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)
Pure vs partial comparative negligence
Pure comparative negligence (p can recover something no matter how much at fault); partial comparative negligence (p can only recover if less than 50% at fault)
Unascertainable cause
applies when two or more persons have been negligent but it cannot be determined which one caused the plaintiff’s injury. The court will shift the burden of proof to each of the negligent defendants to show that his negligence was not a factual cause of the injury.
Conversion
Conversion: mistake is not a defense; required intent is the physical act of taking something (don’t have to know that you’re taking the property of another) A conversion occurs when the defendant intentionally causes serious interference with the chattel of the plaintiff. The intent involved refers to the physical act that results in the conversion, not to the defendant’s desires regarding the ultimate disposition of the property.
Trespass to chattels: same as conversion but less serious, not a complete deprivation of property
NIED
Near miss (zone of danger + physical symptom); Bystander (actually witnessed + negligent killing/serious injury + close relative); Business Relationship (highly foreseeable that careless performance by D will result in emotional distress, e.g. doctor misdiagnosis, mortuary negligent cremation)
Negligence per se
D is negligent per se if she violates a criminal statute that
(1) Was designed to prevent the type of harm suffered by the plaintiff AND
(2) The plaintiff is within the class the statute was designed to protect
However, violation of the statute may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control.
If applied, P has met Duty and Breach (and can overcome dv)
Res ipsa loquitor
In some cases, the very occurrence of an event may tend to establish a breach of duty
P must show:
(1) The accident causing the injury is a type that would not normally occur unless someone was negligent
(2) The negligence is probably attributable to the defendant (the instrumentality was within exclusive control of D)
If applied, P has met Duty and Breach and can overcome dv
