passengers, though many modern jurisdictions have moved toward a reasonable care standard.

Gratuitous Bailment (Sole Benefit of Bailor)

A situation, like a valet parking a car for free, where the bailee owes only slight care and is liable only for gross negligence.

Gratuitous Bailment (Sole Benefit of Bailee)

A situation, like borrowing a friend's camera, where the bailee owes great care and the bailor must warn of known dangers.

Invitee

A person who enters land for a material or economic purpose, to whom the possessor owes a duty of reasonable care, including a duty to inspect.

Licensee

A social guest who enters land with permission, to whom the possessor owes a duty to warn of hidden dangers but has no duty to inspect.

Attractive Nuisance

A doctrine holding land possessors liable for injuries to trespassing children if an artificial condition poses unreasonable risk and children cannot appreciate the danger.

Hand Formula

A cost-benefit analysis used to determine breach where negligence occurs if the Burden (B) is less than the Probability (P) times the Severity (L): $B < P \times L$.

Custom

Industry or professional practices that are admissible to prove breach, though they are usually not dispositive except in professional malpractice cases.

Negligence Per Se

A doctrine where the violation of a criminal or regulatory statute establishes a breach of duty if the harm is what the statute was meant to prevent.

Res Ipsa Loquitur

'The thing speaks for itself'; a doctrine allowing an inference of negligence based on circumstantial evidence when the accident is one that doesn't usually happen without negligence.

Cause in Fact (Factual Cause)

The requirement that the plaintiff's injury would not have occurred 'but for' the defendant's negligent conduct.

Substantial Factor Test

A causation test used when multiple sufficient causes combine to produce an injury, and each alone would have been enough to cause the harm.

Alternative Causation

A situation where multiple defendants act negligently but only one caused the harm; the burden of proof shifts to the defendants to exonerate themselves.

Concert of Action

When multiple parties act together according to a common plan to commit a tort, making them all jointly and severally liable.

Loss of Chance Recovery

A medical malpractice doctrine allowing a patient to recover a portion of damages reflecting the reduced mathematical probability of survival caused by negligence.

Market Share Liability

A theory used for fungible products where multiple manufacturers are held liable according to their share of the market because the specific manufacturer cannot be identified.

Proximate Cause (Legal Cause)

A limitation on liability asking if the specific injury was a foreseeable consequence of the defendant's breach and within the 'scope of the risk.'

Intervening Cause

An external force that comes into play after the defendant's act but does not break the chain of causation.

Superseding Cause

A highly unforeseeable intervening force that breaks the chain of causation and relieves the original defendant of liability.

Compensatory Damages

Damages intended to make the plaintiff whole by covering costs such as medical bills, lost wages, and pain and suffering.

Collateral Source Rule

The traditional rule that payments made to a plaintiff from outside sources (like insurance) are not credited against the defendant’s liability.

Negligent Infliction of Emotional Distress (NIED)

A claim for emotional distress caused by negligence, usually restricted to plaintiffs within the 'zone of danger' or close relatives who witnessed an accident.

Zone of Danger

The area within which a plaintiff is at risk of physical impact, a requirement for recovery in many NIED cases.

Pure Economic Loss Rule

A rule preventing recovery for economic losses alone (like lost profits) in negligence actions without accompanying physical injury or property damage.

Loss of Consortium

A derivative claim brought by a spouse for the loss of companionship, affection, and sexual relations resulting from the defendant's tort against the other spouse.

Survival Action

A legal claim brought by the estate of a deceased person for the damages the decedent suffered prior to death.

Wrongful Death Action

A claim brought by a decedent's family or representatives for the losses they suffered due to the death, such as loss of economic support.

Wrongful Birth

A claim by parents for the negligent failure to perform a contraceptive procedure or diagnose a congenital defect.

Vicarious Liability

A legal doctrine where one party is held liable for the torts of another, such as an employer being held liable for an employee's negligence.

Respondeat Superior

The specific form of vicarious liability where an employer is liable for the negligence of an employee committed within the 'scope of employment.'

Detour

A minor deviation by an employee from their employer's business; the employer remains vicariously liable for torts committed during this time.

Frolic

A major deviation from the scope of employment where the employee acts for personal reasons, relieving the employer of vicarious liability.

Inherently Dangerous Activity (Independent Contractors)

An exception to the rule on independent contractors where the employer remains liable because the work (e.g., demolition) is fundamentally hazardous.

Apparent Agency Doctrine

A theory where an independent contractor is treated as an employee if a person reasonably believed they were an employee and accepted services based on that belief.

Negligent Entrustment

A direct liability claim against an owner for giving a dangerous object (like a car) to someone they know is incapable of using it safely.

Family Purpose Doctrine

A rule in some states holding an automobile owner vicariously liable for the torts of any family member driving the car with permission.

Dram Shop Liability

Statutes that hold commercial establishments liable for injuries caused by serving alcohol to minors or visibly intoxicated persons.

Federal Tort Claims Act (FTCA)

A law that waives the federal government's immunity for certain torts but maintains immunity for discretionary functions and certain intentional torts.

Discretionary Function

Governmental actions involving planning or decision-making for which the government remains immune from lawsuits.

Proprietary Function

Activities performed by a state or local government that a private business could also do; the government is generally liable for negligence in these areas.

Joint and Several Liability

A rule where multiple tortfeasors are each responsible for the entire amount of the plaintiff's damages, regardless of their individual percentage of fault.

Indemnification

The right of a party held vicariously liable (like an employer) to seek total reimbursement from the party who was directly at fault (the employee).

Contributory Negligence

A traditional defense that completely bars the plaintiff from recovering any damages if they were even slightly negligent themselves.

Last Clear Chance Doctrine

An exception in contributory negligence states allowing a negligent plaintiff to recover if the defendant had the final opportunity to avoid the accident.

Pure Comparative Negligence

The system where a plaintiff's recovery is reduced by their own percentage of fault, regardless of how high that percentage is.

Modified Comparative Negligence

A system where a plaintiff's recovery is barred if they are more at fault (or in some states, equally at fault) than the defendant.

Express Assumption of Risk

When a plaintiff explicitly agrees (usually in writing via an exculpatory clause) to waive their right to sue for negligence.

Implied Assumption of Risk

When a plaintiff's participation in an activity, like attending a sporting event, demonstrates they knew of a risk and chose to encounter it anyway.

Strict Liability

Liability imposed without a finding of fault (negligence or intent) for abnormally dangerous activities, wild animals, or defective products.

Abnormally Dangerous Activity

An activity that creates a highly significant and foreseeable risk of harm even when due care is exercised, such as using explosives.

Wild Animals

Species not customarily kept in the service of humankind; owners are strictly liable for injuries related to the animal's dangerous propensities.

Domestic Animals (Strict Liability)

Owners are only strictly liable for domestic animals if they have specific knowledge of the individual animal's dangerous propensities.

Manufacturing Defect

When a product deviates from its intended design and is more dangerous than other identical products in the line.

Design Defect

When an entire product line is dangerous due to its design, even if manufactured perfectly according to specifications.

Consumer Expectation Test

A test for design defects asking if the product is less safe than an ordinary consumer would expect when used in a foreseeable manner.

Risk-Utility Test

A design defect test that balances the risks of a design against its benefits and asks if a reasonable alternative design (RAD) was available.

Failure to Warn

A product defect where the manufacturer fails to inform users of non-obvious, hidden dangers associated with foreseeable use.

Learned Intermediary Rule

A rule providing that manufacturers of prescription drugs only need to warn the prescribing physician rather than the end consumer.

Defamation

A false statement about the plaintiff published to a third party that causes damage to the plaintiff's reputation.

Libel

Defamation that is recorded in a permanent form, such as writing or video; general damages are usually presumed.