Torts Moore 2020 Flashcards
Define Tort
tort is a civil wrong, other than a breach of contract, for which the law provides a remedy
2 Forms of Actions Torts take?
2 forms of action-
1. Trespass: doing something to hurt or offend someone (direct and forcible injuries) 2. Trespass on the Case/Action on the Case: modern tort and contract law developed. Action on the case for negligence “required proof” (indirect, for tangible injuries to person or property)
General Intent
Setting in motion a chain of events knowing with substantial certainty/ high degree of probability the outcome that was likely to occur
Specific Intent
the defendant acts with specific intent if the defendant acts with a purpose or desire to produce the consequences
Transferred Intent
transferred intent arises when defendant intends to commit one tort, but instead commits another
The Intentional Torts
Assault
Battery
Conversion
False imprisonment
Trespass to land
Trespass to chattels (personal property)
Intentional infliction of emotional distress
Single Intent
There was intent to touch
Dual Intent
There was intent to touch and harm
Ordinary Care
Kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger
Strict Liability
Defects in “their” wares cause injury
Absolute Liability
You have caused harm, person to person 3 Bases of Tort Liability: Intentional Conduct Negligent Conduct Conduct
Act
external manifestation of the actor’s will and does not include any of its results, even the most direct, immediate, and intended
Voluntary Act
done of one’s own free will without outside influences
Assault
Assault arises when one voluntarily acts with an intent to place another in apprehension of imminent bodily contact as such apprehension results where one has the apparent ability to carry it out, absent privilege.
Apprehension- a seizing of the mind.
Actual ability- defendant has the ability to do something.
Apparent ability- defendant has the ability to carry out action but does not accomplish the action.
Battery
Battery arises when one voluntarily acts with the intent to cause harmful or offensive touching of another, whether directly or indirectly, or imminent apprehension of such contact, and such contact results, absent privilege
Elements of Battery:
1) an intentional act done to cause a harmful or offensive contact or an apprehension of such contact to another person
2) without valid consent
3) without privilege
Offensive Battery
touching element of battery can be accomplished by touching something so intimately connected with a person so as to be deemed to be part of that person it accomplishes the first rule element
False Imprisonment
arises when one voluntarily acts with the intent to restrain and does restrain another to a bounded area by force or threat of force, where one is aware of the confinement or harmed by the confinement absent privilege
Intentional infliction of Emotional Distress:
one is liable for intentional infliction of emotional distress when one voluntary acts intentionally or recklessly by extreme and outrageous conduct that causes another severe emotional distress absent privilege
Elements of IIED
- Defendant’s conduct was intentional or reckless
- Defendant’s conduct was extreme and outrageous
- Defendant caused Plaintiff’s emotional distress
- The emotional distress was severe
Moore’s definition (from pg. 68): in such an extreme degree to go beyond all bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community
False Arrest:
when one is taken into custody by a person who claims but does not have proper legal authority to do so
Elements of Third Party IIED:
1) must be present at the scene
2) (common law) close family member (restatement) bystander
3) must be aware of presence
4) act with intent to cause severe emotional distress
5) severe emotional distress must result
Harmful
that which causes injury to another
Offensive
contact an ordinary person would find objectionable
Respondent Superior
Vicarious liability/Master Servant Rule An employer is responsible for the acts of its employee if the employee is acting within the scope of employment.
Agency Theory ASK MOORE
arises when one uses something other than one’s body to commit a tort
Trespass of Land
arises when the defendant voluntarily acts with the intent to access the land in possession of another and such entry results, absent privilege
Trespass of Land
Arises when the defendant voluntarily acts with the intent to access the land in possession of another and such entry results, absent privilege
License:
Permission to do something on the land of another and without that permission the act would be unlawful
Exclusive Possession
How we can treat land and allow for the right of recovery
Nuisance
Intentional substantial unreasonable interference with another’s use and enjoyment of land, including immaterial effects, vapor smells garbage heaps etc
Trespass to Chattel
One who uses or otherwise intentionally intermeddles with a chattel which is in possession of another, without consent and absent privilege
Elements of Trespass to Chattel
- Defendant dispossessed Plaintiff of the chattel
- The chattel is impaired in its condition, quality, or value
- Possessor is deprived of the use of the chattel for a substantial period of time
- Bodily harm is caused to the possessor or to some person/thing to which possessor has a legally protected interest
Continuing Trespass
arises when one, having consent to do so, places a thing on property in possession of another and fails to remove it after consent has terminated, or regardless of possessor’s consent, one has privilege to place a thing on possessor’s land but fails to remove it after the privilege terminates.
Conversion
When one voluntarily acts an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel, absent privilege.
(Conversion does not require physical damage)
Factors or Elements of Conversion
Conversion Factors:
🔸I- Intent to assert inconsistent rights
🔸D- Duration/Extent of dominion/control
🔸I- Interference both extent and duration that results
🔸G- Good faith?
🔸H- Harm
🔸I- Inconvenience
Manner of Conversion:
🔹Receiving
🔹Acquiring §
🔹Misdelivering
🔹Refusing to surrender
🔹Using
🔹Damaging
🔹Disposing
Rule of Commercial Convenience:
Permitted one to receive goods for storage or safekeeping or transportation without inquiring into the title of the person from whom one received the goods.
Theft vs. Fraud
In either transaction, there may be an innocent purchaser, but the kind of transaction governs liability.
Good faith/Innocent purchaser (GFP) or Bona Fide purchaser (BFP)
is one who
📌Gives good and valuable consideration
📌Takes without notice of competing claim
**Note: Status as a good faith or innocent purchaser will not matter if an innocent party purchases stolen goods.
Actual Consent
a person’s subjective willingness to permit the otherwise tortious conduct of an actor
Apparent Consent
A person apparently consents to an actor’s otherwise tortious intentional conduct if the actor is justified in engaging in the conduct in the absence of the person’s actual consent, and the actor has no reason to believe that the person would not have actually consented to the conduct if the person had had the opportunity to do so.
Implied In Law Consent
An actor is not liable to another person for the actor’s otherwise tortious intentional conduct, even in the absence of the person’s actual consent, if:
(a) a reasonable person would actually consent to the actor’s conduct under the circumstances; (b) the invasion of the person’s interests is de minimis (Of little importance; insignificant.); and
(c) the social benefits of engaging in the conduct without first securing the actual consent of persons affected by that conduct substantially outweigh the de minimis invasion.
Negligence
arises when one falls below the standard of care set by law to protect others from unreasonable risk of harm
The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. (p.155)
Negligence elements
1) Duty is based on the standard care, requires one to act
2) Breach is tied to duty, did I fall behind the standard of care
3) Actual Cause (sine qua non) is the gatekeeper
4) Proximate Cause (Legal Cause)
5) Damages (if not enough damages might be nuisance)
Risk Utility Test
What are the factors we use to determine if risk outweighs utility? Risk utility factors:
Risk Utility Factors:
Character and location of the premises The purpose for which they are used The probability of injury Precautions necessary to prevent injury Relations such precautions bear to the beneficial use of the premises
Learned Hand Theory:
B=burden of taking precautions (Cost)
P=probability that an accident will occur
L=LIABILITY of injury or seriousness of damages
B < L X P = negligence liability
if B<p></p>
defendant loses
B= or more than P*L,
plaintiff loses
Standard of Custom:
1) Is there a custom? (Judge)
2) Is it reasonable? (Jury)
3) Is it reasonable to follow it? (Jury)
4) Is it reasonable to fail to follow it? (Jury)
Standard of care
Reasonably prudent person: The person whose conduct is being evaluated is deemed to have the knowledge that the ordinary reasonable person would have.
Disability Standard of Care/Emergency
The physical characteristics of the person whose conduct is being evaluated will be considered when applying the reasonableness standard and of their current circumstances
Nominal Damages
Are symbolic (often $1 dollar) given when P establishes tort liability, but no actual harm occurred or is proven with sufficient certainty. This applies to intentional torts only. It does not apply to negligence.
It indicates D committed the tort.
It may serve to vindicate a right (trespass to land).
With negligence, proof of actual harm is required. Nominal damages are never awarded.
Compensatory Damages
damages awarded to a person as compensation, indemnity, or restitution for harm P sustained.
It includes pecuniary loss diminished market value for property loss, replacement costs or rental value to compensate unauthorized use.
Pecuniary loss for personal injury includes medical expenses, lost wages or diminished earning capacity; other economic expenses due to the injury.
Non-pecuniary loss includes pain and suffering and other mental distresses.
Punitive Damages
The purpose is to punish or deter particularly egregious conduct. It is not given in all tort cases as the facts don’t support them.
They are discretionary.
Awarded when a tort is committed with malice.
In some cases, part of the award goes to the state (Oregon).
The amount of all damage awards is the subject of legislation.
Example: California limits a noneconomic damage in medical malpractice claims to $250,000; Maryland limits all noneconomic damages to $350,000 in personal injury cases.
Lost Wages/Diminished Capacity
__Past and future lost wages
\_\_Loss of business earnings
\_\_Impact on earning in the future e.g., can't work for six months; thereafter only part-time; cannot earn raises
\_\_Loss of earning capacity P is seeking to recover for past and future impaired earning capacity. Here we measure the victim's lost potential to earn income because of the injury.
\_\_P does not have to prove that the victim exploited, or would in the future exploit, that capacity.
\_\_P must prove:
1. Specific ability
2. Skills
3. Aptitude for a career path prior to injury
4. Educational attainment and prior employment history
These are important. For example, P cannot claim impaired capacity to
become a doctor when he had been continuously denied admission to
college.
More difficult for children (infants/youth); limited information must look
to education and performance in school, intelligence, achievements of
other family members.
Vague professional aspirations are not enough.
We can take into account life expectancy prior to injury when she could expect to retire or reduce work because of advanced age or
illness.
Pain and suffering include:
a. Mental distress
b. Disfigurement
c. Loss of enjoyment
d. Reduction in life expectancy
* e. P must be conscious to receive award for mental distress for
reduction of life expectancy.
\_\_If P is unconscious, P cannot be distressed about it.
