Flash Cards for Bar Courses - Torts
Transferreed Intent can only be invoked to which torts?
- Assualt
-Battery
-False Imprisonment
-Trespass to Land
-Trespass to Chattels
Battery
- Harmful or Offensive Contact, AND
- Contract must be w/ the P’s person
Offensive = unpermitted by a person of ordinary sensitivity
DAMAGES ARE NOT required
Assault
1) Reasonable Apprenhension of (2) an immediate Battery
Apprehension = knowledge (DOES not include fear)
P MUST be aware of the threat by the D’s act
DAMAGES ARE NOT required
False Imprisonment
(1) D confines or restrains the P and (2) P must be confinded to a bounded area
It is IRRELEVANT how short the confinement is. P MUST know of the confinement or be harmed by it.
Bounded = freedom of movement is limited in all directuons. No reasonable means to escape.
Intentional Infliction of Emotional Distress (IIED)
Act by D amounting to extreme and outrageous conduct and P must suffer severe emotional distress
ACTUAL DAMAGES ARE REQUIRED
Tresspass to Land
1) Physical invasion
2) of P’s real property (includes airspace and subterranean space for a reasonable distance)
Can be by person or object
DAMAGES ARE NOT REQ.
Trespass to Chattels
Act by D that interferes w/ P’s right of possession in a chattel
-May be by damaging chattel or depriving of their lawful right of possession of the chattel
Conversion
1) Act by D that interferes w/ P’s right of possession
2) Interference is serious to warrant D to pay the chattel’s full market value
Consent
Capacity Req. -
Express Consent - (exceptions – mistake, induced by fraud, and obtained by duress
Implied Consent - Which a reasonable person would infer from custom and usage or the P’s conduct
Self Defense
When a person reasonably believed that they are being ot are about to be attacked, the use of reaonably necessary foruce to protect against injury is permitted.
Duty to retreat: a duty to retreat b4 using deadly force, unless actor is in their home
Reasonable mistake as to the existence of danger is allowed
One may ONLY use force that reasonably appears to be necessary to prevent the harm.
Defnese of others
May use force when they reaosnably believe that the other person could have used force to defence themselves
Defense of Proeprty
may use reasonable force to prevent the commission of a tort against real or personal property. A REQUEST TO DESIST MUST BE MADE unless it would be DANGEROUS.
CANNOT USE DEADLY FORCE TO PROTECT PROPERTY.
Shoplifitng Detentions
1) must be reasonable belief
2) detention must be conducted in a reasonable manner and nondeadly force can be used
3) detention must be only for a reasonably period of time and for purpose of makiung the investigation
Necessity of use of land
A person may interfere w/ real property and personal property when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force
Public Necessity: D can raise necessity as a defense if they acted to avert an imminent public disastor
Private Necessity: can be a defense when the action was to prevent serious harm to a limited number of ppl. Actor must pay for any injury they cause, unless it was to benefit the property owner.
Negligence
-Duty
-Breach
-Actual and Proximate Cause
-Damages
Duty
A duty is owed to all foreseeable P’s.
Rescuers are foreseeable P when the D negligently put themselves or a 3rd person in peril.
Basic Standard of Care
All persons owe a duty to behave w/ the same carea as a reasonably prudent person.
Exceptions:
1) Superior Skill or Knowledge - D is held to the std of car of a person who has knowledge or experience superiror to that of an avg. person
2) person w/ disability must act in accordance w/ what someone with that disabaility would do.
Child’s Standard of Care
Children are held to a std of care of like AGE, INTELLIGENCE, AND EXPERIENCE. this is a subjective test.
Child under 5 is usually w/ capacity to be negligent
Professional Std of Care
Professional are req. to possess the knowledge and skill of an avg. member of the profession in good standing.
Doctor’s duty to disclose- Dr. has a duty to disclose the risks of treatment to enable a pateint to give informed consent. Dr. breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent after learning of the risk.
If no damages for surgery that was not consented to = patient can recover nominal damages
Standard of Care for Trespassors
Unknown - NO DUTY
Known - Landowner must warn of or make safe any conditions that are: (Man-Made Death Traps)
-Artificial - only if manmade
-Highly dangerous - causes death or serious bodily injury
-Concealed - NO DUTY IF DANGER IS OBVIOUS
-Known
Licensee (standard of care)
A licensee is one who engters onto the land w/ the possessor’s permission for their own purpose or business
Must warn of:
-concealed
-and known dangers
Social Guests are Licensees
Invitees
Enter onto the land in response to an invitation by the possessor of the land or land held open to the public.
Must warn of:
-Concealed and
-Known to the land owner in advance or could have neen discovered by a reaonsable inspection
Firefihters and Police: only make aware of know concealed dangers
Attractive Nuisance
1) Dangerous condition on the land that the owner is or should be aware of
2) Owner knows or should know that kids might trespass on land
3) condition is likely to cause injury b/c of child’s inability to appreaciate risks
4) expense of remedying the sitation is sligth compared w/ the magnitude of risk
Child need NOT have been attracted
Statutory Standards of Care
A clearly stated specific duty imposed by a statute providing for crim penalties may replace the more general common law duty if:
-P is WITHIN THE PROTECTED CLASS
- the statute was DESIGNED TO PREVENT THE TYPE OF HARM SUFFERED
can be excused is compliance would cause more danger than violation or where violation is beyond D’s control
