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TORTS Flashcards

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1
Q

You only owe a duty to:

A

foreseeable P’s

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2
Q

Reasonable Person:

A

Objective standard; What would a reasonable person do?

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3
Q

Professional Standard:

A

duty to act like other professionals in your community with the same background/education/training.

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4
Q

Child Standard:

A

Duty to act like other children of same age & maturity

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5
Q

Child Standard Exception:

A

If child is engaged in adult activity, then they are held to a reasonable person standard.

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6
Q

Parent Standard:

A

Duty of parent to prevent child from causing harm

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7
Q

Parent Standard Rule:

A

parent knew or should have known.

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8
Q

Is there a general duty to rescue?

A

NO

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9
Q

Exceptions to duty to rescue:

A

No duty to aid or rescue; UNLESS: special relationship; (1) Parent/child; (2) Innkeeper/guest; (3) Common carrier/passenger

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10
Q

If you begin to rescue, aid must be:

A

reasonable

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11
Q

Duty of Care to Unknown Trespasser:

A

No duty of care

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12
Q

Duty of Care to Known Trespasser/Licensee:

A

Duty to warn of known dangers (must be known to landowners)

Social guest (friends; acquaintance):

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13
Q

Duty of Care to Invitee: Duty: warn, clean up & make safe.

A

warn, clean up & make safe.

Business/commercial; School campus, office, supermarket, shopping mall;

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14
Q

Intervening Cause:

A

Separate FORSEEABLE act which DOES NOT cut off liability

(hypo where another accident is occurring)

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15
Q

Intervening caue presumption:

A

Always foreseeable, unless it is a superseding Cause

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16
Q

Superseding Cause:

A

Separate act so unforeseeable it DOES cut off liability.

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17
Q

4 superseding causes:

A

(1) Act of God
(2) Intentional Tort
(3) Criminal Acts
(4) Anything facts tell you is unforeseeable

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18
Q

Damages requires:

A

PHYSICAL HARM

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19
Q

Economic damages of a third party without accompanying physical harm: pure

A

pure economic loss( a loss that is not accompanied by any physical harm) may not be recovered by a third party.

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20
Q

Contributory Negligence:

A

If even 1% liable, recovery barred

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21
Q

Pure Comparative:

A

recovery reduced by % of his fault.

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22
Q

Modified Comparative Fault:

A

If more than 50% liable, cannot recover anything. If less than 50% liable, reduced by fault %.

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23
Q

Assumption of Risk:

A

UNDERSTANDS and APPRECIATES risk and goes ahead anyway.

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24
Q

Joint and Several Liability:

A

Two or more people caused a single accident. We don’t know how much each defendant is liable for. defendant may recover 100% of their damages from any single defendnt.

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25
Contribution:
defendsntwho pays can seek contribution from co-defendants.
26
Vicarious Liability:
An employer will be liable for the negligent acts of its employee as long as employee was acting w/in scope of employment.
27
Dangerous instrumentality doctrine:
The owner of an instrumentality (thing) that is capable of causing death or destruction is liable for injuries caused by that instrumentality if operated with the owners knowledge and consent. ## Footnote - Cars, tractor
28
Independent Contractor (person working for themselves):
Person who hired independent contractor NOT liable for contractors’ negligence, UNLESS: (1) Work is abnormally dangerous (2) Work is a non-delegable duty (work done on behalf or for the safety of the public).
29
Negligence Per Se establishes:
duty and breach
30
Negligence Per Se Elements
(1) Violation of a statute or ordinance (2) P part of protected class statute is trying to protect. (3) Harm caused is type statute is trying to protect.
31
Res Ipsa Permits the factfinder to infer:
negligence when there is no direct evidence that the D acted negligently.
32
Res Ipsa Elements
(1) Act which would not occur absent negligence + (2) D had exclusive control of property
33
Abnormally Dangerous Activity:
blasting, explosives, dangerous hazardous chemicals STRICT LIABILITY
34
Wild Animals
injury is from animal itself, or because it’s a wild animal (fear) STRICT LIABILITY
35
Domesticated animals:
no strict liability BUT can be strict liability if owner knew or should have known of the animal's dangerous
36
Types of Products Liability:
1) Strict Product Liability 2) Inadequate Warning 3) Negligence: 4) Warranty
37
Strict Product Liability
(1) Product defective when it left factory (2) Sold by seller engaged in business of selling product (3) Sold to foreseeable user (4) Who used it in manner it was intended
38
Negligence:
someone in chain of selling failed to do something they were supposed to do
39
Warranty:
There was a label, sticker, something in writing promising how product would work
40
Private Nuisance:
unreasonable (OBJECTIVELY) interference with the USE and ENJOYMENTS of someone’s property.
41
Private Nuisance Doesn’t apply to:
special sensitivities.
42
Public Nuisance: entire community; usually brought by public official; look for special damages
entire community; usually brought by public official; look for special damages If private P suing, look for special or unique damages.
43
Battery Elements
(1) D intends to cause a contact with P's person (2) D's affirmative conduct causes such a contact (3) Contact causes bodily harm or is offensive to the P
44
For battery, when is contact harmful?
when it causes physical injury, illness, disease, impairment of bodily function, or death.
45
For battery, when is contact offensive?
(1) when a reasonable person of ordinary sensibilities would find the contact offensive OR (2) when the D knows that the contact is highly offensive to the P and contacts the P w the primary purpose of the contact being highly offensive ## Footnote ** defense to (2): unless ct determines that imposing liability would violate public policy.
46
Does P need to be aware of contact for a battery?
NO
47
What constitutes contact under battery?
Contact with anything connected to the P's person
48
Battery—single intent rule
D need only intend to cause the contact
49
Battery–Dual intent rule
D must intend to cause contact AND intend that the contact be harmful or offensive.
50
What kinds of damages are recoverable for battery and assault and FI?
(1) damages for physical injury (2) emotional distress (pain and suffering). (3) nominal damages (4) punitive damages
51
Must a P prove actual harm to recover damages for battery or assault other FI?
NO, P may recover nominal damages to vindicate his right to physical autonomy, even if he did not suffer actual harm.
52
Eggshell skull rule:
D is liable for the extent of damages caused to a P, even if unforeseeable
53
Assault elements
(1) D intends to cause P to anticipate/apprehend imminent harmful or offensive contact with the P's person AND (2) D's affirmative conduct causes P to anticipate such contact with P's person.
54
Must a P be aware/have knowledge of D's acts for assault?
YES
55
Standard for anticipation under majority rule for assault
P's anticipation must be reasonable, a reasonable person must have anticipated
56
Standard for anticipation under minority rule
P's anticipation is subjective; P anticipated
57
Does the threat of contact with a third party constitute an assault?
NO. "im going to take your baby" not liable to mom for assault.
58
Mere words—Assault
Generally, mere word alone do not constitute an assault. However, words coupled with other acts or circumstances may be sufficient if P reasonabley anticipates that harmful/offensive contact is immediate.
59
IIED Elements
the D, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to the P
60
When may transferred intent apply to IIED?
The instead of harming one person, harms another
61
When is conduct extreme and outrages
when it exceeds the possible limits of human decency so as to be entirely intolerable to a civilized society.
62
When is abusive language and conduct sufficiently extreme and outrageous for IIED?
- D is in a position of authority or influence over P - P is a member of a group w a known heightened sensitivity (young children, pregnant woman, elderly)
63
What must a public figure prove to recover for IIED by publication?
a false statement of fact that was made with actual malice
64
Can a private P where the conduct at issue is speech for a matter of public concern recover for IIED?
Scotus has suggested that NO
65
When is D liable for IIED to a third party
-the individual is a close family member who contemporaneously perceives D's extreme and outrageous conduct which causes sever emotional distress to the individual.
66
What must P prove for damages for IIED?
severe emotional distress beyond what a reaonsable person could indure. If also bodily harm, D may be liable as well.
67
What if a P is hypersensitive for purposes of IIED
D must have known of D's heightened sensitivity.
68
False Imprisonment Elements
(1) D intends to confine P within a limited area (2) D's conduct causes P's confinement () P is conscious of confinement.
69
False Impriosnment—Minority Conscious rule
A P who was not conscious of confinement may still recover if P was harmed by confinement.
70
When may a D use nondeadly force
when the D reasonably believes that: (1) THE OTHER IS INTENTIONALLY INFLICTING OR ABOUT TO INTENTIONALLY INFLICT UNPRIVILGED FORCE ON THE D (2) D's force is proportionate (3) D can prevent others force only by immediate use of force.
71
when may a D use deadly force?
when the D reasonably believes that: (1) P is intentionally inflicting or about to intentionally inflict unprivileged force on the D (2) the use of force puts the D in peril of death, serious bodily harm, or rape (3) D can prevent peril only by immediate use of deafly force.
72
Is deadly force allowed to protect property?
NO
73
Private actors privilege of felony arrest
force may be used to make a felony arrest if: (1) the felony has in fact been committed, and (2) the D has reaonsbale grounds to suspect that person being arrested committed it.
74
Reasonable Mistake—private actors privilege of felony arrest
reasonable mistake as to identify of felon OK, but reasonable mistake as to the commission of felony makes privilege not recognized
75
Private actors privilege of Misdemeanor arrest
the midemeanor is being committed ir reasonably appears to be connoted In the presence of the actor and the misdeamor is a breach of the peace.
76
Trespass to chattels elements
D intentionally interferes with plaintiffs right o fposession by: (1) dispossessing the P of the chattel or (2) using or intermeddling w the Ps chattel
77
Dispossession defintion—trespass to chattels
D act as an owner would
78

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