torts short Flashcards
Intent
conscious desire or knowledge that some result will occur or that a result is substantially certain to occur.
Transferred Intent
Imposes liability for an unforeseen P when the D acts intentionally to injure another. Foreseeable.
Assault
imminent apprehension of a harmful or offensive contact. Awareness is necessary. Words alone not sufficient. Actual damage not required. Words + present ability to carry out threat. Reasonable person standard.
False Imprisonment
intentional confinement within a bounded area of a person by threats, by assertions of legal authority or by actual physical restraint.
IIED
the intentional or reckless infliction of severe emotional or mental distress by extreme and outrageous conduct. Conduct beyond all possible bounds of decency. Actual damages are required. Conscious desire or knowledge or reckless disregard.
Battery
Intentional infliction of a harmful or offensive bodily contact. Awareness not necessary. Actual damage not required. Reasonable person standard.
Trespass to Land
Occurs when a D intentionally enters, remains on, or puts an object on a Ps land without permission. Actual damages not required.
Trespass to Chattel
an intentional interference with a persons use or possession of chattel. Actual damages are required.
Conversion
a substantial intentional interference with a persons use or possession of chattel resulting in a forced sale.
Defense of Consent
May relieve a D from liability and may be a complete defense to intentional interference with person or property. Consent by fraud/duress is invalid. Must have mental capacity, not intoxicated, not child. Express or implied. Implied: custom & usage; implied: in law – where a reasonable person in P’s place would have given consent – medical.
Self Defense
a person is entitled to use reasonable force to prevent a threatened harmful or offensive bodily contact of confinement. Not available to initial aggressor. Majority rule – no retreat necessary. Minority rule – retreat if possible to do so safely.
Defense of Necessity
the D has a privilege to harm the Ps property interest where it is necessary to prevent great harm to third persons or to the D himself. Public: NO compensation Private: compensation for actual damages.
Shopkeepers Privilege
privilege to reasonably detain individuals believed to be in possession of shoplifted goods.
Negligence
Defendant may be liable for Negligence if defendant owed a duty of care to plaintiff, he breached that duty, and plaintiff suffered damages which were actually and proximately caused by that breach.
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Duty Owed to Plaintiff
Under common law there was no general duty to act affirmatively to protect others. Modernly (majority of states) a defendant owes a duty of due care to all Ps in the foreseeable zone of danger. (minority of states) a defendant owes a duty of due care to everyone.
Duty (also include respondeat superior duty - employer has the vicarious liability/duty of all her employees engaged in normal business activities)
to act as a reasonably prudent person would act under the same or similar circumstances and not subject others to unreasonable risks of harm. OR by an omission OR Ds owe a duty of care to foreseeable Ps Exception: non-psychosis disabilities. objective test.
Custom/Usage
may be used to establish standard of care – not dispositive - factor
Duty of Child
Subjective test –children under 4yo incapable of negligent acts. 4-17 rebuttable.
Duty of Professional
Objective test – to act as would a reasonable professional in the same or similar communities. Specialists held to a higher degree of care.
Duty to Unknown Trespasser
NO duty = NO standard of care
Duty to Known Trespasser
Owner/occupiers duty is to warn or make safe where owner/occupier knows of any non-obvious artificial conditions involving a risk of serious injury.
Attractive Nuisance Doctrine
a landowner has a special duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the property.The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, andThe condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to the children, andThe children, because of their youth, do not realize the risk, andThe utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, andThe possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
Duty to Licensee
on the property with owners permission(express or implied) – non-business(not landowners benefit – for their own purpose or business). Liable for all non-obvious known dangerous conditions. Duty to make safe or warn. No duty to inspect. Police/firefighters because of public policy or assumption of the risk due to the nature of their profession.
Duty to Invitee
on the property with owners permission – business or land is open to the public. Liable for all dangerous conditions owner knew or should have known of. Duty to inspect, warn or make safe. Most states => no liability for very obvious dangerous conditions. Reasonable inspection. May lose status as invitee if exceeds scope of invitation and goes into portion of land where invitation is not extended => licensee or trespasser.
NIED
D is liable if the conduct places P in imminent danger of bodily harm resulting in distress OR occurs in a special relationship in which negligent conduct is likely to cause emotional distress. Needs physical symptoms. P must be within the zone of danger.
Negligenc Per Se
violations of statute establishes a lack of due care if (1) the statute was intended to prevent the type of harm which in fact occurred and (2) the P was within the class the statute sought to protect. Violation of statute establishes a presumption and a breach of duty. Exceptions/rebuttable: where compliance would be more dangerous or impossible or emergency
Breach of General Duty
did not meet the applicable standard of care. Fact that the P was injured does not prove breach. The D did something or did NOT do something - that a reasonable person would/would not have done.5 types: breach of general duty; negligence per se; res ipsa; custom & usage; B<PL; When the D did xxxxx , he/she did/did not meet the standard of care set out above and thus there is/ there is not a breach.
Affirmative Duty to Act
NO affirmative duty to act. Exceptions: relationship(family/employer-employee/carriers - passengers/3rd party conduct)
Res Ipsa Loquitur - breach/duty
the thing speaks for itself
the use of res ipsa shifts the burden of proof to the D.
where cause of injury is not known (and not known if there even was negligent conduct) – a P must show 1) “this injury would not normally happen unless someone was negligent”; and 2) the D was in sole control of the instrumentality; and 3) P must be free from contributory negligence. Allows the case to go to the jury which can then find for either side. [1) someone probably was negligent; and 2) it probably was this D; and 3) P free from contributory negligence.]
Breach of Custom & Usage
where Ds conduct is not consistent with the custom and usage in the industry – the D has breached the standard of care.
Learned Hand Risk Utility Rule - breach
if B < PL, and d did nothing, d is negligent. B is burden of prevention of harm. PL is probability of harm multiplied by magnitude of harmwhere the burden of prevention is > the probability and magnitude of the harm, the D is not liable if he takes no steps to prevent the harm. Where the burden of prevention is < the probability and magnitude of the harm, the D IS liable if he takes no steps to prevent the harm.
Learned Hand Risk Utility Rule - breach
if B < PL, defendant is negligent. B is burden of prevention of harm. PL is probability of harm multiplied by magnitude of harmwhere the burden of prevention is > the probability and magnitude of the harm, the D is not liable if he takes no steps to prevent the harm. Where the burden of prevention is < the probability and magnitude of the harm, the D IS liable if he takes no steps to prevent the harm.
Proximate Causation
legal theory that extends or limits liability based on intervening causes and foreseeable harm to plaintiffs. The P must convince us that liability is fair and not unduly attenuated. Is there any reason the defendant should be relieved of liability? look for thin skulled P.
An Independent Intervening Superseding Cause
a separate act or omission that breaks the chain of causation between the defendants actions and an injury to another person, that relieves the defendant of liability for that injury. Where there is an intervening act by a 3rd party, the D remains liable unless both the intervening act and the resulting harm are unforeseeable. A thin skulled P is NOT unforeseeable… and will not relieve liability.
Damages
the D always takes the P as he finds him. “P was harmed”general damages: non-economic; pain and suffering, emotional distress…Special Damages: measureable economic; lost wages, medical bills…Punitive damages:NOT recoverable for negligence. Only can recover for intentional torts and reckless or wanton conduct.P has a duty to mitigate damages and cannot recover for harm which P reasonably could have avoided. Payments received from a collateral source does NOT offset Ps recovery.
Contributory Negligence - defense
affirmative defense: modernly, in a minority of jurisdictions, where a Ps negligent conduct contributes to Ps injuries, Ps recovery is completely barred. Defense not available for intentional, willful and wanton conduct, or negligence per se.
Breach of Negligence Per Se
the violation of statute may establish breach of duty of care as discussed above.
Assumption of Risk - defense
affirmative defense: a party assumes the risk if he knowingly undertakes an activity with full knowledge of the risk. Is a total bar to recovery.
Last Clear Chance - comparative negligence exception
even after contributory negligence by the P, if the D had a last clear chance to avoid the accident and because the D did not take that chance, P should be relieved of the consequences of his earlier contributory negligence.
Comparative Negligence - defense
affirmative defense: when a P is a contributing cause of Ps injury, Ps recovery is reduced in proportion to Ps fault. Pure vs. modified. Pure: here P always recovers something. Modified: Ps fault < 50% reduces recovery. Ps fault > 50% absolute bar.
Strict Liability
an act or failure to act which breaches an absolute duty of care to make safe to another resulting in injury to others person or property.
Animals Strict Liability
SL for damages done by trespass or harm done to persons or property by wild animals. Activity is not common for people to keep wild animals. NO SL for domestic animals unless D aware of dangerous propensities.
