Modern Tort Law - Basic Terminology and Torts

Flashcards covering basic terminology, intentional torts, defenses and privileges, damages, and the definition and elements of negligence from a lecture on Modern Tort Law.

Strict Liability

Liability without regard to intent or care, typically for abnormally dangerous activities or defective products.

Recklessness

Occurs when a person knows a risk is obvious and a precaution would take minimal effort relative to the burden of consequences, but proceeds anyway.

Texas Gross Negligence

A legal concept roughly equivalent to recklessness as defined in Texas law.

Comparative Negligence (Pure)

A type of comparative fault where a claimant's damages are reduced by their percentage of fault; if 65% at fault, they recover 35% of damages.

Comparative Negligence (Modified)

A type of comparative fault where a claimant cannot recover damages if their percentage of responsibility equals or exceeds 50%.

Proportionate Responsibility

Another term for modified comparative fault, where a claimant may not recover damages if their percentage of responsibility is greater than 50 percent.

Assumption of the Risk

A defense to negligence where a person subjectively appreciated a danger, voluntarily chose to confront it, and either manifested a willingness to relieve the defendant of care or had no expectation of care.

Intent (Purpose)

A person acts with the desire to bring about a specific harm.

Intent (Knowledge)

A person engages in an action knowing that the harm is substantially certain to occur.

Intentional Tort (Consequences Certain)

When an actor knows that consequences are certain, or substantially certain, to result from their act and proceeds anyway, the law treats it as if they desired the result.

Mental Incapacity (Intent)

An insane person can be liable for intentional tortious conduct under the same circumstances as a normal person, provided they were capable of forming and did form the specific intent.

Transferred Intent

Occurs when a person intends to commit an intentional tort against one person but instead commits a different tort against that person, the intended tort against a different person, or a different tort against a different person. (Does not apply to IIED)

Battery

The intentional infliction of unconsented bodily contact that is either harmful or offensive.

Harmfulness (Battery)

For battery, the bodily contact must be harmful.

Offensiveness (Battery)

For battery, the contact is offensive if it would offend a reasonable person's sense of personal dignity.

Eggshell (Thin) Skull Rule

A defendant 'takes the plaintiff as he finds him,' meaning they are liable for foreseeable harms even if the amount of harm is not foreseeable, including aggravation of preexisting injuries.

False Imprisonment

P suffers unconsented, intentional confinement within fixed boundaries as a result of D's unlawful use of force, threat of force, assertion of legal authority, or physical barriers, and P is aware of the confinement or suffers harm.

False Imprisonment (Intent Requirement)

False imprisonment is an intentional tort, meaning negligence and recklessness are not valid arguments for it.

False Arrest

Occurs when one is taken into custody by a person who claims, but does not possess, proper legal authority.

Assault

P's reasonable apprehension of an imminent harmful or offensive bodily contact caused by D's action or threat with the intent to cause either the apprehension or the contact itself.

Assault (Imminence)

The threatened bodily harm or offensive contact must be imminent to constitute assault.

Assault (Words Alone)

Words alone generally will not constitute assault, though circumstances can sometimes affect this.

Respondent Superior

A legal doctrine holding employers liable for the wrongful acts of their employees when those acts occur within the scope of employment.

Scope of Employment

In the context of Respondent Superior, acts are within 'scope of employment' if they are the kind the employee is hired to perform, occur substantially within authorized time/space, are actuated to serve the master, and the use of force (if any) is not unexpectable.

Intentional Infliction of Emotional Distress (IIED) / Tort of Outrage

A common law tort allowing recovery for severe emotional distress caused by another who intentionally or recklessly inflicted distress through 'extreme and outrageous' behavior.

Elements of IIED

Requires intent (purpose or knowledge) or recklessness to cause emotional distress, extreme and outrageous conduct, causation, and resulting severe emotional distress.

Extreme and Outrageous Conduct (IIED)

Conduct so shocking to a person of normal sensibility that it is beyond all possible bounds of decency, atrocious, or utterly intolerable.

Physical Harm (IIED)

Physical harm is not required for a claim of Intentional Infliction of Emotional Distress.

Insulting Language (IIED)

Generally insufficient to give rise to IIED liability, with exceptions for defendants in positions of authority or with special notice of the plaintiff's heightened sensibilities.

IIED (Third Person Liability)

An actor may be liable for IIED directed at a third person if it impacts an immediate family member present at the time (no bodily harm required) or any other person present (bodily harm required), provided the actor knew the third party was present.

Continuing Tort

A tort involving a repeated or ongoing injury where the limitations period begins to run on the date of the last injury or when the tortious acts cease.

Trespass to Land

An intentional tort protecting a possessor's interest in exclusive possession of land, by an unconsented physical presence on, under, or above the land of another.

Trespass to Land (Mistake)

Mistake is not a defense to trespass to land.

Trespass to Chattels

An intentional tort protecting a possessor's interest in freedom from minor intentional interference with personal property (e.g., dispossession, use, or intermeddling).

Trespass to Chattels (Mistake)

Mistake is not a defense to trespass to chattels.

Conversion

An intentional exercise of dominion or control over a chattel that so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel at the time of conversion.

Conversion (Intent)

For conversion, the defendant must only intend to commit the act that interferes; intent to cause damage is not necessary.

Conversion (Mistake of Law or Fact)

Mistake of law or fact is no defense to conversion.

Fair Market Value (Conversion Damages)

The price a chattel would bring with a willing buyer and seller, used to determine damages in conversion.

Actual Value (Conversion Damages)

Used when there is no ascertainable market value for a chattel, considering factors like purchase price, manner/time/place of use, appearance, usefulness, and physical condition.

Consent (Tort Defense)

A complete defense that totally bars recovery and negates liability in intentional torts, where the burden of proving lack of consent is generally on the plaintiff.

Volenti non fit injuria

A Latin maxim meaning 'to one who is willing, no wrong is done,' related to the concept of consent.

Effective Consent

To be effective, consent must be given by one with the capacity to consent and must be to the particular conduct, or substantially the same conduct.

Actual Consent

Consent that exists if the plaintiff, in fact, willingly consented to the conduct (e.g., written or express permission).

Apparent Consent

Consent inferred when a plaintiff's conduct reasonably leads another to believe that the plaintiff consented, even if they did not actually.

Implied Consent

A legal fiction indulged by courts to justify desirable conduct that would otherwise be tortious, such as in medical emergencies.

Consent Invalidated by Mistake

Any mistake sufficiently material to play a role in the plaintiff's decision-making process will invalidate consent.

Consent Invalidated by Fraud

Consent intentionally procured by fraud is invalid.

Defense of Self

A privilege allowing anyone (other than the aggressor) who anticipates immediate physical harm to use reasonable, proportionate force to defend against offensive contact or bodily harm.

Deadly Force (Self-Defense)

Justified only against a threat of deadly force.

Reasonable Mistake (Self-Defense)

A reasonable mistake as to the necessity or degree of force required does not destroy the privilege of self-defense.

Bystander Injuries (Self-Defense)

An actor is not liable for accidental injuries to bystanders during self-defense, provided those injuries were accidental and the actor was not negligent towards the bystander.

Defense of Others

A privilege allowing an actor to defend a third person from harm under the same conditions as self-defense, if the actor reasonably believes the third person has a privilege of self-defense and intervention is necessary.

Defense of Property

A possessor may use reasonable, non-deadly force to defend property against intrusion, taking, or continuing trespass.

Defense of Property (Mistake)

A reasonable mistake as to danger and degree of force does not destroy the privilege to defend property, but a mistake as to the intruder's privilege (e.g., necessity) does destroy it.

Intruder's Superior Privilege (Necessity)

An intruder's privilege to enter or remain on property to save themselves from death or grave bodily harm is superior to the possessor's privilege to defend the property.

Recapture of Chattels

A privilege allowing a possessor wrongfully dispossessed by fraud or force to use reasonable, non-deadly force to recapture the chattel, provided there is prompt discovery and fresh pursuit.

Recapture of Chattels (Mistake)

Any mistake (e.g., as to ownership or promptness) destroys the privilege of recapture of chattels.

Shopkeeper's Privilege

A privilege allowing a shopkeeper to temporarily detain one reasonably suspected of theft, in or near the store, for purposes of investigation, without liability for false imprisonment, even if the suspicion is based on reasonable mistake.

Public Necessity (Complete Privilege)

A privilege allowing anyone to harm another's property to avoid an imminent risk of greater harm to the community or many persons, with no liability for damages.

Private Necessity (Incomplete Privilege)

A privilege allowing harm to another's property to benefit only one or a few persons; the actor is liable for actual losses, but if the plaintiff resists, the privilege becomes complete.

Remittitur

A judicial order giving the plaintiff the option of accepting a reduced damages amount or being relegated to a new trial, typically when an award is found to be excessive.

Hedonic Damages

An award for a plaintiff's loss of ability to engage in enjoyable activities.

Collateral Source Rule

A rule stating that a defendant's liability is not reduced because the plaintiff receives compensation from a source wholly independent of the tortfeasor (e.g., insurance).

Subrogation

The right of an insurer to recover from a third party the amount they paid to the insured, allowing the plaintiff to reimburse their insurance if the defendant pays damages.

Pre-judgment Interest

Interest awarded on damages for wrongful death, personal, or property damage, calculated from an earlier date (e.g., 180 days after notice of claim or date suit is filed).

Loss of Earning Capacity

Damages awarded for the prospective decrease in a plaintiff's ability to earn income due to their injury, taking into account probability of employment, age, and health.

Medical Monitoring

Damages awarded in toxic tort cases to cover the cost of future diagnostic medical examinations for a plaintiff exposed to harmful chemicals.

Per Diem Arguments (Damages)

A method used in some states to argue for non-economic damages (like pain and suffering) by proposing a 'per item, per day' payment.

Survival Statutes

Laws that allow a claim for medical costs, pain and suffering, and lost income to survive the death of either party and be prosecuted by the decedent's estate.

Wrongful Death Statutes

Laws permitting a designated class of persons (e.g., spouse, next of kin) to recover for losses, such as lost economic support, companionship, and society, sustained as a result of another's death.

Pre-Impact Damages in Survival Actions

Damages awarded for a decedent's pain and suffering during the period they survived an accident, or for pre-impact terror if death was immediate.

Loss of Consortium

An award providing compensation for expenses and lost companionship and affection to family members (e.g., spouse, parents, children) due to a loved one's injury or death.

Punitive Damages (Gore Guidepost)

Damages awarded to punish or deter a tortfeasor, guided by factors such as the reprehensibility of the conduct, the disparity between actual harm and punitive award, and comparable civil penalties.

Compensatory Damages

Damages intended to compensate for the actual harm and expenses incurred by the plaintiff, which are not taxed.

Avoidable Consequences Doctrine

A doctrine stating that a plaintiff has a duty to mitigate damages through reasonable post-accident conduct, considering factors like risk, pain, expense, effort, and probability of success.

Pure Economic Harm

Economic harm negligently inflicted in the absence of physical injury or property damage.

Additur

A rare technique allowing a court to offer the plaintiff a new trial on damages unless the defendant agrees to pay more than the jury awarded, if the award is against the weight of the evidence.

Negligence

Unreasonable conduct characterized by failing to exercise the care that a reasonable person would exercise, posing an unreasonable risk of harm to others.

Elements of Negligence

To establish a negligence claim, a plaintiff must prove four elements: Duty, Breach, Causation, and Damage.

Negligence Formula (Learned Hand Formula)

A formula (B < P × L) where B is the burden of preventing harm, P is the probability of the accident, and L is the level of injury. If B is less than P × L, the defendant is negligent.

Duty (Palsgraf v. Long Island Railroad)

The principle that 'the risk reasonably perceived is the duty to be obeyed,' meaning if no risk is reasonably perceived, there is no duty and thus no liability for negligence.

Zone of Danger (Cardozo/Majority)

In negligence, duty is owed only to plaintiffs within the zone of foreseeable harm.

Duty to Everyone (Andrews/Minority)

In negligence, a duty is owed to everyone harmed by a defendant's actions, regardless of foreseeability specific to each person.

Reasonable-Person Standard

The general standard for negligence, requiring an actor to behave as a reasonable, prudent person would have under the same or similar circumstances.

Sudden Emergency Doctrine

A person placed in a sudden emergency through no fault of their own is not negligent if they exercise the degree of care a reasonably careful person would have under those circumstances.

Child Standard of Care

A child is normally expected to exercise the degree of care observed by children of similar age, intelligence, and experience.

Child Adult Activities Standard

Children engaging in dangerous activities characteristically undertaken by adults (e.g., handling firearms, driving) are held to an adult standard of care.

Mental Deficiencies (Standard of Care)

No allowance is made in the adult standard of care for mental deficiencies of a relatively minor nature; actors are held to the standard of someone of ordinary intelligence and knowledge.

Sudden Mental Incapacity Exception

A sudden mental incapacity (like a heart attack or seizure) that strikes without forewarning may excuse liability for negligence.

Physical Disabilities (Standard of Care)

The standard of care for a person with a physical disability is what a reasonably careful person with the same disability would have done.

Intoxication (Standard of Care)

No change is made in the standard of care for voluntarily intoxicated persons; they are held to the reasonable person standard.

Superior Skills and Knowledge (Standard of Care)

A person with superior skill, training, or experience must exercise those enhanced abilities in their conduct.

Malpractice Claim (Elements)

Requires proof that the professional owed a duty of care, breached that duty, the breach caused injury, and the client/patient suffered damages.

Medical Malpractice (Informed Consent)

Failure to obtain informed consent is professional negligence; a physician must disclose all material risks and alternatives unless known to the patient, detrimental to patient's interest, or an emergency exists.

Legal Malpractice (Attorney Representations)

An attorney implicitly represents possessing ordinary learning, skill, and ability; exercising best judgment; and being diligent and careful in using professional skill and knowledge.

Judgmental Immunity Doctrine (Legal Malpractice)

Provides that an informed professional judgment made with reasonable care and skill cannot be the basis of a legal malpractice claim, particularly regarding unsettled propositions of law.

Legislative Enactment (Tort Duty)

A criminal statute will establish a tort duty only if it is designed to protect the class of persons in which the plaintiff is included and prevent the type of harm that occurred.

Negligence Per Se

An unexcused violation of a criminal or regulatory statute that conclusively establishes the defendant breached a duty of reasonable care, assuming the harm and victim class are those the statute intended to protect.

Prima Facie Negligence (Statutory Violation)

Proof of a violation of a standard-setting statute that raises a rebuttable presumption of negligence, which can be overcome by proof of an excuse or other evidence of reasonable care.