Torts I

Front 1

Assault

Back 1

a) Act intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and

b) the other is thereby put in such imminent apprehension.

Front 2

Battery

Back 2

a) He acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and

b) a harmful or offensive contact with the person of the other directly or indirectly results.

Front 3

False Imprisonment

Back 3

a) He acts intending to confine the other or a 3rd person within fixed boundaries fixed by the actor and

b) without lawful privilege

c) against his consent

d) within a limited area

e) for any appreciable time

Front 4

Self- Defense

Back 4

a) Justified if there was an actual or reasonably apparent threat to his safety and

b) force employed was not excessive in degree or kind.

Front 5

Defense of Others

Back 5

a) same elements as self-defense plus,

b) as long as defendant's belief was reasonable that B was being attacked & needed help was reasonable,

c) even if mistaken, &

d) the amount of force used was reasonable.

Front 6

Arrest & Detention Privilege

Back 6

a) Reasonable cause

b) shopkeeper's action must be proper and

c) detention was carried out in a reasonable manner and

d) for reasonable amount of time.

Front 7

Consent Privilege

Back 7

a) Consent can be revoked.

b) minors & incapacitated adults are unable to give consent in certain situations

c) consent is not given if it is procured by fraud.

Front 8

Public Necessity

Back 8

a) Defendant had a reasonable belief that action was needed and

b) the action he took was a reasonable response to that need.

c) Privilege protects public officials & private citizens who act in the public interest.

Front 9

Private Necessity

Back 9

a) Does not serve as an absolute defense to liability for trespass.

b) A defendant who commits trespass & invokes the defense of private necessity must still pay for any harm done to the property caused by the trespass,

c) however, the defendant is not liable for nominal or punitive damages.

Front 10

Negligence

Back 10

a) D owed a legal duty to P

b) duty was breached

c) P suffered damages

d) D's act was actual & proximate cause

e) All 5 necessary for prima facie case

Front 11

Different Standard of Care for Defendants

Back 11

a) Low Intelligence: RPP standard

b) Physical Disabilities: Apply RPP standard for a person with the same disability.

c) Old Age: RPP standard

d) Mental Disabilities: RPP standard

e) Superior Knowledge: RPP standard, but if you have superior knowledge you're expected to use it.

f) Children: RPP standard of a child the same age, intelligence, and experience.

-RPP standard of adult for children involved in adult activities.

-Some courts hold very young children to be incapable of negligence.

Front 12

Negligence Per Se

Back 12

Use criminal statutes that impose fines or jail time to find negligence and do not mention any civil liability. Include no private right of action.

Front 13

Shopkeeper's Privilege

Back 13

a) Must reasonably believe another has taken chattel or

b) has failed to make payment for a chattel or services rendered,

c) is privileged, without arresting the other,

d) to detain him on the premises for the time necessary for a

e) reasonable investigation of the facts.

Front 14

Test for Negligence Per Se Statutes

Back 14

1) Statute must clearly define the requiredstandard of conduct.

2) Statute must have been intended to prevent thetype of harm D’s act causes.

3) Victim is within the class of persons statute isdesigned to protect.

Front 15

As a Matter of Law

Back 15

No reasonable jurors can differ about conclusion under the set of facts.

Front 16

As a Rule of Law

Back 16

Standard for all other cases. Specific duty is applied.

Front 17

Consent

Back 17

Consent cannot be given:

a) Activity is illegal

b) Through fraudulent means

c) Outside scope of consent

Front 18

Hand Formula B

(risk utility formula)

Back 18

B= Burden

P= Probability of injury

L= Likely seriousness of injury

-Memory is placed on the burden side of the formula.

Front 19

Standard of Care

Back 19

1) Exercise the care that would be exercised by a reasonable and prudent person

2) under the same or similar circumstances to 3) avoid or minimize risks of harm to others.

Front 20

Dangerous Instrumentalities: Orthodox View

Back 20

1) The standard of care remains the same whether danger is high or low.

2) What changes with the danger is the amount of care that a reasonable person would take.

Front 21

Emergencies Under RPP

Back 21

Circumstance taken into account in determining whether the actor's resulting conduct is that of the RPP.

Front 22

Physical Disabilities

Back 22

Conduct of an actor with a physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability.

Front 23

Exceptional Physical Ability

Back 23

If actor has superior qualities he is required to exercise them in a manner reasonable under the circumstances.

Front 24

Intoxication

Back 24

Intoxicated person owes the same care as a sober person, and that if his overt conduct would be negligence in a sober person, it is also negligence in a drunken one.

Front 25

Low Intelligence

Back 25

Held to the standard of a RPP. Does not escape liability because he acted as well as others of similar intelligence.

Front 26

Children in Adult Activities

Back 26

1) When a child engages in an inherently dangerous activity,

2) The child should be held to the adult stand

Front 27

Negligence Per Se: Standard of Care

Back 27

1) The statute supplants the ordinary standard of care and a violation of the statute establishes a breach.

2) Some states make violation of such a statute some evidence of negligence.

Front 28

Elements of Negligence Per Se

Back 28

1) Must clearly define the required standard of conduct

2) Must have been intended to prevent the type of harm the defendant's act or omission caused

3) Plaintiff must be a member of class of persons statute intended to protect.

4) The violation must have been the actual cause of the injury.

Front 29

Excuses for Violation of Statute

Back 29

Excusable:

1) Actor's childhood, physical disability

2) Exercises reasonable care in attempting to comply with statute

3) Actor neither knows nor should know of factual circumstances that render statute applicable

4) actor's violation is due to the confusing way the statute is presented to the public

5) actor's compliance would involve a greater risk of physical harm than noncompliance

Front 30

Child's Standard in Negligence Per Se

Back 30

Minor's violation of statute is only evidence of a minor's negligence

Front 31

Worker's Compensation

Back 31

Work-connected injuries may generally be regarded as a cost that business should bear as part of its overhead.

-Workers not covered by compensation law must seek recovery under tort law.

Front 32

Foreseeability of Harm as Prerequisite for Breach (seen as a factor)

Back 32

1) An actor is negligent only if his conduct created a foreseeable risk and the actor recognized, or a reasonable person would have recognized the risk.

2) Injury may occur because of defendant's actions or inactions.

Front 33

Foreseeability

Back 33

1) Means that harm was not only foreseeable but also too likely to occur to justify risking it without added precautions.

2) Often harm can be foreseeable, but a reasonable person would not have taken action to prevent it because the risk of harm was low and harm was improbable.

Front 34

Obviousness of Danger

Back 34

The obviousness of a risk may make the likelihood of its materializing so slight that there is no need to try to eliminate that risk.

Front 35

Expecting Care by 3rd Persons

Back 35

A reasonable person may not breach a duty when the person reasonably relies on another to protect the plaintiff.

Front 36

Social Utility of Conduct

Back 36

Social utility of conduct is taken into account in the negligence analysis.

Example: Garbage truck beeper scares horse and plaintiff is thrown off the horse.

Front 37

Hand Formula (again)

Back 37

Major Factors:

1) The foreseeable likelihood that a person's conduct will result in harm,

2) The severity of any harm that may ensue

3) Burden of precautions to eliminate or reduce the risk of harm.

Front 38

Values of Risk Utility

Back 38

1) Provides deterrence in the "right" amount.

2) Maximizes community resources

Front 39

Alternatives to Risk Utility Formula

Back 39

1) Intuitively seems negligent

2) Solely by statutory prescriptions such as speed limits

3) Hard & fast rules developed by judicial prescriptions

4) Custom of the community or business involved

5) Moral rule that imposes liability if the defendant did anything more risky than he would have done to prevent the same harm to himself or his own property.

Front 40

Comparative Fault

Back 40

1) Damages reduced in proportion to own fault.

2) Each faulty party must bear his or her share of the losses.

Front 41

Joint and Several Liability

Back 41

1) Plaintiff can enforce her tort claim against either tortfeasor.

2) Can obtain judgment against both but cannot collect more than full damages.

Front 42

Contribution

Back 42

Allows a party that pays the whole judgment to recover from another liable party for their portion of fault in damages.

Front 43

Alternative Forms of Apportionment

Back 43

Joint & Several Liability Based on:

1) Type of damages

2) Threshold percentage (must be over 50%)

3) Reapportionment of uncollectible shares

Front 44

Probability of Negligence

Back 44

Trier of fact must reasonably believe that the probability of negligence exceeds one half (50%)

Front 45

Contradictory Testimony

Back 45

Factors to identify which testimony to believe

1) witnesses' demeanor

2) opportunity to observe

3) capacity for memory

Front 46

Circumstantial Evidence

Back 46

1) Evidence of one fact that permits an inference of another fact.

2) Entitled as much weight as direct evidence.

Front 47

Expert Opinion

Back 47

1) Experts are usually allowed to give expert opinion or conclusions within the field of their expertise.

2) Not needed if issues are within the "common knowledge" of lay jurors.

Front 48

Slip & Fall: Liability

Back 48

1) The defendant created & failed to take reasonable actions to abate the hazard

2) Defendant did not directly create the condition but discovered or should have discovered a condition created by others (constructive notice)

3) defendant's mode or method of business operations made it foreseeable that others would create a dangerous condition.

Front 49

Company Safety Manuals & Policies

Back 49

The law does not give a store's manual or policy priority over the RPP standard.

Policies are only viewed as a factor.

-Relevant to foreseeability or risk

-Feasibility of precautions

-Plaintiff's reliance on a particular type of care

Front 50

Custom

Back 50

1) May exceed the minimum standard of care.

2) Establishes a standard by which ordinary care may be judged even where an ordinance prescribes certain minimum safety requirements which the custom exceeds.

3) Only evidence of negligence, not negligence itself.

Front 51

Custom Other Than Safety Custom

Back 51

1) A custom that is not used for safety purposes is not enough to show negligence.

2) Custom standard is used for policy reasons of safety.

Front 52

Safety Manuals for a Whole Field

Back 52

1) Represent a whole industry.

2) Safety codes prepared by industry groups have been adopted by statute or ordinance.

3) May set the standard of care.

Front 53

Custom: Sophisticated Parties

Back 53

Sophisticated parties are allowed to use customs to control the standard of care.

Front 54

Statutory Compliance

Back 54

Statutes usually reflect a minimum standard of care, not a maximum obligation.