Intentional Torts Elements
1) Define Intentional Tort
2) Define transferred intent
1) Actor acts with intent to do something to another to bring about harm and actually causes that harm. The action was voluntary & actor knew with substantial certainty that act would cause harm.
2) Actor intended for tortious conduct toward one person but harmed another, then actor still liable.
What are the standards of duty for:
1)Reasonable Person
2) Children
3) Physical Characteristics
4) Professionals
1) the same level of care that would be exercised by a reasonable person acting under similar circumstances.
2)A minor (under 18) owes a duty to act as “a child of similar age, experience and intelligence acting under similar circumstances” *Bonus: exception?
3)A person with a physical disability will be held to the standard of a “reasonable person with that disability acting under the circumstances”
4)Anyone who possesses a special skill (e.g. auto mechanic) or is a member of a professional community (e.g. lawyers and doctors), must exercise their duties “with the skill and competence of an average member of that profession or trade practicing in a community of similar size”
Duty to Undiscovered and Unanticipated Trespassers
V.
Duty to Discovered or Anticipated Trespassers
Undiscovered: A land possessor owes these persons no duty to fix or warn of dangerous conditions on their property.
Discovered: A land possessor has a duty to warn discovered/anticipated trespassers, or fix a condition, if the condition is:
1) concealed
(2) artificial (i.e. man-made),
(3) highly dangerous to human life,
(4) the possessor has prior knowledge of the condition’s existence.
1)What is False light?
2)What is Appropriation?
1) defendant widely spreads facts about the plaintiff, which places the plaintiff in a false light that would be offensive to a reasonable person.
2) defendant uses the plaintiff’s name or likeness in an unauthorized way to advertise a product.
Misrepresentation (Four elements)
(1) There is a material misrepresentation by the defendant (2) the defendant knew his statement was false or said it with reckless indifference to the truth, (3) he had the intent to induce the misrepresentation, and (4) the plaintiff relied on it and suffered pecuniary damage.
Give me definition with buzzwords for:
1) Battery
2) Assault
Bonus 1=Talk about direct/indirect and how this relates to battery
Bonus 2=Talk about awareness an how it relates to assault
1) Actor intentionally causes harmful or offensive contact to another
2) Actor causes reasonable apprehension of imminent battery of another
b1) Direct contact relates to a persons body and indirect is making contact with something intimately connected to someones body
b2) Plaintiff must be aware of the risk of expectation. P not aware then NO ASSAULT.
What are the 3 comparative negligence theories?
Pure comparative negligence: The plaintiff can recover no matter how negligent he is. His damages simply are reduced by his percentage of fault. Tip: this is the default on the MBE unless otherwise stated.
Partial (modified) comparative negligence: if the plaintiff was more at fault than the defendant (or in some states, if the plaintiff and defendant were equally at fault), the plaintiff cannot recover.
Contributory negligence: The plaintiff cannot recover if he was even a little bit negligent unless the defendant had the last clear chance to avoid the injury.
Duty to Licensees
Duty to warn or fix a condition (make safe) if the condition is (1) concealed,(2) dangerous, and (3) the possessor has prior knowledge of the condition’s existence.
Think a massive, deep conspicuous hole in the grass that owner knew about.
1) What is intrusion?
2) What is disclosure?
1) defendant intentionally pries or intrudes into a private place in a way that would be offensive to a reasonable person.
2) defendant widely disseminates or publishes private information about the plaintiff that would be highly offensive to a reasonable person.
INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS (Four elements)
(1) There is a valid business relationship or expectancy that existed between the parties that the defendant knew of
(2) the defendant intentionally coerced one of the parties to terminate the relationship, breach a contract, or withhold a business expectancy
(3) the defendant was not authorized to interfere; and
(4) the interference resulted in damages.
False Imprisonment
Actor intentionally confines another to a bounded area with no reasonable means of escape and the person is aware of their confinement OR harmed by it.
Doctrine of Res Ipsa Loquitor
jury may nevertheless infer (but does not have to) that ∆ breached his duty if plaintiff can prove the following:
1)The accident that occurred is one normally associated with negligence of some kind; and
2) The accident is normally due to someone in defendant’s position- as the last person in control over the instrumentality that caused the injury right before the injury occurred
Duty to Invitees
Duty to warn invitees, or fix a condition, and duty to inspect if the condition is (1) concealed, (2) dangerous, and (3) the possessor knew of or should have known of the condition’s danger.
Think customer causes dishwashing soap spills at the store and doesnt tell anyone about it then another customer slips and falls an hour later. Store had a duty to inspect, warn or fix.
General Defamation (4 elements)
1. a defamatory statement about the plaintiff, 2. an unprivileged publication of the statement, 3. fault (at least negligence), and 4. damages.
Theft of Trade Secrets (2 elements)
Plaintiff has a valid trade secret; and Defendant uses improper means to discover the trade secret.
1) Intentional Infliction of Emotional Distress
2) Negligent Infliction of Emotional Distress
Bonus: Define bystander theories for both
1) Actor intentionally engages in extreme or outrageous conduct that causes a victim to suffer from extreme emotional distress.
2) Only requires negligence on the actors part and the victim must suffer from physical manifestations of the harm caused by defendant.
Bonus-1) Conduct seriously injured 3rd person, 2)Bystander must be a close relative OR suffer some physical harm as a result of the severe emotional distress. 3) Bystander must be physically present when actor commits the tort and perceive the tortious act when it occurs; 4) Defendant knew of bystander presence at the scene and the family relationship to victim. (CONFIRM THIS)
NIED- CLOSELY RELATED, suffered physical harm?
What is Joint and several liability?
In J & S jurisdiction Plaintiff may recover all of his damages from any single defendant (and the defendant may seek contribution from a codefendant).
In a several liability jurisdiction, each defendant is liable only for his percentage of fault.
Attractive Nuisance (4 elements)
(1) the possessor knew or should have known that children would likely trespass
(2) The possessor knew or should have known that the artificial condition was dangerous and likely to cause injury to a child who could not appreciate the danger,
(3) the cost of repairing the condition was minimal compared to the danger posed and
(4) Landowner fails to exercise reasonable care in eliminating the danger or protecting children from it.
What is Libel? What is Slander per se?
These are both extensions to damages and damages are presumed for both.
Libel: cases where the defamatory statement is written or recorded.
Slander Per Se: damages are presumed if the slander is in one of the four (CLUB) categories:
(1) committing a crime of moral turpitude, (2) suffering from a loathsome disease, (3)unchastity if the plaintiff is a woman,or (4)something that reflects badly on the plaintiff’s business or profession.
Define abnormally dangerous activities
One that creates a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a matter of common usage in the community.
EX: blasting, mining, explosives, etc.
1) Trespass to Land
2) Trespass to Chattel
3) Conversion
Bonus-What are the damages a plaintiff may recover for each?
1) Intentional or reckless invasion of real property of another.
Recovery= nominal damages if no actual damage occurs BUT actual damages if D acted recklessly
2) Intentional minor interference of the property of another
Recovery=cost of repair or rental value of item.
3) Intentional substantial interference with the property of another.
Recovery=Full market value of the property at the time it was destroyed
The doctrine of Alternative Liability
Another type of joint & several liability- two independent tortfeasors may each be held liable for the full extent of the plaintiff's injuries if it is impossible to tell which tortfeasor caused the plaintiff's injuries.
Shifts burden of proof to the defendants to either absolve themselves of liability or apportion the damages between themselves. If the defendants, however, are acting in concert with each other, then the doctrine would not apply, because then both Ds would be responsible regardless of who pulled the trigger.
What is the difference between Public v. Private nuisance?
Private nuisance: defendant uses his property in a way that causes a substantial unreasonable interference with the plaintiff’s use or enjoyment of his land. (Impacts just one person but would it offend an average member in the community?)
Public nuisance: Defendant unreasonably interferes with the health, safety, or morals of a community. In order to successfully sue, the plaintiff must suffer unique damages.
Define Products Liability and its 3 defects.
The defendant must be a merchant. The product must be defective at the time it left the defendant’s hands.
Manufacturing defect: the product departs from its intended design and it is more dangerous than expected.
Design defect: The product comes out exactly as the manufacturer intended. However, there is an alternative design that is safer, practical, and cost-effective.
Inadequate Warning: (1) The product cannot be redesigned to make it safer; (2) The risk of injury is not obvious; and (3) The product either lacks any warning or the warning is not adequate to alert reasonable user to its danger.