Torts

What are the three elements of a battery?

The intent to cause harmful or offensive contact to a plaintiff’s person

What are the three elements of assault?

The intent to cause reasonable apprehension of an imminent harmful or offensive contact to a plaintiff’s person

Does the plaintiff have to be aware of the defendant’s act for them to be liable for assault?

Yes, they must be aware and believe that the defendant is going to commit the act

What are the three elements of false imprisonment?

The intent to restrain a plaintiff, to a bounded area

Does the plaintiff have to be aware of false imprisonment to occur?

Yes, they must be aware of the confinement or harmed by it

What are the three elements of intentional infliction of emotional distress?

The intent to cause extreme or outrageous conduct that causes extreme emotional distress

What is the buzzword for the extreme and outrageous conduct element of IIED?

It transcends all bounds of decency

What are the two main requirements for a D to be liable for IIED when a third party is affected?

The third party must be a member of the person’s immediate family, or if it is anyone else, there must be bodily harm

What are the three elements of trespass to land?

The intent to enter the land physically or propel physical objects or a third-person onto the land

Does the plaintiff have to be the possessor of the land to sue for trespass to land?

Yes, the P must be the possessor of the land at the time of the trespass

In trespass to land, does the plaintiff have to intend to trespass?

No, the intent to be on the land is sufficient

What are the three main elements of trespass to chattels?

The intent to interfere with personal property of another, AND the amount of damage is small

What are the three elements of conversion?

The intent to interfere with personal property of another, AND the amount of damage is large

What is the difference in damage recoveries for trespass to chattels vs. conversion?

In conversion, the plaintiff is generally entitled to recover the full market value of the property

What are the two different types of transferred intent?

A person commits a different tort against the same person, or A person commits the same tort against a different person

What are the two types of consent?

Express or implied

Does the plaintiff have to have the capacity to consent?

Yes, a child cannot consent to a tort

Can consent be withdrawn?

Yes, it can be withdrawn at any time

What is apparent consent?

Words/conduct are reasonably understood to be consent

What is implied by law consent? Example?

Occurs in special circumstances. Medical Emergencies

Is necessity a defense to all types of torts?

No, it is only applicable to intentional torts against property

What is the difference between public necessity and private necessity?

Public necessity is when someone acts for the public good and is not liable for damages. Private necessity is when someone acts for their own interests and is liable for damages to any third party property

What are the two main elements of self-defense?

D reasonably believed that P was going to harm them, AND D used reasonable force that was necessary to protect himself

Can you use reasonable or deadly force to defense property?

Reasonable, but not deadly

Can you use force to recapture chattels?

Yes, as long as it is not deadly.

What do you have to do before attempting to recapture chattels by force?

Make a demand that they return the item

What is the shopkeepers privilege?

Shopkeepers may temporarily detain a person suspected of theft in store to investigate the suspected theft

What are the five prima facie elements of negligence?

Duty, Breach, Factual Causation, Proximate Causation, Damages

What are the four exceptions to the rule that there is NO general duty to rescue?

Pre-existing relationship ,D put P in Peril, D undertook rescue of P, Duty imposed by law

What is the key definition of the duty for negligence purposes?

The standard of care exists for that of a reasonably prudent person

What is the standard of care for someone with a physical disability? Mental disability?

Physical Disability - Must act as a reasonable person with the physical disability. Mental Disability - Must act as a reasonable person without the mental disability

What is the standard of care of a child? Exceptions?

Must act as a hypothetical child of similar age, experience or intelligence? A child is engaging in an adult activity (driving a car). Then, they must act as a reasonable adult

What is the standard of care of a professional?

Must act with the knowledge and skill of an average member of that profession

Does a psychologist have any special duties?

They have a duty to warn victims if they believe patients posed a real risk of violence to them

What duty does a landowner owe to an unknown trespasser?

Protect them from willful or wanton harm

What duty does a landowner owe to a known trespasser?

Must warn of, or make safe highly dangerous artificial conditions that the landowner knows of

What is the difference between a licensee and an invitee?

A licensee is a social guest, and an invitee enters for owners benefit (shopper)

What is the difference between the duty of care owed to a licensee and invitee?

The duty of care owed to an invitee is to warn of known, dangerous conditions AND to make safe non-obvious dangerous conditions

What is a quick definition of the attractive nuisance doctrine?

Landowner owes a duty to child trespassers to make the premises safe or warn of hidden dangers

What are the four elements to the attractive nuisance doctrine?

D knows of condition ,D knows children frequent area, Children are unlikely to appreciate risk, AND Risk outweighs the expense

Does a landlord owe a duty to maintain leased premises for tenants?

No, unless provided for by law or contract

What is the difference between the common law and modern view of a duty to make premises safe from criminal acts?

Most states follow the modern view, where a landlord has a duty to take reasonable precautions to protect a tenant against foreseeable attacks.

What elements of negligence are established when a statute is violated and what is it called?

Duty and breach are established. Negligence per Se

What are the two main elements to use negligence per se?

Statute’s purpose is to prevent the type of harm P suffered, AND P is the class of people the statute is trying to protect

What are the two main exceptions to negligence per se?

Compliance with the statute was more dangerous than violation, AND compliance was impossible

What are the two elements of Res Ipsa Loquitur?

Injury is of a kind that doesn’t happen in the absence of negligence. D had control and it was within their scope of duty

What is the main rule associated with actual cause?

The “but-for” test which weighs substantial factors of the accident

What is the main rule associated with proximate cause?

Injury was a foreseeable result of the breach

What is the difference between a foreseeable and an unforeseeable intervening act in the causal chain?

Foreseeable intervening causes are dependent on D’s wrongful acts. Unforeseeable intervening causes break the chain and D is NOT liable

Is medical practice always or sometimes foreseeable?

ALWAYS

Are criminal acts foreseeable? Exceptions?

Generally not foreseeable unless the D should have anticipated the criminal act OR D’s conduct makes the act more likely

What is the eggshell plaintiff rule?

“Take P as you find P”. D is liable for ALL HARM to P, even if P suffers from pre-existing condition

What is pure comparative negligence?

P’s negligence will reduce his recoverage damages by the percentage of his own fault

What is contributory negligence? Exceptions?

P’s claim is barred if he contributed to his injury. Exceptions - D had the last opportunity to avoid the accident, D was reckless

Is assumption of risk a defense to negligence?

Yea, duh.

What are the two main scenarios where a P can recover from NIED?

Near Miss Case, Bystander Claim

What are the three main elements of the near miss case of NIED?

D is negligent, P is in the zone of danger, AND P manifests physical symptoms

What are the three main elements of the bystander claim of NIED?

D is negligent, P witnesses injury to family member, P manifests physical symptoms

What is the doctrine of respondeat superior?

Employer is liable for negligent acts of employee if they are acting within the scope of their employment

What is the name of the test to determine where an employee is acting within the scope of employment and what is the test?

Time, Place & Purpose Test

Are intentional torts within the scope of employment for the purpose of respondeat superior? Exceptions?

Generally not, unless the act was authorized, driven by desire to serve employer or act was a natural result of the job

If the principal intended the conduct, are they liable for the conduct of the agent under respondeat superior?

Yes

If principal was negligent in selecting/supervising agent, are they liable for conduct of agent under respondeat superior?

Yes

If the duty is non-delegable, is the principal liable for the agent’s actions under respondeat superior?

Yes

Does an employer/principal have any liability for torts committed by an independent contractor? Exceptions? (There are three)

No, generally not. Inherently dangerous activities, Non-delegable duties, IC is treated like an employee

What does joint and several liability mean?

If multiple Ds are proximate cause of a single harm, P may recover ENTIRE amount of damages from any defendant

What is indemnification?

D brings claim against another party to pay the FULL amount of damages

What is contribution?

D brings claim against another party to pay for their share of the liability

What is the doctrine of alternative liability?

A jury can find all D’s liable if: Multiple D’s are negligent and It is unclear which one caused P’s injuries

What is the doctrine of joint enterprise?

Allows the negligence of one D to be imputed to other D’s if: Multiple D’s are engaged in common project, AND All D’s have an agreement to engage in tortious conduct

What is the doctrine of market share liability?

All manufacturers are liable in proportion to their share of the market

What are the four elements of defamation?

False Statement, Of the plaintiff, That is published, Damages

Difference between libel and slander? Which one requires special damages?

Slander is oral and requires special damages. Libel is written

What is the difference between slander of a public official vs. a normal person?

A P must prove malice, not just negligence for slander of a public official

What are the two types of privileges that are a defense to defamation?

Absolute Privilege and Qualified Privilege

What is the difference between Absolute Privilege and Qualified Privilege?

Absolute privilege is a complete defense, like statements made in judicial proceedings, Qualified privilege is conditionally privileged, like statements made about a past employee in good faith

What is misappropriation?

Occurs when D uses P’s name or likeness for commercial purposes

What is false light??

Occurs when D spreads P’s beliefs in false light that a reasonable person would object to

What is intrusion of privacy? (three elements)

D intrudes into private affairs of P, P has reasonable expectation of privacy, Intrusion is objectionable to a reasonable person

What is public disclosure?

Occurs when D spreads truthful private information that is objectionable to a reasonable person

What is the main defense to public disclosure of private facts?

Newsworthiness (unless actual malice occurs)

What is intentional interference with Business relations?

D intentionally induces a party to breach a contract and P suffers damages

What is intentional misrepresentation? (Fraud)

D misrepresented a fact, D knew statement was false, D intended to induce P, P relied on information, P suffered damages

What is public nuisance? (three elements)

Unreasonable interference, With the health, safety or property rights, Of the community

Do you have to show actual damages to be liable for public nuisance?

Yes

What is private nuisance?

A substantial and unreasonable interference, with a person’s use or enjoyment of her property

What the main standard applied to private nuisance to determine if it is nuisance?

Reasonable person standard

Is knowingly coming into the neighborhood with a nuisance a defense?

Yes, the nuisance tortfeasor may not be liable if P knew before they moved

What are the two main types of strict liability?

Wild Animal Liability and Abnormally Dangerous Activities

Is an owner strictly liable for damage done by their domestic pet?

No, UNLESS they had knowledge of the animal’s vicious propensities

Are animal owners strictly liable for trespass and property damage by their animals?

Yes, if reasonable foreseeable

What are the five elements of strict products liability?

Commercial Seller, Product was defective, Product is not altered, Product injured P, Usage was intended, or unintended foreseeable use

What is the difference between a manufacturing defect and design defect?

A manufacturing defect is when the product differs from the intended design and is more dangerous than if made properly. A design defect is when the product can be made safer, more practical and at a similar cost (Balance Test - Cost vs. Utility)

What are the three main elements of a failure to warn claim for strict products liability?

P was not warned, Risks are not obvious to an ordinary user, Manufacturer knew of risks

Can a casual seller or service provider be strictly liable?

Generally not

Can you recover under strict product liability if damages are solely economic?

No, they must be for personal injury or for property damage

What is liability for breach of warranty?

Strict product liability can apply when there is a breach of an express or implied warranty, damages, and an ineffective disclaimer

What is the implied warrant of merchantability?

All goods sold by a merchant (commercial seller) must be fit for their ordinary purpose

What is an implied warranty of fitness for a particular purpose?

Seller knows buyer’s purpose for the goods, AND buyer relies on seller’s skill of judgment to furnish suitable goods

What is an express warranty?

Seller makes a promise, which relates to the goods, and it becomes part of the basis of the bargain