Final Exam Prep Flashcards
Intent
(1) Knowledge that actions are substantially certain to make contact, OR
(2) Purpose to bring about results
Transferred Intent
Intent to commit a tort upon A is pieced together with resulting injury to B
(applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels)
Battery
Actor is subject to liability if
(1) He acts intending to cause a harmful or offensive contact, AND
(2) He causes a harmful or offensive contact (Plaintiff only has to show that defendant made contact)
Test is what would be offensive to the ordinary person not unduly sensitive to a personal dignity
Assault
An actor is subject to liability if
(1) He intends to cause imminent apprehension of a harmful or offensive contact, AND
(2) He causes imminent apprehension of a harmful or offensive contact
False Imprisonment
Direct restraint of one person of the physical liberty of another without adequate legal justification
(1) Acts intending to unlawfully or unjustifiably confine or restrain someone within a bounded area
(2) Causes someone to be unlawfully or unjustifiably confined or restrained within a bounded area, AND
(3) Plaintiff is conscious of the confinement (minority jurisdictions require harmed by it)
There must be no reasonable means of escape and confinement may occur through barriers, force/threats, or duress (not mere moral persuasion)
Intentional Infliction of Emotional Distress
When one intentionally subjects another to the mental suffering incident to serious threats to physical well-being
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for emotional distress, AND
(2) Bodily harm to the other results from it
*All jurisdictions require that the plaintiff prove severe is not just mere emotional distress - there has to be actual damage
Bystander Rule
When defendant’s conduct is directed at a third person and not a plaintiff, plaintiff cannot recover for the emotional distress unless it can be shown that the defendant intended to cause harm
Limitations on the Bystander Rule
Conduct must take place in the presence of the plaintiff, and conduct must be directed at a family member of the bystander’s immediate family
Trespass to Land
Every unauthorized, and therefore unlawful, entry into the land of another is a trespass. An actor is subject to liability when
(1) He acts intending to enter or remain on the land of another without permission or consent to do so, AND
(2) He in fact enters or remains on the land of another without such permission
Bounds of Tresspass
Land in its legal significance has an indefinite extent, upwards as well as downwards; land is not limited to soil/surface and plaintiff’s exclusive right to possess land extends above or below to a limited degree (includes physical objects and people entering)
Trespass to Chattels
One who uses or intentionally intermeddles with a chattel which is in possession of another is liable for trespass if (she causes damage)
(1) Chattel is impaired as to its condition, quality, or value
(2) Possessor is deprived of use of the chattel for a substantial time
(3) Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest, OR
(4) Dispossesses the other of the chattel
Conversion
Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. An actor is subject to liability for conversion if:
(1) She acts intending to exercise dominion and control over a chattel
(2) She exercises dominion and control; AND
(3) The interference is serious enough to require defendant to pay full value
*If someone buys something from a converter, they are also liable for conversion
Consent
Willingness in fact for the conduct to occur
(1) Can be expressed (“go ahead”) or implied (through conduct)
(2) If plaintiff’s behavior was such as to indicate consent on her part, defendant was justified in his act, whatever her unexpressed feelings may have been - defendant could only be guided by overt acts and manifestations of plaintiff’s feelings
*Consent by fraud or deceit is not valid
Self-Defense
(Apparent Necessity) Privilege exists when the defendant reasonably believes that force is necessary to protect herself from an imminent threat; AND
(Proportionality) privilege is limited to use of force which is, or reasonably appears to be, necessary to protect against the threatened injury
Basic Rules for Self-Defense
Revenge is not self-defense, nor is “he deserved it”; words alone are not an imminent threat, nor is threat of future harm; no duty to retreat before using deadly force, but a minority of jurisdictions impose a duty to retreat before using deadly force
Defense of Others
Allowed to the same extent you can defend yourself
(you must reasonably believe the victim is privileged to use force (stand in their shoes))
Defense of Property
May use non-deadly force but
(1) No force intended to or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with chattel
Unless intrusion threatens death or serious bodily harm to occupiers or users of premises
Recovery of Property
A property owner may use reasonable force to recover chattel
(1) Courts expect defendant will make a demand first
(2) Requires fresh pursuit
(3) No room for mistakes, even reasonable ones
(4) Not reasonable to use deadly force or force calculated to inflict serious bodily harm
Shopkeeper’s Privilege
(defense to false imprisonment): privilege in favor of a merchant to detain for reasonable investigation a person whom he reasonably believes to have taken a chattel unlawfully
Necessity (defense to trespass/trespass to chattels/conversion)
A person will be excused from trespass when they act to avoid a greater harm
Public Necessity
Avoid harm to public or avert a public disaster; not liable to compensate
Private Necessity
Relieved of tort to trespass, but must compensate plaintiff for damage done
Elements of Negligence
(1) Duty to use reasonable care: requires actor to conform to certain standard of conduct for protection of others against reasonable risks of harm
(2) Breach of Duty: failure to conform to required standard
(3) Causation: Reasonably close causal connection between conduct and relating injury
(cause in fact and proximate cause)
(4) Damages: actual loss or damage results to interests of another
Negligence Formula
In all cases of this kind in the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relations such precautions bear to the beneficial use of the premises
Cost is a factor
Mathematical: When B<PL - negligence exists
Standard of Care of the Ordinary Reasonably Prudent Person
What a RPP should known and act:
Community’s common sense, common experience, and common understanding; common practices and customs if reasonable; Emergency - how would a reasonable person act in an emergency context
Standard of Care for Children/Minors
It is the duty of the child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances - unless it is an inherently dangerous activity
When the child engages in an activity that is inherently dangerous, child should be held to an adult standard of care
Mental Health Standard
Held to the same standard as everyone else despite circumstances or condition of their illness
Physical Health Standard
Considered in the context of a RPP with the same physical limitations
Professional Standard of Care
One who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care
Requires: knowledge, skill, good judgement, use of due care
Medical Malpractice requires informed consent
Full disclosure of all material risks incident to treatment must be made (things that would likely affect patient’s decision)
Exceptions to informed consent
Patient already knows of risks, disclosure would be detrimental to patient, or it’s an emergency and the patient is in no condition to decide
Doctors must disclose economic or research interests when
they may affect medical judgement
Standard Imposed by Statute
May be used as a shortcut to establish a person’s duty to negligence
Excused Statutory Violations
Incapacity (child), lack of actual or constructive knowledge, inability to comply after reasonable diligence, emergency/compliance would involve greater risk of harm
Negligence Per Se
Plaintiff belongs to the class that the statute was intending to protect; AND
Plaintiff’s injury is of a type that the statute was designed to prevent
Proof of Negligence
Burden of proof is on the plaintiff, standard is preponderance of evidence (more likely than not)
Types of Evidence
Direct evidence (eyewitnesses), circumstantial evidence (allows us to infer defendant was negligent)
Res Ipsa Loquitur
Allows plaintiff to avoid a directed verdict and get to the jury in a case where plaintiff has no direct or circumstantial evidence of negligence other than the mere accident itself
Judge decides if res ipsa applies and its procedural effect, ordinary care is that res ipsa creates an inference of negligence, depending on procedural effect, jury must decide where defendant was negligent
“But for” Test
Negligence is a cause in fact of the harm to another if the harm would not have occurred but for that negligence
Defendant’s negligence is not a cause in fact if the harm would have occurred regardless of the negligence
Single Indivisible Rule
Where separate acts of negligence combine to produce directly a single indivisible injury each tortfeasor is responsible for the entire result, even though his act alone might have caused it
Substantial Factor Test
Defendant’s negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm (material or substantial element)
Use this when there are two or more causes and “but for” test does not yield satisfactory results - when either of two or more acts would alone sufficed to cause the injury
Summers Rule
Where two or more defendants commit substantially similar negligent acts, only one of which caused the plaintiff’s injury, burden of proof on the issue of causation shifts to the defendants
Palsgraf Rule
Defendant is the proximate cause of the harm if at the time they acted, they could anticipate or foresee the type of harm that injured the plaintiff
(Majority) Defendants owe a duty to those whose injury is a type that made the conduct unreasonable in the first type - it is foreseeable that the actions or inactions could harm the defendant - was the plaintiff in the zone of danger?
(Minority): duty is owed to the whole world and proximate cause is only a limiting factor
Intervening Cause
If the subsequent act is a normal or foreseeable consequence of the situation created by the defendant’s negligence (within the scope of original risk created), the defendant is still liable for harm. Subsequent intervening act does not break the chain of causation of defendant’s original negligent act
Superseding Cause
If a subsequent act or event is NOT normal or foreseeable, it is superseding and breaks the chain of causation. Defendant is not liable for increased harm. Normally, intentional wrongdoing by a third party or unexpected weather event (not foreseeable in the context)
Rescue Doctrine
Danger invites rescue - it is foreseeable that someone will try to rescue the person that the defendant places in danger (even if it is himself). An injured rescuer can sue the party which caused the danger requiring the rescue in the first place
Joint and Several Liability
Each of the tortfeasors is liable jointly and each is also individually liable for the full amount
*For our purposes, assume pure and several liability unless told otherwise
Joint and Several Liability imposed under 3 scenarios
(1) Acting in concert: there is an express or implied agreement, mere knowledge is not enough, and mere presence at the scene is not enough
(2) Vicarious liability: common duty scenarios (employer and negligent employee are both on the hook for the employee’s negligence)
(3) Indivisible Injury: independent actors combine to cause a single, indivisible injury
No Duty to Aid and Rescue
In general, there is no duty to come to the aid of someone, to prevent third parties from harming others, or to prevent individuals from harming themselves
Exceptions to the No-Duty Rule
(1) Special Relationship to the victim: family members, employer/employee, shopkeeper/business patron, carrier/passenger, hotel/guest, school/student
(2) “Take Charge” or “Control” Rule: parent/child, employer/employee, therapist/patient
(3) Innocent Creation of the Risk: hit and run
(4) Voluntary Assumption of Duty: make situation worse
(5) Statute: ex. landlords instructed to provide locks
No Duty Owed to Trespassers
No duty is owed until it is discovered (then there is a general duty to avoid harm. If there are known dangers or frequent/anticipated trespassers, you treat the duty to person like a licensee)
Licensees
A person who enters the premises with permission/consent “for their own purposes” (social guest). You have a duty to warn them of any KNOWN dangers which are hidden or unknown to guest
Invitees
A person who enters the premises in furtherance of “owner’s business.” You have to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. Only invitee status as to scope of the invitation (time and place considerations)
Attractive Nuisance
Possessors of land are liable for harm to trespassing children where children are likely to trespass because of an artificial condition on the land that involves a risk of death or serious bodily injury. The child does not appreciate the danger, utility of condition/burden of eliminating the danger is slight compared to the risk involved, and possessor fails to exercise reasonable care to protect children
Damages
Nominal, compensatory, and punitive (only for egregious intentional torts)
Physical injury or property damage required for negligence
Contributory Negligence
All or nothing rule: plaintiff is barred completely if the plaintiff is negligent in any amount
Pure Comparative Negligence
Plaintiff’s recovery is reduced by the % of fault attributable to them
“Not greater than” Modified Comparative Negligence
Plaintiff’s recovery is reduced by the % of fault attributable to them as long as their fault is not greater than the fault of the defendant
“Not as great as” Modified Comparative Negligence
Plaintiff’s recovery is reduced by the % fault attributable to them as long as the plaintiff’s fault is not as great as the fault of the defendant
Slight/Gross Comparative Negligence
Plaintiff’s recovery is reduced by the % of fault attributable to them as long as plaintiff’s fault is “slight” compared to that of the defendant
Express Assumption of the Risk
Express agreements/contracts to assume a risk, even a negligently created risk, are generally enforced by the courts - complete bar
Exceptions to Express Assumption of Risk
Plaintiff cannot consent to: accepting the risk of an intentional injury, the risk of an injury where there is grossly unequal bargaining power (must be freely given), the risk of injury for a transaction that affects public interest
Implied Assumption of Risk
Plaintiff must: actually know about the risk, appreciate the magnitude of the risk, and voluntarily encounter the risk
Statute of Limitations
Assigns a certain time after which rights cannot be enforced by a legal action
Policies: promote stability and prevent stale claims
Accrual of a Cause of Action
At time of actual injury, but per the discovery doctrine, the time period will not start until the plaintiff discovers or in the exercise of reasonable care and diligence for their own health and welfare should have discovered the resulting injury
Vicarious Liability/Respondeat Superior
Employer can be held vicariously liable for the torts of its employee if the employee injures another during the course of their employment
*business should absorb the costs its undertakings impose on others
Going and Coming Commute Exception to Respondeat Superior
An employee driving to and from work is not acting within the scope of their employment - not applicable when an employee endangers others with a risk arising from or related to work (ex. drinking on the job)
Scope of Employment
An employee is acting within the scope of their employment when they are performing services for which they have been employed, or when they are doing anything reasonably incidental to their employment
Frolic
Pursuit of employee’s personal business as a substantial deviation from or an abandonment of employment
Detour
A deviation that is sufficiently related to the employment to fall within the scope of employment
Intentional Torts and Respondeat Superior
Employer is liable where employee commits an intentional tort in order to serve employer’s purposes
Independent Contractor
One who is engaged to perform a certain service for another according to their own methods, manner, free from control and direction of the employer in all matters connected with the performance of the service
Factors to consider with Independent Contractors/Respondeat Superior
Extent of control over details of work, whether the actor is engaged in a distinct occupation or business, whether the type of work is customarily performed under employer’s supervision, who supplies tools, equipment, and place of work, length of employment, how is the party paid, and parties’ belief as to nature of the job
