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Torts I

Prof. Shoebotham Loyola New Orleans 2015

QuestionAnswer
7 Intentional Torts Assault, Battery, False Imprisonment, Trespass to Land, Trespass to Chattels, Intentional Infliction of Emotional Distress, Conversion,
5 Torts That Arise Under the Transferred Intent Doctrine Assault, Battery, False Imprisonment, Trespass to Land, Trespass to Chattels
4 Rules of Intent (1) Deliberate Act--to cause contact shows intent (2) Substantial Knowledge--that actions will bring about consequences (3) Acted for the Purpose--mistaken understanding of the fact does not vitiate intent (4) Insanity and Age--does not vitiate intent
Prima Facie Elements of Battery (1) Intentional Infliction (2) of Harmful or Offensive (3) Contact
The Rule Statement of Battery (sentence) The intentional infliction of harmful or offense contact.
Secondary Rules of Law for Battery (1) Contact is harmful or offensive to the ordinary person. (2) Pain = Harm (3) Contact with objects in the Plaintiff's immediate control (4) Defendant is liable for everything in the factual chain (5) Contact can be direct or indirect
Prima Facie Elements of Assault (1) Intentional Offer (2) to touch in a harmful or offensive manner (3) creates a well-founded apprehension (4) the contact is imminent (5) the defendant has the apparent ability to make contact
Prima Facie False Imprisonment (1) Intentional (2) Confinement with fixed boundaries (3) Awareness of the Plaintiff or harm
Secondary Rules of Law for False Imprisonment (1) No legal justification (2) Plaintiff is expected to try reasonable escape (3) Must be a threat or coercion (4) No reasonable means of escape
Prima Facie Elements of Trespass to Chattels (1) Intentional (2) Intermeddling (3) which causes harm that: (a) disposses (b) impairs (c) deprives of use (d) bodily harm/ harm to owner's legal interest
Prima Facie Claim for Trespass to Land (1) Intentional (2) Entry onto land (3) by a person or tangible item
Secondary Rules of Law for Trespass to Land (1) Mistake is not a defense (2) Emergencies and Accidents are justified (3) Authorized entry can be withdrawn or specified (4) Grants nominal damages to protect legal ownership
Prima Facie Elements of Intentional Infliction of Emotional Distress (1) Intention to cause mental suffering (2) Severe emotional distress (3) Defendant's conduct was extreme and outrageous
Secondary Rules of Law for Intentional Infliction of Emotional Distress (1) Based on society's sensibilities, not P's quirks (2) D's conduct is beyond that normal society (3) Cause of severity is important for the P. (4) Consider (a) threats of future acts (b) Abuse of power (c) repeated acts by D
Prima Facie Elements of Conversion (1) Intentional (2) Serious Interference (3) Defendant to should justly pay the full value
Secondary Rules of Law for Conversion (1) Amounts to a forced sale (2) Damages can be awarded because of the seriousness of deprivation (3) D may to return the "chattel", but the P can decide whether to take it back or still ask for lesser damages. (4) D and P can argue over D's innocence
Who has the burden of proving consent? The courts have not been consistent on their view of allocating the proof of consent to the plaintiff or the defendant.
The affirmative defense of consent requires that... The defendant as the burden of pleading and proving that his/ her actions were consented.
How does a jury determine whether the defendant's actions were consented? The jury determines whether a reasonable, prudent person under the circumstances would have consented.
What must be considered when analyzing consent in a medical battery claim? (1) What has the patient consented to? (2) Did the doctor go beyond the scope of the original consent? (3) Did an emergency permit the assumption of consent?
What a doctor obligated to give a patient prior to treatment/ operation? Informed Consent
What is a merchant's privilege (in general)? Reasonable detainment on the premises for reasonable investigation for normally an hour, unless it is reasonable to hold the suspect or offender for longer.
When does self-defense justify a defendant's non-deadly force? (1) It is used to avoid what he/ she reasonably believes is or is going to be a battery. (2) It does not occur after the threat has ended. (3) It is reasonable compared to the level/ type of threat.
When does self-defense justify a defendant's deadly-force? (1) When the defendant reasonably believes a risk for the loss of life or great bodily harm is to occur.
When does the burden shift to the plaintiff to prove that deadly-force was unreasonable? When the defendant was in their car or home, reasonable force is presumed, and the burden shifts to the plaintiff to prove that it was not.
True or False: Deadly force is reasonable for the defense of property. False.
When does the defense of property justify force? (1) During a fresh pursuit to retrieve the plaintiff's rightful property. (2) The force is not unnecessarily violent (3) When if possible a verbal demand to the offender to stop has been made
Prima Facie Elements of Negligence (1) Duty (2) Breach (3) Causation (4) Harm
Elements of the Emergency Doctrine Defense (1) Sudden (2) not of the defendant's making (3) Defendant acted as a reasonably prudent person
Elements of Res Ipsa Loquitar (1) Is the type of elements that does not normally occur with the absence of negligence (2) Other reasonable causes have been sufficiently eliminated (3) The harm is within the scope of the defendant's duty
Two Parts of Causation (1) Cause in Fact (2) Proximate Cause
Cause in Fact But for the defendant's act or failure to act, the plaintiff's injuries would not have occurred. --Substantial Factor of the cause
Proximate Cause Was it reasonably foreseeable for the plaintiff's injuries to occur from the defendant's act or failure to act.
Standard of Care for a Child The reasonable prudent child under the circumstances of like: (1) Age (2) Intelligence (3) Experience
Elements of Negligence Per Se Analysis (1) Is the plaintiff of the class of persons the statute is intended to protect? (2) Did the plaintiff suffer the type of harm the statute is intended to prevent? (3) What kind of problems would result from adopting the statute for a torts analysis?
Actual Notice The defendant had knowledge of the risk at issue.
Constructive Notice The defendant should have known of the risk at issue.
3 Main Methods for Analyzing a Breach of Duty (1) Pragmatic Factors Analysis from Krayenbaul (2) Reasonable Prudent Person Under the Circumstances (3) Risk Utility Analysis
The Pragmatic Factors (1) Location of Premises (2) Purpose (3) Probability of Injury (4) Precautions Necessary to Prevent Injury (5) Impedance to Business (6) New Technology
Risk Utility Analysis Is the burden of difficulty and cost to maintain the duty greater than the likelihood of harm times the severity of the harm? --Burden > Risk x Magnitude = Not Negligent --Burden < Risk x Magnitude = Negligent
Custom and Usage Analysis (1) What is the industry standard? (2) Is the entire industry below the reasonable standard? (a) What is the economic and technological feasibility?
Intervening Cause Interrupts the normal flow of causation between the wrong and the injury.
Superseding Cause Is a cause that completely cuts the flow of causation between the wrong and the injury.
Alternative Liability (Defined) The plaintiff cannot determine between defendants which is liable for their injury.
Elements of Alternative Liability (1) Small number of defendants (2) Defendants produce the same risks (3) All the defendants have been sued
Directly Traceable Consequence (1) Direct link between defendant's negligence and plaintiff's injury (2) Without many intervening cause (3) Defendant's foreseeability is not required
Thin Skull Rule (1) Take the plaintiff as he is (2) Defendant is liable for full extent of the causal injuries that result from negligence, (3) or for aggravating underlying condition (4) but not the condition itself
Unforeseeable Plaintiff (1) Where is the plaintiff in relation to the orbit of danger? (2) Was there a natural and continuous sequence? (3) Is the result too remote in time and place?
Theories for Analyzing Proximate Cause (1) Directly Traceable Consequences --superseding cause (2) Foreseeability (3) Unforeseeable Plaintiff
Formulated Standard of Jury Analysis The jury is instructed on a rule of law or statute and applies it to the defendant in the precedent case.
Unformulated Standard of Jury Analysis The jury is not instructed on a strict analysis format and are free to question whether the defendant acted as a reasonably prudent person.