Term
|
Definition
1. Duty (∆ owed duty to π)
2. Breach (can be per se, Res Ipsa L)
3. Causation (actual, Proximate)
4. Harm (indivisible) (can be physical, economic, emotional, mental) |
|
|
Term
|
Definition
i. harmful or offensive contact
ii. with P’s person
iii. intentional
iv. act |
|
|
Term
|
Definition
1. Intentional
2. Creates reasonable apprehension
3. Of Harmful or offensive contact with P's person |
|
|
Term
|
Definition
1. confining P
2. to a bounded area
3. P is aware of
4. P has no reasonable means of escape. |
|
|
Term
| Intentional Infliction of Emotional Distress (IIED) PFC |
|
Definition
1. Intention to cause
2. Extreme or outrageous conduct by defendant
3. Resulting in ED of P
4. Must be within the Zone of Danger |
|
|
Term
| Tresspass to Chattels PFC |
|
Definition
1. Intent
2. to interfere with personal ppy of P
3. Resulting in some damage |
|
|
Term
|
Definition
i. intentional
ii. interference with the personal property of P
iii. resulting in severe damage or deprivation for a significant period of time. |
|
|
Term
|
Definition
| 1. Intentional (neg. v. reckless) 2. Physical invasion 3. onto land (no physical damage is needed) |
|
|
Term
|
Definition
1. Unreasonable interference
2. With the use and enjoyment of another's ppy. |
|
|
Term
| Ultra hazerdous activities PFC: |
|
Definition
1. Activity poses serious risk of harm
2. Not possible to execute activity without serious risk, regardless of care
3. Act is not common to community. |
|
|
Term
Defense to Intentional Torts
Consent |
|
Definition
1. Did P have the capacity to consent?
2. Was consent expressly given?
3. Was consent implied by custom or P's conduct |
|
|
Term
Defense to Intentional Torts --
Self Defense |
|
Definition
1. Reasonable belief
2. That a tort was about to committed against defender (objectively)
3. Mistakes are OK (ex: mistaken identity)
4. Reasonable force used |
|
|
Term
| Defense to Intentional Torts -- Defense of Others |
|
Definition
1. Reasonable belief
2. that a tort was about to be committed against a third person. |
|
|
Term
|
Definition
1. Reasonable belief that tort will be committed against property
2. Was reasonable force used |
|
|
Term
| Defense to Intentional torts -- Necessity |
|
Definition
1. If only private necessity then D pays for the damage
2. Public necessity = no need to pay. |
|
|
Term
|
Definition
| Factfinder: Would the P have been injured if the D had acted with reasonable care? |
|
|
Term
| Cardozo on Proximate cause Foreseeability |
|
Definition
A duty is owed when there is Foreseeability
1. of some type of harm
2. to some population of people
3. some amount of harm |
|
|
Term
| Andrews on Proximate cause |
|
Definition
| Everyone owes a duty to the world to refrain from those acts that may unreasonably threaten the safety of others. |
|
|
Term
| Proximate Cause -- Foreseeable? |
|
Definition
| Analyze: (WAT) 1. Way harm came about 2. Amount of harm suffered 3. Type of Harm |
|
|
Term
| Proximate cause -- Substantial factor |
|
Definition
| 1. Number of causes 2. Time Frame 3. Superseding causes |
|
|
Term
|
Definition
| 1. Each Actor's act must be nearly identical 2. It must be clear that at least one of the D's is responsible for the harm 3. P must be innocent 4. P must have the inability to prove D is liable (for lack of evidence, or P was unconscious) |
|
|
Term
| Loss of Opportunity -- Traditional approach |
|
Definition
Lost more than 50% of your likelihood to survive then P can recover for death
ONLY DEATH |
|
|
Term
| Loss of Opportunity -- Relaxed approach |
|
Definition
Can prove substantial factor and recover for death even if loss of opportunity is less than 50%
ONLY DEATH |
|
|
Term
| Loss of Opportunity -- Loss of Opportunity Approach |
|
Definition
| Must show with preponderance that D's negligence caused the loss of opportunity, then can recover for the loss of opportunity |
|
|
Term
|
Definition
| Acted without reasonable care for the P's economic prospects. |
|
|
Term
| Breach: Negligence per se: PFC |
|
Definition
1. Breached statute
2. Injury was protected by statute
3. Class (is protected)
4. Prove causation
5. Statute must set std of care. |
|
|
Term
|
Definition
"the thing speaks for itself"
1. Allows P to infer the elements of their case, shifts burden to D when causation is not available
2. action doesn't happen BUT-FOR negligence
3. Instrumentality within d's control
i. Burden shifts to D to prove not liable if above satisfied. |
|
|
Term
|
Definition
1. P injured
2. A sold a product
3. A is Commercial seller of such products
4. At the time of sale, product was in a defective condition
5. def. product was an actual or proximate cause of P’s injury. |
|
|
Term
|
Definition
|
|
Term
| Implied assumption of risk |
|
Definition
|
|
Term
Alternative Liability
Used when but-for test will not work |
|
Definition
| two defendants could caused harm but plaintiff cannot show which one did. Burden shifts to ∆ to prove themselves not liable. |
|
|
Term
Substantial factor
Alternative to but-for, when but for can't be used. |
|
Definition
| used when two def acted negligently and either act was enough to cause the harm by itself. |
|
|
Term
Mutiple Sufficient Causes
Alternative to but-for, when but for can't be used |
|
Definition
|
|
Term
Concerted Action
Alternative to but-for, when but for can't be used |
|
Definition
1. Common plan
2. Knowledge of breach
3. Substantial Assistance
4. action happend |
|
|
Term
| Joint and Several Liability |
|
Definition
Both D are found guilty and both are liable for entire amount of relief and their own parts.
If Bill Gates conspires with Bum to commit tort and are liable, they both will pay 50% of award, but if one can't pay the other picks up whole tab. |
|
|
Term
Situations of Joint and Several Liability
(Principles of liability that would bring about holding joint tort-feasors jointly and severally liable.) |
|
Definition
Concert of action
Indivisible injury
Vicarious liability
Negligent creation of risk + harm through second person negligence
Alternative liability |
|
|
Term
|
Definition
Respondeat Superior -- holding an employer liable for employees actions
|
|
|
Term
| Dual intent v. Regular intent |
|
Definition
Regular intent: tort-feasor intends contact or tort to occur
Dual: tort-feasor intends tort to occur and damage or injury to result. |
|
|
Term
|
Definition
1.P Injury by product
2. Prod was def when sold
3. defect was actual cause or proximate cause of injury
4. Product must be sold by seller of such product
|
|
|
