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55 Cards in this Set
- Front
- Back
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What are the general characteristics of torts?
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General Legal Classifications of a number of different civil actions.
Each tort is separately named and has it's own rules of liabliity, defense and damages |
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What is the common element of all torts
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Someone has sustained a loss or harm as a result of an act or failure to act by another
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Is fault a prerequsite to tort liability
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No.....Sometimes tort liability is imposed simply because a particular activity can and should bear the cost of damage associated with it regardless of fault
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What are the three main functions of tort law?
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Compensation
Justice Deterence |
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What are three secondary functions of tort law?
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Vindicating P
Substitute for private retaliation Preventing resort to self help remedies |
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What is the primary source of Tort law?
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Case law or common law
Moving towars codification See Civil Codes of California and Louisana |
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What came before tort law
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Retaliation or feud, the object of which was to cause equivalent harm to the wrongdoer
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What was the funtion of the Anglo-Saxon courts prior to the Norman Conquest in 1066
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The Anglo-Saxon courts applied local law and functioned as local courts
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When did the royal courts evolve and what was their function
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After 1066 Royal Courts were created and began to ake jurisdiction over a specified list of wrongs---primarily felonies where ther was a breach of the kings peace. and disputes concerning land
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What were the early actions in the royal courts called?
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Appeal of felony
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Where damages avaiable under appeal of felony
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No, Combat, ordeal, or oaths were all that was available
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What was a Royal Writ?
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A grant of jurisdiction to a royal court to hear a case. It was obtained from the Kings Chancellor
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What was the largest problem with Royal Writs
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They became formalized and if P could not bring his action within the form of an existing writ, he had no action in a royal court
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When did the English courts begin the use of Bills ( Complaints)
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1600. But the Bill still had to be in the form of a recognized writ
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What was the most important Civil Action in Early Common Law
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Trespass
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What was the great significence of Tresspass?
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Plaintiff could recover actual damages, But for many years it retained its criminal character where the defendant could be fined or imprisoned
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Did Tresspass supplanted Appeal in felony cases
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Yes Except for homicide
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When was the first time there could recovery for wrongful death?
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LOrd Cambell's Act 1846
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What were the three common forms of Writ
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(1)Trespass vi et armis for assault, battery, and false imprisonment.(2) Trespass de bonis asportatis for trespass to chattels.(3) Trespass quare clausum fregit for trespass to land
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TORT FLASHCARDS
SET ONE |
TORT FLASHCARDS
SET ONE |
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21
Almost all torts are progeny of? |
Tresspass and case
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22
The most important case-sponed action was? |
negeligence
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23
Three basic differences between trespass and case |
1) Tresspass when affirmative act causing direct and imediate injury to the P.Case for indirect consequential harm
2)Case required proof of actual damages tresspass did not 3)Thought absolute liability Now assumed that fault was not part of the plaintiffs but may have been a defense case |
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24
Describe the evolution of negligence |
Until 1800s neglegence was merely one basis for liability in a number of where case was the appropriate writ. Negligence emerged as a separate tort during the 20th Ninteenth century
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25
Does the U.S. Common law require fault in a trespass action |
Yes.... plaintif must prove intentional or negligent misconduct
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26
What are the three kinds of jury questions? |
1)What in fact occurred?
2)What are the legal consequences of these facts--usually on the basis of some legal definition givin by the court 3)Jury must determine if the plaintiff was injured by the defendant and the dollar value of the compensable damages 3) |
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27
What are the questions of law forthe court? |
1)Did the defendant owe the plaintiff any recognized duty, or did the plantiff have a legally protected right?
2) The elements of proof and the measure of damages 3)Wether on the facts the some rule of law imposes or excuses liabilityas a matter of law |
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28
How do courts take on the role of juries? |
By embodying certain standards of conduct in rules of law.
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29
How does the court turn issues of fact into issues of law? |
When the judge deceides that the evidence overwhelmingly supports one position and that jurrors could not reach another conclusion
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30
How does the judge control the outcome of a trial through rules of procedure? |
Admission of evidence
Burden of proof Presumptions Applicability of res ipsa loquitor |
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31
Contracts are not part of tort law, but can breach of contract engage tort law |
Breach of some contractual duties may be actionable in tort if breached
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32 Torts
When is conduct intentional? |
Ift the actor (a) desires to cause the consequences of his act or (b) believes that the consequences are substantially certain to result from it
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33 Torts
What is the proof of intent |
Ordinarily D's intent must be proved circumstantially, that is inferred from his conduct. D will be presumed to have intended the natural and probable consequences of his act in light of surrounding circumstances which he is presumed to be aware of
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34 Torts
How do you distinguish intent from motive |
Intent is the desire to cause certain immediate consequences. Motive is the reason for having the desire
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35 Torts
Distinguish between intentional negligent and reckless conduct. |
Certainty of outcome is how we distinguish. Intended or certain is intentional. If conduct merely creates a forseable risk of harm which may or may not be realized, then the conduct is negligent or reckless depending upon the magnitude and probability of risk
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36 Torts
Can children be guilty of intentional torts |
Yes since the intent is to cause certain immediate consequences. They may be too young to hold accountable for recklessness or negligence
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Torts: 37
Liability rules for intentional torts--- Transfered Intent |
Transferred intent is an expanded rule of proxmate cause applied to and among the five intentional torts which are the progeny of the parent trespass action-- asault, battery, false inprionsment, trespass to land, tresspass to chattels. D's intent to commit one of these torts automatically transfers to any of the remaining four supplying intent. It also transfers from X,the intended victim,to D
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Torts: 38
Liability rules for intentional torts--- Battery: |
Battery is harmful or offensive contact (diect or indirect) with P's person caused by D who has the required intent
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Torts: 39
Liability rules for intentional torts--- Intent Required for Battery: |
D must have acted intending to cause a harmful or offensive contact with P (or another) or iminent apprehension of such a contact
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Torts: 40
Liability rules for Intentional torts--- Definition of P's Person |
P's person includes his body and those things in contact with it or closely related to it or identified with it such as clothing, an object held in his hand, or an object so closely associated or identified with P that considering the nature of the contact an normal person would consider it an offense against his person. Examples are a plate, a hat or a horse.
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Torts: 41
Liabilty rules for intentional torts--- The requirement of awareness in battery |
The tort is contact and therefore, P need not have been aware of it at the time
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Torts: 42
II. Liability Rules For Intentional Torts B. Battery 5. No Harm Intended |
It is only required that DD intend the contact which is in fact harmful or offensive
It does not matter that he intended no harm or offense |
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Torts 43
II. Liability Rules For Intentional Torts B. Battery 6. Harmful Contact |
Harmful conduct is actionable only if it produces some bodily harm This includes physical damage , however slight to any part of P's body
even if the damage is ultimately advantageous as in sugery, Illness and physical pain..but not emotional pain |
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Torts: 44
II.Liability Rules for Intentional Torts B. Battery 7. Offensive Contact |
Offensive contact is one which offends a reasonable sense of personal dignity such as being hostile, insulting, loathsome, or unduly personal
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Torts: 45
Liability Rules for Intentional Torts B. Battery 8. Consent |
I P consents to the contact, D is privileged to make it and there is no tort. Consent may be assumed . In a crowded society some unpermitted is innevitable and customary. Some consent may be assumed because of a pre-existing relationship.
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Torts: 46
Assault What is the Assault Rule? |
Assault ios an act by D which arouses in P a reasonable apprehension of an imminent battery, caused by D who has the required intent.
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Torts: 47
Intentional Torts Assault What is the Intent required? |
D must have accted intending to cause harmful or offensive contact with P (or another)or cause an immenent apprehension of such contact. Conduct need not be motovated from hostility. A practical joke or an attempt to be helpful as in medical care is sufficient
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Torts: 48
Intentional Torts Assault Discuss Apprehension |
The esence of the tort is apprehension. The plaintif must have been aware of the defendants threatning act at the time before it is terminated. It is not necessary that the plaintiff experience fear
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Torts: 49
Intentional Torts Assault Discuss "Threat Against Another" |
It is not necessary that D direct his threat against P. It is sufficient that P reasonably percieves the threat of a battery. ..but P perception of a threat of battery against a third party and not against P is not an assault against P
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Torts: 50
Assault What is the liability if D intends only an assault? |
D's conduct may be an assault even if it is apparent to P that D only intends an assault providing P apprehends that a battery may occur
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Torts:51
Intentional Torts Assault Discuss "Rreasonableness of Apprehension" |
If D's assault is directed against P, D is subject to liability to P even though a person of normal courage would not have apprehended a battery , if P being unusually sensitive does in fact apprehend.
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Torts 52
Intentional Torts Assault Discuss Imminent |
The contact must be perceived as imminent there must be apparent intent and ability to carry out the threat immediately
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Torts: 53
Intentional Torts Assault "Words Alone" |
Mere words unaccompanied by a physical act are not an assault . But words can give a threatning character to an otherwise innocuous or offensive movement
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Torts: 54
Intentional Torts Assault "Apprehension of Future" Battery |
If Ds words and other circustancea are understood by P as threatning, only a battery at sometime other than the present , there is no assault
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Torts: 55
Intentional Torts Assault "Apparent Ability to Consumate" |
D must have an apparent present ability to carry out the Battery. If D cannot and P is aware of this theen there is no assault.
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