Study torts Flash Cards

 
Pile Management Card
torts

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Loss of consortium claim
- loss of services
- loss of society (companionship=emotional)
- loss of sexual intimacy

***MA: govt and charitable immunities
Co-defendants
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
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
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
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
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
"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
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
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
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
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
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
- 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
- malicious prosecution
- abuse of process
Economic torts
- fraud
- negligent misrepresentation
- inducing a breach of contract
Affirmative defenses to privacy torts
CONSENT
DEFAMATION PRIVILEGES:
- absolute
- qualified (ONLY is false light, disclosure)
Privacy torts
- 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
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
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
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)
- incl. money

trespass to chattels: minor harm
- remedy: cost of repair
vs.
conversion: significant harm
- remedy: FMV
Trespass
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
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
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
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
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
- 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
- legislative authority (e.g., zoning)
- conduct of others
- contributory negligence IF theory is negligence
- coming to a nuisance
Remedies
- 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
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
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
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
requires justifiable reliance

assumption of risk is NOT a defense
Products liability: implied warranties of merchantability and fitness
- 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
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
- 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
- defect
- existence of the defect when product left D's control
Products liability: theories of liability
- intent
- negligence
- strict liability
- implied warranties of merchantability and fitness for a particular purpose
- representation theories (warranty and misrepresentation)
Abnormally dangerous activities
- 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
- 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
- absolute duty to make safe
- breach
- actual and proximate cause
- damage to person/property
Defenses to negligence
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
- 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
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
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
- 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
- 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
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
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
- duty to conform to a specific standard of conduct
- breach
- actual and proximate cause of injury
- damages
Interference with business relations
- valid contractual relationship OR valid business expectancy
- knowledge of relationship/expectancy
- intentional interference
- damages
Wrongful institution of legal proceedings
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
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
- 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
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
- 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
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
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
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
- act (volitional)
- intent (specific (goal) or general (substantial certainty))
- cause (may be substantial factor)
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