Torts Flashcards
(37 cards)
What intentional torts can transferred intent apply to?
The transferred intent doctrine applies to: assault, battery, false imprisonment, trespass to land, and trespass to chattels.
Can a defendant be liable for assault for a plaintiff’s unreasonable fears?
Typically the plaintiff’s apprehension of harmful or offensive contact must be reasonable, and courts generally will not protect a plaintiff against exaggerated fears. But, a defendant will be liable if he knows of the plaintiff’s unreasonable fears and uses it to put the plaintiff in apprehension.
Can a conditional threat be used to establish an assault claim?
Yes, a conditional threat may establish the element of apprehension in a prima facie case of assault.
What amount of force can be used in defense of property?
Reasonable force may be used, but force that is deadly or causes serious bodily harm is not allowed for defense of property alone.
In defense of property, can a landowner use force to regain real property after being tortiously dispossessed?
No, a landowner may not use force to regain real property after being tortiously dispossessed. One who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure. Force can only be used to prevent/defend the property from tortious interference, and even then, the force cannot be force that will cause death or serious bodily harm.
When does one have a privilege to enter land, such that a defendant cannot assert defense of property?
An actor have a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another’s land to recapture chattels, etc. This privilege supercedes the privilege of the land possessor to defend her property.
When is a request to desist in defense of property required?
Request to desist in defense of property is required before the use of force, only if the circumstances make it clear that such a request will not be futile or dangerous. If a request would be futile or dangerous, then a request to desist is not required.
Can a defendant make a mistake about the right to use force in a defense of property case?
Yes, a defendant can make a mistake about the right to use force. A reasonable mistake is allowed as to the property owner’s right to use force in defense of property, where the mistake involves whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed if the entrant has a privilege to enter the property that supercedes the landowner’s right to defend her property.
When is the use of force to recapture a chattel allowed?
The use of force to recapture a chattel is only allowed if in hot pursuit of one who has wrongfully obtained the possession. If one has capture the chattel lawfully or has captured it unlawfully but there is no longer a fresh, hot pursuit, the owner may only use peaceful means to recover possession of the chattel. Recapture is not available if chattel is in the hands of an innocent party.
When is interference under the necessity defense allowed?
A person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
Who is a licensee under traditional landowner liability rules?
A licensee is one who enters on the land with the landowner’s permission, express or implied, for her own purpose or business rather than for the landowner’s benefit.
Is a health inspector determining whether to renew the landowner’s license a licensee or an invitee?
A health inspector determining whether to renew the landowner’s license is not a licensee. Persons who enter the premises for a purpose connected with the landowner’s business are invitees and are owed a higher duty.
When does a person lose their status as an invitee?
A person loses their status as an invitee if he exceeds the scope of the invitation, like going into a portion of the premises where his invitation cannot be reasonably said to extend.
What are firefighters and police officers treated as under traditional landowner liability?
Firefighters and police officers are treated as licensees. They cannot recover for a landowner’s failure to inspect premises or repair dangerous conditions that are inherent to their law enforcement or firefighting activity. They cannot recover if the landowner did not know about the risk under the licensee test.
What is the test for using land for recreational purposes under traditional landowner liability?
Under traditional landowner liability, an owner of open land who permits the public to use the land for recreational purposes without a fee makes the landowner NOT liable for injuries suffered by the recreational user. This is unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
What can be shown, but is not required, to demonstrate the res ipsa loqquitur requirement that the type of harm would normally result from negligence by one in Defendant’s position?
Res Ipsa Loquitur requires that plaintiff present evidence connecting the defendant with the negligence that occurred in order to support a finding of liability. This requirement can be satisfied by showing that the instrumentality that caused the injury was in the exclusive control of the defendant, but actual possession of the instrumentality is NOT necessary.
What is one of the effects of res ipsa loquitur?
One of the effects of res ipsa loquitur is that no directed verdict may be given for the defendant because when the re ipsa element has been proved, the plaintiff has made a prima facie case for negligence. It does NOT however switch the burden of proof to the defendant and does NOT create a presumption of negligence.
What does violation of and compliance with an applicable statute show in a negligence action?
Violation of a statute will establish a conclusive presumption of duty and breach of duty. Compliance with a statute is admissible as evidence that a defendant may have acted with due care.
Is a defendant liable for all harmful results caused by their acts?
A defendant is NOT liable for all harmful results caused by his acts. Not all injuries actually caused by the defendant will be deemed to have been proximately caused by his acts. The general rule of proximate cause is that the defendant is liable for only the harmful results that are foreseeable results.
What types of intervening forces are almost always foreseeable?
Foreseeable intervening forces that make the defendant liable are: medical malpractice, negligence of rescuers, protection or reaction forces, and disease or accident substantially caused by the original injury.
What kind of intervening forces are criminal acts and torts committed by third persons when evaluating proximate cause?
Criminal acts are intervening forces that operate on the situation created by the defendant’s negligence, but they are independent actions rather than natural responses or reactions to the situation. They may be foreseeable, but only when the plaintiff can show that the defendant’s negligence increased the risk that the force would cause harm to the plaintiff.
What are examples of independent actions, rather than natural responses to negligence, in a proximate cause situation?
Examples of independent actions are an independent negligent act of a third person, a criminal act of a third person, and an act of God.
What does the eggshell plaintiff rule apply to?
The eggshell plaintiff rule applies to every tort claim imaginable. It is NOT limited to negligence claims.
What does a statutory standard of care do for a negligence case?
The standard of care in a negligence case may be established by proving the applicability of a statute that provides for a criminal penalty, NOT a civil penalty. If the statute applies, the statute’s specific duty will replace the more general common law duty of care. If the statute provides for a civil remedy, the plaintiff will sue directly under the statute, so it is not a negligence case.
