Term
Intentional Torts (list)
definition of intent |
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Definition
Assault
Battery
False Imprisonment
IIED
Trespass to Land
Trespass to Chattels
Conversion
Intent: either specific (D's goal in acting was to bring about the specific consequences) or general (D knows with substantial certainty that these consequences will result) |
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Term
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Definition
When D intends to commit a tort against one person, but commits a different tort against that person, or commits the intended tort (or a different tort) against another person, the intent will be transferred to the proper tort/person for purposes of establishing the prima facie case.
Only used when both intended and resulting tort are one of the following: assault, battery, false imprisonment, trespass to land, trespass to chattels. |
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Term
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Definition
1) An act by the defendant creating a reasonable apprehension in P
2) of immediate harmful or offensive contact to P's person
3) intent
4) Causation
Apprehension is not the same as fear. D need not be afraid of the contact, just apprehend that the contact is immediate and harmful/offensive
Words alone insufficient to establish liability
Damages not required |
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Term
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Definition
1) Harmful or offensive contact
2) to P's person
3) intent
4) Causation
Whether contact is harmful or offensive will be judged by an objective reasonable person standard
Damages not required |
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Term
| False Imprisonment (elements) |
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Definition
1) Act or omission on part of D that confines or restrains P
2) to a bounded area
3) intent
4) causation
Sufficient confinement can include: physical barriers, physical force, threats of force, failure to release, invalid use of legal authority.
Insufficient confinement includes: moral pressure, future threats.
Irrelevant how long or short the confinement lasts.
P must know of the confinement or be harmed by it
Damages not required. |
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Term
| Intentional Infliction of Emotional Distress (elements) |
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Definition
1) Act by D amounting to extreme and outrageous conduct
2) Intent or recklessness
3) Causation
4) Damages--severe emotional distress
Extreme and Outrageous Conduct: conduct that transcends all bounds of decency. Conduct not normally outrageous may become so if 1) it is continuous in nature, 2) it is directed toward a certain type of P (children, the elderly, supersensitive adults IF D knows of sensitivities), 3) committed by a certain type of D (common carriers/innkeepers may be liable for mere "gross insults") |
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Term
| Trespass to Land (elements) |
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Definition
1) Physical invasion of P's real property
2) Intent
3) Causation
Intent satisfied if the D intended to enter land. D need not know property was someone else's.
Invasion may be by person or object (baseball thrown onto property). If intangible matter invades, P may have nuisance claim.
Damages not required |
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Term
| Trespass to Chattels (elements) |
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Definition
1) Act by D that interferes with P's right of possession in a chattel
2) Intent
3) Causation
4) Damages
Interference may be by intermeddling (damaging the chattel) or by dispossession (depriving P of lawful right of possession of chattel)
Actual damages--not necessarily to the chattel, but at least to a possessory right--are required. |
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Term
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Definition
1) Act by D that interferes with P's right of possession in a chattel
2) Interference is so serious that it warrants requiring defendant to pay the chattel's full value
3) Intent
4) Causation |
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Term
| Defenses to Intentional Torts |
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Definition
Consent
Self-Defense
Defense of Others
Defense of Property
Privilege of Arrest
Necessity
Discipline |
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Term
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Definition
P's consent to D's conduct is a defense.
(Majority view: cannot consent to a criminal act.)
If scope of consent is exceeded, D may be liable.
Express Consent: D is not liable. Exceptions: mistake (if D knew and took advantage of P's mistake); consent induced by fraud...except concerning a collateral matter; consent obtained by duress.
Apparent consent: when a reasonable person would infer consent from P's conduct.
Consent by law: when action is necessary to save a life or some other important interest in person or property.
Capacity is required--incompetents, very young children, and the intoxicated may not be able to consent. |
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Term
Self-Defense
Defense of Others
Defense of Property |
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Definition
Self-Defense: when a person reasonably believes he is about to be attacked, he is allowed to use reasonably necessary force to protect against injury. Duty to retreat if possible; not duty to retreat inside one's home. Reasonable mistake as to the existence of danger is allowed. If more force than reasonably necessary is used, defense is lost.
Defense of Others: One may use the same amount of force as she would for self-defense in the defense of others.
Defense of Property: For prevention of a tort only, unless in hot pursuit of tortfeasor. Reasonable force, reasonable mistake allowed...NEVER deadly force. |
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Term
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Definition
Misdemeanor: privileged only if arrest is for breach of peace and if the action takes place in front of D.
Felony: Police officers may make reasonable mistake. Private citizens may make reasonable mistake regarding identity of the felon, but NOT regarding whether felony occurred. |
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Term
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Definition
| A person may interfere with real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from natural or other force, and the threatened injury is substantially more serious than the interference taken to avoid it. Public necessity is when this act is taken for the public good. Private necessity is when the act benefits a limited number of people. Under private necessity, the actor must pay for any damage he causes. |
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Definition
| A parent or teacher may use reasonable force in disciplining children. |
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Term
| Harms to Economic and Dignitary Interests |
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Definition
Defamation
Invasion of Privacy
Misrepresentation
Interference with Business Relations
Wrongful Institution of Legal Proceedings |
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Term
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Definition
1) Defamatory language
2) "of or concerning" the P
3) Publication thereof by D to a third person
4) Damage to P's reputation
If defamation involves a matter of public concern, P must also prove:
5) Falsity of of the defamatory language
6) Fault on part of D
Libel is written publication of defamatory language. P need not prove special damages. Slander is spoken defamation. P must prove special damages.
For a public figure, also must prove malice (knowledge of falsity or reckless disregard for whether it was false). |
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Term
| Invasion of Right to Privacy |
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Definition
Four branches:
1) Appropriation of P's Picture or Name--must be unauthorized use of P's picture or name for D's commercial advantage.
2) Intrusion on P's Affairs or Seclusion--must be highly offensive to a reasonable person, and must involve an intrusion into privacy (photos taken in public are not actionable).
3) False Light--attribution to P views she does not hold or actions she did not take. Must be highly offensive to reasonable person.
4) Public Disclosure of Private Facts--must be highly offensive to a reasonable person, and may be actionable even if true. |
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Term
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Definition
1) misrepresentation of a material fact
2) scienter (when D made statement, D knew or believed it was false, or that there was no basis for statement)
3) intent to induce P to act or refrain from acting in reliance upon the misrepresentation
4) Causation (actual reliance)
5) justifiable reliance (generally, only to a fact, not an opinion)
6) Damages
Can have negligent misrepresentation in a business/commercial setting--must be a breach of duty (and no scienter, obviously) |
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Term
| Interference with Business Relations |
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Definition
1) existence of a valid contractual relationship between plaintiff and a third party (or valid business expectancy of P)
2) D's knowledge of the relationship
3) intentional interference by D inducing a breach or termination of the relationship
4) Damages |
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Term
| Wrongful Institution of Legal Proceedings |
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Definition
Malicious Prosecution:
1) institution of criminal proceedings against P
2) termination in P's favor
3) absence of probable cause for prior proceedings
4) improper purpose
5) Damages
Abuse of Process:
1) wrongful use of process for an ulterior purpose
2) definite act or threat against P in order to accomplish an ulterior purpose. |
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Term
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Definition
1) Duty
2) Breach
3) Causation
4) Injury |
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Term
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Definition
Owed to all foreseeable Ps. Foreseeable Ps are all those located in the zone of danger.
Basic standard: the reasonable person |
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Term
| Duty of Care - Professionals |
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Definition
| Professionals or someone with special skills will be required to possess the knowledge and skill of other similar professionals in good standing in similar communities. Medical specialists are held to a national standard. |
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Term
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Definition
| Children are held to the standard of a child of like age, education, intelligence, and experience. If engaged in adult activities, may be held to an adult standard. |
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Term
| Duty of Care - Common Carriers and Innkeepers |
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Definition
| Common Carriers/Innkeepers: very high degree of care (liable for slight negligence) |
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Term
| Duty of Care - Owners of Land |
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Definition
To those off the premises: No duty to protect from natural conditions, but duty against unreasonably dangerous artificial conditions or structures abutting adjacent land.
Trespassers: No duty to undiscovered trespassers. To discovered or anticipated trespassers, landowner must: warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm; use reasonable care in the exercise of active operations on property. (No duty owed for natural conditions) Easement and license holders owe a duty of reasonable care to trespassers.
Licensees: duty to warn of dangerous conditions (artificial or natural) known to the owner and unlikely to be discovered by licensee; and duty to exercise reasonable care in the conduct of active operations on property. No duty to inspect or repair.
Business Invitees: same as to licensees PLUS duty to make reasonable inspections to discover nonobvious dangerous conditions (and to then make them safe).
Attractive nuisance doctrine: D liable if 1) dangerous artificial condition; 2) D knew or should have known that children are likely to come by the attractive nuisance; 3) P was incapable or appreciating the danger; 4) the expense of making condition safe is slight compared to the danger. |
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Term
| Duty of Care - Lessor/Lessee |
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Definition
Lessee: General duty to maintain the premises
Lessor: must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is unlikely to discover upon reasonable inspection. If lessor covenants to repair, he is liable for unreasonably dangerous conditions. If lessor repairs negligently, he is liable. |
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Term
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Definition
P must suffer physical symptoms from the distress, and must be within the zone of danger.
To recover outside the zone of danger, must be closely related to person injured, be present at scene of injury, and must have personally observed or perceived the event. |
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Term
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Definition
Custom or Usage may be used to establish standard of care, but does not control the ultimate question of negligence.
Example: D might have conformed to an industry standard of care, but court might find whole industry negligent. |
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Term
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Definition
when the very occurrence of a duty tends to establish a breach of duty. P must show:
1) accident causing injury is of a type that would not normally occur unless someone was negligent
2) negligence is attributable to D. This is done by showing that the instrumentality causing the injury was in the exclusive control of D. |
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Term
| Negligence Causation - Actual Cause/Causation in Fact |
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Definition
"But For" Test: injury would not have occurred but for the act. Applies when several acts (each insufficient to cause the injury alone) combine to cause the injury.
Substantial Factor Test: When there are several causes and any one alone would have been sufficient to cause the injury, D's conduct is the cause if it was a substantial factor in causing the injury.
Alternate Causes Approach: When there are two acts, only one of which causes injury, and it is unknown which, the burden shifts to each D to show his negligence not the actual cause. |
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Term
| Negligence Causation - Proximate Cause |
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Definition
Proximate cause is a limitation on liability dealing with unusual or unforeseeable consequences of one's actions.
If the results are foreseeable, D is usually liable regardless of whether the intervening forces were foreseeable. Only not liable when intervening force is an independent intervening force (act of God, crimes, intentional torts of third party, for example)
If the results are UNforeseeable, D is not liable, regardless of whether the intervening forces were foreseeable.
Defendant liable if the EXTENT of harm is unforeseeable (eggshell-skull plaintiff). |
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Term
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Definition
nominal damages not available
if D's actions are "wanton and willful," reckless, or malicious, punitive damages a possibility.
P has duty to mitigate. |
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Term
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Definition
Contributory Negligence
Assumption of the Risk
Comparative Negligence |
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Term
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Definition
Negligence on the part of P that contributes to her injuries.
Same standard of care as ordinary negligence.
Effect of contrib is to completely bar P's right to recover.
EXCEPTION: Last clear chance doctrine--the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (Used basically as P's rebuttal of D's assertion of contributory negligence.) |
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Term
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Definition
P must:
1) have known of the risk
2) voluntarily proceeded in the face of the risk
not a defense to intentional torts |
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Term
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Definition
Under comparative negligence, P's contributory negligence is not a complete bar to recovery. Instead, P's recovery is reduced by the percentage jury finds P to be at fault.
Partial comparative negligence: If P's negligence is greater than D's, no recovery for P. |
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Term
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Definition
Statutory negligence--replaces the more general common law duty of due care if:
1) statute provides for a criminal penalty
2) statute clearly defines the standard of conduct
3) P is within the protected class
4) statute was designed to prevent the type of harm suffered by P |
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Term
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Definition
1) nature of D's activity imposes an absolute duty to make safe
2) dangerous aspect of the activity was the actual and proximate cause of P's injury
3) P suffered damage to person or property |
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Term
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Definition
Trespassing Animals: owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
Wild Animals (as Pets): Owner is strictly liable for injuries caused by wild animals as long as the injured person did nothing to bring about the injury.
Domestic Animals: Owner not strictly liable for injuries caused by domestic animals unless she has knowledge of that particular animal's dangerous propensities.
Strict liability not available to trespasser. Vicious watchdogs may incur liability under intentional torts. |
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Term
| Abnormally Dangerous Activities |
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Definition
An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to person or property no matter how much care is exercised.
Test:
1) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors, and
2) the activity is not a matter of common usage in the community. |
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Term
| Strict Liability - Extent of Liability |
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Definition
Duty is owed only to "foreseeable Ps"
Duty limited to "normally dangerous propensity"--harm must result from the kind of danger to be anticipated from the dangerous animal or abnormally dangerous activity.
Proximate cause operates in strict liability the same way it operates in negligence.
Defenses include contributory negligence (only in cases where P knowingly and unreasonably caused the harm from the abnormally dangerous activity) and comparative negligence (same rules as in negligence) |
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Term
| Products Liability - definition |
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Definition
| The liability of a supplier of a defective product to someone injured by the product. |
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Term
| Products Liability - Theories of Liability |
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Definition
Theories of Liability:
1) intent
2) negligence
3) strict liability
4) implied warranties of merchantability and fitness for a particular purpose
5) representation theories (express warranty and misrepresentation) |
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Term
| Products Liability - Elements |
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Definition
P must show:
1) a defect
2) existence of the defect when product left D's control (this can be inferred if product moved through normal channels of distribution) |
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Term
| Products Liability - Types of Defects and How to Prove |
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Definition
1) Manufacturing - a product emerges from manufacturing different and more dangerous than if it were made properly, it has a manufacturing defect. P must show that product failed to perform as safely as an ordinary consumer would expect.
2) Design - when all products of a line are the same but have dangerous propensities, a design defect may be found. P must show D could have made product safer, without serious impact on price or utility.
3) Inadequate warnings - Product may be defective as a result of manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users. A product's non-compliance with government safety standards establishes defect, but compliance is merely evidence that the product is not defective.
D will not be held liable for dangers not foreseeable at the time of marketing.
D will not be held liable for some dangerous products if the danger is apparent and there is no way to make the product safer (e.g., knives). |
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Term
| Products Liability - Intent |
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Definition
Rare PL claim (usually battery)
D will be liable to anyone injured by an unsafe product if D intended the consequences or knew they were substantially certain to occur.
Punitive damages available. Defenses are the same as in any other intentional tort action. |
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Term
| Products Liability - Negligence |
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Definition
Prima facie case is the same as any negligence action.
Duty of care is owed to any foreseeable P--users, consumers, and bystanders.
Commercial suppliers such as manufacturers, wholesalers, and retailers can be held liable.
Physical injury must be shown, not just economic loss.
Defenses the same as any other negligence action. |
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Term
| Products Liability - Strict Liability |
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Definition
Prima facie case:
1) strict duty owed by a commercial supplier of a product
2) production or sale of a defective product
3) actual and proximate causes
4) damages
D has a duty to supply safe products.
Does not extend to services, just products.
Physical injury or property damage must be shown.
Contributory negligence not a defense when P merely failed to discover the defect or guard against its existence. Assumption of the risk is a defense. Comparative negligence works as in other negligence cases. |
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Term
| Products Liability - Implied Warranties of Merchantability and Fitness for a Particular Purpose |
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Definition
Merchantability - refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used
Fitness for a Particular Purpose - arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods.
Who can sue? The buyer, family, household, and guests can sue for personal injuries.
What constitutes breach? If either of the above standards are not met, the warranty is breached and D will be liable. P need not prove fault on part of D.
Personal injury, property damage, AND purely economic loss--all recoverable. |
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Term
| Products Liability - Representation Theories |
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Definition
Express Warranty - any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty.
Any consumer, user or bystander can sue.
Breach does not require fault. P simply must show product did not live up to its warranty.
Misrepresentation of fact - seller liable for misrepresentation of fact concerning a product where:
1) statement was of material fact concerning quality or uses of goods (not mere puffery)
2) seller intended to induce reliance by the buyer in a particular transaction.
Liability usually based in strict liability. Justifiable reliance required. |
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Term
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Definition
not a separate tort, but a type of harm - the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability.
Two types: private and public |
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Term
| Nuisance - Private Nuisance |
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Definition
a substantial, unreasonable interference with another private individual's use or enjoyment of his own property (or property he has an immediate right to possess)
Substantial interference: offensive, inconvenient, or annoying to the average person in the community
Unreasonable interference: to establish unreasonable interference (required for intent or negligence nuisance claims) severity of the injury must outweigh the utility of D's conduct |
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Term
| Nuisance - Public Nuisance |
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Definition
an act which unreasonably interferes with the health, safety, or property rights of the community
recovery by a private party will only be available if the private party suffered a unique injury not suffered by the public at large. |
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Term
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Definition
Legislative authority - not absolute defense, but persuasive (example would be a zoning ordinance)
Conduct of others - no one actor is liable for all damage caused by concurrence of his acts and and others
Contributory negligence - generally no defense (unless P's case rests on negligence theory)
Coming to the nuisance - buying land next to an existing nuisance, for example. Not generally a bar to P's action unless the land was bought specifically to bring a harassing lawsuit |
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Term
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Definition
Damages - P will generally be awarded damages
Injunctive Relief - if damages unavailable or inadequate), injunctive relief will be awarded
Abatement by self-help - in the case of private nuisance, self-help abatement is available after notice to defendant. Only necessary force may be used. |
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Term
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Definition
liability which is derivatively imposed. That is, one person commits a tortious act against a third party and another person can be held liable to the third person for the tortious act.
Vicarious liability situations:
1) Doctrine of Respondeat Superior
2) Independent Contractor Situations
3) Partners and Joint Ventures
4) Automobile Owner for Driver
5) Bailor for Bailee
6) Parent for Child
7) Tavernkeepers |
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Term
| Vicarious Liability - Doctrine of Respondeat Superior |
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Definition
A master/employer will be held liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship
Frolic vs Detour: an employee making a minor deviation from the employer's business for employee's own purposes is still acting within scope of employment. (That's a detour.) If the deviation in time or place is substantial, the employer is not liable. (That's a frolic.)
Intentional torts are usually not within scope of employment. Exceptions: tort is authorized by employer or is furthering the business of the employer. |
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Term
| Vicarious Liability - Independent Contractor Situations |
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Definition
In general, principal will not be vicariously liable for the tortious actions of an independent contractor
Exceptions: inherently dangerous activities; non-delegable duty (putting up a fence around an excavation site, for example) |
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Term
| Vicarious Liability - Partners and Joint Ventures |
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Definition
| each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture |
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Term
| Vicarious Liability - Automobile Owner for Driver |
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Definition
| automobile owner is not vicariously liable for the tortious actions of another person driving his automobile |
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Term
| Vicarious Liability - Bailor for Bailee |
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Definition
| Generally, bailor not vicariously liable for the tortious conduct conduct of his bailee |
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Term
| Vicarious Liability - Parent for Child |
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Definition
| Parent is not vicariously liable for child's torts. However, most states make parents statutorily liable for the willful and intentional torts of their children up to a certain dollar amount. |
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Term
| Vicarious Liability - Tavernkeepers |
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Definition
| Liability imposed on vendors of intoxicating beverages for injuries resulting from the vendee's intoxication ONLY IF the risk was foreseeable (serving a minor or obviously intoxicated adult). |
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Term
| Joint and Several Liability |
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Definition
Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (each is liable to plaintiff for full amount of damages)
Contribution/Indemnity: when one tortfeasor is stuck paying the full amount of damages, they can bring suit against the other tortfeasors to contribute--basically, defray the cost of the damages to the amount of the other tortfeasors' negligence. If the contribution sought is for the full amount of the awarded damages, that is indemnification. |
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Term
| Survival and Wrongful Death |
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Definition
Survival - a cause of action seeking recovery for damages incurred by a P who is now dead. Recover for things like the hospital stay between an accident and P's death.
Wrongful death - suit brought by the survivors of an injured party--spouse and next of kin. Recovery is allowed only to the extent that the deceased could have recovered in an action had he lived. |
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Term
| Tortious Interference with Family Relationships |
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Definition
Husband-Wife: Either spouse may bring an action against third party for indirect interference with consortium and services caused by D's tortious conduct against other spouse.
Parent-Child: A parent may bring an action for loss of child's services as a result of D's tortious conduct. A child, however, has no action in most states against a party who tortiously injures the parent.
Any defense which prevents recovery by the injured family member also prevents recovery for interference with the family relationship. |
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Term
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Definition
Intra-Family: Most states have abolished husband-wife immunity and parent-child immunity.
Governmental:
Federal government has waived sovereign immunity under the Federal Tort Claims Act, but immunity will still attach for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights.
State and local: varies by location, many have waived to the extent of federal government. |
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