Torts

Front 1

Prima Facie Case for Intentional Torts

Back 1

1. Act by defendant
2. Intent
3. Causation

Front 2

Intent for Intentional Torts

Back 2

Specific: actor intends the consequences of his conduct if his goal in acting is to bring about the consequences
General: An actor intends the consequences of his conduct if he knows with substatial certainty that consequences will result
*actor need not intend injury

Front 3

Transferred intent

Back 3

Actor intends to commit a tort against one person, then either commits a different tort, or commits it against another person or both.

Front 4

Intentional Torts

Back 4

1. Assault
2. Battery
3. False Imprisonment
4. Trespass to land or chattels

Front 5

Causation

Back 5

conduct of defendant is a substantial factor in bringing about the injury

Front 6

Battery

Back 6

1. Act which brings about harmful or offensive contact to plaintiff's person
2. Intent of defendant to bring about harmful or offensive contact
3. Causation
*Harmful or offensive - use reasonable person standard

Front 7

Assault

Back 7

1. Act by defendant creating a reasonable apprehension in plaintiff of immediate harmul or offensive contact
2. Intent of defendant to bring about that apprehension
3. Causation
*reasonable person
*overt act required (words are not enough)

Front 8

False Imprisonment

Back 8

1. Act or omission to act on the part of defendant that confines or restrains the plaintiff to bounded area
2. Intent to confine or restrain
3. Causation
*exception: shoplifting if privileged

Front 9

Shoplifting privilege requirements

Back 9

1. Reasonable belief as to theft
2. conducted in reasonable manner with only nondeadly force
3. reasonable period of time

Front 10

Intentional Infliction of Emotional Distress

Back 10

1. Act by defendant amounting to extreme or outrageous conduct.
2. Intent to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of conduct
3. Causation
4. Damages - severe emotional distress.

Front 11

Trespass to Land

Back 11

1. Act of physical invasion of plaintiff's real property
2. Intent to physically invade
3. Causation

Front 12

Trespass to Chattels

Back 12

1. Act of defendant that interferes with plaintiff's right of possession in the chattel.
2. Intent to perform the act
3. Causation
4. Damages

Front 13

Conversion

Back 13

1. Act interfering with plaintiff's right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel.
2. Intent
3. Causation

Front 14

Defenses to Intentional Torts

Back 14

1. Consent
2. Self-Defense
3. Defense to Others
4. Defense of Property
5. Reentry onto Land
6. Recapture of Chattels
7. Privilege of Arrest
8. Necessity
9. Discipline

Front 15

Consent

Back 15

express or implied
*cannot consent to a criminal act
*use reasonable person test for implied consent

Front 16

Self-Defense

Back 16

When a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonable necessary for protection against the potential injury.

Front 17

Defense of Others

Back 17

actor needs a reasonable belief that the person being aided would have the right of self-defense

Front 18

Defense of Property

Back 18

One may use reasonable force to prevent tort to her property.

Front 19

Entry Upon Land to Remove Chattel

Back 19

owner of chattels is privileged to enter anothers land and recleaim at a reasonable time in a reasonable manner.

Front 20

Defamation

Back 20

1. Defamatory language
2. language must be "of or concerning" the plaintiff
3. Published to third person
4. Damage to reputation.
*two additional elements for public figure or matter of public concern: falsity of language, and fault of defendant

Front 21

Libel

Back 21

defamatory statement recorded in writing or some other permanent form (radio or tv).
*general damages presumed (special damages not needed)

Front 22

Slander

Back 22

spoken defamation (less permanent than libel)
*injury to reputation not presumed. need to prove special damages.

Front 23

Slander Per Se

Back 23

4 categories of slander where damages are presumed
1. Business or Profession
2. Loathsome Disease
3. Crime involving moral turpitude
4. Unchastity of a Woman

Front 24

Malice required for public figures

Back 24

1. Knowledge that the statement was false
2. Reckless disregard as to its truth or falsity

Front 25

Defenses to Defamation

Back 25

1. Consent
2. Truth
3. Absolute Privilege (court proceedings, compelled broadcast or publication, or spousal communication)

Front 26

Invasion of Right to Privacy

Back 26

1. Appropriation by de. of plain's picture or name for defendant's commercial advantage.
2. Intrusion by def. upon plaint's affairs or seclusions
3. Publication in false light
4. public disclosures of private facts.
*elements pg. 26-27

Front 27

Negligence - Prima Facie Case

Back 27

1. Existence of a duty on the part of def. to conform to a specific standard of conduct.
2. Breach of that duty
3. Breach was the actual and proximate cause of injury
4. Damage to plaint's person or property

Front 28

Negligence Standard Duty of Care

Back 28

When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person (perfect)

Front 29

Forseeability

Back 29

A duty of care is owed only to foreseeable plaintiffs
*can be unforeseeable in some circumstances (rescuer, prenatal injuries, intended beneficiaries)

Front 30

Reasonable Person

Back 30

Considered to have the same physical characteristics as defendant, average mental ability, and some knowledge as avereage member of community

Front 31

Common Carriers and Innkeepers

Back 31

required to exercise very high degree of care toward passengers and guests. Liable for even slight negligence.

Front 32

Duty owed to trespassers

Back 32

Undiscovered Trespasser: No duty
Discovered Trespasser: duty of ordinary care to warn trespasser or make safe, artifical conditions that involve a risk of death or serious bodily harm.

Front 33

Duty to Licensee

Back 33

duty to warn of dangerous condition know that creates an unreasonble risk of harm. No duty to inspect.

Front 34

Duty to Invitee

Back 34

duty owed to licensee plus a duty to make reasonable inspections.

Front 35

Statutory Standard of Care

Back 35

Protected by statue if:
1. Plaintiff is within protected class
2. Type of harm statute was intended to prevent.
3. Standards clearly defined

Front 36

Negligent Infliction of Emotional Distress

Back 36

Defendant creates foreseeable risk of physical injury to plaint either by:
1. causing a threat of physical impact that leads to eotional distress or
2. directly causing severe emotional disress that by itself is likely to result in physical symptoms.
*must be PHYSICAL injury
*plaint must be in zone of danger

Front 37

Duty to Act

Back 37

No duty to act. Exceptions:
1. Defendant causes peril
2. Special relationship (common carriers included)
3. Contract

Front 38

Proof of Breach

Back 38

determined by trier of fact

Front 39

Res Ipsa Loquitur (breach)

Back 39

Plaintiff presents case and rests. Def. moved for directed verdict cause no prima facia case. Plaintiff argues res ipsa loquitur.
Rule: In order to go to jury, instrumentality that caused injury must have been under exclusive control of defendant.
*most the time, directed verdict will be granted.
*plaint claims that accident causing injury would not occur w/o negligence.

Front 40

"But For" Causation Test

Back 40

An act or omission to act is the cause in fact of an injury when the injury would not have occured but for the act.

Front 41

Substantial Factor Test for Causation

Back 41

Where several causes concur to bring about an injury and any one alson would have been sufficient, it is sufficient if def's conduct was a "substantial factor" in causing the injury (two fires meet and burn a farm)

Front 42

Alternative Causes Approach to Causation

Back 42

Two or more persons have been negligent, but uncertainy exists as to which one caused injury. Plaintiff must prove that harm has been caused by one of them. The burden shifts to def to show his negligence was not the actual cause.

Front 43

Causation in General

Back 43

Must have cause in fact and proximate cause
1. Cause in fact: but for, substantial factor, etc.
2. Proximate Cause: Limitation to liability. If there is cause in fact, but not proximate cause, def is not liable.

Front 44

Proximate Cause

Back 44

Defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. Test based on foreseeability

Front 45

Direct Cause (proximate)

Back 45

facts present an uniterrupted chain of events from the time of def's negligence to time of injury

Front 46

Indirect Cause (proximate)

Back 46

Intervening forces present.
Look at foreseeability of results and foreseeability of intervening force

Front 47

Foreseeable result and foreseeable intervening forces

Back 47

Defendant liable. Dependent intervening forces are almost always foreseeable (negligence of resuer, subsequent med mal, subsequent disease, subsequent accident, etc.)

Front 48

Foreseeable result and unforeseeable intervening forces

Back 48

Defendant usually liable.
*exception - unforeseeable crime or tort

Front 49

Unforeseeable result and foreseeable intervening forces

Back 49

Defendant not liable

Front 50

Unforeseeable result and intervening force

Back 50

No liability

Front 51

Damages

Back 51

essential element of prima facie case for negligence.
1. Personal injury
2. Property damage
3. punitive damages

Front 52

Defenses to Negligence

Back 52

1. Contributory Negligence
2. Comparative Negligence

Front 53

Contributory Negligence

Back 53

Common law - contibutory neg. barred plaintiffs right to recover
Modern Courts - apply comparative negligence.

Front 54

Imputed Contributory Negligence

Back 54

will be imputed in circumstances that the courts would find vicarious liability. (master/servant, partners, spouses, parent/child, etc)

Front 55

Assumption of Risk

Back 55

Plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant's acts. Expressed or implied. Plaintiff must have known of the risk and voluntarily assumed it.

Front 56

Comparative Negligence

Back 56

Partial - Bar's plaintiff's recovery if their negligence was more serious than defendants
Pure - allows recovery no matter how great plaintiff's negligence is. (if def. was 10% neg, plaintiff can recover 10%)

Front 57

Liability w/o fault
(STRICT LIABILITY)

Back 57

1. Absolute Duty of defendant to make safe
2. Breach of that duty
3. Breach of duty was the actual and proximate cause of injury
4. Damage

Front 58

Trespassing Animals

Back 58

Owner strictly liable for the damage done by their trespassing pets (not household pets)
Wild Animals - strict
Domestic - strict if owner has knowlege that animal is dangerous

Front 59

Licensees and Invitees

Back 59

Owner is strictly liable

Front 60

Abnormally Dangerous Activities

Back 60

involves a substantial risk of serious harm to person or property no matter how much care is exercised.

Front 61

Abnormally Dangerous Test

Back 61

1. Involved a risk of serious harm
2. activity cannot be performed w/o risk of serious harm
3. must not be a commonly engaged in activity

Front 62

Products Liability

Back 62

Five theories: must show a defect
1. Intent
2. Negligence
3. Strict Liability
4. Implied warranties
5. Representation theories

Front 63

Defect

Back 63

product must be defective when product left defendant's control. Must be in a "defective condition unreasonably dangerous" to users.

Front 64

Vicarious Liability

Back 64

One person commits a tortious act against a third party, and another person is liable to the third party for this act.

Front 65

Doctrine of Respondeat Superior

Back 65

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious acts occur within the scope of the employment relationship.

Front 66

Joint and Several Liability

Back 66

When two or more tortious acts combine to proximately cause an indivsible injury, each is liable to the plaintiff for the entire damage incurred.

Front 67

Wrongful Death

Back 67

Recovery to survivors for loss of support, loss of consortium

Front 68

Survival

Back 68

Estate can recover for any damages from time of injury to time of death

Front 69

Battery

Back 69

Unlawfull application of force to the person of another resulting in either bodily injury or an offensive touching.

Front 70

Aggravated Battery

Back 70

1. Deadly weapon is used
2. Serious bodily injury
3. Victim is child, woman or police.

Front 71

Assault

Back 71

Attempt to commit a battery OR
The intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm (words are not enough). If there is actual touching, it's battery.

Front 72

Murder

Back 72

Unlawful killing of a human being with malice aforethought

Front 73

Malice Aforethought

Back 73

One of the following states of mind:
1. Intent to kill
2. Intent to inflict great bodily harm
3. Reckless indifference to an unjustifiably high risk to human life
4. Intent to commit a felony

Front 74

Voluntary Manslaughter

Back 74

intentional killing distinguishable from murder by the existence of adequate provocation (heat of passion). Must have some provocation

Front 75

Elements of adequate provocation

Back 75

1. Provocation arouse sudden and intense passion in the mind of an ordinary person to cause loss of self control
2. Defendant must have in fact been provoked
3. Not sufficient time between provocation and killing to cool
4. Defendant did not cool off after provocation

Front 76

When is provocation adequate?

Back 76

1. Being subjected to a serious battery or threat of deadly force
2. Finding spouse in bed with another person.

Front 77

Involuntary Manslaughter

Back 77

Criminal Negligence - requires greater deviation from the reasonable person
Unlwful Act - Misdemeanor manslaughter

Front 78

Felony Murder

Back 78

A killing committed during the course of a felony is murder. Malice is implied from the intent to commit the underlying felony

Front 79

Liability for Felony Murder

Back 79

1. Guilty of underlying felony
2. Felony must be independent of killing
3. Foreseeability of death

Front 80

False Imprisonment

Back 80

1. Unlawful
2. Confinement of a person
3. Without valid consent

Front 81

Kidnapping

Back 81

Confinement of a person that involves some movement of the victim or concealment of the victim in a "secret" place.

Front 82

Rape

Back 82

Unlawful carnal knowledge of a woman by a man without consent. Penetration is sufficient.

Front 83

Larceny (generally)

Back 83

1. taking and asporation of property from possession of another person.
2. w/o consent or with consent of a friend.
3. with intent to steal
4. title does not pass.

Front 84

Embezzlement (generally)

Back 84

1. conversion of property held pursuant to a trust agreement
2. use of property in a way inconsistent with terms of trust
3. with intent to defraud
4. title does not pass

Front 85

False Pretenses (generally)

Back 85

1. Obtaining title to property
2. by consent induced by fraudulent misrepresentation
3. with intent to defraud
4. title passes

Front 86

Larceny Elements

Back 86

1. a taking
2. and carrying away
3. of tangible personal property
4. of another
5. by trespass
6. with intent to permanently deprive the person of his interest in the property.

Front 87

Embezzlement Elements

Back 87

1. the fraudulent
2. conversion
3. of property
4. of another
5. by a person in lawful possession of that property

Front 88

False Pretenses Elements

Back 88

1. obtaining title
2. to the property of another
3. by an intentional false statement of past or exiting fact
4. with intent to defraud the other

Front 89

Larceny By Trick

Back 89

If only possession of the property is obtained, it is larceny by trick. If title is obtained, it is false pretenses

Front 90

Robbery

Back 90

1. a taking
2. of personal property of another
3. from the other person or presence
4. by force or intimidation
5. with intent to permanently deprive

Front 91

Receipt of Stolen Property

Back 91

1. Receiving possession and control
2. Of "stolen" personal property
3. known to have been obtained in a manner constituting a criminal offense
4. by another person
5. with intent to permenantly deprive owner of his interest

Front 92

Forgery

Back 92

1. making or altering
2. of a false writing
3. with intent to defraud

Front 93

Uttering a forged instrument

Back 93

1. offering as genuine
2. an instrument that may be the subject of forgery and is false
3. with intent to defraud.

Front 94

Burglary

Back 94

1. a breaking
2. and entry
3. of the dwelling
4. of another
5. at nighttime
6. with intent of committing a felony therein

Front 95

Arson

Back 95

1. the malicious
2. burning
3. of the dwelling
4. of another

Front 96

Arson requirements

Back 96

Must be a fire (not explosion).
Damage required: scorching is insufficient. Charring is sufficient.