Torts I Final Exam

Intent

The actor wants to come in contact with another in a way that harms, is offensive, causes apprehension (w/o contact), or recklessly

Single Intent

Intending the cause without intending the effect of contact.

Def intends the contact but not any harm.

Intends to place the ptf in apprehension.

Dual Intent

Intending the cause and intending the effect of contact.

Intentional torts against persons

Assault

Battery

False Imprisonment

Defamation (Slander or Libel)

Invasion of privacy

Misappropriation of publicity

Intentional infliction of emotional distress

Intentional torts against property

Trespass to land

Trespass to and conversion of person property

Assault

Intends to cause a harmful contact with the other person or a third person.

Actor intends to cause imminent apprehension/fear of a harmful contact.

Battery

Intends to cause a harmful contact with the other person or a third person.

Intends to cause imminent apprehension/fear of a harmful contact.

False Imprisonment

The intentional and unauthorized infliction of confinement

False Imprisonment Elements

Intentionally confined

Ptf did not consent

Confinement was not privileged

Intentional Infliction of Emotional Distress

Ptf must prove the def intended to cause emotional distress and did cause severe emotional distress

IIED Def's Factors

Desire to cause emotional distress

Knows ptf will suffer distress

Recklessly disregards the high probability that it will occur

IIED Claim Elements

Intentional or Reckless

Extreme and Outrageous

Connection between wrongful conduct and the ED

Must be severe

IIED Defenses

1st Amendment

Property Torts

Conversion

Trespass

Nuisance

Ultra-hazardous Activities

Trespass

Def voluntary and intentional contât with the possessor's land for interference with the possessor's right of exclusive control and possession

Trespass Conditions

Invasion of the property

Setting something in motion

Failure to leave property

Failure to remove interfering items

Failure to remain within the scope of the permission to enter

Trespass to Chattels

Any intentional interference with a person's use or possession of the chattel

Occurs when the ptf can prove some actual harm has been done

Conversion

Private, civil, cause of action for theft

Damages is the value of the goods converted

Conversion Factors

Extent and duration of the actor's exercise of dominion or control

Actor's intent to assert a right in fact inconsistent with the other's right of control

Actor's good faith

Extent and duration of the resulting interference

Harm done to the chattel

The inconvenience and expense caused to the other

Personal Damages

Mental or physical pain or suffering

Inconvenience

The loss of intellectual gratification or physical enjoyment

Property Damages

Measure of recovery for this will be either diminution in value for partial destruction, or market value for total destruction

Economic Damages

Loss of wages

Inability to work

Medical expenses

Nominal Damages

Only for intentional torts

Ptf may recover for mental suffering, humiliation, loss of time, inconvenience, etc.

Compensatory Damages

General Damages

Noneconomic losses for which the amount is speculative

Mental/Physical pain/suffering, inconvenience, loss of gratification, losses of life, etc.

Special Damages

Can be calculated with certainty

Property Damages

Medical Expenses (Past/Present/Future)

Pain and Suffering

The discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury

Loss of Enjoyment of Life

Detrimental altercations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury.

Damages related to the ptf's inability to engage in pleasurable activities are known as "hedonic" damages

Loss of Consortium

Family members suffer as a result of a direct injury to another family member

Same persons who can recover for wrongful death: spouses, children, parents, and siblings

Collateral Source Rule

Recovery is not diminished because of insurance benefits received from sources independent of the tortfeasor's contribution.

Applies to: insurance, gratuities, employment benefits

Economic Loss Rule

Damages are purely economic and without accompanying personal injury or property damage

Exemplary/Punitive Damages

Punishment for def's behavior not ptf's loss

Trier of fact has discretion in awarding

Maritime

Product Liability

Insurance Law

Federal Law

Proof that the injuries were caused by a wanton or reckless disregard for rights and safety of others

Primary Defenses

Consent

Self-Defense

Defense of Others

Defense of Property

Not a Defense

Assumption of Risk

Temper

Voluntary Intoxication

Express Consent

Given by words or affirmative conduct

Implied Consent

May be manifested when a person takes no action, indicating an apparent willingness for the conduct to occur

Informed Consent

Must disclose information that will influence a ptfs decision unless it was an emergency

Self-Defense and Defense of Others

Was the def privileged to use some kind of force in self-defense?

If so, was the degree of force used proper?

Defense of Property

A possessor land cannot do indirectly that which they could not do immediately and in person

One may not be liable for damages to another's property if the damages were caused through good faith and apparent necessity

Negligence Elements

Duty

Breach

Actual and

Proximate Causation of

Damages/Injury

Duty

Must prove def owed a legal duty to act in a way to avoid unreasonable risks towards others

General Duty Theory

"A" owes a duty to exercise reasonable care to avoid foreseeable harm to "B" whether a relationship exists with "B" or "B" is a stranger

Limited/Qualified Duty Theory

"A" only owes a duty to "B" under certain limited circumstances

This duty creates: Premises Liability, Pure Economic Loss, Affirmative Duties to Act or Rescue

Did the def's "act" cause harm or is the def accused of "failing to act"?

Breach

Prove that def failed to conform to the duty because of "carelessness" or "lack of reasonable care"

Actual Cause of Injury

Prove def's breach of a duty was the "cause in fact" of the damage/injury

The injury would never have happened "but for" the breach

Proximate Cause of Injury

Prove a sufficiently close connection, or casual link, between the def's breach of a duty and the resulting harm, to justify holding the def liable as a matter of policy

Actual Damage

Prove that the def's breach of a duty resulted in some sort of damage

Negligence

Creates an unreasonable risk, by act or omission, which a reasonable an prudent person, guided by considerations that ordinarily regulate human conduct, would not create

Hand Formula

Tests if it was a reasonable decision

The probability of harm

The gravity of injuries that would result

The burden of taking precautions adequate to ensure harm wouldn't occur

Proper care is if the burden is less than the probability of harm times potential loss

Duty of Care

Owed only to foreseeable ptfs

The persons who were foreseeable endangered by the def's negligent conduct

The Privity Rule

Some type of direct, or successive, relationship where the parties have a mutual interest

A contractual relationship that the parties create/define the duty each party owes the ptf

Nonfeasance

The omission to perform a required duty of the failure to act when a duty to act existed

Misfeasance and Malfeasance

Acts which are performed but are performed improperly or wrongfully

Intended Beneficiary

To be able to claim rights under a contract they must be names as an intended beneficiary

Incidental Beneficiary

Parties that can potentially benefit from a contract's execution even though it was not the intention of any of the contract's involved parties

General Duty of Reasonable Care

A owes this duty to all those on whom might foreseeable suffer physical harm if A were to act carelessly

7 special relationships that carry a duty of care

Common Carriers

Innkeepers

Business or other landowners who open the premises to the public

Employers whose employees are in imminent danger or injured

A school with its students

A landlord with its tenants

A custodian who is required by law to take custody or voluntarily takes custody of the ward and has a superior ability to protect the ward

Imminent Probability of Harm

A heightened degree of foreseeability that arises where the def knows that criminal assaults are occurring or are about to occur, on the premises, based on notice of specific danger just prior to the assault

Ordinary Care Standard Factors

The foreseeability of harm

Degree of certainty of injury

The connection between the def's conduct and the injury

The moral blame attached to the conduct

The police of preventing future harm

The def's burden and consequences to the community of imposing a duty to exercise care with resulting liability for breach

The availability, cost, and prevalence of insurance for the risk involved

Negligent Infliction of Emotional Distress

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct places the other in danger of immediate bodily harm and emotional harm results from the danger

Physical Impact Test

Ptf's suffered a physical injury or impact

This rule is rejected

Zone of Danger Test

Based on duty and foreseeability

If one's carelessness placed another in grave physical danger, regardless or whether serious physical injury actually occurred, the resulting mental trauma is deemed reasonably foreseeable and therefore actionable

Relative Bystander Test

They are a close relative of the victim

They were present at the scene of the accident and was aware at the time that the victim was being injured

They suffered emotional distress more severe than the sort off distress a disinterested witness of the same accident might experience

NIED for Bystanders

They were in the zone of danger

They feared for their own safety

Their ED had an accompanying or resulting physical injury

NIED claims

serious mental distress

special circumstances

claim is not spurious

def's action must constitute negligence

ptf's mental disturbance must be serious

Why someone should be held liable even if they acted in complete good faith

Tort liability is not criminal liability

Each of us is entitled to expect and even demand that others engaged in ordinary activities of life, do so with ordinary competence

Even one who is doing their best should reimburse for the loss associated with the ptf's injury because the innocent puff still has to deal with the loss

Standard of Care

The actor behaved as would an ordinarily-constituted person acting reasonably under the circumstances

Professional Malpractice

All professionals engaged in a particular specialty are held to the standard of care commonly exercise by the reasonable practitioner in that specialty

Legal Malpractice Elements

The existence of an attorney-client relationship

The attorney's negligent representation

Loss caused by the negligence

A lawyer is liable when the client's loss is the proximate result of

A want of a degree of knowledge and skill ordinarily possessed by others in the profession similarly situated

An omission to use reasonable care and diligence

From a failure to exercise good faith in making a best judgment

Medical Malpractice Elements

Pre-suit Screening

Damage Caps/Patient's Comp Fund

The Standard of Care

Necessity of Informed Consent

Res Ipsa Loquitur

A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves."

Negligence Per Se

An action or failure to act in violation of a statutory requirement.

Negligence Per Se Elements

Existence of a statute

Statute is designed to protect a class of persons

Ptf is among that class of persons

Violation is unexcused

Ptf suffered the type of injury the statute its designed to prevent

Negligence Per Se Excuses

Incapacity

Justifiably unaware

Unable to comply

Emergency

Compliance would create a greater risk

Proof of Negligence

When the burden of proof requires a preponderance of the evidence the ptf must prove that an essential fact is more likely than not to have occurred

Actual Knowledge/Notice

When someone actually knows something

Constructive Knowledge/Notice

Should have taken notice of the hazard

Burden of Proof

The obligation to present evidence to support one's claim

The condition posed an unreasonable risk of harm

The place did not exercise reasonable care to reduce or to eliminate the risk

The place failed to use such care proximately to what caused the injuries

Res Ipsa Loquitur Necessary Conditions

What happened to the ptf must be the type of event that ordinarily does not occur in the absence of someone else acting carelessly

The instrumentality that harmed the ptf must have been within the def's exclusive control

The ptf's harm must not have resulted from any conduct on the ptf's part

Res Ipsa Loquitur Justifications

Evidentiary

Obligation-Based

Strict Liability Based

Evidentiary

constituting evidence or proof, having the quality of evidence

Obligation-Based

Def's responsibility for an injury that occurs due to their exclusive control over the thing that caused the injury

Actual Cause

The breach of duty needs to cause the injury or have an effect that causes the injury

"But for" test

Causation

Once the ptf has shown that the def acted negligently, the ptf must then show the negligent behavior caused the injury

Expert Witness Testimony

Must be an expert

Must testify about matters requiring scientific, technical, or specialized knowledge

Must assist the trier of fact

Substantial Factor

An important or significant factor that is not necessarily the only factor leading to a ptf's injury but is sufficient to have caused the injury by itself

Prove by a preponderance of the evidence that the def's conduct was a major or primary reason for the harm

"But For" Causation

But for the existence of X, would Y have occurred

Whether the accident would have happened but for the def substandard conduct

Concurrent Causation

Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though the single act alone might not have caused the accident

Joint and Several Liability

Allows a ptf to sue any or all responsible def and collect the total damages awarded from any or all of them

Alternative Liability

Each def has the burden to prove that the other def is at fault

Everyone who caused harm has to be sued

Concert of Action

Conspiracy to commit a crime

Civil Conspiracy

Enterprise or Industry-Wide Liability

Attempt to hold an entire industry accountable for industry-wide defects, usually where a group of large companies set their own safety and/or manufacturing standards

Market Share Liability

Only need to sue the def that make up 75-80% of the market of the product that caused the harm

Each def will be held liable for the proportion of judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused ptf's injuries.

Proximate Cause

The legal connection between unreasonable conduct and the resulting harm

Actual causation - an in-fact logical causal connection between breach and injury

"Right sort" of actual cause in relation between the injury element and the breach elements

Eggshell Plaintiff

A particularly sensitive ptf may recover for seemingly disproportionate injuries if def was aware of ptf's sensitivity

Probabilistic Damages

Defs take the ptfs as they find them and proven injuries that seem excessive in comparison to the negligence are compensable

Direct Causation

The accident was the direct result of the negligent act

Foreseeability

Ptf's injury may be seen as actually caused by the def's carelessness only if the injury is among those that were reasonably foreseeable to a person situated as was the def at the time they acted

The Risk Rule

Proximate cause is satisfied only if the ptf's injury was the type of injury that makes the def's conduct careless int he first place

Cardozo's Opinion for Proximate Cause

Def's conduct must be careless toward the ptf for the ptf to have a cause of action in negligence

Framework Identification

Intra-Framework Analysis

Framework Validation