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24 Cards in this Set

  • Front
  • Back
IIED - Prima Facie
1) Extreme AND outrageous conduct
2) Intentionally OR recklessly causes *
3) Severe emotional distress RESULTS
Housley presumption - legal rule
Pl’s injury presumed to have resulted from incident if:
1. in good health before
2. symptoms commenced with incident
3. reasonable possibility of causal connection
Alternative Liability
Summers Rule: If P can show that each of two (or more) defendants was at fault, but only one could have caused the injury, the burden shifts to each defendant to show that the other caused the harm.
Market Share Liability
“Proportional share of harm”
In product liability cases, if P cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require each of the Ds to pay that percentage of P’s injuries which that D’s sales bore to the total market sales of that type of product at the time of injury
Indivisible Injury
1. death or
2. any single personal injury (e.g., a broken arm)
Actual Causation – Types of Evidence
1. Direct evidence - eyewitness testimony
2. Circumstantial (indirect) Pl needs to show:
1) prior negligent behavior
2) same circumstances existed at time of injury
3. Statistical evidence- Mathmetical probability.
4. General D’s conduct is the type that is “generally capable” of causing the type of injury/harm Pl suffered.
IIED Analysis
1. Discretion: Court has discretion in extreme and outrageous element.
2. Vulnerable Plaintiff’s: Mentally ill, elderly, racial minorities. By circumstance (bereaved family, recent rape victim) or condition (gay, pregnant, longshoreman, etc.)
3. Bad Defendants
a. Common carrier (Liability can be for gross insult, a lower standard that extreme.)
b. Debt collectors
c. Funeral parlors, morticians, coroners
d. Innkeepers
e. Hospitals (when medical directives are ignored)
e. Storeowners [depends on jurisdiction]
Harmful Battery - Prima Facie
1) Defendant acts
2) Intends harmful OR offensive contact, OR imminent apprehension of contact and
3) Contact results
4) Contact is harmful
Offensive Battery - Prima Facie

1) Defendant acts
2) Intent to cause harmful OR offensive OR imm app contact, and
3) Contact results
4) Contact is offensive
Assault - Prima Facie
1) Voluntary act
2) Intent to cause harmful, offensive, imm app contact, and
3) Imminent apprehension of contact results
False Imprisonment - Prima Facie
FI = AWIC CR & CHC “A Wicker Chick”
1) Defendant acts [or fails to act]
2) Intent to confine
3) Fixed boundaries
4) Directly OR indirectly results in confinement
5) Conscious OR harmed by confinement
Tort Levels of Intent
1) Specific/Purposeful - D. desires to cause harmful or offensive contact
2) Constructive/Knowing- Knowledge to a substantial certainty that contact will result. Substantial certainty = greater than very grave risk
3) Reckless
4) “Gross” negligence
5) Negligence

Most intentional torts require first 2 intents
Reckless lower level of intent added in IIED
Reckless Intent
DD Hippie
Reckless = DDHPI
- Defendant deliberately disregards a high probability of injury.
- Looks at Defendant’s assessment of risk.
- Different standard that intending harm or intending act .
Lower Standards of Care
1. Children:
Standard is LAIE- like, age, intelligence, experience
2. Physically disabled
Reasonable person will have physical characteristics of 
3. Sudden Emergency Doctrine:
Person confronted w/sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal conditions.
4. Driver-passenger
Where guest statutes enacted, driver’s duty only for gross negligence
Cost/Benefit Theory of Negligence
 B < P x L = Negligence
If burden of precautions is less than the probability injury will occur multiplied by the gravity of injury that did occur.
B: burden of costs to prevent injury or social utility
P: probability that injury will occurred
L: level of injury sustained
Negligence Per Se
NPS = CS 53 [5 parts, 3 weights]
1) Statute: Does statute specify required conduct?
2) Statute: Specifies who must comply?
3) Statute: Specifies what is breach ?
4) Legislative intent Type of injury
5) Legislative intent Type of 
1) AMOL - Neg. established as a matter of law (Judge)
2) Rebuttable presumption - can rebut assumed negligence
3) Mere evidence - Jury can take it into consideration
Res Ipsa
1) D. has exclusive mgt and control over instrumentality of harm (DECI)
2) Does not ordinarily occur in absence of negligent defendant (DNOOIAND)
3) Not Pl's fault
4) Weight: Rebuttable presumption OR Inference
Six exceptions for no duty to rescue
1) Special relationships (legal): Common carriers/Passengers, Schools/Students, Employers/Employees, Parent/Child
2) Contract rescuing is part of job, EMTs, lifeguards, or private agreement
3) Reliance - Qualified duty
4) Defendant created peril
5) Defendant’s instrumentality caused the harm
6) Statutory imposed duties
Substantial factor test
1. Elements S/FCT + NSC
1) Substantial factor of harm caused (S/FCT)
2) No superseding cause (NSC)
Proof: if D’s act was a substantial factor in the harm, D was negligent
Cardozo Prozimate Cause
1. Person (foreseeable plaintiff)
Was  ’s injury was foreseeable?
Relates to the legal duty  had towards 
2. Consequences (foreseeable harm)
Was  in zone of danger?
Defendants will only be held liable for consequences of conduct that were reasonably foreseable at time of act.
Loss of chance:
 Narrow exception to causation rule
 Applies only to medical malpractice
Did doctor do enough to prevent harm? Could more have been done?
Usually focuses on diagnostic tests, prevention tx

3 approaches:
1) Pure LOCh  if more than 50% greater chance, liability
2) Proportional  % of greater chance reduces payment by same %
3) Injury less than death
Loss of Consortium
1) Complete Loss of:
2) Love
3) Companionship
4) Affection
5) SEX
6) Society
7) Household
Assumption of Risk
Burden of proof on Def
1)  knew risk
2) Voluntarily assumed it
3) Subjective standard - Did this plaintiff know about the risk?
4) Scope of risk
Human kite recovered against negligent driver because outside scope of risk assumed (kite guy assumed he could crash, did not assume lame driver)
3. Majority rule: still recognizes AR defense
Compensatory Damages
1. Medical Expenses
a. Elements
 1) Reasonably related to D’s wrongful conduct
2) Reasonable amount
b. Mitigation Rule:  has duty of self-care
2. Incidental
3. Collateral source rule
4. Earnings General rule: lost earnings horizon