Torts Flashcards
(94 cards)
1
Q
Tort
A
Injury to one’s person (emotional or bodily), property (real or personal), reputation or sense of dignity.
2
Q
Procedural Motions
A
- Dismissal: On the pleadings
- Summary Judgement: Inability to prove a required element
- Directed Verdict: At the end of evidence (π’s and/or Δ’s)
- New Trial: Legal error, incorrect jury decision, excessive damage award
- JNOV: Should not have let the case go to the jury (occurs after jury ruling)
3
Q
Negligence
A
Conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm.
- Duty to use reasonable care. (question of law)
- A failure to conform to the required standard (Breach). (question of fact)
- Causation, both cause in fact and proximate cause. (question of fact, usually)
- Actual loss or Damages. (question of fact, usually)
4
Q
Standard of Care
A
In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care. There are various standards of care. Ordinary care is the most basic standard of care, and it is based on the reasonable, prudent person.
5
Q
Reasonable Person
A
Objective standard. The defendant’s conduct is measured against a reasonable, prudent person in the same or similar circumstances.
6
Q
Sudden Emergencies (Special Applications of RPP)
A
Affirmative defense.
When confronted with a sudden emergency, an actor is held to what a reasonable prudent person would do in the same emergency. The actor cannot be the cause of the emergency.
Majority/Minority/Ohio: Majority of states have adopted sudden emergency doctrines (including Ohio), minority have not.
7
Q
Loss of Consortium
A
The deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor.
Majority/Minority/Ohio:
Ohio recognizes parent / child consortium (filial consortium) (minority).
8
Q
Sudden and Unforeseen Incapacities (Blackouts and Physical Illness) (Special Applications of RPP)
A
When the Δ suffers a blackout or sudden physical illness, the Δ may be excused from liability. If the emergency was foreseeable and had taken place before in a reasonable period of time, liability is preserved.
9
Q
Wrongful Death
A
Statutory tort allowing heirs at law to recover for the death of a loved one for funeral expenses, mental anguish and loss of potential inheritance. Not available to gay couples or domestic partners.
10
Q
Survival Action
A
Action available when a person survives injuries to die soon after. Can recover for medical bills, pain and suffering, etc. This goes to the estate, so gay couples can recover here.
11
Q
Physical Disabilities (Special Applications of RPP)
A
A person with a physical disability must act as a reasonable, prudent person with the same disability would act in the same or similar circumstances.
Ohio: A person with a physical disability must act a reasonable, prudent person similarly afflicted would act in the same or similar circumstances.
12
Q
Mental Illness (Special Applications of RPP)
A
A mentally ill person is held to the standard of a reasonable prudent person, unless the illness occurred suddenly and was unforeseeable, which precludes liability as a sudden and unforeseen incapacity. An institutionalized person cannot be held liable to paid caretakers.
Majority/Minority/Ohio: Majority (including Ohio) hold mentally ill to a reasonable person standard, minority makes exceptions.
13
Q
Negligent Entrustment
A
The act of leaving an object, such as an automobile or firearm, with another whom the lender knows or should know could use the object to harm others due to such factors as youth or inexperience.
14
Q
Children (Special Applications of RPP)
A
Children are held to the subjective standard of a child of similar age, maturity, and experience in the same or similar circumstances, unless engaged in an inherently dangerous activity, which requires an adult standard of care.
Majority/Minority/Ohio: Majority uses reasonable person of similar age standards; minority use ‘adult activities’ versus ‘inherently dangerous’
Ohio uses the Rule of 7: Children under 7 = no tort liability. Children 7-14 = presumed incapable, rebuttable by π; Children over 14 = presumed capable, rebuttable by Δ.
15
Q
Professional Standard of Care (Special Applications of RPP)
A
To act as an equivalent reasonable, prudent professional, in good standing with the professional community, would act in the same or similar circumstances.
Majority/Minority/Ohio: Majority (including Ohio) hold a national standard of care, without geographic consideration.
16
Q
Medical Malpractice (Medical Negligence) (Special Applications of RPP)
A
Elements:
- Professional Standard of Care
- Doctor breached Professional Duty
- Standard must be shown by affirmative evidence (by π)
- That treatment was unsuccessful, failed to bring the best result, or that the patient died does not prove negligence
- Expert testimony required, unless so gross a layperson could recognize it
- Testimony that other doctors would have followed a different court of treatment is not sufficient
High threshold to meet and most cases rule for the Δ.
17
Q
Lack of Informed Consent
A
Elements:
- Duty (to disclose all material risks, doctor’s interests and alternative treatments)
- Breach (failure to adequately inform the patient of the risks or alternatives)
- Causation (a reasonable prudent person would have chose differently had he or she been informed)
- Damages (injuries materialized)
Defenses:
- Emergency (Implied Consent)
- Reasonable person would know of risks (Obvious)
- Full disclosure would be detrimental to the patient’s care (Freak Out Factor)
Majority/Minority/Ohio:
Majority (including Ohio) use a reasonable person standard. The minority use a subjective, what would this specific π have done, standard.
18
Q
Vicarious Liability (Respondeat Superior)
A
An employer will be held vicariously liable for the tortious acts committed by an employee if the act occurs within the scope of employment.
An employer is not usually held liable for the torts of an independent contractor nor for the intentional torts of an employee.
An employer can be held liable for punitive damages if they:
- Ratified the act
- Were reckless in hiring or retaining the employee
- The employee was in a managerial position and acting within the scope of employment
19
Q
Coming and Going Rule
A
A commute to and from work is beyond the scope of employment. Unless the employer sets up the reason an employee must leave.
20
Q
Detour/Frolic
A
Detour: a slight deviation, but still within the scope of employment.
Frolic: outside the scope of employment.
Factors:
- Intent
- Nature, time, and place of deviation
- Nature of work
- Incidental acts reasonably expected by the employer
- Freedom (allowed the employee in performing the job’s responsibilities)
21
Q
Independent Contractors
A
A person, also called a frequenter, who performs services for another, but retains control over the manner and means of performing the work, unless the duty is non-delegable (inherently dangerous work).
Majority/Minority/Ohio:
Majority of courts (including Ohio) distinguish between an employee and an independent contractor. An employer is not liable for the torts of an independent contractor.
22
Q
Apparent Authority Doctrine
A
Despite the real relationship, if the π believes or has reason to believe that the Δ works for a company, respondeat superior may be allowed (doctors in ER) (RPP would know).
23
Q
Proof of Duty and Breach of Duty (Generally)
A
Breach of duty is the defendant’s failure to act as a reasonable person would have under the same or similar circumstances.
The finding of a duty is a legal determination. To show breach of a duty, the burden is on the π to meet:
- The burden of production: Producing legally sufficient evidence to reach the jury. Also called the prima facia case. Failure to meet this will result in a directed verdict for the Δ.
- The burden of persuasion: Getting the jury to believe the π (by a preponderance of the evidence (51%).
24
Q
Proof of Duty by Violation of Statute (Negligence Per Se)
A
Duty and breach are established by violation of a statute. This is a legal determination (decided by the judge) and the π must establish that:
- The π belongs to the class of people the statute was intended to protect; and
- The π’s injury is the type the statute was designed to protect against.
The π must still establish causation. The π should have a common law backup if the court declines the use negligence per se.
Majority/Minority/Ohio:
Majority of courts (including Ohio) allow negligence per se, minority do not allow it.
25
Duty to Protect Children from Molestation
Some courts, including OH, impose a duty to protect children from molestation; for ex, if a Board of Education knows that a teacher abused a child or a wife knowing her husband loves little girls.
26
Proof of Duty by Custom and Usage
Where there is a common practice or standard of care in an industry, a court may consider these customs and usage as evidence for what a reasonable person would do (establishes a standard of care and breach of that care).
However, the π must still satisfy the burden of persuasion.
27
Kinds of Evidence (Proof of Breach)
There are two key forms of evidence that a plaintiff can use in attempting to establish negligence by the defendant:
Circumstantial Evidence: Have to draw inferences from the evidence.
Direct Evidence: Eyewitness of either personal knowledge or observation.
Speculations are insufficient.
28
Slip and Fall (Circumstantial Evidence)
Traditionally pro-Δ. Difficult for π to prove notice in these cases (actual or constructive).
Five arguments:
1. Smooth or Slippery Surface (Waxing): No liability unless material is defective or application was negligent.
2. Foreign Substance: Store placed substance on the floor, or the store knew of the issue (π must establish actual/constructive notice).
3. Tracked in Water: No duty outside of 50' from entrances.
4. Defect in the Surface: No liability for slight or trivial imperfections, must pose an unreasonable risk. (Ohio is 2+ inches, attendant circumstances)
5. Ice and Snow: No duty for natural accumulation, potential liability for unnatural accumulation.
29
Mode of Operation
Methods of the store are such that dangerous conditions are continously or easily foreseeable precludes notice requirement (or that the Δ is always on notice due to the mode of operation of the Δ's business). This eliminates the π's burden of establishing actual or constructive notice of the condition, and creates a rebuttal presumption of negligence.
The π must show:
1. Nature of the Δ's business gives rise to foreseeable hazards, and
2. The Δ failed to take all reasonable care to prevent all foreseeably dangerous conditions.
This is easier for the π to establish than the traditional approach.
Majority of states (including Ohio) do NOT follow Mode of Operation, minority do.
30
Actual Notice / Constructive Notice
Actual Notice: The π can prove that the Δ had actual notice of the dangerous condition.
Constructive Notice: The condition was present long enough that the store should have reasonably know of its existence.
31
Res Ipsa Loquitur
With res ipsa loquitor, negligence is inferred solely because the accident occurred. This is very rarely used.
3 requirements:
1. The accident could not have occurred without some negligence, and
2. The instrumentality which caused the injury was at the time under the exclusive control of the Δ, and
3. The π's own conduct in no way contributed to the accident.
32
Causation (Generally)
The π must show a connection, or nexus, between the Δ's reach and the harm the π suffered.
The π must prove both 'cause-in-fact' and 'proximate cause'.
33
Cause in Fact
Negligence has to be the cause in fact of the π's damages.
'But For' Test: 'But for' the Δ's conduct, the injury would not have occurred. Used with a single defendant. This is the traditional approach.
Substantial Factor Test: The Δ's conduct was a substantial factor in the π's injury. Used with multiple defendants.
34
Quantum of Proof Problems
Just because something follows something does not mean it caused it. Speculation does not meet the burden of production (on causation).
35
Joint Tortfeasors
When two (or more) parties:
1. act in concert;
2. act independently in creating a single injury; or
3. share responsibility through vicarious liability,
they are considered joint tortfeasors who are responsible for the entire verdict. This can be through either joint and several or several liability.
36
Joint and Several Liability
No apportionment of damages, all Δs are wholly liable for the entire award.
Majority/Minority/Ohio:
Courts are unsettled on which to use. Trend is to do J&S for economic loss and S for non-economic.
37
Several Liability
Jury allocates percentages each Δ is liable to pay, based on the percentage of fault.
Majority/Minority/Ohio:
Courts are unsettled on which to use. Trend is to do J&S for economic loss and S for non-economic.
38
Alternative Liability
When two tortfeasors acting independently cause a single injury, the burden shifts to the defendants to prove that their conduct was not the cause of the injury.
Policy concern in forcing the defendants to speak.
39
Enterprise Liability
When a small group of defendants controls the entire market, and the π can prove the injury resulted from a product of the market, burden shifts to the defendants to exculpate themselves.
Majority/Minority/Ohio:
Ohio does not recognize Enterprise Liability, as π has to be able to show which specific Δ caused injury.
40
Market-Share Liability
Like enterprise liability, however with more producers. A small group controls the majority of the market. Π must show that the product probably caused the injury, and each Δ can escape liability by showing they were not the responsible producer. Applied to DES cases, rejected in lead, asbestos, gun cases.
Majority/Minority/Ohio:
Ohio: Market share liability is not available because it deviates from normal tort law; common law requires proof that a specific defendant was liable, and the plaintiff has to prove cause by identifying tortfeasor.
Majority of states allow Market-Share for DES.
41
Cause in Law (Proximate Cause)
Concerns the determination of whether legal liability should be imposed where cause in fact exists. Both cause in fact and proximate cause are needed to satisify causation. Proximate cause is a rule of limitation to cut off liability. Courts use three tests:
1. Direct Test
2. Foreseeability Test
3. Rough Sense of Justice
Four reasons why proximate cause fails:
1. Policy
2. Consequences are unforeseeable
3. Too many events happen between original negligence and injury
4. Shifting responsibility is too far out
42
Subrogation
Where one party steps into the shoe's of another, assuming the benefits of the wronged party's rights and remedies.
43
Direct Test (Proximate Cause)
When the damage flows in a natural or continuous sequence from the negligence proximate cause is satisfied. That consequences are unforeseeable does not matter, nor does it relieve liability.
Rarely used today.
44
Foreseeability Test (Proximate Cause)
The foreseeable harm test requires (1) a reasonably foreseeable result or type of harm, and (2) no superseding intervening force. The extent and the precise manner in which the harm occurs need not be foreseeable.
Majority/Minority/Ohio:
Ohio: proximate cause combines direct (natural/continuous sequence) and foreseeability (only that harm is foreseeable, not necessarily the type of harm). No responsibility for a 'remote' injury.
45
Rough Sense of Justice Test (Proximate Cause)
Justice Andrews Palsgraf dissent. Ultimately he concluded that proximate cause is a question of public policy, fairness and justice, which cannot be reduced to any mechanical formula.
46
Palsgraf
Cardozo (Majority): Uses duty to limit liability. Duty is relative to a foreseeable group, and there is no duty to an 'unforeseeable π' (too remote, too far in space/time). Using duty to limit saves judicial resources.
Andrews (Dissent): There is a duty owed to everyone 'not to harm' but proximate cause can cut off liability.
47
Intervening and Superseding Acts
Bettman Test:
1. Identify the parties (π/Δ)
2. Identify the original act
3. Identify the intervening act (can be human, mechanical, or natural)
4. Consider the foreseeability of harm
5. Determine the type of harm, if the same type expected, intervening, if a different type it is superseding.
Is the harm within the risk?
Does the Δ's original negligence set up or enable the subsequent act?
Yes, original tortfeasor is still liable.
No, original tortfeasor is excused.
Ohio: An intervening act will be deemed superseding if it is totally extraordinary, not foreseeable, new and independent.
48
Unforeseeable π
Absent some other basis for limiting the scope of duty, the defendant owes a duty to foreseeable victims for foreseeable harm. Thus, in order to establish a duty, the plaintiff must show that defendant's negligence created foreseeable risks of harm to persons in her position. The concept that the scope of duty is limited to a foreseeable plaintiff arises out of one of the most famous cases in American law, Palsgraf v. Long Island Railroad Co. [162 N.E. 99 (N.Y. 1928)]. The case remains important for the debate it raises about how to place limitations on the scope of liability.
49
Rescuers
A tortfeasor owes a duty to both the victim and the rescuer, including if the tortfeasor creates the accident requiring rescue.
"Danger invites rescue"
To find Rescuer status, the π must show:
1. Δ was negligent to person being rescued and such negligence caused the peril;
2. The peril was imminent;
3. A reasonably prudent person would have concluded such peril existed; and
4. The rescuer acted with reasonable care in effectuating the rescue.
Majority/Minority/Ohio:
Majority say there is no duty between the rescuer from the rescuee (including Ohio), minority (WI) holds that a person being rescued has a duty to his or her rescuer.
50
Damages (Generally)
If the other elements of negligence are proven, π will be awarded damages. These are subjectively awarded by the jury to the point of making the π whole. Damages are awarded only once.
Types:
1. Nominal: out of principal
2. Compensatory: to make the π whole (includes economic and non-economic)
3. Punitive: rarely allowed in negligence
51
Remittitur/Addittur
Remittitur: judge decreases jury award. Π may accept reduced amount or retry the case.
Additur: judge increase jury award. Very rare.
52
Collateral Source Rule
Prevents Δ from introducing evidence that π has been compensated by insurance. The tortfeasor should not get the benefit of the tortfeasee's independent insurance.
Majority/Minority/Ohio:
Ohio: Evidence of collateral sources may be introducted unless there is a right of subrogation. Π may also show the cost of those benefits. The jury decides if they will offset the damage award.
53
Aggravation of Pre-Existing Condition
You must take the π as you find them, whether the damages are foreseeable or not. The damages are subjective and specific to each π. (Eggshell Skull Rule).
54
Limited Duties (Generally)
There is generally no duty owed to a third party, however exceptions exist that create limited duties, such as special relationships (parent/child, employer/employee).
55
Social Host Duties
Majority of states impose no duty on social hosts.
Three kinds:
Commercial Permit Holders: Bars and taverns are allowed to serve liquor with permits, so the court puts a higher responsibility on them than on social hosts. They have a duty when the permit holder knew or should have known that the person was intoxicated and likely to drive.
Non-Commercial Permit Holders: Church functions, etc.
Social Host: Not liable when the recipient of alcohol is an adult.
Majority/Minority/Ohio:
Ohio: Serving alcohol to an underage drinker (18-21) constitutes negligence per se.
Minority: social hosts have a duty to ensure that their guests do not harm others.
56
Failure to Act, Warn, or Protect
The general rule of no duty is obviated when:
1. Δ has a special relationship with π that requires him or her to prevent harm (common carriers, innkeepers, etc.)
2. Δ has a special relationship with π that gives him or her power over the person's actions (parent/child, employer/employee)
3. A wife who has reason to know of spouse's child molestation.
4. A therapist has a duty to exercise reasonable care in warning a specific, foreseeable victim of the danger.
5. A landlord/tenant relationship may trigger a duty to protect, provided there is enough foreseeability of harm and it is supported by public policy.
Majority/Minority/Ohio:
Ohio: Good Samaritan Law, you are not liable.
Lawyers may warn about serious potential future crimes and may warn about financial crimes. Also has a breach of confidentiality tort.
57
Pure Economic Loss
No common law recovery for pure economic loss. Economic loss attached to physical injury or property damage can be included.
Exceptions:
1. Bad advice from accountants
2. Legal malpractice
3. Ohio: Spoilation (destruction of evidence)
58
NIED - Direct
Two variations:
1. Direct claim: those harmed, and
2. Bystander claim: those who witness the harm.
Direct Actions:
1. Impact Rule (Minority): Victim must suffer physical contact to recover.
2. Zone of Danger (Majority): Victim was at risk of physical contact and suffered a physical manifestation.
59
NIED - Bystanders
Bystander Claims:
1. Zone of Danger (Majority): the π can recover for emotional harm suffered from witnessing negligently inflicted harm causing death or serious injury to another (generally a close relative) when she is in a position to fear for her own safety.
2. Dillon Test (Large Minority):
a. Proximity: Located near the scene of the accident.
b. Visibility: Observed the accident.
c. Relationship: π and victim were closely related.
```
Ohio:
Uses a modified Dillon approach:
1. Proximity
2. Direct perception
3. Relationship
```
Also, you can get around NIED by suing for loss of consortium instead.
Ohio: Cannot recover for fear of a nonexistent peril. Injury must be serious and foreseeable to recover. Serious: sever and debilitating.
Foreseeable: located near the scene of the accident, shock was from the direct accident, π and victim were closely related.
60
Premises Liability (Outside the Premises)
Limited duty. A landowner is not responsible for those injured by natural conditions, only artificial ones.
Once a landowner alters a condition on the land, it becomes an artificial condition and the owner must exercise reasonable care for the protection of those outside the premises.
Majority/Minority/Ohio:
Majority of states impose no duty off-premises. Minority have 'self-help' laws that outline measures to keep off-premises safe.
61
Breach of Duty
Question of fact (for the jury). This is after a duty has been established (as a matter of law).
62
Premises Liability (Trespassers)
A landowner has a duty to avoid willful or wanton harm to an undiscovered trespasser.
Discovered Trespasser: duty to warn of or protect against hidden dangers, duty of reasonable care not to harm them
Tolerated Trespasser: duty to warn of or protect against hidden dangers.
Majority/Minority/Ohio:
Ohio keeps 3 distinctions, Trespasser, Licensee, Invitee (Majority). Minority has combined either invitee and licensee, or all three.
63
Premises Liability (Liscensees)
A licensee is a person on the premises with permission but for his or her own purposes. A licensee must take the property as he or she finds it, and the landowner has a duty only to warn of hidden dangers.
Implied: Doorbell rule, etc.
Express: Invited onto the premises
Doorbell Rule: People asking for charity, political canvassers, missionaries, etc. are licensees unless the home has a no trespassing sign.
Majority/Minority/Ohio:
Ohio keeps 3 distinctions, Trespasser, Licensee, Invitee (Majority). Minority has combined either invitee and licensee, or all three.
64
Premises Liability (Invitees)
An invitee is a person who is on the land in furtherance of the owner's business. The landowner has a duty of reasonable care to keep the premises safe.
Majority/Minority/Ohio:
Ohio keeps 3 distinctions, Trespasser, Licensee, Invitee (Majority). Minority has combined either invitee and licensee, or all three.
65
Determining Status of Land Occupier
Where there are disputed facts affecting the plaintiff's status, the jury ultimately decides the appropriate classification. Further, a plaintiff's status can change based on where he or she is at the time of her injury.
66
Premises Liability (Protection Against Criminal Conduct)
There is generally no duty to protect third parties from criminal conduct, unless there is a special relationship (landlord/tenant, business/patron). Courts discretion to impose liability, and they look at:
1. Notice of crime
2. Control of location
3. Policy (police should be responsible)
67
Attractive Nuisance Doctrine
Landowner is subject to liability for physical harm to children trespassing if:
(a) landowner knows children will trespass;
(b) landowner is aware it would be harmful to children;
(c) children do not understand the risk (youth, experience);
(d) utility and burden slight compared to risk to children;
(e) landowner fails to exercise reasonable care in eliminating the danger or protecting children.
Natural conditions and conditions which the child knew or should have known were dangerous preclude the use of the A.N.D.
Ohio (minority) apply the rescue doctrine to parents protecting their children from attractive nuisances.
68
Firefighter’s Rule
A landowner is only liable to a firefighter (or other similar serviceperson) if:
1. Injury was caused by owner's willful/wanton or intentional conduct;
2. Injury was a result of a hidden trap on the premises;
3. Injury was caused by the owner's violation of a duty imposed by statute or ordinary for the benefit of firefighters; or
4. owner failed to warn of hidden dangers.
They can recover worker's comp.
69
Lessor Lessee (Landlord/Tenant)
Generally no duty to protect tenants or guests.
Exceptions:
1. Undisclosed dangers known to the landlord
2. Dangerous conditions off the premises
3. Premise leased for admission to the public
4. Common areas
5. Failure to make repairs
6. Negligence in making repairs
Landlord may have duty to protect (especially in common areas), if aware of criminal activity in the area
(Majority) Failure to provide/maintain reasonable security is a tort.
Ohio has statutorily imposed implied warranty of habitability in lease contracts, requiring landlord to make repairs and keep premises habitable. (Majority)
70
Contributory Negligence
Defense. If the π is in any way at fault, he or she is barred from recovery. Minority viewpoint (4 states follow it).
71
Comparative Negligence
Defense. Fault is apportioned between each party and used to determine if recovery is allowed and to what extent. Two types:
1. Pure: A negligent π may recover no matter how negligent. Π's award is reduced by the percent of negligence.
2. Modified: A negligent π may recover if they negligence is not as great as the Δ's (50%) or no greater than the Δ's (49%).
Apportionment of fault includes all Δs and π.
Apportionment of damages is only among Δs.
Majority/Minority/Ohio:
Ohio uses this (Majority), uses 50/50 rule (majority of majority, minority use 49/51). Joint and several for economic damages above 50% and several for everything else.
72
Open and Obvious Doctrine
Raised as a defense. Precludes a finding of duty.
A landowner can avoid liability by proving that the danger is open and obvious to a reasonable, prudent person.
A premise owner owes no duty to πs when dangers are open and obvious because the hazard itself serves as a warning.
Ohio is in the minority re O&O.
73
Assumption of the Risk
Defense.
There are thus three basic elements to the assumption of risk. The plaintiff must (1) know a particular risk and (2) voluntarily (3) assume it.
1. Express: Release of liability for negligence (exculpatory clauses). Look for validity.
2. Implied: Viewed as a limited duty doctrine, such as sporting or recreational activities (both players and spectators).
Majority/Minority/Ohio:
Assumption of the risk has been merged with comparative negligence.
74
Recreational Use Doctrine
No duty extended to participants or spectators of sporting or recreational activities. There is no duty owed for negligence in sports within the rules/customs of the game. Exception for wanton or intentional conduct.
75
Exculpatory Clauses
Defense. A contract clause that waives the signer's rights to sue for a tort. Only valid if:
1. Not contrary to public policy; and
2. The activities do not fall within the public interest exception (essential services); and
3. The release is unambiguous.
76
Statute of Limitations and Repose
Defense. The statute of limitations is a complete bar for recovery.
Discovery Doctrine: The statute of limitations is tolled from the time of the actual injury until constructive knowledge accrues. (from date of injury to date when π knew or should have known of injury).
Sexual Abuse (Ohio): 12 years from age of majority for sexual abuse.
Medical Claims (Ohio): 1 year for medical claims.
```
Intentional Torts (Ohio): 1 year
Negligence Torts (Ohio): 2 years
```
77
Immunities
Not a defense. There can be negligence, but it is excused for public policy concerns. Most types have been removed or waived.
Step-parents: usually question for jury. You have to live there and contribute financially to establish in loco parentis.
Majority/Minority/Ohio:
Ohio has elimited both spousal and parent/child immunity.
Many states have eliminated parent/child immunity except in car accidents.
78
Intent (Intentional Torts)
Intent is subjective. Two kinds:
1. Direct Intent: the actor means to produce a particular harm.
2. Substantial Certainty: when the consequences are substantially going to occur and the actor does so knowingly.
Intent can be transferred if an actor commits a different tort than intended or against a different person than intended.
Majority/Minority/Ohio:
Majority of courts have adopted a single intent theory (including Ohio), while a minority have adopted a dual intent theory, where the actor must have intended the conduct and intended it to be harmful.
CO makes allowances for mentally retarded people who commit intentional torts (minority).
79
Battery
Elements:
1. Δ intentionally causes
2. un-consented contact
3. with π's person that is
4. harmful or offensive.
Harmful or offensive contact is determined by the reasonable person standard unless you have knowledge of a person's particular sensitivities.
80
Assault
Elements:
1. Δ intentionally causes
2. reasonable apprehension of
3. immediate harmful or offensive contact.
If one is unconscious, there can be no assault. Apprehension is determined by the reasonable person standard.
Ohio: Assault was merged with IIED.
81
False Imprisonment
False Imprisonment is:
1. the unlawful restraint of another against their will; and
2. without adequate legal justification.
If there is a reasonable means of escape, there cannot be false imprisonment. Π must be aware of the means of escape.
Merchant's Privilege: A shopkeeper can detain someone if there is a reasonable belief as to theft; must be in a reasonable manner and for a reasonable period of time.
Majority/Minority/Ohio:
Majority of states have a merchant's privilege. Majority view is that unconscious victims cannot be falsely imprisoned. Minority view is that unconscious victims can be falsely imprisoned.
82
Intentional Infliction of Emotional Distress (IIED)
Intentional infliction of mental distress exists when the defendant,
1. by extreme and outrageous conduct,
2. intentionally or recklessly causes the victim severe mental distress.
3. and the π suffers extreme mental distress.
Majority/Minority/Ohio:
Majority (including Ohio) allow πs to recover as bystanders.
Bystander Recovery Requirements:
1. Close relative
2. Present at the scene
3. Δ must know π was there
83
Trespass to Land
A physical invasion of π's real property by Δ, either by Δ himself or by an instrumentality. Intent does not matter.
84
Trespass to Chattels
Trespass to chattel is the intentional interference with the right of possession of personal property.
The chattel must be repairable, otherwise it constitutes a conversion.
85
Conversion
Intentional exercise of dominion over chattel such that it is completely destroyed or unable to be recovered.
The emotional value of the chattel can also be argued as damages.
86
Bailment
Entrusting goods or personal property to another. The bailee, who receives the property, owes a duty of ordinary care in protecting the property. Damage to the bailed property constitutes negligence, unless it was done intentionally.
87
Consent
Defense to Intentional Torts.
Implied: by conduct
Express: verbal, waiver, etc.
Sports: within scope of the rules, unless intentional or outside rules of game.
88
Self Defense of Defense of Others
Defense to Intentional Torts.
Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself or another from immediate harm.
Majority/Minority/Ohio:
Minority of states require you to retreat, majority (including Ohio) have 'stand your ground' provisions.
89
Defense of Property
Defense to Intentional Torts.
Only reasonable force can be exercised in protection of property (proportional to the intrusion). Force intended to inflict death or serious bodily injury is never reasonable to protect merely property.
90
Strict Liability (Animals)
Trespassing Animals: The owner of animals likely to roam and do damage are strictly liable.
Domestic Animals: The owner of a domestic animal is entitled to one bite before strict liability attaches. If the owner knows or had reason to know of a domestic animals propensity for violence, it can be classified as a wild animal and strict liability attaches. If you provoke an animal, strict liability will not attach.
Wild Animals: Strict liability for owners of wild animals.
Majority/Minority/Ohio:
Ohio imposes strict liability for all dog bites, including the first (Minority). Other states allow one bite before strict liability is created.
91
Strict Liability (Abnormally Dangerous Activities)
To determine if an activity is abnormally dangerous and strict liability is imposed:
1. High likelihood of harm
2. Harm would be serious
3. Cannot be eliminated with reasonable care
4. Not a matter of common usage
5. Inappropriateness of the activity with respect to location
6. Value to community
92
Strict Liability (Limitations)
Negligence does not cut off liability.
The harm must be within the risk (harm must be foreseeable).
Force Majeure (Acts of God)
93
Public Duty Doctrine
A duty to all is a duty to none.
a government actor performing improperly is not usually liable to individuals harmed by the misperformance, because any duty owed is limited to the public at large rather than to any specific individual.
94
Defenses to Negligence
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Contributory Negligence
Comparative Negligence
Assumption of the Risk
Open and Obvious
Recreational Use Doctrine
Statute of Limitations
Immunities
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