Torts Flashcards
Battery
Prima Facia case (1) act by defendant (2) intending to cause harmful or offensive contact to P (3) that does cause such contact.
Intent satisfied either when purpose is to cause consequences or when D knows w/substantial certainty consequences will result.
Negligence
Prima facia case (1) duty of care (2) breach of duty (3) actual and proximate cause (4) and damages
D must act like a reasonably prudent person under the same or similar circumstances would while engaging in that activity. Duty of care extends to any persons to whom D’s conduct creates a risk of injury. Duty owed to foreseeable plaintiffs. (Rescuer always foreseeable P)
breach if D failed to act as a reasonably prudent person engaging in that activity. Res ispa used to show breach of duty from injury ordinarily wouldn’t occur without negligence. P must show evidence connecting particular D with negligence.
actual cause = but for breach, injury would not have occurred. Uncertain liability shifts burden to D’s when they are negligent but P can’s how which one caused the injury. Each D must show they didn’t cause injury (but evidence must show that all D’s were negligent)
proximate cause - injury foreseeable result of breach/misconduct. (indirect cause if D’s negligence caused a foreseeable harm or foreseeable reaction from an intervening force.) Intervening force causing harm from outside the scope of foreseeability is is superseding and cuts off D’s liability.
damages D liable for all damages (tortfeasor takes victim as it finds her)
Respondent superior
Employer vicariously liable for employees torts committed within scope of employment.
not liable for Independent contractor unless IC engaged in inherently dangerous activity.
Duty owed by owner/occupier of land to those outside premises
duty owed to those within foreseeable zone of danger.
duty of landowner for dangerous condition on land depends on legal status of P. D owes duty to anticipated or discovered P to warn or make safe highly dangerous artificial conditions P unlikely to discover.
Negligence Defense contributory negligence
P has duty to act as reasonably prudent person under the same or similar circumstances
apportion fault between P and D. P’s percentage reduced by portion of fault.
Child Standard
children must act as child of like age, education, intelligence, and experience
conform to adult standard if engaged in adult activities.
Negligence per se
statute providing for criminal penalties will establish duty if (1) designed to prevent type of harm suffered by P and (2) P in protected class unexcused violation of applicable statue is negligence per se
conclusive presumption of duty and breach (but compliance does not).
Abnormally dangerous activity
(1) foreseeable risk of serious harm even when reasonable care is exercised and (2) not matter of common usage in community.
activity abnormally dangerous if it involves a substantial risk of serious harm even with reasonable care.
Whether it is abnormally dangerous is a question of law.
No duty
Person no duty to come to the aid of another absent a special relationship.
If D gratuitously comes to aid of P, D must exercise due care and not leave P in worse position.
No duty to prevent third persons from injuring another. Duty imposed if special relationship with third person gives D actual ability and authority to act, and D knows or should know third person likely to injure P.
False imprisonment
Prima facie case (1) act or omission by D confining or restraining P to bounded area (2) intent on D’s part to do so (3) causation
confinement includes not providing means of escape when under duty to do so
if impossible for P to leave without D’s assistance intentionally withholding assistance is actionable
Consent defense to Intentional torts
D not liable for tortious conduct consented to
consent implied by law if necessary to protect important person or property
NIED
when D creates foreseeable risk of physical injury to P usually (1) P must be in zone of danger and (2) P must suffer physical symptoms
bystander outside zone of danger can recover if (1) P and injured person are closely related (2) P present at scene and (3) P observed or perceived event. (most states do not require physical symptoms)
Strict liability Products
Strict products liability Prima facia case (!) commercial supplier and (2) production or sale of defective product (3) actual and proximate cause and (4) damages
(unreasonably dangerous and defective when left control of commercial supplier)
potential liability to all foreseeable plaintiffs.
defective if dangerous beyond expectation of ordinary consumer.
Professional duty of care standard
professional required to posses and exercise knowledge and skill of member of profession in good standing (national standard of care applies to doctor’s conduct) doctor proposing treatment has duty to give sufficient information for informed consent
Implied warranty of merchantability
(1) merchant dealing in kind of goods (2) goods not fit for ordinary purposes (3) actual and proximate cause (4) damages or economic lass
