Torts Flashcards
(51 cards)
Battery - elements
1) harmful or offensive contact,
2) with π’s person,
3) caused by ∆’s intentional act.
Assault - elements
1) ∆’s intentional act,
2) causes π reasonable apprehension,
3) of imminent battery.
NB: words not enough.
False imprisonment - elements
π acts 1) intending to restrain,
2) another person,
3) to a bounded area,
4) and does so.
IIED - elements
1) intentional or reckless,
2) extreme/outrageous conduct,
3) which causes π severe emotional distress.
NY: CoA for intentional mishandling of corpses.
Defenses to intentional torts
1) consent (express/implied)
2) self-defense (deadly/non-deadly/property)
3) recapture of chattels
4) disciplining children
5) arrest
6) Private necessity (imperfect defense)
7) Public necessity (unqualified privilege)
Self-defense specifics
- Reasonable belief & proportionality req’d
- Initial aggressor: no defense unless π responded to non-deadly force w/ deadly force
- 3rd parties: no liability to them if self-defense is legit and didn’t respond negligently
- Property: non-deadly, reasonable force OK to prevent tortious harm to property
- Defense of others - OK
NY: Yes duty to retreat unless in home/curtilage AND not aggressor.
Recapture of chattels - specifics
Reasonable force OK to reclaim personal prop wrongfully taken by another. If original taking was lawful, only peaceful means OK
Arrest - specifics
1) Misdemeanors: only if mis-D is breach of peace in the presence of citizen/cop
2) Felonies: reasonable belief felony committed and that arrestee committed it (cops), OR felony actually committed and reasonable belief arrestee did it (citizens).
Trespass to chattel - elements
1) intentional,
2) interference w/ π’s right of possession,
3) which causes damage
- NB: interference = taking, using, intermeddling.
- Damages = loss of use or repair costs.
Conversion - elements
1) intentional,
2) possession/interference w/ chattel
3) so serious that π is deprived of chattel.
- Cf. trespass to chattel: conversion is more serious interference.
- Damages = full value @ time of conversion or replevin.
*NY: good-faith purchaser liable iff 1st informed of conversion and then refuses to return.
Private nuisance
1) unreasonable & substantial interference
2) with another’s use/enjoyment of property.
- NB: no recovery for thin-skinned π; but yes recovery for thick-skinned πs.
Trespass - elements
1) intentional
2) physical invasion of another’s land
- NB: ∆ need not enter land himself.
- Damages = nominal OK.
Public nuisance
1) unreasonable interference
2) w/ right common to public at large.
-Remedy = suit/prosecution by gov’t UNLESS π suffers harm that is diff in kind.
Necessity defense
- Private: ∆ can use π’s property to extent nec’y to save life or more valuable property. Liable for the actual damages however.
- Public: ∆ may reasonably damage π’s property when nec’y to protect large number of people. absolute protection from liability
“Reasonable Care”
- Takes into aacct physical but not mental disability
- Scaled up for those w/ superior competence, OR for pros (SoC = practitioners in that community), OR innkeepers/carriers to guests:
- Kids = reasonable kid of same age, experience UNLESS doing adult activity (adult standard). Usually no liability for kids under 4.
Informed Consent
Docs must explain risks beforehand and get consent unless: a) patient unconscious and no relative there, b) risk commonly known, OR c) disclosure would be harmful to this partic patient
NY: P must show failure to make timely disclosure, reasonable person wouldn’t consent if informed, and proximate causation.
Guest Statute
Some states lower standard of care that drivers owe passengers; must show gross neg.
NY: No guest statute; drivers owe passengers reasonable duty of care.
Affirmative Duty
- Recue initiated already (but Good Samaritan Laws protect pro rescuers who use due care)
- Placing victim in peril: even if non-negly
- Duty created by K
- “By authority”: parent-child or employer-employee
- Special relationship
Res ipsa
Tried of fact may infer negligence in absence of direct evidence and:
- accident is kind not ordinarily occurring w/out neg
- instrumentality was exclusively in D’s control
- not caused by P
Wrongful Life/Fetuses
Fetuses owed duty of care if viable.
Mother can usually recover costs of labor and/or special care for failure to diagnose defect or perform contraceptive procedure correctly.
Respondeat Superior
- Employer liable for torts caused by employees w/in scope of employment (only liable for intentional torts if force is part of job)
- Only liable for indie Kors if neg in selecting them, OR inherently dangerous activity, OR non-delegable duty owed to public or specific P
- Indemnification: employer who pays out can seek complete reimbursement from employee.
Neg Entrustment
Owner of car is only liable for borrower’s torts if he inez of user’s dangerous propensities. BUT “permissive use statutes” make owner automatically liable, AND “family use statutes” make owner liable for family-member drivers.
NY: Permissive use law makes owner vicariously liable for anyone allowed to USE (not nec’ly drive) the car. No liability for their intentional torts though.
NB: in NY, failure to wear seatbelt is inadmissible for comp fault purposes, but is admissible to limit P’s recovery to injuries that would’ve been suffered anyway.
Parental Vicarious Liability
Parents are not liable for kids’ torts UNLESS child is parent’s agent OR parent knew of need to supervise/control child and did not.
NY: NO liability for neg supervision unless entrusted child w/ dangerous instrument OR aware of vicious tendencies. Liability lmtd to $5K for intentional acts of kids over 10.
Dram Shop Acts
Make bar owners SL for selling booze to someone who later, bc of their drunkeness, injures another.
NY: Recovery allowed if buyer was “visibly intoxicated.”
