TORTS Flashcards
When will a court hold a child or a mentally incompetent person liable for an intentional tort?
If they act with the requisite mental intent
When may a defendant be liable to a third party victim for IIED?
Severe emotional distress was caused to a close family member of the individual who perceives the defendants extreme and outrageous conduct.
If the defendants design or purpose was to cause severe distress to the third-party victim, the victim need not have perceived the conduct or be a close family member of the harmed individual.
When is the use of deadly force justified in self-defense?
The defendant believes that:
1) the plaintiff is intentionally inflicting or about to intentionally inflict force upon the defendant
2) the defendant is put in peril of death, serious bodily harm, or rape by the threat of physical force or restraint.
3) the defendant can safely prevent the peril only by the immediate use of deadly force.
Elements of Assault
1) plaintiffs reasonable apprehension
2) of an imminent harmful or offensive bodily contact
3) caused by the defendants action or threat
4) with the intent to cause either the apprehension of such contact or the contact itself.
Are words sufficient to constitute assault?
No, but words mixed with conduct or other circumstances may be sufficient if the plaintiff reasonably believes that harm is imminent.
Public Nuisance
An unreasonable interference with a right common to the general public.
Elements of IIED
The defendants intentional or reckless extreme or outrageous conduct that causes the plaintiff severe emotional distress,
Merchants Privilege
A merchant can use force against another for the purpose of investigating, recapturing, or facilitating an arrest.
Intent
When a defendant acts with the purpose of causing the consequence or knows that the consequence is substantially certain to result.
Tresspass the Chattel
The defendant intentionally interferes with the plaintiffs right of possession by either
(1) dispossessing the plaintiff of the chattel; or
(2) using or intermeddling with the plaintiffs chattel
Tresspass to chattels requires the plaintiff to show actual harm or deprivation of the use of the chattel for a substantial time.
Conversion
Defendant intentionally deprives the plaintiff of possession of her chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.
Plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion.
Tresspass to land
Defendants intentional act causes a physical invasion of the land of another. Defendant need only to have the intent to enter the land, they need not know that the land belongs to another person.
Transferred intent
When a person intends to commit an intentional tort against one person but instead commits the intended tort against a different person.
Last clear chance doctrine
Plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
Negligence Per Se
1) A criminal or regulatory statute imposes a specific duty
2) the defendant neglects to perform the duty
3) the plaintiff is in the class of people that the statute is intended to protect
4) the harm is of the type that the statute was intended to protect against.
Battery
1) the defendant intends to cause contact with the plaintiff
2) his conduct causes such contact
3) the contact causes bodily harm or is offensive to the plaintiff.
Joint and Several liability
Each of two or more tortfeasors who is found liable for a single harm to the plaintiff is subject to liability to the plaintiff for the entire harm.
Who may be a defendant is a strict liability action
The defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff
- manufacturer
- distributor
- retail seller
Contributory Negligence
The plaintiffs contributory negligence completely bars recovery, regardless of the percentage that the plaintiff contributed to the harm.
Pure comparative negligence
The plaintiffs damages are reduced by the percentage that the plaintiff is at fault.
Partial (Modified) Comparative Negligence
- if the plaintiff is less at fault then the plaintiffs recovery is reduced by their percentage at fault.
- If the plaintiff is more at fault than defendant, the plaintiffs recovery is barred.
- If the plaintiff and defendant are equally at fault, the plaintiff recovers 50% of total damages.
Standard of care in negligence cases
Reasonably prudent person under the circumstances.
Libel
Defamation by words written, printed, or otherwise recorded in permanent form.
Slander
Defamation spoken by word, gesture, or any form other than libel. Damages may be awarded for libel but slander requires proof of special damages unless it constitutes slander per se.
A product is defective if it maintains
- manufacturing defect
- Design defect
- Failure to warn defect
Transferred intent applies to which intentional torts
- assault
- battery
- false imprisonment
Proximate cause
A defendant is liable for reasonably foreseeable consequences resulting from his conduct.
