Study torts Flash Cards
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Pile Management Card
torts
torts
| Loss of consortium claim |
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- loss of services - loss of society (companionship=emotional) - loss of sexual intimacy ***MA: govt and charitable immunities |
| Co-defendants |
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comparative contribution: P gets back amount reflecting each D's amount of fault EXCEPT: vicariously liable party entitled to 100% of damages from active tortfeasor (INDEMNIFICATION) - non-manufacturer held strictly liable for defective product may get full indemnification from manufacturer (up chain of distribution) |
| Vicarious liability |
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active tortfeasor D hurts P, who sues D and inactive party based on relationship to D - employer/employee: NOT incl. intentional torts because outside scope - IC/hiring party: hiring party NOT liable EXCEPT land possessor for injured invitee - car owner/driver: NOT liable for torts of people driving w/ permission EXCEPT if driver acting as agent/servant - parent/child: liability for parent's negligence, child's intentional torts ***MA: $5,000 for intentional tort of child <7 NOTE: may be directly liable for leaving keys out for drunk driver, leaving out loaded gun, etc. |
| Strict liability torts |
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INJURIES BY ANIMALS: - domesticated: D must be negligent EXCEPT if D has knowledge of viciousness ***MA: dog owner liable for ALL injuries even w/o knowledge unless victim was teasing - wild: strict liability ABNORMALLY DANGEROUS ACTIVITY: abnormal risk even w/ reasonable care and NOT common usage where conducted PRODUCT INJURIES: D is merchant (NOT casual seller or incidental product), product is defective - no privity req. (all merchants in distribution chain liable) - defect: manufacturing or design (show alternative design that is safer, economical, practical; incl. warnings, instructions) - non-alteration req. - victim must be making foreseeable use ***MA: UCC warranty of merchantability doctrine (same result) DEFENSES: - comparative fault |
| Nuisance |
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interference w/ someone's ability to use property to an unreasonable degree - harm, NOT analogous to battery - may be intentional, negligent, w/o fault - court balances equities |
| Equitable remedies |
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for tort, privacy invasion, trespass to land, prospective defamation, etc. INJUNCTIONS (negative or mandatory) - preliminary (P shows likelihood of success and likely irreparable injury) - permanent (at end) require: - no adequate remedy at law (non-monetary harm, on-going, etc.) - tort invaded a protectable interest - remedy will be enforceable - court must balance hardships SPECIFIC DEFENSES: - unclean hands - laches (prejudicial delay) - D has changed position in reliance of P's failure to litigate AFFIRMATIVE DEFENSES: ***NOT in MA - contributory negligence - assumption of risk - comparative negligence - partial comparative negligence ***MA rule |
| Damages |
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"eggshell skull" principle: take P as found ***MA: damages caps on med mal (ONLY) EXCEPT: - where death has resulted from med mal - if a subs. permanent disfigurement - if loss of a bodily function |
| Causation: proximate cause |
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proximate cause: fairness D is NOT liable for unforeseeable results foreseeable: DIRECT cause (liable unless freakish) INDIRECT cause (intervening cause: outcome may/not be foreseeable) foreseeable: --intervening medical negligence --intervening negligent rescue --intervening protection/reaction forces --subsequent disease, accident |
| Causation: factual cause |
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factual cause: but-for special cases: - merged causes: subs. factor test (if each breach independently capable, then jointly liable) - unascertainable causes: burden of proof shifted to Ds |
| Breach |
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P must identify specific wrongful conduct of D AND give argument about why it's wrongful EXCEPT: res ipsa loquitor (P lacks info)--P must show that accident is normally associated with negligence and someone in D's position |
| Violation of statute |
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criminal/regulatory standard of care, but P may borrow to show negligence per se (MBE) IF P shows: - P is member of class that statute is trying to protection - accident is in class of risks that statute was trying to prevent ***MA: merely evidence of negligence, NOT negligence per se EXCEPTIONS: - compliance more dangerous than violation - compliance impossible under circumstances (heart attack) |
| Duty |
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CHILD: - <4: incapable of negligence, never liable - 4-18: duty of hypothetical child of similar age, experience, intelligence, under similar circumstances (subjective, varies by child) EXCEPT: if D engages in adult activity (car) PROFESSIONALS: avg member of that profession acting in a similar locality (hypo RPP) (exception: med mal = empirical standard); if specialized: prof. community (not geographic) ***MA: NOT geographic--ALL doctors held to general standard of care POSSESSORS OF REAL ESTATE to entrants: - undiscovered trespassers: NO duty of care - discovered/anticipated trespassers: reasonable prudence; protect against artificial, highly dangerous, concealed, and known conditions (ok to not protect against natural, obvious conditions) - licensees (enter w/ permission for own purposes--invited guest): RPP; protect against concealed, known conditions - invitees (enter for business or public): RPP; protect against concealed, knowable (by reasonable inspection) conditions (e.g., traps) ***MA: ALL categories of entrants: NO duty of care EXCEPT to refrain from reckless behavior (same result: duty still owed to discovered trespasser b/c reckless to do nothing about known traps, etc.) - recreation use: if you open and do not charge fee, entrants only protected from reckless conduct of owner - firefighters/police: NO recovery for injuries inherent to job risks (***MA: NO rule) - child trespassers: attractive nuisance, higher standard of care * duty w/ regard to dangerous condition: owner may repair or give warning * NO duty to act affirmatively EXCEPT: - pre-existing relationship (owner/invitee) - D was cause of peril (then: RPP) - gratuitous rescuer must rescue as RPP - trained aid givers insulted from ALL liability if give emergency aid in good faith as volunteer NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: - no direct bodily trauma req., but P must show that he was in zone of danger and a subsequent physical manifestation of distress - bystander: must be contemporaneous witness to negligent injury inflict on family member (***MA: P may come upon scene shortly after if victim still present) |
| Negligence |
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- duty: to take risk-reducing precautions of RPP (NO allowance for D's personal shortcomings EXCEPT: superior knowledge, physical attributes) under similar circumstances, owed to foreseeable victims - breach - causation (factual + proximate) - damages |
| Judicial torts |
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- malicious prosecution - abuse of process |
| Economic torts |
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- fraud - negligent misrepresentation - inducing a breach of contract |
| Affirmative defenses to privacy torts |
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CONSENT DEFAMATION PRIVILEGES: - absolute - qualified (ONLY is false light, disclosure) |
| Privacy torts |
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- APPROPRIATION (EXCEPT: newsworthiness) - INTRUSION (P must not be in semi-public place: expectation to privacy must be reasonable; NO req. of trespass to land--wiretap is intrusion + trespass to land) - FALSE LIGHT (***NOT in MA): widespread dissemination of major falsehood (unlike defamation), generates social/emotional damages (compare: defamation=economic damages) * NO FAULT tort: good faith does NOT preclude liability; actionable even if reputation not hurt (that is defamation) - DISCLOSURE: widespread dissemination of confidential facts; concerns truthful info (EXCEPT: newsworthiness) |
| Defense to defamation |
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CONSENT TRUTH PRIVILEGES: - absolute (status: spouse, govt officer) - qualified (public interest in promoting candor; requires good faith belief that statement was accurate and must confine to matters that are relevant) EXCEPT where underlying subject matter is of public concern: P must ALSO show falsity and that D did not have a reasonable and good faith basis ***MA: P must ALWAYS raise falsity and that D lacked reasonable and good faith basis in ALL defamation cases (but burden still on D) |
| Defamation |
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D makes defamatory statement that specifically identifies P and adversely affects P's reputation - name-calling NOT incl.; allegation/assertion of fact that reflects negatively on character incl.; may incl. statements of opinion if veiled factual statement - P must be alive at time statement is made - D must PUBLISH the statement to 1+ ppl (may be negligent, not req. to be intentional) DAMAGES: - libel (written/permanent format) - slander (spoken): may be per se (about business/profession, that P has committed a crime of moral turpitude, that a woman is unchaste, that P suffers from a loathsome disease) or else P must how special damages (actual economic harm) - social/emotional harm NOT suff. |
| Affirmative defenses to intentional torts |
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CONSENT (express or constructive, may be based on custom/activity or reasonable interpretation of P's objective conduct--reasonableness is jury question); NOTE: scope of consent "PROTECTIVE PRIVILEGES" - self-defense - defense of others - defense of property * require: proper timing of response, reasonable belief that threat is imminent; proportional force NECESSITY - ONLY defense to trespass to land, trespass to chattels, conversion (e.g., shooting rabid dog to save kids) - public necessity: D pays NO damages - private necessity: defense, but D pays damages (but D cannot expel so long as emergency continues) |
| Torts involving intentional interference with personal property (everything but land, buildings) |
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- incl. money trespass to chattels: minor harm - remedy: cost of repair vs. conversion: significant harm - remedy: FMV |
| Trespass |
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D committed a physical invasion of land (incl. throwing object) - NO intent to trespass req., only intent to enter/throw - intangible objects NOT incl. (tort: nuisance) - land incl. reasonable air and soil |
| Intentional infliction of emotional distress |
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D engages in outrageous (exceeds all bounds of decency) and P suffers severe emotional distress - hypersensitivity NOT incl. unless D has knowledge - reckless conduct suff. for "intent" - NOT incl. mere insults; typically continuous/repetitive conduct, D is a common carrier/innkeeper, or P is a member of a fragile class (young children, elderly, pregnant women--if D knows) - "distress" may be of any form so long as severe; manifestation NOT required |
| False imprisonment |
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D commits act of restraint and as a result P (of normal sensitivity to threats) is confined in a bounded area * threats may constitute act of restraint (no physical obstacle req.) * incl. omission of action (e.g., duty owed to help P move around) * P must know or is harmed by it |
| Assault |
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D places P in apprehension of immediate battery (focus on P's state of mind--no defense that D incapable if P reasonably believes D is capable) * naked verbal threat without more is NOT suff. to constitute assault--requires menacing conduct * threat must be immediate harm--NOT future * words may negate menacing conduct |
| Battery |
| D commits harmful/offensive touching of P's person (unpermitted by person of ordinary sensitivity) |
| Intentional torts |
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NO incapacity defenses (i.e., drunk, mentally ill, young, etc., person still liable) - battery - assault - false imprisonment - intentional infliction of emotional distress - trespass - conversion - defamation PRIVACY TORTS: - appropriation - intrusion - false light (***NOT in MA) - disclosure |
| Torts: vicarious liability |
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- respondeat superior (scope of employment: incl. minor detour but NOT intentional torts EXCEPT where force is authorized, friction is generated, employee is furthering the business) - NO liability for ICs EXCEPT where engaged in inherently dangerous activities or duty is non-delegable under public policy - partners liable for torts within scope * distinguish: negligent hiring, negligent entrustment, Dram Shop laws, etc. |
| Defenses to nuisance |
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- legislative authority (e.g., zoning) - conduct of others - contributory negligence IF theory is negligence - coming to a nuisance |
| Remedies |
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- damages - injunctive relief (e.g., because nuisance will cause irreparable injury) --court will consider hardships EXCEPT if conduct was willful * abatement by self-help permitted after notice to D after D's refusal to act |
| Public nuisance |
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act that unreasonably interferes with health, safety, or property rights of the community (e.g., building for prostitution) * recovery only if P suffered unique damage not suffered by the public |
| Private nuisance |
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substantial, unreasonable interference (NO hypersensitivity) with use or enjoyment of P's property that he possesses or has right of immediate possession * compare: trespass to land--interference with exclusive possession by invasion (private nuisance is about USE or ENJOYMENT) |
| Nuisance |
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a type of harm (not a separate tort) - invasion of private property rights OR public rights by conduct that is tortious (intentional, negligent, strict liability) |
| Products liability: representation theory |
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requires justifiable reliance assumption of risk is NOT a defense |
| Products liability: implied warranties of merchantability and fitness |
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- no proof of fault required - narrow horizontal privity requirement - damages may be economic (and personal/property) defenses: - assumption of risk - contributory negligence - failure to give notice of breach (UCC) disclaimers generally rejected except for economic damages |
| Products liability: strict tort special rule |
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strict duty only owed by COMMERCIAL SUPPLIER--NOT casual sellers * may be imposed on retailers even if they do not have an opportunity to inspect PHYSICAL INJURY REQUIRED (NO recovery for merely economic damages) * NO defense of contributory negligence where P merely failed to discover or misuse was reasonably foreseeable defense: assumption of risk comparative negligence may be available * disclaimers are irrelevant |
| Products liability: types of defect |
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- manufacturing - design - inadequate warnings (danger must be unapparent) * product may be unavoidably dangerous * D not liable for unforeseeable dangers * D must est. safer economic alternative to prove design defect ANY foreseeable P can sue: NO contractual privity req. |
| Products liability: elements |
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- defect - existence of the defect when product left D's control |
| Products liability: theories of liability |
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- intent - negligence - strict liability - implied warranties of merchantability and fitness for a particular purpose - representation theories (warranty and misrepresentation) |
| Abnormally dangerous activities |
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- activity creates foreseeable risk of serious harm even when reasonable care taken - activity is not a matter of common usage REASONABLE CARE DOES NOT RELIEVE D OF LIABILITY IN STRICT LIABILITY |
| Liability for animals |
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- owner is liable for reasonably foreseeable damage by trespass of his animals - personal injuries: --strict liability for wild animals --NO strict liability for domestic animals unless dangerous propensity known trespassers: - NO strict liability imposed without landowner's negligence - BUT landowner may be liable for injuries from vicious watchdogs under intentional tort |
| Strict liability |
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- absolute duty to make safe - breach - actual and proximate cause - damage to person/property |
| Defenses to negligence |
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CONTRIBUTORY negligence: to violation of statute, NOT to intentional torts -- BARS recovery - may be imputed (employer, partner, but NOT parent, car owner) - exception: last clear chance (P's counter) ASSUMPTION OF RISK: known + voluntary - implied (must be alternatives) (common carriers may NOT limit liability by disclaimer; protected class cannot assume risk) - express * NO defense to intentional torts; may be defense to wanton and willful misconduct COMPARATIVE negligence: - partial: recovery barred if P's negligence > or = D's - pure: regardless of P's negligence * last clear chance inapplicable * implied assumption of risk disallowed |
| Damages |
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- personal: foreseeability irrelevant - property: cost of repair - punitive: ONLY if wanton and willful, reckless, malicious - nonrecoverable: interest, attorneys' fees - NO reduction even if P receives insurance * DUTY TO MITIGATE |
| Causation |
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actual cause: - but-for - joint causes: substantial factor test (both liable) - alternative causes (burden on D to avoid negligence: Summers v. Tice) proximate cause (legal causation): - foreseeability test (D still liable for foreseeable results caused by foreseeable intervening forces, incl. medical malpractice, negligence of rescuers, efforts to protect person/property, injuries caused by reactions, subsequent diseases and accidents) - independent intervening forces (D NOT liable: negligent third party acts, crimes and intentional torts of third parties, acts of God) * D MAY be liable for foreseeable results caused by unforeseeable intervening forces * D NOT liable for unforeseeable results caused by foreseeable intervening forces * D NOT liable for superseding causes (unforeseeable results caused by unforeseeable intervening forces) EGGSHELL-SKULL PLAINTIFF RULE |
| Breach of duty |
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theories available to P: - custom / usage - violation of statute (negligence per se) - res ipsa loquitor (P must show that accident causing injury is a type that would not normally occur without negligence + D was negligent) |
| Duty to act |
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- NO duty to act - Good Samaritan statutes may excuse doctors, etc., from liability for ordinary (NOT gross) negligence - duty to assist someone D has negligently/innocently placed in peril - special relationship duties: common carriers, innkeepers, shopkeepers, parent-child |
| Duty regarding negligent infliction of emotional distress |
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- zone of danger requirement - may incl. bystander that is closely related and present - physical symptoms requirement --EXCEPTIONS: erroneous report of a relative's death, mishandling a relative's corpse |
| Negligence: standard of care |
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reasonable person with D's physical characteristics - mental deficiencies, experience NOT taken into account - professionals: standard of member - medical specialists: national standard (duty to disclose risks of treatment) - children: like age, education, intelligence (subjective); <4: w/o capacity to be negligent; MAY apply adult standard to adult activities - common carriers & innkeepers: high standard for passengers and guests - bailment duties: gratuitous-known defects in chattel, for hire-defects he should be aware of - owners/occupiers of land: duty to protect one OFF premises from artificial (not NOT natural) conditions (incl. falling branches in urban area); duty to protect one ON premises: --trespassers: NO duty to undiscovered trespasser; duty to warn/make safe known risky artificial (NOT natural) conditions to discovered/anticipated trespassers --easement/license holders owe duty of reasonable care to trespassers --attractive nuisance: duty to avoid reasonably foreseeable risk to children caused by artificial conditions (req. knowledge of children + low expense of remedying the situation) --licensees (enter for own purpose): duty to warn of ALL known dangerous conditions but NO duty to inspect or repair --invitees (incl. public): same duties as to licensees PLUS duty to make reasonable inspections and make nonovious dangerous conditions safe --recreational users: NO liability except for maliciously failing to guard/warn ***modern rule: no distinctions, reasonable person standard to dangerous conditions on land -lessor/lessee: lessee has general duty to maintain, lessor must warn of reasonably known defects upon inspection |
| Negligence: duty of care |
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owed to all foreseeable victims Cardozo: all in the foreseeable zone of danger minority: everyone is foreseeable - incl. rescuers where D negligently put self or others in peril (danger invites rescue); limit: "firefighter's rule" - incl. fetus (incl. wrongful birth, but NOT life, for misdiagnosis) |
| Negligence: prima facie case |
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- duty to conform to a specific standard of conduct - breach - actual and proximate cause of injury - damages |
| Interference with business relations |
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- valid contractual relationship OR valid business expectancy - knowledge of relationship/expectancy - intentional interference - damages |
| Wrongful institution of legal proceedings |
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MALICIOUS PROSECUTION: institution of criminal proceedings, termination in P's favor, absence of probable cause, improper purpose, damages * prosecutors are immune ABUSE OF PROCESS: wrongful use of process + act/threat |
| Misrepresentation |
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INTENTIONAL (fraud, deceit): misrepresentation of a material fact, scienter, intent to induce reliance, causation (actual reliance), justifiable reliance, damages (actual pecuniary loss) * no defenses NEGLIGENT: misrepresentation in a business/professional capacity, breach of duty, causation, justifiable reliance, damages * generally limited to commercial setting * liability if PARTICULAR P's reliance contemplated |
| Invasion of right to privacy |
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- appropriation of picture or name (for commercial advantage, NOT mere economic benefit) - intrusion upon affairs or seclusion - publication of facts placing P in false light (must be reasonably objectionable; if matter is of public interest, P must prove malice) - public disclosure of private facts about P DAMAGES: - NO requirement of proof of special damages - emotional distress, mental anguish sufficient DEFENSES: - consent - defamation privileges - NOT truth, inadvertence, good faith, lack of malice * it is a PERSONAL right, does not survive or extend to others to exercise, non-assignable |
| Defamation |
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common law elements: - defamatory language (not mere opinion or name-calling) - of or concerning P (must be alive) - publication to third person (intentional OR negligent publication; not just to P) - damage to P's reputation * D may offer truth as defense constitutional elements: if a matter of public concern-- - P must prove falsity - P must prove fault * if P is a public person, P must prove malice regarding falsity: knowledge statement was false + reckless disregard)--damages presumed, punitive damages allowed * if P is a private person, P must only prove negligence regarding falsity if not a matter of public concern (no constitutional restrictions)--only actual damages recoverable LIBEL: written/printed (incl. radio, tv) -- general damages presumed SLANDER: spoken -- P must prove special damages UNLESS it is per se: - adversely reflect on conduct in profession - one has a loathsome disease - one is/was guilty of a crime involving moral turpitude - a woman is unchaste defenses: - consent - truth (where P does not need to prove falsity b/c a private matter) - absolute or qualified privilege * mitigating factors (anger, no malice, retraction) are NOT defenses |
| Defenses to intentional torts |
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- consent (valid; check scope, capacity) - express, implied, or by law (emergency) - self-defense, defense of others, defense of property (reasonable mistake and force allowed; NOT allowed against person w/ privilege; allowed in hot pursuit but NOT after completed torts) - necessity NO self-help (but may reasonably reclaim); only force in hot pursuit; may be duty to retreat (but not in home) recovery: only from tortfeasor or someone who should know of wrong NO mistake (except shopkeepers: privilege to detain) ** incapacity is a defense to consent, but NOT to intent to commit |
| Intentional torts to property |
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TRESPASS TO LAND: physical invasion (person or object) of real property (incl. air and subterranean), intent (NO knowledge requirement), causation TRESPASS TO CHATTELS: act that interferes with right of possession in a chattel, intent, causation, **DAMAGES (to chattel or possessory right) CONVERSION: act that interferes with right of possession in a (tangible) chattel, so SERIOUS that full value payment required, intent, causation - theft, wrongful transfer/detention, substantially changing/damaging/misusing a chattel - P may recover damages (FMV) or possession (replevin) ***FOR ALL: P may not be owner; sufficient to have actual/constructive possession |
| Intentional torts to the person |
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BATTERY: harmful/offensive contact, to person, intent, causation (consent may be implied; contact may be in/direct) ASSAULT: act (NOT mere words) creating reasonable apprehension of immediate harmful/offensive contact, intent, causation FALSE IMPRISONMENT: act/omission (physical force, failure to release, invalid authority, or PRESENT threats) that reasonably confines P (for any period) to a bounded area, intent, causation (P is aware of confinement and harmed) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: extreme/outrageous conduct (may depend on type of P or D), intent or recklessness, causation, **DAMAGES (severe distress--but NO physical injury required) - P may be BYSTANDER if D knew P was a relative and P was present |
| Capability of intent |
| even children and mentally incompetent persons are liable for intentional torts |
| Transferred intent |
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D actually commits - different tort against same person - intended tort against other person - different tort against different person LIMITATION on transferred intent: intended and actual tort must BOTH be any of - assault - battery - false imprisonment - trespass to land - trespass to chattels |
| Prima facie tort case |
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- act (volitional) - intent (specific (goal) or general (substantial certainty)) - cause (may be substantial factor) |
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