Torts

Front 1

BATTERY

elements

Back 1

1) Intend to cause harmful or offensive touch

2) Harmful or offensive touch results from contact

Front 2

Accidental touching good enough for battery?

Back 2

No.

Front 3

BATTERY

intent

Back 3

Substantial certainty consequence will occur or actually intend

Only requires intent to touch, not harm

Front 4

ASSAULT

elements

Back 4

1) Intend to cause harmful touch or offensive contact or imminent apprehension of harmful touch or offensive contact

2) Imminent apprehension of harmful or offensive touch results

Front 5

ASSAULT

words enough?

Back 5

No.

Front 6

FALSE IMPRISONMENT

elements

Back 6

1) Intend to, and does

2) Confine another

3) Within boundaries fixed by the actor

4) Where victim is conscious of confinement or is harmed by it

Front 7

TRESPASS TO LAND

elements

Back 7

Intentional entry upon land of another

can be intentional entry or cause chattel to enter

Front 8

CONVERSION OF CHATTEL

elements

Back 8

1) Intend to exercise substantial dominion over chattel

2) Substantial dominion seriously interferes with right of another to control chattel

Front 9

TRESPASS TO CHATTEL

elements

Back 9

Intend to interfere with right of possession of personal property

D MUST ACTUALLY DAMAGE CHATTEL OR DEPRIVE POSSESSOR OF USE FOR A SUBSTANTIAL PERIOD OF TIME (can also totally dispossess the chattel from P too)

Front 10

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

elements

Back 10

1) intend to cause severe emotional distress

2) act with reckless disregard of whether P would suffer harm

Court will look at relationship to P, repetitive nature of conduct, etc.

P must show substantial causal link between D conduct and the distress

Front 11

TRANSFERRED INTENT

Back 11

intent can transfer between intentional torts and between victims of torts

Front 12

MISTAKE DOCTRINE

Back 12

if a defendant intends to tort A but actually torts B, he's still liable; mistake doesn't matter

Front 13

SELF DEFENSE

Back 13

Can use against immediate harm

Can only use the amount he correctly/reasonably believes is necessary for protection
- reasonable mistake excuses force that is directed towards a wrong party

Some jurisdictions: must retreat if given chance before self defense is valid

Front 14

DEFENSE OF THIRD PERSON

Back 14

Can defend against third person who needs defense under the same rules as self defense

Front 15

ARREST/DETENTION

elements

Back 15

1) must investigate on/near premises

2) must have reasonable suspicion

3) must use reasonable force only

4) must use reasonable period and manner for detention

Front 16

DEFENSE OR REPOSSESSION OF PROPERTY

Back 16

Only reasonable/non-deadly force can be used to protect or repossess property

Reasonable mistake will NOT excuse the party if force is misdirected

Front 17

CONSENT DEFENSE

Back 17

If victim gives permission, what would otherwise be tortious is no longer

Can be expressed or implied

Front 18

NECESSITY DEFENSE

Back 18

allows defendant to interfere with property interests of another party to avoid greater injury

public necessity: defendant appropriates or injures private property to protect community

private necessity: defendant injures private interest valued greater than injured property
- incomplete defense; D is privileged to interfere, but is liable for damage

Front 19

PUBLIC NECESSITY DEFENSE

Back 19

public necessity: defendant appropriates or injures private property to protect community

Front 20

PRIVATE NECESSITY DEFENSE

Back 20

private necessity: defendant injures private interest valued greater than injured property
- incomplete defense; D is privileged to interfere, but is liable for damage

Front 21

NEGLIGENCE

elements

Back 21

- duty
- breach
- damages
- causation

Front 22

NEGLIGENCE

factors to consider

Back 22

foreseeable likelihood that conduct will result in harm to P?

foreseeable severity of harm and injury?

burden of precautions to eliminate or risk of harm

Front 23

NEGLIGENCE

duty

Back 23

A general duty of care is imposed on all human activity. When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person.

A duty of care is owed only to foreseeable plaintiffs.

Front 24

NEGLIGENCE

duty to unforeseeable plaintiff according to Andrews

Back 24

According to the Andrews view in Palsgraf, the second plaintiff (P2) may establish the existence of a duty extending from the defendant to her by showing that the defendant has breached a duty he owed P1. In short, defendant owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone.

Front 25

NEGLIGENCE

duty to unforeseeable plaintiff according to Cardozo

Back 25

According to the Cardozo view in Palsgraf, the second plaintiff (P2) can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances, i.e., that she was located in a foreseeable “zone of danger.”

[Most courts use this.]

Front 26

NEGLIGENCE

breach of duty

Back 26

Did D breach duty by failing to exercise the requisite quantum of care?

First, it must be shown what in fact happened. Second, it must be
shown from these facts that the defendant acted unreasonably.

Proof of what happened may be
established by either direct or circumstantial evidence.

Front 27

NEGLIGENCE

res ipsa loquitur

Back 27

situations where the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed. Where the facts are such as to strongly indicate that plaintiff’s injuries resulted from defendant’s negligence, the trier of fact may be permitted to infer defendant’s liability.

MUST SHOW
- Injury is type that would not normally occur unless someone was negligent.

- D was cause

Front 28

TJ HOOPER

Back 28

Custom can be used to determine breach of duty; if evidece of noncompliance exists

Doesn't define reasonableness

Front 29

CARROL TOWING

Back 29

Learned Hand forumula B<PL

Burden less than Probability x Liability

Front 30

NEGLIGENCE PER SE

Back 30

violation of criminal statute, regulation, ordinance, used to set standard of care in negligence case

ELEMENTS:
- D violated statute
- P is in protected class of persons intended to be protected by statute
- Harm that takes place is the harm that is intended to be protected by statute

Front 31

NEGLIGENCE

causation

Back 31

Actual cause: but for or substantial factor

Proximate cause: D was proximate cause of P injury

Front 32

NEGLIGENCE

actual cause

Back 32

But for test:
- but for D conduct, P wouldn't have been injured

Substantial factor: D conduct is said to cause an event when there are multiple causes when D was a material element to the cause or a substantial factor to the cause

Front 33

NEGLIGENCE

substantial factor test

Back 33

Substantial factor: D conduct is said to cause an event when there are multiple causes when D was a material element to the cause or a substantial factor to the cause

Front 34

NEGLIGENCE

proximate cause

Back 34

PALSGRAF

Did D see harm as reasonable risk of his behavior? (i.e., was harm in the scope of the risk?)

Were risks reasonable enough for a reasonable person to minimize them?

Was P within the class of persons who D foresaw a duty to?

Front 35

NEGLIGENCE

OUTSIDE THE RISK BECAUSE...

Back 35

Manner it occurs

Unforeseeable

Interevening person or cause

Criminal intervening acts

Front 36

OUTSIDE SCOPE OF RISK BECAUSE...

manner it occurs

Back 36

A burn is a burn. A splash is not a splash.

Manner of harm is a better duty indicator for burn is a burn. Kind of harm is a better duty indicator for splash isn't a splash.

Front 37

OUTSIDE SCOPE OF THE RISK BECAUSE...

unforeseeable

Back 37

Injury doesn't fall under scope of risk that was foreseeable to the D at the time

Front 38

THIN SKULL RULE

Back 38

defendant takes plaintiff as he finds her; fact that harm ends up being worse than was foreseeable doesn't limit liability

D act must still be one that would cause harm to normal P though

Front 39

OUTSIDE SCOPE OF RISK BECAUSE...

intervening person or cause

Back 39

defendant is liable for negligence that occurred because someone else's act but can still be found liable for negligence that occurred because of D's act

Front 40

OUTSIDE SCOPE OF RISK BECAUSE...

criminal intervening acts

Back 40

criminal acts are not something D should usually foresee

Front 41

OUTSIDE SCOPE OF RISK BECAUSE...

negligent intervening acts

Back 41

If foreseeable intervening force is within the scope of the original risk; D is negligent

Front 42

DERDIARIAN

(negligent intervening acts)

Back 42

P must show D was a substantial cause of events, but it is not necessary that P show that injuries were foreseeable when caused by negligence of another D if cause of harm is foreseeable due to negligence

Front 43

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Back 43

negligence that doesn't result in physical harm but does result in emotional distress

Front 44

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

mitchell rule

Back 44

requires impact that causes physical injury to recover

- no longer followed

Front 45

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

impact rule

Back 45

don't need physical injury to recover for ED, but still need some impact or touch

Front 46

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

physical manifestation rule

Back 46

isn't about injury or impact

P must show evidence of some objective physical manifestation of injury

Front 47

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

zone of danger rule

Back 47

Was bystander in zone of danger? P who witnesses negligently inflicted harm usually must be in zone of actual injury to fear for her own safety

Front 48

CONTRIBUTORY NEGLIGENCE

(defense)

Back 48

P also negligent; acts as a complete defense to recovery

Exceptions:
- rescue doctrine
- last clear chance rule
- discovered peril rule
- D reckless/intentional misconduct
- illegal activity

Front 49

RESCUE DOCTRINE

Back 49

one who sees person in imminent danger caused by negligence of another cannot be charged with contributory negligence

Front 50

LAST CLEAR CHANCE RULE

Back 50

if D discovered/should have discovered peril and reasonably could have avoided it, P negligence would neither bar nor reduce recovery

Front 51

DISCOVERED PERIL

Back 51

rescue doctrine, but only if D discovered P in peril

Front 52

D INTENTIONAL CONDUCT as contributory negligence?

Back 52

No - intentional tortfeasors usually can't use contributory negligence to reduce damages

Front 53

COMPARATIVE FAULT

Back 53

Each faulty party must bear his share of losses

Usually only a partial defense

Front 54

ASSUMPTION OF RISK

(defense)

Back 54

If P assumes the risks of injury, D is not liable for injury and P is barred from recovery

Can be contractually assumed and liability can be waived

Front 55

LANDOWNERS OWE NO DUTY TO __...?

Back 55

trespassers or licensees (except to restrain from WANTON/WILFUL/RECKLESS CONDUCT WHICH IS LIKELY TO INJURE THEM)

Landowner can use reasonable force to expel trespasser or defend property

Front 56

TRESPASSER

Back 56

person with no legal right to be on another's land and enters anyway

Front 57

LICENSEE

Back 57

person who is on land with permission but has limited license to be there

Front 58

INVITEE

Back 58

(landowner owes duty only to that which invitee is on land for)

any person who is on the premises 1) at least in part for benefit of landowner (a business invitee) or 2) who is on premises that are held open to public (as a public invitee)

Front 59

BUSINESS INVITEE

Back 59

person on premises at least in party for the benefit of the landowner

Front 60

PUBLIC INVITEE

Back 60

person who is on premises that are held open to the public

Front 61

LANDOWNER LIMITED DUTY TO CHILDREN

Back 61

increased duty in most jurisdictions

must protect against "attractive nuisances"

Front 62

ATTRACTIVE NUISANCES

Back 62

Bennett (pool case)

children are entitled to degree of care that is proportioned to their inability to foresee and avoid perils that they may encounter and landowner should protect them from those attractive nuisances

1) must be in a place where landowners are likely to know children will trespass

2) must be a condition that landowner knows will involve unreasonable risk to children

Front 63

FIREFIGHTERS RULE

Back 63

firefighter who enters private property in performance of duties is a licensee

as such, landowner only owes duty to refrain from wilful/wanton conduct towards firefighter

also applies to other public positions

Front 64

DUTY TO LESSORS

Back 64

landlord not liable to lessors because lease is a conveyance of the property and consequent transfer of possession and control of the tenant

exceptions:
- landlord still liable for injuries caused by dangerous condition if he contracts to repair defects
- if landlord conceals defects, and tenant can't be expected to discover it
- where landlord negligently repairs and then they cause injury

Front 65

STANDARD OF CARE FOR MEDICAL PROFESSIONALS?

Back 65

measured by expert testimony as to what the reasonable and prudent doctor would have done in like circumstances

Front 66

PHYSICIANS AREN'T LIABLE FOR __...?

Back 66

bona fide errors or honest mistakes

Front 67

COMPETENT MEDICAL AUTHORITY IS DIVIDED...WHAT NOW?

Back 67

D isn't liable as long as he followed a treatment that is advocated and respected by a considerable amount of doctors

Front 68

RES IPSA LOQUITUR FOR MEDICAL PROFESSIONALS

Back 68

Expert testimony is allowed to bridge gap between jury's common knowledge and specific knowledge necessary to reach the conclusion that the occurrence would not take place in absence of physician negligence

Front 69

INFORMED CONSENT

Back 69

patient determines the direction which interests in treatment lie; right to forgo treatment if they want

- physician failure to divulge in reasonable manner whether to give or withhold consent to medical procedure constitutes professional misconduct

- extent to share depends on what info doctor reasonably recognizes is material to P decision

Front 70

INFORMED CONSENT CAUSATION: OBJECTIVE OR SUBJECTIVE FOR P?

Back 70

objective; P must show to jury that the reasonable person would have refused the treatment if he/she was properly informed

Front 71

GOVERNMENTAL IMMUNITY TO TORT

Back 71

governmental units were traditionally not subject to tort actions unless they had consented to the suit. Now, by statute and judicial decision, that immunity is considerably limited

Federal Tort Claims Act, Title 28 U.S.C., the United States has waived immunity for tortious acts (EXCEPT INTENTIONAL TORTS)

Most states have substantially waived their immunity from tort actions to the same extent as the federal government

Municipality immunity is abolished for everything but discretionary acts and policy decisions

Front 72

EXCEPTIONS TO NO DUTY RULE

Back 72

- if person knows or has reason to know that his conduct has caused harm to another person, he has a duty to render assistance to prevent further harm

- if person creates unreasonable risk of harm, even innocently, a duty of reasonable care arises to employ reasonable care to prevent the harm from occurring

Front 73

4 APPROACHES TO WHETHER DUTY TO THIRD PERSON FORESEEABLE?

Back 73

- specific harm rule: landowner doesn't owe duty to protect patrons from violent acts of third parties UNLESS HE IS AWARE OF SPECIFIC, IMMINENT HARM ABOUT TO BEFALL THEM

- evidence of prior crimes on/near: past history of criminal conduct can put landowner on notice to future risk; if no incidents in past near, injury is unforeseeable

- totality of circumstances: takes additional factors into account such as nature, condition, location of and as well as other relevant factual circumstances

- balancing test: foreseeability of harm and gravity of harm are balanced against commensurate burden imposed on the business to protect against harm

Front 74

DUTY TO PROTECT FROM THIRD PERSONS

specific harm rule

Back 74

- specific harm rule: landowner doesn't owe duty to protect patrons from violent acts of third parties UNLESS HE IS AWARE OF SPECIFIC, IMMINENT HARM ABOUT TO BEFALL THEM

Front 75

DUTY TO PROTECT FROM THIRD PERSONS

evidence of prior crimes on/near

Back 75

- evidence of prior crimes on/near: past history of criminal conduct can put landowner on notice to future risk; if no incidents in past near, injury is unforeseeable

Front 76

DUTY TO PROTECT FROM THIRD PERSONS

totality of circumstances test

Back 76

- totality of circumstances: takes additional factors into account such as nature, condition, location of and as well as other relevant factual circumstances

Front 77

DUTY TO PROTECT FROM THIRD PERSONS

balancing test

Back 77

- balancing test: foreseeability of harm and gravity of harm are balanced against commensurate burden imposed on the business to protect against harm

Front 78

VICARIOUS LIABILITY

Back 78

employers are held liable for employee torts if torts are committed within the scope of employment

Front 79

TRADITIONAL VICARIOUS LIABILITY

elements

Back 79

- employee is actual employee, not independent contractor

- supervisor has inherent ability to control the employee

- employee's acts are within the scope of employment

Front 80

VICARIOUS LIABILITY

"going and coming" rule

Back 80

employee that is going to and from work is normally considered to be outside the scope of employment and thus employer is not liable for torts

Front 81

VICARIOUS LIABILITY

"going and coming" exceptions

Back 81

- when trip involves an incidental benefit to employer

- special hazard exception: when travel to and from work involves special hazards

- dual purpose exception: when addition to merely commuting, employee performs a concurrent service for his employer that would have necessitated a trip by another employee if the commuting employee had not been able to perform it while commuting

Front 82

VICARIOUS LIABILITY

borrowed servants

Back 82

most jurisdictions: possible that borrowing employer could be vicariously liable or possible that both borrowing and lending employee are both liable

some other jurisdictions: only lender is liable, not borrower

(both: employee can't be independent contractor!)

Front 83

VICARIOUS LIABILITY

how to determine whether there is a master/servant relationship

Back 83

depends on following:
- selection/engagement of servant
- payment of wages
- power to discharge
- power to control servant's conduct (MOST IMPORTANT)
- whether work is part of regular business of employer

Front 84

INDEPENDENT CONTRACTOR "EMPLOYERS" ABLE TO BE HELD VICARIOUSLY LIABLE FOR TORTS?

Back 84

Not generally.

Exception: if there is a non-delegable duty, employer can't get around it (duty of such importance to protect members of the community against unreasonable harm)

Front 85

FACTORS IN IMPOSING STRICT LIABILITY

(6)

Back 85

- high risk
- uncommon nature of activity
- inability to eliminate the risk by exercise of reasonable care
- extent to which activity is not a matter of common usage
- activity's inappropriateness to the place where it was carried on
- extent to which activity's value to community is outweighed by its dangerous attributes

R2D 520

Front 86

RYLANDS RE: STRICT LIABILITY

Back 86

A person who lawfully brings on his land something that, though harmless, will do mischief if it escape, must keep it at his peril or he is answerable to strict liability damages

Front 87

WHEN TO IMPOSE STRICT LIABILITY ACCORDING TO R 3D

Back 87

D activity creates a reasonably foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and activity is not one of common use

Front 88

AFFIRMATIVE DEFENSES TO STRICT LIABILITY

Back 88

contributory negligence is NOT a defense

comparative negligence appears to be a defense (assumption of risk, comparatively)

Front 89

NOMINAL DAMAGES

Back 89

symbolic damages given to P to show tort has been established but not actual harm has occurred

Front 90

COMPENSATORY DAMAGES

Back 90

to indemnify a personal injury, property or other economic harm sustained by P

Front 91

PUNITIVE DAMAGES

Back 91

discretionary; to punish D for malicious torts

must bear some relationship between harm and is probably limited in most jurisdictions

Front 92

THEORIES OF PRODUCT LIABILITY

Back 92

(i) Intent;

(ii) Negligence;

(iii) Strict liability;

(iv) Implied warranties of merchantability and fitness for a particular purpose; and

(v) Representation theories (express warranty and misrepresentation).

Front 93

THREE TYPES OF PRODUCT DEFECTS

Back 93

- manufacturing

- design

- information

Front 94

PRODUCT LIABILITY POLICY

Back 94

not interested in the conduct of product manufacturer (like in negligence), but in the product itself (was it flawed in and of itself ...defective...don’t care about the actual conduct)

Front 95

PRODUCT LIABILITY / MANUFACTURING DEFECTS

elements

Back 95

- Product was defective

- Defect was an actual and proximate cause of Π harm but also that product was defective when it left Δ hands

Front 96

TWO WAYS TO DEFINE MANUFACTURING DEFECTS

Back 96

R2d§402A: defective condition unreasonably dangerous to the consumer (unreasonably dangerous = doesn’t meet consumer’s expectations)

R3d: manufacturing defect when it departs from the manufacturer’s intended design

Front 97

Patient consents to an operation not necessary to save his life.

Patient is not informed that there is a 40% probability of paralysis in such operations, and paralysis results.

Breach of duty by doctor?

Back 97

Since a reasonable person would not have consented to the operation had the risks been disclosed,

Doctor has breached his duty of
disclosure.

Front 98

STRICT LIABILITY

elements

Back 98

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

2. Breach of that duty;

3. The breach of the duty was the actual and proximate cause of plaintiff’s injury; and

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

Front 99

PRODUCT LIABILITY

defective product definition

Back 99

In most jurisdictions, a product can be the basis for a products liability action if it is in a “defective condition unreasonably dangerous” to users.