Tort Law

91 flashcards by MentisLibrary

Who pays when someone gets hurt. Intentional torts, the four elements of negligence, strict liability, products liability, and the defenses that cut recovery down, anchored in the cases every casebook uses.

What are the elements of battery?
A volitional act, intent to cause a harmful or offensive contact or imminent apprehension of one, and a resulting harmful or offensive contact with the plaintiff's person
What are the elements of assault?
An act intended to cause harmful or offensive contact or apprehension of it, which places the plaintiff in reasonable apprehension of an imminent contact
What is the dual intent versus single intent debate in battery?
Single intent requires only intent to make contact; dual intent requires intent that the contact be harmful or offensive. The Restatement (Third) and most courts follow single intent
What is transferred intent?
Intent to commit one of the five trespassory torts transfers to a different victim or a different tort among battery, assault, false imprisonment, trespass to land, and trespass to chattels
What are the elements of false imprisonment?
An act intending to confine the plaintiff within fixed boundaries, actual confinement, and the plaintiff's awareness of it or harm from it
What is the shopkeeper's privilege?
A merchant with reasonable belief that a person has shoplifted may detain them in a reasonable manner for a reasonable time to investigate
What are the elements of intentional infliction of emotional distress?
Extreme and outrageous conduct, intent or recklessness, causation, and severe emotional distress
When may a bystander recover for intentional infliction of emotional distress?
When the conduct is directed at a third person and the plaintiff is a present family member whose presence the defendant knew of, or when the bystander suffers bodily harm from the distress
What are the elements of trespass to land?
An intentional physical entry onto land in another's possession, by the defendant or something the defendant causes to enter
What is the difference between trespass to chattels and conversion?
Trespass to chattels is a lesser interference remedied by the loss of use or the cost of repair; conversion is so serious it justifies forcing the defendant to pay the full market value
When is consent a defense to an intentional tort?
When the plaintiff actually or apparently consented, within the scope of that consent, and the consent was not obtained by fraud or duress or given by someone lacking capacity
What force may a person use in self-defense?
Reasonable force proportionate to the threat, and deadly force only against a threat of death or serious bodily harm
May a landowner use deadly force or a mechanical device to protect property?
No. Deadly force is never privileged solely to protect property, and one may not do indirectly by spring gun what one could not do in person
What is the difference between public and private necessity?
Public necessity is a complete defense when acting to avert a public disaster; private necessity is an incomplete privilege that avoids trespass liability but still requires paying for actual damage
What are the four elements of negligence?
Duty, breach, causation (actual and proximate), and damages
What is the general standard of care in negligence?
The care a reasonably prudent person would exercise under the same or similar circumstances, an objective standard
How is a physical disability treated in the reasonable person standard?
The standard becomes that of a reasonable person with that physical disability; mental illness generally does not lower the standard
What standard applies to a child's conduct?
That of a reasonable child of like age, intelligence, and experience, unless the child is engaged in an inherently dangerous or adult activity, when the adult standard applies
What is the Hand formula for breach?
There is a breach if the burden of precaution is less than the probability of harm multiplied by the gravity of the injury, or B is less than P times L
What is negligence per se?
A statutory violation establishes breach where the plaintiff is within the class the statute protects and the harm is of the type the statute was meant to prevent
What excuses a violation under negligence per se?
Incapacity, ignorance of the need to comply, inability to comply after reasonable diligence, emergency, or greater risk from compliance
What are the elements of res ipsa loquitur?
The accident is of a kind that ordinarily does not occur without negligence, and the instrumentality was within the defendant's exclusive control or the negligence is attributable to the defendant
How did Ybarra v. Spangard expand res ipsa loquitur?
It allowed an unconscious surgical patient to invoke the doctrine against all members of the operating team, shifting the burden to each to explain
What is the general rule about a duty to rescue?
There is no duty to act affirmatively to rescue a stranger, however easy the rescue would be
What is the duty of one who begins a rescue?
A volunteer who begins to assist must act with reasonable care and may not leave the victim worse off than before
What is a landowner's duty to an invitee at common law?
Reasonable care, including a duty to inspect for and discover hidden dangers and to make the premises safe or warn
What is a landowner's duty to a licensee at common law?
To warn of or make safe known concealed dangers and to refrain from willful or wanton harm; no duty to inspect
What duty is owed to a trespasser?
Only to refrain from willful, wanton, or reckless conduct; a duty to warn of known artificial hazards arises for known or frequent trespassers
What is the attractive nuisance doctrine?
A possessor is liable for injuries to trespassing children from an artificial condition if the possessor knows children are likely to trespass and of the risk, the children cannot appreciate it, and the burden of eliminating it is slight compared with the risk
What is the professional standard of care?
A professional must exercise the knowledge, skill, and care of an ordinary member of the profession in good standing, usually proved by expert testimony