• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/114

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

114 Cards in this Set

  • Front
  • Back
Assault - Rule
An intentional act which causes plaintiff to experience a reasonable apprehension of an immediate harm or offensive act.
Assault - Apprehension
P must have been aware of threatening act at the time or before it terminated.
Assault -
Harmful or Offensive
Contact
This element is satisfied if the contact threatened would inflict pain or impairment of any body function (harmful) or if a reasonable person would regard it as offensive.
Assault -
Reasonable
Apprehension
Liability for assault will not be found unless a reasonable person in the same position as plaintiff would have experienced the same apprehension. However, if plaintiff’s apprehension is reasonable, the fact that defendant lacked the actual ability to cause the harmful or offensive contact does not defeat liability.
Battery -
Intentional Act
Defendant must act with intent either (1) to cause an immediate harmful or offensive contact, or (2) to cause immediate apprehension of such a contact.
Assault -
Intentional Act
Defendant must act with intent to cause (1) an immediate harmful or offensive contact or (2) the immediate apprehension of such a contact.
Battery - Rule
An intentional act which causes plaintiff a harmful or offensive contact.
Battery - Awareness
P need not be aware of the contact.
Battery - Harm
No intended harm is necessary only the intended contact.
Battery -
Harmful or Offensive
Contact
This element is satisfied if the contact would inflict pain or impairment of any body function (harmful), or if a reasonable person would regard it as offensive.
§ 3.2(A) “Close” Contact: It is sufficient for a battery if defendant causes a contact with something close to plaintiff, as where defendant snatches a hat from plaintiff’s hand, or pounds on a car in which plaintiff is sitting.
§ 3.2(B) Plaintiff Not Aware:
Unlike assault, plaintiff need not be aware of the contact.
False Imprisonment - Rule
An intentional act which causes plaintiff to be confined or restrained to a bounded area.
False Imprisonment - Intent
Merely intent to confine; mistake is not excuse, nor is good faith belief that the confinement is justified.
False Imprisonment - Confinement
When P is prevented from leaving areas predetermined by D; must be complete; must be not reasonable means of escape/safe exit known to P.
False Imprisonment -
Shoppeker's Rule
Shopkeeper may have privilege to detain persons suspected of shoplifting for a reasonable time (for the purpose of conducting an investigation).
False Imprisonment -
Confinement,
Resistance/Escape,
Plaintiff Not Aware
§ 4.2 Confined or Restrained to a Bounded Area: Plaintiff may be confined by the use of physical barriers (e.g., locking plaintiff in a room), by failing to release plaintiff where defendant has a legal duty to do so and where plaintiff cannot escape without defendant’s assistance, or by the invalid assertion of legal authority. No duration of confinement is required—a single moment of confinement will suffice.
§ 4.2(A) Resistance or Escape
Plaintiff is under no duty to resist if the defendant uses or threatens to use physical force (and the threat appears credible). A plaintiff is not “confined” if there is a reasonable means of escape of which she is actually aware.
§ 4.2(B) Plaintiff Not Aware
In general, plaintiff must be aware of the confinement or she must suffer actual harm as a result of confinement. Some cases have held that infants or incompetents who are incapable of being aware of their confinement can nevertheless recover for false imprisonment.
IIED - Conduct of D
Extreme, outrageous, and intolerable conduct with the intent to cause severe mental distress.
IIED - Response
Mental suffering need not have physical manifestation or result in bodily harm. Distress must be severe (not mere unhappiness, mild despondency, long term).
IIED - Third Persons
Conduct dircted at a third person (T) is actionalbe by P if act of D intentionally or recklessly caused severe emotional distress to P (witness of harm to immediate family, witness of harm manifests into bodily/physical harm, mishandling of corpse).
IIED - Cause
Liability only atttaches to the extent that P's emotional response is within the bounds of normal human reactions (unless P extraordinarily sensitive) to conduct by D.
IIED -
Intentional Act
Defendant must act with intent to cause severe mental distress (but see recklessness).
IIED -
Recklessness
Commentators agree that recovery for infliction of emotional distress should be allowed where defendant acts “recklessly,” meaning that defendant acts in deliberate disregard of a high degree of probability that the emotional distress will follow. (This is contrary to the general notion that reckless conduct is somehow “less wrongful” than intentional conduct, and should probably be considered an exception limited to this tort.)
IIED -
Extreme & Outrageous
Conduct
This element is satisfied if defendant’s conduct is beyond the bounds of decency—conduct
that a civilized society will not tolerate. Offensive or insulting language is generally not
considered outrageous (except in cases involving defendants who are common carriers or innkeepers, or as to plaintiffs with known sensitivity such as the elderly, children, or pregnant women).
IIED -
Severe Emotional Distress
Plaintiff must prove that the distress suffered was severe—more than the level of mental distress a reasonable person could be expected to endure. The more outrageous the defendant’s conduct, the easier it will be for plaintiff to establish the requisite mental injury.
§ 5.3(A) No Need for Physical Injury
Most states no longer require the plaintiff to show that actual physical injury accompanied the severe emotional distress.
Offensive Contact
Contact which offends a resonable sense of personal dignity (hostile, insulting, loathsome, or unduly personal).
IIED -
Conduct Directed
at a Third Person
Where defendant’s conduct is directed at a third person, plaintiff may recover (assuming other elements of the tort are satisfied) if (1) plaintiff is present when defendant’s wrongful conduct occurs, and (2) defendant is aware of plaintiff’s presence.
§ 5.4(A) Relationship of Plaintiff to Third Person Cases which permitted plaintiffs to recover for infliction of emotional distress arising from defendant’s wrongful conduct to third persons involved plaintiffs who were near relatives or close associates of the person attacked. The commentators suggest that there is no logical reason to limit the principle in that manner, and that a stranger/plaintiff should be permitted to recover, at least where that plaintiff suffers bodily harm (which provides strong evidence of the bona fides of plaintiff’s claim of severe emotional distress).
Defenses to Intentional Torts
1. Privilege,
2. Consent,
3. Self-Defense,
4. Defense of Others,
5.Defense and Recovery of Property,
6. Necessity,
7. Authority of Law, and
8. Discipline
Defenses - Privilege
1. Consent,
2. Privilege created by law irrespective of consent,
3. Mistake - belief that D has privilege to use property
Defense - Consent through Conduct
P willing for D's conduct to occur. Consent is apparent if P's words or conduct are sufficient to create privilege (even if contrary to P's actual state of mind). Prior custom / usage may exist based on prior relationship.
Consent - Capacity
Consent my only be given by one having the capacity or by an authorized representative. Infancy, mental incapacity, intoxication my negate consent.
Consent - Scope
Privilege is limited to the conduct consented to or acts substantially similar. Once consent is give, P may not complain of the consequences of D's conduct, even if unseen.
Consent -
Mistake / Ignorance / Misrepresentation
Consent given pursuant to P's material mistake, misunderstanding or ignorance as to the nature or character of D's proposed conduct or the extent of the harm to be expected from it. Consent is effective unless D knows of the mistake or induced by his misrepresentation.
Consent - Informed
If D misrepresented or failed to disclose to P the material risks and possible consequences of his conduct, P's consent is not informed.
Consent - Duress
Consent given under duress (threats of immediate harm - directed at P or P's family; valuable property) is not effective.
Consent to Crime
Majority View - consent not effective if the conduct consented is to a crime.

Restatement View - consent to criminal conduct is valid unless in violation of a statute making conduct criminal to protect a class of persons irrespective of their consent.
Self-Defense
Privilege to us so much force as reasonably appears to be immediately necssary to protect self against imminent physical harm threatened by the intentional or negligent conduct of another. Use of deadly force may be reasonable if D believes danger of similar harm; not required to retreat or escape. Privilege exists even when D but mistakenly believes self defense is necessary.
Defense of 3rd Person
Privilege exists if D comes to the defense of another person under the same conditions and by the same means as D would if defending self. Duty to protect ones land or chattel or another person.
Defense of Property
D has privilege to use reasonable force to expel another or a chattel from their land, or to prevent the imminent intrusion of another upon interference with his land or chattel.
Defense of Property - Request
P must first request D to desist, unless it appears that request would be useless or cannot be made before substantial harm is done.
Defense of Property - Amount of Force
Amount of force must not exceed the actual or threat of force to prevent or terminate the intrusion. Great physical harm or deadly force is not privileged.
Defense of Property - Traps
Vicious animals, spring guns, concealed traps and mechanical devices are not privileged.
Defense of Property - Mistake
D has no privilege to defend propety even though D mistakenly believed the intruder had no privilege to enter property, unless intruder mistake does not defeat D's privilege.
Negligence -
Liability Rules:
Cause of Action
1. Duty to act or refrain from acting,
2. breach of failure to confirm conduct to required standard,
3. sufficient causal connection between the negligent conduct and injury result, and
4. actual / provable harm the law says is measurable and compensable in monetary damages.
Characteristics
of Negligence -
Definition
The conduct which falls below the standard established for the protection of others against unreasonable risk of harm.
Negligence - Proximate Cause
The harm must be w/n the scope of liability. Not an element of tort but liability limitation that ceases recovery, even when tort elements are established.
Negligence - Required Care
Ordinary / due care of a reasonably prudent person under same or similar circumstances.
Negligence - Reasonable Person
1. Knowledge, Experience, and Perception;
2. Knowledge Common to the Cmty;
3. Activities Requiring Skill;
4. Physicians;
5. Physical Characteristic;
6. Mental Capacity; and
7. Minors.
Negligence - Reasonable Person:
Knowledge, Experience and Perception
Judgement of D's conduct will be based on what D actually knew and observed, what a reasonable person would have known or perceived. Person of superior intellegence / memory perception / knowledge / judgment will be held to standard of such a person.
Negligence - Reasonable Person:
Knowledge Common to Cmty
Reasonable person knowledge of things which are common knowledge in the community - commonly known qualities, habits, and characteristics of human beings, animals, and things.
Negligence - Reasonable Person:
Physicians
The standard of medical care established by the customary practice of a reasonably, well-qualified practitioner in that field. Specialist are held to standards customary to their field.
Negligence - Reasonable Person:
Physical Characteristics
The physical deficiency or disability used to measure D's conduct against that of a reasonably prudent person with his physical characteristics.
Negligence - Reasonable Person:
Mental Capacity
Conduct measured against the reasonably prudent sane, sober and normal person.
Negligence - Reasonable Person:
Minors
Measure against a reasonable conduct of a child of D's age, intelligence, and experience under similar circumstances - except when child is involved in adult activities requiring special skill and training or a young child incapable b/c lack of mental maturity / experience to assess and respond to risks.
Negligence - Conduct in Emergencies
May factor in the reasonableness of choice of action when faced with emergency requiring rapid decision. May have been negligent in failing to anticipate the emergency or creating the emergency itself - thus emergency would not apply.
Negligence - Sudden Incapacity
Negligent if D ought to have foreseen an incapacity and failed to take reasonable precautions to prevent the act.
Negligence -
Anticipating Acts of Others
Regulation of one's conduct measured in light one can anticipate others will do, as a reasonable person (under similar / same circumstances).
Negligence -
Failure to Warn
If there is unreasonable risk of harm inherent in D's conduct, D must reduce that risk so far as reasonable possible to exercise reasonable care (adequate warning of the remaining risk)
Negligence -
Unreasonable Risk
Risk is unreasonable when the foreseeable probability and gravity of harm outweigh the burden to D of alternative conduct that would have prevented the harm.
Negligence -
Magnitude of Risk
Likelihood that the harm will result in conjunction with the gravity/seriousness of the potential harm. Includes both the extent of damage and the relative societal value of the protected interest.
Negligence -
Burden of
Alternative Conduct
The burden of reducing/eliminating the risk by alternative conduct. Factors include importance/societal value; utility of the conduct as means to that end; feasibility of alternative/safer conduct; relative cost of safer conduct; relative utility of safer conduct; and relative safety of alternative conduct.
(Learned) Hand Test
Balance for determining whether the conduct creates and unreasonable risk of harm.

B > PL
The burden (B) and utility of the conduct compared to alternative safer conduct must be greater than the probability (P) that harm will result from the proposed conduct multiplied by the gravity of the harm/loss (L) that will probably result
Proof of Negligence -
Burden of Proof
P must introduce sufficient evidence to support a finding by a perponderance of the evidence on each element of cause of action.
Res Ipsa Loquitur
The thing speaks for itself.

Rule of circumstantial evidence in which P can make out a prima facia case of D's negligence by proving that the instrumental cause of P's injury was under the control of D and the occurrence would not have happened in he absence of negligence by D.
Prima Facie
Evidence sufficient to make a submissible case (sufficient to support a jury's finding) on each element of a cause of action or defense.
Product Liability
P need not prove the specific defect in the product, so long as the evidence tends to show thta the product malfunctioned in such a way that the existence of a defect may be inferred and also tends to exclude possible causes other than product defect.
Duty
The defendant must owe a legal duty to the victim. A duty is a legally enforceable obligation to conform to a particular standard of conduct. Except in malpractice and strict liability cases, the duty is set by what a "reasonable man of ordinary prudence" would have done. There is a general duty to prevent foreseeable injury to a victim.
Causation
The breach was the cause of an injury to the victim. The causation does not need to be direct: defendant's act (or failure to act) could begin a continuous sequence of events that ended in plaintiff's injury, a so-called "proximate cause."
Injury
There must be an injury. In most cases, there must be a physical or financial injury to the victim, but sometimes emotional distress, embarrassment, or dignitary harms are adequate for recovery.
Negligence -
Degrees of
Care
The duty of those who conduct certain dangerous activities is sometimes stated as greater than "ordinary" or "reasonable" care.
Negligence -
Common Carrier Duty
of Care
Common carriers are said to owe their passengers "the highest degree of care consistent with the ode of conveyance used and the practical operation of their business.
Negligence -
Recklessness Definition
Reckless disregard of the safety of another (i.e., wilful and wonton misconduct) when D knows or has reason to know that:
1. acts of D create an unreasonable risk of harm and
2. the risk is relatively high, either in degree or in the probability that harm will occur. Distinguished from negligent conduct D must be conscious that it creates a relatively high risk of harm to another.
Negligence -
Duty and Relationship
D has duty to exercise reasonable care to avoid subjecting others and their property to unreasonable risks of physical harm. Negligence law has traditionally held that D is not subject to liability to P unless D breached a duty owed to P and not someone else.
Negligence -
Nature and Scope
of Risk
Conduct may be negligent because it foreseeably threatens property damage but not personal injury, or may foresee one type of harm to P but it actually causes another type of harm as to which the risk was not unreasonable.
Negligence - Nonfeasance
in action which results in, or allows, harm to P.
Negligence - Relationships
Creating Duty
Per-exising relationships which support duty to aid or protect another include carrier-passenger, inkeeper-guest, landowner-lawful entrant, emlpoyee-employer, jailer-prisoner, school-student, parent-child, store-customer, husband-wife, host-guest.
Negligence -
Responsible for
Peril or Injury
Duty arises when D is responsible for P's injury or position of peril, whether or not D was negligent.
Negligence -
Aid to Helpless
One who undertakes to render aid or protect P, who is helpless and adequately aid or protect himself must do so with reasonable care. Having undertaken the duty, D may not abandon P or leave him worse off.
Negligence -
Duty Arising
Ex Post Facto
If D does an act, not tortious a the time and later discovers that his act creates an unreasonable risk of harm to P, D must exercise reasonable care to prevent the risk form taking effect.
Negligence -
Statutory Duty
of Protection
When a statute requires one to act for the protection of another, the court may (or may not) use the statute as a basis for an affirmative duty and its scope.
Negligence -
Duty to Control
Conduct of Another
Certain relationsips carry with them a duty by D the dominant/custodial member, to use reasonable care to regulate the conduct of:
1. the person with in his custody or control so as to protect third persons or
2. third persons so as to protect the person in his custody or care.
Negligence -
Parent to Child
Parent must exercise reasonable care to prevent tortious conduct by his child provided the parent knows or has reason to know he has the ability and knows or should know of the necessity and opportunity to exercise such control.
Negligence Defenses
Contributory & Comparative
Rule
Contributory negligence is conduct by P which creates an unreasonable risk of harm to P, and which combines with D's negligence to cause P's injury. Generally, contributory negligence uses the same rules and tests as negligence.
Negligence Defenses
Contributory & Comparative
Effect of Plaintiff's
Contributory Fault
Contributory negligence was once a complete defense that totally barred Ps recovery. Now in most jurisdiction, it merely reduces his damages pro tanto, although it can still be a complete bar.
Negligence Defenses
Contributory & Comparative
Comparative
Minority Rule - P may recover a portion of his damages no matter how great P's negligence in comparison to that of D.
Majority - P recovers nothing if P's negligence was as great as or greater than D.
Negligence Defenses
Contributory & Comparative
Assigning Shares
1. the duty owed by each person,
2. extent to which each person's conduct deviated from that duty, &
3. extent to which the tortious conduct of each person caused the injury in question.
Negligence Defenses
Contributory & Comparative
Intentional or Reckless
Conduct
Majorty - P's contributory negligence will reduce P's recovery even though D's conduct was reckless but not if it was intentional.
Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
EXCEPTION - Joint Enterprise
P is injured by the concurrent negligence of D, a 3rd person outside the enterprise, and another member (M) of the enterprise. Ps recovery against D is reduced by M's negligence.
Negligence Defenses
Contributory & Comparative
Assumption of Risk
Common Law-If P voluntarily assumes a risk of harm arising from negligent/reckless conduct of D, P cannot recover.
Negligence Defenses
IMPLIED Assumption of Risk
RULE
Rule - If P knows, appreciates and understands the risk of harm created by D's negligent/reckless conduct, and subjects himself to the risk by conduct which impliedly manifest his consent to accept the risk, then D is subject to the assumption of risk defense.
Negligence Defenses
IMPLIED Assumption of Risk
ELEMENTS
Manifestation of Consent - consent to accept the risk, and therefore P's conduct must impliedly manifest that consent.
Knowledge & Appreciation of Risk - Consent must be an informed one, and therefore D must show that P knew of the existence of the risk, and understood and appreciated its unreasonable character.
Voluntariness - P's assumption of the risk must be voluntary
Violation of Statute - P's assumption of risk bars/reduces P's recovery based on D's violation of a statute, unless this result would defeat a policy of the Statute.

Modern views towards movement to abolish this as negligence defense as it overlaps completely with the doctrine of contributory negligence. Those who participate in professional/amateur sporting events assume the risk of injuries resulting from other players' misconduct
Negligence Defenses
STATUES OF LIMITATIONS
P must file timely. Statute of limitations (SOL) is usually an affirmative defense that is waived if not asserted. SOL usually begins the date the cause of action accrues/date on which the injury occurs/death.
Negligence Defenses
STATUTES OF REPOSE
Supplement and override statutes of limitations, the discovery rule and other similar rules and exceptions. Instead an outer limit beyond which D can no longer be held responsible for a completed activity, irrespective of whether an injury has occurred.
Negligence Defenses

Immunities - Gov Employee
Tort liability for US Gov employees acing within the scope of office where the US (as if private person) would be liable to plaintiff
Negligence Defenses

Immunities - Charities
Not Defense:
Charitable, educational, religious and benevolent organization only exists in few jurisdiction.
Negligence Defenses

Immunities -
Spouse/Parent/Child
Not Defense:
Based on relationship; generally not a defense.
Causation

Proximate Cause - RULE
Legal Cause / Scope of Liability
Liability of Defendant is limited to persons and consequences that bear some reasonable relationship to Defendants tortious conduct.

Unforseeable Consequence MAJORITY: Defendant's liability is limited to 1-the forseeability of D's tortious conduct and 2-persons within that foreseeable zone of danger.
Causation

Cause in Fact - RULE
Defendant's liability is limited to injury that would not have occurred "BUT FOR" D's conduct.
Causation Proximate Eggshell Rule
Take the victim as you found them. Defendant liable for full consequences of Plaintiff's injury (even if greater than reasonable person....circumstances) if harm to P was reasonable type foreseeable (b/c P is unusually susceptible to the injury).
Causation

Cause in Fact - Proof
Cause of Plaintiff's harm must be linked to Defendant's tortious conduct.
Causation

Cause in Fact - Indivisible
If the tortious conduct of Defendant 1 and 2 concur and both are cause of Plaintiff's harm, either or both are liable for full damages.
Causation

Cause in Fact - Divisible
If the tortious conduct of Defendant 1 and 2 each cause separate parts of Plaintiff harm, each D is liable for only the part of the harm caused by their tortious action.
Market Share Liability
When Plaintiff is harmed by product that was produced and sold by multiple manufacturers, the manufacturer representing a substantial share of the product at the time of consumption can be jointly and severablly liable for proportional part of Plaintiff's harm.
Causation

Intervening Cause
Conduct by a third party after Defendants tortious conduct, operating with or upon D's act to produce Plaintiff harm.

If cause was foreseeable or was not foreseeable but the consequences were the type D could foresee, D is liable.
Negligence -

Attractive Nuisance
Defendant is subject to liability for physical harm to trespassing children caused by an artificial condition upon the land if D fails to exercise reasonable care to eliminate or otherwise protect them.

D must know/knowledge that 1-condition where it exists is where children are likely to trespass; 2-children (who could foreseeably trespass) will be attracted; 3-the condition exists and should have realized potential harm to children; 4-b/c of youth, children would not realize risk of harm; 5-burden of eliminating danger were outwieghed by the risk to children.
Negligence -

Licensee
Person who has priviledge to enter or remain on land but is not an invitee.

D is liable for intentional and reckless (wilful and wanton) conduct.
Negligence -

Invitee
Public - person invited to enter/remain as a member of the public for which land is held.

Business Visitor - expressed/implied from Defendant's conduct to enter/remain for purpose connected with business dealings.

D must exercise reasonable care for invitees.
Product Liability

Negligence
Defendant is not only liable to the ultimate purchaser but to all persons foreseeably exposed to the risk.
Product Liability

Expressed & Implied
Expressed warranties are promissory assertion of fact.

Implied warranties imply minimum standards of quality, including safety.
Product Liability
Unreasonably Dangerous-product defect renders it "unreasonably dangersous" to the consumer. D liable for design defects, errors/omissions in manufacturing/assembly/production, and inadequate warring potential harm or directions for proper use.
Vicarious Liability

Rule
While acting on behalf of another, Defendant is liable for harm to Plaintiff for tortious actions committed. May subject third party (for whom D is acting).
Vicarious Liability Master-Servant
If at the time of the act, the servant was acting in course/scope of duties, master/employer is vicariously liable for harm to Plaintiff.

Scope/course depends on job description, time/place and purpose of actions, and foreseeability of action.
Vicarious Liability

Independent Contractors
Employer is not vicariously liable for physical harm caused by the tortious conduct of an independent contractor.

Exception is when the employer fails to exercise reasonable care (i.e., instructions, selection of competent/experienced persons, and working equipment).
Negligent IIED Rule
Conduct of Defendant results in any impact with Plaintiff's body support D's liability for IIED.
Negligent IIED Zone of Danger
Defendant's conduct threatens (not resulting in) bodily harm, Plaintiff may recover based on the fear, shock or emotional distress caused by presence in zone of danger.
Negligent IIED Bystander Rule
Defendants conduct not generally liable if it threatens/causes physical harm to a third person and Plaintiff suffers emotional distress as a witness.

Exception-Plaintiff may recover if 1-injury is serious; 2-P is immediate family of person in peril; 3-shock results in bodily harm to P; 4-event is short in duration; and 5-P is a witness to event or immediate aftermath.