final torts rules Flashcards
Intent
conscious desire or knowledge that some result will occur or that a result is substantially certain to occur. an occurrence that is highly likely to occur, may be reckless, but it is not substantially certain to occur.
Transferred Intent
Imposes liability for an unforeseen P when the D acts intentionally to injure another. Limits to liability on foreseeable grounds.
Assault
imminent apprehension of a harmful or offensive contact. Awareness is necessary. Words alone not sufficient. Actual damage not required. Words + present ability to carry out threat. Reasonable person standard.
Battery
Intentional infliction of a harmful or offensive bodily contact. Awareness not necessary. Actual damage not required. Reasonable person standard.
False Imprisonment
intentional confinement within a bounded area of a person by threats, by assertions of legal authority or by actual physical restraint. Majority: aware AND harmed. Minority: aware OR harmed. Future threats not sufficient. No reasonable means of escape.
IIED
the intentional or reckless infliction of severe emotional or mental distress by extreme and outrageous conduct. Conduct beyond all possible bounds of decency. Actual damages are required. Conscious desire or knowledge or reckless disregard. Third party recovery if: (1)close relation + (2)present at scene + D knows (1) and (2). Children/elderly/pregnant/sensitive if sensitivity is known to the D.
Trespass to Land
Occurs when a D intentionally enters, remains on, or puts an object on a Ps land without permission. Actual damages not required.
Trespass to Chattel
an intentional interference with a persons use or possession of chattel. Actual damages are required.
Conversion
a substantial intentional interference with a persons use or possession of chattel resulting in a forced sale.
Defense of Consent
May relieve a D from liability and may be a complete defense to intentional interference with person or property. Consent by fraud/duress is invalid. Must have mental capacity, not intoxicated, not child. Express or implied. Implied: custom & usage; implied: in law – where a reasonable person in P’s place would have given consent – medical.
Self Defense
a person is entitled to use reasonable force to prevent a threatened harmful or offensive bodily contact of confinement. Not available to initial aggressor. Majority rule – no retreat necessary. Minority rule – retreat if possible to do so safely.
Defense of Necessity
the D has a privilege to harm the Ps property interest where it is necessary to prevent great harm to third persons or to the D himself. Public: NO compensation Private: compensation for actual damages.
Shopkeepers Privilege
privilege to reasonably detain individuals believed to be in possession of shoplifted goods.
Negligence
Defendant may be liable for Negligence if defendant owed a duty of care to plaintiff, he breached that duty, and plaintiff suffered damages which were actually and proximately caused by that breach.
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Duty Owed to Plaintiff
Under common law there was no general duty to act affirmatively to protect others. Modernly (majority of states) a defendant owes a duty of due care to all Ps in the foreseeable zone of danger. (minority of states) a defendant owes a duty of due care to everyone.
Duty (also include respondeat superior duty - employer has the vicarious liability/duty of all her employees engaged in normal business activities)
to act as a reasonably prudent person would act under the same or similar circumstances and not subject others to unreasonable risks of harm.
OR by an omission OR Ds owe a duty of care to foreseeable Ps Exception: non-psychosis disabilities. objective test.
Custom/Usage
may be used to establish standard of care – not dispositive - factor
Duty of Child
Subjective test –children under 4yo incapable of negligent acts. 4-17 rebuttable.
Duty of Professional
Objective test – to act as would a reasonable professional in the same or similar communities. Specialists held to a higher degree of care.
Duty to Unknown Trespasser
NO duty = NO standard of care
Duty to Known Trespasser
Owner/occupiers duty is to warn or make safe where owner/occupier knows of any non-obvious artificial conditions involving a risk of serious injury.
Attractive Nuisance Doctrine
a landowner has a special duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property.
The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and
The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to the children, and
The children, because of their youth, do not realize the risk, and
The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
Duty to Licensee
on the property with owners permission(express or implied) – non-business(not landowners benefit – for their own purpose or business). Liable for all non-obvious known dangerous conditions. Duty to make safe or warn. No duty to inspect. Police/firefighters because of public policy or assumption of the risk due to the nature of their profession.
Duty to Invitee
on the property with owners permission – business or land is open to the public. Liable for all dangerous conditions owner knew or should have known of. Duty to inspect, warn or make safe. Most states => no liability for very obvious dangerous conditions. Reasonable inspection. May lose status as invitee if exceeds scope of invitation and goes into portion of land where invitation is not extended => licensee or trespasser.
Negligenc Per Se
violations of statute establishes a lack of due care if (1) the statute was intended to prevent the type of harm which in fact occurred and (2) the P was within the class the statute sought to protect. Violation of statute establishes a presumption and a breach of duty.
Exceptions/rebuttable: where compliance would be more dangerous or impossible or emergency
NIED
D is liable if the conduct places P in imminent danger of bodily harm resulting in distress OR occurs in a special relationship in which negligent conduct is likely to cause emotional distress. Needs physical symptoms. P must be within the zone of danger; mb closely related; mb present; must perceive/observe event.
Exception to injury requirement: erroneous report relatives death; mishandling of relatives body.
Affirmative Duty to Act
NO affirmative duty to act.
Exceptions: relationship(family/employer-employee/carriers - passengers/3rd party conduct)
Breach of General Duty
did not meet the applicable standard of care. Fact that the P was injured does not prove breach. The D did something or did NOT do something - that a reasonable person would/would not have done.
5 types: breach of general duty; negligence per se; res ipsa; custom & usage; B<PL
When the D did xxxxx , he/she did/did not meet the standard of care set out above and thus there is/ there is not a breach.
Breach of Custom & Usage
where Ds conduct is not consistent with the custom and usage in the industry – the D has breached the standard of care.
Breach of Negligence Per Se
the violation of statute may establish breach of duty of care as discussed above.
Res Ipsa Loquitur - breach/duty
where cause of injury is not known (and not known if there even was negligent conduct) – a P must show 1) “this injury would not normally happen unless someone was negligent”; and 2) the D was in sole control of the instrumentality; and 3) P must be free from contributory negligence. Allows the case to go to the jury which can then find for either side. [1) someone probably was negligent; and 2) it probably was this D; and 3) P free from contributory negligence.]
Learned Hand Risk Utility Rule - breach
if B < PL, defendant is negligent. B is burden of prevention of harm. PL is probability of harm multiplied by magnitude of harm
where the burden of prevention is > the probability and magnitude of the harm, the D is not liable if he takes no steps to prevent the harm. Where the burden of prevention is < the probability and magnitude of the harm, the D IS liable if he takes no steps to prevent the harm.
Where the burden of acting reasonably is > the probability of injury and magnitude of harm, the D DID breach the duty of due care and IS liable. Where the burden of acting reasonably is < the probability of injury and magnitude of harm, the D did not breach the duty of due care and is NOT liable.
a breach of duty exists when the avoidance of harm is less than the probability of harm and the probable severity of that harm.
Actual Causation
1) But for test. But for the conduct of the D, the P not harmed.
(multiple insufficient causes – but-for! Multiple sufficient causes – but-for does NOT work. Use substantial factor test!)
ConcurrentTortfeasors: when separate negligent acts concur and P would not have been injured but for the concurrence. both D’s are liable. Each may attempt to disprove.
Joint tortfeasors: Several defendants jointly engaged in negligent conduct. Each defendant is liable even though only one actually inflicted injury. Each may attempt to disprove.
Successive tortfeasors: Defendants acting independently but whose acts have caused successive impacts to plaintiff resulting in a single indivisible injury. Each may attempt to disprove.
2) Substantial factor test:
a) Substantial factor test: If the conduct of either defendant alone would have been insufficient to cause the injury, both are a substantial factor. Use if plaintiff sustains injury as a result of the negligent conduct of both A and B.
b) Alternative liability/causes test: insufficient facts as to which of several D’s caused P’s injury, but ONLY one did, and impossible to prove which one did it. Shifts burden of proof to each D to show his negligence was not the actual cause, or the defendants are jointly and severally liable
Proximate Causation
legal theory that extends or limits liability based on intervening causes and foreseeable harm to plaintiffs. The P must convince us that liability is fair and not unduly attenuated. Is there any reason the defendant should be relieved of liability?
Direct causation: where the acts of the defendant have caused the damage to the plaintiff without an intervening cause. The majority rule holds a defendant liable only for the foreseeable results of his negligent act while a minority holds a defendant liable for all directly caused results
Exception: the majority rule - defendant liable for all results, foreseeable and unforeseeable, if the result stems from an inherent frailty in the plaintiff.(thin skull)
Indirect causation: the damage is caused by the intervening act of a third person, an animal or an act of God - after the D’s negligence. Two types of intervening causes:
Dependent: Normal response to stimulus created by D’s act (forseeable/ unforeseeable)
Independent: Abnormal response to stimulus created by D’s negligence. (An act of God)
(1) Foreseeable: The fact that the intervening force was not reasonably foreseeable does not excuse D from liability as long as result was foreseeable:
(2) Unforeseeable: Superseding cause
An Independent Intervening Superseding Cause
is a separate act or omission that breaks the chain of causation between the defendants actions and an injury to another person, that relieves the defendant of liability for that injury. Where there is an intervening act by a 3rd party, the D remains liable unless both the intervening act and the resulting harm are unforeseeable. A thin skulled P is NOT unforeseeable… and will not relieve liability.
Damages
the D always takes the P as he finds him. “P was harmed”
general damages: non-economic; pain and suffering, emotional distress…
Special Damages: measureable economic; lost wages, medical bills…
Punitive damages: NOT recoverable for negligence. Only can recover for intentional torts and reckless or wanton conduct.
P has a duty to mitigate damages and cannot recover for harm which P reasonably could have avoided
Payments received from a collateral source does NOT offset Ps recovery.
Contributory Negligence - defense
affirmative defense: modernly, in a minority of jurisdictions, where a Ps negligent conduct contributes to Ps injuries, Ps recovery is completely barred. Defense not available for intentional, willful and wanton conduct, or negligence per se.
KNOWING vs. UNKNOWING
Assumption of Risk - defense
affirmative defense: a party assumes the risk if he knowingly undertakes an activity with full knowledge of the risk. Is a total bar to recovery.
Comparative Negligence - defense
affirmative defense: when a P is a contributing cause of Ps injury, Ps recovery is reduced in proportion to Ps fault. Pure vs. modified. Pure: here P always recovers something. Modified: Ps fault < 50% reduces recovery. Ps fault > 50% absolute bar.
Last Clear Chance - defense exception
even after contributory negligence by the P, if the D had a last clear chance to avoid the accident and because the D did not take that chance, P should be relieved of the consequences of his earlier contributory negligence.
Strict Liability
an act or failure to act which breaches an absolute duty of care to make safe to another resulting in injury to others person or property.
Animals Strict Liability
SL for damages done by trespass or harm done to persons or property by wild animals. Activity is not common for people to keep wild animals. NO SL for domestic animals unless D aware of dangerous propensities.
Abnormally Dangerous Activities Strict Liability
1) activity involves serious risk of harm; 2) activity cannot be performed without risk of serious harm regardless of due care; 3) activity is not common in particular community.
Abnormally Dangerous Activities Duty Strict Liability
Duty owed is absolute duty to make safe to all foreseeable Ps. Damages limited to those that are inherent to the abnormally dangerous activity.
