Torts Flashcards
(31 cards)
How do you establish a prima facie case for an intentional tort,
A plaintiff generally must prove:
1. Voluntary Act. The defendant’s actions must be voluntary (e.g., not a reflex).
2. Intent. The defendant must have specific or general intent.
3. Causation. Causation is satisfied if the defendant’s conduct was a substantial factor in bringing about the harm.
When establishing a prima facie case for an intentional tort how is specific and general intent satisfied.
a. Specific Intent. An actor has specific intent when the actor acts with the purpose of causing the consequence.
b. General Intent. An actor has general intent when the actor knows that the consequence is substantially certain to occur.
When does a battery occur
A battery occurs when the defendant:
1. Causes or is a substantial factor in bringing about;
2. Harmful or offensive contact;
3. To the plaintiff’s person; AND
4. Has specific or general intent
When does an assault occur
An assault occurs when the defendant:
1. Causes or is a substantial factor in bringing about;
2. Reasonable apprehension in the plaintiff;
3. Of imminent harmful or offensive bodily contact to
the plaintiff’s person; AND
4. Has specific or general intent
When does false imprisonment occur
When the defendant:
1. Causes or is a substantial factor in bringing about;
2. The confinement of the plaintiff within fixed
boundaries (the plaintiff must be aware of the
confinement or harmed by it); AND
3. Has specific or general intent
When does INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS occur
When the defendant:
1. Acts with extreme or outrageous conduct;
2. Which causes or is a substantial factor in bringing
about;
3. Severe emotional distress; AND
4. Has intent to cause severe emotional distress or acts
with recklessness as to the risk of causing severe emotional distress.
When does tresspass to land occur
when the
defendant
1. Causes or is a substantial factor in bringing about;
2. A physical invasion of the plaintiff’s real property;
AND
3. Has specific or general intent.
When does Trespass to Chattel Occur
When the defendant:
1. Causes or is a substantial factor in bringing about; 2. An interference with the plaintiff’s right of
possession in a chattel; AND 3. Has specific or general intent.
When does conversion occur
A conversion occurs when the defendant:
1. Causes or is a substantial factor in bringing about;
2. An interference with the plaintiff’s right of
possession in a chattel;
3. Where the interference is so serious, it deprives the
plaintiff entirely of the use of the chattel; AND
4. Has specific or general intent.
What are the defenses to intentional torts
Consent, Self Defense, Necessity
What are intentional torts
BAFTTEC: Battery, Assault, False Imprisonment, Intentional Infliction Of Emotional Distress, Trespass to Land, Trespass to Chattels, and Conversion
What estbalishes consent as a defense to an intentional tort
if:
1. The consent was valid (e.g., no fraud, incapacity, etc.); AND
2. The defendant’s conduct remained within the boundaries of the plaintiff’s consent (e.g., cannot use a knife in a boxing match).
What estbalishes self-defense as a defense to an intentional tort
if:
1. The defendant reasonably believed that that the plaintiff was going to harm him or another; AND
2. The defendant used only the amount of force that was reasonably necessary and proportionate to protect himself or another.
What estbalishes Necessity as a defense to an intentional tort
The defense of necessity is available to a defendant who enters onto the plaintiff’s land or interferes with the plaintiff’s personal property when the defendant does so to prevent an injury or some other severe harm. Under private necessity (the defendant’s act is done to benefit a limited number of people), the defendant must pay for the actual damages that he caused. However, the landowner may not use force to exclude the defendant. Under public necessity (the defendant’s act is done for the public good), the defendant is not liable for property damage that he caused.
What are the elements of a case for negligence
- The defendant owed a duty to the plaintiff to conform to a specific standard of care; 2.
The defendant breached that duty; - The breach was the actual and proximate cause of the plaintiff’s injuries; AND
- The plaintiff sustained actual damages or loss.
Who is a duty of care owed to
A duty of care is owed to all foreseeable plaintiffs that may be harmed by the defendant’s breach of the applicable standard of care. There are two separate views:
1. Under the majority view (Cardozo), the defendant is only liable to plaintiffs within the foreseeable zone of danger.
2. Under the minority view (Andrews), the defendant owes a duty to everyone harmed.
When does a duty to act arise
If 1. Places the plaintiff in danger;
2. Has a special relationship with the plaintiff (e.g.,
common carrier/passenger, innkeeper/guest, family
members, etc.);
3. Has a duty to act affirmatively imposed by law; OR
4. Begins to administer aid or attempt to rescue the
plaintiff.
What is the reasonable personstandard of care
It is the default standard of care. It should be applied unless a special standard of care applies (e.g., children, professionals, physicians, landowners, negligence per se, etc.). The standard of care the defendant owes to the plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard. Physical disabilities may be taken into account.
What is the standard of care for children
Children are held to the standard of care of a reasonably prudent child of similar age, experience, and intelligence under the circumstances (more subjective). However, if the child is engaged in an adult activity, the court will not take the child’s age into account
What is the standard of care for Professionals
A professional (e.g., nurses, lawyers, accountants, engineers, architects, etc.) is expected to exhibit the knowledge and skills of a member of the profession in good standing in similar communities.
What is the standard of care for Physicians
Physicians are held to a national standard of care and have a duty to disclose the risks of treatment to enable a patient to give informed consent. This duty is only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.
What is the standard of care for Psychotherapists
In the majority of states, psychotherapists have a duty to warn potential victims of a patient’s serious threats of harm if the patient has the apparent intent and ability to carry out such threats and the potential victim is readily identifiable.
What is the standard of care for landowners
The standard of care that landowners owe to entrants upon their land varies depending on the entrant’s status.
What standard of care does a landlord owe to a Discovered/Anticipated trespasser
It is discovered or anticipated that trespassers enter the land without consent, but may be expected by the landowner. The landowner owes a duty to discovered/anticipated trespassers to warn of (or make safe) hidden dangers on the land that pose a risk of death or serious bodily harm (only applies to artificial conditions that the landowner is aware of).
