Mbe/mee Torts--2012

Front 1

Define Battery

Back 1

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

Front 2

Rule for Assault

Back 2

1.Intentional act that causes a plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact

Front 3

Rule for False Imprisonment

Back 3

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

Front 4

How Might False Imprisonment Arise?

Back 4

1. Physical barriers
2. Failing to release plaintiff where defendant has legal duty to do so
3. Invalid assertion of legal authority

Front 5

Intentional Infliction of Emotional Distress (IIED)

Back 5

Intentional or reckless act amounting to extreme and outrageous conduct that causes plaintiff severe emotional distress

Front 6

What is extreme and outrageous conduct for IIED?

Back 6

Conduct that goes beyond bounds of decency--conduct a civilized society will not tolerate

Front 7

Intent for IIED

Back 7

Can be intentional OR reckless

Front 8

Third Party IIED--Family

Back 8

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

Front 9

Third Party IIED--Non-Family

Back 9

To any other plaintiff (regardless of relationship) who is present at the time if the distress results in bodily harm

Front 10

Trespass to Land--Intentional Entries

Back 10

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

Front 11

The physical invasion element is satisfied if:

Back 11

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

Front 12

Trespass to Land--Negligent or reckless entries

Back 12

Liable only if damage caused to land

Front 13

Trespass to Land--Accidental entries

Back 13

No liability for entries that are unintentional and non-negligent

Front 14

Trespass to Chattels

Back 14

1. Intentional act by defendant that interferes with plaintiff's chattel, causing harm

2. Mistake is no defense

3. "Interference" means dispossession or intermeddling

Front 15

Unlike other intentional torts....

Back 15

Proof of damages is an element of the cause of action

Front 16

Conversion

Back 16

1. Intentional act by D that causes destruction of or serious and substantial interference with plaintiff's chattel

2. Mistake is no defense

Front 17

Difference between Conversion and Trespass to Chattels

Back 17

1. Interference is more serious that in a trespass to chattel

2. Longer period and greater use

Front 18

Defenses--POPCANS

Back 18

Privilege
Defense of Others
Defense of Property
Consent
Authority
Necessity
Self-Defense

Front 19

Consent

Back 19

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

Front 20

Consent as Matter of Law

Back 20

1. Emergency action is necessary

2. Reasonable person would expect consent; and

3. No reason exists to believe plaintiff would not consent

Front 21

Self-Defense

Back 21

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

Front 22

Self-Defense Mistake

Back 22

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

Front 23

Defense of Others

Back 23

Defendant entitled to defend other person from attach by plaintiff to same extent third person would be lawfully entitled to defend himself

Front 24

Defense of Property

Back 24

1. Reasonable force to prevent plaintiff from committing tort

2. Force no greater than necessary

3. Deadly force never allowed

Front 25

Public Necessity

Back 25

1. Permitted to injure plaintiff's property if reasonably necessary to avoid substantially greater harm to public

2. Not liable for damages

Front 26

Private Necessity

Back 26

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

Front 27

Shopkeeper's Privilege

Back 27

Shopkeeper not liable for false imprisonment (or related tort) if:
1. Reasonable suspicion

2. Reasonable force to detain

3. Reasonable period and reasonable manner

Front 28

Elements for Negligence

Back 28

1. Duty

2. Breach

3. Actual cause

4. Proximate cause

5. Damages

Front 29

Duty

Back 29

Everyone owes a duty of reasonable care to foreseeable plaintiff's

Front 30

Non-feasance

Back 30

Usually no affirmative duty to take action to aid or protect plaintiff at risk of injury

Front 31

Defendant's Duty to Rescue

Back 31

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

Front 32

Special Relationships for Duty to Rescue

Back 32

1. Parent/Child

2. Employer/Employee

3. Common Carrier and Innkeeper/Customer

4. School/Pupil

5. Jailer/Prisoner

Front 33

Negligence Per Se

Back 33

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

Front 34

Duty to Control Third Parties

Back 34

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

Front 35

Negligent Infliction of Emotional Distress--Direct Claims

Back 35

Arise when:
1. Plaintiff in "zone of danger"--risk of being physically injured

2. Suffers accompanying physical manifestation of emotional distress

Front 36

Negligent Infliction of Emotional Distress--Bystander

Back 36

1. Third party is close relative; and

2. Present at scene and suffers severe emotional distress due to witnessing event

Front 37

Invitees

Back 37

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

Front 38

Licensees

Back 38

1. People you like--Friends

2. Duty to warn of known dangers

3. Reasonable care to discover licensees not aware of

Front 39

Known Trespassers

Back 39

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

Front 40

Unknown Trespassers

Back 40

No duty of care owed--no duty to inspect to discover unknown trespassers

Front 41

Attractive Nuisance

Back 41

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

Front 42

Plaintiffs Not On Land

Back 42

1. Artificial condition--Duty of reasonable care

2. Natural condition--No duty unless tree limb

Front 43

Landlords and Tenants

Back 43

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

Front 44

Standard of Care

Back 44

Reasonably prudent person under the same or similar circumstances

Front 45

What We Do Consider In Determining Standard of Care

Back 45

1. Physical condition

2. Age

3. Emergency

Front 46

What We Do Not Consider In Determining Standard of Care

Back 46

1. Intelligence

2. Clumsiness/Slower reflexes

3. Intoxication

4. Insanity

Front 47

Hand Formula

Back 47

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

Front 48

Children

Back 48

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

Front 49

Negligence Per Se--Criminal Statute

Back 49

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

Front 50

Standard of Care: Professionals

Back 50

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

Front 51

Standard of Care: Medical Malpractice

Back 51

Required to possess skill and training of other doctors in good standing in geographic location

Front 52

Lack of Informed Consent

Back 52

1. Must divulge risks customarily divulged

2. All material risks

3. What reasonable patient would want to know

Front 53

Legal Malpractice

Back 53

Must show both:

1. Malpractice; and

2. That underlying claim would have been successful

Front 54

Breach of Duty

Back 54

D's conduct failed to live up to standard of care of reasonable person in the same or similar circumstances

Front 55

Res Ipsa Loquitur

Back 55

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

Front 56

Multiple Defendants

Back 56

1. All D's acting as same group

2. Hold all liable unless they show they were not responsible

Front 57

Cause-in-Fact

Back 57

Event would not have occurred "but for" existence of D's conduct

Front 58

Substantial Factor Test

Back 58

D's conduct was substantial factor in bringing about injury to P and each individual D's conduct alone sufficient to directly cause injury

Front 59

Joint and Several Liability

Back 59

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

Front 60

Summers v. Tice Test

Back 60

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

Front 61

Proximate Cause

Back 61

P's harm must have been reasonably foreseeable at the time D engaged in negligent conduct

Front 62

Defendant Still Liable If Actions Result In:

Back 62

1. Unforeseeable extent of harm (eggshell plaintiff);

2. Unforeseeable type of harm; or

3. Unforeseeable manner of harm

Front 63

Superseding Causes

Back 63

1. Unforeseeable, intervening cause that breaks chain of causation

2. Relieves original tortfeasor of further liability

Front 64

Types of Unforeseeable Superseding Causes

Back 64

1. Acts of God

2. Intentional Torts of Third Parties

3. Criminal Acts of Third Parties

Front 65

Intervening Force

Back 65

D held liable for harm caused by foreseeable intervening force

Front 66

Types of Intervening Forces

Back 66

1. Negligent rescue

2. Subsequent disease

3. Subsequent medical malpractice

4. General negligence

Front 67

Damages Requirement

Back 67

1. P must affirmatively prove actual damages; no nominal damages

2. Punitive damages generally not allowed

Front 68

Punitive Damages

Back 68

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

Front 69

Defenses to Negligence: Contributory or Comparative Negligence

Back 69

Same analysis of defendant's conduct just done with the plaintiff

Front 70

Contributory Negligence

Back 70

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

Front 71

Comparative Fault

Back 71

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

Front 72

Pure Comparative Fault

Back 72

P can recover even if P was more negligent than the D

Front 73

Modified Comparative Fault

Back 73

1. This is the Illinois rule

2. Recovery only if P's negligence is less than Ds

Front 74

Aggregate System for Comparative Negligence

Back 74

If P is responsible for greater percentage than total responsibility of all Ds, recovery is barred

Front 75

Individual Equality System

Back 75

P does not recover ANYTHING if responsibility exceeds that of any single D

Front 76

Express Assumption of the Risk

Back 76

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).

Front 77

Implied Assumption of the Risk

Back 77

D must show:
1. P knew specific risk;

2. Understood specific risk;

3. Confronted specific risk

Front 78

Strict Liability

Back 78

Liability for D regardless of whether he or she exercised due care

Front 79

Strict Liability: Possession of Animals

Back 79

Owner must have known dangerous propensities—one bite rule (exception: watchdogs)

Front 80

Strict Liability: Wild Animals

Back 80

P injured b/c wild animal does something characteristic of animal then D strictly liable.

Front 81

Strict Liability: Abnormally Dangerous Activities

Back 81

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.

Front 82

Strict Liability: Proximate Cause

Back 82

1. P must be injured by risk that makes ADA abnormally dangerous.

2. If different activity, must use negligence (i.e. Minx case).

Front 83

Strict Liability: Defenses

Back 83

1. No contributory/comparative negligence

2. Only assumption of the risk

Front 84

Strict Products Liability in Tort

Back 84

Focus on condition of product D put into market, not D’s conduct

Front 85

Seven Elements For Strict Liability in Tort

Back 85

1. Proper P
2. Proper D
3. Proper context
4. Defect
5. Cause-in-fact
6. Proximate cause
7. Damages

Front 86

Strict Liability in Tort: Proper Plaintiff

Back 86

User, consumer or bystander

Front 87

Strict Liability in Tort: Proper Defendant

Back 87

Anyone in marketing chain/business of dealing product

Front 88

Strict Liability in Tort: Proper Context

Back 88

1. Dealing w/ product, not service or non-product related harm

2. Look at what predominates

Front 89

Strict Liability in Tort: Defect

Back 89

1. Defective condition and unreasonable dangerous

2. Three types: (a) Manufacturing; (b) Design; (c) Lack of/Inadequate Warning

Front 90

Strict Liability in Tort: Manufacturing Defect

Back 90

1. In condition not intended; or

2. More dangerous than ordinary consumer expects in using product reasonably

Front 91

Strict Liability in Tort: Design Defect

Back 91

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