Term
|
Definition
| w/ purpose, knowledge of substantial certainty, or transferred intent. |
|
|
Term
|
Definition
| liable w/o negligence or fault |
|
|
Term
|
Definition
| 1) intent 2) harmful or offensive 3) contact 4) contact occurs |
|
|
Term
|
Definition
| direct, indirect, or setting something in motion |
|
|
Term
|
Definition
| to cause physical or mental damage |
|
|
Term
|
Definition
| gross indignity to reasonable person |
|
|
Term
|
Definition
| 1) intent 2) to cause imminent apprehension 3) of a harmful or offensive contact 4) P experiences apprehension |
|
|
Term
|
Definition
| sense of expectation for unwanted touching |
|
|
Term
| elements of false imprisonment |
|
Definition
| 1) intent, 2) directly or indirectly confines, 3) to bounded area 4) confinement occurs |
|
|
Term
|
Definition
| physical, threat of force, omission with duty to act, or improper assertion of legal authority |
|
|
Term
|
Definition
| restricts movement in all directions and no known means of escape |
|
|
Term
|
Definition
| 1) extreme and outrageous conduct, 2) intent or reckless act 3) to cause emotional distress, 4) severe emotional distress occurs. |
|
|
Term
| extreme and outrageous conduct |
|
Definition
| beyond all means of decency |
|
|
Term
| elements of trespass to land |
|
Definition
| 1) intent, 2) to enter onto land 3) w/o permission, 4) of another 5) entrance occurs |
|
|
Term
| elements of trespass to chattels |
|
Definition
| 1) intent, 2) to deprive other of chattel or impair value of chattel 3) causation |
|
|
Term
|
Definition
| 1) intent 2) to interfere with possession rights 3) of another 4) causation |
|
|
Term
| interference w/ possession rights |
|
Definition
| seriously disrupts right of another to control it. |
|
|
Term
|
Definition
Acquire possession of it or
Damages/alter it so that it is ruined or
Using it or
Receiving it or
disposing of it or
Misdelivering it or
Refusing to surrender it |
|
|
Term
| Conversion vs. Trespass to Chattel |
|
Definition
1. duration
2. intent
3. good faith,
4. extent
5. harm done
6. inconvenience and expense |
|
|
Term
|
Definition
| willingness for conduct to occur. May be manifested by action or inaction. Need not be communicated by actor. |
|
|
Term
| self defense (affirmative defense) |
|
Definition
| 1) reasonable force to thwart 2) unprivileged act 3) that is reasonably believed 4) will cause contact or harm |
|
|
Term
|
Definition
| smallest amount of force needed to defend against act |
|
|
Term
| elements for shopkeeper's privilege |
|
Definition
1) reasonable grounds to believe theft has occurred
2) Detention conducted in reasonable manner
3) Detention limited to reasonable amount of time to conduct investigation
4) person is let go after investigation |
|
|
Term
|
Definition
| 1) duty of care 2) breach of duty 3) causation 4) damages |
|
|
Term
| When a D acts affirmatively, who does he owe a duty of reasonable care to? |
|
Definition
| to persons foreseeably endangered by his careless conduct. |
|
|
Term
| Situations of no or limited duty despite affirmative risk-creating conduct |
|
Definition
social host
wrongful death of unborn
wrongful life
wrongful birth
Negligent infliction of emotional distress
pure economic harm
landholders |
|
|
Term
| Sometimes an affirmative duty to protect or rescue |
|
Definition
Undertaking coupled with increasing the risk.
Control of instrumentality (common carriers)
Negligent or innocent creation of the peril.
Special relationship. |
|
|
Term
| What is standard of care in a negligence question? |
|
Definition
| reasonably prudent person under like circumstances |
|
|
Term
| what is legal standard for which children are judged? |
|
Definition
| held to the standard of a child of like age, intelligence, and experience |
|
|
Term
| What are exceptions to legal standard for children? |
|
Definition
Children engaged in adult activities are held to adult standard (majority).
Children engaged in an inherently dangerous activities are held to an adult standard (minority). |
|
|
Term
|
Definition
Under 7 incapable of negligence.
Between 7-14 presumed incapable but rebuttable.
14 and older are presumed capable of negligence but rebuttable. |
|
|
Term
| what is standard of care for insane person? |
|
Definition
| unless actor is a child, inanity or mental deficiency does not relieve actor. Held to RPP standard under like circumstances. |
|
|
Term
| what is standard for professionals? |
|
Definition
| required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. |
|
|
Term
| Strict locality rule (rejected by most jurisdictions) |
|
Definition
| Standard = doctors employed in the same community as the defendant |
|
|
Term
| Similar locality rule (majority) |
|
Definition
| the standard is that of persons engaged in similar practices in similar localities, considering geographical location, size, and the character of the community in general |
|
|
Term
|
Definition
specialist
board certified |
|
|
Term
|
Definition
1. Nondisclosure of required/material information
2. Causation
3. Actual damage –resulting from the risks that the Doctor failed to tell the patient about. |
|
|
Term
|
Definition
| info that reasonable pt would want to know in making decision |
|
|
Term
| Physician rule for informed consent |
|
Definition
| P must show that the customary practice of doctors in good standing in the relevant community would be to disclose that risk. |
|
|
Term
| patient rule for informed consent |
|
Definition
| Physician must disclose all material risks involved in a given procedure or treatment |
|
|
Term
| Causation in Informed Consent Cases (objective test, majority) |
|
Definition
| P must show that a reasonable person in her situation would not have undergone the procedure if she had been told of the risk, AND that she would not have undergone the procedure. |
|
|
Term
| Causation in Informed Consent Cases (subjective test, minority) |
|
Definition
| P must show that had she been properly informed, she would not have undergone the procedure that caused the injury |
|
|
Term
| Exceptions to Duty to Disclose |
|
Definition
1) everyone knows or pt already knows
2) emergency and pt is unable to determine whether tx should be administered
3) complete and candid disclosure may have detrimental effect on pt. |
|
|
Term
| Should statute set standard of care? |
|
Definition
1)P in class of people statute intended to protect?
2)hazard that occurred statute intended to prevent?
3)is statute appropriate to determine standard of care? |
|
|
Term
| Is statute appropriate to determine standard of care? |
|
Definition
1)Create a duty not recognized at common law?
2)Is statute too obscure to put the public on notice?
3)Does is impose liability without fault?
4)Would it impose liability disproportionate to the seriousness of the defendant’s conduct?
5)Did the injury occur directly or indirectly from violation of a statute? |
|
|
Term
| Majority rule for effect of violation of statute |
|
Definition
| violation is negligence per se. statute will be standard of care. |
|
|
Term
| Effect of violation of Statute |
|
Definition
| Most courts allow excuse, though there are some that do not have excuse (i.e. child labor laws) |
|
|
Term
| Effect of violation of Statute |
|
Definition
| Some allow violation of statute only to be evidence of negligence |
|
|
Term
| Excused violation of statute |
|
Definition
reasonable because of the actor’s incapacity;
He neither knows, nor should know, of the occasion for compliance;
He is unable, after reasonable diligence or care, to comply;
He is confronted by an emergency not due to his own misconduct; or
Compliance would involve a greater risk of harm to the actor or to others. |
|
|
Term
| what burden does P have in negligence case? |
|
Definition
Pleading negligence;
Coming forward with enough evidence to avoid a directed verdict; and
Persuasion. |
|
|
Term
| willful, wanton, and reckless |
|
Definition
| deliberate and conscious disregard for a known high degree of probability of harm to another.This is usual level needed for punitive damages. |
|
|
Term
|
Definition
1) The harm-causing event normally would not occur in the absence of negligent
2) D had exclusive control over instrument of harm
3) incident is not normal occurrence under ordinary care |
|
|
Term
|
Definition
Cause in fact
Proximate cause |
|
|
Term
|
Definition
| Examines the cause and effect relationship between tortious conduct and injury |
|
|
Term
|
Definition
But-For test (majority)
Substantial Factor Test
Market Share Test
Lost Chance Doctrine |
|
|
Term
|
Definition
| injury would not have happened but for negligent act |
|
|
Term
|
Definition
test when two or more causes combine to bring about the harm.
test requires that the D materially contributed to the plaintiff's injury |
|
|
Term
|
Definition
| Each manufacturer of the drug is responsible to each plaintiff for its percentage of the plaintiff’s damages equal to the manufacturer’s share of the market in the drug. |
|
|
Term
| pure lost chance doctrine |
|
Definition
| Full recovery of damages even though it’s more likely than not that patient would have suffered injury if defendant hadn’t been negligent. |
|
|
Term
| proportionality approach for lost chance |
|
Definition
| Limits recovery to percentage of chance lost multiplied by total damages |
|
|
Term
| proportionality approach for lost chance |
|
Definition
| Limits recovery to percentage of chance lost multiplied by total damages |
|
|
Term
| substantial possibility for lost chance |
|
Definition
| Allows full recovery where defendant’s negligence was less than loss of 50%, but was a substantial possibility |
|
|
Term
|
Definition
| a limitation on liability and deals w/ liability or non-liability for unforeseeable or unusual consequences of one's act |
|
|
Term
| General rule for proximate cause |
|
Definition
| D is liable for all harmful results that are normal incidents and w/in increased risk by acts. |
|
|
Term
| What is the foreseeable rule for Proximate Cause? (majority) |
|
Definition
| D is liable for damages that are proximate result for his own acts, but not for remote damages (public policy) |
|
|
Term
| What is the egg shell P rule for proximate cause? |
|
Definition
| D takes P as he finds him, meaning D is liable for aggravating preexisting illnesses/conditions despite lack of foreseeability. |
|
|
Term
|
Definition
| a tort-feasor is liable to V's rescuer for injuries sustained during a reasonable rescue attempt |
|
|
Term
| Elements to achieve rescuer status |
|
Definition
1. D was negligent to person that needed rescuing negligence caused the peril or appearance of peril to person rescued AND
2. peril/appearance of peril was imminent AND
3. a RPP would have concluded such peril or appearance of peril existed AND
4. the rescuer acted w/ reasonable care in effectuating the rescue. |
|
|
Term
| when would a person be negligent for failing to act when there is a duty to act? |
|
Definition
1. control of instrumentality
2. joint venturers
3. special relationship
4. D assumes responsibility to act and such undertakings increase the risk of harm or the P relies upon D's act to detriment
5. conduct that creates risk of harm
6. Taking control and leaving person in worse condition
7. negligently rendering aid. |
|
|
Term
| What are special relationships for duty to act? |
|
Definition
1. common carriers
2. innkeepers
3. possessors of land open to public
4. one who is required by law or voluntarily takes custody under circumstances which would deprive P of opportunity to protect themselves. |
|
|
Term
| When can one recover for negative infliction of emotional distress w/o damages? |
|
Definition
1. erroneous notification of close relative's death
2. negligent handling of close relative's corpse |
|
|
Term
| Physical manifestation test for negligent ED (majority rule) |
|
Definition
1. definite and objective
2. physical injury
3. produced as a result of emotional distress
4. which was caused by D's negligence |
|
|
Term
| When can you recover for negligent ED when not the direct P? |
|
Definition
1. close relative is injured by negligence
2. present at scene of injury
3. have awareness of injury occurring
4. suffers emotional distress |
|
|
Term
| Zone of Danger Rule (majority) |
|
Definition
1. P was at risk of physical impact
2. b/c of negligent act
3. physical manifestation |
|
|
Term
| Foreseeability rule for negligent ED (minority) |
|
Definition
1. bystander who was not at risk
2. was located near accident
3. shock resulted from direct emotional impact from observance of accident
4. V closely related to P |
|
|
Term
|
Definition
| Parent's action for negligently caused birth of a healthy child (usually botched sterilization procedure) |
|
|
Term
|
Definition
| parent's claim for damages due to negligently caused birth of unhealthy child |
|
|
Term
|
Definition
| child's own claim: but for your negligence, my mother would have had an abortion. |
|
|
Term
|
Definition
| parent's claim of negligence causing death of child |
|
|
Term
| Landowner duty to trespasser |
|
Definition
| if owner does not know of trespasser's presence, then no duty owed. |
|
|
Term
|
Definition
| person who is privileged to enter or remain on land by virtue of possessor's consent. |
|
|
Term
|
Definition
| no duty of reasonable care w/ respect to conditions on land, but does owe a duty not to willfully or wantonly injure licensee. does have to warn of unknown or hidden dangers. |
|
|
Term
|
Definition
| invited to enter or remain on land as member of public or to directly or indirectly connect w/ business |
|
|
Term
|
Definition
| use reasonable and ordinary care in keeping property reasonably safe; such as warning of known dangerous conditions and making reasonable inspections. |
|
|
Term
|
Definition
| no liability upon landlord either to tenant or others for defective conditions existing at time of lease. |
|
|
Term
| Exceptions to lessor duty |
|
Definition
1. undisclosed dangerous conditions to lessor and unknown to lessee
2. conditions dangerous to persons outside of premises
3. premises leased for admission of public.
4. part of land retained in lessor's control which lessee is entitled to use
5. where lessor contracts to repair.
6. negligence by lessor in making repairs. |
|
|
Term
| Contributory negligence (affirmative defense) |
|
Definition
| an injured P may not recover damages against a negligent D if P didn't use reasonable care to avoid injury |
|
|
Term
| When can P's contributory negligence not bar negligence action against D? |
|
Definition
1. D’s conduct amounted to an intentional tort or wanton, reckless, or willful conduct
2. D negligently broke statute that was meant to protect class P belonged to
3. Last clear chance (helpless or inattentive P) |
|
|
Term
| Last clear chance Helpless P |
|
Definition
1. helpless peril exists
2. where P, through contributory negligence
3. put himself in peril
4. from which he cannot extricate. |
|
|
Term
| Last Clear Chance Inattentive P |
|
Definition
1. peril exists
2. where P, through his own contributory negligence
3. is in peril
4. from which he could extricate himself if he were attentive. |
|
|
Term
| Pure Comparative negligence |
|
Definition
| P's negligence directly reduces damages. Example: P is 51% negligent, would get 49% of asked for damages. |
|
|
Term
| Modified Comparative Negligence |
|
Definition
| P is barred from recovery only if fact finder assigns P percentage greater than 50% or greater than 49% |
|
|
Term
| Expressed Assumption of Risk |
|
Definition
| Agreements relieving another party of liability for his negligence are valid unless against public policy |
|
|
Term
| Exceptions to Expressed Assumption of Risk |
|
Definition
1. when necessary service and you have inferior/unequal bargaining power (utilities, inn keepers)
2. Exculpatory clauses: do not cover willful, wanton, or gross negligence |
|
|
Term
| Primary Implied Assumption of risk |
|
Definition
P consents to accept a risk and to be responsible for his own care.This will relieve the D of a duty with respect to the risks to which P consents.
Playing sports
Spectators |
|
|
Term
| Secondary assumption of risk |
|
Definition
| Can be strict (no recovery for going into fire to save kid) or unreasonable (no recovery for saving hat from fire) |
|
|
