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Tort Law > Key Points > Flashcards

Key Points Flashcards

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1
Q

Five Purposes of Torts

A

1 - provide peaceful means for adjusting rights of parties who might otherwise “take the law into their own hands”
2 - deter wrongful conduct
3 - encourage socially responsible behavior
4 - restore injured parties to their OG condition (see as most important)
5 - clear a wrong

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2
Q

Compensatory/Actual Damages

A

put person back into position the second before tort happened ($$$$$) financial equivalent of loss/harm suffered

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3
Q

Nominal Damages

A

to deter people from doing something (small amount of $$) “token”

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4
Q

Punitive Damages

A

to punish/make bad example of (not in negligence)

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5
Q

Does age matter for intent?

A

No, minors can have intent, anyone can have intent. A person is held liable when they are substantially certain the result will be harmful/offensive.

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6
Q

Can a mentally disabled person have intent?

A

Yes, if there is intent they can be held liable. Exception: in some jurisdictions if they are institutionalized then they may not be held liable since the workers knew the risk that was present.

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7
Q

Doctrine of Transferred Inent

A

If you intend to hit/apprehend/confine one and it happens to another, you still maintain intent.

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8
Q

Heart of Battery

A

Contact

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9
Q

What if there is only the intent to remove someone’s hat to try on, but it injures them because they have a fragile skull?

A

Held liable!

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10
Q

Elements of battery

A

contact, intent, physically harmful or offensive

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11
Q

Rule for something attached to you

A

If something in intimately connected to you, it makes it a part of the person

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12
Q

Heart of Assault

A

apprehension

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13
Q

Do you need physical harm for assault?

A

No, you can be held liable without physical harm

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14
Q

Does assault need battery?

A

No, does not necessarily need a battery to complete it

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15
Q

Definition of assault

A

Intentional infliction of an apprehension* of an imminent contact

  • apprehension/anticipation/expectation/knowledge
  • note that it needs to be imminent, cannot be a future threat
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16
Q

Heart of false imprisonment

A

confinement

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17
Q

Requirement for false imprisonment

A

confinement/bounded area
knowledge/awareness that you are
reasonableness of escape (has to be kept by force)

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18
Q

Definition of false imprisonment

A

the direct restraint of one person of the physical liberty of another without adequate legal justification

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19
Q

False Imprisonment: can you recover if there was awareness?

A

Sometimes. If you are physically harmed then you can recover without awareness.

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20
Q

What if the P originally consented?

A

The FI begins as soon as they revoke consent.

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21
Q

Does the P’s awareness matter (for battery/assault/FI)?

A

battery: no
assault: yes
FI: yes, but if physically harmed then maybe not

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22
Q

Does there need to be proof of harm/actual damages (for battery/assault/FI)?

A

battery: contact is sufficient & actual damages not required
assault: prove you were apprehended & actual damages not required
FI: sue for nominal damages & actual damages not required

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23
Q

Severity of distress (for battery/assault/FI/IIED)?

A

battery/assault/FI: severity does not matter

IIED: nominal will not work, severity of injury is important here

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24
Q

Heart of IIED

A

emotional distress

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25
Q

Elements of IIED

A

conduct must be intentional
conduct must be extreme and outrageous (outside the boundaries of societal norms)
must be a casual connection between wrongful conduct and emotional distress
emotional distress must be severe (not mere)

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26
Q

Can you have nominal damages for IIED?

A

No

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27
Q

Can verbal harassment constitute as IIED?

A

Only if continious and excessive

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28
Q

Bystander IIED

A
  • usually must be immediate family member
    for recovery there must be:
  • intent to batter you
  • intent to cause ME emotional distress from battering YOU

*most courts require that there is knowledge of the bystander (proximity, vision, hearing)

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29
Q

Heart of Trespass to Land (T2L)

A

presence/being on land

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30
Q

Is it T2L if D enters land thinking it is his/her own?

A

Yes

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31
Q

Damages for T2L

A

P will be awarded nominal damages if there are no actual damages

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32
Q

For T2L do you consider just the land or also the space above/below it?

A

The land AND the air/land above/below it.

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33
Q

Does failing to remove something constitute as T2L?

A

Yes.

34
Q

Heart of Trespass to Chattels

A

inter-meddling with chattel

35
Q

What kind of damages for Trespass to Chattels?

A

Actual damages (like IIED)

36
Q

Can Trespass to Chattels apply to intangible objects?

A

Yes, like processing power.

37
Q

Definition of Trespass to Chattels

A

Chattel is impaired as to its quality, condition, or value (keyed car)
Possessor is deprive of the use for a substantial time (if they take laptop and you have hw due tonight)
Bodily harm to possessor or harm caused

38
Q

Heart of Conversion

A

dispossessing chattel

39
Q

Definition of conversion

A

Intentional exercise of dominion/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

40
Q

What to consider when determining seriousness for conversion:

A
  • extent and duration of actor’s exercise of dominion/control
  • intent to assert a right
  • good faith
  • extent and duration of interference
  • harm done to chattel
  • inconvenience and expense caused
41
Q

Conversion damages

A

The market value at time of conversion

42
Q

Privilege - express consent

A

when one signs something/etc. (can be orally too)

43
Q

Privilege - implied consent

A

only focuses on the situation and the consent is implied

  • check relationship bw people and facts
  • P can limit scope of consent (e.g. they only want doctor to do surgery on left ear, nothing else)
  • exists when there are patterns

**If one consents to participate in a violent event, they do not necessarily also consent to associated actions

44
Q

Privilege - Consent under false pretenses

A 
can be negated
to invalidate consent, look for:
- fraud
- language barriers
- minors
- intoxication
- psychiatric/neurological disease
- illegal activity
45
Q

Privilege - Existence of privileges:

A

anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another (does NOT apply to retaliation)

**most courts state: provocation does NOT justify self-defense

46
Q

Privilege - Retaliation rule

A

even if person was originally the aggressor, once he has retreated, he has right to self-defense against person he initially threatened

47
Q

Privilege - Reasonable belief rule

A

when the D believes force is necessary to protect himself against battery, even if no necessity

48
Q

Privilege - Defense of others rule

A

usually members of the same family protecting each other
(some courts) reasonable mistake: intervenor steps into shoes of whoever they are defending and is privileged only when the original person would be

49
Q

Privilege - Defense of property

A
  • One’s property is NEVER more important than life

- Force is only justified is trespasser is committing a felony of violence

50
Q

Privilege - Recovery of Property Rule

A

Owner of chattel is wrongful dispossessed of it, has privileged to use a reasonable amount of force, and it is fresh/hot pursuit

  • First, demand it back
  • You can use a reasonable amount of force
  • Has to be fresh/immediate, you cannot wait

**Shopkeeper’s privilege: they can detain who they believe may have stolen from their store

51
Q

Privilege - Public Necessity Rule

A

If purpose is to protect greater good, a tort can be deemed not a tort (from the case of having to blow up one building to save the city)

  • in interest of public
52
Q

Privilege - Private Necessity Rule

A

If you must use another’s property to save your own, you won’t be held to tort, but have to pay damages (“Limited Privilege”)

53
Q

Privilege - Authority of Law

A

If authorized by law, they can do it and they will be covered by this privilege

54
Q

Privilege - Authority of Law - Warrants

A

Officer liable if he acts improperly (uses too much force)
Mistake counts even if its in good faith

without a warrant: if citizen takes action to arrest then will take full action if no felony was committed

55
Q

Privilege - Discipline

A

Between parent/child

56
Q

Privilege - Justification

A

School bus where driver just took all kids to police station

57
Q

Heart of Negligence

A

breach

58
Q

Elements for Negligence

A
  • Duty to use reasonable care (standard of care)
  • Breach of the duty (did they deviate from the soc)
  • Causation: a reasonable, close causal connection between conduct and resulting injury
  • Damages: actual loss or damages resulting to the interests of another
59
Q

Damages permitted for negligence?

A

Actual (compensatory), NOT nominal

60
Q

Definition of Negligence

A

The omission to do something a reasonable person would not do

61
Q

In negligence, what is a driver’s duty?

A

To prevent unsafe conduct by passengers (like if they grab the wheel, driver has duty)

62
Q

What is the formula on if you should take a precautionary measure for something?

A 
If the burden is LESS than the harm, do the precaution.
To determine burden, consider:
- Probability of harm
- Seriousness of harm if it occurs
- Cost of precaution
63
Q

Who is held to a different standard of care for negligence?

A
  • Minors (normally, not held to same standard as an adult)
  • Handicapped (what would a reasonably prudent blind person do)
  • Sudden Emergency
  • Mental Illness ONLY IF no warning/knowledge of insanity (most states: those with mental illnesses need to act like reasonably prudent people)
64
Q

Types of Negligence

A

Ordinary, NPS (statute), Res Ipsa Loquitur

65
Q

MedMal Standard

A

If you specialize in something, you have to act to that level (not just how a general doctor would act)

66
Q

Zone 1

A

If P does not have enough evidence, judge will order directed verdict for the D.

67
Q

Zone 2

A

If P has enough evidence, such that a reasonable person could support P, case will go to jury/trial.

68
Q

Zone 3

A

If P’s case is SO strong that unless D comes forth with rebutting evidence, court will order a directed verdict in P’s favor.

69
Q

Res Ipsa Loquitur definition

A

occurrence of an accident implies negligence (ex: when barrel of flour falls from a window above you)

  • Kicks in when D was in charge of the premises and the incident would not have occurred on its own.
  • You need exclusive control for RIL
  • NOT a different COA, just a different way of getting to the jury in a general negligence case when you are lacking information
70
Q

Three elements of Res Ipsa Loquitur

A

1 - Event would not ordinarily happen without someone being negligent;
2 - Must be caused by an agency within exclusive control of the D; and
3 - Must NOT have been due to any voluntary action on part of P

71
Q

Res Ipsa Loquitur Majority Rule

A

Warrants the inference of negligence that the jury may/may not draw

72
Q

Res Ipsa Loquitur Minority Rule

A

Burden of proof shifts to D to prove D was not negligent

73
Q

Res Ipsa Loquitur Middle Rule

A

Presumption of negligence, but can rebut with a good defense

74
Q

Joint Liability

A

Even if 70% at fault, the 30% at fault can pay for ALL damages

75
Q

Several Liability

A

D only has to pay whatever he is liable for (e.g. 30%)

76
Q

Market Share Theory

A

Each D is held liable for proportion of the judgement represented by its share of that market unless it demonstrates that it could not have made the product which caused the P’s injuries

77
Q

Rescue Doctrine purpose

A

Allows an injured rescuer to sue the party that originally caused the danger that required the rescue in the first place

78
Q

Four elements to be a rescuer

A

1 - D was negligent to the person rescued
2 - Peril was imminent
3 - Peril existed
4 - Rescuer acted w/ reasonable care during rescue

79
Q

Five Elements of Damages

A 
1 - Past physical/mental pain
2 - Future physical/mental pain
3 - Future medical expenses
4 - Loss of earning capacity
5 - Permanent disability and disfigurement
80
Q

Collateral Source Rule

A

Court must exclude evidence of payments received by an injured party from sources other than the D/the wrongdoer (family, insurance, gov benefits)

Tort Law (4 decks)

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