Term
| Intentional Torts Categories |
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Definition
Battery Assault Trespass on Land Trespass on chattels Intentional Infliction of Emotional Distress False Imprisonment |
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Definition
Intentional Torts Negligence Strict Liability |
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1. Purpose to cause harmful/offensive contact 2. Knowledge contact is substantially certain (Maj.) Don't consider knowledge of ultimate consequence OR motive (Min.) Must have substantial certainty of ultimate consequence |
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| Insane liability for torts |
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Definition
Same as sane person - avoid having to prove sanity: General rule: capable of forming intent & have intent |
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Definition
Allowed for 1. Battery 2. Assault 3. False Imprisonment 4. Trespass to land 5. Trespass to chattels |
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Definition
Rest: 1. Intent to cause h/o contact (includes lacking consent) 2. h/o contact occurs Other rule
1. Intent to cause contact 2. whether contact occurred 3. Whether contact was h/o -Consent is affirmative defense -No intent to cause h/o contact requirement Contact w/ any extension of a person is sufficient |
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Definition
1. Intent of imminent h/o contact OR apprehension of imminent h/o contace 2. Reasonable apprehension of imminent h/o contact by victim --No harm required --Must be able to realize battery |
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1. Intent to restrain 2. Restraint is unlawful w/ no reasonable escape (includes water, threat of force, inproper arrest) 3. Against will (must be concious of restraint) |
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| Intentional Infliction of Emotional Distress |
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Definition
Outrageous conduct Intent Result of SED Causality (some require it being caused by a threat to physical well being) Rest. Caused SED w/o privilege Intent to cause SED Substantially certain to cause SED (must tolerate all bounds of tolerated societal activity) No transferred intent |
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Definition
Unauthorized/unlawful entry w/ intent to be in location (strict liability if you think you're not trespassing). Interference w/ enjoyment of property Continuing presence after license/invitation expires Exceed scope of invitation Must be a tangible invasion (smoke most extreme) No damage requirement |
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Term
| Defenses and Privileges to Intentional Torts |
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Definition
Express consent Implied consent Self Defense Defense of others Defense of Property Necessity Justification |
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Definition
expressly given No consent if given through deceit or fraud |
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Definition
Implied in Fact (RPP standard) Implied in Law (bright line rule, e.g. sport rules) Implied consent to medical care |
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Definition
Implied consent to medical care 1. Innability to give consent 2. Risk serious bodily harm 3. Reasonable person would consent 4. No reason to believe the person wouldn't consent Express consent Absolutely required if it can be given prior to an operation |
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| Selfe Defense and Defense of Others |
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Definition
Reasonable force permitted to protect from an imminent battery Mistake based on reasonable belief is an excuse No retaliation allowed Retreat not required by majority |
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Definition
| A single life is worth more than property - except castle doctrine or is trespass involves threat of death, or serious bodily injury |
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Definition
Natural right, independent of society or civil government |
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| Necessity regarding private property |
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Definition
Partial privilege: No trespass, but liable for damages (insurance issue) |
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Definition
Catch all privilege Can use it if nothing else fits |
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Definition
- Duty
- Breach
- Causation
- Causation in fact
- but-for
- substantial factor
- Proximate
- Damages
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Term
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Definition
| Rest: holds them to a higher standard, CL does not |
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Term
| Standard of care for Minors |
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Definition
- Maj: Minors never held to adult standard of care
- Robinson Rule: Inherently dangerous activity = adult standard of care
- Rest: Activity normally performed by adults which requires adult qualification = adult standard of care.
- Also consider
- maturity
- intelligence
- training
- experince
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Term
| Custom and standard of care |
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Definition
- Custom usage is only dispositive in medical standard of care.
- Otherwise can be taken into account, but doesn't provide RPP standard because custom can lag behind RPP.
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Definition
- Ordinary member of profession in good standing (not average)
- Doesn't apply to teachers/clergy
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Definition
- Duty regarding
- learning
- judgment
- diligence
- Custom is dispositive: proven by expert unless obvious to layman
- locality
- similar locality
- national
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Definition
- Duty:
- Inform patient of factors likely to affect decision.
- matierial information
- physician's interests
- Breach (3 options depending on jurisdiction)
- subjective (particular patient)
- RPP
- RP physician (custom)
- Causation
- Show patient (subjective) or RPP wouldn't have completed operation w/ all appropriate information
- Damages
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Term
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Definition
- Not liable
- act in good faith
- loss due to error of judgment or mistake regarding unsettled law
- Liable (any one = negligence)
- Lack knowledge skills of a RP attorney
- Not diligent
- Bad faith
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Term
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Definition
- RPP doesn't necessarily prevent damages in extraordinary circumstances - takes ordinary steps.
- Hand formula B<PL = duty of care
- Good way to consider reasonability: not a hard, fast rule because how do you put value on human life?
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Definition
Bright line rules Opposite of RPP analysis Pros/cons |
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Term
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Definition
- Is statute applicable?
- Harm it intended to protect?
- Class of persons it intended to protect?
- Does statute authorize or did legislature intend a private right of action?
- If not you can still use to help establish RPP
- Procedural effect of statute
- Negligence per se (common)
- Rebuttable presumption (common)
- Some evidence (minority)
- Criminal statutes generally don't establish standard of care = have different burden of proof
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Term
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Definition
- Direct (witness)
- Circumstantial (inferences form logical chainfootprints)
- Res Ipsa: fact of accident raises inference of neligence
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Term
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Definition
Policy: Get it to the jury - Applicability?
- Instrumentality in exclusive control of D
- Ybarra exception:
- P has no possible fault = someone must be guilty and need incentive to not cover for each other - they have evidence
- Accident ordinarily won't occur w/o negligence
- Procedural effect (3 options)
- Inference of negligence
- Presumption of negligence (50/50 D wins)
- Shift burden of proof (50/50 P wins)
- (Directed verdict: No way D could rebut presumption of negligence)
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Term
| Res ipsa vs. negligence per se |
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Definition
- Per se:
- establishes duty - not breach
- Res ipsa: jury still must determine duty
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Term
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Definition
- Duty: Must show D had actual or constructive notice of an unreasonable risk
- Breach: Must show D failed to excercise reasonable care to fix it.
- Constructive notice:
- Dangerous business practice
- Log showing cleaning hadn't occurred
- Banana peel must have been on floor for a longtime
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Term
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Definition
- More likely than not
- but-for
- substantial factor
- Common sense view - can't always rely on statistics (blue/yellow taxi)
- Must be probable, not a mere possibility
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Term
| Decrease in chance of survival |
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Definition
- Was D's act a substantial factor in bringing about harm.
- But-for gets complicated here due to chance (%) of survival.
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Term
| Expert Testimony (re. Causation) |
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Definition
- Daubert: 2 Prong test
- Reliability (is it good science)
- Factors
- Generally accepted (Fry test)
- Peer reviewed
- Tested, capable of testing
- Rate of error
- Research done for litigation purposes
- Relevance
- Whether it makes sense to the issue before the court
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Term
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Definition
- Which party caused harm?
- 2 but-fors = both liable (joint and several liability)
- If either would have independently caused harm = no but for, but still substantial factor.
- Drug companies: causes injury but who made it is unknown
- Liable for market share
- (Some) can prove it didn't make it
- (some) must have all makers as parties
- (some) can sue one and let it indemnify the others
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Term
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Definition
- Policy question of whether D is liable
Toolbox: foreseeability direct v. remote where spark fell -
chain of events (natural/unbroken) Range/zone of apprehension (train/fireworks) duty to world at large (train/fireworks) Intervening/superseding
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Definition
Arises from special relationships Employer-ee Innkeeper-guest Business owner-invitee Parent-child Nurse-patient Guard-prison Spouse ALSO: Invitee Licensee Trespasser |
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Definition
- Invitee: serve interests of owner
- Reasonable duty of care in keeping premises safe
- Licensee: social guest (there w/ permission)
- Trespasser: no permission/expired permission
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- Reasonable care once aware of her (can be constructive knowledge)
- No wilful/wanton negligence
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Term
| Duty regarding children on land |
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Definition
- Rest: Majority: Liable for physical harm to children trespassers caused by an artificial condition if 5 conditions are met.
- Knows or has reason to know children are likely to trespas
- Unreasonable risk of death/serious injury to children
- Children don't comprehend danger
- B<PL (Able to alleviate risk in comparison w/ degree of risk)
- Landowner fails in duty to excercise reasonable care
- Attractive nuisance doctrine (minority):
- Duty to protect children from temptation that will lead them onto land
- Britt rule (rejected): Duty only applies to what actually attracted children onto land.
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| Duty to prevent harm to 3rd Parties |
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Definition
Relationships of control: - Forseeable and sufficient control/ability to prevent harm.
- Constructive Knowledge - reason to know
- Like B>PL
- Think wife w/ sexual abuse by husband to girls
- Think of doctors regarding outpatient
- If know/reason to know of risk = duty of care to 3rd party
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| Failure to Act/Duty to rescue |
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Definition
- Generally not duty
- Exceptions:
- Cause harm/risk
- Begin to rescue, cause reliance, and stop
- Negligently terminating a gratuitous service
- there is a special relationship
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Term
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Definition
Need both: Causation in fact (but for) Proximate Cause |
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Term
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Definition
- More likely than not actions caused accident
- But for (But for D's negligence would harm have occurred)
- usually it must be a probablility - not a mere possiblity - unless relying on #'s doesn't make sense (taxi case)
- 2 concurrent/indepent causes
- Both liable for whole damage
- Substantial Factor: (Was negligence a substantial factor in causing harm)
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Term
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Definition
- 2 Prong test for expert testimony/information proving a product caused harm
- Reliabilty (is it good science)
- Illustrative factors
- Generally accepted (fry test)
- Peer reviewed
- Tested? capable of being testing?
- Rate of error
- Research done for litigation pruposes
- Relevance
- Whether it makes sense to the question the jury is to determine.
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Term
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Definition
| Was it reasonably foreseeable/expected or rather an extraordinary act by a third party? |
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Definition
Generally no recovery Policy: foreseeability; or it is like a duty to rescue someone from a bad situation. |
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Term
| Emotional Distress (caused by negligence) |
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Definition
- Pure emotional distress = no recovery
- Rules:
- Physical impact rule
- Physical manifestation rule
- Zone of danger: Physical consequence + fear for self.
- Dillon Balancing Test:
- Physical proximity: near scene
- Temporal proximity: witness accident
- Relational proximity: closely related to victim
- Thing rule: (bright line - all required: mom wasn't present = no recovery)
- Close relation
- Present at action
- Serious emotional distress (more than a non-related bystander, but not too much)
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Term
| Public officals on private property |
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Definition
| Classification/duty towards depends widely on jurisdiction. |
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Definition
- Nominal: trivial amount to vindicate rights
- Compensatory: make plaintiff whole
- Look at loss/suffering of plaintiff
- Punitive: Punish, deter, make example of
- Look at defendant's actions
Must be awarded in one lump sum (one shot for past, current, future) Can use graphs, photos, videos, computer models to help jury calculate damages |
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| Joint and Several Liability |
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Definition
- All defendants are fully liable.
- Plaintiff can collect full judgement in from defendants as she sees fit (all from one, etc.)
- Defendant can then file action for contribution against other defendants (if its worth it).
- Different from action to indemnify: suing others (employees, agents) that are responsible for judgment against you.
- If not allowed in jurisdiction and multiple Ds:
- Jury must determine % of each D's negligence and award damages based on this calculation.
- If not all negligent actors are present will use emply chair defendants and assign appropriate % of negligence/damages to non-person.
- Think of strategic advantages to not bringing someone
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Definition
Economic, out of pocket costs - Loss of earnings
- Medical expenses
- Loss or impairment of future earning capacity
- different ways to calculate present value
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Term
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Definition
Pain, suffering, emotional distress - Physical pain and suffering (includes future)
- Mental anguish (includes future)
- Loss of function or appearance
- Emotional distress
- Litigation induced stress (minority)
- Loss of enjoyment of life (majority)
- Reduced life expectancy (Engl. not U.S.)
Per diem requirement: break suffering down into days, determine value of a day, multiply it by days of suffering. Likely leads to big recovery (me) |
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| Fear of jury bias in rewarding damages |
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Definition
| Judge orders bifurcated trial - one for liability, one for damages |
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Definition
- Remittitur: Judge determines jury verdict is excessive
- Additur: Judge determines jury verdict is insufficient
- New trial ordered (Jdmt NOV) unless parties agree to a more appropriate amount.
- Maximum recovery rule: Judge acts as most lenient juror to plaintiff and determines if judgment is unreasonably high
- Shocking to the conscious rule:
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Term
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Definition
- 14th Amendment dictates notions of fairness regarding penalty
- Gore test: 3 guideposts
- Reprehensibility of Ds conduct
- Disparity of compensatory and punitive damages
- 9:1 allowed
- <4:1 preferred
- Compare punitive damages to penalties imposed otherwise under law
- Can't consider penalties from criminal statutes = different burden of proof
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Term
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Definition
- P was negligent too
- Complete bar to recovery
- (4 states and DC still use)
- Exception: Last clear chance rule
- If D had chance to avoid accident after P no longer did = no bar to recovery
- Doesn't apply to intentional torts
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Term
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Definition
Ds liability is decreased by % of P's negligence - Pure: P recovers for % of D's negligence
- 50% rule: P can recover % is her negligence is not greater than D's
- 49% rule: P must have less fault than D
- Slight/gross rule: P's negligence must be slight in comparison to D's
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Definition
Assumption of risk Contributory negligence Comparative negligence Government immunity |
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Definition
Spouse sues for loss of companionship (many jurisdictions are eliminating) |
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| Express assumption of risk |
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Definition
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Definition
Express assumption of risk - Factors:
- business suitable for regulation
- business performs important public service
- business is willing to serve any member of community
- business had decisive advantage in bargaining power
- No offer to pay more and not sign adhesion K
- P was subject to risk of carelessness by seller
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| Implied assumption of risk |
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Definition
(outhouse plunge case) - 2 part test
- Voluntarily encounter risk
- Knowledge (subjective)
- aware of risk
- appreciate risk
Fuzzy line between contributory negligence and this rule. Throwing in analysis couldn't hurt. I imagine P could not assume risk but still have some contributory negligence (it would just be <50%. |
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Term
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Definition
- Immunity for:
- legislative acts
- judicial acts
- executive discretionary acts (establishing policy)
- No immunity for:
- Executive ministerial acts (implementing policy)
- Minority:
- Same duty for states as munincipalities
Federal immunity from Federal Torts Claims Act |
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Term
| City/Munincipality immunities |
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Definition
- Majority:
- Proprietary (business) activities vs. government functions.
- Minority:
- No duty to public at large, but when someone relies to their detriment a duty exists
- e.g. calling 911 and not receiving help
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Term
| Assumption of Risk (summary) |
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Definition
- Express
- w/i terms of agreement
- Does K violate public policy?
- Implied
- Voluntarily encounter risk
- Knowledge (subjective)
- aware of risk
- appreciate risk
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Term
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Definition
Vicarious Liability - Employee or independent contractor?
- sufficient control of physical details of work
- If employee does Respondeat superior apply?
- w/i scope of employment
- going/coming rule (doesn't apply)
- detour/frolic
- nature of deviation
- expectations of employer
- liberties allowed in employment
- Applies even if violating company policy.
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Term
| Strict Liability (categories) |
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Definition
Animal trespass Animal injury to humans Abnormally dangerous activity Products liability |
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Definition
Strict liability - 4 rules
- Strict liability
- Fencing in (D's fence)
- Fencing out (P's well maintained fence)
- Negligence
- Roaming of cats/dogs exempt from all rules except negligence
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Term
| Animals causing injury to humans |
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Definition
Strict Liability - Domestic or wild?
- Wild = strict liability. (defined broadly)
- If domestic:
- Maj. Rest: Strict liability if P has reason to know of vicious propensity?
- Min.: Negligence
- Min.: Entitled to one bite
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Term
| Abnormally dangerous activity |
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Definition
Strict Liability - Rest.: Should strict liabilty due to nature of risk? (B>PL).
- Factors
- Degree of risk
- Likelihood of great harm
- Inability to eliminate risk w/ due care
- Extent activity is uncommon
- Inappropriateness of location
- Value of action to the community
- Focus on risk from activity - not item itself
- Rylands v. Fletcher
- Blackburn: Strict liability for anything you bring onto land that causes damage if not contained
- Cairn: Strict liability for non-natural use of land
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Term
| Defenses/limitations on strict liability |
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Definition
Act of God Purpose for abnormally dangerous classification (mink farm) Assumption of risk |
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Term
| Product liability: tort or K? |
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Definition
- nonfeasance (failure to fulfill K): K claim - must have privity
- misfeasance (failure to adequately perform K):
- Privity = K
- No privity = tort
- If privity is required then consumers must sue sellers who then sue consumers
- Originally this was all under K, but law eventually eliminated need for privity and ability to disclaim warranty = strict liabililty
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Term
| Actions to bring for product liability |
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Definition
- Warranty in torts
- express if there was misrepresentation
- implied always
- Warranty in K (if privity)
- Negligence for misfeasance
- Strict liability
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Term
| Strict Products Liability Rule |
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Definition
3rd Rest. - Covers harm to anyone (not just consumer)
- Liability to those engaged in distributing/selling and manufacturing
- 3 categories
- Design Defect
- Could a better design be reasonably implemented w/ current knowledge?
- Is it safe to ordinary consumer
- Manufacturing Defect
- Just prove defect exists (closest to strict liability)
- Warnign defect
- Warning must make product reasonably safe
- Maj. D reasonably knew or should have known of risk (foreseeability)
- Min. No foreseeability required - just actual occurence (more like strict liability) (superminority)
- Rebuttable presumption that P would have read it
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Term
| Policies for strict liability |
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Definition
- Difficulty of proving negligence
- Incentive to make products as safe as possible
- Manufacturer bears responsiblity
- More efficient to sue manufacturer directly
- Placing product on market is representation it is safe
- Lowest cost avoider
- Equitable distribution.
Cons - Deters new products
- Fictitious claims
- Level of care isn't considered (lowers incentive?) BUT do punitive damages account for this? Can you bring them?
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Term
| Defenses to Strict Liability |
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Definition
- Contributory negligence
- Maj: allow
- Min: can't use negligence as a defense in strict liability action
- Assumption of risk (mixed)
- Rest: Bars claim
- Others: lowers liability (like comparative negligence)
- Misuse
- Misuse cannot be reasonably foreseeable
- Causation:
- Defect didn't cause injury
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