Torts - Basic

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Torts - Basic
2015-07-23 19:57:01
speed MBE
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  1. Intentional Torts : three general requirements
    • 1. Intent or Transferred Intent
    • 2. Causation
    • 3. Voluntary Act
  2. Battery
    • (1) conduct intended to cause (2) and causing (3) a touching of a harmful or offensive nature (4) without consent (5) without privilege. May also be met by intent to cause imminent apprehension of the touching.
    • Harmful: Reasonable person standard.
    • Offensive: either (1) reasonable person would find the contact offensive, or (2) if defendant is aware that actual person is hypersensitive.
  3. Assault
    • (1) conduct intended to cause (2) and causing (3) reasonable apprehension of an imminent touching of a harmful or offensive nature (4) without consent (5) without privilege.
    • Mere words do not justify assault, although words + circumstances may.
  4. Intentional Infliction of Emotional Distress
    • Intentional or reckless acts of extreme or outrageous conduct which causes severe emotional distress.
    • More likely when (1) defendant in a position of authority or influence, or (2) plaintiff in a group with heightened sensitivity.
  5. IIED - towards third party
    When (1) conduct directed at immediate family, (2) defendant is aware of their presence, and (3) third party suffers harm as a result.
  6. False Imprisonment
    (1) conduct intended to cause (2) and causing (3) the confinement or restraint of another (4) without consent (5) without privilege.
  7. MD: shopkeeper’s privilege –
    A store owner can detain a person on probable cause - the reasonable belief that the customer stole something.
  8. Trespass to Chattels
    • (1) conduct intended to cause (2) and causing (3) interference with the right to another’s chattels (4) without consent and (5) without privilege.
    • Interference by (1) dispossession or (2) using/intermeddling.
  9. Conversion
    • (1) conduct intended to cause (2) and causing (3) interference with the right to another’s chattels so serious as to entirely deprive the plaintiff of the chattel (4) without consent and (5) without privilege.
    • Intent – defend need only intend to commit the interfering act.
  10. Difference between Trespass to Chattels and Conversion –
    • In determining, courts will consider
    • 1. Duration or extent of interference
    • 2. Defendant’s intent to assert a right inconsistent with the rightful possessor
    • 3. Defendant’s good faith
    • 4. Expense or inconvenience to the plaintiff
    • 5. Extent of harm to the chattel.
  11. Trespass to Land
    • (1) conduct intended to cause (2) and causing (3) entry upon the land of another (4) without consent and (5) without privilege.
    • Physical invasion is required; otherwise, consider nuisance.
  12. Private necessity –
    • Defense to trespass.
    • Liable for damages during the necessary entry upon land.
  13. Public necessity –
    • Defense to trespass. No liability for necessary entry upon land.
    • Occurs when a large number of people must enter to avoid harm.
  14. Nuisance
    • Substantial and unreasonable interference with the use and enjoyment of the land of another.
    • Unintentional --> negligence standard.
    • Intentional --> nuisance if more than what a plaintiff should have to bear.
  15. Express consent
    • Willingness to submit to the conduct.
    • Consent by mistake valid unless defendant caused the mistake or knew of it and took advantage of it.
    • Consent by fraud is invalid if it goes to an essential matter.
  16. Implied consent
    • (1) a reasonable person would object and the plaintiff is silent, or
    • (2) the plaintiff enters into circumstances where she indirectly signals her willingness to endure conduct.
  17. Defenses to Intentional Torts: Self-Defense
    • A personally may use reasonable force to defend against an offensive contract or bodily harm.
    • Force used must be proportionate to the anticipated harm.
    • Mistake, when reasonable, is a valid defense.
  18. Duty to retreat
    • Retreat before using deadly force except when in their homes.
    • Initial aggressor is not entitled to claim self-defense.
  19. Defenses to Intentional Torts: Defense of Others
    Reasonable belief that the defended party would be entitled to use self-defense.
  20. Defenses to Intentional Torts: Defense of property
    • Reasonable force necessary to prevent tortious harm to the property.
    • May never use deadly force, although defense of property may escalate to self-defense.
  21. Private Citizen - arrest
    • (1) felony has been committed, and (2) arresting party has reasonable grounds suspect that the person being arrested committed the felony.
    • Mistake of identity acceptable, but not mistake over the felony.
  22. Police - arrest
    • (1) he reasonably believes a felony has been committed and
    • (2) he is arresting the person who committed it. Not liable for good faith mistake.
    • Misdemeanor- must be breach of peace.
  23. Negligence Elements
    (1) Defendant owes the plaintiff a duty of reasonable car (2) which the defendant breaches (3) which is the cause-in-fact and proximate cause (5) of plaintiff’s damages.
  24. Negligence: Duty
    Cardozo – legal duty owed to plaintiff if the plaintiff is a member of the class of persons who might be foreseeable harm by defendant’s negligence. Majority and Maryland.
  25. Rescuer
    A rescuer is a foreseeable person, as danger invites rescue.
  26. Firefighter rule
    Bars recovery for emergency personnel. MD - assumption of risk.
  27. Negligence: Failure to act
    • 1. Assumption of duty - unreasonable abandonment
    • 2. Placing another in peril.
    • 3. By authority – (1) ability to control another and (2) actual authority to control another
    • 4. By relationship
  28. Negligence : Breach
    A person must act like a reasonably prudent person under the circumstances.
  29. Reasonable person - mental/emotion
    Presumed to have average mental and emotional characteristics.
  30. RP - physical characteristics
    Particular physical characteristics are taken into account as to what a reasonably prudent person might do.
  31. RP - intoxicated
    Only involuntarily intoxicated.
  32. RP - children
    • A reasonably prudent child of the same age & experience.
    • Unless adult activities (RP person).
  33. Negligence: Learned Hand approach
    Foreseeability of the harm * severity of harm < burden of acting more prudently ? negligence.
  34. Negligence Custom in industry
    • Considered as to what a reasonably prudent person would do, but it is not a complete defense.
    • Custom may be so unreasonable as to be negligent.
  35. Negligence Professionals & physicians
    Expected to exhibit the same skill and knowledge as another minimally competent practitioner in the same profession.
  36. Negligence Informed consent
    • Duty of care to inform (1) all material risk of treatment (2) unknown to the patient, (3) its alternatives and (4) non-treatment, except:
    • Risks are commonly known
    • Plaintiff would have consented anyways
    • Detrimental to patient’s health to inform them of risks, and professional in good standing would not inform the patient
  37. Emergency exception - informed consent
    (1) actor could not consent, (2) risk of serious imminent harm, (3) a reasonable person would consent to care and (4) the practitioner has no specific knowledge that the patient would refuse.
  38. MD: informed consent
    • Whether someone should have known the consequences of the action.
    • Parents cannot waive gross negligence for a child, but they can waive simple negligence.
  39. Negligence - Negligence per se
    • A violation of a crime, statute or regulation will impose the standard of care to others when (1) plaintiff is in the class of people intended to be protected, and (2) accident is the type of harm that the statute was intended to protect against.
    • Defense include:
    • Impossibility
    • Emergency
    • MD: this is proof that the person was acting negligently.
  40. RP: Emergency situation
    Same standard of care (RP person), but a focus on circumstances
  41. Breach of Duty: Res ipsa loquitor
    • “To prove breach, (1) the accident must be a kind which does not happen in the absence of negligence, (2) caused by an agent or instrumentality within the defendant’s exclusive control, and (3) not due to the plaintiff’s own fault.
    • Medical malpractice - shifts the burden
    • MD: res ipsa is not applicable in Maryland med mal
  42. But-for test
    The injury would not have occurred but for the defendant’s negligence.
  43. Substantial factor test
    (1) When negligence greatly multiplies the chance of an accident and (2) it is of the character that naturally leads to the accident. (When but-for fails).
  44. Multiple tortfeasors, single harm
    Harm by one of few defendants and it cannot be determined which one caused the harm, the burden of proof will shift to defendants.
  45. Concert of action –
    when tortfeasors acting collectively to cause the harm, all defendants are the cause in fact and are jointly and severally liable for the harm.
  46. Cause in Fact: Loss of chance of recovery
    • 50% or less chance of survival.
    • Negligent reduction of chance of survival may be recovered for, despite lack of normal CIF
  47. Negligence: Proximate cause
    Harm is direct and foreseeable consequence of breach.
  48. Intervening cause
    A factual cause that contributes to the harm - does not break Proximate Cause
  49. Superseding cause –
    An unforeseeable intervening cause that breaks the chain of causation.
  50. MD: boulevard rule
    Failure to stop at a stop sign or yield to another driver will result in a finding of proximate cause.
  51. Punitive damages
    • When the defendant acted willfully, recklessly or with malice.
    • Std: clear and convincing evidence.
  52. Economic-loss rule
    If no personal injury or property damage, then no economic damages.
  53. Joint and several liability
    Plaintiff can collect all damages from two or more liable tortfeasors when a single harm.
  54. Contribution
    If defendants J&S liable, A defendant who has paid more than his share may recover damages from other defendants.
  55. Indemnification
    The entire loss is shifted from one party to another – usually by agreement.
  56. Unintended personal injury and wrongful death suits
    Non-economic damages are limited to $840k.
  57. Medical malpractice suits
    Non-economic damages are limited to $740k.
  58. Survival actions where instant death occurred
    Limited to medical and funeral expenses.
  59. Zone of danger - NIED–
    Emotional distress if (1) plaintiff is in zone of danger and (2) the plaintiff reasonably feared for his safety.
  60. Bystander recovery - NIED
    • Emotional damages from witnessing harm to another who is
    • (1) closely related to the bystander,
    • (2) the plaintiff is present at the scene and
    • (3) witnesses the harm.
  61. NIED
    • Physician misdiagnoses a disease.
    • Funeral home mishandles a body.
  62. Wrongful Death
    A decedent’'s spouse, next of kin or personal representative's suit to recover losses suffered as a result of the decedent’s death.
  63. MD: wrongful death
    • Decedent: spouse, children - not stepchildren
    • Class: spouse, next-of-kin or personal representative.
    • Damages: Pecuniary damages, loss of consortium.
  64. Wrongful Life
    Doctor who fails to perform a contraceptive procedure which leads to pregnancy. Not generally permitted.
  65. Wrongful Birth
    A doctor’s failure to diagnose a defect. Permitted in many states.
  66. MD: wrongful birth
    • PL: Parents, not child.
    • Damages: child rearing to the age of 18.
  67. Vicarious Liability
    When one person is held liable for another’s negligence.
  68. Respondat superior
    An employer liable for the tortious acts of employees within the scope of employment.
  69. Detour
    A slight diversion which serves the goals of the employer. Employer is still liable.
  70. Frolic
    A large divergence from the goals of the employer. Employer not liable.
  71. Vicarious Liability and Independent Contractors
    Employer not liable for the torts of independent contractor, except (1) inherently dangerous activities and (2) nondelegable duties, (3) the operator’s duty to keep premises safe for the public, and (4) duty to comply with safety statutes.
  72. Employee v. IC
    Employer has right to control the work of an employee. IC is de facto employee if employer controls work.
  73. Business partners - vicarious liability
    Partners vicariously liable when (1) common purpose and (2) right of control, and (3) within scope of business’ purpose.
  74. Negligent entrustment
    • One may be liable for negligently entrusting a car, gun, or dangerous device to someone who is not in the position to care for it.
    • MD: only when car entrusted to a child or a drunk.
  75. Federal government –
    • The federal government has consented to be sued except for:
    • (1) Certain torts (2) Discretionary functions, (3) Traditional government activities
  76. MD: government employees
    • Personally liable for malice/gross negligence.
    • State liable for negligence of employees within scope, but $200k/claimant/incident and no punitives.
  77. MD municipalities
    Liability limited to $200K/claimant or $500K/occurrence
  78. Government officials immunity
    • Immune for discretionary functions with no malice or improper purpose
    • Not immune for ministerial acts.
  79. Interspousal immunity –
    completely eliminated.
  80. Parent-child immunity –
    immunity limited to core parental activities.
  81. Contributory negligence
    Complete bar to recovery. MD.
  82. Last clear chance Doctrine
    If a defendant had a clear chance to avoid the harm but failed to do so, it will negate the plaintiff’s own contributory negligence. MD.
  83. Helpless plaintiff
    Peril from which the plaintiff cannot escape. Defendant liable if (1) he knew or should have known of the peril and (2) had an opportunity to avoid harming the plaintiff.
  84. Inattentive plaintiff
    • Peril due to plaintiff’s own inattention.
    • Defendant liable if (1) actual knowledge of the peril and (2) failed to avoid the harm.
  85. Comparative negligence
    • The failure to observe duty of reasonable care to oneself will reduce the amount a plaintiff may recover. Not MD.
    • Court will tally the negligence of all defendants combined.
  86. Pure Comp Neg–
    100% - (Pl’s liability) = amount to recover.
  87. Modified –Comp Neg
    • majority bar recover if plaintiff is more liable
    • Minority bar recovery if plaintiff is equally or more liable
  88. Assumption of the risk doctrine
    • When a plaintiff (1) knowingly and (2) willing accepts the risk of harm, the plaintiff cannot recover for damages.
    • An agreement to lower the defendant’s duty of reasonable care.
  89. Exculpatory clauses
    Fenerally enforceable except where (1) disclaimer of reckless/wanton conduct or gross negligence, (2) gross disparity of bargaining power between parties, (3) services of great importance to the public, or (4) subject to a K defense.
  90. MD: Assumption of the Risk
    plaintiff (1) aware of risk, (2) understood nature of risk, (3) voluntarily confronted the risk.
  91. Strict Liability: Abnormally Dangerous Activities
    • Factors considered are (1) whether foreseeable and highly significant risk of physical harm even if reasonable care is exercised, (2) gravity of harm, (3) uncommon nature of activity, (4) value to community, (5) appropriateness to the location.
    • Only strictly liable for harm that flows from risk that made the activity abnormally dangerous.
  92. Strict Liability: Dangerous Wild Animals
    • Strict liability for harm caused by animal which is what makes it dangerous.
    • Trespassing if owner knows/has reason to know of trespass.
    • Statutory privilege - essential public service excuses strict liability, but try negligence.
  93. Strict Liability: Defective Products
    • (1) product is defective, (2) defect existed at the time the product left defendant’s control, and (3) defect caused the harm.
    • Manufacturing defect -– deviation from what the manufacturer intended
    • Defendants - manufacturer, seller and anyone in chain of sale except a casual seller.
    • No privity of contract - foreseeable injury by the defective product.
  94. Consumer expectation test
    Design defect if less safe than contemplated by ordinary consumer.
  95. Risk-utility test
    Defective if it could have been made safer by additional safety features.
  96. Strict Liability: Failure to warn
    Product does not include an adequate warning.
  97. Learned intermediary –
    • Warning to the doctor who prescribes the drug suffices for consumer.
    • Not where manufacturer is aware that drug will be given directly without personal intervention of health care providers.
  98. Strict Liability: Warranties
    • When product is more dangerous than the consumer thought, Plaintiff may frame the breach of contract allegation as a tort claim.
    • Any valid warranty under contract.
    • Valid defenses are comparative negligence, assumption of the risk, and substantial change.
  99. Parental Liability for Children
    • Not liable except when (1) child is an agent (2) specifically by statute.
    • MD: intentional torts only, $10K max.
  100. Parental duty to control
    When parent has (1) ability to control and (2) knows or should know of the necessity to control. 
  101. Parental Discipline –
    a parent may use reasonable force or impose reasonable confinement to discipline her child.
  102. False Imprisonment for MD
    (1) intent to confine or restrain another (2) to a bounded area (3) which directly or indirectly results in confinement (4) and plaintiff is aware of confinement or harmed by it.
  103. MD: Dog Bite Statute
    strictly liable for bites unless (1) trespass/attempted trespass or (2) teasing, tormenting, abusing or provoking the dog.
  104. Liability: Domestic Animals
    • No strict liability, unless dog-bite statute
    • Negligence liability.
    • Trespassing, except where the owner does not know or have reason to know that the pet is intruding on another’s property.
  105. Lack of Notice
    A defendant must have notice and time to deal with negligence.
  106. Danger
    Invites rescue.