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Torts
| Question | Answer |
|---|---|
| Battery | 1) Harmful or offensive contact, 2) To plaintiff's person, 3) Intent, and 4) Causation |
| Assault | 1) An act by Defendant creating a reasonable apprehension in plaintiff, 2) of immediate harmful or offensive contact to plaintiff's person 3) Intent, and 4) Causation |
| False Imprisonment | 1) An act or omission from defendant that confines or restrains plaintiff, 2) To a bounded area, 3) Intent, and 4) Causation |
| Intentional Infliction of Emotional Distress | 1) Extreme and outrageous conduct by plaintiff 2) Intent or recklessness 3) Causation 4) Damages: severe emotional distress Can be extreme if victim is pregnant woman or child, or if tortfeasor is innkeeper. Physical symptoms not required. |
| IIED: Bystander | Bystander can recover for witnessed physical harm if 1) Present when injury occurred, 2) She's a close relative of injured person 3) Defendant knew both (1) and (2) |
| Trespass to Land | 1) Physical invasion of plaintiff's property 2) Intent 3) Causation |
| Trespass to Chattels | 1) An act by D that interferes with Ps right of possession in a chattel, 2) Intent, 3) Causation, 4) Damages |
| Conversion | 1) An act by D that interferes with P's right of possession in a chattel, 2) Interference so serious it warrants requiring D to pay full value, 3) Intent, 4) Causation |
| Defense of Others | 1) Actor reasonably believes the other could have used force to defend himself 2) Reasonable mistake permitted 3) Can use as much for as he the third person could have used in self-defense. |
| Defense of Property | Can use reasonable force to prevent a tort against one's property. Unless futile, a request to desist must be made first. Reasonable mistake OK except as to right to enter property. |
| Recapture of Chattels | If possession began lawfully, can only use peaceful means to recover. Cannot use force against chattels in hands of an innocent party (BFP...) |
| Entry on Land to Remove Chattel | On wrongdoer's land: OK at reasonable time in reasonable manner after making a demand for return. On Innocent Party Land: OK at a reasonable time, peaceful manner if landowner has notice and refuses to return chattel. Through owner's fault: No privilege |
| Defamation | 1) Defamatory language 2) "Of or concerning" P 3) Publication to 3rd person 4) Damage to P's reputation Matters of public concern: 5) Falsity (truth is a defense for D) 6) Defendant fault (at least negligence) A public figure must prove malice. |
| Libel | Written defamatory language. Does not need special damages, general damages are presumed. |
| Slander | Spoken defamation. Need special damages unless it 1) Adversely reflects on one's business or profession 2) Claims one has a loathsome disease 3) Claims one guilty of a crime of moral turpitude 4) Claims a woman is unchaste |
| Fault/Damages for Defamation, public figure | Fault: actual malice (knowledge of falsity or reckless disregard as to truth) Damages: Presumed under common law (punitive where appropriate). |
| Fault/Damages for Defamation, private person/public concern | Fault: At least negligence as to truth/falsity Damages: Only for proved actual injury unless there's actual malice |
| Fault/Damages for Defamation, private person/private concern | Fault: No fault needed for truth/falsity Damages: Presumed under common law (punitive where appropriate). |
| Invasion of Privacy: 4 Types | 1) Appropriation of Picture or Name 2) Intusion upon Seclusion 3) False Light 4) Disclosure of Private Facts Must show causation and damages, though mental damages suffice. |
| Appropriation of Picture or Name | Unauthorized use of Plaintiff's picture or name for commercial advantage. Mere economic benefit (not in connection with promoting a product or service) isn't enough. |
| Intrusion upon Seclusion | Prying or intruding that would be highly offensive to a reasonable person. Photos in public don't count. |
| False Light | Attributing to plaintiff views or beliefs he doesn't have. Must have publicity. If matter of public interest, must show malice. |
| Disclosure of Private Facts | Making public private information about P. Disclosure must be highly offensive to a reasonable person. |
| Intentional Misrepresentation | 1) Misrepresentation of a material fact (no duty to disclose, opinion doesn't count). 2) Scienter: D knew/believed statement was false when making it. 3) Intent to induce P's reliance. 4) Causation 5) Justifiable reliance 6) Actual money damages |
| Negligent Misrepresentation | 1) Misrepresentation by D in a business capacity 2) Breach of duty towards particular P 3) Causation 4) Justifiable reliance 5) Damages Only for commercial settings, particular P must be contemplated |
| Interference With Business Relations | 1) Existence of a valid contractual relationship or business expectancy of P 2) D's knowledge of the relationship 3) Intentional interference by D inducing a breach/termination 4) Damages Privileged if D is a competitor trying to win business by OK me |
| Malicious Prosecution | 1) Institution of criminal/civil proceedings against P (police report) 2) Termination in P's favor 3) Absence of probable cause for prior proceedings 4) Improper purpose 5) Damages Prosecutors are immune |
| Negligence | 1) Duty (to foreseeable P's in zone of danger) 2) Breach 3) Causation 4) Damages |
| Standard of Care | Reasonable person standard. Physical, not mental attributes taken into account. Professionals need standard of a pro. in good standing. |
| Standard of Care, Child | Children held to subjective standard of child of like age, education, intelligence, experience. Children under 4 can't be negligent, children in adult activities get adult standard of care. |
| Standard of Care, Bailee | Who benefits? Just bailor - low standard of care. Mutual - ordinary standard. Just bailee - high standard. |
| Standard of Care, Bailor | Who benefits? Just bailee, bailor must inform of known, dangerous defects. Bailment for hire, must inform of defects he is/should be aware of. |
| Duty of Land Possessor to Those Off Premises | Duty for unreasonably dangerous artificial conditions abutting adjacent land. Must carry on activities to avoid unreasonable risk of harm to others off the premises. |
| Duty of Land Possessor to Trespassers | No duty to undiscovered trespasser. Discovered/anticipated trespasser: must warn or make safe from known, hidden, man-made deathtraps. |
| Attractive Nuisance Doctrine | 1) Dangerous condition on land owner knows/should know 2) Owner knows/should know children frequent the vicinity 3) Condition dangerous b/c kids can't appreciate the risk 4) Expense to repair slight vs. magnitude of risk |
| Duty of Land Possessor to Licensees (social guest) | Must warn of all known hidden traps (need not be man-made or highly dangerous). Must conduct activities like a RPP. |
| Duty of Land Possessor to Invitee (customer, or land open to public) | Must warn of all known hidden traps and inspect property regularly. Must conduct activities like a RPP. |
| Duties of Lessor/Lessee | Lessee: General duty to maintain. Lessor: Must warn of known existing defects the lessee isn't likely to discover. If he covenants to repair, he's liable for unreasonably dangerous conditions. If he does so and repairs negligently, he's liable. |
| Negligence Per Se | 1) Statute with a criminal penalty 2) Statute clearly defines standard of conduct 3) P within the protected class 4) Statute designed to prevent the type of harm suffered. Excuse where complying would cause more harm than not. Conclusive on duty + br |
| Duty for Negligent Infliction of Emotional Distress | 1) P must be in "zone of danger" (threat of impact) 2) P must suffer physical symptoms Can be outside zone of danger if a) closely related to victim, b) P present at scene, c) P personally observed the event. |
| Res Ipsa Loquitur | 1) Accident of the type that wouldn't normally occur unless someone was negligent 2) Negligence attributable to D (instrument causing injury was in the exclusive control of defendant). Also must show P was not at fault. This makes prima facie case for |
| Dependent/Independent Intervening Forces | Dependent: 1) subsequent med-mal, 2) negligence of rescuers, 3) efforts to protect the person/property, 4) injuries from someone "reacting" to D's action... Independent: 1) negligent 3rd parties, 2) acts of God, 3) intentional torts/crimes of 3rd parties |
| Strict Liability | 1) Nature of D's activity imposes an absolute duty to make safe 2) The dangerous aspect was the actual/proximate cause of injury 3) P suffered damage. Duty is owed to all foreseeable P's |
| Strict Liability: Animals | Strictly liable for reasonably foreseeable damage by your trespassing animal. Strictly liable for non-trespassers for keeping wild animals. Not strictly liable for injuries your domestic animals cause unless you know it has dangerous propensities. |
| Strict Liability: Abnormally Dangerous Activities | 1) Activity creates a foreseeable risk of serious harm even when reasonable care exercised 2) Activity not a matter of common usage in the community. |
| Five Theories of Products Liability | 1) Intent 2) Negligence 3) Strict Liability 4) Implied Warranties: Fitness for a particular purpose, warranty of merchantability 5) Representation theories (express warranty, misrepresentation) |
| Common Elements, Products Libability | 1) Defect (manufacturing, design, or inadequate warnings) 2) Existence of defect when product left D's control Any foreseeable P can sue anyone in chain of mfg'ing. |
| Products Liability, Intent | Compensatory damages available; also punitive. Defenses same as intentional torts. |
| Products Liability, Negligence | Same prima facie as negligence. Breach is 1) negligent conduct of D 2) leading to the supplying of a defective product. Intermediary negligent failure to discover is not superseding cause if foreseeable. Need physical/property injury, not just economic |
| Products Liability, Strict Tort | 1) Strict duty owed by commercial supplier 2) Production or sale of defective product 3) Causation 4) Damages. Product not altered before getting to P. Can't be incidental to a service. Retailers can be liable even w/o opp. to inspect. |
| Products Liability, Implied Warranties of Merchantability and Fitness | Any goods seller can breach warr. of merchantability (goods to be avg. quality, generally fit for ordinary purpose) and fitness for particular purpose. Causation same as breach. Damages include purely economic loss. Only purchaser, family, guests can sue. |
| Products Liability, Representation (Express Warranty) | An affirmation of fact that forms part of bargain is an express warranty. If buyer sues, warranty must have been part of bargain; not necessary if P doesn't have privity (bystander). No fault necessary, just that product didn't meet warranty. |
| Products Liability, Misrepresentation of Fact | 1) Statement was a material fact concerning quality or uses of goods (not puffery) 2) Seller intended to induce reliance by buyer in particular transaction. 3) Justifiable reliance by buyer (privity irrelevant). |
| Private Nuisance | A substantial, unreasonable interference with another's use or enjoyment of property to which he possesses or has immediate right of possession. Substantial: offensive to avg. person in community. Unreasonable: Severity of injury > benefit of D's conduc |
| Public Nuisance | Act that unreasonably interferes with health, safety or property rights of community. Private P can only recover if suffered unique damage not suffered by public at large. Zoning regulation not a defense, but is persuasive. |
| Necessity Defense | Only available for property torts - a person may interfere with property when it's necessary to avoid an injury substantially more serious. If the interference is for private good, the person must pay for damage. |
| Duty for Negligent Infliction of Emotional Distress: Special Situations | 1) Defendant's negligence causes great likelihood of severe emotional distress 2) Emotional distress results. No physical damages needed. ONLY IN SPECIAL CASES: misdiagnosing a terminal disease, handling a family member corpse. |
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