Card Set Information

2011-12-14 12:30:17

Torts Review
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  1. Elements of Battery
    • 1. Touch
    • 2. Of a person
    • 3. That causes harm
    • 4. With intent or substantial certainty
  2. Can insane have intent to commit battery?
  3. Describe a battery with transferred intent
    A throws a stick at B, it misses and hits C. A is still liable for battery of C.
  4. What are the two main defenses to battery?
    • 1. Self defense
    • 2. Consent
  5. Describe the standard for informed consent in a medical context.
    Doctor reveals every material and reasonable risk

    Material judged by whether it would have made plaintiff change his decision about the care
  6. Give elements and one example of offensive battery
    • 1. Intentional (not reckless or negligent)
    • 2. Touching of a person
    • 3. Which offends or humiliates

    Example: spitting in face
  7. Give the elements of assault
    • Threating gesture (not just verbal)
    • Puts someone in immediate apprehension of physical harm.
  8. Give the elements of false imprisonment
    • Intentional (negligence if harm is great)
    • Act of restraint
    • Effective confinement (three walls do not a prison make)
  9. Name two defenses to false imprisonment.
    • 1. Preventing injury to person or property
    • 2. Safety and care of a child
  10. List the elements of Intentional Infliction of Emotional Distress.
    • Extreme and outrageous conduct
    • Intentional or reckless
    • Inflicting emotional distress
  11. What is it called when a guardian gives consent for a minor or incompetent person?
    Transferred consent
  12. What are the three criteria for evaluating a claim of self defense?
    • Immediacy
    • Proportionality
    • Least restrictive mean
  13. What is public necessity a defense to?
    All liability.
  14. Describe public necessity
    Defense to a tort against property that action was necessary to protect the public. Private person can invoke this.
  15. What are the three steps for dealing with a trespasser?
    • 1. Ask him to leave
    • 2. Touch, but don't wound
    • 3. Call police.

    If person is actively destroying property, go to step two
  16. What are the three types of negligence cases?
    Intimates- People with a preexisting relationship


    Highway- People involved in a structured interaction, example is rules of the road
  17. What are the elements of negligence?
    • Duty
    • Breach
    • Cause In Fact
    • Proximate Cause
    • Harm
  18. What are the elements of harmony?
    • Loyalty
    • Honesty
    • Laughter
    • Genrosity
    • Kindness
    • Magic
  19. What is negligence per se?
    Breach element is proven by unexcused violation of a statute.
  20. What are excuses for violating a statute?
    • It would be more dangerous not to
    • Compliance was impossible
  21. What standard is used if violating a statute is excused?
    Ordinary negligence
  22. Describe the reasonable person standard
    The care a reasonable person would take in the circumstances.
  23. Is the reasonable person standard objective or subjective?
  24. What is the standard of care for a child? What is the exception?
    Standard for a child is a child of that age. Exception is when he is engaged in an adult activity.
  25. What is the standard of care for an elderly person?
    Normal standard of care
  26. When is an expert held to a higher standard of care?
    When he puts himself out as an expert
  27. What standard of care is a disabled person held to?
    Same standard as a reasonable person with the same disability.
  28. What standard is a drunk person held to?
    Normal reasonable person standard
  29. How can a beginner be held to a lower standard?
    By pushing information that he is a beginner to others.
  30. Describe the Learned Hand formula and tel what it does.
    If risk * severity is greater than the cost of precaution, you must take the precaution or you are negligent. It sets the standard of care.
  31. What is the role of custom?
    It can help set the standard of care.
  32. What is the formula for medical custom?
    Degree of skill and learning normally possessed by a doctor in similar circumstances.
  33. Describe res ipsa loquitor.
    Rebuttable presumption of breach.
  34. What are the elements of Res Ipsa Loquitor?
    • Type of accident normally does not occur without negligence.
    • Negligence is within scope of defendant's duty to plaintiff.
    • It helps if other possible causes are eliminated.
  35. What doctrine would be used in a situation where only defendant had knowledge about whether there was a breach?
    Res Ipsa Loquitor