Shared Flashcard Set

Details

5 Torts - Defenses to Negligence and Intentional Torts
Torts - Ch 5 & 9
74
Law
Professional
03/04/2020

Additional Law Flashcards

 


 

Cards

Term
Negligence Defenses
Definition
Protection by providing legal justification for defendant's actions; excuse negligent behavior; provide defendants with a blame-shifting tool; examine plaintiff misconduct contributing to his own injuries
Term
How Negligence Defenses are Used
Definition
1. Defenses are used only by the defendant against the plaintiff. 2. Applied only in response to plaintiff's allegations that defendant acted negligently or with willfull and wanton negligence. 3. Once a plaintiff alleges defendant's negligence, both parties' failure to be careful may be at issue.
Term
Statute of Limitations
Definition
Laws that set a maximum amount of time after something happens for it to be taken to court. Statutes restricting the time within which a plaintiff may file a lawsuit. (Many negligence ~ 2 years)
Term
Contributory Negligence
Definition
(Not CA) The plaintiff's own negligence that contributed to his injuries. In some jurisdictions this may bar recovery by a plaintiff. (Seems very few states use this)
Term
Last Clear Chance Doctrine
Definition
Even though plaintiff was at fault in causing his own injuries, the defendant had the last clear opportunity to avoid harm and failed to do so, and the plaintiff can still recover damages. (Rebuttal to a contributory negligence defense) Defendant cannot escape liability for his negligence by invoking contributory negligence if he had the last clear chance to avoid the injury.
Term
Comparative Negligence
Definition
A legal rule by which the amount of fault on each side of an accident is measured, and the side with less fault is given damages according to the difference between the magnitude of each side's fault. Enables the defendant's liability to be adjusted according to the extent of the plaintiff's contribution to his own injuries.
Term
3 Elements of Comparative Negligence
Definition
1. Plaintiff's negligence contributed to his own injury. 2. Calculation of the percentage of the plaintiff's contribution. 3. Calculation of the percentage of the defendant's negligence that produced the plaintiff's injury. (Some jurisd 4. Defendant must have been more negligent than plaintiff)
Term
Comparative Negligence in California
Definition
Pure form of Comparative Negligence. Contributory negligence does not bar recovery (damages to plaintiff/victim even if plaintiff/victim is most responsible for accident. There is no minimum percent for tortfeasor's responsibility.
Term
Culpability Factoring (Liability Apportionment)
Definition
A defense to negligence. When the plaintiff/victim's negligence contributed to his injuries, comparative negligence calculates the percentage of the defendant/tortfeasor's and the plaintiff/victim's negligence and adjusts the plaintiff/victim's damages according to the numbers.
Term
Who decides the percentages in comparative negligence?
Definition
The trier-of-fact: Jury, or judge in a bench trial must closely examine the facts and assign negligence percentages.
Term
Pure Comparative Negligence
Definition
There is no minimum percent for tortfeasor/defendants.
Term
Assumption of Risk (Defense to Negligence)
Definition
The plaintiff/victim assumed the risk of doing or not doing something that resulted in his injuries. Knowingly and willingly exposing yourself or your property to the possibility of harm.
Term
2 Elements of Assumption of Risk (Defense to Negligence)
Definition
1. The victim/plaintiff's voluntary assumption of a known risk with 2. a full appreciation of the dangers involved in facing that risk.
Term
Voluntary Assumption of Known Risk (Element 1 in Assumption of Risk as a Defense to Negligence)
Definition
For the defense to help insulate the tortfeasor from liability: The victim/plaintiff must have Voluntarily decided to engage in an activity that he knew (or reasonably should have known) was dangerous. The victim must willfully face a known risk.
Term
Full Appreciation of Danger (Element 2 in Assumption of Risk as a Defense to Negligence)
Definition
The victim/plaintiff must fully understand the dangerous nature of the activity that he voluntarily undertakes
Term
Express (Explicit) Assumption of Risk (as a defense against negligence)
Definition
A victim/plaintiff voluntarily assumes a known risk by an express (and voluntary) agreement (signs an agreement with a release clause, agreeing not to hold the other party liable)
Term
Implied Assumption of Risk (as a defense against negligence)
Definition
A victim/plaintiff accepts a risk knowingly and voluntarily by reason of his knowledge. Assumption of risk is implied based on his conduct -- entering despite a No Entry sign.
Term
Assumption of Risk as a Complete Defense
Definition
In some jurisdictions: If victim/plaintiff assumes the risk, he cannot recover damages. The tortfeasor/defendant cannot be held liable for negligence.
Term
Public Policy
Definition
The law should be applied in a way that promotes the good and the welfare of the people.
Term
Defenses to Intentional Torts
Definition
Sometimes intentional torts are legally justified so the TF is not liable to the victim. Used by the defendant in a civil lawsuit to exonerate the defendant from liability to the plaintiff. Justification of intentional tortious conduct through defenses.
Term
Consent
Definition
Voluntary and active agreement. A broad defense applicable to every intentional tort. When the victim of an intentional tort voluntarily agrees to the TF's actions, provided that the victim understand's the TF's deeds. (Actually "cancels" the intentional tort, b/c non-consent is an element of intentional torts)
Term
Informed Consent
Definition
A person's agreement to allow something to happen that is based on a full disclosure or full knowledge of the facts needed to make the decision intelligently
Term
Informed Consent Defense (2 Elements)
Definition
(1) Voluntary acceptance of an intentionally tortious act (2) with full knowledge or understanding of the consequences.
Term
Informed Consent: Voluntary Acceptance (1st Element)
Definition
Consent as a successful defense action: Only if the victim willingly and knowingly agreed to the TF's conduct (not coercion)
Term
Informed Consent: Voluntary Acceptance (Possible exclusions)
Definition
Depends on victim's mental capacity to agree. May exclude retarded or intoxicated individuals, or very young children.
Term
Implied Consent (Examples)
Definition
Public officials by being in the public eye; Emergency medical treatment
Term
Malice
Definition
Evil intent; Intent to do a wrongful act
Term
Self-Defense (Defense to Intentional Tort)
Definition
The use of physical force against a person who is threatening or using physical force. Use of reasonable force to repel an attack on one's person or avoid confinement.
Term
Self-Defense (3 Elements)
Definition
(1) Use of reasonable force (2) to counter an offensive force, (3) that is necessary to prevent bodily injury, offensive contact, or confinement.
Term
Reasonable Force (1st Element of Self-Defense)
Definition
Force that is reasonable: limited to that necessary to dispel the attacking force. Cannot be greater than what is reasonably necessary. Depends on circumstances of each case.
Term
Deadly Self-Defense
Definition
Depends on Jurisdiction... One view: In the face of deadly force, a victim must first try to escape if that is a reasonable possibility, before using deadly force in self-defense. Another view: One is not required to flee one's home if threatened by intruder.
Term
Castle Doctrine / Dwelling Defense Doctrine
Definition
Principle that you can use any force necessary to protect your own home or its inhabitants from attack.
Term
Stand Your Ground
Definition
The legal right in some states to use deadly force in the face of deadly force, rather than flee
Term
Force Necessary to Prevent Injury, Offensive Contact, or Confinement (Necessary Force) (3rd Element of Self-Defense)
Definition
That degree of force reasonably perceived as required/necessary to repel an attack or resist confinement.
Term
Defense of Persons
Definition
A defense to the intentional torts of assault, battery, and false imprisonment when a third party is the potential victim.
Term
Defense of Persons (3 Elements)
Definition
(1) Use of reasonable force (2) to defend a third party from injury (3) when the party is threatened by an attacking force.
Term
Defense of Property
Definition
Assault or battery may be vindicated if taken to defend property from damage or dispossession. An owner has the right to possess and safeguard his property from others.
Term
Defense of Property (3 Elements)
Definition
(1) Use of reasonable force (2) to protect property from damage or dispossession (3) when another person, the invader, attempts to injure or wrongfully take possession of the property.
Term
Defense of Property (Amount of Reasonable Force)
Definition
Many courts: the least amount necessary to protect the property - human well-being is more important than property. Not deadly force.
Term
Ejectment
Definition
The use of reasonable force to expel a trespasser.
Term
Rightful Repossession
Definition
The right to repossess, by force if necessary, a chattel that has been wrongfully taken. Generally applied to allegations of trespass to land, trespass to chattel, conversion, assault, and battery.
Term
Rightful Repossession (4 Elements)
Definition
(1) Use of reasonable force (2) to promptly (3) repossess/retake personal property (4) of which the owner has been wrongfully dispossessed or denied possession.
Term
Reasonable Force (1st Element - Rightful Repossession)
Definition
Reasonable force, including trespass to land (to get the property back)
Term
Prompt Repossession Efforts (2nd Element of Rightful Repossession)
Definition
As soon as possible after the owner has discovered his property is missing
Term
Hot (Fresh) Pursuit
Definition
A rapid chase as soon as possible after discovery of missing property
Term
Wrongful Denial of Possession (4th Element of Rightful Repossession)
Definition
Wrongfully refusing to return property.
Term
Bailment
Definition
An owner has delivered possession of a chattel to someone else for a specific purpose with the explicit understanding that the property is to be returned at a certain time or upon demand.
Term
Wrongful Dispossession (4th Element of Rightful Repossession)
Definition
The dispossessor must not have a legal right to possess the chattel.
Term
Mistake as a Defense to Intentional Tort
Definition
The good-faith belief, based upon incorrect information, that one is justified in committing an intentional tort under the circumstances.
Term
3 Elements of Mistake as a Defense to Intentional Torts
Definition
(1) The good-faith conviction, (2) based on faulty information, that one's actions are justified, (3) in taking action that otherwise would be considered tortious but for the mistaken belief.
Term
Privilege as a Defense to Intentional Torts
Definition
A legal justification to engage in otherwise tortious conduct in order to accomplish a compelling social goal
Term
2 Considerations for Privilege as a Defense
Definition
(1) Do the TF's motives for tortious action outweigh the injury to the victim or his property? (2) Was the TF justified in committing the tort to accomplish his socially desirable purposes, or could a less damaging action be taken instead?
Term
Motive
Definition
The reason why a person does something. What is the goal driving the action? (vs. Intent = what and how)
Term
Intent
Definition
The resolve or purpose to use a particular means to reach a particular result. What a person wants to do and how he does it (vs. Motive = why)
Term
Privilege in Restatement (Second) of Torts
Definition
Privileges are conditioned upon their being performed for the purpose of protecting the interest for which the privilege was given. (ejecting a trespasser) TF is not liable if he acts in pursuance of and within the limits of a privilege of his own or another delegated to him.
Term
4 Elements of Privilege
Definition
(1) Actor's motives in committing tort outweigh injury to the victim. (2) Actor was justified in engaging in tort to accomplish socially desirable goals. (3) No less-damaging alternative could have been taken. (4) Exception: Absolute privilege of judges, legislators, etc. where motive is immaterial.
Term
Necessity as a Defense to Intentional Tort
Definition
TF is justified in engaging in tort to prevent more serious injurty from an external force.
Term
4 Elements of Necessity as a Defense to Intentional Tort
Definition
(1) Committing an intentional tort (2) which was reasonably necessary (3) to prevent a more serious injury (4) caused by an external force.
Term
Thwarting a More Substantial Harm (Element of Necessity)
Definition
Choosing between the lesser of two evils.
Term
External Forces (Element of Necessity)
Definition
Necessity defense can't be used if you created the harm yourself.
Term
Reasonably Necessary Action (Element of Necessity)
Definition
Using only that degree of force required to prevent the greater risk.
Term
Necessity in Restatement (Second) of Torts
Definition
An emergency makes it necessary, or apparently necessary, in order to prevent harm to another, to act before there is an opportunity to obtain consent.
Term
Immunity
Definition
When persons are authorized by law to engage in certain conduct, and they are protected from liability. Relevant to public officers' immunity for enforcing legal processes.
Term
Process, Process Serving, Service of Process
Definition
(Immunity) Methods by which a defendant in a lawsuit is notified that a plaintiff has filed suit against him
Term
Execution Sale / Sheriff's Sale
Definition
(Immunity) A forced public sale held by a sheriff or other public official of property seized to pay a judgment.
Term
Attachment as a Court Ordered Remedy in a Lawsuit
Definition
(Immunity) Formally seizing property (by a law officer) in order to bring it under control of the court (when it is needed to pay a judgment) (to prevent the defendant from getting rid of it)
Term
Replevin
Definition
(Immunity) A legal action to get back property wrongfully held by another person. An order to a defendant to return wrongfully possessed property to the plaintiff when the defendant refuses to return it.
Term
Arrest by Warrant
Definition
(Immunity) If law enforcement acting pursuant to an arrest warrant properly ordered by a judge, and they act in good faith, they won't be liable for a tort.
Term
Immunity for Prosecutors and Judges
Definition
Prosecutors and Judges acting in the scope of their positions are privileged and immune from liability for their actions.
Term
A 1983 Action
Definition
Permits liability of public officers if the performance of their duties involves activities that infringe upon a person's civil rights.
Term
Warrantless Arrest by Law Enforcement Officials or Citizens (Immunity)
Definition
Law enforcement officers are authorized to arrest criminal suspects without a warrent under certain circumstances (such as having witnessed a felony). Also citizens, if they witness a felony or breach of peace.
Term
Statute of Limitations
Definition
Normally two years for intentional torts (but should be researched for a particular cause of action)
Term
Workers' Compensation as a Defense to Intentional Tort
Definition
Workers' Compensation statutes bar tort actions against employers and are considered a worker's sole remedy for on-the-job injuries and death, regardless of fault (in most states)
Term
Workers' Compensation
Definition
Insurance that provides cash benefits and/or medical care for workers who are injured on the job or become ill or die as a result of their job. Paid for by employers. No one party is found to be at fault. Injury must be at work and be related to work.
Supporting users have an ad free experience!