Torts I - Bauman - Stcl

Front 1

Elements of Battery?

Back 1

An Actor
1) Acts Intending
2) to cause harmful or offensive contact
OR
to cause imminent apprehension of such contact AND
3) harmful or offensive contact actually RESULTS

Front 2

What is Intent?

Back 2

1) Purpose or desire to accomplish a particular result
2) Knowledge that a result is substantially certain to occur.

Front 3

Elements of Assault?

Back 3

An Actor
1) Acts Intending
2) to cause harmful or offensive contact
OR
to cause imminent apprehension of such contact AND
3) The Actor has the apparent present ability to inflict the contact AND
Apprehension of harmful or offensive contact actually RESULTS

Front 4

Elements of Trespass to Land?

Back 4

One is liable for trespass, irrespective of harm, if he intentionally
1) Enters land in possession of another, or causes a thing or third person to do so, or
2)remains on the land
OR
3) Fails to remove from the land a thing that he is under a duty to remove

Front 5

Trespass to Land Borland Requirements

Back 5

1)Invasion affecting an interest in exclusive possession of property
2) Intentional doing of the act
3) Reasonable foreseeabiility that act could result in invasion of possessory rights
4) Substantial damage results

Front 6

Trespass to Chattels?

Back 6

1)Taking away or or damage to tangible personal property
2) Damage or interference not serious enough for conversion
3) actual damage to or loss of use of chattel required

Front 7

Conversion

Back 7

1)wrongful exercise of dominion over the personal property of another
2) Dominion includes taking, substantial use, altering, destroying, selling, buying
3) only applies to tanglible personal property
4) Must pay FULL VALUE

Front 8

Elements of Intentional Infliction of Emotional Distress

Back 8

Actor
1) engages in extreme and outrageous conduct
2) intending to cause extreme emotional distress, or with recklessness regarding the infliction of such distress; and
3) severe emotional distress results

Front 9

Two part Test of Causation?

Back 9

Actual Cause: as a matter of ordinary reasoning, did the defendant's negligent conduct cause the injury to plaintiff?
Proximate or Legal Cause: If Defendant was a cause in fact of plaintiff's injury, was it a sufficiently important cause that the defendant should have to page damages in compensation?

Front 10

Actual Cause Tests?

Back 10

Start with..
The "but-for test": But for the defendant's conduct, would the injury to plaintiff have occured?
then if unclear..
The "Substantial Factor" Test: Was the defendant's negligent conduct a substantial factor in bringing about the injury to the plaintiff.

Front 11

What is done in Joint Causation?

Back 11

1) Require the plaintiff to prove how much of the harm was caused by each defendant (called apportioning the harm)
2) If the harm cannot be apportioned because the injury is indivisible, hold the defendants jointly liable.

Front 12

How do you figure if Proximate Cause?

Back 12

1) Direct Cause: No Independent or intervening forces interrupt the path of causation from the defendants negligence to the Plaintiffs harm.
2) Risk Rule: the defendant is liable for the type of harm, the risk of which made the defendant's conduct negligent in the first place. (also know as the foreseeability rule)

Front 13

How do you figure Direct Cause?

Back 13

1) Focuses on the sequence of events, looking for intervening forces that might interrupt the chain of causation
2) Does not consider whether the injury that occurs was foreseeable or not, so long as the defendant was negligent and that negligence "directly" caused the harm.

Front 14

What problems are there with direct cause?

Back 14

1)Liability is imposed even for unforeseeable results of the defendant's negligence.
2) Liability is not imposed for foreseeable results that are not "direct".

Front 15

How do you use the Risk rule to establish proximate cause?

Back 15

1) consider what sorts of injuries made the defendant's conduct negligent in the first place.
2) One then asks whether the injury that the plaintiff suffered is of the type that made the defendant's conduct negligent.

If so, the harm is "within the risk" and the defendant is liable.

Front 16

How does the direct cause test handle intervening causes?

Back 16

it tells us to look for independent and intervening causes, and suggests that they may excuse the defendant from liability.

Front 17

How does the risk rule handle intervening causes ?

Back 17

it tells us to ask whether the intervening cause was foreseeable.

Front 18

What is a superseding cause?

Back 18

an act by a third person or other force which by its intervention prevents the actor from being liable for harm to another

Front 19

What is contribution?

Back 19

-a sharing of responsibility between two tortfeasors
-contribution usually requires that the two (or more) tortfeasors be jointly and severally liable for an indivisible injury
before comparative responsibility used to be proportionately.
-with comparative responsibilty, shares are based on the relative percentages of fault

Front 20

What is indemnity?

Back 20

a rule that requires one tortfeasor to fully reimburse another tortfeasor who paid the plaintiff's judgement.

Front 21

What is a licensee?

Back 21

One on the land with permission but not for the benefit of the owner: owed only a duty to warn of known dangerous conditions.

Front 22

What is a trespasser?

Back 22

One on the land without permission: owed only a duty not to willfully and wantonly injure.

Front 23

What is an invitee?

Back 23

One on the land for the benefit of the owner: owed a duty of due care.

Front 24

When is a duty of due care owed to children?

Back 24

1)The defendant has reason to know of the children’s presence;
2)The defendant has reason to know of the existence of a dangerous condition.
3)The defendant should realize that the children will not recognize the danger.
4)The defendant then fails to use due care.

Front 25

What is a limited duty?

Back 25

“Limited duty” means that the court, usually for some reason of policy, adopts as a legal rule that only a limited duty of care is owed by the defendant, that is, something less than the usual duty of due care.

Front 26

When is duty created?

Back 26

Another way of attacking a Non-feasance claim is to argue that defendant in fact did have a duty to act and was negligent in breaching that duty.
One situation in which a duty is created is when the defendant, although under no duty to act, in fact undertakes to do something and does so badly.
One’s negligent (or even non-negligent) conduct injures another. One may have a duty to aid, and a duty to rescuers.

Front 27

What is Misfeasance?

Back 27

Misfeasance usually expresses the conclusion that the defendant acted and acted badly (without due care).
It is often possible to argue that what appears to be “mere” non-feasance is actually misfeasance: Acting and acting badly.

Front 28

What is non-feasance?

Back 28

Non-feasance means non-action, and usually refers to the conclusion that the defendant’s conduct amounted to a failure to act, as opposed to an action that may have been performed without due care.
In some situations this will mean that the defendant is not liable because defendant had no duty to act.

Front 29

What is The Impact Rule?

Back 29

Initial efforts to set limits on Negligent Infliction of Emotional Distress.
The defendant’s negligent conduct would not lead to liability for emotional harm unless the plaintiff suffered some physical “impact” on his or her person.
The impact itself did not have to cause physical injury.
Negligence was judged in the usual sense of creating unreasonable risk of physical harm.

Front 30

What are the Dillon Factors?

Back 30

1)Was the bystander at the scene of the accident?
2)Did the bystander witness the accident and the injury to the victim?
3)Were the bystander and the victim closely related?

Front 31

What is a privilege?

Back 31

An affirmative defense is . . .
The defendant’s burden to plead and prove;
And defeats the plaintiff’s claim even if the plaintiff proves all the elements of the prima facie tort.

Front 32

What is Consent?

Back 32

An Affirmative Defense
An objective manifestation of consent forecloses a claim that might otherwise exist.
Consent may be shown by conduct.
Consent bars recovery if there is consent to the act done, even though there is no consent to the resulting injury.

Front 33

What is Self-Defense?

Back 33

An Affirmative Defense
Self Defense is based on the reasonable appearance of need for defense.
The actor is limited to only the amount of force needed to repel the attack.
Excessive force results in loss of the privilege.

Front 34

What is Defense of Others?

Back 34

An Affirmative Defense
A privilege similar to that of Self Defense arises for the defense of others.
The same limitations on the use of force apply.
The actor must reasonably believe that the other is being attacked and would have the privilege of self defense.
The actor must reasonably believe that intervention is necessary to protect the other.

Front 35

What is Defense of Property?

Back 35

An Affirmative Defense
One’s privilege to defend one’s property is more limited than the privilege to defend oneself. For example, one usually must ask a trespasser to leave before using force.
Deadly force is not permitted simply to protect property (In other words, when there is no threat to human life).
However, one can threaten more force than can actually be used.
Recapture of chattels requires "hot pursuit”.

Front 36

What is private necessity?

Back 36

An Affirmative Defense
Private Necessity is a qualified privilege.
Private Necessity permits entry on land of another to protect oneself from imminent peril.
The actor is not liable for trespass and the owner has no privilege to eject him.
The actor is liable for any actual damages caused by his entry.

Front 37

What is public Necessity?

Back 37

An Affirmative Defense
Public Necessity is an absolute privilege.
One is privileged to commit trespass to land, trespass to chattels, or conversion, where the action reasonably appears necessary to prevent a public disaster.
When the privilege applies, the actor is not liable for actual harm caused in the course of preventing the public disaster.

Front 38

What is Contributory Negligence?

Back 38

The plaintiff’s failure to use due care for his or her own safety was a total bar to recovery in negligence.
In most jurisdictions, contributory negligence was an affirmative defense on which the defendant had the burden of proof.Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he shall conform for his own protection, and which is a legal contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harmAll or nothing approach

Front 39

What is Comparative Negligence?

Back 39

All Comparative Negligence rules are aimed at avoiding the harshness of the Contributory Negligence doctrine, by reducing rather than barring the recovery of the negligent plaintiff.
Pure comparative negligence allows some recovery so long as the plaintiff is not 100% at fault.
Modified systems reinstate the total bar to recovery once the plaintiff’s negligence exceeds some defined level, usually 50% or 51%.

Front 40

What is Express Assumption of Risk?

Back 40

Express Assumption of Risk is a contractual agreement allocating certain risks to the potential plaintiff
The scope of the release must be construed.
The court will examine the release to determine whether it offends public policy.

Front 41

What is Implied Assumption of the Risk?

Back 41

Implied assumption of the risk was once thought of as an implied contract to allocate certain risks to the plaintiff.
It required a subjective awareness of the unreasonable nature of the risk created by the defendant, plus conduct that showed a voluntary decision to encounter the risk.
Such conduct constituted consent to allow the defendant to impose the risk on plaintiff.

Front 42

What is Secondary Assumption of Risk?

Back 42

Secondary Assumption of risk occurs when the conduct of the plaintiff consists in voluntarily encountering the unreasonable risk created by the defendant.
This is treated today as a form of comparative negligence.

Front 43

What is Primary Assumption of Risk?

Back 43

Primary Assumption of risk occurs when we determine that the duty owed by the defendant to the plaintiff is limited, because the plaintiff is deemed to accept certain risks.
When the defendant meets the limited duty, the doctrine is a bar to recovery because the defendant is not negligent.

Front 44

What is Proportionate Responsibility?

Back 44

In an action to which this chapter applies, a claimant may not recover damages if his percentage of responsibility is greater than 50 percent. The trier of fact, as to each cause of action asserted, shall determine the percentage of responsibility,

Front 45

What is the discovery rule?

Back 45

Strict application of a statute of limitation is sometimes limited by the discovery rule.
The discovery rule can delay the accrual of the cause of action, or sometimes can allow a claimant a reasonable time after "discovery" to file a claim.
What must be "discovered", and by whom, in order to trigger this rule, even if the court recognizes it?

Front 46

What is Immunity?

Back 46

Immunity from suit means that a party is disabled from suing the person enjoying the immunity.
Immunities were created to satisfy some perceived important policy or principle.
The most significant immunities for this course are the family immunities, charitable immunities, and governmental immunities.

Front 47

What is the hand formula?

Back 47

Negligence formula
The “Hand Formula states that a party is negligent when B<PL
B is the Burden of taking precautions.
P is the probability of harm occurring.
L is the severity of harm if it occurs.
The formula is applied “at the margin” to determine whether the next dollar spent on accident avoidance will yield at least one dollar in accident cost savings.

Front 48

What is Negligence per se?

Back 48

Sometimes courts find that it is necessary to specify a particular duty, rather than simply leaving the question open ended.
One source of specific duties is a statute enacted by the legislature, which specifies what the defendant must do in particular situations.
When a statute is used to specify a duty to the plaintiff, that is known as negligence per se.