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Torts > Privileges and Strict Liability > Flashcards

Privileges and Strict Liability Flashcards

1
Q

1st Element of Consent

A

Loss of ability for P to recover in tort for conduct or harm resulting from D

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2
Q

2nd Element of Consent= Effective Consent

A

A. Must be by a person with power to consent OR by a person empowered to consent for the person

B. To particular conduct OR substantially the same conduct

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3
Q

3rd-5th Elements of Consent

A
  1. Conditional consent only effective within the limits of the conditions (Example- time limit)
  2. If actor EXCEEDS consent, not effective for excess
  3. Termination of consent terminates the consent (unless contract exists that indefinitely binds the consenter)
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4
Q

Meaning of Consent (types of consent)

A
  1. Willingness in fact for contact to occur (state of mind of P)
    * Manifests as action/inaction
    * Need not be communicated to the actor
  2. Apparent consent: Person reasonably believes conduct is consented to
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5
Q

Three Instances when consent IS NOT EFFECTIVE

A
  1. If induced to consent by substantial mistake (concerning nature of interest OR extent of harm)
  2. Mistake known to other OR induced by misrepresentation
  3. Consent given under duress
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6
Q

Consent to Crimes

A
  1. Consent bars recovery even if it was a crime that was consented to
  2. If conduct made criminal to protect certain class of people regardless of their consent, consent does not bar recovery (prisoners consenting to sexual activity)
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7
Q

Who has burden of proving self defense?

A

DEFENDANT

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8
Q

What type of force can a person use when someone is threatening them with force but not threatening death or bodily harm?

A

Can use reasonable force to defend self, but the force can not threaten death or bodily harm

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9
Q

What type of force (specifically) must an actor defending himself against in a non death/bodily harm situation?

A
  1. Unprivileged harmful or offensive contact OR

2. Other bodily harm which he reasonably believes that the other is about to intentionally inflict upon him

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10
Q

Does a person being threatened with non deadly force/bodily harm have to retreat or comply with the commands of the attacker, even if they believe they reasonably can?

A

No, the defendant still has the privilege of self defense even if he believes that he can retreat (correctly or reasonably) OR if he could comply with the attacker and avoid having to use non-deadly or bodily harm on the attacker

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11
Q

When can an actor use force intending to cause death or serious bodily harm to defend himself/herself?

A

When the actor reasonably believes
a. Person is about to inflict an intentional contact OR other serious bodily harm AND

b. He is put in peril of death or serious bodily harm or ravishment that can only be avoided by use of immediate force

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12
Q

When does a defendant lose the self defense, defense when death or serious bodily harm is threatening them?

A
  1. If they have ability to reasonably retreat and do not

2. If they can comply and don’t

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13
Q

What is the exception to retreating for self defense when threatened with death or serious bodily harm?

A
  1. Don’t have to retreat into your own dwelling
  2. Don’t have to let other enter your dwelling
  3. Don’t have to stop a lawful arrest
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14
Q

Elements for Defense of Others, Defense

A

Same defense you would use for self if defender correctly or reasonably believes

  1. Circumstances give the third person a self defense privilege
  2. Intervention necessary for protection of the third person
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15
Q

What do you have to know if someone is threatening your possessions using force of death or serious bodily harm before you can defend your stuff?

A

Must reasonably believe that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor OR a third person

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16
Q

When can you use force if the intruder is not threatening death or serious bodily harm when stealing your stuff?

A

A. intruder is not privileged OR intruder intentionally/negligently causes actor to believe they aren’t privileged

b. Actor reasonably believes intrusion can only be prevented by using force
c. Intruder has first asked intruder to desist or believes there is no time to ask because substantial harm will result if you wait that long to use force

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17
Q

What kind of force can you use on an intruder that isn’t threatening death or serious physical harm?

A

Can only use force not threatening death or serious physical harm in return

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18
Q

When can you use a mechanical device to protect your property and what kind of mechanical device?

A

Mechanical device can only be one that doesn’t threaten death/serious physical harm

Can ONLY USE IF:

  1. It is reasonably necessary
  2. Use is reasonably under the circumstances
  3. The device is used customarily for such purpose OR reasonable care is used to make it known to intruder
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19
Q

Excessive Force on Intruders

A
  1. Actor is liable for excessive force
  2. Other is still liable for the intrusion into the land
  3. The other though, has privilege to defend self against excessive force
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20
Q

Can I destroy someones house if I think it is reasonably necessary to protect the public from a disaster?

A

Yes because under public necessity, an actor is privileged to trespass to chattel or land to convert if actor reasonably believes it is reasonably necessary to avoid a public disaster

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21
Q

If you destroy someones property to avoid a public disaster are you required by law to pay them back for the damage?

A

No, not for a PUBLIC necessity

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22
Q

What is the big difference between private necessity doctrine and public necessity doctrine?

A

When the interest is in private necessity, you have to pay back the damages after you take the good or damage the land, chattel, etc. (Boat example)

23
Q

Can parents confine there children and use force on their children?

A

Yes, parents are privileged to apply reasonable force to impose reasonable confinement as he/she reasonably believes to be necessary for proper control

24
Q

What is a wild animal?

A

An animal not by custom devoted to the service of mankind at the time and in the place in which it is kept

25
Q

What is a domestic animal?

A

An animal by custom devoted to the service of mankind at the time and in the place in which it is kept

26
Q

Elements of liability for WILD ANIMALS

A
  1. Strict liability regardless of upmost care taken

2. Limited to the dangerous propensities of the animal (or of which the owner knows or has reason to know)

27
Q

Elements of liability for DOMESTIC ANIMALS NOT ABNORMALLY DANGEROUS

A
  1. Subject to liability ONLY IF owner intentionally causes animal to do harm, or
  2. If negligent to prevent harm
28
Q

DOMESTIC ANIMALS ABNORMALLY DANGEROUS

A

Owner knows or has reason to know animal is abnormally dangerous abnormal to its class:

  1. Strictly liable regardless of upmost care taken
  2. Limited to results from dangerous propensities
29
Q

Zookeeper Exception

A

NO strict liability when in possession of wild animal/abnormally dangerous domestic animal if:

  1. pursuance of duty as employee/ public officer
  2. Common carrier
30
Q

Animal Owners Liability for Trespassers

A
  1. Not liable for intentional/negligent trespassers even if trespasser didn’t know the wild animal/dangerous domestic animal was there
31
Q

Indigenous Escaped Animals

A

If the wild animal has returned to natural habitat not liable for injury it causes so long as it is indigenous to the locality

32
Q

Contributory Actions Regarding Wild/Dangerous Domestic

A

Still Strictly liable if the but for cause is:

  1. Innocent, reckless, negligent conduct of third person
  2. Action of another animal
  3. Force of nature
33
Q

Plaintiff’s Conduct regarding Wild/Dangerous Domestic Animals

A
  1. Contributory conduct of P NOT A DEFENSE unless

* P knowingly and unreasonably exposed self to risk of animal OR assumed the risk

34
Q

Abnormally Dangerous Factors

A

a. high degree of risk of some harm
b. likelihood resulting harm will be great
c. inability to eliminate risk by exercising reasonable care
d. common usage
e. inappropriateness of locale
f. value to community> dangerousness

35
Q

Abnormally Dangerous Contributing Actions still liable:

A

If caused by:

  1. innocent, reckless, negligent actions by third person
  2. animal
  3. force of nature
36
Q

Still liable if someone assumed the risk of abnormally dangerous activity?

A

NO so long as the assumption of risk was voluntary+ knowingly+ reasonable

37
Q

When is contributory negligence a defense for abnormally dangerous activities?

A

When the contributor knowingly and unreasonably subjects self to the risk of harm

38
Q

What is the deal with abnormally sensitive P’s harmed by abnormally dangerous activities?

A

No strict liability if the harm wouldn’t have resulted, but for the abnormally sensitive character of the P

39
Q

For a private nuisance claim, what are the elements for the liability regarding the invasion?

A

Invasion must be either:

a. intentional and unreasonable, OR
b. unintentional but actionable under rules for negligent or reckless or abnormally dangerous activities

40
Q

What are the elements regarding conduct for a private nuisance claim?

A

Conduct must be the legal cause of the invasion of another legally protected non-exclusive interest in the private use and enjoyment of land

41
Q

What constitutes an intentional invasion in a private nuisance claim?

A
  1. Acts for the purpose of causing the invasion, or

2. knows that the invasion is resulting or is substantially certain to result from his conduct

42
Q

When is invasion of another interest in use and enjoyment of land unreasonable in a private nuisance claim?

A

a. when gravity of harm> utility of conduct

b. Harm caused is serious but the harmer can feasibly compensate for the harm (“financial feasibility”)

43
Q

Gravity of Harm Factors (Private Nuisance)

A

a. Extent of harm
b. character of harm
c. social value of use/enjoyment of land
d. suitability of locaility for P using land
e. burden on P in avoiding harm

From P perspective

44
Q

Utility of Conduct Factors (Private Nuisance)

A

a. Social value of conduct
b. suitability of conduct to locality
c. impracticality of avoiding invasion

D conduct and utility to all

45
Q

4 Terms used for Respondeat Superior

A
  1. Master/Servant
  2. Employer/Employee
  3. Principal/Agent
  4. Vicarious Liability
46
Q

Elements of Respondeat Superior

A
  1. Front- line D was employee of employer
  2. Front- line D was acting in scope of employment
  3. Front- line D acted negligently (or otherwise tortiously), injuring P
47
Q

Elements of Scope of Employment

A

A. Kind of conduct employee is employed to perform
B. occurs substantially within time/space limits
C. Actuated (at least in part) by purpose to serve the master
D. If force intentionally used by servant, not unexpected by master

48
Q

Kind of Conduct within Scope of Employment

A

1) Must be same general nature as that authorized, or incidental to conduct authorized

49
Q

What to consider when deciding if conduct is incidental to conduct of general nature authorized by employer?

A

a) Act one commonly done by servant
b) time, place, purpose of act
c) Previous relations between servant/master
d) extent to which the acts are spread among different servants
e) Act outside enterprise of master

50
Q

Acts Forbidden by Employer

A

Acts forbidden can still be done within scope of employment

same for criminal/tortious acts and failures to act

51
Q

Definition of a Servant

A

1) Person employed to perform a service AND

conduct subject to the others control or right to control

52
Q

Factors to determine Independent Contractor

A

a) extent of control
b) distinct occupation or business
c) kind of occupation (specialist)
d) whether employer supplies equipment/location
e) skills required
f) length of time of employment
g) method of payment
h) regular business of employer?
i) belief about relationship by the parties
j) whether principal is in business

53
Q

When is the master liable for the employee’s conduct that is outside the scope of employment?

A
  1. master intended the conduct/consequence
  2. master negligent or reckless
  3. conduct violated non-delegable duty of master
  4. servant spoke on behalf of principal and there was reliance on apparent authority
54
Q

Is employer liable or work done in a public place by independent contractor?

A

Yes, even though independent contractor, still liable for harm for negligent acts or omissions of the contractor

Torts (5 decks)

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