Law

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Author:
skyeallen
ID:
102555
Filename:
Law
Updated:
2011-09-21 10:47:48
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Torts
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Description:
Torts Definitions
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  1. Def. Intent
    • A person acts with the intent to produce a consequence if:
    • (a) the person acts with the purpose of producing that consequence; or
    • (b) the person acts knowing that the consequence is substantially certain to result.
  2. Def. Recklessness
    • A person acts recklessly in engaging in coduct if:
    • (a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person's situation, and
    • (b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person's failure to adopt the precaution a demonstration of the person's indifference to the risk.
  3. Def. Battery
    • An actor is subject to another for liability for battery if:
    • (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person or an imminent apprehension of such contact and
    • (b) a harmful contact with the person of the other directly or indirectly results.
  4. Character of Intent Necessary for Battery (1)
    If an act is done with the intention of inflicting upon another an offensive but not harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm.
  5. Character of Intent Necessary for Battery (2)
    If the act is done with the intention of affecting a third person in the manner stated in (1) but causes harmful bodily contact to another, the actor is liable to such other as fully as though he intended so to affect him.
  6. Offensive Contact as Factor in Battery
    • An actor is subject to another for liabilty for battery if:
    • (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and
    • (b) an offensive contact with the person of the other directly or indirectly results.
  7. Def. Offensive Contact
    A bodily contact is offensive if it offends a reasonable sense of personal dignity.
  8. Def. Assault (1)
    • An actor is subject to liability to another for assault if:
    • (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and
    • (b) the other is thereby put in such imminent apprehension.
  9. Def. Assault (2) (3) (4)
    • (2) An attempt unknown to the other does not make the person liable for assault.
    • (3) A conditional threat is subject to liability.
    • (4) A threat by words does not make the actor liable for assault unless they put the other in reasonable apprehension or an imminent harmful or offensive contact with his person.
  10. Def. False Imprisonment (1)
    • An actor is subject to another for liability for false imprisonment if:
    • (a) he acts intending to confine the other or a third person within the boundaries fixed by the actor, and
    • (b) his act directly or indirectly results in such a confinement of the other, and
    • (c) the other is conscious of the confinement or is harmed by it.
  11. Def. False Imprisonment (2)
    An act which is not done with the intention stated in subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
  12. What Constitutes Confinement?
    • (1) To make the actor liable for false imprisonment, the other's confinement within the boundaries fixed by the actor must be complete.
    • (2) The confinement is complete although there is a reasonable means of escape, unless the other knows of it.
    • (3) The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right of privilige to go.
  13. Knowledge of Confinement
    There is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.
  14. Scope of Liability for Intentional and Reckless Tortfeasors
    • (a) An actor who intentionally causes harm is liable for that harm even if it was unlikely to occur.
    • (b) An actor who intentionally or recklessly causes harm is subject to a broader range of harms than the harms for which that actor would be liable if only acting negligently. In general, the important factors in determining the scope of liability are the moral culpability of the actor, as reflected in the reasons for and intent in committing the tortious acts, the seriousness of harm intended and threatened by those acts, and the degree to which the actor's conduct deviated from appropriate care.
    • (c) Notwithstanding subsections (a) and (b), an actor who intentionally or recklessly causes harm is not subject to liability for harm the risk of which was not increased by the actor's intentional or reckless conduct.
  15. Intentional (or Reckless) Infliction of Emotional Harm
    An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject to liability for that emotional harm, and, if the emotional harm causes bodily harm, also for the bodily harm.
  16. Privilege
    • (1) The word "privilege," used throughout the Restatement of this subject to denote the fact that conduct which, under ordinary circumstances does not subject him to such liability.
    • (2) A privilege may be based upon:
    • (a) the consent of the other acted upon by the actor's conduct, or
    • (b) the fact that its excercise is necessary for the protection of some interest of the actor or of the public which is of such importance as to justify the harm caused or threatened by its exercise, or
    • (c) the fact that the actor is performing a function for the proper performance of which freedom of action is essential.
  17. Def. Consent
    The word "consent" is used throughout the Restatement of this subject to denote willingness in fact that an act or invasion of an interest shall take place.
  18. Public Necessity
    One is privileged to enter land in possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.
  19. Private Necessity
    • One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent the serious harm to:
    • (a) the actor, or his land or chattels, or
    • (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action, or
    • (2) where the entry is for the befit of the actor or a third person he is subject to liability for any harm done in the exercise of the privilege stated in the subsection
    • (3) to any legally protected interest of the possessor in the land or connected with it, except when the threat of harm to overt which the entry is made is caused by the tortious conduct or contributory negligence of the possessor.
  20. Elements of Cause of Action (Negligence)
    • (1) A duty to use reasonable care.
    • (2) A failure to conform to the required standard.
    • (3) A reasonably close causal connection between the conduct and the resulting injury. This is commonly called causation.
    • (4) Actual loss or damage resulting to the interests of another.
  21. Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct
    Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.
  22. Factors Considered in Determining Utility of Actor's Conduct
    • In determining what the law regards as the utility of the actor's conduct for the purpose of determining whether the actor is negligent, the following factors are important:
    • (a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;
    • (b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct;
    • (c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.
  23. Factors Considered in Determining Magnitude of Risk
    • In determining the magnitude of risk for the purpose of determining whether the actor is negligent, the following factors are important:
    • (a) the social value which the law attaches to the interests which are imperiled;
    • (b) the extent of the chance that the actor's conduct will cause an invasion of any interest of the other, or of one of a class of which the other is a member;
    • (c) the extent of the harm likely to be caused to the interests imperiled;
    • (d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm.
  24. Def. Negligence
    A person acts negligently if a person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
  25. Equation for Liability (Judge Learned Hand)
    Liability depends on whether B (burden) is less than L (injury) multiplied by P (probability), or whether B is less than PL.
  26. Knowledge and Skills (as effecting negligence)
    If an actor has skills or knowledge that exceed those possessed by most otherse, these skills or knowlege are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.
  27. Custom (as effecting negligence)
    • (a) An actor's compliance with the custom of the community, or of others in like circumstances, is evidence that the actor's conduct is not negligent but does not preclude a finding of negligence.
    • (b) An actor's departure from the custom of the community, or others in like circumstances, in a way that increases risk is evidence of the actor's negligence but does not require a finding of negligence.
  28. Conduct that is Negligent Because of the Prospect of Improper Conduct by the Plaintiff or a Third Party
    The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party.
  29. Reason to Know; Should Know (R2)
    • (1) The words "reason to know" are used throughout the Restatement of this subject to denote the fact that the actor has intelligence from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.
    • (2) The words "should know" are used throughout the Restatement of this subject to denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct on the assumption that such fact exists.
  30. Children (exception from negligence, R2)
    If the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence, and experience under the circumstances.
  31. Mental Deficiency (R2)
    Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances.
  32. Physical Disability (standard for negligence, R2)
    If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability.
  33. What Actor is Required to Know
    • For the purposes of determining whether the actor should recognize that his conduct involves a risk, he is required to know:
    • (a) the qualities and habits of human beings and animals, and the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowlege at the time and in the community; and
    • (b) the common law, legislative enactments, and general customs in so far as they are likely to affect the conduct of the other or a third person.
  34. Custom (regarding negligence)
    In determining whether conduct is negligent, the customs of the community or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them.
  35. Emergency (as related to negligence, R3)
    If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor's resulting conduct is that of the reasonably careful person.
  36. Children (as excepted from negligence, R3)
    • (a) A child's conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in subsections (b) or (c).
    • (b) A child less than five years of age is incapable of negligence.
    • (c) The special rule in subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.
  37. Disability (effect on negligence, R3)
    • (a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.
    • (b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation was reasonably foreseeable to the actor.
    • (c) An actor's mental or emotional disability is not considered in determining whether the actor has behaved as a reasonably careful person.
  38. Knowledge and Skills (as effecting negligence, R3)
    If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.

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