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Torts > Torts > Flashcards

Torts Flashcards

1
Q

Battery

A

Battery is the intentional, harmful or offensive touching of another.
KEY WORDS AND PHRASES:
1. intentional
2. harmful or offensive
3. touching of another person

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2
Q

Assault

A

Assault is the intentional threatening of another with battery and the creating of
reasonable apprehension of immediate bodily harm in the victim.
KEY WORDS AND PHRASES:
1. intentional
2. threat of battery
3. creating reasonable apprehension of immediate bodily harm

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3
Q

False Imprisonment

A

False imprisonment is the intentional confinement of the plaintiff
by the defendant.
KEY WORDS AND PHRASES:
1. intentional
2. confinement of another person

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4
Q

Intentional Infliction of Mental Distress

A

Intentional infliction of mental (or emotional)
distress, is the intentional causing of severe emotional or mental distress in another
through extreme and outrageous conduct.
KEY WORDS AND PHRASES:
1. intentional
2. causing another person severe emotional or mental distress
3. extreme and outrageous conduct

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5
Q

Trespass to Land

A

Trespass to land is an intentional entry upon real property in the
possession of another.
KEY WORDS AND PHRASES:
1. intentional
2. entry upon real property
3. in possession of another

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6
Q

Trespass to Chattel

A

Trespass to chattel is the intentional interference with a person’s
use or possession of a chattel.
KEY WORDS AND PHRASES:
1. intentional
2. interference with chattel
3. possessed by another

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7
Q

Conversion

A

Conversion is an intentional assumption of dominion and control over the
chattel of another, resulting in a substantial interference with the plaintiff’s possessory
rights.
KEY WORDS AND PHRASES:
1. intentional
2. dominion and control of a chattel
3. possessed by another
4. substantial interference with possessory rights

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8
Q

Intent Requirement for Intentional Torts

A

In order to find that a tortious act was done
with intent, it must be established that the defendant had a conscious desire that the
result would occur, knew that the result would occur, or knew that the result was
substantially certain to occur.
KEY WORDS AND PHRASES:
1. conscious desire to produce result, or
2. knowledge that result will occur, or
3. knowledge that result is substantially certain to occur

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9
Q

Substantial Certainty Doctrine

A

The Substantial Certainty Doctrine holds that if the defendant does an act with the knowledge that it is substantially certain to produce a particular result, the defendant is deemed to have intended the result and is liable for his act.
KEY WORDS AND PHRASES:
1. defendant acts
2. defendant knows his act is substantially certain to produce result

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10
Q

Transferred Intent Doctrine

A

The Transferred Intent Doctrine is applicable when a defendant, while in the process of committing a tort against one person, unintentionally harms a third person or commits a different tort. In such a case, the defendant’s wrongful intent is transferred to include the unintended victim or tortious act.
KEY WORDS AND PHRASES:
1. defendant intends to commit a tortious act
2. a. result is harm to a different victim than intended, or
b. result is a different tort than intended

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11
Q

Trespass Ab Initio

A

Trespass ab initio is an entry upon the real property in possession of another under a conferred legal right, and the subsequent abusing of that conferred legal right through the commission of an assault, battery, false imprisonment, or trespass.
KEY WORDS AND PHRASES:
1. legal entry upon another’s property
2. abuse of right of entry by commission of tort

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12
Q

Defense of Consent

A

A defendant who acted in accordance with the plaintiff’s informed and voluntary
assent, whether express or implied, is not liable for the resulting harm so long as the plaintiff had legal capacity.
KEY WORDS AND PHRASES:
1. informed
2. voluntary
3. express or implied assent
4. legal capacity

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13
Q

Defense of Self-Defense

A

A person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect himself.

If the attack is with so-called “deadly force” MAJORITY RULE is that the one attacked
may defend with “deadly force” if deemed reasonable under the circumstances. The
MINORITY RULE requires that the one attacked retreat if there is a safe means of doing so.
KEY WORDS AND PHRASES:
1. objectively reasonable belief of threat to self of immediate bodily harm
2. degree of force is apparently necessary

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14
Q

Defense of Defense of Others

A

A person who reasonably believes another to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect the personal safety of the other person.
KEY WORDS AND PHRASES:
1. objectively reasonable belief of threat to another of immediate bodily harm
2. degree of force is apparently necessary

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15
Q

Step-In-Shoes Jurisdiction (Defense of Others)

A

In some jurisdictions a person is not allowed to use the defense of “defense of others” unless the person being defended
was not the aggressor and had the right to use self-defense.
KEY WORDS AND PHRASES:
1. defendant claims the defense of others
2. person defended was not aggressor
3. person defended was entitled to use self-defense

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16
Q

Reasonable Appearances Jurisdictions (Defense of Others)

A

In other jurisdictions, a person defending another in good faith and in ignorance of the fact that the person being defended is the aggressor and not entitled to use self-defense is nevertheless justified when acting upon reasonable appearances. Sometimes it is further required that the person being defended is one whom the defender is authorized by statute to protect.
KEY WORDS AND PHRASES:
1. defendant claims defense of others
2. defendant acted in good faith
3. objectively reasonable ignorance of fact that person being defended was
aggressor

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17
Q

Defense of Defense of Property

A

A person may use reasonable force that is not likely to cause death or serious bodily harm to protect his or her possession of real or personal property against an apparent trespasser.
KEY WORDS AND PHRASES:
1. defendant acts to protect his property from being taken
2. taking was apparently trespassory
3. degree of force used was objectively reasonable and not life-threatening

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18
Q

Defense of Prevention of Crime

A

A person, whether a police officer or a private person, may use reasonable force to prevent the commission of a crime which is apparently being attempted in his or her presence.
KEY WORDS AND PHRASES:
1. reasonable belief that a crime is being committed in defendant’s presence
2. defendant acted to prevent the crime
3. degree of force used was objectively reasonable

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19
Q

Defense of Legal Authority

A

A person may commit an otherwise tortious act if it is done under legal process or is otherwise authorized by law. It is a defense that is usually used by police officers or private persons who have made an arrest either with or without a warrant and who are now facing charges of false imprisonment in relation to their having made the arrest.
KEY WORDS AND PHRASES:
1. defendant acts under legal process or otherwise authorized by law

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20
Q

Defense of Necessity

A

A person may commit an otherwise tortious act if that person is acting in an emergency situation to protect himself or others from a threatened injury to person or property. The person claiming the defense of necessity may act on appearances. A reasonable mistake is permitted.
KEY WORDS AND PHRASES:
1. defendant acts to protect himself, others, or property
2. defendant had an objectively reasonable belief that his act was done during an emergency situation

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21
Q

Defense of Recovery of Property

A

A person may commit an act which would
otherwise be tortious if he or she is acting in fresh pursuit and with a reasonable degree of force to regain possession of his or her property. There are three separate aspects to this particular defense: re-entry upon land, recapture of chattel, and the Shopkeeper’s Rule.
KEY WORDS AND PHRASES:
1. defendant’s property has been taken
2. defendant is in fresh pursuit
3. defendant acts to regain his property
4. degree of force was objectively reasonable and not life-threatening or likely to cause serious bodily harm

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22
Q

Re-entry Upon Land Aspect

A

A person may use reasonable force to re-enter real property only if the taking of the property was tortious or wrongful and the re-entering party is entitled to immediate possession. Ordinarily, a demand must be made for the occupier to vacate unless such a demand would be a total exercise in futility. Only force not likely to cause death or serious bodily harm may be used.
KEY WORDS AND PHRASES:
1. defendant’s real property has been taken by another
2. taking was wrongful or tortious
3. defendant made a demand for the property to be vacated (unless futile)
4. defendant acts to retake possession
5. degree of force was
a. objectively reasonable and
b. not life-threatening or likely to cause serious bodily harm

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23
Q

Recapture of Chattel Aspect

A

A person may use reasonable force to defend against his or her chattel being taken only if the taking of the chattel was wrongful or tortious, the recapturing person is in fresh pursuit, and the degree of force is not likely to cause death or serious bodily harm.
KEY WORDS AND PHRASES:
1. defendant’s chattel has been taken
2. taking was wrongful or tortious
3. defendant is in fresh pursuit
4. defendant acts to regain his property
5. degree of force was
a. objectively reasonable and
b. not life-threatening or likely to cause serious bodily harm

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24
Q

Shopkeeper’s Rule

A

Under the Shopkeeper’s Rule, a businessperson has a limited privilege in some jurisdictions to detain a suspected thief, to investigate the shopkeeper’s claim to the goods, even though it may be determined that no wrongful taking has been committed.
KEY WORDS AND PHRASES:
1. defendant is a business person
2. objectively reasonable belief that a chattel has been taken by the plaintiff
3. fresh pursuit
4. defendant is charged with false imprisonment for detaining the suspected
thief
5. detention was for a reasonable length of time to conduct a reasonable investigation

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25
Q

Fresh Pursuit

A

Fresh pursuit relates to the requirement that a person recapturing a chattel or a shopkeeper detaining a suspected thief must do so without unreasonable delay after discovering the loss.

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26
Q

Reasonableness

A

Reasonableness is a concept that permeates all of the defenses to intentional torts. It is the standard by which the amount of force used or the time and manner of a re-entry, recapture, or detention is judged.

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27
Q

Negligence

A

Liability for negligence requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and proximate cause of damages suffered by the plaintiff.
KEY WORDS AND PHRASES:
1. duty
2. breach
3. causation
4. damages

28
Q

Negligence - General Duty

A

The general rule of duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm.
KEY WORDS AND PHRASES:
1. everyone owes duty of due care
2. not to subject others to unreasonable risks of harm

29
Q

Negligence - Cardozo Rule on Duty

A

Under Palsgraf v. Long Island Railroad Co., Justice Cardozo’s majority opinion held that a defendant owes a duty only to those who could foreseeably be endangered by the defendant’s negligent act. Therefore, according to the rule, there is no duty owed to a plaintiff who is in a position of apparent safety when the defendant
commits a negligent act. This is the so-called “orbit of danger” test.
KEY WORDS AND PHRASES:
1. duty owed to foreseeable plaintiffs in the “zone of danger”

30
Q

Negligence - Andrews Rule on Duty

A

In the Palsgraf case, Justice Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action. Thus, Cardozo looked at the issue from a perspective of identifying whether a duty is owed, while Andrews considered the issue as one of proximate causation.
KEY WORDS AND PHRASES:
1. liability imposed upon defendant for any harm proximately caused by defendant’s act

31
Q

Negligence - Special Duty

A

In addition to the general duty which everyone owes, special duties may be imposed due to a special relationship or circumstance.
KEY WORDS AND PHRASES:
1. special relationship or circumstance may raise a special duty

32
Q

Negligence Per Se

A

Under the doctrine of negligence per se, the elements of duty and breach are proved when a defendant violates a safety statute which was intended to protect the class of people to which the plaintiff belongs from the kind of injury the
defendant caused. In California, a presumption of negligence arises.
KEY WORDS AND PHRASES:
1. defendant violates safety statute
2. plaintiff is a member of the class that the statute was designed to protect
3. injury to plaintiff is the type the statute was enacted to prevent

33
Q

Negligence - Duty Owed to a Guest Passenger

A

A driver of a motor vehicle, in the absence of a statute otherwise, owes to persons riding in the vehicle a duty of driving with due care. However, a number of jurisdictions have statutes that provide that a guest passenger in an automobile cannot recover from the owner or operator of the automobile unless the owner or operator is guilty of willful misconduct, recklessness, or intoxication.
KEY WORDS AND PHRASES:
1. drivers owe a duty to passengers to drive with due care

34
Q

Duty Owed to a Person Injured by a Drunk Driver

A

A person who serves alcoholic beverages to one who is intoxicated is not, in the absence of a statute stating otherwise, liable for the damages done by the intoxicated person. However, in those jurisdictions which have statutes traditionally referred to as dram shop acts, an owner, a bartender or other persons serving alcoholic beverages to a person who is intoxicated can be held liable for the foreseeable damages caused by the intoxicated person.
KEY WORDS AND PHRASES:
1. no duty to avoid serving alcohol, even if recipient is intoxicated
2. exception: under dram shop acts, persons serving alcohol owe a duty of care
to those injured by one who is intoxicated

35
Q

Owner Liability Statutes

A

Certain statutes impose liability upon owners of vehicles for the tortious acts committed by persons to whom the owner intentionally furnishes the vehicle.
KEY WORDS AND PHRASES:
1. vehicle owner may owe duty to those injured by person to whom vehicle was
loaned

36
Q

Family Purpose Doctrine

A

A parent who furnishes a vehicle to the members of his or her family for customary convenience, assumes liability for the tortious acts committed by those persons when the car is being driven for a family purpose.
KEY WORDS AND PHRASES:
1. parent owes duty to those injured by family members who use vehicle
2. vehicle used for family purpose

37
Q

Omission to Act

A

An omission to act to prevent injury, or “nonfeasance” as it is sometimes called, does not give rise to tort liability unless there is a special relationship or special circumstance which creates an affirmative duty requiring the defendant to act to protect the plaintiff, unless there is a close familial relationship, such as parent and child or husband and wife; when the defendant and the plaintiff are co-venturers; when the defendant caused the plaintiff to be in danger or injured; when the defendant has begun to render assistance to the plaintiff; when the defendant fails to perform a duty to control the behavior of others; when the defendant is an innkeeper; or when the defendant operates a common carrier such as a plane or ship.
KEY WORDS AND PHRASES:
1. no duty is owed to act to prevent injury to another
2. exceptions:
a. parent/child
b. husband/wife
c. co-venturers
d. innkeeper/guest
e. common carrier/passenger
f. person who creates danger/person so endangered

38
Q

Duty Owed by a Good Samaritan

A

A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care. This person, however, is under no duty to complete performance of the services unless abandonment would prejudice the other party’s position. The rendering of aid in an emergency constitutes the performance of services, and a duty of care is imposed upon those who undertake to render such aid. Some jurisdictions have enacted statutes designed to encourage physicians to render emergency aid, by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability can be imposed upon them only for reckless or
wanton misconduct.
KEY WORDS AND PHRASES:
1. person rendering services owes a duty of care to recipient of services
2. abandonment is allowed unless it results in prejudice to the other party’s
position

39
Q

Duty Owed to a Rescuer

A

A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer.
KEY WORDS AND PHRASES:
1. a person who creates situation in which rescue is needed owes a duty to
rescuer

40
Q

Negligent Supervision

A

Negligent supervision is a cause of action which is brought by a plaintiff who suffered injury because a child or other person was inadequately supervised by one who owed a duty of supervision.
Modernly, a child may bring an action against his or her own parents for injuries
sustained by the child because of lack of proper supervision.
KEY WORDS AND PHRASES:
1. person who is obligated to supervise a child owes a duty to those injured by child
2. person who is obligated to supervise a child owes a duty to the child

41
Q

Duty Owed to an Invitee

A

A land occupier owes a duty of ordinary care to invitees, which includes reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions which a reasonable inspection would reveal.
KEY WORDS AND PHRASES:
1. land occupier owes duty of care to invitee:
a. inspect land
b. repair dangerous conditions

42
Q

Invitee

A

An invitee is a person who has an express or implied invitation to enter property
for the purpose for which the property is maintained.
KEY WORDS AND PHRASES:
1. enters land of another
2. for purpose related to express or implied consent of owner

43
Q

Business Invitee

A

A business invitee is a person who has express or implied permission to enter business property to do business with the land occupier.
KEY WORDS AND PHRASES:
1. enters business property of another
2. for business purpose
3. express or implied consent of occupier

44
Q

Public Invitee

A

A public invitee enters property in the possession of another for the purpose for which the property is held open to the public. It is not required that a business purpose be involved. Public employees acting within the scope of their official duties are included in the category of public invitees.
KEY WORDS AND PHRASES:
1. enters real property which is open to public
2. for purpose land is open
3. no business purpose required

45
Q

Duty Owed to a Licensee

A

A landowner owes a duty of ordinary care to licensees, which includes either 1) warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee, or 2) repairing dangerous conditions to
make the property safe.
KEY WORDS AND PHRASES:
1. land occupier owes duty to licensee:
a. warn of dangerous conditions known to occupier and not known to
licensee, unless obvious, or
b. repair dangerous condition

46
Q

Licensee

A

A licensee is a person who enters property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business.
KEY WORDS AND PHRASES:
1. enters real property of another
2. express or implied consent
3. entry is not for business purpose

47
Q

Duty Owed to a Trespasser

A

The land occupier generally owes no duty of care to the trespasser unless the trespasser is a constant trespasser upon a limited area or a child to whom the Attractive Nuisance Doctrine applies.
KEY WORDS AND PHRASES:
1. land occupier owes no duty to trespasser
2. exceptions:
a. constant trespasser upon a limited area
b. Attractive Nuisance Doctrine

48
Q

Trespasser

A

A trespasser is someone who enters the real property of another without express or implied consent.
KEY WORDS AND PHRASES:
1. enters real property of another
2. no consent

49
Q

Duty Owed to a Constant Trespasser Upon a Limited Area

A

The land occupier owes a duty to a constant trespasser upon a limited area of warning him of known dangerous artificial conditions unless such conditions are obvious.
KEY WORDS AND PHRASES:
1. land occupier owes duty to constant trespasser upon a limited area:
a. warn of dangerous artificial conditions known to land occupier unless
obvious

50
Q

Constant Trespasser Upon a Limited Area

A

A constant trespasser upon a limited area
is a trespasser whose presence is known, or should be known, to land occupier
because of the trespasser’s repeated acts of trespassing.
KEY WORDS AND PHRASES:
1. enters real property of another repeatedly in same area or manner
2. no consent
3. land occupier is aware of trespass or should be aware

51
Q

Duty Owed to a Child Trespasser

A

The land occupier owes no duty to a child
trespasser unless he is a constant trespasser upon a limited area or unless the case is one in which the Attractive Nuisance Doctrine applies.
KEY WORDS AND PHRASES:
1. land occupier owes no duty to child trespasser
2. exceptions:
a. constant trespasser upon a limited area
b. Attractive Nuisance Doctrine

52
Q

Attractive Nuisance Doctrine

A

The Attractive Nuisance Doctrine, recognized in most jurisdictions, imposes a duty upon land occupiers for the protection of young children whose trespasses are to be anticipated and whose immaturity renders them particularly susceptible to injury from dangerous conditions on the land. The land occupier owes a duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present:
1) foreseeability of trespass,
2) foreseeability of serious harm,
3) the child is unaware of the danger, and
4) the benefit to the owner of maintaining the condition in its dangerous form is slight when weighed against the risk to children.
KEY WORDS AND PHRASES:
1. trespass by children is foreseeable
2. serious harm is foreseeable
3. child is unaware of the danger
4. the benefit to the owner of maintaining the condition in its dangerous form is slight when weighed against the risk to children

53
Q

Duty Owed to a Person Off the Premises

A

The land occupier owes a duty to maintain
the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects which a reasonable inspection would reveal.
KEY WORDS AND PHRASES:
1. land occupier owes duty to those outside his property:
a. inspect for defects
b. repair defects that should have been discovered by reasonable inspection

54
Q

Rowland v. Christian

A

Under Rowland v. Christian, the court eliminated the distinction between business invitee, licensee, and trespasser, and found that the land occupier owes a duty to act as a “reasonable man” for the purposes of rendering the occupied property safe for others.
KEY WORDS AND PHRASES:
1. land occupiers must act reasonably to keep their property in safe condition

55
Q

Natural Conditions:

A

A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, the recent trend may be to impose a duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner.
KEY WORDS AND PHRASES:
1. traditional rule: land occupier owes no duty to care for, repair, or warn of
dangers related to natural conditions
2. recent trend: duty may be owed to give reasonable care for safety of others
related to natural conditions

56
Q

Duty Owed by Lessees and Lessors of Land

A

A lessee is a land occupier and has the
same liabilities that any land occupier would have. A landlord owes no duty to a person coming onto land with the consent of the lessee, with the following exceptions:
1) the lessor owes a duty if a danger exists at the start of the lease which the lessor
knows or should know about and which the lessee has no reason to know about;
2) the lessor has the duty to inspect for and repair dangerous conditions, if the lessor knows the lessee will hold the land open to the public;
3) the lessor has a duty to use reasonable care to make common areas safe;
4) the lessor owes a duty to keep the premises in good repair if that is part of the
lease contract;
5) the lessor owes a duty if he begins repairs and performs them unreasonably or does not finish them;
6) the lessor owes a general duty of care in some jurisdictions.
KEY WORDS AND PHRASES:
1. lessee is a land occupier and owes duties as such
2. landlord owes no duty to those entering the property with consent of
3. exceptions:
lessee
a. danger is known or should be known to lessor at start of lease; lessee has no reason to know
b. if lessor knows lessee will hold the land open to public: lessor owes same duty to business invitees that land occupier owes
c. common areas: lessor owes reasonable duty of care
d. lease contract designates lessor as responsible for premises: lessor owes duty to repair
e. lessor begins repair: lessor owes duty to complete repairs reasonably
f. in some jurisdictions: lessor owes general duty of care

57
Q

Breach

A

A breach is the failure to perform one’s duty
KEY WORDS AND PHRASES:
1. failure to perform duty

58
Q

Res Ipsa Loquitur

A

aids the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrine proceeds upon the theory that the occurrence itself speaks of negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby the defendant breached his or her duty of care. The plaintiff must prove:
1) the defendant was in complete control of the instrument that caused the harm;
2) the plaintiff is not guilty of contributory negligence;
3) the defendant is in a better position to explain what happened; and
4) injuries of this type do not normally occur absent such negligence.
KEY WORDS AND PHRASES:
1. the plaintiff cannot provide evidence of defendant’s breach of duty
2. defendant was in complete control of the instrument that caused the harm
3. plaintiff is not guilty of contributory negligence
4. defendant is in a better position to explain what happened
5. injuries of this type do not normally occur absent such negligence

59
Q

Causation

A

Proof that the defendant’s act is the actual and proximate cause of the plaintiff’s harm is required in order to establish that a defendant should be held liable for that particular harm.
KEY WORDS AND PHRASES:
1. plaintiff must prove defendant’s act is actual cause of harm
2. plaintiff must prove defendant’s act is proximate cause of harm

60
Q

Actual Cause or Cause in Fact

A

An actual cause is the cause which starts, ignites or makes possible the result which follows, and which satisfies the “But For” or Substantial Factor Test.
KEY WORDS AND PHRASES:
1. starts or ignites chain of events
2. satisfies “But For” or Substantial Factor Test

61
Q

“But For” Test

A

The “But For” Test is used to establish actual cause. To apply the test, the plaintiff must show that but for the defendant’s act, the plaintiff would not have been injured.
KEY WORDS AND PHRASES:
1. used to establish actual cause
2. but for defendant’s act, plaintiff would not have been injured

62
Q

Sine Qua Non

A

Sine qua non relates to the “But For” Test in that if a defendant’s act is the sine qua non of a plaintiff’s harm, then the plaintiff’s harm would not have occurred in the absence of that act.
KEY WORDS AND PHRASES:
1. act without which the plaintiff would not have been injured

63
Q

Applying the “But For” Test to Multiple Acts

A

The “But For” Test may be applied where concurrent acts together produce an injury which would not have occurred but for the concurrence. Where the concurrent acts are performed by different persons, both
persons are liable as concurrent tortfeasors.
KEY WORDS AND PHRASES:
1. two or more concurrent acts produce one injury
2. but for the concurrence of acts, the injury would not have occurred
3. joint and several liability is imposed

64
Q

Substantial Factor Test

A

The Substantial Factor Test is used to establish actual cause where more than one act contributes to the plaintiff’s harm. The defendant is said to be an actual cause of the plaintiff’s harm if the defendant’s act is a substantial factor in bringing the harm about. This means that the defendant’s act contributed in more than a trivial degree to the plaintiff’s injury. The test applies where two or more acts combine to produce a single indivisible injury regardless of whether either or any of the acts by itself would have caused the injury. Where more than one act could have caused the injury by itself, then each actor may be held jointly and severally liable. However, where an act would not have caused the injury without the other contributing acts, liability may be apportioned between the tortfeasors.
KEY WORDS AND PHRASES:
1. used to establish actual cause
2. more than one act is involved in producing single indivisible injury
3. defendant’s act contributed to injury to more than a trivial degree

65
Q

Proximate Cause

A

An actual cause of harm is the proximate cause of that harm if the act occurs in a natural and continuous sequence of events, unbroken by unforeseeable,
independent, intervening acts and results in the harm. When a defendant’s act directly causes injury to the plaintiff without any intervening causes, the majority of jurisdictions hold that act to be the proximate cause of harm unless the harm is unforeseeable. However, in some jurisdictions, if the defendant’s act directly causes harm, his act is the proximate cause regardless of whether the harm was foreseeable or unforeseeable. When a dependent intervening act occurs, the chain of causation is broken only if the result of the dependent intervening act is highly unforeseeable. When an independent intervening act occurs, the chain of causation is broken unless the result of the independent act is foreseeable.
KEY WORDS AND PHRASES:
1. act is proven to be an actual cause of plaintiff’s harm
2. act occurs in a natural and continuous sequence of events
3. a. sequence of events is unbroken by an intervening act, or
b. intervening act occurs, but it is dependent and produces a result that is not highly unforseeable, or
c. an intervening act occurs, but it is independent and result is foreseeable

66
Q
A

Torts (1 decks)

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