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Flashcards in Torts Deck (49)
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1

[TORTS] • 4 • Intentional Torts • Elements • •

Actions for intentional torts require (1) an act ; (2) committed with specific or general intent ; AND (3) causation . Damages are NOT required, but may increase an award if shown. Specific intent exists when a person desires that his conduct to cause the resulting circumstances. General intent exists when a person is substantially certain that his conduct will cause the resulting circumstances.

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[TORTS] • 1 • Intentional Torts • Transferred Intent • •

When a defendant acts with the requisite intent to commit a tort, that intent may be transferred to hold the defendant liable for unintended torts and/or unintended plaintiffs.

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[TORTS] • 1 • Intentional Torts • Assault • •

Assault is an (1) intentional act ; (2) that causes ; (3) the plaintiff to be placed in a reasonable apprehension ; (4) of imminent harmful or offensive contact with the plaintiffs person. The plaintiff must be aware of the defendants act AND believe that the defendant is able to commit the act.

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[TORTS] • 3 • Intentional Torts • Battery • •

Battery is an (1) intentional ; (2) harmful or offensive contact (analyzed under the reasonable person standard); (3) with the plaintiffs person (including anything connected to the plaintiff). Contact is intentional if it is voluntary and there is substantial certainty that the contact will occur.

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[TORTS] • 2 • Intentional Torts • Intentional Infliction of Emotional Distress • •

An action for intentional infliction of emotional distress is available if (1) the defendant acted intentionally or recklessly ; (2) the defendants conduct was extreme and outrageous (conduct that transcends all bounds of decency); (3) the defendants act caused extreme emotional distress ; AND (4) the plaintiff actually suffered severe emotional distress.

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[TORTS] • 1 • Intentional Torts • False Imprisonment • •

False imprisonment requires (1) an act or omission ; (2) that causes ; (3) the plaintiff to be restrained to a bounded area (one with no reasonable means of escape). Restraint may be physical or accomplished through threats. The plaintiff must be aware of the confinement or be physically harmed by it (the extent of the false imprisonment is generally not relevant).

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[TORTS] • 1 • Intentional Torts • Citizens Arrest for Misdemeanor • •

To make a citizens arrest for a misdemeanor, the detainee must have (1) committed an act that constitutes a breach of the peace; (2) in the presence of the arresting citizen.

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[TORTS] • 1 • Intentional Torts • Shopkeeper's Rule • •

The shopkeepers rule is a defense to false imprisonment, and permits a shopkeeper to detain an individual for a reasonable period of time if reasonable grounds exist to believe the individual committed theft.

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[TORTS] • 3 • Intentional Torts • Conversion • •

Conversion is an intentional interference with the plaintiffs possession of chattel by deprivation or damage, which causes significant extensive harm . A plaintiff may recover the fair market value of the item at the time of interference .

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[TORTS] • 2 • Intentional Torts • Trespass to Chattels • •

Trespass to chattel is an intentional interference with the plaintiffs possession of chattel by deprivation or damage, which causes actual damages . A plaintiff may recover the cost of repairs.

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[TORTS] • 3 • Intentional Torts • Trespass to Land • •

Trespass to land is an intentional physical invasion of land by another without consent or privilege that causes damages. A plaintiff may recover based on either the decrease in value of the property or the cost to repair the property.

A continuing trespass occurs when a defendant leaves a chattel on the plaintiffs land (i.e. a building or a fence).

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[TORTS] • 1 • Intentional Torts • Defenses • Consent •

Consent is a defense to intentional torts , and may be express or implied. However, the defendants actions CANNOT exceed the bounds of the consent given. Additionally, one may NOT consent to a crime.

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[TORTS] • 11 • Negligence • Elements • •

A negligence claim requires (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) the breach be the actual and proximate cause of the plaintiffs injuries; (4) actual damages ; AND (5) no valid defenses .

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[TORTS] • 6 • Negligence • Elements • Duty • To Whom a Duty is Owed

Under the Andrews view, a duty of care is owed to all foreseeable plaintiffs . However, under the Cardozo view, a duty of care is only owed to foreseeable plaintiffs who are within the zone of danger .

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[TORTS] • 1 • Negligence • Elements • Duty • Affirmative Duties

Generally, there is no duty to act affirmatively . However, a duty to act affirmatively will arise if ( 1) there is pre-existing relationship between the parties, including family members, common-carrier/innkeeper and patron, land-occupier and invitee; (2) the defendant put the plaintiff in peril ; (3) the defendant has already undertaken to rescue the plaintiff; OR (4) the duty is imposed by law .

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[TORTS] • 5 • Negligence • Reasonable Person Standard • •

The general standard of care owed to a plaintiff is that which a reasonably prudent person in similar circumstances would provide. For minors, the standard of care is that of a reasonably prudent person of similar age and experience . However, a child engaged in adult activities must perform those activities with the care of a reasonable person .

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[TORTS] • 4 • Negligence • Negligence Per Se • •

The plaintiff may use negligence per se to prove breach of a duty . A defendant is negligent per se if he (1) violated a statute ; (2) the plaintiff suffered the type of harm the statute was designed to protect against; AND (3) the plaintiff was in the class of persons the statute was designed to protect.

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[TORTS] • 1 • Negligence • Res Ipsa Loquitor • •

Under the doctrine of res ipsa loquitor, a defendant is presumed to have been negligent if: (1) the accident is of the type that would not normally occur unless someone was negligent ; (2) the injury was caused by something exclusively in the defendants control ; AND (3) the plaintiff did not cause or contribute to the injury .

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[TORTS] • 2 • Negligence • Standard of Care • Doctors and Informed Consent •

A doctor owes his patient a duty to act as a reasonable doctor would in good standing in the professional local community.

A doctor has a duty to obtain informed consent from his patient before treatment, which requires the doctor to disclose risks of treatment that a reasonable patient would want to know.

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[TORTS] • 1 • Negligence • Standard of Care • Lawyers •

A lawyer owes his client a duty to act as a reasonably prudent lawyer ; exercise that degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise.

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[TORTS] • 1 • Negligence • Standard of Care • Landowners •

A landowners duty varies depending on who is on the property.

Undiscovered trespassers: No duty is owed.

Anticipated trespassers: The landowner must (1) use reasonable care in operations on the property; AND (2) warn or make safe highly dangerous artificial conditions that the landlord knows of.

Licensees (those invited on the owners property as social guests): A landowner must (1) exercise reasonable care in operations on property; AND (2) warn of highly dangerous conditions that are known to the landowner, but are not apparent to a guest.

Invitees (those invited onto the property for the owners benefit): A landowner owes the same duties to an invitee as he would a licensee, but IN ADDITION he must make reasonable inspections of the property and is liable for failing to warn of dangerous conditions that would have been discovered upon inspection.

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[TORTS] • 1 • Negligence • Attractive Nuisance • •

A landowner owes a duty to child trespassers, which requires the landowner to warn of or make safe artificial conditions on his land . The duty applies if (1) the landowner knows, or should know, of a dangerous artificial condition on his land that is likely to cause death or serious bodily injury ; (2) the landowner knows, or should know, that children are likely to frequent the area ; AND (3) the risk of harm outweighs the expense of making the condition safe.

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[TORTS] • 4 • Negligence • Causation • Actual and Proximate •

A plaintiff must show that the defendants conduct was the actual and proximate cause of the plaintiffs injuries. Actual cause exists if the defendants act was the but-for cause of the plaintiffs harm (but for the defendants conduct, the plaintiff would not have been harmed). Proximate cause exists if it is foreseeable that the harm would occur. A superseding force is a third partys act that breaks the chain of causation . However, a third partys act will only break the chain if it was NOT foreseeable. Where multiple causes of an injury exist, the defendant is liable so long as his conduct was a substantial factor in causing the harm.

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[TORTS] • 2 • Negligence • Eggshell Plaintiff Rule • •

Under the eggshell plaintiff rule, the defendant takes the plaintiff as he finds him , and the defendant is liable for all damages no matter how great the injury is.

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[TORTS] • 8 • Negligence • Defenses • Contributory and Comparative Negligence •

Defenses to negligence include contributory negligence and assumption of risk .

In a contributory negligence jurisdiction, a plaintiff may NOT recover damages if he contributed to his own injury . Two exceptions to this rule exist: (1) when the defendant had the last opportunity to avoid the accident; OR (2) if the defendant was reckless .

In a pure comparative negligence jurisdiction, if a plaintiff contributed to his own injury, his damages will be reduced by the percentage of fault that is attributable to him.

In a partial comparative negligence jurisdiction, if a plaintiff contributed less than 50% to his own injury then his damages are reduced by the percentage of fault that is attributable to him. However, if the plaintiff contributed more than 50% , then the plaintiffs claim is barred .

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[TORTS] • 8 • Negligence • Defenses • Assumption of Risk •

Defenses to negligence include contributory negligence and assumption of risk . Assumption of risk is an affirmative defense to negligence, and is available if the plaintiff voluntarily assumed a known risk. Assumption may be express or implied (an average person would appreciate the risks involved).

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[TORTS] • 3 • Negligence • Negligent Infliction of Emotional Distress • •

An action for negligent infliction of emotional distress requires that (1) the defendant was negligent ; (2) the defendants negligence caused extreme emotional distress ; AND (3) the plaintiff suffered physical manifestations of the distress.

A plaintiff may also bring an action for negligent infliction of emotional distress as a bystander who witnessed an injury caused by the defendants negligence. To recover, the plaintiff must (1) be closely related to the victim; (2) have been present at the scene of the injury and observed the accident; AND (3) have suffered emotional distress beyond that which would be anticipated in a disinterested witness.

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[TORTS] • 4 • Strict Liability • Ultrahazardous Activity • •

A defendant is strictly liable for damages caused to a plaintiff if he is engaged in an ultrahazardous activity. An ultrahazardous activity is one that is (1) inherently dangerous; (2) uncommon to the geographic area; (3) cannot be made safe; AND (4) the risk of the activity outweighs its social utility.

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[TORTS] • 4 • Products Liability • Strict liability • Elements •

A strict product liability claim requires (1) a strict duty owed by amerchant or commercial seller ; (2) breach of that duty by supplying a defective product (manufacturing defect, design defect, or inadequate warning); (3) the defective product caused the plaintiff harm ; (4) the plaintiff must suffer physical damages ; AND (5) no valid defenses . Manufacturers, distributers, and retailers owe a strict duty to supply safe products to all reasonably foreseeable plaintiffs, and any link in the distribution chain may be held strictly liable for breach of that duty. However, casual sellers will NOT be held strictly liable. To prove actual cause, the plaintiff must show that the defect existed at the time the product left the defendants control (this is presumed if the product was distributed through ordinary channels). To prove proximate cause, the plaintiff must show that his injury was the result of a foreseeable use of the product, even if it was not the products intended use.

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[TORTS] • 3 • Products Liability • Strict liability • Design Defect •

A design defect exists if there is a flaw in the design of a product that makes it unreasonably dangerous . To prove a design defect, the plaintiff may show that there is a reasonable alternative design for the product that makes it safer without increasing its price.