Elements for Intentional and Negligent Torts Flashcards
Elements of an Intentional Tort (4)
(1) Intent (specific or general)
(2) Act
(3) Causation
(4) Injury
Specific Intent v. General Intent
- Specific intent: Purpose/intended to do harm
- General intent: Had knowledge to substantial certainty action would cause harm
Elements of Battery (3)
(1) An intentional act by D
(2) that causes harmful OR offensive contact
(3) to the P’s person
Harmful Contact v. Offensive Contact
- Harmful contact: bodily contact resulting in “any physical impairment of the condition of another’s body, or physical pain or illness”
- Offensive contact: bodily contact offending a reasonable sense of personal dignity
Elements of Assault (4)
(1) D’s Intentional act
(2) that causes reasonable apprehension in P
(3) of imminent
(4) harmful or offensive contact
Elements of False Imprisonment (4)
(1) D’s intentional
(2) restraint of P
(3) that results in the confinement of P within a bounded area wherein
(4) P is conscious of the confinement or suffers some harm from it
Note: if there is a reasonable means of escape without P’s losing their dignity, does not constitute false imprisonment
Elements for IIED (3)
(1) D who intentionally or recklessly
(2) causes P severe emotional distress
(3) due to D’s extreme and outrageous conduct
Elements to Trespass to land (4)
(1) Defendant’s intentional
(2) entry or interference with P’s exclusive possession
(3) of P’s land
(4) without P’s permission
Elements of Trespass to Chattel (4)
(1) D’s intentional
(2) interference with P’s use or possession
(3) of P’s personal property
(4) that causes P some injury or damages
Note: actual damages must be proven to recover (nominal does not apply)
Elements of Conversion (3)
(1) D’s intentional
(2) substantial interference with P’s ownership, use or right of possession of P’s personal property or unjustifiable and unwarranted dominion and control over P’s personal property
(3) wherein injury to P results
What information in documents is protected by Conversion
(1) Literary property
(2) scientific invention
(3) secret plans
Technical Injuries for Intentional Torts
Battery -Harmful or offensive contact Assault -Reasonable apprehension False Imprisonment -Confinement to a defined (i.e. bounded) area IIED -Severe emotional distress TTL -Entry onto real property TTC -Intermeddling or dispossession of personal property Conversion -Substantial interference or destruction of personal property
Elements of a Negligence Action (5)
(1) Duty
(2) Breach
(3) Causation
(4) Damages (actual damages only)
Elements to determine the SOC (4)
(1) Reasonable Prudent Person (and professional)
(2) Case law
(3) Non-Tort Specific Statutes
(4) Tort Specific Statutes
Elements that must be proven to be covered under TN Good Samaritan law (4)
- Person acts voluntarily
- Person renders emergency care
- Person acts in good faith, and
- Person does not commit gross negligence
Legal Malpractice SOC elements (3)
(1) Attorneys employment
(2) Attorney’s neglect of reasonable duty; and
(3) Such negligence resulted in and was the proximate cause of loss (damages) to the client
3 SOC rules that courts can consider in reasonable prudent professional cases
(1) Locality Rule
(2) Same/Similar locality
(3) National Standard
3 standards of informed consent
(1) Subjective standard (minority rule)
What the patient would do
(2) Objective standard (TN uses this, majority rule)
What a reasonable prudent person in the patient’s position would have decided if adequately informed of all significant perils
(3) Modified objective standard
Constructive Knowledge can be demonstrated by P in 2 ways
(1) By showing that a store employee was present in the immediate area; or
(2) By showing that the substance had been on the floor for such a time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises
Elements for NIED in TN (4) When a plaintiff DOES witness the accident
(1) P be sufficiently near the injury-causing event to allow sensory observation of the event;
(2) the injury to the third-person was, or was reasonably perceived to be, serious or fatal;
(3) P must have a “close” relationship w/ the
injured or deceased party; and
(4) P must present expert medical or scientific evidence that s/he has suffered a severe
emotional injury.
Elements for NIED when a plaintiff does NOT witness the accident
(1) the actual or apparent death or serious physical injury of another caused by the D’s negligence;
(2) the existence of a close and intimate personal relationship between the P and the deceased or injured person;
(3) P’s observation of the actual or apparent death or serious physical injury at the scene of the accident before the scene has been materially altered; and
(4) the resulting serious or severe emotional injury to the P must be caused by the observation of the death or injury.
The following nonexclusive factors are pertinent to support a P’s claim
that s/he has suffered a serious mental injury
(1) Evidence of physiological manifestations of emotional distress
(2) Evidence of psychological manifestations of emotional distress
(3) Evidence that the P sought medical treatment, was diagnosed with a medical or psychiatric disorder, and/or was prescribed medication;
(4) Evidence regarding the duration and intensity of the P’s physiological symptoms, psychological symptoms, and medical treatment;
(5) Other evidence that D’s conduct caused the P to suffer significant impairment in his or her daily functioning; and
(6) In certain instances, the extreme and outrageous character of the D’s conduct is itself important evidence of serious mental injury
Two types of consent
- Express consent
2. Implied Consent
Defense of self (2 elements)
- Reasonable belief
2. Proportionate force
Shopkeepers privilege
a shopkeeper is privileged to detain a person for reasonable investigation whom he reasonably suspects to have taken chattel unlawfully
3 elements of informed consent
i. Doctor had DUTY to adequately disclose the material risks before securing the patient’s consent
ii. If the patient had been informed of the risks, the objective patient would not have consented to the treatment (majority)
iii. The adverse consequences that were not disclosed actually occurred
Negligence per se (3)
a. P is class of persons statute/regulation is designed to protect
b. Harm suffered is type of harm statute/regulation is designed to protect
c. Statute/regulation is an appropriate standard of care for civil litigation (tort liability) under the circumstances of the case
Effect of violating a statute (3)
i. violation creates only prima facie case from which jury may draw an inference of negligence, which can be rebutted by showing an adequate excuse
ii. Majority view: negligence per se; if P was using reasonable care it wouldn’t matter; establishes conclusive evidence of negligence, legal excuse required to be excused
iii. Minority view: only some evidence of negligence, should go to a jury to determine
Elements to recover in a slip and fall case
a. actual or constructive knowledge of some condition on the premises by owner/operator
b. that the condition posed an unreasonable risk of harm
c. that owner/operator did not exercise reasonable care to reduce or eliminate risk; and
d. that owner/operator’s failure to use such care proximately cause P’s injuries
Constructive knowledge could be proved by (2 ways)
(1) showing that store employee was present in immediate area and could have easily seen substance and removed it or
(2) by showing that substance had been on floor with such time that it would be discovered and removed if D’s were exercising reasonable care in inspecting premises
3 elements of res ipsa loquitur
a. The accident is of the type that does not happen absent negligence
b. D had exclusive control over what caused the harm
c. action was not caused by P
2 elements needed to establish causation
(1) the cause in fact (but-for cause) and
(2) the legal or proximate cause
Limitations to NIED
1 - There must be an actual physical injury resulting from the emotional distress
2 - P has the burden of proof their physical harm was caused by D’s conduct
3 - The reaction of the P must be one that is “expected of normal persons”
Under the MAJORITY rule, these are the requirements for a claim of NEID
i. Plaintiff must be in the “zone of danger” AND
ii. Plaintiff must suffer physical symptoms as a result of the emotional distress
Firefighters rule
P’s like firefighters and police officers are not permitted to recover for injuries that result from the negligence that required their assistance and presence on the premises
Majority rule: Landlord is liable for harm caused by tenant’s dog IF (4)
- LL had actual knowledge of the dog’s presence on the leased premises, AND
- LL had actual knowledge of the dog’s dangerous propensities, AND
- LL had the ability to control leased premises, AND
- LL failed to exercise that ability to control
2 types of comparative negligence
i. Pure – plaintiff’s damages are reduced in proportion to his own negligence
ii. Modified – plaintiff’s damages are reduced in proportion to his own negligence (50% and 51% rule)
2 types of Assumption of Risk
Express and Implied
Express assumption of the risk
A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm (example, signing a waiver)
Implied assumption of the risk
Plaintiff knew of particular risk and made the choice to voluntarily encounter it
Elements of Strict Liability
i. Duty to avoid the harm, based on the nature of the defendant’s activity (DUTY)
ii. The dangerous aspect of the activity was the cause in fact and legal cause of plaintiff’s injury (CAUSATION)
iii. Damages were suffered by the plaintiff (HARM)
2 circumstances where strict liability is imposed
i. Wild animals
ii. Certain very hazardous activities (“ultrahazardous” or “abnormally dangerous”)
In determining whether an activity is abnormally dangerous, the following factors are to be considered (6)
- existence of a high degree of risk of some harm to the person, land or chattels of others;
- likelihood that the harm that results from it will be great;
- inability to eliminate the risk by the exercise of reasonable care; (start with this)
- extent to which the activity is not a matter of common usage;
- inappropriateness of the activity to the place where it is carried on; and
- extent to which its value to the community is outweighed by its dangerous attributes.
