Torts

Front 1

Battery

Back 1

Intent to cause contact to the person of another that is harmful or offensive and it occurs.

Front 2

Assault

Back 2

Intent to cause fear or apprehension of imminent harmful or offensive contact to the person of another and fear or apprehension occurs because of actor's apparent ability to effectuate harmful or offensive contact.

Front 3

False Imprisonment

Back 3

Intentional unlawful confinement of another against his or her will and the confined person must know of the confinement or be harmed by it.

Front 4

Intentional Infliction of Emotional Distress

Back 4

Intentional conduct that must be extreme and outrageous, there mus be a causal connection between the wrongful conduct and the emotional distress, and the emotional distress must be severe.

Front 5

Trespass to Land

Back 5

Intent to cause tangible entry upon the land in possession of another and it occurs.

Front 6

Trespass to Chattel

Back 6

-Intentional intermeddling with the chattel in possession of another.

Front 7

Conversion

Back 7

Intentional exercising of dominion or control over a chattel in the possession of another, and seriously interfering with the right of the possessor.

Front 8

BAFITTC

Back 8

1. Battery

2. Assault

3. False Imprisonment

4. Intentional infliction of emotional distress

5. Trespass to land

6. Trespass to chattel

7. Conversion

Front 9

TTFAB (Transferable Intentional Torts)

Back 9

1. Trespass to land

2. Trespass to chattel

3. False imprisonment

4. Assault

5. Battery

Front 10

Privileges to Intentional Torts (9)

Back 10

1. Consent

2. Self Defense

3. Defense of others

4. Defense of property

5. Recovery of Property

6. Necessity

7. Authority of Law

8. Discipline

9. Justification

Front 11

Intent

Back 11

1. Specific Intent:

2. Substantial certainty

Front 12

Negligence

Back 12

1. Duty

2. Breach
3. Cause in Fact

4. Proximate Cause

5. Damages

Front 13

Professions often included in the Professional Standard

Back 13

- Accountant

- Architects and Engineers

- Attorneys

- Clergy

- Designer of Group Health Insurance Plans

Front 14

Mar-Cam Test

Back 14

- Type of harm that is foreseeable

- Class of persons meant to be protected

- Only done for civil statutes

Front 15

Perry Test

Back 15

-Used in Criminal Statutes

- Mar-Cam + Six Factors

1. Does the statute provide due process notice?

2. Disproportionate liability

3. Strict liability

4. Does the statute create a new class of duty at common law?

5. Liability for nonfeasance (failure to act) as opposed to malfeasance (bad act)?

6. Direct or Indirect injury

Front 16

Duty and Breach (Types)

Back 16

1. Standard of Care

2. The Professional

3. Rules of Law

4. Negligence per se

5. Res ipsa loquitor

Front 17

Cause in Fact

Back 17

- Sin qua non

- Proof of causation

- Concurrent Cause

Front 18

Substantial factors test (for duplicative concurrent causation)

Back 18

1. Defendant breached duty and created a risk of harm

2. The harm materialized

3. Harm occurred was neither worse nor different than the harm would have occurred if no other was acting

4. It would be unfair if people who breached duties were to escape liability merely because something else was suffering to cause the same harm.

Front 19

Joint and Several Liability

Back 19

Puts the right to recovery on the "right person"- so the one defendant held liable for all the damages could have a contribution claim.

Front 20

Intervening Cause

Back 20

Reduces the original breacher's liablility

Front 21

Superseding

Back 21

When another cause is closer than the original cause which is cut off.

Front 22

Eggshell Plaintiff

Back 22

You take the person as you find them, despite the harm occurring being unforeseeable the harm would be foreseeable if you knew about the pre-existing illness.

Front 23

Cardozo on Proximate Cause

Back 23

Only liable for the foreseeable damage to the individual person you had a duty toward (and there are no duties to society as a whole--you have to prove a duty was breached toward yourself especially).

Front 24

Andrews on Proximate Cause

Back 24

Defendant owed a duty of care to ANYONE who suffers injury as a proximate result of his breach of duty to someone.

Front 25

Restatement (Second) of Torts 442 Considerations Important in Determining Whether an Intervening force is a Superseding Cause

Back 25

Following considerations:

1. the fact that its intervention brings about a harm different in kind from that which would have otherwise resulted from the actor's negligence

2. The fact that its operation or the consequences therof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation

3. Th fact that the intervening force is operating independently of any situation created by the actor's negligence or, on the other hand, is or is not a normal result of such situation.

4. The fact that the operation of the intervening force is due to a third person's act or failure to act.

5. The fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him.

6. The degree of cuplability of wrongful act of a third person which sets the intervening force in motion.

Front 26

Rescue Doctrine

Back 26

1. Defendant was negligent and cause appearance of peril that person needed rescued.

2. Peril/appearance of peril was imminent.

3. A reasonably prudent person would believe a peril/appearance of peril existed.

4. And rescuer acted with reasonable care in effectuating the rescue.

Front 27

Contributory Negligence Jurisdiction

Back 27

If the plaintiff's negligent conduct contributed at all (no matter how little) then they are barred from recovery.

Front 28

Comparative Negligence Jurisdiction

Back 28

Liable for only the percentage that you cause.

Front 29

Types of Comparative Negligence Jurisdictions

Back 29

1. Pure- Plaintiff can recover even if 99% at fault.

2. Modified 1- Plaintiff can recover so long as not more at fault than the defendant. (50%-50%)

Modified 2- Plaintiff can recover so long as fault is less than the defendant. (51%-49%)

Front 30

Ks. St. Subsection 60-258b

Back 30

Kansas does not have joint and several liability

Front 31

One action Rule

Back 31

Must sue everyone at once even if it is not the defendant doing the suing.

Front 32

Ways of getting Joint and Several Liability at Common Law

Back 32

1. Tortfeasors acted in concert

2. Failed to perform a common duty

3. Independently to cause an indivisible harm

Front 33

Strict Liability

Back 33

Liability without fault (also called absolute liability)

Front 34

To establish a prima facie case for Strict Liability

Back 34

1. The existence of an absolute duty on the part of the defendant to make safe.

2. Breach of that duty.

3. Th breach was the actual and proximate cause of the plaintiffs injury.

4. Damage to the plaintiff's person or property.

Front 35

Wild Animals in Strict liablity

Back 35

Strict liable for all injury caused

Front 36

Domestic Animals in Strict Liability

Back 36

Knowledge of the an animals dangerous propensities.

Front 37

Abnormally Dangerous Activity

Back 37

- No matter how reasonable you were if it causes harm you will be liable.

- You did nothing wrong, acted reasonable, but still have to pay because you breached a duty.

- Jury is less sympathetic to making someone pay without fault.

Front 38

Restatement (Second) of Torts Subsection 520. Abnormally Dangerous Activities (Miller Test).

(ELIEIE)

Back 38

1. Existence of a high degree of risk of harm to the person , land, or chattel of others.

2. Likelihood that the harm that result will be great

3. Inability to eliminate the risk by the exercise of reasonable care

4. Extent to which the activity is not a matter of common usage

5. Inappropriateness of the activity to the place where it is carried on; and

6. Extent to which its value to the community is outweighed by the dangerous attributes.

Front 39

Notice in Strict liability

Back 39

Notice is irrelevant- all you need is "should it be subject to strict liability?"- if yes then liable. (notice if part of duty for negligence)

Front 40

Assumption of Risk

Back 40

-Expressed

-Implied

Front 41

Qualified (Implied)

Back 41

-Court says it should merge with contributory negligence because both involve unreasonable conduct

- So it was merged.

Front 42

Pure Secondary Assumption of Risk

Back 42

- Used to be reasonable conduct as long as you assume all three yet that still bars recovery

Non existent now.

Front 43

Statute of Limitation

Front 44

Statute of Repose

Back 44

Absolute outside limit on the liability to bring suit (start from the time of negligent act).

Front 45

Tolling

Back 45

Statute of Limitation begins to run when the statute accrues, when the cause of action accrues is something you will have to argue.

Front 46

Discovery Doctrine

Back 46

Harm and accrual at a different date- harm happened but no way to discover what happened, so tolled the statute of limitations to when a reasonable person should have discovered the harm.

Front 47

Doctrine of Continuing Tort

Back 47

When the acts are so factually related that he last act is when the Statute of limitations state- so assumes to be ONE act.

Front 48

Ks. St. 60-510

Back 48

Civil actions, other than for the recovery of real property, can only be commenced withing the period prescribed in the foling sections of this article after the cause of action shall be accrued.

Front 49

Ks. St. 513

Back 49

Actions limited to two years shall be brought within two years.

Front 50

Vicarious Liability

Back 50

"Respondeat Superior"- within the course and scope of employment when the negligent conduct occurred.

Front 51

Coming and Going Rule

Back 51

Vicarious liability does not apply when an employee is coming or going to work.

- Except: when something happens at work that gives rise to the risk wile going/coming (foreseeability analysis).

Front 52

Independent Contractors in Vicarious Liability

(EXCEPTIONS)

Back 52

Four exceptions to Ind. Con. Rule:

1. Negligence in the selection of the contractor- ordinary concurrent liability

2. Non-delegable Duties- there are certain responsibilities that cannot be delegated to 3rd party, although the court has not given any obvious criterion to determine these duties.

3. Inherently or intrinsically dangerous situations- is applicable when the activity involves a particular risk of harm that calls for more than ordinary precaution.

4. Illegal activities- Employer who contracts for the performance of an illegal act is vicariously liable for any damage even if the "hiree" is an independent contractor.

Front 53

Joint Enterprises

Back 53

Four Elements:

1. An agreement, express or implied, among the members of the group

2. A common purpose to be carried out by the group

3. A community of pecuniary interest in that purpose, among the members.

4. An equal right to a voice in the direction of the enterprise, which gives an equal right of control

Front 54

Family Car Doctrine

Back 54

Owner of the car is held vicariously liable when the car is negligently driven by a member of the immediate household.

Front 55

Apparent Authority

Back 55

- One who expressly or impliedly represents that another party is his servent or agent may be held vicariously liable for the latter's negligent acts to the extent of that representation.

- Allows an injured party who reasonably relies on the representation to hold the party who made the misrepresentation liable.

Front 56

Negligent Entrusment Theory

Back 56

Just as the employer may be negligent in hiring an employee, the owner/bailor may be liable in entrusting the chattel to the bailee.

Front 57

Defamation

Back 57

Common Law Element:

1. False Statement

2. Harm Reputation

3. Published

Front 58

False statement

Back 58

- Falsity is presumed
- Burden of proof is on the defendant to prove truth
- Substantial truth is an ABSOLUTE defense
- Specificity subissue

Front 59

Harm Reputation

Back 59

- What society as a whole thinks of you.

- $pecial damages for slander, presumed libel

- $pecial damages is the economic value you suffer

Front 60

Published

Back 60

Just need one person for publication

Front 61

Slander Per Se Categories

Back 61

1. Imputation of major crime

2. Loathsome Disease

3. Business, trade, profession, or office

4. Serious sexual misconduct

Front 62

Libel Per Se

Back 62

A statement is defamatory on its face and the established rule at common law was that it is not necessary to prove special damages and those extrinsic facts in order to have a cause of action.

Front 63

Libel Per Quod

Back 63

Some courts broke away from Libel per se and assumed that it the statement was not defamatory on its face, they must be aware of the extrinsic or unstated facts must prove special damages and those extrinsic fats in order to have a cause of action.

Front 64

Actual malice

Back 64

Subjective test:

1. Knowledge that it was false or reckless disregard for falsity

2. If you believe the statement is true then no actual malice.

Front 65

Fair Comment Privilege

Back 65

Privilege of criticism of public officers and official conduct

Front 66

Fair Reporting Privilege

Back 66

Allowed the press to provide fair and accurate reports of public proceedings and documents and to report meetings open to the public and dealings of matter of public concern.

Front 67

Newsworthiness Privilege

Back 67

If there is a report of something that is "news worthy" then there is not liability for the report.

Front 68

Private Plaintiffs in Defamation

Back 68

When statement about private person, but of public concern, all they have to prove is negligence, but there is still no presumption of falsity. Plaintiff must prove it is false.

Front 69

Absolute privilege in Defamation

Back 69

1. Judicial Privilege

2. Legislative proceedings

Front 70

Specific Intent

Back 70

Intentional meaning, purposeful and/or deliberate act. Performing an action with the desire to bring a specific result.

Front 71

Substantial certainty

Back 71

Performing a voluntary act such that there is substantial certainty a result will occur.

Front 72

Crowded World Theory

Back 72

It is expected that because we live in a crowded world, people will come into contact with each other that is not offensive.

Front 73

Apprehension

Back 73

the recognition or acceptance that an unprivileged contact will occur. (imminent)

Front 74

Tort

Back 74

A civil wrong other than a breach of contract for which there is no remedy, not a criminal wrong, which the law provides a remedy for.

Front 75

Three Types of Torts

Back 75

1. Negligence- The reasonable person (did you act as a reasonable person would?)

2. Strict liability- Absence of intent or negligence. A regime of liability. Liability without fault.

3. Intentional- Substantial certainty, not necessarily transferred. You are liable for all unintentional acts if it was caused by an intentional tort. (I want to)

Front 76

Four Purposes of Tort Law

Back 76

1. To provide a peaceful means for adjusting the right pf parties who might otherwise "take the law into their own hands."

2. To deter wrongful conduct

3. To encourage socially responsible behavior

4. To restore injured parties to their original condition, insofar as the law can do.

Front 77

Scope of Consent

Back 77

-Just because something has risks involved with it that are consented to, does not mean the actions done outside the scope of of the event taking place are negated.
-There are rules for a reason.

Front 78

When Can a Medical Provider Act Without Consent

Back 78

1. the patient is unable to give consent.
2. there is a risk of serious bodily harm if the treatment is delayed
3. a reasonable person would consent to treatment under the circumstances.
4. the physician had no reason to believe this patient would refuse treatment under the circumstances.

Front 79

Shopkeeper's Privilege

Back 79

-A merchant has a privilege to detain a person they reasonably believe has taken a chattel unlawfully for a reasonable ok investigation.
-Reasonable in:
1. duration
2. distance from store
3. manner

Front 80

Public Necessity v. Private Rights

Back 80

Factors:
1. What is public necessity? rather than private
2. Who is authorized to take action,-reasonable person-Public or private
3. Reasonable action was taken.
4. Is it complete bar to liability? Yes

Front 81

Negligence Definition

Back 81

Failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregarded of others' rights.

Front 82

Duty

Back 82

A duty to use reasonable care.

1. Notice is an element of duty

2. The Defendant must be under a duty of care to conform to a specific standard of conduct for the protection of the plaintiff.

3. See reasonable person/standard of care; varies from situation to situation, always reasonable, but varies depending on the group of persons or circumstances.

Front 83

Breach of Duty

Back 83

A failure to conform to the required standard of care.

- The existence of a duty is a question of law for the jury, whether it was breached is a question of fact for the jury.

Front 84

Cause in Fact

Back 84

What you know to be true in fact (i.e. throwing a coin)

- If a duty had not been breached would the damage have occurred?

Front 85

Proximate Cause

Back 85

Given the fact the cause in fact exists (unreasonable conduct), should the defendant be made to pay? (i.e. driving a car crazy and harm caused.)

- Is that combination of logic, common sense justice, policy, and precedent that fixes a point in the chain of events some foreseeable and some not beyond which point the law will bat recovery.

Front 86

Actual loss or Damage

Back 86

-In negligence you have to have actual harm; can't recover on nominal damages.

-Damage to person or property.

Front 87

B<PL

Back 87

Burden of care against the probability of harm and the magnitude of the harm.

Front 88

Test for Res Ispa

Back 88

1. the cause of injury is shown to be under the exclusive control and management of the defendant; AND

2. the accident would not have occurred typically in the absence of unreasonable conduct.