The Final, Final Review Cards!! Flashcards
Purposes of Tort Law
1 - Peaceful means so they don’t take law into their own hands
2 - Deter wrongful conduct
3 - Encourage socially responsible behavior
4 - Restore injured parties to OG condition
5 - Clear a wrong
Battery - Rule Statement
Harmful or offensive contact intentionally made by the D to the P’s person
Assault - Rule Statement
Intentional infliction of an apprehension of an imminent contact by the D
Does there need to be physical harm for assault?
No. Can be held liable without it. Also can be assault without battery.
FI - Rule Statement
Direct restraint of one person of the physical liberty of another without adequate legal justification.
FI - Requirements
- Confined/bounded area
- Knowledge/awareness
- Reasonableness of escape
IIED - Rule Statement
Intentional extreme or dangerous conduct by the D that cause severe ED to P
Can there be nominal damages for IIED?
No.
Bystander IIED - Requirements
- Close family
- Intent to batter you AND intent to cause me ED from it
T2L - Rule Statement
An intentional act by D that causes a physical invasion on P’s real property
Is T2L maintain intent even if the D thought it was their own land?
Yes.
T2Ch - Rule Statement
An intentional act by the D that causes an interference with P’s right of possession in a chattel, resulting in damages
Conversion - Rule Statement
Intentional act of control over a chattel which seriously interfered with P’s right of possession, resulting in full value of chattel.
Damages: nominal
token
Damages: actual
put them back in position moment before
Damages: punitive
to punish
Negligence - General Rule Statement
Omission to do something a reasonably prudent person would do.
Negligence - 4 Elements
- Duty
- Breach of duty
- Breach of duty was actual and proximate cause of injury
- Damage to person/property
Can there be nominal damages for negligence?
No, only actual.
Precaution Equation
If burden < harm, do precautionary measure.
*Check cost of precaution, probability of harm, seriousness of harm
Negligence Per Se
Violation of statute
1 - Member of class to be protected intended by legislature
2 - Hazard that caused injury is one meant to be protected by legislature
Res Ipsa Loquitur
Accident implies negligence
- Exclusive control of D
- Would not normally occur without negligence
Actual Cause/Causation in Fact
Substantial factor in bringing about harm
Duty + breach -> damages
Concurrent Causes: Joint v Several Liability
Joint: 30% could pay ALL
Several: pay what you are responsible for
Market Share Theory
Can recover for injury by a drug of unknown source against known manufacturers of the drug (held liable for their share of market)
Proximate/Legal Cause
Immediate + foreseeable
- But-for Test
- Substantial Cause Test
- Double Test
Rescue Doctrine
Allows an injured rescuer to sue the party (D) who caused the rescue to occur
Defenses (Negl) - Contributory Negligence v. Comparative Negligence
Contributory: even if P is a little negl, cannot recover at all
Comparative: P negl < D negl, can recover
Defenses (Negl) - Assumption of Risk
If within terms of contract + not void for public policy reasons
Defenses (Negl) - Immunities
- Parent/Child
- Charities
- Gov’t.
- U.S.
Wrongful Death
- Brought by family/estate for loss of support/society/love/care/funeral charges/etc.
- Meets negligent requirements but harm = death, and D’s conduct must be cause of death
Survival Statute
- Time b/w harm + death
- Remedy to P (loss of wages/pain + suffering)
Vicarious Liability - Respondeat Superior
Hold someone responsible by stating they are my employer/etc. and they should respond to my tortious act (if done in scope of work)
Vicarious Liability - Independent Contractors
D not held liable for ind. contractor’s actions
Vicarious Liability - Joint Enterprise
- If 2 are in JV/Ent. may be able to get the other on the hook
- Accident has to happen in scope of their business/both have to be equals in their positions
Vicarious Liability - Bailments
bailor: has title/ownership
bailee: trusted with property (usually younger)
- Bailor could be held liable for actions of bailee
Strict Liability - Rule Statement
Is A’s conduct toward B maybe not intentional or negligent, sufficient to SL for public policy reasons?
SL - Animals - Fencing Out v. Fencing In
Fencing Out: P put up fence, if animal goes through, D liable
Fencing In: D fences animal in, if gets out, D liable
SL - Abnormally Dangerous Activities
SL even if lawful
Factors:
- High risk of some harm
- Harm could be great
- Cannot eliminate risk
- Not common usage
- More dangerous than valuable
Product Liability - Definition
Liability of manufacturer/seller/supplier of chattels to one who suffers physical harm caused by the chattel
PL - Negligence
They did not act like a reasonably prudent manufacturer/etc.
PL - Warranty - Express v. Implied
Express: label/ad/brochure
Implied: dishwasher that does not load dishes
PL - Strict Liability in Tort
When they place an article on market, knowing it was not inspected for defects, has defect that causes harm
PL - Restatement (3rd)
Engaged in selling/distributing it
Three Types of Defects
Manufacturing: mishap (10 chips stuck together, rare)
Design: only on hook if you breach duty (every chip is too big)
Warnings: only on hook if you breach duty
**Follow negligence for Design/Warnings
Int Torts - Privilege - Necessity
Public: greater good
Private: just pay damages
Int Torts - Privilege - Authority of Law
Arrest
Int Torts - Privilege -Discipline
Parent/Child
Int Torts - Privilege - Justification
Bus driver
Int Torts - Privilege - Consent (Express v. Implied)
Express: signs/orally
Implied
**Can be negated if under false pretenses (fraud/minor/intoxicated/etc.)
Int Torts - Privilege - Self Defense
- NOT for retaliation
- Provocation does not warrant self defense
Int Torts - Privilege - Defense of Others
Usually family members
Int Torts - Privilege - Defense of Property
- Only if trespasser is committing felony of violence is force justified
- Life is always > property
Int Torts - Privilege - Recovery of Property
- Demand it back first (some)
- Has to be immediate
- Reasonable amount of force
“Shopkeeper’s Privilege”
