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153 Cards in this Set

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Tort
Legal wrongs that result in harm to an individual for which remedies can be collected
Burdon of proof
Normall rests on P to supply a preponderance of evidence
Preponderance of Evidence
More likely than not
Goal of Torts
Deterrence and Compensation
Difference b/w Torts and Contracts
Contracts=duty imposed by consent
Torts=duty imposed by law
Compensatory Damages
money designed to compensate the injured party
Punitive Damages
money designed to punish D's behavior
Proximate Cause
with out event, cause would not have occured
sine quo non
something on which something else depends
Establishing Fault in intentional torts
In intentional torts, with out fault, there is no wrong
Assignment of Error
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
Extended Liability
Once D commits an intentional tort, they are liable for all damages that result, even unforeseeable ones
Elements of Battery
1)Act
2)Harmful or offensive touching
3)Intent
When it is an act?
If it is volitional
offensive touching
Offends a normal sense of personal dignity
Exception to the objective test for offensive touching
In some cases, abnormal sensitivity that is known
Doctrine of Extended Personality
Something setting in motion a force which comes into contact or acts to bring something into contact w/ P
Intent for Battery
1)Purpose
2)Substantial Certainty
Negligence
Behavior that imposes a risk of harm
Recklessness
Disregard a substantial risk
Battery
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
Types of Transfered Intent
1)Tortfeasor intends a tort on one person, but commits a tort on another
2)Tortfeasor intends one tort but commits another
Transferability of Intent
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
Mental Insanity and the Capacity for intent
It is not necessary for D's motives in forming intent to be rational, if intent is formed, D is liable
Assault
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
Apprehension
An awareness of an immenent touching that would be a battery if completed
CA Civ Code section 1708.7
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
Restatement 27 (assault)
If you intend an apprehension and one results you are still liable even if a reasonable person would not have been apprehensive
Children's Capacity for Intent
No general rule, must asertain if child could form requisit intent
Elements of False Imprisonment
1) Confinement
2)Awareness of Confinement on the part of P
3)Intent on the part of D
Types of confinement
Physical barriers or restraints, threat of force or duress, improper assertion of legal authority
Intentional Infliction of Emotional Distress
1) extreme or outrageous conduct
2) Intent or recklessness
3)Severe emotional injury
Extreme or outrageous conduct
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
Duress of Goods
Refuse to give someone their goods or threaten to damage them
Confinement
No reasonable means of escape
Exception to Mere Insult
racial comments or sexual harrassment
Fidutiary Duty
duties owed by one person to another on good faith; an undertaking to act primairly for the good of another (ex: doctors)
Fiduciary Duty
duty to act to the benefit of another
Recklessness in place of intent in IIED
disregard for substantial risk of harm
Transfered Intent in IIED
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
Transfered Intent in IIED in hostage situations
in hostage situations, presence of the claimant will not be required. Liability limited to "family members"
Trespass to Land
One who intentionally enters or causes enterence upon the property of another
Damages for Trespass to Land
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
Conversion
The intentional exercise of dominion over the property of another
Dominion
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
When is an act serious enough for conversion
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
Forced Sale
force converter to buy the property from you
Trespass to Chattels
intentional intermeddling w/ the property of another
elements of trespass to chattels
1)disposession
2)lost use
3)actual damages
Damages for trespass to chattels
Only damage done to property
Damages for conversion
fair market value w/n a reasonable time of the taking
Self-defense privilege
D has to have a reasonable belief and they must have used reasonable force to repeal the threat
Recapture of Chattels
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
Qualified Privilege to Trespass
privilege to trespass to recover property, but only if it is done w/n a reasonable time and manner
Detention w/n a store
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
Restatement 120 (general rule for detention)
D is privileged to detain a person if they had probable cause, or if D acted reasonably, even if D made a mistake
Defending Chattels
An owner is prohibited from using force that would take a life or cause great bodily harm in the defense of property
Mechanical Devices
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
Restatement 70 (threatening force in self defense)
You are privileged to threaten more force than you are actually privileged to commit, unless greater harm is recognizable
Force and Protection of Chattels
You are not authorized to use any force calculated to cause death or serious injury in the defense of property
General Standard of Care for Children
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
Exceptions to the general standard of care for children
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
Standard of Care for people w/ mental disabilities
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
Standard of Care for people w/ physical disabilities
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
Medical Emergancy Defense in Negligence
A person cannot be held liable for an emergency the did not forsee and therefore could not prevent
Negligence per se approaches
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
Class of persons/harm
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
Restatement 288 (Defenses against negligence per se)
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
Sudden Emergency (Breach)
One who is confronted w/ a sudden emergency not of their own making is not negligent if they act according to their best judgment
Hand Formula
B<PL
Proving breach
P must prove all the elements of negligence by a perponderance of evidence
Circumstantail Evidence
We are going to let juries make inferences as long as evidence gives rise to reasonable inferences
Work Area (reasonable care)
Employers must provide employees with a place that is reasonably safe having regard to the character of work and reasonably safe tools and appliances
Knowledge Assumption for Employers
The liability of employers rests on the assumption that the employer has a better and more comprehensive knowledge than the employee
Reasonable Care of Designers
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
Actual Knowledge
actual knowledge of a condition
Constructive Knowledge
Didn't actually know of the situation but should have known it.
Evaluation of Conduct
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
Codes of Conduct
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
Adhering to Custom
No always a defense, there are some precautions that are so imparative that even custom cannot justify their disregard
Premissable Inference
the jury is free to accept the inference or reject it (RIL)
Res Ipsa Loquitur
the mere fact that the accident occurred is evidence of negligence
Elements of RIL
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
Traditional Control Rule
D has to have exclusive control over the instrumentality
Modern Control Rule
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
Smoking-out rationale
Shifting the burden to D to prove they weren't negligent
RIL w/ multiple D's
Assume negligence was on the part of all the D's, but all possible sources of fault must be joined in the case
Evidence in RIL
If evidence discloses the circumstances of the accident to the extent that there is nothing left to infer, then RIL is no longer needed
Consorted Action
D's agree to work together
Indivisable Injury
damages cannot be apportioned w/ reasonable certainty
Multiple D's and indivisable injury
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
Apportionment Among D's
If both are neg. they share the payments to P according to their share
Joint and Several Liablity
P can enforce the claim against both and get a judgment about both, but cannot receive more than the amount of their damages
Contribution
If more than one D is liable, D that pays the damages can recover contributions from the other D according to their share
INdemnity
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
Insolvent or Immune D's
D held joint and severally liable cannot receive contribution if D is immune or unable to pay
Several Liablity
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
Actual Cause: But-for test
D's neg is the actual cause of the injury if but-for D's neg, the injury would not have occurred
Actual Cause: Substantial Factor Test
When D's neg is a substantial factor in bringing about harm, D will be the actual cause of harm
Dillon Discount
We value damages at the time and place of the loss
Actual Cause: Alternative Liability
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
Traditonal Rule of A/c and lost use
P must show that P was deprived of at least 51% chance of a more faverable outcome; P recovers damages of the entire injury
Lost Chance Theory of A/c
P may prevail even if chances of a better recovery are less than 51%, but only recover damages for the lost oppurtunity
Market Share Theory of Liablity
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
Proximate Cause
D is the proximate cause of harm if the harm was w/n the foreseeable scope of risk
Risk Rule
D is the proximate cause of harm if the harm is w/n the risk of D's neg.
Manner and Extent of harm in proximate cause
The manner of harm and the extent of harm do not have to be foreseeable as long as the type of harm was foreseeable.
Intervening Force
One which operates after D's neg. to cause harm
Foreseeable Plantiff
If it wasn't foreseeable that there would be harm to P, then there's no duty owed.
Thin Skull Plantiff Rule
You take your victim as you find them
Intervenors
An intervening force is one which operates to produce harm after the D's negligence has been committed
Superseding Cause
Superseding cause-an intervening cause which has been determined to relieve the D of liability.
Traditional Rule of criminal or intentional intervenors
Traditionally-they are seen as being superseding and relieve D of liability (Watson)
Suicidal intervenors
If you neg. cause harm to P, and they commit suicide, generally you will be relieved of liability
Negligent intervening acts
Neg. intervening acts which are foreseeable are not superseding
Dependant Intervening acts
Dependant intervening acts-intervening acts which operate in response to D's neg.
Position of Danger
Position of danger-did D's neg leave P in a position of danger, and did this danger result?
Acts of God
i. An intervening force of nature will be superseding if it is extraordinary & leads to a different type of harm.
Contributory Negligence/Comparative Fault
i. Is the P's failure to exercise care for their own safety.
Pure Rule of Comparative Fault
P's recovery is reduced by their percentage of fault (NY)
Modified Rule of Comparative Fault
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
Traditional Rule of Comparative Fault
complete bar to recovery
Avoidable Consequences Rule
1) You have a duty to medigate your damages
Comparative Causation
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.
Second Injuries
Post accident injuries that are foreseeable or so closely related to the first that it is still appropriate for D to be liable.
Medical Treatment/Transporation
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
Bexiga Principle
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
Exculpatory Clauses
forms relieving others of liability for injuries incurred by P
Factors to determine validity of exculpatory clauses
1) Nature of the Services
a) Whether the services are essential
2) Fairly entered into
a) Bargaining power
3) Clear and unambiguous
Dangers not inherent in the activity
If a danger can be eliminated w/ the exercise of reasonable care it is not a risk inherent in the activity.
Validity of a Clause in general
The clause is valid when the service is not essential and there is no disadvantaged bargaining power.
Three meanings of assumption of the risk
Consent-you consent to relieve someone of their duty
Contributory negligence
No duty
Secondary Implied Assumption of the risk
knowing, appreciative, and voluntary encountering of the risk
primary assumption of the risk
either there was no duty to begin w/ or there may have been a duty, but it wasn't breached
Three approaches to secondary implied assumption of the risk
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"
Implied Assumption of the risk test
Test: 1) whether P had knowledge of the risk of danger; 2) appreciated the risk, and 3) voluntarily exposed themselves to that risk
Assumption of the risk and contributory negligence
There is no distinction b/w contributory negligence and assumption of risk when raised as a defense to an established breach of duty.
Inherent risk
Would imposition of a duty discourage participation in the sport or fundamentally alter the sport
Sporting events and assumption of the risk
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.
medical standard of care
To act as an ordinary prudent physician
medical locality rule
You would be held to the standard in the same community
modified medical locality rule
Majority rule: you are held to a standard of care of practitioners under the same or similar circumstances
minority medical locality rule
you are held to the national standard
medical malpractice causation
1) P would have refused treatment
2) a RP would have refused treatment
3) the risk materialized
Standard of care after Abolition of landowner's categories
The landowner owes a duty of reasonable care to lose who are injured on the property
Good samaritain laws and medical malpractice
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.
specialist standard of medical care
Generally speaking, specialists are held to the standard of care of other specialists.
informed consent duty of care "material"
Standard of care=duty to disclose those risks which would be material to a reasonable and intelligent decision by the patient
Two types of informed consent duties
1)material
2)medical standard of care
life expectancy and informed consent
The Dr. had no duty to disclose statistical life expectancy information b/c it was not information about risks of the procedures.
Theraputic priviledge
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
informed consent and risk of refusing treatment
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.
contributory negligence and medical malpractice
Could be contributory negligence if you fail to provide history, but not if the negligence was in failing to ask what the risks are.