torts Flashcards
(28 cards)
battery
defendant cases harmful or offensive contact with person or something connected to person with intent to cause contact with no intent
- harm - causes injury or pain
- offensive - person with ordinary sensibilities would find contact offensive
*transfered intent
* damages - no actual harm
*defense - consent
assault
defendants acts cases reasonable apprehension of imminent harmful or offensive bodily contact and defendant intends to cause the apprehension
imminent - no delay
merry words generally not enough unless rp thinks gonna get attacked
- damages same as battery
iied
defendant intentionally or recklessly through extreme and outrageous conduct causes severe emotional distress
e and o - conduct that exceeds the possible limits of human decency so as to be intolerable in a civilized society
p prove severe ed beyond what rp should endure
bystander - needs to be relative and watch and observe
non relative - if purpose was to cause them distress
false imprisonment
defendant intends to confine or restrain another within fixed boundaries, and defendants actions result in confinement , plaintiff must be conscious or harmed by it
- intent to confine or sub certain
- can restrain with - physical barriers, force, threat, use of authority , duress
- transfer of intent
damages - no actual harm
skp- can detain for reasonable time and manner if suspected must call police
defenses to intentional torts
- consent (implied or actual)
- self defense , reasonable proportionate force , others same , property no df just reasonable
- stand your ground Florida -allowed force and no duty to retreat if in place you have a right to be, lawful activity and unlawful forced entry look at outline
- parental discipline - reasonable force
-privelege of arrest
citizen= felony rf if certain it happened
police
trespass to chattels
intentionally interferes with plaintiffs right to possess personal property
-dispossessing the plaintiff of chattel
- using , damaging
- mistake not a defense
damages - loss of use or repair costs
conversion
intentionally depriving plaintiff of possession of his chattel, or interfering with the chattel in a manner so serious as to deprive plaintiff of use entirely
mistake not a defense
can recover fair market value
trespass to land
defendant intentionally causes physical invasion to someones land.
- intent to enter
-mistake not defense - causing objects to invade
- actual damages not required
defense
- necessity private= prevent injury or severe harm
- public - necessary to protect public not liable for any damages
p/p nuisance
private - activity substantially an unreasonably interferes with another use and enjoyment of land
- noises / smell
- s and u - annoying to reasonable person
public - unreasonable interference with right common to public
- private Indi must prove suffered special harm different from public
negligence 4
duty - A duty of care is owed to all persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.
breach - A breach of duty occurs when the defendant departs from the required standard of care
causation - must prove actual and proximate . actual = but for. proximate = Proximate cause looks at whether, and to what extent, the defendant’s actions foreseeably and substantially caused the actual injury. Foreseeability exists if a prudent humancould expect that similar harm is likely to be substantially caused by the act or omission at issue.
damages - actual harm
possessor of land duty
discovered trespasser - uninvited entry, detected 24 hours before injury , liable if
- grossly negligent
- intentionally injure
- failure to warn dangerous condition
- invitee if expressed invitation after discovery or manifest to keep land open
undiscovered trespasser - no detention 24 hours before injury
- no duty to warn
- can’t intentionally injure
attractive nuisance - have to be seen or known to children before entry to be liable
invitee (public or business)
- maintain the premises in a reasonably safe condition,
warn of concealed dangers the owner knew or should have known about and which are not open and obvious, and
- Duty to inspect the premises to discover dangerous conditions.
licensee
social- warn hidden dangers but no duty to inspect hidden dangers
uninvited licensee - same as discovered trespasser
duty standard of care
children - reasonable child of similar age. florida under 6 can’t be negligent
- carrier - upmost care
- innkeeper - ordinary care
- drivers - reasonable care
- landlord tenant - safe common area, warn hidden dangers, repair hazards ,
- physicians - specialist national standard/ generalist local standard
negligence per se
when law establishes duty from protection of others , d violated, p must be in class intended to protect, accident must be type of harm the statute was indeed to proc against
in Florida traffic statutes are not per se just evidence of florida
res ispa loquitor
-Accident was of the kind that normally doesn’t occur without neg
- It was caused by an agent or instrumentality within exclusive control of the defendant
- It was not due to any action on the part of the plaintiff
cause in fact
to pass but for \/
multiple tort feasors - substantial factor test- was conduct a sub factor
alternative causation - when cannot be determined which one caused it - burden of proof switches to d ‘s
loss of chance (medical diagnoses ) plaintiff must prove he had over 50 percent chance to heal to be able to win
intervening / superseding
intervening - foreseeable doesn’t break chain
To be superseding, an intervening cause must not be foreseeable and must not be set in motion by the defendant’s negligence.
act of god, Criminal acts, intentional torts /\
damages for negligence
collateral source rule - payment from third party can’t double recovery
punitive damages - can’t get for vl employer negligent - can- need to plead in complaint , more than preponderance of evidence - d was so grossly negligent conscious disregard disregard
- vl can get punitive - for intentional misconduct / gross neg. d must know participate or contribute
compensatory - actual damages trying to make p whole again
- economic emotional
- p duty to mitigate
solely economic enough in Florida not mbe
nied
p needs physical injury or impact
/\ causes ed
and ed was reasonably foreseeable consequence
bystander- at scene - observed - special relationship case by case
vicarious liability
Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another. It arises when one person has the right, ability, or duty to control the activities of another, even though the first person was not directly responsible for the injury. - – Under doctrine of respondent superior An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes acts that the employee is employed to perform or which are intended to profit or benefit the employer.
others
- negligent hiring (presumption not n if background check interview)
- automobile
- dram shop law - bar serving minor or addicted person
defenses to negligence
comparative fault - p over 50 percent bars recovery , under then recovery proportional to fault
Intentional torts there is j and s not NEGLIGENCE - right to contribution allowed - based on pro rata (proportional to fault)
e clauses - clear, not for intentional only gross and neg , adults not children
assumption of risk - party knowingly and willingly embraces risk for some purpose of his own
strict liability
abnormally dangerous activity - foreseeable, highly sig risk of harm, location and severity , (blasting , chemical, excavation)
animal - wild animal (fear chock), not liable to trespassers unless dog (could have bad dog sign to not be liable) , domesticated animal with dangerous propensities , farm animals trespassing
defenses - assumption of risk comparative fault
products liability
A Florida plaintiff may bring a product liability claim based on negligence, strict products liability, nuisance, breach of warranty, An action based on the defective design, manufacture, distribution, or sale of a product that causes injury must be brought within four years.
PURE ECONOMIC LOSSES DONT COUNT THATS THE ONLY THING IN FLORIDA WHERE THEY DONT COUNT
strict product liability
Under strict liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm to persons or property caused by such product.
must prove :
1 The product was defective (in manufacture, design, or failure to warn);
ii) The defect existed when the product left the defendant’s control; and
iii) The defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.
manufacturing = the product deviated from its intended design
design = consumer expectation test, did the product contain a condition , not contemplated by the ordinary consumer that is unreasonably dangerous to the consumer
failure to warn = foreseeable risk no reasonable steps taken to warn
defendant must be in the type of business selling or distributing that type of product
strict product liability defenses
modified comparative fault
assumption of the risk
product misuse, modification or alteration
compliance with gov standard (in Florida rebuttable presumption that its good )
stat if lims 4 years
