Torts Flashcards
(1) BATTERY
- Definition
- Intent
- Instrumentality
- Damages
Battery is the intentional harmful or offensive touching of another without consent or legal privilege
Intent requires only a volitional act performed with knowledge that there is substantial certainty that the result will follow
Instrumentality- the element of touching can be satisfied by items so connected w/ the body as to be regarded as part of the person
Damages- presumed and actual
Transferred Intent
Permits plaintiff to prove intent by proving that defendant intended to commit any of the 5 intentional torts.
Applicable Torts:
- battery,
- assault,
- false imprisonment,
- trespass to land,
- trespass to chattels
Shopkeepers Privilege
- SHOPKEEPER’S PRIVILEGE: 3 R’s. A shopkeeper has the privilege to detain a person whom he
- REASONABLY believes to have unlawfully
taken a chattel for a
- REASONABLE period of time to conduct a
- REASONABLE investigation.
Assault
The intentional placing of another in reasonable apprehension of an imminent harmful or offensive touching without consent or legal privilege.
(a) Plaintiff must be aware.
(b) Plaintiff must prove actual or apparent
ability to commit a battery.
(c) Future acts are not enough.
(d) Words or threats are generally not
enough.
(e) Mere preparation is not enough.
Damages. damages are presumed.
False Imprisonment
the intentional restraint of another
through force or fear that confines the person to a bounded area without consent or legal privilege.
(a) Initial voluntary restraining may
change.
(b) Awareness of restraint required.
(i) Split some jurisdictions,
awareness is not required
where there is physical harm.
(c) Moral persuasion is not enough to
constitute force or threat of force.
(d) Conviction of a crime for which
one is arrested is a complete
defense to false imprisonment.
ESCAPE.
Duty to provide means of escape - False imprisonment may occur where a person, who has a duty to do so, does not provide a means of escape.
- Means of escape must be reasonable.
- Reasonable means of escape defeats the
element of confinement unless plaintiff
does not know it.
- Escape is unreasonable if it involves
exposure of the person to material harm
or danger
Intentional Infliction of Emotional Distress
Where a person’s conduct is so extreme and outrageous to be the substantial cause of severe emotional distress.
- SPECIFIC INTENT. In order to recover for
IIED, plaintiff must show either intent to
cause severe emotional distress, or - GENERAL INTENT: that defendants knew
that the severe emotional distress was
substantially certain to be caused by their
conduct, - OBJECTIVE STANDARD applied to
determine reasonable person. - Common carriers (busses, cabs,etc) and
innkeepers - higher duty. - DAMAGES - Actual damages apply
Trespass to Land
The intentional entry upon the property in the possession of another without consent or legal privilege.
- POSSESSION - right belongs to possessor of the land. Does not have to be the owner.
- DAMAGES - Damages are presumed.
- MISTAKE NO DEFENSE.
- INSTRUMENTALITY - Entry may be made
by causing an object to enter the land. - AIR ABOVE/SOIL BELOW - property
extends to the air above and the soil
below. - CONSENT EXCEEDED OR WITHDRAWN - a
privileged entry may be limited by time,
space and purpose.
Trespass to Chattels
The intentional damage to or interference with personal property in the possession of another without consent or legal privilege.
- DAMAGES MUST BE PROVED. requires
some type of harm to the chattel unless
possessor was disposed of the property. - INTERFERENCE. Interference with
business may satisfy element of damages.
Conversion
The intentional exercise of dominion or control over the property in the possession of another so as to require its forced sale.
REMEDY: FORCED SALE.
STANDING: POSSESSOR - Anyone in possession.
- Property can be converted from
converter.
DAMAGES - the value of the property at the location and time of conversion.
Fair Market Value.
Privileges - Consent
Consent is a defense to the intentional torts.
1. May be EXPRESS or IMPLIED CONSENT.
2. SCOPE OF CONSENT. A person may impliedly consent to conduct to certain conduct but conduct outside of that may exceed consent.
3. CONSENT MUST BE VOLUNTARY. In order for consent to be a defense, it must be voluntary.
- Full disclosure of all facts is required.
- Consent obtained by fraud is not a
valid consent.
4. ILLEGAL ACTIVITY: Split. Some
jurisdictions say consent can exist in
illegal activities, some not.
Self Defense
Anyone is privileged to use reasonable force to defend himself against a battery on the part of another.
a) When the battery (threat) is no longer
threatened, the privilege terminates
2. RETALIATION. terminates self-defense
privilege.
3. REASONABLE BELIEF
- The privilege exists when the
defendant reasonably believes that
the force is necessary to protect, even
though there is IN FACT no necessity.
4. PROVOCATION - does not justify the
exercise of self defense.
5. AMOUNT OF FORCE. The force must be
reasonable.
6. USE OF DEADLY FORCE - Defendant
must have a reasonable apprehension
of loss of life or great bodily injury.
7. INJURY TO THIRD PARTY. The privilege
of self-defense is carried over.
Defense of Others
STANDS IN THEIR SHOES. one who intervenes to help a stranger stands in the shoes of the stranger.
- if the person aided is the one at fault,
then the intervener is not justified and
is liable for his actions.
MISTAKE–SPLIT: Some jurisdictions hold that the defendant is privileged to use reasonable force to defend another even if he is mistaken, so long as his mistake was reasonable.
Recovery of Property
FRESH PURSUIT. A party can use reasonable force to recover chattel immediately after it is taken. Otherwise, owner must resort to the law.
LIMITED TO REASONABLE FORCE. The privilege is limited to force reasonable under the circumstances.
- Not reasonable to inflict serious
bodily harm to protect
a property interest.
Necessity - Public
PUBLIC NECESSITY - NO RECOVERY. Generally in the absence of legislation providing for compensation, property destroyed by an act of public necessity by a governmental entity have no right to compensation.
Negligence
Negligence is the failure to use reasonable care to prevent harm to oneself or to others.
2. Duty
3. Breach of Duty
4. Causation
5. Damage
Duty
Duty is a question of law for the court to determine.
Breach of Duty Standard of Care
OBJECTIVE STANDARD - The “reasonable prudent person test” is: what a reasonably prudent person would do under the same and similar circumstances under an objective standard.
Breach of Duty - CUSTOM AND PRACTICE
Custom and practice may be proved to show whether someone fell below the “reasonable, prudent person” standard
Breach of Duty - Standard of Care - Professional
The standard of care is the conduct that the ordinary member of the profession would do under same or similar circumstances.
- SPECIALIST - will be held to a standard higher than that required of a general practitioner.
- EXPERT WITNESS - Expert testimony usually required to establish the reasonable care standard.
- LOCALITY STANDARD - Generally, the standard of care in professional negligence is the standard of conduct expected of other members of the profession in the same locality or community.
- NATIONAL STANDARD - For board certified professionals that are nationally certified is a national standard.
Breach of Duty - Informed Consent
Determined by what the courts consider the reasonably prudent patient would want to know about the nature, consequences, risks and alternatives to treatment.
- Completely unauthorized treatment
- No Consent = BATTERY
- If physician obtains consent but breaches
the duty to inform, the patient has a cause
for negligence,
- regardless of the due care exercised,
provided there is an injury.
Aggravated Negligence
The care required by the standard of reasonable person will vary according to the risk. As the danger increases, so does the degree of care to be exercised.
Negligence Per Se
A statute can be used to establish what a reasonable person would do and a violation of the statute can be used to establish breach of the standard of care.
b) “PROTECT AND PREVENT - must determine that:
(1) the party seeking to prove the
violation is a member of the class of
persons the statute was designed to
protect;
(2) the harm that occurred was one the
statute was intended to prevent.
Negligence Per Se - Violation Excused
A violation of a law is excused if one of the following is true:
(1) The violation was reasonable if they
can specify type of “incapacity”; or
(2) Despite using reasonable care, the
violator not able to obey the law; or
(3) if violator faced an emergency that was
not caused by his own misconduct; or
(4) Obeying the law would have involved a
greater risk of harm or
(5) Other reason excusing or justifying
noncompliance.
Negligence - Circumstantial Evidence - Constructive Notice
It means the defendant knew or should have known that the harm was there, shown through circumstantial evidence.
Negligence - Circumstantial Evidence - Actual Notice
Constructive notice does not need to be proven when the defendant created the dangerous condition.
The basic notice requirement allows the shopkeeper a reasonable time, under the circumstances, to discover and either warn of or correct the condition, unless it is caused or created by the shopkeeper. Then, notice is ACTUAL.
Res Ipsa Loquitor
An event that ordinarily would not have occurred in the absence of negligence. Plaintiff must prove:
1. Would not have happened unless
someone was negligent;
2. was caused by something that only
Defendant controlled; and
3. That Plaintiff’s voluntary actions did not
cause or contribute to the events
Causation In Fact - Sine Qua Non
- Negligence is not actionable unless it is
a cause in fact of the harm for which
recovery is sought. Negligence is a
cause in fact of the harm to another if
it was a substantial actor in bringing
about that harm. - Plaintiff must prove defendant acted
negligently and that defendant’s
negligence caused the injury. - If an event would have happened
anyway, there can be no causation. - If the risks associated with the
negligent act are not a cause of the
harm, the but-for test fails.
Causation in Fact
To recover in negligence plaintiffs must show that defendents conduct was both the actual and proximal cause of the result
Proof of Causation - Chain of Causation
The fact it might have happened anyway, even in the absence of negligence, is not enough to break the cause and effect sequence.
Proof of Causation - Speculation
SPECULATION is NOT PROOF: Plaintiff has the burden of proof on the issue to provide sufficient evidence the allegedly dangerous condition caused the accident. Mere speculation is not enough.
Proof of Causation - Burden of Proof
PREPONDERANCE OF EVIDENCE. In a negligence -cause of action, the burden of proof is on the plaintiff to prove the condition or element was more likely than not to have occurred.
Proof of Causation - Loss of Chance Theory
The loss of a substantial chance of a better medical outcome can be a cognizable injury.
Proof of Causation - Scientific Proof
The Kelly/Frye test holds that scientific evidence may not be admitted unless the proponent can prove the scientific principles are “generally accepted” as reliable in the relevant scientific community.
Negligence - Concurrent Causes
Summers v. Tice.
- When separate acts of negligence
combine to produce a single injury, each
tortfeasor is liable for the full amount of
plaintiff’s damages even though neither
alone would have caused the injury.
- Plaintiff will be made whole, and the
defendants can litigate between
themselves how damages should be
apportioned or paid.
Negligence - Market Share Approach
Where plaintiff has joined defendants representing a “substantial share” of the market, the burden shifts to each defendant to prove it did not make the product that caused plaintiffs harm. or they will be liable for the share of plaintiff’s damages that approximate the defendant’s share of the market.
Proximate/Legal Cause
PALSGRAF: Cardozo
A legal doctrine based on public policy which cuts off liability because it is not fair, even though the harm was actually caused by defendant’s wrongful conduct.
Intervening Causes
An independent intervening cause breaks the chain of causation.
a) The acts of a third party that
intervenes between the defendant’s
negligent conduct and the plaintiff’s
injury will interrupt causation if the
conduct is EXTRAORDINARY,
UNFORSEEABLE and INDEPENDENT,
but not if a natural consequence
created by the negligent conduct.
Intervening Causes- Intentional or Criminal Acts
Generally, an intentional or criminal act of a third party will break the chain of causation cuts off liability of defendant’s negligence.
Intervening Causes - Suicide
Generally, suicide will break the chain of causation unless the suicide is not intentional, i.e., an irresistible impulse brought about by organic brain damage. (Split)
Intervening Causes - Rescuer Doctrine
(Danger Invites Rescue)
The original tortfeasor is liable for injury suffered rescuer of another from the tortfeasor’s negligent conduct.
The following 4 elements must be established:
1) defendant was negligent to the person
being rescued;
2) the peril or appearance of peril was
imminent;
3) a reasonable person would conclude
that a peril existed
4) the rescuer acted with reasonable care.
Proximate Cause - Public Policy - Social Host
Traditionally, The common law view has always been that voluntary intoxication is the “sole” proximate cause of the harm rather than the social hosts’ serving of the alcohol
Modernly,” Dram Shop Acts” statutorily limit liability for serving alcohol to intoxicated persons.
Proximate Cause - Shifting Responsibility
When a risk is negligently created, the failure of a 3rd person to intervene, will not affect the liability of the original actor even if 3rd party owed the plaintiff a duty to act.
Liability of Joint Tortfeasors - Joint and Several Liability
Each of several tortfeasors can be sued jointly for the full amount of Plaintiff’s damages.
Tortfeasors who engage in a concerted action that injures a plaintiff are jointly and severally liable to the plaintiff.
Comparative Negligence - 3 Types
(1) Modified comparative negligence
(2) Pure comparative negligence
(3) California’s Prop. 51
Liability of Joint Tortfeasors - Comparative Negligence Jurisdiction
In a pure comparative negligence jurisdiction, a plaintiff may only collect damages from each responsible party equal to each defendant’s assigned percentage of the total fault.
One Satisfaction Rule
A plaintiff may obtain a judgment against more than one defendant, however, plaintiff may only collect one full satisfaction of the judgment.
Corollary to the Rule: any partial satisfaction must be credited to the other parties who are liable.
CONTRIBUTION AND INDEMNITY
Any joint tortfeasor, who pays more than their fair share, may seek contribution from any other joint tortfeasor even if the plaintiff did not sue them and may bring them into the litigation by way of a cross complaint or file a separate action against them.
THE RELEASE OF ONE JOINT TORTFEASOR
The common law rule is that the release one joint tortfeasor operates to release all joint tortfeasors.
THE FAMILY IMMUNITY DOCTRINE
A joint tortfeasor cannot collect contribution from an immune tortfeasor.
THE GOOD FAITH SETTLEMENT RULE
A defendant who settles with a plaintiff in good faith is exempt from a contribution claim of a non-settling defendant, but the non-settling defendant is entitled to a set off.
