Comprehensive Common Law of Torts

Comprehensive vocabulary flashcards covering the common law of torts, including intentional torts, privileges, negligence, causation, strict liability, products liability, nuisance, defamation, privacy, and misrepresentation.

Tort

A civil wrong, other than a breach of contract, that causes harm or loss to another person and for which the law provides a remedy, primarily functioning as a system of compensation.

Burden of Production

The requirement that a party come forward with sufficient evidence to demonstrate that their legal claim is more probable than not in order to avoid summary judgment or a directed verdict.

Burden of Persuasion

The obligation of a plaintiff to convince the trier of fact of every essential element of a claim by a preponderance of the evidence.

Volitional Act

An external manifestation of will or voluntary bodily movement, excluding convulsions, reflexes, movements during sleep, or movements compelled by a third party.

Specific Intent

A state of mind in which an actor consciously desires the specific consequences of their physical act or acts for the express purpose of causing the resulting harm.

General Intent

A state of mind in which an actor knows or believes with substantial certainty that a particular consequence will result from their conduct.

Transferred Intent

A doctrine establishing intent when an actor attempts any of the five original trespass torts (battery, assault, false imprisonment, trespass to land, or trespass to chattels) and accomplishes one, or when conduct aimed at a third party harms the plaintiff instead.

Battery

An intentional volitional act that directly or indirectly causes a harmful or offensive contact to the person of another, or an act intended to cause apprehension of imminent harmful or offensive contact that results in such contact.

Harmful Contact

Physical contact causing bodily harm, including physical injury, physical pain, illness, disease, impairment of bodily function, death, or any alteration of the structure or function of the body.

Offensive Contact

Contact that affronts or insults personal dignity judged under an objective standard of what would offend an ordinary person not unduly sensitive as to personal dignity.

Crowded World Theory

The legal principle that ordinary physical contacts customary and reasonably necessary to daily life (such as casual jostling or a tap on the shoulder) are presumed consented to in the absence of an explicit objection.

Assault

An intentional volitional act that directly or indirectly puts another person in reasonable, imminent apprehension of a harmful or offensive contact with their person, of which the plaintiff is consciously aware.

False Imprisonment

An intentional volitional act that directly or indirectly confines another person within fixed boundaries without a reasonable means of escape, provided the plaintiff is conscious of the confinement at the time or harmed by it.

Intentional Infliction of Emotional Distress (IIED)

A tort imposing liability when an actor engages in extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress to another person.

Extreme and Outrageous Conduct

Conduct so atrocious and intolerable in a civilized community that it exceeds all possible bounds of decency, prompting an average member of the community to exclaim, 'Outrageous!'

Severe Emotional Distress

Emotional suffering of such intensity and duration that no reasonable person could be expected to endure it under the circumstances.

Trespass to Land

An intentional volitional act that causes an unauthorized physical entry onto land in the possession of another, causes a third person or object to enter, constitutes remaining on the land, or consists of failing to remove a thing under a legal duty to remove.

Trespass to Chattels

An intentional act that dispossesses another of tangible personal property, or uses or intermeddles with a chattel in the possession of another, resulting in actual harm or impairment.

Conversion

An intentional exercise of dominion or control over a chattel that so seriously interferes with another person's right of control that the actor is justly required to pay the full market value as a forced judicial sale.

Aiding and Abetting

A form of participation liability where a defendant is generally aware of their role in an ongoing tortious activity and knowingly provides substantial assistance or encouragement to the principal wrongdoer.

Civil Conspiracy

An agreement between two or more persons to participate in an unlawful act (or a lawful act in an unlawful manner) that results in injury caused by an unlawful overt act performed in furtherance of the common scheme.

Apparent Consent

Consent that exists when a plaintiff's outward words, actions, or silence under custom are reasonably understood by an actor to signify willingness, judged by an objective standard.

Presumed Consent

An emergency privilege to act without actual consent when a patient is incapacitated, treatment is necessary to prevent serious bodily harm or death, no authorized substitute is available, and a reasonable person would consent.

Shopkeeper's Privilege

A privilege permitting a merchant who reasonably believes that a person has stolen goods to detain the suspect on the premises or immediate vicinity in a reasonable manner and for a reasonable time to investigate.

Public Necessity

A complete privilege to enter or destroy private land or chattels when an actor reasonably believes it is necessary to avert an imminent public disaster, requiring no compensation for the resulting damage.

Private Necessity

An incomplete privilege to enter or remain on private land or use chattels to prevent serious harm to the actor or their property; the possessor cannot expel the entrant, but the entrant must pay for actual damage caused.

Learned Hand Formula

An algebraic test for breach of duty establishing negligence if the burden of adequate precautions ($B$) is less than the probability of injury ($P$) multiplied by the gravity of the resulting harm ($L$), expressed as $B < PL$.

Emergency Doctrine

A principle stating that a sudden, unexpected emergency not caused by the actor's own negligence is a circumstance to be considered in determining whether the actor behaved as a reasonable person would under similar conditions.

Professional Standard of Care

The requirement that a person rendering professional services exercise the skill, diligence, and knowledge normally possessed by members in good standing of that profession in similar or national communities.

Informed Consent

A physician's legal duty to disclose material risks and alternative treatments to a patient prior to therapy, evaluated based on what a reasonable patient would consider significant in deciding whether to undergo the procedure.

Negligence Per Se

A doctrine holding that an unexcused violation of an applicable statute or administrative regulation conclusively establishes the elements of duty and breach of duty as a matter of law.

Res Ipsa Loquitur

An evidentiary rule ('the thing speaks for itself') creating a permissible inference of negligence when the accident ordinarily does not occur without negligence, the instrumentality was in the defendant's exclusive control, and the plaintiff did not contribute.

But-For Test

The standard rule of cause in fact ($\text{sine qua non}$) establishing that a defendant's conduct is a factual cause if the plaintiff's harm would not have occurred without the defendant's negligent act.

Substantial Factor Test

A test for factual causation applied when multiple operating forces combine or overdetermine a single indivisible injury, asking whether the defendant's conduct had such an impact that reasonable people would regard it as a cause.

Alternative Liability

A rule shifting the burden of proof to multiple negligent defendants to prove they did not cause the injury when it is certain that one of them caused it, but the plaintiff cannot identify the responsible actor.

Market Share Liability

An apportionment doctrine used for fungible defective products (such as DES) holding participating manufacturers liable for the share of the plaintiff's damages corresponding to their proportion of the relevant commercial market.

Loss of Chance Doctrine

A medical malpractice rule permitting a plaintiff whose pre-existing chance of survival or recovery was $50\%$ or less to recover proportional damages for the reduction in that chance caused by medical negligence.

Proximate Cause

A legal policy determination limiting liability to harms that are within the foreseeable scope of the risks created by the defendant's negligence and unbroken by a superseding cause.

Eggshell Plaintiff Rule

The common law principle that a tortfeasor takes the victim as found, remaining liable for all physical and psychological injuries resulting from the tort even if pre-existing frailties make the extent of harm unforeseeable.

Superseding Cause

An extraordinary, independent, or unforeseeable intervening force that operates after a defendant's initial negligence and relieves the original defendant of liability.

Joint and Several Liability

A liability rule where two or more tortfeasors who cause an indivisible injury are each individually liable to the injured plaintiff for the entire sum of the judgment.

Satisfaction

The full payment or discharge of an injured plaintiff's claim, preventing the plaintiff from obtaining double recovery and discharging all other joint tortfeasors from liability.

Contribution

The right of a joint tortfeasor who has discharged an entire common liability by paying more than their equitable share to recover the excess payment from other liable co-defendants.

Indemnity

The total shifting of economic loss from one party who has been held liable (such as a vicariously liable principal) to another party who was actively at fault and should justly bear the entire burden.

Economic Loss Rule

A doctrine barring negligence claims seeking solely pecuniary loss (such as lost commercial profits) unaccompanied by physical personal injury or physical damage to tangible property.

Negligent Infliction of Emotional Distress (NIED)

A tort action allowing recovery for severe mental distress caused by negligence, typically restricted by jurisdictions requiring a physical manifestation, presence in the zone of danger, or specific bystander criteria.

Attractive Nuisance Doctrine

A rule imposing liability on a possessor of land for injuries to trespassing children caused by artificial conditions if the possessor knows children likely trespass, the condition involves an unreasonable risk, the child cannot appreciate the danger, and the burden of eliminating the risk is slight.

Firefighter's Rule

A common law rule barring professional firefighters and police officers from recovering for injuries caused by the very negligence that necessitated their presence on the scene.

Collateral Source Rule

A damages rule providing that compensation or benefits received by an injured plaintiff from an independent source (such as health insurance or gifts) cannot be used to reduce the defendant's liability.

Wrongful Death Action

A statutory action allowing designated survivors (such as spouses, children, or parents) to recover their own pecuniary and consortium losses resulting from a decedent's death.

Survival Action

A statutory action allowing a deceased victim's estate to prosecute the personal injury claims the decedent could have brought had they lived, recovering expenses and conscious pain and suffering sustained prior to death.

Last Clear Chance Doctrine

An exception to contributory negligence that allows a negligent plaintiff to recover if the defendant had the final distinct opportunity to avoid the accident but failed to exercise reasonable care.

Respondeat Superior

A doctrine of vicarious liability holding an employer strictly liable for the tortious acts of an employee committed within the authorized scope of employment.

Abnormally Dangerous Activity

An activity carrying a high probability of severe harm that cannot be eliminated by reasonable care and is not a matter of common usage, subjecting the actor to strict liability for harm within the risk.

Strict Products Liability

A rule holding commercial sellers strictly liable for physical harm caused by a product sold in a defective condition unreasonably dangerous to users or their property, provided it reached the consumer without substantial change.

Manufacturing Defect

A product defect occurring when an individual unit departs from its intended design or manufacturer specifications, despite the exercise of all possible care during preparation and marketing.

Design Defect

A defect existing when an entire product line is unreasonably dangerous as designed, evaluated under the consumer expectations test or the risk-utility balancing test.

Learned Intermediary Doctrine

A defense in prescription drug failure-to-warn claims providing that a pharmaceutical manufacturer discharges its duty to warn by providing adequate risk warnings to the prescribing physician.

Public Nuisance

An unreasonable interference with a right common to the general public, including public health, public safety, public peace, comfort, or convenience.

Private Nuisance

A nontrespassory, substantial, and unreasonable interference with another person's private use and enjoyment of real property.

Actual Malice

The constitutional fault standard in defamation requiring clear and convincing proof that a defamatory statement was published with actual knowledge of its falsity or with reckless disregard for its truth.

Intrusion Upon Seclusion

An invasion of privacy tort committed by intentionally intruding, physically, electronically, or otherwise, upon the solitude, seclusion, or private affairs of another where such intrusion is highly offensive to a reasonable person.

Fraudulent Misrepresentation (Deceit)

A tort requiring a false representation of material fact made with scienter (knowledge of falsity or reckless lack of confidence in truth) intended to induce reliance, resulting in justifiable reliance and pecuniary injury.