Torts Flashcards (69 Cards)

Intent is met when the actor either desires the result or knows it is substantially certain to occur. Under transferred intent, intent shifts when the actor intends one tort but causes another, or intends to harm one person but harms another. It applies among battery, assault, false imprisonment, trespass to land, and trespass to chattels.

Battery is (1) a harmful or offensive contact (offensive if it would offend a reasonable sense of personal dignity), (2) with the plaintiff's person (including anything closely connected, like clothing held), (3) caused by the defendant's intentional act. Damages are presumed; no proof of actual harm is needed.

Assault is (1) an act creating a reasonable apprehension in the plaintiff (2) of an imminent harmful or offensive contact, (3) caused by the defendant's intent. Words alone are usually insufficient without conduct, and apprehension means awareness, not fear. The threatened contact must be imminent, not future.

False imprisonment is (1) an act that confines or restrains the plaintiff to a bounded area, (2) intentionally, (3) where the plaintiff is aware of the confinement or harmed by it. Confinement may be by force, threats, or invalid assertion of authority. A reasonable means of escape that the plaintiff knows of defeats the claim.

IIED requires (1) extreme and outrageous conduct (beyond all bounds of decency), (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Unlike most intentional torts, IIED requires proof of actual damages and does not use transferred intent. It is the only intentional tort against the person not requiring presumed damages.

A bystander may recover where the defendant intentionally harms a third person and the bystander either (a) is a close relative present at the scene whom the defendant knew was present, or (b) suffers distress resulting in bodily harm. Presence and the defendant's knowledge of presence are key for the relative path.

Trespass to land is an intentional physical entry onto another's land (mistake is no defense). Trespass to chattels is a minor interference with personal property, giving damages for the harm. Conversion is so serious an interference that the defendant must pay the property's full value (a forced sale).

Valid consent (express or implied by custom or conduct) is a complete defense. It is ineffective if obtained by fraud or duress, given by one lacking capacity, or if the defendant exceeds the scope of consent. The reasonable person standard governs apparent (implied) consent.

A person may use reasonable force to defend against an imminent threat of harm, including deadly force only against a threat of serious harm or death. The belief in danger must be reasonable (even if mistaken). Defense of others applies on the same terms when the third party would have the privilege.

Reasonable, non-deadly force may be used to protect property, but only after a request to desist unless clearly futile. Deadly force is never allowed solely to protect property (no spring guns or traps). One may not use force to recover property if a privilege to enter has expired; reasonable force in hot pursuit is allowed.

Necessity is a defense to property torts. Public necessity (acting for the community in an emergency) is a complete defense with no liability. Private necessity (acting to protect oneself or one's property) is a qualified privilege: the actor may enter but must pay for any actual damage caused.

Negligence requires (1) a duty of care owed to the plaintiff, (2) breach of that duty, (3) causation (both actual and proximate), and (4) damages. Remember it as duty, breach, causation, damages. Unlike intentional torts, actual injury must be proven; nominal damages are unavailable.

A duty is owed to all foreseeable plaintiffs within the zone of danger. Under the majority Cardozo view (Palsgraf), the defendant owes a duty only to those foreseeably endangered. The minority Andrews view holds a duty is owed to everyone, treating foreseeability as a proximate cause question.

The default is the reasonably prudent person under like circumstances, an objective standard. Physical disabilities are considered; mental deficiencies are not. Children are held to a child of like age, intelligence, and experience, unless engaged in an adult activity. Professionals are held to the custom of their field.

Breach is the failure to meet the standard of care. The Hand formula finds breach where the burden of precaution (B) is less than the probability of harm (P) times the loss (L), i.e., B < P x L. The plaintiff must identify what a reasonable person would have done differently.

Actual cause (cause in fact) uses the but-for test, or the substantial factor test when multiple causes combine. Proximate cause limits liability to foreseeable harms and foreseeable plaintiffs. Both must be shown; actual cause links conduct to harm, proximate cause is a policy-based scope limit.

A foreseeable intervening cause (such as ordinary negligence of rescuers, medical treatment, or natural forces) does not break the chain of causation. An unforeseeable intervening cause is superseding and cuts off liability. Most intentional torts and crimes by third parties are deemed superseding unless foreseeable.

The plaintiff recovers compensatory damages for personal injury and property loss; punitive damages require wanton or willful conduct. Under the eggshell skull rule, the defendant takes the plaintiff as found and is liable for the full extent of harm even if a normal person would have suffered less.

To an undiscovered trespasser: no duty. To a discovered/anticipated trespasser: warn of known, hidden, artificial dangers. To a licensee (social guest): warn of known concealed dangers. To an invitee (business visitor): the licensee duty plus a duty to reasonably inspect and make safe.

A landowner may be liable for an artificial condition that injures a child trespasser where (1) the owner knows children are likely to trespass, (2) the condition poses an unreasonable risk of serious harm, (3) the child cannot appreciate the danger, and (4) the burden of fixing it is slight relative to the risk.

Violation of a statute is negligence per se (conclusive on duty and breach) where the plaintiff is in the class protected and the harm is the type the statute aimed to prevent. Excused where compliance is more dangerous or impossible. The plaintiff must still prove causation and damages.

Res ipsa loquitur creates an inference of breach where (1) the accident is of a type that normally does not occur without negligence, and (2) the instrumentality was in the defendant's exclusive control (or the negligence is attributable to the defendant). It lets the plaintiff reach the jury without direct proof of breach.

Generally there is no duty to rescue a stranger. A duty arises from a special relationship (common carrier-passenger, innkeeper-guest, employer-employee, parent-child), where the defendant created the peril, or where one undertakes a rescue and must then act with reasonable care.

NIED recovery is allowed when the plaintiff is in the zone of danger and suffers a physical symptom from the distress, or, as a bystander, is a close relative who contemporaneously perceives the injury to the victim. Some courts also allow it where a special relationship makes serious distress foreseeable.

Contributory negligence (minority rule) completely bars recovery if the plaintiff was at all at fault (subject to last clear chance). Pure comparative negligence reduces recovery by the plaintiff's percentage of fault, allowing recovery even if mostly at fault. Modified comparative bars recovery once the plaintiff's fault exceeds 50 percent.

Last clear chance is a plaintiff's rebuttal to contributory negligence. Even if the plaintiff was negligent, the plaintiff may still recover if the defendant had the final opportunity to avoid the harm and failed to use it. It effectively places liability on the party who could have prevented the accident last.

Express or implied assumption of risk requires the plaintiff to (1) know of the risk and (2) voluntarily proceed in the face of it. Express waivers may be unenforceable if against public policy. In many comparative fault jurisdictions, implied assumption of risk is merged into the comparative analysis.

An owner is strictly liable for harm from wild animals and for harm from domestic animals with known dangerous propensities abnormal for the species. There is no strict liability for the first bite of an ordinary domestic animal. Trespassing cattle also create strict liability for property damage they cause.

An activity is abnormally dangerous if it (1) creates a foreseeable, highly significant risk of serious harm even with reasonable care, and (2) is not common in the community. Classic examples: blasting, storing explosives or toxic chemicals. Liability is limited to the kind of harm that makes the activity dangerous.

(1) Manufacturing defect: the product departs from its intended design (deviates from others on the line). (2) Design defect: the entire line is unreasonably dangerous, judged by a reasonable alternative design or consumer expectations. (3) Warning defect: failure to warn of non-obvious foreseeable risks.

The plaintiff must show (1) the defendant is a commercial seller (merchant in the chain of distribution), (2) the product had a defect when it left the defendant's control, (3) the defect made it unreasonably dangerous, (4) the product was not substantially altered, and (5) the defect caused the plaintiff's injury while using it foreseeably.

A products plaintiff may also sue in negligence (requiring proof of the seller's lack of due care), in implied warranty of merchantability or fitness, in express warranty, and for misrepresentation. Strict liability and warranty do not require fault; negligence does. Privity is generally not required in modern law.

Defenses include the plaintiff's comparative fault, assumption of risk (knowingly using a defective product), substantial alteration of the product after sale, and misuse that was not reasonably foreseeable. Compliance with government standards is evidence but usually not a complete defense.

(1) A defamatory statement of or concerning the plaintiff that harms reputation; (2) publication to a third party (intentionally or negligently); and (3) damages. Libel (written/permanent) generally presumes damages; slander (spoken) requires proof of special damages unless it is slander per se.

Slander is actionable without proof of special damages if it imputes (1) a crime of moral turpitude, (2) a loathsome disease, (3) conduct harming the plaintiff in their business or profession, or (4) serious sexual misconduct. These four categories presume damages like libel.

A public official or figure must prove the statement was false and made with actual malice (knowledge of falsity or reckless disregard). A private figure on a matter of public concern must prove falsity plus at least negligence, and needs actual malice to recover presumed or punitive damages.

(1) Appropriation: unauthorized use of the plaintiff's name or likeness for commercial advantage. (2) Intrusion upon seclusion: highly offensive prying into private affairs. (3) False light: publicizing a misleading portrayal that is highly offensive. (4) Public disclosure of private facts: publicizing private, non-newsworthy facts that are highly offensive.

Appropriation and intrusion need no publication; false light and disclosure require publicity to the public at large. False light needs a falsity (like defamation) while disclosure involves true facts. Truth is a defense to false light/disclosure analysis only through newsworthiness and constitutional limits, not to disclosure of private true facts per se.

A private nuisance is a substantial and unreasonable interference with another's use and enjoyment of land. A public nuisance is an unreasonable interference with a right common to the public; a private party may sue only if suffering a special harm different in kind from the general public.

Under respondeat superior, an employer is vicariously liable for an employee's torts committed within the scope of employment. Minor deviations (detours) remain within scope; substantial departures (frolics) do not. Intentional torts are usually outside scope unless force is part of the job or it serves the employer.

Generally there is no vicarious liability for an independent contractor. Exceptions: non-delegable duties (such as keeping premises safe for invitees), inherently dangerous activities, and where the hiring party was independently negligent in selection or supervision. Apparent agency can also bind the principal.

(1) A false representation of material fact; (2) scienter (knowledge of falsity or reckless disregard); (3) intent to induce reliance; (4) justifiable reliance; and (5) damages (pecuniary loss). Opinions generally do not qualify unless made by an expert or where there is a fiduciary relationship.

Intentional interference with a contractual or prospective economic relationship requires (1) a valid contract or expectancy, (2) the defendant's knowledge of it, (3) intentional interference inducing a breach or termination, and (4) damages. The defendant may raise a privilege (such as fair competition for prospective relations).

Negligent misrepresentation requires (1) a false statement made in a business or professional capacity, (2) breach of a duty toward a particular plaintiff, (3) causation, (4) justifiable reliance, and (5) damages. Liability is generally limited to those in a contractual or special relationship with the defendant.

For conversion, the plaintiff may recover the property's full fair market value at the time of conversion (a forced sale) or seek replevin to recover the chattel itself. The required interference is serious enough to justify making the defendant pay the entire value, unlike the lesser harm in trespass to chattels.

A professional must exercise the knowledge and skill of an average member of that profession in good standing (a national standard for specialists). Common carriers and innkeepers traditionally owe a very high degree of care to passengers and guests, and are liable for slight negligence.

Truth is a complete defense (or falsity is part of the plaintiff's case on public matters). Absolute privileges cover judicial, legislative, and certain executive communications, and spousal remarks. Qualified privileges (e.g., references, reports of public proceedings) apply where there is a public interest, and are lost by abuse or malice.

Assumption of risk is a defense where the plaintiff knowingly and voluntarily encounters the danger. In comparative fault jurisdictions, the plaintiff's fault may reduce recovery. Ordinary contributory negligence (mere failure to discover the danger) is traditionally not a defense to strict liability.

Under joint and several liability, each tortfeasor causing an indivisible injury is liable for the full amount. Contribution lets a paying defendant recover the others' proportionate shares. Indemnity shifts the entire loss to another, as in vicarious liability or a non-manufacturing seller seeking recovery from the manufacturer.

Where two or more defendants act negligently but only one caused the harm and the plaintiff cannot show which (Summers v. Tice), the burden of proof shifts to each defendant to disprove causation. In some toxic tort cases, market share liability apportions damages among manufacturers by their share of the market.

Survival action = decedent's own pre-death claims pass to the estate. Wrongful death = beneficiaries recover their own losses (support, services); generally reduced by the decedent's comparative fault and subject to the defenses good against the decedent.

Spouse (and often parent/child) may recover for lost society, services, and companionship — a derivative claim reduced by the injured party's own fault.

Direct (not vicarious) liability for entrusting a dangerous instrument to one known to be unfit, or for hiring/retaining a dangerous employee. Separate from respondeat superior, so it reaches conduct outside the scope of employment.

By statute, a vendor (and sometimes a social host) may be liable to third persons injured by an intoxicated patron — especially for serving minors or obviously intoxicated guests.

Family-purpose doctrine = owner liable for family members driving with permission. Permissive-use/owner-consent statutes extend liability to any permitted driver. Negligence is not otherwise imputed merely by ownership.

Police and firefighters generally cannot recover for risks inherent in their job created by the negligence that summoned them; recovery survives for independent or concealed hazards.

Industry custom is relevant but not conclusive on breach (a whole industry can be negligently behind the times). Professional custom, by contrast, usually sets the standard of care.

Physician must disclose material risks a reasonable patient would want; failure is negligence even if the procedure itself was performed competently — causation requires that disclosure would have changed the decision.

Gratuitous emergency aid may be shielded from ordinary-negligence liability (gross negligence still actionable). Landowners opening land for free recreation owe only a duty not to willfully/wantonly injure.

Under comparative fault, fault is divided by percentages; many jurisdictions abolish joint & several liability for purely several allocation. A defendant who pays more than its share seeks contribution; a passively/vicariously liable party seeks full indemnity.

Full shifting of loss available for vicarious liability, the retailer-to-manufacturer chain in products cases, and where one party is merely passively at fault against an actively negligent party.

A private plaintiff suing on a public nuisance must show harm different in kind (not just degree) from the general public. Remedies for nuisance: damages, injunction (balancing equities), or self-help abatement after notice.

Valid contract or expectancy + D's knowledge + intentional inducement of breach/disruption + damages. Interference with a mere prospective advantage is more easily justified (competition privilege).

Malicious prosecution = institution of proceedings without probable cause, for an improper purpose, terminated in P's favor, causing damages. Abuse of process = using a proper process for an ulterior purpose plus a willful act — no favorable-termination requirement.

A landowner must take reasonable care that artificial conditions and activities do not unreasonably endanger persons off the premises (e.g., passersby on an adjacent road); natural conditions generally impose no such duty (urban-tree exception).

Even a private-figure plaintiff suing on a matter of public concern must prove actual injury to recover; presumed and punitive damages require actual malice. Truth and opinion (no provably false fact) remain complete defenses.

Trigger: The plaintiff was harmed by one of several negligent actors but cannot identify which one caused the injury.
Under alternative liability, when two or more defendants act negligently but only one could have caused the plaintiff's indivisible injury, the burden shifts to each defendant to prove he was not the cause, and any who cannot is held jointly liable. Under market-share liability, applied to fungible products like generic drugs where the specific manufacturer is unidentifiable, each defendant is liable for the share of damages equal to its percentage of the relevant market. The concert-of-action theory imposes joint liability where defendants acted in concert pursuant to a common plan.

Trigger: A plaintiff with a preexisting condition suffers far greater harm than a normal person would have.
Under the eggshell-skull (thin-skull) rule, a defendant whose tortious conduct causes injury takes the plaintiff as he finds him and is liable for the full extent of the harm, even if its severity was unforeseeable because of the plaintiff's preexisting vulnerability. The rule applies once the defendant's conduct is a proximate cause of some injury; the extent of damages need not be foreseeable. It applies across negligence, intentional torts, and strict liability.

Trigger: An employer hires an independent contractor whose work causes harm in an inherently dangerous or publicly protected activity.
Although a hiring party is generally not vicariously liable for the torts of an independent contractor, it remains liable where the duty is non-delegable. Non-delegable duties include those arising from inherently or abnormally dangerous activities, duties imposed by statute or public policy, and duties owed to invitees to keep premises reasonably safe. In these situations the hiring party cannot escape responsibility by delegating performance to a contractor.