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Torts
Intentional torts and negligence
| Term | Definition |
|---|---|
| Discipline | A parent or teacher may use reasonable force in disciplining children, taking into account the age and sex of the child and the seriousness of the behavior |
| Shopkeepers Privilege | 1)Have to be a merchant 2) Reasonable suspicion 3)Reasonable force 4) for sole purpose to investigate 5) Reasonable manner |
| Necessity | Public Necessity: to avoid imminent disasters gives privilege to trespass, convert, etc. Private necessity: To protect anyone from serious harm of anyone's property from serious damage. Gives privilege of reasonable force to trespass, convert, etc. |
| Authority of law | Certain law professionals (police, military, etc.) have privilege. |
| Consent | Negates existence of intentional tort. |
| Defense of Property (Real or Chattel) | 1) Force has to be reasonable short of force calculated likely to cause serious bodily harm; 2) Must have exclusive right of possession |
| Duty of an owner | To not willfully or intentionally injure a trespasser by means of force that either takes life or inflicts great bodily harm. Exception: If the trespasser is committing a felony of violence or a felony punishable by death. |
| Defense of Others | Some jurisdictions hold that |
| Recovery of Chattel | Can use reasonable force to retake one's chattel where taken by fraud or force. 1) taken by fraud or force; 2) Prompt discovery; 3) Prompt and persistent efforts; 4) Reasonable force short of that likely to cause serious bodily harm or injury |
| Trespass to land | 1) Conduct; 2) intended to cause and causing; 3) entry on land of another; 4) w/o consent or privilege. Need damages, but damage is presumed and can be nominal. |
| Red Heart Test White Heart Test | Red: Look at person in actual circumstances White: Look at mythical person in a set of similar facts. Reasonable person test. |
| Conversion | 1) Act by D interfering w/ P's right of possession of the chattel that is serious enough to warrant D paying for chattel; 2) Intent to perform the act bringing about interference; 3) Causation. |
| False imprisonment | 1) Conduct; 2) intended to cause and causing; 3) confinement; 4) w/o consent or privilege. |
| Assault | 1) Conduct; 2) Intended to cause and causing; 3) reasonable apprehension of an imminent batter; 4) w/o consent or privilege |
| battery | 1) conduct; 2) intended to cause and causing; 3) harmful or offensive touching; 4) w/o consent or privilege |
| Professional Standard of Care | A person who has special skills or is a professional is required to possess and exercise the knowledge and skills of a member of the profession or occupation in good standing in similar communities. |
| Exceptions to need to disclose | 1) If pt already knows the risks associated w/ procedure; 2) if disclosing would be harmful to health; 3) Emergency |
| Negligence | 1) Duty; 2) Breach; 3) Causation; 4) Damages |
| Informed Consent | A doctor proposing a course of treatment has a duty to provide the patient w/ enough information about the risks. If an undisclosed risks was serious enough that a reasonable person in the pts position would have w/held consent to the treatment, Dr. bre |
| Third party recovery for intentional infliction of emotional distress | 1) Close relative of a primary victim; 2) Present at the scene of the outrageous conduct against the victim; 3) The defendant knows the close relative is present. |
| Intent | 1) Purpose: Causing required consequences; 2) Knowledge of substantial certainty: Knowing the consequences will result; 3) Transferred intent |
| Things that are not excuses for intent | Age and mental disability Mistake of fact: Purpose to do wrong, MOF is irrelevant. |
| Intentional infliction of emotional distress | 1) Extreme and outrageous conduct; 2) intended to cause or causing; 3) severe emotional distress; 4) w/o consent or privilege. |
| Trespass to chattel | 1) conduct; 2) intended to cause or causing interference w/; 3) personal property possessed by another; 4) w/o consent or privilege. Need actual damages |
| Transferred intent | 1) Intend a forcible tort; 2) forcible tort resulted; 3) Direct; 4) immediate |
| Ejection Acquired Title Nuisance | Ejection: A person comes on your land, declares it their own, and tries to possess it. Acquired Title: Dispute over ownership and one party seeks to take possession of land. Ownership is presumed. Nuisance: Loss of enjoyment or use of land. |
| Holy Trinity of Fault | 1) Fault; 2) Ability to pay; 3) Damages. Need all the recover. |
| Vicarious liability | Holding an employer liable for acts of an employee. Act must be in the scope of employment. |
| Standard of Care in Emergency Situation | The existence of an emergency situation, presenting little time for reflection, may be considered as among the circumstances under which the defendant acted. Must act as the reasonable person would under the same emergency. Emergency can't be D's making. |
| Contributory negligence | When P is more than 51% responsible for damages. P's conduct that is being measured against the standard of the reasonable person because the defendant has plead the affirmative defense. |
| Strict liability | 1)The activity is dangerous to matter how careful the defendant is and 2) the activity caused the damage. Person is liable for damage |
| Rescue doctrine | 1) D's negligence caused the peril or appearance of peril to the rescued person; 2) a reasonably prudent person would have concluded the peril; 3) Peril was imminent; 4) rescuer w. reasonable care |
| Learned hand standard of care | B<PL Probablility is P, the injury is L; and the burden B; liabilty dependes upon whether B is less than L multiplied by P 1) Probability the thing will happen; 2) the gravity of resulting injury; 3) the burden of adequate precautions. |
| Fry Test | Scientific evidence is admissible if it is based on generally accepted science and based on the scientific method. |
| Cause in Fact | Actual Cause Before D's conduct can be considered a proximate cause of P's injury it must first be an actual cause. |
| But For Test | Used to determine cause in fact. An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. |
| Proximate Cause | A cause in which in a natural and continuous sequence produces damage and w/o which the damage would not have occurred. D is liable for all harmful results that are the normal incidents of and w/in the increased risk caused by his acts. |
| Foreseeable harm | If a particular harmful result was at all foreseeable from D's negligent conduct, the unusual timing or manner in which the injury occurred is irrelevant to D's liability |
| Unforeseeable harm | If D's negligent conduct creates a risk but an entirely different and unforeseeable type of harmful result occurs most courts will hold D not liable. |
| Intervening Forces | A force that comes into play after D's negligent act. D's negligent act plus intervening force cause injury to P. Whether intervening force will cut off D's liability is determined by foreseeability. |
| Consequences Test | Favorable to P. |
| Res Ipsa Loquitur | An accident that would not usually happen, but for negligence. 1) D must be in exclusive control; 2) No fault on the part of P. Used when you don't know what caused the breach. Bridge from duty to liability. |
| Statutory Duty | What was the legislative intent? Is the violation of the statute the proximate cause? Was P part of the class of people that statute meant to protect? |
| Negligence Per Se | Negligence due to the violation of a law meant to protect the public. P need not prove that a reasonable person should have acted differently. The conduct is automatically considered negligent, and the focus is on whether it proximately caused harm to P. |
| shifting liability | Shift liability from D to intervening third party even if Ps harm was foreseeable result of Ds negligence. |
| Requirements for shifting liability | 1) Degree of Danger; 2) Liklihood of intervening 3rd party won't remove danger; 3) party's knowledge of danger; 4) time involved; 5) burden of D to take steps to make it safe after danger leaves their control; 6) Relationship between parties. |
| Intentional Malicious or criminal conduct | When a third party acts intentionally malicious or criminally it may lead the court to conclude no proximate cause even though P's consequences were foreseeable by D's conduct. |
| Multiple Defenses | P cannot prove which of several Ds caused P's harm. Shifts the burden of proving causation to Ds when: 1) Each of the Ds has been proven negligent and 2) All of those who could have caused the harm are Ds. |
| Substantial Factor Test | The "but for" test may not work when there are several causes for P's harm, any one of which was sufficient to cause harm. The negligence of D was a substantial factor in bringing about P's harm. |
| When to use Substantial Certainty test | 1) Greatly increased the chance of the harm occurring; 2) Is of a character naturally leading to such harm. |
| Andrew's View | Palsgraph case If D's conduct creates a foreseeable risk of harm to anyone then duty of reasonable care is owed to whomever is in fact injured by that conduct. |
| Cardoza View | Palsgraph If Ds conduct creates a foreseeable zone of danger and P is w/in that zone then there is a duty for D to protect P D owes a duty of reasonable care to those persons who might foreseeably be harmed. |
Created by:
501594139
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