1
Q
Battery
A
- Intentional infliction
- of a harmful or offensive bodily contact (can be direct or indirect; includes contract w/ an object closely identified w/ P’s body)
2
Q
Transferred intent applies in following situations
A
- If D held the necessary intent with respect to one person but instead commits a different tort against that person or any other person, or
- The intended tort against a different person.
*does NOT apply to conversion or IIED
3
Q
Assault
A
- Intentional causing
- of an apprehension
- of an imminent
- harmful or offensive contact
(P must be aware of threat)
4
Q
IIED
A
- Intentional or reckless infliction
- of severe emotional or mental distress
- caused by D’s extreme and outrageous conduct
5
Q
Third-person liability for IIED
A
P can recover for IIED if P physically present and
- is close relative of person X OR
- suffers bodily harm as result of severe emotional distress
6
Q
False imprisonment
A
- D intentionally causes P
- to be confined, restrained or detained
- within bounded area
- with no reasonable means of escape
- of which P aware or harmed
7
Q
Trespass to land
A
Intentional physical invasion of land of another
8
Q
Trespass to chattels
A
Intentional interference with person’s use or possession of their chattel
- Damages = chattel’s loss of value caused by loss of use
9
Q
Conversion
A
- Intentional interference
- with P’s possession or ownership of prop
- that is so substantial
- warrants requiring D to pay prop’s full value
*substantial interference = refuses to return, destroys or gives chattel to 3P
10
Q
Defenses to intentional torts
A
- Consent
- Self-defense
- Defense of others
- Defense of property
- Recapture of chattels
- Shopkeeper’s privilege
- Arrest under legal authority
- Public and private necessity
11
Q
Defenses to intentional torts: Consent
A
P consents to D’s conduct (express or implied)
12
Q
Defenses to intentional torts: Self-defense
A
Reasonable force to prevent any threatened harmful or offensive bodily contact and any threatened confinement or imprisonment.
- Deadly force: only allowed if D is in danger of death or serious bodily harm.
- Can only use degree of force necessary to prevent harm
13
Q
Defenses to intentional torts: Defense of others
A
Reasonable force to defend another when he reasonably believes that the other person could have used force to defend himself.
14
Q
Defenses to intentional torts: defense of prop
A
A person may use reasonable force to defend his real or personal property
- warning required unless futile or dangerous
- Deadly force: only allowed if D reasonably believes w/o deadly force, D/SBH will occur
15
Q
Defenses to intentional torts: recapture of chattels
A
A property owner has the general right to use reasonable force to regain possession of chattels taken by someone else.
- Owner must be in fresh pursuit
- Deadly force NOT allowed
16
Q
Defense to intentional torts: Shopkeeper’s privilege
A
Defense to FI. If shopkeeper reasonably suspects P of stealing, he can detain P for a reasonable amount of time in a reasonable manner.
17
Q
Defenses to intentional torts: Arrest under legal authority
A
allowed when D was exercising his legal rights and duties by restraining P.
18
Q
Defenses to intentional torts: Necessity
A
As a defense to trespass to land.
- Public necessity: allows person to enter P’s land to prevent an imminent public disaster; person is not liable for damage if her actions were reasonable or she had a reasonable belief that necessity existed, even if initial entry was not necessary.
- Private necessity: allows a person to enter plaintiff’s land to protect her own person/property from harm; not liable for trespass but responsible for actual damages.
19
Q
Negligence general rule
A
To establish a claim for negligence, a plaintiff must prove (1) duty, (2) breach, (3) causation, and (4) damages.
20
Q
Duty of care general rule
A
A person has a duty to act as a reasonable person. There are two duty considerations: to whom the duty is owed and the applicable standard of care.
21
Q
To whom duty of care is owed (2 tests)
A
- Foreseeable plaintiffs (majority view—Cardozo): a duty is owed to foreseeable plaintiffs in the zone of danger.
- Everyone (minority view—Andrews): a duty is owed to everyone, including unforeseeable plaintiffs.
22
Q
Standard of care: general
A
A person has a duty to act as a reasonable person under the circumstances unless a special duty standard of care applies.
E.g., conclude with “Thus, D had a duty to act as a reasonably prudent ___ (driver, etc.)”
23
Q
Special standard: emergency situations
A
In the event of an emergency, a party will be judged by the reasonable standard a prudent person would exercise in an emergency situation (less may be expected)
24
Q
Special standards of care: affirmative duties
A
D generally has no duty to take affirmative action to help P, except:
- special relationship (L-T)
- D’s conduct placed P in danger,
- D voluntarily rendered assistance to P, must proceed w/reasonable care
25
Special standards of care: Professionals
required to possess the knowledge and skill of a member of their profession or occupation in good standing (e.g., doctors).
- Fireman's rule: Firefighters, police officers and other professional risk takers who are injured in the line of duty are prohibited from suing for negligence for injuries sustained stemming from the inherent risks they assume with their profession.
26
Special standards of care: Children
have a duty to conform to the conduct of a child of like age, intelligence, and experience.
*Except: when they are engaged in adult activities (e.g., potentially dangerous)
27
Special standards of care: Owners and occupiers of land general rule
the standard of care depends on whether the damage occurs outside the premises or on the premises.
28
Special standards of care: Owners and occupiers of land, damage occurs outside premises
- Natural conditions: no duty exists to protect one outside the premises from damage caused by hazardous natural conditions on the premises.
- Artificial conditions: a duty exists to prevent one outside the premises from damage caused by an unreasonable risk of harm for unreasonably dangerous artificial hazards.
29
Special standards of care: Owners and occupiers of land, damage occurs inside premises
A std of reasonable care applies to all land entrants except trespassers.
- Trespassers (someone who lacks consent to be on land): landowner generally owes no duty to make the land safe or warn of dangerous conditions to undiscovered trespassers or invitees/licensees that go beyond the scope of their invitation.
30
Special standards of care: Owners and occupiers of land, Trespassers rule exception
- Known or frequent trespassers: there is a duty to warn known or frequent trespassers of known dangers and artificial conditions that pose a risk of death or serious bodily harm.
31
Special standards of care: Owners and occupiers of land, Trespassers rule exception (attractive nuisance doctrine) occeo
Landowner must exercise ordinary care to avoid foreseeable injury to children if:
- owner knew or should have known that the area is one where children trespass;
- condition poses an unreasonable risk of serious injury or death;
- children do not discover the risk or realize the danger due to their youth;
- expense to remedy the condition is slight compared to the risk; and
- owner fails to use reasonable care to eliminate the danger.
32
Special standards of care: Invitees
One who enters the land to do business with the owner (can be public or private) (e.g., customer in a store or person who goes to someone's house to do bus.)
- Owner has a duty to make a reasonable inspection to find hidden dangers and make necessary repairs.
33
Special stds of care: Licensee
one who enters the land with the owner’s consent for his own purpose (e.g., social guests).
- Owner has a duty to warn of all known dangerous conditions that create an unreasonable risk of harm that the licensee is unlikely to discover and to use reasonable care in conducting its active operations on the property. However, there is no duty to repair or inspect the premises.
34
Special stds of care: L-T
- T has duty to maintain premises
- L has duty to warn of known existing dangers, maintain common areas, make repairs in non-negligent way
35
Violation of a statute-negligence per se
D is negligent per se if:
- Violates a statute without excuse
- P is within class of persons statute designed to protect AND
- statute is designed to guard against type of harm suffered by P
*Establishes duty and breach but still have to prove causation and damages.
*Add this section AFTER regular negligence duty and breach and then talk about causation and damages.
36
Breach of duty rule
Breach occurs when D’s conduct fails to conform to the applicable standard of care.
*Courts often use a balancing test to determine if the unreasonableness of the risk outweighs the utility of the act.
37
Res ipsa loquitor
can be used to establish breach of duty where the event transpiring creates an inference that D was probably negligent because:
- accident is a type that ordinarily does not occur in absence of negligence,
- other causes including the conduct of P and third persons, are sufficiently eliminated by the evidence (D had exclusive control)
38
Causation general rule
P must prove actual causation and proximate causation.
39
Actual cause rule
But for D’s act, the injury to P would not have occurred
- Substantial factor test: If there are multiple causes, defendant will be a cause in fact if he was a substantial cause of plaintiff’s injury.
40
Proximate cause rule
P must show that her injuries were the foreseeable result of defendant’s conduct.
- Eggshell P: D liable for any unforeseen consequences to P caused by P's vulnerable condition bc D takes P as he finds him
41
Proximate cause - intervening causes
- Foreseeable: D is liable for all foreseeable intervening causes (such as subsequent medical malpractice and negligence by rescuers).
- Unforeseeable: D is not liable for superseding intervening causes that are unforeseeable. Superseding intervening causes break the chain of causation and cut off D’s liability.
*There can be more than 1 intervening cause. Address each one separately and determine if they are foreseeable or unforeseeable (do they cut off D's liability?)
42
Damages rule
damages require an actual injury to P, not just economic loss.
43
Negligent infliction of emotional distress (NIED)
D is liable for NIED when he engages in negligent conduct that causes P to suffer serious emotional distress.
- Actual impact to P that causes emotional distress
- Fear for others' safety: if P suffers from severe emotional distress with/without any physical impact to him personally, recovery under NIED depends on whether P was present and is a close relative of victim.
44
Defenses to negligence
- Contributory negligence
- Comparative negligence
- Assumption of risk
45
Defenses to negligence: Contributory negligence
P’s negligence is a complete bar to recovery (abolished in most jx’s).
46
Defenses to negligence: Comparative negligence
P’s negligence is not a complete bar to recovery, but her damages are proportionate to her fault.
47
Defenses to negligence: Assumption of risk
P’s recovery may be barred if she voluntarily and knowingly assumed the risk of her behavior.
48
Strict liability: animals
An owner is strictly liable for:
- Trespass (damage done by trespass of animal)
- Wild animals (nontrespass injuries caused by wild animals from dangerous propensity that is typical of species)
- Domestic animals known to be dangerous: injuries caused by such animals only if owner knew or should have known of dangerous propensity
49
SL: Abnormally dangerous activities RRAAD
All elements must be met. An activity is abnormally dangerous if:
- It creates a high risk of harm,
- Risk cannot be eliminated by exercise of reasonable care,
- Activity is not common,
- Activity is not appropriate for the location, and
- Danger outweighs the activity’s value to the community.
50
Defenses to SL
- Assumption of risk is a defense to SL
- Contributory fault NOT a defense
51
5 ways to establish products liability (TALK ABOUT ALL)
- Strict products liability (main one)
- Negligence
- Warranty
- Misrepresentation
- Intent
52
Strict products liability general rule
A commercial seller is held strictly liable for personal injuries caused by a defective product. P must prove the following elements:
(1) commercial supplier,
(2) defective product,
(3) actual cause,
(4) proximate cause,
(5) damages.
53
Strict products liability: (1) Commercial supplier
A defendant who is in the business of selling a commercial product—including manufacturers, distributors, and retail sellers—is under an absolute duty to provide a safe product.
*Ask: does D qualify as a commercial seller, as opposed to a casual or occasional seller?
54
Strict products liability: (2) defective product general rule
A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or a warning defect (i.e., failure to warn). (possible for a product to be defective based on more than one theory, discuss all relevant theories raised by facts).
55
Strict products liability: (2) defective product, manufacturing defect rule
exists when a product was not manufactured as intended (i.e., different product than all others because it deviated from its intended design).
56
Strict products liability: (2) defective product, design defect rule
Depending on jx, courts apply either consumer-expectation test or the risk-utility test (or a hybrid of both tests).
- Consumer-expectation test: P must prove that the product is dangerous beyond the expectation of an ordinary consumer.
- Risk-utility test: P must prove that a reasonable alternative design that is economically feasible was available to D, and failure to use that design rendered the product unreasonably unsafe.
57
Strict products liability: (2) defective product, warning defect rule
A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.
58
Strict products liability: compliance with industry standards
is NOT dispositive conclusive evidence that a product is not defective, but lack of compliance can establish that a product is defective.
59
Strict products liability: (3) actual cause
but for the defect, he would not have been injured and that the defect existed at the time it left D’s control.
60
Strict products liability: (4) proximate cause
the defect causing P's injuries must have occurred when the product was being used in an intended or reasonably foreseeable way.
**D will still be liable if P misuses the product and is injured if that misuse is foreseeable.
61
Strict products liability: (5) damages
physical injury or property damage must be shown. There is no recovery for purely economic loss.
62
Strict products liability: Defenses
- Assumption of risk is defense
- Pure comparative negligence: P's damages reduced by her proportionate fault
- Contributory negligence: no recovery if P's fault consisted of unreasonably proceeding in face of a known product defect
63
Products liability: Negligence
Same as above. Note that retailers and wholesalers are rarely liable under a negligence theory for products liability since they only have a duty to inspect or warn of known dangers. A manufacturer would still be liable under a negligence theory.
64
Products liability: Warranty, express warranty
a promise or guarantee made by the defendant about the product. If the product does not meet this warranty, the defendant has breached this warranty and plaintiff can recover damages.
65
Products liability: Warranty, implied warranty of merchantability
(always discuss): a product that is sold is impliedly warranted to be reasonably useful and safe for average use.
66
Products liability: Warranty, implied warranty of fitness for a particular purpose
(if applicable) if a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose.
67
Defenses to product liability, warranty
- Assumption of risk is a defense.
-Comparative /contributory negligence (unless P’s negligence/misuse was foreseeable) is a defense.
- Failure to give notice of breach within a reasonable time under UCC.
68
Products liability, misrepresentation
Seller will be liable for misrepresentations of fact concerning a product when the statement was:
- a material fact
- concerning quality or uses of goods
- seller intended to induce reliance by buyer
- did in fact induce reliance
*P must still prove actual and proximate cause and damages. comparative negligence can be a defense unless D's misrepresentation was intentional
69
Fraud (intentional misrepresentation)
- misrepresentation of a material fact,
- knowledge of statement's falsity (or reckless disregard)
- intent to induce P's reliance on misrepresentation
- justifiable and actual reliance by P
- causation
- pecuniary damages to P
70
Negligent misrepresentation
- Misrepresentation by D in a business or professional capacity,
- Negligence standard: D acted with no reasonable grounds for believing the misrepresentation to be true,
- Intent to induce P’s reliance on the misrepresentation,
- Justifiable reliance by P
- Causation,
- Pecuniary damages to P.
71
Products liability: Intent
D is liable to anyone injured by an unsafe product if the D intended the consequences or knew they were substantially certain to occur
72
Private nuisance
a substantial and unreasonable interference with another’s use or enjoyment of his land.
*substantial = annoying to avg person
*unreasonable = balance interests of P being free from nuisance and D in continuing his activities
73
Public nuisance
substantial and unreasonable interference with the rights, health and safety of the community.
*Interference = consider factors establishing harm to comm. (frequency, location)
*Recovery by priv. party = must demonstrate distinct harm from comm.
74
Remedies for nuisance
damages & injunctive relief
75
Defenses for nuisance
- Regulatory compliance (partial defense)
- Coming to the nuisance NOT defense
- Assumption of risk and contributory neg. if P rests case on neg. theory
76
Defamation rule
P may bring an action for defamation if
(1) D’s defamatory language is of or concerning the plaintiff,
(2) is published to a third party who understands its defamatory nature and
(3) damages P's reputation.
Addiitonally, if statement involves a matter of public concern or P is a public official, P must prove falsity and fault (con law requirements).
**watch out too for IIED
*Statement can be made intentionally or negligently to 3P. It is the intent to PUBLISH that satisfies publication.
*Causation: P must show P's rep. would have been harmed if believed (no actual harm required)
77
Defamation damages
Depend on type:
- Libel (written): general damages presumed
- Slander (oral or spoken): general damages NOT presumed.
- Slander per se: damages are presumed when comments involve professional reputation, disease, crimes of moral turpitude, or unchaste (sexual misconduct) behavior of P.
78
Con law defamation requirements
**Must be analyzed if the defamation is a matter of public concern OR if plaintiff is a public figure.
Rule: Constitutional defamation requires the P prove common law defamation (above) AND establish falsity and fault on the part of D. Test to determine fault depends on status of P.
*Falsity (P must prove statement is false)
*Fault
- Public figure (actual malice must be proven) = achieved pervasive fame or voluntarily assumed a public role in society. actual malice must be proven. Actual malice exists when D made the statement with either (1) knowledge that it was false or (2) reckless disregard as to whether it was true or false.
- Private figure = any person not a public figure. (must prove D acted with fault--either negligence or malice). BUT if malice exists, damages presumed, punitive damages allowed
- P must prove actual damages if he is a public figure/official or a private figure, but a
matter of public concern is involved. If the plaintiff is a private figure and shows malice, he
can recover punitive damages as well
79
Defamation approach
(1) Is the statement a matter of public concern?
(2) Does it meet CL requirements?
(3) If statement is a matter of public concern or involves a public figure, then P must prove fault.
(4) If P public official, need to prove actual malice (false statement made knowingly or reckless disregard for its truth). Damages presumed.
(5) If P a private figure, only need to prove negligence (or actual malice). Damages presumed if P can prove actual malice, otherwise, only actual injury damages recoverable.
80
Misappropriation
unauthorized use of P’s picture, name or likeness for D’s commercial advantage.
*P must prove lack of consent and injury
81
Intrusion upon seclusion
- intrusion into a P’s private affairs,
- where one has a reasonable expectation of privacy,
- that is highly offensive to a reasonable person.
*no publication required
82
False light
P must prove that D
(1) published facts about plaintiff or attributed views/actions to P
(2) that place him in a false light and
(3) are highly offensive to a reasonable person.
*If matter is of public concern, have to prove actual malice
*For public figures, P must prove D acted with actual malice
83
Public disclosure of private facts
The public disclosure of private facts is actionable if the
- publication would be highly offensive to a reasonable person and
- is not of legitimate concern to the public.
84
Malicious prosecution (all elements must be met and P can sue D and D's attorney but need to do sep. analysis for each)
A person is liable for malicious prosecution when:
(1) He intentionally and maliciously institutes a criminal or civil proceeding (note: Prosecutors are immune from liability, but D can be any person actively involved in bringing about the proceedings)
(2) For an improper purpose,
(3) There is an absence of probable cause for the proceedings, and
(4) The action is dismissed in favor of the person who brought suit for malicious prosecution.
85
Abuse of process
- occurs when D intentionally misuses legal process (depositions, discovery tools, etc.) for an ulterior purpose and
- D committed a willful act in a wrongful manner that caused damage to P.
86
Tortious interference w business relations
Prima facie case requires establishing:
(1) Existence of a valid contractual relationship between P and a third party or a valid business expectancy of P,
(2) D knew or should have known of relationship or expectancy,
(3) Intentional interference by D inducing breach or termination of the relationship or expectancy,
(4) Damages.
*Defense--privilege: D’s conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests (fair competition), particularly if D uses justifiable and fair methods.
87
Vicarious liability: Respondeat superior
when an employee commits a tort during the scope of his employment, his employer will be jointly liable.
- Employee: one who works subject to the close control of the person who hired him.
- Scope of employment: tort is within the scope of employment if tortfeasor was acting with the intent to further the employer’s business, even if the act itself was forbidden.
88
Vicarious liability: Independent contractors
one who hires an independent contractor is generally not vicariously liable for the torts of that person unless:
- employer is negligent in hiring person,
- duty is nondelegable bc work is in public place or involves abnormally dangerous activities
89
Employee v Independent Contractor
consider the following factors:
- control over how and when duties are performed,
- control of schedule, manner and method of payment,
- who provides the tools for the job,
- whether the contractor works for one or several employers, and
- whether specialized skill or knowledge is required for the job.
90
Multiple D's
- Joint & several liability: exists where two or more negligent acts combine to proximately cause an indivisible harm, making each defendant liable for the entire harm. P can recover the entire loss from any D, regardless of that D’s share of the total responsibility.
- Contribution: allows a D who pays more than his pro rata share of responsibility because he is jointly and severally liable, to obtain reimbursement from another D for any amount paid over his pro-rata share.
- Indemnity: occurs when the responsibility for the entire loss is shifted from one tortfeasor to another. (can seek contribution)
91
Survival action
allows decedent's estate to assert a claim on behalf of decedent. estate needs to establish underlying tort claim
92
Wrongful death
grant recovery for pecuniary injury resulting to the spouse and next of kin for a wrongful death and allows recovery for loss of support and consortium. Decedent’s creditors have no interest in the amount recovered under a wrongful death claim.
93
Tortious interference w family relationships
A husband or wife may bring an action for interference with consortium and services caused by D’s intentional or negligent actions against the other spouse. A parent can also recover for the loss of a child’s services and consortium.
94
Issues that can limit compensatory damages
- Causation: damages must be caused by the tortious act. (but-for)
- Foreseeable: damages must be foreseeable by a reasonable person at the time of the tortious act.
- Certainty: damages must be calculated with certainty.
- Unavoidable: P has duty to mitigate losses. Also, the avoidable consequences doctrine limits damages to those that could not reasonably have been avoided.
95
Tort remedies: compensatory damages
awarded to compensate P for injury or loss and seek to make the P whole. They are measured by the monetary value of P’s harm.
96
2 types of compensatory damages
- General: noneconomic losses suffered by P due to the tort (pain and suffering, emotional distress)
- Special damages are economic damages suffered by P due to tort (medical bills, lost wages)
97
Past and future damages
- Past damages: P can recover for past damages.
- Future damages: P can recover for anticipated future damages if she can calculate them with reasonable certainty.
98
Pure economic loss
NOT recoverable for most torts, absent a showing of property loss or personal injury.
*Exception: tort for intentional interference with business relations does allow for pure economic loss recovery.
99
Nominal damages
if a plaintiff established the elements of a cause of action, but the harm or loss is slight, the plaintiff may be awarded a “nominal”, or small/trivial amount of money.
100
Punitive damages
awarded where D engaged in serious misconduct and are issued to make an example of defendant. Awarded if:
- Actual damages are awarded
- Culpability of D is greater than negligence
- Relatively proportionate to actual damages (single digit ratio)
101
Money restitution
where P is awarded the monetary value of benefit he conferred on D. (needs to choose between restitution or compensatory)
102
Legal malpractice
is a negligence claim involving duty, breach, causation and damages (P can recover damages if he can establish that he would've won in underlying suit)
bar prep
flashcards
Decks in class (15)
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