Torts Flashcards

Flashcards on Intentional Torts, Negligence, Strict Liability, Products Liability, Nuisance, Defamation, Privacy Torts, Economic Harm Torts, and Supplemental Torts Rules based on lecture notes.

Battery

Harmful or offensive contact with the plaintiff’s person intentionally caused by the defendant. Contact is offensive if a reasonable person wouldn’t allow or expect it in the normal course of society

Assault

Reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person intentionally caused by the defendant. Apprehension means awareness, not fear.

False Imprisonment

Intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area. Includes threats of force, false arrests, and failure to provide a reasonable means of escape.

Intentional Infliction of Emotional Distress

Intentional extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress.

Trespass to Land

Intentional act by the defendant that causes a physical invasion of the plaintiff’s real property. Only intent to enter land required, intent to commit a trespass not required

Trespass to Chattels

Intentional act by the defendant that causes an interference with the plaintiff’s right of possession in a chattel, resulting in damages. Typically involves damage to or dispossession of the plaintiff’s chattel.

Conversion

Intentional act by the defendant that causes a serious interference with the plaintiff’s right of possession in a chattel. Interference is serious if the damage or dispossession requires the defendant to pay the full value of the chattel.

Transferred Intent

Intent can transfer from tort to tort, or from the intended victim to the actual victim. Does not apply if the intended tort or the committed tort are IIED or conversion

Consent

May be either express (not induced by fraud or duress) or implied (apparent or implied by law). The plaintiff must have capacity to consent. The defendant cannot exceed scope of consent

Protective Privileges

The defendant must reasonably believe that a tort is in progress or about to be committed against themselves, their property, or a third person. Only reasonable force may be used, deadly force can be used if serious bodily harm is believed to be imminent.

Necessity

Applies to property torts only. Public necessity is absolute, private necessity is qualified, requiring defendant to pay for damage caused.

Negligence Elements

A duty of care, breach of duty, actual and proximate cause, and damages to person or property.

Standard of Care

A reasonably prudent person under the same or similar circumstances, professionals adhere to their profession's standards, children conform to children with similar age unless doing adult activities.

Traditional Landowner's Standard of Care

No duty to undiscovered trespassers. Duty to warn discovered trespassers of highly dangerous artificial conditions. Duty to licensees to warn of known dangerous conditions. Duty to invitees to inspect for dangerous conditions.

Statutory Standard of Care

The plaintiff is within the class that the statute was intended to protect, and the statute was designed to prevent the type of harm suffered.

Negligent Infliction of Emotional Distress (NIED)

Near miss cases require risk of physical injury and physical symptoms from emotional distress. Bystander cases involve close relationship, presence at the scene, and observation. Special relationship cases involve direct cause of emotional distress.

Breach of Duty

Custom can be used to show how a reasonable person should have behaved if an injury occurred in a way that is normally associated with negligence, is attributable to the defendant who had exclusive control of whatever caused the injury.

Actual Cause

Defendant's act is an actual cause if the injury would not have occurred but for the act. Merged causes apply when either act alone would have sufficed. Burden shifts to defendants if it's unclear which act caused the injury.

Proximate Cause

Liability for the foreseeable consequences of the defendant’s negligent actions, If harmful results are within the increased risk and foreseeable it doesn't cut off defendant's liability.

Damages in Negligence

Actual harm or injury to person or property. Economic damages and noneconomic damages. The extent or severity of the harm need not be foreseeable (eggshell skull rule).

Negligence Defenses

Contributory negligence bars recovery if plaintiff at fault. Comparative negligence reduces damages by plaintiff’s fault percentage. Assumption of risk occurs when plaintiff aware of risk proceeds anyway.

Strict Liability

Liability imposed without intentional harm or negligence. Applies to wild animals, domestic animals with known dangerous propensities, and abnormally dangerous activities.

Abnormally Dangerous Activity

Creates foreseeable risk of serious harm even when reasonable care is exercised.

Products Liability Theories

Theories include strict liability, negligence, intent, breach of implied warranties, and representation.

Elements of a Strict Products Liability Claim

Defendant merchant, product defective when it left defendant's control, actual and proximate cause of injury, damages to person or property, may also be liable as a merchant.

Negligence in Products Liability

Manufacturer/retailer that leads to a defective product that injures the plaintiff.

Breach of Implied Warranties

A merchant sells goods fit for ordinary use, the seller provides goods knowing of a particular buyer's needs.

Representation

Product does not meet affirmative claim, false claim is made about a non defective product

Product Defect

Product dangerous beyond consumer expectation, dangerous characteristics, or inadequate warnings and instructions.

Nuisance

Addresses intangible forces like noise or odors. Private nuisance is a substantial, unreasonable interference with enjoyment of property. Public nuisance interferes with community health/safety.

Nuisance Remedies and Defenses

Damages or injunctive relief. “Coming to the nuisance” is not a defense.

Defamation Elements

(1) Defamatory language, (2) published to third person, (3) caused damage to reputation, and (4) falsity of statement.

Absolute Privilege for Defamation

Judicial, legislative, or executive proceedings statements

Qualified Privilege for Defamation

Matter in the interest of the publisher and recipient. Can be lost if statement outside scope of privilege/made with malice.

Appropriation of Plaintiff's Name/Picture

Unauthorized use of plaintiff’s picture/name for commercial advantage

Intrusion on Affairs/Seclusion

Intruding on plaintiff’s private affairs that is offensive to a reasonable person

False Light

Publication of facts putting plaintiff in false light offensively, if it's of public interest, malice must be shown

Public Disclosure of Private Facts

Highly offensive public disclosure of private information.

Privacy Torts Defenses

Consent, absolute/qualified privilege

Economic Harm Torts

Intentional misrepresentation, negligent misrepresentation, interference with business relations, damages.

Intentional Misrepresentation (Fraud)

Falsehood, reliance on it, and intent to induce reliance, with it possibly being about active concealment.

Negligent Misrepresentation

Duty to the plaintiff, causation, reliance, and damages.

Interference with Business Relations

Relationship terminated by interference.

Damages for interference.

Pecuniary Loss

Vicarious Liability

Vicarious liability for another's tort due to relationship.

Employer-employee Vicarious Liability

Includes if torts occurred within the scope of employee's employment, authorizes force, or generates friction.

Principal-independent contractor

Generally principal not liable unless controlling how work is done except for broad public policy exceptions.

Automobile owner-driver Vicarious Liability

Not unless a statute is adopted.

Parent-child Vicarious Liability

Not responsible unless a child's intentional tort is imposed by statute

Joint and Several Liability

When acts combine to cause an indivisible injury, the plaintiff can recover all damages, though states abolish liability for tortfeasors less at fault than plaintiff.

Contribution

When liability applies, a tortfeasor can request damage excess from the nonpaying tortfeasors

Survival Statues

Preserve a victim's cause of action after death, not applied to any tort that involves intangible personal interests

Wrongful Death Statues

Allows a personal representative to recover damages for loss, or loss of support

Intra-family tort immunities

The rule of not being able to sue each other for personal injury.

Governmental immunities

Governments give civil claims for acts, unless involving parental supervision.

children standard of care

standard of a child of like age, intelligence, and experience. Subjective test and child engaged in potentially dangerous adult activities may be required to conform to adult standard of care

duty to disclose risk of treatment

doctor has a duty to disclose the risks of treatment to enable a patient to give informed consent. doctor breaches duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk

Possessors of land standard of care

most states have reasonably prudent person standard to dangerous conditions on the land, but retain the trespasser classification

trespassing children

attractive nuisance doctrine. Landowners have duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property

elements of nuisance doctrine

1. dangerous condition on the land that owner is or should be aware of

2. owner knows or should know that children might trespass

3. condition is likely to cause injury

4. expense of remedying the situation is slight compared with the magnitude of risk

   Child does not have to be attracted to the land by the dangerous condition, nor is attraction alone enough for liability

Zone of danger

plaintiff is within the zone of danger of defendant’s negligent acts when the plaintiff is sufficiently close to the defendant such that they are subject to a high risk of physical impact

unknown tresapssors

no duty is owed to undiscovered trespassor

known trespassor

duty as to discovered or anticipated trespassers. must warn or make safe any conditions that are artificial, highly dangerous, concealed, or known to the landpossessor

licensees

one who enters land with possessor’s permission for their own purpose of business. Social guests. Duty to warn or make safe hazardous conditions that are concealed and known to the land possessor

invitees

invitation to enter land as members of public or for business. Invitee loses invitee status if they exceed the scope of invitation. Duty regarding hazardous conditions that are concealed and known in advance or could have been discovered by a reasonable inspection

Duty

duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury

general rule for duty imposed for aid

there is no duty imposed on a person to come to the aid of another absent a special relationship between parties, or one that caused the injury

duty of care for aid provided

must exercise due care in providing assistance, and must not leave the person in a worse position than he found him

Duty owed to those outside of immediate area

those outside the property must be within a foreseeable zone of danger from the defendant’s activities

implied warranty of merchantability

whether the goods are of average acceptable quality and are generally fit for ordinary purpose for which the goods are used. Goods that are likely to injure users even when handled property are obviously in breach of this warranty and subject seller to liability

who can sue for implied warranties of merchantability and fitness

most courts allow buyer, family, household, and guests to sue for personal injuries. The warranties also apply to a lease of goods

what constitutes a breach of warranty of merchantability or fitness

if the product fails to live up to either standard, warranty is breached and defendant is liable. Plaintiff doesn’t have to prove any fault on part of defendant

Damages for implied warranties breach

personal injury, personal damages, and purely economic loss are recoverable

defenses to implied warranty breaches

assumption of the risk and contributory negligence same as strict liability

effect of disclaimers for warranty breaches

disclaimers are generally rejected in personal injury cases but upheld for economic loss

Representation theories of liability

express warranty and misrepresentations of fact

express warranty

any affirmation of fact or promise concerning goods that becomes party of the basis of the bargain creates an express warranty. May also be made in lease of goods

who can sue for representation theories

any consumer, user, or bystander. If buyer sues, warranty must be part of the basis of the bargain. If plaintiff not in privity, they don’t need to have relied on the representation as long as someone did

what is breach for representation theories

fault doesn’t need to be established. Plaintiff only has to show that the product did not live up to its warranty

Disclaimers for express warranties

will be effective only in the unlikely event that it is consistent with the warranty

What is a misrepresentation of fact

seller will be liable for misrepresentations concerning a product where the statement was of a material fact concerning quality or uses or the seller intended to induce reliance by the buyer in a particular transaction. Liability is usually based on strict liability but may also arise for intentional or negligent representations

justifiable reliance

is required, the representation was a substantial factor inducing the purchase.

causation and damages for misrepresentation of fact

actual cause = reliance. proximate cause and damages same as strict liability

defenses for misrepresentation of fact

contributory negligence unless intentional misrepresentation

elements of strict liability

1. defendant is a merchant

2. product is defective

3. product not substantially altered since leaving D’s control

4. P makes foreseeable use of product

Elements of Defamation

1. a defamatory statement that specifically identifies plaintiff

2. published to third party

3. falsity of defamatory language

4. fault on part of defendant

   1. damage to plaintiff’s reputation

What is a defamatory statement

statement tending to adversely affect one’s reputation. statement of reputation is only actionable if it appears to be based on specific facts

implied defamation

statement is not defamatory on its face, plaintiff may plead additional facts as inducement and establish defamation meaning by innuendo

publication requirement for defamation

communication to a third party who understands it. It can be made intentionally or negligently. IT IS THE INTENT TO PUBLISH, not intent to defame. no defamation when only the plaintiff hears.

who may be liable for defamation

primary publishers to same extent as author or speaker. one who repeats defamation. one selling papers or playing audio files. internet service provider not treated as publisher

private person if matter of public concern

plaintiff needs to prove only negligence regarding the falsity. only actual injury damages are recoverable. If plaintiff proves actual malice, damages are presumed and punitive damages allowed

Libel

defamation embodied in permanent form. Written or printed publication. typically doesn’t need to prove special damages and general damages presumed. USE same elements as defamation

Slander

spoken defamation. must prove special damages, unless slander per se.

slander per se

adversely reflect on plaintiff’s business or profession, state that plaintiff committed serious crime, engaged in serious sexual misconduct, has some loathsome disease

Defenses to defamation

consent, truth, privilege (actual and qualified)

consent to defamation

is a complete defense

absolute privilege

can never be lost. defendant may be protected for communication between spouses and remarks made during judicial proceedings, by legislators during proceedings, by executive officials in compelled broadcast

Qualified privilege

can be lost through abuse, if not within scope of privilege or acted with actual malice. arises only when public interest in encouraging candor. Defendant bears burden of proving privilege. Examples: references and recommendations, reports of public hearings or meetings, statements made to those who take official action, made to defend one’s actions, property, or reputation

invasion of right to privacy

personal right. doesn’t need to plead and prove special damages. emotional distress and mental anguish are sufficient. 4 wrongs

1. appropriation of plaintiff’s picture or name

2. intrusion on plaintiff’s affairs or seclusion

3. publication of facts placing plaintiff in false light

4. public disclosure of private facts about plaintiff

appropriation of plaintiff’s picture or name

necessary to show unauthorized use for commercial advantage. limited to adverts or promotions of product or services.