Torts COPY Flashcards
Bystander IIED
Elements:
1. D injured a third party…
2. intentionally or recklessly
3. P was closely related to V,
4. P was present and witnessed it,
5. D knew these facts, and
6. P suffered SED.
Or, if it was D’s design or purpose to cause SED to P.
BARBRI:
(1) P was present when the injury occurred;
(2) the distress resulted in bodily harm or the P is a close relative of the third person; and (3) the defendant knew these facts.
Recovery for Tresspass to chattels vs Conversion
Tresspass to chattels: Recover cost of repair or rental value.
Recovery of actual damages from harm to chattel or loss of use.
Conversion: Recover full value + replevin. Damage award of fair market value of chattel at time of conversion or possession (replevin)
Consent given by mistake
Valid defense unless
1. D knows P is mistaken and exploits it, or
2. D is responsible for the mistake
Recapture of chattels
When only PEACEFUl is allowed: When another’s possession began lawfully (for example, a conditional sale), one may use only peaceful means to recover the chattel.
When FORCE is allowed: hot pursuit of person who obtained possession wrongfully.
Reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, for example, by theft.
Self defense mistake
A reasonable mistake as to the existence of the danger is allowed.
Mistake - defense of others
A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted.
DEFENSE of property - mistake?
A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required.
**BUT, **a mistake is not allowed as to whether the entrant has a privilege (for example, necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is).
Defense of property is not available for what?
Privilege - this defense is not available against one with a privilege.
Whenever an actor has a privilege to enter onto the land of another because of necessity, recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend their property.
NO MISTAKE AS TO PRIVILEGE ALLOWED:A mistake is not allowed as to whether the entrant has a privilege (for example, necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is).
Hot pursuit
Part of Defense of property - Defense of property does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing.
Attractice Nuisance Doctrine
Res Ipsa Loquitor
Burden-shifting
If one or more D’s simultaneously engaged in neg conduct that couldda caused P’s injuries, the ct requirs each D to prove their actions were not the actual cause of P’s injuries.
If D cannot prove that other D was responsiuble, both will be JOINTLY and severally liable.
Joint and Several Liability
When two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (that is, liable to the plaintiff for the entire damage incurred).
- If the injury is divisible, each defendant is liable only for the identifiable portion.
Also, When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury. This is so even if the injury is divisible.
