CAB Torts

  1. Battery Elements
    • D must commit a harmful/offensive contact (Objective, reasonable standard)
    • Contact must be with the P’s person
    • Intent (including anything ‘connected’ to P)
    • Causation
  2. Assault Elements
    • An act by D creating a reasonable apprehension in P
    • Of immediate harmful or offensive contact to P’s person
    • Intent
    • Causation
  3. Unloaded gun problem
    • If P reasonably believes the gun is loaded, then it is an assault.
    • “Apparent ability creates reasonable apprehension”
  4. Is fear enough to create a reasonable apprehension in P of immediate harmful or offensive contact to P's person?
    • Mere fear is not enough. Knowledge of the threat is required (P must see it coming).
    • Words are not enough. Conduct is required. Words can negate reasonable apprehension.
  5. False Imprisonment Elements & Definition of bounded area
    • An act or omission on the part of D that confines or retrains P
    • to a bounded area
    • Intent
    • Causation
    • Bounded Area: no reasonable means of escape is known to P (even if way out exists, cannot be dangerous or disgusting)
  6. Intentional Infliction of Emotional Distress Elements
    • An act by D amounting to extreme and outrageous conduct
    • Intent or recklessness
    • Causation
    • Damages – severe emotional distress
    • Definition of Extreme and outrageous: conduct that exceeds all bounds of decency tolerated in a civilized society (insults are not enough)
  7. Intentional Infliction of Emotional Distress Elements- Bystander case
    • P may show either a prima facie case or:
    • (i) P was present when the injury occurred
    • (ii) P is a close relative of the injured person
    • (iii) The D knew of facts (i) or (ii)
  8. Trespass to Land Elements
    • Physical invasion of P’s real property
    • Intent
    • Causation
    • Notes: D’s intent to enter the property is required, even if ignorant of trespass
    • No damages are required
  9. Trespass to Chattels Elements
    • An act by D that interferes with P’s right of possession in a chattel
    • Intent
    • Causation
    • Damages (to possessory right is enough)
    • Two types of interference: 
    • - Intermeddling (directly damaging) and
    • - Dispossession (deriving P of lawful right of possession)
  10. Conversion Elements
    • An act by D that interferes with P’s right of possession in a chattel
    • The interference is so serious that it warrants requiring D to pay the chattel’s full value
    • Intent
    • Causation
    • Note:  Damages – FMV at time of conversion or possession (replevin)
  11. Defense to Intentional Torts - Consent
    • must be valid, and D must have stayed within bounds
    • Express consent - words granting D to act in a certain way (invalid if obtained through fraud/duress)(look for customary practice)
    • Implied consent
    •  - apparent consent: reasonable person inference of P’s conduct and surrounding circumstances/customs
    •  - Consent implied by law: when act is necessary to save life/important interest in property
  12. Intentional Tort Defense - Self-defense, Defense of others/property
    • Proper timing: Applies to preventing the commission of a tort (no preemption, no revenge)
    • Reasonable belief that the threat is genuine (mistake is allowed)
    • may use such force as is reasonably necessary to protect against injury
  13. Intentional Tort Defense - Necessity
    • Public: D commits a property tort in an emergency to protect the community
    • Private: D commits a property tort in an emergency to protect an interest of his own (not absolute immunity)
    •  - D will be liable for compensatory damages
    •  - D will not be liable for nominal/punitive damages
    •  - As long as the emergency persists, P may not throw D off land (right to sanctuary)
    • Available when it is reasonably and apparently necessary to avoid threatened injury
  14. Defamatory elements
    • D must make a defamatory statement that identifies P (tends to adversely affect reputation)
    • D must 'publish' the statement (hold it out to others - one is enough - negligent publication is sufficient)
    • Damage - 
    •  - Libel: written down or otherwise memorialized (presumption of damages)
    •  - Slander per se: Oral statement related to business/profession; crime of moral turpitude; imputing unchastity to woman; loathsome diseases (presumption of damages)
    •  - Slander: P must show special damages (loss of business)
  15. Defenses to Defamation - absolute
    • Consent
    • Truth
    • Communication between spouses
    • Officers of the government in the conduct of their official duties
  16. Defenses to Defamation - qualified
    • Where there is a public interest in promoting candid expressionRecommendations - include statements made to the cops
    •  - good faith 
    •  - statement must be limited to that relevant to matter at hand
  17. Constitutional Defamation Case
    • Involves something that is of public concern
    • P must prove 2 extra elements:
    •  - P must prove falsity
    •  - P must prove Fault
    •  -- Public Figure Fault – knowingly false or utterly reckless
    •  -- Private Figure Fault - negligence as to the truth
  18. Privacy tort - appropriation
    • D uses P's name or image for commercial purpose
    • Newsworthy exception - not actionable if newsworthy
    • Look for uses in advertisement, packaging, etc.
  19. Privacy tort - Intrusion
    • Invasion of P’s physical seclusion in a way that would be highly offensive to an average person ex. wiretapping, peeping tom
    • Must have legitimate expectation of privacy
  20. Privacy tort - False Light
    • Wide-spread dissemination of a material falsehood about the P that would be highly offensive to the average person
    • Tort of false gossip
  21. Privacy tort - Disclosure
    • Wide-spread dissemination of confidential information about the P that would be highly offensive to the average person
    • Tort of "true" gossip
    • Newsworthy exception - not actionable if newsworthy
  22. Defense to privacy torts
    • Consent - defense to all
    • Absolute and qualified privileges to defamation - to false light and disclosure privacy torts
  23. Prima facie case of negligence
    • Duty
    • Breach
    • Causation (factual and proximate)
    • Damage
  24. Duty definition and considerations
    • A duty on the part of D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury
    • Must exercise as much case as a hypothetical reasonably prudent person acting under similar circumstances
    • Owed to foreseeable victims inside the "zone of danger"
    • Note: Danger invites rescue
  25. Reasonable Person Standard Exceptions
    • 1) Superior skill/knowledge – standards becomes what that person
    •  - Superior skill – body of knowledge that makes D unusually experienced
    •  - Superior knowledge – can be an isolated nugget of fact (advanced knowledge of the danger)
    • 2) Physical attributes, in some cases, can be relevant (person should know their own limitations)
  26. Negligence Claims against Kids
    • Duty owed is of a child of similar age, intelligence, and experience under similar circumstances
    •  - Subjective Standard (pro-D)
    •  - Under 5 owe the world no duty of care - cannot be held liable for negligence
    •  - A child doing an adult activity use RPP (ex. driving anything with an engine)
  27. Negligence Claims against professionals standard and notes
    • Standard: the same care as average members of the same profession
    • Profession's custom sets the standard of care
    • Average is not = to reasonable
    • Standard is determined by national customs
  28. Premises Liability - 4 types of entrants - Duty owed to Unknown Trespasser
    possessor owes no duty of care to unknown trespasser on the land
  29. Premises Liability - 4 types of entrants - Duty owed to Known Trespasser
    • Duty owed only:
    • when the hazard is an artificial condition
    • that is Highly dangerous (capable of inflicting serious harm)
    • the danger is Hidden (not open and obvious)
    • Possessor knows about in advance
  30. Premises Liability - 4 types of entrants - Duty owed to Licensee
    • Licensee – enter w/ permission but without economic benefit (ex. social guest)
    • Condition must be concealed (hidden) from the licensee
    • Possessor must have advanced knowledge
  31. Premises Liability - 4 types of entrants - Duty owed to Invitee
    • Invitee – enter w/ permission and confer an economic benefit or enter into a place open to the public
    • Condition must be concealed from the invitee
    • Possessor knew or could have discovered from a reasonable inspection
  32. Premises Liability - duty owed to firefighter and police
    • Firefighters and Police officers never recover
    • – inherent risk of the job that is assumed
  33. Premises liability - Child trespassers
    • Attractive Nuisance Doctrine: possessor must exercise reasonable prudence to avoid injuring trespassing children on the land with respect to artificial hazards
    • P must show:
    •  - A dangerous condition on the land that the owner is or should be aware of
    •  - The owner knows or should know children frequent the vicinity of the condition
    •  - The condition is likely to cause injury (dangerous b/c child cannot appreciate the danger)
    •  - The expense of remedying the situation is slight compared to the magnitude of the risk
  34. Premises liability: Two ways to satisfy duty
    • Fix the hazard
    • Give an adequate warning (doesn’t work with small children)
  35. When is negligence per se available?
    • Two part test for when P may use negligence per se:
    • - The statute seeks to protect a class of persons to which he belongs
    •  - Statute seeks to prevent a risk of the same type as occurred in this case
    • “Class of person, class of risk” test
    • Unless: statutory compliance would be more dangerous or would be impossible under the circumstances (avoiding hitting a child by swerving into oncoming traffic)
    • Note: Failure to pass the test is not fatal - litigated under RPP standard of care
  36. Duties to act affirmatively/rescue
    • There is no duty to act affirmatively
    •  - No duty to rescue
    • Two exceptions:
    •  - pre-existing relationship: legal/formal)(hotelier/guest)
    •  -  D caused the peril
    • Opting to rescue will be held liable if they do not rescue reasonably
    • Once you undertake an activity, you have to do so as the RPP
  37. Negligent Infliction of Emotional Distress - Near miss cases
    • P must show D’s negligence and
    • D’s negligent act placed P in a zone of physical danger
    • P must have suffered subsequent physical manifestations (ex. heart attack, miscarriage)
  38. Negligent Infliction of Emotional Distress - Bystander case
    • Bystander cases: P must show D’s negligence killed/maimed X and
    • P and X have a close family relationship (spouse, parent, child)
    • Must have seen D injure/kill X
  39. Negligent Infliction of Emotional Distress - Relationship Cases
    • In business relationship, P must show high probability that careless performance will produce emotional distress
    • - Medical patient w/ doctor/lab giving false positive
  40. Res ispa loquitor
    • When the plaintiff lacks information about what the D did wrong (doesn’t know what the actual breach was)
    • P must show:
    •  - The accident is of a type normally associated with negligence
    •  -  An accident of this type would normally be due to the negligence of someone in D’s position (D had control over the injury causing object)
    • Prevents a directed verdict for D
  41. Elements of showing breach of duty
    • Must identify conduct and give a reason why the conduct fell short of the standard of care
    • Once the conduct has been show, there must be a sentence saying
    •  -"Plaintiff will argue that this is unreasonable because…”
  42. Two kinds of causation
    • Factual Cause: "but for" - was D's activity a necessary link in the chain?
    • Proximate Cause: "forseeable" - was the injury forseeable from the negligent conduct
  43. Factual Cause - Merged Cause Test
    • two negligent D’s, two negligent activities merge to cause the injury
    • Apply the Substantial Factor Test: Could each breach have caused the harm by itself?
    • If yes, then D’s are jointly liable
  44. Factual Cause - Unascertained Cause case
    • One injury, two potential tortfeasors equally capable of being the party causing the injury
    • Burden of proof is shifted to D’s to prove by preponderance they are not liable
  45. Proximate Cause
    • After showing duty, breach, and factual cause, the P must show that liability would be fair by not extending the factual causal link too far
    • The limiting factor is the “forseeable” injuries from your negligent conduct
    • Factors: Distance, Time, Number of intervening steps
  46. Proximate Cause - 4 types of cases where we go off precedent
    • Injury is deemed proximate regardless: Intervening medical malpractice
    • Intervening negligent rescue
    • Intervening reaction and protection forces (stampede to avoid danger)
    • A subsequent disease or accident
  47. Affirmative Defense to Negligence - Contributory Negligence
    • D must show P failed to exercise proper case for P’s own safety
    • -Standard of care for yourself: reasonable prudence
    • -You should observe self-protective statutes
    • Result: jury will be instructed to assign each litigant a number that reflects the degree of fault (P’s damages will be reduced accordingly)
  48. Strict liability - domesticated animals
    • no liability for domesticated animal (cow, sheep, dogs)
    • Exception – you have knowledge of violent propensity of a particular animal that causes harm (dog already bites a man, afterwards strict liability)
    • Exception to exception – not to trespasser on your own land
  49. Strict liability - wild animals
    • you keep wild animals, you are strictly liable for injuries
    • safety precautions are irrelevant
  50. Abnormally Dangerous Activities
    • foreseeable risk of serious harm even when reasonable care is being exercised
    • - Cannot be made safe even with reasonable care
    • - Not common in community where D conducts it
    • Examples: blasting, toxic material, radiation
  51. Elements of Strict Liability for Defective Products
    • D is a merchant (routinely deals in goods of this type)
    • Product is defective
    • Product not altered after leaving D's hands
    • P was making a foreseeable use of the product
  52. Strict Liability for Defective Product - "Merchant"
    • Casual sellers are not merchants
    • Service providers are not merchants
    • Commercial Leasor (rental car company can be held liable)
    • Every party in a distribution chain is a merchant (and amenable to a suit)
  53. Strict Liability for Defective Product - Ways to prove product defect
    • Manufacturing Defect: differs from others that came off assembly line in a way that makes it more dangerous than consumers would expect
    • Design Defect: when there is a viable, safer design
    • Information Defect: product has residual risks that cannot be designed out, consumers are unaware of those risks, and the product lacks adequate warnings
  54. Strict Liability for Product Defect - Product not altered
    Element presumed satisfied if moved in ordinary channels of commerce
  55. Affirmative Defense to Strict Liability - Comparative Responsibility
    Stupidity of the plaintiff will reduce the level of liability
  56. Definition of Nuisance
    • Interference with someone’s ability to use and enjoy his property to an unreasonable degree
    • Requirements: Intentionally, negligently, and significant interference
Card Set
CAB Torts
CAB Torts