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94 Cards in this Set
- Front
- Back
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2 part test proximate cause
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foreseeable victim
foreseeable harm |
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How do you determine if the breach is the proximate cause
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ask
what is the breach? what is the injury? Is that injury something that would normally be associated with the breach? |
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(breach) 2 part test for res ipsa loquitor
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is the accident the type normally associated with negligence?
Would the accident normally be due to negligence someone in the D's position? |
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What must be shown to "borrow" a statute for use to set a negligence standard of care
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the statute was designed to protect that
class of persons from that class of risk |
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What is the ordinary standard for duty
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Must take the amount of precautions as would be taken by a reasonably prudent person acting under similar circumstances
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what are the exceptions to express consent?
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fraud or duress
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O'brian v. Cunard deals with what issue
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Implied consent woman held out arm for small pox vaccination
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Is a child capable of consent?
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yes to age appropriate activities
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Is a drunk capable of consent?
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NO
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Tresspass intent
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only have to intend to put one foot in front of the other to end up ourposefully in the location. Do not have to know you are trespassing to tresspass.
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what are the elements of IIED
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intent
D outrageous conduct P Severe distress |
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Elements of False imprisonment
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intent
D committed an act of restraint P confined within a bounded area |
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elements of assault
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intent
D placed P in reasonable apprehension of a battery the apprehension is of an immediate or immenent battery |
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Fischer v. Carosel illustrates what concept?
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That battery doen't just mean contact with a persons body but anything they are touching or that is attached to them in this case a plate. other examples wheelchair, cane, item of clothing
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elements of battery
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intent
harmful or offensive contact contact is with the P person |
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Manufacturing defect
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product departs from its intended design
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elements of product liability
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D is a merchant/seller
P must prove product is defective product not altered after leaving D hands Product is being used in as intended or in a foreseeable way |
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types of product liablity defects
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manufacturing
design information/warning |
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is a merchant absolved of strict liablity if the product is used in a way that was not intended
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not necessarily if the misuse was foreseeable (ex. using a chair for a stepping stool)
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What factors are used to evaluate an alternative design in a design defect product liability
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Is the alternative
safer economial practical |
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eggshell skull principle
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once a ∆ committed the other elements a tort they are responsible for all damages even if they were unexpected. You take your plaintiff as you find him
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McPherson v. McPherson deals with what concept
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the effect information would have on consent in a sexual realtionship. Consentual sexual conduct could be battery if there is knowledge of an STD and they fail to disclose. Wife lets guard down in a marital relationship (like vosburg it is situational)
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Avilla v. Citrus community college holding
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beanball is an inherent part of baseball
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I de S deals with what intentional tort
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Assault
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Tuberville v. Savage illustratess what concept about assualt
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Conditional threat-
action alone is not enough to indicate an intention of assuault if D uses words which negate the action "if it were not assize time I would not take such language" |
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What is the burden of proof in a civil trial
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preponderance of the evidence
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What do we learn about intent from Garratt v. Daily
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Intent is satified if you know with a substantial certainty that an unlawful result will occur as a result from the action.
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what is battery
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it is intentional harmful or offensive contact
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What is intent
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to do an act:
intending to cause harm knowing it is substantially certain that the act will cause harm intent to do an act which causes harm (you don't have to know that the specific harm will occur just intend to do the act which caused it) |
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What is assault?
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to put in anticipation of immenent bodily contact
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In what ways can intent be transfered
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intent to do one tort can transfer to another different tort (intend to assult and accidentally batter)
transfer from intended victim to an unintended victim (meant to hit a and instead hit b) |
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what effect does consent have on battery in a medical context
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right to refuse treatment but no right to an affirmative action exception OR, WA, & Montana
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Mohr v Williams deals with
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battery in a medical context (ear)
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what are the intentional torts
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battery, assault, false impriosnment, tresspass, IIED
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Vosburg v. Putney illustrates what element of torts
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Intent. Intent to make the touch is sufficient. Did not need to intend to cause the harm.
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What is the standard for a medical intern
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same as for a dr. they are supposed to know what they don't know or call for help
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Locality rule
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med professional gets judged on based on the standard of care in that area
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hand formula
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B < P x L
B= cost of prevention P= probablity L= cost of loss |
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Vaughn v. menlove deals with
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the reasonable person standard.
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Wilkinson v.Downton deals with which intentional tort
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IIED
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Bird case deals with what intentional tort
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False imprisionment. Ct says that it is only an obstruction not an imprisonment because the P was free to leave
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what constitutes imprisonmnent
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don't need 4 walls just need to impair freedom
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respondeat superior
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master/employer is vicariously liable for tortious acts commited by his servant/employee if the act occurs within the scope of the employment
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Frolic & detour
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an employee making a MINOR detrour from his employers business is still acting withing the scope of employment but if the deviation in time or geographic location is substantial the employer is not liable
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Intentional torts & employers
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usually outside the scope of employment
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What are the exceptions to employers being liable for intentional torts of employees
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1) force is autthorized in employment ex. bouncer
2)friction is generated by employment ex. bill collection 3) may be liable for their own negligence in selecting/supervising employees (this is not vicarious liablity ) |
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Vicarious liablity and independent contractors
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principle will generally not be liable for a contractors torts
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exceptions for when a principle is held vicariously liable for a contractors tort
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engaged in inhernetly dangerous activities
the duty becasue of public policy considerations is nondeligable (duty to use care in building a fence around a blasting site) |
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Osborne v. McMasters illustrates
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That in order to use a statute in a tort case the P must show that they were in the class of persons the statute sought to protect. Criminal statute to label poisons. No civil liablity mentioned
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Gorris
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Sheep get washed overboard. Sheep are the protected class but the harm is not the one the statute was aimed at as it was a disease prevention act.
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What is a breach of a statute
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it is negligence per se
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What are the exceptions to a breach of statute being negligent per se
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person is incapable of following (heart attack incapacitated)
It is less safe to follow the statute |
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What is the rule if custom and statute conflict
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a writen ordinance supersedes custom
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reasoning behind dramshop acts
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1. control mechanism
2. if you proffit from the sale it is only fair you share the burden |
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Early Res ipsa loquitor case
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byrne barrel of flour falls on a guys head
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With res ipsa loquitor who has the burden
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the burden to prove they were not responsible is on the D because the D is in a better position to say what happened
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What at the 2 tests for determining experts
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Frye- generally accepted in the field (peer review publication etc.
Daubert-judge is gate keeper |
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City of lincoln illustrates
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that the D is responsible untill the chain is broken. ex. ship gets back to harbor where it can be fixe
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Price distinguished from Hines v. Garrett
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in Price the RR left the girl in a position of safety overlooked stop was a condition but not a cause of the exploding lamp injury.
In hines the rr did not leave the girl in position of safety. but for their actions she wouldn't have been exposed to the danger (rape) |
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Berry v sugar notch bourough
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Speeding was not a causal element. Distinguishes between a cause and a condition
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Ordinary and natural proximate cause cases
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city of lincoln
jones v tuttle |
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Act that causes v. act that causes condition cases
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price (missing stop was only a condition of the exploding lamp injury)
Hines(missing stop was cause of rape) dillon (Uninsulated wires only a conditon of boys death he was already falling and it only shortend his life buy seconds) |
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Horton case illustrates
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the chain of causation. when the blasting cap reached the mom it was in a safe harber she had control over it and could have broken the chain of causation.
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What test is used in In re Polemis
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Direct consequeces D is responsible for all their dierect consequences even if they are not foreseeable
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Attractive nuisance analysis
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condition attracts children
children who dont understand the danger the landowner knows and doesn't do anything about it. Classic example swimming pool |
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What conditions does the restatement put on attractive nuisances
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limits to artificial not natutal elements
landowner must know or have reason to know children are likely to trespass and that it is dangerous to a child |
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Does IL use attractive nuisance
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no it places the budon on the parents not the land owner
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rowland case
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abolishes duty distinctions fro a land owner and applies a negligence standard of reasonable person in light of the harm
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What does Mohr v. williams establish
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that no medical procedure can be done without consent
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Case that deals with implied consent
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O'brien v. cunard (smallpox vaccination)
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To exempt from battery a dr should obtain_____, but to protect against negligence that ______should be _______
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Consent, Consent, Informed
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What is an exception to consent for medical treatment
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Emergency
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Hudson v, Craft deals with
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consent to an illegal activity (illegal boxing match)
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Barton v. Bee Line
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deals with the issue of consent & statutory rape
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Hackbart v. Cinncinati bengals deals with
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consent and althetic injuries
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How does the restatement define recklessness
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knows the risk of harm created by the contact & the precaution that would eliminate the risk involves burdens that are so slight relative to the magnitude of the risk that a failure to adopt the precaution indicates an indifference to the risk
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Marchetti v. Kalish deals with
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recreational risk assumption
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Gentry v. Craycraft
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expands marchetti and say that the age and understanding of the risk are irrelevant to the assumption that risk in the context of recreational play
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Restatement re:battery
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actor is subject to liability if : acts intending to cause a harmful or offensive contact
& a harmful contact directly or indirectly results |
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Restatement re: intent
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a person acts with the intent to produce a consequence if
they act with the purpose of producing that consequence or the person acts knowing the consequesce is substantially certain to result |
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White v university of idaho
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piano professor touches student she is startled and gets injured. rejects restatement on intent and held her claim valid even though he didn't intend to hurt her
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Wagner v. Utah
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Mentally ill man was held to have requisite intent for battery because he intended to make the contact
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Case that deals with transfered intent
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Talmage v. Smith guy struck in the eye with a stick that was thrown at someone else
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Why did the claim of the P in Shaw v Brown & Williamson rejected
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battery by smoke case failed to allege sufficient intent. Tobacco company did not know that second hand smoke would touch any particular non-smoker.
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Case where guy trespassed & didn't know it
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Dougherty v. steep
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What must a P show for intangible intrusion
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intentional intrusion
and physical damage |
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Intel v Hamidi holding
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must show actual harware damage or impaired functioning of the server for tresspass to chattels on a computer system
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difference between Hamidi & Ebay v. bidders edge
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in Ebay there was actual injury re: tresspass to chattels
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Which case illustrates that words can negate an action in assault
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Tuberville v. Savage
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Which case shows that the ablity to carry out a threat is irrelevant if the P has no way of knowing the D's ability
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Allan v. Hannaford threating the movers with an unloaded gun
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Restatement re: assault
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an actor is liable for assault if he acts intendign to cause harmful or offensive contact or an immenent anticipation of such contact and
the P is put in immenant apprehension |
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Distinction apprehension and fright
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possible to have apprehension without fear. Tough guy can have apprehension that a weakling will act even if he is capable of acting to prevent it
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Which case deals with offensive battery
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Alcorn v. Mitchel guy spits on a guy in ct.
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Which case shows that cohersion in false imprisonment can be psycological
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Coblyn v. kennedys inc Elderly man aprehended for shoplifting
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