Torts

Question 1

Intent

R3

Answer 1

When X acts with the purpose of producing the consequence (intends for X to occur)
OR acts knowing that the consequence is substantially certain to result

Does not require intent to harm

Insantity does not impact
Infancy is not a defense but can be used to argue lack of capacity to form intent

Question 2

What is

Transferred intent

Not the actual torts

Answer 2

Intent to commit any five torts against one victim constitutes intent against any other person, no matter how unforeseeable.

Case ex. Altieri v. Colaso, Boy hit by rock intended for someone else

Question 3

Mistake Doctrine

Intentional torts

Answer 3

Mistake of fact is not a defense against intentional torts
Victim cannot benefit from their own disguise

ex. dressing up as a dog as a wolf

Question 4

Elements

Battery

Answer 4

Intent
to make (harmful or offensive) contact
with another

I: Purpose or Substantial certainty
H: Physical pain, injury, or illness, (intent to harm req only)
O: Personally dignity of an ordinary person (chemical or radiation counts)

Question 5

Elements

Assault

Answer 5

Intent
To cause apprehension
of imminent
harmful or offensive contact

I: Purpose or Substantial certainty
Imminent: not forward-looking
H or o: words alone are not enough

Question 6

False Imprisonment

Answer 6

Intent
to unlawfully confine another
within fixed boundaries
that results in confinement
where the victim is conscious or harmed

If arrest is lawful, but based on false or other premises, look at malicious prosecution or abuse of process
Boundaries: State is enough and exclusion does not count, countries are not enough
C/H: Children must be aware of confinement

Question 7

Types of confinement

For FI

Answer 7

Physical Boundaries (Identification or child enough)
Threat of force (moral, religious, or economic threat are not enough)
Ommission when duty to act
Improper assertion of legal authority (pontetially false arrest)

ex. Marquette University

Question 8

Abuse of Process

Answer 8

Use of Legal Process
To accomplish a purpose for which the process did not intend

Question 9

Elements

Intentional Infliction of Emotional Distress

Answer 9

Intentionally or reckless
through extreme and outrageous behavior
causing severe emotional distress
Third-party recovery
Tortfeasor must have the purpose of harming the victim
OR Immediate family member AND contemporary perception (5 senses, does not require sight)

Does not require a physical manifestation of emotional distress, but negligent infliction of emotional distress does

Reckless: know of the risk and fail to tke precautions
Go outside the bounds of human decendy, context and relationships matter
Show evidence of emotional distress to recover (bodily included) must be objectively reasonable

Question 10

IIIED Defense

Answer 10

If a Public Figure or matters of public concern, speech about that person or topic is privileged unless “actual malice.”
Knowledge that statement was false or w/ reckles disregard for the truth

Question 11

Defenses to Intentional Torts

Answer 11

Self-defense
Defense of a third Party
Privilage to Arrest
Defense of Property
Private Necessity
Public Necessity
Consent

Question 12

Negligence

Answer 12

Duty, breach, causation, harm

Question 13

Standard of Care

Negligence, Duty

Answer 13

reasonable person standard (objective)
Physical disabilities are relevant
Majority opinion: Mental disabilities are irrelevant

Question 14

Sudden emergency Doctrine

Answer 14

Must be unexpected event, which is factored into the analysis
ex. Cordas v. Peerless

Question 15

Duty of care applies to who

vic

Answer 15

Majority: Foreseeable victims, people in the danger zone
Minority: Everyone owes the world at large the duty of refraining from act that may unreasonably threaten the safety of others

Question 16

Duty: Children

Answer 16

Higher duty of care if property owner has infant attraction
Children held to same age, intelligence and experiences
Unless engaging in adult activities that require adult qualifications
except golf carts
Under 5 not negligent generally

Question 17

Duty Experts

Answer 17

If you hold yourself to practice professions or trade, standard of care is that which members of that profession or trade in good standing would normally possess
Level of expert care is established by expert testimony and expert must be substantially familiar or practice is identical

Question 18

Experts standard of care

Answer 18

General practitioners, Local standards
Specialist, national standards
Lawyers, state standard
There is a “Common Knowledge exception” where the jury can determine negligence when it is obvious
Once the expert testifies, level of care is determined by the jury

Question 19

Duty

Medical Mal disclosures

Answer 19

must disclose risk of death, SBI, and potential outcomes (side effects)
EXCeption: disclosure would have so seriously upset the patient that would not been able to dispassionately weigh risk of decision
Consent is implied in an emergency

Note difference: expert/physician rule (what a skilled practitioner might have done) v. reasonable person/patient rule (what a reasonable patient would want to know)

Question 20

Breach Formulas

Learned Hand

Answer 20

Burden < Probalibilty * Loss = Negligence
B: usefulness of not occurring and the cost of precaution for actor/owner
P: the chance that if harm occurred, there would be an accident
L: Magnitude of harm, loss, injury

Custom in indutries taken into consideration

Question 21

Breach Formulas

Restatement

Answer 21

Benefit < Risk
Benefit - advantage of not taking precautions
Risk - Overall level of foreseeable risk created by the actors conduct

Question 22

Breach, Rules of Law

Answer 22

Judge made law, where courts decided negligence issue for large number of cases which are likely to be repeated.
Set a precedent

Question 23

Breach Negligence per se

Answer 23

Applies when plantiff is a member of a class
Violation of a law or regulation
Law is designed to procted people from a harm and only need to prove the violation

ex.speeding

Question 24

Causation general

Answer 24

Cause in fact and proximate cause

Question 25

Cause in fact

Causation

Answer 25

But-for
But for the actions of X, the injury wouldnt have occured

51%

Question 26

Summers doctrine

Answer 26

harm caused by d’s actions and lack of knowledge as to who cause the harm
Small number of defendants, all must be joined,

ex. car accidents, or two friends shooting

Question 27

Where does the burden of causation shift to the defendants

Answer 27

Summer doctrine
concert in action
enterprise liability
market share

Question 28

Concert in Action

Answer 28

When the defendants act together, encourage, or assist to commit the negligence

Question 29

Enterprise Liabilities

Answer 29

Defendants set negligent the standard
but if gov sets negligent the standard it does not count

Question 30

Market Share

Answer 30

The majority of the market share are included in as the defendants
Market share is determined when the injury took place
Must include the majority of the groups (3/10 makers but the makers are 90% of the market share, P can only recover 90%)

Question 31

Proximate Cause

Answer 31

Foreseeable type and kind of harms

Question 32

Causation Medical Malpractice

Answer 32

But for test 51% (can recover the full amount)
Elastic causation is a substantial factor

Question 33

Lost opportunity

Answer 33

Reduces the amount of survival rate lost by patient
Recovering the difference in change or survival
Proximate cause, D action negligence
Only when a patient would not have recovered

Question 34

For negligence

Damages

Answer 34

CAN recover for Negligence
Pain and suffering (The pain of the injury) (Non-Pecuniary)
Compensatory (Medical bills and lost wages (Pecuniary))
CANNOT recover
Nominal and punitive

Question 35

What are the

Transferred intent torts

Answer 35

Battery
Assault
False Imprisonment
Trespass to land
Trespass to chattel

Question 36

What does it mean to make

Offensive Contact

Answer 36

Personal dignity of an ordinary person (items you are holding count, plate snatching case)
Chemical or radiation counts

Question 37

What does it mean to make

Harmful contact

Answer 37

Physical pain, injury, or illness
Does not require intent to harm, just intent to touch

intent to harm required only