Torts Midterm Flashcards
Battery
1) Acts intentionally
2) makes contact with plaintiff
3) contact is harmful and offensive
4) plaintiff is harmed
Fasle imprisonment
1) intent to confine
2) without lawful privilege and against consent
3) actual confinement within a limited area
4) for any appreciable time, however short
Assault
1) intent to bring about apprehension of a battery
2) reasonable apprehension of an imminent battery
Intentional inflection of Emotional Distress
1) Extreme and outrageous conduct
2) intent to cause or disregard of a substantial probability of causing, severe emotional distress.
3) A causal connection between the conduct and injury and
4) severe emotional distress
Self defense and defense of others
1) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and
2) He or she may use a degree of force which he or she reasonably believes to be necessary for the purpose
Arrest and Detention
1) A merchant, or his agent or employee, with reasonable cause, may detain on the premises
2) in a reasonable manner and
3) for a reasonable time any person suspected of shoplifting.
Negligence
1) Duty
2) Breach of Duty
3) Cause in fact
4) Proximate cause/Scope of Liability
5) Damages
Intent
Poof of purpose (desire) or knowledge (substantial certainty)
Dual Intent
he individual intended to contact and intended to harm or offend by contact
Mental capabilities dual
Mentally deficient person can be found liable if its determined that the actor intended offensive or harmful consequences (W
Blameworthy
More consistent with the view that liability for battery should exist only when the actor is especially culpabl
Single Intent
The individual intended to contact
Mentally disabled
Single
Defendant attacked by mentally disabled patient, court ruled action doesn’t need intent that contact be harmful or offensive so long as he deliberately made the contact and so long as that contact satisfies legal test for what is harmful or offensive.
Single intent favors
plaintiff
Transferred intent
Tort to tort
Victim to victim
Transferred intent does not apply to IIED
Transferred intent
(Tort to tort)
Intent to assault and you batter them it transfer to the second tort
Extended liability principle
Defendant who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended or foreseeable
(Battery) Indirect contact
Physical contact need not be with the physical body of the plaintiff, and it need not be direct physical contact
Contact is harmful or offensive
No need for physical harm
Actionable even if the plaintiff has no proven physical harm (Dobbs)
Consent
Actual consent
Apparent consent
Presumed consent
Actual consent
Act is a subjective willingness for the act to occur
Apparent consent
Conduct, including words, that are reasonable understood by another as a reflection of consent
Presumed consent
if social norms support or approve of a particular action, then the person performing the action might be considered justified in doing so even if the other person involved hasn’t explicitly agreed to it or shown clear consent.
if the actor believes, based on the circumstances, that the other person would likely have consented to the action if asked, then the actor has no reason to think that the conduct was non-consensual.
(Assault) Imminent
Without a significant delay
Apprehension not synonymous with fear
Plaintiff needs to only feel their mind taken hold of or anticipate an imminent battery
(Assault) Actions
Any act of such a nature as to excite an apprehension of a battery
Actual confinement within a limited area
Barries
Duress
Physical restraint is not necessary
Extreme and outrageous conduct
(a) Repeated or carried out over a period of time,
(b) an abuse of power by a person with some authority over the plaintiff, or
(c) directed at a person known to be especially vulnerable.
Actions not constituting E&O
Generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct.
Occasional malicious and abusive incidents should not be condoned, but must often be tolerated in our society.
Exception to presence: Terrorism
Court has previously held that one need not be present at the time of a terrorist attack upon a third person to recover for severe emotional injuries suffered as a result. This is because terrorism is sufficiently extreme and outrageous to demonstrate that it is intended to inflict severe emotional harm on even those not present at the site of the act.
(IIED) Presence
Only immediate family members who are present at the time of the conduct and who suffer severe distress, can recover.
2nd exception to presence:
Parents to recover for their emotional distress at the sexual abuse of their children (kidnapping also)
children who did not actually witness attacks on their mother were “present” if they could show “sensory and contemporaneous” awareness)
(IIED) extent
Severe distress can be proved without showing physical symptoms, courts insist that the distress must be severe or even debilitating (Argereow)
Proof that the distress caused significant impairment of day-to-day functioning
(Sindi)
(IIED) length
The length of time that plaintiff in determining whether that distress is sufficiently severe to be compensable. Id
(Self-Defense) Provocation
Being provoked is not enough to raise the self-defense privilege
(Self-Defense) Prior
Not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand their ground.
(Self-Defense) Withdraw
Their initial aggressor, force is justified if they withdraw from the counter and effectively communicates their intent to do so, but the latter person continues or threatens the use of unlawful physical force
(Self-Defense) Deadly force
Is immune criminal prosecution and civil action from the use of such force, unless the force was determined to be unlawful
(Self-Defense) Sexual attack
When the defendant is threatened with sexual attack, or force likely to cause death or serious bodily harm, the defendant is privileged to respond with reasonable deadly force.
(Self-Defense) Home or stand your ground law
Can use deadly force without having to first measure if deadly force is being used against you
(Self-Defense) reasonable amount of force
The privilege to use force is extended to a reasonable amount of force, an excesses amount will bring liability to the defendant
When do defenses kick in
Defenses kick in after prima facie case
Defense of property
No privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his unless the intrusion threaten death or serious bodily harm
Reasonable appearance of consent
One will be permitted to act on the reasonable appearance of consent. The rule applies so long as the appearance of consent was not itself induced by misrepresentation or by a basic mistake of which the defendant was aware. Fraud vitiates consent
Private necessity
The defendant under a necessity may enter and remain without liability for a technical trespass that causes no physical harm. The landowner temporarily loses his purely possessive interest.
The landowner confronting a defendant who enters out of necessity loses his privilege to oust the trespasser
Public necessity
Person invoking the privilege do not have to pay for any actual damage caused by the act
The General Duty of Care
(Negligence)
An actor must exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others.
Ordinary care is the care a reasonably prudent person would use under the circumstances presented in this case. (Stewart)
Care never changes
The care required is always reasonable care. The standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act and is proportionate to it. The greater the danger, the greater the care which must be exercised (Stewart)
Orthodox view ( standard of care)
(a) stand of care remains the reasonable and prudent person standard, but (b) if the foreseeable danger is high, the reasonable person will ordinarily exercise a greater degree of care than if the foreseeable danger is low.
Factors of ordinary care
Particular circumstance and conditions existing then and there
Reasonable care with vulnerable plaintiffs
Cases involving vulnerable plaintiffs, such as minors, courts hold that while factors related to the plaintiffs’ vulnerability are relevant. The duty of reasonable care remains the same.
Physical Impairments
(Duty of care)
Ordinary case in the case of such a person is such care as an ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances
Old age (physical impairment)
Old age is not taken into account in setting the standard of care
Intoxicated person (Duty of care)
Intoxicated person would owe the same amount of duty of care as a sober person
Sudden incapacitation
(Duty of care)
Person alleged negligence is caused by a sudden physical incapacitation that is not foreseeable, there should be no liability.
Mental and Emotional disability
(Duty of care)
Mental disability does not excuse a person from liability for “conduct which does not conform to the standard of a reasonable man under like circumstances”. (other than Indiana) (Creasy)
General duty of care imposed on adults with mental disabilities is the same as that for adults without mental disabilities.
(Duty of care) Non-Defense: Insanity
Neither insanity nor mental deficiency relieves the actor from liability, and that the actor’s conduct must conform to the general standard of care of a reasonable person under similar external circumstances
(Duty of care) Defense: Insanity exception
When one is employed to take care of a patient known to be combative because of Alzeimer’s disease has no complaint for injuries sustained in doing so. A caretaker duty of care is one-way street, from caretaker to patient, not other way around.
Mentally disabled person, does not owe a duty of care to his professional caregiver and hence is not liable for negligence or recklessness causing the caregiver harm
Public policy reasoning
(Mental and emotional disability duty of care)
Allocates losses between two innocent parties to the one who caused or occasioned the loss
Provides incentive to those responsible for people with disabilities and interes in their estates to prevent harm and “restrain” those who are potentially dangerous
Removes inducements for alleged tortfeasors to fake a mental disability inorder to escape liability
Avoids administrative problems involved in courts and juries attempting to identify and asses the significance of an actors disability.
Forces persons with disabilities to pay for the damage they do if they “are to live in the world”
Expertise/skills
(Duty of Care)
General rule
The standard of the reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgment, in order to recognize the existence of the risk. If the actor in has in fact more than the minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances.
Beginners (Expertise duty of care)
Some activities are so dangerous that the risk must be borne by the beginner rather than the innocent victims, and lack of competence is no excuse.
Minors (Duty of care)
Minor is not held to the same standard of conduct as an adult Ordinary care is the care which a reasonable careful minor of age, metal capacity and experience of (plaintiff) would use under the same circumstance.
Minor (Duty of care) exception
Minor who engages in an adult activity that is dangerous, is charged with the same standard of conduct as an adult (Stevens)
EX: Driving a car
Rule of sevens
(Duty of care)
Some courts hold that minors over 14 are presumed capable of negligence
Between 7 and 14 are presumed incapable of it
Below seven are incapable of negligence as a matter of law
Not common now but most courts hold that children of very young years, three and under, are simply incapable of negligence.
Medical Malpractice
The standard of care is determined by the care customarily provided by other physicians, it need not be scientifically tested or proven effective: what the average qualified physician would do in a particular situation is the standard of care
Standard is not what the doctor himself would do.
Medical standard reflects particular customs or procedures used under bary particular circumstances
Medical Malpractice mistake
Physician is not liable for an honest mistake or bona die error in judgment, not expected to be infallible or that he does not guarantee results
Necessary for Medical Malpractice
Expert testimony necessary to prove negligence
A requirement that the standard of care established through expert testimony (Walski)
Testimony must testify that there is a generally accepted medical standard of care or skill which defendant violated.
If the plaintiff fails to adduce expert testimony or testimony is inadequate to show the standard, judge will direct a verdict for the defendant
Expert testimony may be needed to prove that the doctors negligence factually caused the plaintiff’s harm
Exception to testimony for medical malpractice
Common knowledge or Gross negligence
Misconduct is so well understood or so gross that it can be properly appraised by jurors without medical knowledge
Hospital rule
Medical care of hospitals must meed the standards required by regulations or licensing standards.
Drug rule
Warnings and instructions accompanying drugs establish the standard of their use and administration
Medical malpractice measure
A member of a profession has special training and expertise, their conduct is measured against the standard of a hypothetical reasonable person with similar training and expertise
Strict locality rule
Measured the defendant’s conduct against that of other doctors in the same community
Modified locality rule
The standard of care… is that degree of care, skill and proficiency wish is commonly exercised by ordinarily careful, skillful, and prudent (physicians), at the time of the operation and in similar localities
Two major drawbacks
(strict and modified locality)
Scarcity of local doctors to serve as expert witnesses against local doctors
The possibility that practices among a small group of doctors would establish a local standard of care below that which the law required.
Strict and modified locality rule factor
Rather than focusing on different standard for different communities, standard uses locality as but one of the factors to be considered in determining whether the doctor acted reasonably
Nurses
Held to the standard of nurses in a similar practice
Specialites
Specialist are held to the same standard of their specialities
Pharmacists
Owe their client no duty to warn of side effects, that the physician has prescribed an excessive dodge, or that a drug is contraindicated, even through patient could be injure
Liable only if he voluntarily undertakes to give appropriate warnings and negligently fails to do so
Some courts have held that a pharmacist owes a duty to want when serious contraindications are present or carry inherit risks.
Knows patient has an allergy prescribed drug , duty to warn customer or notify prescribing doctor.
Hospital
Performing their own duties, hospitals owe a duty of reasonable care under national standards.
Liable if not providing appropriate:
Facilities
Equipment
Staff support
Good Samaritan
No person licensed under this chapter… who in good faith renders emergency care at the scene of the emergency, shall be liable for any civil damages as a result of any acts or omissions by such person in rendering the emergency care.
Rule only applies only with to preexisting duty to aid
Good Samaritan
Milder version:
Leaves open the possibility for gross negligence, or for wanton conduct or intentional wrongdoing
Gross negligence
can be defined as the absence of even slight diligence
Another definition: A thoughtless disregard of the consequences without the exertion of any effort to avoid them
Informed consent
all significant medical information that the physician posses or reasonably should posses that is material to an intelligent decision by the patient whether to undergo a proposed procedure
Plaintiff must also prove that had information been informed neither themselves nor a reasonable person would have accepted the medical treatment
Informed consent exception
Sound medical judgment might indicate that disclosure would complicate the patients medical condition or render him unfit for treatment.
Opposite of informed consent
The standard of disclosure is that of the reasonable medical practitioner and this will ordinarily require expert medical testimony
Plaintiff must also prove that had information been informed neither themselves nor a reasonable person would have accepted the medical treatment (Objective test)
Medical battery vs. informed consent (medical negligence)
Medical battery
Physician operates procedure without the consent of the plaintiff
Informed consent
Treated as a negligence case (usually)
Success or lack of success is not required to be disclosed
Informed consent requires a physician to warn a patient of the risks and consequences of a medical procedure. success rate is not a risk related to the medical procedure
Defendant does not have a duty to disclose statistical history to obtain the decedent’s informed consent.
Procedure Success Rates
Expert testimony was necessary to determine whether the lack-of-success rate of recommended back surgery was something a reasonable medical practitioner would have disclosed to the patient.
Carries and Host-Drivers
Heightened standard of care
A carrier of passengers for hire must exercise more than ordinary diligence for their protection. Its duty drops just short of ensuring their safety. It is bound to protect its passengers as far as human care and foresight will go and is liable for slight negligence. (Doser)
The high degree of care must be exercised in:
(carrier)
Foreseeing
Guardian against danger
Common carriers
Those in business of carrying “everyone who asks”
Provide transportation services to the general public, as opposed to providing only for particular individuals or groups. Primary purpose of such a business must be “transporting people or goods”.
Example: taxis, buses, railroads, airplanes, ferries, Uber, and other modes of commercial transportation within that definition
Scope of heightened duty owed to passengers
Common carrier owes a heightened duty only to passengers
Ex Plaintiff paid fare and entered train platform intending to board, but after waiting 30 minutes and letting 11 trains pass by, tripped on a container he dropped and fell to his death from the platform onto an electrified rail
No, he was not a passenger at the time of injury because was “not at all engaged in the act of boarding the train; mere presence on a platform which intention to board is not enough.
Ala. Code § 32–1–2
Lower Standard
Gross negligence, others as willful or wanton misconduct.
Willful, wanton standard may be construed to require not merely extremely negligent conduct, but also a bad state of mind
It’s not just about how careless the conduct was; it also considers whether the person acted with a reckless or malicious intention.
“Willful and wanton conduct”
course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.
Duty owed to status
The duty an owner or occupier of property owes someone on the property depends on that person’s status
Invitee
On the land with possessor’s consent as a member of the public for whom the property is held open or for the possessor’s business
Person who is on the premises at the express or implied invitation of owner, entered thereon either as a member of the public or for the purpose for which the premise are held open to the public or for a purpose connected with the business of the possessor that does or may result in their mutual economic benefit.
Duty of care .
(Invitee)
Exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover. (Porter)
Licensee
On the land with the owners consent
Licensee Example
Social Guest
Not on land open to the public
Nor present for the pecuniary benefit of the landowner
(Licensee) Doing work for Third party not owner
A person on property to perform volunteer work for a third party benefits the third party rather than the property owner and therefore is not the owners invitee.
When a visitor does not economically benefit the landowner, the law imposes on the owner the lesser duty associated with licensees (Porter)
Trespasser
Present on the land without the owners consent.
(Status duty) Requirement for injury
Caused by a condition on the land, as opposed to an activity being conducted on the land
(Status duty) Activity on land
A duty of reasonable care is owed regardless of entrants status
Changing categories
(status duty)
Plaintiffs classification is determined at the time of injury, and a person can fit into only one category at a time. Plaintiff can translation from invitee to trespasser and vice versa. This is determined by consent of the owner of where the individuals duty on land begin and end.
(status duty) Duty of reasonable care
Exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier know or by exercise of reasonable care would have discovered)
Wilful, wanton or reckless conduct
(Status duty)
Cannot win merely by providing that the defendant was negligent. Must prove that defendant is aware that its conduct creates a high degree of risk, or a risk of vert serious harm, but nonetheless proceeds without concern for the safety of others.
Must prove a substantial probability of serious physical harm
Defendant acted with a culpable mental state
Wilful, wanton or reckless conduct
(Status duty)
Liability can still be found where the landowner knows or has reason to know of both the presence of the entrant and that he is about to encounter a hidden danger on the land that the entrant is not likely to discover and fails to take reasonable action to protect the entrant from the hidden danger (some courts and restatement tighten to only apply to trespassers)
Flagrant tresspasser
A land possessor owes a “flagrant trespasser” only the duty not to act in an “intentional, willful, or wanton manner.” but to the flagrant trespassers “who reasonably appear to be imperiled and helpless or unable to protect themselves,” the duty is one of reasonable care. Landowner has privilege to use reasonable force to expel the trespasser
Approach 1 (common Law)
Invitee
Duty of ordinary care to discover and void danger (duty of reasonable care)
Licensee
No duty except to refrain from wilful, wanton or reckless conduct
Trespasser
No duty except to refrain from wilful, wanton or reckless conduct
Approach 2
Invitee
Duty of reasonable care
Licensee
Duty of reasonable care
Trespasser
No duty except to refrain from wilful, wanton or reckless conduct
Approach 3
Invitee
Duty of reasonable care
Licensee
Duty of reasonable care
Trespasser
Duty of reasonable care
Child Trespassers
Duty is owed by landowner of reasonable care to a trespassing child if a reasonable landowner would know or foresee that
(1) there is a dangerous condition on his land,
(2) children are likely to trespass on his land, and
(3) because of their youth and inexperience, such children will face an unreasonable risk of serious injury
Turntable Doctrine/Attractive Nuisance Doctrine
(Child Trespassers)
If a child is attracted to some condition that was quite dangerous because of their natural curiosity, the court will treat him an an invitee based on the idea that he was induced onto the land to play because of their natural instinct and the inherent attractiveness of the dangerous condition.
Scope (Child Trespassers)
Largely an application of ordinary negligence law. Young children are entitled to a degree of care proportioned to other inability to foresee and avoid the perils that they may encounter. Duty is of reasonable care, does not become liable for any injury a child trespasser may suffer on that land. Doesn’t need to be injured by the very temptation that caused that injury.
Tender Years (Child Trespassers)
Only applies to children who, because of their tender years are foreseeably unlikely to appreciate dangers and to avoid them. Grade school or younger, rarely teens.
Status category as one factor
Under the circumstance that he must conduct dangerous activities or permit dangerous instruments and conditions to exist on the premises, he must take reasonable measures to prevent injury to those who presence on the property can reasonably be seen.
Defendant can always show that it would have been unduly burdensome to have done more, the fact the plaintiff entered without permissions is also a relevant circumstance. May well demonstrate that the plaintiffs presence was not foreseeable at the time and place of the injury. remains one element among many to be considered in assessing the landlord’s duty to use reasonable care for the safety of persons invited on the premises.
Open and Obvious Hazard
The land possessors cannot be held liable to invites who are injured by open and obvious dangers (McIntosh)
Obvious (Open and Obvious Hazard)
Both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visit, exercising ordinary perception, intelligence and judgment.
Exception to Open and Obvious Hazard
If the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.
Negligence Per Se
Elements that must be met
the statute or regulation must clearly define the required standard of conduct;
the statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused;
the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; and
the violation must have been the proximate cause of the injury.
Negligence per se does not apply
If the court determines that negligence per se does not apply, the standard of care “defaults” back to the reasonable and prudent person standard.
Excuses
(Negligence per se)
the violation is reasonable because of the actor’s incapacity;
he neither knows nor should know of the occasion for compliance
he is unable after reasonable diligence or care to comply
he is confronted by an emergency not due to his own misconduct
compliance would involve a greater risk of harm to the actor or to others
Jurisdictional variations
(Negligence Per Se)
Some states make violation of a statue some evidence of negligence that may be considered by the jury rather than regarding the statue as setting the standard of care.
Cali (Jurisdictional variations)
When a statute applies and a person has violated it, the failure of that person to exercise due care is presumed. The burden is then placed upon the violator to rebut that presumption
Applies to
(Negligence)
Statues that declare conduct unlawful but are silent as to civil liability
Either do not expressly provide for civil liability or which cannot be readily interpreted as impliedly creating a private right of action
