Final Exam Flashcards
General Intent
D knows with substantial certainty that consequences will result from his act
Specific Intent
D intends to bring about injury
Transferred Intent
Only applies to:
i. Assault
ii. Battery
iii. False imprisonment
iv. Trespass to land
v. Trespass to chattels
Are minors/incompetents responsible for their intentional torts?
Yes, requisite Intent
Damages for battery
- actual damage not required
- P can recover nominal damages if no actual
- punitive damages apply if D acted with malice
Damages for assault
- actual damages not required
- P can recover nominal
- P can recover punitive
Damages for false imprisonment
- actual damages not required
- nominal available
- punitive if malice
Damages for IIED
- actual damages REQUIRED
- must show sever emotional injury
- nominal does not apply
- punitive is available
Damages for Trespass to land
- entry onto the land
- nominal damages are available
- actual damage not required
Damages for trespass to chattel
- actual damage REQUIRED
- nominal damages do not apply
- dispossession = actual harm
Damages for Conversion
- full fair market value
2. replevin (return of the chattel)
Definition of Consent
willingness in fact for conduct to occur. can be express or implied
When is the defense of consent available?
a. If the P, who has the capacity to consent or by a person empowered to consent for him,
b. expressly or impliedly
c. consented to the particular conduct, or substantially the same conduct
Definition of apparent consent
- If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact
- That which a reasonable person would infer from P’s conduct
- Consent may be inferred as a matter of custom – if custom is to perform an act them consent inferred
Definition of consent implied by law
- May occur where the action is necessary to save a life (emergency situations) where the person is incapable of consenting
a. May be found to be an emergency by trier of fact
Who cannot consent to tortious conduct?
Mentally incompetent, drunk, and very young children (consent may be allowed if the incompetent person is capable of appreciating the nature, extent, and probable consequences of the conduct )
When is self-defense available?
a. When reasonable grounds to believe that he or she
b. Is being or is about to be attacked
c. May use reasonably proportionate force for protection against potential injury
Can you use deadly force in self-defense?
May NOT use deadly force unless he reasonably believes he is in danger of serious bodily injury; if you reasonably believe you are in danger of death or bodily harm, you can use deadly force
Majority v. Minority on self-defense
- Minority: “retreat to the wall” – has to try to get away from the attack
- Majority (TN): “stand your ground”
Majority v. Minority view defense of others
a. Minority view
i. Actor steps into shoes of the person defending and are privileged ONLY to the extent that the other person actually would be
b. Majority view (TN)
i. Actor is privileged to use force if has a reasonable belief (even though mistaken) that the other person has a right to self-defense
When is the defense of real property available?
a. Actor privileged to use reasonable force,
b. NOT intended or likely to cause death or serious bodily harm,
c. To prevent or terminate another’s intrusion
d. Upon the actors land
e. IF the intrusion is not privileged,
f. The actor reasonably believes that the intrusion can be terminated only by the force used,
g. AND the actor has first requested them to leave and they have refused or the actor believes the request will be useless/harm will be done before it can be made
Defense of Personal Property
A person wrongfully deprived of chattel is privileged to use reasonable force to recover the chattel immediately after its dispossession – only when it can be done without unnecessary violence or beach of peace (HOT PURSUIT)
Public Necessity
a. permits the defendant, acting as the champion of the public, to destroy, damage, or use the real or personal property of another as long as the defendant reasonably believes that doing so is necessary to avert an imminent public disaster
b. complete privilege – pays $0 to P
Private Necessity
a. A defendant is privileged to enter or remain on land in the possession of another IF it is or reasonably appears to be necessary to prevent serious personal harm; when doing so out of private necessity
b. Private necessity is an incomplete or partial privilege bc it allows D to commit the tort but D responsible for any actual damages he causes in doing so
I. No liability for technical tort but must pay for actual damages caused
2 types of causation
- Cause in fact (but for cause)
2. Proximate cause (legal cause)
Learned Hand Formula
B < P x L (burden, possibly, the gravity of harm)
Reasonable Prudent Person (includes professionals)
Generally, SoC determined by a reasonable man under like circumstances (objective standard)
Definition of informed consent doctrine
physician required to adequately inform patient about treatment protocol, available alternatives, and collateral risks; requires full disclosure of all material risks
Dram shop acts
generally establishes civil liability of establishment arising out of sale of alcohol to visibly intoxicated persons or minor who subsequently causes death or injury to a third party as result of alcohol related car crashes and other accidents
Direct evidence
evidence of testimony by a witness about a matter within personal knowledge that does not require drawing an inference
Circumstantial evidence
evidence that requires drawing inferences (must establish that it is more likely than not (not just possibility) that dangerous condition existed long enough to give owner/operator reasonable opportunity to discover condition)
Res Ipsa Loquitur
- “the thing speaks for itself”; A particular type of circumstantial evidence.
- When experience tells us that the incident would not have occurred in the absence of negligence
Definition of Cause in fact
Ask “but-for” D’s negligence, would harm have occurred
Substantial factor test
if the collision would have happened even without the negligent conduct, then the negligence was not a substantial factor
Loss of Chance Doctrine
i. Allows for recovery if the D’s negligence reduced the P’s chance of recovery
ii. Under the traditional but-for causation rule, if P had a survival chance below 50%, P could not prove that D’s negligence made it more likely than not that he would die
iii. But SOME courts (not TN) allow recovery for the “lost chance” even when chances of survival start out below 50% (“harm” is reduction in chance of survival not death)
Joint and Several Liability
i. When this applies, 2 or more D’s can each be held liable for the full amount of P’s damages, regardless of their respective degrees of fault
ii. P can collect from ANY one, or more, of the D’s up to the full amount of the judgment
iii. A D who believes he has paid more than his share of the judgment based on his level of fault can pursue an action for “contribution” against other D’s – burden shifts to D’s to resolve amongst themselves
Alternative Liability Theory
where the conduct of two or more actors is tortious, and it is proven that the harm to P has been caused by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each actor to prove that he has not caused the harm (applies when impossible to identify the responsible party)
Concert of action theory
Parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct to accomplish a particular result. The agreement need not be expressed in words and may be implied and understood to exist from the conduct itself. Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as his own acts.
Enterprise liability
industry-wide liability
Market share liability
Where multiple manufacturers of fungible goods are named as defendants in a negligence action and it cannot be determined which manufacturer caused the precise harm complained of, the manufacturers will be held proportionately liable in accordance with their market share in the market of the good that caused the injury
Foreseeability test
i. Both (1) the P and (2) the type of P’s injury must be foreseeable in order for the negligent D to be liable for the harm to the P
1. Is the P foreseeable?
2. Is the injury of the type that could be expected to occur based on the D’s negligence?
3. Another way to ask it: is the harm within the risk of what makes the D’s conduct negligent?
ii. If TYPE of harm was reasonably foreseeable, then D is liable even if harm was of greater extent or occurred in a different manner than expected;
iii. An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious
iv. D only liable for the consequences flowing from his negligent act that are foreseeable to a reasonable person at the time of the negligent act
1. Whether damage is of a kind that a reasonable person would have foreseen
Zone of danger
a. “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension
b. So whether an actor owes a duty is a function of the risk involved AND the persons who might foreseeably be endangered by that risk
Directness test
i. Proximate cause is said to exist for ALL harm that flows from D’s negligence, even if not foreseeable, as long as the harm was a direct result of the conduct (and not too remote)
ii. Focus on whether harm was a DIRECT result of D’s negligence; foreseeability of harm not required
iii. Limiting principle-remoteness of harm
- Whether particular harm is the “ordinary and natural” result of the negligence
- If too remote, D not liable
Majority v. Minority Proximate cause
1) Foreseeability (majority)
2) Directness test (minority)
What determines whether intervening cause breaks chain?
i. Whether the intervening act is a “normal or foreseeable consequence of the situation created by the defendant’s negligence
ii. Finder of fact determines whether intervening cause breaks chain
When are nominal damages available?
intentional tort cases
Compensatory damages
Designed to restore P to pre-tort position
Punitive damages
awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future (not recoverable for negligence)
Consortium Damages
- Derivative claim that arises from someone else’s personal injury claim
- Based on harm to a relational interest (husband-wife, child-parent) – loss of spousal companionship
Wrongful death action
Statutory action that allows statutorily designed survivors of a decedent to recover for injuries to them that were caused by the wrongful death of the decedent
Survivorship action
Statutory action that allows the decedent’s cause of action against the tortfeasor to survive the death of the decedent. Recovery belongs to the decedent’s estate
Exceptions where D has an affirmative duty to act
i. Defendant created the harm
ii. Defendant assumed a duty by stepping in to act (to aid or rescue someone)
iii. Special relationship between the parties (parent-child, employer-employee, common carrier-passenger, innkeeper-guest)
Duty to warn
Any duty to warn arises from a threat to a specific identifiable victim and does NOT apply to general threats made about a large and amorphous group
Duty to persons not on the premises
a. No duty to protect those off the premises from natural conditions on the land
I. Exception – keep trees trimmed to protect passers-by in urban areas
b. No duty to protect those off the premises from artificial conditions on the land
I. Exception – duty to protect others from harm caused by unreasonably dangerous artificial structures or conditions that abut adjacent land
ii. Exception – duty to protect passers-by from unreasonably dangerous conditions
Duty to trespassers?
No duty unless their presence is known
Definition of trespasser
a person who enters or remains upon the land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise
Definition of licensee
a licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent; someone who comes on land with permission, but for his/her own purposes
Duty to licensee?
i. DUTY to take reasonable care to make safe or warn of known dangerous conditions on the land (natural or artificial, OR from third persons on the land), but may not have to warn of obvious dangers
ii. NO duty to inspect for or repair defects
iii. Duty to exercise reasonable care for “active operations” that involve a risk of harm
iv. Generally, licensee takes premises as he finds them, although landowner has duty to warn of hidden dangers known to the landowner
Definition of invitee
an invitee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent; someone who comes on land with permission, but for the landowner’s own purposes (ex. customer at a shop)
Duty to invitee?
i. DUTY to keep premises reasonably safe
ii. These are same duties owed to licensees, plus DUTY to make reasonable inspections for defects. May not have to warn of obvious dangers
iii. Higher duty owed to invitee. Landowner must take reasonable care to keep premises safe for the invitee. May include duty to protect from criminal attacks by third parties
iv. Individual could be invitee even if don’t purchase something – BUT if there was no intention now or in future of being a customer then not an invitee
“Attractive Nuisance” Doctrine
i. Attractive nuisance only applies if there is a hidden trap OR inherently dangerous instrumentality peculiarly attractive to children
ii. The instrumentality or condition must be of such a nature likely to reasonably incite the curiosity of a child AND fraught with such danger as to reasonably require precaution to prevent children from making improper use of it
Contributory negligence
conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is legally contributing to the cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm
Contributory negligence Minority rule
Complete bar to recovery in DC, AL, MD, NC, and VA
Last Clear Chance Rule
Where both D and P are negligent, P will be able to recover despite his or her own negligence if D knew of P’s situation and yet failed to exercise ordinary care to avoid the harm at a time when D had an opportunity to do so
Comparative Negligence
Has replaced contributory negligence in most states (51% or 50% rule)
51% rule
P can recover if they were 50% or less negligent
50% rule
P can recover if they were 49% or less negligent
Joint tortfeasors
Each of two or more persons whose tortious conduct is a legal cause of a single and indivisible harm to the injured party is subject to liability to the injured party for the entire harm
Concurrent negligence
2 tortfeasors who act to cause a single, indivisible injury to the plaintiff
TN exceptions where joint and several liability remains viable
a. Defendants in the distribution chain in a products liability case
b. Multiple defendants who breached a common duty to the plaintiff
c. Defendants who acted in concert to cause the plaintiff’s harm
d. Vicarious liability situations, such as respondeat superior
e. Persons who have a duty to protect others from foreseeable intentional torts of third persons are jointly and severally liable with that third person
Vicarious Liability
Liability imposed on a D not for D’s own actual wrongful conduct, but for the negligence of someone else with who the D has a special relationship (employer-employee, joint venturers)
“Respondeat superior”
a. An employer may be held vicariously liable for the torts of an employee committed within the scope of the employment under the doctrine of respondeat superior
i. An employee acts within the scope of employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
Strict liability for animals
The possessor of a wild animal is strictly liable for physical harm done to the person of another . . . if that harm results from a dangerous propensity that is characteristic of wild animals of that class.”
The current MAJORITY law on strict liability for harm done by wild animals is
“The possessor of a wild animal is strictly liable for physical harm done to the person or property of another if that harm results from a dangerous propensity that is characteristic of wild animals of that class. . . . [L]iability is imposed against the defendant without regard to due care used.”
Strict liability for dangerous activities
A defendant who brings onto his land a non-natural condition does so at his own peril – he may be held strictly liable for any harm to others that results from that non-natural use of the land
