Torts Flashcards
Voluntary Act
D must act on their own free will. Can not be a reflex action
Causation
D’s act must be a substantial factor in bringing about the harm or injury.
Actual Intent
Did D have the purpose, desire, or goal to bring about the consequences that form the basis of the tort?
Substantial Certainty Intent
D is substantially certain that the consequence will result
Transfered Intent (Intentional Tort)
If D intends to commit a tort, that intent and intentional tort will transfer to a different party. Does not transfer to IIED.
Intentional Tort - Actual Harm Requirement
No need proof of actual damage, and do not have to foresee the tend of the injury
Assault
Intentional voluntary act causing reasonable apprehension of immediate harmful or offensive contact
Battery
Intentional voluntary act causing harmful or offensive contact with V’s person
False Imprisonment
Intentionally confining or restraint of V within a bounded area
Intentional Infliction of Emotional Distress
By extreme or outrageous conduct, intentionally or recklessly causes V severe mental distress
Trespass to Land
A voluntary entry onto the plaintiffs land committed with the intent to enter the land of another
Trespass to Chattel
Voluntary act intentionally causing interference with another’s possessory interest in their chattel in a minor way
Conversion
Voluntary act intentionally causing interference with another’s possessory interest in their chattel, causing dispossession, damage, or deprival of use for a significant period
Consent Defense
If the asserted victim gives permission, what would otherwise be tortious is instead privileged
Self Defense
A party may use reasonable force if the party reasonably believes such force is necessary to protect against immediate harm.
Defense of Others
Can use reasonable force to protect a third person from immediate unlawful physical harm
Recovery of Property
Can use reasonable force to protect a tort against her real or personal property
Private Necessity
Where the threatened harm is not one of substantial public harm but some lesser harm, the defense of private necessity applies. Under this defense, the defendant will be liable for any damage caused by the trespass
Public Necessity
When the defendant acts to prevent substantial public harm, the defense of public necessity exists and excuses the defendant from both the trespass to land tort and for any liability for damage caused to the plaintiffs land
Negligence
An individual is liable for the foreseeable results of her negligent conduct when she has (1) a duty (2) that duty is breached, (3) the breach of duty was the actual and proximate cause of the plaintiffs injury and (5) the plaintiff suffers damages
General Duty
One acting affirmatively owes a duty of reasonable care to all foreseeable plaintiffs, persons within the zone of foreseeable danger created by D’s negligence
Nonfeasance
No duty to act unless a special relationship, an undertaking of an act, or causing D to rely on a gratuitous promise
Duty to Rescue
Generally no duty to rescue, unless D created the pearl, had a special relationship with D, had a contractual obligation to act, or had started to rescue
Duty to Control
Generally no obligation to control another person’s conduct to prevent harm, unless have a special relationship with the other person and know that person has a tendency to act in that manner
Duty to Warn
Only if there is a special relationship and it’s fairly certain that the harm will happen
Trespasser Duty
Generally no duty to discover, remedy or warn of dangers, but only must refrain from willfully harming the trespasser
Frequent or Known Trespasser Duty
Obligated to work the trespasser if there is a danger of serious bodily harm or death
Attractive Nuisance
- Possessor knows or should know children are likely to trespass
- The possessor should realize will involve an unreasonable risk of death or serious bodily harm
- The children because of their youth do not discover the condition or realize the risk
- The burden of eliminating the danger are slight as compared with the risk to the children
- The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the children
Licensees Duty
Obligated to warn of concealed artificial or natural dangers
Invitees Duty
land owner must use reasonable care in maintaining and premises and in their activities
General Standard of Care
Absent any facts to establish a higher duty, a defendant will owe a duty to a foreseeable plaintiff to act with reasonable care
Adult Standard of Care
Reasonable/prudent person under the circumstances (objective standard) or a statutory standard of care
Child Standard of Care
Child of the same age, experience, and intelligence, unless they are engaged in an adult activity
Common Carries Standard of Care
Held to the highest degree of care to avoid any harm to passengers
Emergency Standard of Care
D is held to a reasonable person under those emergency circumstances
Professional Standard of Care
Will be held to the same standard as an ordinary member of that profession
Physical Defect Standard of Care
held to the standard of a reasonable person with that defect
Breach of Duty
As a general rule, a breach of the duty of reasonable care can be established if the gravity and likelihood of harm created by the defendants act outweighs the burden on defendant to have acted differently and the utility of the defendants conduct
Negligence Per Se
Violation of a criminal statute may be used to establish breach of duty if (1) statute designed to protect against specific type of harm, (2) P in protected class, and (3) violation is not excused
Res Ipsa Loquitur
The harm suffered is most likely caused by negligence of someone, it is more likely that it was defendant’s negligence, and that P did not contribute to his own injuries
Professional Breach of Duty
D’s deviation from custom establishes breach of duty, while D’s compliance with the custom of the profession insulates D from negligence
“But For” Analysis
P must establish that but for D’s culpable conduct or activity P would not have been injured
Substantial Factor Test
Requires that D materially contributed to P’s injury
Proximate Cause
Courts will preclude recovery recovery when the causal relationship between D’s conduct and P’s injury is too attenuated
