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30 Cards in this Set

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Types of Torts
-Intentional (desiire to commit harm and substatial certainty it will result)
-Negligence (duty of care)
-Reckless (knowingly acting, despire unreasonable risk)
-Strict Liability (e.g. blasting, storage of dangerous substances)
Common Intentional Torts
-Battery (inflicted offensive contact)
-Assault (apprehension of imminent contact that is harmful)
-Intentional infliction of emotional distress (outrageous conduct and severe emotional harm)
Elements of Battery
-Intentional
-Contact with another
-Either harmful or offensive that is
-Unconsented and
-Unprivileged
Intent of Minors
Defendant not given special treatment becuse of youth
Battery - (Intent)
-D is liable for intentionally causing bodily contact
-To the P in a way that is neither justified by P’s wishes or by a privilege and
-The contact is harmful in fact
Offensive Contact
-Accidental touching, such as from stumbling, cannot be basis for tort claim.
-Whether the contact was offensive is an objective issue, indicating what society founds legally unacceptable.
-Offensive contact is a dignitary harm. The “reasonable person” standard is used
Self Defense Factors
-Character and reputation of the attacker
-Belligerence of the attacker
-Strength difference between parties
-Attacker's overt acts
-Threat of serious bodily harm
-Impossibility of peaceful retreat
De minimis non curat lex
No recovery for trivial invasions of interests
Assault
A person commits an assault by placing another imminent apprehension of contact that would constitute a battery

-Assault is a proper cause of action when speech is combined with some action from which a reasonable person might anticipate present harm or offensive contact.
Consent to Breach of Peace
Just as one is not bound to a contract that is against pubic policy, one cannot consent to a violent crime (e.g. breach of the peace).
Evidence of consent
-Direct evidence
-Indirect evidence
-Often liability turns on whether “reasonably relied” on manifestation of consent

-Consent cannot be given to be the object of criminal conduct
Self Defense
-A defendant may use force for self-defense when there is an immediate threat of physical harm.
-Amount of force must be reasonably necessary for defense
-Deadly force can only be used if D has a reasonable belief that there is a threat of a similar harm.
Elements of negligence claims
-Duty
-Breach
-Causation (actual and proximate required)
-Injury
Reasonable Person Standard
§General duty: How an average reasonable person might have minimized risks
§Specific duty: Duty of an average person possessed of a particular knowledge (specialist, professional, or trade)

-Assumes normal intelligence, perception, memory, assessment
-Reasonable person standard applies even when specialized knowledge or emergency circumstances are at issue.
Hand formula
-provides that the failure to adopt a precaution is negligent if the cost of precaution is lower than the probability of harm and the losses of the harm.

-· If the cost D might have spent in preventing the harm was less than the probability of harm and the harm suffered, then D was negligent.

-Probability of harm refers to foreseeability that events set off by D will harm P.
Violation of a standard of care in a statute
Negligence per se

-o P must show he is a member of the class the statute was meant to protect and that the harm suffered was the kind the statute meant to avoid.

-o Even if D violated a statute, the P must prove that there was a causal connection between D’s violation and the injury
Res Ipsa Loquitur
-The event in question is of a kind which does not ordinarily occur in the absence of negligence, and
-The agency of instrumentality causing the harm was within exclusive control of the defendant a the time of negligence

-The prosecution relies on circumstantial evidence that might lead the trier of fact to infer D’s negligence.

-Only the party who exclusively controlled the source of an injury at the time of negligence, rather than the party who had control only at the time of the injury, is liable.
Causation-in-Fact
-Cause-in-fact exists if “but for” the D’s negligence P would not have been harmed.
-Courts consider whether “but for” the D’s negligent conduct any injury would have occurred.
-That means that conduct is a cause if it is a “necessary” or “essential” fact producing harm to P.
Multiple sufficient causes
-D1 and D2 are both fully liable for the entirety of P’s injury if their tortuous action jointly caused P’s injury. D1 and D2 need not have acted in concert.
-The Point: either of the tortuous acts alone would have caused the same result as the one caused when both tortuous acts concurred.
-Thus, the D cannot escape full liability simply because his actions coupled with another, by happenstance alone, to cause the same damage as the D would have caused alone.
Concerted action (aka joint enterprise)
-Where actors act in concert, each can be responsible for the entire damages, even if they are only partly responsible for the damages.
-This differs from the norm in which each actor is only responsible for that portion of the damages that each D caused.
-This rule of liability applies if either: (a) two actors act according to a common design; (b) the D provides substantial assistance or encouragement to another person who acts tortiously and causes damages; or (c) where D substantially assists another person acting tortiously and D’s own conduct breached some duty to P.
Alternative Liability
-This doctrine applies where two parties act negligently but only one of them causes the harm. E.g. Two people shoot negligently in the direction of P, but only one of their bullets strikes P.
-If P is unable, through no fault of his own, to determine which of them is responsible for the injury, then both are liable for the full amount.
-The burden of proof shifts to the D to prove that s/he is not liable.
o All the Ds independently breached a duty of care but only one of them caused P’s injury.
-To avoid liability each defendant must prove that s/he did not cause plaintiff’s injury.
Does a duty exist?
-Foreseeability of harm
-Degree of certainty
-Closeness of connection between D’s conduct and harm (i.e. proximate cause)
-Moral blame
-Deterring future harm
-Availability of insurance

OR a special relationship
-Common-carries, guest of innkeepers, employees and employers, and tenants and landlords, parent child
Proximate Cause
Approaches:
-Was the D’s actions the direct result of intervening harm or was there an independent, intervening force between the D’s action and the harm?
-Was the harm reasonably foreseeable to result from D’s actions?
-Was the D’s action a substantial factor of the resultant harm?
Foreseeability approach to proximate cause:
-As long as the general type of harm can be foreseen, D can be held accountable even if the exact details of how the injury came about were not foreseen.

-An intervening and superseding cause can break the proximate cause chain between D’s breach of duty and P’s harm.
-The intervening cause must have been unforeseeable to a reasonably prudent person at the time of the D’s negligence
“Thin skull” or “egg shell” plaintiff:
-As long as the harm was foreseeable, defendant can be held accountable for all damages even if they are greater than those that might have resulted to an average person
Substantial factor test for proximate cause:
-These cases make certain that Ds acts had more than a de minimus connection between the D’s conduct and the P’s injury.
-D’s act might not be a substantial factor in D’s injuries, even where the D breached some duty which was unrelated to P’s injury.
-A substantial force that is outside the normal course of D’s negligent conduct will not be imputed to the D.
Defenses
-Pursuant to the contributory negligence theory, P will recover nothing if at all negligent in the events leading up to an injury
-As for the comparative negligence theory, there are three types
§ Pure comparative fault: P may recover for D’s negligence even if P’s negligence was greater than D’s
§ Modified comparative fault: Use either 49% or 50% rule for assessing whether the degree of P’s negligence bars recovery.
Last Clear Chance Doctrine
This doctrine is used by plaintiffs who claim they should not be found contributorily negligent for harms. It applies in circumstances where P was in unavoidable danger and the D knew of the danger but did nothing to prevent the harm of D making.
Assumption of the Risk
-Express assumption of risk doctrine permits a party to enter into a contract releasing another of liability for negligence.
-Courts will not honor express assumptions of the risk that violate some public policy
Vicarious Liability:
-Evaluations of whether an employer should be responsible for the actions of its employee.

-Factors considered to determine if acting within the scope of employment
§ Employee’s intent
§ Time & place of accident,
§ Employee’s job description,
§ Incidental acts might be within the scope,
§ Latitude given employee,
§ Amount of time work required

-Sometimes the court will look at factors directly out of the Restatement (Second) on Agency