Turley Torts copied

intentional tort

a tort committed with the desire, aim, or purpose to harm someone with substantial knowledge that their act will inflict that harm

Battery elements

(1) acted intentionally (2) that the plaintiff suffered either a harm (physical damage) or an offense (violation of a reasonable sense of personal dignity) (3) the harm or offense involved a touch

[Battery] Vosburg

a kid kicked another kid underneath the table and injured him, court awarded damages because he violated a rule, but not broad precedent because it's a difficult argument for intent, take your victim as your find them

Assault Elements

(1) intent (2) reasonable apprehension of battery (3) the battery is imminent

False Imprisonment Elements

(1) intent (2) an act of restraint (also can be the failure to help someone move about), (3) resulting confinement of the plaintiff within the bounded area

Exceptions to False Imprisonment

(1) reasonable or safe escape (2) P did not know of confinement

IIED Elements

(1) defendant acted either intentionally or recklessly (2) defendant engaged in extreme and outrageous conduct (3) plaintiff suffered severe distress as a result

Trespass Elements

(1) intent (2) possession of the property by the plaintiff (3) act of physical invasion of the property by the plaintiff

Defenses to Intentional Torts

(1) Consent (2) Self Defense (3) Defense of Others (4) Defense of Property (5) Necessity

Emergency rule Elements

(1) existence of a medical emergency (2) the need for treatment to protect the patient's health (3) the impossibility or impracticality of obtaining consent

Self Defense or Defense of Property

reasonable response, especially in an action that would otherwise be a tort, to protect yourself or your property from an imminent threat

Castle doctrine (make my day laws)

ability to use lethal force in the protection of your home, but cannot inflict serious bodily harm that results in death indirectly to protect your property (Katko and the spring gun)

Necessity

permit an individual confronted with a sudden emergency to engage in certain acts that would otherwise be considered torts against property

Public Necessity

defense for a person who commits a property tort to avert an imminent public disaster (R2d 263)

Private Necessity

defense for a person who commits a property tort to avert an imminent danger to his or her own interests (Putnam and the boat needing to dock in a storm) [note: damages can still be awarded, just not civilly for the act/tort]

Shopkeeper privilege

(1) reasonable suspicion (2) reasonable duration (3) reasonable manner

Negligence

1. duty 2. breach 3. factual causation 4. proximate causation 5. damages

Duty of care

law obligates actors to adhere to a certain minimum standard of behavior to lower the chance of collateral injuries

Reasonable Person

operating under the same degree of care as would be used by a hypothetical reasonably prudent person acting under similar circumstances

[Negligence, RP] Vaughn v. Menlove

creates the objective standard, what a "man of ordinary prudence" would do

[Negligence, RP] Roberts v. Ring

old age is not considered, but young age would be

[Negligence, RP] Daniels v. Evans

children get protection from negligence unless they are doing an adult activity

[Negligence, RP] Breuning v. American Family Insurance Co.

saw jesus and thought she could fly case, established the standard for mental incapacity, sudden incapacitation while driving that allowed an exception to ordinary care

[Negligence, RP] Blyth v. Birmingham Water Works

fire plug froze over during an especially strong storm, pipe had been constructed according to the best known system, "Negligence is the omission to do something which a reasonable man . . . would do, or doing something which a prudent and reasonable man would not do."

[Negligence, RP] Eckert v. Long Island Railroad

creation of the hero exception, ran on a railroad track to save a child

[Negligence, RP] US v. Carroll Towing Co.

HAND; B(burden) < P(probability of harm) * L (degree of loss), in this case implementing the safety measures was not that burdensome

Custom

evidence to the custom of an industry, generally admissible to prove negligence (relevant but not controlling)

[Custom] Titus v. Bradford

"reasonably safe means safe according to the usages, habits, and ordinary risks of the business," plaintiff fell off a moving train car, dangerous activities don't automatically prove negligence

[Custom] TJ Hooper

tug boats going from VA to NY without a functioning radio that could alert them of a storm; second court ruled based on Hand, the burden was super low since they already had the radio

[Custom] Lama v. Borras

physician deemed responsible for informing the patients of customary practices, reinform industry standard

[Custom] Canterbury v. Spence

FBI typist with back pain, ruled that custom is not controlling on the issue of informed consent, patient should know everything

Statutes

statutes can govern the reasonable person standard for specific people/circumstances

Dram Shop Acts

clarifies that restaurants/other similar establishments can't be strictly liable for alcohol-related issues

[Statute] Osborne v. McMasters

bottle not labeled of poison, violation of statute that required warnings on bottles, agreed that laws can create a standard of care outside the common law

[Statute] Martin v. Herzog

Martin was traveling after sundown without his lights on in violation of a statute, car struck them, appeal said statute governed

[Statute] Feres

affirmed that no one can sue the gov't for anything negligence related

res ipsa

used when there is no direct evidence, asserts an assumption/conclusion that assigns negligence, no evidence to connect the D, but P's harm would not have happened w/o D's negligence

res ipsa Elements

(1) plaintiff must demonstrate the accident is one normally associated with negligence (2) plaintiff must show that it was the defendant who most probably was the negligent party

[res ipsa] Colmenares Vivas v. Sun Alliance Insurance Co.

husband + wife were riding an escalator when it failed, ct assigned responsibility to the PA because they had exclusive control and the duty to fix anything under their umbrella

[res ipsa] Ybarra v. Spangard

conspiracy of silence, treated doctors as a team because they wouldn't give each other up, pt would be unable to recover if the ct just accepted the silence (when there is divisible harm, you have to sue separately)

Contributory Negligence

if the plaintiff was negligent at all this standard bars recovery as a result of that negligence, in Alabama, Maryland, NC, Virginia, and DC

Last clear chance doctrine

induce optimal behavior from the defendant with the last clear chance to avoid an injury to the plaintiff

Helpless Plaintiff, Exception to CN

(1) the plaintiff is physically unable to remove themselves from danger, (2) the defendant knew, or should have known of the peril, and (3) the defendant could have avoided the accident by using ordinary care.

Inattentive Plaintiff, Exception to CN

(1) the plaintiff negligently created a situation of peril; (2) remained physically able to remove himself or herself from the situation but was unaware of the peril; (3) the defendant actually saw the plaintiff and realized, or should have realized, the peril; and (4) the defendant could have avoided the accident by using ordinary care.

[CN] Gyerman v. US

plaintiff was injured when improperly stacked sacks fell on him, failed to inform his supervisor that they were stacked improperly, ct ruled that the negligent conduct must be a substantial factor in combo w/ D's negligent in the harm (basically equivalent to the cause)

Comparative Negligence

plaintiff receives proportional amount of damages considering their share of negligence and the defendant's

Pure comparative

anything less than 100% responsible

Partial comparative negligence - 50% rule

Plaintiffs can recover if they are 50 percent negligent or less but barred if they are 51 percent negligent

Partial comparative negligence - 49% rule

Plaintiffs can recover if they are no more than 49 percent negligent but barred if they are 50 percent negligent.

Assumption of the Risk - Primary Assumption

Plaintiff knew of danger and proceeded despite the danger.

Assumption of the Risk - Secondary Assumption

Defendant does owe a duty of care to the plaintiff but the plaintiff knowingly assumed a risk of injury caused by the defendant's breach of that duty.

[CN] Li v. Yellow Cab Co. of California

Li was crossing traffic to go to a service station when he collided w/ the cab that was moving at a high rate of speed, ct ruled for comparative negligence because the car's speed was pretty much the cause

Factual Causation

tortious conduct must be a factual cause of physical harm for liability to be imposed

But For Test

conduct is a factual cause of harm when the harm would not have occurred absent the conduct

Joint and several liability

a plaintiff may recover the full amount of relief from any one of the jointly and severally liable defendants

"Jointly" liable

liability is shared by two or more parties who may or may not be joined in a single suit.

"Severally " liable

a defendant's liability is separate and distinct from the other's liability (a separate action against one defendant without joining the other)

"Jointly and severally" liable

liability may be apportioned either among two or more parties, or to only one or a few select members of the group

Joint tortfeasors

(1) a concert of action (2) a unity of purpose or design (3) two or more defendants working separately but with a common purpose w/ knowledge and consent of the others

Concurrent tortfeasors

act independently, but their separate acts cause a single, indivisible injury

[Causation] Summers v. Tice

ct ruled that a defendant can prove their way out of a case, both parties are liable, in a case with a shotgun and they ct wasn't sure which one caused the most damage

[Causation] Sindell v. Abbott Lab

DES was a chemically identical drug manufactured by over 200 companies, proven to cause harm, imposed market share liability as a last option (the companies all harmed people in the same way)

[Causation] Herskovits v. Group Health Cooperative

ct ruled that a doctor could be held liable for mistreatment or misdiagnosis if it substantially reduced life expectancy, but-for-cause of reduction of survivability, misdiagnosing of a lung disease

Proximate Causation

foreseeable/legal causation, if the defendant's action is a substantial factor in bringing about the harm

Direct cause

Polemis; Andrews; Liability attaches to "direct" consequences of act

Foreseeable cause

Palsgraf; Cardozo; Liability attaches to the foreseeable consequences that make the act negligent

Zone of danger, plaintiff must

(1) plaintiff is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress

Egg shell thin skull; take your victim as you find them

"The ... actor is subject to liability for harm to another although a physical condition of the other ... makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct."

[Causation] Ryan v. New York Central

despite "careless management" that created sparks that burned company woodshed then spread, ct ruled no liability because fire is not predictable

[Causation] Wagner v. International Railway Co.

another hero case, Wagner went after his cousin who fell off the train, ct ruled that the "risk of rescue, if only it be not wanton, is born of the occasion"

[Causation] In re Polemis

cut the chain of liability when directness is stretched too thin

[Causation] Palsgraf

mother traveling on a train, a struggle between the conductor and an intruder that caused a Penny Scale to fall on her, liability was unforeseeable from the push and pull that anything could happen to her

[Causation] Marshall v. Nugent

As we have indicated, the extra risks created by Prince's negligence were not all over at the moment the primary risk of collision between the truck and the Chevrolet was successfully surmounted

[Causation] Dillon v. Legg

child injured, mother witnessed, expanded NIED ["near miss," "bystander," "relationship") rule to allow recovery when Plaintiff can show: (1) the plaintiff's proximity to the scene of the accident, (2) the extent to which the plaintiff perceived the accident contemporaneously with its occurrence, and (3) the closeness of the relationship between the plaintiff and the victim.

Duty to Rescue

the legal duty to rescue someone from a perilous situation, mainly imposed when the defendant placed the plaintiff in harm's way or there is a pre-existing relationship that imposes a duty

[DTR] Malfeasance

intentional commission of a wrongful act

[DTR] Nonfeasance

the failure to perform some duty or obligation and has generally been only punished or sanction when there is a preexisting relationship or obligation

[DTR] Misfeasance

refers to an act that is lawful but performed improperly

Good Samaritan laws

protected against civil negligence absent a showing of willful misconduct or gross negligence

Bailee

the person (or custodian) entrusted or given temporary possession of good or chattel

Bailor

person giving or leaving the good or chattel to another person to hold temporarily

Gratuitous bailment

sharing of property by a bailor or the free provision of custodial services by the bailee

Sole benefit of the bailor

Only slight duty of care - no liability absent gross negligence

Benefit of owner

slight negligence (in order to be liable)

Bailment for hire

in which the bailor and bailee both benefit.

Mutually beneficial bailment

Bailment for hire that benefits both parties

Duty of bailee

to show ordinary diligence in the care of the item.

Highest duty of care

liability for even slight negligence

benefit of bailee

extraordinary standard

mutual benefit

ordinary standard

[Duties] Montgomery

no duty to rescue because you have an actor who created the scene

special relationships

a particular relationship between the defendant and plaintiff that might impose a duty on the defendant that would not otherwise apply outside the relationship

Respondeat superior

vicarious liability, employer/employee

Journalistic privilege

shield laws, protects them from being called in a grand jury (strongest on the state level, federal have always resisted)

Attorney/client

erosion in criminal cases, now: if you know your client is lying, you can't put them on the stand and induce a lie

Clergy privilege

strongest because there is moral/political consequences in addition to constitutional protection

[SR] Weirum v. RKO

attractive nuisance, "...It was foreseeable that defendant's youthful listeners, finding the prize had eluded them at one location, would race to arrive first at the next site and in their haste would disregard the demands of highway safety."

[SR] Kline v. 1500 Mass Ave

landlord had a duty to protect its tenants against foreseeable crimes by a third party

[SR] Tarasoff v. Regents of the University of California

Poddar's doctor was liable for his killing of Tarasoff because he had reason to believe he was serious, highly specified threats, general standard is that the threat is credible to the point where it becomes foreseeable

Strict Liability

1. animals 2. abnormally/ultrahazardous 3. defamation 4. trespass 5. vicarious liability 6. nuisance, product liability