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38 Cards in this Set

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Always define "Intentional" First
Intent is subjective and either the defendant desires the result or knows to a substantial certainty that the elements of the tort will occur. The five torts that will transfer intent are Battery, Assault, False Imprisonment,Trespass to Chattel, and Trespass to Land.
Discuss Tortious Battery
Under Tort law Battery occurs when the defendant voluntarily acts intentionally to cause harmful or offensive contact with the victim's person. Battery in tort law, unlike criminal law is exclusively an intentional tort. Accidental contact, in contrast, must be analyzed under negligence or strict liability.
Discuss Tortious Assault
Under Tort Law Assault occurs when the defendant's voluntary acts intentionally cause the victim's reasonable apprehension of immediate harmful or offensive contact. Under criminal law assault is attempted battery.
Discuss False Imprisonment
Under Tort law False Imprisonment the defendant unlawfully acts to intentionally cause confinement or restraint of the victim accomplished by 1)physical barriers,2)force or threat of force 3)omission where D has a legal duty to act,4)improper assertion of legal authority,5)no minimum time, and the victim is actually 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.
Discuss Trespass to Chattels
Under Tort law Trespass to Chattels is a voluntary intentional act causing unauthorized interference with the personal property of another intentionally damaging the property, depriving the possessor of its use for a substantial period of time, or totally deprives the lawful owner of his property. Bad Faith not required.
Discuss Conversion
Under Tort law Conversion is an intentional exercise of dominion and control over the property which is such substantial interference with chattel that the defendant may justly be required to pay the other the full value of the chattel. Conversion causes a complete deprivation of the property from the lawful owner's possession.
Discuss Trespass to Land
Under Tort law Trespass to Land is a voluntary intentional act causing an unauthorized entry onto 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.
Discuss Intentional Inflection of Emotional Distress
Under Tort law Intentional Inflection of Emotional Distress is an intentional extreme and outrageous act causing severe emotional distress.
Intent may be shown by either the intentional commission of an extreme and outrageous act or by any act for the purpose of causing emotional distress. And a lack of intent to cause emotional distress is not a defense if the act itself is extreme and outrageous.
What are the Defenses for Intentional Torts? DARN COPS
Discipline, Authority of Law, Recapture, Necessity(private/public), Consent, Others Defense, Property Defense, Self Defense.
Discuss the Defense of Discipline
Under Tort law a person with recognized authority (school teacher, 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.
Discuss the Defense of Authority of Law
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.
Discuss the Defense and Recapture or Recovery of Property.
Under Tort law a person may acting in hot 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. The Supreme Court has recognized that there is no stronger area of privacy that the person's home. The use of mechanical devices is severely discouraged by the courts.
Discuss the Defense of Necessity
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 avoid more substantial public harm, it is a public necessity, it is a complete defense. If reasonably necessary to protect personal safety or private property of the defendant, it is private necessity and the defendant remains liable for actual damages to the plaintiff.
Discuss the Defense of Consent
Under the Tort law Informed Consent from a person with Legal Capacity is a defense to most intentional torts. An individual can convey consent expressly in words or through pictorial gestures. Alternatively, an individual can imply consent. Consent can also be implied by law. When invalidating manifestations of consent look to Incapacity, Action beyond scope of consent, fraud, duress, illegality.
Discuss the Defense of Others
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.
Discuss the Defense of Property
Under Tort law a person may act reasonably with NON DEADLY Force if necessary to protect their property.
Discuss the Defense of Self
Under Tort law a person may act reasonably and with justification to negate intentional liability,if Necessary to protect their safety. Threat must be immediate, reasonable response,and Modernly the majority position is that there is no duty to retreat in most jurisdictions. The minority position requires retreat where serious bodily injury or death would otherwise be required in self-defense.
Discuss Infancy, Insanity, or Incompetence
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 that where the tortfeasor is a child or insane. Not a defense as it would be in a Criminal Prosecution.
Discuss Tortious Negligence
Under Tort law to recover for Negligence, the plaintiff must establish each of the elements by a preponderance of the evidence (more than 50%)to establish a prima facie case. Negligence is a failure to exercise that degree of care that a reasonably prudent person with similar physical characteristics (reasonable blind person)would use in similar circumstance.(consider emergency) A Prima Facie case of Negligence requires showing there was a: DUTY, Standard of Care, BREACH of Duty, Cause in Fact, PROXIMATE CAUSE, and ACTUAL DAMAGES.
Discuss Negligent DUTY
Under Tort law DUTY may be based on (SCRAP) Statute, Contract, Relationship, Assumption, or where Peril to the Plaintiff is caused by the defendant
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.
Discuss Negligent Breach
Under Tort law Breach means that the defendant did not exercise the Standard of Care a reasonable prudent person would normally use in similar circumstances. If the defendant is a child engaged in childlike activities, the standard is the level of care a child of that age, knowledge, and experience would normally use. A child engaged in adult activities is held to the standard of a RPP. 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). Custom typically refers to a well-defined and consistent way of performing a certain activity, often among a particular trade or industry. But if the defendant is Mentally Retarded, insane or ignorant, the standard of care is Not Lowered below that set for the RRP of the community.
Discuss Res Ipsa Loquitur
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. Res ipsa loquitur, a form of circumstantial evidence, may, in limited situations, aid the plaintiff in establishing the defendant's unreasonable conduct. Res Ipsa Loquitor may also be used in malpractice cases taht do not fall within the "common knowledge" exception. Here experts will be needed to show deviation from custom.
Discuss Actual Cause or Cause in Fact
Under Tort law the breach of duty by the defendant must be both the actual and proximate cause of injury to the plaintiff. Actual Cause means that BUT FOR the acts of the defendant the plaintiff would not have been injured. Substantial Factor Test is a supplement to the But test; more than one tortfeaser and difficult to determine which one caused; so each must exculpate or both guilty.
Discuss Proximate Cause
Under Tort law Proximate Cause means that the injury suffered was Forseeable 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. Also, Proximate cause will be found where the Chain of Causation is UNBROKEN by Independent Intervening Events.
Discuss Damages under Tortious Law
Under Tort law the plaintiff must show actual injury resulting from the acts of the defendant. Special Damages are the plaintiff's out-of-pocket costs, and General Damages are allowed for pain and suffering. Tort damages can either be Nominal, Compensatory, or Punitive. The Plaintiff has a duty to mitigate damages.
Discuss Contributory Negligence
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 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 chance to avoid the accident. Always raise this issue as a defense if negligence is an issue.
Discuss Comparative Negligence
Under Tort law Comparative Negligence is a MAJORITY doctrine that recovery by the plaintiff is REDUCED by any amount of his/her own negligence. In Some STATES, a plaintiff who's own negligence contributed to more than half 50%+,of their injury cannot recover, and in other STATES; the plaintiff can only recover from the 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. Always raise this issue as a defense if negligence is an issue.
Discuss Assumption of Risk
Under Tort law Assumption of 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. DO NOT discuss this as a defense unless there are some facts to justify discussion.
Discuss Negligent Infliction of Emotional Distress.
Under Tort law, A Bystander to an event may bring an action for Negligent Infliction of Emotional Distress if they suffer severe emotional distress and there is a nexus between the negligent act and the injury based on Proximity in Time, Place, and Relationship. In some jurisdictions a Physical Manisfestation of emotional distress must be shown.
Discuss Negligence per se Doctrine
The negligence per se doctrine provides that in certain situations a criminal statute (or administrative regulation or municipal ordinance) may be used to set the standard of care in a negligence case.
Discuss a statute as the standard of care?
The judge must examine the statute in order to determine two more things: whether the statute was designed to protect against the type of harm suffered by the plaintiff, and whether the class of persons designed to be protected by the statute includes the plaintiff. This determination is wholly for thejudge to make.
Discuss Professional Negligence
Because of the specialized skill and training needed to be a doctor, lawyer, accountant, architect, or engineer, courts defer to the expertise of the profession to determine the appropriate standard of care. In the professional negligence context, custom plays a determinative role. Custom sets the Standard in Pofessional. Generally, custom evidence is not determinative; it is simply evidence for the jury to consider in its determination of a reasonable prudent person's breach of duty.
Discuss Informed Consent in Negligence Professional Malpractice
Under the Physician Rule informed consent cases are treated like other medical malpractice actions. Where the physician's nondisclosure of a risk of a given procedure or treatment, a plaintiff must show that the customary practice of doctors in good standing in the relevant community is to disclose that risk. And under the patient rule, materiality will set the standard and will depend on the gravity and probability of the potential harm. Paintiff must establish nondisclosure of a material risk and proof of causation.
Discuss the Duty owed to Trespassers
Absent permission or privilege to be on the land, the plaintiff is a trespassor. Under the majority rule the defendant owes the trespassing plaintiff no duty to make the land safe or warn of dangers, only to refrain from causing intentional injury, setting traps, or causing wanton injury.
Discuss Duty owed to Licensees
Where the plaintiff was a licensee, because he has expressed or implied permission of the defendant for being on the land, the majority rule is that the defendant owes no duty to the licensee to make the property safe, but must warn of concealed artificial or natural dangers that are known to the defendant.
Discuss Duty owed to invitees
Where the plaintiff was invited to enter the land in connection with some business dealing with the land possessor and has the status of a business invitee, or where the plaintiff is on land open to the public at large and has status of a public invitee, then the defendant must use reasonable care in maintaining the premises including discovering dangers and either rendering them safe, or if rendering safe impractical, then warning of the presence of the dangers. Failure to use such reasonable care is a breach of duty owed to the plaintiff.
Can a Defendant be liable under strict liability for injuries caused by wild/dangerous animals?
A plaintiff may recover for damage or injuries caused by either a domestic animal where the defendant owner knew or should have known of the animals vicious disposition, or where the damges or injuries were caused by a wild animal's dangerous propensities, regardless of whether the owner or keeper has exercised the utmost care to prevent the injury or damage.
Under Strict Liability, discuss abnormally dangerous activities.
A finding that an activity is abnormally dangerous will be predicated upon the following factors 1)degree of risk to persons or property 2)magnitude of harm 3)inevitability of some risk irrespective of precautionary measures that might be taken 4)the unusual nature of the activity in the community which it is found 5)the activity's value to the community in comparison to the risk of harm created by its presence.