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Flashcards in Torts Deck (90)
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1

3 requirements of an intentional tort

1-act; 2-intent; 3- causation

2

intent for an intentional tort

specific intent- goal to bring about specific consequences, or general-actor knows with substantial certainty that these consequences will result

3

defenses to intentional torts

self defense and consent

4

self defense

he use of force is justified against another when and to the extent she reasonably believes necessary to defend herself or a 3rd party against the offender's IMMINENT use of unlawful force

5

stand your ground

can use defensive force and NO DUTY TO RETREAT if reasonable belief it is needed to prevent GREAT/SERIOUS BODILY HARM or DEATH, or if you believe there is a commision of a FELONY about to occur

6

stand your ground reasonable belief presumption

if the person against whom force was used entered or was in the process unlawfully or forcibly entering dwelling or vehicle and person who used defensive force knew or had reasonable belief that unlawful force was occurring. NOT LIMITED TO RESIDENCE.

7

stand your ground reasonable belief presumption: when it does not apply

does not apply if the person against whom force was used had right to be, or was a lawful residence of dwelling, or was a child etc of such a person, or person using force was doing something unlawful, or person whom force was used was a LEO on duty and person using force should have known person was a LEO

8

physicians: informed consent

DR is under special obligation to explain all MATERIAL risks prior to patient consenting. Failure to comply rises to the level of professional negligence. Affirmative obligation that results in breach of duty (actionable as MED-MAL).

9

physicians: informed consent exceptions

risk is commonly known; patient waives info; patient is incompetent; disclosure would be too harmful and may cause something like a heart attack

10

physicians: informed consent: no recovery

no recovery if obtaining consent was in accordance with accepted standard of practice among professionals with same training and reasonable patient would have understood risks; or, circumstances show that patient would have consented knowing the risks

11

physicians: informed consent presumption

if consent meets requirements and is in writing, a presumption of valid consent is raised

12

landowners in general (standards)

only owe a duty only to those w/i boundaries of land (land owner, occupier or in possession)

13

trespassers: discovered duty

discovered or anticipated: duty to warn or protect against concealed dangerous artificial conditions

14

trespassers: discovered

enters w/o express or implied invitation and whose presence was detected w/i 24 hours preceding accident

15

trespassers: undiscovered duty

landowners owe NO duty, nor a duty to inspect property for evidence of trespassers

16

trespassers: undiscovered definition

enters w/o express or implied invitation and whose presence was NOT detected w/i 24 hours preceding accident

17

landowner immunity

not liable for damages to trespasser that was under the influence of drugs/alcohol; however, the owner will not be immune of owner's gross or intentional misconduct was cause or proximate cause of injury; not liable to trespasser regardless of intoxication except:1-to avoid liability, the owner must refrain from intentional conduct; 2-owner must not engage in gross negligence or intentional misconduct, and must warn of dangerous condition; not liable to person attempting to commit a felony on the property

18

invitees

landowner owes greatest duty of care: wanr, use reasonable care, AND must conduct reasonable inspection of property; BUT, limited to nature of the invitation

19

business invitees

public invitee on premises by express invitation by owner; if a plaintiff slips and falls on a transitory foreign substance at a business, the P must prove the business had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge can be shown by evidence that: 1-dangerous condition existed for such a period of time that the business should have known; 0r 2-the condition occurred w/ regularity and was therefore foreseeable

20

uninvited licensee

one who comes on the premises solely for their own convenience w/o invitation. SAME DUTY as DISCOVERED trespassers

21

licensees by invitation: def

social guests and other persons who are on the property through express or implied invitation of the owner. SAME DUTY as DISCOVERED trespassers

22

licensees by invitation:

SAME DUTY as DISCOVERED trespassers, BUT includes engaging in REASONABLE efforts to keep property free of transitory dangerous items.

23

public invitee

licensee on the premises by express or implied invitation by owner. SAME DUTY as DISCOVERED trespassers

24

good samaritian act

any person who gratuitously and in good faith renders emergency care will NOT be liable as long as they act as a reasonable person under the same circumstances; unless they acted in reckless disregard of standard-very high standard to meet

25

failure to wear a seatbelt

is not viewed as negligence per se; but is evidence of comparative negligence

26

proximate cause test

"foreseeability test"; Palsgraff "zone of danger"; limits liability

27

proximate cause rebuttable presumption in car wreck

rear driver is presumed to be solely at fault; unless he can prove: 1-lead driver stopped or changed lanes abruptly where a reasonable person would not expect them to; 2-lead driver stopped illegally;or, 3-lead driver suffered mechanical failure that was not the rear driver's fault

28

Firefighters and law enforcement officers

Firefighters and law enforcement officers engaged in the lawful performance of their employment who enter another’s premises are treated as invitees.

29

damages: definition

ACTUAL harm or injury-all past, present, and future (future means "reasonably certain to occur).

30

3 classic form of damages

1-nominal, right was infringed-classic award is $1; 2-compensatory, put P back to where she would have been if wrong had not occurred; 3-punitive, to deter others from doing what D did-a need to be punished, typically because D acted willfully or with reckless disregard