Term
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Definition
Allowed to use reasonable force to defend against a battery.
A reasonable belief that one needs to protect oneself, even when wrong still protected.
Force used must be comparable to force used by attacker.
Relative size and strength matter.
Force used in retaliation not allowed. π cannot be the aggressor.
Majority Rule - Retreat not necessary |
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Term
| Intentional Infliction of Emotional Distress |
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Definition
Conduct must be intentional or reckless.
Conduct must be extreme or outrageous.
Must be a casual connection b/w the wrongful conduct and emotional distress.
Emotional distress must be severe.
Setting and personality of victim is taken into consideration. |
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Term
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Definition
| Actions, reasonable under the circumstances, in time, manner, imposed for the purpose for preventing another from inflicting personal injuries or interfering or damaging property in one's lawful possession or custody is not unlawful. |
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Term
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Definition
(1) inference of negligence - warrants inference which jury may or may not draw upon (most favorable to Δ)
(2) Rebuttable Presumption - Δ must show some evidence to rebut the presumption that he is negligent
(3) Ultimate Burden of Proof - Δ must prove by preponderance of the evidence that injury not caused by his negligence |
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Term
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Definition
There was an accident.
Instrumentality was under Δ's exclusive control and management.
Accident would not have occurred w/o lack of ordinary care.
Minority - requires that π did not contribute to negligence. |
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Term
| 3 Approaches to Cause in Fact |
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Definition
(1) But For Test
(2) Relaxed Causation - Negligence/Causation left up to jury
(3) Loss of Chance - redefines nature of harm (not death but % of chance of survival lost). Gives incentive to Dr.s to give best shot to patients that don't have a long term shot. |
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Term
| Loss of Opportunity Approach to Causation |
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Definition
Lost chance for better outcome; redefines the injury.
Not death but rather loss of opportunity to have avoided death.
Recover a portion of the full amount.
% of what the overall loss would have been.
POLICY: Want Dr.s to help those with very low chance of survival; legal incentive not to give up on those w/ little chance. |
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Term
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Definition
| When separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it. |
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Term
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Definition
Person may interfere with property of another where interference is reasonable and apparently necessary to avoid threaten injury from natural or other force and where the injury is substantially more serious than invasion undertaken to avert it.
Public Necessity - act for public good; defense is absolute.
Private necessity - where act is solely to benefit any person or to protect any property from destruction or serious injury, the defense is qualified; actor must pay for any injury he causes. |
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Term
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Definition
5 - Assault, Battery, False Imprisonment, Trespass to Land, Trespass to Chattels
Where actor intends a tort against one person but instead:
1 - commits different tort against that person
2 - same tort against different person
3 - commits different tort against different person
The intent to commit one tort is what is transferred. |
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Term
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Definition
| Actor acts with purpose to restrain or knowledge to a substantial certainty that action/inaction will result in restraint where victim is restrained and aware of restraint at the time it occurs. |
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Term
| When are arrests privileged? |
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Definition
w/o warrant
1 - felonies - police officer has reasonable grounds to believe felony has been committed and is committed by person arrested; private person - only if felony has in fact been committed and has reasonable grounds to believe arrested person has committed it.
2 - misdemeanors - police officer & private person - if it was a breach of the peace and committed in presence of arresting party.
3 - to prevent a crime - where felony/breach of peace is in process or about to happen both police office and private person are privileged. |
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Term
| Statutes as Standards of Care - Appropriateness Analysis |
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Definition
1 - Compliance is practical and desirable
2 - gives notice to citizens of what conduct is required of them
3 - may impose liability w/o fault
4 - or may lead to ruinous monetary liability for relatively minor offenses
5 - whether injury resulted directly or indirectly from the violation
6 - a valid excuse exists |
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Term
| Doctrine of Informed Consent |
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Definition
Physicians obligated to disclose:
-what exactly he intends to do
- full disclosure of material risks incident to treatment (material risk if it would likely affect patient's decision)
-viable alternatives to treatment
- other personal/conflicting interests unrelated, whether research/economic that may affect medical judgment |
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Term
| Rules Governing Malpractice |
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Definition
1) Presumed to have a degree of skill of learning by the reasonable member of the profession in good standing
2) must do something that is traditionally forbidden by the profession in a similar situation or neglected to which the stand requires
3) standard must be shown by affirmative evidence; jury may not speculate as to standard
4) negligence never presumed, must be affirmatively proven
5) negligence must be established by a medical testimony, unless so grossly apparent that a layman would recognize it (leaving items in a body during surgery)
6) testimony of other physicians, that they would take a different method isn't enough to establish malpractice, unless method taken deviates from that commonly followed |
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Term
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Definition
The conduct of members of the profession is to be measured solely by the standard of conduct expected of other members of the medical profession in the same locality or community.
Least used. |
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Term
| National Standard of Care |
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Definition
| Uniform national standard - equal standards for all professionals across nation. |
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Term
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Definition
Actor uses or intermeddles with the chattel of another with intent to perform the act where there is causation between the act and damages to the chattel.
Must have actual damages (dispossession is a damage).
Intent = intent to do that act of interference |
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Term
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Definition
Distinct from trespass to chattel is the measure of damages.
1) extent of duration of actor's exercise of dominion or control
2) actor's intent to exert a right in fact inconsistent with the other's right of control
3) actor's good faith
4) extent and duration of the resulting interference with the other's right of control
5) harm done to the chattel
6) the inconvenience and expense caused to the other |
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Term
| Chattel + Accidental Conduct |
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Definition
| Accidentally causing damage to or loss of another's chattel does not amount to conversion unless the actor was using the chattel w/o permission when the accident occurred |
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Term
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Definition
One may use reasonable force to prevent the commission of a tort against her property (no deadly force).
Request to desist must precede use of force, unless clear that request would be futile or dangerous. |
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Term
| Intentional Infliction of Emotion Distress - Bystander |
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Definition
Where severe, physical harm to 3rd party and π suffers severe emotional distress. π must show:
1) π was present when injury occurred to 3rd party
2) π was close relative of injured person
AND 3) Δ knew π was present and was a close relative of injured person.
π doesn't need to establish presence of family relation if can show Δ had design/purpose to cause distress to π |
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Term
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Definition
Act with intent to cause harmful or offensive contact which results in h/o contact
Intent - purpose or knowledge to a substantial certainty |
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Term
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Definition
| Actor offers to touch with purpose or knowledge to a substantial certainty to create apprehension of the conduct and in fact creates a well founded apprehension of imminent battery with the present ability to effectuate the attempt. |
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Term
| Using Statute for Standard of Care |
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Definition
Violation constitutes negligence is a matter of law when the violation results in injury to a member of the class of persons intended to be protected and when the harm is the kind of which was enacted to prevent.
Injury must have a direct and proximate connection w/ the violation for liability.
Sometimes - violating statute automatically = negligence, unless rightfully excused. |
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Term
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Definition
Individual Patient Standard - must examine the credibility of testimony - subj.
Reasonable Patient Standard - examine what a reasonable person in the situation would do - obj.
For Injury - the adverse effect that was not disclosed actually harmed the patient |
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Term
| Malpractice (Locality) Approaches |
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Definition
Local Locality Rule - only compare to similar professions in the community
Similar Locality Rule - compare to professionals in similar community
National Standard - view entire nation as whole held to same unified standard |
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Term
| Excuses to Violation Statute |
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Definition
1) actors incapacity
2) actor neither knows nor should have known of occasion for compliance
3) actor unable, after reasonable diligence, to comply
4) confronted by emergency, not due to his own misconduct
5) compliance would involve greater risk of harm to actors or others |
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Term
| Negligence - Restatement Rule (Determining Utility of Actors Conduct) |
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Definition
1) Social value attached to the interest advanced or protected by the conduct
2) extent of chance that interest will be advanced or protected by a particular course of conduct
3) extend of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct |
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Term
| Negligence - Restatement Test |
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Definition
1) social use of Δ's acts
2) chance that interest will be adv/protected by particular conduct
3) any viable alternatives
(Cost-Benefit Analysis) |
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Term
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Definition
B < PL
P - probability of injury
L - loss/harm/injury
B - Burden of adequate precautions
B is less then product of PL - breached duty of standard of care
weighs utility of behavior vs. risk |
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Term
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Definition
Similar to defense of self
must use reasonable force
some jurisdiction allow greater privilege to defending family members
Actor need only have a reasonable belief that person being aided would have the right of self-defense. |
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Term
| Standard for the "Insane" and Insanity Defense |
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Definition
Insanity defense applies when Δ is suddenly overcome w/o forewarning by the mental disability which incapacitates them from conforming to standards to reasonable men.
Courts have held sudden insanity = to physical attacks such as seizures and heart attacks -- not under general rule of insanity.
Majority Rule for Permanently (&Known) insane = reasonable person standard (no change)
Insanity must affect person's ability to understand and appreciate duty that rests upon them. |
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Term
| When is a child held to an adult standard? |
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Definition
When the activity a child is engaged in is inherently dangerous
often take into account factors such as"
age, intelligence, maturity, training, experience |
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Term
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Definition
When a person engages in any act, he's under legal duty to act as an ordinary, prudent, reasonable person.
Presumed that reasonable person will take precautions against creating unreasonable risks of injury to other persons.
No duty to take precautions against unforeseen events. |
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Term
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Definition
Duty (duty to use reasonable care)
Breach (failure to conform to the reasonable standard)
Causation (reasonably close causal connection b/w conduct and resulting injury)
Damages (Actual loss or damage resulting to the interest of another) |
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Term
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Definition
Sudden emergency, the event must be unforeseen, sudden, and unexpected. A person in an emergency cannot be expected t have perfect, calm judgment.
Emergency does not allow being unreasonable.
Cannot apply doctrine if emergency was caused by actors own doing. |
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Term
| Negligence - Reasonable Person Standard |
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Definition
Where an act is one which a reasonable man would recognize as involving a risk of harm to another.
Reasonableness takes physical handicapped into consideration - what's reasonable for a blindman? |
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Term
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Definition
| People with superior abilities are required to exercise them. |
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Term
| 3 Tests to Evaluate Breach of Duty |
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Definition
Ordinary Reasonable Person Standard
Hand Formula
Restatement Standard |
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Term
| Negligence - Restatement Rule - Factors Determine Magnitude of Risk |
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Definition
a) The social value which the law attaches to the interests which are imperiled
b) extent of chance that actor's conduct will cause an invasion of any interest of another in the class of which is a member
c) extent of harm likely to be caused to the interests imperiled
d) the # of persons whose interest are likely to be invaded if the risk takes effect in harm |
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Term
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Definition
Courts look at:
- intro language in the statute
- legislative history
- surrounding discussion |
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Term
| What constitutes extreme and outrageous conduct? |
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Definition
Beyond all possible boundaries of decency
Not mere trivalities
Must have thick skin
Look at
- period of time
- relationship b/w P and Δ
- Δ's knowledge of P's peculiarities
- conduct at issue
Common carriers and innkeppers owe special duties to patron even when act is less than outrageous |
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Term
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Definition
Actor enters upon another's land w/o consent and causes damage.
Right to exclusive possession of property. Any unauthorized entry is trespass. No actual damage needed.
Even intent w/ belief it was one's property is a trespass. (Mistake not a defense) |
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Term
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Definition
Shopkeepers have priv. to detain persons whom they reasonably believe to be shoplifters for investigation.
a) must be a reasonable belief as to the fact of theft
b) detention must be conducted in reasonable manner and only non deadly force can be used
c) detention must be for reasonable period of time and only for purpose of making an investigation |
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Term
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Definition
Consent is an absolute defense to certain torts.
Consent obtained by fraud invalid consent unless it is to a collateral matter and not to the essential character of the act itself.
Consent can be implied (custom, conduct, words or law).
Consent by mistake still valid.
Consent under duress invalid.
P must have capacity to consent (incompetent, drunk, underage). |
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