Concord Law School 1L Torts

Flash cards to study rule statements for 1L Torts
A volitional act that intentionally causes a harmful or offensive contact to the plaintiff or something closely connected thereto.
A volitional act that intentionally places plaintiff in reasonable apprehension of an imminent harmful or offensive touching, or an attempted battery.
False Imprisonment
Intentional act that unlawfully confines the plaintiff to a bounded area against the plaintiff's will and plaintiff knows of the confinement or is injured.
Trespass to Land
An intentional act which causes a physical invasion of plaintiff's land. Mistake is not a defense.
Trespass to Chattels
An intentional act by defendant which causes an interference with plaintiff's chattel. Defendant intentionally performs the physical act which interferes with plaintiff's chattel. Mistake is not a defense. Can be a dispossession, temporarily taking chattel or wrongfully refuses to return it or intermeddling. Damages must be proven.
Trespass to Chattels
Intentional act causing interference/intermeddling with plaintiff's personal property causing damages to plaintiff.
An intentional act by defendant which causes the destruction of or a serious and substantial interference with plaintiff's chattel.
1. Outrageous conduct by the tortfeasor.
2.Conduct intended to cause severe mental anguish in the victim.
3. The victim's suffering of severe mental anguish as a consequence of the tortfeasor's behavior.

The common test for outrageous conduct is one of reasonableness.
IIED - Intentional Infliction of emotional distress
Defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff to suffer severe emotional distress.
Defense - Consent
Affirmative communication (express or implied or by matter of law) giving permission for defendant's actions. Cannot be obtained by mistake, fraud, duress or violation of criminal statute.
Defense - Self Defense
Defendant may use reasonable force when he has a reasonable belief that such force is necessary to protect himself from imminent harm.
Defense - Defense of Others
A person may defend another person in the same manner and under the same conditions as the person attacked would be entitled to defend himself.

Traditional view - defendant "stands in the shoes of victim"
Majority view - defendant is liable if mistaken
Minority view - reasonable belief that victim has right to self-defense even if belief is wrong.
Defense - Defense of Property
Defendant may use reasonable force to prevent plaintiff from committing a tort against defendant's property.

*Must demand first that plaintiff desist
Recovery of Personal Property
A person is privileged to use reasonable force to recover his personal property if wrongful dispossession of the property has occurred, prompt discovery, fresh pursuit.

No force if plaintiff acted under claim of right

Defendant liable if mistaken

May enter onto land of another to recover

Wrongfully dispossessed land
Majority - no use of force
Minority - Reasonable non-deadly force permitted
Defense - Discipline
Defendant is privileged by virtue of his position to use necessary, justified, and reasonable force for discipline and control. (parent/teacher)
Defense - Authority - Arrest
Law enforcement officer can use reasonable force to arrest a person if the officer has probable cause to believe the person has committed a crime. A private citizen may make an arrest to prevent a felony or breach of the peace committed in citizen's presence.
Defense - Authority - Shopkeeper's Privilege
Defendant (shopkeeper) who reasonably suspects a person of stealing may use reasonable force to detain person for a reasonable time to conduct an investigation and notify the police.
Defendant is permitted to injure the property of plaintiff if this is reasonably necessary to avoid a substantially greater harm to the public, to defendant himself, or to his property. (Reasonable Person objective standard)

D not liable if reasonably mistaken
Private Necessity
D acting to protect private, individual interests, justified in doing so if the threatened harm D is acting to avoid is substantially greater than the harm that will result from the action D actually takes. D liable for damages.
Public Necessity
Absolute defense, emergency action to protect community as a whole or a significant group of people - no liability for damage
The elements of negligence are: duty, standard of care, breach, actual cause, proximate cause, and damages
Obligation, recognized by law, requires defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risk.

Cardozo - D owes a duty only to "foreseeable" plaintiffs. - Majority

Andrews - Everyone owes to the world at large the duty of refraining from those acts which unreasonably threaten the safety of others. - Duty of Reasonable Care
Cardozo Rule
D owes a duty to foreseeable plaintiffs - Majority Rule
Andrews Rule
Duty of reasonable care to everyone - Minority Rule
Negligence Rule?
The plaintiff must prove that D owed a duty as part of the prima facie case of negligence, and that the existence of a duty is determined by whether the plaintiff is "foreseeable."
Special Duty of Care - Common Carriers
Highest degree of care to avoid injury to passengers
Special Duty of Care - Landowners to Trespassers - Unknown
No duty is owed - no duty except to refrain from willful and wanton conduct that would injure the trespasser.
Special Duty of Care - Landowners to Trespassers - Known or Frequent
Reasonable care; warn of hidden artificial conditions which the D is aware and trespasser is not. Activities - reasonable care. Natural conditions, no duty.
Special Duty of Care - Landowners to Trespassing Children
A heightened standard of care may apply as to artificial conditions on D's land.
1) The artificial condition is a foreseeable risk of unreasonable danger to trespassing children (if D knows or reasonably should know of the existence and nature of the artificial condition. D has no duty to inspect to discover the artificial conditions)
2) it is foreseeable that children are likely to trespass where the artificial condition is located. If D has no reason to anticipate children trespassing then no heightened standard of care. Past trespasses, proximity to children areas, accessibility to artificial condition. "attractive nuisance doctrine"
3) the child trespasser is unaware of the risk - age, immaturity, did not discover the condition or did not appreciate the danger. If able to understand risk, danger, aware of condition, avoid risk, no higher duty
4) the risk of danger of the artificial condition outweighs its utility - the utility of maintaining the dangerous artificial condition must be "slight" compared to the risk
Special Duty of Care - Innkeepers
Higher standard of care to the public or to their customers- duty to take affirmative action
Special Duty of Care - Public Utilities
Dangerous products or services dispensed by public utilities - duty of care to take every reasonable precaution suggested by experience or prudence to avoid injury to the public
A person who enters onto D's land with D's express or implied permission, and who does not enter for a purpose benefiting D or D's activities. Visitors, social guests, door-to-door salesperson. Invitees who exceed the scope of D's invitation.
Standard of Care - Licensees
Activities - D has a duty reasonable care to protect, sufficient to warn, reasonable care to discover

Artificial Conditions - D has duty to exercise reasonable care to warn (a) which he is aware of or reasonably should be aware, b) which present an unreasonable danger, and c) of which the p is unaware and unlikely to discover. D has no duty to inspect land for such dangerous artificial conditions.

Natural Conditions - D to protect from dangerous natural conditions the same as artificial conditions.
Special Duty of Care for Landowners to Licensees
Reasonable care to protect; warn if aware of unreasonable danger and P is unaware and unlikely to discover.
Special Duty of Care for Landowners to Invitees
Reasonable care to discover and avoid danger; duty to inspect and warn
A person who enters onto D's land at D's express or implied invitation, and who enters for a purpose relating to D's interests or activities. Business or Public
Business Invitee
Invitee who enters onto Ds land for a purpose related to D's business activities or interests. Customers and person accompanying them, delivery persons, salespersons, job applicants
Public Invitee - Majority view
A member of the public who enters onto D's land for a purpose as to which the land is held open to the public. Visitors to airports and visitors to churches, museums.
Public Invitee - Minority view
Not recognized, courts usually find a business purpose in the visits by person who would otherwise be considered public invitees.
Special Duty of Care for Lessors
C/L - no duty owed to tenant
Modern exceptions:
1) known or latent defects - tenant is unaware and not reasonably apparent, the landlord is or reasonably should be aware - duty to warn and/or fix - no duty to inspect for latent dangers
2) Common areas: duty of reasonable care to protect from criminal attacks.
3) Natural conditions, reasonable care to discover and repair (or warn) at time possession is transferred, after possession - no duty unless covenanted to make repairs or actually undertook to repair.
Special Duty of Care for Health Care Providers
Must possess and use knowledge and skill common to members of profession in good standing. Generalists are held to minimum common skill of physicians in same or similar locality. Specialists are held to minimum common skill of specialists in the same specialty nationwide.
The failure to act when a duty to act existed
Duty to Take Affirmative Action - Failure or Omission to Act
Traditional rule - no affirmative duty to take action to aid or protect a P who is at risk of injury unless such action is taken.
Exceptions to Duty to Act
1) D's conduct caused peril
2) D take action or promises to do so (can not leave P in a worse condition)
3) D promises to take action - no liability for nonfeasance
4) Special relationship between defendant and victim (duty to care for P, duty to control others, duty to warn p of danger
5) contractual obligation to rescue
6) Statutory obligation to rescue
Breach of Duty
When P fails to conduct himself as a reasonable person would in the same circumstances.
Criminal Statute - Negligence per se
D's conduct also violates a statute that does not provide for civil liability, the statute may establish the standard of conduct for breach of duty purposes.
Negligence Per Se
D violation of a criminal statue has the effect of establishing the standard of care only when all of the following conditions are present:
1) the injury caused by D's conduct is the type which the statute was intended to prevent.
2) P is a member of the class intended to be protected by the statute
3) D's violation of the statute is not excused.
Negligence Per Se - Excused
D's violation of an applicable statue is excused if compliance with the statute
1) would have resulted in a harm greater than the harm produced by the violation
2) would have been impossible
- some cannot be excused as a matter of law - maintaining vehicle's brakes in proper working order.

Compliance alone of a statue is mere evidence on the issue of whether D breached his duty of care, does not raise any presumption in the D's favor, conclusive or otherwise.
Breach of Duty - Negligence per se
harm suffered must be type sought to be prevented by statute and P must be in class of person sought to be protected by statute and the violation must not be excused.
Breach of Duty - Learned Hand
Reasonable Person standard -
B<L*P where
B = D's burden (cost) to avoid risk of harm
L = gravity of potential harm
P = probability of harm

Does the likelihood and magnitude of the harm outweigh the burden on the D to have acted differently and the social utility of his conduct.

The greater the benefit society derives, the more likely D will not be found to have breached a duty to P merely by engaging in such an activity or by not undertaking certain precautions.
Breach of Duty - Res Ipsa Loquitur
Doctrine of law that permits finding a breach of duty absent direct evidence. Requirements:
1) Event does not normally occur without negligence
2) More likely than not that D's actions or failure to act caused the event.
3) P did not cause or contribute to harm
Actual Cause
Cause in fact - P must establish that "but for" D's actions, P would not have been injured.
Actual Cause
Cause in fact - Supplement to "but for" test when there are concurrent tortfeasors (Summer v Tice" 2 negligent D's but one injury - shifts burden of proof to D to prove not cause of injury
Proximate Cause
Legal Cause
1) Foreseeable plaintiff
2) foreseeable manner of injury
3) foreseeable type of injury
4) any intervening event foreseeable
Unforeseeable Plaintiff Limitation (Palsgraf)
P must be within the zone of danger
Intervening Act
If superseding (highly unforeseeable or highly culpable) act breaks chain of causation so no proximate cause.

If foreseeable, no break in chain and proximate cause intact.

Faultless or negligent intervening act not enough to be superseding
Egg Shell Skull - Causation
D takes the victim as he finds him. Not necessary that extent of harm be foreseeable.
Contributory Negligence - Defense
P must exercise due care to protect self from injury by D. (did P act as a reasonable person would under the same circumstances?)

Complete Bar to P's recovery - only effective on negligence not intentional torts, recklessness or strict liability
Contributory Negligence - Defense
P's negligence no matter how slight bars recovery
Last Clear Chance - Defense
Allows P to recover despite contributory negligence if P can show that D had last clear chance to avoid injury to P. Be careful on MCQ's - this is a Plaintiff assertion, to provide recovery when P is contributory negligent.
Pure Comparative Negligence - Defense
P is not barred from recovery even if he is largely at fault. Recovery reduced in proportion to P's own negligence. - Assume this for MBE unless otherwise stated
Partial Comparative Negligence - Defense
If P's fault is >/=50% P is barred from recovery

Minority of states - deny recovery only if P responsibility is 51% or greater
Assumption of the Risk - Defense
A bar to P's recovery when P is aware of degree of risk and voluntarily chooses to accept the risk. Can be implied if P continues to act when confronted with known risk.

D must establish that:
1) P had knowledge of and appreciated the nature of the danger involved
2) P voluntarily chose to subject himself to that danger
Assumption of the Risk - Defense - Knowledge and Appreciation of Risk
Subjective standard, Youth, lack of information, or lack of experience may justify a finding that plaintiff actually failed to comprehend the risk involved, no assumption of the risk, even if a reasonable plaintiff would have recognized the danger under similar circumstances
Strict Liability
Liability without fault
Possession of Wild Animals
P can recover for injuries suffered from a wild animal regardless of degree of care exercised by the D owner. Bull's & Bee's
Possession of Animals
P can recover for injuries due to domestic animals if D knew or should have known of the animal's dangerous propensity. (one bite rule) - or by nature - pit bull
Abnormally Dangerous Activity
a) whether there is a high degree of risk of harm
b) the inability to eliminate that risk through the exercise of due care
c) the activity involved is not usually conducted in that area

Blasting, manufacturing of ammunition
Strict Liability - Defense
Contributory negligence may generally not be raised, exception where the P:
a) knew of the danger that justified imposition of strict liability
b) his contributory negligence caused exactly that danger to be manifested, will bar P recovery (if jurisdiction applies contributory negligence doctrine)

Comparative negligence - some states have adopted comparative fault to reduce the recovery of P whose negligence contributes to their own injuries in strict liability

Assumption of the risk - P may be found to have assumed the risk of injury and be completely barred if:
1) P knows of and appreciates the danger justifying imposition of strict liability
2) P voluntarily exposes himself to such danger
Strict Products Liability
Strict products liability is invoked when a defective product for which D is responsible injures an appropriate P. Consideration must be given to proper parties, the defective nature of the product, the nature of injuries suffered, and whether any defenses are available.
Strict Products Liability
Theory of liability whereby P can recover for injuries suffered due to a defective product being placed in the stream of commerce without the showing of negligence.
Strict Products Liability - Proper Defendants
D who are in the chain of manufacturing, distributing or supplying the particular defective product - privity
Strict Products Liability - Proper Plaintiffs
Any foreseeable user or consumer of product, bystanders may also recover, rescuers
Strict Products Liability - Types of Defects
1) Manufacturing Flaws - product deviates from the intended design.
2) Design Defects - effects the entire product line
3) Warning defect - absent or inadequate warning; manufacture knew or should have known of danger and warned
Strict Products Liability - Defects - Manner of Proof
A product manufactured as intended but still presents a danger of personal injury or property damage, analysis of whether such a defect is sufficient to invoke strict liability:
1) consumer expectation test
2) risk/utility balancing
3) hindsight - negligence
Strict Products Liability - Consumer Expectation Test
A product is in a defective condition unreasonably dangerous when it is more dangerous than would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

Dangerously defective if a reasonably foreseeable purchaser would not have expected it to present the danger which resulted in his injury.
Strict Products Liability - Risk - Utility Test
A product is defective if the danger it threatened (the cost in human injury and property damage) outweighs its utility to society. balances the likelihood, nature and potential severity of injuries caused by a product against the usefulness of the product considering the availability and cost of safer alternative designs.
Strict Products Liability - Hindsight-Negligence
A product is defective if a reasonable person, knowing of the danger it presented, would not have placed it in the stream of commerce. Presuming D knew of the risk, whether or not they actually did know or reasonably could have known of it.
Strict Products Liability- Absence of Warning
D's failure to warn P that a product presents a threat of personal injury or property damage may be considered a dangerous defect. P establishes the manufacturer of a product know or reasonably should have known of a danger presented by the product and failed to take the precautions a reasonable person would have taken to warn adequately of that danger, the absence of such warning is sufficient to impose strict liability.
Breach of Warranty - Implied
Implied warranty of merchantability (UCC) applies only to merchants - product is fit for its intended use.
1) false and defamatory statement
2) of and concerning plaintiff
3) communicated to a 3rd Party
4) causes injury to Plaintiff's reputation
Defamatory Statement
False statement which causes reputational harm to Plaintiff, must be understood as true and be about a living person
A defamatory statement which is
1) Negligent or intentional
2) communication, written or oral
3) to someone other than Plaintiff
Permanent defamation (writing, photo, video, etc) Harm to reputation is presumed. Traditional - written
Traditional oral defamation
Modern - not permanent
P must prove special damages
NY Times v Sullivan
Public official cannot recover for defamation unless he can show:
1) statement was made with malice (knowledge that it was false or reckless disregard for whether or not it was fake)
Gertz v Welch
Private person engaged in public controversy need not prove actual malice to recover for defamation.
Invasion of privacy - Intrusion into Seclusion
D's intentional conduct that interfere with Plaintiff's sphere of privacy. Conduct must be objectionable to a reasonable person.
Invasion of Privacy - Appropriation
Unauthorized appropriation of Plaintiff's identity or likeness for defendant's commercial advance.
Invasion of Privacy - Public Disclosure
1) Disclosure
2) private true facts
3) disclosure highly offensive to a reasonable person
4) info is not news worthy
5) dissemination to large number of people
Invasion of Privacy- False Light
1) Publication to a substantial number of people
2) false information
3) highly offensive to reasonable person
4) some level of fault on part of defendant
5) cause damages
Interference with Contract
1) Defendant is aware of contract between Plaintiff and 3rd party
2) intentionally acts to interfere with that contract
Interference with Prospective Advantage
1) Defendant knew of prospective economic advantage to come to plaintiff
2) intentionally acted to interfere with it
Misrepresentation - Deceit
1) Intentional
2) material misrepresentation of
3) past or present fact
4) made by the Defendant
5) with scienter
6) on which Plaintiff relies to his detriment
Negligent Misrepresentation
1) Defendant's accidental
2) breach of duty
3) to provide accurate information
4) causing Plaintiff's reasonable reliance
5) and injury
Knowledge by the misrepresenting party that material facts have been falsely represented or omitted with an intent to deceive.
Nuisance - Public
Act which UNREASONABLY interferes w/HEALTH, SAFETY, or PROPERTY RIGHTS OF COMMUNITY! * P may recover ONLY IF s/he suffered UNIQUE damage NOT SUFFERED BY PUBLIC. * Conduct must be objectionable to AVERAGE person (objective std.)
Nuisance - Private
SUBSTANTIAL and UNREASONABLE interference w/one's USE AND ENJOYMENT OF LAND. ** P must have either POSSESSION or IMMEDIATE RIGHT OF POSSESSION of land. Conduct must be objectionable to an AVERAGE person.
Damages - Compensatory
To return the Plaintiff to his pre-injury state. General: tangible pecuniary
Special: intangible, pain and suffering
Damages - Punitive
To deter or punish
Negligence - Vicarious Liability
Defendant may be jointly liable for actions of another under the doctrine of RESPONDEAT SUPERIOR. Employer responsible for torts of employee committed within scope of employment.
Joint and Several Liability
Where multiple tortfeasors exist and the injury cannot be divided and attributed individually, a plaintiff may choose to sue one, several, or all tortfeasors and may collect the entire judgment from one, several, or all tortfeasors.
Respondeat Superior
an employer is vicariously liable for the behavior of an employee working within his or her scope of employment

Flickr Creative Commons Images

Some images used in this set are licensed under the Creative Commons through
Click to see the original works with their full license.