Torts I Flashcards
(211 cards)
1
Q
Civil Law Systems:
A
eveloped in Western Europe and later extended to other parts of the world including Japan. Takes law from roman Law where law is expressed in general principles rather than particular rules. Writings of major legal scholars are a primary source of law and judicial decisions are considered nonbinding.
2
Q
Trespass
A
all forcible, direct and immediate injuries whether to person or property
3
Q
Case
A
wrongful conduct that was not forcible or direct – but rather indirect
4
Q
Facets of Case claims
A
- Required proof of negligence or wrongful intent.
- Damages were required to be shown.
- Case applies to tangible injuries to person or property. Case is a civil claim not criminal.
5
Q
log thrown in the road. Case claim or trespass?
A
Immediate damage is Trespass and later damage is Case
6
Q
Scott v. Shepherd
A
A free agent is not someone who acts in necessity from terror. In other words, acts made in terror are not actionable
7
Q
Hutchins v. Maughan
A
For trespass to lie, the P’s injuries must be directly occasioned by D’s actions and not consequential of D’s actions
8
Q
Leame v. Bray
A
For trespass to lie, P must be injured as an immediate result of a force originally set in motion by D
9
Q
If the plaintiff has an original trespass claim, then consequential damages may be included in that claim. True or false?
A
True. the plaintiff may recover damages from consequences of the original action.
10
Q
Weaver v. Ward
A
No man excused from trespass unless injuries caused completely and utterly w/o D’s will; D must show that injury was inevitable and that D not negligent
11
Q
Brown v. Kendall
A
Court relies on this when doing a lawful act the burden of proof of undue care was on the plaintiff.
12
Q
Transferred Intent
A
intent to batter X results in a battery to Y. This works unless X and Y are so different that the intent cannot be presumed
13
Q
Wallace v. Rosen
A
No, the civil action of battery requires intent not negligence. The required mental state must be intentional. In this case, even if the action may have been considered rude in normal situations, the situation in question is far from “normal”
14
Q
ransferred Intent between two dissimilar creatures?
A
No it cannot transfer. Ex: Shoot at a bear – Hit a human. No liability because the defendant only intends to hit a bear not a person. If a hunter were liable, it would expose a non-negligent hunter to liability.
15
Q
Battery requires:
A
an invasion of the person. Usually touching.
16
Q
ASSAULT
A
ntentionally causing an apprehension of immediate or eminent harmful or offensive contact. Words may give an action a hostile color while words may also negate an action. (If you weren’t old, I would hit you.)
17
Q
Elements of assault
A
- Intent: Intent to produce the result (apprehension of harmful or offensive contact (Purpose or Knowledge)
- Act: An immediate or eminent act that causes the result
- Result:Apprehension (NOT fear- P doesn’t have to be afraid, just “contemplation”(Apprehension)) of a battery (harmful or offensive contact)
18
Q
Does injury necessary for assault claim?
A
action does not require an injury to be an assault
19
Q
There must be an overt act in furtherance of the assault. T or F?
A
True. Intent to immediate battery must be shown
20
Q
FALSE IMPRISONMENT* - FALSE ARREST
A
Being kept physically or by threat of violence within the bounds of a certain area without knowledge of means to escape. Can be as large as a city
21
Q
compelled restraint voluntarily. (Force to self, other or property - hard to support property, must be valuable.)
A
must be physical in nature – this can result where P understood that physical force would be used if P didn’t submit
22
Q
What does not constitute false imprisonment
A
mental, economic, or emotional pressure does NOT create false imprisonment. Threat of future harm is not sufficient.
23
Q
Must be intent to confine – t or f?
A
True. must be desire or belief to substantial certainty
24
Q
INTENTIONAL INFILICTION OF EMOTIONAL DISTRESS:
A
D’s act must be extreme and outrageous; words alone may suffice, but simple insults are not actionable. D must intend severe Emotional Distress; reckless conduct suffices. Distress must be more than reasonable person could be expected to endure
25
Reckless
Acting with consciousness of high risk of harm – this definition is not conclusive. An actor may not be conscious of risk, but may be seen as reckless –Intoxication
26
Extreme and Outrageous
beyond all possible bounds of decency; atrocious and utterly intolerable in a civilized community
27
TRESPASS TO LAND
Invasion that interferes with the right of exclusive possession. 2) Must be a direct result of some act committed by the D
28
elements of trespass to land
Must be volitional (made by choice). Must be intent to intrude on land; mistake is no defense
29
Restatements 159
Air travel is a trespass when 1) enters into immediate reaches of the air space next to the land, and interferes substantially with others use and enjoyment of land
30
1929 Edwards v. Sims
A cave that extends into another’s property is part of that person’s property.
31
Boehringer v. Montalto 1931
Sewer line 150 feet below is not part of the property. Because beyond reasonable use by the owner.
32
Placing an object can be trespass.. t or f?
True
33
Private Nuisance
Person in possession of land can maintain action for unreasonable interference (through noise, fumes, vibrations, etc) with the use and enjoyment of land
34
Mere licence
Person staying in motel room cannot sue a trespasser to that room, because even though person had possession, the motel owner still has control over the premises – the guest is a mere licensee
35
TRESPASS TO CHATTELS
Intentional interference with the right of possession of personal property. The defendant's act must intentionally damage the chattel, deprive the possessor of its use for a substantial period, or totally disposes the chattel from the victim. Said to be the little brother of a conversion
36
elements of trespass to chattel
Act: D’s act must be volitional movement resulting in dispossession of or harm to chattel
2. Intent: D must have intended to deal with the chattel in manner in which he did a.Mistake is not defense
3. Result: Invasion of chattel interest; there must be some damage (either a.Dispossession: Asserting proprietary interest in chattel over interest of rightful owner (theft or destruction of chattel)b.Intermeddling: Lesser interference with chattel that does not challenge rightful owner’s interest in chattel (throwing rock at car)
4. P must have actual possession
5. Causation – Invasion must be legally caused by D’s act or force set in motion thereby
37
CONVERSION
Intentional exercising dominion and control over another's chattel that so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. The difference between trespass to chattel and conversion is that in trespass the P retains “general right of dominion”, where as conversion the act is so serious that it acts as a forced sale
38
87 of 99Examples of conversions
b. Acquiring possession (stealing chattel)
c. Damaging or altering chattel
d. Using chattel (unauthorized use by bailee)
e. Receiving chattel (buying or receiving stolen property)
f. Disposing of chattel (selling or disposing of stolen prop)
g. Mis-delivering chattel
h. Refusing to surrender chattel
39
CONSENT
Whether consent has in fact been given depends on the P’s behavior; whether the P has given express consent (actual communication of willingness to submit to D’s conduct) or apparent consent (consent implied from the P’s conduct in light of the circumstances –depends on reasonableness of circumstances and how reasonable person would interpret P’s actions)
40
When consent is ineffective
a. When D’s acts are in excess of consent given (Hackbart case – factual limits of consent)
b. When consent was induced or acquired through mistake when the D deliberately deceived P to get consent
c. When P is legally incompetent or is a minor
d. When P gives consent that was induced by duress (force or apprehension of force)
41
DEFENSE OF PERSONS
This privilege rests upon the necessity of permitting a person who is attacked to take reasonable steps to prevent harm to himself or herself, where ther is no time to resort to the law.
42
excessive force
defense of persons (self defense) does not cover this.
43
retaliation
Where threat of battery is no longer imminent, privilege of self defense terminates and retaliator can be liable for battery
44
reasonable belief for self defense
D needs only have a reasonable belief that the force is necessary for protection even if there is no necessity. Mistake does not make someone liable as long as the mistake is reasonable
45
reasonable force
i. To justify the use of a deadly weapon D must have reasonableapprehension of loss of life.
ii. D has the burden of proof that the force was reasonable. – if D is a police officer, some courts shift the burden of proof to the P
46
Retreat
i. Common law rule was that D must retreat rather than kill or seriously wound the assailant.
ii. The restatements confirms this rule – except for when you are in your own home.
iii. D may stand his ground and use force short of that which will cause serious injury.
iv. Majority Opinion: Insists on a higher importance of the dignity and honor of individual. D may stand his ground and use deadly force. This question no longer has the importance that it once did because it is nearly impossible to flee from an assailant with a gun.
47
Injury of a Third Party
While intent transfers, so does the defense of self defense and therefore D is not liable for accidental injuries to third parties
48
DEFENSE AND RECOVERY OF PROPERTY
The privilege to defend the possession of property rests upon the same considerations of policy as that of self defense. The interest in peaceful possession and enjoyment justifies protection by self help, in situations where there is usually no time to resort to the law. The force must be reasonable, necessary and not excessive.
49
necessity
D who acts to prevent a threatened injury from some force of nature, or some other independent cause not connected with the P, is said to be acting under necessity
50
Public necessity
Benefits the community – wide segment of the community
51
Private necessity
Private necessity protects a person from liability for trespass, but does not protect from damages. It also may make it wrong for a land owner to interfere with the person subject to necessity. For example if the land removed the ties of the boat and damage was done to the boat then the land owner would be liable. A person seeks shelter because he is ill and it is cold out. If the property owner kicks him out at night and he is injured, there is liability. If D’s property is causing the harm – it might better be described as defense of property rather than if an act of God is causing the harm
52
AUTHORITY OF LAW AND DISCIPLINE
Privilege to interfere with property or person under a legal authority
53
Private citizen who aids police officer in making false arrest can be liable for false imprisonment. True or false?
True. However, if police officer asks for assistance, private citizen not liable unless he knows the arrest is unlawful
54
Arrests under warrant
i. Officer only liable for arrests under warrant if he acts improperly
ii. Officer is not liable for arrest under a warrant if the warrant is “fair on its face”
55
NEGLIGENCE
Negligence formerly described to define a breach of a legal obligation, or to designate a mental element, usually one of inadvertence or inattention or indifference, entering into the commission of other torts.
56
Elements of Negligence
1) Duty of Care: 2) Failure to act/standard of conduct (care):
3) Cause of Damage
57
Duty of Care:
A duty to use reasonable care. Obligation by law that requiresthe actor to conform to a certain standard of conduct, for the protection of others. Forseeability plays a major role in determining duty.
58
Failure to act/standard of conduct (care):
Failure to conform to the required standard is commonly called a breach of duty. If the person is only guilty of breach, but was under no duty to the plaintiff then there is no liability.
59
Cause of Damage:
Actual loss or damage must result to the interest of another. Because negligence developed from action on a case, it requires proof of damage. Damage does not often extend to economic damages to businesses etc. Crashing a boat to a bridge. There could be economic damages by preventing people from going to work.
60
Cause in fact –
deals with cause and effect relationship between the defendant’s tortuous conduct and the P;s injury or loss. Thus it deals with but for causation.
61
Proximate Cause –
concerns a determination fo whether legal liability should be imposed where cause in fact has been established. It is a policy decision made by the legislatyre of the courts to deny liability for otherwise actionable conduct based onthe considerations of logic, common sense, policy, precedent and our mor or less inadequately ecpressed ideas of what justicedemands or of what is administratively possible and convenient.
62
Standard of Care*
Burden
63
REASONABLE CARE
Anticipation – Exercise pf reasonable care – If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to do so is negligence. Test is not of the balance of probabilities, but of the existence of some probability of sufficent moment to induce to avoid it on the part of a reasonable mind. – It can be the anticipation of danger that in all probability won’t come about. Not just forseeability, but must have some substantial possibility.
64
Cause in fact
If party had not been negligent then injury and damage would not have occurred. (Either the injury entirely, or part of the injury.)
65
Legal Cause –
Perhaps more than duty. Attempt to find adequate conduct – reason it is treated as negligent and the damage the P suffered.
66
Bolton v. Stone
P was playing cricket and a hit landed on D who was past the road in her garden. The possibility that she would be hit or even that a person on the road would be hit was foreseeable, but so small that the D was not held liable
67
Physical Disability
Reasonable person standard is altered to be a reasonable person with the same physical disability in the circumstances
68
Mental Disability
Most courts do not make an adjustment for mental illness. D is held to the reasonable person standard. Perhaps this is because it is harder to prove. Another reason for this is the custodians for incompetents will be encouraged to watch them more closely.
69
Intoxication and the reasonable person standard
No change from the norm. the behavior of getting drunk and being in a situation that might possibly cause harm to others is in itself negligent.– A reasonable person would not get drunk in a situation that might cause harm to others.
70
he standard of the unreasonable unconscious person
nothing, but if someone is aware that the possibility exist, they might be negligent
71
Why apply a standard of a child of like age, intelligence, and experience
It removes the contributory negligent factor when the child is a P. If the child is a D he is usually acting in an adult activity.
72
Adult standard of care for children is adopted in...
1. Dangerous activity and
2. Types of activity usually engaged in by adults.
i. An activity engaged in by adults or near adults
ii. Provides danger if engaged in without the typical standard of care.
73
Exception to adult standard for children
The Restatement holds that the special requirement should not be applied when children are engaged in conduct normally engaged in by adults – driving car, motorcycle, scooter, golf, deer hunting, building a fire.
74
The court holds different standards for care for men and women. T or F?
False
75
Degrees of Negligence
negligent and grossly negligent. its a rather silly concept
76
Degrees of care
Vary based on the risk involved. Thus those who deal with things known to be dangerous are held to a higher standard of care.
77
Professional Liability
Higher care. Negligence liability for failing to meet standard of care can be extended in some cases to a third party
78
In informed consent cases, liability is imposed even when the physician was not negligent in performing the operation. T or F?
True
79
Statues and care
Statute takes the reasonable man out of the equation, and does not consider the “like circumstances aspect
80
Rest 2nd 288A
Allows the following excuses to negligence per se:
i. Violation is reasonable because of actor’s incapacity
ii. Actor neither knows nor should know of the occasion for compliance
iii. Actor is unable after reasonable diligence or care to comply
iv. Actor is confronted by an emergency not due to his own misconduct
v. Compliance would involve greater risk of harm to the actor or to others
81
Distinction
D can have an excuse to negligence per se if he is doesn’t know or have reason to know of the facts; ignorance of the law, however, is not an excuse
82
circumstantial evidence–
evidence of a fact from which the existence of another fact may be reasonably inferred
83
RES IPSA LOQUITUR
"the thing speaks for itself" is a doctrine that infers negligence from the very nature of an accident or injury, in the absence of direct evidence on how any defendant behaved
84
Basic elements of RIL
1. P must show that the injury is one which would not ordinarily occur absent negligence
2. P must show that D had control over the instrumentality causing the injury
85
General on Duty of Care
1) Forseeability – Not the only consideration
2) Relationship – Hard to find a relationship to a third party
3) Consideration of Legal or Social Policy
4) Neighbor Standard – Neighbor is one who the D ought ot have had in contemplation that would be in danger when they where performing the negligent act.
5) Cause the dangerous condition: Duty can be found – Especially true if one causes a dangerous situation on a highway.
86
DUTY TO TAKE POSITIVE ACTION
NO duty to take positive action to prevent another’s injury or to aid another who is injured if the D is in no way responsible for the injury or for creating the harm – even if D had ability to protect, even if D’s inaction is unreasonable, etc. Ex: D sees victim drowning and does nothing – no liability b/c no duty
87
Exception to general rule of duty to take positive action
1. Where there is some special and substantial relationship between the P and D a.Ex: family, e’er/e’ee; host/guest; carrier/passenger; jailer/prisoner
2. Where D is responsible for injury or peril, at least partially
3. Where the D voluntarily undertakes to aid victim, he owes a duty to the victim a.When the D begins to aid victim, and then ceases, no liability for terminating aid provided that the abandonment leaves victim in no worse condition
88
HARM TO INTANGIBLE INTERESTS
Generally – no liability for pure economic loss, only if there is some physical damage that accompanies physical loss. Negligence actions can only arise for damages to person or prop – if economic loss is suffered as a consequence of injury to person or prop, there is cause of action for negligence
89
HARM WITHOUT IMPACT
Minor cuts – distress. Minor burns – distress consequential damages for emotional distress
90
EMOTIONAL DISTRESS
General rule and still the majority, is that there has to be physical injury. Difference between ED and Harm without impact cases – nature of harm for which P seeks damage. ED must be so severe it keeps P from engaging in normal activities.
91
CAUSATION
2 elements of causation – the D’s negligent act must be (1) the cause in fact, and (2) theproximate cause, of the P’s injuries
92
sine qua non
D’s negligent conduct is the cause in fact (sine qua non) of P’s injuries if the P would not have been injured but for the D’s act
93
CONCURRENT CAUSES
If two causes concur to bring about an event, but either one alone would bring about that result, some other test is needed. Thus in these cases each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it ; and it is equally clear that neither one of them can be absolved from that responsibilit
94
LEGAL OR PROXIMATE CAUSE
Proximate cause concerns a determination of whether legal liability should be imposed where cause in fact has been established
95
Proximate cause
concerns a determination of whether legal liability should be imposed where cause in fact has been established. Cause in fact is necessary to determine proximate cause. If no cause in fact, then there is no proximate cause
96
Direct Consequences
Direct – Natural and Probable
i. Railroad train derails and hits electric wires which electrocutes an individual miles away.
ii. Wire hits grain bin and knocks over bin, truck. Gun goes off and shoots P
97
Intervening Causes
P and D in car accident; P suffered depression caused by brain injury from accident, and was given drug for this; P later ate cheese, and combination of drug and cheese caused P to have stroke. Eating cheese was a superseding cause, so D’s conduct was not cause of the P’s stroke
98
Shifting Responsibility: no shift
When the D has negligently created risk of harm to P, the failure of 3rdperson to intervene and take some action to prevent the harm will usually not affect the liability of the D if the harm in fact occurs. The fact that the 3rd person was under duty to P to prevent the harm (and thus would be liable for failure to do so) does NOT make any difference to D’s liability
99
Shifting Responsibility: Yes shift
If someone takes control of the harm then the Responsibility can shift. There is no general principal that will determine when the risk will be found to have shifted.
i.D leaves dynamite around. Child picks it up and takes it home.Mom sees the D and takes it away. Mom leaves it around and child gets it and is injured. Mom takes control and thus there is a shift in responsibility.
100
Rescue Doctrine
Practical effect of the rescue doctrine is that it makes D liability to the rescuer in addition to the liability to the rescuee or to the endangered prop; if D would be liable for negligence to the rescuee, D also liable to the rescuer. Cardozo’s famous opinion. –“Danger invites Rescue “ the cry of distress is the summons to relief.”Thus the consequence of a rescuer is natural and probable.
101
Rescue doctrine exceptions
Firefighter’s Rule: Doctrine often not extended to professionals – police – firefighters etc.. unless the type of risk was not reasonably anticipated by the job. Professionals are deemedt to have already been compensated for their service
102
Normal Intervening Forces: 2nd Restate
“a normal consequence of a situation created by the actor’s negligent conduct.”
103
Nominal Damages
A token award to the P in order to vindicate rights when the P establishes liability but no actual damages; these are not awarded in negligence cases because there is no negligence absent some actual damage
104
Compensatory Damages
Financial equivalent of the loss or harm suffered by P; Intended to make the P whole again or restore them to the position they were in prior to the tort.
105
Punitive Damages:
Additional sum, over the compensation of the P awarded in order to punish the defendant, to make an example of D and deter D and others from conduct.
106
Five Elements of Damages
1.Past physical and mental pain 2.Future physical and mental pain 3.Future medical expenses 4.Loss of earning capacity 5.Permanent disability and disfigurement
107
Economic Loss
```
Medical expenses:
Lost Wages:
Lost or Impairment of Future Earnings Capacity:
Damage Calculation PV:
Federal income Tax:
Interest:
```
108
Non-Economic Losses
```
Physical Pain and Suffering, mental anguish:
Loss of Function or Appearance:
Emotional Distress:
Litigation Induced Stress:
Loss of Enjoyment of Life:
Per Diem:
Reduced Life Expectancy: T
Remittitur:
Additur:
Loss of Consortium:
Litigation Expenses:
Contingent Fee:
Hourly Fee:
```
109
Collateral Source Rule
Payments from a collateral source (such as P’s insurer) that compensate for the P’s loss are NOT taken into account, and the D must compensate P without regard to these payments
a. However, benefits paid to P from D’s insurer are not collateral sources, and these do reduce the P’s damages
b. P may be req’d to repay insurance company for any damages that P received from D that have been reimbursed by insurer
110
Problem with Lump Sum Payment System
P often spends the money
111
Problem with periodic payment
D is exposed to continual liability
112
annuity awards
Lump sum paid by D and put in annuity for P. Protects P from spending all at once and ensures that the money will more than likely grow at a good rate at least well over inflation
113
P can recover for “sentiment.” T or F?
False. P can’t recover for “sentiment”– i.e., family heirloom that’s valuable to P but worthless to others – P can’t recover for sentiment or emotion, just for economic damages
114
Avoidable consequences rule
P can’t recover damages if the P took an unreasonable course of conduct (unreasonable expenses, unreasonable refusal to submit to surgery when reas person would have done so)
115
Contributory Negligence
happens before any damages occur.
116
Avoidable consequences happen after a legal wrong but before some damages may still be adverted.
happen after a legal wrong but before some damages may still be adverted.
117
Negligence
conduct which creates an undue risk of harm to others
118
Contributory negligence
conduct which involves an undue risk of harm to the actor himself.
119
Comparative Negligence
Comparative negligence reduces the P’s recovery by the percentage of P’s negligence, fault, or responsibility
120
Pure Comparative Negligence
P can recover even if P’s negligence exceeds D’s – Recovered based on percent negligence of each party
121
Modified Comparative Negligence:
P can recover only if P’s negligence does not exceed D’s – states differ as to whether P can recover when negligence is equal ○In modified states, if there are multiple D’s, the P’s negligence is compared against ALL of the D’s
122
severable liability
multiple D’s – since contributory negligence apportions fault, if there are two or more D’s they should only be liable for their portion of the fault, and not for entire damages
123
Assumption of Risk
Acts as a complete bar to P’s recovery
124
Express assumption of risk:
P expressly agrees in advance that the D is under no obligation to care for him and is not liable for consequences of conduct that would otherwise be negligent
125
Implied Assumption of risk:
Must be three elements
■Must be risk of harm to P caused by D’s conduct or by the condition of D’s land or chattels
■P must have actual knowledge of the particular risk and appreciate its magnitude (general knowledge of a “danger” is not sufficient)
■P must voluntarily choose to enter or remain within the area of the risk under circumstances that manifest his willingness to accept that particular risk
126
“volenti non fit injuria”
(“to the willing there is no legal injury”). The consent must be voluntary – there is no voluntary consent if there is no alternative or no reasonable alternative available to the P
127
Statute of limitations
begins to run when the cause of action first arises or accrues
128
In negligence action, the SOL doesn’t begin to run until...
the P actually suffers damage
129
In trespass action, no damage is req’d so P has cause of action when...
trespass first occurs
130
Discovery Doctrine
SOL doesn’t begin to run until P actually discovers or should have discovered the injurySOL doesn’t begin to run until P actually discovers or should have discovered the injury. This has been applied only to medical claims – not applied to all negligence claims ○Does NOT apply when the P is aware of the injury but just not aware of who caused it
131
Statutes of Repose
Adopted by legislatures; bars all claims after certain time has elapsed
132
Immunities
avoid liability in tort under all circumstances
133
Spousal Immunity
At common law, there was complete spousal immunity – neither spouse could sue the other for torts committed before or during the marriage . Most states have now completely abolished this rule
134
Parent/Child Immunity
Some states have completely abolished it 2.Others have created exceptions
135
exceptions to parent child immunity:
a. Personal injuries inflicted intentionally, or willfully or wantonly
b. Injuries caused to child through gross negligence; or willful disregard for child’s well-being
c. Sexual assault or sexual abuse
d. Wrongful death action by child against parent for death of other parent
e. Action against parent for child’s wrongful death
f. When D is step-parent or someone standing in loco parentis
g. Legally emancipated children
h. Auto accidents
136
Municipalities were only liable for...
proprietary, not governmental, functions. Doctrine has been abolished by most state courts
137
Governmental functions
Functions that are only performed by gov’t (police, fire, courts, etc)
138
Proprietary functions:
Functions that could as well be performed by private corps a.Ex: Construction and maintenance of streets, sewers, public improvements, etc
139
Gov immunity
Mostly eliminated, but Many states and the fed gov’t continue to have immunity for discretionary functions (where the gov’t is acting to establish policy), but have eliminated it for ministerial acts (acts that implement or effectuate policies)
140
Public officers immunity
a.They are subject to personal liability for tortious conduct committed in the course of their official duties b.The public official may be shielded from liability if the official’s conduct comes within the common law official immunity (a separate immunity from the sovereign immunity)
141
Legislators and judges have absolute immunity for acts committed within the scope of their office, even if they acted in bad faith. T or F?
True
142
Mistake as to identity
A mistake is not a defense for liability because the intent is still there.
143
Battery includes:
```
♣ Grabbing
♣ Spitting
♣ Farceably removing clothing (hat, etc.)
♣ Searching pockets
o Does not include:
♣ Tapping shoulder
```
144
OUJI 3d (Rev 2009) Instruction No. 19.1
In order for [Plaintiff] to recover from [Defendant] on [Plaintiff's] claim of assault, you must find that both of the following have been established:
1. [Defendant] acted either with the intent of making a [harmful/offensive] contact with the person of [Plaintiff], or with the intent of putting [Plaintiff] in apprehension of such a contact; and
2. [Plaintiff] was placed in apprehension of an immediate [harmful/offensive] contact with [his/her] person by the conduct of [Defendant]; or [Plaintiff] was caused to suffer fright and terror.
145
OUJI-Civ. No. 20.2
Defendant] intentionally caused emotional distress to [Plaintiff] if [he/she/it] desired to cause such distress or knew that such distress was substantially certain to result from [his/her/its] conduct.
[Defendant] recklessly caused emotional distress to [Plaintiff] if [he/she/it] knew there was a substantial probability that emotional distress to [Plaintiff] would result from [his/her/its] conduct, and [he/she/it] deliberately disregarded that probability.
146
OUJI-Civ. No. 20.3
The term "emotional distress" means mental distress, mental pain and suffering, or mental anguish. It includes all highly unpleasant mental reactions, such as fright, horror, grief, humiliation, embarrassment, anger, chagrin, disappointment, and worry.
147
OUJI-Civ. No. 20.4
If you decide for [Plaintiff], then you must assess [his/her] damages, which may be actual or nominal.
To assess actual damages you must find that [Plaintiff] sustained actual injuries as a direct result of the claimed emotional distress.
[Plaintiff] is entitled to an amount of dollars to compensate for all injuries directly caused by the emotional distress, whether they could have been anticipated or not, including:
1. Emotional distress;
2. Any physical discomfort or inconveniences;
3. Any physical illness or injury;
4. Any reasonable medical expenses;
5. Any loss of reputation;
6. Any loss of earnings; and
7. [Insert any other items of compensable damage].
If you find in favor of [Plaintiff] but do not find any actual damages, you shall nonetheless award [him/her] nominal damages in the sum of one dollar.
148
OUJI-Civ. 17.1
A trespass is an entry [upon/under the surface of] the real estate of another without the permission of the person lawfully entitled to possession. Permission may be either express or implied.
149
OUJI-Civ.27.1
Conversion is an unauthorized assumption and exercise of the right of ownership over the personal property of another person that is inconsistent with the rights of the owner. [Plaintiff] is required to prove by the greater weight of the evidence the following in order to recover on the claim for conversion against [Defendant]:
1. [Plaintiff] (was the owner of)/possessed/(had the right to possess) the [Specify Property];
2. [Defendant] intentionally (took possession of)/(prevented [Plaintiff] from having access to)/destroyed the [Specify Property];
3. [Plaintiff] did not consent; and
4. [Plaintiff] was harmed as a result of the conduct of [Defendant].
150
OUJI-Civ.27.2
If you decide for [Plaintiff] on the question of liability, you must then determine the amount of money that will reasonably and fairly compensate [him/her] for the conversion of the [insert description of property]. That amount is:
1. The value of the property at the time of the conversion with interest from that time;
or
2. The highest market value of the property at any time between the time of the conversion and your verdict;
and a fair compensation for the time and money properly expended by [Plaintiff] in pursuit of the property.
151
OUJI-Civ. No 14.13: Informed consent required
CAUSATION: Before a physician may be held liable for a breach of [his/her] duty to disclose, the patient must establish that [he/she] would have chosen no treatment or surgery or a different course of treatment of surgery had the alternatives and material risks of each been made known to [him/her]. In addition, the patient must have been injured by the undisclosed risk as a result of submitting to the treatment or surgery.
152
OUJI-Civ 14.12
EXCEPTIONS TO DUTY.
153
OUJI-Civ 14.11
PHYSICIAN'S DUTY: It is the duty of the physician to disclose to [his/her] [patient] all relevant information to enable that [patient] to make an informed decision on whether to consent to or reject the physician's proposed treatment or surgery.
This duty of disclosure includes advising a [patient], when a proposed treatment or surgery involves a known risk of death or serious bodily harm, of the possibility of such outcome and explaining in understandable terms the complications that might occur. The disclosure shall include any alternatives to the proposed treatment or surgery and the risks of each, including the risk in foregoing all treatment or surgery.
154
OUJI-Civ 14.15
DUTY OF HOSPITAL: A hospital must exercise ordinary care and attention for its patients. Ordinary care means that care and attention required under all the circumstances that is appropriate to the physical and mental condition of each patient. A hospital has a duty to [(supervise care rendered to a patient by hospital employees)/(use reasonable care when providing the patient with a nurse/physician/(other health care provider))/(ensure that staff privileges are granted only to competent physicians)/(protect patients from staff physicians that it knows or reasonably should know are incompetent)].
155
OUJI-Civ. No. 9.2
NEGLIGENCE DEFINED: "Negligence" is the failure to exercise ordinary care to avoid injury to another's person or property. "Ordinary care" is the care which a reasonably careful person would use under the same or similar circumstances. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide. Thus, under the facts in evidence in this case, if a party failed to do something which a reasonably careful person would do, or did something which a reasonably careful person would not do, such party would be negligent.
156
OUJI-Civ. No. 10.10: Sudden Emergency
The Committee recommends that no Instruction should be given, because the general instructions on negligence adequately cover this issue.
157
OUJI-Civ. No. 9.4 and 9.4A
CHILD'S CAPACITY FOR NEGLIGENCE: For children between 7 and 14 years old]- A child between 7 and 14 years old is presumed not to be capable of being negligent, but may be shown to be capable of negligence. Since [Name of Child] was ____ years old at the time of the accident, you are to presume that [he/she] was not capable of being negligent. This presumption may be overcome, though, and the [Name of Other Party] has the burden of proving by the greater weight of the evidence that [Name of Child] was capable of negligence.
[For children 14 years and older]- A child 14 years old or older is presumed to be capable of being negligent, but may be shown not to be capable of negligence. Since [Name of Child] was ____ years old at the time of the accident, you are to presume that [he/she] was capable of being negligent. This presumption may be overcome, though, and [Name of Child] has the burden of proving by the greater weight of the evidence that [he/she] was not capable of negligence.
CHILDREN- STANDARD OF CARE: Children are under a duty to use that degree of care which children of like age, experience, and intelligence are accustomed to use under similar circumstances to protect [themselves/others] from injury.
158
OUJI-Civ. No. 5.6
EXEMPLARY OR PUNITIVE DAMAGES- FIRST STAGE:
159
OUJI-Civ No. 9.17
If you find in favor of [Plaintiff], and grant [him/her] actual damages, then you must also find by a separate verdict, whether [Defendant] (acted in reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others).
[Plaintiff] has the burden of proving this by clear and convincing evidence. By that I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which the party has this burden of proof is highly probable and free from serious doubt.
[The conduct of [Defendant] was in reckless disregard of another's rights if [Defendant] was either aware, or did not care, that there was a substantial and unnecessary risk that [his/her/its] conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another's rights, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.]
[Malice involves either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.]
If you find that [Defendant] acted (in reckless disregard of the rights of others) or (intentionally and with malice towards others), you may award punitive damages against [Defendant] in a later part of this trial. If you find that [Defendant] did not act (in reckless disregard of the rights of others) or (intentionally and with malice towards others), you may not award punitive damages against [Defendant].
160
OUJI-Civ no 9.18
COMPARATIVE NEGLIGENCE: ONE DEFENDANT- DEFINITION: As a part of [his/her] defense, [Defendant] first denies that any negligence on [his/her] part was the direct cause of the occurrence involved in this lawsuit and any resulting injuries to [Plaintiff]. [Defendant] further contends that if, however, the jury should find that [he/she] was negligent to some degree, then it is [his/her] contention that [Plaintiff's] own negligence exceeded [Defendant's] negligence, so as to prevent any recovery by [Plaintiff] in this lawsuit. To establish this defese, [Defendant] must show by the greater weight of the evidence that [Plaintiff] was negligent and [his/her] negligence was a direct cause of [his/her] injury.
Under the law you are to compare the percentage (0%-100%) of negligence of [Plaintiff], if any, with the percentage (0%-100%) of negligence of [Defendant], if any.
161
OUJI-Civ. No. 9.14
ASSUMPTION OF RISK: [Plaintiff] assumed the risk of injury resulting from [Defendant's] negligence if [he/she] voluntarily exposed [himself/herself] to injury with knowledge and appreciation of the danger and risk involved. To establish this defense, [Defendant] must show by the weight of the evidence that:
1. [Plaintiff] knew of the risk and appreciated the degree of danger;
2. [Plaintiff] had the opportunity to avoid the risk;
3. [Plaintiff] acted voluntarily; and
4. [Plaintiff]'s action was the direct cause of [his/her] injury
162
OUJI-Civ 4.1
PERSONAL INJURIES- ADULTS: If you decide for [Plaintiff], you must then fix the amount of [his/her] damages. This is the amount of money that will reasonably and fairly compensate [him/her] for the injury sustained as a result of the [negligence/(wrongful conduct)] of [Defendant].
In fixing the amount you will award [him/her] you may consider the following elements:
A. [His/Her] physical pain and suffering, past and future;
B. [His/Her] mental pain and suffering, past and future;
C. [His/Her] age;
D. [His/Her] physical condition immediately before and after the accident;
E. The nature and extent of [his/her] injuries;
F. Whether the injuries are permanent;
G. The physical impairment;
H. The disfigurement;
I. Loss of [earnings/time];
J. Impairment of earning capacity;
K. The reasonable expenses of the necessary medical care, treatment, and services, past and future.
163
OUJI-Civ. No. 5.3
DUTY TO MITIGATE DAMAGES- PERSONAL INJURY: In fixing the amount of money that will reasonably and fairly compensate [Plaintiff], you are to consider that an injured person must exercise ordinary care to obtain proper treatment. Damages cannot be recovered for an injury resulting from a failure to exercise such care
164
OUJI-civ. No. 12.10
AFFIRMATIVE DEFENSE OF VOLUNTARY ASSUMPTION OF THE RISK OF A KNOWN DEFECT: [Defendant] has raised the defense in this case that [Plaintiff] voluntarily assumed the risk of injury from a known defect in the [product]. Assumption of the risk occurs where a person voluntarily and unreasonably exposes [himself/herself] to a known, appreciated, and avoidable danger of injury from the defect in the [product]. To establish this defense, [Defendant] must show by the weight of the evidence that:
1. A defect in the [product] existed, which created a risk of injury;
2. [Plaintiff] knew of the risk and appreciated the degree of danger;
3. [Plaintiff] had the opportunity to avoid the risk; and
4. [Plaintiff]'s use of the [product] was voluntary and unreasonable and was the direct cause of [his/her] injury.
165
OUJI-civ no 12.9
AFFIRMATIVE DEFENSE OF MISUSE OF PRODUCT: [Defendant] has raised the defense in this case that [Plaintiff] misused the [Specify Product] and the misuse was the sole cause of [Plaintiff]'s injury. Misuse of a product is a use that could not reasonably be anticipated by its maker. If [Plaintiff] was using the [Specify Product] in a way that was foreseeable or should have been anticipated by [Defendant], it is not misuse even if [Plaintiff] was negligent in using it.
166
Restatement 46(2)
Offensive conduct: presence: requires knowledge of bystanders presence and (1) directed at a member of bystanders immediate family or (2) bystander suffers bodily harm as a result of distress
167
Restatement (first) of torts S 218 (1934)
Liability to the Person in Possession:
One who without a consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in the possession of another is liable for a trespass to such person if, but only if,
(a) the chattel is impaired as to its condition, quality or value, or
(b) the possessor is deprived of the use of the chattel for a substantial time, or
(c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.
168
Restatement (second) of torts S 217
Ways of Committing Trespass to Chattel:
A trespass to a chattel may be committed by intentionally
(a) dispossessing another of the chattel, or
(b) using or intermeddling with a chattel in the possession of another.
169
Restatement (second) of torts S 218
Liability to Person in Possession:
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest
170
Restatement (2d) Torts S 222A and 223: What constitutes conversion and Ways of Committing Conversion
(1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
(a) the extent and duration of the actor's exercise of dominion or control;
(b) the actor's intent to assert a right in fact inconsistent with the other's right of control;
(c) the actor's good faith;
(d) the extent and duration of the resulting interference with the other's right of control;
(e) the harm done to the chattel;
(f) the inconvenience and expense caused to the other
A conversion may be committed by intentionally
(a) dispossessing another of a chattel as stated in §§ 221 and 222;
(b) destroying or altering a chattel as stated in § 226;
(c) using a chattel as stated in §§ 227 and 228;
(d) receiving a chattel as stated in §§ 229 and 231;
(e) disposing of a chattel as stated in § 233;
(f) misdelivering a chattel as stated in §§ 234 and 235;
(g) refusing to surrender a chattel as stated in §§ 237- 241.
171
Restatement, Second, Torts S 65
Self-Defense by Force Threatening Death or Serious Bodily Harm: (1) Subject to the statement in Subsection (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that
(a) the other is about to inflict upon him an intentional contact or other bodily harm, and that
(b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force.
(2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by
(a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or
(b) permitting the other to intrude upon or dispossess him of his dwelling place, or
(c) abandoning an attempt to effect a lawful arrest.
(3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by
(a) retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or
(b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest.
172
Restatement (2nd) Torts S 76 Defense of Third Person
The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that
(a) the circumstances are such as to give the third person a privilege of self-defense, and
(b) his intervention is necessary for the protection of the third person.
173
Restatement (2d) Torts S 120 A
Temporary Detention for Investigation: One who reasonably believes that another has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a chattel purchased or services rendered there, is privileged, without arresting the other, to detain him on the premises for the time necessary for a reasonable investigation of the facts.
174
Restatement (second) Torts S 150 (1965)
Factors Involved in Determining Reasonableness of Punishment: In determining whether force or confinement is reasonable for the control, training, or education of a child, the following factors are to be considered:
(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
(c) the nature of his offense and his apparent motive;
(d) the influence of his example upon other children of the same family or group;
(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.
175
Restatement (second) of Torts (1965)
Pg 148-149
176
Restatement (third) of Torts: liability for physical and emotional harm (2010)
149
177
Restatement (Second) of Torts S 289 (1965)
289 Recognizing Existence of Risk: The actor is required to recognize that his conduct involves a risk of causing an invasion of another's interest if a reasonable man would do so while exercising
(a) such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have; and
(b) such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.
178
Restatement (Third) of Torts: Phys. & Emot. Harm S 12 (2010)
Knowledge and Skills: If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.
179
Restatement (Second) Torts S 295A (1965)
Factors Important in Determination of Standard of Reasonable Conduct: In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them
180
Restatement (Third) of Torts: Phys. & Emot. Harm S 10 (2010)
Children negligence: (a) A child's conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in Subsection (b) or (c).
(b) A child less than five years of age is incapable of negligence.
(c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.
181
Restatement (Third) of Torts: Phys. & Emot. Harm S 11 (2010)
Disability negligence: (a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.
(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.
(c) An actor's mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.
182
Restatement (Second) Torts S 500 (1965):
Reckless Disregard of Safety Defined: The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
183
Restatement (Third) Torts: Liability for physical and emotional harm S 2 (2010):
`
184
Restatement (Second) Torts S 288 and 286(1965)
When Standard of Conduct Defined by Legislation or Regulation Will Not Be Adopted: The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively
(a) to protect the interests of the state or any subdivision of it as such, or
(b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public, or
(c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public, or
(d) to protect a class of persons other than the one whose interests are invaded, or
(e) to protect another interest than the one invaded, or
(f) to protect against other harm than that which has resulted, or
(g) to protect against any other hazards than that from which the harm has resulted.
The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results
185
Restatement (Second) S 288(a)
When Standard of Conduct Defined by Legislation or Regulation Will Not Be Adopted: The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively
(a) to protect the interests of the state or any subdivision of it as such, or
186
Restatement of (Second) Torts S 328D
`
187
Restatement (Second) of Torts S323 (1965)
Negligent Performance of Undertaking to Render Services: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
188
Restatement (second) of torts S 431 (1965)
What Constitutes Legal Cause: The actor's negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.
189
Restatement (second) of torts S 432(1-2) (1965)
Negligent Conduct as Necessary Antecedent of Harm: (1) Except as stated in Subsection (2), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.
(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about.
190
Restatement (second) of torts S 433 (1965)
Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm: The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.
191
Restatement (third) of torts: Phys. & Emot. Harm S 27 (2010)
Multiple Sufficient Causes: If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm
192
Restatement (Second) of Torts S 324A (a965)
Liability to Third Person for Negligent Performance of Undertaking: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
193
Restatement (second) of Torts S 479 (1965): Last clear chance: Helpless Plaintiff
A plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he
(i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise.
194
Restatement (third) of torts: apportionment Liab. S 7 (2000)
Effect of Plaintiff's Negligence When Plaintiff Suffers an Indivisible Injury: Plaintiff's negligence (or the negligence of another person for whose negligence the plaintiff is responsible) that is a legal cause of an indivisible injury to the plaintiff reduces the plaintiff's recovery in proportion to the share of responsibility the factfinder assigns to the plaintiff (or other person for whose negligence the plaintiff is responsible).
195
Restatement 2nd S 909
Punitive Damages Against a Principal: Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
(a) the principal or a managerial agent authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.
196
RoT (second) S 491 (1965) – Joint enterprise
(1) Any one of several persons engaged in a joint enterprise, such as to make each member of the group responsible for physical harm to other persons caused by the negligence of any member, is barred from recovery against such other persons by the negligence of any member of the group.
(2) Any person engaged in such a joint enterprise is not barred from recovery against the member of the group who is negligent, but is barred from recovery against any other member of the group.
197
RoT (third) Apportionment Liab. S 5 (2000)
`
198
RoT (second) S 840 (1979)
Failure to Abate Harmful Natural Condition of Land: (1) Except as stated in Subsection (2), a possessor of land is not liable to persons outside the land for a nuisance resulting solely from a natural condition of the land.
(2) A possessor of land who knows or has reason to know that a public nuisance caused by natural conditions exists on his land near a public highway, is subject to liability for failure to exercise reasonable care to prevent an unreasonable risk of harm to persons using the highway.
199
RoT (second) S 337 (1965)
Artificial Conditions Highly Dangerous to Known Trespassers: A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if
(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and
(b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved
200
RoT (Second) S 332
Invitee Defined: (1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
201
RoT Second 343a
Known or Obvious Dangers: (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
202
RoT (second) 514 (1977)
Harborers of Wild Animals or Abnormally Dangerous Domestic Animals: One who, although not in possession, harbors a wild animal or an abnormally dangerous domestic animal, is subject to the same liability as if he were in possession of it.
203
RoT (2) S 520 (1977): abnormally dangerous activites
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
204
RoT (second) 519 (1977)
Abnormally Dangerous Activities: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
205
RoT (Second) S 515 (1977)
Effect of Contributory Fault: (1) A plaintiff is not barred from recovery by his failure to exercise reasonable care to observe the propinquity of a wild animal or an abnormally dangerous domestic animal or to avoid harm to his person, land or chattels threatened by it.
(2) A plaintiff is barred from recovery by intentionally and unreasonably subjecting himself to the risk that a wild animal or an abnormally dangerous domestic animal will do harm to his person, land or chattels.
206
RoT (Third) S 25 (2010) Phy. And Emot. Harm
Source of Danger: To make the actor liable for an assault under the rule stated in § 21, the actor must have put the other in apprehension that the actor will himself inflict a bodily contact upon him.
207
RoT (second) 402A (1965)
Special Liability of Seller of Product for Physical Harm to User or Consumer: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
208
RoT (third) Prod. Liab. S 1 (1998): Liability of commercial seller…
Interest: The word “interest” is used throughout the Restatement of this Subject to denote the object of any human desire.
209
RoT (third) Prod. Liab. S 2 (1998): Categories of product defect
Act: The word “act” is used throughout the Restatement of this Subject to denote an external manifestation of the actor's will and does not include any of its results even the most direct, immediate and intended.
210
RoT (3) Prod. Liab. S 7 (1998)
Injury: The word “injury” is used throughout the Restatement of this Subject to denote the invasion of any legally protected interest of another.
211
RoT (3) Prod. Liab. S 6 (1998)
Tortious Conduct: The word “tortious” is used throughout the Restatement of this Subject to denote the fact that conduct whether of act or omission is of such a character as to subject the actor to liability under the principles of the law of Torts.
