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45 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Assault
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Intentional act that brings apprehension of imminent harmful or offensive contact without consent or privilege.
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Transferred intent applies.
Future threats do not qualify for assault. We are protecting your right to be free of apprehension. You can assault in self-defense, but you can't use deadly force unless confronted with deadly force. Intent - purpose/design, knowledge to a substantial certainty. Substantial certainty - somewhat less than certain. Harmful/Offensive - reasonable objective standard (unless you know of P's sensitivities). Apprehension - awareness that an imminent battery may occur. This is objective, but P must be aware. You have to consider whether D had the apparent ability to cause the harm or offense. Mere words are not enough for an assault, but there are exceptions (history of threats, words + movement, etc). Conditional threats can constitute an assault. |
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Battery
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Intentional act bringing about harmful or offensive contact upon another without consent or privilege.
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Harmful/Offensive - Objective standard.
Intent - purpose/design, knowledge to a substantial certainty. Transferred intent doctrine applies here. A battery to an object that is closely associated with the person can be a battery to the person. The best case scenario for this is when the object is actually touching the person. Direct/Indirect Contact are sufficient. Direct - your body. indirect - you use an object. The victim does not need to be aware that a battery took place for a battery to have actually occurred. |
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False Imprisonment
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Intentional act that brings about physical confinement of another within fixed boundaries for an appreciable time without consent or privilege.
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What matters is when you want to leave, and can't.
No false imprisonment when you are being kept out of somewhere. Allowed for fear of harm, but not economic harm. P has to check the "locked" door, ask to leave, etc. P has to be aware of confinement or harmed during it. P has to take a reasonable means of escape. This has to be safe, and there is some obligation to look for one. Intent - Purpose/design, knowledge to a substantial certainty. Transferred intent applies. Mere words are not usually enough. Fixed boundaries - being bound in all directions. Can extend to room, hotel, boat, etc. Time - usually at least 15 minutes, but it depends on the circumstances. Consider policy implications with allowing super short times. Shopkeeper's privilege - in some states a shopkeeper's privilege exists that allows them to hold you for a short period to determine whether you have stolen. |
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Trespass
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Intentional entry into land of another without consent or privilege.
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Trespass is presumed harm, and does not have to be actual harm.
You don't have to possess an intent to trespass. If there is an accidental entry, P gets actual damages. A trespasser can be acting in good faith. Land and anything permanently attached to it, including reasonable air space/space below the ground. Getting pushed onto the land does not count because there is no intent. Must be a physical invasion of the land. Direct ->Physical invasion. Indirect -> Nuisance - a thing that interferes with the right to enjoy my property. (bad smell or noise). Intent - purpose/design, substantial certainty (that the land will be entered onto). If a lease situation, the possessor of the property has the claim. Continuing trespass - every day the trespass continues there is a new cause of action. Limited consent - an invitee or a licensee may have consent for some limited purpose, but they become trespassers once they exceed the scope of their license or invitation. |
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Trespass to Chattel
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Intentional act that causes the dispossession or inter-meddling of the chattel of another without consent or privilege that falls short of conversion.
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Has to cause dispossession or harm.
Get diminution in value (actual damages, not market value). No trespass to chattel without intent. Intent - Purpose/design, substantial certainty. (Intent to interfere with chattel -- doesn't need to be a guilty intention). Transferred Intent applies. Intermeddling trespass - must show actual damages. Dispossessing trespass - mere taking is sufficient for damages, need not show actual harm. D only liable if he is dispossessed of the chattel, P lost the use of it, or if it is damaged. A dispossession is trespass to chattel no matter how short. P must have a right to possess the chattel. Does not apply to someone with a future intent to possess the chattel. |
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Conversion
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Intentional act of dominion or control over chattel which seriously interferes with the right of another to control it.
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Intent - Purpose/Design, substantial certainty. (Intent to exercise substantial dominion or control. Intent to destroy property or make it your own. Mistake is no defense)
Substantial dominion: Acquire: Steal. Damage/Alter: Run over someone's dog. Use it: Bailee violates term of bailment. Receive it: Accept stolen goods. Dispose of it: Bailee wrongfully sells chattel. Misdelivery of chattel: delivery to the wrong person by mistake so chattel is lost. Refuse to surrender: refuse to return the chattel. Serious interference - extent/duration of dominion/control. Good/bad faith. Harm to chattel. Inconvenience/expense caused to owner. You convert stolen property even if you buy it not knowing that it is stolen. Damages - market value at time/place chattel was converted. Tangible property can be converted. Documents: stock certificates, insurance policies, etc can be converted. D has to call it "mine." P gets value, not diminution. Intent - Purpose/design, substantial certainty. |
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Intentional Infliction of Emotional Distress
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Intentional act that is so extreme to cause severe emotional distress to another without consent or privilege.
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Intent - purpose/design, substantial certainty, reckless disregard.
Reckless disregard - aware of risk of causing severe emotional distress and disregarding that risk. Extreme - the normal person would exclaim "outrageous." Severe - P has to actually suffer severe emotional distress. D's conduct must be designed to cause SED and actually cause SED. Doesn't have to be physical harm, but physical harm helps the case. NO transferred intent. (Exceptions: parent of molested child, child who witnesses murder of parent) It matters who the P is. Circumstances, patterns, frequency matter. The conduct has no social utility. No transferred intent. IIED opens up all medical records to find causation. IIED has to be balanced against freedom of speech, etc. Common names and insults are not sufficient. |
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Consent Defense
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In intentional torts, P may not recover if he was willing for conduct/result to occur.
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Express: words/writing.
Implied: conduct, custom, circumstances. (Objective - Reasonable person standard) Voluntarily/Freely given. Incapable of consent: children, intoxicated, mentally incompetent, unconsciousness. If P mistakenly consents, D not liable if he was unaware of mistake. Can't exceed the scope of consent. Informed consent - doctors must inform of risks and get consent. Right to consent - parents (full consent under 16/major consent until 18) babysitters/school (limited and only in emergencies) No implied consent is found if there is a language barrier. Some jurisdictions - can't consent to illegal conduct. Others - consent to illegal activity bars recovery for injuries. Consent to an unreasonable demand is not consent. Economic duress does not invalidate consent. |
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Self-Defense
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A person is entitled to use reasonable force to protect themselves against a reasonable threat of harm or actual harm.
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Force must be reasonable, can't be excessive. Must be like force. As must force as necessary to repel the harm.
There has to be a reasonable threat or harm actually occurs. (Can't be preemptive strike). Provocation/revenge not adequate. Courts are split about duty to retreat. |
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Defense of Others
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D reasonably believes the other would be privileged to use force in self-defense and one's intervention is necessary at the time.
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Must be apparent need to defend the other person. You must believe that they are about to be harmed.
If you're wrong, some jurisdictions will hold you liable while others will not. |
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Defense of Real Property
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As much force as is reasonably necessary to prevent another from unlawfully coming onto their property to remove another who is trespassing on their property.
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Force must be reasonable. Owner must make verbal demand first unless threat of deadly force is involved. Like force. You are responsible for consequences of mechanical devices (spring gun). Recapture of chattel - verbal demand required, must do it in immediate response (no time to call police), can't take something lawfully taken, store owner has a right to detain immediately if suspicious, but must be reasonable.
Policy prefers you to go police instead of recapturing it yourself. |
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Necessity
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The interference with property to serve a greater interest. D is privileged to harm the P's property because of unusual emergencies.
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Only a defense to intentional property torts.
Public necessity - D is privileged to harm property interest of P where it is necessary to prevent imminent disaster to public/community/etc. Compensation? - Split. Private necessity - D is privileged to harm property of P where there is no less damaging way to prevent great harm to D or a few private citizens. Requires threat of serious imminent harm to D. Compensation? Yes. If private necessity exists, property owner cannot use reasonable force to defeat the exercise of the privilege. If he does, he is liable. |
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Privilege
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Acts done under the authority of law are in general privileged.
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Reasonable force when making an arrest. You can defame in the context of a lawsuit. Parent has a right to discipline a child. Etc.
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Justification
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The "catch all" defense.
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Where there are good reasons for exculpating the D. (Actions for greater good.)
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Negligence
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Duty - not to engage in conduct that creates an unreasonable risk of foreseeable harm to others under the circumstances.
Breach Actual Cause Proximate Cause Damages |
Foreseeability - The more foreseeable the harm, the more likely D acted negligently.
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Imminent Domain
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The government can't take property without fair compensation.
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You have to consider private/public necessity.
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Attractive Nuisance
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Something on your land that is attractive to kids. You have to keep the attractive nuisance safe. You are not liable unless you have reason to believe that the kid would encounter the nuisance. Split in authority: 1. responsible for injuries caused by the thing, not other injuries that may occur while the kid is on your property. 2. Responsible for all injuries on your property.
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This applies to young children.
From puberty on, you are a trespasser. It doesn't matter what attracted them onto the land; you can still have liability. The duty here is not high. There is not a duty to inspect unless you know of the thing. The duty is where kids are foreseeable and kids can't protect themselves from something. |
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Negligence per se
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1. The statute has to be a safety statute.
2. P has to be in the class of people that the statute was designed to protect. 3. The harm to the P was the type meant to be prevented by the statute. |
Excuses: Incapacity of actor, neither knew/should have known of occasion for compliance with the statute, emergency not of your making, compliance creates greater risk than non compliance, reasonable attempt to comply, confusion to the public, foolish/obsolete statute.
The judge determines what the standard of care is. Negligence per se is "n" negligence as a matter of law. Some courts have allowed P to borrow statutes from other states to establish a standard of care. Most states will not say that violation of an ordinance is negligence per se, but it can be evidence of negligence. Negligence per se acts as a presumption of negligence that can be rebutted by the defendant OR evidence of negligence that the jury can consider. |
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Res Ipsa Loquiter
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"The thing speaks for itself."
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There is no direct evidence, but it is clear that the harm is a result of negligence. Requirements: no direct evidence, must normally occur because of negligence, exclusive control by the defendant, no contributory negligence by P.
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Hand Formula
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Burden is less than the probability of harm and the likelihood of harm.
B<PL = Negligent. B>PL = Not Negligent. |
Risk v utility.
The higher the potential loss, the less the burden matters. The higher the burden, the more D is expected to avoid the conduct. |
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Social Utility
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Does the benefit outweigh the potential harm to society? Would a reasonable person have engaged in the conduct because the benefit outweighed the potential harm?
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We don't require that just because something is dangerous you take every possible step to make it safe, but reasonable steps are required.
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Sudden Emergency Doctrine
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People who are confronted with circumstances that require an emergency response are not expected to act in a manner that a person normally would under the circumstances.
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Event must be sudden, unforeseen, and unexpected.
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Professional Neglience
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A person is held to a professional standard of care dependent upon their skills and training -- generally lawyers, doctors, etc.
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If you are complying with how people in your profession would have acted under the circumstances, you aren't negligent.
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Physically Impaired People
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The reasonable standard for people with physical disabilities must act as a reasonable person having the same disability would act.
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The impaired person must avoid certain activities that might be normal for a normal person, but would create a risk of harm for someone with the impairment.
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Mentally Impaired People
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No exceptions or allowances for mental deficiencies or impairment -- people are held to the same standards as those without mental impairment. They must act as the reasonable person would.
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Why? Easy to fake mental impairment.
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Children
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Children are held to the same standard of care that would be exercised by a reasonable child of the same age, maturity, intelligence, etc. under the circumstances.
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Dangerous activity - adult standard of care.
Kid's activity - child standard of care. |
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Industry Custom
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Appropriate/general behavior for the industry.
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If D violated reasonable industry standard, not liable. If D adhered to unreasonable industry standard, liable. Negligence is negligence, regardless of standards.
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Actual Cause
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Cause in fact. Sin Qua Non.
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But for test. (Alternative in fact scenario). 1. What is the N conduct? 2. If D hadn't done that would P still be harmed? A probability that it occurs because of N is all that is required.
Substantial factor - was D a substantial factor in creating harm to P? Does D's conduct have such an effect in causing the harm that a reasonable person would look at it as a cause? |
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Proximate Cause
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Legal Cause. The D has been N and is the but-fot cause, but do we really want to impose liability here? Should legal liability be imposed? PC draws the line on policy issues and "cuts-off" liability based on remoteness, unfairness, and efficiency.
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Conduct is the PC if the harm was a foreseeable result of the conduct, and if the harm was not brought by an extraordinary or unforeseeable sequence of events. The harm suffered must be within the foreseeable scope of the risk. If there is an intervening act, the act must have been reasonably foreseeable. If it is not, you won't be held liable.
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Proximate cause - Foreseeability
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P can only recover for injuries that the D should have anticipated at the time the negligent act occurred.
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D must have been able to reasonably foresee that the "scope of risk" of the harm occurred to the actual P. Extent of harm doesn't have to be foreseeable. Manner of harm need not be foreseeable. (Type of harm must be foreseeable, but exact manner does not.) Define the foreseeable risks to find the scope. Don't make this too broad or too narrow. Then, see if harm that P suffered was one of the risks. Intervening cause - breaks the chain or doesn't. Intentional act of 3rd party - was it foreseeable that a 3rd party would do this? If the intervening cause nor the harm was foreseeable, the cause will relieve D of liability. If the intervening cause is extraordinary, unforeseeable, or independent of D's conduct, it breaks the chain.
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Rescue Doctrine
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Danger invites rescue. An injured rescuer or the original P if they are harmed worse by the rescuer may recover from D.
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The person being rescued must have been placed in the position because of D's negligence. Peril must be imminent. A reasonable person would think peril existed. Rescuer acted with reasonable care in effectuating the rescue.
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Other situations for D's liability
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D created danger - P tries to escape from danger. Second injury caused by weakened condition resulting from the injury. Creating the risk of harm. P's suicide - irresistible impulse. If P was insane at the time, then it breaks the chain. But, if P became insane as a result of the accident, recovery is allowable when there is an irresistible impulse.
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Failure to Act/Nonfeasance
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General Rule: No duty to act.
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Self determination as long as not harming someone else.
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Exceptions to No Duty to Act
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Parent/Child, husband/wife, children in your care, employer/ee, doctor/patient, trustees, guardians, landlord/tenant, inn keeper/guest. When you have assumed the obligation. When you know your negligent conduct caused the harm. When you know your non-negligent conduct/something related to your control has caused the harm.
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Premises Liability
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General rule: with conditions on the land that arise in the state of nature, most courts say no duty upon a landholder to protect a person outside the premises. Conditions that do not arise out of nature, have to look at whether the precautions to avoid foreseeable harm were sufficient and whether D knew/should have known the precautions taken initially were insufficient to protect.
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Trespasser
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No duty to keep a lookout for trespassers. There is a duty not to purposefully, wantonly, or willfully injure.
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Exceptions: known trespasser (duty to warn about danger on your property), trespassers frequent the area (duty of reasonable care), unknown trespassers (duty to at least try and avoid foreseeable harm), railroads (caution near habituated area/crossings with streets)
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Licensee
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On the land for their own purpose. Social guest, utility worker, mail man. Duty - to warn of any dangers the owner has knowledge or reason to know. This only applies to known dangers. No duty to inspect for hidden dangers.
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Invitee
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On the land for the owner's purpose or benefit. Customers to a business. Duty - reasonable carei n keeping premises reasonably safe for invitees use. Duty to inspect premises for hidden dangers and to keep property reasonably safe and warn about known dangers. Being on business property, whether I have an intent to buy, makes me a business invitee.
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Firefighters Rule
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Landowner not liable to firemen/policemen for negligence. Exceptions: if you are negligent after he gets on your premises.
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Landlord/Tenent
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Landlord is not liable to tenant or guests for defects.
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Exceptions: Landlord Ks to repair but doesn't/negligently does so, know defects exist at time of lease, premises are leased for use of the public, landlord has control over common areas.
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Contributory Negligence Defense
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P has to be "blameless" and come to court with "clean hands." Does not matter until the P establishes a prima facie case of negligence. Is an absolute bar to D's negligence.
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Last clear chance: Who had the last clear chance to avoid the harm or avoid the accident? D liable if: 1. P is helpless and can't avoid harm, but D can. 2. P is helpless, D is unaware, but D would have been aware if exercising due care.
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Assumption of Risk - Express
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Express - waiver, exculpatory clause, typically a K. If the language is clear and the liability being waived is clear, this will stand. (no waiver for intentional harms/acts)
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Public policy: won't enforce for necessary services: hospital, etc. Must be predominately displayed. Must clearly state what is waived. Recreational waivers are typically upheld.
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Assumption of Risk - Implied
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Implied - based on circumstances. P knowingly and voluntarily agreed to encounter the risk. Knowingly - know of risk and understand nature of risk. Voluntary - If you have no other option, it is not voluntary. Person must be conscious.
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Assumption of Risk - General
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Typically based on a subjective basis. Does the P know what the risk is and understand it? Does the P voluntarily encounter the risk? If D increases the danger to P, then assumption of risk may not apply.
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Employer - duty to have a reasonably safe place to work. Pro athlete - consent to known risks involved. Egregious violations differ.
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Comparative Negligence
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Pure: P's damages are reduced in proportion to the percentage negligence attributed to him. Modified: same as in pure jurisdictions, but only if P's negligence either 1. Does not exceed (50% jurisdictions) or 2. Is less than (49%) jurisdictions, the D's negligence. This is the majority view over contributory negligence.
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