Torts 2 Flashcards

Terms Definitions
slander
oral defamation
Strict Liabliity
Liability without fault
Warnings
Adequate warnings will generally insulate from liability.
Which decides whether inadequate warnings make product so defective as to be unreasonably dangerous?
Jury
False Imprisonment
1. Intentional
2. Physical or Psychological Confinement of Another
3. Within Fixed Boundaries
4. For Any Period of Time
5. Without Consent
Duty DURING rescue
Reasonable prudent rescuer standard!
Vicarious Liability
Employer-Employee: liable if w/in scope of employment

Independent Contractor: generally no liability. 2 exceptions:
1. inherently dangerous activities
2. non-delegable duty

Automobile owner: no V/L unless driver running errand

Parents/Children: no V/L, no exceptions

TIP: D may be liable on direct liability theories (i.e. negligence)
Official Privilege
“Officers cannot resort to deadly force unless they have probably cause to believe that the suspect has committed a felony and poses a threat to the safety of the officers or a danger to the community if left at large.”

But, *Going back to Courvosier where there’s a mistake made, in Couv. The standard is that a reasonable person had to be under the belief & the same standard is being employed here & we just have to ask if the standard being employed here really an objective standard or is it subjectivized by looking at everything by the police officers point of view?
public officials libel
require: actual malice=knowlege of falsity or reckless action without regard for truth
trespass to chattels
- affirmative intentional act
- interferes w. P's possessory interest
- in movable personal property
- resulting in injury
- measure of damages: depends
Invasion of Right to Privacy
FL-A-I-D

1. Appropriation: Unauthorized use of P's name or picture for commercial advantage.

2. Intrusion: prying or intruding into private matters that is objectionable to a reasonable person.

3. False Light: Widespread dissemination of a major misrepreentation about P that would be objectionable to the average person.

4. Disclosure: widespread dissemination of confidential information about P that would be objectionable to the ave. person.

Defenses: Consent (all 4), Defamation Privileges (false light & disclosure)
warranty
Any promise (or a presumed promise, called an implied warranty) that certain facts are true. In consumer law, any obligations imposed by law on a seller that benefit a buyer; for example, the warranty that goods are merchantable and the warranty that goods sold as fit for a particular purpose are fit for that purpose.
In a tort suit for medical malpractice, will a plaintiff generally need an expert witness to be a doctor from a similar community to the one in which the defendant doctor practiced?
Yes
Possessor
Person with dominion or control over the item.
Libel - Defined
Libel is a defamatory statement recorded in writing or some other permanent form.
Contribution
where Ds are more or less equally responsbile, they will share the judgment amount EQUALLY
 
notes: (i) D from whom contrubtion is ought must also be liabel (for ex, not have independant defenses such as intra-family tort immunity). (ii) Not applicable to intentional torts.
is consent a defense to invasion of privacy?
yes
If you commit larceny and then return it later is it still larceny?
YES.
Assumption of Risk
Plaintiff may be denied recovery if:

1) P knew of the risk

2) P voluntarily proceeded in the face of the risk
Respondent Superior
generally a principal is not liable for tortious acts of agent who is an independ contractor
deep pocket
The one person (or organization) among many possible defendants best able to pay a judgement. This is the one a plaintiff is most likely to sue.
Defenses to Intentional Torts: PrivilegesWhat are the privileges? (and how many are there?)
The 5 privileges are:
Self-defense
Arrest and Detention
Defense and Repossession of Property
Consent
Necessity
Contributory Negligence
Plaintiff can not have fault to recover. EXCEPTION Cases where the Defendant failed to act reasonably and had the "last chance" to avoid harm.
intentional infliction of emotional distress
extreme and outrageous conduct resulting in severe emotional distress distress should have physical must be actual malice (falsehood) for public person
abuse of process
D's misuse of legal process for ulterior purpose causing actual injury
Warheads made by O. Stored by D. Harms P. Can P sue O?
YES.
General Standard of Care
General Standard:
The care of a reasonably prudent person (with the Δ’s physical characteristics) acting under similar circumstances.

Standard is objective (no excuse for stupid, insane, etc.)

Exceptions:
1. superior knowledge or skill: standard of someone with such knowledge and skill.
2. physical disabilities: standard of someone with the physical disability of the ∆.
damages
Money that a court orders paid to a person who has suffered damage (a loss or harm) by the person who caused the injury.
In a defamation case where the statement relates to a matter of public concern, and the def is a public official, what level of intent must the pl show?
Intent or recklessness
NegligenceWhat are the special characteristic's related to the duty of reasonable care in relation to adults, and are they relevant in determining reasonable care?
The four special characteristics related to adults and whether they are relevant in determining reasonableness of care are:
1. Mental disability/impairment NO
2. Physical disability/impairment Yes
3. Superior mental ability/aptitude (i.e. superior knowledge) Yes
4. Superior physical ability/aptitude Yes
Tort
A civil wrong other than a breach of contract that causes injury or other damage for which our legal system deems it just to provide legal remedy such as compensation. A personal tort injures the person. A personal property tort damages movable property n
Misrepresentation - Prima Facie Case
1. Intentional/ negligent2. Misrep of material Fact(opinion)3. Made w/ intent to induce reliance4. To his detriment 5. Proximate damages6. Justifiable
Strict Liability: Hypo: Fido, your pet poodle, bites someone. Strict Liability?
No. Second time, yes.
State of mind for larceny:
INTENT. If you accidentally take something and then later decide to keep it it's not larceny! Have to have intent when you took it!
What is the exception to appropriation?
newsworthiness
ex: Derek Jeter's photo on cover of SI
Privilege of Necessity
a person may interfere w/ property of another where it is REASONABLY and APPARENTLY necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that seeks to avert it.

Private necessity - still pay - benefit limited persons.
False Imprisonment elements
1. act of restraint2. confinement of P in BOUNDED area
Battery
A. Harmful or offensive contact 1. reas p would find offensive 2. not consented to 3. direct/indirect
What is the Feminist/Communitarian view on affirmative duties?
Other philosophies reflect a male perspective and see humanity as a collection of separate, distinct individuals. Women espouse care and interconnectedness. Rather than seeing people as independent, we should view everyone as interconnected.
Factors taken into acct when determining if there has been an assault
Body la, placement & movement, gender/body size. ? whether a reasonable person WH felt imminent apprehension.
What are three secondary functions of tort law?
Vindicating PSubstitute for private retaliationPreventing resort to self help remedies
Comparative Contribution Hypo: Adam is 25% responsible for injuyr, Buster 75% responsible. P recived $100,000 judgment. how do we split up between them?
According to relative fault 
 
How much do Adam and Buster each owe the P?
A-25K, B-75K..WRONG!!!!! A owes 100k and B owes 100K
Original tortfeasor has nothing to do with rescuer (ie. hole in the ground and someone else falls in). Is original tortfeasor still liable to rescuer?
Yes!

Cardozo: "The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man."
products liability: breach of express warranty
- same as misrepresentation
- anyone who could be expected to be personally injured by the goods
- entity can sue

Damages: personal injury, property damage, economic losses

Defenses: same as misrepresentation, plus failure to give notice and adequate warning
Negligent Infliction of Emotional Distress
The duty to avoid causing emotional distress to another is breached when defendant creates a foreseeable risk of physical injury to plaintiff, either by (i) causing a threat of physical impact that leads to emotional distress or (ii) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Plaintiff can recover damages only if defendant's conduct caused some physical injury.

Zone of danger requirement
What is the last clear chance doctrine?
P recovers despite contributory negligence; the person with the last clear chance to avoid an accident who fails to do so is liable for negligence
"reasonably prudent person w/ that superior knowledge/skill"
Standard of care for disabled person
What is the Extended Liability Principle?
The extended liability principle is that intentional torfeasors "buy" all of the consequences of their intentionally tortuous conduct, whether or not those consequences are foreseeable.
Torts to PropertyHow are Trespass to Chattels and Conversion distinguished?
Type of dispossession:
Permanent dispossession = Conversion
Temporary dispossession = either
No dispossession = either
Utilitarian/Balancing/Economic approach to negligence.What formula is mostly associated with this approach?Who coined it and in what case?What are the problems of the formula?
1. Consider each rule and adopt the rule that will give us the greatest sum total of utility for society

2. P × L > B = actor liable for negligence

3. Learned Hand and Us v. Carroll Towing

4. Too simplistic. Almost always impossible to define the variables. Also, it is unjust to impose the burden of liability on the P just because it would be cheaper not to insure against the risks.
Hannabalson v Session IA 1902
P reached over fence & shook D's ladder D struck arm lightly & tolder her to stay on own side held for D
Torts: 41Liabilty rules for intentional torts---The requirement of awareness in battery
The tort is contact and therefore, P need not have been aware of it at the time
Abnormally Dangerous Activity (6 Factors)
High degree of risk of harm to othersHarm that results is likely to be seriousRisk cannot be eliminated by exercise of reasonable careActivity is NOT commonActivity is not appropriate for place where it is carried outDanger outweighs activity's value to the community
Are there privileges to induce a breach of contract?
Yes, for advisory positions e.g. parents, lawyer, accountant, etc.
For False Imprisonment how is the "adequate legal justification" requirement evaluated?
Purely objectively. If the legal justification did not exist, D is liable, no matter how reasonable or good-willed his belief that he had a legal justification.
In torts, what are the three "protective privileges"?
Self-defense, defense of others, and defense of property
EXCEPTIONS: if compliance w/ statute is more dangerous than compliance, or was impossible under circumstances
Statute must provide for a criminal penalty
BatteryDual intent: must the same action satisfy the intent and the contract requirement?
Yes. The Intention requirement must be satisfied with the same description of the defendant's action that satisfies the contact requirement.
What are the traditional and modern definitions of defamation?
Traditional - A publication, without justification or lawful excuse, which is calculated to injure the reputations of another, by exposing him to hatred, contempt, or ridicule, is libel

Modern - §559 – A communication is defamatory if it tends so to harm the reputations of another as to lower him in the estimation of the community or to deter third person from associating or dealing with him.
33 TortsWhat is the proof of intent
Ordinarily D's intent must be proved circumstantially, that is inferred from his conduct. D will be presumed to have intended the natural and probable consequences of his act in light of surrounding circumstances which he is presumed to be aware of
What do you need to sue for slander?
Special damages! Ordinary slander is not actionable without special damages!
What are joint and several liability?
Joint liability is the sharing of a liablity by multiple parties. They are collectively liable.

Several liability is the liability of each party for the same thing. Each can individually sued for the whole.

Joint and Several liability is the combination of both: they can be collectively sued or individually for the whole value of the liability.
Can a bystander sue a commercial supplier in the chain of distribution in strict liability?
Yes - there is no privity requirement
In what kind of defamation case does the First Amendment play a significant role?
First Amendment doctrine only applies to defamation if the def’s statement related to a matter of public concern
Interference w/ use and enjoyment of property to unreasonable degree.
Courts weigh D's interest in using land vs P's entitlement to be free from interference
Where does strict liability for a published statement about a private citizen run into first amendment issues?
Publication of public records. Courts have found that this is ok b/c the statements are true and so a matter of public concern.
36 TortsCan children be guilty of intentional torts
Yes since the intent is to cause certain immediate consequences. They may be too young to hold accountable for recklessness or negligence
What is the privacy tort of intrusion?
the invasion of the pl's seclusion in a way that would be objectionable to the average person.
To make the claim the pl has to be in a location where there is a reasonable expectation of privacy.
Ex: covert video, eavesdropping, etc.
What kinds of statutes cannot be used to establish a statutory standard of care?
- statute designed to benefit the state (in cost, or in general governance, requiring actors to take on state duties)
- licensing statutes
- statute designed to secure an individual's rights reserved for the general public.
Can a mere insult that is continuous or repetitive qualify as a tort of intentional infliction of emotional distress?
Yes. Conduct being "continuous or repetitive" is a plus factor.
Very high degree of care, i.e. liable for slight negligence
Standard of care owed by land possessor to "undiscovered trespasser"
You bring a bunny to someone who is hypersensitive and afraid of being touched by bunnies, you don't know about the hypersensitivity. What would the court hold you liable for?
Courts would decide that the hypersensitive person cannot make a claim for assault. So, that makes the IA of a H or O contact a reasonable person standard.
Silas v Bowen SC 1967
D shot P in ft after P grabbed D by shoulder D claimed fear SBH b/c P was much larger than D. Held for D. Prop owner's reasonable belief that he/fam were in danger of BI belief must be R. mere words Acted in reasonable apprehension of SBH & to repel what he reasonably feared would be a serious/dangerous assault by a person of overpowering size
When do you depart from the reasonable and prudent person standard of care?
1. def is a child
2. Professionals
3. duty of possessors of real estate
4. Statutory duty standard
5. duties to act affirmatively
6. negligent infliction of emotional distress
What duty of care does a landowner owe a trespasser who is known or anticipated (i.e., because they've trespassed so in the past)?
Depends on the cause of the accident.
What is deadly force?When is it allowed?Is there a case supporting this?
1. Force likely to cause death or serious bodily harm.

2. When P is confronted or reasonably believes they are confronted with deadly force. A threat of deadly force is not deadly force.

3. Courvoisier v. Raymond - man thought an approaching police officer was a burglar/rioter and shot him. Court decided a reasonable person would have reacted the same way.
Picard v Barry RI 1995
Female P sued for A & B when M D of bigger size approached & grabbed for camera. No CF of physical injury to P & t/f no malice.
In a suit for negligence per se based on a statute, what are the 2 special circumstances under which violation of the statute will be rejected as the standard of care, despite the fact that the statute otherwise applies?
a) A court will not apply the statute as the standard of care if compliance would be more dangerous than violation.b) A court will not apply the statute if compliance was impossible under the circumstances.
No fault insurance: who is entitled to it if injured in car accident?
1. owner of car who is injured while operating car2. driver of car (if diff from owner)3. passengers of car4. any pedestrians hit by car
What is the PF case for Hostile Work Environment?
1. Unwelcome conduct of sexual nature at the workplace.
2. Conduct is frequent and severe or pervasive enough to create an abusive work environment.
3. Conduct purposely interferes w/ work performance or creates an intimidating, hostile, or offensive work environment.
In torts, can you use deadly force to protect property? Can you use deadly traps?
No and no. Deadly force is NEVER allowed in defense of property.
What is the duty of care owed to a discovered trespasser / anticipated trespasser?
1. Activity - the standard of care is RPP
2. Condition - for their to be a duty must satisfy 4 part test
a. condition must be artificial in nature
b. condition must be highly dangerous
c. condition must be concealed from the trespasser
d. the land possessor knew about the condition in advance
the possessor owes a duty to a discovered trespasser only to protect from known man-made death-traps on the land.
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