Term
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Definition
- Trespass to Land
- Trespass to Chattels
- Conversion |
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Term
Intentional torts to the person |
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Definition
- Battery
- Assault
- False Imprisonment
- Intentional Infliction of Emtional Distress |
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Term
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Definition
- Harmful or offensive contact
- To plaintiff's person
- Intent
- Causation |
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Term
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Definition
- Act by D creating reasonable apprehension (knowledge)
- Of immediate harmful or offensive contact
- Intent
- Causation |
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Term
Effect of words to create assault |
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Definition
| Words alone are not sufficient; must be coupled with conduct; words also can negate apprehension |
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Term
Elements of False Imprisonment |
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Definition
- An act/omission by D that confines or restrains
- To a bounded area (no reasonable means of escape known to plaintiff)
- Intent
- Causation |
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Term
To claim false imprisonment, plaintiff must show (2 choices) |
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Definition
- Aware of the imprisonment
OR
- Suffered conrete harm |
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Term
Elements of Intentional Infliction of Emotional Distress (IIED) |
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Definition
- Act by D amounting to extreme and outrageous conduct
- Intent or Recklessness
- Causation AND
- Damages: severe emotional distress (only Intentional Tort that requires damages) |
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Term
Non-outrageous conduct that can rise to outrageous conduct |
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Definition
- conduct continuous/repetitive
- D as an inkeeper/common carrier
- Plaintiff is a member of a fragile class (ie- elderly, children) |
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Term
Causation of IIED in bystander cases: plaintiff may recover by showing (3) |
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Definition
1. Present when the injury occurred
2. Close relative to injured person AND 3. D knew facts 1.&2. |
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Term
Super-sensitive Plaintiff - care owed? |
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Definition
| We do NOT take these into account UNLESS D knows of the sensitivity |
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Term
Incapacitated Defendant - still liable for intentional tort? |
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Definition
| YES! Everyone is liable for intentional torts - no exceptions. |
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Term
Transfered Intent - how can it be transfered? |
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Definition
1) Tort to tort -D commits a different tort against intended person
2) person to person - D commits same tort against a different person or a different tort against a different person |
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Term
Substantial Certainty = to intent? |
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Definition
| Yes - if D knew with substantial certainty that something will happen, they had intent. |
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Term
Shopkeeper's privilege defense to False Imprisonment - 3 elements |
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Definition
Store owner can detain suspected shoplifters if:
1) Reasonable belief as to the theft
2) Reasonable Manner of detention
3) Detention for a reasonable period of time |
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Term
| Common Carriers and Innkeepers have enhanced duty to whom? |
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Definition
| Passengers and Guests ONLY! |
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Term
Elements of Trespass to Land |
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Definition
- Physical invasion of plaintiff's real property
- Intent (to enter that particular land)
- Causation |
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Term
| Trespass of intangible matter (i.e. sound, smell) more likely to give rise to claim of |
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Definition
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Term
| Property re: trespass includes |
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Definition
| Above, below and on P's land for reasonable distance |
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Term
| Elements of Trespass to Chattels |
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Definition
- An act by D that interfers with Plaintiff's right of possession
- Intent
- Causation
- Damages |
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Term
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Definition
- Act by D that interfers with plaintiff's right of possession
- Interefence is Serious enough to require D pay full value for chattel
- Intent
- Causation |
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Term
| Trespass to Chattels vs. Conversion |
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Definition
some damage = trespass to chattels
a lot of damage = conversion |
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Term
| Defenses to intentional torts (3) |
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Definition
1. Consent
2. Self-defense
3. Necessity |
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Term
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Definition
1. Did P have capacity to consent?
2. Valid? - could be invalid from fraud, duress, mistake
3. Did D stay within the bounds of the consent? |
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Term
| Self Defense Requirements (3) |
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Definition
1) Timing Requirement
2) Reasonable Belief that tort will be or is being committed
3) Appropriate Amt. of Force |
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Term
| Self Defense Timing Requirement |
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Definition
| D must show that the tort is either now occurring or about to occur. |
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Term
| Self Defense Reasonable Belief Requirement |
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Definition
| A reasonable person under the circumstances would believe that the tort is or will be committed (objective) and honestly believes it (subjective) |
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Term
Duty to Retreat?
IL and Modern Rules |
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Definition
IL rule = no duty to retreat
Mod Rule = there is a duty to retreat before using serious force if you (1) can do it safely and (2) are not in your own home |
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Term
| Self Defense Amount of Force |
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Definition
May use that force which reasonably appears necessary to prevent the harm.
Deadly Force only to stop deadly force!!! |
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Term
| Defense of Property - Amount of force? |
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Definition
| may use reasonable force but no death or serious bodily harm allowed. |
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Term
| Self-defense of property and hot pursuit |
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Definition
| May use force in hot pursuit of another who has tortiously dispossed the owner of chattels - viewed as still being committed |
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Term
| Defense of necessity is limited to what kind of torts? |
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Definition
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Term
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Definition
| Arises when D invades plaintiff's property in an emergency to protect community as a whole or a significant group of people - NO LIABILITY EVER - this is an absolute privilege. |
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Term
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Definition
| D invades plaintiff's property in an emergency to protect an interest of his own |
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Term
| Private Necessity - liability for damages |
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Definition
1. Must pay for actual damages caused
2. Immunitiy from nominal/punitive damages |
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Term
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Definition
- Defamtory langugage
- "Of or concerning plaintiff"
- Publication
- Damage to plaintiff's rep. |
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Term
| If defamation involves a matter of Public Concern? |
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Definition
- P must prove the statement is FALSE
- D must have been at fault |
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Term
| Proving Fault in Defamation (pub figure? private figure?) |
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Definition
- public figure - P must prove "malice" = intentional or reckless disregard for the truth
- private figure - P has to prove negligent tortious conduct and actual damages |
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Term
| Defenses to Defamation (3) |
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Definition
1) Consent
2) Truth (not needed if 1st amend case)
3) Absolute and Qualified Privileges |
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Term
| Absolute Privileges in Defamation? |
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Definition
1) spousal communication
2) branches of gov't
- judicial is most tested (anything said during litigation reasonably related is privileged) |
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Term
| Qualified privilege in defamation? |
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Definition
- types of communication that we want to encourage
- ie - written references, book reviews, articles on pub. institutions etc.
- CAN BE LOST IF ABUSED - no bad faith, knowledge of falsity, malice, or excessive publication |
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Term
| Invasion of Right to Privacy - (4) types |
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Definition
1. Appropriation of Plaintiff's picture of name
2. Intrusion upon plaintiff's affairs or seclusion
3. Publication of facts placing plaintiff in false light
4. Public disclosure of private facts about plaintiff |
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Term
| Appropriation of Plaintiff's picture of name |
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Definition
| Unathorized use for defendant's commercial advantage |
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Term
| Intrusion upon plaintiff's affairs or seclusion (3 elements) |
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Definition
1) act of intrusion into P's seclusion
2) intrusion must be highly offensive
3) thing intruded on must actually be private |
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Term
| Publication of facts placing plaintiff in false light (3 elements) |
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Definition
1) wide dissemination
2) false light is highly offensive
3) intentional or reckless conduct |
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Term
| Public disclosure of private facts about plaintiff (3 elements) |
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Definition
1) statement must be true
2) must be private facts
3) must be highly objectionable and the reasonable person would object to to the wide dissemination of these facts. |
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Term
| Defenses to invasion of privacy (2) |
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Definition
1) consent
2) Absolute and Qualified Privileges (same as with defamation) |
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Term
| Intentional Misrepresentation (6 elements) |
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Definition
1) affirmative misrepresentation of fact, not opinion (silence normally not enough)
2) scienter = "malice"
3) intent to induce reliance
4) justifiable reliance - (w/ an opinion, reliance is only justified if D has a superior skill)
5) causation
6) damages!! |
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Term
| Defenses to Intentional Misrepresentation? |
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Definition
| NO DEFENSES! If P makes the PF case, P wins. |
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Term
| Negligent Misrepresentation |
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Definition
same as intentional except negligence is the intent standard (not scienter/malice)
- MUST BE IN A COMMERCIAL SETTING |
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Term
| Interference with business relations (4 elements) |
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Definition
1) Valid K relationship b/w P and 3rd party (existing relationship P wins more)
2) D's knowledge of the relationship
3) D intentionally and improperly interference by D that includes a breach or termination of the K
4) Damages |
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Term
| Defenses to Interference with Business Relationships |
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Definition
Privilege - conduct is privileged when it is a proper attempt to obtain business for the D. To tell if it is privileged, look to
1) D's conduct - the harsher the conduct, the harder to get privilege
2) relationship between the parties - if P and D are competitors, the conduct will be privileged. If D and 3rd party are in a privileged relationship, then conduct will be privileged (relatives, financial advisor etc.) |
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Term
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Definition
- Duty
- Breach
- Causation
- Damages |
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Term
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Definition
1) a foreseeable P
2) standard of care owed |
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Term
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Definition
| any person within the zone of danger. |
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Term
| Standard of Care - default |
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Definition
| Reasonable person - gotta do as a good as a reasonably prudent person |
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Term
| Children Ds - special standard of care? |
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Definition
| Of like age, education, intelligence, and experience; UNLESS engaged in adult activities (note under 4 years old cannot be negligent) |
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Term
| Disabled D - standard of care? |
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Definition
| D is supposed to act as a reasonable person w/ that disability would act. |
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Term
| Professionals - standard of care? |
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Definition
Custom of profession sets the standard
- Doctors specifically must obtain informed consent and provide patient with good info |
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Term
| Common Carriers and Inkeepers - standard of care? |
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Definition
| Plaintiff must be a customer; Held to a high degree of care; Liable for slight negligence |
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Term
| O/O duty to those off premises |
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Definition
| No duty regarding natural conditions; duty for unreasonably dangerous artifical conditions; duty for trees on land extends to damages off land |
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Term
| O/O duty to undiscovered trespassers |
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Definition
| No duty - UT will always lose |
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Term
| O/O duty to known/anticipated/discovered trespasser |
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Definition
duty to warn of known dangerous conditions
- D responsible only if
1) artificial conditions
2) w/ a risk of serious injury
3) conditions D knows of (no duty to investigate) |
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Term
| O/O duty to licensee (social guest) |
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Definition
Duty to warn of known dangerous conditions
- D is responsible for artificial and natural conditions
- that D knows of (no duty to inspect |
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Term
| O/O duty to invitee (business customer) |
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Definition
Duty to inspect and duty to make safe!
- D is responsible for artificial and natural conditions
- that D SHOULD know of (duty to inspect) |
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Term
| How can O/O discharge duties? (2 ways) |
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Definition
1) Warning of the danger (must be adequate!)
2) making the condition safe (but then there would be no injury...) |
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Term
| O/O Duty concerning obviously dangerous conditions |
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Definition
| No liability because it carries its own inherent warning. |
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Term
| Attractive Nuisance Doctrine (4 elements) |
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Definition
D liable to young trespassers when
1) O/O knows or should have known that children are likely to trespass
2) land occupier knows or should have known that there are conditions that pose serious risk of injury to kids
3) children are unable to recognize/appreciate the risk
4) burden to eliminate risk is small compared to risk to the children |
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Term
| Statutory standard vs. reasonable person standard |
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Definition
- if Stat. standard provided, it trumps reasonable person.
- stat. standard is applicable when P is in the protected class and the statute was designed to protect that kind of harm (on exam, normally the statute was not designed to protect the kind of harm in the question). |
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Term
| non-compliance w/ applicable statute establishes... |
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Definition
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Term
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Definition
| a conclusive presumption of negligent conduct by D (duty and breach) - P still has to prove causation |
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Term
| Negligent Infliction of Emo Distress (2 elements) |
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Definition
1) P suffered a PHYSICAL injury (shock is enough)
2) P must show that he was in the target zone of D's negligent conduct. ( modern rule has a rejection of this and recovery is allowed if P and victim are closely related and P was present and perceived the injury) |
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Term
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Definition
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Term
| No affirmative Duty to Act exceptions (3) |
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Definition
1) Special relationship b/w parties - contract or statute
2) duty to control third persons (like a parent to control their children!)
3) creation of peril or agreement to help |
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Term
| Breach of Duty (2 elements) |
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Definition
1) the act of D
2) the it violated the applicable standard of care |
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Term
| Res Ipsa Loquitur - Plaintiff to show (3) |
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Definition
1. Accident of type not normally to occur unless someone was negligent
2. The negligence is attributable to the D (often shown that D had exclusive control over the cause of the injury)
3. P is not contributorily negligent |
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Term
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Definition
| P's case survives a motion for directed verdict! |
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Term
| Actual Causation (causation in fact) tests (3) |
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Definition
- "But for" test
- Joint causes: substantial factor test
- Alternative causes approach |
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Term
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Definition
| Both parties caused the harm; D's conduct is the cause in fact it it was a substantial factor |
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Term
| Alternative Causes approach |
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Definition
| Both parties acted negligently, but only one caused the harm |
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Term
| Proximate Cause (legal causation) |
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Definition
| Liabile for all harmful results that foreseeable ("plaintiff will prevail IF it was reasonably foreseeable that...") |
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Term
| Intervening Cause in foreseeable result - D liable? |
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Definition
| if the intervening force was an unforeseeable tort or crime then D is not liable. But if the crime is foreseeable, then D is still liable!! |
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Term
| Liability for an unforeseeable eggshell skull? |
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Definition
| Yes. It is only necessary that D be able to foresee any injury. Not the extent of the injury. |
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Term
| Damages requirement for negligence |
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Definition
| P must prove actual harm or injury. Personal injury damages available. Prop damages for the FMV of the thing lost. Punative damages avail if D's conduct was wonton, willful, reckless or malicious. |
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Term
| Defenses to Negligence (5) |
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Definition
1) comparative negligence
2) contributory negligence
3) Assumption of risk
4) last clear chance
5) D's tortious conduct was reckless |
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Term
| Contributory negligent jurisdiction - P recover? |
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Definition
| If P is negligent, they get nothing. Whether they are knowingly or unknowingly negligent. |
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Term
| Assumption of risk (2 elements) |
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Definition
1) P must have known of the risk
2) P voluntarily assumed it
NOTE - only avail. in contrib. negligence juris |
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Term
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Definition
| P recovery is reduced by the amt. of his liability. |
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Term
| Pure vs. Partial Comp. Negligence |
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Definition
Pure = P can recover no matter what
Partial = P can recover only if he was less than 50% negligent |
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Term
| Last Clear Chance Doctrine |
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Definition
even though P was contributorily negligent, D had the last clear chance to avoid the harm and didnt.
Note - not avail in comparitive negligent jurisdictions |
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Term
| Strict Liability (PF Case - 4 elements) |
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Definition
1) Absolute duty to make safe
2) breach
3) causation
4) damages |
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Term
| Strict Liability applies to (3 types of things) |
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Definition
1) products
2) animals
3) ultra-hazardous activities |
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Term
| Defenses to Strict Liability? |
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Definition
Contributory Negligence
- in a contrib. neg. state, knowing contrib negligence bars Ps recovery. Unknowing contrib. negligence, P recovers everything.
- in compar. neg. state, contrib. negligence will be used to reduce D's liability. |
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Term
| Strict Liability for Animals |
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Definition
- domestic animals (1 free bite rule)
- wild/dangerous animals (owner is SL for anything the animal does) |
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Term
| Ultra-hazardous activities |
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Definition
S/L for injuries while D was engaged in a UH activity. UH activity = any activity which poses a substantial risk of serious harm no matter how careful.
NOTE - does not matter how careful D was!!!! |
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Term
| Products liability - who can be sued? |
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Definition
Any commercial supplier.
• Negligence Juris - anyone who knew or should have known of the danger (normally the manufacturer)
• SL jurisdiction - any commercial supplier (even merchants!) |
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Term
| Who can sue for product liability? |
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Definition
| Any foreseeable P - including bystanders! |
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Term
| P must prove for products liability |
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Definition
| existence of a defect when it left D's control - "unreasonably dangerous" |
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Term
| What is a breach in Products Liability? |
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Definition
• Negligence Juris = negligent conduct that results in supplying a defective product (bad design etc.)
• SL juris = just supplying a unreasonably dangerous product |
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Term
| Product Liability for a product used incidental to services (ie - doctor with blood for transfusion)? |
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Definition
- SL not available
- Negligence available |
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Term
| Products liability for bad design? |
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Definition
| If a design change was economically feasible you are liable for not doing it! warnings are no defense to liability. |
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Term
| Private Nuisance (3 elements) |
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Definition
1) Substantial (must be offensive, inconvenient or annoying to the average person)
2) Unreasonable Interferences with one's
3) Usage and enjoyment of land. |
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Term
| Public Nuisance (definition) |
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Definition
| An act which unreasonably interferes with the health safety or property rights of community. |
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Term
| Who can bring a public nuisance claim? |
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Definition
| A person with a unique injury - an injury different than that suffered by the public. |
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Term
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Definition
| Courts will balance P and D's interests in enjoying their own property. (that P moved there knowing about D is not a factor). |
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Term
| Vicarious Liability for people driving your car? |
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Definition
| You are liable for any family member (some states anyone) using with permission! |
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Term
| Parents liability for children's torts? |
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Definition
| Only for intentional torts and is always limited to a dollar amt. (in IL it is 20K max) |
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Term
| Vicarious Liability vs. Personal Negligence |
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Definition
| Sometimes if you give someone your car or something when they clearly are unable to drive, then you are negligent yourself, not vicariously liable! |
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Term
| Joint and Several Liability |
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Definition
| When multiple acts cause indivisible injury, each D is potentially liable for the entire judgement amount! (assume this is the law on exam unless said otherwise) |
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Term
| Contribution in a J/S Liability case |
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Definition
| where one joint tortfeasor was required to pay more than his fair share of the damages, he can sue the other tortfeasors to help pay the damages (either in equal amounts or amt proportionate to fault (comparative contribution - IL rule)) |
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Term
| Indemnification in a J/S Liability Case |
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Definition
If you paid the whole amt of damages, you can sue the other tortfeasor to pay the entire amt - not just a percent.
Commonly in vicarious liability cases (company can sue its worker to pay for their mistake) and in SL cases (supplier can sue manufacturer). |
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Term
| Survival and Wrongful Death Actions - what do you need to know? |
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Definition
| These are derivative actions - the new plaintiff will not be in any better position than the P herself would have been in if she had lived. (so if contrib negligent, know the rules) |
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Term
| Government tort immunity? |
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Definition
| Yes if it is a gov't function. But if it is a function that a private person would do (ie - proprietary activity) then there is no immunity) |
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