TORT Elements (PT 1)

Define INTENT (CKV)

CONSCIOUS desire that a result will occur OR

KNOWLEDGE a result is substantially certain to occur OR

CONDUCT manifested through VOLITIONAL ACT.

Modernly, the TRANSFERRED INTENT DOCTRINE is limited to which three TORT offenses? A-B-F

Assault, Battery, False Imprisonment

Define TRANSFERRED INTENT DOCTRINE

WRONGFUL INTENT,

TRANSFERRED from INTENDED VICTIM

to ACTUAL VICTIM OR

From INTENDED TORT

to COMMITTED TORT

Define ASSAULT

INTENTIONAL

PLACING OF ANOTHER IN REASONABLE APPREHENSION

OF AN IMMINENT HARMFUL OR OFFENSIVE TOUCHING

WITHOUT CONSENT OR PRIVLEGE

Note: WORDS ALONE not sufficient. Must have awareness. Fright not required only apprehension.

Define BATTERY

INTENTIONAL

HARMFUL OR OFFENSIVE TOUCHING OF ANOTHER

WITHOUT CONSENT OR PRIVILEGE

• Instrumentality will suffice

• Awareness not necessary

Define FALSE IMPRISONMENT

INTENTIONAL

PHYSICAL or PSYCHOLOGICAL CONFINEMENT OF ANOTHER

WITHIN FIXED BOUNDARIES

for ANY PERIOD OF TIME

WITHOUT CONSENT OR PRIVLEGE

• Under legal authority, words alone sufficient.

• Time period immaterial

• Must be NO reasonable means of egress

• P MUST be aware of confinement or must be DAMAGED to recover

Define IIED

CONDUCT OF EXTREME AND OUTRAGEOUS NATURE

CALCULATED TO CAUSE AND WHICH DOES CAUSE

SEVERE EMOTIONAL DISTRESS

• OUTRAGEOUS conduct is REQUIRED

• Sensitivities must be weighed

If plaintiff claims IIED from seeing Defendant cause severe physical harm to 3rd person, plaintiff is required to prove the FOLLOWING 3 THINGS: (P-R-K)

• PRESENT when injury occurred to 3rd person; AND

• 3rd person was a RELATIVE; AND

• Defendant had KNOWLEDGE Plaintiff present and close relative.

Transferred intent does not apply to IIED.

Define TRESPASS TO LAND

INTENTIONAL

ENTRY UPON LAND

IN POSSESSION OF ANOTHER

WITHOUT CONSENT OR PRIVLEGE

• Trespass consists of intrusions upon, beneath, and above surface of earth

• Mistaken belief he owns land or has consent is no defense

• P must have actual possession or right to immediate possession

• INTRUSIONS MUST BE ACCIDENTAL, UNINTENTIONAL, AND NON-NEGLIGENT FOR NO-LIABILITY.

Define TRESPASS TO CHATTEL

INTENTIONAL

INTERFERENCE WITH CHATTEL

IN POSSESSION OF ANOTHER

WITHOUT CONSENT OR PRIVILEGE

• Defendant interferes in manner inconsistent with P’s rights.

What are the five types of INTERFERENCE (dispossession) under TRESPASS OF CHATTEL (C-F-D-B-L)

• Taking without CONSENT

• Obtaining by FRAUD

• DESTRUCTION via conversion

• BARRING access

• Interfering with LEASED/rented possession

Under TRESPASS of CHATTEL, What are the TWO available REMEDIES? D - R

• DIMINUTION (Diminished) in value

• Reasonable RENTAL value

Define the tort of CONVERSION

INTENTIONAL

EXERCISE OF WRONGFUL DOMINION AND CONTROL

OVER CHATTEL OF ANOTHER

WITHOUT CONSENT OR PRIVILEGE

• MORE THAN INTERFERENCE

• If defendant receives or buys stolen goods, even innocently, liability will result

What are the three REMEDIES available for CONVERSION?

• FORCED SALE JUDGEMENT (market value payment)

• REPLEVIN (Surrender property)

• DETINUE (Action to recover property)

The MNEMONIC for the 12 Tort DEFENSES is CRAZY SILLY DOUBLE DEALING DIRTY DOG LEAVE RIGHT NOT NEVER RETURN EVER. What are the 12 defenses?

Consent

Self Defense

Defense Of Others

Defense Of Property

Discipline

Detention For Investigation

Legal Authority

Reentry Of Land Wrongfully Withheld

Necessity (Public)

Necessity (Private)

Recapture Of Chattel Wrongfully Withheld

Entry To Abate A Nuisance

Define Consent as a defense

Not liable for harm if plaintiff’s consent was:

• Informed

• Voluntary

• Express or implied

• Legal capacity

Define Self Defense as a defense (Majority v Minority view regarding retreat?)

Reasonable belief of imminent danger AND reasonable force used to repel attack.

• For DEADLY force, MAJORITY: No duty to retreat but MINORITY: Must retreat unless unsafe, in home or attempting arrest

Define Defense of Others as a defense (Majority v Minority view regarding mistakes?

Reasonable force to protect third person from harm.

• MAJORITY: Step in shoes of victim required (can only use force that the person being attacked would be allowed to use.

• MINORITY: Reasonable mistake OK

Define Defense of Property as a defense

Reasonable force used to protect property, taking was apparently trespassory, AND force was objectively reasonable and NOT deadly.

• Deadly force is NEVER allowed to protect property.

Define Discipline as a defense

Reasonable force used against plaintiff by one who is “loco parentis” (person acting as parents in parents stead).

Define Detention for Investigation as a defense (Shopkeepers Privilege)

Business person has privilege in some jurisdictions to detain a suspected thief and investigate claim to goods so long as there is:

• Reasonable grounds

• Reasonable amount of time

• Reasonable force

• Reasonable investigation

• MAJORITY permits reasonable mistake

Define Defense of Legal Authority as a defense when a FELONY vs. MISDEMEANOR is committed and when defendant is POLICE or PRIVATE PERSON

• FELONY:

  • If POLICE, may arrest on probable cause felony was committed

  • If CITIZEN, may arrest but felony must have actually been committed

• MISDEMEANOR:

  • If POLICE or CITIZEN, may arrest if breach of peace occurred IN PRESENCE

All force must be reasonable. Exception for deadly force is person poses imminent threat to society/police.

Define Defense of Reentry of Land Wrongfully Withheld as a defense (MAJORITY vs. MINORITY)

May use reasonable force to re-enter real property if taking of property was tortious or wrongful and re-entering party entitled to immediate possession. Demand to vacate must be made unless futile.

MAJORITY: No privilege to use any force

MINORITY: May use reasonable force to regain possession.

Define Public Necessity as a defense

COMPLETE DEFENSE: Privileged if defendant acts to protect himself, others, property AND defendant had objectively reasonable belief it was done during an emergency situation.

Define Private Necessity as a defense

PARTIAL DEFENSE and still liable for damages/trespasses: Defendant interferes with a plaintiff's property in an emergency to protect an interest of his own. Entry MUST be reasonable.

Define Defense of Recapture of Chattel Wrongfully Withheld

Defendant may recapture chattel so long as:

• Reasonable force was used in FRESH pursuit

• Actor entitled to chattel

• Reasonable demand made

• Mistake not permitted

Define Entry to Abate a Nuisance defense

Defendant has COMPLETE defense to invade land or chattels of another to abate a private nuisance so long as:

• Defendant is owner/possessor of land or chattels injuriously affected by nuisance

• Makes reasonable demand nuisance abated

• Enters at a reasonable time

• Uses reasonable force

Define NEGLIGENCE tort (D-B-D-APC)

Defendant may be liable for NEGLIGENCE is:

• Defendant owed DUTY OF CARE to plaintiff

• Defendant BREACHED THAT DUTY

• Plaintiff suffered DAMAGES

• ACTUALLY AND PROXIMATED CAUSED by the breach

Under NEGLIGENCE what does GENERAL DUTY mean?

It is the STANDARD OF CARE based on the REASONABLE PERSON test under the same or similar circumstances.

• Custom is not standard of care but may be evidence of negligence

• Adults with physical disabilities held to reasonable person test

• No allowance for mental disabilities unless diminished mental capacity

• Children and mentally retarded adults are judged by age, intelligence, and experience UNLESS engaged in an ADULT ACTIVITY.

  • Presumptive negligence age ranges is MINORITY view

• Profession/Trade examined by standard of care customarily exercised (national standard)

  • Modernly, medical professionals expands standard of care in the same or similar community

  • National certified specialists must meet national standard of care

• COMMON CARRIERS held to higher standard

• Remember jurisdictions vary = CARDOZO is foreseeable zone of danger, ANDREWS is general duty owed to everyone.

What are the two different DUTY OF CARE views under Palsgraf: CARDOZO v ANDREWS?

CARDOZO: FORESEEABLE ZONE OF DANGER

ANDREWS: GENERAL DUTY TO EVERYONE

What are the 5 SPECIAL DUTIES as it relates to NEGLIGENCE? (V-GOLD)

V-GOLD

• Violation of Statute (Negligence per se)

• Guest Statute

• Omission to Act

• Landowner-Occupier

• Duties Owed by Lessors of Land

Under the Special Duty of VIOLATION of STATUTE (Negligence Per se) what are the FOUR considerations under the Mnemonic ICI+ (Majority/Minority rule)?

What is the:

• INTENT of the legislature?

• CLASS of persons to be protected?

• Type of INJURY suffered?

• ± MAJORITY: Negligence Per Se

  • MINORITY: Inference of Negligence

Under NEGLIGENCE, what is the GUEST statute mean (as a passenger in a vehicle)?

If Plaintiff is a GUEST, he must show recklessness on part of driver.

Under NEGLIGENCE, OMISSION TO ACT (Nonfeasance) an affirmative duty to ACT to prevent injury is required under the SIX following circumstances (PC/HW/CV/IG/CCP/DE)

• PARENT/CHILD

• HUSBAND/WIFE

• CO-VENTURERS

• INNKEEPER/GUEST

• COMMON CARRIER/PASSENGER

• Person who creates DANGER/Person so ENDANGERED

  • Remember: No liability for failure to perform a gratuitous promise (nonfeasance) UNLESS defendant causes detrimental reliance and defendant does not act with due care.

Under NEGLIGENCE/OMISSION TO ACT is there a duty to aid another in an emergency undertaking?

NO - UNLESS:

• Injured by instrumentality under D’s control

• Special relationship

• Statutory Duty

Under NEGLIGENCE theory, does one have duty to control third persons conduct? What is the exception?

NO, UNLESS you have ability AND authority to do so (supervision, legal control)

Can you be held liable under NEGLIGENCE THEORY for failing to perform a gratuitous promise (nonfeasance)?

NO, EXCEPT:

• You must perform with reasonable care

• MODERNLY, duty to perform if physical harm or property damage results from reliance

• Detrimental reliance may substitute consideration, and make a promise no longer gratuitous requiring performance

• You may not, under gratuitous undertaking, leave an individual in a worse situation than before, UNLESS physicians.

Under LANDOWNER-OCCUPIER duty, what DUTY is owed to persons outside land for NATRUAL CONDITIONS?

What DUTY is owed to persons outside land for ARTIFICAL CONDITIONS?

NO DUTY for NATURAL conditions except urban areas.

• MINORITY View - Reasonable Care Required

NO DUTY for ARTIFICIAL CONDITIONS except:

• Artificial condition abuts adjacent land, duty to inspect and main such structures in reasonably safe condition

• Excavations adjoining public roads required duty to protect highway users from straying and falling

What DUTIES are owed to the following PERSONS coming onto the land?

UNDISCOVERED TRESPASSER?

DISCOVERED TRESPASSER?

CHILD?

UNDISCOVERED TRESPASSER?

No duty

DISCOVERED TRESPASSER?

(Known/Anticipated) Must warn of known artificial conditions likely to cause harm or post warnings

CHILD?

Attractive Nuisance Doctrine - must make reasonable correction to prevent harm

Define the ATTRACTIVE NUISANCE DOCTRINE’s four elements with the following Mnemonic:

A Professor You Understand - APYU

• Artificial conditions with unreasonable risk of harm

• Possessor knew or should know children likely to trespass

• Children are unable to recognize danger because of youth

• Utility of maintaining condition vs burden of eliminating the risk not unduly high

What is a LICENSEE? And what is a LAND OCCUPIERS DUTY to a LICENSEE?

Licensee - Person who enters real property of another, with express or implied consent, NOT FOR BUSINESS PURPOSE (Social Guests, Door Knockers, Firefighters/police for in progress emergency, etc).

DUTY to WARN of known conditions likely to cause harm

What is an INVITEE? And what is a LAND OCCUPIERS DUTY to an INVITEE?

Invitee - Person who enters real property with permission for the purpose for which the land is maintained (such as land open for business/mall/business invitation/inspectors/mailman/policeman on routine business and not an emergency)

DUTY to use ORDINARY CARE and make REASONABLE INSPECTIONS for DANGEROUS CONDITIONS + WARN all of DANGERS which could have been discovered by a reasonable inspection AND make safe for protection of invitees.

Regarding LESSORS OF LAND, what DUTY does a landlord owe to persons coming onto land with consent of the lessee?

NO DUTY, except:

• Latent defects KNOWN to lessor

• Duty to warn or repair conditions dangerous to those OUTSIDE the premises

• SAME DUTY as INVITEES if land leased for admission to the public (such as a shopping mall)

• Duty for areas retained in lessor’s control + duty to safeguard against crime (mall, public lobby of apartment, etc)

Under NEGLIGENCE Theory, what does RES IPSA LOQUITUR mean and what are the THREE ELEMENTS? Also, What is the MAJORITY is MINORITY view?

• The THING speaks for itself. ELEMENTS are:

  • Accident doesn’t normally occur in absence of negligence

  • Source of negligence must be within scope of duty owed by defendant

  • Plaintiff must not have contributed to his own injury

• MAJORITY: Automatic inference of negligence

• MINORITY: Rebuttable presumption

Under NEGLIGENCE theory, CAUSATION, ACTUAL CAUSE, you may test with the BUT FOR test or the SUBSTANTIAL FACTOR test. The BUT FOR test can be evaluated using the three theories: CONCURRENT, JOINT TORTFEASORS and SUCCESSIVE TORTFEASORS. Define each one

CONCURRENT cause: Occurs when SEPARATE negligent acts occur and P would NOT have been injured but for the concurrence then BOTH defendants are liable.

JOINT TORTFEASORS cause: Several defendants engage JOINTLY in negligent conduct. EACH DEFENDANT liable even though only one inflicted injury.

SUCCESSIVE TORTFEASOR cause: Defendants acting entirely independently but whose ACTS caused SUCCESSIVE impacts to plaintiff resulting in a single INDIVISIBLE injury to plaintiff. Tortfeasors must disprove their own responsibility.

Under NEGLIGENCE theory, CAUSATION, ACTUAL CAUSE, you may test with the BUT FOR test or the SUBSTANTIAL FACTOR test. Define the SUBSTANTIAL FACTOR TEST:

• May be used when plaintiff sustains an injury as a result of the NEGLIGENT CONDUCT of BOTH A and B.

• If conduct of EITHER defendant alone would have been sufficient to cause injury, BOTH are a substantial factor.

• Under ALTERNATE liability test (SUMMERS V TICE), If either act COULD have caused injury but unknown who caused injury, BURDEN OF PROOF SHIFTS to each defendant to show they were no the actual cause or if jointly liable.

Under NEGLIGENCE theory, define PROXIMATE cause

• Asks if a defendant has been negligent and who has actually caused damage to the plaintiff, should the defendant be held liable?

Under NEGLIGENCE THEORY, what is DIRECT CAUSATION and what is the MAJORITY and MINORITY rule?

Direct Causation is where ACTS of defendant have caused the damage to the plaintiff WITHOUT an intervening cause

• MAJORITY: Liable ONLY for foreseeable results of negligent act UNLESS unforeseeable outcome because of Thin Skulled Plaintiff Rule

• MINORITY: Defendant liable for ALL DIRECTLY CAUSED RESULTS.

Under NEGLIGENCE THEORY, what is INDIRECT CAUSATION defined?

• The damage in question caused by the INTERVENEING ACT of a THIRD PERSON, an ANIMAL, or an ACT OF GOD.

Suicide can be seen as an unforeseeable intervening act of the plaintiff himself IF suicide committed as result of injuries.

Under NEGLIGENCE Theory, INDIRECT CAUSATION, there are TWO TYPES of INTERVENING CAUSES. DEPENDENT and INDEPENDENT.

DEFINE DEPENDENT intervening cause and the FOUR TYPES for FORSEEABLE responses to D’s stimulus:

• Dependent intervening cause is the NORMAL RESPONSE to STIMULUS created by Defendants Act

• There are FOUR TYPES of foreseeable responses

  • Rescuer injuries

  • Reaction injures (foreseeable reaction)

  • Negligent Treatment which is foreseeable

  • Escape attempt injuries

Under NEGLIGENCE Theory, INDIRECT CAUSATION, there are TWO TYPES of INTERVENING CAUSES. DEPENDENT and INDEPENDENT.

DEFINE INDEPENDENT intervening cause and the TWO TYPES of causes

• Independent intervening cause is an ABNORMAL RESPONSE to stimulus created by negligence such as an ACT OF GOD, ANIMAL, or THIRD PERSON that is NOT caused by defendant’s negligence, but acts on the stage created by negligence.

• TWO TYPES of independent intervening causes which are:

  • FORSEEABLE - Defendant is LIABLE if RESULT was FORESEEABLE

  • UNFORESEEABLE - This is a SUPERSEDING cause such as an abnormal rescue, unforeseeable criminal act. Exception - foreseeable results doctrine.

Under NEGLIGENCE THEORY, there are FOUR different types of DAMAGES and TWO RULES. What are they?

G-S-P-L/A-C

• GENERAL Damages: PAST, PRESENT, FUTURE pain and suffering

• SPECIAL Damages: PAST, PRESENT, FUTURE economic losses, medical bills, loss of wages/profits. However, pure economic injury is NOT protectable by negligence cause of action

• PUNITIVE Damages: NOT recoverable in negligence action

• LOSS OF CONSORTIUM: Majority requires COMPLETE loss of companionship for period of time. Minority extends this recovery to parent/child

• AVOIDABLE CONSEQUENCES RULE: Plaintiff must act reasonable to mitigate damages

• COLLATERAL SOURCES RULE: Defendant may NOT show at trial that plaintiff received financial aid from other sources to help meet any expenses caused by Defendant negligence.

Under NEGLIGENCE theory damages, define JOINT AND SEVERAL LIABILITY:

• When TWO OR MORE negligent persons COBINE to inflict an indivisible injury on the plaintiff, even if they are independently of one another, EACH is liable to plaintiff for ENTIRE damage occurred whether they are sued jointly or individually.

Under NEGLIGENCE theory, what are the THREE ways in which more than one party can become joint tortfeasors. What are the THREE WAYS?

• If TWO or more independent tortfeasors:

  • conduct joins together to concurrently cause indivisible injury

  • Inflict successive impacts to the body of plaintiff to cause indivisible injury

  • engage in agreement to commit tort or jointly engage in tortious conduct, and divisible or indivisible injury is caused to the plaintiff.

Under NEGLIGENCE theory, when there are multiple tortfeasors, what does CONTRIBUTION mean?

• Each Tortfeasor is liable to his other tortfeasors for his PROPORTION SHARE. If one tortfeasor pays the whole judgment, he has cause of action for CONTRIBUTION against his fellow joint tortfeasors.

Under NEGLIGENCE theory, what does INDEMNITY mean?

A person secondarily liable is entitled to indemnification against defendant who is primarily responsible.

Under NEGLIGENCE theory, what does SATISFACTION mean in reference to multiple tortfeasors

The recovery of full payment by settlement or judgement from ONE tortfeasor prevents further recovery from any other joint tortfeasor.

Under NEGLIGENCE theory, what does RELEASE mean regarding multiple tortfeasors? Common law vs. Modernly

Cancelling of all claims against a defendant.

COMMON LAW: Release against one joint tortfeasor was a release against all

MODERNLY: Release against one is NOT a release against all. But payment made by one tortfeasor diminishes claim of potential payment made.

Define Negligent Infliction of Emotional Distress and the DUTY owed to others

• DUTY owed NOT to subject others to foreseeable risk of physical injury which MIGHT FORESEEABLY RESULT in emotional distress.

• Distress caused by negligence where (rule split):

  • If physical impact to plaintiff, emotional distress presumed

  • In some jurisdictions, if no physical impact to plaintiff:

    • Plaintiff physically manifests emotional distress AND

      • Plaintiff was in zone of danger OR

      • plaintiff was present AND aware during injury of close relative

• ALL jurisdiction's impose liability for EMOTIONAL distress if contemporaneous physical injury (impact rule). MAJORITY imposes liability for emotional distress if plaintiff is in zone of danger. MINORITY allows recovery for seeing another injured if meets “proximity test”

Under NEGLIGENCE theory, courts impose a duty toward any fetus viable at the time of the injury. Define WRONGFUL birth negligence:

Not all jurisdictions allow wrongful birth injuries: If a child is born AND

• Parents used preventative medical techniques OR

• child has birth defect which could have been disclosed in time for termination of pregnancy,

• Lawsuit may be brought by parents against medical professionals

Under NEGLIGENCE theory, define PRE-NATAL injuries

Some courts allow for pre-natal injuries which means:

• Child is born with an injury caused while in utero

• Child can then bring suit after birth.

Under NEGLIGENCE theory, what are the FOUR defenses? C-C-LCC-A

CONTRIBUTORY NEGLIGENCE

COMPARATIVE NEGLIGENCE

LAST CLEAR CHANCE DOCTRINE

ASSUMPTION OF THE RISK

Under NEGLIGENCE theory, define the defense of CONTRIBUTORY NEGLIGENCE (C-CC-S)

Plaintiffs CONDUCT

Which is a CONTRIBUTING CAUSE to his own injury

And falls below the STANDARD of care he is expected to perform for self protection.

• Essentially, plaintiff owes duty to himself (such as negligence per se)

• WILL BE A COMPLETE BAR TO RECOVERY but does not apply to intentional torts, reckless conduct or strict liability.

• This is a minority view.

Under NEGLIGENCE theory, define the defense of COMPARATIVE NEGLIGENCE (THREE ELEMENTS) DN/PN-DA test AND the difference between a PURE and PARTIAL system

• If DEFENDANT’s NEGLIGENCE is proved

• and PLAINTIFF’s NEGLIGENCE also contributed to own injury

• then DAMAGES will be APPORTIONED between plaintiff/defendant

Under PURE system like CA, P recovers some damages no matter how great the negligence

Under PARTIAL system, P will be denied recovery if negligence = 50%+

Under NEGLIGENCE theory, define the defense of LAST CLEAR CHANCE DOCTRINE (three elements) C-NB-DLCC and briefly discuss the difference between:

• Helpless Peril Case

• Inattentive Peril Case

• Lack of Preparation Case

• Plaintiff’s CONTRIBUTORY negligence

• Will NOT be considered a BAR to his action

• If DEFENDANT had the LAST CLEAR CHANCE to avoid the injury

• Helpless peril - If P places himself in peril and cannot extricate, and D had knowledge of P’s danger and could have avoided harm, LCC applies

• Inattentive peril - If P could have saved self through use of reasonable care but fails to do so, LCC only applies if D is actually aware of but fails to avoid accident

• Lack of preparation - If D fails to inspect something that causes injury (their brakes etc), courts do not apply LCC.

Under NEGLIGENCE theory, define the three elements of the defense of ASSUMPTION OF THE RISK (AR-BTA-V) and what is the one exception?

• If the Plaintiff Assumes Risk

• It will be a BAR TO ACTION if there is knowledge/appreciation of danger

• AND VOLUNTARILTY chooses to encounter it

Exception - Professional RESCUERS (police/firefighters) are barred from recovery as it is part of the risk of their jobs.