Torts 1

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Torts 1
2014-11-20 22:03:50

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  1. Privileges: assumes that if these things are true, (2)
    • 1) Negates liability
    • 2) That would otherwise pertain
  2. Privileges:(6)
    • 1) Consent
    • 2) Self-Defense
    • 3) Defense of Others
    • 4) Defense of Property
    • 5) Recovery of Property
    • 6) Necessity
  3. Privileges

    Consent: Policy
    Self determination in tort law
  4. Privileges

    Consent-When one gives consent, 1) Assumes... 2) Justifiable...
    • 1) Assumes the risk knowingly and volitionally under the terms and the scope
    • 2) Justifiable reasonable expectations this will happen
  5. Privileges


    • Freely given, volitional
    • Must demonstrate consent in some fashion
    • Scope: narrow/specificity
  6. Privileges


    Capacity to consent:
    • Capacity to consent: must understand
    • Minors, drunks, incompetents
    • Consent of parent or guardian is necessary
  7. Privileges


    Expectation: knowledge of material risks and alternatives
  8. Privileges


    Even in...
    • Sports: one who takes part in a sport accepts the dangers that inhere in it so far as they are obvious and necessary
    • Even in violent situations, it is possible to go beyond the customs and be liable (boundaries)
  9. Privileges


    • Relationships: matter
    • Ex. Persons in authority
    • Context: setting, players, expectations, cultural standards
  10. Privileges


    Consent under false pretenses:
    So, the mere...
    • Consent under false pretenses is not consent
    • So, the mere expression of consent is not sufficient, must have relevant facts
  11. Privileges

    Consent: Types
    • 1) Expressed consent
    • 2) Implied consent
  12. Privileges


    Expressed: (2)
    • Expressed:
    • P has expressly shown a willingness to submit to D's conduct
    • Best evidence of consent!
  13. Privileges


    Implied Consent:
    Do not...
    Act must...
    Presumed to...
    • Do not care if P subjectively thought she was giving consent
    • Act must be considered in connection with surrounding circumstances (P's overt acts and manifestations of her feelings)-->a reasonable person would infer from P's conduct her consent
    • Presumed to impliedly consent to crowded world contact
  14. Privileges


    Implied Consent: Emergencies
    If an operation...
    • Assume if you were capable, you would give consent
    • If an operation is performed without the patient's consent, the circumstances must justify its performance without consent (I.e., life threatening)
  15. Privileges

    Self Defense

    When a person...
    • Protecting: bodily integrity
    • When a person has reasonable grounds to believe that he is being or about to be attacked, he may use REASONABLE force necessary for protection against potential injury
  16. Privileges

    Self Defense: When is defense available?
    • 1) Reasonable belief
    • 2) Retaliation not allowed
    • 3) Retreat not necessary
    • 4) Not available to aggressor
  17. Privileges

    Self-Defense: When is defense available?
    1. Reasonable belief-
    A reasonable...
    • Needs a reasonable belief as to the other party's action
    • Apparent necessity is sufficient
    • A reasonable mistake as to the existence of danger is OK under self defense
  18. Privileges

    Self Defense: When is defense available?
    2. Retaliation not allowed-
    One may...
    • Limited to the right to use force to proven the commission of a tort
    • One may never use force in retaliation (where there is no longer a threat of injury)
  19. Privileges

    Self Defense: When is Defense available?
    3. Retreat not necessary-
    One does not...
    One does not need to attempt to escape, can stand ground (most courts)
  20. Privileges

    Self-Defense: When is defense available?
    4. Not available to aggressor
    Initial aggressor is not privileged to defend himself against the other party's reasonable force in self defense.
  21. Privileges

    Self-Defense: How much force?
    Force that...
    If more force...
    Reasonable force:
    Force that REASONABLY appears to be NECESSARY to PREVENT THE HARM

    Cannot use deadly force unless he reasonably believes he is in danger of serious bodily injury

    If more force than necessary is used, the actor loses the privilege of self-defense

    Reasonable force: proportionality, timing
  22. Privileges

    Defense of Others:
    When is defense available?
    How much force may be used? (2)
    • Protecting bodily integrity
    • Actor needs a reasonable belief that the person being aided would have a right to self-defense
    • Same as self-defense-Force that REASONABLY appears to be NECESSARY to PREVENT THE HARM
  23. Privileges

    Defense of Property: Interest...
    When is defense available? Must be...Limited to...ASk question:...
    Interest of life outweighs interest of defense of property

    • Must be reasonable force/means of preventing unlawful trespass of property
    • Limited to UNLAWFUL intrusions
    • Ask question: was the action reasonably necessary to protect property?
  24. Privileges

    Recovery of Property: One...
    Fresh pursuit: Limited...Undue lapse...
    One has a right to retake property that is rightfully his so long as it can be done without unnecessary violence to the person and without creating a breach of the peace

    • Fresh pursuit:
    • Limited to prompt discovery of the dispossession
    • Undue lapse of time means owner is no longer privileged to fight himself back into possession, must resort to law
  25. Privileges

    Recovery of Property:

    (2) P, T
    • Proportionality, timing
    • Force reasonable under circumstances
    • Merchants: A privilege for merchants is to detain for reasonable investigation a person whom he reasonably believed to have taken a chattel unlawfully.
  26. Privileges

    Interest protected:(2)
    Privileges: (2)
    • Interest protected: Public or private
    • Privilege: partial or complete
  27. Privileges


    Public Necessity:
    Private Necessity:def. One who...
    • Public Necessity: complete privileges, not liable for damages  (ex. destroy house to save more buildings)
    • Private Necessity: partial privilege, still liable for damages; One who takes actions to protect his property that result in damage to another's property is required to compensate for those damages, even when the actions taken were necessary to prevent the destruction of his own property
  28. Privileges


    Otherwise, ...
    • Suggests NECESSITY
    • 1)Proportionality
    • 2) Reasonable response
    • 3) Timing: immediate
    • 4) Devastating unless someone acts
    • 5) Mistake is OK
    • 6) Effectiveness of actions is not a factor, so you can fail
    • Otherwise, tortious acts may be rendered non-tortious when necessity dictates that they be undertaken for the greater interest of society (the individual rights of property give way to the higher laws of impending necessity)
    • Difficulty: subjective, not necessarily universal values across cultures ("greater good" informs value of necessity, assuming everyone has the same set of rules)
  29. Negligence exists where...
    The actor had 1) a duty to use reasonable care 2) they breached that duty 3) there was a close and causal connection between the conduct and the resulting injury 4) actual loss or damages resulting to the interest of another.