Tort Law Final

Intent

What a person wants to happen as a result of their actions, or what is believed will likely happen

Transferred Intent

In intentional torts only, the intention to harm one individual can be transferred to another individual who is harmed instead.

Contact in Battery

Whether the contact is harmful or offensive is judged by the reasonable person standard.

by threat or other means

Personal Property

• appreciable amount of time

• trespass to chattels

• long period of time

Conversion

when a long period of time occurs during the taking and possession of personal property

Consent

voluntary agreement to a tort, or willingness to undergo a tort with full understanding of the risk

Actual Malice

Statement made with knowing falsity or reckless disregard of whether it is true or false

Assault

imminent threat of harmful or offensive contact

Legal Duty

the legal obligation to prevent harm

Moral Duty

the moral obligation to prevent harm (moral duty cannot be prosecuted)

Foreseeable Risk

risk a reasonable person would foresee or anticipate

Eggshell Plaintiff

plaintiff takes defendant as they find them, and still holds full responsibility

When is a child held liable?

when the child is doing something as adult would

Negligence Per Se

Does not require failure to exercise reasonable care, it automatically establishes duty and breach

Res Ipsa Loquitur

“the thing speaks for itself” - injury normally does not occur without negligence

Causation and Negligence

Actual Cause and Proximate Cause

Actual Cause

or cause-in-fact, is a direct link between the defendant’s action and the plaintiff’s harm (determined by but for and substantial factor tests)

Proximate Cause

Requires both actual cause and reasonable foreseeability

But-for test

cause-in-fact, "But for the defendant's action, would the harm have occurred?"

Vicariously Liable

holding one person liable for the actions of another

Ordinary Negligence

no punitive or exemplary damages

Attorney Fees

In Texas, if you win you cannot recover attorney fees

Contributory Negligence

In Texas, we do not have contributory negligence as a defense to negligence.

Visitors to Real Property

• Trespassers

• Licensees

• Invitees

Medical Malpractice

A physician must have a duty to a patient for medical malpractice

Medical Consent

Express consent is not necessary in emergency situations

Informed Consent

all material benefits and detriments

Statute of Limitations in Negligence

2 years

Physician-Patient Priviledge

Attorneys can get information related to the incident for litigation

Strict Liability

Fault is irrelevant, and does not apply to intentional torts or negligence (duty and breach also does not apply)

Strict Liability in Product

Manufacturer can be held liable even if all safety precautions are used

Manufacturing Defect

Defect on some but not all

Warranty

Warranty of merchantability and Warranty of fitness for a limited purpose

Nuisance

Private and Public

Duty

Either negligence per se or standard of reasonable care

Learned Hand Formula

risk benefit analysis, not used in Texas

Joint Tortfeaser

when two actors actions combine to cause harm

HIPAA

Health insurance portability and accountability act, a federal statute