TORTS - Flashcards on page 1
INTENTIONAL TORTS
A violation of another’s rights by a deliberate act (or
failure to act if under a duty) will full awareness of its nature and consequences.
3 characteristics of all intentional torts are:
1. An act or failure to act - implying voluntary
movement (not spasms or unconscious acts).
2. Intent to do the act (versus intent to commit a
tort).
3. Causation or resulting harm - when the act is a
substantial factor in bringing about the injury.
Note: intent can be shown with wanton conduct, conduct which
shows a desire to cause the consequences, or conduct
substantially certain to result in tortious consequences or
showing a conscious disregard for the rights of others.
TRANSFERRED INTENT
Intent to commit a tort against one person can be
“transferred” to other persons with the following five torts (BAFFT):
1. Assault
2. Battery
3. False imprisonment
4. Trespass to land
5. Trespass to chattels
TORTS - Flashcards on page 2
TORTS AGAINST THE PERSON TORTS AGAINST THE PERSON:
TORTS AGAINST PROPERTY
ECONOMIC TORTS
Assault
Battery
Infliction of Emotional Duress
False imprisonment
Deceit or Fraud
TORTS AGAINST PROPERTY:
Trespass to Land and to Chattels
(Trespass with Severance)
Conversion
ECONOMIC TORTS:
Disparagement or Trade Libel
Interference with Contractual Relations
Interference with Economic Advantage
ASSAULT
__________
ASSAULT
An intentional and volitional act causing reasonable
BATTERY
apprehension of imminent harmful or offensive
touching with the apparent present ability to inflict some harm.
Damages are measured by the degree of indignity suffered.
Both “jokes” and “attempted batteries” can be considered an
assault.
BATTERY
An intentional and volitional harmful or offensive physical
contact identified with the plaintiff’s person. Unconscious
victims can recover.
Consent is always a defense. Damages include physical and
emotional injury.
TORTS - Flashcards on page 3
INFLICTION OF
INTENTIONAL INFLICTION of emotional distress
is
EMOTIONAL DISTRESS
Intentional and Negligent
an act of an outrageous or extreme nature intended to
cause and does cause severe emotional distress.
Conduct must be intentional, shocking, and outrageous.
Rest. 46 and many states allow for recovery if “reckless
conduct” can be shown.
NEGLIGENT INFLICTION of emotional distress usually
requires some actual physical injury to someone, in contrast
to the intentional tort. Plaintiff must be in the “zone of danger”.
Recent Ca. Case (Thing v. LaChusa, ‘89) clarifies Dillon v.
Legg, requiring plaintiff to:
1. be closely related to injured victim
2. present at scene and aware of harm
3. Suffer distress more than a disinterested person (but not
abnormal distress).
FALSE IMPRISONMENT
False imprisonment is an intentional confinement in
a fixed area without legal justification.
No known means of exit (detour is not enough). Means of exit,
if known, must be reasonable and not physically dangerous.
Knowledge of confinement required unless actual injury
occurs.
Negligent confinement is not actionable.
Shopkeepers have a limited privilege, but detention must be
reasonable and based on reasonable suspicion.
Actually aiding in a false arrest is actionable, but not merely
providing false information to police.
TORTS - Flashcards on page 4
DECEIT or FRAUD
reliance
Negligent Misrepresentation
plaintiff is required.
A known false statement with intent to induce
about a material fact. Justifiable reliance by the
Silence can be fraudulent if there is a duty to speak.
Reckless disregard suffices for intent
Remedies include restitution, rescission, or damages.
Negligent misrepresentation is possible if intent cannot be
shown, but if a duty can be found because of a fiduciary
relationship or other professional relationship of trust.
TRESPASS TO LAND
the land of another.
An unauthorized entry by a person or object onto
Can be committed by:
1. entering the land of another,
2. placing an object on another’s land, or
3. inducing another to trespass.
Actual or constructive possession gives the plaintiff
standing.
Mistake is no defense, but necessity could be. If necessity is
private, must pay for damages.
Public travelers can generally enter if the public road
reasonably appears to be impassable (license by necessity).
An implied license is given to police and firemen.
TORTS - Flashcards on page 5
TRESPASS TO CHATTELS
Trespass to Chattels is the interference with
possession or physical condition of another’s personal property.
Actual damage must be shown, but loss of possession, if more
than de minimus, qualifies as actual harm.
Defenses include consent and privilege.
Distinction between trespass to chattels and conversion is
only one of degree.
Trespass with Severance is the tort used with taking minerals,
trees, etc. Fair market value, constructive trust on profits, and
punitive damages are remedies.
CONVERSION
possession of another’s goods.
Interference with the right of ownership or
Lawful possession excuses the tort unless demand for return
is made.
Receivers of stolen property are not lawful possessors and
therefore commit this tort, even if having received in good
faith. (Note: purchasers from merchants or bailees are not
receivers of stolen property).
Remedies include:
1. “forced sale”, amounting to the fair market value
of the goods at the time of the conversion, and
2. “replevin” if plaintiff wants the goods
returned.
3. equitable lien or constructive trust.
TORTS - Flashcards on page 6
DEFENSES TO
INTENTIONAL TORTS
Defenses to intentional torts include:
1. Consent
2. Self-Defense
3. Defense of Others
4. Defense of Property
5. Right of Re-entry
6. Right of Recapture
7. Necessity
8. Privilege or Authority of Law
(Arrest)
CONSENT
Consent is an absolute defense.
Can be express or implied. Implied consent is found by
conduct or by operation of law in life-threatening situations.
Consent is not a defense if:
1. act was beyond the scope of consent,
2. act was a crime,
3. duress of incompetency were present, or
4. plaintiff was uninformed
Note: in a battery action against a doctor, lack of informed
consent amounts to no consent at all.
TORTS - Flashcards on page 7
SELF-DEFENSE
DEFENSE OF OTHERS
SELF-DEFENSE is valid if:
1. a reasonable belief of an immediate threat of
impending harm, and
2. force used was reasonable (reasonably
necessary). Deadly force permitted only with a
serious felony.
DEFENSE OF OTHERS
Rescuer must reasonably believe that the aid is necessary and
that the victim has a right to defend himself.
Most jurisdictions view the defendant as “stepping into the
shoes” of the person defended, prohibiting mistake from being
a defense. Other jurisdictions permit “reasonable mistake” to
be a defense.
DEFENSE OF PROPERTY
RIGHT TO REENTER
RIGHT TO RECAPTURE
and.
DEFENSE OF PROPERTY: Permitted if:
1. a request to stop has been made
2. reasonable force was used.
Deadly force is never permitted to defend property
rights.
RIGHT TO RE-ENTER: Limited to the use of:
1. reasonable force,
2. after demand has been made.
When initial possession was lawful, removal must be by
legal means.
RIGHT OF RECAPTURE: Used to recapture chattels. Same
analysis and right of re-entry.
TORTS - Flashcards on page 8
NECESSITY
A defense when the tort committed was reasonably
and apparently necessary to avoid the threatened injury and threatened injury is
substantially more serious than the tort.
Public Necessity:
If for the public good, an absolute defense.
Private Necessity:
If to protect a private injury, the damage caused must be
compensated.
PRIVILEGE or
POLICE: privilege or authority of law is always a defense
AUTHORITY OF LAW
for police when arrest is involved with a valid
warrant or a good faith belief in the validity of the warrant.
Arrests without warrants valid only if probable cause to
believe he committed a felony.
Misdemeanor arrests without warrants are proper if done in
“fresh pursuit”, if act involved is a breach of peace, and if
done in officer’s presence.
PRIVATE CITIZENS are subject to same tests, but private
citizens must be right.
Reasonable force is required. Deadly force only with a
serious felony (murder or rape) and where delay would create
risk to others.
TORTS - Flashcards on page 9
DEFAMATION
A publication of a false and defamatory statement of
fact of and concerning the plaintiff to a third person resulting in injury to reputation.
Plaintiffs include living persons and organizations. Group defamation is possible if the
group is small.
Libel is written defamation. Slander is oral. Libel can be
actionable “per se” (no need to show special harm or damages)
if no need to go beyond face of writing. Otherwise, special
harm or damages must be shown.
Slander per se: statements about lack of chastity in a woman
(or serious sexual misconduct), loathsome diseases, crimes of
moral turpitude, or disparagement in connection with business,
trade, profession, or office.
Supreme Court held that burden of proving falsity is on the
plaintiff (Phil. Newspapers, Inc. v. Hepps) whenever the
subject matter of the statement deals with a matter of public
concern.
DEFAMATION
(Damages)
Special damages (pecuniary in nature) must be proven
unless there is libel per se or slander per se.
Punitive damages may be awarded if malice can be shown.
Constitutional malice is knowledgeable of falsehood or reckless
disregard. State malice is hatred, ill-will, or spite.
Retractions serve only to mitigate damages.
Gertz v. Welch requires a private plaintiff to prove actual
damage unless constitutional malice is proven, and some
degree of culpability for medial defendants. Gertz applies also
whenever the subject matter of the defamatory statement is a
matter of public interest (Dun & Bradstreet).
TORTS - Flashcards on page 10
DEFENSES TO DEFAMATION Truth is an absolute defense. But note: since plaintiff
has burden of proving falsity with media defendants or when the subject matter is of public
interest, failure to prove falsity by plaintiff is, in effect, a failure to prove one of the elements
of defamation.
Hint: when truth is present, consider an action for invasion of
privacy (e.g., false light, disclosure of private facts).
Consent is a defense
Privilege is the most likely defense. There are two degrees of
privilege, absolute and qualified.
ABSOLUTE PRIVILEGE
Absolute Privilege arises in four contexts:
1. Statements made in the course of judicial
proceedings.
2. Statements made by legislators in the course of
legislative proceedings.
3. Public statements made by high government
officials, and
4. Confidential communications between married
persons.
TORTS - Flashcards on page 11
STATE QUALIFIED PRIVILEGE Traditionally, states recognize a qualified privilege
for:
1. Private communications which are made to an
interested party or made because of a legal or
moral
duty to speak on behalf of third parties; &
2. Public communications, such as reports on
public proceedings, literary and artistic criticism,
“fair comment” or “opinion” (but note
Milkovich v. Lorain Journal, ‘90, false statement
fact disguised as opinion is actionable).
and
of
The privilege for private communications can be defeated when
the communication goes beyond the interest protected or which
show personal malice.
A showing of state or personal malice always defeats a
qualified privilege. Personal malice is hatred, ill-will, or spite.
CONSTITUTIONAL
statements
QUALIFIED PRIVILEGE
Public Officials & Figures
There is a constitutional qualified privilege for
about public officials and public figures.
Public Officials must show constitutional malice to overcome
the qualified privilege. Constitutional malice is knowing
falsehood or reckless disregard for the truth (Times v.
Sullivan).
Public Figures must also show constitutional malice (Curtis
Publishing v. Butts). 2 types of public figures:
1. all purpose (e.g., Johnny Carson), and
2. voluntary public figure (limited purpose public
figure) - one who voluntarily injects herself in a
public controversy to resolve it.
Note: when no constitutional dimension involved (private
plaintiff and defendant), the level of fault is determined by state
law (usually negligence).
TORTS - Flashcards on page 12
INVASION OF PRIVACY
There are four invasion of privacy torts:
1. Intrusion
2. Appropriation of Personality
3. Disclosure of Private Facts
4. False Light
Only individuals can be plaintiffs. The corresponding action
for a corporation is disparagement or trade libel.
Note: constitutional malice may be required to be shown if 1st
amendment issues are present (public figures or officials,
matters of public interest). Injunctive relief often raises 1st
Amendment protections.
INTRUSION
affairs
----------------------objectionable
APPROPRIATION
intrusion
OF PERSONALITY
INTRUSION is the act of intruding in the private
or seclusion of the plaintiff which would be
(highly offensive) to a reasonable person. The
must be in plaintiff’s private domain.
Examples include: peeping, opening mail, reading a
diary.
APPROPRIATION OF PERSONALITY is the use of a
plaintiff’s picture or name (without consent) for some
commercial benefit.
Note however, that the media can use pictures as part of a news
story.
TORTS - Flashcards on page 13
DISCLOSURE OF
PRIVATE FACTS
person
FALSE LIGHT
DISCLOSURE OF PRIVATE FACTS is the public
disclosure of private facts such that a reasonable
of ordinary sensibilities would be highly offended.
Must also show that plaintiff was actually offended.
FALSE LIGHT is the publication of facts which place the
plaintiff in a false light to the general public.
Attributing to the plaintiff views that are not held or acts that
were not done are the usual examples.
Note: if public interest or legitimate public concern is
involved, malice must be shown.
PRIVACY TORTS
Causation & Defenses
CAUSATION
Cause-in-fact and proximate cause must be proven for
invasion of privacy torts. Causation usually involves
communication to the public at large or to a large number of
people.
DEFENSES
Consent and privilege because of newsworthiness or public
figure interest are defenses (1st A. could apply).
Truth is not a defense (except for false light).
Always consider Defamation and Infliction of Emotional
Distress with invasion of privacy torts.
TORTS - Flashcards on page 14
DISPARAGEMENT or
Disparagement or trade libel is the publication of a
TRADE LIBEL
statement which is false and injurious and causes
actual economic injury for the plaintiff with some third party. Plaintiffs are corporations and
other entities.
Causation must be actual and proximate, but actual damages
must also be proven.
Truth and privilege are defenses.
Privilege arises in the same context as in defamation. Also,
general statement of comparative quality made by a
competitor is a defense.
INTERFERENCE with 3rd party interference with the actual performance of an
CONTRACTUAL RELATIONS existent contract.
Actual breach is not necessary; increased difficulty or
performance is sufficient.
Remedies such as injunction, consequential, and punitive
damages should be considered.
Privilege is the proper defense if defendant can show that he
is protecting his own legitimate interest, or through proper
means, is giving honest advice or acting for the social good.
“Honest persuasion” are the key words for such a defense, as
opposed to lies and bribery.
TORTS - Flashcards on page 15
INTERFERENCE with
Used when no actual contract can be shown.
PROPSPECTIVE ADVANTAGE
Remedies and defenses are the same as interference with
contractual relations.
Establishing the amount of damages will be the problem.
Damages are not recoverable if “too speculative”.
JUDICIAL PROCESS TORTS
or
Malicious Prosecution
without
Abuse of Process
raise Rule 11 sanctions on essays).
MALICIOUS PROSECUTION occurs when criminal
civil proceedings are initiated against the plaintiff
probable cause and with malice or evil intent. (Note:
The legal proceedings must have been terminated in favor of
the tort plaintiff and must have resulted in actual damage to
him. Settlement or compromise is not sufficient termination.
Punitive damages are possible.
ABUSE OF PROCESS is the use of legal process for ulterior
or improper motives.
Distinguishable from malicious prosecution in that lack of
probable cause need not be shown, nor does the action have
to terminate favorably for the tort plaintiff. Examples:
attaching beyond what is owed or recovering a judgement
already paid.
TORTS - Flashcards on page 16
NUISANCE
Nuisance involves a substantial and unreasonable
interference with the use and enjoyment of one’s land. Distinguished from trespass
because no physical entry or intent is needed.
Interference or harm must be unreasonable, implying
inconvenience or annoyance to a normal person. The social
utility of the act can serve as a defense to a permanent
injunction (Boomer v. Atlantic Cement), but not in Ca.
Nuisances can be private or public. An individual has
standing to sue for a public nuisance only if he can show a
special harm “different in kind” from the general public.
Remedies for nuisance include injunction and damages.
Equitable defenses apply.
NEGLIGENCE
Negligence is an act or failure to act which breaches a
legal duty of care owed to another, resulting in injury to the other’s person or property.
Four elements must be shown:
1. Duty of Care owed Plaintiff,
2. Breach of the duty,
3. Causation (actual and proximate), and
4. Resulting Damages.
Likely defenses include:
Contributory Negligence
Comparative Negligence
Assumption of Risk
TORTS - Flashcards on page 17
FORESEEABLE PLAINTIFFS
reasonably foreseeable person.
For a duty of care to arise, the plaintiff must be a
If a reasonable person could not foresee injury to anyone by the
conduct engaged in, no duty of care is owed.
If it is reasonably foreseeable that someone other than the
plaintiff could be injured, Palsgraf established two views on
duty owed:
Andrews view: duty of care is owed to all members of
society.
Cardozo view: duty of care is owed only to the class of
person in the “zone of danger”.
Rescuers are always deemed foreseeable plaintiffs since
“danger invites rescue”.
DUTY OF CARE
duty, such as for bystanders).
The duty involved must be a legal duty (not a moral
In all human activity there is a general legal duty to act as an
ordinary reasonably prudent person. This is known as the
duty of reasonable care. This duty of reasonable care is
implemented by the reasonable man standard of conduct.
Negligence per se arises when a duty is created by statute, and
defendant violates the statute. However, the statute must be:
1. safety related, and
2. tort plaintiff must be of the class of persons
intended to be protected by the statute from the
type of injury the statute was designed to
prevent.
TORTS - Flashcards on page 18
STANDARDS OF CONDUCT
a
The Reasonable Person
under similar circumstances.
Every person must act with the amount of care that
reasonably careful and prudent adult would use
Defendant’s conduct should be tested against that of a person
with average mental abilities, implying knowledge of the
consequences of one’s actions.
Special standards of conduct for people in certain instances are
created to judge whether the duty of care has been fulfilled.
Note: California has abolished the common law distinctions
of differing standards of conduct in Rowland v. Christian ‘69,
replacing them with ordinary negligence considerations foreseeability and risk.
STANDARDS OF CONDUCT
To trespassers: few duties to unknown trespassers,
Owners/Occupiers of Land
only intentional, reckless, or willful conduct is
(To Trespassers)
actionable, such as setting a trap.
ATTRACTIVE NUISANCE
To known or discovered trespassers, owner owes a duty to
warn of concealed, unsafe, or artificial conditions which are
dangerous.
ATTRACTIVE NUISANCE (Rest.2nd 339) makes
landowner liable if all 5 requirements are present:
1. Children likely to trespass,
2. Unreasonable danger,
3. Children unable to realize the risk,
4. Utility of danger outweighed by risk,
5. Lack of reasonable care by owner to eliminate the
danger.
Note: Ca. Trend to hold landowners owe no duty to recreational
trespassers.
TORTS - Flashcards on page 19
STANDARDS OF CONDUCT
To Licensees: duty to warn of known dangers.
Owners/Occupiers of Land
(To Licensees & Invitees) A licensee enters the land with the owner’s permission for the
licensee’s own benefit. Social guests, salesmen, policemen, and firemen are licensees.
To Invitees: the duty to warn of known dangers and duty to
discover and make safe dangerous conditions. Note: duty is
limited to the portion of the premises to which invitation
extends.
Invitees are persons who come on the land in response to an
express or implied invitation for the owner’s benefit (e.g.,
business relationship, employees, independent contractors, the
public on public land).
STANDARDS OF CONDUCT
Children
Children are held to the standard of a child of like age,
education, intelligence, and experience.
A more subjective test, and a “slow” child will be tested against
other “slow” children.
Trend is to hold children engaging in adult or dangerous
activities (e.g., driving snowmobiles or motorcycles) to same
standard of care as an adult.
TORTS - Flashcards on page 20
STANDARDS OF CONDUCT
Drivers
defects
Guest Statutes
At common law, guests seen as licensees, and drivers
owed guest passengers a duty to warn of known
and to exercise reasonable care.
Many jurisdictions now have “guest statutes”, permitting only
gross, wanton, or willful conduct by the driver to be actionable.
Carpoolers, who share expenses are seen as passengers, not
guests. Drivers owe such passengers a duty of ordinary care.
The guest statute in Ca. was held unconstitutional in Menlo
v. Brown, decided after Rowland v. Christian. therefore,
reasonable care and foreseeability of risk are the factors.
Hint: always consider a contributory negligence defense on an
essay question.
COMMON CARRIERS
care
PROFESSIONALS
them
INNKEEPERS
intentional torts.
COMMON CARRIERS are held to the strictest of
standards. The slightest degree of negligence makes
responsible. Also, can more easily commit
PROFESSIONALS: doctors are required to exercise that
degree of knowledge and skill possessed by other members of
the profession in the same or similar localities. Specialists are
held to a higher (national) standard. In an attorney malpractice
action, client must also show that the underlying action lost by
attorney’s malpractice would have been successful (an actual
cause issue).
INNKEEPERS and other public establishment owners have a
duty to use reasonable care to aid their guests and to prevent
injury to them from third persons.
TORTS - Flashcards on page 21
RESCUERS
No duty to rescue others in peril unless a duty is
created by contact, special relationship, or defendant’s own negligence caused the peril.
Once a rescue is attempted it must be done with ordinary care
and must not be abandoned if it would result in the victim
being in a worse position. Rescuers must act reasonably in
light of the emergency situation.
“Good Samaritan” statutes limit liability of doctors and
nurses who voluntarily render assistance. Plaintiff must show
gross negligence.
“Danger invites rescue”, and rescuer can sue person creating a
dangerous situation. Rescuers are always seen as foreseeable
plaintiffs. Also, rescuer’s intervening negligence will not
break the chain of proximate causation.
BREACH OF DUTY
the acceptable standards of care.
A breach is established by conduct which falls below
Breaches can be classified as acts of:
nonfeasance (not performing a legal duty which results
in injury),
misfeasance (improperly performing an act which one
has a right to perform), and
Malfeasance (doing an act which one has a legal duty
to refrain from doing).
Ultimately, a breach of the duty of care arises whenever
conduct is unreasonable; meaning that the risk of harm is
greater than the social utility of the conduct causing harm
TORTS - Flashcards on page 22
RES IPSA LOQUITUR
Used as a form of circumstantial evidence in
situations where the injury itself indicates or tends to imply that someone else has
breached a duty.
May be applied when the thing causing injury:
1. is under the exclusive control and
management of defendant, and
2. the injury would not ordinarily have happened
if ordinary care in the management and control of
it
had been used, and
3. plaintiff did not contribute to his injury.
When these factors can be shown, the doctrine of res ipsa
loquitur creates a rebuttable inference of negligence, meaning
that the burden of producing evidence is satisfied and a directed
verdict is proper if no contrary evidence introduced. Doctrine
not applicable with multiple defendants.
CAUSE - IN - FACT
“Actual cause” or “cause-in-fact” is established by the but
for and substantial factor tests.
If plaintiff would not have been injured “but for” the
defendant’s negligence, the conduct is the actual cause of the
injury.
If defendant’s conduct is one of two acts, each of which would
cause the injury, the defendant will be liable if his conduct was
a “substantial factor”.
If there is more than one defendant who could be the actual
cause, the burden is on each defendant to prove he was not
the cause (Summers v. Tice; Ybarra).
TORTS - Flashcards on page 23
PROXIMATE CAUSE
A person is liable when intervening forces cause or
add to injuries if the intervening forces are foreseeable.
Dependent Intervening Forces are foreseeable intervening
forces set in motion by defendant’s acts. Do not break the
chain of causation.
Examples: reflex reactions, rescuers, and subsequent
injuries in which original injury was a substantial
contributing factor.
Independent Intervening Forces which are not foreseeable
are most often seen as superseding causes which break the
chain of causation.
Examples: extraordinary natural forces (acts of God),
3rd person’s intentional, criminal, or extremely
negligent conduct. Note, criminal acts are sometimes
foreseeable.
DAMAGES FOR NEGLIGENCE In negligence actions, damages are not presumed.
Actual harm or injury must be proven.
Typical damages include medical expenses, lost earnings, pain
and suffering, and loss of future earnings.
Property injury gives damages in the form of cost of repair
or the fair market value of the property if the property is
destroyed or irreparably damaged.
Plaintiffs have a duty to mitigate damages.
Collateral source rule provides that damages will not be
reduced or mitigated by reason of any benefits received by the
plaintiff from collateral sources, such as sick pay or health
insurance.
TORTS - Flashcards on page 24
CONTRIBUTORY NEGLIGENCE Plaintiff’s own failure to use the care of a reasonably
prudent person to protect himself or his property which
contributes to his own damage. (Or plaintiff’s violation of
a safety-related statute).
A complete defense to negligence in states which adopt this
doctrine.
Not applicable to:
1. intentional torts,
2. willful or wanton misconduct, or
3. conduct by a defendant which involves a violation of
a statute designed to protect a particular class of
plaintiffs from their own incapacity or lack of
judgement (e.g., children).
LAST CLEAR CHANCE
Last clear chance is a doctrine developed to avoid the
harsh result of contributory negligence as a total defense.
Where defendant had the last clear chance (knowledge and
ability to avoid the accident) and failed to do so, the plaintiff
will not be barred from recovery.
Examples: Plaintiff left his ass (donkey) blocking the road.
Defendant negligently hits donkey while driving his cart.
Plaintiff can recover (Davis v. Mann, 1842).
TORTS - Flashcards on page 25
COMPARATIVE NEGLIGENCE Comparative negligence permits a contributorily
negligent party to recover a percentage of his damages based on the degree of his own
culpability or fault. Adopted in many states.
“Pure” comparative negligence jurisdictions (including Ca.,
Li v. Yellow Cab, ‘75) permit proportional recovery even if
plaintiff is more than 50% negligent. Other jurisdictions
prevent recovery if plaintiff is 50% or more negligent.
Note: doctrine of “last clear chance” is not applicable in
comparative negligence jurisdictions.
Recovery is calculated as full amount of damages less the
percentage of fault of plaintiff. This amount is recoverable in
full from any co-defendant. However, plaintiff is not entitled to
a double recovery.
ASSUMPTION OF RISK
A complete defense to a tort action, but most often
used in products liability situations.
Arises when plaintiff, with full knowledge of the risk,
involved, intentionally and voluntarily consents to take the
risk involved in defendant’s conduct.
Risk can be expressly assumed, or impliedly assumed
(participating in risky spectator events).
In negligence actions, most likely used when plaintiff and
defendant are in a contractual relationship.
Does not apply in situations where there is no available
alternative, where fraud, force, or emergency is involved, or
where a statute has been enacted to protect a particular class.
In comparative negligence jurisdictions, often results in
proportional awards.
TORTS - Flashcards on page 26
STRICT LIABILITY
regardless of fault or negligence.
Acts or omissions which give rise to liability
Two types of strict liability torts:
1. ultra-hazardous or abnormally dangerous
activities, and
2. injuries caused by animals.
ULTRA HAZARDOUS or
dangerous
ABNORMALLY DANGEROUS
ACTIVITIES
Strict liability for maintaining an abnormally
condition on property or engaging in an activity which
involves a high degree of risk of harm to others.
Rest. 2d 520 lists 6 factors in determining abnormally
dangerous activity:
1. high degree of risk,
2. risk of serious harm,
3. cannot be eliminated even by due care,
4. not a matter of common usage,
5. inappropriateness to the place where the activity
is carried on, and
6. value of activity outweighed by its danger.
Assumption of risk is the only legitimate defense, but
unforeseeable forces or intentional acts of third parties can
affect causation. Proximate cause must be shown.
TORTS - Flashcards on page 27
ANIMALS
situations.
Strict liability for harm caused by animals in certain
Animals likely to roam and do damage must be restrained
(livestock).
Wild animals and domestic animals with known dangerous
propensities beget strict liability. Note: the “every dog has
one free bite” rule has been changed by statute in many
jurisdictions.
Assumption of risk is the only legitimate defense.
Basic rule: strict liability for harm caused if it is the kind of
harm which makes the animal abnormally dangerous (the
harm you expect the animal to do).
DEFECTIVE PRODUCTS
With a manufactured product which causes injury,
consider at least four causes of action:
1. Negligence (in design, manufacture, inspection,
or warning). No privity required (MacPherson).
2. Misrepresentation [402(B)] and Breach of
Express Warranty.
3. Products Liability [402(A)].
4. Implied Warranty (U.C.C. 2-314).
Note: for products cause of action, actual and proximate cause
issues are the same as for a negligence action. Privity is only an
issue in warranty actions.
TORTS - Flashcards on page 28
MISREPRESENTATION and
PUBLIC MISREPRESENTATION
EXPRESS WARRANTY
Any false statement of a material fact made by label or
advertisement is actionable under Rest. 2d 402(B). Note: false
labeling must be distinguished from “inadequate labeling”
under 402 (A).
Particular reliance need not be shown.
Privity is not necessary under 402(B).
Assumption of risk and misuse of product are the only
defenses.
EXPRESS WARRANTY, U.C.C. 2-313
Any affirmation of fact or promise is an express warranty and
cannot be disclaimed. Any foreseeable user is usually
permitted to sue if physical injury occurs. Privity is required,
but note the 3 versions under U.C.C. 2-318.
PRODUCTS LIABILITY
402(A) makes all manufactures and sellers in the
distribution chain liable if a product is so defective as to be unreasonably dangerous.
Defect could be in the manufacture or design of the product,
or due to inadequate labeling. Doctrine is based on consumer
expectation test. Ca. Eliminates the need to show that the
product is unreasonably dangerous.
Privity is not required; any person (bystander or foreseeable
user) injured by the product can sue.
If only economic loss ensues, some states limit the cause of
action to breach of warranty (see Greenman v. Yuba Products
in Ca.). Component suppliers are liable unless the
components are put to a specialized use for which supplier was
not aware.
TORTS - Flashcards on page 29
PRODUCTS LIABILITY
Causation,
Damages, Defenses
Causation and damages are the same as discussed in
negligence. Both actual and proximate cause must be
shown.
Punitive damages are permitted for failure to warn of known
dangers and willful and wanton disregard for consumer
safety.
Disclaimers are ineffective.
Assumption of risk and misuse of product are the only valid
defenses, assuming the consumer knew of the danger and acted
unreasonably.
IMPLIED WARRANTY
U.C.C. 2-314 provides for an implied warranty of
(Merchantability)
merchantability for all goods sold by merchants.
Products must be safe, of fair and average quality, properly packaged, and fit for their
ordinary purposes.
The implied warranty can be disclaimed by conspicuous
language mentioning merchantability, but the trend is to
make such disclaimers ineffective for consumer purchasers.
Privity is required, but 2-318 has three alternate versions
ranging from very broad to very narrow. Narrowest version
permits buyer’s family and household guests to bring suit.
Plaintiff must show that breach was the proximate cause of
injury. Assumption of risk, misuse, failure to follow directions,
and failure to give notice are all defenses.
TORTS - Flashcards on page 30
IMPLIED WARRANTY
fitness
(Particular Purpose)
U.C.C. 2-315 provides for an implied warranty of
for particular purpose.
Arises when any seller (even a non-merchant) knows that the
buyer is relying on the seller’s skill and knowledge to supply
a product for a particular purpose (e.g., gear for mountain
climbing).
All other rules relating to the warranty of merchantability
apply, including privity requirements, defenses, disclaimers,
and damages.
IMMUNITY
At common law, various individuals and groups
enjoyed immunity from suit in certain situations.
Modern trend is to abolish such immunities.
Charitable immunity has been abolished.
Husband-wife immunity is breaking down, as is parent-child.
Siblings can always sue each other.
State and federal governments, traditionally immune from
suit, can now be sued for the negligent acts of employees,
under various federal and state statutes. Governmental agencies
are also liable if employee’s act was more than a discretionary
act, if employee violated an affirmative duty or rule, or if
employee increased the risk of plaintiff’s harm. Municipalities
can be sued when engaging in functions not exclusively
governmental.
TORTS - Flashcards on page 31
SURVIVAL &
common
DEATH STATUTES
Wrongful death actions were not permitted under
law.
Surviving family members can now maintain actions in most
states by statute under one of two theories.
1. Survival statutes: permit tort claims to survive
death and vest in the decedent’s estate, giving rise
claims for pain and suffering, medical
expenses, loss of earnings. All defenses are
available.
to
2. Death statutes: permit those who would have
received support from the decedent to maintain
their
own action for loss of support. All defenses
are
available.
INJURIES TO
SPOUSES & CHILDREN
Parents may recover for injuries to children both for
expenses and for loss of services.
Husbands could traditionally sue for loss of wife’s services,
including loss of consortium. The modern trend is to permit
wives that same cause of action.
Alienation of affection is a declining doctrine.
TORTS - Flashcards on page 32
MULTIPLE DEFENDANTS
Joint and several liability usually attaches to tort
action. People acting in concert may be sued jointly or individually, and each person is
responsible for all the damage to plaintiff. Plaintiff can receive only one satisfaction.
Damages are divisible if tortfeasor’s actions are independent
and it is possible to identify the portion of injuries caused by
each.
Contribution (permitted in half the states) requires defendants
to contribute proportionally according to the number of
defendants. Not usually permitted for intentional torts.
Comparative contribution requires defendants to contribute
proportionally according to the fault attributed to each
defendant.
Indemnification is sought by a defendant who wishes full
compensation from another.
RELEASES
Releases to one person discharge all defendants at
common law, but a “covenant not to sue” releases only that particular defendant.
Releases are narrowly construed.
Unconscionability can always be tried as a last ditch effort to
invalidate a release.
TORTS - Flashcards on page 33
VICARIOUS LIABILITY
Vicarious liability is a doctrine used to impose tort
liability on someone in addition to the actual tortfeasor.
Imposed when a special relationship exists between
the
tortfeasor and the person to whom liability is imputed.
The typical relationships which give rise to vicarious liability
include:
1. employees (respondeat superior),
2. partnerships and joint ventures,
3. entrustment of automobiles,
4. parent-child relationships (sometimes),
5. Non-delegable duties.
RESPONDEAT SUPERIOR
of the employee/agent if:
Employers are held responsible for the torts
1. Employee is a servant, meaning that the
employer has the right to control the physical
conduct of the employee, and
2. Employee is acting within the scope of
employment. Distinguish detour (a slight
variation from employee’s assigned task) from
frolic (activity varying significantly from the
assigned task). No vicarious liability for frolic.
Employers not responsible for intentional torts of employees
unless force was required by the job.
Tavern owners could be liable to 3rd parties for injuries caused
by intoxicated patrons under modern “dram shop” acts.
TORTS - Flashcards on page 33
INDEPENDENT CONTRACTORS Respondeat superior will not apply to employees
classified as independent contractors. Test for
independent contractor is:
physical control,
length of employment,
manner of payment (weekly, monthly),
nature of the task.
Exceptions: vicarious liability for acts of independent
contractors permitted with:
1. Ultra-hazardous activities,
2. landlord duty to make safe
3. public works and construction, and
4. negligent selection of independent contractor.
PARTNERSHIP &
in
JOINT VENTURE
PARTNERSHIP: formed with an agreement to engage
activity together and to share in profits and losses.
Partners are liable for the torts of other partners
committed in furtherance of the partnership.
JOINT VENTURE: a partnership with a limited scope and
time period. There must be a “common purpose” and a
“mutual right of control”.
Each person in the joint venture will be vicariously
liable for the torts of the other partners committed in
the scope and course of the venture.
TORTS - Flashcards on page 34
ENTRUSTMENT OF AUTOS
Owners of automobiles are not generally held
vicariously liable for torts committed by persons using the vehicle.
Negligent entrustment is a viable cause of action if the owner
has reason to know of prior reckless conduct of the driver.
Owners can also be vicariously liable in states which adopt
special liability statutes such as:
Family Car Doctrine: owners vicariously liable when
members of the immediate family or household use the
car.
Permissive Use Statutes: owner liable when anyone
driving with consent commits a tort.
PARENT-CHILD RELATIONSHIP
committed by their children.
Parents are not vicariously liable for torts
Exception: when the child is actually an agent of the
parent (doing a family errand).
Parents can be held liable for their own negligence
by giving a child a dangerous instrument
without proper guidance, instruction, or supervision.
Parents can also be liable for failure to warn of
known dangerous propensities of their children.
-end-