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Torts I - Drummonds

QuestionAnswer
Intent "1. Volitional Act 2. Mental state that is a. Purposeful, OR b. Substantially Certain"
Battery "1. Intent 2. Causing 3. Contact 4. That is objectively offensive or harmful"
Assault "1. Intent 2. Threat or attempt coupled with apparent ability 3. Causing 4. Objectively reasonable apprehension of an imminent battery"
False Imprisonment "1. Intent 2. Confinement 3. Awareness of the confinement, OR 4. Actual harm caused by the confinement"
Methods of Confinement "1. Physical barriers 2. Overpowering physical force 3. Submission to a threat to apply force 4. Submission to duress where the duress is sufficient to make the consent given ineffective 5. Taking a person into custody"
Intentional Infliction of Emotional Distress (IIED) "1. Objectively extreme or outrageous conduct 2. Done intentionally or recklessly 3. Causing 4. Severe or extreme emotional distress"
Trespass to Land "1. Intent 2. Invasion of something that interferes with right of exclusive possession of land"
Trespass to Chattels "1. Intent 2. Interference with a property right 3. Of a chattel (something movable)"
Conversion "1. Intent 2. Interference with a property right 3. To a chattel 4. Sufficiently serious to require D to pay full value of property"
Defenses to Intentional Torts "1. Consent 2. Self-Defense and Defense of Others 3. Defense of Property 4. Public Necessity 5. Private Necessity"
Exceptions to Consent "1. Misrepresentation 2. Consent is exceeded 3. Infancy, mental incompetency, or intoxication"
Negligence "1. Duty 2. Breach 3. Cause in fact 4. Legal cause 5. Damages"
Exceptions to General Duty of Care "1. Privity of contract 2. Nonfeasance 3. NIED 4. Pure Economic Loss 5. Occupiers of Land 6. Third-party Torts and Crimes 7. Professional Malpractice"
Exceptions to Nonfesance Rule "1. Good Samaritan/Undertaking exception 2. Relationship with victim exception 3. Relationship with perpetrator exception 4. Prior conduct exception"
Exceptions to NIED Rule "1. Impact 2. Zone of danger 3. Bystander (rare)"
Bystander Factors "1. Nearness 2. Nowness 3. Closeness"
Limit to Pure Economic Loss Rule "Some states allow claims without physical damage if the loss is: 1. Caused in fact by the negligence 2. Foreseeable, AND 3. Particular"
Duty to Trespasser "1. Refrain from willful or wanton conduct 2. If trespassers frequent a limited part of the land, standard duty. 3. If occupier becomes aware of trespasser, standard duty of care"
Duty to Licensee "1. Reasonable care in activities where danger is not obvious to invitee. 2. Reasonable care to warn of dangerous conditions not likely to be discovered by invitee"
Duty to Invitee "1. Reasonable care in all activities 2. Reasonable care to warn about conditions about which occupier should have known"
Duty to Children on Land "Reasonable care if: 1. Occupier has reason to know children will trespass 2. Occupier has reason to know condition creates unreasonable risk to children 3. The children, because of their youth, do not recognize the risk"
Duty to Protect Against Third-Party Torts and Crimes "1. Generally no duty 2. Exception for when the thing that makes the act negligent is the increased risk of a tort or crime being committed by others"
Duty of Professionals "1. Posses the knowledge and skill ordinarily possessed by one the profession 2. Give honest, good faith judgment for the benefit of client 3. Reasonable care and diligence"
Reasons for Med Mal Reform "1. Med Mal insurance rates 2. Shortage of doctors in high-risk specialties 3. Shortage of doctors in rural areas 4. Defensive medicine 5. Juries incompetent 6. 'Damn lawyers' 7. Stigma effect even when doctors win"
Reasons against Med Mal Reform "1. Insurance rates not tied to med mal claims 2. Shortage is not empirically evident 3. Use of defensive medicine is empirically doubtful 4. Juries handle complex cases all the time 5. There are easy fixes to actually prevent malpractice"
Med Mal Reforms "1. Liability caps 2. Health courts 3. Attorney's fee caps 4. Create systems to prevent malpractice 5. Incentives for doctors to disclose errors 6. Legislate standards of care and offer safe harbor to those within the standard"
Hand Formula "B<PL B=Burden; P=Probability; L=Loss"
Child Standard of Care "Reasonable child of the same: 1. Age 2. Intelligence 3. Experience Except for adult licensed activities"
Res Ipsa Loquitur "1. The accident is such that in the light of ordinary experience it would not occur absent negligence 2. D has exclusive control over the injury-causing instrumentality 3. P did not cause the accident"
Cause in Fact Tests "1. But-For Cause (default) 2. Substantial Factor 3. Alternative Liability 4. Concerted Action 5. Enterprise Liability 6. Market Share Liability 7. Lost Opportunity Doctrine 8. Increased Risk"
Substantial Factor Test "If two events occur, each sufficient to cause the injury, one negligent, the other not, the negligent actor is liable"
Alternative Liability "1. Two or more people act tortiously AND 2. It is proved that the injury was caused by one of them, THEN 3. The burden shifts to Ds to prove it wasn’t them"
Multiple, Indivisible Injuries "1. If caused by two more more tortfeasors, usually shift burden to Ds to prove who caused what. 2. If caused in part by non-tortious act or pre-existing condition, courts are split on burden shifting."
Legal Cause Rules of Thumb "1. Subsequent medical injuries are foreseeable 2. Subsequent damage by mechanics is not foreseeable 3. Injury to rescuers is foreseeable, but injury to first responders excused 5. Suicide foreseeable only if P is insane, unconscious, or in delirium"
Superseding Cause Rule "If intervening cause is not a foreseeable consequence of an act or is not part of the array of risks that made D's act negligent, it supersedes and is the sole legal cause"
Types of Damages "1. Nominal Damages 2. Compensatory Damages 3. Punitive Damages"
Compensatory Damages for Harms to Property "1. Diminution of value caused by tort AND 2. Rental value of lost use caused by tort 3. Full value of the chattel if destroyed or converted"
Compensatory Damages for Personal Injury "1.Medical expenses (past and future) 2. Loss of earning capacity (past and future) 3. Physical and mental pain and suffering (past and future)"
Safe Guards for Punitive Awards "1. Limited to willful/wanton conduct 2. Must be proved by clear & convincing evidence 3. Broad court review for excessiveness 4. State fund gets part of award 5. Possible bifurcation of trial"
Due Process Limits on Punitive Awards "1. Cannot be for harm in other states 2. Cannot be for harm to non-parties 3. Excessiveness guidelines: a. Represhensibility b. Ratio - over 9 x typically excessive c. Other state penalty for same conduct"
Options if Award Excessive "1. Reduce the award 2. Order a new trial, either complete or damages only 3. Remittitur"
Nondelegable duties "1. Affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law, OR 2. Duties imposed that arise out of the work itself because its performance creates dangers to others"
Scope of Employment Test "1. Conduct occurred within time and space limits authorized 2. Employee motivated, at least partially by a purpose to serve employer 3. Act must be of the kind employee was hired to perform"
Types of Comparative Negligence "1. Pure - Each side according to fault 2. Modified 'less than' - P recovers only if fault less than D's 3. Modified 'not greater than' - P recovers only if fault is not greater than D's"
Affirmative Defenses "1. Contributory/Comparative Negligence 2. Failure to Mitigate 3. Failure to Avoid Consequences 4. Assumption of Risk 5. Imputed Contributory Fault 6. Time Limitations 7. Preemption 8. Immunity"
Assumption of Risk "1. Express - Contract law 2. Implied 'traditional' AKA Secondary - P knowingly appreciates the risk, but voluntarily proceeds 3. Implied 'Primary' - D owes no duty to prevent the risks inherent in or incidental to dangerous activities"
Time Limitations "1. Statute of Limitations - tollable 2. Statute of Repose - not tollable, absolute 3. Tort claim notice - usually short, required for claims against public entities"
Immunities "1. Worker's Compensation 2. Charitable - mostly eliminated 3. Family - mostly eliminated, especially for intentional torts 4. Government Sovereign Immunity 5. Feres Doctrine - immune for scope of military employment 6. Public Duty Doctrine"
Exceptions to FTCA "1. Discretionary functions 2. Intentional torts, EXCEPT against law enforcement officers 3. Fiscal operations or regulation of monetary system 4. Combat activities during time of war 5. Claims arising in a foreign country"
Created by: jamesmusik on 2010-11-29



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