Torts Flashcards
What are the elements of Battery?
When there is:
1) An intentional,
2) Harmful or offensive contact,
3) With the plaintiff’s person.
Intentional acts are done with the desire to bring about harm OR knowing the harm is substantially certain to occur.
Bodily harm is the physical pain, illness, or impairment to another’s body.
Priority: HIGH
What are the elements of Assault?
When there is:
1) An intentional act,
2) That causes the plaintiff to be placed in reasonable apprehension (aware of the act and believes that the defendant is able to commit it),
3) Of imminent harm or offensive contact.
Priority: Medium
When is an act deemed Intentional for the tort of Assault?
If it’s done:
a) For the purpose of causing apprehension; OR
b) With knowledge to a substantial certainty that such apprehension will result.
Priority: Medium
When is a defendant liable for False Imprisonment?
When he:
1) Intentionally acts (purposely or knowing that it’s substantially likely to occur),
2) To restrain the plaintiff to fixed boundaries, AND
3) The plaintiff is conscious of the confinement OR is harmed by it.
Priority: Medium
What are the elements of Intentional Infliction of Emotional Distress?
1) The defendant acted intentionally or recklessly;
2) Their conduct was extreme and outrageous;
3) The act caused extreme emotional distress; AND
4) The plaintiff actually suffered severe emotional distress.
Priority: Medium
When is a defendant liable for Trespass to Land?
1) When he intentionally,
2) Either:
a. Enters the land in possession of another;
b. Causes an object/third-person to enter;
c. Remains on the land; OR
d. Fails to remove an object he is under a duty to remove.
*Intent to trespass is NOT required.
Priority: Medium
When is a person liable for Trespass to Chattels?
When he:
1) Intentionally interferes with another’s personal property,
AND
2) The amount of damage is small.
Priority: Medium
When is a person liable for Conversion?
When he:
1) Intentionally interferes with another’s personal property,
AND
2) The amount of interference is substantial.
*Defendant will be liable for full market value of item.
Priority: Medium
Under the Doctrine of Transferred Intent, how can the intent to harm one party be transferred?
It’s transferred when:
1) The defendant had the intent to commit a tort against one particular individual;
AND
2) If in the act of trying to accomplish that tort either:
a. commits a different tort against that person; OR
b. another party is injured.
*Only applies to Battery, Assault, False Imprisonment, Trespass to Land, & Trespass to Chattels.
Priority: Medium
Intentional Tort Defenses
Consent is a defense to intentional torts, and can be express, apparent, or implied by law.
Apparent Consent vs. Implied by Law Consent
Apparent Consent: When words or conduct are reasonably understood to be intended as consent (such as customary practice or a person’s failure to object).
Implied by Law Consent: Occurs in special circumstances, such as medical emergencies.
Priority: HIGH
Intentional Tort Defenses
What is the defense of Privilege?
It is conduct that under ordinary circumstances would subject the actor to liability, BUT is excused under the circumstances.
Priority: HIGH
Intentional Tort Defenses
What are the different Privilege defenses?
Privilege includes:
1) Necessity (acts were necessary to prevent serious harm).
2) Self-defense/defense of others.
3) Defense of property.
4) Recapture of chattels.
5) Detention for investigation.
6) Privilege to discipline children.
7) Privilege to arrest.
Priority: HIGH
What are the elements for a prima facie case of Negligence?
1) A duty owed to the plaintiff by the defendant;
2) A breach of that duty;
3) Causation (the breach was the actual and proximate cause of the plaintiff’s injuries); AND
4) Damages.
Priority: HIGH
When will an Affirmative Duty to act arise?
If:
a) There is a pre-existing relationship between the parties;
b) The defendant put the plaintiff in peril;
c) The defendant has undertaken to rescue the plaintiff; OR
d) A duty is imposed by law.
Priority: HIGH
When is a Rescuer liable for injuries caused to another person?
If they fail to exercise reasonable care, AND:
a) The failure increased the risk of harm; OR
b) The harm is suffered because of reliance on the person providing the aid.
**A rescuer is liable if the aid is discontinued and the person is left in a worse position.
Priority: HIGH
What is the Reasonable Person Standard?
Every person owes a duty to act as a reasonable prudent person would act under similar circumstances.
(A reasonable person takes appropriate measures to avoid foreseeable risks.)
*This duty is owed to ALL foreseeable plaintiffs.
Priority: HIGH
What is the Standard of Care for Children?
They are held to a standard of care a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
*If the child is engaged in an adult activity, they have the duty to act as a reasonable ADULT would act under the circumstances.
Priority: HIGH
What is the Standard of Care for Professionals?
A professional owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community.
*A specialist is held to the care and skill of an average member of the profession practicing the specialty.
Priority: HIGH
What is the Standard of Care for Landowners?
They have to exercise reasonable care to ALL entrants upon their land, and take appropriate measures to avoid foreseeable risks.
*Some states determine the duty of care required based on the type of entrant (trespasser, licensee, invitee).
Priority: HIGH
Undiscovered Trespasser vs. Anticipated Trespasser
Undiscovered Trespasser: NO duty is owed by the landowner.
Anticipated Trespasser: The landowner must use reasonable care in operations on the property AND warn of highly dangerous artificial conditions that they know of.
Priority: HIGH
What is the Attractive Nuisance Doctrine?
For child trespassers, landowners must make the premises reasonably safe or warn of hidden dangers on their land.
Landowners are held liable for harm if:
1) They know the condition is likely to cause death;
2) They know that children frequent the area;
3) That children are unlikely to discover the condition;
4) The risk of harm outweighs the expense of repair; AND
5) They fail to exercise reasonable care in eliminating the danger.
Priority: HIGH
Licensee vs. Invitee
Licensee: Landowner must exercise reasonable care AND warn of (make safe) dangerous conditions the owner knows of but not apparent to the guest.
Invitee: Landowner owes all the duties he would to a Licensee, PLUS the duty to make reasonable inspections of the property to find/make safe non-obvious conditions.
Priority: HIGH
When does Negligence Per Se apply?
When:
1) The statute’s purpose is to prevent the type of harm that the plaintiff suffered; AND
2) The plaintiff is in the class of persons the statute seeks to protect.
*If established, a violation of the statute is deemed a breach of the duty of care owed.
Two Exceptions: (1) When compliance with the statute would be more dangerous; (2) Compliance is impossible.
Priority: HIGH
Under the Traditional Test for Res Ipsa Loquitur, what must the plaintiff show?
1) That the injury typically does not occur in the absence of negligence;
2) The instrumentality (thing/object) which caused the injury was in the defendant’s exclusive control; AND
3) That Plaintiff not cause or contribute to the injury.
*If applicable, the breach element is established.
Priority: HIGH
Under the Restatement (Second) Test for Res Ipsa Loquitur, what must the plaintiff show?
1) That the event typically does not occur in the absence of negligence;
2) Other responsible causes are sufficiently eliminated by the evidence (incl. plaintiff & third persons); AND
3) The negligence is within the scope of duty the defendant owed the plaintiff.
*If applicable, the breach element is established.
Priority: HIGH
