Torts I

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  1. Duty
    Everyone has the duty to act as a reasonable prudent person (RPP) under the same/similar circumstances to avoid exposing others to unreasonable and foreseeable risks of harm.
  2. Tort
    Civil wrong, other than breach of K, for which a court will provide a remedy
  3. Damages
    1. Compensatory (General and specific) 2. Nominal (awarded for vindication of a right, where no real loss or injury can be proved. 3. Punitive (ONLY IF compensatory damages have already been awarded. Very rare, only in cases of wilfull/wanton).
  4. Prima Facie Case - Intentional
    1. Act 2. Intent 3. Purpose
  5. Prima Facie Case - Negligence
    1. Duty 2. Breach 3. Causation 4. Damages
  6. Transferred Intent
    When D intends to commit trespassory tort on A but instead ends up committing tort to B. The intent is transferred from A to B. D still liable.
  7. Children and Intent
    Young person may be guilty of tort. Must appreciate the resulting harm. Age matters. 9 year old different from 2 year old.
  8. Causation - Intentional
    Not necessary to prove
  9. Damges - Intentional
    Nominal available
  10. Battery
    When D intends to cause physical harmful or offensive touching on P via physical invasion. Must intend the touching and touching must occur.
  11. Offensive Touching
    Judged by community standards at time and place of touching
  12. Extended Personality
    Direct body contact not always required. Example: throwing a rock = extended personality of actor
  13. Battery Damages
    Nominal and Compensatory and punitive, unless D raises mistake defense
  14. Mistake
    Defense to battery, can negate intent.
  15. Assault
    D intends to, and with purpose, place P in apprehension of imminent harmful or offensive contact. No physical harm required.
  16. False Imprisonment
    D intentionally and unlawfully confines P against P's will and within the bounds set by D. Negated if P has reasonable escape routes.
  17. False Arrest
    Unlawful and intentional detainment of P by taking them into custody under asserted authority.
  18. Intentional Infliction of Emotional Distress
    D's act of extreme and outrageous conduct that invades the mental faculties of the P and causes mental or physical distress.
  19. IIED 3rd Parties
    • Strangers: Must witness the act, D must know they are there, must have physical manifestation of severe distress.
    • Family members: Same as above, however, can recover if D knew with substantial certainty that it would transfer to 3DP.
  20. Tresspas to Land
    Unpriviledged, intentional entry to land of another or refusal to leave land when permission to enter has been revoked. Interference with another's possession of land.
  21. Trespass to Chattels
    Intentional dispossession of another's personal property, depriving them of use and enjoyment. No damage necessary.
  22. Conversion
    Intentional, unprivileged exercise of dominion and control over another's personal property. There needs to be a substantial interference.
  23. Insanity
    Not a defense to intentional tort. Can be used to negate intent and destroy P's prima facie case.
  24. Consent
    Defense. Express or Implied.
  25. Defense of Others
    Available when victim has priviledge of self-D. Used when intentional tort was necessary to save another from serious harm.
  26. Defense of Property
    Deadly force not allowed. Only allowed to prevent commission of a tort.
  27. Public Necessity
    The privileged right to enter land and interfere with chattles in possession of another or even inflict personal injury, IF such action reasonably appears necessary to avert imminent public disaster.
  28. Private Necessity
    Privilege to take and use another's personal property; when not taking property would create greater risk. Superior privilege of necessity
  29. Negligence
    When one has a duty to provide reasonable care to others, breaches that duty, the breach causes harm or injury, and damages occur.
  30. Standard of Care
  31. Cause in Fact
    "But for" test or substantial factor (only for when we have multiple actors).
  32. Proximate Cause
    Should D have realized that P was in a class of risk due to D's breach and that the harm was foreseeable?
  33. Child Care Standard
    Subjective test with objective overlay. Take child of like age, intelligence and experience under same or similar circumstances.
  34. Learned Hand Formula
    B < P x L. If the product of the probabilty of harm occurring and the level of foreseeable harm is greater than the burden of the actor not engaging in that conduct, then negligence.
  35. Polycentric Problem
    When decreasing the risk of one activity raises the risk of another activity. Activity A: P x L = Y, Activity B: PxL=Z. If Z is higher than Y, we decrease risk of activity B and vice versa.
  36. Negligence per se
    Violation of safety statute, unless excused. Shuts the door on negligence. The statute must be relevant (designed to protect class of citizens from a certain class of harm). Criminal = courts have discretion whether to apply. Civil = courts MUST apply.
  37. Professional Std of Care (Medical)
    Physicans = same or similar community std. Specialists = National std. Can set the std via expert testimony or Material risk std (P entitled to disclosure of material risks before deciding on treatment).
  38. Res Ipsa Loquitor
    1. That the act could not have occured absent another's person's negligent act. 2. Was caused by instrumentality was within the exclusive control of the D or had the right to control. 3. The harm was not solely due to the voluntary action or contribution of P or other 3rd parties.
  39. Sustantial Factor Test
    Concurrent: 2+ Ds + their consecutive negligent acts cause P's harm. Apportion by time/amount. Concurrent: 2+ Ds + their neg acts that happen at the same time and both cause harm to P. Joint and several. Preemptive: Neg of 1 D prevents (and causes harm to P) neg act of another D from causing its harm. second D is off scott free.
  40. Informed Consent (But For)
    But for [med professional's] failure to inform P of risks, would P have avoided the treatment and thus the injury?
  41. How to apply Proximate Cause
    Risk Rule: D = liable ONLY for injuries within the class of risk whose foreseeabillity made him negligent in the first place. Intervening Causes?: intentional or reckless (criminal/suicide), negligent (was it foreseeable and did it intervene or supersede?), or act of God.
  42. Assumption of Risk
    P voluntairly encounters a known and apparent risk of harm from negligence of D's conduct.
  43. Implied AR - primary
    Risks can't be eliminated by the exercise of reasonable care. Irreducible risks of an activity or condition. By engaging in activity, P is deemed to consent to risks that are inherent in activity or sport.
  44. Implied AR - secondary
    • Like contrib. negligence. - subjective prong: did P know and appreciate danger of the risk compared with D's negligence?
    • If so, and P voluntarily encountered known risk of D's conduct, then P was unreasonable.
Card Set
Torts I
Intentional and Negligence
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