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64 Cards in this Set

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What are the common law elements for the tort of Trespass to Chattel?
1. one, without privilege
2. uses or intermeddles with a chattel
3. which is in possession of another is liable for a trespass if
4. the chattel is impaired
5. or possessor is deprived of use
6. or harm is caused to something in which the possessor has a legal interest.
What are the common law elements for the tort of Conversion?
1. Intentional
2. exercise of dominion or control over a chattel
3.which so seriously interferes with the right of another to control it that the actor ay justly be required to pay the other the full value of the chattel.
What are some of the factors used in analyzing the tort of conversion?
- duration
- intent
- good faith
- extent of interference
- harm done
- inconvenience caused
What are the common law elements for the tort of Trespass to Land?
1. Unauthorized
2. Entry
3. Into the land
4. of another
at common law, did social usefulness or benefit to P affect liability for trespass to land?
No
At common law, did D having a good faith belief he was allowed to be on the land affect his liability for the tort of trespass to land?
No.
At common law, was EVERY unauthorized entry a trespass
Yes.
at common law, for trespass to land, does entry have to be "human"?
No. (pollution, gunshot)
at common law, is the tort of trespass to land applicable ONLY to land?
No, air above and ground below as well.
Can trespass ever occur when someone is an invited, authorized guest on the land?
Yes. If they overstay their welcome, stray from the authorized space or purpose, or leave something behind after consent is terminated.
At common law, for trespass to land, was there a requirement of damages?
No. Modern courts have added this requirement
What are the elements of the tort of Inentional Infliction of Emotional Distress?
1. Intentional
2. causing of severe
3. emotional distress
4. to another without privilege.
For distress to qualify as being severe for IIED to what level must it be?
Extreme and outrageous.
True or False, for IIED, the intention must be to act, not necessarily to do harm...
False, the intention must be to do harm.
What are the elements of the common law tort of False Imprisonment?
1. The direct restraint
2. of the physical liberty of another
3. without legal justification
in False Imprisonment, is a means of escape that will cause injury an effective possibility?
No.
In False Imprisonment, If P is injured while trying to escape, can P recover damages for THAT injury?
No.
In False Imprisonment, The element of "legal justification" effectively means what?
Not Privileged
In order for there to be False Imprisonment, must the P be aware of the restraint?
Yes.
What are the common law elements of the tort of assault?
1. Intentional
2. Unlawful
3. attempted touching of the person of another
4. in a rude or angry manner
5. so as to create in the mind of the victim a well founded fear
6. of an imminent battery
7. with apparent present ability to carry it out.
For assault, must "impossibility" of the subsequent battery be aparent to the P?
Yes.
For assault, even if the battery IS impossible, does that necessarily matter?
No, if the P reasonably believes, subjectively, that the D has the ability to carry the battery out.
For assault, does the possession of a weapon affect the required elements in any way?
Yes, weapons extend the ability to touch. So they increase the possibility of a battery occuring even if there is distance seperating P and D.
Can an assault occur on an unconsious or sleeping person?
No, the victim MUST be aware and cognizant of the situation.
Can words alone be sufficient to create a cause of action for assault?
No.
What are the common law elements of battery?
1. Intentional infliction
2. of a harmful
3. unauthorized
4. bodily contact
5. upon another.
Does battery have to be the physical touching of one persons body upon another?
No. (D blowing smoke at P, D hitting something in P's hand, D hitting P with a weapon)
Does the intent requirement for Battery require intent to do harm?
No, the intent required is just the intent to touch (rudely).
Is there a battery if someone intends to strike person A but instead strikes person B?
Yes, intent is established when D intends to strike A for his subsequent striking of any other person, albeit accidental.
When the requisite standard of care is found in statute, what is the test to determine if it applies in a situation at hand?
3 question test:
1. is P in the class of people that the statute was intended to protect? (class)
2. Is P harmed in the way that the legislature intended to protect against? (harm)
3. Did D's violation of the statutory standard or care subsequently cause the damages to P? (causation)
What is the standard of care for a professional?
The knowledge, ability, and competence of an ordinary member of the profession in good standing.
How must the standard of care for a professional be shown?
By expert testimony
For the Standard of care for a professional, can negligence be assumed by an unsuccessful result?
No.
True or False. For the standard of care for a professional, the expert witness must show that he would have done something different?
False, the expert witness must show that D breached the standard of care for the profession.
In considering the standard of care, is D's ignorance an issue?
Maybe, if an ordinary person knew or should have known the standard, then Ds ignorance is irrelevent. If an ordinary person did not know or should not be expected to know, then ignorance IS relevent.
Is the standard or care for a reasonably prudent person affected by an emergency situation?
Yes.
Can a person still be negligent in an emergency situation?
Yes, if he does something negligently that a reasonably prudent person would not have done under the same or similar circumstances.
What is the standard of care of a child engaging in childhood activities?
That of a reasonably prudent child of the same age.
What is the standard of care of a child engaging in inherently dangerous activities?
The child is held to an adult standard of care.
What are the common law elements of Negligence?
1. Duty to use reasonable care
2. Breach of the duty by D
3. Causation between conduct and injury
4. Damage or loss resulting to another.
Can negligence result from passive conduct?
Yes, failing to do something that is a breach of the duty to use reasonable care.
For Negligence, must the causation between the actions of D and the damages to P be foreseable?
Yes, they must be reasonably foreseable.
What is the most difficult element of negligence to prove?
Causation
What are the privileges against a tort action we covered in class?
1. Consent
2. Self Defense
3. Defense of property
4. Recovery of property
5. Necessity
6. Discipline
7. Justification
What is the nature of the privilege of consent?
If P consents to allow D to do something, D cannot be held liable.
What are the limitations to the privilege of consent?
1. Ds actions must be the acts P has consented to.
2. D still must act with due care.
For the privilege of consent, the consent must be express. True or False?
False, consent can be expressed or implied.
What is the extent to which the privilege of Self-Defense applies
The reasonable force required to defend against a threatened battery.
Does self defense apply when there is no threat of an imminent battery?
No, The privilege is against threatened battery, when there's no threat of battery there can be no privilege
For the privilege of self defense to apply, must D have a reasonable belief that force is necessary for his protection?
Yes
What provocation is required for the privilege of self defense to be applicable?
An impending battery, something more than just words.
In the privilege of self defense, what is the allowable amount of force limited to?
that which appears reasonably necessary for protection.
True or False, D must retreat whenever safely possible in the privilege of self defense.
Depends on jurisdiction, but generally True.
For the privilege of defense of property may deadly force be used?
Generally no. Allowed only in situations where the intrusion threatens death.
Is the privilege of defense of property applicable toward lawful entry?
no, limited to unlawful entry only.
For the privilege of recovery of property, does D have a right to retake property if it requires disturbing the peace?
No, D has the right to retake property, fraudulently obtained from them, if it could e done without unnecessary violence to the person or without breach of the peace.
Is the force used in the privilege of recovery of property limited in any way?
Yes, it's limited to force reasonable under the circumstances.
Can a merchant, under the privilege of recovery of property, detain a person whom he thinks has stolen a chattel?
Yes. if his belief is reasonable.
What is the definition of the privilege of Necessity and how does it apply?
A person may, acting in good faith and under apparent necessity, destroy personal property of another without being liable to the owner for property destroyed.
True or False, the privilege of necesity applies only to public officials?
False.
What is the defeinition for the privilege of Justification,
A defense applicable if D has a duty to protect the public or property.
What is the definition of the privilege of Discipline?
D is given privilege of exercising reasonable force and restraint upon those how they have legal control over.
Can the privilege of Discipline be extended beyond parents?
Yes, Teachers.
What factors are involved in determining if actions of D are privileged under the privilege of Discipline?
- Age of child
- Sex of child
- condition of child
- nature and motive of act
- example to other children
-force necessary to compel obedience
- acts disproportionate to offense