Torts Flashcards
Informed Consent and Battery
The prima facie case for battery requires an act by defendant that will bring about a harmful or offensive contact to the plaintiff, intent on the part of defendant to do the act, and causation. P can get nominal damages if the procedure went well.
Note that complete absence of consent to a medical or surgical procedure may often constitute battery, which does not require damage as an element. However, a nondisclosure of the risks of the procedure is characterized instead as a breach of the duty of care. Negligence– so damages required!
False imprisonment
an act or omission by defendant that confined or restrained plaintiff to a bounded area, intent by the defendant to do so, and causation
Remedy for conversion
If the plaintiff is successful in a conversion action, the measure of damages is the fair market value of the chattel converted. This value is generally computed as of the time and place of the conversion. The defendant is given title upon satisfaction of the judgment so that, in effect, there is a forced sale of the chattel
Trespass
To establish a prima facie case for trespass to land, plaintiff must prove: (i) an act of physical invasion of plaintiff’s real property by defendant; (ii) intent on defendant’s part to bring about the physical invasion; and (iii) causation.
Defense of necessity: excuses trespass but the trespasser does have to pay for damages caused by the trespas
IIED
To establish a prima facie case for intentional infliction of emotional distress, plaintiff must show: (i) an act by defendant amounting to extreme and outrageous conduct, (ii) intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant’s conduct, (iii) causation, and (iv) damages-severe emotional distress.
(Do not need to show physical injury)
Duty of care of professionals
A person who is a professional is required to exercise such superior judgment, skill, and knowledge as he actually possesses
Duty owed to trespassers
unknown trespassers: none
known/anticipated trespassers: warn or make safe any known artificial highly dangerous conditions (manmade death traps)
Duty owed to licensees
warn or make safe
any known concealed dangerous conditions (natural or artificial)
(all known traps)
Duty owed to invitees
any concealed dangerous conditions
known by possessor or would have discovered with reasonable inspection (should inspect regularly)
Attractive nuisance
Duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property.
(1) dangerous condition on the land that the owner is or should be aware of
(2) owner knows or should know that children might trespass on the land
(3) condition is likely to cause injury/ dangerous due to child’s inability to appreciate the danger
(4) balance: expense of remedying the situation is slight compared with the magnitude of the risk
Intervening acts
Normally, criminal acts by 3rd parties are not foreseeable, but if it was foreseeable, it’s not an intervening act, and d can be held liable/negligent
Strict liability elements
Products liability defenses
assumption of risk, adequate warnings (not enough if feasible solution to fix), unforeseeable product misuse
Nuisance
substantial and unreasonable interference with use of land, balances utility and harm
Defamation
DPDPD: defamatory statement, publication, damages (general, presumed, like to reputation; special damages like pecuniary loss, which is not required for slander per se or libel); plaintiff (public figure: malice, private person and matter of public concern: negligence, private person and matter of private concern: only must show publication); defenses (truth or privilege: qualified or absolute)
