Torts - 1St Half

Front 1

Types of Intential Torts

Back 1

a. Assault
b. Battery
c. Trespass to land
d. Trespass to chattel
e. False imprisonment
f. Conversation
g. Intentional infliction of emotional distress (outrageous conduct)

Front 2

Strict Liability

Back 2

imposed regardless of intent or conduct; without fault

Front 3

Statue of Repose

Back 3

Fixed limitation on time period for filing suits.

Front 4

Discovery Rule

Back 4

The one-year statute of limitations begins to run when the patient discovered, or reasonably should have discovered (1) the occasion, the manner and the means by which a breach of duty occurred that produced the patient’s injuries; and (2) the identity of the defendant who breached the duty.

Front 5

Motive

Back 5

Tortfeasor’s reason for conduct (ex. revenge); motive is irrelevant for purposes of intent but may be a factor in calculating $ damages.

Front 6

Punitive Damages

Back 6

Designed to punish and deter tortfeasor or potential tortfeasor.
Proven by clear & convincing evidence where there is no serious or substantial doubt.

Front 7

Transferred Intent

Back 7

Tortfeasor intends to commit a tort against a person, but instead commits a different tort against the person, or commits the tort intended against another person, or commits a different tort against a different person, then the intent is presumed to transfer to the other situation. (It is still an intentional act.)

Front 8

Damages

Back 8

Reasonably compensate plaintiff for harm caused by tortfeasor(s), to punish tortfeasor, and to deter future tortfeasor.

Front 9

Compensatory Damages

Back 9

To make plaintiff whole again; restore to pre-injury status to the extent monetary compensation can;

Front 10

Voluntary

Back 10

Tortfeasor must have acted voluntarily to be liable (ex. cannot be sleepwalking, medication, violent seizure, someone pushed him); minors generally can be held liable provided they satisfy the intent element.

Front 11

Intent

Back 11

Tortfeasor’s desire to do the act that gives rise to/forms the basis of the particular tort OR knowledge that the consequences are fairly certain.

Front 12

Battery

Back 12

1. Harmful or offensive contact;
2. Intent to bring about the contact;
3. Causation.

Front 13

Assault

Back 13

1. Reasonable apprehension of immediate harmful or offensive contact to plaintiffs person; fear is irrelevant
2. Intent to bring about apprehension of immediate harm
3. Causation
Must prove all elements by a preponderance of the evidence.

Front 14

Causation

Back 14

Defendant liable for direct and indirect contact; liable if he sets in motion a force that brings about harmful or offensive contact.

Front 15

Intential Infliction of Emotional Distress (IIED)

Back 15

1. Extreme and Outrageous conduct. Extreme and outrageous conduct (must be truly extreme and outrageous beyond repair).

2. Intentional or reckless; Intent can be proven by recklessness, doctrine of transferred intent does not apply. Reckless - Acted in deliberate disregard of a high probability that the conduct will cause severe emotional distress.

3. Severe emotional distress. if P’s reaction goes beyond normal responses – cannot recover

Front 16

False Imprisonment

Back 16

1) Intent; Transferred intent does apply.

2) Unlawful- there is no liability if the restraint is lawful.

3) Confinement- restraint or detention - specific area plaintiff is completely prevented from leaving. there must be no reasonable means of escape. Not reasonable if unsafe. Credible, immediate threat of force

Front 17

Trespass to Land

Back 17

The intentional physical entry onto anothers real property/land without permission of the owner or without a legal privilege to be there.
Entry includes body or object

Front 18

Trespass to Chattels

Back 18

Intentional interference with chattel (personal property) of anther without their consent or a legal privilege to do so, resulting in damages or dispossession.

Front 19

Conversion

Back 19

Intentional exercise of dominion or control over the chattel of another that seriously interferes with the owners right and damages that chattel

Front 20

Defense to Intentional torts

Back 20

Plaintiff must prove by a preponderance of evidence every element of the offense. Defendant must prove by a preponderance of evidence his defense

Front 21

Absolute Defenses to Intentional torts

Back 21

1. Consent
2. Authority of law
3. Public necessity

Front 22

Defense of Mistake

Back 22

Mistake is not a defense in an intentional tort case except when the mistake is made in connection with another defense such as self-defense or defense of property or public necessity. Mistake has to be objectively reasonable

Front 23

Defense of consent

Back 23

Consent won't destroy the wrongfulness of the actions of the tortfeasor. Consent is an absolute defense.

Front 24

Express or actual consent

Back 24

The plaintiff actually expresses or communicates consent to the tortfeasor.

Front 25

Implied or apparent consent

Back 25

Involves words, conduct, behavior or the lack thereof, that would lead a reasonable person to believe or infer that consent existed even when it didn’t. The court will imply consent.

Front 26

Self Defense

Back 26

People have a legal privilege to use as much force as is or reasonably appears necessary to protect themselves. Available when there is in fact a danger of being attacked or where there is a reasonable belief that such a danger exists even if it doesn’t (mistake). Mistake in self-defense will not destroy the tortfeasor’s ability to rely upon the defense – but it must be a reasonable mistake

Front 27

Defense of others

Back 27

A tortfeasor can come to the defense of others and not be held liable for a resulting intentional tort. Only reasonable force or the minimum amount of force needed to neutralize the threat can be used.

Front 28

Defense of Property

Back 28

Possessor of real or personal property is privileged to use reasonable force to protect that property. Cannot use deadly force.

Front 29

Forcible retaking of Chattels

Back 29

A person lawfully entitled to possess a chattel has a right to use force to get the chattel back when it has been wrongfully taken from him. This privilege is limited to instances in which there is hot pursuit. Cannot use deadly force, only reasonable force.

Front 30

Forcible retaking of Real Property

Back 30

No force can be used to retake real property. The tortfeasor must resort to the law if the land cannot be retaken peacefully.

Front 31

Defense of Necessity

Back 31

Absolute Defense. Privilege to use force in what would otherwise be an intentional tort in order to avoid a greater harm.

Front 32

Defense of Public Necessity

Back 32

A person is completely privileged to commit an intentional tort if it's or reasonably appears to be necessary in order to prevent a public disaster. Mistake is a defense. Absolute defense.

Front 33

Defense of Private Necessity

Back 33

Involves a danger only to the defendant’s property. It's an incomplete defense. Defendant will have to pay for whatever actual harm he caused.

Front 34

Negligence definition

Back 34

Focus on conduct, not of intent of tortfeasor. Negligence is conduct that falls below the applicable standard of care, creating an unreasonable risk of harm to people or property. Failure to exercise ordinary or due care.

Front 35

General negligence

Back 35

1. Duty of care;
2. Breach of reasonable person standard of care;
3. Causation in fact/actual cause;
4. Proximate cause/legal cause;
5. Actual Injury or harm.
Plaintiff must prove all five elements by a preponderance of evidence.

Front 36

Standard of Care

Back 36

Reasonableness under the circumstances; reasonable person standard

Front 37

Rule of Sevens

Back 37

Under age of seven, a child cannot be held liable for negligence; between 7 and 14, there is a rebuttable legal presumption that child can’t be held liable; plaintiff can present proof to overcome the presumption; between 14 and 21, there is a rebuttable legal presumption that child can be held liable.

Front 38

Professionals Standard of Care

Back 38

If tortfeasor has some learned skill or knowledge, he is held to standard of care for one who had that learned skill or knowledge (e.g. plumber, electrician, mechanic).

If tortfeasor is a professional, he is expected to posses the skill and knowledge of a reasonable member of that profession in the same or similar location. Specialists are held to the higher standard of care for the specialty nationwide (e.g. doctor, dentist, surgeon, lawyer, CPA). Tennessee is an exception to the nationwide rule; the specialist is expected to have same knowledge as person in the same or similar location. (Cardwell v. Bechtol)
Expert has to testify at trial that standard was breached.

Front 39

Med Mal Informed Consent

Back 39

1. That defendant didn’t provide information that a reasonably prudent specialist/professional would have provided;
2. That plaintiff would not have had the procedure had she been informed, and
3. Injury was caused by lack of informed consent.

Front 40

Implied Consent

Back 40

Tested by objective standard of “reasonably prudent person” because it's consistent with how other negligence cases are handled.

Front 41

Medical Battery

Back 41

Not Negligence. A patient doesn’t know that the doctor is going to perform a procedure and the patient did not authorize the procedure. Expert testimony not required.