Tort Law - Rule Statements - Concord Jun 09

Front 1

Intentional Torts:

What are the elements of an intentional tort?

Back 1

Volitional Act
Intent
Causation
Harm
Defenses

Front 2

Volitional Act

Back 2

The act or an instance of making a conscious choice or decision.

Front 3

Intent

Back 3

Desire to cause consequences of the act or belief that the consequences are certain to result from act. Defendant must either desire that his act will cause the harmful result described by the tort or is substantially certian that such a result will occur.

Front 4

Causation

Back 4

The Defendant's act (direct causation) or a force set in motion by that act (indirect causation) must cause the plaintiff's injury.

Hint 4

Each separate antecedent of an event. Something that precedes and brings about an effect or a result. A reason for an action or condition. An agent that brings something about.

Front 5

Harm

Back 5

Encompasses any loss or detriment.

Front 6

What are the
Intentional Torts

Back 6

Assault
Battery
False Imprisionment
IIED
Trespass To Land
Trespass to Chattels
Conversion

Front 7

Assault - Rule

Back 7

An intentional act which causes plaintiff to experience a reasonable apprehension of an immediate harm or offensive act.

Front 8

Assault - Apprehension

Back 8

P must have been aware of threatening act at the time or before it terminated.

Front 9

Assault -
Harmful or Offensive
Contact

Back 9

This element is satisfied if the contact threatened would inflict pain or impairment of any body function (harmful) or if a reasonable person would regard it as offensive.

Front 10

Assault -
Reasonable
Apprehension

Back 10

Liability for assault will not be found unless a reasonable person in the same position as plaintiff would have experienced the same apprehension. However, if plaintiff’s apprehension is reasonable, the fact that defendant lacked the actual ability to cause the harmful or offensive contact does not defeat liability.

Front 11

Battery -
Intentional Act

Back 11

Defendant must act with intent either (1) to cause an immediate harmful or offensive contact, or (2) to cause immediate apprehension of such a contact.

Front 12

Assault -
Intentional Act

Back 12

Defendant must act with intent to cause (1) an immediate harmful or offensive contact or (2) the immediate apprehension of such a contact.

Front 13

Battery - Rule

Back 13

An intentional act which causes plaintiff a harmful or offensive contact.

Front 14

Battery - Awareness

Back 14

P need not be aware of the contact.

Front 15

Battery - Harm

Back 15

No intended harm is necessary only the intended contact.

Front 16

Battery -
Harmful or Offensive
Contact

Back 16

This element is satisfied if the contact would inflict pain or impairment of any body function (harmful), or if a reasonable person would regard it as offensive.
§ 3.2(A) “Close” Contact: It is sufficient for a battery if defendant causes a contact with something close to plaintiff, as where defendant snatches a hat from plaintiff’s hand, or pounds on a car in which plaintiff is sitting.
§ 3.2(B) Plaintiff Not Aware:
Unlike assault, plaintiff need not be aware of the contact.

Front 17

False Imprisonment - Rule

Back 17

An intentional act which causes plaintiff to be confined or restrained to a bounded area.

Front 18

False Imprisonment - Intent

Back 18

Merely intent to confine; mistake is not excuse, nor is good faith belief that the confinement is justified.

Front 19

False Imprisonment - Confinement

Back 19

When P is prevented from leaving areas predetermined by D; must be complete; must be not reasonable means of escape/safe exit known to P.

Front 20

False Imprisonment -
Shoppeker's Rule

Back 20

Shopkeeper may have privilege to detain persons suspected of shoplifting for a reasonable time (for the purpose of conducting an investigation).

Front 21

Trespass to Land - Rule

Back 21

An intentional act which causes physical invasion of plaintiff's land of without the right of entry or permission.

Front 22

Intentional Infliction of
Emotional Distress - Rule

Back 22

An intentional act amounting to extreme and outrageous conduct (intentionally or recklessly) that causes plaintiff severe emotional distress.

Front 23

Conversion - Rule

Back 23

Volitional act that is done with requisite intent which causes the destruction of or a serious or substantial interference with plaintiff's property.

Hint 23

Analysis:
General intent- must intend to exercise dominion and control.

Front 24

Conversion - Test

Back 24

1. Extent/duration of interference/unjust control;
2.the intent to assert right of control over another's chattel; 3.extent/duration of the resulting interference;
4. harm done to chattle; and
5. inconvenience and expense caused to the owner.

Front 25

False Imprisonment -
Confinement,
Resistance/Escape,
Plaintiff Not Aware

Back 25

§ 4.2 Confined or Restrained to a Bounded Area: Plaintiff may be confined by the use of physical barriers (e.g., locking plaintiff in a room), by failing to release plaintiff where defendant has a legal duty to do so and where plaintiff cannot escape without defendant’s assistance, or by the invalid assertion of legal authority. No duration of confinement is required—a single moment of confinement will suffice.
§ 4.2(A) Resistance or Escape
Plaintiff is under no duty to resist if the defendant uses or threatens to use physical force (and the threat appears credible). A plaintiff is not “confined” if there is a reasonable means of escape of which she is actually aware.
§ 4.2(B) Plaintiff Not Aware
In general, plaintiff must be aware of the confinement or she must suffer actual harm as a result of confinement. Some cases have held that infants or incompetents who are incapable of being aware of their confinement can nevertheless recover for false imprisonment.

Front 26

IIED - Conduct of D

Back 26

Extreme, outrageous, and intolerable conduct with the intent to cause severe mental distress.

Hint 26

not merely insulting, profane, abusive, annoying, or threatening (unless D was aware of some particular sensitivity by P).

Front 27

Conversion - Intent

Back 27

Intent to exercise dominion or control over the chattel.

Front 28

IIED - Respnse

Back 28

Mental suffering need not have physical manifestation or result in bodily harm. Distress must be severe (not mere unhappiness, mild despondency, long term).

Front 29

IIED - Third Persons

Back 29

Conduct dircted at a third person (T) is actionalbe by P if act of D intentionally or recklessly caused severe emotional distress to P (witness of harm to immediate family, witness of harm manifests into bodily/physical harm, mishandling of corpse).

Front 30

What is
Chattel

Back 30

Tangible personal property or intangible personal property represented by or merged into a document.

Front 31

IIED - Cause

Back 31

Liability only atttaches to the extent that P's emotional response is within the bounds of normal human reactions (unless P extraordinarily sensitive) to conduct by D.

Front 32

IIED -
Intentional Act

Back 32

Defendant must act with intent to cause severe mental distress (but see recklessness).

Front 33

Conversion - Damages

Back 33

Full value of the chattel at the time of conversion, plus interest.

Front 34

IIED -
Recklessness

Back 34

Commentators agree that recovery for infliction of emotional distress should be allowed where defendant acts “recklessly,” meaning that defendant acts in deliberate disregard of a high degree of probability that the emotional distress will follow. (This is contrary to the general notion that reckless conduct is somehow “less wrongful” than intentional conduct, and should probably be considered an exception limited to this tort.)

Front 35

IIED -
Extreme & Outrageous
Conduct

Back 35

This element is satisfied if defendant’s conduct is beyond the bounds of decency—conduct
that a civilized society will not tolerate. Offensive or insulting language is generally not
considered outrageous (except in cases involving defendants who are common carriers or innkeepers, or as to plaintiffs with known sensitivity such as the elderly, children, or pregnant women).

Front 36

Harmful Contact

Back 36

contact which produces bodily harm.

Front 37

IIED -
Severe Emotional Distress

Back 37

Plaintiff must prove that the distress suffered was severe—more than the level of mental distress a reasonable person could be expected to endure. The more outrageous the defendant’s conduct, the easier it will be for plaintiff to establish the requisite mental injury.
§ 5.3(A) No Need for Physical Injury
Most states no longer require the plaintiff to show that actual physical injury accompanied the severe emotional distress.

Front 38

Offensive Contact

Back 38

Contact which offends a resonable sense of personal dignity (hostile, insulting, loathsome, or unduly personal).

Front 39

IIED -
Conduct Directed
at a Third Person

Back 39

Where defendant’s conduct is directed at a third person, plaintiff may recover (assuming other elements of the tort are satisfied) if (1) plaintiff is present when defendant’s wrongful conduct occurs, and (2) defendant is aware of plaintiff’s presence.
§ 5.4(A) Relationship of Plaintiff to Third Person Cases which permitted plaintiffs to recover for infliction of emotional distress arising from defendant’s wrongful conduct to third persons involved plaintiffs who were near relatives or close associates of the person attacked. The commentators suggest that there is no logical reason to limit the principle in that manner, and that a stranger/plaintiff should be permitted to recover, at least where that plaintiff suffers bodily harm (which provides strong evidence of the bona fides of plaintiff’s claim of severe emotional distress).

Front 40

Trespass to Land - Intent

Back 40

Intentional act to enter upon land, cause entry, or remain without privilege.

Hint 40

Analysis: Trespass may be from negligent conduct or abnormally dangerous activity.

Front 41

Trespass to Chattel - Rule

Back 41

Intentional interference with the possession of another property.

Front 42

Trespass to Land - Boundaries

Back 42

Vertical - Extend above and below surface. Aircraft are exception (flight above w/n boundaries of regulations).

Front 43

Trespass to Chattel - Dispossession

Back 43

Taking chattel from owner w/o consent or by fraud/duress.

Front 44

Trespass to Land - Damages

Back 44

No actual harm necessary; may recover for all harm resulting to property, persons, and things upon it including consequential damage.

Front 45

Trespass to Chattel - Intent

Back 45

Merely intent to act upon possession to chattel w/o privilege. Interference my be through physical contact (direct or indirect) and/or impairment of the condition/quality/value of chattel.

Front 46

Trespass to Land - Other Things

Back 46

Action by D merely causes something to enter the land w/o privilege.

Front 47

Trespass to Chattel - Damages

Back 47

Physical contact resulting in damages.

Front 48

Trespass to Chattel -
Intentional Act

Back 48

This element is satisfied when defendant intentionally performs the physical act which interferes with plaintiff’s chattel. Defendant is liable even though he did not intend or recognize the legal significance of his act. Mistake is not a defense to trespass to chattels.
§ 7.1(A) Chattel: “Chattel” means tangible personal property or intangible property which has a physical representation, such as a promissory note, or documents in which title to a chattel are merged, such as warehouse receipts or bills of lading.

Front 49

Conversion - Intent

Back 49

Intent to excersie dominion / control (including by good faith or honest mistake) over the chattel w/o privilege.

Front 50

Conversion - How to Complete Conversion

Back 50

1. Acquire possession;
2. Move Chattel;
3. Make unauthorized transfer, delivery, or disposal;
4. Withholding possession;
5. Destruction / material alteration of chattel; and
6. Mere use of chattel w/o privilege.

Front 51

Defenses to Intentional Torts

Back 51

1. Privilege,
2. Consent,
3. Self-Defense,
4. Defense of Others,
5.Defense and Recovery of Property,
6. Necessity,
7. Authority of Law, and
8. Discipline

Front 52

Defenses - Privilege

Back 52

1. Consent,
2. Privilege created by law irrespective of consent,
3. Mistake - belief that D has privilege to use property

Front 53

Defense - Consent through Conduct

Back 53

P willing for D's conduct to occur. Consent is apparent if P's words or conduct are sufficient to create privilege (even if contrary to P's actual state of mind). Prior custom / usage may exist based on prior relationship.

Front 54

Consent - Capacity

Back 54

Consent my only be given by one having the capacity or by an authorized representative. Infancy, mental incapacity, intoxication my negate consent.

Front 55

Consent - Implied

Back 55

Emergency actually or apparently threatens death or serious harm and there is not time or opportunity to obtain consent, consent will be implied.

Front 56

Consent - Scope

Back 56

Privilege is limited to the conduct consented to or acts substantially similar. Once consent is give, P may not complain of the consequences of D's conduct, even if unseen.

Front 57

Consent -
Mistake / Ignorance / Misrepresentation

Back 57

Consent given pursuant to P's material mistake, misunderstanding or ignorance as to the nature or character of D's proposed conduct or the extent of the harm to be expected from it. Consent is effective unless D knows of the mistake or induced by his misrepresentation.

Front 58

Consent - Informed

Back 58

If D misrepresented or failed to disclose to P the material risks and possible consequences of his conduct, P's consent is not informed.

Front 59

Consent - Duress

Back 59

Consent given under duress (threats of immediate harm - directed at P or P's family; valuable property) is not effective.

Front 60

Consent to Crime

Back 60

Majority View - consent not effective if the conduct consented is to a crime.

Restatement View - consent to criminal conduct is valid unless in violation of a statute making conduct criminal to protect a class of persons irrespective of their consent.

Front 61

Self-Defense

Back 61

Privilege to us so much force as reasonably appears to be immediately necssary to protect self against imminent physical harm threatened by the intentional or negligent conduct of another. Use of deadly force may be reasonable if D believes danger of similar harm; not required to retreat or escape. Privilege exists even when D but mistakenly believes self defense is necessary.

Front 62

Defense of 3rd Person

Back 62

Privilege exists if D comes to the defense of another person under the same conditions and by the same means as D would if defending self. Duty to protect ones land or chattel or another person.

Front 63

Defense of Property

Back 63

D has privilege to use reasonable force to expel another or a chattel from their land, or to prevent the imminent intrusion of another upon interference with his land or chattel.

Front 64

Defense of Property - Request

Back 64

P must first request D to desist, unless it appears that request would be useless or cannot be made before substantial harm is done.

Front 65

Defense of Property - Amount of Force

Back 65

Amount of force must not exceed the actual or threat of force to prevent or terminate the intrusion. Great physical harm or deadly force is not privileged.

Front 66

Defense of Property - Traps

Back 66

Vicious animals, spring guns, concealed traps and mechanical devices are not privileged.

Front 67

Defense of Property - Mistake

Back 67

D has no privilege to defend propety even though D mistakenly believed the intruder had no privilege to enter property, unless intruder mistake does not defeat D's privilege.

Front 68

Defense of Property -
Property of Others

Back 68

Privilege to defend the property of others, if the property owner is a member of D's immediate family / household or is one in the possession D had a duty to protect.

Front 69

Defense of Property -
Forcible Retaking of Chattel

Back 69

Must be in fresh pursuit and demand return (only force used by a reasonable person under similar circumstances).

Front 70

Defense of Property -
Possession of Land

Back 70

D is entitled to immediate possession of land through peaceful means ane retake possession without liability for trespass.

Front 71

Necessity Defense - Rule

Back 71

Privilege may be invoked when D (in the course of defending their property from some threat of imminent serious harm for which P is responsible.

Front 72

Defense of Necessity - Public Necessity

Back 72

Danger to entire community or so many people that public interest necessitate defense against act of another.

Front 73

Defense of Necessity - Private Necessity

Back 73

Danger threatens harm to D or their property privilege to comit the act which causes the trespass or conversion subject to liability for resulting physical harm.

Front 74

Defense of Necessity - Scope

Back 74

Conduct must be reasonable considering the extent of the threatened harm in relation to the foreseeable damage to the property of another.

Front 75

Defense of Authority of Law - Rule

Back 75

Acting under the authority of law is privileged, under certain circumstances, to commit acts which would otherwise constitute assault, battery, confinement, trespass or conversion.

Front 76

Defense of Authority of Law - Scope

Back 76

Discretionary - exercise of significan judgment / discretion in determining how to act.
Ministerial - Not privilege if done improperly, regardless of good faith.

Front 77

Defense of Authority of Law -
Scope: Jurisdiction

Back 77

Acts done w/o jurisdiction are not privileged. Acts done merely "in excess of" D's jurisdiction are privileged if done in good faith.

Front 78

Defense of Authority of Law -
Types of Acts

Back 78

Arrest and prevention of a crime, execution of civil process, writs, court orders, or acts required/authorized by legislation are privileged acts.

Front 79

Defense of Authority of Law -
Use of Force

Back 79

Privilege to break & enter an enclosure / building to use force against the person of another, the amount of such force depend upon the source and nature of privilege exercised.

Front 80

Defense of Discipline -
Rule for Parents

Back 80

A parent is privileged to apply reasonable force or to impose such reasonable confinement upon their child they believe necessary for the proper control, training, or eduction of the child.

Front 81

Defense of Discipline -
Rule for Loco Parentis

Back 81

Privileged extended to persons having responsiblity to apply reasonable force or to impose such reasonable confinement upon the child they believe necessary for the proper control, training, or eduction of the child.

Front 82

Defense of Discipline -
Reasonableness

Back 82

Reasonableness of force / confinement depends upon
1. Parent or responsibility for care,
2. Age, sex, and physical/mental condition,
3. Nature of the offense and D's motive,
4. influence of example,
5. The necessity and appropriateness to compel obedience, and
6. Disproportionate, unnecessarily degrading, likelihood to cause serious or permanent harm.

Front 83

Negligence -
Liability Rules:
Cause of Action

Back 83

1. Duty to act or refrain from acting,
2. breach of failure to confirm conduct to required standard,
3. sufficient causal connection between the negligent conduct and injury result, and
4. actual / provable harm the law says is measurable and compensable in monetary damages.

Front 84

Characteristics
of Negligence -
Definition

Back 84

The conduct which falls below the standard established for the protection of others against unreasonable risk of harm.

Front 85

Negligence - Proximate Cause

Back 85

The harm must be w/n the scope of liability. Not an element of tort but liability limitation that ceases recovery, even when tort elements are established.

Front 86

Characteristics
of Negligence -
Objective Test

Back 86

Whether or not D intended to exercise due care the best they could to act as a reasonable person under the same or similar circumstances.

Front 87

Negligence - Required Care

Back 87

Ordinary / due care of a reasonably prudent person under same or similar circumstances.

Front 88

Negligence - Reasonable Person

Back 88

1. Knowledge, Experience, and Perception;
2. Knowledge Common to the Cmty;
3. Activities Requiring Skill;
4. Physicians;
5. Physical Characteristic;
6. Mental Capacity; and
7. Minors.

Front 89

Negligence - Reasonable Person:
Knowledge, Experience and Perception

Back 89

Judgement of D's conduct will be based on what D actually knew and observed, what a reasonable person would have known or perceived. Person of superior intellegence / memory perception / knowledge / judgment will be held to standard of such a person.

Front 90

Negligence - Reasonable Person:
Knowledge Common to Cmty

Back 90

Reasonable person knowledge of things which are common knowledge in the community - commonly known qualities, habits, and characteristics of human beings, animals, and things.

Front 91

Negligence - Reasonable Person:
Physicians

Back 91

The standard of medical care established by the customary practice of a reasonably, well-qualified practitioner in that field. Specialist are held to standards customary to their field.

Front 92

Negligence - Reasonable Person:
Physical Characteristics

Back 92

The physical deficiency or disability used to measure D's conduct against that of a reasonably prudent person with his physical characteristics.

Front 93

Negligence - Reasonable Person:
Mental Capacity

Back 93

Conduct measured against the reasonably prudent sane, sober and normal person.

Front 94

Negligence - Reasonable Person:
Minors

Back 94

Measure against a reasonable conduct of a child of D's age, intelligence, and experience under similar circumstances - except when child is involved in adult activities requiring special skill and training or a young child incapable b/c lack of mental maturity / experience to assess and respond to risks.

Front 95

Negligence - Conduct in Emergencies

Back 95

May factor in the reasonableness of choice of action when faced with emergency requiring rapid decision. May have been negligent in failing to anticipate the emergency or creating the emergency itself - thus emergency would not apply.

Front 96

Negligence - Sudden Incapacity

Back 96

Negligent if D ought to have foreseen an incapacity and failed to take reasonable precautions to prevent the act.

Front 97

Negligence -
Anticipating Acts of Others

Back 97

Regulation of one's conduct measured in light one can anticipate others will do, as a reasonable person (under similar / same circumstances).

Front 98

Negligence -
Failure to Warn

Back 98

If there is unreasonable risk of harm inherent in D's conduct, D must reduce that risk so far as reasonable possible to exercise reasonable care (adequate warning of the remaining risk)

Front 99

Negligence -
Unreasonable Risk

Back 99

Risk is unreasonable when the foreseeable probability and gravity of harm outweigh the burden to D of alternative conduct that would have prevented the harm.

Front 100

Negligence -
Magnitude of Risk

Back 100

Likelihood that the harem will result in conjunction with the gravity/seriousness of the potential harm. Includes both the extent of damage and the relative societal value of the protected interest.

Front 101

Negligence -
Burden of
Alternative Conduct

Back 101

The burden of reducing/eliminating the risk by alternative conduct. Factors include importance/societal value; utility of the conduct as means to that end; feasibility of alternative/safer conduct; relative cost of safer conduct; relative utility of safer conduct; and relative safety of alternative conduct.

Front 102

(Learned) Hand Test

Back 102

Balance for determining whether the conduct creates and unreasonable risk of harm.

B > PL
The burden (B) and utility of the conduct compared to alternative safer conduct must be greater than the probability (P) that harm will result from the proposed conduct multiplied by the gravity of the harm/loss (L) that will probably result.

Front 103

Proof of Negligence -
Burden of Proof

Back 103

P must introduce sufficient evidence to support a finding by a perponderance of the evidence on each element of cause of action.

Front 104

Negligence -

Elements

Back 104

1. Duty
2. Negligence
3. Causation
4. Damages

Front 105

Res Ipsa
Loquitur

Back 105

The thing speaks for itself.

Rule of circumstantial evidence in which P can make out a prima facia case of D's negligence by proving that the instrumental cause of P's injury was under the control of D and the occurrence would not have happened in he absence of negligence by D.

Front 106

Prima Facie

Back 106

Evidence sufficient to make a submissible case (sufficient to support a jury's finding) on each element of a cause of action or defense.

Front 107

Product Liability

Back 107

P need not prove the specific defect in the product, so long as the evidence tends to show thta the product malfunctioned in such a way that the existence of a defect may be inferred and also tends to exclude possible causes other than product defect.

Front 108

What are the
Elements of a Tort?

Back 108

Duty
Breach of the Duty
Causation
Injury

Front 109

Duty

Back 109

The defendant must owe a legal duty to the victim. A duty is a legally enforceable obligation to conform to a particular standard of conduct. Except in malpractice and strict liability cases, the duty is set by what a "reasonable man of ordinary prudence" would have done. There is a general duty to prevent foreseeable injury to a victim.

Front 110

Breach

Back 110

The defendant breached that duty.

Front 111

Causation

Back 111

The breach was the cause of an injury to the victim. The causation does not need to be direct: defendant's act (or failure to act) could begin a continuous sequence of events that ended in plaintiff's injury, a so-called "proximate cause."

Front 112

Injury

Back 112

There must be an injury. In most cases, there must be a physical or financial injury to the victim, but sometimes emotional distress, embarrassment, or dignitary harms are adequate for recovery.

Front 113

Trespass to Land -
Intentional Act

Back 113

Defendant must act with intent to cause a physical invasion of plaintiff’s land. Intentional entry onto land is a trespass even though defendant does not realize he has crossed a boundary line, or has a good faith belief that his entry is lawful. Mistake is not a defense as to a trespass action.
§ 6.1(A) Plaintiff Must Be in Possession
In order to bring an action for trespass, plaintiff must be in actual possession or have the right to immediate possession of that land. Distinguish “possession” from “ownership”— an adverse possessor or a lessee may maintain a trespass action against entering wrongfully
onto land possessed (but not owned) by them. Similarly, if the person who holds legal title to the land is not in possession, that person may not maintain a trespass action as to that land.

Front 114

Trespass to Land -
Physical Invation of
Plaintiff's Land

Back 114

This element is satisfied if defendant enters or causes a third person or object to enter onto plaintiff’s land, enters onto plaintiff’s land lawfully but then remains when under a legal duty to leave, or fails to remove an object from plaintiff’s land when under a legal duty to do so.
§ 6.2(A) Intrusions Not Involving a Discernible Physical Object
Some events which might logically be considered intrusions onto land, such as airborne pesticides which float onto plaintiff’s land from defendant’s crop dusting of adjacent property, were traditionally addressed by tort law under nuisance or strict liability principles. Some jurisdictions have begun treating such invasions as trespasses to land if actual harm was caused thereby.
§ 6.2(B) Air and Sub-Surface Areas
“Plaintiff’s land” includes the area both above and beneath the surface. Traditionally, plaintiff’s land was thought to include the air space and the subsurface to a level that plaintiff did or could make beneficial use of.
(1) Aircraft: Aircraft flying at or above normal flight altitude do not “trespass” on the land above which they are flying. An intrusion into plaintiff’s “airspace” may be trespassory if it both (1) enters into the “immediate reaches” of that airspace and (2) interferes substantially with the use and enjoyment of plaintiff’s land.

Front 115

Trespass to Chattel -
Interference

Back 115

Interference with plaintiff’s chattel is actionable if it constitutes dispossession or intermeddling. (Distinguish more serious interferences with plaintiff’s chattel which would amount to a conversion, discussed below.)
§ 7.2(A) Dispossession:
Dispossession is a direct interference with plaintiff’s possession, such as where defen-
dant temporarily takes plaintiff’s chattel or wrongfully refuses to return it.
§ 7.2(B) Intermeddling
Intermeddling is an interference with a chattel that does not directly affect the plaintiff’s possession. Examples: smearing mud on plaintiff’s truck, or kicking plaintiff’s dog.

Front 116

Trespass to Chattel -
Possession

Back 116

The plaintiff must have been in actual possession or have had the right to immediate possession of the land.

Front 117

Trespass to Chattel -
Damages

Back 117

Proof of actual damages is and element of the cause of action. Actual damages would include the value of loss of use of the chattel during a dispossession, or the cost to remedy and intermeddling.

Front 118

Conversion -
Intentional Act

Back 118

As with trespass to chattels, mistake is not a defense to trespass to chattels. Defendant is liable even though he did not intend or recognize the legal significance of his act.

Front 119

Conversion -
Destruction Serious
Interference

Back 119

“Destruction” or “serious and substantial interference” with plaintiff’s chattel is alternatively described in the cases as “the exercise by defendant of dominion and control” over the chattel. This is an interference with plaintiff’s property interest that is more serious than in a trespass to chattels. In distinguishing between the two torts, the longer the period
of interference and the greater the use of the chattel by defendant, the more likely it will be considered a conversion rather than a trespass to chattels. The following types of acts are likely to be classified as conversions:
A. wrongful acquisition (theft, embezzlement, receiving stolen property)
B. wrongful transfer (selling, misdelivering, pledging)
C. wrongful detention (withholding from owner)
D. loss, destruction or severe damage
E. material alteration
F. misuse

Front 120

Conversion -
Remedies

Back 120

Plaintiff is generally permitted to elect either recovery of damages (usually fair market value plus consequential losses) or replevin/detinue/claim and delivery (compelling defendant to return a converted chattel, with recovery of damages attributable to its wrongful
detention).
§ 8.3(A) Offer by Defendant to Return Chattel: If the defendant offers to return plaintiff’s chattel, this does not alleviate the conversion, and plaintiff need not (but may) accept the return. Such an offer might be considered in mitigation of damages by a defendant who “innocently” converted plaintiff’s chattel (e.g., defendant unknowingly received property stolen from the plaintiff by a third person).

Front 121

Defenses and Privileges
to Intentional Torts -
Consent

Back 121

?????

Front 122

Negligence -
Degrees of
Care

Back 122

The duty of those who conduct certain dangerous activities is sometimes stated as greater than "ordinary" or "reasonable" care.

Front 123

Negligence -
Common Carrier Duty
of Care

Back 123

Common carriers are said to owe their passengers "the highest degree of care consistent with the ode of conveyance used and the practical operation of their business.

Front 124

Negligence -
Dangerous
Instrumentalities

Back 124

Persons responsible for certain dangerous instrumentalities (e.g., high-voltage) must exercise a "high degree of care commensurate with the danger.

Front 125

Negligence -
Recklessness Definition

Back 125

Reckless disregard of the safety of another (i.e., wilful and wonton misconduct) when D knows or has reason to know that:
1. acts of D create an unreasonable risk of harm and
2. the risk is relatively high, either in degree or in the probability that harm will occur. Distinguished from negligent conduct D must be conscious that it creates a relatively high risk of harm to another.

Front 126

Negligence -
Distinguish from
Intentional Torts

Back 126

Intentional tort when D intends to bring about the consequences or knows that they are substantially certain to occur. Reckless conduct las that certainty of result.

Front 127

Negligence -
Duty and Relationship

Back 127

D has duty to exercise reasonable care to avoid subjecting others and their property to unreasonable risks of physical harm Negligence law has traditionally held that D is not subject to liability to P unless D breached a duty owed to P and not someone else.

Front 128

Negligence -
Nature and Scope
of Risk

Back 128

Conduct may be negligent because it foreseeably threatens property damage but not personal injury, or may foresee one type of harm to P but it actually causes another type of harm as to which the risk was not unreasonable.

Front 129

Negligence - Misfeasance

Back 129

Tortious conduct consisting of an affirmative act

Front 130

Negligence - Nonfeasance

Back 130

in action which results in, or allows, harm to P.

Front 131

Negligence - Relationships
Creating Duty

Back 131

Per-exising relationships which support duty to aid or protect another include carrier-passenger, inkeeper-guest, landowner-lawful entrant, emlpoyee-employer, jailer-prisoner, school-student, parent-child, store-customer, husband-wife, host-guest.

Front 132

Negligence -
Responsible for
Peril or Injury

Back 132

Duty arises when D is responsible for P's injury or position of peril, whether or not D was negligent.

Front 133

Negligence -
Aid to Helpless

Back 133

One who undertakes to render aid or protect P, who is helpless and adequately aid or protect himself must do so with reasonable care. Having undertaken the duty, D may not abandon P or leave him worse off.

Front 134

Negligence -
Services

Back 134

When D undertakes to render services which he knows or should know are for Ps protection, D must perform those services with reasonable care, at least if:
1. his failure to do so increases the risk of harm to P or
2. P's injury results form his reliance on D.

Front 135

Negligence -
Duty Arising
Ex Post Facto

Back 135

If D does an act, not tortious a the time and later discovers that his act creates an unreasonable risk of harm to P, D must exercise reasonable care to prevent the risk form taking effect.

Front 136

Negligence -
Statutory Duty
of Protection

Back 136

When a statute requires one to act for the protection of another, the court may (or may not) use the statute as a basis for an affirmative duty and its scope.

Front 137

Negligence -
Duty to Control
Conduct of Another

Back 137

Certain relationsips carry with them a duty by D the dominant/custodial member, to use reasonable care to regulate the conduct of:
1. the person with in his custody or control so as to protect third persons or
2. third persons so as to protect the person in his custody or care.

Front 138

Negligence -
Parent to Child

Back 138

Parent must exercise reasonable care to prevent tortious conduct by his child provided the parent knows or has reason to know he has the ability and knows or should know of the necessity and opportunity to exercise such control.

Front 139

Negligence -
Master-Servant

Back 139

Master has similar duty with respect to servant; even extends to one acting outside the scope of is employment if the servant is on the master's premises or using his chattel.

Front 140

Negligence -
Person on D's Land

Back 140

D has similar duty with respect to a person using his land or his chattel in his presence and with his permission.

Front 141

Negligence -
Custodian of Dangerous
Persons

Back 141

If D has custody of a person D knows to have dangerous propensities, Du must exercise reasonable care to prevent that person form doing harm.

Front 142

Negligence -
Duty to Protect
Person in Custody

Back 142

If D has custody of P under circumstances such that
1. P is deprived of his normal power of self protection or
2. P must associate with persons likely to harm him, then D has a duty to exercise reasonable care to prevent tortious conduct against P.

Front 143

Negligence Defenses
Contributory & Comparative
Rule

Back 143

Contributory negligence is conduct by P which creates an unreasonable risk of harm to P, and which combines with D's negligence to cause P's injury. Generally, contributory negligence uses the same rules and tests as negligence.

Front 144

Negligence Defenses
Contributory & Comparative
Burden of Proof

Back 144

Contributory negligence is an affirmative defense

Front 145

Negligence Defenses
Contributory & Comparative
Effect of Plaintiff's
Contributory Fault

Back 145

Contributory negligence was once a complete defense that totally barred Ps recovery. No in most jurisdiction, it merely reduces his damages pro tanto, although it can still be a complete bar.

Front 146

Negligence Defenses
Contributory & Comparative
Comparative

Back 146

Ps contributory negligence is not complete bar to is recovery (in all but four state and the District). Ps damages are calculated and then reduced by the proportion which Ps fault bears to the total causative fault of Ps harm.

Front 147

Negligence Defenses
Contributory & Comparative
Types of Comparative
Negligence

Back 147

Minority Rule - P may recover a portion of his damages no matter how great P's negligence in comparison to that of D.
Majority - P recovers nothing if P's negligence was as great as or greater than D.

Front 148

Negligence Defenses
Contributory & Comparative
Assigning Shares

Back 148

1. the duty owed by each person,
2. extent to which each person's conduct deviated from that duty, &
3. extent to which the tortious conduct of each person caused the injury in question.

Front 149

Negligence Defenses
Contributory & Comparative
Intentional or Reckless
Conduct

Back 149

Majorty - P's contributory negligence will reduce P's recovery even though D's conduct was reckless but not if it was intentional.

Front 150

Negligence Defenses
Contributory & Comparative
Strict Liability

Back 150

Some comparative negligence jurisdictions permit P's ordinary contributory neligence to reduce P's damages;
Other jurisdiction reduce P's damages only for assumption of the risk.

Front 151

Negligence Defenses
Contributory & Comparative
Safety Statutes

Back 151

Contributory negligence is not a defense to action founded upon certain types of safety statues intended to protect a class of persons from dangers against which they are incapable of protecting themselves.

Front 152

Negligence Defenses
Contributory & Comparative
Serious Misconduct

Back 152

In some jurisdiction, if P's contributory fault was seriously unlawful or immoral conduct, P will be barred from recovery.

Front 153

Negligence Defenses
Contributory & Comparative
Causation

Back 153

Same as negligent conduct. Defense not available unless P's harm results from the risk which made P's conduct negligent.

Front 154

Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
GENERAL RULE

Back 154

Negligence of a 3rd person will not be imputed to P so as to reduce or bar P's recovery for injuries caused by D's negligence.

Front 155

Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
EXCEPTION - Master/Servant

Back 155

Master's recovery against a negligent D is reduced/barred by the negligence of his servant acting within the scope of employment.

Front 156

Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
EXCEPTION - Joint Enterprise

Back 156

P is injured by the concurrent negligence of D, a 3rd person outside the enterprise, and another member (M) of the enterprise. Ps recovery against D is reduced by M's negligence.

Front 157

Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
EXCEPTION - Consequential Damages

Back 157

Where P has a cause of action based on person injuries to another (A), P's recovery is reduced by A's contributory negligence.

Front 158

Negligence Defenses
Contributory & Comparative
Imputed Contributory Negligence
P's Negligent Failure

Back 158

General: If P has a duty to control the conduct of another (A) and negligently fails to do so, A's contributory negligence (combined with P's) reduces/bars P's recovery against D (also contributory to P's injury). Parent's recovery from D for injuries to P's child caused by D's negligence may be reduced/barred by P's negligence in protecting/supervising his child.

Front 159

Negligence Defenses
Contributory & Comparative
Assumption of Risk

Back 159

Common Law-If P voluntarily assumes a risk of harm arising from negligent/reckless conduct of D, P cannot recover.

Front 160

Negligence Defenses
Contributory & Comparative
TERM - Express

Back 160

P expressly agrees (usually written in advance) to relieve D of duty to exercise care for P's safety with respect to known or possible risk.

Front 161

Negligence Defenses
Contributory & Comparative
TERM - Inherent Hazards
Not Arising From Negligence

Back 161

P choose to engage in an activity which has certain inherent and commonly accepted risks, even though others exercise proper care.

Front 162

Negligence Defenses
Contributory & Comparative
TERM - Risk of Future Negligence

Back 162

P voluntarily enters into a relationship with D knowing that there is a risk that D will act negligently.

Front 163

Negligence Defenses
TERM - Assumption of Existing
Negligently-Created Risk

Back 163

P is aware of risk created by the negligence of D, proceeds/continues voluntarily to encounter it.

Front 164

Negligence Defenses
EXPRESS Assumption of Risk

Back 164

Rule - If P expressly agrees to accept a risk of harm arising from D's negligent conduct, P cannot recover for such harm, unless agreement is invalid.
Construction - Agreements construed against D, are not enforceable if P was reasonable ignorant of the term.
Public Policy - Agreements are unenforceable when contrary to public policy.

Front 165

Negligence Defenses
IMPLIED Assumption of Risk
RULE

Back 165

Rule - If P knows, appreciates and understands the risk of harm created by D's negligent/reckless conduct, and subjects himself to the risk by conduct which impliedly manifest his consent to accept the risk, then D is subject to the assumption of risk defense.

Front 166

Negligence Defenses
IMPLIED Assumption of Risk
ELEMENTS

Back 166

Manifestation of Consent - consent to accept the risk, and therefore P's conduct must impliedly manifest that consent.
Knowledge & Appreciation of Risk - Consent must be an informed one, and therefore D must show that P knew of the existence of the risk, and understood and appreciated its unreasonable character.
Voluntariness - P's assumption of the risk must be voluntary
Violation of Statute - P's assumption of risk bars/reduces P's recovery based on D's violation of a statute, unless this result would defeat a policy of the Statute.

Modern views towards movement to abolish this as negligence defense as it overlaps completely with the doctrine of contributory negligence. Those who participate in professional/amateur sporting events assume the risk of injuries resulting from other players' misconduct.

Front 167

Negligence Defenses
STATUES OF LIMITATIONS

Back 167

P must file timely. Statute of limitations (SOL) is usually an affirmative defense that is waived if not asserted. SOL usually begins the date the cause of action accrues/date on which the injury occurs/death.

Front 168

Negligence Defenses
STATUTES OF REPOSE

Back 168

Supplement and override statutes of limitations, the discovery rule and other similar rules and exceptions. Instead an outer limit beyond which D can no longer be held responsible for a completed activity, irrespective of whether an injury has occurred.

Front 169

Negligence Defenses
NOTICE OF CLAIM
Statutes

Back 169

Statutes sometimes require P to give notice to the potential D with in a certain period, especially when D is government entity.

Front 170

Negligence Defenses

Immunities - Gov Employee

Back 170

Tort liability for US Gov employees acing within the scope of office where the US (as if private person) would be liable to plaintiff

Front 171

Negligence Defenses

Immunities - Charities

Back 171

Not Defense:
Charitable, educational, religious and benevolent organization only exists in few jurisdiction.

Front 172

Negligence Defenses

Immunities -
Spouse/Parent/Child

Back 172

Not Defense:
Based on relationship; generally not a defense.

Front 173

Causation

Proximate Cause - RULE

Back 173

Legal Cause / Scope of Liability
Liability of Defendant is limited to persons and consequences that bear some reasonable relationship to Defendants tortious conduct.

Hint 173

Unforseeable Consequence
MAJORITY: Defendant's liability is limited to 1-the forseeability of D's tortious conduct and 2-persons within that foreseeable zone of danger.

Front 174

Causation

Cause in Fact - RULE

Back 174

Defendant's liability is limited to injury that would not have occurred "BUT FOR" D's conduct.

Hint 174

sine qua non - w/o which it could not be

Front 175

Causation Proximate Eggshell Rule

Back 175

Take the victim as you found them. Defendant liable for full consequences of Plaintiff's injury (even if greater than reasonable person....circumstances) if harm to P was reasonable type foreseeable (b/c P is unusually susceptible to the injury).

Front 176

Causation

Cause in Fact - Proof

Back 176

Cause of Plaintiff's harm must be linked to Defendant's tortious conduct.

Front 177

Causation

Cause in Fact - Indivisible

Back 177

If the tortious conduct of Defendant 1 and 2 concur and both are cause of Plaintiff's harm, either or both are liable for full damages.

Front 178

Causation

Cause in Fact - Divisible

Back 178

If the tortious conduct of Defendant 1 and 2 each cause separate parts of Plaintiff harm, each D is liable for only the part of the harm caused by their tortious action.

Hint 178

Market Share Liability - When Plaintiff is harmed by product that was produced and sold by multiple manufacturers, the manufacturer representing a substantial share of the product at the time of consumption can be jointly and severablly liable for proportional part of Plaintiff's harm.

Front 179

Causation

Cause in Fact - Joint

Back 179

???

Front 180

Causation

Cause in Fact - Severable

Back 180

???

Front 181

Causation

Intervening Cause

Back 181

Conduct by a third party after Defendants tortious conduct, operating with or upon D's act to produce Plaintiff harm.

Hint 181

If cause was foreseeable or was not foreseeable but the consequences were the type D could foresee, D is liable.

Front 182

Negligence -

Attractive Nuisance

Back 182

Defendant is subject to liability for physical harm to trespassing children caused by an artificial condition upon the land if D fails to exercise reasonable care to eliminate or otherwise protect them.

Hint 182

D must know/knowledge that 1-condition where it exists is where children are likely to trespass; 2-children (who could foreseeably trespass) will be attracted; 3-the condition exists and should have realized potential harm to children; 4-b/c of youth, children would not realize risk of harm; 5-burden of eliminating danger were outwieghed by the risk to children.

Front 183

Negligence -

Licensee

Back 183

Person who has priviledge to enter or remain on land but is not an invitee.

Hint 183

D is liable for intentional and reckless (wilful and wanton) conduct.

Front 184

Negligence -

Invitee

Back 184

Public - person invited to enter/remain as a member of the public for which land is held.

Business Visitor - expressed/implied from Defendant's conduct to enter/remain for purpose connected with business dealings.

Hint 184

D must exercise reasonable care for invitees.

Front 185

Product Liability

Negligence

Back 185

Defendant is not only liable to the ultimate purchaser but to all persons foreseeably exposed to the risk.

Front 186

Product Liability

Expressed & Implied

Back 186

Expressed warranties are promissory assertion of fact.

Implied warranties imply minimum standards of quality, including safety.

Front 187

Product Liability

Back 187

Unreasonably Dangerous-product defect renders it "unreasonably dangersous" to the consumer. D liable for design defects, errors/omissions in manufacturing/assembly/production, and inadequate warring potential harm or directions for proper use.

Front 188

Vicarious Liability

Rule

Back 188

While acting on behalf of another, Defendant is liable for harm to Plaintiff for tortious actions committed. May subject third party (for whom D is acting).

Front 189

Vicarious Liability Master-Servant

Back 189

If at the time of the act, the servant was acting in course/scope of duties, master/employer is vicariously liable for harm to Plaintiff.

Hint 189

Scope/course depends on job description, time/place and purpose of actions, and foreseeability of action.

Front 190

Vicarious Liability

Independent Contractors

Back 190

Employer is not vicariously liable for physical harm caused by the tortious conduct of an independent contractor.

Exception is when the employer fails to exercise reasonable care (i.e., instructions, selection of competent/experienced persons, and working equipment).

Front 191

Vicarious Liability

Employee

Back 191

Employer must provide reasonable safe working environment,

Hint 191

Defense: assumption of risk, contributory risk and fellow servant rule.

Front 192

Vicarious Liability Fellow Servant Rule

Back 192

Employer is not liable for and injury to an employee caused solely by the negligence of a fellow servant in the performance of work.

Front 193

Vicarious Liabilty Automobiles

Back 193

Owner who is the passenger in his own vehicle is not liable for the negligence of the driver. May be liable for any failure to exercise control over the driver / maintenance of vehicle.

Front 194

Nuisance Liability Private Action

Back 194

Action/thing that substantially/unreasonably interferes with Plaintiff's use and enjoyment of land.

Front 195

Nuisance Liability Private Fault

Back 195

D's interference mus be intentional, reckless, negligent or the result of abnormally dangerous activity to be strict liability.

Front 196

Nuisance Liability Private Gravity

Back 196

Gravity of harm is based on 1-extent; 2-character; 3-social value impact to P's use/enjoyment; 4-suitablity of use/enjoyment; and 5-burden of P to avoiding harm.

Front 197

Nuisance Liability Private Remedies

Back 197

damages in one action; injunction to stop D from action

Front 198

Nuisance Liability Private Defenses

Back 198

Contributory, Assumption of Risk, Coming to Nuisance, Others Contribution to Nuisance.

Front 199

Nuisance Liability Public

Back 199

Volitional act that substantially and unreasonablly interferes with a right common to the general public (health, safety, peace, comfort, convenience). Interference must be common to the public as a class.

Front 200

Nuisance Liability Public Remedies

Back 200

Prosecution by government (criminal or civil).

Front 201

Negligent IIED Rule

Back 201

Conduct of Defendant results in any impact with Plaintiff's body support D's liability for IIED.

Front 202

Negligent IIED Zone of Danger

Back 202

Defendant's conduct threatens (not resulting in) bodily harm, Plaintiff may recover based on the fear, shock or emotional distress caused by presence in zone of danger.

Front 203

Negligent IIED Bystander Rule

Back 203

Defendants conduct not generally liable if it threatens/causes physical harm to a third person and Plaintiff suffers emotional distress as a witness.

Hint 203

Exception-Plaintiff may recover if 1-injury is serious; 2-P is immediate family of person in peril; 3-shock results in bodily harm to P; 4-event is short in duration; and 5-P is a witness to event or immediate aftermath.

Front 204

Causation Proximate Fear of Future Harm

Back 204

Plaintiff may be allowed to recover for mental distress where P was exposed/fears harm resulting from Defendants action.

Hint 204

P must show actual exposure will result in harm (>50% probability); fear results in sever emotional distress due to impending harm.

Front 205

Defamation

Rule

Back 205

A defamatory communication that lowers the plaintiff in the esteem of the community or discourages third parties form association/business deals.

Front 206

Defamation

Per Se

Back 206

Defamation that is apparent on the face of the message that it will injure the plaintiff's reputation.

Front 207

Defamation

Libel

Back 207

Recorded/preserved (written, audio, video) communication to a third party that lowers the esteem of the plaintiff in the community or discourages third party association/business.

Front 208

Defamation

Libel Per Quod

Back 208

Libel that is not obvious (on the face of the communication) that it is defamatory. Plaintiff must plead and establish extinsic facts to establish the defamation (demonstrate special damages).

Front 209

Defamation

Slander

Back 209

Spoken communication (not preserved) to a third party that lowers the esteem of the plaintiff in the community or discourages third party association/business.

Front 210

Defamation

Slander Per Se

Back 210

Slander that is presumed so harmful that the plaintiff suffered damages from the mere utterance.
Notorious Crime, Loathsome Disease, Business/Trade/Office,
Unchastity

Front 211

Defamation

Slander Per Se

Notorious Crime

Back 211

Slanderous communication that imputes the plaintiff committed a crime involving moral turpitude or infamous punishment.

Front 212

Defamation

Slander Per Se

Lothsome Disease

Back 212

Slanderous communication that one has an incurable/loathsome disease.

Front 213

Defamation

Slander Per Se

Business/Trade/Office

Back 213

Slander which imputes behavior or characteristics that are incompatible with the proper conduct of the plaintiff's business, office, trade or profession.

Front 214

Defamation

Slander Per Se

Unchastity

Back 214

Slander Per Se to falsely impute unchastity (traditionally of a woman)