Torts Flashcards
Nelgigence opening paragraph for essays
Negligence require that the P show:
- a duty on the party of D to conform to a specific standard of care to protect the P from an unreasonable risk of injury
- D breached that duty
- the breach was the actual and proximate case of P’s injury
- and damages to the P’s person or property.
Whenever a person engages in an activity, they are under the legal duty to act as a reasonably prudent person acting under similar circumstances.
The duty is owed to foreseeable plaintiffs.
respondeat superior
Under respondeat superior, an employer is vicariously liable for torts committed by their employee within the scope of employment.
Battery
Battery requires that the plaintiff show:
- an act by D that brings about a harmful or offensive contact to the P’s person
- intent on the D’s part to bring about the harmful or offensive contact
- and causation.
*Intent requires that the D act with the desire to produce harmful or offensive contact. *
What duty does a property owner owe to people adjacent to their property?
Property owners have a duty to exercise **reasonable care with respect to activities on the land to avoid unreasonable risk to those adjacent to the property. **
To be owed this duty, **Ps outside the property must be foreseeable. **
eggshell doctrine
Under the eggshell doctrine, a D is liable for injuries caused by their negligence even if the victim has an unforeseeable special sensitivity.
Transferred Intent
Under transferred intent, D has intent to commit a tort BUT D commits:
different tort against that same person -or-
same tort against a different victim
then D is liable for the actual tort D committed
only applies to
* battery
* assault
* false imprisonment
* trespass to land
* trespass to chattels
assault
Assault requires that the plaintiff show:
- an act by D creating reasonable apprehension in the plaintiff
- of an *immediate *battery
- intent on the D’s part to create reasonable apprehension in the plaintiff
- and causation.
Words alone are insufficient to create reasonable apprehension.
false imprisionment
P must show:
1. an act or omission by D that confine or restrain P to a bounded area
2. intent of D’s part to confine or restrain P
3. causation
**P must be aware of confinement **
–Ex: lock bedroom door while you sleep, but then unlock it. Sleeping person didn’t know they were confined so no false imprisonment.
**There must be NO REASONABLE means of escape known to P
Way out cannot be: **
Dangerous
Disgusting
Humiliating
Hidden
Failure to act can constitute restraint if legal duty to do so –ex: flight attendants don’t get a wheelchair for disabled person to leave plane
intentional infliction of emotional distress
**P must show:
- D’s act is extreme and outrageous
- and that is caused P SEVERE emotional distress**
- D’s conduct must be at least *reckless *as to intent.
Extreme and outrageous conduct exceeds all bounds of decency tolerated in a civilized society.
Mere insults are not enough.
**BUT conduct that is normally not outrageous can be if **
* Conduct is repetitive
Ex: debt collection by harassment calling every night at 3am
* Defendant is common carrier or innkeeper
* P is member of fragile class
Young children
Elderly
Pregnant women
*** Targeting P’s known sensitivity **
trespass to land
P must show:
1. physical invasion
2. of P’s real property
The invasion can be by person or object.
Real property includes air above/soil beneath to reasonable distance.
Intent must only be to enter the property–P does NOT need to know that the property belongs to another.
trespass to chattels
P must show:
1. An act by defendant interfering with plaintiff’s right of possession in the chattel,
2. D’s intent to perform the act that led to the interference
3. causation
4. damages
D’s intent to trepass does not matter.
D must pay the cost to to repair chattel.
conversion
P must show:
1. An act by defendant interfering with plaintiff’s right of possession in the chattel,
2. D’s intent to perform the act that led to the interference
3. causation
4. damages
D’s intent to trepass does not matter.
The interference must be so serious that it warrants D pay propoerty’s whole value
Broadly, what are the Defenses to Intentional Torts
- consent
- protective privleges
Consent
Consent is defense to all intentional courts
P must have legal capacity to consent.
A person with limited capacity can consent to some things. Ask- are their minds sophisticated enough to consent to X?
**Two Types of Consent: **
- Express Consent
Words giving permission - oral or written
EXCEPTION: fraud or duress
2. Implied Consent
Social Custom + Usage
Going to a place where touching usually happens
Playing on a contact sports team
Going on the NY subway
**Body Language Consent - must be a reasonable interpretation **
Amorous situations where a person’s body language indicates they are open to affectionate touching – must be reasonable interpretation.
Scope of Consent
Exceeding scope results in liability
Ex: go to surgeon and they extend the surgery to a place patient didn’t consent to
Self-defense
To use self-defence:
- D must reasonably perceive a threat of injury from P.
- Requires proper timing - threat’s immediacy is required. D cannot engage in preemption or revenge.
- Requires D to reasonably believe that the threat is genuine.
- Reasonable Force is permitted- limited to force necessary under the circumstances.
- Majority Rule: No duty to retreat. Minority: duty to retreat is possible, unless actor is in D’s home.
Defense of Property
- Requires D to reasonably believe that the threat is genuine.
- Reasonable Force is permitted- limited to force necessary under the circumstances.
NO USE OF DEADLY FORCE TO PROTECT PROPERTY!!!
- Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully (not borrowing).
- A landowner usually must make a request to desist before defending her property. A request is not required if the circumstances make it clear that the request would be futile or dangerous.
Shopkeeper’s Privilege:
Shopkeep can detain someone they think stole from their store.
*Requires reasonable (1) suspicion (2) length of time, (3) manner.
Necessity Defense to trespass to land, chattels, and conversion.
A person may interfere with property of another when the interference
(1) reasonably necessary to avoid injury
-AND-
(2) injury is more serious than invasion undertaken to avoid it.
Public Necessity is and ABSOLUTE defense :
* D acts in emergency to protect community
Private Necessity is a LIMITED defense:
* D acts in emergency to protect his OWN interest
* D has a right to enter, BUT can only stay as long as the emergency continues.
* D must also pay for any injury they cause.
Standard of care for negligence by mentally / physically disabled people and drunk people
Even mentally disabled and drunk people need to live up to the reasonably prudent person.
Exceptions where the reasonably prudent person standard incorporates specific charactersitic
**Superior Skill of Knowledge: **
* Hypothetical reasonably prudent person with same superior skill or knowledge.
Physical Characteristics Where Relevant
* Where RELEVANT, incorporate D’s physical characterics
* Reasonably prudent person who is - super tall, blind, deaf.
Standard of care owed by Children
Under 5: no standard- cannot be liable for negligence
Age 5-18: D owes a standard of care that a hypothetical child of similar age, experience, and intelligence would exercise under similar circumstances
EXCEPTION:
If a child is engaged in ADULT ACTIVITY, the child owes a** standard of care that a reasonably prudent person** would exercise **under similar circumstances. **
Most common: operating a motorized vehicle (boat, farm equipment, car, jet skis, snowmobiles)
Standard of care owed in Malpractice cases
When D is a professions, D owes a standard of care that a AVERAGE (not reasonable) **member of profession providing similar professional service **
Expert witness within the same specialty from anywhere in the country is often used to educate the jury on professional custom.
Standard of care owed by possesors of land on their premises
They duty of care owed by a posessor of land to. a plaintiff on their premises for dangeorus conditions, depends of the plaintiffs status.
unknown trespasser
No duty owed to an unknown trespasser from dangerous conditions on the land.
