keywords:
Bookmark and Share



Front Back
intent
D desires or is substantially certain the elements of a tort will occur
  • children and the insane can have intent
  • intent can be transferred betten 5 torts: batters, assault, trespass to land, trespass to chattels, false imprisonment and between victims in these torts
battery
intentional tort
D intentionally causes:
  • harmful or offensive contact
  • with Ps person
  • offensive and harmful contact can exist when P is sleeping
  • Ps person=anything conntected to P
assault
intentional tort
D intentionally brings about:
  • apprehension of
  • immediate harmful or offensive contact
  • apprehension does not require fear
  • immediate harmful or offensive contact--must be imminent future harm
  • P cannot be assaulted from behind or while otherwise unawares
false imprisonment
D intentionally:
  • confines or restrains P
  • in a bounded area with no reasonable avenue of escape
  • P must be aware of the confinement/restraint--UNLESS injured by the confinement or restraint
  • Any amount of time is sufficient for this tort
4 ways to confine or restrain:
  • physcial barriers
  • force or threat of immediate force agaisnt P, Ps family or propert--not econ coercion
  • omission where D had a duty to act
  • improper assetion of legal authority--false officer or officer beyond scope of authority
intentional infliction of emptional distress
D engages in:
  • outrageous and extreme conduct: beyond the bounds of human decency
  • with the intent or reckless disregard to cause P extreme mental distress and
  • P actually sufferes extreme mental distress
  • no physcial manifestation of distress requirement
  • Gross insults by common carriers, innkeepers and other public utilities to their patrons---need not be extreme and P need not suffer
No automatic transfer--3P can recover if:
  • present and
  • close relative and
  • D knew the 3P was present and was a close relative
trespass to land
intentional tort
D intentioanlly cases:
  • physical invasion that is seen felt or heard
  • of land
  • no damage necessary--the trespass is the damages
  • Proper P is the person in possession--not necessarily the owner
  • mistake as to lawfulness of entry or the identity of the land is no defense if D intended to be on that plot of land
trespass to chattel
  • intentional interference with right of possession of personal property of another
  • MUST be actual damage or dispossession
  • mistake as to identity of personal proeprry is no defense
  • transfereed intent applies
conversion
Serious intentional interference with right of possession of personal property so serious it justifies "sale" to D
  • not damage--destruction
  • time is a factor
  • mistake as to identity of the personal property is no defense
  • transfered intent does not apply
Defenses to intentional torts: consent
Consent can be express or implied from conduct or the scope of the express consent
  • incapacity nullifies consent--infancy, insanity, intoxication
  • action beyond the scope of consent is not waived
  • fraud waives any consent obtained
  • OLD majority rule: a person cannot consent to a criminal act and such consent is always invalid
  • MAJ rule: a person can consent to a criminal act and that consent is valid except where the criminal alw is designed to protect members of the victims class/advance the interests of victims class


Defenses to intentional torts: self defense
Not retaliation
reasonable force can be used when reasonably believed necessary to protect oneself from immediate danger
  • reasonable honest mistakes are ok
  • MAJ: no need to retreat from aggressor to avoid need for force
  • MIN/modern trend: P must retreat  (except from their swelling) if possible IF otherwise, deadly force would be required
deadly force only in response to deadly force
Defenses to intentional torts: defense of others
D can use reasonable force to protect a 3P when D reasonably believes that 3P needs defending
  • reasonable mistake is ok
  • deadly force if deadly force
  • otherwise the force reasonably necessary for the defense
Defenses to intentional torts: defense of property
No deadly force--reasonable mistake is NOT ok
One may use reasonable force to prevent a tort against ones property
  • proportionality is key--even slight force is unreasonable if a verbal request would do
  • no privilege of force agaisnt a person who in fact was privileged to use the property--not really committing a tort
  • recovery of proeprty: may use reasonable force in "hot persuit" of someone wrongfully taking property
  • Shopkeepers privilege: can detgain for a reasonable period based on a reasonable belief in the theft
  • mechanical devices intended to inflict deadly force (spring gun) cannot be used as deadly force is only justified to protect life
  • visible deterrents--barbed wire--is fine, but not hidden measures to inflict deadly force
Defenses to intentional torts: arrest
privileged if in defense of apparantly valid warrant
felony arrest:
  • police officer arresting a felon without a warrant--reasonable mistake of person is ok
  • a private citizen arresting for a felony:
  • felony must have been committed and
  • reasonable mistake as to person allowed

misdemeanor arrests: both police and private citizens may arrest for breaches of peace in fact taking place in front of them
Defenses to intentional torts: necessity
privilege to interfere with Ps property rights when it appears reasonable necessary to avoid more serious injury to persons or property
  • public necessity is to protect the public good--sake of the whole community--complete privilege
  • private necessity is an incomplete privilege and D must pay any damages
Defamation: generally
  • defamatory assertion of fact agaisnt P
  • intentional or negligent publication
  • libel or slander may require money damages
  • constitutional barriers to recovery
Defamation: defamatory statement
defamation is not complete on its face
  • inducement: extrinsic facts which establish the defamatory meaning of Ds statements--known to listners
  • innuendo: defamatory implication of Ds statement
  • colloquium: extrinsic facts to establish whom the defamatroy statement is referring to
Defamation: defamatory assertion of fact
fact vs opinion
  • facts can be subjectively proven right or wronf
  • opinion is not defamation
  • individuals and large groups cannot claim injury when the entire group is defamed
  • individuals and small groups can claim injury when all or a significant unnamed percentage of them are attackes by defamation
Defamation: intentional or negligent publication
publication= communication to one person other than the victim
  • repeating is publishing even if quoting a source
  • libel unless privilege applies
Defamation: is it the type of libel or slander that requires special damages?
  • libel=written--including dictation and reading froma  script
  • MAJ: no proof of pecumiary damages to recover
  • slander= spoken and not from a script
  • pecuniary damages must be proven as a prerequisite to recovery except where slander per se
Defamation: slander per se
no pecuniart damages showing requires--always slander
  • business or professional impact
  • loathsome disease
  • crime involving moral turpitude
  • unchastity of unmarried women--major sexual misconduct
Defamation:C/L defenses
  • consent
  • truth--quotes msut not materially alter the meaning of what was said
  • aboslute privileges
  • qualified privielges
  • neutral reporting privilege--fair report of govt or public meetings
  • retraction statutes for media--reduce damages
Defamation: defenses: aboslute privileges
  • legislative: anything said on the floor
  • judicial: anything said in court by anyone
  • executive: within scope of ET
  • spousal communications to each other
  • TV/radior broadcast of political ads
Defamation: defenses: qualified privieleges
  • mututal interest of people talking or interest of either speaker or listener--legitimate interests but not lies
  • can be lost by abuse
Defamation: constitutional barriers to recovery: NYT standard
Public P (public official or person) within scope of public life must prove with convincing clarity:
  • Actual malice: knowledge that the statement is false or reckless disregard to its truth--subjectively entertained serious doubts as to truthfulness of statements
  • P has burden of showing the statement is false
Defamation: constitutional barriers to recovery: Gertz standard
private P must prove in a matter of public concern against a media D that defamatory statements:
  • D acted with fault (negligent in ascertaining truth) to obtain damages for actual injuries (proven losses incliding mental anguish) only or
  • D acted with NYT malice to obtain all damages
  • P must show statement is false
  • private person on a private matter--no constitutional restrictions
privacy torts
  • intrusion on seclusion--spying
  • appropriation of Ps name or likelness for commercial gain (right of publicity for celebritites-survives P)
  • False light
  • public disclosure of private facts
privacy torts: false light
  • publicizing to a bunch of poeple
  • false facts that a reasonable person would object to--not defamatory, just objectionable
  • NYT malice required for all Ps
  • general privielges for defamation apply
privacy torts: public disclosure of private facts
  • publicity of
  • private facts--not publically available
  • highly offensive to a reasonable person and
  • not of legitimate public interest
  • truth is NO defense
intentional misrepresentation
fraud for pecuniary gain
  • misrepresentation by D--not opinions unless expert, FD or accomplice to other con
  • Scienter: D knew statement was false or made it with reckless disregard for truth of falsity
  • intent to induce reliance
  • causation
  • justifiable reliance by P--because of Ps knowledge or experience they wouldn't know it was fraud
  • economic damages
negligent misrepresentation
  • misrepresentation by D in business or professional capacity
  • negligence towards a particular P--D must have contemplated reliance of particular P or group of P limited to similar transactions, not the public as a whole
  • causation
  • justifiable reliance by P--reasonable person standard
  • damages
malicious prosecution (criminal) and malicious institution of civil proceedings
  • institution of criminal or civil proceedings agaisnt P
  • termination fvorable to the arrested or sued victim--P msut be exonerated on the merits
  • absence of probable cause for prosecution or initiation of civil proceedings
  • improper purpose of D--bad faith
  • dmaages
  • very hard to bring, judge and prosecutor have immunity
abuse of process
intentional misuse of a legal process (civil or criminal) for an ulterior motice or purpose resulting in damages to victim
  • process or procedure within a case
  • subpeona, attachments etc
  • nothign to do with the merits of the case
intentional interference with contract or prospective economic advantage
  • valid K existed between P and a 3P--not a vague hope of custom, a K or legitimate expectation of one
  • D has knowledge of the valid K or economic expectancy
  • D intends to interfere with K or economic expectancy
  • D induces breach or causes the interference
  • P suffers damages, economic and other
  • No K damages because D is not a party to the K
privileges to interfere with non-terminable at will Ks
less extensive that interference with economic expectancy
  • privilege to interfere with a valid K or economic advantage
  • stating a volunteered truthful information or honest advice within the scope fo a request for advice
  • person responsible for the welfare of another acting to protect that person's welfare
  • L is illegal or agaisnt public policy
  • person in good faith and by appropriate meand protecting his own legally protecable interests--assertions of bona fide claims
privileges to interfere with economic expectancies (and terminable at will Ks)
  • fair and ethical competition--the economic relationship interfered with must concern a matter involved in the competition
  • acting to protect ones own financial interest in the business of a 3P so long as no wrongful means are employed--urging someone to buy your stock instead of someone elses
"wrongful" torts
  • wrongful termination for a reaosn that offends public policy--trumps at-will K
  • wrongful birth--ususal recovery includes economic costs of pregnancy and costs of rearing a defective child
  • wrongful death--specific relatives (dependent spouses and children) can recover pecuniary losses they would have had if ZV had lives
  • C/L no recovery for wrongful death because how to measure the value of human life?
  • Modern: statutory recovery in every state
interference with consortium
spouse can recover for loss of companionship during the other spouses injury
  • c/l: only H could recover
  • modern: runs to both spouses
  • covers the period leading up to the death
negligence: generally
accidents for which there is legal culpability
  • duty of D to conform to a specific standard of conduct
  • breach of that duty by D
  • actual (but for) causation
  • proximate causation
  • damages to Ps person or property
negligence: duty is owed to...
  • Cardozo: MAJ: P in a foreseeable zone of dangers--reasonably foreseeable
  • Andrews: MIN: anyone
  • rescuers are always foreseeable
negligence: standards of conduct: reasonable person
  • adult reasonable person: D compared to a person of ordinary intelligence and knowledge
  • no excuse for stupidity, insanity or good faith
  • reasonable person balances risk of action vs benefits of action--not perfect, just reasonable
  • community custom is not dispositive but is evidence of reasonableness--not binding on jury
  • emergency: less is expected of a reasonable person--a reasonable eprson with a gun to his head and n/a to negligence created by this person
  • physcial disability: a reasonable person with this disability
negligence:standards professional standards
  • minimum standard: skill knowledge of a member in good standing in the profession
  • medical general practitioners compared to standard in similar community---Modern, compared to state or national standard
  • medical specialists compared to national standard
  • expert testimony is required in medical malpractice unless the error is gross deviation--so obvious anyone would know it for a msitake
  • doctors have a duty to reasonably inform patients of risks to gain informed consent
  • specialists have a higher duty
  • no exceptions for novices
  • if a eprson holds thenmselves out as a specialist they will be held to the higher standard
negligence: child standard
reasonable child of like age, like intelligence and like experience
  • mirros image standard
  • EXCEPTION: dangerous activity normally engaged in only by adults--will be held to adult reasonable person standard
negligence: statutory standards--negligence per se
a type of harm, class of victim intended to be prevented by the statute
  • criminal standard as violating a state cannot be reasonable
  • excluse for not confomring to statute: compliance is impossible or more dangerous than noncompliance
  • judicial discretion in application
negligence: limits on duty: trespassor
comes on land without permission or privilege
  • undiscovered or inanticiapted trepassor: absolutely no duty to confrom to any standard
  • discovered or anticipated trespassor:
  • active operations: reasonable person standard
  • conditions: warn or make safe known concealed artifical conditions which involve a risk of death or serious bodily injury
negligence: limits on duty: licensee
enters on land with permission or privilege (social guests)
  • active operations: resonable eprson standard
  • conditions: warn or make safe all known conditions whether artifical or natural posing an unreasonable risk of any harm
  • no duty to inspect
negligence: limits on duty:invitees
police, emt's firefighters, customers, electricians etc--engtering for the business purposes of the landowner
  • active operations: reasonable person standard
  • conditions: reasonable person standard: make reasonable inspections to discover hazards, make land reasonably safe
  • warning will not suffice
  • duty to inspect and make reasonable repairs
negligence: limits on duty: attractive nuisance

exception for trespassing children
  • foreseeable trespassing children--near a school or park or common to have kids there
  • child cannot recognize the risk due to his immaturity--varies with the age of the child
  • caveat: moy not apply to natural conditions
  • reasonable mitigation
negligence: limits on duty: generally
  • no duty to protect those off land from antural conditions of the land--land comes to the victim
  • major exception: duty of possessor of urban land to make reasonable inspection of tress that could endangers others off the land
negligent infliction of mental distress
old majority rule:
  • P must be within zone of physcial danger and
  • physcial manifestation of emptional distress
new majority rule:
  • bystander can recover when P is:
  • near the scene of the acident
  • has a direct seonsory perception of the accident
  • close relative
  • physical manifestation required

negligent handling of reamins and death notifications--recovery allowed without any showing of physical manifestation
negligence: failure to act
generally a person has no duty to act  unless it is really unreasonable not to or an exception applies:
  • special relationships: parent, lifeguard, ER, police have no special relationship
  • D or Ds instrument responsible for Vs plight
  • D voluntarily acts and puts V in a worse position
x of y cards Next > >|