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78 Cards in this Set
- Front
- Back
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Battery
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Battery is the intentional and volitional act with another person causing a harmful or offensive contact
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Assault:
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Assault: is either an attempted battery or an intentional act committed with the intent to cause a (reasonable) apprehension of an imminent harmful or offensive contact.
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False Imprisonment:
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False Imprisonment: occurs when D acts intentionally causing confinement of the P to a bounded area without a reasonable means of escape.
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Trespass to Land:
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Trespass to Land: occurs when one intentionally enters than land of another.
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Trespass to Chattels:
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Trespass to Chattels: occurs when one interferes or intermeddles with the possessory rights of the personal tangible property of another.
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Conversion:
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Conversion: occurs when on substantially interferes and dispossesses another of their tangible personal property such that the D is required to pay the value of the property at the time of dispossession; usually the property is destroyed or damaged beyond the value of the property.
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Intentional Infliction of Emotional Distress:
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Intentional Infliction of Emotional Distress: occurs when the D either intentionally or recklessly acts causing severe emotional distress evidenced by a physical manifestation of such distress. A bystander may recover if the bystander is has contemporaneous knowledge (sensory perception) of the incident and the D knows of the bystanders presence. (An exception may be made for hostage situations etc.)
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Defenses to Intentional Torts
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Defenses to Intentional Torts
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Consent:
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Consent: “he who consents, no harm is done.” A person who consents must do so with the capacity to consent and it must be voluntary with knowledge of the circumstances regarding the consent. Consent requires a informed choice One must not exceed the scope of consent.
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Self-Defense:
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Self-Defense: A non-aggressor is justified in using that amount of force the he in fact believes and reasonably believes is necessary to avert an imminent unlawful attack. Deadly force may be used to avert a deadly attack as long as it is reasonable force and the force is necessary. The amount of force must be proportional and not excessive. The majority of justification do not require one to retreat, and in the jurisdictions that do require one to retreat they are never required to retreat from their home (Castle Doctrine).
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Defense of Third Persons: Alter Ego –
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Defense of Third Persons: Alter Ego – A person is justified is using that amount of force that he would be permitted to use if he was standing in the shoes of the third person. Any mistake or unreasonableness would be at the rescuers peril. Many jurisdictions permit a person to defend another based on a reasonable belief that defense is necessary and the amount of force used was reasonable.
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Defense of Property:
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Defense of Property: A person is justified is using that amount of force that is reasonably necessary to protect their property. Deadly force may never be used to protect property and some jurisdiction may require the owner of the property to request the tortfeasor to desist before resorting to physical force unless the request would be futile.
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Recapture of Chattels:
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Recapture of Chattels: One who has been dispossessed of the chattels (tangible personal property) may use reasonable force in hot pursuit to recapture their property.
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Discipline
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Discipline – a parent or a person in loco parentis (ie. teacher) may use reasonable force to control and disciple their children.
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Arrest: An office
A private citizen is privileged to use force to effectuate an arrest A private citizen is privileged to use deadly force to |
Arrest: An office is privileged to use reasonable force to effectuate an arrest if they have probable cause. An officer is privileged to use deadly force to stop a fleeing felon that poses a risk of imminent death or serious bodily injury to the officer or to the public.
A private citizen is privileged to use force to effectuate an arrest if the offender has committed a forcible felony (or a misdemeanor amounting to a breach of the peace). A private citizen is privileged to use deadly force to effectuate an arrest if the forcible felony was committed in their presence and the felony poses a risk of imminent death or serious bodily injury to the citizen or the public. The citizen acts in tier own peril for any mistake both reasonable and unreasonable. |
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Shopkeeper's Privilege:
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Shopkeeper's Privilege: A store owner is privileged to detain another person if the owner reasonable believes that the person has taken goods/services without paying. The manner and duration of the detention must be reasonable in order to conduct an investigation.
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Private Necessity:
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Private Necessity: (limited privilege) A person has a limited privileged to commit a trespass if avoiding a greater harm and is protected from liability for the technical trespass; however, if any harm or damage occurs because of the trespass the person must pay for such damage.
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Public Necessity:
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Public Necessity: (absolute privilege) A person has an absolute privilege to commit a trespass if he reasonably believed that such harm was necessary to avoid an imminent public disaster and the manner and extent of the harm is reasonable.
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Negligence (general definition):
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Negligence (general definition): Negligence occurs when one has a duty and fails to act reasonably under the circumstances and causes harm to another person or their property.
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General Duty of Care:
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General Duty of Care: The general duty of care is to conduct yourself as a reasonable prudent person would in the same or similar circumstances.
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Special Duty of Care
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Special Duty of Care
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Common Carriers:
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Common Carriers: Common carries have a very high duty of care (just short of an insurer) to protect their passengers from harm.
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Landowners to Trespassers:
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Landowners to Trespassers: Landowners do not owe a duty of care to unknown trespassers except to avoid willful or wanton harm. Landowners owe a duty to known frequent trespassers to warn of hidden known dangers.
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Landowners to Trespassing Children:
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Landowners to Trespassing Children: the attractive nuisance doctrine applies to young children who are reasonably foreseeable trespasser and would not appreciate the risk and to conditions on the land. The land owner owes a duty to act reasonably in relation to dangerous the landowner knows about or should know about.
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Landowners to Licensees:
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Landowners to Licensees: A licensee is one on the land with permission (but no potential pecuniary benefit of the landowner) and is owed a duty to warn and make safe any known dangers on their property.
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Landowners to Invitees:
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Landowners to Invitees: The landowner owes duty to an invitee (one on the land for the potential pecuniary benefit of the landowner to inspect, make safe or warn of known dangers or dangerous the owner should be aware through a reasonable inspection.
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Lessors:
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Lessors: Lessors generally owe a duty of care to maintain and keep safe the common areas. The lessor has a duty to use reasonable care to make any repairs the lessor has undertaken. Generally the lessee owes a duty of care to people entering the leased premises.
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Health Care Providers:
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Health Care Providers: owe a duty to conduct themselves as an average health care provider within that community. Expert testimony is generally required to establish that medical standard in the community and the expert cannot simply state what that particular expert would have done under the circumstances.
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Children:
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Children: Children owe a duty of care of a reasonable child of the same experience, age, intelligence and education. Unless the child is involved in an adult activity (or an inherently dangerous activity) the standard of care will be that of a reasonable adult.
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Nonfeasance (not acting affirmatively)
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Nonfeasance (not acting affirmatively) – a persons owes no duty to assist or rescue a person in peril. There are some exceptions based on the following: the relationship between the parties; the D created the peril; a duty created by contract; a duty created by statute and when one undertakes to act thereby assuming the duty and must act reasonably and not leaving the person in a worse position.
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General Rule Rescue:
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General Rule: a persons owes no duty to assist or rescue a person in peril...
Exceptions and Qualifications: There are some exceptions based on the following: the relationship between the parties; the D created the peril; a duty created by contract; a duty created by statute and when one undertakes to act thereby assuming the duty and must act reasonably and not leaving the person in a worse position. |
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Breach of Duty –
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Breach of Duty – occurs when one owes a duty and fails to conduct themselves in accordance with the duty owed.
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Violation of Statute:
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Violation of Statute: Negligence per se will apply where there is a statute (usually criminal) that provides the standard of care owed. This is determined by whether the plaintiff is in the class of persons the statue protected and if the type of harm was the type of the statue was designed to prevent. There must be a causal relationship between the violation of the statute and the harm that resulted. Generally licensing statutes do not apply to negligence per se.
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Learned Hand Calculus:
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Learned Hand Calculus: (LP>B = unreasonable conduct – breach) The Hand formula is a balancing mechanism for determining if one has acted unreasonably thereby breaching their duty of care. If the probability of the harm times the magnitude of the loss is greater than the burden of preventing the harm one has breached their duty owed. The analysis should also include the utility of the conduct in conjunction with the burden of preventing the harm.
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Res Ipsa Loquitur:
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Res Ipsa Loquitur: applies when there is no direct evidence of how the accident occurred. The accident generally does not occur absent negligence; it is more likely than not the D negligence; D has control over injury producing instrumentality and the P (or others) did not contribute to the harm. The procedural effects of RIL if the elements are met the case will goes to the jury (majority) or a presumption of negligence will be found and the burden will shift to the D to rebut the inference otherwise the jury must find for the plaintiff (minority).
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Causation –
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Causation – the D breach of the duty owed must be the actual and proximate cause of the injury/harm.
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Actual Cause (factual cause)
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Actual Cause (factual cause)
But For Test: But for the D unreasonable act, the P would not have been injured. Substantial Factor Test: The D was a substantial factor in causing the P injury. Usually applies when there are more than one tortfeasor and an indivisible harm (concurrent causes) or if there is just one tortfeasor but the harm is indistinguishable to show who actually caused the harm. |
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Proximate Cause (legal cause)
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Proximate Cause (legal cause)
Unforeseeable Plaintiff Limitation (Palsgraf situation): Proximate cause is established if the type of harm and the plaintiff are within the scope of danger (foreseeable) created by the D’s unreasonable conduct. Intervening Act: An intervening force will break the causal chain if it is deemed superseding. A superseding force (act) is one that is independent (not responsive) to the D’s conduct thereby deemed unforeseeable. |
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Thin Skull Plaintiff Doctrine:
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Thin Skull Plaintiff Doctrine: A D is liable for the full extent of harm caused by their unreasonable conduct. You take the plaintiff as you find them.
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Defenses
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Defenses
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Contributory Negligence:
Last Clear Chance: |
Contributory Negligence: applies as a complete bar to recovery if the plaintiff’s own negligence in self-protection was a contributing factor to the harm/injury..
.Last Clear Chance: The plaintiff may raise this to counterattack the contributory negligence defense if the D had the last clear chance to avoid the accident then contributory negligence will not bar recovery for the plaintiff. |
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Comparative Negligence –
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Comparative Negligence – not a complete bar but reduces recovery in accordance with the plaintiff’s degree of fault.
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Pure Comparative Negligence:
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Pure Comparative Negligence: the plaintiff can recover minus their degree of fault with no limitation (their degree of fault can be higher the defendants.)
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Partial Comparative Negligence:
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Partial Comparative Negligence: the plaintiff can only recovery if their degree of fault is less than (or equal to in some jurisdictions) the defendant’s fault.
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Assumption of the Risk:
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Assumption of the Risk: AOR is a complete bar to recovery if the plaintiff with knowledge and appreciation of the risk voluntarily exposes themselves to the risk.
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Strict Liability – liability without proving fault.
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Strict Liability – liability without proving fault.
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Possession of Animals:
Wild Animals – Domestic Animals – |
Possession of Animals: A person is strictly liable for harm caused by trespassing animals nominal damaged if no harm occurs.
Wild Animals – one is strictly liable for harm caused by a wild animal so long as the harm that occurred is the type of harm risked by keeping such an animal. A wild animal is one whose species has dangerous propensities. Domestic Animals – one is liable for harm caused by domestic animals if the owner has knowledge of the animals dangerous propensities (one bite rule). |
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Abnormally Dangerous Activities:
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Abnormally Dangerous Activities: (common law was ultra hazardous activities) – one is strictly liable for harm caused by their abnormally dangerous activities. Some activities are per se abnormally dangerous ie. blasting. To determine if activity is abnormally dangerous the court will look at whether the activity can be made safe through reasonable care, if the activity is one common in the area and the social utility of the activity. There must be a causal connection between what makes the activity abnormally dangerous and the resulting harm/injury.
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Strict Liability in Tort:
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Strict Liability in Tort:
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Proper Plaintiff:
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Proper Plaintiff: A proper plaintiff is one who is a foreseeable consumer, user or affected bystander.
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Proper Defendant:
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Proper Defendant: A proper defendant is anyone within the commercial chain of distribution.
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Defect -
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Defect - Types of Defects: There are thee types of defects. A manufacturing defect is where the product emerges from the manufacturer in deviation from its intended design or specifications. A design defect is where the product emerges as intended but there is an inherent flaw is the way the product is designed. A failure to (adequately) warn is where the product lacks adequate warning or information thereby causing the product to be defective.
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Manner of Proof:
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Manner of Proof: The product was defective when it left the D control; there has been no substantial change or mishandling of the product after it left D control and the defect in the product is the actual and proximate cause of the plaintiff’s injury/harm.
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Breach of Warranty -
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Implied: There are two types of implied warranty. Implied Warranty of Merchantability warrants that the product is fit for its ordinary purpose. Implied Warranty of fit for particular purpose applies when the seller has reason to know how the product will be used and the buyer relies on the sellers expertise or knowledge.
Express: An express warranty can occur through words, a writing, a picture, a model or a sample and warrants that the product will be fit as the warranty claims. |
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Defamatory Statement:
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Defamatory Statement: is a false defamatory statement of fact of and concerning the plaintiff published to another and causing harm to the P reputation.
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Publication:
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Publication: must be published either intentionally or negligently to at least one other person
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Libel:
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Libel: is a defamatory writing. With libel per se (on its fact) damages (general and special) are presumed because of the permanent nature of the statement. Unless libel per quod where further extrinsic evidence is required to show innuendo.
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Slander:
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Slander: is a spoken defamatory statement. With slander general damages will be presumed but special damages (economic loss) must be proven unless the statement is slanderous per se.
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NY Times v. Sullivan:
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NY Times v. Sullivan: The First and Fourteenth Amendment of the Constitution applies to defamation cases involving public officials requiring the plaintiff to prove actual malice on the part of the defendant.
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Gertz v. Welch:
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Gertz v. Welch:
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Invasion of Privacy
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Invasion of Privacy – can be categorized as four separate sub-torts.
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Intrusion into Seclusion:
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Intrusion into Seclusion: intentional intrusion either physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns if highly offensive to a reasonable person. It is the intrusion itself that defines the tort not any communication or obtaining anything.
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Appropriation:
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Appropriation: one who appropriates to his own pecuniary use or benefit the name or likeness of another without consent is liable for invasion of privacy.
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Public Disclosure:
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Public Disclosure: Public disclosure of private facts applies where one publicizes private facts which are highly offensive to a reasonable person which are not of a legitimate public interest. The facts must be private and even accidentally placed information into the public record is not deemed private facts.
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False Light:
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False Light: D publicizes false facts that a reasonable person would object to. If it involves a public interest the plaintiff must prove D acted with malice (knowledge of its falsity or a reckless disregard of its falsity or truth).
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Interference with Contract:
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Interference with Contract: this tort protects the intentionally interruption to economic relationships. Recovery will be permitted if D intentionally interferes with a valid existing contract between other parties with knowledge of the contract and the intent to interfere and that interference causes damages to P.
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Interference with Prospective Advantage:
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Interference with Prospective Advantage: Recovery will be permitted when the D intentionally and unjustifiable disrupts the parties legitimate economic expectations not embodied in an actual contract. The D must act intentionally with knowledge of the economic expectation to interfere and because of the interference causes damages to the plaintiff.
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Misrepresentation -
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Misrepresentation -
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Deceit:
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Deceit: D makes a material misrepresentation of a past or present fact with scienter and with the intent to induce reliance causing the P to justifiable rely on the misrepresentation and economic damages result to the P.
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Negligent Misrepresentation:
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Negligent Misrepresentation: occurs when one has a duty to disclose and fails to disclose material facts thereby creating a misrepresentation he will be liable for negligent misrepresentation.
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Nuisance
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Nuisance is conduct that creates conditions of noise, lights, odor, vibrations that interfere with the Plaintiff’s use and enjoyment of the property.
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Public Nuisance:
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Public Nuisance: is an unreasonable interference with the rights common to the general public creating a substantial interference with the public health, safety, peace and comfort or convenience. Generally a public official brings the action but a private citizen may bring an action for public nuisance if their harm is different in kind than that of the general public.
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Private Nuisance:
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Private Nuisance: is an unreasonable interference with the use or enjoyment of the land of the owner or possessor.
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Damages
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Damages
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Compensatory:
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Compensatory: General damages to place the party in the position they were just prior to the tort occurring that caused harm/damage. Pain and suffering, medical bills etc.
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Punitive: damages
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Punitive: damages are designed to punish and deter. Generally not available unless the conduct is intentional or reckless. (ie. may recover punitive damages for intentional torts.)
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Vicarious Liability:
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Vicarious Liability: a person (or entity) may be liable for the torts of another because of the relationship between them. Respondent Superior – an employer will be liable for the torts of their employee committed within the scope of employment.
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Joint and Several Liability:
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Joint and Several Liability: The P may sue either party and recovery fully but can only recovery 100% of damages. The D who paid the recovery may sue the other D for the contribution of their portion of fault. If there is a passive tortfeasor that paid the entire judgment they can sue for indemnification from the active tortfeasor.
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