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153 Cards in this Set
- Front
- Back
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Tort
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Legal wrongs that result in harm to an individual for which remedies can be collected
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Burdon of proof
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Normall rests on P to supply a preponderance of evidence
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Preponderance of Evidence
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More likely than not
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Goal of Torts
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Deterrence and Compensation
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Difference b/w Torts and Contracts
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Contracts=duty imposed by consent
Torts=duty imposed by law |
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Compensatory Damages
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money designed to compensate the injured party
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Punitive Damages
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money designed to punish D's behavior
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Proximate Cause
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with out event, cause would not have occured
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sine quo non
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something on which something else depends
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Establishing Fault in intentional torts
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In intentional torts, with out fault, there is no wrong
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Assignment of Error
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A specification of the trial ct's alleged errors on which the appellant reliesin seeking an appellant ct's reversal or modification of an adverse judgment
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Extended Liability
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Once D commits an intentional tort, they are liable for all damages that result, even unforeseeable ones
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Elements of Battery
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1)Act
2)Harmful or offensive touching 3)Intent |
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When it is an act?
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If it is volitional
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offensive touching
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Offends a normal sense of personal dignity
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Exception to the objective test for offensive touching
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In some cases, abnormal sensitivity that is known
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Doctrine of Extended Personality
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Something setting in motion a force which comes into contact or acts to bring something into contact w/ P
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Intent for Battery
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1)Purpose
2)Substantial Certainty |
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Negligence
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Behavior that imposes a risk of harm
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Recklessness
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Disregard a substantial risk
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Battery
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A volitional act which sets in motion a force which causes a touching of P's person or something closely connected w/ P in a way that is harmful or offensive to a reasonable person
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Types of Transfered Intent
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1)Tortfeasor intends a tort on one person, but commits a tort on another
2)Tortfeasor intends one tort but commits another |
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Transferability of Intent
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If an act is done w/ the intention of affecting a thrid person, but causes a harmful bodily contact with another, the actor is liable to such as fully as though they intended to touch them
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Mental Insanity and the Capacity for intent
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It is not necessary for D's motives in forming intent to be rational, if intent is formed, D is liable
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Assault
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Any act of such a nature as to excite an apprehension of a battery may constitute and assault. Apprehension must be 1) one which would normally be aroused in a reasonable person, and 2) must be an invasion of P's mental peace
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Apprehension
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An awareness of an immenent touching that would be a battery if completed
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CA Civ Code section 1708.7
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Creates a claim against stalkers if their pattern of behavior was 1) w/ the intent to follow, alarm or harass P, 2)resulting in a reasonable fear of P for herself or family members, 3)D must either violate a restrainig order or make a credible threat
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Restatement 27 (assault)
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If you intend an apprehension and one results you are still liable even if a reasonable person would not have been apprehensive
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Children's Capacity for Intent
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No general rule, must asertain if child could form requisit intent
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Elements of False Imprisonment
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1) Confinement
2)Awareness of Confinement on the part of P 3)Intent on the part of D |
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Types of confinement
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Physical barriers or restraints, threat of force or duress, improper assertion of legal authority
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Intentional Infliction of Emotional Distress
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1) extreme or outrageous conduct
2) Intent or recklessness 3)Severe emotional injury |
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Extreme or outrageous conduct
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Conduct that exceeds the reasonable bounds of society
1) pwr differential 2) Pattern of behavior 3)Not just a mere insult 4) exploiting vulnerability 5) Most cases involve conduct along w/ words |
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Duress of Goods
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Refuse to give someone their goods or threaten to damage them
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Confinement
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No reasonable means of escape
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Exception to Mere Insult
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racial comments or sexual harrassment
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Fidutiary Duty
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duties owed by one person to another on good faith; an undertaking to act primairly for the good of another (ex: doctors)
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Fiduciary Duty
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duty to act to the benefit of another
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Recklessness in place of intent in IIED
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disregard for substantial risk of harm
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Transfered Intent in IIED
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1) If you are present at the scene of the conduct
2) and you're an immediate family member or 1) you are not a family member 2) you are present at the scene of the conduct 3) You suffer physical harm from the distress |
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Transfered Intent in IIED in hostage situations
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in hostage situations, presence of the claimant will not be required. Liability limited to "family members"
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Trespass to Land
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One who intentionally enters or causes enterence upon the property of another
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Damages for Trespass to Land
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D is liable for damages even if no physical or economic harm results. Parasitic damages may be rewarded as well. Usually the costs of repair or lost market value
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Conversion
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The intentional exercise of dominion over the property of another
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Dominion
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1) assuming control
2) depriving owner of the use or the right to control the use of the property 3)refusing to return the property 4) destroying the property |
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When is an act serious enough for conversion
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1) extent or duration of control
2) D's intent to assert right inconsistent w/ owner's right to the property 3)D's good faith or bad faith 4) The harm done 5)expense or inconvenience caused |
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Forced Sale
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force converter to buy the property from you
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Trespass to Chattels
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intentional intermeddling w/ the property of another
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elements of trespass to chattels
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1)disposession
2)lost use 3)actual damages |
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Damages for trespass to chattels
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Only damage done to property
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Damages for conversion
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fair market value w/n a reasonable time of the taking
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Self-defense privilege
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D has to have a reasonable belief and they must have used reasonable force to repeal the threat
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Recapture of Chattels
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You can use reasonable force to recapture chattels, but only if you ask for the item first or show that it was futile to do so
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Qualified Privilege to Trespass
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privilege to trespass to recover property, but only if it is done w/n a reasonable time and manner
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Detention w/n a store
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There is no probably cause in a self service store until the suspected person attempts to leave w/o paying, unless they manifest control over the thing to make intention to steal unequivical
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Restatement 120 (general rule for detention)
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D is privileged to detain a person if they had probable cause, or if D acted reasonably, even if D made a mistake
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Defending Chattels
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An owner is prohibited from using force that would take a life or cause great bodily harm in the defense of property
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Mechanical Devices
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You cannot do w/ a mechanical device what you would not be privliged to do in person. In reverse, you can do w/ a mechanical device what you are privliged to do in person
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Restatement 70 (threatening force in self defense)
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You are privileged to threaten more force than you are actually privileged to commit, unless greater harm is recognizable
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Force and Protection of Chattels
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You are not authorized to use any force calculated to cause death or serious injury in the defense of property
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General Standard of Care for Children
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It is the duty of the child to exercise the same care that a reasonably careful child of the same age, maturity, intelligence, training and experience would exercise under similar circumstances
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Exceptions to the general standard of care for children
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1)if you engage in adult activity that you will held to the adult standard of care
2)if you engage in inherently dangerous activity then you will be held to the adult standard of care |
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Standard of Care for people w/ mental disabilities
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a person w/ mental disabilities is held to the same standard of care as that of a reasonable person under similar circumstances w/o regard to the capacity to control or understand the consequences of their actions
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Standard of Care for people w/ physical disabilities
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A person laboring under the difficulties of a physical disability is not required to exercise a higher degree of care, only that of an ordinary reasonable person
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Medical Emergancy Defense in Negligence
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A person cannot be held liable for an emergency the did not forsee and therefore could not prevent
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Negligence per se approaches
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1)statutory violation is evidence of negligence
2)statutory violation is negligence as a matter of law 3)statutory violation creates a presumption of negligence that D can defend against |
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Class of persons/harm
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P must 1) be in the class of persons the statute was trying to protect, and 2) the injury suffered must be of the type that the statute was trying to prevent
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Restatement 288 (Defenses against negligence per se)
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1) the violation is reasonable b/c of actor's incapacity
2) they didn't know or had no reason to know for the occasion to comply 3) they are unable to comply after reasonable diligence or due care 4) They are confronted by an emergency not due to their own conduct 5) Compliance would involve a greater risk of harm |
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Sudden Emergency (Breach)
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One who is confronted w/ a sudden emergency not of their own making is not negligent if they act according to their best judgment
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Hand Formula
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B<PL
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Proving breach
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P must prove all the elements of negligence by a perponderance of evidence
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Circumstantail Evidence
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We are going to let juries make inferences as long as evidence gives rise to reasonable inferences
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Work Area (reasonable care)
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Employers must provide employees with a place that is reasonably safe having regard to the character of work and reasonably safe tools and appliances
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Knowledge Assumption for Employers
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The liability of employers rests on the assumption that the employer has a better and more comprehensive knowledge than the employee
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Reasonable Care of Designers
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A designer must anticipate the environment in which its product will be used, and it must design against reasonably foreseeable risk attending a products use in that setting
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Actual Knowledge
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actual knowledge of a condition
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Constructive Knowledge
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Didn't actually know of the situation but should have known it.
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Evaluation of Conduct
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1) D either created the dangerous condition
2) D did not directly create the condition but discovered or should have discovered a condition created by others or 3) D's mode of business operations makes it likely that a dangerous condition will be created |
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Codes of Conduct
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A party's own rules of conduct are relevant and may be entered into evidence w/ an express condition that they are merely evidenciary and not a legal standard
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Adhering to Custom
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No always a defense, there are some precautions that are so imparative that even custom cannot justify their disregard
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Premissable Inference
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the jury is free to accept the inference or reject it (RIL)
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Res Ipsa Loquitur
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the mere fact that the accident occurred is evidence of negligence
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Elements of RIL
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1) the event is of the kind that normally does not occur w/o negligence
2)other reasonable causes, including the conduct of P or third parites, are sufficiently eliminated from evidence 3) the indicated negligence is w/n the scope of D's duty to P |
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Traditional Control Rule
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D has to have exclusive control over the instrumentality
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Modern Control Rule
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Not in the restatement as an element of RIL. Some cts use it liberally that D must have the right and oppurtunity to exercise control
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Smoking-out rationale
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Shifting the burden to D to prove they weren't negligent
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RIL w/ multiple D's
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Assume negligence was on the part of all the D's, but all possible sources of fault must be joined in the case
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Evidence in RIL
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If evidence discloses the circumstances of the accident to the extent that there is nothing left to infer, then RIL is no longer needed
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Consorted Action
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D's agree to work together
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Indivisable Injury
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damages cannot be apportioned w/ reasonable certainty
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Multiple D's and indivisable injury
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When the D's negligence combines to form an indivisible injury, both will be held joint and severaly liable regardless of thier conection w/ each other
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Apportionment Among D's
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If both are neg. they share the payments to P according to their share
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Joint and Several Liablity
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P can enforce the claim against both and get a judgment about both, but cannot receive more than the amount of their damages
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Contribution
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If more than one D is liable, D that pays the damages can recover contributions from the other D according to their share
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INdemnity
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D can get all of their loses covered by someone else even if they are found liable. Could be contractual or due to a responsibility
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Insolvent or Immune D's
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D held joint and severally liable cannot receive contribution if D is immune or unable to pay
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Several Liablity
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The trier of fact makes a comparative fault apportionment of liablity. No tortfeasor is liable for more than their share. P assumes the risk if one party is unable to pay
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Actual Cause: But-for test
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D's neg is the actual cause of the injury if but-for D's neg, the injury would not have occurred
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Actual Cause: Substantial Factor Test
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When D's neg is a substantial factor in bringing about harm, D will be the actual cause of harm
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Dillon Discount
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We value damages at the time and place of the loss
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Actual Cause: Alternative Liability
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Where the injury results from one cause, but there are more than one neg independant forces operating, and P can't tell which one caused the harm, the ct will treat them as joint tortfeasors
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Traditonal Rule of A/c and lost use
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P must show that P was deprived of at least 51% chance of a more faverable outcome; P recovers damages of the entire injury
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Lost Chance Theory of A/c
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P may prevail even if chances of a better recovery are less than 51%, but only recover damages for the lost oppurtunity
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Market Share Theory of Liablity
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In order to determine the full culpability of multiple D's, each will only be held to its market share of harm caused to society as a whole; No chance of exculpation but not joint and several liablity either
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Proximate Cause
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D is the proximate cause of harm if the harm was w/n the foreseeable scope of risk
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Risk Rule
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D is the proximate cause of harm if the harm is w/n the risk of D's neg.
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Manner and Extent of harm in proximate cause
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The manner of harm and the extent of harm do not have to be foreseeable as long as the type of harm was foreseeable.
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Intervening Force
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One which operates after D's neg. to cause harm
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Foreseeable Plantiff
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If it wasn't foreseeable that there would be harm to P, then there's no duty owed.
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Thin Skull Plantiff Rule
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You take your victim as you find them
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Intervenors
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An intervening force is one which operates to produce harm after the D's negligence has been committed
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Superseding Cause
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Superseding cause-an intervening cause which has been determined to relieve the D of liability.
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Traditional Rule of criminal or intentional intervenors
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Traditionally-they are seen as being superseding and relieve D of liability (Watson)
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Suicidal intervenors
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If you neg. cause harm to P, and they commit suicide, generally you will be relieved of liability
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Negligent intervening acts
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Neg. intervening acts which are foreseeable are not superseding
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Dependant Intervening acts
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Dependant intervening acts-intervening acts which operate in response to D's neg.
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Position of Danger
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Position of danger-did D's neg leave P in a position of danger, and did this danger result?
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Acts of God
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i. An intervening force of nature will be superseding if it is extraordinary & leads to a different type of harm.
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Contributory Negligence/Comparative Fault
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i. Is the P's failure to exercise care for their own safety.
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Pure Rule of Comparative Fault
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P's recovery is reduced by their percentage of fault (NY)
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Modified Rule of Comparative Fault
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i) P's recovery is reduced by their percentage of fault, but P can only recover if they are less negligent than the D, or in some case if they are equally negligent or less
One. Less than 51% at fault Two. Less than 50% at fault |
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Traditional Rule of Comparative Fault
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complete bar to recovery
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Avoidable Consequences Rule
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1) You have a duty to medigate your damages
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Comparative Causation
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You could have done something to prevent the injury and if we can determine the harm that was suffered b/c of the neg., you cannot recover.
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Second Injuries
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Post accident injuries that are foreseeable or so closely related to the first that it is still appropriate for D to be liable.
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Medical Treatment/Transporation
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A tortfeasor responsible for the original accident is also liable for injuries or death occurring during the course of medical treatment to treat injuries suffered in that accident
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Bexiga Principle
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if the very breach is failing to protect against the risk that occurs, you can't use that harm to relieve or even reduce liability
1) There is some known vulnerability on the part of P. 2) A situation of a non-reciprocal risk |
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Exculpatory Clauses
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forms relieving others of liability for injuries incurred by P
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Factors to determine validity of exculpatory clauses
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1) Nature of the Services
a) Whether the services are essential 2) Fairly entered into a) Bargaining power 3) Clear and unambiguous |
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Dangers not inherent in the activity
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If a danger can be eliminated w/ the exercise of reasonable care it is not a risk inherent in the activity.
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Validity of a Clause in general
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The clause is valid when the service is not essential and there is no disadvantaged bargaining power.
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Three meanings of assumption of the risk
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Consent-you consent to relieve someone of their duty
Contributory negligence No duty |
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Secondary Implied Assumption of the risk
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knowing, appreciative, and voluntary encountering of the risk
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primary assumption of the risk
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either there was no duty to begin w/ or there may have been a duty, but it wasn't breached
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Three approaches to secondary implied assumption of the risk
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i) Consent=no recovery (Crews) (traditional rule)
ii) P acted reasonably=full recovery iii) Merge assumption of the risk w/ contributory negligence and deal w/ both under comparative fault One. Even though P may not be unreasonable in their behavior "fudging" |
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Implied Assumption of the risk test
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Test: 1) whether P had knowledge of the risk of danger; 2) appreciated the risk, and 3) voluntarily exposed themselves to that risk
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Assumption of the risk and contributory negligence
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There is no distinction b/w contributory negligence and assumption of risk when raised as a defense to an established breach of duty.
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Inherent risk
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Would imposition of a duty discourage participation in the sport or fundamentally alter the sport
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Sporting events and assumption of the risk
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when you are involved in a sporting activity, you must look at the nature of the activity to ascertain whether it was an inherent risk of the sport or not.
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medical standard of care
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To act as an ordinary prudent physician
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medical locality rule
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You would be held to the standard in the same community
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modified medical locality rule
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Majority rule: you are held to a standard of care of practitioners under the same or similar circumstances
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minority medical locality rule
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you are held to the national standard
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medical malpractice causation
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1) P would have refused treatment
2) a RP would have refused treatment 3) the risk materialized |
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Standard of care after Abolition of landowner's categories
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The landowner owes a duty of reasonable care to lose who are injured on the property
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Good samaritain laws and medical malpractice
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The statute was intended to encourage aid w/o fear of liability, so the location of the emergency is irrelevant so long as the physician had no preexisting duty to aid.
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specialist standard of medical care
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Generally speaking, specialists are held to the standard of care of other specialists.
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informed consent duty of care "material"
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Standard of care=duty to disclose those risks which would be material to a reasonable and intelligent decision by the patient
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Two types of informed consent duties
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1)material
2)medical standard of care |
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life expectancy and informed consent
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The Dr. had no duty to disclose statistical life expectancy information b/c it was not information about risks of the procedures.
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Theraputic priviledge
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Dr. does not have to disclose even material information if it would render the patient unfit for treatment or seriously complicate the patient's medical condition
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informed consent and risk of refusing treatment
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If a patient indicates that he or she is going to decline the risk-free test or treatment, then the dr. has the additional duty of advising of all material risks of which a reasonable person would want to be informed.
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contributory negligence and medical malpractice
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Could be contributory negligence if you fail to provide history, but not if the negligence was in failing to ask what the risks are.
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