Torts Flashcards
Battery
- intentional - desire to bring about harm/contact
- harmful or offensive contact
- with P’s person
nominal damages alone are sufficient.
Consent
may be express or impled through words or conduct.
P must have capactiy to consent; may be withdrawn at any time, P cannot consent to a crime.
Privilege
conduct that normally would subject the actor to liability but is excused under the circumstances.
Prima Facie Case
- Duty
- Breach of duty
- Causation (Actual and Proximate Cause)
- Damages
Affirmative Duty
There is no general duty to act affirmatively EXCEPT if
- special pre-existing relationship
- D put P in peril
- D tries to rescue P and increases harm risk
- duty imposed by law
RP Standard
every person owes a duty to as a reasonable prudent person (rpp) would act under the circumstances.
disability: act as a reasonable person with a disability would act.
mental disability: act as a reasonable person without the disability would act.
Child Standard
must act a child of similar age, experience and intelligence under similar circumstances.
Exception: Engaging in an adult activity, must act as reasonable adult would.
Professionals Standard
Must act with knowledge and skill as an average member of that profession participating in a similar community. (doctors, lawyers, accountants, engineers,
Land Owner/ Possessor Duty to Entrans
Some States: Landowner/ Possessor must exercise reasonable care to ALL entrants.
Other states:
- Undiscovered Trespasser: no duty owed
- Anticipated Trespassers: (w/o permission but expected)
- reasonable care and must warn on make safe of highly dangerous and artifical conditions.
- Licensee: reasonable care and must warn/safe dangerous known conditions.
- Invitee: same duty as Licensee + duty to make reasonable inspections to find and make safe non obvious dangeroud conditions.
Negligence Per Se
Must show:
- statute;s purpose to prevent the type of harm P suffered. AND
- P is the class of person statute seeks to protect.
(Duty and breach established when D breaches statute)
Exceptions:
- Compliance impossible and compliance more dangerous.
Res Ipsa Loquitor
The thing speaks for itself.
2nd Restaement: P must show that:
- the injury is the kind that typically does not occur in the absence of negligence
- other responsible causes are suggiciently eliminated AND
- negligence was within the scope of duty D owed to P
Actual and Proximate Causation
Actual: the “but for” cause - P would not have been harmed but for D’s actions.
- Substantial Factor tEst: an actual cause if a substantial factor in bringing about the injury even if there are multiple cause.
Proximate: injury must have been a reasonable result of the breach.
- D is not liable for remote harms caused.
Intervening Cause
An act that occurs after the breach that contributes to the harm.
- intervening causes that are depeneedent (a natural reaction to) D’s wrongful acts -> usually deemed foreseeable
- if the intervening cause resulted in an unexpected injury is usually deemed unforeseeable and D is not liable.
Eggshell Plaintiff Rule
“Take P as you find P”
D is liable for all harm P suffers as a result of his conduct, even if P suffers from a pre-existing mental or physical condition that makes the harm worse than what a normal person might suffer.
Comparative and Contributory Negligence
** Only apply Pure comparative negligence
- Pure Comparative Negligence - P’s negligence or assumption of risk will reduce this recoverable damages by the percentage of his owwn fault.
- Partial Comparative: if P is 50% or more at fault then P’s claim is barred.
- if P is less than 50% at fault, then damages are reduced by the percentage of his own fault.
- Contributory Negligence: P’s claim is barred if contributory.
- unless last clear chance to avoid Ax.
- D was reckless.
