Torts

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Ellla
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304474
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Torts
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2015-06-30 16:08:35
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Study for torts law
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  1. Intentional Torts
    • Battery
    • Assault
    • False Imprisonment
    • Intentional Infliction of Emotional Distress
    • Trespass to Land
    • Trespass to Chattels 
    • Conversion
  2. What is Battery
    An affirmative act with intent to touch another resulting in actual harmful or offensive touching of P
  3. What is an affirmative act
    A voluntary act, absence of mistake, coercion or duress
  4. What is intent to touch
    Actual intent or substantial certainty that contact will occur
  5. What is harmful or offensive touching
    harmful or offensive touch is a touch that a reasonable person would find harmful or offensive or is damaging to a reasonable sense of dignity.  This includes the eggshell theory but does not include the unduly sensitive person.
  6. Eggshell Theory
    The theory that you take the plaintiff as he is, brittle bones and all.
  7. Transferred Intent
    Under the doctrine of Transferred Intent, if D held the necessary intent with respect to person A, he will be held to have committed an intentional tort against any other person who happens to be injured.
  8. Contact beyond level consented to
    Battery can occur where P consents to a certain level of bodily contact but D goes beyond the consented to level of contact. At that point consent becomes invalid
  9. What is Assault?
    • An affirmative act
    • with intent to place P in apprehension
    • of an immediate
    • harmful or offensive touching
  10. What is intent to place P in apprehension?
    • P must know about the almost touch. Additionally, D must intend to scare, touch or almost touch P.  
    • Or D can just intend to create an apprehension
  11. What does immediate mean?
    here and now.  Not later.
  12. Words Alone Rule
    Words alone cannot be an assault, there must be a physical gesture with the words.  Or prior experience with D that the words will be followed by actual contact
  13. False Imprisonment
    • An act or omission which causes P's confinement to a particular area
    • with intent to confine someone 
    • resulting in the actual confinement of P where P cannot escape by reasonable means
    • Either awareness of the confinement or injury resulting therefrom
  14. Intentional Infliction of Emotional Distress (IIED)
    • And extreme and outrageous conduct
    • with intent to cause severe emotional distress or reckless with regard to such injuries (no transferred intent)
    • resulting in severe emotional distress.  But no physical injury is required.
  15. Transferred Intent on IIED
    • Transferred intent only applies if behavior is directed to a third party and 
    • P and X are close relatives (immediate family) and D knows P is present

    • If P and X are not immediate family members, P can recover only if 
    • P was present and known to D to be present, and 
    • The emotional distress suffered by P lead to bodily harm.
  16. Trespass to land
    An affirmative intentional act - either D enters the land or causes an instrumentality/object to enter, or refuses to leave after being requested to, which invades P's possessory interest (actual injury not required) in land
  17. Trespass to Chattels
    • an affirmative intentional act
    • which interferes w P's possessory interest
    • in movable personal property
    • resulting in injury 
    • measure of damage - depends on nature of trespass but may include value of lost chattel, actual injury to chattel, and loss of P's use of chattel
  18. Conversion
    • An act or omission
    • with intent to assert dominion and control over a chattel
    • which in fact belongs to P
    • resulting in substantial injury to the chattel
    • measure of damages is full or fair value of property.
  19. Difference between trespass to chattel and conversion
    • Courts consider several factors including:
    • duration of D's dominion and control
    • D's good or bad faith
    • the harm done to the property
    • the inconvenience caused to P
  20. Defenses to Intentional Torts
    • Consent 
    • Defense of Others
    • Defense of Property
    • Self-Defense
    • Necessity
    • Arrest
  21. Consent
    • Actual consent - verbal
    • Apparent consent - based on actions
    • implied consent - does the law imply consent
    • informed consent - what was P told?
    • Did D's acts exceed scope of P" consent?
    • Does P have capacity to consent?
    • Was consent vitiated by fraud or duress?
  22. Defense of others
    Majority - D stands in shoes of the protected party - was protected party entitled to use the same amount of defense?

    Minority - protects actor's reasonable mistake - what amount of force did D believe was reasonable?
  23. Defense of Property
    • D is privileged to defend land or chattels with non-deadly force if:
    • intrusion by other party not privileged
    • Actor reasonably believes force necessary to prevent intrusion
    • Demand made that inturder stop unless futile
    • Force will not cause serious harm. deadly mechanical devices privileged only where D entitled to use such force in person.
    • Non-deadly mechanical devices are privileged only if plainly visible or if a warning is posted.
  24. Recapture of Property
    • D is privileged to use reasonable force if:
    • D entitled to immediate possession
    • demand for return made and ignored or futile
    • D in fresh pursuit of tortfeasor
    • Recapture from dispossessed/3rd party having knowledge
  25. Shopkeeper's Privilege
    • A shopkeeper may detain a customer when -
    • he has reasonable grounds for suspicion
    • detention for a reasonable non-deadly force
    • detention itself reasonable
  26. Privilege to reclaim property on another's land
    • Demand for permission to enter made unless futile or emergency circumstances
    • Entry made in a reasonable time and manner
    • Note- under this privilege, act of God or third party does not excuse liability for tort
  27. Privilege to Reclaim Land
    Self Help not privileged since other alternatives are available (i.e quiet title; ouster
  28. Self-Defense
    • D reasonably believes she is in danger form P
    • Force used reasonably appears necessary to prevent harm (objective test) 
    • No deadly force unless there is a danger of death or great bodily injury
    • MAJ - imposes no duty to retreat even though escape is available
    • MOD - imposes duty to retreat before using deadly force unless actor is in her own home
    • No defense for aggressor unless she withdraws
  29. Necessity
    Public Purpose? No liability to avoid public disaster

    Private Purpose? liable for actual damages

    Abate nuisance - if D owns land affected by actual nuisance, has made immediate demand nuisance be abated, and reasonable force is used.  these privileges supersede the privilege of a landowner to protect property.
  30. Defense of Arrest
    • D may use reasonable, non-deadly force to effect a misdemeanor arrest and may use deadly force to make a serious felony arrest if the suspect poses serious harm to person making the arrest:
    • With warrant if warrant is fair and properly executed
    • Without a warrant - 
    • Felonies - officer can arrest if probably cause exists / private citizen can arrest if felony has been committed and private person has reasonable belief that person arrested committed the felony
    • Misdemeanors - if crime involves a breach of the peace and is committed in arrestor's presence.
  31. Negligence
    Breach of a duty of due care which is the actual and proximate cause of P's injuries
  32. Duty
    • Cardozo (MAJ) - Duty owed only to foreseeable P or person in the zone of danger
    • Andrews (MIN) - Duty owed to all members of society
  33. Duty to Control third pesons
    • Where D who has actual ability and authority to control 3rd person, duty owed if:
    • D holds public premises open to public
    • D is liable as a parent for negligently failing to control child
  34. Duty to owner of land
    • D's duty depends on character of land and P's status:
    • 1. Where P outside D's land, no duty of care where injuries caused by natural conditions.
    • 2. If artificial condition abuts D's land D has duty to inspect and maintain in safe conditions (i.e. excavation ditch)
    • 3. If D knows or should know of P's presence on land, then duty to warn against artificial condition or danngerous activities
    • 4. D liable under the attractive nuisance doctrine if D knows/should know that children will trespass and that condition is dangerous to children, children would not realize risk and danger to children outweighs D's burden of eliminating danger.
    • 5. If P is gratuitous licensee (comes onto to land for own purposes with D's permission) D has duty to ward over non-obvious dangers
    • 6.  If P is an invitee (business visitor) D has a duty to warn about non-obvious  dangers, to inspect and make any dangerous conditions safe
    • 7. If public entrants (e.g. firemen, police officer) enter during regular hours = invitees
  35. Licensees
    A person who has the owner's consent to be on the property, but who does not have a business purpose for being there
  36. Invitees
    Persons who are invented by owner onto the land to conduct business

    Members of the public who are allowed onto land that is open to the public

    changes from invitee to licensee if use extends beyond what is normally open to the public.
  37. Duty to Lessee/Vendee
    • Where P outside land, D's duty limited to conditions involving unreasonable risk of harm until transferee has chance to discover/fix condition
    • No duty after transfer of possession unless otherwise agreed, but must warn of unreasonable obvious dangers
    • (MAJ) D owes no duty to 3rd persons coming on land w/vendee's/lessee's consent;
    • (MIN) same duty as owed to vendee/lessee
  38. Duty of Auto Driver
    • D as driver of a car owes a duty to P, the passenger
    • If P paid - as invitee
    • if P did not pay - D must warn of non-obvious defects and drive carefully
    • Guest status under modern law only imposes liability where neg is wanton or gross
  39. Duty to Aid Others
    • Generally no duty to aid others, unless
    • Innkeeeper has duty to guests
    • Common carrier to customers
    • Jailer to prisoner in peril
    • If D caused P's peril or injuries
    • One who undertakes to aid another must exercise due care
  40. Negligent Emotional Distress
    • Duty of care not to subject others to emotional distress which could foreseeable cause them physical injury through physical impact or threat of impact.  No duty is owed to 3rd person unless 
    • 3rd p is in zone of danger
    • 3rd p is close relative of injured person
    • D had knowledge of 3rd p's presence and relationship to injured party
  41. Standard of Care
    Duty to act as a reasonable person would have acted in the same or similar circumstances

    Exception - those with special knowledge/disability held to a like standard
  42. Negligence per se
    An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes and the accident victim is within the class of persons the statute is designed to protect
  43. Breach of Standard of Care
    D breaches the standard of care by engaging in conduct that exposes others to unreasonable risk of harm
  44. Res Ipsa Loquitur
    • The thing speaks for itself - based on the facts of the accident, in can be inferred that D was negligent
    • The type of accident does not occur unless someone was negligent
    • D has exclusive control over the instrumentality
    • P did not contribute to the negligence
  45. Rebuttal of Res Ipsa Loquitur
    To rebut, D must show the instrument that caused the injury was not in his control.

    A showing of due care will not work
  46. Causation in relation to Negligence
    • Cause in Fact
    • Proximate cause
  47. Cause In Fact
    Generally, cause in fact means "but for" cause - But for D's actions, P would not have been injured.
  48. Proximate Cause
    • a sufficiently close causal connection between D's act of negligence and the harm suffered by P that is is fair to hold d liable - the legal cause
    • There was no direct intervening cause or indirect foreseeable cause
  49. Substantial Factor Rule
    If either one of two acts would have caused the injury, it is sufficient if D's conduct was a substantial factor
  50. Alternative Cause Approach
    When 2 or more persons have been negligent but it is unclear who caused the injury, P must prove the harm was caused by one of them and the burden shifts to the D to prove his negligence was not the cause.
  51. Damages
    • Actual damages are required.  
    • Damages include medical expenses, lost earnings, pain & suffering 

    No punitive damages or pre-judgment interest

    P must mitigate damages
  52. Defenses to Negligence
    • Contributory Negligence
    • Comparative Negligence
    • Assumption of the Risk
  53. Contributory Negligence
    • If P caused injury & was negligent herself, no recovery.  
    • But Last Clear Chance Doctrine allows P to recover if D could have avoided accident but didn't
  54. Comparative Negligence
    • MAJ - rejects absolute bar and compares relative negligence of P/D
    • Pure - P can always recover
    • 50% - P loses if fault equal to D
    • 50% or less - P loses if neg greater than D
  55. Assumption of Risk
    If P expressly/impliedly consented to harm, recovery barred if P recognized/understood danger and voluntarily chose to encounter it
  56. Burden of Proof in Negligence cases
    • P bears the burden of proof - 
    • Burden of production 
    • Burden of Persuasion
  57. Burden of Production
    P must come forward with some evidence that D was negligent, that P suffered an  injury, that D's negligence proximately caused the injury, etc....
  58. Burden of Persuasion
    As the case goes to the jury, P must convince the jury that it is more probably than not that his injuries are due to D's negligence
  59. Joint Tortfeasors
    If more than one person is the proximate cause of P's harm and teh harm is indivisible, under the traditional approach, each defendant is liable for the entire harm. (joint and several liability)
  60. Pure Economic Loss
    Traditional - Pure Economic loss are not recoverable by P

    Modernly - If the economic loss is foreseeable and measurable, it may be recoverable
  61. Strict Liability
    Inherently dangerous conduct by D against P 

    Keeping wild or other dangerous animals

    Carrying out abnormally dangerous or ultrahazardous activities

    Workers Compensation in some states
  62. Strict Liability for Animals
    The owner of livestock or other animals is strictly liable for property damage cause by them if they trespass on another's land

    Domestic animals - D is only liable if she know of the animal's propensity for danger

    Wild Animals - D is strictly liable for harm

    Trespassers are not protected in the absence of landowner's negligence unless the injury is inflicted by a vicious animal
  63. Abnormally Dangerous Activities
    One who maintains an abnormally dangerous condition or engages in dangerous activity is strictly liable for harm

    • !) Value to the community
    • 2) Location is not appropriate for activity
    • 3) risk cannot be eliminated by due care
    • 4) activity is not a matter of common usage
    • 5) probability of serious harm to others
  64. Defenses to Strict Liability
    Assumption of risk is the only real defense.  If  knew of danger and negligently caused the miscarrying activity

    Some states apply comparative negligence
  65. Products Liability
    the liability of the seller of a tangible item which, because of a defect, causes injury to the purchaser, user, or sometimes bystanders.
  66. Types of Product Liability
    • Misrepresentation
    • Breach of Express Warranty
    • Strict Product Liability
    • Implied Warranty
    • Negligence
  67. Misrepresentation (Restatement 402b) and defenses allowed
    Mr. MIC

    • Misrepresentation of a material fact
    • P must rely on the representation in using the product
    • Representation must be made by D or fairly chargeable against him
    • Must be intended/expected to reach a class of which P is a member
    • D must be a commercial supplier of chattels
    • Damages awarded for personal injury/property loss

    Defenses - assumption of risk/misuse only
  68. Breach of Express Warranty under UCC 2-313 and defenses
    • Same as misrepresentation, except any seller is liable - no requirement of privity
    • Extends to anyone who could be expected to be personally injured by goods
    • Personal injury, property damage and economic losses are recoverable 
    • Entity can sue

    • Defenses - disclaimer of merchantabiity must be conspicuous to be allowed
    • Assumption of the risk and misuse may be defenses
  69. Strict Products Liability (Rstmt 402A)
    CUDDIFFE

    • D Caused product to be placed on the market
    • At time D put product on the market it contained an Unreasonably Dangerous Defect
    • P hurt while using product in Intended and Foreseeable manner
    • D engaged in the business of selling/supplying product


    • CA Test - CERB
    • Product does not meet Consumer Expectation
    • Risk of harm outweighs Benefit to society

    • Feasible Alternative Test: DOC BAT
    • Danger imposed
    • Obviousness of danger
    • Cost of improved design/practicality
    • Benefit of product
    • Alternative design
    • Technology
  70. Defenses to Strict Product Liability
    Contributory negligence not a defense but assumption of risk, misuse, not following instructions are

    • State of he Art Defense - 
    • Did safer mechanism exist?
    • Why didn't D use it?
    • Did others use it?
    • would use of it at that time adversely affect benefit of product
    • Feasibility/scientific knowledge/practicality
  71. Breach of Implied Warranties
    Warranty of merchantability guarantees that goods are fit for ordinary purposes that goods are used where D is a merchant of such goods

    Warranty of fitness for a particular purpose arises if seller recommends particular product after told by buyer of particular needs regardless of whether D is a merchant

    Damages - same as in express warranty

    Defenses - Assumption of risk, Misuses of product, Failure to follow directions, failure to complain to seller within a reasonable time
  72. Negligence - Product Liability
    • Same analysis as negligence but
    • Duty - Commercial sellers owe a duty of care to any foreseeable P, regardless of Privity

    Standard of Care - Manufacturer must use reasonable care in designing and assembling safe product and must provide necessary warnings: wholesalers have no duty to inspect but retailer must if they know a product is defective.
  73. Nuisance
    A nuisance is a type of injury that is either Public or Private
  74. Public Nuisance
    a Public nuisance is an interference with a right common to the general public.  harm must be substantial and must injure the public at large
  75. Private tort for Public Nuisance
    A Private individual may only recover for damages from a public nuisance if his injuries are different in kind than that suffered by the general public
  76. Private Nuisance
    An unreasonable interference with P's use and enjoyment of his land

    Must have interest in land - includes tenants and family members

    Must show interference with use that is substantial

    D's conduct must be negligent, intentional, or abnormally dangerous and unreasonable (harm outweighs utility or harm is greater than P should be expected to bear without compensation

    Factor in nature of the neighborhood
  77. Defamation
    making a statement which is understood to be defamatory in nature that is published to a person other than the plaintiff causing damage to the P's reputation.  

    may be oral (slander) or written (libel)
  78. keys to defamation
    • Was the matter defamatory
    • (TRAD) exposes P to public hatred, contempt, ridicule 
    • (RSTMT 2) Adversely affects P's reputation - if not defamatory on its face, P must explain why

    Did D publish intentionally or negligently to 3rd party - Uniform Single Publication Rule - a single edition of magazine, paper or book is one ublication

    Was defamatory matter subjectively understood by at least one 3rd person to be of and concerning P or an exclusive group P is a part of?

    Must have damages unless Slander per se or if libel
  79. Slander per se
    • Affect's P's Business
    • Constitutes a serious criminal offense
    • Accused P of having a loathsome communicable disease
    • Accusation that D is unchaste
  80. Defenses to Defamation
    • Absolute Privilege
    • Truth
    • Judicial (relate to legis. proceeding)
    • Between Husband and Wife
    • Made during political broadcast
    • Consent?

    • Qualified Privilege
    • First Amendment - Malice for public figure; negligence for non-public figure
    • Opinion - not based on specific facts
    • Protection of private interest 
    • protect Public Interest
    • Published as a report of public proceeding

    retraction
  81. Invasion of Privacy
    The right to be "left alone"

    • 1 misappropriation of P's name or picture
    • 2. Intrusion into P's solitude
    • 3. undue publicity given to P's private life
    • 4. the placing of P in a false light
  82. Misappropriation of Identity
    P's name or picture has been misappropriated by D for his own financial benefit
  83. Intrusion
    P may sue if his solitude is intruded upon and the intrusion would be highly offensive to a reasonable person.

    Must be private place such as home
  84. Publicity of Private life
    P may generally recover if D has publicized the details of P's private life.  The effect must be highly offensive to a reasonable person

    Must be widely publicized and not already public information
  85. False Light
    p can sue if the is placed before the public eye in a false light and this false light would be highly offensive to a reasonable person.

    Where P is a public figure, there must be actual malice or a reckless disregard of whether it was false
  86. Malicious Prosecution
    • P must prove the following:
    • 1 D instituted criminal proceedings against him
    • 2. that those proceedings terminated in favor of P and
    • 3. that D had no probable cause to start the proceedings and
    • 4. that D was motivated primarily by some purpose other than to bring an offender to justice
  87. Wrongful Civil Proceedings
    • Same as Malicious Prosecution - 
    • P must prove the following:
    • 1 D instituted civil proceedings against him
    • 2. that those proceedings terminated in favor of P and
    • 3. that D had no probable cause to believe his claim was justified
    • 4. that the claims were started for an improper purpose
  88. Abuse of Process
    where a person involved in a criminal or civil proceedings uses various litigation devices for improper purposes
  89. Injurious Falsehood - business tort
    Protects P against certain false statements made against his business, product, or property. Most important is the so-called trade libel.  

    • Must prove the following - 
    • False Disparagement  - false statement 
    • Publication - Published as in defamation
    • Scienter - D knew statement was false
    • Special Damages - show pecuniary harm

    • Defenses
    • Truth
    • Fair Competition - i.e. general comparisons of products are allowed such as puffing
  90. Interference with Contract
    Protects P's interest in having others perform existing contracts which they have with him.  The claim is against one who induces another to breach a contract

    Defenses - privilege - i.e. contract was terminable at will
  91. Interference with a prospective advantage
    Similar to interference with an existing contract, where D interferes with a prospective potential contract.

    Defense - Competition - usually D's desire to obtain the business for herself will give privilege
  92. Intentional Misrepresentation
    Deceit or Fraud

    • A misrepresentation by D 
    • Made with Scienter
    • with an intent to induce P's reliance
    • Justifiable reliance by P
    • Damage stemming from the reliance - includes benefit of the bargain but must be financial loss

    Defense - Puffery, Opinion are not actionable
  93. Negligent Misrepresentation
    At C/L - not actionable 

    • MOD - Must have actual harm
    • Same requirements as Intentional Misrepresentation
    • Normally where there was a business relationship  
    • Liable to 3rd parties where they were part of a class intended to be reached
    • Damages for pecuniary harm only  - no benefit of the bargain.  Must be actual loss or reliance damages

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