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25 Cards in this Set
- Front
- Back
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2 step approach
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1. Determine P, D, and tort
-if they haven't told you the theory, it is usually negligence 2. recall the basic rules that apply under the tort theory (elements and defenses) |
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Battery
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act by D, done with the intent to cause bodily contact with a person that results in bodily contact that is harmful or offensive
(i.e. non-emergency surgery done by a surgeon, not of choice is battery) No damages TRANSFERER INTENT: If D intents to cause assault, but battery occurs, it will be a battery. (claim survives P) |
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Assault
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an act intended to cause immediate apprehension of harmful or offensive contact that results in reasonable apprehension of that contact
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Shoplifting fact patterns
May be assault or false imprisonment |
FI: intentionally restrains to a bounded area (one hour with no investigation may be)
DEFENSE -defense of property (can use non-deadly force) -reasonable amount of time in reasonable manner |
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Conversion
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DAMAGES:
-must pay FMV (not value of new one) of property and D keeps property (like a forced sale) |
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Tresspass
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intent to enter land, that results in the entry into the land of another
INTENT can be established that D knew or was substantially certain would enter land (flakes entering land) MSE 79 DEFENSE: necessity (public or private). Public prevents harm to public or large group of people. Complete and total defense to public necessity (no tort committed). Private necessity - must pay for damage to property (no tresspass) |
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IIED or NIED
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Assume dealing with IIED if doesn't specifically say.
-must show 1)outrageous conduct by D, 2) an intent to cause severe emotional distress or recklessness, 3) causation, 4) damages (severe emotional distress damages) NIED requires physical injury (unless corpse of relative); IIED does not require physical injury |
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Negligence per se
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When D has violated a statutue, sometimes P only has to show that D violated the terms of statutue. Allowed when...
1. P is in the group of people statute designed to protect 2. Harm caused by the violation was the kind of harm the statute designed to protect against. -if beyond control of the D, it cannot be a negligence per se -usually NOT negligence per se on the exam (trick), but P can still win MSE 12, 166 |
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Liability for tresspassers
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in a lawsuit based on theory of negligence, there is no duty to protect trespassers from dangerous
-deadly force can never be used to protect property alone |
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Rescue
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1. As a general matter, there is no duty to lend assistance to someone else to prevent harm
2. If you do come to the rescue, you have a duty to act reasonably MSE 84 (WATCH for question where D would normally be liable for malpractice, because must first show that D was negligent) |
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Standard of Care
Professional Standard of Care |
-reasonable care under the circumstances
Special Standards of Care: 1. Learned Professional - must exercise the skill and knowledge of a member of that profession in good standing, and if have special knowledge, must exercise it (i.e. Engineer, MSE 104) |
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Child's Standard of Care
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Child's Standard of Care - under 18, like age, education, intelligence, and experience (unless adult activity)
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injury caused by condition on the land - 5 standards of care depending on type of P
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1. to tresspassor - no duty MSE 115
2. known tresspassor - (known directly or indirectly) - duty to warn of concealed, artifical conditions, likely to cause death or serious bodily injury 3. child tresspassors - reasonable care under the circumstances to prevent harm by dangerous articial conditions on the property 4. Licensees - social guests, plumber - duty to warn of concealed dangerous conditions known to owner (artificial or natural) 5. Invitees - customers (windowshoppers) or open to public - duty to warn of concealed dangerous conditions that owner knows of or SHOULD know of NOTE: No duty for natural weeds, but duty for hedge, to people not on property. Also liable for tree damage off property. |
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When asked about directed verdict
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-go through each element to see if have presented evidence on each element
MSE 86, 101 EXAM TIP: If not sure, D is usually going to win directed verdict (because element is missing) |
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contributory negligence (common law)
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If P contributed any at all, complete defense to D
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Modified Comparative fault
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P cannot recover if P was over 50% at fault
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Pure comparative fault
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P can recover, no matter how much P was at fault
-assume this one if it doesn't say |
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joint and several liability
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if 2 or more D contribute to the damage, P can go after 1 for all of the damages from both
-always assume this if it doesn't say |
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comparative contribution
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D can require other Ds to pay their fair share of damages (but doesn't relate to how much money P gets)
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Manufacturer Liability
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Manufacturer of an item will be held responsible for the negligence of the maker of a component part (if proximate cause of injury)
MSE 156 Also see 157 (??) |
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Strict Liability for a defective product
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Elements: 1) commercial supplier (manufacturer, retailer, leaser) (can't recover if a one time seller...have to be negligence), 2) productive in a defective, unreasonably dangerous condition when sold or placed in stream of commerce (don't have to show caused it), 3) defect was cause of injury
Defenses: Mis-use a defense, unless misuse foreseeable Non-defenses |
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Strict Liability for wild animals
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- no matter how tame, or inable to harm; strict liability
- if domestic animal, get one free bite, but then strict liability MSE 72 |
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Ultra Hazardous Activity
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-serious harm
-cannot be completed with complete safety no matter what - activity no commonly engaged in in THIS community -damage resulted from the unreasonable dangerous activity MSE 52 |
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Defamation
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Elements
MSE 52 |
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Nuisance
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-substantial, unreasonable interference with the use and enjoyment of land
-judgment for trier of fact |
