Torts

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apgiering
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Torts
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2012-06-18 10:02:34
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  1. What are some examples of intentional torts?
    • Battery
    • Assault
    • False imprisonment
    • Intentional infliction of emotional distress (IIED)
    • Trespass to land
    • Trespass to chattels
    • Conversion
  2. Are there incapacity defenses to intentional torts?
    No.
  3. Do intentional torts require intent?
    Yes.

    A defendant intends a tort if he acts within the purpose of producing the legally forbidden outcome.

    Transferred Intent -- If an actor starts out with the purpose of causing one forbidden consequence it is intentional if another consequence occurs.
  4. When does a defendant intend a tort?
    He acts within the purpose of producing the legally forbidden outcome.

    Transferred Intent -- If an actor starts out with the purpose of causing one forbidden consequence it is intentional if another consequence occurs.
  5. Transferred Intent
    If an actor starts out with the purpose of causing one forbidden consequence it is intentional if another consequence occurs.
  6. What are the elements of battery?
    • The defendant commits a harmful or offensive contact
    • The contact is wiht the plaintif's person
  7. When is a contact considered offensive (and therefore a battery)?
    If it would not normally be permitted by persons of normal sensitiviy.
  8. What does the plaintiff's "person" include for purposes of the definition of battery?
    Includes anything the plaintiff is holding or touching.
  9. What are the elements of assault?
    • The defendant must place the plaintiff in reasonable apprehension
    • Of an imminent battery
  10. What is "reasonable apprehension" for purposes of the definition of assault?
    Knowledge, not perfect knowledge, just reasonable knowledge. 

    The apparent ability to commit a battery creates a reasonable apprehension of battery.
  11. What satisfies the "immediacy" requirement for purposes of the definition of assault?
    • Words alone lack immediacy; a verbal threat is not an assault unless accompanied by a threatening gesture
    • Even if you have a menacing gesture, words can negate the immediacy
  12. What are the elements of false imprisonment?
    • The defendant must commit an act of restraint
    • The plaintiff must be confined in a bounded area
  13. What satisfies an "act of restraint" for purposes of the definition of false imprisonment?
    • Threats may be enough (but must be plausible to a reasonable person)
    • Omission or failure to act may be an act of restraint if there was a prior agreement the defendant would do something
    • Only counts if defendant's act is one hwich the plaintiff is aware of or is harmed by
  14. What satisfies the definition of "bounded area" for purposes of the definition of false imprisonment?
    An area is not bounded if there is a reasonable means of escape that the plaintiff can reasonably discover.

    Watch out for dangerous, disgusting, humiliating, or hidden ways out.  Not a reasonable means of escape.
  15. What are the elements of intentional inflition of emotional distress (IIED)?
    • The defendant must engage in outrageous conduct
    • The plaintiff must suffer severe emotional distress
    • NOTE: for this tort only RECKLESS conduct will be adequate to meet the mental requirement
  16. What is the mental state requirement for intentional infliction of emotional distress (IIED)?
    Recklessness.
  17. What is the definition of "outrageous conduct" for purposes of the definition of intentional infliction of emotional distress (IIED)?
    • Conduct that exceeds all bounds of decency tolerated in a civilized society
    • Mere insults are NOT outrageous
    • Insults part of a larger package of behavior may be considered outrageous
  18. What are some indicators of "outrageousness" for purposes of the definition of intentional infliction of emotional distress (IIED), i.e., conduct that exceeds all bounds of decency tolerated in a civilized society?
    • Repetitive, continuous
    • Abuse of a power relationship
    • If you have prior knowledge of an emotional weakness it is outrageous to target it
    • Plaintif is a member of a "fragile class" of persons (young children, elderly people, prengant women, looking for external attributes of vulnerability)
  19. What is considered a "fragile class" of persons for purpose of determining whether conduct is "ourageous" enough to give rise to a claim for intentional infliction of emotional distress (IIED)?
    • Young children
    • Elderly people
    • Pregnant women
    • Look for external attributes of vulnerability
  20. What evidence is required to satisfy the "severe emotional distress" requirement for purposes of the definition of intentional infliction of emotional distress (IIED)?
    There is no requirement for external evidence; any self-reported distress will do.
  21. What are the elements of trespass to land?
    • Defendant must commit an act of physical invasion
    • There must be land
  22. What satisfies the definition of "physical invasion" for purposes of the definition of trespass to land?
    • Can go on the property on foot or in vehicle
    • Plaintiff does not need to know he crossed the boundary line; the intent to be there is enough without the intent to trespass
    • Throw a tangible object onto the property
    • The item must be physical
    • There does not have to be harm; it can be innocuous or even benign
  23. What satisfies the "land" requirement for purposes of the definition of trespass to land?
    A plaintiff's interests in real estate are not limited to the surface; they include air above and soil below out to a reasonable distance.
  24. What are the elements of trespass to chattels?
    Small harm, minor interference with tangible personal property.

    The plaintiff can recover the costs of repair.
  25. What is the remedy for trespass to chattels?
    The plaintiff can recover the costs of repairs.
  26. What are the elements of conversion?
    Major or significant harm/interference wiht tangible personal property.

    The plaintiff can recover the market value of the entire item -- like a forced sale.
  27. What is the remedy for conversion?
    The plaintiff can recover the market value of the entire item -- like a forced sale.
  28. What are some affirmative defenses to intentional torts?
    • Consent
    • Lack of capacity
    • Self defense
    • Defense of others
    • Defense of property
    • Necessity (public/private)
  29. Do children have capacity to consent?
    Children can consent to age-appropriate invasions.
  30. Express consent
    Words spoken or written by the plaintiff giving express or explicit permission to do the challenged behavior

    EXCEPTION: Ignored if obtained through fraud or duress
  31. Implied consent
    • Custom or Usage - A plaintiff goes to a place or encourages in an activiy where certain invasions are routine or customary
    • Based on the defendant's reasonable interpretation of the plaintff's objective conduct (body language consent) - standard is reasonableness
  32. Scope of Consent
    Defendant is liable if he exceeds.

    Watch for doctors.
  33. What are the "protective privileges"?
    • Self defense - threat to your personal self
    • Defense of others - threat to someone else
    • Defense of property - threat to your stuff
  34. What are the elements of the protective privileges (self defense, defense of others, defense of property)?
    • Proper timing - must act while threat is in progress or imminent (there must be a reasonable belief that the threat is genuine)
    • Can only use force reasonably necessary to respond to the threat (you may NEVER use deadly force to protect your property)
  35. When is necessity a defense?
    Only a defense to property torts.
  36. Public necessity
    Arises when the defendant invades the plaintiff's property in an emergency to protect the community as a whole and a significant group of people.

    Absolute defense to liability.
  37. Private necessity
    Arises when the defendant invades or interferes with the plaintiff's property to protect an interest of his own.

    Defendant remains liable for any actual harm, but is not liable for nominal or punitive damages.

    As long as the emergency continues a private necessity actor has a right to remain on the plaintiff's land in a position of safety.
  38. For how long does a defendant alleging private necessity have a right to remain on the plaintiff's land in a position of safety?
    As long as the emergency continues. 

    The defendant is liable for any actual harm, but is not liable for nominal or punitive damages.
  39. What are the elements of defamation?
    • The defendant must make a defamatory statement specifically referring to the plaintiff.
    • Publication
    • Damages, maybe
  40. What is a defamatory statement?
    A statement that adversely effects the plaintiff's reputation, an assertation of fact reflecting negatively on a trait of character.
  41. Can a statement of opinion be defamatory?
    Yes, if a reasonable person would conclude it is fact based.
  42. Do you need to name a person to give rise to a suit for defamation?
    No, just make them identifiable.
  43. If you refer to a small group, who is considered defamed?
    Everyone in the group.

    Ex.: A member of the class is a slut.
  44. If you refer to a big group, who is considered defamed?
    No one.
  45. Can a person sue under defamation if he was not alive when the statement was made?
    No.

    The person must be alive when the statement is made.
  46. What is required to safisfy "publication" for a defamation claim?
    • The defendant revealed the statement to at least one person other than the plaintiff.
    • Publication doesn't need to be intentional, it could be negligent.
  47. Do you need to prove damages for a defamation claim?
    • Libel - Damages are presumed.  You can still show evidence regarding the amount of defamation.
    • Slander - Damages are presumed for slander per se. For slander not per se the plaintiff has to demonstrate economic loss.
  48. Libel
    Any defamation that it is in a permanent or semi-permanent form.
  49. Slander
    A spoken defamatory statement
  50. Slander per se
    • Business or profession
    • Crime of moral turpitude (significant moral dimension)
    • Imputing unchastity to a woman
    • Loathsome diseases (leprosy, veneral disease)
  51. Slander not per se
    Anything that is not slander per se.
  52. When do you need to prove damages in a defamation claim?
    Slander not per se.

    The plaintiff has to demonstrate economic loss.
  53. What are the defenses to defamation?
    • Consent
    • Truth - the burden on defendant
    • Absolute privilege
    • Qualified privilege
    • The special case (public concern, falsity of statement, at least negligent)
  54. Who has an absolute privilege as a defense to a defamation claim?
    • Spouses talking to each other
    • Officials of the branches of government in the course of their offiical duties (in the judicial branch it extends to attorneys and witnesses)
    • The media when broadcasting or reporting on a public proceeding
  55. Who has a qualified privilege as a defense to a defamation claim?
    Arises in any case where there is a public interest in encouraging candor.

    Conditions: You must have a reasonable belief in the truth of hte statement, confine yourself to matters relevant to the conversation.
  56. What is the "special case" defense to defamation?
    "Public Concern" plus 2 more elements:

    • 1. The plaintiff must prove the falsity of the statement
    • 2. Fault - The defendant did not disseminate the statement with a reasonable degree of confort in its truth.
    • --Plaintiff is a public figure -- false statement made intentionally or reckleslly
    • -Plaintiff is a private figure -- false statement made negligently
  57. What are some privacy torts?
    • Appropriation
    • Intrusion
    • False light
    • Disclosure
  58. Appropriation
    The defendant uses the plaintiff's name or image for a commercial advantage.

    • --newsworthiness exception
    • --plaintiff does not need to be a celebrity
  59. Intrusion
    Invasion of the plaintiff's physical seclusion in a way that would be highly offensive to the average person.

    There needs to be a reasonable expectation of privacy.
  60. False light
    Widespread dissemination of a material falsehoold about the plaintiff that would be highly offensive to a reasonable person.

    • Plaintiff's burden to show falsity.
    • This tort does not require any other form of fault.
  61. Disclosure
    Widespread dissemination of confidential information about the plaintiff that would be highly offensive to a reasonable person.

    This information is TRUE.

    • --newsworthiness exception
    • --dual life fact-pattern: people carrying info between two spheres are protected (must be truly private or intimate)
  62. What are the defenses to privacy torts?
    • Consent
    • Absolute privilege (apply to false light)
    • Qualified privilege (apply to false light)
  63. Does the media have an absolute privilege defense to defamation, appropriation, intrusion, false light, disclosure?
    Yes, when broadcasting or reporting on public proceedings. 
  64. Against which torts does the media have an absolute privilege defense?
    • Defamation
    • Appropriation
    • Intrusion
    • False light
    • Disclosure
  65. What are some economic torts?
    • Fraud
    • Negligent misrepresentation
    • Interference with business relations
  66. What are the elements of fraud?
    • Misrepresentation made by defendant
    • Scienter
    • An intent to induce the plaintiff's reliance on the misrepresentation
    • Causation (actual reliance on the misrepresentation)
    • Justifiable reliance by the plaintiff on the misrepresentation
    • Damages
  67. What are the elements of negligent misrepresentation?
    • Misrepresentation made by defendant in business or professional capacity
    • Breach of duty toward particular plaintiff
    • Causation
    • Justifiable reliance by plaintiff upon the misrepresentation
    • Damages
  68. How is liability limited for the tort of negligent misrepresentation?
    Liabilty is confined to commercial transactions.
  69. What are the elements of interference with business relations?
    • Existence of a valid contractual relationship between plaintiff and a third party OR a valid business expectancy of plaintiff;
    • Defendant's knowledge of the relationship that induces a breach or termination of the relationship or expectancy; and
    • Damage to plaintiff
  70. What are litigation torts?
    • Malicious prosecution
    • Abuse of process
  71. What are the elements of malicious prosecution?
    • Institution of criminal proceedings against plaintiff
    • Termination favorable to plaintiff
    • Absence of probable cause for prosecution
    • Improper purpose of defendant
    • Damages
  72. How does a malicious prosecution plaintiff show absence of probable cause?
    • Insufficient facts for a reasonable person to believe that plaintiff was guilty; OR
    • That the defendant did not actually believe the plaintiff to be guilty
  73. What are the elements of the tort of abuse of process?
    • The wongful use of the process for an ulterior purpose; and
    • Some definite act or threat against plaintiff to accomplish the ulterior purpose.
  74. Abuse of process
    It is a tort to use any form of process -- civil or criminal -- to bring about a result other than that for which the form of process was intended.

    • Elements:
    • 1) The wrongful use of the process for an ulterior purpose, and
    • 2) Some definite act or threat against plaintiff to accomplish the ulterior purpose.
  75. What are the elements of negligence?
    • Duty
    • Breach
    • Causation (actual causation, proximate causation)
    • Damages
  76. What is the definition of "duty" for a negligence claim?
    An obligation to take risk-reducing precautions to reduce chance you might hurt someone in your day-to-day operations.
  77. To whom to you owe a duty (negligence)?
    • Forseeable victims
    • NOT unforseeable victims outside the zone of danger (exception--rescuers)
  78. Do negligence defendants owe a duty to rescuers?
    Yes, even if they are unforseeable victims outside the zone of danger.
  79. How much care do you owe?
    The care of a hypothetical reasonably prudent person acting under similar circumstances (reasonably prudent person standard).
  80. Reasonably Prudent Person Standard
    The care of a hypothetical reasonably prudent person acting under similar circumstances.

    Default standard of care in negligence.

    Write: "Because the facts do not indicate that a special duty applies, the defendant owed the default of reasonable prudence under the circumstances."
  81. What is the default standard of care in negligence?
    The care of a hypothetical reasonably prudent person acting under similar circumstances (reasonably prudent person standard).
  82. What are general exceptions to the reasonably prudent person standard?
    • If the defendant has superior knowledge then he is held to the standard of a reasonable person with that knowledge.
    • You can consider physical characteristics where relevant.
  83. Are children capable of negligence?
    • Children under four are legally incapable of negligence
    • Children over four owe standard of care of children of similar age, experience, and intelligence acting under similar circumstances
    • If a child is engaged in an adult activiy, we don't use the child standard, we use the reasonably prudent person standard (e.g., operating a motor vehicle)
  84. What duty of care do children under the age of four owe?
    Children under four are legally incapable of negligence.
  85. What duty of care do children over the age of four owe?
    The standard of care of children of similar age, experience, and intelligence acting under similar circumstances.
  86. What standard of care does a child owe when he is engaged in an adult activity?
    The care of a hypothetical reasonably prudent person acting under similar cirucmstances (reasonably prudent person standard).
  87. What is the standard of care for professional malpractice cases?
    • The defendant must give care that would be given by an average member of the profession given under similar circumstances
    • The metric is a real world one
  88. What duty of care does a property owner owe an undiscovered trespasser?
    Zero duty of care for protection against conditions on the land.
  89. What duty of care does a property owner owe a discovered (or anticipated) trespasser?
    • Artificial condition
    • Highly dangerous killing or maiming
    • Concealed from trespasser
    • Knew about in advance
    • "Known, man-made, death traps"
  90. How can you tell an undiscovered trespasser from a discovered (or anticipated) trespasser?
    Prior trespass is a predictor of future trespass.
  91. What duty of care does a propety owner owe a licensee?
    • Concealed
    • Known in advance
  92. Licensee
    Come with permission but no economic benefit (houseguest, neighbor)

    (Property owner must has a duty of care as to concealed dangers that are known in advance.)
  93. What duty of care does a property owner owe an invitee?
    • Concealed
    • Possessor either knew about or could have discovered through a reasonable inspection
  94. Invitee
    With permission, economic benefit (repairmen) or open to the public at large (shopping mall)
  95. Can firefighters or police officers recover for injuries on premises?
    No, not if the injury is inherent in their job.
  96. What standard of care does a property owner owe a child trespasser?
    Reasonable prudence with regard to artificial conditions on the land.
  97. Attractive nuisance doctrine
    You have something on your land that would attract children trespassers.
  98. How can a land owner satisfy his duty regarding dangerous land?
    • Fix the problem
    • Give a warning
  99. What is required to bring a claim to enforce a statutory standard of care?
    • Plaintiff is a member of the class of persons that the statute is trying to protect
    • Injury or accidnet was in the class of risks that the statute is trying to prevent
  100. What are some exceptions to the rule that persons are liable for violating statutory standards of care?
    • Obeying the statute is more dangerous than violation under the circumstances
    • Compliance was impossible under the circumstances
  101. When is there a duty to act affirmatively to rescue a stranger in peril?
    • Pre-existing relationship -- look for formal relationships/legal labels
    • Plaintiff caused peril
    • Voluntary undertake rescue -- you must be reasonable
  102. Negligent Infliction of Emotional Distress (NIED)
    --Defendant is already negligent

    --No trauma to plaintiff's body

    --3 routes to recovery:

    1) Near miss - Defendant's negligence places plaintiff in a zone of physical danger (need subsequent physical manifestations, but trend is to be more lenient)

    2) Bystander fact pattern - Plaintiff witnesses serious physical injury or death to a close family member and the plaintiff was physically there when injury occured

    3) Relationship cases - Carelessness is highly likely to lead to emotional distress (laboratory-patient)
  103. Breach
    Fact + Reason -- what they did wrong and why it's unreasonable
  104. Res Ipso Loquitor
    • This damage is normally associated with negligence of some kind
    • Accident normally due to negligence of someone in defendant's position
    • Defendant had control over object in question
  105. What are the two types of causation?
    • Factual cause
    • Proximate cause
  106. Factual causation
    The plaintiff establishes a connection between breach and damages.

    • The breach is a factual cause, not the defendant.
    • The breach is a factual cause.  All events have an infinite # of causes.

    Satisfy the "but for" test

    • Multiple Defendants
    • -Merged Causes - 2 negligent defendants both set a fire which combined
    • --Substantial factor test -- if it would have been able to cause injury on its own
    • --Joint and several liability
    • -Unascertainable cause
    • --Shifts the burden of proof to the defendants to talk their way out of the case if they can, if they can't just joint and several liability
  107. How do you determine factual causation for multiple defendants?
    • Merged Causes - 2 negligent defendants both set a fire which combined
    • -Substantial factor test -- if it would have been able to cause injury on its own
    • -Joint and several liability

    • Unascertainable cause
    • -Shifts the burden of proof to the defendants to talk their way out of the case if they can, if they can't joint and several liability
  108. Proximate cause
    Fair to pay for forseeable conseeables.

    • Direct cause -- outcomes almost always forseeable
    • Indirect cause -- depends

    Look at the breach -- why is this legigent?  Look at injury, is that what you were afraid of? Yes! Then proximate cause.
  109. What indirect causes are always forseeable under proximate cause analysis?
    • Intervening medical (malpractice) treatment
    • Intervening negligent rescue
    • Intervening reaction or protection forces
    • Subsequent accident or disease
  110. Eggshell skull rule
    Once plaintif establishes every element of the claim, he can recover all damages suffered even if surprisingly great in scope.
  111. What is an affirmative defense to a tort?
    Comparative negligence
  112. Comparative negligence
    A defendant can establish a predicate for comparative negligence by showing that the plaintiff did not exercise proper care.

    • --Plaintiff violated relevant statuate
    • --Jury compares fault and assigns percentages
    • --Plaintiff's recovery is reduced in accordance with damages
  113. Pure comparative negligence
    Strictly by the numbers (i.e., percentage of fault).

    Default rule on the MBE.
  114. Modified (partial) comparative negligence
    If the plaintiff's fault is greater than 50%, there is an aboslute bar to recovery.
  115. What torts are subject to strict liability?
    • Injuries caused by (usually wild) animals
    • Abnormally dangerous activities
    • Injuries caused by products
  116. When is there strict liability for injuries caused by domesticated animals?
    When the defendant has knowledge of the vicious propensity of the animal, unless the plaintiff is a trespasser.
  117. When is there strict liability for injuries caused by wild animals?
    Always. 

    If you keep one, you are strictly liable.
  118. What is the standard of liability for abnormally dangerous activities?
    Strict liability.

    Forseeable risk of serious harm even when reasonable care is exercised.

    Not a matter of common usage in the community.
  119. When is a defendant not strictly liable for an abnormally dangerous activity?
    When it is a matter of common usage in the community.
  120. What causes of action arise for injuries caused by products?
    • May be multiple causes of action
    • --Negligence in putting it together
    • --Breach of warranty of merchantability, etc.
  121. What are the elements of products liability?
    • Merchant
    • Product must be defective
    • Plaintiff must demonstrate product has not been altered since leaving manufacturer's hands
    • Plaintiff must be making a forseeable use (not limited to intended use)
  122. Merchant (products liability)
    Someone who routinely deals in goods of this type.

    Not casual sellers or service provider (where provision of goods is incidental to service)
  123. Manufacturing defect
    A product is different from all the others in a way that makes it more dangerous than consumers may expect.
  124. Design defect
    There is another way, alternative design, that is 1) safer, 2) cost effective (more), and 3) practical.
  125. Information defect
    Product cannot be made physically safer, dangerous, hidden risks, must be appropriate warnings. 

    Does not need to warn of an obvious danger.

    If a product can be redesigned just slapping a warning on it is not sufficient.
  126. Who bears the burden in demonstrating whether a product has been altered since leaving the manufacturer's hands?
    The plaintiff must demonstrate that the product has not been altered. 

    But there is a presumption for plaintiff if distributed in ordinary channels of distribution.
  127. How do you determine comparative responsibility in a products liability case?
    By assigning percentages.
  128. Nuisance
    An unreasonable interference with a person's ability to use and enjoy his own land.

    Key word: balance.
  129. Vicarious liability (employer/employee)
    Employer is vicariously liable for torts of employee committed within scope of employment (respondeat superior)

    • Intentional torts generally outside scope unless:
    • --employee granted right to use physical force
    • --job creates animosity
    • --employee trying to serve employer's agenda
  130. When are intentional torts within the scope of respondeat superior/vicarious liability for an employee's actions?
    • Employee granted right to use physical force
    • Job creates animosity
    • Employee trying to serve employer's agenda
  131. Vicarious liability (independent contractor/hiring party)
    No vicarious liability here.

    EXCEPTION: Land possessor is vicariously liable if independent contractor hurts invitee.
  132. When is there vicarious liability for the actions of an independent contractor?
    Land possessor is vicariously liable if independent contractor huts invitee.
  133. Vicarious liability (owner of car/driver of car)
    No vicarious liability here.

    EXCEPTION: They are running errands for you.

    A car renter is never vicariously liable for the actions of rentees.
  134. When is there vicarious liability for the actions of someone driving your car?
    When they are running errands for you.

    NOTE: A car renter is never vicariously liable for the actions of rentees.
  135. Vicarious liability (parents/kids)
    Parents are not vicariously liable for torts of kids.
  136. When are parents vicarious liable for the torts of their children?
    Never.
  137. Loss of consortium
    Victim is married, uninjured spouse has separate, but derivative, cause of action.

    Can recover for loss of services, loss of society, and loss of sex.
  138. How can a defendant who paid a judgment out-of-pocket recover against co-defendants?
    Comparative contribution -- jury assigns percentages based on fault.

    • EXCEPTION: Indemnification, can get everything back
    • 1. Vicarious liability against active tortfeasor.
    • 2. Non-manufacturer held strictly liable for protection against merchant.
  139. What damages can a plaintiff alleging loss of consortium recover?
    • Loss of services
    • Loss of society
    • Loss of sex

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