Torts - Prosser, Wade, & Schwartz

Front 1

Elements of Battery

Back 1

1. Harmful or offensive contact occurs
2. Intentionally
3. Directly or Indirectly
4. To a person or object intimately connected to the person

Front 2

Definition of offensive for battery

Back 2

What a reasonable person would perceive as offensive

Front 3

Elements of Assault

Back 3

1. Intent to cause apprehension in the mind of the π
2. Of an imminent battery
3. ∆ has apparent ability to complete battery
4. Apprehension occurs
5. Apprehension is inflicted directly or indirectly
6. π is aware of apprehension at the time

Front 4

Purpose of Battery

Back 4

To protect one's right of dignity

Front 5

Purpose of Assault

Back 5

To protect one's right of emotional tranquility (of the threat of an imminent battery)

Front 6

Notes on battery

Back 6

1. If the battery feared will occur at another time, there is no assault
2. Words are usually not enough, but words can clarify ambiguous conduct
3. Even if a π thinks he can ward off battery there can is still apprehension

Front 7

Elements of False Imprisonment

Back 7

1. Intent to confine (∆ desires or knows to a substantial certainty that π will be confined)
2. Boundaries are defined by ∆
3. Confinement occurs (no reasonable means of escape)
4. Confinement occurs directly or indirectly
5. π must be aware of confinement (some juris. do not require awareness if π is harmed)

Front 8

Reasonable means of escape (false imprisonment)

Back 8

1. A victim must look for a reasonable means of escape from confinement
2. There is no reasonable means of escape if there is a chance of bodily harm or damage to dignity
3. Courts do not award damages caused by an unreasonable means of escape when π is safe in confinement

Front 9

4 ways confinement can occur

Back 9

1. Physical force
2. Physical boundaries
3. Threats of battery against π or a third party
4. Sometimes detention of property (fungible or unique)

Front 10

False imprisonment against a legal authority

Back 10

1. π has good faith belief that ∆ is a legal authority
2. π should remain with ∆ even if there is a reasonable, safe means of escape - encourages compliance with law

Front 11

Duty and false imprisonment

Back 11

1. A ∆ can have a duty to provide a means of escape to a π
2. Duty can be defined by relationship (parent-child, employer-employee) or contract

Front 12

Culpability and false imprisonment

Back 12

Intentional confinement - must release ∆
Negligent confinement - must release ∆ once π becomes aware
Innocent confinement - must release ∆ once π becomes aware of confinement

Front 13

Elements of IIED

Back 13

1. Intent serious emotional distress - intent can be knowledge that emotion distress will result to a substantial certainty
2. Serious emotional distress occurs
3. ∆'s conduct must be extreme and outrageous

Front 14

Extreme and outrageous for IIED

Back 14

1. Varies across cultures and time
2. Beyond the bounds of societal acceptability
3. Name calling is not E&O
4. A π's vulnerabilities are relevant if they are known by ∆
5. Courts are reluctant to address familiar or religious issues
6. Courts will consider positions of superiority in determining E&O

Front 15

Elements of 3rd Party IIED

Back 15

1. ∆ must intend emotional distress (∆ must be aware of ∆'s presence)
2. Severe emotional distress must occur
3. ∆'s conduct must be E&O
4. 3rd party must be present at E&O event (seeing, but sometimes also hearing)
5. 3rd party must have familiar relationship with victim or emotional distress must manifest physical symptoms

Front 16

Carrier Doctrine and IIED

Back 16

Carriers are held to a higher standard than normal individuals and conduct less than E&O can warrant liability

Front 17

Elements of Trespass to Land

Back 17

1. Intent to be on the land when trespass occurs (good faith beliefs are irrelevant)
2. Invasion must occur
3. Must be an invasion of the possessory interest of π
4. Invasion occurs directly or indirectly

Front 18

Purpose of trespass to land

Back 18

1. Protects a right of exclusive possession
2. Anyone who has a right of possession superior to that of ∆ can recover
3. Does not require actual damages

Front 19

Limits of possessory interest to land

Back 19

Usually possessory interest extends into sky near ground and under ground

Front 20

Difference between trespass and nuisance

Back 20

Trespass - an intrusion interfering with the right to exclusive possession of property
Nuisance - an intrusion interfering with the use and enjoyment of property

Front 21

Privilege and TtL

Back 21

1. Once a privilege has expired, any further presence is trespass
2. Privilege can expire with time
3. Privilege can expire with space
4. Privilege can expire by purpose
5. Unintentional breach of privilege is irrelevant to TtL

Front 22

Elements of Trespass to Chattels

Back 22

1. Harm be caused to chattel or possessor of movable, transferable personal property
2. Substantial deprivation
3. Dispossession
4. (Usually) Actual damages

Front 23

Elements of Conversion

Back 23

1. ∆ substantially intermeddles with
2. π's possessory interest
3. In chattels
4. That the ∆ should be required to purchase the chattels

Front 24

Notes on conversion

Back 24

1. ∆ is required to give π full value of chattel (π can decide to have full value or chattel returned)
2. How value of chattel is determined depends on circumstance (sometimes market value)

Front 25

7 ways to convert chattel

Back 25

1. Acquiring possession
2. Improper delivery
3. Use
4. Disposition
5. Damage or alteration
6. Reception
7. Refusal of surrender

Front 26

6 factors in determining seriousness of intermedling with chattel

Back 26

1. Extend and duration of ∆'s control
2. ∆'s intent to assert a right inconsistent with the owner's right of control
3. ∆'s good faith
4. Extent and duration of interference
5. Harm done to chattel
6. Inconvenience/expense caused

Front 27

Types of Information protected from conversion

Back 27

1. Information for sale
2. Scientific invention
3. Secret plans made for the conduct of commerce

Front 28

Consent!

Back 28

π has agreed to conduct that would otherwise be tortious

Front 29

Definition of Express Consent

Back 29

Agreement made in writing or words to tortious conduct

Front 30

Notes on Express Consent

Back 30

1. Courts can use public policy reasons to not acknowledge consent
2. There is ONLY consent to what a π has agreed to and nothing beyond that

Front 31

Definition of implied consent

Back 31

The circumstances are such that a reasonable person in the ∆'s position would conclude that π would consent and this ∆ came to such a conclusion

Front 32

Consent and contact sports

Back 32

Players implicitly consent to contact within (1) the rules of the game and (2) the general custom and practice of the sport

Front 33

4 ways implied consent can arise

Back 33

1. Community mores
2. Lack of objection
3. π's (ambiguous) conduct
4. π's participation in an activity

Front 34

Emergency doctrine

Back 34

Consent to medical treatment is implied in a dire situation when neither the victim nor a responsible party can consent but a reasonable person would

Front 35

5 requirements of emergency doctine

Back 35

1. Time is of the essence
2. Treatmenst is essential (to prevent loss of life or limb)
3. Reasonable person would consent to treatment
4. ∆ believes the particular π would consent
5. π cannot consent

Front 36

Do Not Resuscitate

Back 36

1. If doctors do not follow DNR orders, there are no real damages
2. If they do follow them, damages can be substantial

Front 37

Parent-child medical consent

Back 37

1. Parents have medical custody over their children
2. Doctor can attempt to circumvent parents' wishes by seeking medical custody through court order (House)
3. Courts only get involved if decision is life threatening (still not lupus...)

Front 38

When consent isn't consent: mistake of fact and duress

Back 38

1. When the ∆ makes or is aware of a mistake of material fact that creates consent
2. There can be a duty to notify another if there will be consent formed based on a mistake of material fact
3. There can be a duty to disclose a material fact when a person would have wanted to know the information and they would not have been able to determine this information themselves
4. Consent cannot be given under legal duress (compulsion)

Front 39

When consent isn't consent: violation of law

Back 39

1. In some jurisdictions, πs cannot consent to actions that violate positive law
2. If the legislature enacted a law with the intent of preventing foolhardy consent, π will still have a CoA

Front 40

Self-defense: Retaliation

Back 40

Anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another, but when threat has ended, so too does privilege

Front 41

Self-defense: reasonable belief

Back 41

∆ must have a reasonable belief that force is necessary to protect from imminent battery

Front 42

Self-defense: provocation

Back 42

Abusive words, accompanied by actual threat of physical violence may yield privilege but words are generally not enough

Front 43

Self-defense: amount of force

Back 43

The ∆ must use force that is reasonably necessary for protection against the threatened battery

Front 44

Self-defense: deadly weapons

Back 44

For a ∆ to use deadly force in self-defense, there must be a reasonable apprehension of SBI/deadly force

Front 45

Self-defense: retreat

Back 45

1. Some jurisdictions will require retreat before using deadly force
2. Most jurisdictions do not require retreat in a π's home
3. Most jurisdictions will not require retreat if the force is not SBI

Front 46

Self-defense: transferred intent

Back 46

π is not liable for accidentally injuring another while using self-defense

Front 47

Defense of a 3rd Party: privilege

Back 47

1. Typically involves family members or relationship where protection is required
2. Did ∆ use reasonable force?

Front 48

Defense of a 3rd Party: reasonable belief

Back 48

∆ is allowed to defend third party so long as they believe 3rd party had a right to use self-defense; ∆ must use amount of force 3rd party would have been privileged to use

Front 49

Defense of a 3rd Party: reasonable mistake

Back 49

Some courts will not allow liability if ∆ made a reasonable mistake about the need for intervention to prevent harm to a 3rd party

Front 50

Defense of property: force

Back 50

Courts will allow the use of force to defend property, but will generally not allow the use of deadly force

Front 51

Defense of property: deadly force

Back 51

Courts will always favor life and limb over property; most courts allow ∆ to threaten the use of deadly force

Front 52

Right to recover property

Back 52

Courts will always favor the legal recovery of property

Front 53

Right to recover property: interrupted possession

Back 53

Most courts will allow the use of non-deadly force to immediately recover property when possession has been interrupted
1. ∆ must go after property as soon as he learns it has been taken
2. Hot pursuit
3. ∆ must first demand recovery before using force

Front 54

Shopkeeper's Privilege

Back 54

Shopkeepers can use non-deadly force to confine someone they suspect of shoplifting; shopkeeper cannot confine suspect until they confess

Front 55

Public necessity requires...

Back 55

A threat to the entire community

Front 56

Requirements to use public necessity

Back 56

1. Does not have to have a connection with community
2. Does not have to be a public official
3. ∆ must act reasonably under the circumstances
4. Threat is immediate
5. Cannot subject life or limb to save property

Front 57

Definition of private necessity

Back 57

Allows ∆ to invade someone's property or meddle with their chattel to protect ∆'s property

Front 58

Notes on private necessity

Back 58

1. ∆'s conduct must be reasonable
2. Reasonableness is sometimes determined by relative value of both property protected and property trespassed
3. A conditional privilege and ∆ should be prepared to pay for all damages

Front 59

Privilege: Authority of law

Back 59

Law officials (police officers, military personnel) are allowed to engage in otherwise tortious conduct if allowed by law

Front 60

Privilege: Disciple

Back 60

Parents and those acting in loco parentis are allowed to use reasonable force to restrain

Front 61

Justification

Back 61

∆ shows that in the interest he is furthering, the tort committed was justifiable (i.e. bus driver confining children until they reached police station)

Front 62

Elements of negligence

Back 62

1. Duty
2. Breach of duty

Front 63

Requirements of CoA for negligence

Back 63

1. Duty
2. Breach of duty
3. Causation
4. Harm

Front 64

Goal of negligence law

Back 64

To reduce risk to reasonable risk

Front 65

4 types of negligence

Back 65

1. Negligence as a finding of fact
2. Negligence as a finding of law
3. Negligence as defined by a legislature
4. Negligence per se

Front 66

Formula for negligence

Back 66

1. ∆ must expose π to an unreasonable risk of harm
2. Likelihood and severity of risk
3. ∆ must not have taken reasonable precautions to prevent injuries
4. Must weigh social utility against the risk

Front 67

Carroll Towing formula for negligence

Back 67

b > (p)(i) → l
b < (p)(i) → no l

Front 68

The standard of care for negligence is...

Back 68

That of an ordinary, reasonable, prudent person under the circumstance (ORPP UTC)

Front 69

ORPP

Back 69

ORPP is an objective standard:
1. ORPP must conform to his community's standards and do was an ORPP in his community would do
2. Although ORPP may not know everything, when he becomes aware he doesn't know everything, he takes reasonable steps to find out
3. There are certain things that ORPP would not know

Front 70

Evidence of custom

Back 70

1. What an ordinary, reasonable member of the relevant community would follow
2. Evidence of custom can help establish whether ∆ acted reasonably
3. It demonstrates that certain conduct can be reasonable but does not automatically show ∆ was reasonable

Front 71

Considerations for custom

Back 71

1. Is the conduct a custom?
2. Is the custom generally reasonable?
3. Even if reasonable, was it reasonable under these circumstances?

Front 72

ORPP in an emergency

Back 72

1. ORPP is allowed to put his own life and limb above that of another in an emergency
2. If the ∆ creates the emergency, the theory of negligence applies to the ∆'s negligence in creating the emergency
3. If ∆ failed to anticipate an emergency, the court will look to his negligence in failing to do so

Front 73

Physical characteristics of ORPP

Back 73

http://www.flashcardexchange.com/mycards/add/1589252Where physical challenges or superior endowments are relevant, the court asks how ORPP with these characteristics would handle the situation

Front 74

Reasonable children

Back 74

1. Children will often be held to the standard of care of a reasonable child of like age, maturation, or intelligence
2. Some jurisdictions adopt use of reasonable adult standard when the nature of the conduct is adult or inherently dangerous

Front 75

Reason for using reasonable child standard

Back 75

1. Children must have time to grow and learn
2. Children must be allowed to be children
3. How much damage can children really cause?

Front 76

The rule of 7's

Back 76

1. 0-6 incapable of negligence
2. 7-14 incapable of negligence but this can be rebutted
3. 15-majority capable of negligence but this can be rebutted

Front 77

Mental characteristics of ORPP

Back 77

1. Most jurisdictions hold insane persons to ORPP standard
2. Some jurisdictions allow the trier of fact to assess the level of insanity and if it affected the ∆'s ability to comply with his duty (insanity must be sudden and unexpected)
3. Mental retardation is not usually considered

Front 78

Standard of care: professionals

Back 78

1. Must act as a member of the profession in good standing
2. Must have minimal levels of knowledge, is careful and prudent about use of that knowledge, and uses discerning judgment
3. Standard applies if there is contract or if there is no payment for services
4. Expert testimony is often necessary to enlighten the trier of fact what the standard of care is for the profession

Front 79

Malpractice

Back 79

Professionals are not liable for bad results if they did what a member in good standing would do

Front 80

Legal malpractice

Back 80

Blowing the statute of limitations and failure to investigate are ALWAYS malpractice against lawyers - if lawyer does not take case they must inform client of SoL and urgent need to find another lawyer

Front 81

Medical malpractice

Back 81

1. Requires an expert to testify to what a member of the profession in good standing would do in the situation
2. Not enough for the expert to testify that he would have done something different, must testify that a member in good standing would have

Front 82

Location of medical member in good standing

Back 82

1. Some jurisdictions utilize local standard, reasoning that regional differences in practice and resources dictate standard
2. Others have adopted national standard, reasoning that doctors pass national certification

Front 83

Notes on standard of care: member in good standing

Back 83

When members in good standing do not agree on the standard of care, it is enough that the ∆ followed one of the standards, even if it is the minority view

Front 84

Medical informed consent

Back 84

1. Some use what member in good standing would tell a patient
2. Some use what a reasonable person would want to know
3. If the doctor tells you nothing, but no harm occurs, there is no CoA for negligence

Front 85

Requirements for negligence as defined by statute

Back 85

1. π must be in the class of persons meant to be protected
2. The risk must be a risk that the statute was designed to eradicate

Front 86

Three "banana peel" theories

Back 86

1. Actual notice
2. Constructive notice
3. ∆ created condition

Front 87

Actual notice

Back 87

∆ actually knew condition existed

1. Direct - passerby tells ∆ condition exists
2. Circum. - passerby sees ∆ actively avoid or address then ignore condition

Front 88

Constructive notice

Back 88

A condition has existed for so long ORPP would have noticed

1. Direct - passerby says condition existed for a certain amount of time
2. Circum. - the visual characteristics of condition when noticed

Front 89

Burden of pleading

Back 89

π must plead the elements for a CoA

Front 90

Burden of production

Back 90

Proving party has to put forward enough evidence that reasonable people could find, more likely than not, that the fact at issue exists

Front 91

Burden of persuasion

Back 91

Must convince the reasonable person more likely than not that the fact in issue exists

Front 92

Notes on res ipsa loquitor

Back 92

"The thing speaks for itself"
Circumstantial evidence designed to help the party meet burden of production and ultimately burden of persuasion when there is not direct or regular circumstantial evidence

When RIL is used, the burden of persuasion is usually on the ∆ to show another explanation

RIL can be used against multiple ∆s when there is a joint duty of care

Front 93

Elements of res ipsa loquitor

Back 93

1. Event is one, when it happened, that is the result of negligence
2. The ∆ had exclusive control over the event

Front 94

Procedural weight and RIL

Back 94

1. It is usually just evidence that helps the case get to a jury
2. In some jurisdictions is a rebuttable presumption

Front 95

Criteria for determining if expert testimony is reliable and relevant

Back 95

Reliable - result that is reached by good scientific method (in peer review article)
Relevant - must advance issue of causation (general causation or specific causation)

Often courts will allow a demonstration of specific causation from signature diseases, progressions, or symptoms

Front 96

Loss of chance

Back 96

1. When a doctor's negligence results in a loss of chance that the decedent would have survived treatment damages can be rewarded
2. It is the value of decedent’s entire life as if he had overcome and then award percentage loss attributed to the doctor’s negligence

Front 97

Concurrent causes

Back 97

When there are multiple causes, there is no requirement that the ∆'s negligence has to be the only cause of the harm

Front 98

Independent alternative cause

Back 98

Burden of proof regarding causation is on the ∆s where π can show all parties were negligent but cannot demonstrate which one factually caused harm

Front 99

3 Situations in which legal causation can be raised

Back 99

1. Unforeseeable consequences
2. Intervening factors
3. Public policy
4. Shifting liability

Front 100

Unforeseeable consequences

Back 100

1. Proximate and remote harm
2. Eggshell π
3. Direct causation
4. Foreseeability
5. Zone of danger

Front 101

Proximate & remote harm

Back 101

1. NY rule says that ∆ is only liable for proximate harms (natural, expected, ordinary, anticipate) of his negligence and not remote harms
2. NY rule limits liability to damage to the 1st property owner

Front 102

Eggshell π

Back 102

1. ∆ must take his π as he finds her
2. Applies to both physical and mental conditions
3. (Usually) need an expert to testify that accident aggravated condition

Front 103

Direct causation rule

Back 103

1. ∆ has exposed π to risk of harm
2. An unforeseeable risk results
3. ∆'s negligence was the direct cause of harm suffered
4. π friendly

Front 104

Foreseeability rule

Back 104

1. Limits liability to harm that is a foreseeable risk
2. Balanced with burden of preventing any risk (even very small) when ∆ becomes aware of that risk
3. ∆ friendly

Front 105

Zone of danger rule

Back 105

Only persons who were within the zone of danger of the risk can recover for a ∆'s negligence

Front 106

Act of God

Back 106

1. The ∆ has been negligent but before negligence comes to fruition it is interrupted by an act of God (unanticipated and unusual such that ORPP would not have anticipated)
2. If AoG brings about same risk as ∆'s negligence, ∆ can still be liable

Front 107

Intervening acts of 3rd parties

Back 107

1. Innocent acts do not limit liability of ∆
2. Negligent acts do not limit liability of ∆ because they are normally foreseeable
3. Intentional acts limit liability when they are unforeseeable but do not limit liability when they are foreseeable

Front 108

4 scenarios when an intentional intervening act does not limit liability

Back 108

1. When you are hired to protect the plaintiff from intentional intervening acts
2. When defendant defeats the protections (ie: burglar alarm systems)
3. When you take someone into custody and negligently let them go
4. Where you bring into contact with the plaintiff someone you know or should know has violent tendencies and you bring them together under circumstances where one could perceive this would occur

Front 109

Rescue doctrine

Back 109

Rescue workers have normally been compensated for the risks they take and do not have a CoA against negligent ∆

Front 110

Suicide as an intervening act

Back 110

The court must find that the suicide was an irresistible impulse so that the act was negligent and not intentional to determine if ∆ is liable

Front 111

Social host liability

Back 111

1. It is not unforeseeable to a social host that guests at his party who drink may drive and get into an accident
2. Most jurisdictions do not put liability on social hosts because they are not trained to recognized overly drunk people, cannot really restrain people, and do not have insurance to cover such situations

Front 112

Respondeat superior

Back 112

"Let the master answer for his servant"

Front 113

Considerations of respondeat superior

Back 113

1. There must be some level of control over the employee by the employer
2. How the parties view their relationship
3. Does the employee get paid by salary or by the job?
4. Whether the employer pays taxes and benefits for the employee
5. Who provides the tools?

Front 114

Exceptions to respondeat superior

Back 114

1. π cannot sue a ∆ for negligence by a hired contractor - π can sue ∆ for negligently contracting
2. π can sue a ∆ for negligence by a contractor if the duty is nondelegable
3. π can sue the employer for negligent hiring

Front 115

Requirements for respondeat superior

Back 115

1. Employee must be acting within the scope of his employment (sometimes when employee is furthering the the interest of his employer)

Front 116

Joint liability exists when...

Back 116

1. There is a common law duty
2. When there is a common agreement to create the unreasonable risk