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TortsChurch3

Definitions, Analysis, More Lists

QuestionAnswer
A conversion is committed whenever: P = possession C = chattel 1. P acquired in unauthorized manner 2. C removed from 1 place to another w/intent to exercise control over it 3. P transferred w/o authority 4. P withheld from owner 5. C is altered or destroyed 6. C is used improperly 7. ownership is asserted over
Defenses to intentional torts 1. consent 2. implied consent 3. duration of consent 4. necessity 5. self-defense 6. defense of third parties 7. true pivileges
requirements for consent 1. only applies to intentional torts 2. capacity to consent 3. communication of consent (can be implied) 4. consent can be terminated after a reasonable period of time
what are the true privileges? 1. discipline 2. shopkeeper's privilege and privilege to arrest 3. spousal immunity 4. parent-child immunity
implied consent 1. consent does not have to take any specific form 2. must only have sufficient evidence that consent was valid 3. consent is NOT a contract--can withdraw at any time w/o a breach
duration of consent 1. terminates after a reasonable passage of time 2. terminates even if there is no affirmative withdrawal of the consent 3. duress vitiates consent
"failure of consent" when consent is vitiated bc person would not have given consent if they knew of a risk that the other person had a duty to inform of
summary of self-defense 1. reasonably-perceived threat (certainty of loss of limb) 2. respond with reasonably necessary force (not necessarily equal; greater force if necessary) 3. duty to retreat
statute: shopkeeper's privilege 215
215 elements limits shopkeeper's privilege: 1. cannot arrest 2. cannot detain without questioning 3. cannot detain for more than 60 minutes, unless for reasonable cause 4. force used to detain must be reasonable
negligence elements, common law 1. duty 2. breach 3. causation a. actual (factual question) b. proximate (policy question) 4. injury
emergency doctrine if there's an emergency, a reasonable person may choose to act in a variety of ways
"intent" purpose or knowledge to a substantial certainty
"reasonable avenue of escape" doctrine no reasonable avenue, no FI -- crawling through a hole or jumping out window not reasonable avenue -- checking to see if door is unlocked, is reasonable
standard for children standard is another child of like age and development. exception, when child is engaged in adult activity, which is a high-risk one (e.g. driving a car)
standard for insane persons insane people are held to the standard of reasonably prudent SANE persons unless with a sudden episode of insanity (e.g. schizo), held to a standard of reasonably prudent INSANE person
custom, s vs. s Sword -- custom used by P to show that since D didn't adhere to custom, D was negligent (strong argument) Shield -- custom used by D to show that custom is to NOT take certain safety precaution (weak) --custom is relevant, but not dispositive
hand formula b < LP burden loss/injury probability of accident/loss LP=expected loss if B < LP should take precaution
negligence per se weight and admissibility admissibility: class of persons -- statute must be designed to protect the person injured by negli class of risk -- statute must be designed to protect against risk of injury neglected by D
res ipsa loquitur, general 1. the thing speaks for itself 2. if proven, get a jury instrution 3. allows an inference of negligence from fact of injury 4. trout in the milk
res ipsa loquitur, all 3 criteria N = negligence 1. injury is kind which ordinarily doesn't occur w/o N 2. evidence suff'ly eliminates other more probable causes/ injury, such as conduct/ P or 3rd party 3. N of D must fall w/in scope/ duty to P (e.g. D had exclusive control of thing that caused injury
substantial factor test or material element; designed for cases of 2 Ds where parties are each 50% of cause and trying to get over the hurdle, but test has expanded to 2+ parties, also summers v. tice -- 2 shoot one in eye, don't know which bullet
market share liability 1. from DES 2. each company determines % share of market, which becomes their share of risk (no singular risk w/asbestos -- not fungible -- diff %s of asbestos) 3. typically w/signature disease (DES and asbestos)
alternative liability when harm could've come from one of two factors (e.g. summers v. tice), but only came from one, the burden shifts to each D to prove he didn't cause the harm (too many asbestos manufacturers) few courts apply this
three different legal cause/prox cause broad principles 1. polemis approach -- actual cause is direct cause (too much liability--mother goose) 2. palsgraf approach -- foreseeability of P 3. wagon mound approach -- foreseeability of risk
foreseeability of P 1. does the D have a duty to THIS P 2. there is no duty owed in the absence of foreseeable particular injury to a particular P
intervening/superseding from Palsgraf 1. the more foreseeable the intervening cause, the more likely to be superseding 2. when the intervening cause is faulty or intentional, it is more likely to be superseding 3. the more odd the intervention, the more likely to be superseding
scope of duty analysis for test 1. mention ease of association, then start with foreseeability (without hindsight) a. class of persons b. class of risk 2. address intervening (and possibly superseding) causes 3. policy factors
ease of association invites an analysis of how closely related the negligence and injury are if an injury can be easily associated with the negligent act, it's within the scope of prox cause
wrongful birth parents' claim that they would have avoided/terminated the pregnancy because of the defect
wrongful life child's suit that if the parents had terminated the pregnancy, it would not have had the defect -- i'd been better off having not been born -- not recognized
wrongful pregnancy parents' claim with a healthy child, just wanting to not get pregnant. policy decision: better off having a child than not
professional rescuer pro rescuers may not recover for ordinary risks encountered in their jobs (gann v. matthews). dependent v. independent risks -- dependent arising from c&s of job; independent, either so extraordinary or so blameworthy
LaRS 9:2800.6 slip&fall stat: 1. conditions presented unreasonable risk of harm to claimant and ROH was reasonably foreseeable 2. merchant either created or had actual/constructive notice of condition, prior to occurrence, 3. merchant failed to exercise reasonable c
2800.1 A. consumption, not sale, is the prox cause; server, even if negligent, could not be liable for drinking B. immunity for licensed servers C. immunity for social hosts, similar to B
Clomon exception allowed to recover despite being a participant, and thus don't need special relationship (driver sues for distress caused by seeing himself run over child)
spoilation destruction of property of other evidence
subsequent injury 1. original N actor is liable for subsequent medical injury 2. intervening GROSS medical N may be superseding 3. different from 2nd accident injury: original injury is aggravated by another N act, original actor only responsible for damages he caused
who is responsible for negligent act of child if parents have shared custody of child? the parent they're with at the time, not who they're currently domiciled with
word to wise don't give Church %s with allocation questions
Assumption of the risk, types 1. Express (valid waiver cases) 2. Implied primary (obvious to all, well known, inherent risk; no duty/breach; sporting events) 3. Implied secondary (not obvious)
when are waivers null, as against public policy (PP) 1. can't waive reckless behavior 2. can't waive unbalance bargaining positions (adhesion, boilerplates) 3. exculpatory agreements in transactions affecting public interest (utilities)
modified hand formula B - BK < LP BK = burden of knowledge (so -inspection) B = annual inspection + tree removal 1. assume D knew of tree's condition; didn't matter if looked harmless 2. loescher v. parr
summary of negligence, SL, AL 1. negligence: unreasonable risk taking account of knowledge 2. SL: unreasonable risk; knowledge irrelevant; imputed knowledge 3. AL: liability w/o fault: imputed fault
turner standard parents responsible when child's action would have been tort, except for infirmity (young age); not actually how we do things
strict liability for curators of insane persons? no, straightforward negligence; 2319
key to 2321 ownership, for purpose of feeding strays and vets
absolute liability 1. inherently dangerous activity with both hi benefit + hi expected loss (ultraH) 2. only do activity when necessary 3. must be activity that even when conducted w/ greatest prudence and care, can still cause harm 5. if care eliminates risk, not ultraH
ultra-hazardous activities for AL blasting, pile driving, oyster beds
insulation by isolation far enough away that nobody's gonna touch it, like power lines
ultrahazardous balancing balance occurs at activity level, not precaution level
"coming to the nuisance" defense knew or should have known about the nuisance when moved there
going to and coming from rule if going to or coming from work, generally, this is NOT within C
a deviation from the agreed-upon path frolic and detour
informed consent 1. doctor has duty to inform about options, material risks 2. risk that a reasonable patient would consider important in decision matrix 3. not whether would've made a difference in opinion
architect defense state-of-the-art defense, applying best standards known at time (strong)
redhibition undoes contract, like annulment with marriage; still exists post-LPLA
manufacturer example Sears: (still considered a manufacturer) 1. hold products as own 2. set standards for design, etc. 3. have someone else make it
puffing "safest car on the road"; not considered "express warranty"
construction or composition, example exploding coke bottle case; SL; failure of product to live up to manufacturer's own specifications
design defect, example ford pinto, jetski; what alternative designs existed?; state of art defense
breach of warranty, explanation 1. more like a contract case (redhibition) 2. requires a relatively clear statement that a product is safe or has a certain function 3. failure to live up to warranty is breach
reasonably anticipated use is it reasonable that someone would put the product to the particular use; includes foresight of what stupid people will do
failure to warn, explanation only have to warn where benefit of warning outweighs the cost and when the warning would reduce the risk, i.e. hand formula
unreasonable per se lawn darts; maybe very useful, but, on balance, product (i.e. Halphen case -- asbestos) should've never been used; should've never been put on market PERIOD
alteration/modification, with LPLA 1. example, safety devices on power equipment: people taking them off 2. yes, reasonably anticipated 3. taking off a safety measure bc of OVERWHELMING evidence that consumer takes it off anyway -- not design defect
adequate warning can alter calculation of hand formula on design defect; cheap price of precaution in hand formula
survival 1. action of decedent that they would have had if living 2. if die immediately, no survival damages 3. if injured and survived 6mos, survival damages would the damages sustained during 6mos before dying
beneficiaries of survival action 1. surviving spouse and children 2. father and mother 3. bros and sisters 4. grandfathers and grandmothers 5. succession representative (S, not WD)
diff between WD & S survival -- action of decedent if he had survived wrongful death -- action of beneficiaries
prescriptive period, WD & S WD: 1 yr from death survival: 1 yr from injury, may expire during lifetime
discovery doctrine 1. most important branch of contra non valentum 2. prescription doesn't run against a party who is unable to act 3. when does prescriptive period begin? when you knew or should've known 4. doesn't commence bf all elements present to bring suit
recreational use immunity 1. only for undeveloped property 2. when you open up land for public recreation for FREE 3. when you start charging fees, gray area
3 ways to be employer for WC 1. payroll 2. borrowing 3. statutory
Created by: scottsmith81