AEW Final - Torts Flashcards
What is a battery?
To establish a prima facie case for battery, the plaintiff must show (i) an act by the defendant that brings about harmful or offensive contact to the plaintiff’s person, (ii) intent by the defendant to bring about such contact, and (iii) causation. For purposes of battery, anything connected to the plaintiff’s person is viewed as part of the plaintiff’s person. Furthermore, a person may recover for battery even though she is not conscious of the harmful or offensive contact.
When is contact harmful or offensive?
Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive by a reasonable person of ordinary sensibilities. Contact is deemed “offensive” if the plaintiff has not expressly or impliedly consented to it.
Is the defendant liable for only direct contact?
The defendant is liable not only for “direct” contact, but also for “indirect” contact; i.e., it will be sufficient if he sets in motion a force that brings about harmful or offensive contact to the plaintiff’s person.
What if the defendant only tried to commit an assault?
The doctrine of transferred intent applies in battery cases. Hence, a defendant acting with the intent to commit an assault who causes harmful or offensive contact to the plaintiff has committed a battery.
Does the plaintiff actually need to suffer damages?
It is not necessary to sustain a prima facie case for battery that plaintiff prove actual damages. Plaintiff can recover at least nominal damages even though he suffered no severe actual damage. In a majority of jurisdictions, punitive damages may be recovered where defendant acted with malice.
What is the doctrine of respondeat superior?
A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship.
Are intentional torts within the scope of employment?
It is usually held that intentional tortious conduct by employees is not within the scope of employment. In some circumstances, however, courts find intentional tortious conduct to be within the ambit of this relationship, such as when: 1) Force is authorized in the employment, e.g., bouncer. 2) Friction is generated by the employment, e.g., bill collector. 3) The employee is furthering the business of the employer, e.g., removing customers from the premises because they are rowdy.
How do we otherwise determine the scope of employment? What is a frolic and what is a detour?
An employee on a delivery or on a business trip for his employer may commit a tort while deviating from the employer’s business to run a personal errand. If the deviation was minor in time and geographic area, the employee will still be considered to be acting within the scope of employment rather than on a “frolic” of his own (for which the employer would not be liable).
How does one claim negligence?
To prevail in a negligence action, Patron must show that (i) Homeowner owed her a duty of care, (ii) Homeowner breached that duty, (iii) the breach of duty was the actual cause and the proximate cause of the harm, and (iv) Patron suffered damages.
What is the duty of care?
A general duty of care to act as a reasonably prudent person is owed to all foreseeable plaintiffs. If the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plain- tiff, the general duty of care extends from the defendant to the plaintiff. Under the majority (Cardozo) view, the plaintiff must be within the foreseeable zone of danger from the defendant’s activity to be owed a duty of care. Under the minority (Andrews) view, the duty of care is owed to anyone.
Is there another type of standard of care?
Professionals: Some persons are held to a standard of conduct different from that of the ordinary person.A person who is a professional or has special skills (e.g., doctor, lawyer, airplane mechanic, etc.) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing.Statutory: Alternatively, the standard of care in a common law negligence case may be established by proving the applicability to that case of a statute providing for a criminal penalty. If that is done, a specific duty imposed by the statute will replace the general common law duty of care. For the statutory standard to apply, the plaintiff must show that (i) she is in the class intended to be protected by the statute, and (ii) the statute was intended to prevent the type of harm that the plaintiff suffered. NIED: A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (1) plaintiff must be within the “zone of danger”; and (2) plaintiff must suffer physical symptoms from the distress. Duty to Act: As a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others. This general rule is, however, subject to exception, as indicated below. One who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance. One whose conduct (whether negligent or innocent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person. Duty to Prevent Harm from Third Persons: Generally, there is no duty to prevent a third person from injuring another. In some situations, however, such an affirmative duty might be imposed. In such cases, it must appear that the defendant had the actual ability and authority to control the third person’s action. Thus, for example, bailors may be liable for the acts of their bailees, parents may be liable for the acts of their children, employers may be liable for the acts of their employees, etc. It is generally required for imposition of such a duty that the defendant knows or should know that the third person is likely to commit such acts as would require the exercise of control by the defendant.
What is the effect of a breach of duty?
When the defendant’s conduct falls below the level required by the applicable standard of care, he has breached his duty. If a statutory standard of care applies, most courts consider violation of the statute as “negligence per se,” i.e., a conclusive presumption of duty and breach of duty. A minority of courts hold that the violation is only either (i) a rebuttable presumption as to duty and breach, or (ii) prima facie evidence of negligence.
How is causation determined?
Actual Cause The defendant’s conduct is the actual cause of the plaintiff’s injury if the injury would not have occurred but for the defendant’s conduct. Proximate Cause In addition to being the actual cause, the defendant’s conduct must also be the proximate causeof the injury. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his conduct. In an indirect cause case, an intervening force comes into motion after the defendant’s negligent conduct and combines with it to cause the plaintiff’s injury. If the defendant’s negligence created a foreseeable risk that this intervening force would harm the plaintiff, the defendant is liable for the harm caused. Under this rule, if the defendant’s negligence created a foreseeable risk that a third person would commit a crime or intentional tort, the defendant’s liability will not be cut off by the crime or tort. On the other hand, if the crime or tort is not foreseeable, it will be deemed a superseding force and cut off the defendant’s liability for the harm.
How is damage determined?
A plaintiff is entitled to be compensated from the tortfeasor for all her damages, even if the extent or severity of the harm is unforeseeable (i.e., the tortfeasor takes his victim as he finds her). Here, X suffered X after X. This constitutes recoverable damages and completes X’s prima facie case.
Consent
Generally, A defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant’s act. Consent may be given expressly; it may also be implied from custom, conduct, or words, or by law.
