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Torts - HP
Team Zombie
116
Law
Professional
12/02/2011

Additional Law Flashcards

 


 

Cards

Term
Battery
Definition
A touching of the body
A voluntary act; with the intent to cause a harmful or offensive contact or imminent apprehension of a harmful or offensive contact;, harmful or offensive contact occurs
Term
Assault
Definition
A touching of the mind
A voluntary act; with the intent to cause a harmful or offensive contact; or imminent apprehension of a harmful or offensive contact; and imminent apprehension of a harmful or offensive contact results
Term
False Imprisonment
Definition
A voluntary act; with the intent to confine another to a bounded area, confinement occurs for an appreciable amount of time (no matter how short); victim must be conscious of the confinement or harmed by it
Term
Confinement
Definition
Can be a physical barrier or threat of force
Term
Bounded area
Definition
Limited range of movement
Term
Offensive contact
Definition
Contact that would offend a reasonable sense of personal dignity
Term
Trespass to land
Definition
Voluntary act; with intent to enter; entry occurs; land of another; entry occurs
Term
Apprehension
Definition
awareness or belief that battery is imminent without significant delay
Term
Trespass to chattel
Definition
Voluntary act; with intent to interfere; with chattel property; of another
Term
Chattel
Definition
tangible, moveable personal property
Term
Interference
Definition
Temporarily deprive, or use or intermeddle with property that causes damage
Term
Conversion
Definition
Voluntary act; with intent to exercise substantial dominion; over chattel property; of another; which so seriously interferes with another's control over the chattel that defendant is responsible for the full value thereof
Term
Intentional infliction of emotional distress
Definition
Extreme and outrageous conduct; with intent to cause severe emotional distress or recklessly cause severe emotional distress; severe emotional distress occurs
Term
substantial dominion
Definition
extent and duration of control (think civil version of embezzlement - conversion to own use)
Term
Extreme and outrageous conduct
Definition
determined by context of relationship, severity or regularity of conduct, knowledge of plaintiff's vulnerability
Term
Reckless (IIED)
Definition
deliberate disregard of a high probability that severe emotional distress will occur
Term
Third person claims for IIED
Definition
third party must be present, either a family member or suffers bodily harm as a result
Term
Transferred intent
Definition
intend one tort and cause another, not applicable to IIED
Term
Privilege of self-defense
Definition
Reasonable force allowed to protect against imminent threat of harm to self or third person; reasonably apparent need to use such force; force or threat of force used is reasonable in relation to the threat posed
Term
Can you protect property with deadly force?
Definition
NO
Term
Defense of others
Definition
reasonable force allowed to protect against imminent threat of harm to other individual(s)
Term
Defense of consent
Definition
negates the intent; defendant does not have the knowledge that the contact will be harmful or offensive; consent can be revoked at any time as long as revocation is communicated
Term
Rules of consent
Definition
apparent consent; consent requires an understanding; consent is not a defense under duress or incapacitation; cannot consent to an illegal act
Term
Public necessity
Definition
Reasonably believe it is necessary to prevent imminent public disaster; no compensation; not liable for trespass; government is required to compensate in a constitutional taking
Term
Private necessity
Definition
One is privileged to enter and remain n the land of another if there is an imminent need to avoid danger, but still liable to any damages to the land or property
Term
Negligence
Definition
duty, breach, causation (actual and proximate), damages
Term
Duty
Definition
legal obligation that if it exists is measured by a standard of care
Term
Standard of care
Definition
care a reasonable person would exercise under same or similar circumstances to avoid or minimize reasonably foreseeable risks of harm to others
Term
Intoxication standard of care
Definition
same as a sober individual
Term
Infirmity standard of care
Definition
person with a like infirmity
Term
Superior knowledge standard of care
Definition
exercise superior qualities that he has in a manner reasonable under the circumstances
Term
Child standard of care
Definition
reasonably careful child of the same age in similar circumstances; if engaged in adult activities, adult standard R/P standard of care applies
Term
Duty is created by ?
Definition
Special relationship, contract, case law, or other legally recognized entity, voluntary undertaking, creation of the risk
Term
Duty of carriers/host drivers
Definition
Must exercise more than ordinary care, standard of care stops just short of ensuring safety
Term
Landowner unaware of trespasser
Definition
duty to refrain from wanton/willful conduct
Term
Landowner aware if trespasser
Definition
reasonable person standard of care
Term
Child trespassers
Definition
attractive nuisance doctrine
Term
Rule 1 of nuisance doctrine
Definition
Artificial condition in which the owner knows children are likely to trespass and the condition is likely to cause unreasonable risk of serious injury or death
Term
Rule 2 of attractive nuisance
Definition
The place where the condition exists is one which which the possessor knows or has reason to know children are likely to trespass
Term
Rule 3 of attractive nuisance
Definition
The condition is one which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm
Term
Rule 4 of attractive nuisance
Definition
The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or coming within the area made dangerous by it
Term
Rule 5 of attractive nuisance
Definition
The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to children involved
Term
Rule 6 of attractive nuisance
Definition
The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children
Term
Rule 7 of attractive nuisance
Definition
Jurisdictions differ on comparative negligence of children
Term
Invitee
Definition
Someone on the property at the invitation of the owner - business invitee and public invitee - R/P standard of care in all circumstances
Term
Licensee
Definition
On land with permission but limited license to be there (social guests)
Duty to avoid wanton or willful conduct unless aware of danger - the there is R/P standard of care
Term
Open and obvious danger
Definition
Eliminates duty but the plaintiff is negligent in failing to avoid a hazard that is known and appreciated
Term
Duty to protect from third persons
Definition
Only applicable if the harm is foreseeable and there is a special relationship between defendant and third party (custodial relationship + foreseeability)
Term
Duty created by special relationship
Definition
Carrier-passenger; innkeeper-guest; landowner-lawful entrant; employer-employee; school-student; landlord -tenant; custodian-person in custody; voluntary undertaking, defendant causes harm, defendant creates risk of harm, statutory
Term
Voluntary undertaking
Definition
A person who undertakes to render services to another has a duty to use reasonable care if failure to exercise reasonable care would increase risk of had; or a person relies on the actor in the undertaking
Term
Unenforceable contract
Definition
gratuitous promise + no action = no duty
Term
Enforceable contract
Definition
gratuitous promise +reliance + no action = no duty
Term
Breach
Definition
Failure to exercise reasonable person standard of care
Term
Carroll Towing Formula
Definition
Burden, probability, injury (BPL) 1. BPL = no negligence (met reasonable s/c)
Term
Negligence per se
Definition
not subject to scrutiny of duty and breach
1. statute must be clear
2. plaintiff's injury must be the type statute was designed to prevent
3. plaintiff must be in class of persons statute intended to protect
Term
Res Ipsa Loquitor
Definition
Injury alone speaks for itself as evidence of negligence
1. Injury is more likely than not the result of negligence
2. Defendant is more likely than not the cause of such negligence
3. No 3rd parties intervened
Term
Proportional liability system
Definition
Defendant is only responsible for share of fault
Term
Joint/several liability
Definition
Can enforce entire judgment against any defendant
Term
Several liability
Definition
Each defendant pays only their share
Term
Causation
Definition
Actual and proximate
Term
Actual cause
Definition
But for test - but for defendant's negligence, plaintiff would not have been harmed
Term
Multiple defendants
Definition
separate injuries - each defendant liable for each injury
one injury - use fault apportionment
Term
Substantial factor
Definition
Applies when there are multiple causes of injury, negligent defendant's "but for" test fails
Term
Alternate causation
Definition
When but for and substantial factor fail
Both defendants are liable - burden of proof shifts to defendants to disprove they are the cause of injury
Term
Proximate cause
Definition
legal cause - scope of foreseeable risk
Term
Rules for proximate cause
Definition
Is the plaintiff a foreseeable plaintiff?
Is the harm suffered within the scope of foreseeable risks created by the defendant's negligence?
Term
Test for foreseeable plaintiff
Definition
Range of apprehension
Term
Test for scope of foreseeable risks
Definition
Extent of harm - if harm is foreseeable, defendant is liable
Intervening/superseding causation
Term
Intervening/superseding causation
Definition
1. Superseding cause eliminates liability
2. Intervening cause in the scope of foreseeable risk does not eliminate liability
3. Risk is terminated when plaintiff reaches apparent safety
Term
Medical malpractice
Definition
medical negligence
Term
Duty in medical malpractice
Definition
Established by a doctor/patient relationship
Term
Standard of care in medical malpractice
Definition
A physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful and prudent practitioners in the same class to which s/he belongs, acting under same or similar circumstances - established by expert testimony unless understandable to layperson or res ipsa
Term
Standard of care encompasses ?
Definition
Locality, advances in the profession, availability of the facility, whether the doctor is a specialist of general practitioner
Term
Specialists
Definition
Held to the standards of their specialty
Term
Res Ipsa in medical malpractice
Definition
Can be used along with expert testimony where no way injury could have occurred outside negligence
Term
Informed consent
Definition
Patient - all information material to intelligent decision by patient
Professional - what doctors consider it necessary to disclose (only risks inherent to procedure, not success rate)
Term
Causation in informed consent
Definition
1. Unrevealed risk must materialize
2. Plaintiff must show that had the proper information been provided that she would not have undergone the procedure
3. A reasonable person would not have undergone the procedure
Term
Contributory negligence
Definition
When plaintiff engages in negligence that contributes to the plaintiff's injury
Term
Comparative fault
Definition
comparing the fault of the plaintiff and defendant to determine percentage of liability of each
Term
Comparative fault does not factor when ?
Definition
1. Defendant has a duty to protect the plaintiff from harm engaged
2. Defendant has a duty to the plaintiff because plaintiff's own negligence would not have occurred without the brach by the defendant
3. Plaintiff's entitlement
4. Rescue doctrine - cannot recover on negligence of rescuer unless the rescuer acted recklessly
Term
Types of comparative fault
Definition
Pure comparative fault - no matter the amount of liability on part of the plaintiff, plaintiff can still recover
Modified comparative fault - if plaintiff is 50% or less
Term
Assumption of risk
Definition
Aware of the risk; understand the risk; voluntarily assume the risk
Term
Primary assumption of the risk
Definition
A defendant owes no duty to protect the plaintiff from harm
Term
Secondary assumption of the risk
Definition
Defendant may have been negligent, and a plaintiff may have assumed certain risks to that they may be compared (assumed into comparative negligence system)
Term
Express assumption of the risk
Definition
contractual assumption (waiver) - can bar recovery
1. cannot offend public policy
2. cannot be unclear of ambiguous
3. is risk within the scope of release?
Term
Implied assumption of the risk
Definition
Risks inherent in the activity and voluntary participation
Term
Statute of limitations
Definition
bars stale claims
Traditional rule - injury occurs on date of alleged negligence
Discovery rule - statute begins running when plaintiff discovers the injury and defendant's role in causing it
Term
Immunity
Definition
Duty is waived - analyze possible immunity before duty
Term
Feres Rule
Definition
Soldier cannot sue the Federal government
Term
Types of immunity
Definition
Parental, Feres Rule, Municipal/Governmental
Term
Federal Tort Claims Act
Definition
Waives immunity where the government, if a private individual, would be liable.
Government is only liable to the extent a private person would be liable
Term
Exceptions to FTCA
Definition
Discretionary immunity, certain immunities, immunity for enforcement of a statute or regulation, immunity for dignitary or economic torts, immunity for torts arising out of assaults, battery, libel, etc.
Term
Negligent infliction of emotion distress
Definition
Analyzed under negligence standards - if plaintiff is foreseeable plaintiff
Term
Impact rule (NIED)
Definition
must be physical impact if there is no physical injury - most states have abandoned it, GA and FL still follow
Term
Zone of danger rule (NIED)
Definition
where defendant's negligence placed the plaintiff in fear of physical injury and because of that danger plaintiff suffered emotional harm
Term
Physical manifestation
Definition
objective corroboration, such as medical diagnosis, or objective physical manifestation of the fright or shock
Term
Bystander rules - Dillon v. Legg
Definition
If plaintiff is foreseeable plaintiff
1. whether plaintiff was located near the scene as contrasted to far away
2. whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance
3. whether victim and plaintiff are closely related
Term
Bystander rules - Thing v. LaChusa
Definition
1. plaintiff and victim are closely related
2. is present at the scene of the injury
3. as a result suffers serious emotional distress
Term
Prenatal harm
Definition
Mother does not owe a duty to her fetus
Term
Wrongful conception
Definition
generally medical malpractice in sterilization
Term
Wrongful birth
Definition
generally when a mother might have determined to abort the fetus where there is a medical wrong
Term
Wrongful life
Definition
inapplicable as a tort, but a child after both can make a tort claim against an individual that caused harm in utero
Term
Loss of consortium
Definition
Claim made by spouse or children of victim when there is injury that affects relationship
Term
Survival statute
Definition
Allows estate to bring a claim that the deceased would have had if he had survived
Term
Wrongful death statute
Definition
Allows surviving dependents to recover their own damages as a result of defendant's actions
Term
Strict liability
Definition
Activity (strict liability); damages, causation
Term
Causation in strict liability
Definition
1. The defendant's activity creates a reasonably foreseeable risk of harm even when reasonable care is exercised
2. The activity is not one of common usage
Term
Strict liability in products
Definition
Defective condition, damages, causation
Term
Theories of strict liability
Definition
Misrepresentation; express warranty claims, implied warranty claims, warranty as a contract claim, strict tort liability (only for physical not economic harm)
Term
Defective condition
Definition
1. more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner
2. if the benefits of the challenged design do not outweigh the risk inherent in such a design
Term
Risks of design v. benefits of design
Definition
Gravity of danger posed, foreseeability of harm, mechanical and economic foreseeability
Term
Defective design - burden of proof
Definition
There was a safer alternative; the safer alternative would have prevented or significantly reduce the risk of injury without substantially impairing the product's utility; the safer alternative was technologically and economically feasible
Term
Warning defects
Definition
Risk-utility test - when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission renders the product unsafe
Term
Manufacturing defect
Definition
Consumer expectations test - must be dangerous in a condition beyond what the user or consumer would expect. Includes packaging and warnings
Term
Design defect
Definition
Risk-utility test - foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonably alternative design and the omission of the design renders the product unsafe
Term
Defenses to products liability
Definition
1. plaintiff voluntarily assumed the risk occasioned by the defect
2. plaintiff misused the product in an unforeseeable manner
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