Torts (Definitions)

What are the elements of Battery?

1) Intent to cause harmful or offensive contact. 2) Harmful or offensive contact occurs

What are the two ways to meet intent for Battery/Assault

1) For the Purpose of 2) Substantial Certainty

How do we determine intent (objective or subjective)

Subjective from point of view of tortfeasor.

What is the difference between a Single Intent and Dual Intent jurisdiction?

Dual Intent: You need to intend contact and intend it to be harmful/offensive. Single Intent: You need only intend any contact and have it RESULT in harmful/offensive contact

What are the two ways we determine if contact is offensive

1) if its offensive to a reasonable person, OR 2) If its offensive to a highlty sensitive person and the defendant knew or should have known about the sensitivity

Can contact be indirect?

Yes

Explain the extended personality principle

Contact with something the plaintiff is holding/wearing can be considered contact with that person

Explain the extended liability principle,

A defendant who commits an intentional tort is responsible for all harm caused by the tort

Explain the transferred intent principle

If you intend a tort against one party, you are responsible for that tort (or others) against another party against whom the harm occurs.

What are the elements of assault

1) Intent to cause a harmful/offensive contact (attempted battery) OR intent to cause an IMMINENT apprehension of such contact (threatened battery), AND 2) Such apprehension occurs

Define “Imminent”, in the context of assault

“Without significant delay” (Question for the jury)

Define “apprehension” in the context of assault

Apprehension is an awareness, not a fear. Objective standard: the apprehension that would be aroused in the mind of a reasonable person.

What are the elements of false imprisonment

1) Intentional confinement 2) Within a limited area 3) For a considerable time 4) without lawful privilege or consent, AND 5) Plaintiff must be aware or harmed

What are the ways to confine someone

1) Physical barriers 2) physical force 3) Threats of physical force 4) False assertion of legal authority 5) Duress of Goods

Threats of physical force and false assertion of legal authority are only confinement if…

A reasonable person would yield

Confinement to a limited area is not false imprisonment if…

If victim knows of a safe and reasonable exit

How long is an appreciable time in the context of false imprisonment?

Any amount of time, pretty much

Can lawful authority to “falsely imprison” someone start as legitimate but become illegitimate

Yes.

What are the possible ways of trespass to land

Defendant 1) Enters 2) Remains 3) Causes a third thing to enter, OR 4) Refuses to remove something unlawfully from plaintiff’s property.

Does unintentional or negligent entry to land constitute intent to trespass?

No.

Is mistake of ownership a defense against trespass?

No.

To claim self defense, the force used must be…? The threat must be…?

Reasonable, Immediately threatened.

True or false? D can use self defense if they reasonably believed a battery or false imprisonment was immediately threatened.

True

True or False: D can defend a third party if they reasonably believed battery or false imprisonmnet was immediately threatened.

Yes, but some states require you to be right.

Can the initial aggressor claim self-defense?

Not usually, Safe-Harbor Rule is the exception

What are the elements required for the Safe Harbor Rule

1) Initial aggressor is retreating, 2) Initial aggressor makes it clear they are retreating, 3) Initial victim continues to pursue

When do you have a duty to retreat?

1) When using deadly force 2) outside your home 3) It is reasonable to retreat 4) in a state with no Stand Your Ground Laws

Define deadly force

Force intended to or likely to cause death or serious bodily harm

Can you use deadly force in response to a threat of ordinary force? In defense of property?

No and No

Requirements to use Defense of Property defense

1) Use reasonable force 2) to prevent a tort against your property

What must you do to peaceable intruders before forcing them out?

Ask them to leave

Which of the following can you be wrong about? ie. you just need a reasonable belief. 1) Self-Defense 2) Defense of Property 3) Repossession of Chattels 4) Shopkeeper’s Privilege 5) Defense of Others

1, 2, 4, and 5 in some states.

What are the requirements for repossession of chattels

1) Use reasonable force 2) In hot pursuit 3) to regain possession of the property 4) You have to be right (no room for reasonable error)

What are the elements of shopkeeper’s privilege?

1) P must be a shopper and D has to be a merchant 2) D must reasonably believe that P has stolen property (there IS room for error) 3) defendant conducted detention in a reasonable manner 4) for a reasonable time 5) detain them only for the purposes of an investigation

When is a shopkeeper not required to ask a shoplifter to stop?

1) there is no time, OR 2) it will obviously be futile

Name and describe the three kinds of implied consent

1) Apparent: a reasonable person would infer consent 2) Presumed: Consent is a social norm 3) Implied by law: Consent is given as a matter of law ie. emergencies

What are all the limitations to consent

1) Exceeding scope of consent, 2) Consent obtained by duress, fraud, or mistake, 3) incapacity 4) Criminal acts 5) Revoked consent 6) Implied consent for sex (some jurisdictions)

Is consent a defense in cases of limited autonomy?

No

True or False: One who consents to a sport, consents to ALL contact?

False, it’s only consent to contact within the understood rules of the game.

Give an example of consent stemming from public necessity.

Destroying someone’s house to stop a wildfire

Give an example of consent stemming from private necessity.

Neighbor running across your yard to escape a murderer, guy docking his boat at your dock to avoid a storm.

Name the elements of negligence

Duty, Breach, Causation (Factual + Proximate), Harm

What is the most common duty?

Reasonable care given the circumstances

When determining reasonable care, do we account for characteristics of the plaintiff?

Yes

When determining reasonable care, do we account for emergencies?

Yes, assuming the defendant did not cause the emergency.

When determining reasonable care, do we account for danger level of the activity?

Yes

When determining reasonable care, do we account for physical disability of the defendant

Yes, so long as

When determining reasonable care, do we account for mental disability of the defendant.

No

When determining reasonable care, do we account for special skills/knowledge of the defendant?

Yes

When determining reasonable, do we account for below average intelligence of the defendant?

Not for adults, Yes for children

When determining reasonable care, do we consider whether defendant is a minor?

Yes, unless they’re doing an adult activity.

What are the elements of negligence per se?

1) Law must clearly define the standard of conduct 2) The type of harm bust be the kind that the statute was designed to prevent. 3) plaintiff must belong to the class protected by the law. 4) Proximate Cause

What is the implication on negligence per se?

Duty and Breach are established as a matter of law

Is there such thing as due care per se?

No

Duty is a matter of fact or matter of law?

Matter of law

Breach is a matter of fact or a matter of law?

Matter of fact

Name the three factors in the hand formula

1) Cost of precaution 2) likelihood of harm 3) how bad the harm is

When determining breach, is compliance with a private standard determinative, admissible and relevant, or inadmissible

Sometimes admissible, sometimes inadmissible, never determinative.

True or False: The plaintiff must state what the defendant did wrong and what they should have done differently?

False: Res Ipsa Loquitur

When determining breach, is compliance with industry standard determinative, admissible and relevant, or inadmissible

Admissible and relevant

True or False: If you’ve failed to meet an industry standard you breached a duty of reasonable care.

False. Though it is persuasive evidence

True or False: If you’ve met an industry standard, you have provided reasonable care.

False.

True or False: If you’ve failed to meet a private standard, you have breached a duty of reasonable care.

False.

True or False: If you’ve met a private standard, you have provided reasonable care.

False

True or False: If you’ve failed to meet a safety handbook standard you have breached a duty of reasonable care.

False, unless adopted by statute.

True or False: If you’ve met a safety handbook standard, you have provided reasonable care.

False.

True or False: If you’ve met a legal standard, you have provided reasonable care.

False.

True or False: If you have failed to meet a legal standard, you have breached a duty of reasonable care.

True. Negligence per se.

True or False: A duty of reasonable care requires taking precautions against unforeseeable harms.

False.

True or False: A duty of reasonable care requires taking precautions against foreseeable harms.

False. It may be reasonable to not take precautions if cost of precaution is too high or likelihood of the harm is too low

What are the requirements of Res Ipsa from the Restatement 3d?

Accident must be 1) The type of accident 2) normally caused by negligence on the part of a class of actors 3) of which defendant is part.

What is the main thing Res Ipsa does (for this class’s purposes)?

Creates a permissible inference of negligence for the jury.

What are the three types of entrants to your land?

Trespassers, Licensees, and Invitees.

What is required for a guest to be an Invitee?

They must be on the land 1) As a member of the public… 2) for whom the property is open… 3) For the possessor’s business.

What duty of care is owed to a trespasser?

Ordinary care in an abolished state, Reckless/Wanton care in a modified or traditional state

What duty of care is owed to a licensee?

Ordinary care in an abolished or modified state. Reckless/Wanton care in traditional states.

What duty of care is owed to an invitee?

Reasonable Care

Ordinary care obviously includes the duty to warn of hidden dangers that plaintiff doesn’t know about and is about to encounter. Is this also true when the duty is not to recklessly/wantonly harm?

Yes.

What are the requirements for the Attractive Nuisance Doctrine to apply? What happens when the Attractive Nuisance Doctrine does apply?

1) There is a dangerous condition on the land. 2) Landowner knows children are likely to trespass 3) Due to youth, children will face unreasonable risk of serious injury.

The Standard becomes reasonable care.

Are landowners responsible for harm caused by conditions of their land that are “Open and “Obvious”

Only if that harm is caused by a “residual risk”.

If P is harmed on D’s land, will D try to frame the harm as coming from a condition or from an activity? How will P try to frame it?

D will try to frame it as a condition of the land to get a lower standard of care. P will try to frame it as an activity in order for the reasonable care standard to apply.

What defines ordinary care in a MedMal case.

Industry Custom

Is expert testimony required in a MedMal case?

Almost always.

A negligent act occurs in a hospital, MedMal?

Not necessarily.

What must P’s expert testimony establish in a MedMal case.

(1) The standard of care in the situation (2) whether D met that standard, and (3) what D should have done differently.

What do we do when credible expert witnesses disagree?

Leave it to the jury.

A medical practice has multiple customary methods, how do we know if one is reasonable care?

If it has considerable support from recognized and respected proffessionals.

Do we embrace the TJ Hooper Doctrine in MedMal? Why or why not?

No.

Two kinds of MedMal claims

Inadequate care and Informed consent

Give me the two Informed Consent Doctrines

Materiality Doctrine, Medical Custom Standard

In a case of informed consent MedMal, what is required to be proved under the materiality doctrine.

(1) That plaintiff would have acted differently with the information, and (2) that a reasonable person would have acted differently with the intention.

In an informed consent case, under the materiality standard, is expert testimony required?

Only to establish what the physician should have known

What disclosures must be made under the medical custom standard for informed consent?

The disclosures that would be made by a reasonable physician.

Define the three kinds of locality rules: Locality Rule, Modified Locality Rule, and National

Locality Rule: Doctors in that locality, Modified locality rule: Doctors in similar localities; National: National medical custom.

What is a Good Samaritan Law

No liability for rendering aid in an emergency.

What are two “kinds” of cause?

Factual cause and Proximate Cause “Legal Cause”

How do we determine factual cause?

“But for” test. Substantial factor test if you have a different torts professor. When there’s multiple sufficient causes, both parties are liable

D puts P in danger of unreasonable harm, the harm does not occur. Negligence?

No.

Is there harm is second hand smoke causes: (1) exposure, (2) annoyance, (3) increased risk of cancer, or (4) coughing.

Just (4)

True or False: Proximate Cause is a bright line rule

False: Matsick would say it’s “mushy”