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70 Cards in this Set
- Front
- Back
TORTS
Definition of Intent |
Intent means either that the D desires the result or knows to a substantial certainity that it will occur. (Subjective)
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Transferred intent applies to . . .? |
battery, assault, false imprisonment, trespass to chattel and trespass to land.
Per Rs - only applies between assualt and battery. |
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TORTS
Mistake Doctrine |
If D intends to the act that would constitute a tort but mistakes even reasonably the identity of the person or property, D is still liable.
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Definition of Battery |
Battery occurs when D's acts intentionally cause harmful or offensive contact with victim's person.
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Definition of offensive touching |
Disagreeable or nauseating or painful. Causes outrage and/r insults the victim.
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Element of Battery |
1. Intent (not intent to harm)
2. Harmful or offensive touching 3. contact with the person or something closely connected (a horse, smoke, direct or indirect contact) |
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Definition of Assault |
Assault occurs when D's acts intentionally cause the victim reasonable apprehension of immediate or harmful contact. Rs deletes reasonable.
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Clarification of Apprehension |
If victim attacked from behind or while asleep there is no apprehension therefore no assault.
Fear is not a requirement. |
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Definition of False Imprisonment |
D unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area.
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Clarification of Bounded Area |
Can be an entire city or moving vehicle. Must be bounded in all directions and unable to move freely in another direction.
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False imprisonment vs Malicious Prosecution/Abuse of Process |
Malicious Pros = lawful arrest motivated by bad faith
Abuse of Process = improper use of subpeonas |
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Definition of Trespass to Chattel |
The intentional interference with the right of possession of personal property
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Definition of Conversion |
Intentional exercise of dominion and control over chattel which so seriously interferes with the right of another to control it.
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Conversion - factors to determine seriousness of interference |
1. Extent and duration of dominion or control
2. Actor's intent and good faith 3. Harm done to chattel 4. Inconvenience and expense caused |
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Conversion - purchase of stolen property Are buyer and seller both liable for conversion? |
Yes - both are liable since both acts seriously interfer with ownership of rightful owner
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Definition of Trespass |
Where D intentionally enters or causes something to enter the land of another (surface, mineral and air)
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Clarification of Intent for Trespass |
Intent required is intent to enter the land or trespass to chattel; not intent to trespass. Good faith is not relevant.
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Clarification of Intent for Conversion |
Intent to do the act; intent to exercise dominion and control over property of another - not intent to convert.
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TORTS
Definition of Intentional Infliction of Mental Distress (IIED) |
IIED exists when D, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress.
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IIED - Clarification of Emotional Distress |
Emotional distress must be the primary consequence of D's conduct.
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TORTS
IIED - Restatement definition of Extreme/outrageous conduct |
Beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable to a civilized community.
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IIED - Clarification of Intent or Recklessness |
P must prove that D intended to cause severe emotional distress or acted with reckless disregard as to whether the victim would suffer severe distress
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IIED - When a third party may recover |
In addition to proving elements of IIED, the third party must be 1. a close relative of victim; 2. present when outrageous conduct occured; and 3. D knew third party was present.
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TORTS
IIED - Exception for Innkeepers, Common CArriers, etc |
P must be a patron of D. The requirement that D behave in an extreme and outrageous manner is waived. It is lowered to reasonably offensive. P will not have to prove this element.
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TORTS
IIED - Mental state either intent or recklessness. Recklessness defined as: |
D consciously disregarded a substantial risk of harm.
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IIED - Causation |
P must prove that her severe emotional distress was caused by D's extreme outrageous conduct.
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Transferred Intent How can intent be transferred and between which intentional torts? |
Transferred intent can be transferred between people and between the following torts: assault, battery, false imprisonment, trespass to chattels and trespass to land. Not conversion or IIED.
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TORTS
Elements of False Imprisonment |
1. Intentional
2. Voluntary Act 3. Causing Plaintiff to be confined 4. Bounded Area |
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TORTS
Elements of Assault |
1. Reasonable apprehension
2. Intent, desire or substantial certainity 3. of Imminent battery 4. Voluntary |
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Trespass to Chattel - what is Chattel? |
personal property, moveable goods, automobile, dog
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Assualt - Clarification of Imminent |
Imminent is immediate. Can't happen tomorrow or even an hour from now.
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TORTS
Defenses to Intentional Consent |
If victim gave consent, then what would otherwise be tortious, would be privileged. (objective test)
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Defenses Consent - how it can be invalidated |
Incapacity (age, intoxication, insanity; action beyond scope of consent; fraud; duress; illegality
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Defenses Self-Defense |
Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from Immediate harm.
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Defense Self-Defense - is retreat necessary? |
Majority Rule - no retreat necessary. The right and dignity of individual can be defended with deadly force.
Minority rule - retreat where serious bodily injury or death |
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Defense Defense of Others |
Reasonable force permitted to protect third party (family, friends, stranger) whenever third party entitled to exercise self-defense
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Defense Defense and Recovery of Property |
An individual is priviledged to use reasonable force to prevent a tort against real or personal property. However, mistake not an excuse
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DEfense Defense and Recovery of Property - reasonable force |
Force intended to inflict death or serious bodily injury is never reasonable to protect mere property.
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Defense Shopkeepers Priviledge |
If shopkeeper reasonably believes someone has stolen merchandise, that shopkeeper may detain that person for a reasonable period of time.
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Elements of Negligence Notice NO INTENT |
1. Duty
2. Standard of Care 3. Breach of Duty 4. Cause in fact 5. Proximate Cause 6. Damages |
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Negligence Duty of Care |
General Rule: Everyone is held to a duty of reasonable care measured against the reasonable prudent person with exceptions (mentally and physically impaired, & children)
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Negligence Duty of Care - Caregiver Exception |
If caregiver, cannot state claim for negligence against patient. Caregiver is not owed a reasonable duty of care from his patient but owes duty of care to everyone else.
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Negligence Child Duty of Care |
Child owes the standard of care of a reasonable child of the same age, intelligence, experience and maturity unless engaged in an adult or inherently dangerous activity.
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Negligence - definition |
Negligence may be any conduct that creates an unreasonable risk of harm to others.
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Negligence - elements Elements must be proved by ___ of evidence |
preponderance (more than 50%)
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Negligence Standard of Care - the four levels |
1. reasonably prudent person under same or similiar circumstances.
2. children 3. negligence per se or statutory standard of care 4. standard of care applied to professionals. |
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Negligence Breach of Duty means |
the failure to meet the standard of care
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Negligence Cause IN Fact |
Plaintiff's harm must be the result of D's breach of duty. One who causes no harm is not legally responsible.
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Reasonable Person Standard |
1. not a real person, not a member of the jury
2. should have some weaknesses 3. expected to know about well known hazards 4. expected to notice what is evident, open and apparent 5. ignorance is not a defense 6. expected to have knowledge and understanding generally held by members of the community - out of towners are ok. |
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Reasonable Person STandard Emergency Doctrine |
D is held to a standard of a reasonable person under those emergency circumstances.
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Reasonable Person Standard Definition of Emergency |
An event that requires a decision within an extremely short period of time and is sufficiently unusual so that the actor does not have personal experience or general community knowledge of how to deal with the emergency.
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Reasonable Person STandard Mentally impaired |
Mental condition irrelevant. Insane held to same standard as sane person.
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Negligence Standard of Care - Negligence per se doctrine as opposed to Reasonable person doctrine. |
This doctrine provides that in certain situations a criminal statute, admin regulation, muni ordinance may be used to set the standard of care.
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Negligence Unreasonableness - determination of |
Determination of unreasonableness considers the risks that should have been forseen at the time of D's conduct, not by hindsight.
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Negligence Unreasonableness - Learned Hand formula |
Probability (P)= the liklihood that D's conduct will injure others
Injury (L) = Seriousness of Injury if it happens Burden (B) = Interests which D must sacrifice to avoid the risk Liabiity depends on whether B is less than L times P = B < PL |
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Negligence Unreasonableness - Learned Hand formula explanation |
D will have acted unreasonably where the burden of avoiding the harm is les than the probability of that harm occuring multiplied by the likely seriousness of the harm if it does occur.
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Negligence Unreasonableness - Learned Hand Formula & Probability |
Probability is the likelyhood of harm. It measures how forseeable the harm causing event is. Likely harm, not actual harm.
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Negligence Unreasonableness - Learned Hand Formula & Burden of Avoidance |
Burden is the value of interest to be sacrificed for safety which includes costs associated with avoiding harm, alternatives and their feasibility, the inconvenience to those involved and the extent to which society values the relevant activity.
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Negligence Unreasonableness & Role of Custom |
Custom refers to a well-defined and consistent way of performing a certain activity among a particular trade or industry. P may try to assert D's deviation from custom as lack of due care or D may try to avoid liability by showig compliance.
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Negligence Negligence per se - when to use it? |
Only with regards to Breach of Duty. Negligence per se only establishes breach of duty.
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Negligence What are the requirements of Negligence per se? |
1. The P must be within the class of persons that statute was intended to protect; and
2. The injury or harm was of the type that statute was designed to protect against; and 3. The D's violation of the statute was not excused. |
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Negligence Negligence Per Se - What is the benefit of establishing that D is liable for negligence per se? |
To establish breach
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TORTs
Negligence Negligence per se - If P is successful in establishing that D is liable for negligence per se, does P win the case? |
No Breach is only one element required to prove negligence. Still need to prove duty, cause in fact, proximate cause and damages.
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TORTs
Negligence Breach of Duty What are the three methods to prove breach of duty? |
1. Negligence per se
2. Learned hand Test 3. Res Ipsa Loquitur |
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TORTs
Negligence Breach of Duty - if you are successful in proving breach of duty do you win the case/ |
No - not for negligence. In addition to breach of duty you have to prove the other elements of negligence.
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Negligence Breach of Duty - evidence Who has the burden and how much evidence is required? |
The plaintiff has the burden to prove breach and must show enough evidence so that the jury can find that more likely than not the D failed to act reasonably.
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Negligence Breach of Duty What types of evidence are used to establish breach? |
1. Direct - evidence from personal knowledge, eyewitnesses, videotape.
2. Circumstantial - requires jury to draw inference from other facts that have probative value |
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Negligence Breach of Duty What is Res Ipsa Loquitur |
Res Ipsa Loquitur means "the thing speaks for itself." It is a form of circumstantial evidence
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Negligence Breach of Duty When is Res Ipsa Loquitur used? |
When P cannot make specific allegations of what D did wrong.
BYrne v Boadle - warehouse, flour barrel |
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Negligence Res Ipsa Loquitur - is just the occurence of an accident good enough to prove breach under this doctrine? |
No - the harm causing event must be tied to D and the event must be one that generally does not occur absent negligence.
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