Torts

Front 1

BATTERY (2 elements, 2 cases, 3 defenses)

Back 1

1. intent 2. touching; Vosburg, Garratt v. Dailey; implied license, consent, self-defense; lack of specificity (smoke case)

Hint 1

talk about personal autonomy

Front 2

TRESPASS TO LAND (2 elements, 2 cases, 2 defenses)

Back 2

1. intentionally entering 2. land of another; Brown v. Dellinger (child, fire), Doughterty v. Stepp (D merely surveyed the land); implied license, necessity

Front 3

TRESPASS TO CHATTELS (3 elements, 4 cases)

Back 3

1. intentional 2. interference with chattels 3. causes injury (Rest./majority view); Intel Corp. v. Hamidi, eBay v. Bidder's Edge, CompuServe; minority view - Blondell (governors on gas meters)

Hint 3

injury requirement - must be harmful to the possessor's materially valuable interest in it (can be that the possessor is deprived of its use for a substantial time)

Front 4

CONVERSION (2 elements, 3 cases)

Back 4

1. intentionally 2. treating another's property as one's own; Poggi v. Scott (barrels), Maye v. Yappan (gold), Kremen v. Cohen (sex.com)

Hint 4

Doesn't have to be in bad faith - can be a good faith mistake

Front 5

ASSAULT (2 elements, 1 case, 2 defenses)

Back 5

1. intent to cause a h or o contact or an imminent apprehension of a h or o contact 2. the other is thereby put in imminent apprehension; Tuberville v. Savage (sword, azzize-time); self-defense, consent

Hint 5

Distinguish between apprehension and fear.

Front 6

FALSE IMPRISONMENT (2 elements, 3 cases, 4 defenses)

Back 6

1. confinement 2. intent to confine; Woman on yacht case, Coblyn, miner case; merchant's privilege, consent, self-defense, defense of property

Front 7

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (3 elements, 3 cases)

Back 7

1. extreme or outrageous conduct 2. intentionally or recklessly causes 3. severe emotional distress; Wilkinson v. Downtown (husband in ditch), bill collectors case, mother and daughter injured, doctor didn't treat them well

Hint 7

Test - would it cause an average member of the community to say "outrageous!"

Front 8

Consent in fights and athletic events - Wells' rule, majority rule, and minority view

Back 8

Wells: You consent to touchings that are an ordinary/customary part of the sport, even if it's against the rules.
Majority (followed in Gribbon): In fights or athletic events where one commits a battery, the consent doesn't count - there's liability in spite of it.
Minority view/Rest.: The parties' consent prevents the invasion from being tortious and actionable, although the invasion consented to is a crime.

Front 9

Self-defense (3 requirements)

Back 9

1. Circumstances must be such that a reasonable man in the D's position would believe that his life was in danger or that he was in danger of great bodily harm.
2. The assault must be imminent.
3. Force used in self-defense must be proportionate to the force used against the person acting in self-defense.

Front 10

Defense of Property

Back 10

There must be a request to depart before the possessor can lay hands upon the trespasser. Then, the possessor can use a small amount of force to remove a trespasser. You cannot recapture your real property - can't even change the locks. The logic - going through the courts should suffice because no one is going to run away with it and more harm would be done by allowing recapture.

Front 11

Recapture of chattels

Back 11

Force, OR
Fraud, OR
Claim of right AND
Hot pursuit

Front 12

Negligence (4 elements)

Back 12

1. Duty
2. Breach
3. Causation (CIN and Proximate)
4. Damages

Front 13

Custom (majority [2 cases] and minority view [1 case])

Back 13

Majority - Custom can be admitted as evidence (T.J. Hooper) of the feasibility and practicability of a precaution/custom (Trimarco)
Minority - Custom is the unbending test of negligence. (Titus v. Bradford - freight car came loose, D not liable because it performed its duties according to the customs of the trade)

Front 14

Custom and Medical Malpractice

Back 14

Exception to the majority rule on custom - In these cases, the standard of the profession is the test of negligence.

Hint 14

Lama v. Borras (conservative treatment)

Front 15

Duty to disclose (Canterbury v. Spence) [Gribbon is undecided]

Back 15

Doctor must disclose the information the is material to the patient's decision (objective standard - what a reasonable person would want to know)

Hint 15

Exception to the rule in Lama - custom does not govern, instead it is what is reasonable under the circumstances

Front 16

Duty to disclose (Sidaway)

Back 16

Sidaway - Uses medical custom to govern duty to disclose

Hint 16

Puts more trust in the doctor, rejects Canterbury.

Front 17

Expert testimony in informed consent cases

Back 17

Canterbury - experts not necessary; a layperson can determine what is reasonably required for disclosure.
Bly v. Rhoads - P must show by qualified medicial experts what is reasonable - whether and to what extent information should be disclosed by the physician to his patient

Hint 17

Argue both.

Front 18

[2 requirements, 1 case] RTT § 14 - Statutory Purpose Rule: An actor is negligent if, without excuse,

Back 18

1. the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes AND
2. the victim is within the class of persons the statute is designed to protect.
Gorris (sheep)

Hint 18

Expansive view - Stimpson (heavy rig driven on streets broke pipes in P's building)
Narrower view - Burnett (statute for miners, trucker injured)

Front 19

Complex Administrative Schemes (theme, not a rule) [2 cases]

Back 19

Courts defer to the judgments of regulatory organizations. (Uhr - scoliosis, Lucy Webb Hayes National Training School - insane asylum)

Front 20

Res Ipsa Loquitur: The factfinder may infer negligence from the very fact of the accident when

Back 20

1. The event is of a kind which ordinarily does not occur in the absence of negligence of a class of actors of which the D is a relevant member.
2. The D had control of the agency or instrumentality that caused the P's harm at the relevant time (when the negligence occurred, not at the time of injury).

Front 21

RIL in Medical Malpractice/Multiple Ds [2 cases]

Back 21

Burden of proof on D to disprove negligence; Ybarra - shoulder injury; extended in Anderson (tip of surgical forceps broke off in P's spinal canal, P sued several Ds under different substantive theories - court split liability between Ds, calling this "conditional RIL")

Front 22

Evidence in MM RIL cases (RTT/majority view)

Back 22

Expert testimony is admissible and often necessary to justify submission of a RIL claim to the jury.

Front 23

Necessity and Contributory Negligence

Back 23

A person faced with an emergency who acts, without opportunity for deliberation, to avoid an accident may not be charged with contributory negligence if he acts as a reasonably prudent person would act under the same emergency circumstances, even though it appears afterwards that he did not take the safest course or exercise the best judgment.
Caveat: No party can rely on an emergency created by his own negligence.

Front 24

RST 479 Last Clear Chance: Helpless Plaintiff

Back 24

A P who negligently subjected himself to a risk of harm can recover for the harm from the D's subsequent negligence if, immediately preceding the harm,
a. the P is unable to avoid it by the exercise of reasonable care AND
b. the D negligently fails to utilize his then existing opportunity to avoid the harm, when he
i. knows of the P's situation and realizes or has reason to realize the peril involved in it OR
ii. would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the P to exercise.

Hint 24

a AND b AND (i or ii)

Front 25

RST 480 Last Clear Chance: Inattentive Plaintiff

Back 25

A plaintiff who by reasonable vigilance could have discovered the danger created by the defendant's negligence in time to avoid the harm to him can recover if, but only if, the defendant
a. knows of the plaintiff's situation, AND
b. realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, AND
c. thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

Hint 25

a, b, AND c must be shown

Front 26

Assumption of Risk (3 elements, 2 rationales)

Back 26

1. voluntary
2. knowing
3. agreement that no duty is owed

Rationales
1. Personal autonomy
2. Utility/wealth maximization

Front 27

Cause in Fact but-for test

Back 27

If the harm could not have occurred absent he D's conduct, the D's conduct is a cause in fact of the harm.

Front 28

Exceptions to But-for Causation (4 exceptions, 4 cases)

Back 28

1. Increased Chance of Loss (followed by some courts), Herskovits, toxic substances
2. Multiple sufficient causes - All joint tortfeasors are fully responsible for the undivided consequences of their own actions, Kingston
3. Alternative liability, Summers, One of two Ds is responsible for the harm, both were negligent towards D - they are both held liable unless they can show which one of them is responsible (burden of proof shifts to D)
4. Market share liability - Ds were negligent to a class of Ps, Ds can all be held liable for the harm according to their share of the market (as long as they comprise a substantial percentage of the market at fault), Sindell

Front 29

Joint liability

Back 29

If 2 actors are both negligent and their negligence causes an indivisible injury, both are held liable for the entire harm. Each of the several obligors can be responsible for the entire loss if the others are unable to pay.

Front 30

Several liability only system

Back 30

Each is liable for a portion/for their share of the harm. P risks the insolvency of all Ds barring his recovery.

Front 31

Joint and several liability system

Back 31

Each is liable for its share (several) as well as for the harm in its entirety if one or more of the Ds is insolvent.

Front 32

4 Situations in which one party ought to bear all the loss (indemnifying the other party/parties)

Back 32

1. Vicarious liability (employer held liable for employee's torts - employee commits rape - employer seeks indemnification from employee)
2. Contract
3. At the direction of the other D (employer tells employee to dig a ditch on P's land - employee held liable, seeks indemnity from employer)
4. Active (produce the danger) v. Passive (failed to find and correct the danger) - many courts will say the person who's actively negligent ought to bear the loss

Front 33

Proximate Cause (majority view)

Back 33

Wagon Mound Rule - the D is only liable for harms that are reasonably foreseeable from its conduct. RTT 29 - An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious.

Front 34

Proximate Cause (minority view)

Back 34

Polemis rule - D is liable for all the direct consequences of his negligence.

Front 35

3 Exceptions to the Wagon Mound Rule

Back 35

The Rescuer Rule - D liable for harms encountered during rescue of a person who was imperiled by D's tortious conduct; The Atherton Rule - An actor whose tortious conduct causes harm to another is liable for any enhanced harm the other suffers due to the efforts of third persons to render aid reasonably required by the injury, so long as the enhanced harm arises from a risk that inheres in the effort to render aid; The "thin skull" rule - The D takes him victim as he finds him. Despite preexisting conditions that make the person's harm greater than expected, the actor whose tortious conduct causes the harm is liable for all such harm to the person.