Torts Flashcards
Battery
(1) intent to cause harmful/offensive contact OR an imminent apprehension of such contact, AND (2) A harmful or offensive contact directly or indirectly results
Assault
(1) intentional unlawful offer to touch the person of another; (2) in a rude and angry manner; (3) create a well-founded (objective) fear of imminent battery (pl. MUST know of attempt); (4) with apparent present ability to effectuate the attempt if not prevented
False Imprisonment
(1) intentional confinement (by force, immediate threat of force, duress, or asserting legal authority); (2) pl. aware of confinement; (3) did not consent to confinement; (4) confinement not privileged
IIED
(1) intentional conduct substantially certain to cause emotional distress; (2) extreme and outrageous conduct; (3) causal connection to distress; (4)emotional distress must be severe
Trespass to Land
(1) unlawful entry into close of another; (2) against will of the other
Trespass to Chattel
intentional use or intermeddling - (1) dispossess the other of the chattel OR (2) damage the chattel (impaired condition, quality, value) OR (3) deprive owners use of chattel for substantial amount of time OR (4) harm to possessor (RARE)
Conversion
(1) intentional exercise of control over chattel; (2) seriously interferes with chattel so much that they are liable for to pay FULL VALUE of chattel
Negligence
(1) duty; (2) breach; (3) causation; (4) damages
General SoC
average reasonable person under all circumstances
Professional SoC
average professional in that field (higher standard) - RI medical is NATIONAL SoC since 1998
Child SoC
young person of like age, intelligence, experience UNLESS doing adult activity, then held to general SoC
Old People SoC
general SoC
Physically Disabled SoC
average reasonable person with that physical disability (deaf, blind, etc.)
Insane/Voluntary Intoxicated SoC
general SoC
Learned Hand Formula
if burden is less than probability times loss it equals negligence (B<P*L)=neg.
Violation of Statute
negligence per se (presumption to be rebutted): (1) group affected that the statute intended to protect; (2) action occurred that the statute intended to protect; (3) appropriateness of application of statute - RI is mere evidence of negligence
Res Ipsa
creates an inference of negligence: (1) exclusive control; (2) occurrence wouldn’t have happened without neg.; (3) eliminate other possible causes (conduct of pl. or third-party)
RI - presumption of negligence to be rebutted; eliminate exclusive control
Cali - unsure hwo def., sue whole group, burden of proof shifts to def. to prove NOT guilty
transferred intent
meant to contact one person, end up contacting another person = still liable
Single intent
intent to contact
Is insanity a defense?
NO
Is voluntary intoxication a defense?
NO
Intent to make contact
(1) deliberate; (2) harmful or offensive at law; (3) substantial certainty that something will happen from contact
Eggshell Plaintiff
take your victim as you found them; tough luck ¯_(ツ)_/¯
If mentally capable of entertaining the intent, are you liable?
YES
Is an act lacking intent still battery?
NO
Do you have to contact a person directly?
NO. anything the person is holding (cane, dog leash)
If the threat of contact is conditional can it be assault?
NO
Can words alone be enough to constitute an assault?
NO. “stick and stones” rule
Shopkeeper’s Privilege
(1) reasonable suspicion; (2) may detain for reasonable amount of time (CANNOT take personal things)
Is persuading someone to stay enough to constitute false imprisonment?
NO
Is a threat of future harm enough to constitute false imprisonment?
NO
Extreme and Outrageous Conduct (IIED)
relationship of parties, abuse of position or authority, whether actor knew claimant was especially vulnerable; whether conduct was prolonged or repeated
If you mistake someone else’s land as your own are you liable for trespass to land?
YES
If you trip onto someone else’s land are you liable for trespass to land?
NO
OLD Trespass to Land Rule
owners land is indefinite upwards and downwards
NEW Trespass to Land Rule
if owner cannot make practical use of their land b/c of trespassing it is trespass (anything below 150ft. like sewer line, NOT trespass)
If damage flowed from a trespass are you liable?
YES. “tough luck”
How much of the chattel is the actor liable for damaging?
the diminution of the chattel
Can consent be verbal and/or by actions?
YES
Can consent be silence?
must be reasonable act; claimant must know what they are consenting to (if they do not speak English, can’t be consent)
Implied Consent
consent to conduct as a whole ONLY within the rules of the game (Bengals illegal hit case)
Doctors acting in absence of consent
(1) pt. unable to consent; (2) risk of serious bodily injury if dr. does not operate; (3) reasonable person would consent; (4) dr. has no reason to believe pt. would deny treatment
Informed Consent
dr.discloses (1) material risks to procedure (frequency v. severity chart); (2) alternative treatment options; (3) not obtained by deceit or fraud (dr. must disclose personal interests unrelated to pt. health - for scientific use)
Can you use deadly force to protect your property?
NO. unless there is a threat to life, then privilege of self-defense
Can you use force to recover your property?
ONLY if (1) actor obtains chattel by force or fraud; (2) you attempt to recover in fresh pursuit; (3) reasonable force, not to injury to actor
If the actor resists to return your chattel, can you use force?
Any force necessary to regain possession of chattel
Can you immediately resort to force to regain your chattel?
NO you must demand return of the chattel first UNLESS it reasonably appears that demanding the chattel would be useless
Is violation of an internal policy always negligence?
NO. not unless the policy is created for a precaution of care
Excused Violation of Statute
(1) actors incapacity; (2) doesn’t know or should have known of need for compliance; (3) unable to comply after reasonable diligence or care; (4) confronted with emergency not of their own making; (5) compliance creates greater risk of harm to actor or others
Actual Notice
def. knew of condition and did nothing about it
Constructive notice
should have known of condition based on inference drawn from evidence
Proof of Negligence
(1) def. had actual notice, or should have known of condition; (2) condition posed unreasonable risk of harm; (3) def. did not exercise reasonable care to reduce or eliminate condition; (4) failure to use care caused injury
Business Methods Liability
they way the business is conducted creates continuous and foreseeable dangerous conditions and automatically puts def. on notice - RI does not have this
Nominal Damages
small amount of money to vindicate rights when there are no actual damages (no nominal when damages required - negligence)
Compensatory Damages
financial equivalent of harm caused - make pl. whole again
Punitive Damages
the punish the def. for their behavior - not with unintentional torts
Equitable Damages
order for def. to do something (injunctive relief, etc.)
Specials
medical expenses, lost wages, loss/impairment of future earning capacity
General
physical pain/suffering, mental anguish, loss of function/appearance, etc.
Maximum Recovery Rule
calculate the max the pl. can recover, make sure the jury did not exceed that # (used to decide remittitur)
Collateral Source Rule
collateral sources not in connection with the def., not subtracted from pl. total recovery - RI not allowed in med. mal. cases, pl. may give amount paid in premiums
