Chapter 7 - Torts Flashcards
Contributory negligence, comparative negligence, and assumption of the risk allow defendants to _____ negligence claims
rebut
Tort
A wrong. There are three categories of torts: 1. Intentional Torts, 2. unintential torts (negligence) and 3. Strict liability.
Intentional Tort
A category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries.
Assault
The threat of immediate harm or offensive contact or 2. any action that arouses reasonable apprehension or imminent harm.
Battery
Unauthorized and harmful or offensive direct or indirect physical contact with another person that causes injury.
False Imprisonment
The intentional confinement or restraint of another person without authority or justification and without that person’s consent.
Merchant Protection statutes
Statutes that allow mechants to stop, detain, and investigate suspected shoplifters without being hel liable for false imprisonment if 1. there are reasonable grounds for suspicion, 2. suspects are detaind for only a resonable time and 3. investigations are conducted in a reasonable manner.
Tort of Misappropriation of the Right to Publicity
An attempt by another person to appropriate a living person’s name or identity for commercial purposes.
Defamation of Character
False statements made by one person about another. In court the plaintiff must prove that 1. the defendant made an untrue statement of fact about the plaintiff and 2. the statement was intentionally or accidentally published to a third party.
Libel
A false statement that appears in a letter, newspaper, magazine, book, photograph, movie, video and so on.
Intentional infliction of emotional distress
A tort that says a person whose extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress.
Unintentional Tort
A doctrine that says a person is liable for harm that is the foreseeable consequence of his or her actions
res ipsa loquitur
A tort in which the presumption of negligence arises because 1. The defendant was in exclusive control of the situation and 2. the plaintiff would not have suffered injury but for someone’s negligence. The burden switches to the defendant to prove that he or she was not negligent.
Strict Liability
Liability without fault
Elements of negligence
- By Statutory Law we owe a Duty of Care
- Breach of Duty of Care
- Causation
Duty of Care
Each person owes others a duty of ordinary care.
Sometimes a defendants duty of care is determines by the status of the defendant: Professionals (Doctors, attorneys, Accountants, et al)
Sometimes a defendents duty of care is determined by the status of the plaintiff: Premises Liability
An unknown trespasser
A known Trespasser
An invitee
A Patron (not necessarily a customer)
Breach of Duty of Care
The Reasonable Person Standard
Hypothetical Standard Yet Objective, not subjective, analysis
Causation
Actual Cause => The “But For” Test
Proximate Cause => “the foreseeability” test
“Unforseen Circumstances”
“Zone of Danger”
Palsgraf vs Long Island railroad
KEA
KEA: Exceptiomgs tpo the requirements that plaintiff must be able to identify
Res Ipsa Loquitor
The thing speaks for itself
Cant identify what defendent did that was negligent
Plaintiff cant have done anything to contribute to accident
Thing could not have happened without negligence
Negligence Per Se
- Defendant violated a statute intended to protect others like Plaintiff
- Assists plaintiff in (1) establishing that defendant owed plaintiff a duty of Care, and (2) proving Defendent Breached the Duty of Care Owed to Plaintiff
Defenses to Negligence
- Assumption of the Risk
- Superseding Cause (as opposed to intervening cause)
- Comparative Fault
- Last Clear Chance
Assumption of the Risk
- The risk assumed must be inherent to the activity
- The activity itself must be inherently dangerous
- Inherent: even when done properly there is a high probability of danger
Superseding Cause (as opposed to intervening cause)
Eggshell skull doctrine: defendant who commits a negligent act takes the defendant as they find them
Comparative Fault Elements:
Contributory Negligence
Comparative Negligence
Modified Comparative Negligence
Last Clear Chance
If the plaintiff had taken action, they would have avoided injury
(very rare occurrence)
Comp Fault: Contributory Negligence
- If the judge or jury finds that plaintiff, by own negligence, at all contributes to the accident then plaintiff recovers nothing
Comp Fault: Comparative Negligence
Plaintiff’s recovery is reduced by the percentage of fault allocated to plaintiff by judge or jury
Comp Fault: Modified Comparative Negligence
Two step process: If judge or jury finds that plaintiff is more at fault than defendant, then plaintiff recovers nothing. If defendant is more at fault, follow comparative negligence
Strict Liability
If plaintiff had taken action, they wouldve avoided injury
When courts attempt to determine whether a reasonable person would have owed a duty to others, they consider all but which of the following questions?
How likely was it that a crime would be committed?
Elements of res ipsa loquitor
- event is one that ordinarily does not occur without negligence
- other responsible causes including conduct of third parties and plaintiff have been eliminated
- indicated negligence is within the scope of defendants duty to plaintiff
then burden is shifted to defendent
