Torts - Final Version

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DrIanMalcolm
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27020
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Torts - Final Version
Updated:
2010-07-16 14:10:07
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Washington Bar Exam Torts
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  1. Intentional Torts to Person or Property: Transferred Intent
    Extends defendant’s liability to unforeseeable consequences of an intentional tort.

    Applicable to battery, assault, false imprisonment, trespass of land, and trespass of chattels. [BAFTT]
  2. Intentional Torts to Person or Property: Battery
    Intentional harmful or offensive contact with plaintiff's person, which is anything connected to plaintiff's person.

    Consciousness of batter is not required.
  3. Intentional Torts to Person or Property: Assault
    Intentional act that causes plaintiff reasonable apprehension of imminent battery.

    Consciousness of assault is required.
  4. Intentional Torts to Person or Property: False Imprisonment
    Defendant intentionally restrains plaintiff within a bounded area (i.e. barrier, force, holding property)
  5. Intentional Torts to Person or Property: Intentional Infliction of Emotional Distress
    Defendant’s extreme and outrageous conduct causes plaintiff to suffer severe emotional distress.
  6. Intentional Torts to Person or Property: Trespass to Land
    Intentional physical invasion of plaintiff’s land.
  7. Intentional Torts to Person or Property: Trespass to Chattle
    Intentional interference with plaintiff’s right of possession in the chattel.
  8. Intentional Torts to Person or Property: Conversion
    Intentional interference with plaintiff’s right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pays the full value.
  9. Intentional Torts to Person or Property: Fraud
    Plaintiff must establish by clear and convincing evidence the defendant made an intentional misrepresentation of false material fact to the plaintiff, which induced plaintiff’s justifiable reliance, and resulted plaintiff’s injury.
  10. Intentional Torts to Person or Property: Intentional Interference with Business Relationship
    Prima facie case requires existence of valid contractual relationship between 3rd party and defendant or reasonable business expectancy by plaintiff, defendant knew of it, intentional interference by defendant inducing breach or termination, and damages result.
  11. Intentional Torts to Person or Property: Defenses | Shopkeeper's Privilege
    May use reasonable non-deadly force to detain plaintiff for a reasonable time for reasonable investigation of possible shoplifting.
  12. Intentional Torts to Person or Property: Defenses | Consent
    Express or implied consent. No consent if induced by fraud, misrepresentation, or plaintiff withdraws consent.
  13. Intentional Torts to Person or Property: Defenses | Recapture of Chattle
    Reasonable non-deadly force to recover defendant’s personal property from plaintiff, and defendant is in hot pursuit.
  14. Intentional Torts to Person or Property: Defenses | Arrest
    Police Officer may use reasonable force or necessary deadly force to arrest plaintiff for a felony even if reasonably mistaken; and may use reasonable non-deadly force to arrest for a misdemeanor committed in front of police officer.

    Private citizen must have reasonable suspicion that a felony occurred and plaintiff did it.
  15. Intentional Torts to Person or Property: Defenses | Private Necessity
    To intrude on plaintiff’s property to prevent loss to defendant’s interest in person or property.

    Defendant must pay any damages, and plaintiff cannot eject or defend property interest.
  16. Intentional Torts to Person or Property: Defenses | Public Necessity
    To intrude on plaintiff’s property to prevent loss to an entire community. Defendant pays no damages, but public actor may be required to give just compensation.
  17. Intentional Torts to Person or Property: Defenses | Defense of Self or Others
    Reasonable force used to protect self or another person against threat of bodily harm. Defendant belief that threat is real must be that of reasonable person in same situation.
  18. Intentional Torts to Person or Property: Defenses | Defense of Property
    Defendant may only use reasonable non-deadly force to defend property.
  19. Defamation and Invasion of Privacy: Defamation
    Prima facie case requires a false and defamatory fact about the plaintiff published to a third party, damage to plaintiff’s reputation resulted, and defendant was at fault.

    Truth is a defense to defamation.
  20. Defamation and Invasion of Privacy: Defamation Per Se
    Naturally tends to expose plaintiff to hatred, contempt, ridicule, obloquy; or an adverse claim about plaintiff regarding one of the following categories: plaintiff’s ability in her business, trade, or profession; suffering a loathsome disease; crime of moral turpitude; unchaste woman.
  21. Defamation and Invasion of Privacy: Determining Fault
    Private person need only show defendant was negligent.

    A public figure or public official must show defendant knew statement was false or had reckless disregard of its truth or falsity.
  22. Defamation and Invasion of Privacy: Invasion of Privacy
    Intrusive conduct into plaintiff’s private affairs, and intrusion is offensive to a reasonable person.
  23. Defamation and Invasion of Privacy: Public in False Light
    Defendant publishes and attributes to plaintiff things she did not say or do. False light must be objectionable to a reasonable person. For matter in public interest, malice by defendant must be shown.
  24. Defamation and Invasion of Privacy: Public Disclosure of Private Facts
    Defendant publicly exposes plaintiff’s private information, and must be objectionable to a reasonable person. Exception if legitimate public interest.
  25. Defamation and Invasion of Privacy: Personality Rights
    In Washington cannot use plaintiff’s identity or name for commercial advantage without consent.
  26. Negligence:
    Prima facie case requires showing defendant owed a duty of care to plaintiff, defendant breached that duty, and breach was actual (“but for”) and proximate cause of plaintiff’s harm resulting in damages.

    Breach of duty occurs when act or omission falls below the standard of care defendant owed plaintiff.
  27. Negligence: Negligence Per Se
    If driving while intoxicated.
  28. Negligence: Res Ipsa Loquitor
    • Plaintiff must show that type of accident generally
    • does not occur without negligence, defendant was in exclusive control over the instrumentality causing harm; and plaintiff was not at fault.
  29. Negligence: Nuisance
    Private nuisance is unreasonable interference with plaintiff’s use and enjoyment of her land.

    Public nuisance is unreasonable interference with the health, safety, or property rights of entire community, and plaintiff had special injuries not suffered by the public at large.

    Not nuisance if permitted by zoning ordinance.
  30. Negligence: Nuisance Remedies
    Damages, and/or an injunction for use where money damages are an inadequate remedy.
  31. Negligence: Negligent Infliction of Emotional Distress
    Plaintiff must show harm was foreseeable and an objective manifestation of distress.

    Applies to direct victim if defendant knows of their existence, or to bystander if close relative of the victim and was at scene of accident or shortly thereafter.
  32. Negligence: Standard of Care
    Duty of care is owed to foreseeable plaintiffs.

    Reasonable person standard is where person’s conduct is measured against what average person would do.
  33. Negligence: Standard of Care - Child
    Duty to act like a child of like, age, experience, intelligence, and education. Incapable of negligence if under 6.
  34. Negligence: Standard of Care - Professional
    Must possess and exercise the knowledge and skill of a member of the in good standing in same locality.
  35. Negligence: Standard of Care - Health Care Provider
    In Washington, must exercise degree of care, skill, and learning of a reasonably prudent health care provider in same profession in state of Washington.

    Must have informed or implied consent, otherwise battery.
  36. Negligence: Standard of Care - Disabled Person
    Care of reasonable person with same physical characteristics.

    Objective standard for mentally ill, but subjective reasonable person standard for contributory negligence or for sudden onset with no prior warning.
  37. Negligence: Standard of Care - Emergency
    Relaxed standard of care as a reasonable person’s decisions in an emergency situation, unless defendant’s own prior negligence created the emergency
  38. Negligence: Standard of Care - Commercial Host
    Duty of extraordinary care, liable for slight negligence.
  39. Negligence: Standard of Care - Good Samaritan
    Exempt from liability for voluntarily rendering emergency treatment, unless grossly negligence or willful and wanton misconduct.
  40. Negligence: Standard of Care - Statutory Standard of Care
    Breach of duty imposed by statute, ordinary, or administrative rule is a prima facie cause of negligence to be considered by trier of fact.
  41. Negligence: Standard of Care - Bailment
    Duty of slight care if bailment for bailor’s benefit; extreme diligence if bailment for bailee’s benefit; ordinary care if for mutual benefit.
  42. Negligence: Standard of Care - Landlord
    Duty to exercise reasonable care over common areas such as halls, walks, elevators that remain under her control. Landlord is liable for any injury resulting from a dangerous condition that could reasonably have been discovered and made safe. Landlord has a duty to warn tenant of latent defects.
  43. Negligence: Standard of Care - Invitee
    Enters land with owner’s invitation, express or implied, for owner’s benefit.

    Owner owes licensee a duty to warn of dangers known and reasonably should have known.
  44. Negligence: Standard of Care - Licensee
    Enters land with owner’s express or implied permission for own president. Owner has duty to warn of known latent danger.
  45. Negligence: Standard of Care - Trespasser
    Enters land with no permission.

    Owner owes no duty to warn of unknown or known dangers, only duty to avoid intentional torts and recklessness.
  46. Negligence: Standard of Care - Attractive Nuisance Doctrine
    Landowner has duty to make safe any artificial condition that may entice young children who are incapable of understand the danger involved
  47. Negligence: Standard of Care - Affirmative Duty to Act
    No duty to help strangers in peril, unless defendant’s tort caused plaintiff’s peril, defendant’s actions increased risk of harm, or defendant has already undertaken to help
  48. Negligence: Standard of Care - Custom and Usage
    Compliance with industry custom is non-conclusive evidence of what reasonable person would do; and plaintiff can show non-compliance as non-conclusive evidence of negligence
  49. Negligence: Causes - Actual Cause
    Act or omission is cause in fact of an injury if the injury would not have occurred “but for” the act.
  50. Negligence: Causes - Proximate Cause
    Negligent party is liable for all harm reasonably foreseeable to her and proximately caused by scope of her conduct.

    Defendant is liable for all unforeseen injuries resulting from her conduct, but not for purely economic damages that could not have been foreseen.
  51. Negligence: Causes - Joint and Several Liability
    Exists for each defendant where two or more negligent acts combine to proximately cause an indivisible injury to plaintiff.

    Each defendant is liable for entire amount of damages if plaintiff is not at fault.
  52. Negligence: Causes - Intervening Cause
    Natural occurrence or 3rd party’s action that comes between defendant’s negligent action and the plaintiff’s harm. [Defendant is liable if foreseeable/within scope].

    A supervening cause cuts off the original defendant’s liability if cause of 2nd injury was result of an extraordinary natural event or intentional criminal wrongdoing by a third party.
  53. Negligence: Causes - Rescuer Doctrine
    Original defendant is proximate cause for rescuer’s injuries suffered during the rescue attempt; or if plaintiff attempts to rescue someone whose contributory negligence left them vulnerable.
  54. Negligence: Causes - Good Samaritan Rule
    If plaintiff sues rescuer for negligence, original defendant is liable as proximate cause.
  55. Negligence: Causes - Firefighter's Rule
    Fire invites firefighters, thus original defendant is liable as proximate cause.
  56. Negligence: Damages
    Plaintiff is entitled to compensation for all damages except punitive. Special damages include medical expenses, lost earnings, and impaired future earnings. General damages consist of limited amounts of pain and suffering. Has duty to mitigate.
  57. Negligence: Defenses - Intoxication
    No recovery if plaintiff is intoxicated and more than 50% at fault.
  58. Negligence: Defenses - Felony
    No recovery if plaintiff’s felony is a proximate cause of the her injury
  59. Negligence: Defenses - Comparative Fault
    Washington is a comparative fault state, and all tortfeasors are based on percentage of fault.

    Defendant who pays more than her share can recover from other joint tortfeasors.
  60. Negligence: Defenses - Comparative Fault | Contributory Fault
    Plaintiff can still recover damages if she was negligent, but reduced to percent of her fault.
  61. Negligence: Defenses - Comparative Fault | Assumption of Risk
    Plaintiff engages in activity with knowledge of risk; defendant only has limited duty of care.
  62. Strict Liability:
    For harms within purpose of statute enforcing strict liability.
  63. Strict Liability: Animals
    Owner or possessor is strictly liable: for trespass by animals, except cats and dogs; for personal injuries inflicted by wild animals, unless plaintiff trespasses on private property; or personal injuries inflicted by domestic animals and defendant knows of animal’s dangerous propensities or negligently handled animal.

    For public zookeeper, only negligence.
  64. Strict Liability: Animals - WA Dog Statute
    Strict liability if plaintiff is bitten in public, or private property as invitee or licensee
  65. Strict Liability: Abnormally Dangerous Activity
    Involves serious risk of harm, risk is present regardless of the precautions taken, and is not a normal community. In Washington, applies to fireworks.
  66. Strict Liability: Defenses
    Same as negligence; [comparative fault: contributory negligence or implied assumption of risk]
  67. Washington Products Liability Act:
    Product injures plaintiff’s person or property, or poses risk of harm even if no actual harm.
  68. Washington Products Liability Act: Strict Product Liability
    Manufacture is strictly liable if product is not reasonable safe as constructed and defect caused the harm, or because product breached express and implied warranties and thus breach caused the harm
  69. Washington Products Liability Act: Breach of Express Warranty
    Product was basis of bargain, breach was material, and express warranty proven untrue.
  70. Washington Products Liability Act: Product Liability Negligence
    Manufacturer is negligent if product is not reasonably safe as designed and defect caused the harm, or because adequate warning or instruction were not given and thus proximately caused the harm.
  71. Washington Products Liability Act: Defenses
    Product seller is not liable if it proves by preponderance of evidence: it followed custom, regulatory standards, or compliance with government spec; expiration of product’s “useful safe life;” or comparative fault by contributory negligence or implied assumption of risk.
  72. Washington Products Liability Act: Statute of Limitations
    3 years from the time plaintiff discovered or reasonably should have discovered harm
  73. Washington Products Liability Act: Statute of Limitations
    Violation if plaintiff in trade or commerce that affects public interest, engages in unfair or deceptive act, which causes injury to plaintiff in her business or property.

    Plaintiff can be a competing business or affected consumer.
  74. Consumer Protection Act:
    Violation if plaintiff in trade or commerce that affects public interest, engages in unfair or deceptive act, which causes injury to plaintiff in her business or property. Plaintiff can be a competing business or affected consumer.
  75. Consumer Protection Act: Damages
    • Consist of treble damages and attorney’s fees.
    • No general damages, economic loss only.
  76. Consumer Protection Act: Statute of Limitations
    4 years, but tolls during action bought by the Attorney General.
  77. Vicarious Liability: Respondeat Superior
    Employer is vicariously liable to third parties for torts committed by employee within the scope of employment, but not major deviations (frolic).

    Employer is not responsible for torts of an independent contract; independent contract status is determined by the amount of control employer retains over employment.
  78. Vicarious Liability: Community Liability
    For tort committed in the court of managing community property or during activity performed for the benefit of the community.
  79. Vicarious Liability: Partnership Liability
    All partners vicariously liable for torts committed within the scope of the partnership.
  80. Vicarious Liability: Automobile Owner Liability
    No vicarious liability. Except for family car doctrine: parent's consent, express or implied, to drive family car, and car was actually driven by child.

    Also, parent can be directly liable for own act of negligent entrustment.
  81. Vicarious Liability: Parental Liability
    • Parent is not vicariously liable unless child acts as parent’s agent. In Washington, parent is liable for a child’s intentional torts with a $5k cap.
    • See Negligent Supervision - parent may be directly responsible for own act of negligent supervision.
  82. Survival of Actions
    Claim for pain and suffering of deceased only for surviving spouse, child, or dependant parent.
  83. Wrongful Death
    Beneficiaries can recover pecuniary damages and loss of consortium, but not for pain and suffering.
  84. Generally All Torts: Statute of Limitations
    2 years – defamation, assault, battery, false imprisonment, nuisance

    3 years – all other tort claims.

    Medical Malpractice – 3 years from date of wrongful act, or 1-year from plaintiff’s discovery, whichever expires last

    Date of Accrual – date of wrongful act for most torts. Date of discovery for fraud. For negligence, the date when plaintiff knows, or should have known of the injury.

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