Bare Bones Flashcards
3 themes of torts
- Accident avoidance
- Loss Spreading
- Fairness
3 levels of intent
- Intend the harm
- Intend the action because it is harmful
- Substantial certainty that the harm would occur as a byproduct of the action
Hand Formula
Burden < Probability * Loss
Negligence is? (2 tests)
- Untaken precaution test
- Average Reasonable Person test (ARP is used for actions taken)
Elements of battery
- Intent
- Harmful or offensive contact
- Lack of Consent
Battery protects?
Physical integrity and personal dignity
Tort remedies?
Loss of wages, expenses incurred, pain and suffering, loss of future wages.
If wanton, willful or reckless conduct then punitive can apply
Self defense
There is a ton of information and I am not sure what exactly we need to know
Right of recapture is trigged by?
Initial possession by the owner and purely wrongful taking or conversion
Elements of assault
- An action that is intended to cause harmful or offensive conduct or the apprehension of harmful or offensive conduct.
- Apprehension of harmful or offensive conduct by the victim/plaintiff.
Assault protects people from fear (I don’t think this is phrased correctly)
Elements of IIED
- Intent or reckless
- Severe emotional distress
- Outrageous conduct
IIED protects mental/emotional wellbeing (I am not sure if that is the way that Feldman usually puts it)
Elements of tresspass
- Act
- Entry
- Intent
- Wrong (unauthorized)
Primary citicism
The conduct is unreasonable
Secondary criticism
Payment is necessary to compensate for harm done. Strict liability - not based on fault, based on harm
Justification (defenses) for torts
- Fairness or reciprocity
- Utility or efficiency - conduct is not wrong because it does not waste resources in comparison to the level of accidents imposed. (B < PL)
Strict liability
- Danger factors (inability to eliminate risk, high likelihood of risk, potential for great harm
- Abnormality - extent the activity is uncommon, if the location is inappropriate, value to the community
Negligence - Duty
Everyone owes a duty of reasonable care to everyone
Exceptions to duty
- Harm was not reasonably foreseeable.
- High B or low P
- Policy (Feldman said this in office hours but I don’t see it on the topic summary)
Elements of the Average Reasonable Person test
- Calculate the seriousness of risks and efficacy of precautions.
- Evaluate the interests of the people involved.
- Capacity - the actor must have capacity of ARP - skll, reflexes, coordination, judgement, etc.
Degrees of culpability
- Ordinary negligence
- Gross negligence
- Recklessness - ignoring known risk
- wantonness - knowledge of probable injury
Recklessness and wantonness - punitive damages
Negligence Per Se
Only used to determine breach
- A statute exists that is a safety statute.
- The statute is specifically intended to prevent the type of accident in question.
- The statute is intended to protect the class of person that includes the plaintiff.
Negligence Res Ipsa
Only used to determine breach
- The type of accident in question does not happen but for negligence.
- The defendant was in complete control of the circumstances.
- The defendant did not contribute to the accident.
Contributory Negligence
Any contribution by the plaintiff towards the accident voids the possibility for recovery of damages.
Comparative Fault
Plaintiff can recover damages based on the % that the defendant is at fault
