Torts Flashcards
Assault
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Assault is the intentional threatening of another with battery and the creating of reasonable apprehension of immediate bodily harm in the victim.
Example:
Joe raises a fist at Victim and screams, “I am going to kill you!”
Battery
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Battery is the intentional, harmful or offensive touching of another.
Example:
Defendant punches Victim.
Transferred Intent Doctrine
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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 tortuous act.
Example:
Defendant swings a baseball bat at Joe. Joe ducks and Defendant hits Victim who was standing behind Joe.
Substantial Certainty Doctrine
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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.
Example:
Defendant throws a book out the window without looking and the book hits Plaintiff below. Even though Defendant did not intend to hit the Plaintiff, there was a substantial certainty that someone would get hit with the book Defendant threw.
False Imprisonment
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False imprisonment is the intentional confinement of the plaintiff by the defendant.
Example:
Defendant locks Plaintiff in a cellar and refuses to let her leave.
Intentional Infliction of Emotional or Mental Distress
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Intentional infliction of mental (or emotional) distress is the intentional causing of severe emotional or mental distress in another through extreme and outrageous conduct.
Example:
Defendant is angry at Plaintiff so Defendant tortures Neighbor’s dog while forcing Neighbor to watch.
Trespass to Land
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Trespass to land is an intentional entry upon real property in the possession of another.
Example:
Defendant ignores “Private Property, No Trespassing” sign and enters upon the property and goes camping anyway.
Trespass to Chattel
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Trespass to chattel is the intentional interference with a person’s use or possession of a chattel.
Example:
Defendant puts a “boot” on Plaintiff’s car so Plaintiff cannot drive to work.
Conversion
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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.
Example:
Defendant “borrows” Plaintiff’s lawnmower without permission to mow his own yard and while using the lawnmower Defendant breaks it.
Trespass Ab Initio
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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, batter, false imprisonment, or trespass.
Example:
Private Nuisance
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Private nuisance results from an act by the defendant who unreasonably interferes with the plaintiff’s use or enjoyment of his property.
Example:
Defendant is a revolutionary state of the art Factory that occasionally releases gasses into the air that causes Plaintiff severe headaches so that Plaintiff cannot spend time in his yard.
Public Nuisance
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Public nuisance results from an act or conduct by the defendant that is injurious to the public in general.
Example:
Defendant is a revolutionary state of the art Factory that occasionally releases gasses into the air that causes residents in the entire town to have severe headaches and nausea.
Defenses to Intentional Torts
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Defense of:
- Consent,
- Self-Defense
- Defense of Others (Step-in-Shoes Doctrine)(Reasonable Appearances)
- Defense of Property
- Prevention of Crime
- Legal Authority
- Necessity
- Recovery of Property (Re-entry upon Land) (Recapture of Chattel) (Shopkeeper’s Rule) (Fresh Pursuit) (Reasonableness).
Consent
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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.
Example:
Injuries resulting from playing contact sports
The Defense of Self-Defense
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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” the 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, unless the victim of the attack is in his “castle” (home).
Example:
A man wakes up and interrupts an armed burglar who threatens to kill him. The man shoots the burglar, killing him.
The Defense of Defense of Others
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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.
Example:
A man sees a woman being abducted by two strangers. The man shoots in the direction of both strangers, killing one, but the other gets away.
Step-in-Shoes Jurisdiction (Defense of Others)
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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.
Example:
Two friends are in a bar and Friend1 gets into a verbal argument with a patron that escalates into a physical altercation. Friend1 begins punching the patron. The patron punches back and starts to win the fight.
Friend2 may not defend Friend1 in this case because Friend1 was the aggressor.
Reasonable Appearances Jurisdictions (Defense of Others)
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In some 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.
Example:
Two friends are in a bar and Friend1 gets into a verbal argument with a patron that escalates into a physical altercation. Friend1 begins punching the patron. The patron punches back and starts to win the fight. Friend2 was in the bathroom when the altercation started and comes out of the bathroom to find Friend1 being beaten by the patron.
Friend2 will likely succeed under “Reasonable Appearances” because in this case Friend2 was ignorant of the fact that Friend1 was the aggressor.
The Defense of Defense of Property
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A person may use reasonable force that is not likely to cause death or serious bodily harm to protect his possession of real or personal property against an apparent trespasser.
Example:
A purse-snatcher tries grabbing a woman’s purse and she sprays pepper spray in his face. (Pepper spray is legal in that jurisdiction).
The Defense of Prevention of Crime
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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 presence.
Example:
At midnight, a police officer observes a man breaking and entering into the window of a store and the officer apprehends the man by tazing him.
The Defense of Recovery of Property
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A person may commit an act that would otherwise be tortuous if he is acting in fresh pursuit and with a reasonable degree of force to regain possession of his property. There are three separate aspects to this particular defense: re-entry upon land, recapture of chattel, and the Shopkeeper’s Rule.
Example:
A shopkeeper apprehends a shoplifter by tackling him to the ground after the shoplifter ran out the door with over $500 worth of merchandise.
Re-entry Upon Land Aspect
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A person may use reasonable force to re-enter real property only if the taking of the property was tortuous 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.
Example:
Recapture of Chattel Aspect
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A person may use reasonable force to defend against his chattel being taken only if the taking of the chattel was wrongful or tortuous, the recapturing person is in fresh pursuit, and the degree of force is not likely to cause death or serious bodily harm.
Example:
A purse-snatcher grabs a woman’s purse and she runs after him, tackling him, sprays pepper spray in his face, and then ties his hands up with a shoelace as she waits for the police to arrive. (Pepper spray is legal in this jurisdiction).
Shopkeeper’s Rule Aspect
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Under the Shopkeeper’s Rule, a business person has a limited privilege in some jurisdictions to detain a suspected thief, e.g., shoplifter or embezzling employee, to investigate the shopkeeper’s claim to the goods, even though it may be determined that no wrongful taking has been committed.
Example:
A shopkeeper catches a teen attempting to steal a DVD and keeps him in the back room until a police officer arrives.
Fresh Pursuit
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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.
Example:
A restaurant owner sees a man leaving the restaurant without paying for his meal. The owner chases the man down the street until he overtakes and detains him.
The Defense of Legal Authority
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A person may commit an otherwise tortuous 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.
Example:
With a warrant, a police officer arrests a man suspected of burglary. The man was innocent and sues the officer.
The Defense of Necessity
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A person may commit an otherwise tortuous 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.
Example:
A man stuck in a snowstorm breaks and enters into a cabin he does not own in order to save his life.
Reasonableness
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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.
Negligence
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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.
Example:
A shopper at a local store slips and falls on a spill that had been left on the floor for over an hour and had no warning or barrier placed around the spill. The man sues the store for damages because he broke his hip.
Here the store owes a duty to the shopper to keep the store safe, the store breached that duty by letting the spill stay on the floor for over an hour without any warning, and the spill was the actual and proximate cause of the damages suffered by the shopper, therefore liability will be found.
Elements of Negligence
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The elements of negligence are: duty, breach, causation, and damages. Example:
General Duty
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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.
Example:
Drivers owe a duty to drive with care as not to injure others.
Cardozo Rule on Duty
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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” (zone of danger) test.
Example:
A car runs off the road hits a pole, the pole hits a trailer with a boulder in it, the boulder launches over 500 feet into the air, hits a tractor parked on a hill, the tractor rolls down a hill, strikes a parked car, the parked car rolls down the hill gaining speed until it crashes into a bike that launches into the air and hits a pedestrian who was over a mile away from the original car that hit the pole.
Under Cardozo, the driver of the car would not be liable because the pedestrian was unforeseeable and within a position of apparent safety, i.e. the pedestrian was not in the “zone of danger”.
The Andrews Rule on Duty
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In the Palsgraf case, Justice Andrews gave a dissenting opinion that has been applied as the majority opinion in other cases. 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.
Example:
A car runs off the road hits a pole, the pole hits a trailer with a boulder in it, the boulder launches over 500 feet into the air, hits a tractor parked on a hill, the tractor rolls down a hill, strikes a parked car, the parked car rolls down the hill gaining speed until it crashes into a bike that launches into the air and hits a pedestrian who was over a mile away from the original car that hit the pole.
Under Andrews, the defendant owes a duty to the pedestrian because anyone could have been hurt by the driver’s negligence.
Owner Liability Statues
Certain statutes impose liability upon owners of vehicles for the tortuous acts committed by persons to whom the owner intentionally furnishes the vehicle.
Example:
John loans his car to Defendant who was involved in a car accident due to Defendant’s negligence. John is liable in jurisdictions that have owner liability statutes.
Duty Owed to a Guest Passenger
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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.
Example:
Defendant was willfully reckless in driving and injured a passenger in his car after crashing into a tree. Under a guest passenger statute, the passenger may sue for damages, whereas if the driver was not willfully reckless, the guest may not sue for damages. In jurisdictions that do not have statutes otherwise, the injured passenger may sue for damages.
Duty Owed to Those Injured by Drunk Driver
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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.
Example:
Bartender serves more alcohol to a woman he knows is wasted. Woman leaves the bar, gets in her car, and runs over a pedestrian in the parking lot, killing the pedestrian.
In jurisdictions that do not have statutes stating otherwise, Bartender is not liable for damages. In jurisdictions that do have “Dram Shop” acts/statutes, Bartender and Owner are liable for damages as outlined in the statute.
Family Purpose Doctrine
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A parent who furnishes a vehicle to the members of his family for customary convenience, assumes liability for the tortuous acts committed by those persons when the car is being driven for a family purpose.
Example:
Parent asks Son to drive to the store to buy a loaf of bread. Son gets into an accident because he was texting while driving. Under the Family Purpose Doctrine, Parent is liable.
Duty Owed to a Rescuer
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A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer.
Example:
Idiot jumps off a cliff. Rescuer is injured while descending cliff to rescue Idiot. Idiot is liable for Rescuer’s injuries.
Duty Owed by a Good Samaritan
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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 the 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.
Example:
Good Samaritan uses the Heimlich Maneuver to help a man who was choking on his food at a local diner. In giving the maneuver, the Good Samaritan used due care, nevertheless he injured the choking man.
In this case, although the Good Samaritan injured the choking man, because he used due care, he is not liable for the choking man’s injuries.
Omission to Act
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An omission to act to prevent injury (nonfeasance), does not give rise to tort liability unless there is a special relationship or special circumstance that creates an affirmative duty requiring the defendant to act to protect the plaintiff. An affirmative duty to act may arise when there is a close familial relationship, such as parent and child or husband and wife; when the defendant and the plaintiff are coventurers; 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.
Example:
Example 1:
Man sees a woman being raped in a parking lot. He is under no duty to help her.
Example 2:
Husband sees his wife being raped in a parking lot. He is under a duty to try and help her if he can.
Business Invitee
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A business invitee is a person who has express or implied permission to enter business property to do business with the land occupier.
Example:
A shop owner asks a contractor to come out to give him an estimate on fixing the leaky roof to the shop.
Public Invitee
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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.
Example:
A security guard who works at the local store is a Public Invitee as are those who enter into store for any purpose.
Licensee
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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.
Example:
Homeowner invites his neighbor over for dinner. Neighbor is a Licensee.
Trespasser
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A trespasser is someone who enters the real property of another without express or implied consent.
Example:
A stranger climbs over a fence to Homeowner’s property in order to take a “shortcut” to the store. Stranger is a trespasser.
Constant Trespasser Upon a Limited Area
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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.
Example:
A stranger walks up the walkway and knocks on the front door of Homeowner. Stranger is a Constant Trespasser Upon a Limited Area.
