Key Points Flashcards
Five Purposes of Torts
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
Compensatory/Actual Damages
put person back into position the second before tort happened ($$$$$) financial equivalent of loss/harm suffered
Nominal Damages
to deter people from doing something (small amount of $$) “token”
Punitive Damages
to punish/make bad example of (not in negligence)
Does age matter for intent?
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.
Can a mentally disabled person have intent?
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.
Doctrine of Transferred Inent
If you intend to hit/apprehend/confine one and it happens to another, you still maintain intent.
Heart of Battery
Contact
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?
Held liable!
Elements of battery
contact, intent, physically harmful or offensive
Rule for something attached to you
If something in intimately connected to you, it makes it a part of the person
Heart of Assault
apprehension
Do you need physical harm for assault?
No, you can be held liable without physical harm
Does assault need battery?
No, does not necessarily need a battery to complete it
Definition of assault
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
Heart of false imprisonment
confinement
Requirement for false imprisonment
confinement/bounded area
knowledge/awareness that you are
reasonableness of escape (has to be kept by force)
Definition of false imprisonment
the direct restraint of one person of the physical liberty of another without adequate legal justification
False Imprisonment: can you recover if there was awareness?
Sometimes. If you are physically harmed then you can recover without awareness.
What if the P originally consented?
The FI begins as soon as they revoke consent.
Does the P’s awareness matter (for battery/assault/FI)?
battery: no
assault: yes
FI: yes, but if physically harmed then maybe not
Does there need to be proof of harm/actual damages (for battery/assault/FI)?
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
Severity of distress (for battery/assault/FI/IIED)?
battery/assault/FI: severity does not matter
IIED: nominal will not work, severity of injury is important here
Heart of IIED
emotional distress
Elements of IIED
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)
Can you have nominal damages for IIED?
No
Can verbal harassment constitute as IIED?
Only if continious and excessive
Bystander IIED
- 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)
Heart of Trespass to Land (T2L)
presence/being on land
Is it T2L if D enters land thinking it is his/her own?
Yes
Damages for T2L
P will be awarded nominal damages if there are no actual damages
For T2L do you consider just the land or also the space above/below it?
The land AND the air/land above/below it.
Does failing to remove something constitute as T2L?
Yes.
Heart of Trespass to Chattels
inter-meddling with chattel
What kind of damages for Trespass to Chattels?
Actual damages (like IIED)
Can Trespass to Chattels apply to intangible objects?
Yes, like processing power.
Definition of Trespass to Chattels
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
Heart of Conversion
dispossessing chattel
Definition of conversion
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
What to consider when determining seriousness for conversion:
- 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
Conversion damages
The market value at time of conversion
Privilege - express consent
when one signs something/etc. (can be orally too)
Privilege - implied consent
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
Privilege - Consent under false pretenses
can be negated to invalidate consent, look for: - fraud - language barriers - minors - intoxication - psychiatric/neurological disease - illegal activity
Privilege - Existence of privileges:
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
Privilege - Retaliation rule
even if person was originally the aggressor, once he has retreated, he has right to self-defense against person he initially threatened
Privilege - Reasonable belief rule
when the D believes force is necessary to protect himself against battery, even if no necessity
Privilege - Defense of others rule
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
Privilege - Defense of property
- One’s property is NEVER more important than life
- Force is only justified is trespasser is committing a felony of violence
Privilege - Recovery of Property Rule
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
Privilege - Public Necessity Rule
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
Privilege - Private Necessity Rule
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”)
Privilege - Authority of Law
If authorized by law, they can do it and they will be covered by this privilege
Privilege - Authority of Law - Warrants
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
Privilege - Discipline
Between parent/child
Privilege - Justification
School bus where driver just took all kids to police station
Heart of Negligence
breach
Elements for Negligence
- 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
Damages permitted for negligence?
Actual (compensatory), NOT nominal
Definition of Negligence
The omission to do something a reasonable person would not do
In negligence, what is a driver’s duty?
To prevent unsafe conduct by passengers (like if they grab the wheel, driver has duty)
What is the formula on if you should take a precautionary measure for something?
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
Who is held to a different standard of care for negligence?
- 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)
Types of Negligence
Ordinary, NPS (statute), Res Ipsa Loquitur
MedMal Standard
If you specialize in something, you have to act to that level (not just how a general doctor would act)
Zone 1
If P does not have enough evidence, judge will order directed verdict for the D.
Zone 2
If P has enough evidence, such that a reasonable person could support P, case will go to jury/trial.
Zone 3
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.
Res Ipsa Loquitur definition
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
Three elements of Res Ipsa Loquitur
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
Res Ipsa Loquitur Majority Rule
Warrants the inference of negligence that the jury may/may not draw
Res Ipsa Loquitur Minority Rule
Burden of proof shifts to D to prove D was not negligent
Res Ipsa Loquitur Middle Rule
Presumption of negligence, but can rebut with a good defense
Joint Liability
Even if 70% at fault, the 30% at fault can pay for ALL damages
Several Liability
D only has to pay whatever he is liable for (e.g. 30%)
Market Share Theory
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
Rescue Doctrine purpose
Allows an injured rescuer to sue the party that originally caused the danger that required the rescue in the first place
Four elements to be a rescuer
1 - D was negligent to the person rescued
2 - Peril was imminent
3 - Peril existed
4 - Rescuer acted w/ reasonable care during rescue
Five Elements of Damages
1 - Past physical/mental pain 2 - Future physical/mental pain 3 - Future medical expenses 4 - Loss of earning capacity 5 - Permanent disability and disfigurement
Collateral Source Rule
Court must exclude evidence of payments received by an injured party from sources other than the D/the wrongdoer (family, insurance, gov benefits)
