Torts Flashcards
Intentional Tort: Battery
Priority: High
A defendant is liable for battery when there has been an intentional, harmful or offensive contact, with teh plaintiff’s person, or anything connected to the plaintiff.
A defendant intentionally acts when he:
1. acts with the desire to bring about the harm/contact; or
2. is substantially certian the harm/contact will occur.
A plaintiff need not suffer actual damages. Nominal damages suffice.
Intentional Tort Defenses: Consent
Priority: High
Consent may be express or implied by words, conduct, or law. Implied consent is effective when words or conduct are reasonably understood to be intended as consent. Implied by law consent include special circumstances, such as medical emergencies.
Defendant’s actions cannot exceed the bounds of the consent given.
Privilege Defenses: Necessity
Priority: High
A defendant is not liable for harm to the plaintiff’s real property for acts that were necessary, or reasonably believed to be necessary, to prevent serious harm to person or property. When using public property it is a complete defense. When using private property, the defendant may be liable for any damages caused unless the purpose was to help the plantiff.
Privilege Defenses: Self-Defense/Defense of Others
Priority: High
A defednant is not liable for harm to the plaintiff if he reasonably believed the plaintiff was going to harm him or another and used reasonable force that was necessary to protect himself or another.
Privilege Defenses: Defense of Property
Priority: High
A defendant may use reasonable force to defend property, but never deadly force.
Privilged Defenses: Recapture of Chattles
Priority: High
The owner of chattles may demand the return and then take prompt action and use reasonable force to recover chattels from the wrongdoer, but never deadly force.
Privilged Defenses: Shopkeeper’s Privilged
Priority: High
Shopkeepers have the privilege of temporarily detaining a person reasonably suspected of theft in or near their store for the purpose of an investigaiton. Reasonable non-deadly force may be used to tdetain the individual, when a request to remain has been made and refused.
Privilged Defenses: Privilege for Dicipline
Priority: High
Parents may use reasonable force in diciplining thier children.
Privilged Defenses: Privilge to Arrest
Priority: High
A defendant has the privilege to arrest a plaintiff directly observed committing a serious felony.
Prima Facie Case of Negligence
Priority: High
A prima facie case for negligence requires:
1. a duty owed to the plaintiff by the defendant
2. a breach of that duty
3. the breach is the actual and proximate cause of the plaintiff injuries
4. damages.
To make the prima facie case, a party must offer sufficient evidence so that the tirer of fact could reasonably find that all of the above elements have been met.
Affirmative Duty to Act
Priority: High
Generally, there is no affirmative duty to act. However, an affirmative duty to act can be created under the followig scenerios:
1. a pre-existing relationship (parent-child, landlord-tenant);
2. defendant put the plaintiff in peril;
3. duty imposed by law; or
2. a person who undertakes aid or rescue must exercise rasonable care and is liable for injuries resulting from an unreasonable increase in the risk of harm or a detramental reliance on the aid.
Standard of Care: Reasonable Person Standard
rPriority: High
Every person has the duty to act as a reasonable prudent person would act under like circumstances. This duty extends to all forseeable plaintiffs and includes taking actions to avoid forseeable risks. A person with a physical disability must act as a reasonable person with the disability would act. There is no such modificaiton for mental disabilities.
Standard of Care: Children
Priority: High
Children have a duty to act as a hypotehtical child of similar age, expereince, and intelligence acting under similar cicumstances would act unless they are engaged in an adult activity, and then they are held to the reasonable person standard. Generally children under 7 are presumed incapable of negligence and under 5 are excluded from negligence.
Standard of Care: Professionals
Priority: High
A professional owes a duty to act with the competence, knowledge, and skill of an average memeber of that profession practicing in a similar community. If the professional holds himself out to be a specialist, then he has a duty to act with the care and skill of an average member of the profession with that speciality.
Standard of Care: Psychologist/Psychotherapist
Priority: High
A psychologist/psychotherapist has a duty to warn potential victims when their patent makes a credible threat to others. In most states, a therapist will be liable for the victims injuries if the therapist believed the patient posed a real risk of serious physical violence to a readily identifiable victim and the therapist failed to take steps to warn the victim.
Standard of Care: Entrants to Land
Priority: High
Undiscovered Trespasser: no duty owed
Antcipated Trespasser: reasonable care in operations of propety to warn of or make safe any highly dangerous artifical condition that the landowner has actual knowlege of.
Licensee: reasonable care in operations of property and warn of dangerous conditions.
Invitee: duty to make reasonable inspections to land to find and make safe any non-obvious dangerous conditions.
Attractive Nusance: duty to protect child trespassers from artificial conditions that are likey to cause death or serious bodily injury in an area where children are likely to frequent without appreciating the risks or dangers. The landowner is liable if the harm outweighs the expense of making the condition safe and he fails to excercise reasonable care to eliminate the danger or protect children from it.
Some states say you have a reasonable duty of care to all entrants.
Negligence Per Se
Priority: High
To establish negligence per se, a plaintiff must establish that a statute created a duty of care, the purpose of the statute was to prevent the type of harm suffered, and the plaintiff is in the class of persons the statute seeks to protect.
A defendant is excused from this standard of care when compliance with the statute would have been more dangeorus than the violtaion of it or when compliance is impossible.
Res Ipsa Loquitur
Priority: High
When breach is difficult to prove, a plaintiff may assert res ipsa loquitur when:
1. injury of the sort suffered does not usually occur in the absence of negligence
2. the instramentality that caused the injury was within the defendant’s control
3. plaintiff did not contribute to the injury
Not ordinarily avaliable to show liability of any particular defendant.
Actual Cause
Priority: High
But for the defednant’s negligence, the plaintiff would not have been injured. The actual cause can be one of multiple causes, if it was a substantial factor in bringing about the injury.
Proximate Cause
Priority: High
The injury must have been a forseeable result of the breach. Any action that occurs after the breach is an intervening cause. If the interveining cause is a natural reaction to the breach then it is forseeable.
- Medical malpractice is alwayse forseeable.
- Injured rescurer’s injuries are forseeable.
- Negligent resuce causing increased harm is forseeable.
Eggshell Plaintiff Rule
Priority: High
A tortfeaser takes his victim as he finds him and is liable for all harm that a plaintiff suffers as a result of the conduct, even if the plaintiff suffered from preexisting mental or physical condition that made the harm greater than what a normal person might suffer.
Pure Comparative Negligence
Priority: High
The plaintiff can recover any damages incurred by the defendant less the percentage that the injury that is determined to be the Plaintiff’s fault.
Partial Comparative Negligence
Priority: Medium
The plaintiff can recover any damages incurred by the defendant less the percentage that the injury that is determined to be the Plaintiff’s fault. However, if the plaintiff is more than 50% at fault, then the plaintiff cannot recover any damages.
Contributory Negligence
Priority: Medium
The plaintiff cannot recover damages from the defednant if he contributed to his own injury in any way, except:
1. if the defendant had the last opportunity to avoid the accident; or
2. defendant was reckless
Negligent Infliction of Emtional Distress
Priority: High
Generally, NIED is only avalaible in three scenerios:
1. plaintiff was in the zone of danger from the defendant’s negligent acts which created a forseeable risk of injury and the plaintiff manifests physical symptoms from the near miss.
2. plaintiff is a close biological family member that witnesses a negligent injuring and manifest physical symptoms as a result
3. plaintiff is in a special pre-existing relationship with the defendant and the negligent act could forseeably cause distress. Generally only avaliable in egregious situations.
Joint and Several Liability
Priority: High
A plaintiff may recover the entire amount from any single defendant if the jurisdiction supports joint and several liability.
Products Liability
Priority: High
A commercial supplier of a defective product is subject to strict liability for any harm caused by the product if the plaintiff can show personal injuries resulting due to:
1. product was defective;
2. product was not altered;
3. product caused the inujury while being used in a forseeable way; and
4. the defendant is a commercial supplier of this type of good
- Plaintiff does not have to be the purchaser
- Commerical supplier includes any seller in the distribution chain (including retailer and wholesaler)
Products Liability: Types of Defects
Priority: High
Manufacturing Defect: product differs from the intended design and it is more dangerous than if made properly.
Failure to Warn: the plaintiff was not warmed of the risks which were not obvious to an ordinary user but were known to the designer/manufacturer.
Design Defect: the product could have been designed to be built safer, more practically, and with a similar cost.
