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96 Cards in this Set

  • Front
  • Back
Prima Facie Case for Intentional Torts
1. Act by defendant
2. Intent
3. Causation
Intent for Intentional Torts
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
Transferred intent
Actor intends to commit a tort against one person, then either commits a different tort, or commits it against another person or both.
Intentional Torts
1. Assault
2. Battery
3. False Imprisonment
4. Trespass to land or chattels
conduct of defendant is a substantial factor in bringing about the injury
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
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)
False Imprisonment
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
Shoplifting privilege requirements
1. Reasonable belief as to theft
2. conducted in reasonable manner with only nondeadly force
3. reasonable period of time
Intentional Infliction of Emotional Distress
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.
Trespass to Land
1. Act of physical invasion of plaintiff's real property
2. Intent to physically invade
3. Causation
Trespass to Chattels
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
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
Defenses to Intentional Torts
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
express or implied
*cannot consent to a criminal act
*use reasonable person test for implied consent
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.
Defense of Others
actor needs a reasonable belief that the person being aided would have the right of self-defense
Defense of Property
One may use reasonable force to prevent tort to her property.
Entry Upon Land to Remove Chattel
owner of chattels is privileged to enter anothers land and recleaim at a reasonable time in a reasonable manner.
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
defamatory statement recorded in writing or some other permanent form (radio or tv).
*general damages presumed (special damages not needed)
spoken defamation (less permanent than libel)
*injury to reputation not presumed. need to prove special damages.
Slander Per Se
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
Malice required for public figures
1. Knowledge that the statement was false
2. Reckless disregard as to its truth or falsity
Defenses to Defamation
1. Consent
2. Truth
3. Absolute Privilege (court proceedings, compelled broadcast or publication, or spousal communication)
Invasion of Right to Privacy
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
Negligence - Prima Facie Case
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
Negligence Standard Duty of Care
When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person (perfect)
A duty of care is owed only to foreseeable plaintiffs
*can be unforeseeable in some circumstances (rescuer, prenatal injuries, intended beneficiaries)
Reasonable Person
Considered to have the same physical characteristics as defendant, average mental ability, and some knowledge as avereage member of community
Common Carriers and Innkeepers
required to exercise very high degree of care toward passengers and guests. Liable for even slight negligence.
Duty owed to trespassers
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.
Duty to Licensee
duty to warn of dangerous condition know that creates an unreasonble risk of harm. No duty to inspect.
Duty to Invitee
duty owed to licensee plus a duty to make reasonable inspections.
Statutory Standard of Care
Protected by statue if:
1. Plaintiff is within protected class
2. Type of harm statute was intended to prevent.
3. Standards clearly defined
Negligent Infliction of Emotional Distress
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
Duty to Act
No duty to act. Exceptions:
1. Defendant causes peril
2. Special relationship (common carriers included)
3. Contract
Proof of Breach
determined by trier of fact
Res Ipsa Loquitur (breach)
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.
"But For" Causation Test
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.
Substantial Factor Test for Causation
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)
Alternative Causes Approach to Causation
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.
Causation in General
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.
Proximate Cause
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
Direct Cause (proximate)
facts present an uniterrupted chain of events from the time of def's negligence to time of injury
Indirect Cause (proximate)
Intervening forces present.
Look at foreseeability of results and foreseeability of intervening force
Foreseeable result and foreseeable intervening forces
Defendant liable. Dependent intervening forces are almost always foreseeable (negligence of resuer, subsequent med mal, subsequent disease, subsequent accident, etc.)
Foreseeable result and unforeseeable intervening forces
Defendant usually liable.
*exception - unforeseeable crime or tort
Unforeseeable result and foreseeable intervening forces
Defendant not liable
Unforeseeable result and intervening force
No liability
essential element of prima facie case for negligence.
1. Personal injury
2. Property damage
3. punitive damages
Defenses to Negligence
1. Contributory Negligence
2. Comparative Negligence
Contributory Negligence
Common law - contibutory neg. barred plaintiffs right to recover
Modern Courts - apply comparative negligence.
Imputed Contributory Negligence
will be imputed in circumstances that the courts would find vicarious liability. (master/servant, partners, spouses, parent/child, etc)
Assumption of Risk
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.
Comparative Negligence
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%)
Liability w/o fault
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
Trespassing Animals
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
Licensees and Invitees
Owner is strictly liable
Abnormally Dangerous Activities
involves a substantial risk of serious harm to person or property no matter how much care is exercised.
Abnormally Dangerous Test
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
Products Liability
Five theories: must show a defect
1. Intent
2. Negligence
3. Strict Liability
4. Implied warranties
5. Representation theories
product must be defective when product left defendant's control. Must be in a "defective condition unreasonably dangerous" to users.
Vicarious Liability
One person commits a tortious act against a third party, and another person is liable to the third party for this act.
Doctrine of Respondeat Superior
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.
Joint and Several Liability
When two or more tortious acts combine to proximately cause an indivsible injury, each is liable to the plaintiff for the entire damage incurred.
Wrongful Death
Recovery to survivors for loss of support, loss of consortium
Estate can recover for any damages from time of injury to time of death
Unlawfull application of force to the person of another resulting in either bodily injury or an offensive touching.
Aggravated Battery
1. Deadly weapon is used
2. Serious bodily injury
3. Victim is child, woman or police.
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.
Unlawful killing of a human being with malice aforethought
Malice Aforethought
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
Voluntary Manslaughter
intentional killing distinguishable from murder by the existence of adequate provocation (heat of passion). Must have some provocation
Elements of adequate provocation
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
When is provocation adequate?
1. Being subjected to a serious battery or threat of deadly force
2. Finding spouse in bed with another person.
Involuntary Manslaughter
Criminal Negligence - requires greater deviation from the reasonable person
Unlwful Act - Misdemeanor manslaughter
Felony Murder
A killing committed during the course of a felony is murder. Malice is implied from the intent to commit the underlying felony
Liability for Felony Murder
1. Guilty of underlying felony
2. Felony must be independent of killing
3. Foreseeability of death
False Imprisonment
1. Unlawful
2. Confinement of a person
3. Without valid consent
Confinement of a person that involves some movement of the victim or concealment of the victim in a "secret" place.
Unlawful carnal knowledge of a woman by a man without consent. Penetration is sufficient.
Larceny (generally)
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.
Embezzlement (generally)
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
False Pretenses (generally)
1. Obtaining title to property
2. by consent induced by fraudulent misrepresentation
3. with intent to defraud
4. title passes
Larceny Elements
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.
Embezzlement Elements
1. the fraudulent
2. conversion
3. of property
4. of another
5. by a person in lawful possession of that property
False Pretenses Elements
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
Larceny By Trick
If only possession of the property is obtained, it is larceny by trick. If title is obtained, it is false pretenses
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
Receipt of Stolen Property
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
1. making or altering
2. of a false writing
3. with intent to defraud
Uttering a forged instrument
1. offering as genuine
2. an instrument that may be the subject of forgery and is false
3. with intent to defraud.
1. a breaking
2. and entry
3. of the dwelling
4. of another
5. at nighttime
6. with intent of committing a felony therein
1. the malicious
2. burning
3. of the dwelling
4. of another
Arson requirements
Must be a fire (not explosion).
Damage required: scorching is insufficient. Charring is sufficient.