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Torts - Coggle Diagram

- - - - driving a car is an example of common usage
  - - - manufacturing defect
        
        product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design
        
        food products treated the same way - consumer expectation standards
      - design defect
        
        plaintiff must show a reasonable alternative design that is a less dangerous modification or alteration and was economically feesable
        
        seller must anticipate reasonably foreseeable misuses of the product
        
        no requirement of contractual privity
        
        reasonable alternative design must exist at the time of the original design
        
        later improvements, so-called state of the art, do not constitute a reasonable alternative design
      - warning defect
        
        while adequate warnings insulate a defendant, inadequate warnings result in liability
    - - defect must have existed at the time the product left the defendant's control
    - - products must reach the user without substantial change in the condition in which it was supplied
    - - only commercial suppliers can be held liable
        
        casual sellers are not liable
    - - both actual cause and proximate cause required
    - - compensatory and punitive damages available
        
        most states deny recovery under strict liability when the sole claim is for economic loss
  - - - the dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury
        
        the plaintiff suffered damages to person or property
- - - - children and mentally incompetent persons can be held liable if the requisite intent is met
    - - false imprisonment
      - trespass on land
      - trespass to chattels
      - battery
      - assault
  - - - plaintiff experiences a reasonable apprehension of an immediate harmful or offensive contact
        
        apparent ability is all that is required
        
        that defendant could not have committed the harmful or offensive contact does not defeat liability
        
        harmful or offensive contact exits id a reasonable person would regard it as offensive
        
        exaggerated fears are not actionable unless the defendant knew about that fear and used it to put plaintiff in apprehension
        
        fear is not required, only an apprehension of a harmful or offensive contact
        
        words alone are insufficient, some overt act is required
        
        actual damages not required
        
        can recover nominal damages
    - - harmful or offensive contact with the victim or something closely connected with the victim
        
        includes anything connected to the victim's person
        
        reasonable person standard
        
        direct touch is not required for the tortfeasor or the victim
        
        includes setting in motion a force that brings about harmful or offensive contact
        
        ex: throwing a baseball at someone
        
        apprehension is not required
        
        lack of consent
    - - intentional act that causes a plaintiff to be confined or restrained to a bound area against plaintiff's will and the plaintiff knows of the confinement or is injured
        
        confinement includes
        
        confining by physical barriers
        
        failing to release the plaintiff where the defendant has a legal duty to do so
        
        asserting invalid legal authority
        
        very brief time is sufficient, no specific duration required
        
        no duty to resist if defendant makes a credible threat to use of physical force
        
        not confined if there is a reasonable means of escape that plaintiff is actually aware of
        
        requires knowledge of confinement or actual harm
        
        defenses: shopkeepers privilege requires detention that is
        
        in a reasonable manner
        
        for a reasonable period of time
        
        based on a reasonable belief as to theft
    - - intentional or reckless act amounting to extreme and outrageous conduct that causes the plaintiff severe mental distress
        
        reckless conduct is sufficient if defendant acts in deliberate disregard of a high degree of probability that emotional distress will follow
        
        estreme and outrageous conduct is beyond the bounds of decency; conduct a civilized society would not tolerate
        
        mental distress must be severe and substantial; more than a reasonable person could be expected to endure
  - - - tortfeasor's intentional act is a physical invasion of property
        
        intentional entry is all that is required
        
        no intent to cause harm required
        
        mistake is not a defense
        
        need not know you are trespassing
        
        plaintiff must be in a actual possession or have the right to immediate possession of the land
        
        note: not ownership
        
        satisfied if defendant causes a third person to enter onto plaintiff's land or remains upon the plaintiff's when under a legal duty to leave
        
        plaintiff's land includes the area both above and below the surface
        
        liable for nominal damages and actual harm
    - - intentional act that interferes with plaintiff's chattel, causing harm
        
        chattel means tangible personal property or intangible property that has a physical representation
        
        mistake is not a defense
        
        interference includes dispossession or intermeddling
        
        more serious interference may amount to conversion
    - - intentional act that causes the destruction of or serious intereferense with the plaintiff's chattel
        
        interference is more serious than trespass to chattel and includes
        
        a greater use of the chattel
        
        a longer period of interference
        
        mistake is not a defense
        
        plaintiff entitled to fair market value at the time of conversion plus consequential damages or replevin
        
        defendant's offer to return the chattel does not alleviate the conversion
  - - - defendant may use force reasonably necessary to protect against injury when he reasonably believes he is. being or is about the be attacked
        
        defendant cannot be the initial aggressor
        
        reasonable mistakes as to the danger is allowed
    - - injury to plaintiff's property was reasonably necessary to avoid a substantially greater harm to the pectin, to the defendant, or to save the defendant's more valuable property
      - a reasonable standard is used
    - - defendant must ask the plaintiff to stop or leave unless it would be futile
        
        cannot use deadly force
    - - can be express or implied
      - will still be liable if he exceeds the scope of the consent
  - - - (2) intent
        
        (3) the elements of a prima facie claim for that tort
        
        (4) causation
        
        (5) harm
        
        (6) lack of a privilege or defense
- - - - unreasonable interferense with public property or a right common to the general public
        
        significant interference with the public health, safety, peace, comfort or convenience
        
        conduct is perscribed by a statute, ordinance, or regulation
        
        conduct is of a continuing nature causing permanent or long term effects
      - individual cannot recover personally unless they suffers a harm of a kind different than the rest of the public
    - - substantial and unreasonable interferences with plaintiff's use and enjoyment of private land
        
        must be unreasonable
  - - - appropriation of the plaintiff's name or picture
        
        unauthorized use of the plaintiff's identity or likeness for the defendants commercial advantage
      - publication of facts placing plaintiff in a false light
        
        defendant publishes matters that portray the plaintiff in a false light
        
        attributing to the plaintiff views he does not have or actions he did not take
        
        reasonable person would find offensive
        
        must be communicated to a substantial number of people
      - intrusion on the plaintiff's affairs/seclusion
        
        defendant unreasonably intrudes into the plaintiff's seclusion
        
        physical or non-prysical intrusion
        
        must be highly objectionable to a reasonable person
        
        refers the plaintiff's physical solitude and the privacy of affairs or concerns
        
        plaintiff must have a reasonable expectation of privacy
      - public disclosure of private facts about the plaintiff
        
        defendant unreasonably discloses private facts about the plaintiff to the public
        
        needs to be highly offensive to a reasonable person and not of legitimate public concern
        
        must be publication to the public
        
        does not apply if the publication is newsworthy
    - - consent
      - privileges
  - - - defamatory message
        
        message lowers a plaintiff in the community's esteem or discourages a third party from associating with him
      - of or concerning the plaintiff
      - publication
        
        a third person received the defamatory message and understood it to be about the plaintiff
      - harm to reputation
    - - libel
        
        written form of defamation
      - slander
        
        defamation not preserved in permanent form, including spoken word
      - slander pro se
        
        commission of a crime
        
        allegations of a loathsome disease
        
        imputes improper conduct of business or profession
        
        serious sexual misconduct
    - - general damages
        
        no proof of actual damage requires
      - precuniary or special damages
        
        qualifiable monetary losses
        
        plaintiff must prove unless slander is pro se
      - punitive damages
        
        need additional showing of malice
    - - truth
        
        historical defense
        
        plaintiff must prove falsity of claim in prima facie case
      - privileges
        
        absolute
        
        defendant may not be held liable for an otherwise defamatory statement as a matter of law
        
        applies to legislators, participants in judicial proceedings, policy-making officials, and spouses
        
        defendant has burden of proving privilege
        
        qualified
        
        defendant nor held liable for an otherwise defamatory message unless he loses the protection of the privilege
        
        privilege does not apply or is lost if
        
        the matter is outside the scope of the privilege (includes matters not relevant to the interests protected by the privilege)
        
        OR defendant act out of malice (defendant's primary motive was something other than furthering the interest that justified the privilege)
      - consent
  - - - misstatement of facts, not an opinion unless rendered by someone with superior skill
        
        false, affirmative statement
        
        active concealment
        
        omission of fact or failure to disclose
      - scienter/malice; statement was made
        
        knowing it was false
        
        OR with reckless regard as to its truth or falsity
        
        Note: in commercial setting, the scienter element can drop to negligence
      - intent to induce reliance
      - justifiable reliance; reasonable person
      - causation/damages
- - - - plaintiff's conduct contributed to her injury and is compared to defendant's negligence
        
        damages are reducesd accordingly
    - - plaintiff must have known of the risk and still voluntarily proceeded with the action
    - - if the plaintiff already recovered in full from one defendant, they cannot also recover from the second defendant
        
        the first defendant can always try to get contribution from the second defendant for the amount they contributed
  - - - defendant must meet a certain standard of conduct for the protection of others against unreasonable risk
        
        standard of care
        
        reasonable, ordinary, prudent person standard
        
        higher standard of care imposed on professionals
        
        standard carries based on relationship
        
        for children the duty of care is the reasonable child the same age, education, and intelligence
      - when action is taken, a duty of care is owed to all foreseeable plaintiffs
      - no affirmative duty to act exists
        
        exceptions resulting in an affirmative duty
        
        innkeeper
        
        common carriers
        
        special relationships
      - one can assume a duty to act
        
        besides standard of care, also liable if leaves plaintiff in worse condition
        
        assume no statutory duty, unless given one
        
        if the jurisdiction has a Good Samaritan statute, it would govern and relieve liability under certain conditions
      - no duty to control others, unless special relationship
        
        parents have a duty to exercise reasonable care to control their child if they know or have reason to know of the necessity and have the ability to control their child
        
        masters have a duty to control servants while acting within the scope of employment
        
        masters have a duty of care in hiring employees
        
        look for knowledge of prior bad acts
      - Negligent infliction of emotional distress
        
        plaintiff must be in the danger zone
        
        suffered a physical manifestation
        
        exceptions to zone of danger and physical manifestation
        
        negligent death notice
        
        mishandling of corpse
        
        bystander
        
        located near the scene of the accident
        
        suffered severe emotional distress from the sensory and contemporaneous observation of scene
        
        had a close personal relationship with the victim
      - Possesor of land
        
        invitee
        
        duty to prevent injuries and duty to discover dangerous conditions
        
        license
        
        duty to exercise reasonable care and to warn of dangerous conditions
        
        tresspasser
        
        unknown trespasser
        
        no duty
        
        known trespasser
        
        jurisdictions take different approaches
        
        Note: children get a heightened standard of care as to artificial conditions
    - - when the defendant falls short of the standard of care
      - negligence per se
        
        when a statute provides for a criminal penalty, the statute specific duty replaces common law duty
        
        plaintiff must prove that (1) he was in the class intended to be protected by the statute, (2) the harm suffered is the particular harm that the statute was designed to prevent, and (3)the standards of conduct are clearly defined
      - res ispa loquitur
        
        circumstantial evidence doctrine
        
        the accident that caused the injury would not normally occur unless someone was negligent, and the negligence is attributable to the defendant
    - - cause in fact
        
        "actual cause"
        
        but for the defendants actions, the plaintiff's injuries would not have occurred
        
        OR the defendant's actions were a significant factor in bringing about the injury
        
        when two or more defendants have been negligent, but uncertainty exists about which one caused the injury, burden of proof shifts to the plaintiff to prove that harm has been caused by one of them
        
        the burden then shifts to the defendant to prove that they were not the cause
      - proximate cause
        
        "legal cause"
        
        requires there to be a foreseeable plaintiff within the zone of danger
        
        exceptions
        
        eggshell plaintiff
        
        defendant take the full consequence of the plaintiff's injury, even if the injuries are more severe than they would be for a normal person
      - direct cause
        
        uninterrupted chain of events between the negligent act and the injury
      - indirect cause
        
        where a force came into motion after the defendant's act and combined with the negligent act to cause the plaintiffs injury
        
        intervening acts may break the chain of causation
        
        foreseeable acts do not break the chain
        
        ex: med mal after car accident
        
        unforeseeable intervening acts cut off liability
    - - actual harm or injury
      - plaintiff cannot recover nominal damages
      - economic damages and noneconomic damages, such as pain and suffering