Term
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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 |
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Term
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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 |
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Term
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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 |
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Definition
| Can be a physical barrier or threat of force |
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Term
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Definition
| Limited range of movement |
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Definition
| Contact that would offend a reasonable sense of personal dignity |
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Term
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Definition
| Voluntary act; with intent to enter; entry occurs; land of another; entry occurs |
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Term
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Definition
| awareness or belief that battery is imminent without significant delay |
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Term
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Definition
| Voluntary act; with intent to interfere; with chattel property; of another |
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Term
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Definition
| tangible, moveable personal property |
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Term
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Definition
| Temporarily deprive, or use or intermeddle with property that causes damage |
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Term
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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 |
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Term
| Intentional infliction of emotional distress |
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Definition
| Extreme and outrageous conduct; with intent to cause severe emotional distress or recklessly cause severe emotional distress; severe emotional distress occurs |
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Term
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Definition
| extent and duration of control (think civil version of embezzlement - conversion to own use) |
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Term
| Extreme and outrageous conduct |
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Definition
| determined by context of relationship, severity or regularity of conduct, knowledge of plaintiff's vulnerability |
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Term
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Definition
| deliberate disregard of a high probability that severe emotional distress will occur |
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Term
| Third person claims for IIED |
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Definition
| third party must be present, either a family member or suffers bodily harm as a result |
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Term
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Definition
| intend one tort and cause another, not applicable to IIED |
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Term
| Privilege of self-defense |
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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 |
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Term
| Can you protect property with deadly force? |
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Definition
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Term
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Definition
| reasonable force allowed to protect against imminent threat of harm to other individual(s) |
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Term
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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 |
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Term
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Definition
| apparent consent; consent requires an understanding; consent is not a defense under duress or incapacitation; cannot consent to an illegal act |
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Term
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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 |
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Term
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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 |
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Term
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Definition
| duty, breach, causation (actual and proximate), damages |
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Term
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Definition
| legal obligation that if it exists is measured by a standard of care |
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Term
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Definition
| care a reasonable person would exercise under same or similar circumstances to avoid or minimize reasonably foreseeable risks of harm to others |
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Term
| Intoxication standard of care |
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Definition
| same as a sober individual |
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Term
| Infirmity standard of care |
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Definition
| person with a like infirmity |
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Term
| Superior knowledge standard of care |
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Definition
| exercise superior qualities that he has in a manner reasonable under the circumstances |
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Term
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Definition
| reasonably careful child of the same age in similar circumstances; if engaged in adult activities, adult standard R/P standard of care applies |
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Term
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Definition
| Special relationship, contract, case law, or other legally recognized entity, voluntary undertaking, creation of the risk |
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Term
| Duty of carriers/host drivers |
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Definition
| Must exercise more than ordinary care, standard of care stops just short of ensuring safety |
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Term
| Landowner unaware of trespasser |
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Definition
| duty to refrain from wanton/willful conduct |
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Term
| Landowner aware if trespasser |
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Definition
| reasonable person standard of care |
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Term
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Definition
| attractive nuisance doctrine |
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Term
| Rule 1 of nuisance doctrine |
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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 |
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Term
| Rule 2 of attractive nuisance |
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Definition
| The place where the condition exists is one which which the possessor knows or has reason to know children are likely to trespass |
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Term
| Rule 3 of attractive nuisance |
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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 |
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Term
| Rule 4 of attractive nuisance |
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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 |
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Term
| Rule 5 of attractive nuisance |
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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 |
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Term
| Rule 6 of attractive nuisance |
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Definition
| The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children |
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Term
| Rule 7 of attractive nuisance |
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Definition
| Jurisdictions differ on comparative negligence of children |
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Term
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Definition
| Someone on the property at the invitation of the owner - business invitee and public invitee - R/P standard of care in all circumstances |
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Term
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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 |
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Term
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Definition
| Eliminates duty but the plaintiff is negligent in failing to avoid a hazard that is known and appreciated |
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Term
| Duty to protect from third persons |
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Definition
| Only applicable if the harm is foreseeable and there is a special relationship between defendant and third party (custodial relationship + foreseeability) |
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Term
| Duty created by special relationship |
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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 |
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Term
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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 |
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Term
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Definition
| gratuitous promise + no action = no duty |
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Term
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Definition
| gratuitous promise +reliance + no action = no duty |
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Term
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Definition
| Failure to exercise reasonable person standard of care |
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Term
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Definition
| Burden, probability, injury (BPL)
1. BPL = no negligence (met reasonable s/c) |
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Term
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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 |
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Term
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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 |
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Term
| Proportional liability system |
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Definition
| Defendant is only responsible for share of fault |
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Term
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Definition
| Can enforce entire judgment against any defendant |
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Term
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Definition
| Each defendant pays only their share |
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Term
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Definition
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Term
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Definition
| But for test - but for defendant's negligence, plaintiff would not have been harmed |
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Term
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Definition
separate injuries - each defendant liable for each injury
one injury - use fault apportionment |
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Term
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Definition
| Applies when there are multiple causes of injury, negligent defendant's "but for" test fails |
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Term
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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 |
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Term
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Definition
| legal cause - scope of foreseeable risk |
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Term
| Rules for proximate cause |
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Definition
Is the plaintiff a foreseeable plaintiff?
Is the harm suffered within the scope of foreseeable risks created by the defendant's negligence? |
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Term
| Test for foreseeable plaintiff |
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Definition
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Term
| Test for scope of foreseeable risks |
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Definition
Extent of harm - if harm is foreseeable, defendant is liable
Intervening/superseding causation |
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Term
| Intervening/superseding causation |
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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 |
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Term
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Definition
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Term
| Duty in medical malpractice |
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Definition
| Established by a doctor/patient relationship |
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Term
| Standard of care in medical malpractice |
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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 |
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Term
| Standard of care encompasses ? |
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Definition
| Locality, advances in the profession, availability of the facility, whether the doctor is a specialist of general practitioner |
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Term
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Definition
| Held to the standards of their specialty |
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Term
| Res Ipsa in medical malpractice |
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Definition
| Can be used along with expert testimony where no way injury could have occurred outside negligence |
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Term
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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) |
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Term
| Causation in informed consent |
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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 |
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Term
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Definition
| When plaintiff engages in negligence that contributes to the plaintiff's injury |
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Term
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Definition
| comparing the fault of the plaintiff and defendant to determine percentage of liability of each |
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Term
| Comparative fault does not factor when ? |
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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 |
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Term
| Types of comparative fault |
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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 |
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Term
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Definition
| Aware of the risk; understand the risk; voluntarily assume the risk |
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Term
| Primary assumption of the risk |
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Definition
| A defendant owes no duty to protect the plaintiff from harm |
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Term
| Secondary assumption of the risk |
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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) |
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Term
| Express assumption of the risk |
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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? |
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Term
| Implied assumption of the risk |
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Definition
| Risks inherent in the activity and voluntary participation |
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Term
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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 |
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Term
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Definition
| Duty is waived - analyze possible immunity before duty |
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Term
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Definition
| Soldier cannot sue the Federal government |
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Term
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Definition
| Parental, Feres Rule, Municipal/Governmental |
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Term
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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 |
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Term
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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. |
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Term
| Negligent infliction of emotion distress |
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Definition
| Analyzed under negligence standards - if plaintiff is foreseeable plaintiff |
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Term
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Definition
| must be physical impact if there is no physical injury - most states have abandoned it, GA and FL still follow |
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Term
| Zone of danger rule (NIED) |
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Definition
| where defendant's negligence placed the plaintiff in fear of physical injury and because of that danger plaintiff suffered emotional harm |
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Term
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Definition
| objective corroboration, such as medical diagnosis, or objective physical manifestation of the fright or shock |
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Term
| Bystander rules - Dillon v. Legg |
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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 |
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Term
| Bystander rules - Thing v. LaChusa |
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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 |
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Term
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Definition
| Mother does not owe a duty to her fetus |
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Term
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Definition
| generally medical malpractice in sterilization |
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Term
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Definition
| generally when a mother might have determined to abort the fetus where there is a medical wrong |
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Term
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Definition
| inapplicable as a tort, but a child after both can make a tort claim against an individual that caused harm in utero |
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Term
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Definition
| Claim made by spouse or children of victim when there is injury that affects relationship |
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Term
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Definition
| Allows estate to bring a claim that the deceased would have had if he had survived |
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Term
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Definition
| Allows surviving dependents to recover their own damages as a result of defendant's actions |
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Term
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Definition
| Activity (strict liability); damages, causation |
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Term
| Causation in strict liability |
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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 |
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Term
| Strict liability in products |
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Definition
| Defective condition, damages, causation |
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Term
| Theories of strict liability |
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Definition
| Misrepresentation; express warranty claims, implied warranty claims, warranty as a contract claim, strict tort liability (only for physical not economic harm) |
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Term
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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 |
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Term
| Risks of design v. benefits of design |
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Definition
| Gravity of danger posed, foreseeability of harm, mechanical and economic foreseeability |
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Term
| Defective design - burden of proof |
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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 |
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Term
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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 |
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Term
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Definition
| Consumer expectations test - must be dangerous in a condition beyond what the user or consumer would expect. Includes packaging and warnings |
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Term
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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 |
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Term
| Defenses to products liability |
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Definition
1. plaintiff voluntarily assumed the risk occasioned by the defect
2. plaintiff misused the product in an unforeseeable manner |
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