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40 Cards in this Set

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How to Answer a Torts Question
1. Can P establish a prima facie case?

--If not, Defendant wins
--If yes, ask #2

2. Can D establish affirmative defenses?
--If no, P wins.
--If yes, D wins.

3. Discuss any general considerations (vicarious liability, multiple issue/tort immunity, etc.)
Battery
To establish a prima facie case for battery, the following elements must be proved:

1. An act by the defendant which brings about harmful or offensive contact to the plaintiff's person

--"Harmful or Offensive" judged by reasonable person standard

2. Intent on the part of the defendant to bring about the harmful or offensive contact to the plaintiff's person; and

3. The act of the defendant was the cause of the harmful or offensive contact
Assault
To establish a prima facie case for assault, the following elements must be proved:

1. An act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff's person

2. Intent on the part of the defendant to bring about in the plaintiff apprehension of immediate harmful or offensive contact with the plaintiff's person; and

3. The act of the defendant was the cause of the apprehension in the plaintiff
False Imprisonment
To establish a prima facie case for false imprisonment, the following elements must be proved:

1. An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area;

2. Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and

3. The act or omission to act caused the confinement or restraining.

Sufficient Methods of Confinement
1. Physical Barriers
2. Physical Force
3. Threats of force
4. Failure to release
5. Invalid use of legal authority

Insufficient Methods
1. Moral pressure
2. Future threats

"Bounded Area": freedom of movement limited in all directions
--Must be no REASONABLE means of escape KNOWN to plaintiff
Intentional Infliction of Emotional Distress
To establish a prima facie case for intentional infliction of emotional distress, the following elements must be proved:

1. An act by defendant amount to extreme and outrageous conduct

2. Intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or RECKLESSNESS as to the effect of defendant's conduct

--This is the only intentional tort that can be caused by recklessness

3. The defendant's act caused

4. Severe emotional distress

--Only intentional tort that requires ACTUAL damages

"Extreme and Outrageous" Conduct
--Non-outrageous conduct can become outrageous if:

1. It is continuous in nature;

2. It is directed toward a certain type of plaintiff (kids, elderly, pregnant, super-sensitive person if sensitivity is known to the defendant); or

3. It is committed by a certain type of defendant (common carriers/innkeepers may be liable even for mere "gross insults")
Proving Causation in a Bystander Case of Intentional Infliction of Emotional Distress
When the defendant intentionally causes, severe physical harm to a third person and the plaintiff suffers severe emotional distress because of her relationship to the injured person, the plaintiff is generally required to show the following:

1. The plaintiff was present when the injury occurred to the person;

2. The plaintiff was a close relative of the injured person; and

3. The defendant knew that the plaintiff was present and a close relative of the injured person

Plaintiff does not need to establish presence or a family relationship if she shows that the defendant had a design or purpose to cause severe distress to the plaintiff
Trespass to Land
To establish a prima facie case for trespass to land, the following elements must be proved:

1. An act of physical invasion of plaintiff's real property be defendant

--If invasion my intangible matter it is Nuisance, not Trespass

2. Intent on defendant's part to bring about a physical invasion of plaintiff's real property; and

--Need only intend to enter that land (doesn't need to know it belongs to another)

3. The physical invasion of plaintiff's property was legally caused by the defendant's act or something set in motion thereby

--Anyone in Actual or Constructive possession of the land may maintain this action
Trespass to Chattels
To establish a prima facie case of trespass to chattels, the following elements must be proved:

1. An act of defendant that interferes with plaintiff's right of possession in the chattel

2. Intent to perform the act bringing about the interference with plaintiff's right of possession;

3. The interference with plaintiff's possessory interests in the chattel must have been caused by defendant's act or something set in motion thereby;

4. That results in actual damages to the plaintiff
Conversion
To establish a prima facie case for conversion, the following elements must be proved:

1. An act by defendant interfering with plaintiff's right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel

2. Intent to perform the act bringing about the interference with plaintiff's right of possession; and

3. The interference with plaintiff's chattel interests are legally caused by the defendant's act or something set in motion thereby
Defamation
To establish a prima facie case for defamation, the following elements must be proved:

1. Defamatory language on the part of the defendant;

2. The defamatory language must be "of or concerning" the plaintiff;

3. Publication of the defamatory language by the defendant to a third person; and

4. Damage to the reputation of the plaintiff

Where the defamation refers to a public figure, the plaintiff must also prove the following elements:

5. The statement was false; and

6. It was published with either knowledge of the falsity or reckless disregard as to its truth or falsity

Where the defamation refers to a private figure in a matter of public concern, the plaintiff must also prove the following elements:

5. The statement was false; and

6. The defendant permitted the false statement to appear, if not through malice, at least through negligence as to its truth or falsity
Invasion of Right to Privacy--Appropriation of Plaintiff's Picture or Name
To establish a prima facie case for invasion of privacy--appropriation of plaintiff's picture of name, only one element need be proved:

1. Unauthorized use by defendant of plaintiff's picture or name for defendant's commercial advantage
Invasion of Right to Privacy--Intrusion on Plaintiff's Affairs or Seclusion
To establish a prima facie case for Invasion of Right to Privacy--Intrusion on Plaintiff's Affairs or Seclusion, the following elements must be proved:

1. An act of prying or intruding on the affairs or seclusion of the plaintiff by the defendant;

2. The intrusion is something that would be highly offensive to a reasonable person; and

3. The thing to which there is an intrusion or prying is "private."
Invasion of Right to Privacy--Publication of Facts Placing Plaintiff in False Light
To establish a prima facie case for Invasion of Right to Privacy--Publication of Facts Placing Plaintiff in False Light, the following elements must be proved:

1. Publication of facts about plaintiff by defendant placing plaintiff in a false light in the public eye;

2. The "false light" is something that would be highly offensive to a reasonable person under the circumstances; and

3. Malice on the part of defendant where the published matter is in the public interest.
Invasion of Right to Privacy--Public Disclosure of Private Facts About Plaintiff
To establish a prima facie case for Invasion of Right to Privacy--Public Disclosure of Private Facts About Plaintiff, the following elements must be proved:

1. Publication or public disclosure by defendant of private information about the plaintiff; and

2. The matter made public is such that its disclosure would be highly offensive to a reasonable person.
Intentional Misrepresentation
To establish a prima facie case of intentional misrepresentation, fraud or deceit, the following elements must be proved:

1. Misrepresentation made by the defendant;

2. Scienter: Defendant made the representation knowing it to be false or, alternatively, that it was made with reckless disregard as to its truth or falsity

3. An intent to induce plaintiff's reliance on the misrepresentation;

4. Actual reliance on the misrepresentation (causation)

5. Justifiable reliance by plaintiff on the misrepresentation; and

6. Damages
Negligent Misrepresentation
To establish a prima facie case for negligent misrepresentation, the following elements must be proved:

1. Misrepresentation made by the defendant in business or professional capacity;

2. Breach of duty toward particular plaintiff;

3. Actual reliance on the misrepresentation (Causation)

4. Justifiable reliance by plaintiff upon the misrepresentation; and

5. Damages
Interference with Business Relations
To establish a prima facie case for interference with contract or prospective economic advantage, the following elements must be proved:

1. Existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff;

2. Defendant's knowledge of the relationship or expectancy;

3. Intentional interference by defendant that induces breach or termination of the relationship or expectancy; and

4. Damage to the plaintiff
Malicious Prosecution
To establish a prima facie case for malicious prosecution, the following elements must be proved:

1. Institution of criminal proceedings against the plaintiff;

2. Termination favorable to plaintiff;

3. Absence of probable cause for prosecution;

4. Improper purpose of defendant; and

5. Damages
Abuse of Process
To establish a prima facie case for abuse of process, the following elements must be proved:

1. The wrongful use of the process for an ulterior purpose; and

2. Some definite act or threat against plaintiff to accomplish the ulterior purpose
Negligence
To establish a prima facie case for negligence, the following elements must be proved:

1. A duty on the part of the defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;

2. Breach of that duty by the defendant

3. That breach of duty by the defendant was the actual and proximate cause of the plaintiff's injury; and

4. Damage to the plaintiff's person or property
Negligent Infliction of Emotional Distress
To establish a prima facie case of negligent infliction of emotional distress, the following must be proved:

1. The defendant owed a duty to the plaintiff because the plaintiff was in the "zone of danger";

2. Breach of that duty when defendant created a foreseeable risk of physical injury to the plaintiff

3. That breach of duty by the defendant was the actual and proximate cause the plaintiff's injury; and

4. The plaintiff suffers damages in the form of physical symptoms from the distress
Strict Liability
To establish a prima facie case for strict liability, the following elements must be shown:

1. The nature of the defendant's activity imposes an absolute duty to make safe;

2. The dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury; and

3. The plaintiff suffered damage to person or property
Products Liability Based on Strict Tort Liability
To establish a prima facie case in products liability based on strict liability in tort, the following elements must be proved:

1. Strict duty owed by a commercial supplier

2. Production or sale of a defective product

3. Actual and proximate cause; and

4. Damages
Private Nuisance
Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property he actually possesses or to which he has a right of immediate possession
Public Nuisance
Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.

Recovery is available for public nuisance only if a private party has suffered some unique damage not suffered by the public at large
Transferred Intent
When defendant intends to commit a tort against one person but instead:

1. Commits a different tort against that person;

2. Commits the same tort as intended but against a different person; or

3. Commits a different tort against a different person

Transferred Intent may be invoked only if both the tort intended and the tort that results are one of the following:

1. Assault

2. Battery

3. False Imprisonment

4. Trespass to Land; or

5. Trespass to Chattels
Duty of Care
Duty of care owed to all foreseeable plaintiffs

To be "foreseeable plaintiff" must be within "zone of danger" (reasonable person would have foreseen a risk of injury to her under the circumstances)

Rescuers: If defendant negligently puts himself or a third person in peril (danger invites rescue) then rescuers are foreseeable plaintiffs

But police and firefighters are barred by "firefighter's rule"

Prenatal Injuries: Duty of care owed to viable fetus

--Child may not recover for "wrongful life"

--Parents may recover "wrongful birth" or "wrongful pregnancy" for additional medical expenses and for pain and suffering of labor (But ordinary costs of raising the child CANNOT be recovered)
Duty of Doctor to Disclose Risks of Treatment
Doctor has duty to disclose risks of treatment to enable a patient to give an informed consent

Doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent on learning of the risk
Children
Remember: for intentional torts, no child is too young to have the requisite intent

For negligence: children are held to the standard of a child of like age, education, intelligence, and experience (subjective test)

Children under four, lack the capacity to be negligent

Children engaged in adult activities may be required to conform to an "adult" standard of care
Automobile Driver to Guest
Driver owes ordinary care to Guest (non-paying passenger)

Some states have "Guest Statutes" so drivers are only liable to nonpaying passengers for RECKLESS TORTIOUS CONDUCT or GROSS NEGLIGENCE
Bailment Duties
Duties Owed by Bailee (one holding the property)

1. Bailment for sole benefit of bailor (take care of my dog for me?): low standard of care

2. Bailment for sole benefit of the bailee (Can i borrow your lawnmower?): high standard of care

3. Mutual Benefit (Bailment for hire): ordinary standard of care

Duties Owed by Bailor

1. Bailment for sole benefit of bailee (Can I borrow your lawnmower?): Bailor must inform bailee of KNOWN, DANGEROUS defects

2. Bailment for Hire: Bailor must inform bailee of defects of which he is OR SHOULD BE aware
Duties of Landowner
Undiscovered Trespasser: None

Discovered/Anticipated Trespasser:
--Warn (or fix)
--Known
--Dangerous
--Artificial
--Unlikely to discover

Licensees:
--Warn (or Fix)
--Known
--Dangerous
--Artificial AND Natural
--Unlikely to Discover

Invitees
--Inspect and Fix
Negligence Per Se
If:

1. Statute provides for Criminal penalty

2. Statute clearly defines the standard of conduct

3. Plaintiff is within the protected class; and

4. Statute was designed to prevent the type of harm suffered by plaintiff

Establishes first two requirements in prima facie case--conclusive presumption of duty and breach of duty

Violation excused if compliance would cause more danger than violation or where compliance would be beyond defendant's control
Negligent Infliction of Emotional Distress
When defendant creates a foreseeable risk of physical injury to plaintiff

--Exception to "foreseeable risk of physical injury" when duty arises from relationship between plaintiff and defendant, such that defendant's negligence has great potential to cause emotional distress (must still result in physical symptoms)

Two requirements:

1. Plaintiff must be within the "zone of danger"

--Exception for Bystanders when:

----(a) Plaintiff and person injured by the defendant are closely related

----(b) The plaintiff was present at the scene of the injury

---(c) Plaintiff personally observed or perceived the event

2. Plaintiff must suffer physical symptoms from the distress

May recover without proving the two requirements when defendant's negligence creates a great likelihood of emotional distress (false report of relative's death or mishandling relative's corpse)
Res Ispa Loquitur
Requires plaintiff to show:

1. Accident causing the injury is a type that would not normally occur unless someone was negligent; and

2. The negligence is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in defendant's position)

--Can be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant

Effect of Res Ipsa Loquitur: Plaintiff has made prima facie case and no directed verdict can be given for defendant. Plaintiff may still lose, however, if the jury rejects the inference of negligence
Actual Cause (Cause in Fact)
3 tests

1. "But For" Test
--Apply where several acts (each insufficient to cause the injury alone) combine the cause the injury

--Act or omission is the cause in fact when the injury would not have occurred but for the act

2. Substantial Factor Test
--Apply where several causes bring about the injury and any one, alone, would have been sufficient to cause the injury

--Conduct is the cause in fact if it was a substantial factor in causing the injury

3. Alternative Causes Approach
--Apply when there are two acts, only one of which causes injury, but it is not known which one

--Burden of proof shifts to defendants and each much show that his negligence was NOT the actual cause
Common Dependent Intervening Forces
These are ALMOST ALWAYS foreseeable

1. Subsequent medical malpractice

2. Negligence of rescuers

3. Efforts to protect the person or property of oneself or another

4. Injuries caused by another "reacting" to defendant's actions

5. Subsequent diseases caused by a weakened condition

6. Subsequent accident substantially caused by the original injury
Common Independent Intervening Forces
Will be FORESEEABLE IF DEFENDANT'S NEGLIGENCE INCREASED THE RISK OF HARM FROM THESE FORCES

Includes:

1. Negligent acts of third persons

2. Crimes and Intentional torts of third persons

3. Acts of God
Imputed Contributory Negligence
Contributory negligence of 3rd party will be imputed to a plaintiff (and bar her claim) ONLY when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence.

Negligence will be imputed for:
1. Employer-employee

2. Partners

3. Joint venturers

Negligence will NOT be imputed for:
1. Husbands and wives

2. Parent and child

3. Automobile owner and driver
Strict Liability
Strict Products Liability
--Contributory negligence states: ordinary contributory negligence is NO defense where plaintiff merely failed to discover defect or guard against its existence or where plaintiff's misuse was reasonably foreseeable

--Assumption of Risk IS a defense

--Comparative negligence states will apply their comparative negligence

Abnormally Dangerous Activities
--Contributory Negligence states: contributory negligence is NO defense if plaintiff has failed to realize the danger or guard against it. But contributory negligence IS a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the abnormally dangerous activity miscarrying

--Assumption of Risk IS a defense

--Comparative negligence states will apply their comparative negligence rules