Law

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skyeallen
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103939
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Law
Updated:
2011-09-24 08:55:37
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Torts Definition Illustrated Case
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Definitions of Torts terms with answers citing specific cases.
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  1. Def. Intent

    Garratt v. Dailey: small boy pulls chair out from under older woman, causing broken hip, etc.
    Child acted with intent because although he (supposedly) did not act with (a) purpose of producing harm, he (b) acted knowing that the consequence was substantially certain to result.
  2. Def. Recklessness

    Garratt v. Dailey: small boy pulls chair out from under older woman causing broken hip, etc.
    Child's actions were reckless because even a small child should have (a) known the risk of harm created by his conduct or known facts that would make the risk obvious to another in his situation (even another child) and (b) the precaution that would eliminate or reduce the risk involved burdens that are so slight (not pulling out the chair) relative to the magnitude of the risk as to rend the child's failure to adopt the precaution a demonstration of the child's indifferent to the risk.
  3. Def. Battery

    Garratt v. Dailey: small child pulls chair out from under older woman, causing broken him, etc.
    The child was subject to the woman for battery because he (a) acted intending to casuse a harmful or offensive contact with her or a third person or an imminent apprehsion of such contact, and (b) the harmful contact directly or indirectly resulted.
  4. Def. Character of Intent Necessary for Battery

    Spivey v. Bataglia: man jokingingly hugs woman intending to cause discomfort. She ends up suffering facial paralysis.
    This would be a battery because the act was done with the intention of inflicting upon the woman an offensive but not harmful bodily contact, or of putting her in apprehension of either a harmful or offensive contact, and because the act caused a bodily contact even though the act was not done with the intention of bringing about the resulting bodily harm. However, this particular case was not a battery because no reasonable person could have foreseen the consequence (facial paralysis) of the act.

    This would also have been a battery if the act were done intending to affect a third person but caused harmful bodily contact to another, in which case the actor would have been liable to the other as fully as though he intended so to effect him.
  5. Offensive Contact as a Factor in Battery

    Wallace v. Rosen: Defendant gently touches Plaintiff on shoulder during school fire drill.
    This case was not a battery because (a) the Defendant did not act intending to cause a harmful or offensive contact with the Plaintiff or an imminent apprension of such contact, and (b) an offensive contact with the person of the Plaintiff did not directly or indirectly result.
  6. Def. Offensive Contact

    Wallace v. Rosen: Defendant gently touches Plaintiff on shoulder during school fire drill.
    This bodily contact was not offensive because it did not offend a reasonable sense of personal dignity.
  7. Def. Assault

    Western Union Telegraph Co. v. Hill: employee tells woman he'll "fix her clock" and menaces her from behind counter.
    • This is an assault if he:
    • (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 a contact, and
    • (b) the woman was thereby put in such imminent apprehension.
    • (c) It would not be an assault were the attempt unknown to the woman.
    • (d) It would be an assault if it were a conditional threat.
    • (e) It would not be an assault if it were merely a threat by words unless they put the woman in reasonable apprehension of an imminent harmful or offensive contact with her person.
  8. Def. False Imprisonment

    Enright v. Groves: Woman ostensibly arrested for failure to keep dog on leash. Really arrested for refusing to produce license.
    This was false imprisonment because the police officer, (a) acted intending to confine the woman within the boundaries he fixed, and (b) his act directly or indirectly resulted in the confinement of the woman, and (c) the woman was conscious of the confinement or was harmed by it.

    Had the act not been done with intention stated in (a), the police officer would not have been liable to the woman for a merely transitory or otherwise harmless confinement, although the act involved an unreasonable risk or imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
  9. What Constitutes Confinement?

    Whittaker v. Sandford: Man offers to bring mother and children back to U.S. then confines them to his yacht.
    This qualified as false imprisonment because (a) the boundaries of the victim's confinement set by the actor were complete, (b) even if there had been a reasonable means of escape the woman did not know of it, and (c) the actor did not merely prevent the woman from going in a particular direction in which she had the right or privilege to go.
  10. Knowledge of Confinement

    Parvi v. City of Kingston
    : drunk man confined to police car then golf course.
    One is not falsely imprisoned unless one is aware of the confinement or otherwise harmed by it.

    In this case the Plaintiff was falsely imprisoned because although he could not remember the details of his evening after the fact, at the time he was imprisoned in the police car he was clearly aware of his imprisonment.
  11. Scope of Liability for Intentional and Reckless Tortfeasors
    • (a) An actor who intentionally causes harm is subject to liability for that harm even if it was unlikely to occur.
    • (b) An actor who intentionally or recklessly causes harm is subject to liability for a broader range of harms than the harms for which the actor would be liable if only acting negligently. In general, the important factors in determining liability are the moral culpability of the actor, as reflected in the reasons for and intent in comitting the tortious acts, the seriousness of harm intended and threatened by those acts, and the degree to which the actor's conduct deviated from reasonable care.
    • (c) Notwithstanding subsections (a) and (b), an actor who intentionally or recklessly causes harm is not subjecct to liability for harm the risk of which was not increased by the actor's intentional or reckless conduct.
  12. Intentional (or Reckless) Infliction of Emotional Harm

    Harris v. Jones: Man with stutter tormented mercilessly by his co-workers and immediate supervisor.
    • 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.

    Jones was found not liable for Intentional Infliction of Emotional Harm because the court found that Harris's emotional harm was not sufficiently severe and that there was no bodily harm.
  13. Def. Privilege
    • (1) The word "privilege," used throughout the Restatement of this subject to denote the fact that conduct which, under ordinary circumstances would subject the actor to liability, 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 exercise 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 threated 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.
  14. Def. Consent

    O'Brien v. Cunard S.S. Co.: young woman claims she was battered when innoculated by ship's doctor b/c she gave no consent.
    Young woman did in fact give consent because she denoted willingness in fact that an act or invasion of an interest should take place (she held out her arm for the innoculation).
  15. Def. Public Necessity

    Ex: blowing up house to stop the spread of a fire.
    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. No damages are awarded if the govt. has to destroy your property/chattels.
  16. Def. Private Necessity

    Q: Does Alan have Private Necessity to approach the farmhouse?
    • 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 ofr whose benefit he enters is unwilling that he shall take such action, or
    • (c) where the entry is for the benefit 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, and
    • (d) to any legally protected interest of the possessor in the land or connected with it, except when the threat of harm to over which the entry is made is caused by the tortious conduct or contributory negligence of the possessor.
  17. Elements of Cause of Action (Negligence)

    Hint: DFCCA
    • (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.
  18. Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct
    Where an act is one which a reasonable person 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.
  19. Factors Considered in Determining Utility of an 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.
  20. 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.
  21. Def. Negligence

    Hint: FL, FS, BP
    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 foreseeble severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

    • Mnemonic:
    • FL - foreseeable likelihood
    • FS - foreseeable severity
    • BP - burden of precautions
  22. 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.
  23. Knowledge and Skills (as effecting negligence)
    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.
  24. Custom (as effecting negligence)

    Hint: CCC, DCC
    • (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.

    • Mnemonic:
    • CCC - compliance custom community
    • DCC - departure custom community
  25. 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.
  26. Reason to Know; Should Know (Restatement 2nd.)
    • (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.
  27. Children (exception from negligence, Restatement 2nd.)
    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.
  28. Mental Deficiency (Restatement 2nd.)
    Unless the other 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 person under like circumstances.
  29. Physical Disability (Restatement 2nd.)
    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.
  30. What Actor is Required to Know

    Vaughn v. Menlove: man built hay rick too close to neighbor's buildings. Despite being warned claimed that he didn't know wet hay could spontaneously combust.
    • 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 insofar as they are matter of common knowledge at the time and in the community; and
    • (b) the common law, legislative enactments, and general customs insofar as they are likely to effect the conduct of the other or a third person.
  31. 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.
  32. Emergency (as related to negligence, Restatement 3rd.)
    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.
  33. Children (as excepted from negligence, Restatement 3rd.)
    • (a) A child's conduct is negligent if it does not confrom to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in subsections (b) and (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.
  34. Disability (effect on negligence, Restatement 3rd.)
    • (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.
  35. Knowlege and Skills (as effecting negligence, Restatment 3rd.)
    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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