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40 Cards in this Set
- Front
- Back
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Four important implications of intentional torts
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Worker's comp immunity
Scope of liability (extends to unintended consequences) Proof Damage calculation |
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Intent
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Depends on the actor's subjective state of mind
When the offender either desires the consequences of his act or knew that the consequences were reasonably certain to result from his act |
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Transfer of intent
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From person to person
From tort to tort (between battery, assault, and false imprisonment; maybe between trespass, trespass to chattel, and conversion) |
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Elements of battery
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Intent to contact (purpose or substantial certainty of causing contact that is harmful or offensive)
Contact (touching of π's person or something closely connected with π) Harm or offense (to a person of ordinary sensibilities) |
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Elements of assault
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Intent (purpose or substantial certainty of causing reasonable apprehension of an imminent battery or transferred intent) to create
A reasonable apprehension of an imminent battery Apparent ability/means to complete the battery |
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Elements of false imprisonment
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Intent (purpose or substantial certainty of confinement or transferred intent)
Actual confinement |
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Elements of IIED
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Specific intent (desire to inflict severe emotional distress or have been substantially certain that severe emotional distress would occur) (must be to that specific person; can't have transferred intent for IIED)
Extreme and outrageous behavior (intolerable to reasonable members of society) Causation of severe emotional distress Severe emotional distress Prescription doesn't begin running until the last act |
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Elements of trespass to land
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Intent (purpose or substantial certainty to enter property of another; need not know property belongs to another) (knowledge of actual entrance is irrelevant)
Physical entrance |
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Trespass to chattel AND Conversion
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Intent to enter onto the land of another (to interfere with the owner's dominion or use and enjoyment of chattel)
Interference (substantial dominion or damage) Damages Trespass to chattel - you pay for the use Conversion - at some point the line is crossed into conversion, so we make you buy it |
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Elements of intentional interference with contractual relationship
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A contract between the plaintiff and a third party
Defendant's knowledge of the contract ∆'s Intentional interference with contract Causation of damages by breach of contract NOTE: no negligent interference with contract |
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Elements of defamation
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(1) A false and defamatory statement (not opinion) concerning another
(2) An unprivileged publication to a third party (3) Fault (negligence or greater) (4) Resulting injury (to reputation) Truth is an absolute bar to defamation |
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What else must public officials and public figures prove in a defamation action?
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actual malice (knowledge of the falsity or reckless disregard concerning the truth or falsity)
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What is the standard of proof in a defamation action brought by a private plaintiff over a matter of public concern?
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Clear and convincing
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What is the standard of proof in a defamation act brought by a private plaintiff over a matter of private concern?
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Preponderance of the evidence
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Four branches of invasion of privacy
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(1) Intrusion upon solitude or seclusion
(2) Appropriation of name or likeness (3) Publicity given to/public disclosure of private life and private facts (4) Publicity placing person in a false light |
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Elements of intrusion on seclusion
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(1) Intentional intrusion (physical or otherwise)
(2) Upon seclusion, solitude, or private affairs (person must have reasonable expectation of privacy) (3) Highly offensive to a reasonable person |
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Elements of appropriation of name or likeness
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(1) Appropriation by the defendant
(2) To his benefit (3) of the plaintiff's name or likeness (4) Without consent, and (5) Causing actual damages |
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Elements of publicity given to private life or private facts
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(1) Publicity to public (not just one person)
(2) About private life (3) Highly offensive and not of reasonable importance to the public |
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Elements of false light
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A person's name or picture makes it appear as though the person has consented to endorse the product, with or without being paid to do so. When the impression is false in fact, the appropriation of the person's identity places the person in a false light. (Johnny Carson case)
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Elements of malicious prosecution
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(1) An original criminal or civil judicial proceeding
(2) With the plaintiff in the malicious prosecution action as the defendant in the original proceeding (3) Original case terminates in favor of the original defendant (malicious prosecution plaintiff) (4) The absence of probable cause for such a proceeding (this satisfies the malice requirement), and (5) Damages to the original defendant/MC plaintiff |
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Elements of abuse of process
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(1) An ulterior purpose
(2) A willful act in the use of the process that is not proper in the regular conduct of the proceeding |
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What are some general defenses and privileges to intentional torts?
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Consent (express or implied)
Invalid if obtained via fraud, duress, or misrepresentation Self-defense Upon reasonable grounds to believe that it is necessary Defense of others Justifiable to the same extent that the person would defend themself Arrest and detention By officers and storeowners (privilege for up to 60 mins upon reasonable belief of theft) Defense of property and recapture of chattels Can use reasonable force to recapture Use of deadly force Upon necessity Public necessity (taking) and private necessity (trespass) |
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Negligence elements
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(1) Cause in fact
But-for test; or Substantial factor test (2) Duty/risk (traditional duty; scope of the duty) a) Traditional duty/reasonable person test b) Scope of the duty/scope of the risk test (proximate cause) - questions of foreseeability) (3) Breach of the duty (4) Injury |
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Causation is the first element of negligence. What are the two standards for causation?
(Apply both on the exam!) |
(1) but-for causation
But for the allegedly-negligent conduct, would the harm have occurred? (2) substantial factor causation Was the alleged negligence a substantial factor in the π's injury? |
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Duty is an element of negligence. What are the tests to determine duty?
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(1) Reasonable person standard (under like circumstances) (the objective, general standard)
(2) Scope of the risk/duty - did the scope of the risk encompass this plaintiff being harmed in this manner? (was the injured person in the class of persons to whom the duty to protect from harm should have covered? Other tests include: negligence per se (violation of a statute), custom (normal practices), and res ipsa loquitur (the thing speaks for itself - we've eliminated other causes, so we infer negligence in the absence of direct evidence) |
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Scope of the duty (aka scope of the risk) is a special part of the duty element of negligence. What are the factors to consider when determining the scope of the duty?
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(a) Foreseeable risk / foreseeable plaintiff
Reasonably foreseeable π, and that generally harm is reasonably foreseeable (b) Ease of association (c) Superseding and intervening cause (d) Policy considerations (Pitre) |
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What are the Pitre policy factors for determining the scope of the duty (aka scope of the risk)?
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(a) the need for compensation of losses
(b) the historical development of precedents (c) the moral aspect of the defendant's conduct (d) the efficient administration of the law (e) deterrence of future harmful conduct (f) capacity to bear or distribute losses |
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Breach of the duty
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A ∆ breaches his duty when his conduct falls below the standard of care (and has created an unreasonable risk of harm).
This happens (under risk-utility balancing) when the burden of precaution is less than the loss times the probability |
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Actual (compensable) injury is an element of negligence. How might one show this injury?
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(a) simply proving actual damage to person or property
(b) lost chance (only in med mal) (c) fear of disease after being exposed to the disease (fear must be real and severe) |
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Elements of a slip and fall action (a specific negligence action)
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(1) the condition presented an unreasonable risk of harm
(2) the harm was reasonably foreseeable (3) prior to the harm, the merchant either created or had actual or constructive notice of the condition that caused the harm (constructive notice of condition existed for such a time that it would have been discovered if merchant had used reasonable care) (4) the merchant failed to exercise reasonable care (the absence of a written or verbal uniform cleanup or safety procedure is by itself insufficient) |
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Negligent infliction of emotional distress (NIED)
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Victim of tort can recover NIED; or
NIED when the conduct is directed at a third person (Lejuene Damages) π views accident or comes upon the scene shortly thereafter Direct victim suffers such harm that π's distress is reasonably expected Distress suffered is severe π falls within the listed claimants Causation (between negligent act and the distress) |
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What are the Coleman v. Deno factors for determining whether an alleged wrong is medical malpractice?
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(1) Was the wrong "treatment related" or caused by a dereliction of professional skill?
(2) Does the wrong require expert medical evidence to determine breach? (3) Did the wrong involve an assessment of the patient's condition? (4) Was there a patient-physician relationship? (5) Would the injury have occurred if the patient had not sought treatment? AND (6) Is the alleged tort an intentional tort? |
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What special med mal rules apply when the defendant is a qualified health care provider?
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(1) FOR QHCP's ONLY: No suit can be filed until the claim has been processed by a medical review panel.
(2) The review panel issues an opinion on whether the evidence shows that the defendant failed to act with the appropriate standard of care (3) Prescription is suspended while the claim is under consideration (4) Liability is capped at $100K per individual provider, with a maximum cap of $500K (paid out of Patient Compensation Fund). (except for future medicals) |
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Medical Malpractice requirements
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1. Standard of care
Same (QHCP standard)/similar (non-QHCPs) locality 2. Malpractice defined 3. FOR QHCP's ONLY: Damages cap $500,000 4. FOR QHCP's ONLY: Medical Review Panel pre-litigation 5. Informed consent 6. "lost chance" of survival allowed 7. Prescription 1 year from the date of the incident 3 years on discovery |
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Informed consent requirement
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Medical hybrid between battery and negligence. Requires:
1. Disclosure of all material risks 2. Material risks = risks a reasonable person would consider significant 3. Uniform consent law - panels establish which risks must be disclosed to the patient - creates a rebuttable presumption of consent |
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Med mal prescription
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1 year from the
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Attorney malpractice
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Standard = a licensed attorney in the same/similar community (not locality!)
Burden-shifting rule: When a plaintiff has met his burden, the burden flips to the ∆ attorney to show that but-for his negligence, the plaintiff would still not have prevailed in his original suit 3 year absolute bar via peremptive period |
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Providers of alcohol
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Not liable for offsite injuries unless the drinker is a minor
Social hosts have same rule unless drinker is a minor |
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Strict liability
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Owners of things are strictly liable for things causing damage where:
1. The owner had actual or constructive knowledge of the ruin, vice, or defect of the thing, 2. The damage could have been prevented by reasonable care; and 3. ∆ failed to exercise reasonable care Landlord can contract around this expressly shifting the burden of liability |
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Parents-Children
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Parents are solidarily liable for the acts of their minor children.
Solidary liability + master-servant doctrine §3230 |
