Torts Flashcards
Battery
An intentional, harmful, or offensive contact with the plantiff’s person
Harmful
any physical pain, illness or impairment
Offensive
anything that offends a reasonable sense of personal dignity
Contact
any item in the possesion of or connected to the P
Is the D responsible for all harm to the P including unforeseeable damages
yes
Assault
intentional act that puts the P in reasonable apprehension of imminent harmful or offensive contact with the P’s person. Does not require proof of harm and punitive damages may be imposed if malice is present
Speific intent
person desires that his conduct will cause the resulting circumstances
general intent
person is substantially certain that his conduct will cause the resulting circumstances
Intent
proven by demonstrating a desire to cause the result or knowledge to a substantial certainty that result would cause
IIED
When a defendant intentionally or recklessly exhibited extreme and outrageous conduct which caused the plaintiff to suffer severe emotional distress.
Recklessness - IIED
defined as a deliberate disregard of a high risk that emotional distress will follow.
when is the D liable to family members who are present and are cliaming IIED
D must be aware of their presence
What if the D is not aware of their presence ( it also doesnt matter here if they are family members)
has to result in physical harm
A claim for negligence can be made when a breach of duty of care to another has actually and proximately caused harm resulting in damages. A prima facie case for negligence requires
1) a duty owed; 2) breach of that duty; 3) actual and proximate causation; and 4) damages.
Negligence - Elements
A prima facie case for negligence requires 1) a duty owed; 2) breach of that duty; 3) actual and proximate causation; and 4) damages.
Damages for negligence must be what types of damages
(Requires personal injury or property damages, pure economic damages are not generally allowed.)
Cardozo view (Majority) for duty of care
a duty of care is only owed to the foreseeable plaintiff within the zone of danger.
Andrews (Minority) for duty of care
duty is owed to all foreseeable plaintiffs.
Standard of care
Every person owes a duty to act as a reasonable prudent person would act under like circumstances, and who takes appropriate measures to avoid foreseeable risks. Specific standards include: childern, medical doctors, professional attorneys
Childern - SOC
held to standard of a child of similar age, experience and intelligence acting under similar circumstances. Exception – if engaged in adult activities, they are held to an adult standard of care.
medical doctors - SOC
held to standard of an average qualified practitioner, by a national standard.
Professional attorney’s - SOC
act with the skill and knowledge of an average member of that profession in a similar community.
Actual cause
But for the defendant’s actions the plaintiff would not have been injured. (This is the standard, but strict products liability has a different definition.)
Proximate cause
injury must have been a foreseeable result of the D’s negligence
Negligence defenses
assumption of the risk, contributory negligence, partial compartive and compartive negligence
Pure comparative negligence
a p’s negligent acts will not bar recovery, however it will reduce their damages by a percentage of their own fault
Contributory negligence (minority rule)
at common law, this is a complete bar to recovery of damages and occurs when the plaintiff has acted negligently and contributed to their own injuries.
Exceptions to contributory negligence minority rule (3)
if the defendant had the last opportunity to avoid an accident, in strict product liability, and if the defendant was reckless.
Partial comparative negligence
If a plaintiff contributed 50% or less to their injury, then damages are reduced by their percentage of negligence. However, if they are 51% responsible, they recover nothing.
Assumption of the risk
A defendant will not be found liable for negligence when the plaintiff voluntarily assumed a known risk.
Fireman’s rule
Applies to police and firemen – these occupations may not sue for negligence in the performance of their duties because they assume the risk.
Vicarious liability
An employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of employment.
An employee acts within the scope of employment when
1) performing work assigned by the employer; or 2) engaging in a course of conduct subject to the employer’s control; or 3) it was the same general nature as authorized work.
Employer v. Independent Contractor - A party is not vicariously liable for the torts of an independent contractor. A contractor is different from an employee, where
where the principal has the right to control the manner and method of job performance.
Factors used to determine Employer v. Independent Contractor status are
the degree of employer control, if pay was hourly or per job, who owns the tools, if the job was for the benefit of the employer’s business, and the length of the work relationship.
Respondent Superior Factors
The act is the kind employee was hired for, the act occurred within the time and space limits of employment, or the employee’s motivation was to serve the employer.
Int. Tort of Employee
Tortious acts are not generally within scope of employment unless the act was 1) specifically authorized by the employer; 2) driven by a desire to serve the employer or 3) was the result of naturally occurring friction of the type of work (for example, Bouncers at nightclubs.)
loss of consortium
a souse may recover against a D for injuring their spouse and depriving them of the benefits of spousal relationship including the loss of companionship, comfort, society and sexual services
Negligent Infliction of Emotional Distress (NIED) is a tort that comes in 3 ways
1) a zone of danger claim; 2) a bystander claim; and 3) a claim where a pre-existing relationship exists.
Zone of danger
Occurs when negligence by the defendant creates a foreseeable risk of injury, the plaintiff was in the zone of danger and the plaintiff has manifested physical symptoms.
Bystander claim
There must be negligence by defendant, the plaintiff must be a witness to the injury inflicted upon a close family member and the plaintiff must manifest physical symptoms.
Pre-existing relationship
– Occurs when there is a pre-existing relationship between the plaintiff and the defendant, and the negligent act can foreseeably cause distress.
Intentional torts causation
Demonstrated where the defendant is a substantial factor in bringing about harmful or offensive contact. Note the difference from the “but for” or foreseeability in Torts.
trespass to land
Intentionally entering or causing an object or third person to enter the land of another. Intent to trespass is not required, only the intent to enter or remain on the subject land is needed. Can be awarded nominal damages if there is no damage to the land.
t2chattel
intentionally interfere with the personal property of another, and the amount of damage is small.
Conversion
Substantial interference with Π’s possessory right to personal property
False imprisionment
Occurs when a defendant unlawfully 1) intentionally; 2) confines the plaintiff in a bounded area; 3) and plaintiff is either aware of or harmed by the confinement. Can be accomplished through threats. The defendant has a privilege when reasonably believing the plaintiff committed a felony, where the shopkeeper privilege or a citizen’s arrest defense may be appropriate.
Intentional tort defense
consent
defense of others
necessity
privilege to arrest
Shopkeepers privillege