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Torts
All Material
| Question | Answer |
|---|---|
| Strict Liability Torts | "no fault causes of action". Examples include products liability, animal attacks, abnormally dangerous activity like storing hazardous chemicals, etc. |
| Accidental Torts | When someone's carelessness or recklessness causes an injury. Examples of these torts include negligence and recklessness. |
| Intentional Torts | A civil wrong that occurs when someone intentionally harms another person. Examples include, battery, assault, etc. |
| Battery Elements | 1)Act-voluntary, 2)Touching (indirect/direct), 3)harmful OR offensive, 4)Intent (dual/single) |
| Rule for Harmful Act (Battery) | any physical impairment or condition of ones body or physical pain or illness. Usually based on objective evidence that you suffered harm (proof of bruises, cuts, burns, etc) |
| Offensive Contact (Battery) | Offensive contact offends a persons dignity. The contact offends your personal dignity and a reasonable person would also have to be offended by the same conduct; objective standard. (Two pieces, subjective and objective) |
| Substantial Certainty | Assumption of intent even if the actor did not intend the result, but knew with substantial certainty the effect would occur as a result of his action. |
| Single Intent | Just have to intend the touching. |
| Dual Intent | Have to intend the touching and that its harmful. |
| Test of Foreseeability | One is only liable for harm that was reasonably foreseeable at the time of the defendants misconduct. |
| Eggshell Skull Theory | Idea that the harm you caused you are liable for even if you could have never reasonably anticipated that the harm would happen. Ex; tapping someone on the head lightly and then having broken their skull bc it was made out of an egg shell; you are liable. |
| Indirect Contact | Touching through hitting someone's eye glasses, or something closely related/personal to another person. |
| Direct Contact | Touching the persons arm, leg, or body. |
| Battery defined | Designed to prevent unwanted physical contact; tort recognizes some level of autonomy over our own bodies. Protect bodily integrity. |
| Assault Elements | 1)Act-voluntary, 2)Intent-to cause apprehension of imminent harmful OR offensive contact OR substantial certainty that apprehension will occur, 3)anticipation OR apprehension-subjective and objective 4)imminent |
| Voluntary Act | An act done on purpose, hitting someone with a baseball bat for example. |
| Involuntary Act | An act done NOT on purpose, such as hitting someone due to body contractions in ones sleep. |
| Imminent | Reasonable person would find the act to be imminent; that they were in a situation where harm would happen to that person very , very, very soon! |
| Reasonable Apprehension (Assault) | Do not need to prove fear just that they were aware contact may occur. A victims reasonable belief that the act will lead to imminent harmful or offensive contact. |
| Transfer of Intent | holds a person liable for harming someone other than the intended victim when they attempt to commit a tort. |
| False Imprisonment Elements | 1)Intent-to confine, 2)Act-directly results in confinement of another, 3)Confinement-no reasonable means of escape, 4)Conscious--of confinement |
| Assault Defined | Protects peace of mind versus bodily harm. A direct threat or act that places the plaintiff in reasonable apprehension of imminent contact with his/her person. |
| Confinement (False Imprisonment) | Actual confinement with no reasonable means of escape. Example; in a gym and someone takes all of your clothes, dropped off in the woods and someone takes away your car, someone steals your car keys in a deserted area, etc. |
| Conscious (False Imprisonment) | If you are unconscious it does not count as False Imprisonment. Plaintiff must be conscious/aware of confinement by defendant. |
| Shopkeepers Privilege | a privilege exempts one from duty or liability, Creates a justification for retailers to detain a shopper under a reasonable manner and in a reasonable time if they have a good faith basis for suspecting them of stealing or committing a tort. |
| Trespass Elements | 1)Intent-intentional contact with another's property w/o owner permission (implied or expressed), 2)Entry--remaining on the land, failure to remove thing from land, enter land or cause a 3rd party to do so (setting force in motion) |
| Trespass Defined | Encompasses not only encroachments onto another's land but also coming into unpermitted contact w/ another's personal property. A person remains uninvited or unlawfully on property. Good faith is not a defense for this action. |
| Trespass to Chattels Elements | 1)Act, 2)Intent to interfere with a chattel in possession of another, 3)dispossession or intermeddling, 4)harm; liable for harm to property, and harm associated w/plaintiff being deprived of the chattel. |
| Trespass to Chattels Defined | Takes place in two forms; defendant actually asserts ownership/ takes away piece of personal property, or merely interfere with the plaintiffs use of the personal property; chattel must be impaired by its condition, quality, or value to obtain damages. |
| Chattel Defined | A piece of personal property belonging to someone. Ex; watch, shoes, car, etc. |
| Dispossession | Defendant actually asserts ownership/takes away the piece of personal property from another. |
| Intermeddling | Merely interfering with plaintiffs use of the personal property. Must have harm element. *Anything on an exam will be this form! |
| Conversion | Total loss of property through destruction or being w/o possession permanently. Defendant is liable for full value of item at deprecated value + interest unless plaintiff accepts its return. Conversion even if there's no intention for destroying property. |
| Pearson vs. Senator Dodds | Pearson made copies of Dodds filed but did not harm or destroy the property so court found no conversion. Must damage the property/destroy beyond repair. |
| Intentional Infliction of Emotional Distress (IIED) Elements | 1)Outrageous & Extreme Conduct, 2)Intent-defendants intention of causing reckless disregard of the probability of causing severe emotional distress, 3)Suffering is severe or extreme, 4)Actual Causation of the emotional distress by the outrageous conduct |
| IIED Defined | Protects ones right to be free from emotional distress caused by particularly reprehensible conduct. High standard for claim to be proven. Using medical/ expert proof + physical manifestations by plaintiff (insomnia, depression, etc.) |
| Outrageous & Extreme Conduct (IIED) | To be outrageous the conduct must be so extreme in degree as to go beyond all possible bounds of decent to be regarded as atrocious and utterly intolerable in a civilized community. |
| The plaintiffs suffering is severe or extreme emotional distress (IIED) | Timing - the severe emotional distress needs to happen right after the incident occurs or during it. Physical manifestations/ expert proof sometimes required to meet this element of IIED. |
| Actual Causation (IIED) | There must be a casual connection between the conduct and the injury the plaintiff is claiming arose out of the incident that occurred. |
| 4 Characteristics to support outrageous conduct for IIED claims: | 1)abuse of power situations, 2)take advantage of a particularly vulnerable plaintiff, 3)repeats and continues undesirable acts, 4)acts of physical violence or threats of violence |
| Only intentional tort where reckless behavior is allowed to cause distress: | This tort can be intended either directly or by acts that recklessly cause such distress. Ex; you get a bad text message at a friends house, get mad, and smash an urn with their mothers ashes in it. This is reckless behavior that also results in IIED. |
| Affirmative Defenses | burden of proof is on the defendant to show a preponderance of the evidence. Must be plead and proved otherwise it can be waived under FRCP. Evidence of these defenses may defeat a claim all together even if allegations in complaint are true. |
| Consent | Consent can be implied, expressed, or implied in law. |
| Scope of Consent | you only consent to what is within the scope of consent. Example; just bc you consented to have surgery on your right ear does not mean the doctor can then just operate on your left ear as well. |
| Expressed Consent | Expressed by the person. Example; "Yes, you may kiss me now" |
| Implied Consent | Based off conduct of person. For example; a person entering into a sports game. |
| Reasonable Belief Standard | the standard for both giving and withdrawing consent. Reasonable belief for plaintiff to engage in the conduct or make the contact |
| Implied in Law Consent | Customary -- examples include Halloween, and NYC subways. |
| STD Case Elements | 1)disparity of knowledge (one party knows and the other doesn't), 2)deceit (fraud or misrepresentation), 3) must relate to the nature or quality of physical being of another person |
| Self-Defense Defined | Allows a person to defend against acts that the defendant reasonably believes will cause bodily harm. Does not apply to retaliation or revenge for harm done. Can only be a response to an immediate harm/threat. |
| Proportionality Requirement | you can only use the amount of force necessary to avert the harm. Reasonable under the circumstances. |
| Retreat | You have an obligation to retreat if possible under the circumstances before using any force. |
| Castle Doctrine | Can use deadly force in your own home if there is an intruder. Property is sacred and highly regarded in tort law! |
| When is self-defense justified? | When deadly force is not used, retreat is unavailable, and danger is found to be genuine and the reasonable person would hold the same views! |
| Self-Defense of Others Elements | 1)Reasonable belief, 2) Reasonable force, 3)Threat of imminent harm. Can defend others w/reasonable force if reasonably believes there's an imminent threat/harm to them. |
| Contributory Negligence | When plaintiffs own negligence serves to relieve the defendant of liability for his unreasonable conduct which also contributed to causing the plaintiffs harm. Defendant has burden to prove plaintiff was some what negligent. Any P fault would bar recovery |
| Comparative Fault | Three variations. Shift from contributory negligence. 1)Pure Comparative Fault, 2)Modified 50%, 3)Modified 49%. More and more states shift to this fault defense versus using contributory negligence bc it allows for ability for easier recovery. |
| Pure Comparative Fault | A plaintiffs damages are reduced in proportion to the % negligence attributed to him. |
| Modified 50% Comparative Fault | Plaintiff may recover as long as his negligence is not greater than 50%. Must be not greater than defendants negligence to recover. Plaintiff can be at most 50% negligent to recover damages. |
| Modified 49% Comparative Fault | Plaintiff may recover as long as his negligence is less than 49%. Negligence of plaintiff must be less than that of the defendants. At most, plaintiff can be 49% negligent to recover damages. |
| Assumption of the Risk Defined | Three variations. A defense that a defendant can use to prevent plaintiff from recovering damages for injuries sustained while voluntarily assuming the risks associated with that activity. |
| Primary Assumption of the Risk | Any situation in which someone engages in a dangerous activity when they know that no one else is responsible for their safety. plaintiff is considered to have knowingly accepted the inherent risks of an activity, relieving the defendant of any duty |
| Secondary Implied Assumption of the Risk | Reasonable and Unreasonable. 1)Actual knowledge of the danger, 2)Appreciation of the gravity of the danger, 3)voluntary exposure to the danger |
| Reasonable Secondary Implied Assumption of the Risk | Not also contributory negligence bc they are still exercising reasonable care under the circumstances. Ex; saving child from burning house. |
| Unreasonable Secondary Implied Assumption of the Risk | Also contributory negligence. Is danger out of all proportion to the interest? Example; going into burning house to get your fav baseball hat. |
| Special Duty Rules Defined | Dichotomy between a persons acts and a persons omissions will create certain default positions on the issue of the existence of a duty. |
| Duty to Act (or maybe not!) | We do not always have a duty to act; situational and reasonable. |
| Rescue Doctrine | In general there is no duty to rescue rule in tort law. If an individual negligently creates the need for a rescue, then a duty to rescue may arise for that individual. |
| Malfeasance/Misfeasance | doing something wrong negligently. Creating a risk to others through your actions; requires you to use a duty of reasonable care to mitigate harms to others. |
| Nonfeasance | Not acting; failure to act. |
| Negligent Infliction of Emotional Distress | damages are limited by using a duty analysis. No duty to avoid inflicting emotional distress on bystanders. NIED is very fluid and rules vary by jurisdiction. 3 offshoot rules for NEID. |
| Impact Rule | something has to physically touch you to be able to recover for NEID. |
| Zone of Danger | may be able to recover as long as you are close enough to be placed at risk of physical injury or have a reasonable fear for your own safety. NEID. |
| Dillon Rule | Expands beyond the zone of danger rule to allow how close you have to be to the incident to change based on the situation. 1)bystander must be located near the scene, 2)must be direct emotional distress 3)closely related to victim 4)witness death or injur |
| When does strict liability apply? | When defendant is involved in non-reciprocal dangers and has chosen to be involved in an activity that creates unique and significant harms for others. Ex; transporting toxic chemicals |
| Three Categories of Strict Liability: | 1)animal attacks, 2)products liability, and 3)abnormally dangerous activity |
| Factors for Abnormally Dangerous Activity include: | existence of a high degree of risk of some harm to person, land or chattels; likelihood that the harm that results will be great; inability to eliminate the risks by the exercise of reasonable care; activity is very uncommon; etc. |
| Three ways Animal owners can be subject to Strict Liability: | 1)characterization of their animal as wild; 2)scienter action-- a particular domesticated animal has previously displayed to its owner character traits of a propensity for violence , 3)animal causes harm to victim on victims own property w/o consent |
| Negligence Elements | Duty, Breach, Causation (Actual Causation & Proximate Causation), Damages |
| Duty Definition | Standard of care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid to minimize the risks of harm to others. |
| Breach Definition | Learned Hand Formula (B<PxL), Negligence per se, Res Ipsa Loquitor, Reasonable person Standard |
| Negligence per se | Legal effect of a statutory violation in a negligence case. 1)defendant violation a statute that prohibited certain conduct, 2)statute was intended to protect against the harm for which recovery is sought, 3)victim harmed was part of the class of ppl |
| Res Ipsa Loquitor | allows court to infer defendants negligence based on the circumstances of an accident or injury even when there's no direct evidence of the defendants actions. Act would not ordinarily have happened w/o negligence. |
| Excuses | excused from liability for certain reasons. 1)incapacity, 2)confronted by an emergency not due to his own conduct, 3)compliance would involve a greater risk of harm to the actor or others |
| "But for Test" | Go to test for Actual Causation. But for the defendants negligence the act would/wouldn't have happened. |
| Actual Causation | Direct cause that led to an injury. But for test, and sometimes w/ multiple sufficient indep. causes the substantial factor test. |
| Proximate Causation | Go to test is foreseeability. The legal responsibility and foreseeability of the actions that led to an injury. |
| Foreseeability Test | Whether the harm was a reasonable consequence of the action. |
| Direct Cause Test | a direct connection between the negligent acts and the harm w/o too many intervening causes. Difficult w/multiple tortfeasors and is used in only a minority of jurisdiction! |
| Substantial Factor | whether the action was a substantial factor in causing the harm. |
| Superseding Causes | relives defendant of liability for damages; unrelated to defendants negligence. |
| Intervening Causes | After the defendants negligent act and helps cause or contribute the P's injury. Can still be held liable bc cause is foreseeable. |
| Multiple Sufficient Independent Causes | when each cause alone is enough to cause the damage and it is unknown which actor caused the actual damage. |
| Contributing Causes | when each cause alone is not enough to cause the damage, all contribute to damage and both but for sentences must be true. |
| Modified Alternative Liability | Use this doctrine when there are multiple manufacturers and it is unknown which manufacturer produced the defective product. Each is responsible for its % market share of the product. |
| Res Judicata | demands that in any suit the plaintiff seek recovery for all past, present, and future damages at once. |
| Apportionment | process of dividing responsibility for an injury or harm among multiple parties. |
| Alternative Liability | to apply this there must be more than one tortfeasor, all tortfeasors are engaged in similar conduct, plaintiff was injured, all parties named in the suit must be before the court in order to allow for burden shifting, |
| Joint Liability | any tortfeasor found to have been a cause of the plaintiffs harm could be liable to the plaintiff for all of the (harm) compensable damages. |
| Several Liability | multiple tortfeasors but only responsible for the % damage they caused and not the other parties damages if they cannot pay. |
| Vicarious Liability | doctrine that imposes liability on a person for being in a special relationship w/them. (Employer/employee). "guilt by association" |
| Respondent Superior | "let the master pay". When an employer is liable for the actions/harms of the employee |
| Frolic | employer is not liable for actions of employee; not within scope of employment. |
| Detour | employer is responsible for employees actions and it is within the scope of their employment |
| Indemnification | claim employer can bring against an employee to seek full reimbursement for all damages paid by virtue of the tort caused by another for whom the vicariousily liable actor was held responsible. |
| Direct Liability | employer have their own duty to supervise their employees for the protection of third parties. Breaching imposes a duty of care imposes direct liability on the employer based upon its own fault and is district from various liability concepts. |
| Concert of Action | Creates joint liability for everyone involved; common plain to commit a tort and lend substantial aid or encouragement. 5 factors that can be relevant to whether the defendant substantially assisted the wrongdoer. |
| Damages | something plaintiff seeks in order to correct an injury/harm or wrongdoing, usually in the form of $ |
| Actual Damages | Also referred to compensatory damages. Divided into economic and non-economic damages. Compensating victim for harm that has been suffered in the past to "make the victim whole" again |
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kfott783
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