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46 Cards in this Set

  • Front
  • Back
False Imprisonment
Occurs when the defendant intentionally confines the plaintiff to a definable area from which there is no reasonable means of escape.
Defense of public necessity
Defense to conversion. Must have a severe threat to a substancial number of people i.e. fire.
Defense of private necessity
Defense to conversion. Value and loss of use must still be made.
Defendant 1. Exercises total control over the property, and 2. Acted in bad faith by knowingly taking the property
The intent necessary to commit battery is the intent to make harmful or offensive contact. The contact need not be harmful, only offensive to the person’s integrity. The offense has to be tested under what can reasonably be construed as offensive.
Immediate apprehension of harmful or offensive contact occurs.
Children in Torts Actions (3 elements)
(a) When an actor is a child, the actor’s conduct is negligent if it does not conform to that of a reasonable careful person of the same age, intelligence, and experience; except that
(b) A child who is less than 5 years of age cannot be found negligent; and
(c) The special rule in subsection (a) does not apply when a child is engaging in a dangerous activity that is normally undertaken by adults.
Neligence: Duty (2)
1. Foreseeability
2. Standard of Care
The duty of care must be toward a foreseeable plaintiff.
Test for foreseeability: A plaintiff is foreseeable if he was in the zone of danger created by the defendant.
Standard of Care
The Standard of care that the defendant must exercise towards the plaintiff is that of a reasonable, ordinary and prudent person in the same or similar circumstances.

Factors to consider that may or may not modify the circumstances include:
1. Physical characteristics
2. Average Mental Ability
3. Professionals
4. Children
Breach of the Duty
In order to be held liable for negligence the action by plaintiff must fall below standard of care.

The primary issue is where to draw the line as to the standard of care. Factors to consider in drawing the line are:

1. Custom in the community
2. Violation of statute (negligence per se)
3. Res Ipsa Loquitur
The defendant caused the harm to occur. There are two types of causation:
1. Actual Causation
2. and Proximate Causation.
Negligence Per Se
Violating a statute creates a rebuttable presumption of negligence. Defendant is presumed to be liable for negligence if he breaks a law and cause harm to the plaintiff but he can rebut that presumption by showing that there was a custom to break the law.
Res Ipsa Loquitur
Latin for "The thing speaks for itself." This doctrine draws an inference of liability because the thing that caused the accident was in the exclusive control of the defendant. In other words, it couldn't be anyone but the defendant who caused the harm.
Actual Causation
Did the defendant actually cause the harm to occur?
"But for" Test
Part of Actual Causation.

Ask yourself the question: "But for the defendant's actions, would the plaintiff's harm have occurred?"
Substantial Factor Test
Part of Actual Causation.

If several causes could have caused the harm, then any cause that was a substantial factor is held to be liable.
Proximate Causation
Utilizes the Foreseeability Test: If harm is unforeseeable, then defendant is not held liable by reason that there is no proximate causation.
The plaintiff must suffer some harm. Two issues arise:

1. Was there actual harm?
2. Did plaintiff attempt to mitigate the harm?
Actual harm or injury
1. Personal Injury

2. Property Damage
Plaintiff gets Cost of repair OR fair market value

3. Punitive Damages
Extra damages beyond actual damage is available if the defendant's behavior was wanton and willful, reckless or malicious
Duty to mitigate
Plaintiff must not act in a manner that makes damages worse - i.e. not going to the doctor to get well. Defendant is not liable for damages where plaintiff did not mitigate.
Contributory Negligence
Defense to Negligence: In these circumstance, the plaintiff contributed to the negligent act. Under common law, if both parties are negligent, then the one with the last clear chance to prevent the accident is liable; otherwise both plaintiff and defendant share liability.
Assumption of Risk
Defense to Negligence: If plaintiff knew the risk and voluntarily assumed the risk by engaging in the behavior then the plaintiff will be denied recovery.
Emergency Doctrine
Defense to Negligence: Allows defendant to lower standard of care because an emergency required them to act rashly in order to avoid a greater harm from occurring.
Defense to Negligence: Custom can be used to show that behavior was in line with the behavior of everyone else, thus resulting in no breach. E.g. Everyone drives at 50 MPH on that particular stretch of the highway even though it is posted at 30 MPH.
1. physical invasion of PLAINTIFF’s real property (invasion can be by any intangible object e.g. throw ball; property also includes space above and below land to reasonable distance),

2. intent (intent only to go on property. Not required that defendant knows trespassing),

3. causation.
Defense to intentional tort.

1. has to be valid consent (PLAINTIFF has capacity to consent, consent cannot be obtained by fraud or deceit), 2. defendant must have remained within the bounds of consent. Two types of consents: Express or Implied
Defense to intentional tort.

defendant reasonably believes he is about to be attacked and may use reasonable force. (most states require retrieval if can be done before using deadly force, defense not available to initial aggressors, reasonable mistake allowed).
Defense of others
Defense to intentional tort.

Can use force to protect another if defendant reasonably believes the other could use force to defend himself (minority states put defendant in the other’s shoes).
Defense of property
Defense to intentional tort.

May use reasonable force to prevent tort against personal/real property. But can never use deadly force unless person poses threat of death or serious injury to others on property. Request to desist or leave must made before using force, unless would be futile. Force may be used to recover property when in hot pursuit or if other came in possession of property wrongfully. If other came in possession lawfully, then peaceful means must be used. Can enter the land of tortfeasor or innocent person to recover property, but if property there due to owner’s fault, then no privilege and must use legal process to recover
Shopkeepers Privilege
Defense to an Intentional Tort (false imprisonment).

Requires reasonable belief and only for reasonable time & manner.
Negligent Infliction of Emotional Distress
1. even though the PLAINTIFF does not receive direct physical injury, he must have been in the zone of physical danger.

2. PLAINTIFF must show subsequent physical manifestations of the distress (e.g. heart attack, miscarriage, etc.) Exceptions: no physical symptoms required if 1. Negligently inform PLAINTIFF that his close family member died or 2. If mishandle corpse of PLAINTIFF’s relative.
½ of the states have bystander distress recovery. Available where a distress PLAINTIFF witnesses a negligent injury to a close family member. In regular NIED case, fear for own injury, but here emotion is sorrow for seeing a loved one get injured.
Affirmative Duty to Act
Generally no. But duty when 1. defendant cause of peril, 2. common carrier or innkeeper, 3. family relationship, landowner-invitee. If no duty but still rescue, must do it reasonably.
Statutory Standard of Care
1. PLAINTIFF is a member of the class of persons that the statute seeks to protect.
2. Accident is within the class of risks that the statute seeks to prevent.
Thin Skull Rule
Defendant takes his PLAINTIFF as he finds the PLAINTIFF. This rule applies to every tort, not just negligence.
Exceptions to Statutory Standard of Care (2)
1. statutory compliance would be more dangerous than statutory violation, then don’t borrow the statute.

2. If compliance is impossible under the circumstances, don’t borrow the statute
Comparative negligence
Defendant begins by establishing that the PLAINTIFF is guilty of some fault. Failure of the PLAINTIFF to take reasonable precaution for his/her safety. The jury is instructed to weigh the faults and give each a numerical percentage. PLAINTIFF’s recovery will be reduced in accordance with his percentage of fault.
Pure comparative negligence
Go strictly by the jury numbers (this is the default rule on the bar exam. PLAINTIFF can recover no matter much at fault he was. If PLAINTIFF is 80% at fault, they get 20% damages
Partial/modified comparative negligence
PLAINTIFF’s fault of less than 50% will reduce recovery but if >50% then absolute bar.
Affirmative Defenses (3)
1. Plaintiff failed to act reasonably
2. Plaintiff assumed the risk of injury
3. Plaintiff failed to undertake ameliorative action to lessen the injury.
Implied Assumption of the Risk
PLAINTIFF must make out a prima facie case of negligence.
Primary Assumption of the Risk
Deals with an idea that the DEFENDANT is not negligent.

They use a train lurching as an example. Normal lurching is not a negligent act.
Reasonable Secondary Implied Assumption of the Risk
Rushing into the inferno to save your child. This bars you from canceling out Assuption of Risk. (see Rescue Doctrine: “Danger invites rescue.”)
Unreasonable Secondary Implied Assumption of the Risk
Rushing into the inferno to save a hat. It would fall under contributory negligence and would be barred from recovery.
Firefighter's Rule
Firefighters and police are licensees:

1. No duty to make safe.
2. No duty to warn of unknown dangers.
Respondeat Superior
Joins an employer in the liability of the negligent acts of its employee.