Torts Flashcards
When is a person liable for battery?
Priority: High
A defendant is liable for battery when the plaintiff shows that the defendant intended to cause contact with the plaintiff’s person, and the contact caused bodily harm or was offensive.
When is contact harmful for battery?
Priority: High
Contact is harmful when it causes injury, physical impairment, pain, or illness.
When is contact offensive for battery?
Priority: High
Contact is offensive when a reasonable person would find the contact offensive to their sense of personal dignity.
When does a defendant act intentionally for battery?
Priority: High
A defendant intentionally causes the contact if they act with the desire to bring about the contact or engages in action knowing that the contact is substantially certain to occur.
In most jurisdictions, the defendant need only intend to bring about the contact, not that the defendant intends the contact to be harmful or offensive.
When is an employer liable for an employee’s torts?
Priority: High
An employer is vicariously liable for an employee’s torts if the employee is performing work assigned by the employer or is engaging in a course of conduct subject the the employer’s control.
(within the scope of employment)
When is consent a defense, and how can it be provided?
Priority: High
Consent is a defense to intentional torts and may be express, or implied through words or conduct.
When will apparent/implied consent be an effective defense?
Priority: High
Apparent/implied consent is an effective defense when words or conduct are REASONABLY UNDERSTOOD TO BE INTENDED AS CONSENT, even if the plaintiff does not actually consent.
When is a commercial supplier liable under strict products liability?
Priority: High
Under strict products liability, the manufacturer, retailer, or other distributer of a defective product may be liable for any harm caused by the product.
In a cause of action based on strict products liability, the seller or distributor of a defective product may be liable for any harm to persons or property caused by such product.
When is a product considered defective?
Priority: High
A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings.
What is a manufacturing defect, and how is it shown?
Priority: High
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff.
The test for this defect is whether the product conforms to the defendant’s own specifications.
What must a plaintiff show for a strict liability claim?
Priority: High
To prevail on a strict liability claim the plaintiff must show that (1) the product was defectively manufactured, (2) the defect existed when the product left the defendant’s control, (3) the defect caused the plaintiff’s injury, and (4) the product was used in a reasonably foreseeable way.
What is the eggshell plaintiff rule, and what is a defendant’s liability?
Priority: High
Under the eggshell plaintiff rule, a tortfeasor takes their victim as they find him.
A defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.
What is a commercial supplier for products liability?
Priority: High
To be subject to strict liability for a defective product, the defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff.
Included as a seller are the product’s manufacturer, its distributor, and its retail seller.
When is a product defective for failure to warn?
Priority: High
A product will be defective for failure to warn if there are foreseeable risks of harm, not readily recognized by an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.
(A warning must be proportionate to the risk involved with normal use of the product)
Who is owed a duty of care, and what is that duty?
Priority: High
In general, a duty of care is owed to all foreseeable persons who may be injured by the defendant’s failure to act as a reasonably prudent person would under the circumstances.
What is the doctrine of res ipsa loquitur?
Priority: High
Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of negligence in the absence of direct evidence of such negligence.
When does res ipsa loquitur apply?
Priority: High
For res ipsa loquitur to apply, the plaintiff must prove that (1) the plaintiff’s injury or damage was caused by an instrumentality or condition that was under the defendant’s exclusive control, (2) the plaintiff’s harm typically does not occur in the absence of negligence, and (3) the plaintiff did not cause or contribute to their injury.
Generally, res ipsa loquitur cannot be used to show liability of any particular defendant when the action is against multiple defendants.
When can a plaintiff recover from multiple defendants under the doctrine of alternative liability?
Priority: Medium
Even if the plaintiff cannot show which defendant caused their injury a plaintiff may recover when two or more defendants are negligent and either could have caused the plaintiff’s injuries.
Under the alternative causation doctrine, if the plaintiff’s harm was cased by (1) one of a small number of defendants, (2) each of whose conduct was tortious, and (3) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that their conduct was not the cause in fact of the plaintiff’s harm.
What is required for a prima facie case of negligence?
Priority: High
A prima facie case of negligence requires proof of a duty, breach of that duty, causation, and damages.
In a negligence action, a plaintiff must show that the defendant owed a duty to the plaintiff, that the defendant breached that duty, that the defendant faused the plaintiff’s injuries, and that damages exist.
What is the standard of care for a physician?
Priority: High
A physician is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.
What is the implied warrant of merchantability?
Priority: Medium
The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold.
Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.
What is market share liability?
Priority: High
Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.
What is the concert of action/joint enterprise doctrine?
Priority: High
Under the concert of action/joint enterprise doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable.
What is the standard duty of care?
Priority: High
A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.
