Torts Distinctions Flashcards
What is measure of damages for conversion?
Market value of property at time of conversion.
When is written consent effective to defend action against medical professional for battery?
- consent states nature/purpose of procedures;
- person making consent acknowledges disclosure has been made;
- consent signed by patient or by someone who has authority to sign for the patient.
List the elements for affirmative defense of self-defense.
- Defendant was not at fault in creating violent situation;
- Defendant had bona fide belief he was in imminent danger of death/great bodily harm and could only escape by using force;
- Defendant didn’t violate duty to retreat
When is owner/renter immune to tort liability for injury/death of trespasser?
If:
- owner/renter was inside building or structure;
- trespasser made/tried to make unlawful entry; AND
- owner/renter used reasonably necessary force to repel trespasser
Explain merchant/shopkeeper privilege.
Defense to false imprisonment when:
- merchant/employee/agent;
- had probable cause to believe that;
- items offered for sale had been unlawfully taken
Explain Good Samaritan statute.
Exonerates person from liability for damages caused administering emergency care/treatment unless he acted with willful or wanton misconduct.
What are damages for wrongful pregnancy/wrongful birth?
Only costs of pregnancy; not costs of child-rearing
Does Ohio recognize claim for wrongful life?
NO.
When can owner/occupier of private property be liable?
If:
- injury caused by owner’s willful or wanton misconduct or affirmative act of negligence;
- injury was result of hidden trap on premises;
- injury caused by owner’s violation of duty imposed by statute/ordinance for firefighter or police officer;
- owner was aware of firefighter/police presence but didn’t warn them of known danger.
Explain attractive nuisance rule as applied to adults.
Applies to adults trying to rescue a child from danger created by defendant
When are children negligent?
If under age 7, children cannot be liable for intentional or negligent torts.
What standard of care must physicians meet?
Good practice–NOT just minimum standard of care.
What defenses can be raised against negligence per se?
Sudden emergency–sudden and unexpected occurrence not caused by defendant demanded prompt action without time to deliberate.
State test for res ipsa loquitur:
- instrumentality causing injury was under defendant’s exclusive management and control;
- injury occurred under circumstances that wouldn’t have occurred if ordinary care had been observed.
What is the limit on punitive damages?
Two times the amount of compensatory damages.
What is test for punitive damages?
- By clear and convincing evidence, D’s actions = malice or aggravated or egregious fraud; AND
- Trier of fact found compensatory damages recoverable
State liability rule for owner of dog:
Owner/keeper of dog is STRICTLY LIABLE for injury, death, or loss caused by dog unless injured person was trying to commit a crime.
General test for products liability:
Manufacturer is liable for compensatory damages in products liability ONLY if:
- Product was defective (construction; design; warning);
- defective aspect was proximate cause of harm; AND
- The manufacturer designed, formulated, produced, made, the product.
Standard of fault for private plaintiff suing non-media defendant for defamation:
Ordinary negligence
BUT plaintiff must show by CCE that defendant failed to act reasonably in attempting to discover truth or falsity
Standard of fault for public-official plaintiff in defamation action:
Plaintiff must show that defendant acted with malice.
Elements of claim for negligent entrustment:
- motor vehicle was driven with permission and authority of the owner;
- entrustee was in fact an incompetent driver; AND
- owner knew at time of entrustment that entrustee was incompetent and unqualified to operate the vehicle or had knowledge of such facts to imply knowledge
Tavern keeper when injury occurred on premises:
Can be liable if liquor permit holder sold beer or liquor ONLY when injury occurred on premises
Tavern keeper liability when injury occurred off premises
Only liable if permit holder sold intoxicating beverage to a noticeably intoxicated or underage person.
What tort actions will abate on death of a party?
Libel
Slander
Malicious prosecution
Nuisance
