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45 Cards in this Set
- Front
- Back
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Intent
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1) desire to bring about a given result
OR 2) knows with substantial certainty that the result can happen through his conduct |
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Transferred intent
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1) Intent to cause tort to person A but causes same tort to person B
2) Intent to cause tort A to a person and causes tort B to same person 3) Intends to cause Tort A to Person A and causes Tort B to Person B Cannot transfer IIED |
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Battery
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1) Without Consent
2) Intentional 3) Offensive Touching 4) of another 5) Which, causes harmful or offensive bodily contact - Offensive contact-contact that offends a reasonable sense of personal dignity - P does not have to be conscious of it to constitute battery - Anything connected to body is body - Indirect contact occurs when setting a trap |
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Assault
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1) Intentional
2) Placing of another 3) in apprehension of imminent harmful or offensive bodily contact 4) With the ability to bring about that contact - Words alone are never enough |
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False Imprisonment
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1) Intentional
2) Confinement without consent 3) without privilege to do so 4) P is conscious of it - P must not know of a way out - Can be actionable even if a small period of time |
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Intentional Infliction of Emotional Distress
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1) Intentional or reckless act
2) Towards another 3) that is so shocking and outrageous as to exceed all reasonable bounds of decency 4) Causes severe emotional distress - The only intentional Tort that requires actual damages |
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Trespass to land
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1) Intentional
2) Without justification or permission 3) Entry onto the property of another - knowledge of invasion of another is not necessary, simply intent to enter the land - interference with possession of property of another, therefore invisible objects upon the land are not included but once it becomes visible it is a trespass (particles) - Nominal damage awarded, no damage necessary |
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Trespass to Chattels
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1) intentional
2) interference/intermeddling with the use and enjoyment of another’s personal property - Proof of damage is required - withholding property is intermeddling - Electrical impulses amount to trespass if intereferes with use of property (Compuserve case) |
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Conversion
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1) intentional
2) Exercise of dominion and control over another's chattel 3) so seriously interferes with owners rights as to justify full payment of the chattel - value of the object from the time conversion began, UNLESS fluctuating commodity/stock then it is when the owner would have wanted to sell it - if you want property back you use trespass to chattels, if you just want the money for it then conversion |
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Intentional Tort quick Notes
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1) Must always show Causation-substantial factor
2) Transferred intent does not apply to IIED or Conversion 3) Aside from IIED and Trespass to Chattels/conversion, you do not have to show damages |
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Defenses to intentional Torts
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1) Defenses for the Defendant of a tort action. P still brings claim, however there is a valid defense.
2) These serve as complete defenses |
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Consent (usually applies to physical content)
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Express- D still cannot exceed scope of consent.
- It can be expressly rejected as well even if on the brink of death, a person may deny medical treatment. If person in coma it denial of med treatment must be proven by Clear and Convincing evidence. Implied- Whether a reasonably prudent person in the position of the D would believe that P has consented to conduct. - No consent where obtained by Fraud or concealment (as to STD, etc. and therefore battery) - Athletes: don't consent to intentional misconduct by other players IMPLIED AS A MATTER OF LAW- when lack of capacity to consent (drunk, child, or unconscious) a. Π is incapacitated b. Emergency situation c. If nothing to show he would not consent if ABLE TO d. if a reasonable person would consent in the circumstances |
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Self-Defense
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Burden on D to show force used was necessary or was reasonably believed to be necessary
1. Must be reasonable amount of force under circumstances 2. Comparable size and ages are taken into consideration 3. Deadly force can be used when 1) imminent threat to your life 2) burglar in your dwelling - no right of retaliation - words alone are not enough to warrant an attack - extends to third party, amount of force you would be able to use if you were being attacked yourself |
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Defense of Property
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Owner of property permitted to:
1) use reasonable force under the circumstances 2) only enough to repel an intruder - deadly force only permitted when intruder in your dwelling since there is a right to stand your ground, and in the face of imminent serious bodily injury or death |
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Recovery of Property
Merchant's Privilege |
Can use reasonable force to obtain objects fraudulently obtained:
i. Cannot inflict serious bodily harm ii. Cannot breach the peace iii. Must be at the scene of the crime iv. MERCHANTS: may detain for reasonable investigation a person whom he reasonably believes to have taken a chattel unlawfully. 1. Reasonable grounds 2. Done in reasonable manner 3. Done speedily (15-20 min.) a. NY section 218 of the business code, legislature established this privilege |
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Necessity
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Public- person acts to prevent great harm to public. No requirement to pay for damage sustained in protecting the public.
Private- You can save your own property but you have to pay for damage to another's property in the salvation attempt. - Much of this has been changed by Statute or court ruling but this is the common law rule |
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Discipline
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Parent has a right to exercise discipline over child.
- however, no immunity from suit - cannot be excessive When child is in school the privilege is for teachers but with much more limitations Privilege extends to members of the military as well |
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Justification
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"catch-all" defense. Good reason absolves liability. (bus driver false imprisons kids because they are being extremely rowdy and he plans to drive them to the police station)
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Negligence
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Breach of a duty, which proximately caused damage to another.
Requires: 1) Forseeable danger of injury to another 2) Conduct that is unreasonable in proportion to that danger - A reasonably prudent person would take measures to protect against unreasonable harm to others |
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Duty
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General: To act as a reasonably prudent person under the same or similar circumstances. This is a duty towards all foreseeable Plaintiffs.
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Emergency Doctrine (Standard of Care)
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A person faced with an emergency and who acts without opportunity to consider the alternatives is not negligent if (he, she) acts as a reasonably prudent person would act in the same emergency
1. even if it later appears that (he, she) did not make the safest choice or exercise the best judgment. 2. Provided that he did not bring about the emergency through his own conduct - Absolves the claimant of the Doctrine from liability but does not confer liability on another because it was an emergency |
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Excuses for Negligence per se
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1. Violation reasonable because of childhood or physical disability
2. D neither knew or should have known of the factual circumstances that rendered the statute applicable. 3. Reasonable attempt to comply: D exercised reasonable care in attempting to comply 4. Confusion to public: Statute was confusing or too vague and could not be interpreted properly by the public 5. Necessity: where compliance with statute would have resulted in a greater risk of harm to others 6. Emergency: Standards and rules made for normal circumstances cannot be applied in extraordinary situations. (Pokora v. Wabash Ry. Co.) |
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Proximate Cause
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a. PJI- Generally
i. Act or omission is proximate cause if ii. It was a substantial factor in bringing about the injury (SOLE STANDARD IN NY) |
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Concurrent Causes
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b. PJI-concurrent causes
i. more than one cause of an injury. ii. Where the independent and negligent acts or omissions of two or more parties cause injury to another, iii. each of those negligent acts or omissions is regarded as a cause of that injury provided that iv. it was a substantial factor in bringing about that injury |
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Intervening Causes
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i. When D claims the cause of π’s injury was the conduct of a third person
ii. If D was negligent iii. May still be responsible for injury to π caused by a 3rd party iv. if a reasonably prudent person in the D's situation, before the defendant allegedly committed (his, her) act of negligence, would have foreseen that an act of the kind committed by 3rd party would be a probable result of the defendant's negligence. Two things can be the object of foreseeability • The possibility of the intervening cause • Kind of harm suffered by the π as a result of the intervening cause |
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Name 5 generally foreseeable events
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1. Acts of God
2. Criminal Acts (depending on circumstances and neighborhood) 3. Suicide (only if caused by the injury, if voluntary than superseding) 4. Rescuer (Danger invites rescue: a. D was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued b. The peril or appearance of peril was imminent c. A reasonably prudent person would have concluded such peril or appearance of peril existed d. The rescuer acted with reasonable care in effectuating the rescue 5. Drunk driver crashing (liquor sales prohibited from bar to visibly intoxicated)- Dram Shop Act GOL 11-101. - Extends to social host in NJ |
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What is 50% rule when it comes to join and several liability?
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For Pain and Suffering damages not involving motor-vehicle accidents, 50% or less of liability for D then he cannot be held jointly and severally liable but ONLY severally liable (responsible for his share only)
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When can a 3rd party not privy to a K recover for the delinquent performance of the K
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1) Launches a force
2) Detrimental Reliance 3) Complete Displacement of a duty. (supermarket and a snow plow company) |
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Failure to Act:
Who has a duty to Help |
Noone unless special relationship:
- if you cause the injury to another you are required to help 1. Common carrier-Passengers 2. Innkeeper-guests 3. Business open to the public-those lawfully on the land 4. Employer-employees (only when acting in scope of employment) 5. School-students (Universities do not have duty to babysit and are not insurers of harm) 6. Landlord-tenant 7. Custodian-those in its custody (anyone given legal custody of another is in a superior ability to protect the other and therefore must do so, i.e. jailer to his prisoner, parent-child) - once one begins to help he is liable for any further damage therefrom. he must act reasonably and not abandon the injured. |
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Duty to warn
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Duty extensive in NJ- duty for Psychiatrist to warn potential identifiable victim that was spoken about by his patient...
NY's restrictive ruling doesn't even require a Dr to warn a friend of a patient while in the room that he can catch TB. No duty on professional to warn. |
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What is the bright line rule for Economic Recovery
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If you have not suffered personal injury or if there is not physical property damage YOU CANNOT RECOVER. No recovery for purely economic loss
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Rule for Negligent Infliction of Emotional Distress
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No impact necessary. Fright negligently induced which causes severe emotional distress is recoverable..
For diseases as well. A person negligently transmits HIV the other party may claim NIED. |
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When can a 3rd party witness recover for NIED?
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1) zone of danger,
2) aware, 3) immeidate family, 4) severe emotional distress - CA you just have to see it and you don't have to be in ZOD yourself. |
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Duty to fetus?
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Absolutely no duty to unborn children. The farthest things can be recovered for death of a fetus is if a Dr negligently causes still birth, mom can recover for emotional distress.
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Wrongful Birth Claim: explain
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could have avoided bringing up this child and avoided the expenses of bringing up this child if you would have told me about risks, could have had ABORTION.
NJ RULE: both to parents and child for extraordinary med costs forever and emotional distress of parents. NY rule: parents can recover medical costs of maintaining child until 21 and can recover from DR but cannot recover for emotional distress. KNOW DISTINCTION - No recovery for healthy child (vasectomy goes wrong) |
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Possessor of land responsible for injury outside premises?
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- NYC ordinance states unless you own a 1-2-3 family home you would be liable to someone who slipped in front of your property (vendors). The law imposes a duty where there would normally not be one.
- for a residence only liability if the owner knew or should have known through reasonable inspection of a dangerous condition. Ornamental tree falls-liability! |
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Classifications of those ON PREMISES and duty to them
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Invitee (duty of reasonable care), licensee (duty to warn),
trespasser Ny has abolished classifications in Basso v. Miller. Single standard of "reasonable care under the circumstances" P must prove: i. the premises were not reasonably safe ii. D was negligent in not keeping the premises in a reasonably safe condition iii. The negligence in allowing the unsafe condition to exist was a substantial factor in causing π’s injuries - GENERAL OBLIGATIONS LAW 9-103: Limits the duty of reasonable care to uncompensated landowners of undeveloped land (not commercial land). It limits them to the duty not to injure maliciously or wantonly, and there is no need for reasonable care. It is limited to about 20 different people in its applicability (mostly recreational and sporters) |
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Lessor Liability
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Lessee responsible: subject to many exceptions:
1) 1. A lessor is required to disclose to the tenant 2. any dangerous condition of the premises, 3. existing when the tenant is given possession, 4. of which the lessor knows or has reason to know and 5. which is not discoverable by the tenant on reasonable inspection. 2) If landlord begins repair, he must finish and do so with reasonable care 3) Premises open to the public- lessor has duty to maintain in reasonably safe condition 4) Lessor has control over commonly used property in apartments, duty to maintain that property in reasonably safe conditions |
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Duty if you are owner of an Attractive Nuissance?
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Special duty to children-if you know the conditions you maintain are subject to children coming on, steps must be taken within capacity to prevent that. Take reasonable measures to protect against injury to children. How important is the utility of your property.
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Explain the 2 categories of Damages and the name for each
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Noneconomic- pain and suffering (can include mental suffering as well)
- General damages- pain and suffering Economic- loss of job, wages, medical expenses past and future. -Special damages-economic damages |
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Collateral Source Rule:
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insurance pays you and you sue tortfeasor for bills already paid. Under this rule you can recover and D cannot bring into evidence that you've been paid. So P gets double paid
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Collateral Source Rule as modified
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In NY rule governs HOWEVER after jury is dismissed a separate hearing takes place and reduces verdict by amount already compensated.
- P paid all these premiums all these years. Therefore, amount is reduced less the amount of the premiums. |
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Mitigation of Damages
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P has duty to mitigate damages:
D must prove that a reasonable prudent patient in the circumstances would have took operation. |
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Property Damage, how much to pay?
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The lesser of Two
1) Difference in value between damaged condition and the condition it was in before the damage 2) Cost of repair - if P says the property won't be as good as it was even with repair then (1) is chosen. |
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What is Loss of Consortium
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injury to spouse and can no longer render services, derivative cause of action. Uninjured spouse who has suffered can recover also because spouse has suffered damage to! PJI ON THIS.
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