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Torts Outline Cheat Sheet by

torts

Battery

Act
Voluntary act that is uncons­ented to by another party
Harm­ful­/of­fensive touching
Harmful: Causing physical injury
Offensive Touching: offending a person's reasonable sense of personal dignity
Offe­nsive Touching Factors:

i. Parties relati­onship

ii. P's vulner­abi­lit­y/s­ens­itivity

iii.Context

iv. nature of D's Act

v. D's motive
Intent
Purpose or substa­ntial certainty result will occurr
Single Intent:
1. Intends to cause a touching of another &
2. The V finds the touching harmful or offensive or the touching would be harmfu­l/o­ffe­nsive to a person of ordinary sensibilities

Dual Intent
1. Intends to cause a touching of another &&
2.Intents the touching to be harmfu­l/o­ffe­nsive

*don't forget to ask if V is a person of ordinary sensib­ilities

Trespass to Land

Rule
Intentionally
----enters or causes
-------entry on the land
--------------of another
Intent
Even if mistaken of who the property belonged, the intent to enter is all that matters

Tresspass to Chattles

Rule
Intent­ional
---intermedling
------with the property
--------------of another
Damages?
Plaintiff must suffer loss of use of property
Stealing a car v. a 10 minute joyride

Assault

Intent­ionally putting another in appreh­ension of an imminent harmful or offensive touching
Overt Act
---->
Appreh­ension
An awareness of an imminent touching = antici­pation
---->
Imminence
Does not have to be instan­tan­eous, but would occur without delay
intent
Purpose or substa­ntial certainty result will occur
----
----
If battery occurs, tran­sferred intent makes D guilty of battery even if they did not intend the touching to occur but want intended for the appreh­ension
Words alone do not make the actor liable for assault unless together w/acts or circum­stances they put the other in reasonable apprehension

Transferred Intent: Occurs when a Defendant intends to commit one tort and ends up committing another

[IIED]

Extreme & Outrageous Conduct
Exceeds bounds of tolerable decency

Factors:
a.Repetitive/pattern of abuse
b.chronic
c.power differences
d.severity of conduct
e.vulnerabilities
f.context
g.discriminatory language
h.death [howard stern example
Inte­nt/­rec­kle­ssn­ess
Purpo­se/­sub­stn­atial certainity is not required

recklessness
Disregard of substa­ntial risk, precon­dition health
Severe Emotional Harm
*When issue spotting, look for person's emotional well-b­eing: i.e.-d­idn't eat,di­str­aught
3rd Party claiming for IIED
1.Plaintiff must be present
2.Defendant knows plaintiff was present
3.Blood relationship
*if not family member, then the plaintiff must have suffered bodily harm
 

DUAL INTENT V. SINGLE INTENT

*Intent
Single Intent 1 & 3
1. Intents only to cause a touching (of another)
2. V finds the touching harmful or offensive // the touching would be harmfu­l/o­ffe­nsive to a person of ordinary sensib­ili­ties
 
Dual intent 2
1. Intends to cause a touching
2. intends the touching to be harmfu­l/o­ffe­nsive
 
Thin Skull Rule
Respon­sible for injuries and any harm reasonably foreseeble after initial injury

Condit­ional Assaults

A show of force accomp­anied by an unjust­ifiable or unlawful command compile as battery is an assault
(EX) If it wasn't tuesday I cut your throat

Conversion

Rule
Intentional
---exercise of dominion
-------------over property
--------------------of another
4 factors
1.Assumes control
2.deprives someone of use
3.refuse to return on demand
4.destroying property
mistakes do not matter

-joyrides do not count

-Plaintiff has lost use, dispos­ses­sion, lost/d­amages

False Impris­onm­ent

Conf­ine­ment
i.Physical restraint

ii.Durress of goods

iii.Physical barriers: No reasonable means of escaping

iv.Improper false assertion of legal authority

v.Threat of physical force to person, family, or property
Awar­eness
Victim has awareness or suffers injuries if there was no awareness

Example-when a woman with diabtus was accidently locked in the library and had an attack overnight
intent
D acted with purpose or substa­ntial certainty

DEFENSES 4 intent­ional torts

Recapt­uring Chattel
1. You can use reasonable force to obtain property, but no room for mistake (hot pursuit) &&
2. TIME AND MANNER
Shopkeeper Privlege
1. Reasonable believe,
2. Room for mistake
DEFENSES OF PROPERTY
1. Reasonable force to defend property
[no deadly force plz]

You cant do by mechanical device what you can't do by person, i.e.-s­pring gun
Brown v. Martinez
Transf­erred intent from assault to battery (don't matter if touching occured, intended to apprehend, therefore harmful touching, a normal person would find offens­ive­/ha­rmful
In Loco Parentis
Parents can/are privilege to discipline their children
-->(and anyone else who stands in the place of parents, such as bus drivers, teachers, etc)
Cannot maintain privilege if using deadly force just because of a posted warning sign

Defense rule: Privilege to use reaso­nable force to protect yourself from imminent danger
------>defense of others?
A: Split jurisd­iction on mistake

Children & Mentally Impaired

Chil­dren
Bright line rule: not really one, but normally any child below the age of seven or six, depends on state statutes that declare when a child is able to or not able to form the intent to be guilty of a tort

Garrett v. Daley:
Dailey's intent to cause a harmful bodily contact is inferred from his knowledge that the contact would occur
Mentally Impaired
State by state, depends on whether the person ins able to form the intent or not

Wagner v. State:
State immune from battery cases, and so long as patient had intent to touch, that was enough to satisfy a battery, doesn't matter if he intended the touching to be malicious or not

NEG: DAMAGES $$$$$$

1. Actual Harm
Physical injury and/or property damage
When more than 1 possible defendant? Joint & Several Liabil­ity
Two test:
1. Multiple defendants acted in concerted (express or implied) engagement in a certain conduct
-->i.e., Dragracing

2. When multiple defendants negligence combined in an indivi­sible injury
-->One that cannot be reasonably approt­ioned with reasonable certainty
Trig­gering JSL: Anyone defendant can be liable for the indivi­sible harm
->Under pure joint several liability Jdx, plaintiff can get 100% damages from D1, even if D1 is only 25% at fault, but is more reasonable for P to obtain damages from D1 if it is unlikely D2 will be able to pay the 75% [or whatever it may be]. And then D1 can seek cont­rib­ution of 75% from D2 on their own.

->In a pure several liability jdx, P is strictly limited to receving 25% of damages from D1 and 75% from D2

->Pure joint jdx, P is able to recieve 100% from D1 if D2 has indeminity
3. Contri­bution and Indeminity
 

NEGLIGENCE

DA­C­/­PC­/­$$$

Negligence Per Se

Negligence Por Que?
This means that violation of the statute, even though that statute itself does not say it, actually determines the actor's duty and breach
1. Safety Statute?
2. Class of Person?
3. Excuse?

NEG: DUTY

(1) Is there a duty owed?
Tres­pas­ser: On land w/o permis­sion; no privilege
Duty not to intent­ionally or recklessly injure any T

Discovered T:
1. Duty to warn if know of danger and that T about to encounter

Undiscovered Exceptions:
1. Duty to reasonable warn only if Landowner knows or has reason to know of danger and that P might encounter (Reaso­nable care for activi­ties) OR
2. Duty of reasonable care if T deviates in minor way from public highway or mislead into thinking it's public highway

No duty to inspec­t/d­iscover Trespasser
Child Trespa­sser: On land w/o permis­sion; no privilege
Duty to warn/make safe reasonably where:
1.Trespass by kis is foreseeable
2.L knows or has reason to know of daner from artifical condition
3.Kids too young to appreciate dangers and avoid them
Lice­nsee: Permitted to enter land; entry for P's benefit
Duty to reasonably warn only if L knows or has reason to know of danger and that P might encounter

No duty to inspec­t/make safe

EXAMPLES: Social guest, T's privileged because of necessity, etc..
Invi­tee: Business visitor or public invitee on land for benefit to L or mutual benefit or because open to public
Duty of reasonable care inclu­ding duty to inspect and make safe non obvious dangerous condit­ions and obvious conditions if injury forese­eable despite P's knowledge or if P must confront danger regardless of warning

Examples: Custo­mers, building inspectors...

Trad'tl approach
Open & obvious doctrine: P barred from suing landowner for open and obvious dangerous situations

Modern: certain situations where duty to foresee
examples->grocier, ambulance paramedic, sometimes no choice but to confront obvious danger
Prof­ess­ional Rescuers
Usually same as licen­see: L not liable for negligence creating fire, risks inherent in rescue or ordinary negligence that creates occasion for presence of rescuer at place where she's injured. Extended to prof. rescuers outside land. may be liable for indepe­ndent acts or risks beyond scope of duties

Examples: Fire fighters & cops & safety office­rs-­-Status determined by nature of work
Special Duties
FFR: T as necessity privilege= firefi­ghters?

Doctors
->duty defined by expert testimony
Traditional approa­ch-­pure locality
-->expert testimoney can only come from a local practi­tioner w/in same field and area

modified locality:
-->A physician of the same degree of care, skill and profic­iency from a similiar community

Majority rule:
-->National standard of care of other specialist in the field{{nl}

Informed Consent 50/50 A doctor's failure to disclose adequate inform­ation
Materiality standard
-->Doctor has a duty to disclose all signif­icant inform­ation that would be material to patients decision of operation

Alternative Approa­ch-­Medical Standard of Disclosure
-->Looks to what other medical profes­sions would disclose vis a vi locality rules in jdx

What should be disclosed?
1. Nature and probab­ility of risks
2. benefits
3.irreversability
4.Unpredictability
5.alternatives
7.Risks of refusing
-->a.Causation for IC: ((1)­)Risk materi­alized ((2)) P must show had she known, she would have refused ((3)) A reasonable prudent person would have refused
(2)What is the standard of care?
->D­efault?
---->R­eas­onable purdent person under the circum­stances
->C­hild?
---->R­eas­onable child of similiar age, intell­igence, experi­ence, andmental ability UNLESS acting in adult activity

NEG: BREACH

Hand forumula
Specific Conduct v. Altern­ative Conduct, evaluate whether conduct was then reasonable via forese­eab­ility
B<PL

B: Burden of precau­stions to eliminate or reduce the risk of harm
->information
->cost/benefit
->giving up social activities

P: The forese­eable severity of any harm that may ensue
L: Likelihood that the person's conduct will result in harm

*HF is most useful with conduct that is a deliberate choice
Common Unders­tan­ding
An actor is negligent only if his conduct created a forese­eable risk and the actor recognized or a resonable person would have recognized that risk? OR is it just as simple as don't run a red light?
Private practice
Manuals are persua­siv­e->­Wa­lmart v. Wright;
->however reasonable care is an objective standard, not a private practice standard (w/ the exception with Doctors and other specia­list)
Custom
R: A person's depart­ure­/co­mpl­iance from/with cutom of the community or of others in like circum­stances can either help or hurt defendant

->Existence of a safety custom might prove that harm was foreseeable

->Manuals and standard of care does not equal law

->Saftey manuel reflects a higher standard of care sometimes

->Complying with statutes are the bare minimum, reasonable care may require higher standard of care, i.e.-TJ HOOPER
Notice of Oppurt­unity
Circu­mst­antial Evidence:
Defendant created dangerous condition OR Defendant knew of condition and failed to remedy
Res Ipsa
R: Under certain circum­sta­nces, the very fact that an accident occurred leads to an inference that the accident was caused by negligence

Requires:
1. Does not ordinary occur without negligence
2.Other causes are suffic­iently eliminated
-->Trad'tl: Control Rule-P­lai­ntiff had to show that defendant had exclusive control of instru­men­tality that caused the harm
-->Modern: Restat­ement versio­n-C­ons­iders Power of Control, Managing Control, Physical Control
3. Within the scope of defend­ant's duty--Up to the jury
Rule to start breach: "The defendant who breaches the duty of care is neglig­ent­"

NEG: ACTUAL CAUSE

But For
But for the defend­ant's negligent conduct, plaintiff would not have been injured [or as injured]
Subs­tantial Factor
D1 and D2 acted in concert, and but for conduct is proved on both D1 & D2= substa­ntial contri­buting factor in P's injuries, and JSL can be applied so that P may recover fully (appro­ptioned between Ds)
Lost Chance
But for D's neglig­ence, "­des­troyed a substa­ntial possib­ili­ty" of achieving a more favorable outcome
Alte­rnative Liabil­ity
When only one defendant caused the harm, but cannot determine who

->Triggered by indivisble injuries

NEG: PROXIMATE CAUSE, Scope of Liability

Risk Rule
The type of harm that occurs within the risk of defend­ant's negligence (fores­eeable harm)

J.Cardozo: Narrow Approach-D is resonsible for injuries that can be foreseen

J.Andrews: D is resonsible for any direct injuries

1. Forese­eable Plaintiff?

2. Forese­eable harm?

->Type/manner of harm does not have to be forese­eable and extent of harm
Rescue Doctrine
->G­ene­rally a rescure can recover from the defendent whose negligence promps the rescue if the rescuer had a reasonable belief that the victime was in peril
Inte­rvening Causes
An interv­ening act is one which operates after the defend­ant's original negligence to bring about the harm

Must prove intervenor is superc­eding to relieve Defendent of liability, otherwise intervenor is dependant and is within the risk of D1's negligent conduct

Trad'tl Approach:
->criminal intervenor = superceding
->Acts of God and unforeseeable
->Risk terminated
->Suicide unless exception

Modern approach:
->Criminal acts are not superc­eding if defendant exposed plaintiff
->Suicide-->If your job is to prevent others from hurting themselves
->D's conduct put/left P in a position of Danger (i.e.-­De­rdi­arian & wooden horse), cannot argue injuries from intervenor is superceeding
->dependent interv­enors that are forced to operate in response to defend­ent's negligence
-->Rescue Doctrine
P/C Rule: A defendant is the proximate cause if the type of harm that resulted was forese­eable and within the risk of the defend­ant's negligence

Defendant is liable only for
1. Types of injuries forese­eably risked by D's negligence
2. To classes of persons forese­eable in the scope of risk of D's negligence

AFFIRM­ATIVE DEFENSES TO NEG

1. Contri­butory Neglig­ence
Plain­tiff's failure to exercise care for own safety (mirrors pfc of NEG)

Changes damages
Traditonal/Minority Rule: Pure Compar­ative Fault
->Plaintiff's recovery is reduced entirely if Plaintiff is found to be contri­butorly negligent even by a small percentage

Modified Approach
a. 50 and less? able to recover minus portion of plaint­iff's portion of compar­ative fault
b. A plaintiff that shares more than 50% of fault recovers nothing
2. Assumption of Risk
Consent: Express AOR
Does the waiver encompass negligence and is the harm within the scope or outsisde the scope of D's duty
Typically found within exculp­atory clauses
->Look at Tunkle Factors to ensure excupatory clauses is enforc­eab­le{­nl}­}1.V­alid as a matter of policy?
--->Nature of services
--->Bargaining power
--->Plaintiff subject to D's carelessness?
2.Faily entered into
3.Clear and unambiguous

Implied Assumption of Risk
Primary v. Secondary

->Primary AOR
Plaintiff fails to show PFC, inherent risk of sports, specta­ting, etc

->Secondary AOR
Must know and appreciate the risk voluntarily
->subjective standard

Majority rule w/ SAOR, use contri­butory negligence
If plaintiff is CN , then do NEG Analysis on P

Avoidable conseq­uen­ces:
plaintiff may have not reduced risk afterwards or failed to perform duty to mitigate damages, then D is not liable.

Casual Apportionment
Plaintiff is respon­sible for his own injuries aside from injuries sustained by defendant

Where does Bexiga Principals go?
1. Defendant knows of possible carelessness
2.Plaintiff's conduct only risk to themself

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