105 terms

WA Torts Bar Review

Desire or knowledge to a substantial certainty.
Transferred intent
If defendant intended to accomplish an intentional tort, he will be liable for the harm resulting from a different tort OR to a different person (applies only to: Assault, Battery, False Imprisonment, Trespass to Land/Chattels).
Battery is an intentional harmful or offensive contact with the plaintiff's person or anything connected to it.
Assault is an intentional act creating apprehension of an imminent battery, and has a present apparent ability to achieve battery.
False Imprisonment
False imprisonment occurs when the defendant intentionally confines the plaintiff within a bounded area with no reasonable escape route of which the plaintiff is aware, AND the plaintiff is either aware of the confinement or harmed by it.
Outrage (IIED)
Outrage occurs when a defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff to suffer severe emotional distress.
Trespass to Land
Trespass to land occurs when the defendant intentionally, even if reasonably mistakes, physically invades the plaintiff's land whether on, over or under the land by means of a method of invasion. (Mistake is no defense!)
Trespass to Chattels
Trespass to chattels is the minor interference with the plaintiff's personal property (Mistake, even if reasonable, is no defense!)
Conversion is an intentional "major" interference with the plaintiff's personal property that warrants that the defendant pay the fair market value of the chattel. (Negligence or reasonable, but mistaken interference is not conversion unless property is destroyed, it is trespass to chattels)
Willingness in fact or apparent consent (Consent is destroyed if: induced by fraud, non-disclosure of a material fact, withdrawal of consent)
Defense of self/others
A reasonable force (usually proportional) used to protect oneself or another person against threat of bodily harm from another person. Reasonable mistake is allowed. One is privileged to use force to defend self-others even if it injured innocent people in the process. Privilege transfers.
Defense of Property
A defendant may use reasonable force (never deadly) to protect real property
Recapture of Chattels
A defendant may use reasonable (not deadly) to recover his personal property in hot pursuit. Reasonable mistake is not a defense.
Shopkeeper's Privilege
A shopkeeper may: (1) use reasonable (not deadly) force; (2) to detain a plaintiff for a reasonable time; (3) on a reasonable investigation of possible shoplifting. AND, the shopkeeper must have a reasonable (can be mistaken) belief that the plaintiff has stolen merchandise and the plaintiff must be caught and detained on the store premises.
Private Necessity
A defendant may intrude on the plaintiff's property interest to prevent a greater loss to the defendant's own interests in person or property; however, the defendant must pay damages for any harm caused. The plaintiff has no privilege to eject the defendant (ex to eject the defendant (excising the private necessity privilege) or defend plaintiff's interest in the property in question.
Public Necessity
A defendant may intrude on the plaintiff's property interest to prevent a greater loss to an entire community of persons, however, the defendant need not pay damages for loss.
Authority of Law
A police officer may use reasonable force (deadly for a felony) to arrest a plaintiff for either a felony upon a reasonable belief that the plaintiff committed a felony OR a misdemeanor breach of peace in the officer's presence.
Citizen's Arrest
For a citizen to make a citizen's arrest, the felony must have actually occurred and the defendant must reasonably believe the plaintiff did it, misdemeanors must be committed in the citizen's presence.
Defamation is a statement of fact that is published to a third person and is false and defamatory. A statement is defamatory if, read as a whole and in context, it has a tendency to injure the plaintiff' reputation and standing in the community by causing others to avoid him or think poorly of him. (statements may be defamatory by inducement-proof of extrinsic facts or innuendo proof of defamatory meaning)
Defamation per se
A statement is presumed damaging if it adversely affects on the plaintiff's ability in his business, trade or profession, concerns a sexually transmitted disease, involves a crime of moral turpitude, or imputes unchaste behavior to a women.
Public figure
Plaintiff must prove by clear and convincing evidence that the defendant had actual malice (knowledge or falsity or reckless disregard for the truth).
Private Figure (public concern)
If the plaintiff is a private person and the statement is about a matter of public concern, the plaintiff must prove negligence and actual injury.
Private Figure (private concern)
If the plaintiff is a private person and the statement is about a matter of private concern, the plaintiff must prove negligence. The defendant bears the burden of proof on the truth of the statement.
Intrusion on Private Affairs
Intrusion occurs by an act of prying by the defendant, and the intrusion would be objectionable to a reasonable person.
Publication in false light
Publication in a false light occurs if the defendant attributes to the plaintiff things he did not do or say, and the false light would be objectionable to a reasonable person.
Public Disclosure of Private Facts
Public disclosure occurs when the defendant publicly exposes the plaintiff's private information, especially if true, and it would be objectionable to a reasonable person.
Appropriation occurs the defendant uses the plaintiff's name or likeness for his commercial advantage without authority.
Intentional misrepresentation
To establish fraud, the plaintiff must establish by clear and convincing evidence that the defendant made an intentional misrepresentation of a false material fact to the plaintiff, which induced justifiable reliance by the plaintiff in ignorance of its falsehood, and resulted in the plaintiff's injury.
Tortious Interference with a Business Relationship
Tortious interference with a business relationship requires 1) a valid business relationship, 2) the defendant's knowledge of the relationship, 3) intentional interference by the defendant, and 4) damages.
To prove a prima facie case of negligence, the plaintiff must show a duty on the part of the defendant to conform to a specific standard of conduct and a breach of that duty which is the actual and proximate cause of the plaintiff's damages.
A duty of care is owed to all foreseeable plaintiffs.
Duty - Children
Children are held to a reasonable adult standard if they engage in inherently dangerous activities.
Duty - Parents
Washington generally upholds parental immunity for negligent supervision.
Duty - Professionals
Professionals are held to a standard of care of a reasonable professional in the defendant's profession within the locality.
Duty - Doctors
Healthcare providers are held to a standard of care of a reasonably prudent healthcare provider in the rofession or class to which he belongs in WA. An expert witness must testify as to an appropriate standard of care.
Implied Consent
Doctors have an implied consent to treat life-threatening emergencies in which in which the plaintiff is incapable of giving consent.
Informed consent
Doctors have a duty to disclose material facts regarding the treatment to enable a reasonable patient to give informed consent.
Medical Malpractice
Statute of limitations on medical malpractice claims is 3 years from the date of wrongful act OR 1 year from when the plaintiff discovered the wrong, whichever is later.
Duty - Employers
Under respondeat superior, an employer is vicariously liable for the tortious acts of an employee if the acts occur within the scope of employment (minor detour). Employees are individually liable for major frolics.
Negligent hiring or negligent supervision
Employer may be liable for negligent hiring or supervision.
Non-delegable duty doctrine
Where an independent contractor is performing a non-delegable duty, an employer may be vicariously liable.
Violation of company policy
Violations of company policy, or industry custom and practice are admissible as evidence of violations of a duty of care, but no presumption of negligence arises.
Landowners duty to Invitees
An invitee is a person on owner's land by owner's express or implied invitation. Landowner has a duty of reasonable care: make safe, warn and discover problems.
Landowners duty to Licensee
A licensee is a person entering another's land for the landowner's benefit. A landowner owes a licensee a duty to warn of known dangers.
Landowners duty to Trespasser
A landowner owes a trespasser no duty to warn of known or unknown dangers, except to refrain from wanton and willful misconduct.
Attractive Nuisance
A landowner has the duty to make safe any artificial condition that may entice young children who are incapable of comprehending the danger involved.
Duty - Commercial host
A commercial host is held to a very high degree of care and will be held liable for slight negligence.
If bailment is for the bailor's benefit, the bailee is liable only for gross negligence; if for the bailee's benefit, slight negligence; and if for mutual benefit, ordinary negligence.
A breach of duty imposed by statute, ordinance, or regulation is prima facie evidence of negligence, and the plaintiff must show that: (1) he was the class of persons intended to be protected, and (2) that the harm suffered was the type of harm designed to be prevented by the statute.
Driving while intoxicated
Driving while intoxicated is negligence per se.
Duty to control third persons
Generally, there is no duty t prevent a third person from injuring another. But, if it appears that the defendant had the ability to authority to control the third person's actions, an affirmative duty may be imposed.
Duty - Car Owners
An owner may be liable for his own negligence in entrusting the car to a driver who is intoxicated or a known reckless person.
Duty - Common Carriers/Innkeepers
Common carriers and innkeepers are held liable for slight negligence
Affirmative duty to act
Generally there is no duty to help strangers in peril. But there is a duty to help if (1) defendant's tort causes plaintiff's peril, or (2) defendant's actions increased the plaintiff's risk or harm, or (2) defendant has already undertaken to help.
Good Samaritans
A WA statute exempts iability for ordinary negligence of a person who rescues another in an emergency. Liability exists for gross negligence or willful and wanton misconduct.
Physically disabled
A physically disabled person is held to a standard of a reasonable person with the defendant's physical disabilities.
Mentally disabled
A mentally disabled person is held to a reasonable person standard, unless the illness is sudden
the defendant did not comply with the appropriate standard of care.
Res Ipsa Loquitor
Under this doctrine, if an accident occurs that normally would not occur in the absence of negligence, and the condition or instrumentality was under the defendant's exclusive control, a presumption of negligence arises and the burden shifts to the defendant to disprove negligence.
An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. In addition, the defendant's conduct must be the proximate cause of the injury.
Thin skull rule
You take the plaintiff as they are - liable for any injuries.
Alternative causation
Where two or more defendants are negligent, but the plaintiff cannot show which one was the single cause, the burden is on the defendants to show they are not liable.
Substantial Factor Test
Where two or more defendants are not necessary causes of the harm, they are sufficient to cause the harm. Therefore, both defendants are liable (alternative to "but for test")
Intervening Cause
A foreseeable intervening cause that comes between the defendant's negligent action and the plaintiff's harm will not break the chain of causation. Subsequent medical malpractice is almost always foreseeable. Intervening natural events are usually foreseeable.
Rescue Doctrine
A rescuer may sue the initial fortfeasor for injuries suffered during the rescue attempt because the danger invited the rescuer.
Supervening cause
Only if an intervening force were unforeseeable, would it become a supervening force to cut off the defendant's liability. Criminal wrongdoing by a third party is often not foreseeable, therefore is supervening.
Negligent Infliction of Emotional Distress
The plaintiff must show foreseeability and objective manifestations of severe distress (physical symptoms). For a bystander to have standing, he must be at the scene of accident or arrive shortly thereafter and be the victim's close relative.
Successful plaintiffs may be compensated for damages including: medical expenses, lost wages, pain and suffering, an compensation for impaired future earnings.
Plaintiff has a duty to mitigate damages. Duty is on the defendant to prove that the plaintiff did not mitigate.
Collateral Source Rule
Damages are not reduced for sums received from third parties on account of injuries for which the plaintiff is seeking compensation.
Assumption of the Risk
When a plaintiff voluntarily undertakes an activity knowing of the risk involved, he assumes the risk and recovery is barred.
Plaintiff assumes the risk of defendant's negligent in language (written release).
Plaintiff actually knows of the risk and appreciates its magnitude and voluntarily goes forward with it.
Contributory negligence
The plaintiff is held to a standard of reasonable care exercised by a reasonable person as to his own safety.
Seat belts & infant seats
By statute, evidence of the plaintiff's failure to wear a seatbelt or to use an infant seat is NOT admissible as evidence of contributory negligence.
A plaintiff is completely barred from recovering if his intoxication was a proximate cause of the injury and he was more than 50% at fault.
A plaintiff is completely barred from recovering if his commission of a felony was a proximate cause of the injury.
Comparative Fault
WA is a pure comparative fault state. If a plaintiff is also negligent, she may still recover, however damages will be reduced by the percentage of her fault and the defendants are severally liable.
Joint and Several Liability
Where a plaintiff is not at fault, each negligent actor is jointly and severally liable for the injury. Under contribution, the amount of damages is proportional to fault. A defendant who pays more than his share has a claim aginst the other jointly liable parties for the excess.
Abnormally dangerous activity
A person is strictly liable for abnormally dangerous activity, which involves a serious risk of harm and the risk is present no matter the precautions taken, and the activity is unusual in the community.
Wild Animals
The owner is strictly liable for injuries caused by wild animals or abnormally dangerous domestic animals, as long as the injured person did not bring about the injury. Strict liability is generally not imposed in favor of trespassers.
Domestic Animals
For a domestic animal, the owner must know that the animal has dangerous propensities. In WA, a dog owner is strictly liable if a person is bitten in a public place or he is lawfully in a private place.
Strict liability is not absolute liability. It extends only to those harms proximately caused by the activity.
Consumer Protection Act
The CPA prohibits: 1) unfair methods of competition and 2) unfair or deceptive acts in the 3)conduct of any trade or business that 4) affects the public interest AND 5) injures the plaintiff in his business or property
Statute of Limitations (CPA)
4 years but this is tolled during pendency of an enforcement action brought by state AG.
Damages (CPA)
Plaintiff must suffer injury to business or property (no pain and suffering). Attorney's fees and treble damages are available.
WPLA General
The statute applies if defendant's product injures plaintiff in her person or property. All other remedies are preempted.
WPLA - Product injures only itself
The act applies IF product poses a risk of harm to persons or property, otherwise Article 2.
WPLA- Product
An object that has value, capable of delivery AND was provided for commerce.
Strict Liability (WPLA)
A product manufacturer will be held strictly liable for harms resulting from a manufacturing defect or the breach of express or implied warranties.
Negligence (WPLA)
A product manufacturer is liable under the theory of negligence for harms resulting from a design defect or inadequate warnings and instructions.
Product seller (WPLA)
A product seller may be liable for their own negligence, breach of express warranty, or fraud.
When can a product seller become strictly liable
A product seller may become strictly liable as a manufacturer if - the product is sold under the seller's name, the product seller is a controlled subsidiary of the manufacturer, the product seller provides specifications for the product to the manufacturer, or if there is no solvent manufacturer under WA jurisdiction.
Defenses (WPLA)
Evidence of industry custom and regulatory standards are admissible, but not conclusive; Compliance with government contract specifications is a complete defense.
Useful safe life
Under the WPLA, there is no liability after the product's useful life, presumed to be 12 years. After that, any liability will be governed by common law.
Statute of Limitations (WPLA)
3 years from the time the plaintiff discovered or reasonably should have discovered the harm, its causal relation to the product, and that the product "may" be defective.
Contributory Negligence/Assumption of the risk (WPLA)
The plaintiff must exercise reasonable care as to his own safety.
Product misuse (WPLA)
Product misuse that was reasonably foreseeable will not absolve the manufacturer of liability, unless the misuse was so extreme as to imply absence of defect.
Survival of Actions
An action will survive on behalf of the decedent for all tort claims, including pain and suffering, for "covered beneficiaries" which include surviving spouse, children, dependant parent, or sibling.
Wrongful death
Covered beneficiaries can recover pecuniary damages and loss of consortium, no pain and suffering.
Loss of consortium
Loss of consortium may be awarded to a spouse upon injury to the other spouse.
Community Liability
If a tort is committed in the course of managing community property or for the benefit of the community, there will be community liability.
Spouse's interest in award
General damages, including pain and suffering, are the separate property of the injured spouse. Special damages, including lost wages and medical bills, are community property. Damages for loss of consortium are separate property.
Family Car Doctrine
The owner of a family car is legally responsible for any damages caused by a family member when driving if the owner knew of and consented to the family member's use of the car.
Statute of Limitations for a minor
The SOL for a minor is tolled until the minor reaches the age of majority.