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91 Cards in this Set

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Define Battery
1. Intentional act that causes harmful or offensive contact with the plaintiff or with something closely connected to the plaintiff

2. Defendant must either intend to cause harmful or offensive contact or know that harmful or offensive contact is substantially certain to occur
Rule for Assault
1.Intentional act that causes a plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact
Rule for False Imprisonment
1. Intentional act that causes the plaintiff to be confined or restrained to a bounded area against the plaintiff's will and the plaintiff knows of the confinement or is injured as a result of the confinement

2. The duration of the requirement is irrelevant but if there are reasonable means of escape the plaintiff is not confined
How Might False Imprisonment Arise?
1. Physical barriers
2. Failing to release plaintiff where defendant has legal duty to do so
3. Invalid assertion of legal authority
Intentional Infliction of Emotional Distress (IIED)
Intentional or reckless act amounting to extreme and outrageous conduct that causes plaintiff severe emotional distress
What is extreme and outrageous conduct for IIED?
Conduct that goes beyond bounds of decency--conduct a civilized society will not tolerate
Intent for IIED
Can be intentional OR reckless
Third Party IIED--Family
1. Plaintiff who is an immediate family member of the third party
2. Plaintiff present at time; and
3. Defendant is aware of the plaintiff's presence
Third Party IIED--Non-Family
To any other plaintiff (regardless of relationship) who is present at the time if the distress results in bodily harm
Trespass to Land--Intentional Entries
1. Trespass to land is an intentional act that causes a physical invasion of the plaintiff's land

2. Only need intent to cause physical invasion--mistake is not a defense

3. Plaintiff must be in actual position or have right to immediate position to bring cause of action
The physical invasion element is satisfied if:
1. D enters

2. D causes third person or object to enter

3. Enters land lawfully but then remains when under legal duty to leave

4. Fails to remove object when under legal duty to do so
Trespass to Land--Negligent or reckless entries
Liable only if damage caused to land
Trespass to Land--Accidental entries
No liability for entries that are unintentional and non-negligent
Trespass to Chattels
1. Intentional act by defendant that interferes with plaintiff's chattel, causing harm

2. Mistake is no defense

3. "Interference" means dispossession or intermeddling
Unlike other intentional torts....
Proof of damages is an element of the cause of action
Conversion
1. Intentional act by D that causes destruction of or serious and substantial interference with plaintiff's chattel

2. Mistake is no defense
Difference between Conversion and Trespass to Chattels
1. Interference is more serious that in a trespass to chattel

2. Longer period and greater use
Defenses--POPCANS
Privilege
Defense of Others
Defense of Property
Consent
Authority
Necessity
Self-Defense
Consent
1. Plaintiff can manifest consent expressly, impliedly, or as matter of law

2. Defendant must not exceed scope of consent or they will be liable
Consent as Matter of Law
1. Emergency action is necessary

2. Reasonable person would expect consent; and

3. No reason exists to believe plaintiff would not consent
Self-Defense
1. Use of reasonable force to prevent plaintiff from engaging in imminent and unprivileged attack

2. Only use degree of force reasonably necessary to avoid harm threatened

3. No self-defense if plaintiff's conduct not imminent
Self-Defense Mistake
1. Even if no harm threatened, self-defense available if reasonable person in same circumstances would have believed she was under attack

2. Need subjective and objective basis
Defense of Others
Defendant entitled to defend other person from attach by plaintiff to same extent third person would be lawfully entitled to defend himself
Defense of Property
1. Reasonable force to prevent plaintiff from committing tort

2. Force no greater than necessary

3. Deadly force never allowed
Public Necessity
1. Permitted to injure plaintiff's property if reasonably necessary to avoid substantially greater harm to public

2. Not liable for damages
Private Necessity
1. Permitted to injure plaintiff's property if reasonably necessary to avoid substantially greater harm to himself or his property

2. Will be liable, however, for any damages
Shopkeeper's Privilege
Shopkeeper not liable for false imprisonment (or related tort) if:
1. Reasonable suspicion

2. Reasonable force to detain

3. Reasonable period and reasonable manner
Elements for Negligence
1. Duty

2. Breach

3. Actual cause

4. Proximate cause

5. Damages
Duty
Everyone owes a duty of reasonable care to foreseeable plaintiff's
Non-feasance
Usually no affirmative duty to take action to aid or protect plaintiff at risk of injury
Defendant's Duty to Rescue
1.Placed plaintiff in position where she requires aid

2. Undertakes rescue of plaintiff and leaves plaintiff in worse off position

3. Special relationship exists
Special Relationships for Duty to Rescue
1. Parent/Child

2. Employer/Employee

3. Common Carrier and Innkeeper/Customer

4. School/Pupil

5. Jailer/Prisoner
Negligence Per Se
Violation of statute prima facie evidence of negligence if:

1. Statute designed to protect human life or property?

2. Plaintiff in member of class to be protected

3. Injury type statute intended to protect against
Duty to Control Third Parties
1. Parent under duty to exercise reasonable care to control minor child to prevent child from causing harm

2. Master under duty to exercise reasonable care to control servant while acting w/i scope of employment
Negligent Infliction of Emotional Distress--Direct Claims
Arise when:
1. Plaintiff in "zone of danger"--risk of being physically injured

2. Suffers accompanying physical manifestation of emotional distress
Negligent Infliction of Emotional Distress--Bystander
1. Third party is close relative; and

2. Present at scene and suffers severe emotional distress due to witnessing event
Invitees
1. Enter D's land at D's express or implied invitation for purpose relating to D's interest/activities

2. D owes duty to inspect and make safe the premises

3. Business or Public invitees

4. In IL, no duty to warn of open and obvious dangerous condition
Licensees
1. People you like--Friends

2. Duty to warn of known dangers

3. Reasonable care to discover licensees not aware of
Known Trespassers
1. Reasonable care to protect from injuries deriving from activities on land

2. Warn of hidden dangers that landowner aware of

3. No duty to protect from injuries due to natural conditions
Unknown Trespassers
No duty of care owed--no duty to inspect to discover unknown trespassers
Attractive Nuisance
Artificial conditions; D liable if:

1. Child too young to appreciate dangerous condition (subjective);

2. Foreseeable that children likely to trespass;

3. D knows of dangerous condition; and

4. Risk of danger of artificial condition outweighs utility
Plaintiffs Not On Land
1. Artificial condition--Duty of reasonable care

2. Natural condition--No duty unless tree limb
Landlords and Tenants
Not liable unless:

1. Common area

2. Negligent Repairs

3. Known, hidden dangerous defect

4. Landlord knows tenant will hold property open to public--must exercise reasonable care
Standard of Care
Reasonably prudent person under the same or similar circumstances
What We Do Consider In Determining Standard of Care
1. Physical condition

2. Age

3. Emergency
What We Do Not Consider In Determining Standard of Care
1. Intelligence

2. Clumsiness/Slower reflexes

3. Intoxication

4. Insanity
Hand Formula
If burden of taking precautions outweighed by probability of injury and gravity of potential injury considering social utility of activity, D has failed to act as reasonable person
Children
1. What reasonable child of same age, intelligence, and experience would have done

2. If engaging in adult activity held to adult standard of care
Negligence Per Se--Criminal Statute
Conclusively establishes D breached duty to P where:

1. Injury caused was type statute intended to prevent

2. P member of class statute intends to protect

3. D's violation not execused
Standard of Care: Professionals
1. Relevant standard of care is other professionals--look to customary standards of the industry

2. Following custom means no malpractice

3. Deviation from custom establishes breach of duty
Standard of Care: Medical Malpractice
Required to possess skill and training of other doctors in good standing in geographic location
Lack of Informed Consent
1. Must divulge risks customarily divulged

2. All material risks

3. What reasonable patient would want to know
Legal Malpractice
Must show both:

1. Malpractice; and

2. That underlying claim would have been successful
Breach of Duty
D's conduct failed to live up to standard of care of reasonable person in the same or similar circumstances
Res Ipsa Loquitur
Used when P does not know and cannot determine specifically what D's negligent conduct was. P must establish:

1. Event that caused P's injury one that does not ordinarily occur absent negligence

2. More likely than not D's negligence was responsible for injury

3. P not responsible for event that caused injury
Multiple Defendants
1. All D's acting as same group

2. Hold all liable unless they show they were not responsible
Cause-in-Fact
Event would not have occurred "but for" existence of D's conduct
Substantial Factor Test
D's conduct was substantial factor in bringing about injury to P and each individual D's conduct alone sufficient to directly cause injury
Joint and Several Liability
1. Multiple negligent defendants, each of whom contributes to P's harm

2. P may recover fully against any of the Ds and those Ds can sue each other for contribution
Summers v. Tice Test
1. P's injury arises from negligent conduct of two or more independently acting D's

2. Only one of whom can actually be responsible

3. P unable to establish which D is in fact responsible

4. Each D is regarded as cause-in-fact of injury

5. D must prove he did not cause injury
Proximate Cause
P's harm must have been reasonably foreseeable at the time D engaged in negligent conduct
Defendant Still Liable If Actions Result In:
1. Unforeseeable extent of harm (eggshell plaintiff);

2. Unforeseeable type of harm; or

3. Unforeseeable manner of harm
Superseding Causes
1. Unforeseeable, intervening cause that breaks chain of causation

2. Relieves original tortfeasor of further liability
Types of Unforeseeable Superseding Causes
1. Acts of God

2. Intentional Torts of Third Parties

3. Criminal Acts of Third Parties
Intervening Force
D held liable for harm caused by foreseeable intervening force
Types of Intervening Forces
1. Negligent rescue

2. Subsequent disease

3. Subsequent medical malpractice

4. General negligence
Damages Requirement
1. P must affirmatively prove actual damages; no nominal damages

2. Punitive damages generally not allowed
Punitive Damages
2. Never recoverable just for negligent conduct; must be willful or malicious.

2. Make example of D so they will not engage in conduct and deter 3rd parties;

3. 10:1 ratio is likely w/i SDP;

4. Consider wealth of D
Defenses to Negligence: Contributory or Comparative Negligence
Same analysis of defendant's conduct just done with the plaintiff
Contributory Negligence
1. Negligent plaintiff barred from recovery

2. Minority rule

3. Last Clear Chance Doctrine--Negligent P can still recover if D had "last clear chance" to avoid injury and failed to do so
Comparative Fault
1. Apportioned based on relative fault of each party

2. Negligent P's recovery reduced by percentage of own negligence

3. Majority Rule--Pure Comparative Negligence
Pure Comparative Fault
P can recover even if P was more negligent than the D
Modified Comparative Fault
1. This is the Illinois rule

2. Recovery only if P's negligence is less than Ds
Aggregate System for Comparative Negligence
If P is responsible for greater percentage than total responsibility of all Ds, recovery is barred
Individual Equality System
P does not recover ANYTHING if responsibility exceeds that of any single D
Express Assumption of the Risk
1. P through written words or oral words releases D of D’s duty to be non-negligent

2. Language must be clear and unambiguous and not void against PP (necessity).
Implied Assumption of the Risk
D must show:
1. P knew specific risk;

2. Understood specific risk;

3. Confronted specific risk
Strict Liability
Liability for D regardless of whether he or she exercised due care
Strict Liability: Possession of Animals
Owner must have known dangerous propensities—one bite rule (exception: watchdogs)
Strict Liability: Wild Animals
P injured b/c wild animal does something characteristic of animal then D strictly liable.
Strict Liability: Abnormally Dangerous Activities
1. Inevitable high risk of harm;

2. Not common activity (blasting, crop dusting, toxic waste transport, firing range).

3. P recovers if show D did ADA and D caused P’s harm.
Strict Liability: Proximate Cause
1. P must be injured by risk that makes ADA abnormally dangerous.

2. If different activity, must use negligence (i.e. Minx case).
Strict Liability: Defenses
1. No contributory/comparative negligence

2. Only assumption of the risk
Strict Products Liability in Tort
Focus on condition of product D put into market, not D’s conduct
Seven Elements For Strict Liability in Tort
1. Proper P
2. Proper D
3. Proper context
4. Defect
5. Cause-in-fact
6. Proximate cause
7. Damages
Strict Liability in Tort: Proper Plaintiff
User, consumer or bystander
Strict Liability in Tort: Proper Defendant
Anyone in marketing chain/business of dealing product
Strict Liability in Tort: Proper Context
1. Dealing w/ product, not service or non-product related harm

2. Look at what predominates
Strict Liability in Tort: Defect
1. Defective condition and unreasonable dangerous

2. Three types: (a) Manufacturing; (b) Design; (c) Lack of/Inadequate Warning
Strict Liability in Tort: Manufacturing Defect
1. In condition not intended; or

2. More dangerous than ordinary consumer expects in using product reasonably
Strict Liability in Tort: Design Defect
1. Very design is defective--show that risk of product as designed outweighs utility of product and reasonable alternative designs

2. If extraordinary social utility--no design defects