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109 Cards in this Set
- Front
- Back
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What are the 3 Elements of Trespass to Land?
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Enters
Land With Intent |
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With regard to trespass to land, there are two schools of thought on what constitutes a trespass against you land. What is traditionally recognized, and what does the modern trend sometimes recognize?
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Traditional: tangible thing Only
Modern - Most align with traditional, some say non-tangible, like ash from a fire. |
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How do you define intent for trespass to land?
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Knowledge or purpose to a degree of substantial certainty
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Is mistake a defense to Intentional Torts?
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Mistake is not a defense to any intentional torts. The only exception is when mistake is reasonable.
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What is a reasonable mistake to satisfy a trespass in intentional tort?
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You act with good faith:
You attack a man you think is kidnapping a child, only to find out it was her dad. |
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What's the gist of the Harrah's casino case?
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Construction crew building a casino did not intent trespass on a vacant lot, but intended to enter it. Rule is that you only need intend action, not trespass.
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What was the gist of the "ditch" case?
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Couple comes home to ditch in their driveway, husband dies. Court said you don't have to foresee potential damage to be liable for damage.
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What are the 4 ways trespass to chattel is committed?
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1)Dispossess another of the chattel,
2) Use that imairs condition, quality, or value 3) Possessor deprive of use for substantial time 4) harm is caused to some person or thing in which the possessor has a legally protected interest |
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What are the 3 elements of trespass to chattel?
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INTERFERENCE with possessory interest in a
CHATTEL With INTENT |
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If you don't want me to touch your car, and I do it anyway, am I liable for trespass to chattel?
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No, only if actual damage results.
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If I use your suitcase for a week without your permission, am I liable for T2Chattel? How about a minute?
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Week - Yes, because I prevented you from exercising possessory rights.
Minute - probably not, unless that minute was crucial under facts & circumstances. |
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What is conversion? What can you be required to pay?
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Intentional exercise of dominion or control which seriously interferes with right of another to control.
You can pay full value of chattel. |
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What are the important factors to determine seriousness of conversion interference?
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Extent and Duration of both interference and conversion
Good/Bad Faith Intent Harm to Chattel Inconvenience/Expense caused to owner. |
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X takes coke formula, copies, intends to sell formula, but returns paper. Is this a conversion?
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Yes, the formula is being converted. It's a serious interference with coke's right to keep formula secret.
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What is the relationship between trespass to chattel and conversion?
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Conversion is a serious type of trespass to chattel, but trespass to chattel is not conversion.
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What damages can you be liable for when guilty of conversion if chattel is:
Destroyed Damaged, but intact Undamaged, just unusable for missing time. |
Destroyed: market value at time of conversion, but not the time found guilty.
Damaged: Value before damage minus value after damage Intact, but gone: Use/rental value of another chattel during deprivation. |
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What are the 4 necessary elements to prove negligence?
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Duty
Breach Causation Damage + Prima Facie Cause |
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For negligence, how is duty measured? (subjective/objective?)
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Duty is measure objectively. How would a reasonable person act in the same or similar situation?
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What are the 3 standards for determining the duty owed by a child?
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Child Standard - hold only to other children of similar age, intelligence, or experience.
Adult Standard - Applied when child is engaged in "adult activity" Rule of 7 - Age 7, Age 7-14, 14+ (NC) |
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Explain the Rule of 7.
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Age 7 or under, not capable of negligence.
Age 7 - 14 capable of being proven, but assumed not negligent. Age 14+ adult standard. |
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What kinds of activities would constitute an "adult activity" sufficient to hold a child liable as an adult?
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Driving a car, snowmobiling, shooting a gun,
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How do you apply the reasonably prudent standard to a child under the "adult standard"?
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Apply reasonably prudent if:
Inherently Dangerous Activity Adult Activty, or BOTH |
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What is the duty of care for a person with a mental disability? Why?
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Still the reasonably prudent standard.
Fairness to victim, Encourage responsibility, False Claim Prevention, Easy to Administer/measure |
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What is the only, rare, exception to reasonably prudent standard being applied to mentally ill person? What is the standard?
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Exception when sudden onset.
New standard is reasonable person suffering from that condition. |
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How is duty measured for a person with physical disability? Does intoxication count?
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Measured as reasonably prudent for person suffering from that physical disability.
For intoxication, it's measure as a sober person. |
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What are the 3 elements of battery?
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Intent to commit a
Harmful/Offensive Contact |
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What is the two prong test for intent to commit a battery?
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1) Intend the act - external manifestation of defendant's will
2) Intend the contact - desire to cause unpermitted contact or knowledge to a degree of substantial certainty. |
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Define intent in a single and dual intent jurisdiction.
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Single Intent - Only have to intend to commit the action that resulted in injury.
Dual Intent - Must have intended both ACT & Harmful/Offensive Contact |
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Explain Waters v. Blackshear (Firecracker Case)
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Firecracker placed in the shoe of one child by another child. Placing child had been playing w/ firecrackers, so he could anticipate likely result. Intent to commit battery.
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Is intent measured subjectively or objectively?
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Subjectively - you want to know what the specific person intended, not what a reasonable person would have thought.
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When do you use objective standard?
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When you want to know whether a reasonable person would find something offensive, or when a reasonable person would be become apprehensive. (VICTIM ORIENTED)
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Discuss transfer of intent from battery to assault or assault to battery.
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B-A: you intend to batter a person but instead miss. They saw/anticipated an imminent battery, so it was an assault. You didn't have to intend it to be an assault.
You make someone think you're going to hit him with a gun but it accidently goes off . . intent transfers. |
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What are the 2 kinds of Consent?
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Implied & Expressed
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What contact is considered offensive?
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contact which is offensive to a reasonable sense of personal dignity
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Is NC a single intent or a dual intent state? What does that mean?
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NC is a single intent, meaning that you must only intend to commit the action, not the harmful/offensive result.
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What are the 3 elements of an assault?
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Intention to cause
An apprehension of an Imminent Harmful/offensive Contact |
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Discuss apprehension for assault
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Apprehension is anticipation, not fear. Would a reasonable (objective) person have anticipated an imminent battery?
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Discuss Imminent contact or assault ( conditional threats, future threats, words alone)
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True conditional threats are not imminent. ("Gimme your wallet exception - false condtional threats).
Words alone not enough . .coupled w/ overt act. Future threats are not imminent until that future time arrives. |
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When is transferred intent not allowed?
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Conversion
IIED |
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Name the 5 defenses to intentional torts.
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Consent
Self-Defense Defense of Others Defense of Properyt Necessity |
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Expressed v Implied consent. Are they objectively or subjectively measured?
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Expressed - agreed specifically to.
Implied - your actions suggest that you intended to give consent. Both Objectively Measured |
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What (4) questions should you ask to determine if consent was present (and valid)?
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What did P consent to?
Was consent revoked (express/implied?) Was it valid? Did P have capacity to consent? |
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Discuss the 6 things that invalidate consent.
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Fraud
Mistake Exceeded Consent Illegal to consent Under Duress? Incapable of consenting |
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What are the 2 elements when considering Self-Defense as a defense against intentional tort?
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Reasonable Force when believes he faces an imminent threat of force.
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Measure perception of threat of force both subjectively and objectively . . .explain
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Subjectively, did the D honestly perceive?
Objectively - would a reasonable person have perceived the imminent threat of force. |
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What is a person's obligation to retreat under majority & minority rules?
Is NC Majority or Minority? |
Majority - Right and dignity of the individual can be defended with deadly force.
Minority - Requires retreat where it is reasonably believed could be safely accomplished. NC is Minority. |
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How does Defense of family work?
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It's the same as self-defense; you can use force to protect a family member if you perceive an imminent threat of force against them.
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How to measure the extent of force used in self/family/others-defense?
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Subjectively assess the force that the defender intended to use.
Was it proportional to the threat faced? |
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How does defense of home work? Discuss Castle Doctine.
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Castle Doctrine says your home is a castle and can defend with deadly force.
Generally, you have to use proportional force to threat faced. Unless you reasonably suspect intruder will imminently commit a felony. |
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How does defense of property work? 2 Elements: (think about woodard v. turnipseed)
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1) Reasonable belief property is imperiled.
2) Force used must be reasonable. |
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2 Elements for ejectment of a trespasser.
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1) Must have demanded trespasser to leave unless it's reasonable to believe it's too late to prevent harm.
2) Only use reasonable force. (always objective) |
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Discuss Defense of Necessity as defense against intentional tort.
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Defendant is allowed to interfere with property interests of an innocent party in order to avoid a greater injury. Actions minimize overall losses.
EMERGENCY SITUATIONS What would a reasonable person do? |
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When is defense of necessity complete and incomplete? (Private vs. Public property imperiled.)
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Incomplete: You dock a boat to a dock in a storm to protect your boat. Boat more valuable than dock so okay, but you must pay for dock)
Complete: You throw sand bags on neighbors garden to avoid flooding the whole neighborhood. |
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What are the 4 elements of IIED?
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1) Conduct must be Extreme & Outrageous
2) Emotional Distress is Severe 3) Conduct is "A" cause of the distress, not "the" cause 4) Conduct must be intentional or reckless. |
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What are the 3 elements of 3rd party recovery for IIED?
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1) Close relative of victim
2) Present at scene of outrageous conduct against victim 3) defendant knows that close relative is present. |
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Under what limited circumstance can a non-relative recover for IIED?
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When they are present & suffer a physical distress.
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Is expert testimony required for IIED? (Majority v. Minority)
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Majority: expert evidence is not necessary, as the flagrant & outrageous nature of D's conduct is proof enough.
Minority: Requires proof of serious mental injury. |
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Explain "Breach" as applied to Negligence.
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Breach of duty is a failure to conform to the reasonable person standard of care, in a way that creates an unreasonable risk of harm to others.
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How do you assess the reasonable person standard under hand: risk/utility test?
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Weigh BURDEN on defendant to avoid risk & the utility of the D's conduct against the PROBABILITY of & likely GRAVITY/MAGNITUDE of the harm D's action could cause.
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Explain "Causation" as applied to negligence.
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Causation is the causal connection between D's act or omission and the P's injuries.
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Explain Damages as applied to Plaintiff's negligence case. (Think possible/hypothetical damages or real/actual damages)
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P has to prove actual damages, without them he has no case.
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How does knowledge/skill impact one's duty of care?
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Your duty is measured by how a reasoanble person with your special skills/knowledge would have responded in the same/similar circumstances.
Dr.'s have to act as a Dr.'s would, lawyers as lawyers, professionals as professionals. |
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How does custom or industry standard impact duty of care?
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Custom or industry standards are considered, but not conclusive. For example, an entire industry/community standard can be egligent.
Cruise ship custom was life boats for 1/2 passengers, but that standard was negligent (titanic). |
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What is negligence per se - Negligence in itself (3 elements to prove D's negligence)?
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In Negligence per se,
1) A Statute 2) was designed to prevent the kind of harm that befell a plaintiff, and 3) the P was a member of the class the statute was intended to protect. |
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How can a Defendant avoid liability under negligence per se (4 exceptions that void liability)...HINT Heart Attack
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1) Compliance is impossible (walk on sidewalk, but no sidewalk present)
2) Compliance would present a greater risk of harm than action. 3) The D was incapacitated (heart attack at wheel) 4) Emergency situation NOT caused by D. |
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– D drives using all due care when her brakes fail and collides with and injures P. If P can show D is driving without a license, can P prove breach using the negligence per se doctrine?
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Majority: no, need to prove breach due to lack of driving skills, lack of license proves nothing.
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What does Res Ipsa Loquitor mean (rough translation), and what is it?
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"The thing speaks for itself."
Last chance argument that relies on the fact that the event could not have occurred without D's negligence. (A toe is found in your chewing gum). Gum co. had to be negligent. |
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What does Res Ipsa loquitor permit?
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Permits jury to draw an inference that the defendant acted negligently without and other proof.
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What are the 3 tests/methods to show a breech of negligence?
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Negligence per se (statutory violation)
Hand: Risk/Utility Test (Burden<Probability X Liklihood = Breech) Res Ipsa Loquitor (last chance argument) |
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Discus Hand's Risk/Utility Test:
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2nd way to prove breach.
Formula shows that D acted unreasonably if the Bureden of avoiding hte harm is less than the probability of that harm occurring multiplied by the likely seriousness of the harm. |
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What are the elements in the traditional approach to res ipsa loquitor? Which does NC require that modern rule does not?
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1) Event is a kind that does not occur absent negligence.
2) Def had exclusive control of the instrument that caused the injury. 3) P did not contribue to his/her own harm. *NC(contributory negligence - most replace with comparitive negligence) |
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How do you show that a P was in control of an instrument under Res Ipsa Loquitor step 2?
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Exclusive Control
Majority - it was likely that def was the responsible party and likely pl wasn't. Minority - p had to be in actual control at the time the accident/injury happened. |
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How do emergency circumstances impact the courts view of negligence?
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The factors created by an Emergency situation are taken into account in "breach calculus", but is unavailable when the D actually caused the emergency situation.
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What 2 elements are necessary to prove causation?
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1) Cause in fact - D's breach caused plaintiff's loss
2) Proximate Cause - the D's actions had a sufficiently close causal connection to P's injuries to justify recovery of damages. |
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What are the 2 tests for cause in fact?
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But-For Test
Substantial Factor Test |
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Explain the but-for test. What is the evidentiary standard?
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But for D's conduct, the injury/loss would never have happened. Must prove by a preponderance of evidence.
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How do multiple actions impact but-for test? What about multiple defendants?
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DIVISIBLE Harms - You can divided who caused what harm & divide is responsible for which harm.
INDIVISIBLE Harms - both causes necessary and in combination produce a single indistinguishable harm. MULTIPLE Sufficient Causes - don't use but for if multiple acts are each enough to have caused harm. |
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What is the substantial factor test & when is it used?
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Used when you multiple sufficient causes are present. Under SF test, D's conduct is a material element in the cause of an event/injury or is a substantial factor resulting in it.
Only use if multiple factors and the one you're examining is not a "but-for" cause. |
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What is an intervening cause?
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A cause that occurs after a D's initial act of negligence and causes injury/harm to a victim. It can insulate D from liability if it is also a superseding cause.
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What is a superseding cause?
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An unforeseeable intervening cause that breaks the chain of causation. (Like an act of god, or another person's extraordinary negligence.
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What is a foreseeable intervening cause.
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A superseding cause that can be reasonably anticipated by the D under the given circumstances.
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A & B go night skiing. The tow rope is inadequatly lit & on her way up, B gets her Ski caught in a hole & twists ankle. B sues the resort for negligence b/c of poor lighting. Who prevails?
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But-For the lack of lighting, the chances that B would have twisted her ankle in that exact manner are highly unlikely. Resort is liable to B.
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A & B both plan to kill C. A feeds C poisoned cookies and B shoots him. Either would have killed C, what test and what outcome?
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Use the substantial factor test. Both A & B are liable b/c either A or B's actions alone were enough to cause the harm.
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What is concert of action and how is liability for negligence impacted?
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One person aids or encourages another in committing the tort. Not required to be an expressed agreement, can be inferred from the circumstances. All parties acting in concert are liable.
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Explain Alternative Liability and how liability is determined.
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Where only one D could have caused the harm, the responsibility falls on each D to prove their negligence was not the cause, otherwise (if they don’t) they are both liable. (limited to small # of D's)
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Explain Market Share liability and how liability is determined.
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MSL allows plaintiffs injured by defective products to apportion liability among the manufacturers according to each's share of the market for the injurious product.
You're liability is equal to the % of market share you had at the time of use. |
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What are the elements of alternative liability?
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1) All D's breach duty to P
2) Only 1 D could be responsible 3) P cannot prove who caused harm 4) Each P caused similar risk 5) All potential D's are being sued 6) D must prove not guilty 7) D(s) who can't prove are liable. |
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What is the Lost Chance Recovery Doctrine?
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Applies to Doc/patient relationship when Dr. misdiagnoses patient, depriving patient of chance to make recovery.
Doc says patient has <50% chance of survival, but patient would have had >50% chance. |
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What are 3 approaches to attribute damages under Lost chance recovery doctrine?
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PURE LOST CHANCE - full recovery if D's negligence decreased P's chances by even 1%.
PROPORTIONAL RECOVERY - % of chance lost times total amount of damages SUBSTANTIAL POSSIBILITY - Recovery only if D's negligence substantially decreased P's chance to recover (jury decides substantiality). Damages are proportional. |
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What are the 2 tests for proximate cause?
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Direct cause test - used by few
Ferseeability test - used by majority |
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What is the direct cause test?
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You are liable if your action is the direct cause of the harm (or sets events in motion). This does not take into account foreseeability at all.
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Explain the foreseeability test.
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Is the harm a reasonably foreseeable consequence of the def’s conduct?
It is if it is within the scope of danger created by the def’s negligent act. Must foresee type of accident, not specific harm. |
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What are the 3 defenses for negligent actions?
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Contributory Negligence
Comparative Negligence Assumption of Risk |
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What are two general rules for foreseeability test? (shabby egg)
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Shabby Millionaire - You're liable for damages to your victim, not what an average victim would require (ceo of microsoft earns more, but you're liable for his wages).
Egg Shell Rule - you take your victim as they're found . . .you can't foresee your victim's thin skull, but you could foresee your negligence. |
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What is contributory negligence and how does it impact P's recovery for damages?
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Total bar to recovery, says that P's conduct was a cooperating cause resulting in his harm
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In general, what is comparative negligence? How does it bar recovery?
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Partial bar to recovery says that P's conduct was a cooperating cause resulting in his harm.
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What is the minority approach to comparative negligence? The majority of jurisdictions apply 2 forms of a second approach, what are they?
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Pure Comparative Fault - D liable to P regardless of how P's own negligence impacts damages.
Modified Comparative Fault: 1) D liable to P if P's actions are less than or equal to 50% of the cause. 2) D liable to P if P's actions are less than D's actions. (49.999999% or less. |
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What are the rules for comparative negligence with multiple defendants?
What is the Unit Rule & Wisconsin Rule? |
UNIT Rule - No D escapes liability if total of D's negligence is less than total of P's negligence. (majority)
WISCONSIN Rule - P's negligence gets compared to each D individually. (Minority) |
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What are the 3 doctrines which ameliorate a P's contributory negligence?
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Reckless or Wilfull & Wanton Conduct
Last Clear Chance Doctrine Imminent Peril Rule |
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What is the Reckless or Willful & Wanton Rule?
(P sues D. D claims that P was contributory negligent) |
Says that if D's acts are reckless or wanton then P is not liable for contributory negligence.
EXCEPTION when P also willful & wanton and their acts are worse. |
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What is the last clear chance doctrine?
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P sues D. D claims that P was contributory negligent, but D had last clear chance to avoid injury. Contributory Negligence void.
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Imminent Peril Rule
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P is not liable for negligent actions he takes in response to a dangerous situation caused by the defendant.
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What are 3 kinds of assumption of risk?
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Expressed
Secondary Implied Qualified Secondary Implied |
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What is Expressed Assumption of Risk? When are they void?
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Complete defense to contributory negligence.
Exculpatory agreements to assume risk - waiver of liability. Void When: 1) Fraudulent, willfull & wanton or gross negligence. 2) Parties have unequal bargaining power, 3) Would effect public interest. |
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What is secondary Implied assumption of risk? (elements, how assessed/measured?)
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Complete Defense to Negligence
Elements 1) Knowledge of Risk 2) Appreciation of the Risk, and 3) Voluntary Assumption of the risk Subjectively Assessed. |
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What is a qualified secondary implied assumption of risk?
(There's an added 4th step that allows P to still have cause of action) |
total defense
1) Knowledge or risk 2) appreciation of the risk 3) Voluntary assumption of risk 4) Whether objectively reasonable for P to expose himself to risk. |
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With regard to assumption of risk (Express & 2ndary Implied) what are the impacts of comparative fault?
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Express - no impact, still a complete defense.
Secondary Implied - 1) Minority - no impact, still a complete defense 2) Majority - covered under comparative negligence - if voluntary assumed risk would increase % culpability. |
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What is the traditional rule about mitigation of negligence?
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Failure to mitigate results in incremental loss of damages.
1) Plaintiff must mitigate losses 2) Must take Reasonable steps to mitigate |
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What is the alternative approach to mitigation?
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Part of comparative fault
Must take reasonable steps Failure results in percentage of fault in comparative fault states. Usually medical cases. |
