Torts From Intentional Torts And Negligence

Front 1

TORTS
Definition of Intent

Back 1

Intent means either that the D desires the result or knows to a substantial certainity that it will occur. (Subjective)

Front 2

TORTS
Transferred intent applies to . . .?

Back 2

battery, assault, false imprisonment, trespass to chattel and trespass to land.
Per Rs - only applies between assualt and battery.

Front 3

TORTS
Mistake Doctrine

Back 3

If D intends to the act that would constitute a tort but mistakes even reasonably the identity of the person or property, D is still liable.

Front 4

TORTS
Definition of Battery

Back 4

Battery occurs when D's acts intentionally cause harmful or offensive contact with victim's person.

Front 5

TORTS
Definition of offensive touching

Back 5

Disagreeable or nauseating or painful. Causes outrage and/r insults the victim.

Front 6

TORTS
Element of Battery

Back 6

1. Intent (not intent to harm)
2. Harmful or offensive touching
3. contact with the person or something closely connected (a horse, smoke, direct or indirect contact)

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TORTS
Definition of Assault

Back 7

Assault occurs when D's acts intentionally cause the victim reasonable apprehension of immediate or harmful contact. Rs deletes reasonable.

Front 8

TORTS
Clarification of Apprehension

Back 8

If victim attacked from behind or while asleep there is no apprehension therefore no assault.
Fear is not a requirement.

Front 9

TORTS
Definition of False Imprisonment

Back 9

D unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area.

Front 10

TORTS
Clarification of Bounded Area

Back 10

Can be an entire city or moving vehicle. Must be bounded in all directions and unable to move freely in another direction.

Front 11

TORTS
False imprisonment vs Malicious Prosecution/Abuse of Process

Back 11

Malicious Pros = lawful arrest motivated by bad faith
Abuse of Process = improper use of subpeonas

Front 12

TORTS
Definition of Trespass to Chattel

Back 12

The intentional interference with the right of possession of personal property

Front 13

TORTS
Definition of Conversion

Back 13

Intentional exercise of dominion and control over chattel which so seriously interferes with the right of another to control it.

Front 14

TORTS
Conversion - factors to determine seriousness of interference

Back 14

1. Extent and duration of dominion or control
2. Actor's intent and good faith
3. Harm done to chattel
4. Inconvenience and expense caused

Front 15

TORTS
Conversion - purchase of stolen property

Are buyer and seller both liable for conversion?

Back 15

Yes - both are liable since both acts seriously interfer with ownership of rightful owner

Front 16

TORTS
Definition of Trespass

Back 16

Where D intentionally enters or causes something to enter the land of another (surface, mineral and air)

Front 17

TORTS
Clarification of Intent for Trespass

Back 17

Intent required is intent to enter the land or trespass to chattel; not intent to trespass. Good faith is not relevant.

Front 18

TORTS
Clarification of Intent for Conversion

Back 18

Intent to do the act; intent to exercise dominion and control over property of another - not intent to convert.

Front 19

TORTS
Definition of Intentional Infliction of Mental Distress
(IIED)

Back 19

IIED exists when D, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress.

Front 20

TORTS
IIED - Clarification of Emotional Distress

Back 20

Emotional distress must be the primary consequence of D's conduct.

Front 21

TORTS
IIED - Restatement definition of Extreme/outrageous conduct

Back 21

Beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable to a civilized community.

Front 22

TORTS
IIED - Clarification of Intent or Recklessness

Back 22

P must prove that D intended to cause severe emotional distress or acted with reckless disregard as to whether the victim would suffer severe distress

Front 23

TORTS
IIED - When a third party may recover

Back 23

In addition to proving elements of IIED, the third party must be 1. a close relative of victim; 2. present when outrageous conduct occured; and 3. D knew third party was present.

Front 24

TORTS
IIED - Exception for Innkeepers, Common CArriers, etc

Back 24

P must be a patron of D. The requirement that D behave in an extreme and outrageous manner is waived. It is lowered to reasonably offensive. P will not have to prove this element.

Front 25

TORTS
IIED - Mental state either intent or recklessness. Recklessness defined as:

Back 25

D consciously disregarded a substantial risk of harm.

Front 26

TORTS
IIED - Causation

Back 26

P must prove that her severe emotional distress was caused by D's extreme outrageous conduct.

Front 27

TORTS
Transferred Intent
How can intent be transferred and between which intentional torts?

Back 27

Transferred intent can be transferred between people and between the following torts: assault, battery, false imprisonment, trespass to chattels and trespass to land. Not conversion or IIED.

Front 28

TORTS
Elements of False Imprisonment

Back 28

1. Intentional
2. Voluntary Act
3. Causing Plaintiff to be confined
4. Bounded Area

Front 29

TORTS
Elements of Assault

Back 29

1. Reasonable apprehension
2. Intent, desire or substantial certainity
3. of Imminent battery
4. Voluntary

Front 30

TORTS
Trespass to Chattel - what is Chattel?

Back 30

personal property, moveable goods, automobile, dog

Front 31

TORTS
Assualt - Clarification of Imminent

Back 31

Imminent is immediate. Can't happen tomorrow or even an hour from now.

Front 32

TORTS
Defenses to Intentional
Consent

Back 32

If victim gave consent, then what would otherwise be tortious, would be privileged. (objective test)

Front 33

TORTS
Defenses
Consent - how it can be invalidated

Back 33

Incapacity (age, intoxication, insanity; action beyond scope of consent; fraud; duress; illegality

Front 34

TORTS
Defenses
Self-Defense

Back 34

Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from Immediate harm.

Front 35

TORTS
Defense
Self-Defense - is retreat necessary?

Back 35

Majority Rule - no retreat necessary. The right and dignity of individual can be defended with deadly force.
Minority rule - retreat where serious bodily injury or death

Front 36

TORTS
Defense
Defense of Others

Back 36

Reasonable force permitted to protect third party (family, friends, stranger) whenever third party entitled to exercise self-defense

Front 37

TORTS
Defense
Defense and Recovery of Property

Back 37

An individual is priviledged to use reasonable force to prevent a tort against real or personal property. However, mistake not an excuse

Front 38

TORTS
DEfense
Defense and Recovery of Property - reasonable force

Back 38

Force intended to inflict death or serious bodily injury is never reasonable to protect mere property.

Front 39

TORTS
Defense
Shopkeepers Priviledge

Back 39

If shopkeeper reasonably believes someone has stolen merchandise, that shopkeeper may detain that person for a reasonable period of time.

Front 40

TORTS
Elements of Negligence
Notice NO INTENT

Back 40

1. Duty
2. Standard of Care
3. Breach of Duty
4. Cause in fact
5. Proximate Cause
6. Damages

Front 41

TORTS
Negligence
Duty of Care

Back 41

General Rule: Everyone is held to a duty of reasonable care measured against the reasonable prudent person with exceptions (mentally and physically impaired, & children)

Front 42

TORTS
Negligence
Duty of Care - Caregiver Exception

Back 42

If caregiver, cannot state claim for negligence against patient. Caregiver is not owed a reasonable duty of care from his patient but owes duty of care to everyone else.

Front 43

TORTS
Negligence
Child Duty of Care

Back 43

Child owes the standard of care of a reasonable child of the same age, intelligence, experience and maturity unless engaged in an adult or inherently dangerous activity.

Front 44

TORTS
Negligence - definition

Back 44

Negligence may be any conduct that creates an unreasonable risk of harm to others.

Front 45

TORTS
Negligence - elements
Elements must be proved by ___ of evidence

Back 45

preponderance (more than 50%)

Front 46

TORTS
Negligence
Standard of Care - the four levels

Back 46

1. reasonably prudent person under same or similiar circumstances.
2. children
3. negligence per se or statutory standard of care
4. standard of care applied to professionals.

Front 47

TORTS
Negligence
Breach of Duty means

Back 47

the failure to meet the standard of care

Front 48

TORTS
Negligence
Cause IN Fact

Back 48

Plaintiff's harm must be the result of D's breach of duty. One who causes no harm is not legally responsible.

Front 49

TORTS
Reasonable Person Standard

Back 49

1. not a real person, not a member of the jury
2. should have some weaknesses
3. expected to know about well known hazards
4. expected to notice what is evident, open and apparent
5. ignorance is not a defense
6. expected to have knowledge and understanding generally held by members of the community - out of towners are ok.

Front 50

TORTS
Reasonable Person STandard
Emergency Doctrine

Back 50

D is held to a standard of a reasonable person under those emergency circumstances.

Front 51

TORTS
Reasonable Person Standard
Definition of Emergency

Back 51

An event that requires a decision within an extremely short period of time and is sufficiently unusual so that the actor does not have personal experience or general community knowledge of how to deal with the emergency.

Front 52

TORTS
Reasonable Person STandard
Mentally impaired

Back 52

Mental condition irrelevant. Insane held to same standard as sane person.

Front 53

TORTS
Negligence
Standard of Care - Negligence per se doctrine as opposed to Reasonable person doctrine.

Back 53

This doctrine provides that in certain situations a criminal statute, admin regulation, muni ordinance may be used to set the standard of care.

Front 54

TORTS
Negligence
Unreasonableness - determination of

Back 54

Determination of unreasonableness considers the risks that should have been forseen at the time of D's conduct, not by hindsight.

Front 55

TORTS
Negligence
Unreasonableness - Learned Hand formula

Back 55

Probability (P)= the liklihood that D's conduct will injure others
Injury (L) = Seriousness of Injury if it happens
Burden (B) = Interests which D must sacrifice to avoid the risk
Liabiity depends on whether B is less than L times P = B < PL

Front 56

TORTS
Negligence
Unreasonableness - Learned Hand formula explanation

Back 56

D will have acted unreasonably where the burden of avoiding the harm is les than the probability of that harm occuring multiplied by the likely seriousness of the harm if it does occur.

Front 57

TORTS
Negligence
Unreasonableness - Learned Hand Formula & Probability

Back 57

Probability is the likelyhood of harm. It measures how forseeable the harm causing event is. Likely harm, not actual harm.

Front 58

TORTS
Negligence
Unreasonableness - Learned Hand Formula & Burden of Avoidance

Back 58

Burden is the value of interest to be sacrificed for safety which includes costs associated with avoiding harm, alternatives and their feasibility, the inconvenience to those involved and the extent to which society values the relevant activity.

Front 59

TORTS
Negligence
Unreasonableness & Role of Custom

Back 59

Custom refers to a well-defined and consistent way of performing a certain activity among a particular trade or industry. P may try to assert D's deviation from custom as lack of due care or D may try to avoid liability by showig compliance.

Front 60

TORTS
Negligence
Negligence per se - when to use it?

Back 60

Only with regards to Breach of Duty. Negligence per se only establishes breach of duty.

Front 61

TORTS
Negligence
What are the requirements of Negligence per se?

Back 61

1. The P must be within the class of persons that statute was intended to protect; and
2. The injury or harm was of the type that statute was designed to protect against; and
3. The D's violation of the statute was not excused.

Front 62

TORTS
Negligence
Negligence Per Se - What is the benefit of establishing that D is liable for negligence per se?

Back 62

To establish breach

Front 63

TORTs
Negligence
Negligence per se - If P is successful in establishing that D is liable for negligence per se, does P win the case?

Back 63

No Breach is only one element required to prove negligence. Still need to prove duty, cause in fact, proximate cause and damages.

Front 64

TORTs
Negligence
Breach of Duty
What are the three methods to prove breach of duty?

Back 64

1. Negligence per se
2. Learned hand Test
3. Res Ipsa Loquitur

Front 65

TORTs
Negligence
Breach of Duty - if you are successful in proving breach of duty do you win the case/

Back 65

No - not for negligence. In addition to breach of duty you have to prove the other elements of negligence.

Front 66

TORTS
Negligence
Breach of Duty - evidence
Who has the burden and how much evidence is required?

Back 66

The plaintiff has the burden to prove breach and must show enough evidence so that the jury can find that more likely than not the D failed to act reasonably.

Front 67

TORTS
Negligence
Breach of Duty
What types of evidence are used to establish breach?

Back 67

1. Direct - evidence from personal knowledge, eyewitnesses, videotape.
2. Circumstantial - requires jury to draw inference from other facts that have probative value

Front 68

TORTS
Negligence
Breach of Duty
What is Res Ipsa Loquitur

Back 68

Res Ipsa Loquitur means "the thing speaks for itself." It is a form of circumstantial evidence

Front 69

TORTS
Negligence
Breach of Duty
When is Res Ipsa Loquitur used?

Back 69

When P cannot make specific allegations of what D did wrong.
BYrne v Boadle - warehouse, flour barrel

Front 70

TORTS
Negligence
Res Ipsa Loquitur - is just the occurence of an accident good enough to prove breach under this doctrine?

Back 70

No - the harm causing event must be tied to D and the event must be one that generally does not occur absent negligence.