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124 Cards in this Set

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Trespass to Land
The intentional entry upon the land in possession of another without consent or privilege.
Battery:
The intentional harmful or offensive touching of another without consent or privilege.
Battery protects against
intentional invasions of the plaintiff’s physical integrity, i.e., their person or their personal space.
Intent: A person acts with the intent if
(a) he acts with the purpose of producing the result; or
(b) acts knowing that the result will occur or is substantially certain to occur.
(Touching) To commit a battery,
The actor need not actually touch the plaintiff at all, or even be present at the time of the contact
Transferred Intent: RST 2d § 16(2)
Where an actor tries to batter one person and actually causes harmful or offensive contact to another, the actor will be held liable to the actual victim.
In order to hold someone liable under the doctrine of transferred intent,
you must first show that the actor’s original intent in striking the blow was tortious.
Define Legal Fiction
An assertion accepted as true, though probably fictitious, to achieve a particular goal in a legal manner.
Transferred intent is a legal fiction created to achieve
a sensible result despite lack of intent toward the person actually contacted. This fiction also allows for recovery where the actor attempts one intentional tort but causes another.
Trespass to Land: unlawful
Every unauthorized entry into the property of another is unlawful and a trespass. For every such entry the law infers some damage to the property
In order for a trespass to chattels to be actionable,
some actual injury must occur
Trespass to chattels can take two forms:
1, Intermeddling
2. Dispossession
Define: Intermeddling
Conduct by the D that in some way serves to damage plaintiff's chattels, e.g., denting Ps car, striking Ps dog
Trespass to Chattels, RST § 218, comment e: (4 elements)

One is liable for intentional intermeddling with another’s chattel only if it is harmful to the possessor’s interest in the
1)physical condition,
2)quality, or
3)value of the chattel, or
4)time, if the possessor is deprived of the the use of the chattel for a substantial period
Define: Dispossession
Conduct on Ds part serving to deprives P of his lawful right of possession
RST § 922 - Innocent Conversion
The innocent converter may generally return the property taken, at least if it has not suffered substantial damage, conditional upon payment for the loss of interim use for repairs.
Conversion: Moore v. The University of California p26; (1990)
A person of adult years and sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment
The patient’s consent to treatment, to be effective,
must be an informed consent.
Informed Consent: Physician's duty
In soliciting the patient’s consent a physician has a fiduciary duty to disclose all information material to the patient's decision
Informed Consent Form
whether complete or not, must be in the patient file. Lack of such form can be a battery.
Consent: Mohr v. Williams p35 (1905)

(Ear) (Immunity)
Every person has the right to complete immunity from physical interference of others, except insofar as contact may be necessary under the general doctrine of privilege; and any unlawful or unauthorized touching of the person of another constitutes an assault and battery
Hudson v. Craft p43 (1949)
Majority Rule:
If you have consenting parties, they cannot sue one another for the injuries sustained in the event
Boxing matches at the fair
Consensual Torts: Restatement §60; Minority Rule
When two parties agree to participate in an act, such consent negates the act from being tortious and therefore cannot be actionable, even if the act they agreed upon performing constitutes a crime.
RTT: § 2: Recklessness: A person acts recklessly in engaging in conduct if: (a)
the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation, and
the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.
Insanity re. damages
McGuire v. Almy p50 (1937)
Where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable
Insanity (Public Policy Rule)
An insane person must pay for his support, if he is financially able, so he ought to pay for the damage he does as well
The insane person, in order to be liable,
must have been capable of entertaining the intent and must have entertained it in fact
Self-Defense
Courvoisier v. Raymond p54 (1896)
The accidental harming of an innocent bystander by force reasonably intended in self-defense to repel an attack by a third party is not actionable.
Self-Defense: The Restatement concurs w/Courvoisier v. Raymond, noting that
The defendant is liable to the innocent third party only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm
Defense of Property
Bird v. Holbrook p59 (1825)

(Indirectly)
No man can do indirectly that which he is forbidden to do directly.
Defense of Property (Bird - spring guns)
He who sets out spring guns without giving notice is guilty of an inhuman act, and that, if injurious consequences ensue, he is liable to yield redress to the sufferer.
Recapture of Chattels
Kirby v. Foster p65 (1891)
Where a person has come into the peaceable possession of a chattel from another, the latter has no right to retake it by violence, whether the possession is lawful or unlawful
Necessity

Vincent v. Lake Erie Transportation
When a person trespasses upon the property of another by necessity to avoid damage to his own property, he remains liable for any damage caused to the property of another.
Necessity
Ploof v. Putnam
An entry upon the land of another may be justified by necessity.
ASSAULT: RST § 21: (1) an actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contract with the person of the other or a third person, or an imminent apprehension of such contact, and
(b) the other is thereby put in such imminent apprehension
Assault:

(Fleming)
The intentional placing of another in reasonable apprehension of an imminent harmful or offensive touching without consent or privilege.
Assault: I. de S and Wife v. W. de S. p79 (1348)
A Plaintiff may recover for damages for an assault though no physical injuries are shown.
Offensive Battery:
RST § 18. (1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results
Personal Dignity:
Alcorn v. Mitchell p.83 (1872)
Civil damages may be recovered for offensive battery though no physical injury or damage results.
False Imprisonment:
Bird v. Jones p85 (1845)
False imprisonment requires the detention of a person without the freedom to escape that detention.
Forced detention
Coblyn v. Kennedy's Inc. p88 1971
Forced detention constitutes false imprisonment unless the grounds for restraint are reasonable under the circumstances. (Shopkeepers Rule)
General Restraint
Coblyn v. Kennedy's Inc. p88 1971
False imprisonment requires general restraint of movement, w/o the necessity of physical force or coercion.
Personal Liberty
Coblyn v. Kennedy's Inc.
If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment within the legal meaning of such term.
RST § 46: Outrageous Conduct Causing Severe Emotional Distress (1)
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
RST § 46: Outrageous conduct causing severe emotional distress (2)
Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
RST § 46: Outrageous Conduct Causing Severe Emotional Distress
Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotinal distress (2)(a)(b)
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm
Negligence contains four distinct elements:
Duty, Breach, Causation and Damage. A plaintiff must meet all four requirements to establish the prima facie case.
Duty:
Where the defendant owes the Plaintiff a duty to conform his conduct to a specific standard necessary to avoid an unreasonable risk of injury.
Breach:
When the Ds conduct, whether by way of act or omission, falls below the applicable standard of care.
Causation: Actual and proximate
Actual or factual cause is when the harm would not have occurred absent the conduct.
Proximate is where the actor's conduct is a substantial factor in bringing about the harm.
Damages.....
are recoverable if the plaintiff suffered harm.
Negligence is
lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances.
Negligence implies some
act of commission or omission wrongful in itself.
No one can maintain an action for a wrong,
when he consents or contributes to the act which occasions his loss. One who with liberty of choice, and knowledge of the hazard of injury, places himself in a position of danger, does so at his own peril, and must take the consequences of his act.
The duty of due care
requires precisely the measure of care that is reasonable under all the circumstances.
Titus v. Bradford
Custom
The master is not bound to use the newest and best appliances.
Use of Property:
Vaughan v. Menlove
A man must so use his own property as not to injure that of others
Special skills:
RST § 299(a) provides that the
D is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities unless he represents that he has greater or less skill than the average.
Being under the age of 21, a minor must exercise
the care of the average child of his or her age, experience and stage of mental development. Not held to the same degree of care as an adult.
When a minor engages in such activities as the operation of an automobile or similar power driven device,
he forfeits his rights to have the reasonableness of his conduct measured by a standard commensurate with his age and is thenceforth held to the same standard as all other persons.
RTT:LPH § 10 adheres to the general rule of holding a child to the standard
of a reasonably careful person of the same age, intelligence, and experience. In addition to the exception for adult-like activities, it also provides that a child under five is incapable of negligence.
RST § 283 says that unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent
is that of a reasonable man under like circumstances.
Breunig v. American Family Insurance Co.

Mental Illness
A sudden, unanticipated event related to a known mental illness may not serve as a defense to negligence.
Physical Disability:
Fletcher v. City of Aberdeen
RTT:LPH § 11(a)
The conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability.
Intoxication:
Robinson v. Pioche, Bayerque & Co.
Intoxication of the P cannot excuse gross negligence
Class Status:
Denver & Rio Grande R.R. v. Peterson
The care required of a warehouseman is the same whether he be rich or poor.
Negligence: doing something

Blyth v. Birmingham Water Works
Negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.
The Value of Human Life:

Eckert v. Long Island R.R.
The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.
Duty of Care: Mankind

Osborne v. Montgomery
If one does an act which results in injury to another, he departs from the standards which are followed by the great mass of mankind.
Duty of Care: Law determines

Osborne v. Montgomery
Under liability for wrongful acts, the law determines whether an actor should or should not be liable for the natural consequences of his conduct.
Duty of Care: Precisely
Cooley v. Public Service Co.
The duty of due care requires precisely the measure of care that is reasonable under all the circumstances RST § § 291-295...
Negligence: 3 elements
United States v. Carroll Towing Co.
RTT:LPH § 3
A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
a person acts negligently if....
Sudden Emergency Doctrine:
Lyons v. Midnight Sun Transportation Services, Inc.
Standard of Care
With or without an emergency, the standard of care a person must exercise is still that of a reasonable person under the circumstances.
A common carrier owes both
- a duty of utmost care and
- the vigilance of a very caution person
towards its passengers.
A common carrier is responsible for any, even the slightest,
negligence and is required to do all that human care, vigilance and foresight reasonably can do under all the circumstances.
Intentional Torts
The actor is liable for the consequences whether or not those consequences are foreseeable.
Two basic kinds of intentional torts:
1. Those that protect our dignity (personal)
2. Those that protect our property
Vosberg v. Putney
Assault and battery is established by the intent to commit the unlawful act w/o regard to intent to cause injury.
Intent:
A person who act with the purpose of producing a consequence, or acts knowing that the consequence is substantially certain to result, is acting with intent.
Assumption of Risk is established
when the P has deliberately and voluntarily encountered a known risk created by the D's negligence and chooses to proceed.
Fireman's Rule
One who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.
RST § 282 Negligence is defined as
engaging in conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.
Consensual Defenses:

Mohr v. Williams
Every unlawful or unauthorized touching of another constitutes an assault and battery, even in the absence of negligence.
Restatement §60; Minority Rule

Hudson v. Craft p43 (1949)
When two parties agree to participate in an act, such consent negates the act from being tortious and therefore cannot be actionable, even if the act they agreed upon performing constitutes a crime.
Defense of Property

Bird v. Holbrook p59 (1825)
A person may not protect his property with a device designed to inflict injury upon a trespasser without notice of its existence.
Necessity
The Defendant trespassed on the plaintiff’s property without permission; necessity provides for the act of trespass as long as the necessity requires it. This is an exception to the general rule of excluding others from your property.
False Imprisonment:
Definition:
The intentional physical or psychological confinement of another within fixed boundaries, for any period of time without consent or privilege .
Intentional Infliction of Emotional Distress: Extreme and Outrageous Conduct
Definition:
Conduct of an extreme and outrageous nature which is calculated to cause and which does cause severe emotional distress.
Under the theory of Negligence,
the actor is liable for all foreseeable consequences
Custom:

The TJ. Hooper (1931) p224
The duty to act in a reasonably prudent manner is not always discharged simply by conforming conduct to custom.
Material Risk:

Canterbury v. Spence p244
A risk is thus material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.
Consent to medical care:

Canterbury v. Spence p244
Every human being of adult age and sound mind has a right to determine what shall be done with his own body.
RST § 14 Statutory violations as negligence per se:
An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes and if the accident victim is within the class of persons the statute is designed to protect.
Res Ipsa Loquitur
The thing speaks for itself; this theory aids the Plaintiff by allowing proof of Defendant’s negligence by circumstantial evidence. It shifts the burden of proof to the Defendant to disprove that it had been negligent.
Res Ipsa and the 3rd Restatement
RTT:LPH § 17
The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff’s physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.
The doctrine of res ipsa loquitur has three conditions:
1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence;
2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;
3) it must not have been due to any voluntary action or contribution on the part of the plaintiff
Res Ipsa Loquitur
RTT:LPH § 17, comment i:

Ignorant of the facts
The plaintiff may invoke res ipsa even though the defendant is as ignorant of the facts of the accident as the plaintiff is.
RTT:LPH § 17, comment c:

Expert Testimony
The better rule, now accepted by most courts, is that expert testimony is admissible in a medical malpractice res ipsa loquitur case, and indeed is frequently necessary in order to justify submitting the res ipsa claim to the jury.
Contributory Negligence is established when
the plaintiff has not taken reasonable care, and in consequence of her default has suffered injury. At common law, the plaintiff’s negligence generally barred her from any recovery in ordinary negligence cases.
Contributory Negligence:

Beems v. Chicago, Rock Island & Peoria R.R. p329
One person being in fault will not dispense with another’s using ordinary care for himself.
RST § 463 (1965) Contributory negligence is conduct on the part of the plaintiff
which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.
Causal Relation
The rules which determine the causal relation between the plaintiff’s negligent conduct and the harm resulting to him are the same as those determining the causal relation between the defendant’s negligent conduct and resulting harm to others.
Last Clear Chance

Fuller v. Illinois Central R.R. P350
The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.
Primary assumption of risk says
the D is not negligent, i.e. either owed no duty or did not breach the duty owed. This is an absolute defense.
Secondary assumption of risk
D owes a duty of care and P is aware of the risks but proceeds anyway. This merges into comparative fault analysis. Under contributory negligence it would be a defense.
Fireman’s Rule:
One who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.
Comparative Negligence:

Li v. Yellow Cab.
The liability for damages shall be borne by those whose negligence caused it in direct proportion to their respective fault
Two basic forms of negligence need to be considered:
1) Pure form of comparative neg. Apportions liability in direct proportion to fault in all cases.
2) 50% system simply shifts the lottery aspect of the contributory negligence rule to a different ground
Causation: Actual
conduct is a factual cause of harm when the harm would not have occurred absent the conduct.
Causation: Proximate
Conduct is a substantial factor in bringing about the harm.
Respondeat Superior:
Vicarious liability generally refers to cases where one person is held responsible for the wrongful acts of another by virtue of some status connection between them, i.e. Master & Servant; Employer & Employee
Any one of two or more joint tortfeasors,
or one of two or more wrongdoers whose concurring acts of negligence result in in jury, are each individually responsible for the entire damage resulting from their joint or concurrent acts of negligence.
RST § 433A : apportionment of harm to causes
Damages for harm are to be apportioned among two or more causes where
There are distinct harms, or
There is a reasonable basis for determining the contribution of each cause to a single harm.
RST § 433B(3): where the conduct of two or more actors is tortious,
and it is proved that harm has been caused to the Plaintiff only by one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.
The theory of alternative liability dictates that
tortfeasors who act in concert will be held jointly and severally liable for the Plaintiff’s injury unless the tortfeasors are able to prove that they have not caused the harm.
Proximate Cause

Ryan v. New York Central R.R.
Every person is liable for the consequences of his own acts; he is thus liable in damages for the proximate results of his own acts, but not for remote damages.
Proximate Cause

Brower v. New York Central & H.R.R.
The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen.
Zone of Foreseeable Risk

Palsgraf v. Long Island R.R. p519
If the Defendant’s negligent conduct creates an unreasonable risk of harm to a person within the scope of the foreseeable risk created by the Defendant's conduct then its a substantial factor in bringing about the Plaintiff’s harm.
Respondeat Superior:
Vicarious liability generally refers to cases where one person is held responsible for the wrongful acts of another by virtue of some status connection between them, i.e. Master & Servant; Employer & Employee
Any one of two or more joint tortfeasors,
or one of two or more wrongdoers whose concurring acts of negligence result in in jury, are each individually responsible for the entire damage resulting from their joint or concurrent acts of negligence.
The theory of alternative liability dictates that
tortfeasors who act in concert will be held jointly and severally liable for the Plaintiff’s injury unless the tortfeasors are able to prove that they have not caused the harm.
Zone of Foreseeable Risk

Palsgraf v. Long Island R.R. p519
If the Defendant’s negligent conduct creates an unreasonable risk of harm to a person within the scope of the foreseeable risk created by the Defendant conduct then its a substantial factor in bringing about the Plaintiff’s harm.
Respondeat Superior:
Vicarious liability generally refers to cases where one person is held responsible for the wrongful acts of another by virtue of some status connection between them, i.e. Master & Servant; Employer & Employee
Any one of two or more joint tortfeasors,
or one of two or more wrongdoers whose concurring acts of negligence result in in jury, are each individually responsible for the entire damage resulting from their joint or concurrent acts of negligence.