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In order to prove an intentional tort, the plaintiff must prove:
- Causation of harm
Intent, for the purpose of intentional torts, means that
The actor acts with the purpose of causing the consequence; OR the actor knows that the consequence is substantially certain to follow.
Transferred intent is when:
- a person intends to commit an intentional tort against one person but instead commits:
- A different intentional tort against the same person;
- The same intentional tort against a different person; OR
- A different intentional tort against a different person.
"Battery" is when
a Defendant causes a harmful or offensive contact with the person of another; and acts with the intent to cause that contact or the apprehension of that contact
There is no battery if there is express or implied ____________.
For the purpose of battery, a "harmful" contact is one that
causes injury, pain, or illness
For the purpose of battery, an "offensive contact" is one that:
a person of ordinary sensibilities would find offensive. A Defendant may still be liable if aware that a victim is hypersensitive, but acts nonetheless.
For the purpose of battery, act (causation) must
result in contact of a harmful or offensive nature. The act need not be direct. (e.g. placing thumbtacks on the seat of a chair.)
For the purpose of battery, the intent to commit battery
is sufficient if the contact is not consented to. This also applied to transferred intent.
Regarding battery, what kind of damages can recover what kinds of damages?
Nominal damages, since no proof of actual harm is required. Many states also allow punitive damages, if the defendant acted maliciously, or with malice.
What is the "eggshell" plaintiff rule?
a defendant is liable for all harm thatflows from a battery, even if it is much worse than the defendant expected it to be.
"Assault" is defined as:
placing the plaintiff in reasonable apprehension of an imminent harmful or offensive bodily contact.
In the context of assault, for a plaintiff to be in "reasonable apprehension" of a contact, it must be:
reasonable, and the plaintiff must be aware of the defendant's action.
In the context of assault, for a a contact to be "imminent," it must be:
without significant delay. Threats of future harm are not sufficient.
What kind of damages are available from assault?
Nominal damages (no proof of actual damages is required), punitive damages (in some cases), any damages caused by the assault.
What is the definition of "Intentional Infliction of Emotional Distress?"
extreme or outrageous conduct causing severe emotional distress
What level of intent is required for "Intentional Infliction of Emotional Distress?"
The defendant must intend to cause severe emotional distress or at least act with recklessness as to the risk of causing severe emotional distress. Transferred intent does not apply.
There is no battery if the plaintiff _________ to the act, either expressly or by virtue of participating in a particular event or situation.
The tort of battery does not require _________ to cause physical injury.
The "shopkeeper's privilege" doctrine:
allows shopkeepers to prevent suspected shoplifters from leaving the premises as long as the detention is for a reasonable time and effectuated in a reasonable manner. The reasonableness of a detention is based on the totality of the circumstances, and is the province of the fact finder.
If a person's acts place another in peril, that person has a duty to:
exercise reasonable care to prevent further harm by rendering care or aid, including protection form the acts of another.
Under the traditional standard for res ipsa loquitor, the plaintiff must prove:
- (i) the accident was of a kind that ordinarily does not occur in the absence of negligence;
- (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and
- (iii) it was not due to any action on the part of the plaintiff.
Is res ipsa loquitor recognized in comparative negligence jurisdictions?
The measure of damages in a personal injury action includes all:
actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium.
Under the “thin-skull” or "eggshell-plaintiff" rule:
the defendant is liable for the full extent of the plaintiff's injuries due to the plaintiff's pre-existing medical condition or vulnerability, even if the extent is unusual or unforeseeable.
A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the defendant in harm’s way if the plaintiff demonstrates that:
(i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and (ii) the threat of physical impact caused emotional distress.
The duty to avoid infliction of emotional distress also exists without any threat of physical impact in cases in which there is a ___________ between the plaintiff and the defendant, such as when a common carrier mistakenly reports the death of a relative.
Under ________________, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm to persons or property caused by such product.
strict products liability
Using the risk-utility test, to prevail on a claim under a strict products liability design defect theory, the jury must:
determine whether the risks posed by the product outweigh its benefits.
To recover in a strict products liability action, a plaintiff must prove that
the product is defective (i.e., it contains a manufacturing defect, contains a design defect, or contains inadequate instructions or warnings); the defect existed when the product left the defendant’s control; and the defect caused the plaintiff’s injury when used in a reasonable way.
An action brought under a ________ theory is essentially the same as a design defect claim, but the defect in question is the manufacturer’s failure to provide an adequate warning related to the risks of using the product.
failure to warn (A defect exists if there were foreseeable risks of harm, not readily recognized by an ordinary user of the product, which could have been reduced or avoided with reasonable instructions or warnings.)
Doctors and hospitals are treated as ________________, rather than goods, even where the defective product is implanted in a patient.
A plaintiff may bring an action for defamation if the defendant’s defamatory language is:
- of or concerning the plaintiff,
- is published to a third party who understands its defamatory nature; and
- damages the plaintiff’s reputation.
In the context of defamation, for matters of public concern, the plaintiff must prove:
fault on the part of the defendant as well as the falsity of the statement.
For the purpose of defamation, a "public figure" is someone who
is known to the general public and includes any person who has voluntarily injected himself into the public eye.
If a defamatory statement relates to a public figure, the plaintiff must prove:
actual malice on the part of the defendant, as well as the falsity of the language.
In the context of defamation of character, "malice" means:
that the defendant knew that the statement or language was false, or he recklessly disregarded its truthfulness. To establish a reckless disregard for the truthfulness of a statement, the defendant must have entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient.
What is the measure of damages for conversion?
The full value of the property at the time of the conversion
Injuries arising from athletic contests—only liable if the conduct is
Reckless - (in this context, "reckless" means conduct outside the normal scope of the sport)
Use of reasonable force—a person may use reasonable ________________________force to defend against an offensive contact or bodily harm.
When defending oneself, an actor is not liable for injuries to bystanders as long as the injuries were ____________ .
What degree of force can be used in defense of property?
Reasonable force—may be used if the person reasonably believes it is necessary to prevent tortious harm to the property. Deadly force cannot be used, or the use of booby-traps
What degree of force can be used by a parent to discipline their child?
A private citizen is permitted to use reasonable force to make an arrest if:
- A felony has been committed, AND
- the arresting party has reasonable grounds to believe the person being arrested committed the felony
- Reasonable mistake as to identity is permissible, but not a mistake as to whether the felony was actually committed.
When the police effect an arrest, they must:
- Must reasonably believe a felony has been committed and that the person arrested committed it.
- An officer who makes a mistake as to whether a felony has been committed isnot subject to tort liability
A "trespass to chattels" is defined as
an intentional interference with the plaintiff's right to possession of personal property either by: dispossessing the plaintiff; or using or damaging the plaintiff's chattel
Regarding trespass to chattels and the requirement of intent:
- Only the intent to do the interfering act is necessary
- Defendant need not have intended to interferance with another's possession of intangible property
- Mistake about the legality of the action is not a defense
Regarding trespass to chattels and the measure of damages:
- For dispossession, the plaintiff may recover actual damages caused and loss of use
- For use and intermeddling, the plaintiff can only recover actual damages, including diminution in value or the cost of repair
"Conversion" is defined as
the defendant intentionally commits an act depriving the plaintiff of possession of his or her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.
Regarding conversion and the measure of damages:
the plaintiff can recover the chattel's full value at the time of conversion
What do courts consider when determining whether a case is a trespass to chattels or conversion
- The duration and extent of the interference;
- Defendant's intent to assert a right inconsistent with the rightful possessor;
- Defendant's good faith;
- Expense or inconvenience to the plaintiff; and
- Extent of the harm
A "trespass to land" is defined as
the defendant intentionally causes a physical invasion of someone's land. Defendant need only have the intent to enter the land or cause the physical invasion. No proof of actual damages is required.
With regard to trespasses on land, what is the defense of "necessity?"
available to a person who enters onto the land of another or interferes with their personal property to prevent an injury or to prevent another severe harm. There are two kinds of necessity: private and public.
With regard to trespasses on land, and the defense of necessity, what is a "private necessity?"
- The defendant must pay for actual damages that he has caused.
- The landowner may not use force to exclude the person.
With regard to trespasses on land, and the defense of necessity, what is a "public necessity?"
- Private property is intruded upon or destroyed when necessary to protect a large number of people from public calamities.
- NOT liable for damages to the property
What is a "private nuisance?"
an activity that substantially and unreasonably interferes with another's use and enjoyment of land. If the conduct that interferes with the use and enjoyment of land is unintentional,then the plaintiff must show that the conduct was negligent. If the conduct that interferes with the use and enjoyment of land is intentional, then it will be considered a nuisance if it is more than the plaintiff should have to bear.
What is "coming to the nuisance?"
If you move somewhere knowing about a conduct, courts are hesitant to allow youto complain that that conduct unreasonably interferes with your use and enjoymentof the land. NOT a complete defense—one factor considered by the court
What is a "public nuisance?"
- An unreasonable interference with a right common to the public as a whole
- The plaintiff has been harmed in a special or unique way, different from the public
- If something is interfering with the right of the public as a whole, presumptively the public agencies should deal with it
One way in which a defendant can be said to have the intent necessary for an intentional tort is if she acted with the purpose of bringing about the consequence. What is the other way in which a defendant can be said to have acted intentionally?
If he or she acted knowing that the consequence was substantially certain to occur.
What is the doctrine of transferred intent?
- When a person intends to commit an intentional tort against one person, but instead commits:
- 1) The intended tort against a different person;
- 2) A different intentional tort against that person; or
- 3) A different intentional tort against a different person
To what intentional torts does the doctrine of transferred intent apply?
Battery, assault, false imprisonment, trespass to land, and trespassto chattels; but does not apply to the tort of intentional infliction of emotional distress
What are the elements of the tort of battery?
- 1) Defendant causes a harmful or offensive contact with the person of another; and
- 2) Acts with the intent to cause such contact or the apprehension of such contact.
What is the tort of assault, and how is it different from battery?
Assault is the plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant's action or threat with the intent to cause either the apprehension of such contact or the contact itself.
What constitutes the tort of intentional infliction of emotional distress (IIED)?
A defendant is liable for intentionally or recklessly causing severe emotional distress with extreme or outrageous conduct.
What are the elements of the tort of false imprisonment?
- When a person acts:
- 1) Intending to confine or restrain another within fixed boundaries;
- 2) Those actions directly or indirectly result in such confinement; and
- 3) The other is either aware of the confinement or is harmed by it.
What are the requirements for the defense of self-defense?
A person may use reasonable force to defend against an offensive contact or bodily harm. The force used in self-defense must be reasonably proportionate to the anticipated harm.
May one use force to defend another person? Is defense of others a defense?
One is justified in using reasonable force in defense of others upon reasonable belief that the party would be entitled to use self-defense. The force must be proportionate to the anticipated harm.
May force ever be used to protect property?
- A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property. Deadly force may not be used merely in defense of property.
- If someone uses deadly force in defending their home, it is only valid if in the process of defending their home they reasonably believe themselves, their families, or others to be in danger.
What is the tort traditionally known as trespass to chattels?
- Intentional interference with the plaintiff's right to chattels (i.e., tangible personal property) by either:
- 1) Dispossessing the plaintiff of the chattel; or
- 2) Using or intermeddling with the plaintiff's chattel.
What is the tort of conversion?
A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff's damages are the chattel's full value.
What is the tort of trespass to land?
When defendant intentionally causes a physical invasion of land.
If the defendant thinks the land is his, has he still committed trespass to land?
Yes. The defendant need only have the intent to enter the land (or to cause a physical invasion), not the intent to commit a wrongful trespass. In other words, mistake of fact is not a defense.
What is the defense of private necessity?
A defendant who acts to prevent a threatened injury or harm has the privilege to enter onto the property of another and to use that property in that way. The property owner cannot use self help to exclude the defendant as a trespasser.
What does it mean to say that private necessity is an incomplete privilege?
The property owner is entitled to recover actual damages even though the defendant is not a trespasser.
What is the defense of public necessity?
A person enters onto the land in order to protect a large number of people from a calamity, such as the spreading of a fire. He is not liable for any damage to the property.
What is the tort of private nuisance?
A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual's use and enjoyment of his land.
What is a public nuisance?
A public nuisance is an unreasonable interference with a right common to the public as a whole.A public agency is empowered by statute or regulation to take action to abate the public nuisance.
What are the elements of negligence?
Duty, Breach, Causation, Damages
A person has a general duty to act
to act as a person of ordinary prudence would act under the circumstances. There is no duty to act affirmatively.
For the purpose of duty, a person who comes to the aid of another is considered a ___________ .
In general, tort law does not impose affirmative duties; when do courts say there is an affirmative duty to help others?
- 1) A person voluntarily aids or rescues another
- 2) A person places another in danger, even non-negligently
- 3) To perform contractual obligations with due care
- 4) One with actual ability and authority to control another
- 5) Defendants with a special relationship to plaintiffs (e.g.,common carrier-passenger; innkeeper-guest)
What is the basic background standard of care imposed by tort law?
A reasonably prudent person under the circumstances
Is this an objective reasonableness standard or a subjective good-faith standard?
An objective standard
What variation of the standard of care is applied to children?
The standard of care imposed upon a child is that of a reasonable child of similar age. However, a child engaged in an adult activity is held to the same standard as an adult
What factors are taken into account in the cost-benefit approach?
- 1) The likelihood of the harm
- 2) The severity of the harm
- 3) the precautions that could have been taken
How is custom relevant in determining the standard of care?
Evidence of custom in a community or industry is relevant evidence to establish the proper standard of care, but it is not dispositive
What variation of the standard of care is applied to doctors?
A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill,knowledge, and care as another practitioner in the same community
What does "informed consent" mean in the context of tort law?
Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment.Failure to do so constitutes a breach of the physician's duty.
What is the doctrine of negligence per se?
- 1) When a statute imposes upon a person a specific standard of care;
- 2) Defendant is liable if the person injured is in the class of persons protected by the statute;
- 3) The harm is the type of harm that statute is intended to prevent;and
- 4) The violation of that statute was a proximate cause of the harm.
What standard of care has been imposed on common carriers and innkeepers?
Traditionally, common carriers and innkeepers were held to the highest duty of care consistent with the practical operation of the business.
A majority of courts continue to hold common carriers to this higher standard. However, mostcourts today hold that an innkeeper (hotel operator) is liable only for ordinary negligence.
What are "guest statutes" in the context of the negligence standard of care?
These statutes limited the liability of drivers to passengers in their cars. They held drivers liable only if they had been guilty of gross negligence or wanton or willful misconduct.
In assessing the liability of possessors of land, courts traditionally focused on the status of the person injured on the land, what where the traditional categories?
- 1) trespasser
- 2) licensee
- 3) invitee
What duties were owed to plaintiffs in each category of persons injured on land?
- 1) Trespasser: none, except to not engage in willful, wanton, or reckless disregard for their safety
- 2) Licensee: Duty to warn of hidden dangers
- 3) Invitee: duty of ordinary due care
What is the attractive nuisance doctrine?
- A land possessor may be liable for injuries to children trespassing on the land if:
- 1) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass;
- 2) The land possessor knows or has reason to know that the condition poses anunreasonable risk of death or serious bodily injury to children;
- 3) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
- 4) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children;and
- 5) The land possessor fails to exercise reasonable care to protect children from the harm.
What is the doctrine of res ipsa loquitur?
- Circumstantial evidence can be sufficient to show negligence. Under the traditional standard for res ipsa loquitur, the plaintiff must prove that:
- 1) The accident was of a kind that ordinarily does not occur in the absence of negligence;
- 2) It was caused by an agent or instrumentality within the exclusive control of the defendant;
- 3) It was not due to any action on the part of the plaintiff.
What extension of res ipsa loquitur do some courts apply in some medical malpractice cases?
If several people take care of a patient and one may have been negligent, but the plaintiff cannot say which one, then the courts will shift the burden to those defendants, holding them jointly and severally liable unless they can present evidence of which persons were negligent.
Causation can be thought of as having two components. What are they?
- 1) Cause in fact
- 2) proximate cause (or "scope of liability")
What do we mean by "cause in fact"?
If the plaintiff's injury would not have occurred but for the defendant's negligence, then the defendant's conduct is a factual cause of the harm.
What is "proximate cause"?
The plaintiff must show that the causal connection was not too remote, estranged or attenuated.
How do courts following the Third Restatement wisely approach proximate cause?
They ask whether the harm is the kind of risk that made the defendant's conduct negligent
To be subject to strict liability for a defective product, the defendant must be
in the business of selling or otherwise distributing products of the type that harmed the plaintiff. Included as a seller are the manufacturer of the product, its distributor, and its retail seller. As long as the seller is a commercial supplier of the product, the seller is subject to strict liability for a defective product even if the seller was not responsible for the defect in any way.
he general rule is that parents are not vicariously liable for their minor child’s torts. Exceptions to this general rule include situations in which
the child commits a tort while acting as the parents’ agent, or when a statute establishes the parents’ liability. Parents, however, are liable for their own negligence with respect to their minor child’s conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent has the ability to control the child, and knows or should know of the necessity and opportunity for exercising such control.
For a statement to be slander, it must be communicated to
a third party either intentionally or negligently.
In a modified (i.e., partial) comparative negligence jurisdiction, the plaintiff is
precluded from recovering if he is more at fault than the defendant.
In a _________________ jurisdiction the failure to mitigate is taken into account, but it does not categorically prevent recovery for such harm.
pure comparative negligence
A plaintiff will prevail in a defamation action if
the defendant's defamatory language concerning the plaintiff is published to a third person who understands its defamatory nature, and such language damages a plaintiff's reputation.
The misappropriation of the right to publicity is an invasion of privacy tort, which requires that the plaintiff prove
the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, without the plaintiff’s consent, for the defendant’s commercial advantage, and resulting in injury to the plaintiff. Here, the maker used the reporter’s distinctive voice and signature phrase without the reporter’s consent, to the maker’s advantage, and to the financial detriment of the reporter.
A defendant is liable for intentionally or recklessly acting with ________________ that causes the plaintiff severe emotional distress.
"extreme and outrageous conduct." Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. Courts are more likely to find a defendant’s abusive language and conduct to be extreme and outrageous if the plaintiff is a member of a group with a known heightened sensitivity (e.g., a pregnant woman).
A land possessor owes an invitee the duty of
reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from those conditions.
An invitee is one who
enters the land of another by invitation, often, but not necessarily, for the business purposes of the landowner. A landowner owes the greatest duty of care to invitees: he is under the same obligations owed to licensees (duty to warn and to use reasonable care), but he also must conduct reasonable inspections of his property and make the property safe for the protection of invitees. A landowner is liable for any negligence that causes an invitee to be injured due to unsafe conditions.
In a joint and several liability jurisdiction, each tortfeasor who causes a single indivisible harm is
each tortfeasor who causes a single indivisible harm is jointly and severally liable for the entire amount of damages suffered by the plaintiff,
The defendant’s act of intruding, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion in a manner or to a degree objectionable to a reasonable person is the tort of:
intrusion upon seclusion
In a jurisdiction that has adopted the doctrine of "pure" comparative negligence,
a party's contributory negligence will not act as a complete bar to recovery. The party's full damages are calculated by the trier-of-fact and then reduced by the proportion that her fault bears to the total harm.
Under the “attractive nuisance” doctrine, a land possessor may be liable for injuries to children trespassing on the land if:
(i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass, (ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children, (iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, (iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm.
A trespass occurs when
the defendant’s intentional act causes a physical invasion of another’s land. The defendant need only have the intent to enter the land or cause a physical invasion of the land, not the intent to commit a wrongful trespass.
To be able to invoke the doctrine of res ipsa loquitur, the plaintiff must establish that:
(i) the accident was of a kind that ordinarily does not occur in the absence of negligence; (ii) it was caused by an agent or instrumentality within the exclusive control of the defendant; and (iii) it was not due to any action on the part of the plaintiff.
The elements of negligent misrepresentation are:
(i) the defendant provided false information, (ii) as a result of the defendant’s negligence, (iii) during the course of his business or profession, (iv) causing the plaintiff to justifiably rely upon the information, and (v) the plaintiff either is in a contractual relationship with the defendant or is a third party known by the defendant as one for whose benefit the information is supplied.
Misappropriation of the right to publicity is based upon the right of an individual to control the commercial use of his own identity. The plaintiff must prove
(i) the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, (ii) for the defendant’s advantage, commercial or otherwise, (iii) lack of consent, and (iv) resulting injury.
False imprisonment results when a person acts
(i) intending to confine or restrain another within boundaries fixed by the actor; (ii) those actions directly or indirectly result in such confinement; and (iii) the other is conscious of the confinement or is harmed by it.
one is justified in using reasonable force in defense of others upon
reasonable belief that the defended party would be entitled to use self-defense.
To prevail on a claim for strict products liability based on a manufacturing defect, the plaintiff must prove that:
(i) the product was defective, (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injury when used in an intended or reasonably foreseeable way. While misuse of a product is not an automatic bar to recovery, the particular misuse must be foreseeable.
To establish a prima facie case for battery, the plaintiff must show that
the defendant caused harmful or offensive contact to the plaintiff’s person, and that the defendant acted with the intent to cause the contact. “Harmful or offensive” contact is any contact that a reasonable person, measured by an objective standard, would find harmful or offensive. A defendant intentionally causes the contact if he acts with the desire to bring about the harm or engages in action knowing that the harm is substantially certain to occur. An employer is vicariously liable for an employee’s torts if the employer has the right to control the activities of the employee.
A manufacturing defect is a
physical deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications.
To recover under a strict products liability theory, the plaintiff must plead and prove
- that the product was defective,
- the defect existed when it left the defendant’s control, and
- the defect caused the plaintiff’s injuries when used in an intended or reasonably foreseeable way.
A person may use reasonable force to
A person may use reasonable force to defend against an offensive contact or bodily harm that he reasonably believes is about to be intentionally inflicted upon him. A person’s mistaken belief that he is in danger, so long as it is a reasonable mistake, which is likely based on these facts, does not invalidate the defense.