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torts final
| Question | Answer |
|---|---|
| elements for battery | 1. contact 2. harm or offnense 3. intent |
| intent for battery | must have intent to contact (in single intent states). in dual intent states, there must also be intent to cause harm or offense |
| damages for battery | nominal damages, economic damages, pain and suffering/emotional distress damages, punitive damages |
| elements for purposeful infliction of bodily harm | 1. the actor PURPOSEFULLY causes bodily harm (by action or inaction) 2. the plaintiff did not consent to the otherwise tortious conduct |
| intent for purposeful infliction of bodily harm | must have the PURPOSE of causing bodily harm |
| damages for purposeful infliction of bodily harm | economic damages, non-economic damages, punitive damages |
| elements for assault | 1. dual intent 2. reasonable apprehension 3. imminence 4. harmful or offensive contact |
| intent for assault | must have intent to cause an apprehension of an imminent harmful or offensive contact. intent to frighten is not enough. dual intent required |
| damages for assault | compensatory damages, punitive damages |
| elements for false imprisonment | 1. intent 2. confine 3. without lawful privilege 4. against plaintiff's consent 5. within a limited area 6. for any appreciable time 7. plaintiff is aware of confinement or suffers harm |
| intent for false imprisonment | must be the intent to confine the plaintiff without consent and without lawful authority to do so |
| damages for false imprisonment | plaintiff can recover for damages even if there was no actual harm (unless the plaintiff was unaware of confinement, then there must be actual harm for damages) |
| elements for IIED | 1. extreme and outrageous conduct 2. causing 3. severe emotional distress 4. intent or recklessness to cause severe emotional distress |
| intent for IIED | must act with intent or recklessness to cause severe emotional distress, not just the intent to commit the act |
| damages for IIED | compensatory damages, punitive damages |
| elements for trespass to land | 1. intent to enter the land 2. land is owned by the plaintiff/plaintiff has possessory interest 2. defendant entered plaintiff's land (or caused a thing to enter) 4. harm to plaintiff's intereest in exclusive possession |
| intent for trespass to land | must be intent to enter the land |
| damages for trespass to land | nominal damages even if no physical harm is done. when there is harm, damages are measured by the cost of repair or the diminuation in value. compensatory damages/punitive damages also available |
| elements for conversion of chattels | 1. intent 2. substantial dominion over chattel 3. susbtantial interference 4. prevents the defendant from using the item |
| intent for conversion of chattels | must only intend the act that interferes with the plaintiff's chattel |
| damages for conversion of chattels | value of chattel at time of conversion, consequential damages, pain and suffering often not available, punitive damages . replevin may be an option |
| elements for trespass to chattels | 1. intent 2. susbtantial interference that compromises the plaintiff's right of possession a. dispossession of chattel b. intermeddling with chattel |
| intent for trespass to chattels | must have the intent to perform the act that causes the trespass intent to interfere with the chattel is not necessary |
| damages for trespass to chattels | actual damages, loss of use damages, nominal damages (for loss of possession) |
| elements for private nuisance | 1. substantial interference with the plaintiff' suse and enjoyment of their land 2. invasion must be unreasonable (fact specific) |
| elements of public nuisance | 1. substantial interference with enjoyment of many people's land 2. the invasion must be unreasonable |
| damages for nuisance | all resulting harm is recoverable. for public nuisance, many people can recover as long as their damage is different than the damage of a vast majority of people |
| elements for self defense | 1. reasonable force 2. imminent attack or confinement 3. degree of force which defendant believes is necessary for the purpose |
| elements for defense of others | 1. reasonable force 2. the other person would have had the privilege of self defense a. reasonable mistake allowed |
| elements for defense of arrest and detention | 1. reasonable belief that someone has taken a chattel 2. detention on premises 3. necessary time for investigation of facts a. cannot use force intended to harm |
| elements for defense of property/recapture of chattels | 1. reasonable belief that force is necessary for protection 2. reasonable force a. human life and satefy are more important b. no use of deadly force allowed |
| elements for defense of discipline | 1. reasonable force/threat of force 2. minor child 3. used with disciplinary intention |
| elements for consent | 1. willingness for conduct to occur a. actual consent - express willingness b. apparent consent - conduct = consent c. presumed consent - social norms/no reason to believe there would be no consent |
| elements for negligence | 1. duty 2. breach 3. harm 4. causation |
| offensive contact | either 1. the contact offends a reasonable sense of personal dignity, or 2. the contact is highly offensive to the other's unusually sensitive sense of personal dignity |
| extended personality rule | touching something that is in contact with the plaintiff can be seen as sufficient for a battery |
| transferred intent | allows the transference of the intent to commit one intentional tort to another intentional tort. non-tortious intent does not transfer |
| parental liability | parents are generally not held liable for the intentional torts of their children. exceptions: 1. the parent is at fault 2. aiding and abetting the child 3. civil conspiracy between child + parent |
| recklessness | when a person's conduct creates a known risk that can be reduced by relatively modest precautions |
| extended liability | people who commit conscious intentional wrongdoings are liable for all of the consequences of their behavior, even for the consequences that they did not see or intend |
| apprehension | a reasonable anticipation. must be an anticipation that would normally be aroused in the mind of a reasonable person |
| imminence | the action will happen without significant delay. very fact-dependent |
| conditional language | "if you do this, I will do this". negates intent because you do not intend to do something unless the condition is actually met |
| choice of tortious alternatives | offering someone a choice that only contains options that are tortious. a type of assault |
| confinement | phsical restraint not necessary. fact-specific inquiry |
| false arrest | when an officer of the law improperly arrests a person |
| "extreme and outrageous conduct" | beyond all possible bounds of decency, regarded as atrocious and utterly intolerable, or, is the conduct unfortunate or engenders the mere disapproval of the community a. repeated conduct b. abuse of power c. vulnerable plaintiff |
| replevin | seized goods are provisionally restored to their owner (pending the outcome of the action) |
| equivalence rule | you cannot act with deadly force unless you believe that your aggressor will cause your death |
| duty | an obligation which the law will give recognition |
| reasonable person standard | everyone owes everyone else a duty of reasonable care |
| breach | failure to use reasonable care under the circumstances |
| breach formula (US v. Carrol Towing) | B < PL = negligence B = burden of adequate precaution P = probability that an act will cause harm L = magnitude of the harm |
| elements of res ipsa loquitur | 1. The event is of a kind that ordinarily does not occur in the absence of negligence 2. The defendant had exclusive control over the instrumentality that caused the harm 3. The plaintiff’s conduct did not contribute to the harm |
| legally cognizable harm | personal injury or property damage |
| factual cause | the plaintiff must prove that the harm suffered by the plaintiff was in fact caused by the defendant |
| but for causation | the harm would not have occurred but for the defendant's conduct |
| substantial factor causation | the defendant's conduct was a substantial factor or material element in bringing about the plaintiff's harms |
| negligence per se | the defendant is assumed to be negligent because they disobeyed a statute or regulation, which establishes breach of duty. only applies to criminal statutes |
| joint and several liability | the plaintiff can enforce her tort claim against either tortfeasor. the plaintiff can go after either defendant, or both, and collect recovery from both |
| alternative cause rule (Summers v. Tice) | all tortfeasors are negligent, but only one of them has caused the plaintiff’s harm. If you cannot prove which of the possible tortfeasors was actually the cause of the harm, then both of them are jointly and severally liable |
| several liability | the jury makes a comparative fault apportionment of liability. no tortfeasor is liable for more than his proportionate share |
| proximate cause | whether the harm that occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. Establishes how far down the causal continuum tortfeasors will be held liable for the consequences of their actions |
| rescue doctrinr | a rescuer who is hurt can recover from the defendant whose nelgigence towards another or towards himself prompts the rescue |
| risk rule | was the harm one of the harms that made the defendant neligent? 1. type of harm 2. class of persons (Palsgraf) proximate cause analysis |
| thin skull rule | a tortfeasor takes the plaintiff as he finds him (liable for extra harms caused by medical circumstances) |
| intervening cause | conduct of a third person that breaks the causal connection between the original conduct and the injury - reasonably foreseeable APPLY THE RISK RULE |
| superseding cause | conduct that breaks the causal connection - not foreseeable - different type of harm |
| second injury rule | the defendant is also liable for plaintiff's injuries that occur in the court of negligent med treatment following the injury from the defendant's negligence |
| contributory negligence | if the plaintiff is at fault by his own negligence, the defendant's negligence will be barred - only in states that don't use comparative fault (rare) |
| last clear chance doctrine | if the defendant discovered the plaintiff's peril and could have avoided it, the plaintiff's earlier negligence wouldn't bar or reduce recovery - exception to contributory negligence |
| comparative negligence | apportionment of fault between parties - reduction of recovery - two types: pure comparative fault, modified comparative fault |
| pure comparative fault | the amount that can be recovered in damages is diminished in proportion to the amount of conduct that contributed to the event |
| modified comparative fault | a plaintiff who is assigned more than a 50% fault share recovers nothing because her negligence is greater than the defendant's |
| factors for assigning responsibility in liability apportionment | nature of risk creating conduct, strength of the causal conenction |
| Bexiga rule (nonreciprocal risk rule) | reasonable care necessitates protecting the plaintiff agains the plaintiff's own contributory fault - defendant should have known of plaintiff's disability - risks are nonreciprocal |
| unlawful acts doctrine | bars a plaintiff from recovery if the plaintiff was engaged in an unlawful act that was intertwines with the claim - if the plaintiff was participating in illegal activity, fault is apportioned between P and D |
| assumption of risk theory | parties have voluntarily consented to bear the risk of the injury |
| express assumption of risk | the plaintiff has given an express written or oral dismissal for the defendant to use ordinary care |
| Tunkl factors to make express waivers invalid | -business is suitable for public relation - practical necessity - standardized adhesion contract - person/property under the seller's control |
| primary implied assumption of risk | - no fault - no duty - arises when the plaintiff assumes risks that are inherent to a particular activity |
| secondary implied assumption of risk | - contributory fault - arises when plaintiff is contributorily negligent |
| statute of limitations | limits the time period that a claim can be brought - 1-3 years for torts - runs when the essential facts have occurred |
| tolling | pausing the statute of limitations for a period - disability, jailed plaintiff/armed forces, fraudulent concealment by defendant |
| elements of fraudulent concealment | - defendant knew of the alleged wrongful act and concealed it from P - the plaintiff did not know or could not have known of the action within the statutory window |
| discovery rule | the statute of limitations doesn't start to run untill the plaintiff knows/should know that they have been injured |
| statute of repose | puts an outer limit on the right to bring a civil action - meausred from the date of last culpable act/omission of the defendant |
| express preemption | Congress clearly states in its federal law that it intends to preempt state law on that topic |
| implicit preemption | federal law is so pervasive that it can be inferred that Congress left no room for state law |
| duty for carriers and host drivers | heighened standard of care - rejected by many states in favor of reasonable care standard - host drivers duty = avoid willful/wanton misconduct |
| invitee | someone who is on the premises for the owner's economic benefit, or someone who is on the premises as a member of the public ex. customers, vendors, people at public parks/libraries |
| duty to invitees | reasonable care (including duty to inspect and warn for non-obvious dangers and make the premises safe) |
| open and obvious doctrine | landowners cannot be held liable to invitees who are injured by open and obvious dangers |
| licensee | anyone who falls between trespasser and invitee |
| duty to licensees | duty not to willfully or wantonly harm, reasonable care owed if landowner knows of danger to the entrant |
| trespasser | anyone who is on the property without consent |
| duty to trespassers | duty not to willfully or wantonly harm, unless trespasser appears imperiled/helpless/unable to protect themselves, then it is reasonable care |
| attractice nuisance doctrine | a landowner doesn't automatically become liable for any injury a child trespasser may suffer on that land - requirement of foreseeability that children are likely to trespass |
| firefighter rule | precludes a firefighter/public officer from recovering against a defendant whose negligence caused the firefighter's on-the-job injury - firefighter = licensee - abolished by Restatement |
| recreational use statute | prevents liability on the landowner when they have not used reasonable care - eliminates requirement to warn of a hidden danger |
| medical standard of care | determined by the care that is customarily provided by other phsyicians in the same or similar circumstances (NOT reasonable person standard) |
| good samaritan statutes | protects medical practitioners acting in emergency situations |
| remote site cases | a plaintiff has surgery on one site, but they end up with an injury on another site - no need for expert testimony because of res ipsa |
| medical duty to disclose | duty to disclose all significant medical information that the physician has that is material to a decision to undergo a proposed procedure |
| elements of informed consent claim | 1. doctor failed to tell the risk and had a duty to do so 2. plaintiff wouldn't have had treatment 3. reasonable person wouldn't have had the treatment 4. undisclosed risk leads to injury to P |
| FTCA | places immunity on federal employees |
| 6 elements 28 USC 1346(b) [when US can be a defendant] | 1. against the US 2. for money damages 3. for injury or loss of property 4. caused by negligent/wrongful act of gov employee 5. acting in scope of employment 6. if the US was a private person, that person would be liable |
| Feres doctrine | the government is not liable under FTCA for injuries to servicement where the injuries arise out of or are in the course of activity incident to service |
| public duty doctrine | the government generally will not be liable for failure to act when that failure breaches a duty to the public -exceptions: special relationships, new york test |
| nonfeasance | omitting to act , generally only implicates duty of reasonable care with special relationships |
| special relationships | - common carrier/passenger -innkeeper/guests -business or possessor of land/those on land -employer/employee -school/students -landlord/tenants -custodian/those in custody |
| misfeasance | negligence in doing something active. typically carries a duty of reasonable care with the affirmative action |
| elements of NIED | 1. negligent conduct places another in danger of immediate bodily harm 2. emotional harm results from the danger |
| impact rule | physical impact, even if there was no physical injury, was required (old rule) |
| zone of danger test | the plaintiff within the zone of danger is subjected to emotional harm by the conduct of the defendant - in zone of danger = can recover for fright |
| bystander nied claim | plaintiff must prove: - he is a reasonably foreseeable victime (family relationship) - he was within the zone of danger - contemporaneous perception of the event |
| physical manifestation rule | the emotional injury must manifest itself into a physical injury - abolished by Restatement |
| loss of consortium | if one member of a relationship is tortiously injured, the noninjuerd party can recover for damage to their relational interest |
| strict liability | liability without proof of fault |
| vicarious liability/respondeat superior | imposed on a defendant so they are responsible for the tortious act of another person |
| borrowed servant doctrine | when there is one employee being borrowed, the first employer is presumptively vicariously liable for the torts of the borrowed servant |
| scope of employment | conduct falls within scope of employment if the conduct either: - is required by or incidental to the employee's duties, or - it is reasonably foreseeable in light of the employer's business |
| going and coming rule | an employee going to and from work is considered outside the scope of employment so that the employer is not liable for his torts |
| exceptions to going and coming rule | - on call - employer requires employee to drive his personal car - job-related errands during the commute - commute serves a dual purpose for employer and employee |
| vacarious liability for independent contractors | an employer is generally not vicariously liable for the torts of an independent contractor |
| exceptions for independent contractor vicarious liability | - landowner has control of the manner and means of doing the work - landowner engages an incompetent contractor - the contracted-for activity is inherently dangerous |
| strict liability for animals | if your livestock goes onto someone else's land and does harm, you are responsible for that harm |
| strict liability for abnormally dangerous activity | one who carries out abnormally dangerous activity is liable to harm, but the liability is limited to the kind of harm which makes the activity abnormally dangerous |
| steps for determining if an activity is abnormally dangerous | 1. the activity must create a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors 2. the activity is not one of common usage |
| defenses to strict liability | assumption of risk, comparative responsibility |
| privity rule | the manufacturer can only be liable to buyers who are in privity of the contract. if there was a middleman involved, the manufacturer canno tbe liable |
| manufacturing defects | something that is manufactured incorrectly, making it dangerous |
| design defects | something that is designed to be unreasonably dangerous |
| information/warning defects | the product is defective because of a failure to warn |
| products liability for food items | a harm causing ingredient in a food product is a defect if a reasonable consumer would not expect the food product to contain that ingredient |
| unreasonable danger (2d Restatement) | whether the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with ordinary knowledge common to the community as to its characteristics |
| crashworthiness doctrine | manufacturers are liable for harms cauesd by defective products that are put to "foreseeable uses", even if the uses were unintended by the manufacturer |
| consumer expectation test | a product will be found unreasonably dangerous if it is dangerous to an extent beyond the expectations of an ordinary consumer when used in an intended or reasonably foreseeable manner |
| defective design elements | 1. it is more dangerous than an ordinary consumer would expect when used in an intended manner (consumer expectation test) 2. the benefits of the challenged design do not outweigh the risk inherent in such design |
| reasonable alternative design test | a product is defective in design when the seller could ahve reduced the foreseeable risk of harm by the adoption of an alternative design, and omitting the alternative makes the product unsafe |
| warning defectiveness | a product is defective when foreseeable risks of harm could have been reduced or avoided by the inclusion of a warning, and omission of a warning makes the product unsaffe |
| learned intermediary rule | a manufacturer can provide warnings to a "middle man" instead of directly to a consumer if the manufacturer can rely on that middle man |
| post-sale warnings | a seller or distributor is required to give a post-sale warning when a reasonable person would do so |
| adequacy of warnings | explicitness, comprehensibility, clarity, conspicuousness, means to warn |
| comparative fault and strict liability | the plaintiff's own negligence is a defense that can reduce recovery, and assumption of risk is not a complete defense to strict liability |
| misuse | whether the plaintiff's use of the product was foreseeable or not - not an affirmative defense |
Created by:
nitsakehoe