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Torts 2
intentional torts product liability defamation malicious prosecution, etc.
| Question | Answer |
|---|---|
| Intent | The subjective desire to achieve the result or the knowledge to a substantial certainty that the result will occur. |
| Doctrine of Transferred Intent | Rule of transferred intent is that if the actor intends to commit any of the 5 trespassory torts and another occurs either to the intended victim or a third party, the intent transfers among torts and persons. |
| Battery | The rule is that an actor is subject to liability to another for battery if he acts with intent to cause offensive or harmful contact with another person either directly or indirectly. |
| Assault | The rule is that an actor is subject to liability to another for assault if he acts with the intent to cause an imminent apprehension a harmful or offensive contact and the other person is thereby put in such imminent apprehension and that apprehension is |
| False Imprisonment | The intentional restriction of another’s liberty of movement without legal justification. |
| Intentional Infliction of Emotional Distress | The rule is that an actor is liable for infliction of emotional distress when he intends through extreme and outrageous conduct to case another serious emotional distress. |
| Trespass to Land | Intentionally enters the close of another. |
| Trespass to Chattel | The intentional interference with the chattel of another without permission. |
| Conversion | The rule is that the D is liable for conversion if he intentionally exercises unauthorized dominion over the personal property of another which is serious enough to interfere with the right of the P to control the chattel. |
| Defenses to intentional torts | Consent, self defense, defense of others, defense of property, recovery of property, necessity. |
| Consent | A D is not liable for an intentional tort where the D reasonably understands the P’s conduct to be an effective consent. |
| Self Defense | A defendant is privileged to use reasonable force to defend himself. |
| Defense of Others | The rule is that a D is privileged to use reasonable force to defend another person only when the other person would be privileged to defend himself. |
| Defense of Property | The rule is a D is entitled to use reasonable force to defend his property when the personal safety of the D or his family is threatened. |
| Recovery of Property | The rule is a D is entitled to use reasonable force to recover his property unless the trail has run cold. |
| Necessity | The rule is the D is privileged to commit a tort out of necessity when the damage that is threatened to the D’s property is greater than the loss the P will suffer as a result of the tort. |
| Respondeat Superior/Vicarious Liability | The principle is liable for the torts of his agents when the tortuous conduct occurs during the scope of their employment and where the employer has a right to control the details of the work. |
| Frolic and Detour rule | A frolic is a pursuit of the employee’s personal business, a substantial deviation from or an abandonment of employment, character of diversion severs the employment relationship, severs liability of employer. |
| Going and Coming Rule | An employer is generally not liable for things done by their employees while enroute to work. |
| Non Delegable Duties | An employer is still liable for torts committed during the performance of non-delegable duty; an independent contractor’s negligence is no defense. The duty can be delegated to another but the responsibility for a negligent failure remains with the owner. |
| Partnership Liability | A partnership is vicariously liable for the tort of a partner committed in the scope of the partnership business. |
| Joint enterprise | A joint enterprise is a partnership for a limited purpose and exists when two or more persons agree, expressly or impliedly, to engage in an activity together with a common purpose and equal right of control. |
| Indemnity | A vicarious liable principle can sue the agent for indemnity of the entire loss. |
| Strict Liability for Abnormally Dangerous Activities | Rylands rule: A person, who for his own purposes brings on his lands and collects and keeps there any thing likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is |
| Strict Products Liability Restatement view | One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to strict liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if |
| Defects | Manufacturing: defective in comparison to other products from the same line, quality control issue. |
| Reasonable manufacturer test | If a reasonable manufacturer knowing of the defect, would not place a product in the stream of commerce, then the manufacturer that does so is liable for harm caused to person or property by the defective product. |
| State of the Art Defense | State of the art is evidentiary only, will not necessarily remove liability, burden is on defendant to show that compliance with state of the art justifies placing a product on the market, may still fail bpl analysis. |
| Proof of Defect | A defect can be inferred by circumstantial evidence such as: |
| Defense of Comparative Negligence to strict products liability | Some jurisdictions allow defense, Plaintiff’s recovery will be reduced only to the extent that his own lack or reasonable care contributed to his injury; will reduce but not bar the plaintiff’s claim. |
| Defense of Misuse: | Defense of misuse is applicable only where the misuse is reasonably unforeseeable. |
| Defendants other than manufacturers | Used product sellers’ not strictly liable, negligence standard if the defect did not arise because of the manufacturer. |
| Private Nuisance | The interference with a person’s use and enjoyment of his property through some sort of unacceptable activity. |
| Abatement: | The traditional remedy is abatement, enjoining the nuisance, when no amount of money can make up for changing of the property. |
| Permanent Damages | Difference in value of the property, what property was and what it is: basically they have taken a piece of their property and must pay for it. |
| Public Nuisance | Activities that are either illegal or legal that interfere with a public right to enjoyment to property. |
| Defamation | The rule is defamation has occurred when someone makes a false statement of fact that injures a person’s reputation so that they are held up to distrust, ridicule, hatred, or obloquy, such that others shun and avoid them. |
| Publication | A defamatory statement must be heard and understood by a 3d person to be actionable because otherwise there has been no harm to the plaintiff’s reputation |
| Defamation of groups | Individual members may sue if the matter clearly defames the individual, Group must be so small that the statement may reasonably be interpreted as applying to each member. |
| Libel and Slander Distinguished | Libel is written word and slander is spoken word. Libel is a representation to the eyes, permanent, physical embodiment, more believable, and subject to widespread publication. Whereas slander is a representation to the ear and is temporary, not as credi |
| Damages for Slander | To receive damages for slander a P must prove special or pecuniary damages prior to being able to collect for general damages, such as damage to their reputation. |
| Damages Rule for Libel | The law presumes general damages for libel, no need to show special damages to collect. |
| Governmental Privilege to Defame | D’s involved in the legislative process have an absolute privilege to defame someone, the statement need not be relevant to the proceedings. |
| Governmental Privilege to Defame | D’s involved in the judicial process have an absolute privilege to defame someone but the statement must be relevant to the proceedings. A statement is not relevant when if so palpably irrelevant to the subject matter of the controversy that no reasonable |
| Governmental Privilege to Defame | High ranking policy making executive officers of the government have an absolute privilege to defame when acting when in the scope of their discretionary duties, but the statement must be relevant. |
| Spousal privilege to defame | A person has an absolute privilege to defame someone to their spouse. |
| Protection of private interests, conditional or qualified privilege to defame | The D must have a reasonable belief that some important interest is threatened, the defamatory statement must be reasonably relevant to the interest being protected, and the person to whom it was published must have been in a position to protect or assist |
| Protection of public interests | If reasonable belief that utterances are necessary to protect a legitimate public interest, and that the person to whom the statement is made is empowered to protect that interest. |
| Fair comment | Conditional privilege to defame if matter of public interest, based on true facts, and expressed as honestly believed opinion. |
| Record Libel Privilege | Reports of judicial, legislative or executive proceedings are privileged if fair and accurate, verbatim, Privilege is lost if inaccurate. |
| Constitutional Privileges | You can not be liable for defamation if the P is public official or figure without proving the defamatory statement was published with “actual malice”: knowing or reckless disregard for the truth. |
| Appropriation of name and likeness for commercial purposes | The defendant used the P’s name or likeness for the D’s own commercial benefit and thereby damaged the P personally. |
| Intrusion into Seclusion | Physical intrusion into the seclusion occurs when there has been an intrusion into a private place, conversation, or matter, in a manner highly offensive to a reasonable person. |
| Public Disclosure of private facts | Must prove disclosure of private facts which is highly offensive to a reasonable person and not of legitimate public concern |
| False Light | Placing the P in an objectionable false light in the public eye by uttering true facts but conveying a false impression. |
| Malicious Prosecution or civil proceeding | Initiation of criminal/civil proceeding without probable cause that terminates in favor of the accused brought with malice. |
| Abuse of Process | The institution of a legal proceeding for an illegitimate goal, regardless of termination in favor of the accused. |
| Misrepresentation | Where a vendor has knowledge of a defect in the property which is not within the fair and reasonable reach of the vendee and which he could not discover by the exercise of reasonable diligence, the silence and failure of the vendor to disclose the defect |
| Fraudulent misrepresentation | Fraud is proved when it is shown that a false representation has been made knowingly, without belief in the truth, or recklessly in regard to the truth. |
| Negligent Misrepresentation | Liability arises when there is a duty to give the correct information. There must be knowledge that the info is desired for a serious purpose, that the other party intends to rely and act upon it, and that injury will result if the statement is false. |
| Innocent Misrepresentations | May be actionable if the declarant has the means of knowing, ought to know, or has a duty to know the truth. |
| Reliance on a misrepresentation | Must be actual and cannot be on obviously false statements, mere opinions of which you have the opportunity and ability to verify or inspect pure statements of law, or predictions of future occurrences. |
| reliance on statements of law | Reliance is justified on mixed statements of law and fact if it concerns legal effects not disclosed or otherwise unknown to the recipient, ignorance of facts not readily verifiable. |
| false intentions | False intentions are actionable if be able to objectively prove that the other party had no intent to follow through with the future act. |
| Injurious Falsehood | A false statement of fact maliciously published to a 3d person, calculated in the ordinary course of things to produce actual damage. |
| Privilege to interfere with K relations | A D may escape liability by showing that his conduct was justifiable and did not include the use of “wrongful means” |
| Interference with prospective advantage | The actor is privileged to interfere if he does so for personal financial reasons or any other good motive or privilege. |
| Wrongful Interference with Contract | The rule is the actor will be liable for interference with an existing contract or prospective contract when he intentionally, with knowledge of the existence of a contract, maliciously induces the breach of that contract. |
| Slander of title | Publication of matter derogatory to the P’s title to his property or its quality or to his business in general of a kind calculated to prevent others from dealing with him or otherwise to interfere with his relations with others |
Created by:
jmackeigan
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