Torts Flashcards
Battery
AIC Act, Intent (harmful or offensive), Contact (harmful or offensive)
Single intent (battery)
Intent to touch - purpose or knowledge
Dual intent (battery)
Intent to touch AND intent to make harmful or offensive contact
Assault
AIRA Act, Intent (harmful or offensive), Reasonable Apprehension of imminent harmful or offensive contact
False imprisonment
CIA actual Confinement in bounded area, Intent to confine/restrain, Awareness/conscious of or harmed by confinement
Trespass to land
APII act, physical invasion/entry, intent to enter (purpose or knowledge)
Conversion of chattels
Unauthorized control. Factors: extent/duration, intent, good faith, harm, expense/inconvenience
DIP dominion and control (substantially interfered), intent, possession
Trespass to chattels
Act, intent (purpose or knowledge) to interfere with possession of chattel, actual damage
AIIP act, intent, interference, possession (or had right to possess it)
Intentional infliction of emotional distress
AIC Act (extreme and outrageous conduct, consider intensity and duration), Intent (severe emotional distress, or disregard of substantial probability), Causation (in fact)
Privileges for self defense
Justify D’s conduct as response to misconduct, consent, privilege of public and private necessity
Shopkeeper’s privilege
Reasonable cause, manner, time
Negligence
conduct falls below standard established by law. Duty, breach, but-for cause, proximate cause, injury. Ask what did D do (duty and breach), what were results of D’s conduct (cause), what did P do (defenses)
Res ipsa loquitur
Thing was under management/exclusive control of D, accident wouldn’t ordinarily happen in the absence of negligence, P didn’t voluntarily contribute to injury
Exceptions to contributory negligence
Rescue, last clear chance, discovered peril, reckless or intentional misconduct, P’s illegal activity
Exceptions to no-duty-to-act
Knows, created risk, statute
7 intentional torts
battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to chattels, conversion FITTED CAB (False Imprisonment, Trespass land, Trespass chattels, Emotional Distress, Conversion, Assault, Battery)
Intent
desire that certain consequences result from his actions, or even if he doesn’t intend those results, knowledge that those results are substantially certain to occur as a result of his actions
Act
voluntary muscular movement
Transferred intent
between victims, between torts
Battery defenses
Self-defense, consent, defense of others, defense of property, retaking of land, recapture of chattels, necessity, discipline, detention for investigation, legal authority
False imprisonment defenses
consent, legal justification, shopkeeper’s privilege
False imprisonment damages
compensation loss of time, physical discomfort and inconvenience, illness, mental suffering, humiliation, punitive damages
Trespass to land defenses
consent, necessity (public or private)
9 defenses to intentional torts
DODD SLASh CoRN Defense of Others, Defense of land/chattels, Discipline, Self-defense, Legal Authority, Shoplifter, Consent, Recapture of chattels, Necessity
Types of consent
express, implied-in-fact, implied by law (emergency)
Consent to intentional tort is ineffective when
CAD FInS Criminal Act, Duress, Fraud, Incapacity, Scope (exceeded)
Public necessity
defense when there’s a public disaster
Private necessity
defense when reasonably necessary to protect from death/serious harm or protect specific land or chattels from injury
Balancing test
B (burden, utility of D) less than PL (probability and gravity of harm). Measure duty and breach of reasonable care
General standard of care
reasonable person (exceptions for certain groups of people, blind, children)
Negligence per se for statute
statute has criminal penalty, was created for the purpose of preventing the kind of harm suffered, P is member of class. CriMP (Criminal penalty, Member of class, Prevent kind of harm)
When individual must affirmatively act for other’s benefit
created the peril, special relationship, has undertaken to act for P’s benefit
Cause in fact
but for test (single cause) or substantial test (multiple causes) of whether D’s act brought about P’s injuries. Preponderance of evidence
Proximate cause
policy considerations limiting scope of liability, foreseeability of risks and consequences. Was P’s injury within the scope of the risk created by D’s negligence? Liability limited to harm that results from the risks that made the actor’s conduct tortious
Intervening cause
comes into active operation in producing the result after D’s negligent act from a source independent of D’s negligence
Superseding cause
intervening act was unlikely or bizarre, break the chain of causation, not within the risk that made the D’s conduct negligent. Determined by foreseeability. Criminal acts or intentional torts of third parties, extraordinarily negligent conduct, acts of God
Negligence affirmative defenses
contributory negligence, comparative negligence, assumption of risk (express or implied)
Assumption of risk defense elements
P knew and appreciate the risk, freely and voluntarily assumed risk
Contributory negligence
P’s conduct doesn’t meet the standard of care for his own protection and is a cause of his harm (under but-for or substantial factor test). Complete bar
Comparative negligence
divides liability between P and D in proportion to their fault. Pure (P can recover damages from D no matter how large P’s own negligence contributed) or modified (P’s negligence must be less than 50% or no more than 50%)
Adults who enter land categories and landowner duties
trespasser (no general duty of care), licensee (duty to warn of known danger but no duty to inspect or repair, avoid gross negligence), invitee (duty to warn, inspect, and repair, make property reasonably safe. Express or implied invitation to conduct business or land is open to public)
Attractive nuisance doctrine
landowner must exercise ordinary care to avoid harm to children when harm is reasonably foreseeable risk caused by a dangerous artificial condition where children are likely to trespass and risk of injury outweighs cost of remedying
Vicarious liability
special relationship, liability without fault, liable when torts occur within the scope of the employment relationship (serves employer’s objectives, general type that employee is authorized to perform, within time/place authorized)
Parents liable for children when
give child dangerous object, not protect against dangerous tendency parent knows, when parents and child are together, not warning others of child’s dangerous tendencies
Joint and several liability
more than one tortfeasor and damages are indivisible, all tortfeasors are jointly liable and can be liable for the whole judgment. Often when tortfeasors act in concert, fail to perform a common duty, or act independently to produce an indivisible injury
Contribution
sharing payment for joint liability, defendant can seek partial reimbursement from other joint tortfeasors
Several liability
tortfeasor only liable for proportionate share of fault, no contribution rights needed or recognized
Major topics mneumonic
BAT FIND PIN SLIM CV
Battery Assault Trespass, False Imprisonment Negligence Defamation, Products liability IIED Nuisance, Strict liability Landowner liability Invasion of privacy Misrepresentation, Conversion Vicarious liability
Products liability tests
consumer expectations test, risk-utility test
Restatement Third: 3 categories products liability
manufacturing (departed from intended design), design (RAD), informational
Strict products liability
DCCBC defect control changes business causation
3 frameworks for duty
kitchen sink (foreseeability and policy), all public policy, Restatement §7 actor’s conduct creates a risk of physical harm
Res ipsa loquitur
exclusive control of D, wouldn’t ordinarily happen in the absence of negligence
