Tort Law Flashcards
(69 cards)
Tort Defined:
a) A civil wrong, other than breach of contract, for which the law provides a remedy.
b) A civil wrong, wherein one’s person’s conduct causes a compensable injury to the person, property, or recognized interest of another, in violation of duty imposed by law.
Common Elements of Torts:
a.) Someone has sustained a loss or harm as a result of some act of failure to act by another.
b.) Liability based on fault:
1. Intentional (Highest level of fault)
2. Negligent
3. Liability without Fault (Strict Liability)
Burden of Proof in Tort Law:
1) Always falls on the plaintiff.
a. Defendant need not to prove defendant
acted without fault.
b. Plaintiff must prove defendant's lack of
due care.
Degree of Proof in Tort Law:
1.) By a preponderance of evidence
2.) 50% +
3.) More likely than not the person did it.
Intentional Torts (7 torts: 4 against person, 3 against property)
1.) Persons: assault, battery, false imprisonment, and intentional infliction of emotional distress
2.) Property: trespass to land & trespass to chattel and conversion
The “Act” In torts:
Act by the defendant– Must be volitional act or movement.
(An act of defendant’s will-Required in every type of tort.)
Intent: Person Torts
- Defendant desires result, or defendant knows with substantial certainty that the result will occur.
Intent: Property Torts
- Defendant desires to do the act, or defendant knows with substantial certainty that the act will occur.
Intent Facts in Torts:
1) Highest level of fault in torts is intent.
2.) Minors are liable for their intentional torts
as long as they have the requisite intent.
3.) Insane persons are liable for their
intentional torts as long as they have the
requisite intent.
4.) Intoxicated persons are liable for their
intentional torts as long as they have
requisite intent.
5.) Mistake persons are usually liable for
their intentional torts.
Transferred Intent:
Definition: When defendant intends to commit one tort, but instead (or in addition to) commits a different tort to the same plaintiff, and/or commits the same and/or different tort to a different plaintiff, then the intent will transfer to the resulting tort.
Transferred Intent Elements:
1) Requisite Intent can be transferred from one plaintiff to another or from one intentional tort to another
2) Tort intended and tort committed must either be assault, battery, false imprisonment, trespass to land, or trespass to chattel. (Old action for trespass)
3) NO transferred intent for intentional infliction of emotional distress.
Causation:
1) Defendant’s act or force set in motion by defendant must have caused the result or;
2) Defendant’s act is a substantial factor in brining about the results
Damages:
Actual damages are not required for battery, assault, or false imprisonment.
Battery (Intentional Tort to Person)
Definition: Act by defendant that intentionally causes a harmful or offensive contact with a plaintiff’s person.
a. Intent to cause harmful/offensive contact
with plaintiff’s person
b. Causation:
1. Direct: contact with plaintiff
2. Indirect- time passes between defendants’
act and contact to plaintiff.
d. Harmful or Offensive- judged by reasonable
person standard.
e. Plaintiff’s person can include physical body,
clothing, and anything closely connected to
the plaintiff.
Assault (Intentional Tort to Person)
Definition: Act by the defendant that intentionally causes reasonable apprehension in plaintiff of immediately receiving a battery.
a. Intent to cause apprehension.
b. Immediate Battery-Not future
c. Reasonable Apprehension:
1. Judged by reasonable person standard
2. Apprehension does not equal fear
3. Words alone are insufficient & must be
coupled with action.
False Imprisonment (Tort against person)
Definition: Act by defendant that intentionally causes the plaintiff to be confined to a bounded area.
a. Intent to confine plaintiff to bounded area.
b. Time of concealment need only be
appreciable amount of time.
c. Future threats and moral pressure are
insufficient
d. Plaintiff must be aware of confinement
unless plaintiff is injured by the confinement.
False Imprisonment- Types of Confinement
1) Physical Barriers
2) Physical Force
3) Threats of Force
4) Failure to release or;
5) invalid use of legal authority
Bounded Area:
(1) Movement restrained in all directions with no reasonable means of escape.
Intentional Infliction of Emotional Distress (Tort Against Person)
Definition: extreme and outrageous conduct by defendant that intentionally or recklessly causes severe emotional distress in plaintiff. (This will require damages, that someone has suffered severe emotional distress in order to recover)
Intentional Infliction of Emotional Distress-Conduct
1.) Conduct
a. Conduct that transcends to all bounds of
decency
b. Conduct short of extreme & outrageous if
directed toward:
(1) Children
(2) Elderly Persons
(3) Pregnant woman or;
(4) Supersensitive person if sensitivity is
known to defendant.
c. Or committed by particular type of
defendant: Common carriers (cab driver,
flight attendants) or Inkeepers (hotels,
etc.)
Intentional Infliction of Emotional Distress- Damages
(1) Need actual damages-severe emotional distress
(2) Nominal damages are insufficient (technical difficulty in court, money to file the suit, the service, etc.)
(3) Third party may recover for injuries by defendant causing physical harm to another if:
(a) Person & Victim closely related
(b) Plaintiff is present at scene
(c) Defendant knows of a & b ^
Trespass to Land (Property Tort)
Definition: an intentional act by defendant that causes a physical invasion of plaintiff’s land.
Trespass to Land- Elements:
1) Intent:
a.) Intend the act that causes entry to the
land
b.) Not liable for non-volitional acts
2) Causation:
a.) Actual causes is all that is required.
b.) Liable for all harm causes, however
unforeseeable.
3) Physical Invasion:
a.) Direct or Indirect invasion by defendant
b.) Failure to leave or remove.
4.) Plaintiff:
a.) Right to possession is insufficient
b.) Ownership not required.
5.) Land:
a.) Common Law: all spaces from center of
the earth to the heavens.
b.) Modernly: all reasonable usable space
damages. Damages are inferred Nominal
damages will be rewarded. All other
provable damages are recoverable.
Trespass to Chattel (Property Tort)
Definition: an intentional act by defendant that causes an interference with plaintiff’s possessory interest in chattel.
Chattel Definition: all tangible property, any tangible property that has been reduced to tangible form.
Examples: Vehicles, jewelry, equipment, furniture, machinery, livestock, clothing, etc.
Trespass to Chattel Elements:
(1) Intent:
a. Intent the act that causes the
interference with the necessary
possessory interest.
b. Not liable for non-volitional acts
(2) Causation- Actual Cause
(3) Interference:
a. Intermeddling-damage to chattel
b. Dispossession-taking someone’s chattel
(4) Plaintiffs Possessory Interest
a. right to possession is sufficient and
ownership is not required.
(5) Damages-not inferred-actual damage must be proven, loss of possession will be considered an actual harm
