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1L Fall 2019 > Torts > Flashcards

Torts Flashcards

1
Q

Elements of Battery

A
  1. A acts (voluntarily);
  2. Intending (or knowingly) to cause contact with P
  3. The contact with P that A intends is of a harmful or offensive type; and
  4. A’s act causes P to suffer a contact that is harmful or offensive.
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2
Q

Intent to contact vs. Intent to cause injury

A

RS § 13: The intentional contact with P controls, NOT the intent (in any) to cause harm or injury.

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3
Q

Intent and Knowledge

A

An actor intends the consequences of his conduct if he knows with substantial certainty that these consequences will result. An actor need not act with purpose. RS § 8A

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4
Q

Stochastic Battery

A

Knowledge of risk combined with on-going activities sufficient to show intent? Courts are split.

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5
Q

Glass Cage Defense to Battery

A

May an individual erect a glass cage around himself and announce that all physical contact with his person is at the expense of liability? Usually, no.

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6
Q

Plaintiff’s Person

A

Contact with anything connected to the plaintiff’s person qualifies as contact with that person for the purposes of battery (ex. a person’s clothing, purse, bike). RS §18: The interest in the integrity of a person includes all those things in contact with or connected to that person.

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7
Q

Context for touching

A

Touching must violate prevailing social standards of acceptable touching in a particular context.

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8
Q

Elements of Assault

A
  1. A acts;
  2. Intending to cause in P the apprehension of an imminent contact;
  3. The contact that A intends to cause apprehension of is of a harmful or offensive type; and
  4. A’s act causes P reasonably to apprehend such a contact.
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9
Q

Test for Offensiveness

A

1) Would it offend a reasonable sense of personal dignity? (normative)
2) What would be offensive to an ordinary person not unduly sensitive to personal dignity? (descriptive)
* Exception: special sensitivity is known, but reason to know is not sufficient.

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10
Q

Test for Imminence

A

Without any significant delay. Did the act stop P from going about her business? (Is this on now?)

Problem: the Tony Soprano hypo.

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11
Q

Transferred Intent

A

Can transfer between people (intend to hit A but hit B) and between assault and battery (intend to assault A but actually batter him; intend to assault A but actually batter B). Cannot transfer between different types of victim –> if D intends to shoot a window and actually shoots A, not a battery against A.

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12
Q

Consent

A

P has agreed to endure a bodily contact that would otherwise be tortious. Can be express or implied. Always consider the scope of consent and whether it has been vitiated.

Implied must be manifested in P’s conduct i.e. being on a crowded train, P has consented to some jostling. Consent is not valid if obtained through coercion. (Main question: Would this contact be offensive in absence of consent? This determines if consent is necessary.)

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13
Q

Limitations to Consent

A

(1) Mistake
(2) Fraud in factum for sex acts
(3) Coercion
(4) Lack of capacity

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14
Q

Consent: An Element of the Offense or A Defense Against Prima Facie Case?

A

Prima Facia
Good: Conceptually superior: no such thing as a consented to rape
Bad: Burden of proof is on the plaintiff

Defense to Prima Facia
Good: Burden of proof is on the defendant since it must be raised as a defense.
Bad: Conceptually inferior: distorts the meaning of the tort.

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15
Q

Reasonable Mistake of Consent

A

Can be a defense only if D actually and reasonably believed that P consented, based on P’s conduct. (Woman in injection line case)

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16
Q

Elements of IIED

A
  1. One who by extreme AND outrageous conduct
  2. Intentionally or recklessly
  3. causes
  4. Severe emotional distress occurs.

Outrageous: Exceeds the possible limits of human decency. Mere insults/threats not enough.

Extreme: Rare.

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17
Q

Recklessness

A

Conscious disregard of a known risk.

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18
Q

Elements of Trespass

A
  1. A intends to make contact with land, or is substantially certain that contact with the land will occur; and
  2. The contact occurs.
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19
Q

Nuisance

A

Unreasonable interference with the use and enjoyment of P’s real property. (No intent requirement)

  1. The location of the claimed nuisance
  2. The character of the neighborhood
  3. The nature of the thing complained of
  4. The frequency of intrusion
  5. The effect upon P’s enjoyment of life, health, and property.
    (6. Did P come to the nuisance?)
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20
Q

Elements of Negligence

A
  1. A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P
  2. Breach – A failed to act in a way that a reasonably careful person would have acted under the circumstances
  3. A’s breach was an actual and proximate cause of P’s injury.
  4. Harm
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21
Q

General Duty of Care Question

A

Is harm reasonably foreseeable from A’s careless conduct? If so, A owes a duty of care to take steps to prevent the injury.

Foreseeability is an objective standard – D knew or should have known of the possibility of causing harm.

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22
Q

Duty to Rescue

A

Generally no duty to rescue, unless:

  1. D is causally involved in bringing about the danger;
  2. D has voluntarily undertaken rescue; or
  3. P and D have some kind of special pre-tort relationship
23
Q

Breach

A

Failure to act in a way that a reasonably careful person would have acted under the circumstances.

24
Q

Ordinary Care

A

The care a reasonably careful person would use under the circumstances. Objective standard (with exceptions for physical disabilities, but not for mental disabilities or insanity.)

25
Q

Premises Duty to an Invitee

A

Customer/student/employee

Someone on the premises for a business/institutional interest. Premises has duty to keep premises reasonably safe, duty to take reasonable steps to correct a hazard, and duty to warn of hidden danger that is not in plain and open view.

(Only in cases where the property caused the harm, not D’s hazardous activity)

26
Q

Premises Duty to Licensee

A

Social guest.

Duty to refrain from willfully or wantonly injuring P, and duty to warn or make safe hidden dangers that you know or should know about.

(Only in cases where the property caused the harm, not D’s hazardous activity)

27
Q

Premises Duty to Trespasser

A

Someone who enters or remains on premises without license/invitation.

Duty to refrain from willfully or wantonly injuring P. No duty to warn unlike licensee.

Exceptions for land that is constantly trespassed upon (i.e. shortcut through park) and for attractive nuisances.

(Only in cases where the property caused the harm, not D’s hazardous activity)

28
Q

Trend for Dealing With: Licensee/Invitee Distinction

A

Many states have abolished the distinction. Replaced with: duty of reasonable care to all those who enter property by permission

29
Q

Attractive Nuisance

A

Pools.

When a land-possessor has reason to foresee that children might enter the property and be endangered by a curious condition.

30
Q

Premises Duty/Hazardous Conditions vs. Activities

A

Liability DOES NOT extend to activities.

31
Q

Recreational Use Statutes

A

Land with pond used for skating.

Designed to immunize owners of properties that are used for recreational purposes from negligence liability.

32
Q

Liability to Non-Entrants

A

Generally: D is not liable to take care to protect against harms caused by “natural” conditions e.g. trees.

Exception: trees on D’s land interfering with public road. See pg. 100.

33
Q

Can children be liable for negligence?

A

Circuit split

  1. Tender years doctrine – cannot be held negligent if under 7 years old
    a. 7-14 compared to other children of the same experience/age/intelligence
    i. Exceptions: engaged in adult activities or superior knowledge/ability
    b. 14+ treated as adults
  2. RS/Massachusetts Rule – child can be held negligence if child failed to exercise a degree of care that is reasonable for children of similar age/intelligence/experience
34
Q

Elements of Negligent Supervision

A
  1. Parents are aware of specific instances of prior conduct sufficient to put them on notice that child’s act was likely to occur;
  2. Parents had the opportunity to control the child.
35
Q

Parental Liability

A

Generally no vicarious liability for child’s negligence/carelessness.

36
Q

TJ Hooper Rule

A

Custom is probative/relevant but not dispositive of what reasonable conduct is.

37
Q

Anti-TJ Hooper Rule

A

Professional standard of care for malpractice cases is determined by what is ordinarily employed by the profession generally under similar conditions and circumstances.

38
Q

Hand Formula

A

Method of assessing cost-justified precautions. Multiply the probability of bad thing happening by the gravity of the resulting injury and loss from that thing happening. If that $$ is less than how much the precaution would cost, the precaution is not cost-justified and there is no duty to take that precaution. (Does not factor in distributional concerns!!)

39
Q

Elements of res ipsa loquitur

A

The mere fact that this injury occurred is evidence of negligence.

  1. ) The event was of a kind that dos not ordinarily occur in the absence of someone’s negligence;
  2. ) The event must have been caused by an agency or instrumentality within the exclusive control of the defendant
  3. ) The event must not have been due to any voluntary action nor contribution on the part of the plaintiff.
40
Q

Palsgraf Duty Rule

A

Duty is relational – D owes a duty of care to those people that D might foreseeably injure (spotlight analogy)

41
Q

Superseding cause

A

D1 is no longer liable because D2 has intervened with wanton or reckless conduct, and the path from D1’s careless conduct to P’s injuries is now too indirect to be fairly deemed something that D1 has caused.

Criminal acts are generally treated as superseding unless they are foreseeable. Fast Eddie’s

Medical malpractice in treating an injured patient is not a superseding cause (it’s considered foreseeable)

42
Q

Proximate Cause

A

Was this (general) type of harm a reasonably foreseeable consequence of the breach? (The extent of the injury doesn’t factor into foreseeability – Jolley)

43
Q

Loss of Chance Theory (Falcon)

A

Reframes the injury from loss of life to loss of opportunity to survive or loss of opportunity to receive competent care. Damages are limited to the percentage chance of survival/recovery.

44
Q

Multiple Necessary Causes

A

When multiple D’s are necessary to cause an injury, they are both considered “but for” causes and they are jointly and severally liable. (McDonald car crash)

45
Q

Elements of negligence per se

A
  1. `Is this a safety-related (not an administrative) statute/regulation?
  2. Was it designed to protect roughly this kind of person?
  3. Was it designed to protect against roughly this kind of injury?

If so, P no longer has to demonstrate breach. (Still has to prove duty, cause, & harm!) [Presumption of carelessness is rebuttable – if D can demonstrate that compliance was more careless than non-compliance, then no breach]

46
Q

Multiple Sufficient Causes

A

There are multiple causes that would result in the harm. Therefore neither is a “but for” cause because the harm still would have resulted. Nevertheless, the court will treat both as a “but for” cause if the act was sufficient to cause the harm. (Anderson fire case)

47
Q

Pure Comparative Fault

A

P’s own carelessness limits D’s liability in proportion to P’s carelessness. Generally not a defense to intentional torts like assault and battery.

48
Q

Modified Comparative Fault

A

Once P’s own carelessness reaches a certain threshold, P is barred from recovery completely. (P can’t recover if her own fault is greater than D’s.)

49
Q

Alternative Causation

A

P’s harm could have been caused by any one of the named Ds (and all possible tortfeasors are named) – court can hold all Ds liable and shift the burden to them to prove they could not have been a cause of the injury. Summers v. Tice

50
Q

Requirements for Market Share Liability

A
  1. Substantial percentage of market participants are named
  2. Product was uniform and non-distinguishable
  3. The injury was caused by the product

All Ds can be held liable under market share liability in accordance with the company’s market share at the time. Sindell.

51
Q

Eggshell Skull Rule

A

The wrongdoer is liable for all injuries that result as a consequence of the contact, whether the injuries were foreseeable or not. “You take your plaintiff as you find him.” Vosburg v. Putney

52
Q

Respondeat superior

A

An employer is held liable for the tortious conduct of employees that is committed within the scope of employment. (Does not apply to independent contractors but does apply to volunteers/interns/other in similar relationships.)

53
Q

Joint and several liability

A

P can sue any of multiple tortfeasors for the entire judgment amount. The tortfeasor that satisfies the judgment can seek restitution from the others (action for contribution)

54
Q

Possessor of Land

A

(a) A person who is in occupation of the land with intent to control it or
(b) A person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) A person who is entitled to immediate occupation of the land, if no other person is in possession

1L Fall 2019 (1 decks)

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