Flashcards in Concord Rule Statements Deck (90):
Defendant engaged in voluntary conduct done with intent to touch the plaintiff, and caused a harmful or offensive contact
Intentional act that creates the apprehension of an immediate battery
Is Contact required for assault?
No, but plaintiff must be aware of the defendant's act
What must the defendant have in order to carry out an assault?
The ability and opportunity to immediately carry out the threat
Volitional act done with intent to confine tat results in the plaintiff being confined to a bounded area
Trespass to land:
Voluntary entry onto plaintiff's land, committed with intent to enter the land of another
Trespass to chattels:
Volitional act with intent to do the act that causes interference with plaintiff's chattel
How is conversion different from trespass to chattels?
In Conversion, the interference substantially affects the value of the chattel, so the plaintiff is entitled to the full value
IIED vs NIED:
In NIED, the defendant causes the distress without intending to do so
What are defenses to intentional torts?
- Self defense
- defense of others
- defense of property
- recapture of chattels
- shopkeeper's privilege
- private necessity
- public necessity
What is the mnemonic to help remember defenses to intentional torts?
SHOPKEEPERS ARREST & DISCIPLINE NECESSary Delinquents in order to RECAPTURE Control
Express or implied willingness to be subjected to otherwise tortious conduct
Examples of plaintiffs that are incapable of consenting?
Statutory Rape situation, unconscious or delirious people, anyone induced to consent by fraud or duress
Person can use reasonable force if he reasonably believes it is necessary to prevent immediate harm
Defense of others:
Person can use reasonable force to defend a third-party from attack
What are the two views for defense of others?
A. Majority view: not liable if reasonably and honestly believed he was helping the victim
B. Minority view: step into the shoes of the third-party, so can only use the amount of force the could have used
Recapture of chattels:
Property Owners have a limited privilege to retake stolen property, and can use reasonable force to do so
A Parent, or one standing in loco parentis, is privileged to use reasonable force for discipline and control
Does discipline extend to teachers?
Yes, But excessive force is an assault or criminal act
Arrest as a defense:
- Law-enforcement can arrest a person if they have probable cause to believe he has committed a crime
- citizens can arrest to prevent a felony committed in their presence
What are the elements of negligence?
Duty, standard of care, breach, actual cause, proximate cause, damages
What is the general duty of care for negligence?
Legal obligation to conform to a standard of care to protect others from harm
What is the special duty of care for common carriers?
Must use the upmost care and diligence to protect customers from harm
What is The special duty owed from landowners to trespassing children?
If the landowner should anticipate kids being at the place of danger, and he knows/should know of the condition, and the child doesn't or can't appreciate the danger, and the risk to the child is greater than the utility of the condition, there is liability
Special duty owed by healthcare providers?
Must Act with skill and learning of similarly situated providers in the community
Failure to act, passive failure to take steps to protect others from injury
What is the general rule for nonfeasance as a basis for liability?
It isn't a basis for liability (generally)
What is breach of duty?
Failure to act to reasonably protect the plaintiff from foreseeable harm
What The ways to get a breach of duty?
- Violate a statute
- Learned hand formula
- res Ipsa Loquitur
How can violation of a statute be a breach of duty?
Statutes establish the standard of care for all reasonable people, so as long as the plaintiff is in the class meant to be protected by the statute, and the harm came from violating the statute, the violation shows a breach
What is the learned hand formula?
The burden on the defendant to avoid the risk of harm is less then the gravity of the potential harm times the probability that harm will occur
What is Res Ipsa Loquitur?
Allows negligence to be found even when there's no direct proof of it, so long as plaintiff can show the instrumentality causing the harm was under the control of D, the harm wouldn't ordinarily have occurred without negligence, and the harm was not caused by the P
What Is required for causation for negligence?
That the defendant was the actual and proximate cause of the plaintiff's injuries
What are The two tests for actual cause?
- But-for test
- substantial factor test
What is The but-for test of causation for negligence?
But For the defendant's act or omission, plaintiff would not have been injured
What is a substantial factor test for negligence causation?
If Two or more causes led to an injury, defendant's act is the actual cause if the act was a material and substantial factor in bringing about the event
What kind of liability is held against co-acting defendants?
Joint And several liability
What is proximate cause?
Liability for harms that were reasonably foreseeable
What is the unforeseeable plaintiff limitation for proximate cause?
Palsgraf situation where liability is limited to harm to people that could reasonably have been foreseen by the defendant, or those in the zone of danger created by D's acts
How do Intervening act relate to proximate cause?
A negligent defendant is liable for any harm that comes from an unbroken sequence following his act, as long as there isn't an intervening act. Foreseeable intervening acts don't break the chain, but unforeseeable ones do
What is the thin skull plaintiff doctrine?
Take the victim as you find him, so the type of injury suffered by the plaintiff doesn't have to be foreseeable
Defenses to negligence?
- contributory negligence
- last clear chance
- comparative negligence
- assumption of the risk
What is contributory negligence?
Any negligence by the plaintiff, no matter how slight, bars recovery
What is last clear chance?
Plaintiff can recover despite contributory negligence if he can show defendant had the last clear chance to avoid injuring him
comparative negligence involves what two categories?
Pure and partial
What is pure comparative negligence?
P's recovery is reduced by his negligence, and it doesn't matter how much he is at fault
What is partial comparative negligence?
If the plaintiff's fault is more than the D's, plaintiff is barred from recovery
What is assumption of the risk?
When plaintiff knowingly put himself in a position that he is likely to be injured, he assumes the risk
What is strict liability?
Liability is imposed without the requirement of showing an intent to interfere with the plaintiff or the breach of the duty, plaintiff only has to show injury was proximately caused by certain activities
What are the activities that strict liability applies to?
Possession of animals, abnormally dangerous activities, strict product liability/strict liability in tort
How is Strict liability imposed for the possession of animals?
Imposed on owners of wild animals or Vicious domestic animals which the owner knows are vicious
How does Strict liability relate to abnormally dangerous activities?
Activities that involve a high degree of risk of serious injury to persons or property have a strict liability label
What are some examples of abnormally dangerous activities?
Using dynamite, rocket testing, maintaining nuclear reactors, cropdusting
What does strict liability in tort mean?
Those in the chain of production of defective products, which are unreasonably dangerous, are liable to the consumer for damages caused by the product
What is another name for strict liability in tort?
Strict product liability
What is the difference between strict liability and strict liability in tort?
Strict liability is for wild animals and abnormally dangerous activities, strict liability in tort is for defective product liability
What are the elements of a strict liability claim?
- proper plaintiff
- proper defendant
- causation: actual and proximate
In order to be a proper plaintiff in a strict liability suit, do you have to be in privity with the manufacture?
No, because the seller or manufacture have a duty to inspect and warn potential plaintiffs
Who is the proper defendant in a strict liability claim?
Those in the chain of production, including many factors, designers, wholesalers, retailers, etc.
What is required to prove defect for strict liability?
A. Types of defects
B. Manner of proof
What are the types of defects that apply to strict liability?
Design, failure to warn, manufacturing, inadequate testing, inadequate inspection, breach of warranty, defective products
What is the manner of proof required for strict liability?
Plaintiff must show the product was the cause of the injury, that it was defective, and that the defect was present when It left the defendant's control
What is breach of warranty?
UCC: express and implied warranties are allotted to the benefit of the buyer, his family, and household members
The two types of breach of warranty?
Express and implied
What is an express warranty?
The seller makes a material representation about product's safety, durability, or performance
What is implied warranty?
UCC: when the seller impliedly warrants that the product sold is fit for the ordinary purpose it is made for
What torts are included in defamation?
Slander and libel
What is a defamatory statement?
Statement that causes the plaintiff to be ridiculed or scorned and concerns the plaintiff
What is publication for defamation?
Statement must be communicated to someone other than the plaintiff
What is libel?
Defamation written or printed words, and is more serious than slander because it is more permanent
What is slander?
Defamation and spoken form that isn't permanently preserved
What was decided in New York Times v Sullivan?
Public official can't recover for defamation unless they can show the statement was made with actual malice
What is New York Times malice?
Knowledge the statement was false, or reckless disregard about its falsity
What was decided in Gertz v Welch?
Private people engaged in private controversies don't have to prove actual malice to recover for defamation
What are the four categories of Invasion of privacy?
Intrusion into seclusion, misappropriation, public disclosure, false light
What is intrusion into seclusion?
Intentional intrusion on the solitude or seclusion of someone or their private affairs/concerns, and goes into their zone of privacy
What is misappropriation/appropriation?
Appropriating the likeness or name of another for your own use or benefit
What is public disclosure?
Publication of private facts that are highly offensive to a reasonable person and are not a legitimate public interest
What is false light?
Publicizing false facts that a reasonable person would object to and the publication must be to a substantial number of people
What is interference with contract?
Intentionally inducing a third-party to break a contract with the plaintiff
What are the two categories of misrepresentation?
Deceit and negligent misrepresentation
What is deceit?
A material misrepresentation that defendant knew was false and was intended to induce reliance, and plaintiff justifiably relied on it, and the plaintiff was damaged
What is negligent misrepresentation?
When a defendant in the course of his trade or profession negligently provides information to the plaintiff who relies on the information and suffers a detriment as a result. Defendant must know the information will be used for business purposes and the person relying will be injured if the statement is false
What are the two types of nuisance question
Public and private
What are the two types of damages available for strict liability?
Compensatory and punitive
What are compensatory damages?
Those given as compensation, indemnity, restitution for harm suffered. Can be either pecuniary or Nonpecuniary
What are punitive damages?
Given when a tort is committed with malice and are meant to punish and deter egregious conduct
What is vicarious liability?
When defendant is jointly liable for the actions of another
When is vicarious liability most often seen in tort?
Respondeat superior situations