Nailing The Baby Bar Torts

Front 1

INTENTIONAL TORTS AND NEGLIGENCE

Back 1

They are either deliberate ACTS
which cause CONFINEMENT, FEAR, OFFENSE Of PHYSICAL harm or NEGLIGENT acts that cause harm.

Front 2

ABC-FITT

Back 2

The intentional torts - Assault, Battery, conversion, False imprisonment,
Intentional infliction of emotional distress, Trespass to land and Trespass to chattels.

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DARN COPS

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The intentional tort DEFENSES, Discipline, Authority of law, Recapture, Necessity, ,Consent, Others (defense of), Property (defense of), Self (defense of).

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SCRAP

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DUTY can be based on Statute, Contract, Relationship, Assumption, and Peril caused

Front 5

ISSUE - Can A be liable to B for ASSAULT?

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Under tort law ASSAULT is an intentional act to cause apprehension of a battery, and which actually does cause such apprehension. A BATTERY is a harmful or offensive touching of the person.

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FIRST issue ALWAYS DEFINE "INTENTIONAL"

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An act is INTENTIONAL if done for the purpose or with knowledge with reasonable certainty that the result will occur.

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ISSUE - Can A be liable to B for TORTIOUS BATTERY?

Back 7

Under tort law BATTERY is an intentional act that actually causes a harmful or offensive
touching of the person.

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ISSUE - Can A be liable to B for CONVERSION of the X?

Back 8

Under tort law CONVERSION is a substantial interference with chattel causing a deprivation of
possession.

Front 9

ISSUE - Can A be liable to B for FALSE IMPRISONMENT?

Back 9

Under tort law FALSE IMPRISONMENT is am intentional act causing a person to actually be aware they are confined to an enclosed area with no reasonable means of escape. An action may
be brought for false imprisonment of a child, even if the child does not perceive confinement, if the child is wrongfully concealed from its rightful guardian or parent.

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ISSUE - Can A be liable to B for INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?

Back 10

Under tort law INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS is an intentional.
outrageous act causing severe emotional distress. Important!

[Note: Here "intent" may be shown by either the intentional commission of an outrageous act or by any act for the purpose of causing emotional distress. Any act is II outrageous" if the 'actual intent is to cause severe emotional distress. And a lack·
'of intent to cause emotional distress is not a defense if the act itself is outrageous.]

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ISSUE-Can A be liable to B for TRESPASS TO LAND?

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Under tort law TRESPASS TO LAND is an intentional act causing an unauthorized entry onto the of the land of another.

[Strict liability -- An innocent mistake as to the ownership of the land (getting lost) is no defense if the act of entry itself was intentional]

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ISSUE - Can A be liable to B for TRESPASS TO CHATTELS?

Back 12

Under tort law TRESPASS TO CHATTEL is an intentional act causing unauthorized interference with the chattel of another causing DAMAGE.

Front 13

ISSUE -- Can A raise the DEFENSE of DISCIPLINE?

Back 13

Under tort law a person with recognized authority (schoolteacher, bus driver, airplane pilot, policeman, parent, etc.) who acts reasonably may raise that authority as a defense against the intentional torts of battery and false imprisonment.

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ISSUE -- Can A raise the DEFENSE of AUTHORITY OF LAW?

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Under tort law a person may act reasonably. including performing an arrest, to prevent a FELONY from being committed in their presence. Police may arrest for misdemeanors committed
in their presence and for felonies if based upon reasonable suspicion.

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ISSUE -- Can. A raise the DEFENSE of RECAPTURE?

Back 15

Under tort law a person acting in Fresh pursuit may invade land and use reasonable force to
RECAPTURE chattel removed by others from their possession without permission if they have
asked for and have been refused return of the chattel.

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ISSUE -- Can A raise the DEFENSE of NECESSITY?

Back 16

Under tort law a person may act reasonably if NECESSARY to protect their safety or that of their property. If an act is reasonably necessary to protect personal safety or as a public necessity, it is a complete defense. If reasonably necessary to protect private property of the defendant, the
defendant remains liable for actual damage to the plaintiff.

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ISSUE ~ Can A raise the DEFENSE of CONSENT?

Back 17

Under tort law INFORMED CONSENT from a person with legal capacity is a defense to most intentional torts.

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ISSUE -- Can A raise the DEFENSE of OTHERS?

Back 18

Under tort law a person may act reasonably as necessary to defend others. In some jurisdictions they STEP INTO THE SHOES of the person being defended. In others, they only have to have a REASONABLE BELIEF that their acts are necessary to defend an innocent party.

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ISSUE -~ Can A raise the DEFENSE of PROPERTY?

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Under tort law a person may act reasonably with NON-DEADLY FORCE as necessary to protect their property.

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ISSUE -- Can A raise a claim of SELF-DEFENSE?

Back 20

Under tort law a person may act reasonably if Necessary to protect their safety. Modernly
there is no duty to retreat in most jurisdictions.

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ISSUE -- Can A raise a claim of INFANCY (or INSANITY or INC0MPETENCE)?

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Under tort law INFANCY, INSANITY and INCOMPETENCE are not defenses for intentional torts unless it Can be shown that the defendant acted without intent because the purpose of the cause of action is to compensate the plaintiff; not punish the defendant. [note situations where the tortfeasor is a child or insane! Not a defense as it would be in a criminal prosecution.]

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ISSUE -- Can A be liable to B for NEGLIGENCE?

Back 22

Under tort law NEGLIGENCE is a failure to exercise that degree of care that a reasonably prudent person would use in the same situation. A prima facie case of negligence requires showing there was a DUTY, BREACH. ACTUAL and PROXlMATE CAUSATION and DAMAGES [note: If negligence is just one of several issues in the question, the analysis of negligence elements can be contained within the issue of negligence.]

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18, ISSUE - Did B owe. A a DUTY?

Back 23

Under tort law DUTY may be based on [SCRAP] STATUTE, CONTRACT, RELATIONSHIP, ASSUMPTION or where PERIL to the plaintiff is caused by the defendant. [Important in criminal law as well] Under PALSGRAF, CARDOZO argued that a DUTY not to cause PERIL. only extends to plaintiffs in the ZONE OF DANGER created by the defendant. ANDREWS argued that if the defendant owed a duty to anyone, he had a duty to everyone.

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ISSUE -- Did B BREACH his duty to A?

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Under tort law BREACH means that the defendant did not exercise the STANDARD OF CARE a reasonable person like the defendant would normally use.

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STANDARD OF CARE.

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But, if the defendant is a child engaged in childlike activities, the standard is the level of
care a child of that age and experience would normally use. A child engaged in adult
activities is held to an adult standard. And if the defendant is (or represents self to be) a highly trained PROFESSIONAL, a higher standard of care applies. Also, the standard of MEDICAL CARE is the standard in the community or the nation (split
opinions). But if the defendant is MENTALLY RETARDED~ insane or ignorant, the standard of care is NOT LOWERED below that set for the average member of the
community.

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ISSUE -- Can the plaintiff establish BREACH based on RES IPSA LOQUITUR?

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Under RES IPSA LOQUITUR a plaintiff can establish an INFERENCE OF BREACH if 1)
negligence by someone is implied by the facts; 2) the defendant had control of the situation and 3) the plaintiff had no control.
Here negligence is indicated because ... the defendant had control because ... and the plaintiff had no control because

Front 27

ISSUE -- Was the act of B the ACTUAL AND PROXIMATE CAUSE of injury to A?

Back 27

Under tort law the breach of duty by the defendant must be both the ACTUAL and PROXIMATE CAUSE of injury to the plaintiff. ACTUAL CAUSATION means that BUT FOR the acts a of the defendant the plaintiff would not have been injured.
PROXIMATE CAUSATION means that the injury suffered was FORESEEABLE and not so far removed in time and place from the actions of the defendant that the law will not impose liability for the result. Proximate cause will be found where the CHAIN OF CAUSATION is unbroken by INDEPENDENT INTERVENING EVENTS.

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ISSUE: Did the·plaintiff suffer DAMAGES?

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Under tort law the plaintiff must show ACTUAL INJURY resulting from the acts of the defendant.
SPECIAL damages are the plaintiffs out of pocket costs, and GENERAL damages are allowed for pain and suffering.

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ISSUE -- Can the defendant raise the defense of CONTRIBUTORY NEGLIGENCE?

Back 29

Under tort law CONTRIBUTORY NEGLIGENCE is a MINORITY doctrine that any negligence by the plaintiff acts as a complete bar to recovery. In response to a showing of contributory negligence, the plaintiff may raise the doctrine of LAST CLEAR CHANCE under which a negligent plaintiff can still recover where the defendant had the last clear opportunity to avoid the accident. [Note: Always raise this issue as a defense if negligence is an issue.]

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ISSUE: Can the defendant raise the defense of COMPARATIVE NEGLIGENCE?

Back 30

Under tort law COMPARATIVE NEGLIGENCE is a MAJORITY doctrine that recovery by the plaintiff is reduced by any amount of her own negligence. In some states, a plaintiff who 's own negligence contributed to more than half of their injury cannot recover, and in others a plaintiff can only recover from defendants who are more at fault than the plaintiff. In "pure negligence" states like California, each defendant would be liable for the proportion of injury they caused, regardless of the plaintiff's negligence. [Note: Always raise this issue as a defense if negligence is an issue.]

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ISSUE: Can the defendant raise the defense of ASSUMPTION OF THE RISK?

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Under tort law ASSUMPTION OF THE RISK is a complete bar to recovery if 1) the plaintiff was aware of the risk of their own actions to his or her own safety and 2) they acted unreasonably in putting themselves at risk. [Note: Do not raise this defense unless there are some facts to
justify a discussion.]