Torts Checklist updated

Assault

Intentional Placing another in reasonable apprehension of an imminent harmful or offense touching

Battery

The intentional, harmful or offensive touching of another with out consent 

False Imprisonment

Intentionally confines or restrains the plaintiff to a bounded area [Intent to confine, actual confinement, and awareness or harm ]

Intentional Infliction of Mental Distress

Intentional act or recklessness of the defendant amounting to extreme and outrageous conduct that causes severe emotional distress 

Trespass to Land

An intentional entry upon real property in the possession of another

 Trespass to Chattel

Intentional interference with a person’s use or possession of a chattel. 

Conversion

An intentional assumption of dominion and control over the chattel of another, resulting in a substantial interference with the plaintiff’s possessory rights.

Consent

A defendant who acted in accordance with the plaintiff’s informed and voluntary assent, whether express or implied, is not liable for the resulting harm so long as the plaintiff had legal capacity.

[Defenses to Intentional Torts]

 Self Defense

A person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect himself. 

[Defenses to Intentional Torts]

Defense of Others

A person who reasonably believes another to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect the personal safety of the other person.

[Defenses to Intentional Torts]

 Step-In-Shoes Jurisdiction

A person is not allowed to use the defense of others unless the person being defended was not the aggressor and had the right to use self-defense

[Defenses to Intentional Torts]

Reasonable Appearances Jurisdictions

A person defending another in good faith and in ignorance of the fact that the person being defender is the aggressor and not entitled to use self-defense is justified when acting upon reasonable appearances 

[Defenses to Intentional Torts]

 Defense of Property

A person may use reasonable force that is not likely to cause death or serious bodily harm to protect his or her possession of real or personal property against an apparent trespasser

[Defenses to Intentional Torts]

 Prevention of Crime

A person, whether a police officer or a private person, may use reasonable force to prevent the commission of a crime which is apparently being attempted in his or her presence.

[Defenses to Intentional Torts]

 Recapture of Property

A person may commit an act which would otherwise be tortious if he or she is acting in fresh pursuit and with a reasonable degree of force to regain possession of his or her property

[Defenses to Intentional Torts]

Re-entry Upon Land

A person may use reasonable force to re-enter real property only if the taking of the property was tortuous or wrongful and the re-entering party is entitled to immediate possession

[Defenses to Intentional Torts]

 Recapture of Chattel

A person may use reasonable force to defend against his or her chattel being taken only if the talking of the chattel was wrongful or tortious, the recapturing person is in fresh pursuit, and the degree of force is not likely to cause death or serious bodily harm

[Defenses to Intentional Torts]

Shopkeeper’s Rule

A business person has a limited privilege in some jurisdictions to detain a suspected thief, shoplifter or embezzling employee, to investigate the shopkeeper’s claim to the goods, even though it may be determined that no wrongful taking has been committed

[Defenses to Intentional Torts]

Fresh Pursuit

The requirement that a person recapturing a chattel or a shopkeeper detaining a suspected thief must do so without unreasonable delay after discovering the loss

[Defenses to Intentional Torts]

Legal Authority

A person may commit an otherwise tortious act if it is done under legal process or is otherwise authorized by law.

[Defenses to Intentional Torts]

Necessity

A person may commit an otherwise tortious act if that person is acting in an emergency situation to protect him or her self or others from a threatened injury to person or property

[Defenses to Intentional Torts]

Public Necessity

Defense that allows a person or government official to trespass on or destroy private property during an emergency. The action must be taken to protect the broader community from imminent danger or a greater disaster

[Defenses to Intentional Torts]

Private Necessity

Defense allowing a person to trespass or use another's property to protect their own interests or safety during an emergency. It is an "incomplete privilege," meaning it justifies the entry, but the person is still liable to pay for any actual damages caused.

[Defenses to Intentional Torts]

Negligence

1. A duty of care owed by the defendant to the plaintiff 

2. A breach of that duty and

3. That the breach was the actual and proximate cause of 

4. Damages suffered by the plaintiff

Negligence Per Se

the elements of duty and breach are proved when a defendant violates a safety statute which was intended to protect the class of people to which the plaintiff belongs from the kind of injury the defendant caused.

General Duty

Duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm 

[Examples are pain, suffering and inconvenience]

Special Duty

Duty arising from a special relationship in addition to a general duty. Must be specifically claimed and proved. [Examples are lost wages, medical expenses and other “out of pocket” losses.]

Punitive Damages

To punish or make an example out of them [None in Negligence]

are awarded to the plaintiff for the purpose of punishing the defendant for malicious or reckless conduct.

Duty Owed from Drivers of Vehicles

Owes to persons riding in the vehicle a duty of driving with due care.

Duty of Good Samaritans /Rescuers

A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care.

[No duty to complete the performance of the services unless abandonment would prejudice the other party's position]

Negligent Supervision

A cause of action which is brought by a plaintiff who suffered injury because a child or other person was inadequately supervised by one who owed a duty of supervision. Most commonly, it is brought against parents who failed to exercise ordinary parental discretion as to the manner in which their child is supervised or cared for.

Duty of a Professionals

Owes a duty of higher care than a layperson. A professional owes a duty to act as a reasonable professional in the field.

Invitee

an official relationship, i.e. a business customer or a visitor to a public building.

Owed the highest duty: duty to exercise reasonable care, and take affirmative steps for plaintiff’s safety

[Duty to inspect and make safe ]

Licensees

A person who enters property with the express or implied permission of the land occupier. [ entry is not for the purpose of doing business] [Duty to warn of known dangers] [Warn or Repair]

Business Invitee

A person who has express or implied permission to enter business property to do business with the land occupier

Public Invite

Enters property in the possession of another for the purpose for which the property is held open to the public [Public Park]

Duty Owed to Invitee

A land occupier owes a duty of ordinary care to invitees, which include reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions which a reasonable inspection would reveal  ["Inspect and Correct" ]

Trespasser

A person who enters the real property of another without express or implied consent

[The land occupier generally owes no duty of care to the trespasser.]

Duty Owed to a Constant Trespasser Upon a Limited Area

The land occupier owes a duty to constant trespasser upon a limited area of warning him of known dangerous artificial conditions unless such conditions are obvious.

 Attractive Nuisance Doctrine

A duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present. Foreseeability of trespass, Foreseeability of serious harm, The child is unaware of the danger, and The benefit to the owner of maintaining the condition in its dangerous form is slight when weighed against the risk to children

Duty Owed to a Person Off the Premises

 The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passerby and occupiers of adjoining premises.

Natural Conditions

A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property

Res Ipsa Loquitur

A rule of evidence which aids the plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrine proceeds upon the theory that the occurrence itself speaks of the negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby the defendant breached his or her duty of care

Actual Cause

The cause which starts, ignites or makes possible the result which follows, and which satisfies the "But For" or Substantial Factor test.

“But For”

Used to establish the actual cause. To apply the test, the plaintiff must show that "but for" the defendant's act, the plaintiff would not have been injured  [*But For the Defendant's Breach]

Substantial Factor

The defendant's breach of duty is the actual cause of the plaintiff's harm if the defendant's act is a substantial factor in bringing the harm about.

This means that the defendant's act contributed in more than a trivial degree to the plaintiff's injury.

Thin Skull Plaintiff Rule

The defendant "takes his plaintiff as he finds him" in that the defendant will be liable even where his act produces an unforeseeable result if that result is due to the plaintiff's uncommon reaction or physical defect.

Proximate Cause

An actual cause of harm is the proximate cause of that harm if the act occurs in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts and results in the harm. When a defendant’s act directly causes injury to the plaintiff without any intervening causes, the majority of jurisdictions hold that act to be the proximate cause of harm unless the harm is unforeseeable.

Independent Intervening Acts

Act would have occurred even without the original act.

Dependent Intervening Acts

Act would not have occurred without the original act.

Damages

 A remedy in the form of monetary compensation to the harmed party

Contributory Negligence

If the plaintiff's failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant's negligent action

Comparative Negligence

Has replaced contributory negligence, so that liability is apportioned according to the relative degree of fault of the plaintiff and defendant.

Assumption of the Risk

A plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk.