Midterm - Intentional Torts/Standard of Care Flashcards
THE 3 TYPES OF INTENT
Purpose or Desire (P/D)
Knowledge of Substantial Certainty (KSC)
Transferred intent*
THE 3 TYPES OF LIABILITY
Vicarious liability
Direct liability
Extended liability
ELEMENTS OF BATTERY
Intent to cause
Harmful OR Offensive Contact
With the person of another
Without consent
ELEMENTS OF ASSAULT
Intent to cause
Reasonable apprehension of
Imminent harmful or offensive contact
With the person of another AND
The person actually suffers
ELEMENTS OF FALSE IMPRISONMENT
Intent to confine someone
Confined or restrained within boundaries
Against their will
Victim is aware of confinement OR harmed by it
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Intent to bring about severe emotional distress OR recklessness
Extreme and Outrageous conduct
The action actually caused emotional distress
The emotional distress was severe
TRESPASS ON LAND
Intent to enter
Intrusion on property
TRESPASS TO CHATTELS
Intentionally damage the chattel OR
Deprive the possessor of its use for a substantial period of time OR
Totally dispossess the chattel from its owner
CONVERSION
the chattel must be so severely damaged that it cannot be saved and thus the perpetrator owes the owner the full market value of the item.
TYPES OF CONSENT
Express
Implied
By Law
By custom
SELF DEFENSE
Defendant honestly believes they are threatened with imminent harm.
The defendant’s response must be reasonable.
The force used must be proportionate (reasonably necessary)
DEFENSE OF OTHERS
Defendant honestly believes that another is threatened with imminent harm.
The defendant’s response must be reasonable.
The force used must be proportionate (reasonably necessary)
SHOPKEEPER’S PRIVILIGE
They have reasonable belief/suspicion that the plaintiff is stealing or stole something
They may detain/investigate in a reasonable manner
For a reasonable amount of time
NECESSITY
Defendant acted with a reasonable belief that there was a danger of imminent physical injury to the plaintiff (or their property) or to others
Right to prevent harm lasts only as long as is necessary
Defendant must use the least damaging means
TYPES OF STANDARDS OF CARE
Reasonably prudent person under the same or similar circumstances (RPPSSC)
Child
Statutory - Negligence per se
Professional
Reasonably prudent person under the same or similar circumstances (RPPSSC)
The person is held to the standard that we as a society deem the bare minimum any reasonable person would do
Add-ons to RPPSSC
sudden emergency
physical condition
heightened ability/superior skill
common carrier
CHILD STANDARD OF CARE
THE DEFENDANT IS HELD TO THE SAME STANDARD AS OTHER PEOPLE OF THE SAME
Age
Experience
Intelligence
Maturity
HAND RISK ANALYSIS
B < PL
BURDEN < PROBABILITY x LIKELY INJURY
TORTS THAT TRANSFERRED INTENT APPLIES TO
Battery*
Assault
False imprisonment
Trespass to land
Trespass to chattels
TORTS THAT TRANSFERRED INTENT DOES NOT APPLY TO
Intentional Infliction of Emotional Distress
Conversion
IN ORDER FOR INTENT TO TRANSFER FROM BATTERY, THESE MUST BE SATISFIED
SINGLE INTENT
DUAL INTENT
DE MINIMUS
too small to be meaningful or taken into consideration
A person seeking to use custom evidence must prove
- It is well-established and widely used
- It is highly relevant
- There was compliance with or deviation from it
Burden of proof for slip and fall cases
The instrument must have lasted long enough for the defendant knew or should have known about it
Elements of res ipsa loquiter (“it speaks for itself”)
- The incident does not generally happen without negligence
2.It was caused by an instrument within the defendant’s control - The plaintiff did not contribute to the cause of their injury
RIL vs BPL
RIL: when the specific conduct/actors are unknown
BPL: When the specific conduct/actors IS known
Defenses to RIL
- Show the defendant acted reasonably
- Prove who did the conduct
- Show that the defendant did not have control over the object that caused the injury
- Show plaintiff’s own negligence caused it
Types of medical malpractice
- Failed performance
- Informed consent
The doctor standard of care
A doctor is expected to possess and use the level of knowledge, skills, and training as other professionals in good standing in the same practice area in the relevant geographic community
Failed Performance / Performance based is set by…
CUSTOM: was there a compliance of a deviation?
*The jury has no say in whether it was reasonable, only that it was followed
There may be different types of custom, as long as one is followed it is okay
Types of customs considered (medical malpractice) - jurisdictional split
- Same or similar locality considering the location, size, and character of the community
- National standard for board certified specialists
- National standard for all doctors
Who can be a medical malpractice expert?
- Someone who can show they have knowledge from the relevant geographical area, even if it isn’t their own area of practice
- Someone substantially familiar with the standard of care applicable to the defendant’s specialty or their own standard of care is substantially similar.
*If in a same/similar locale jurisdiction, they must be both
RIL in medical malpractice: elements
- Must show that when these things happen, it is the result of medical malpractice
- Control can be found for “all those defendants who had any control over the body or instrumentalities which might have caused the injury” (Ybarra)
- Plaintiff did not contribute to their own injury (usually a non-issue because the patient is unconscious)
informed consent rules (jurisdictional split)
- The physician rule
- The patient/materiality rule
the physician rule: elements
- A doctor is only required to divulge risks that other doctors in good standing in the relevant community would
- Causation: a reasonable patient would have refused the procedure if the omitted information had been provided (objective only)
standard of care under the physician’s rule
Custom: deviation vs compliance
Patient/Materiality rule
- A doctor must inform the patient of all material risks that a reasonable patient would want to know when deciding to undergo or reject a procedure.
- Causation
—–Majority states: a reasonable patient would have refused the procedure if the omitted information had been provided (objective)*
—–Minority states: this patient would have refused (subjective)
Patient/Materiality rule standard of care
The reasonably prudent patient
exceptions to informed consent
- Emergency
- Therapeutic privilege
—–The doctor takes into consideration the patient’s mental health
———— if they think that their well-being may be adversely affected, they may not disclose certain risks
negligence per se (statutory)
- Defendant violated a law without an excuse
- The injured party is in the class of people the law was intended to protect
- The injury suffered was one that the law was intended to protect against
4 ways to negate NPS
- Negate one of the elements
- Show it is a licensing statute
- Show it is a statute on “general reasonableness”
- Valid excuse
Valid excuses for negligence per se
- Incapacity (like a sudden heart attack)
- No knowledge or should have known
- Sudden emergency
- Violation of the statute was less harmful than following it.
Negligence per se always applies to these
Child labor laws
Pure food & drug laws
Hazardous material safety rules
Negligence per se jurisdictional split
- Strict NPS jurisdictions
- “Some evidence” jurisdictions
Negligence per se and children
NPS cannot strictly be applied to children, instead cSoC applies and NPS is just considered evidence of breach.
*UNLESS it is an inherently dangerous/adult activity. Then RPPSSC applies and thus NPS also applies
