Term
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Definition
| An act done to cause, or substantially certain to cause, a desired result |
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Term
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Definition
| Intent is transferable across people and 5 torts: battery, assault, false imprisonment, trespass to land and chattels |
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Term
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Definition
| An intentional, harmful or offensive touching of another's person done in a rude or insolent manner. Person: includes things connected to the person. Offensive: NOT expressly or impliedly consented to; would be to an ordinary person. Damages or awareness NOT required. |
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Term
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Definition
| An intentional creation of a well-founded apprehension of an imminent harmful or offensive touching with the apparent ability to effectuate the touch. Awareness required. Words alone are NOT (need overt act). Damages NOT required. |
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Term
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Definition
| An intentional, direct restraint of a person's physical liberty w/o legal justification and where P is presently aware and has NO reasonable or apparent means of escape. Holding property, threats of force, and false arrests, denying means of escape can constitute FI. Can be indirect (through another person). Words alone NOT. Attempts to redeem oneself NOT. |
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Term
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Definition
| Conduct that is outrageous, intentional OR reckless, causes emotional distress, AND the distress is SEVERE. Applicable to 3rd parties when present, close relative, AND D knew of presence AND close relative. NOT transferable. Insults generally NOT. |
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Term
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Definition
| An intentional, volitional, unauthorized, physical entry onto the close of another. Damages NOT required. Intentional even when done by mistake. When outside bounds of consent. People AND objects count. |
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Term
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Definition
| An intentional interference w/ P's right of possession that causes damages. Damage to OR dispossession of chattel. Intentional even when done by mistake. |
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Term
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Definition
| An intentional act the SO SERIOUSLY interferes w/ P's right of possession as to require D to pay full value of the chattel. Intentional even when done by mistake. |
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Term
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Definition
| A voluntary agreement to another's proposition. Acts cannot exceed the scope. Invalid when obtained through deceit. |
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Term
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Definition
| A person has the privilege to defend against a threatened battery through use of reasonable AND proportional force. Used under a reasonable mistake still privileged. Privilege ends w/ retreat by aggressor. Cannot be invoked in retaliatory or vengeful situations. Words/provocation do not justify use. Transferable intent: hitting someone other than intended party still privileged. |
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Term
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Definition
| Self-defense privilege of using reasonable AND proportional force for protection extends to 3rd parties. If actor helps aggressor he is liable. |
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Term
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Definition
| A person is privileged to use reasonable force to defend property. Cannot do something through mechanical device that could not be done in person. Can use deadly force if necessary in the circumstances. |
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Term
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Definition
| A person is privileged to interfere w/ the property of another where the interference is reasonable AND necessary to avoid threatened injury and where the threatened injury is substantially more serious than the invasion. |
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Term
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Definition
| Act done for the public good. NO damages are recoverable. |
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Term
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Definition
| Act done solely to benefit an individual. Damages ARE recoverable. |
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Term
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Definition
| Prima facie case: duty, breach of the duty, causation (cause in fact AND proximate cause), damages. |
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Term
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Definition
| Objective standard. Hand analysis: probability, gravity of injury, burden of precautions. Cost-benefit analysis. As risk grows greater, so does the duty. |
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Term
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Definition
| A person has the duty to act as a reasonable person would in the circumstances. Professionals: must exercise the knowledge/skill of a member of the profession. Children: conform to std of a child of like age, education, intelligence, and experience EXCEPT adult std when engaged in an adult activity. |
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Term
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Definition
| Applicable when: P is w/in the protected class of people; P's injuries were due to the type of risk statute designed to avoid; AND statute must be appropriate/applicable. |
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Term
Statutory Violations:
Negligence Per Se |
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Definition
| Automatic liability for negligence when D negligent by violating statute. |
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Term
Statutory Violations:
Rebuttable Presumption (Prima Facie) |
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Definition
| Violation of a statute is a rebuttable presumption of negligence which can be overcome by providing an adequate excuse for the violation. |
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Term
| Acceptable Excuses for Rebuttable Presumption |
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Definition
| Violation reasonable b/c capacity; D neither knows or should know of occasion for compliance; unable to comply after using reasonable care; emergency NOT due to D's conduct; compliance would involve greater risk of harm than violation. |
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Term
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Definition
| Circumstantial evidence can be used. P has 3 burdens: pleading; enough evidence to avoid a directed verdict; persuading trier of fact |
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Term
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Definition
| Evidentiary shortcut for negligence. Shifts the burden of proof to D. 3 elements: accident NOT something that occurs absent negligence; D was in exclusive control over the instrumentality that caused the injury; injury NOT attributable to P's voluntary conduct. |
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Term
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Definition
| The event would not have occurred but for D's breach. If the breach is taken away and the injury still would have occurred then there is NOT cause in fact. |
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Term
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Definition
| Where separate acts of negligence combine to produce one injury, each tortfeasor is liable for entire result. When an injury is caused by multiple acts of negligence, but only one tortfeasor is known, D is still liable; in such a case the burden of proof shifts to Ds prove they were not negligent. |
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Term
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Definition
| D must take P as he finds him and may be liable for aggravating preexisting conditions. |
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Term
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Definition
| Thin skull rule applies to a fragile psyche as well. |
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Term
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Definition
| When damage is foreseeable to occur, the type of damage does NOT have to be foreseeable for liability. |
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Term
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Definition
| A person has NO duty to UNforeseeable Ps. Judge decides foreseeability. |
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Term
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Definition
| Proximate cause cuts off liability when an injury is too remote to be foreseeable. Requires directness in time and distance between the breach and injury. No liability for a highly extraordinary consequence. |
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Term
| Intervening Superseding Cause |
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Definition
| An unforeseeable AND extraordinary act which breaks the chain of causation. An intervening superseding act may NOT cut off liability where the risk of the act occurring is the very same risk which renders the actor negligent. Suicide does NOT cut off liability when it is shown that the decedent was incapable of resisting the impulse to kill self. |
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Term
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Definition
| An injured rescuer can recover from the party which caused the danger requiring the rescue. A rescuer must act reasonably. |
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Term
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Definition
| Some state do not allow recovery for professional rescuers b/c they have assumed the risk. |
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Term
Rescue Doctrine:
Rescuer Status |
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Definition
| 1. D was negligent to the person rescued and negligence caused the peril 2. peril or appearance of peril imminent 3. a reasonable person would have concluded peril existed 4. rescuer acted w/ reasonable care |
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Term
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Definition
| A legal obligation imposed on a person when actions could harm others |
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Term
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Definition
| NO duty exists to rescue unless an injury is being aggravated by D's lack of due care or from an use of an instrumentality under D's control. Duty can also rise from D's voluntary undertaking and P's detrimental reliance upon it. D has a duty to aid a person injured by D's negligence. |
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Term
| Duty to Act Arising From Special Relationships |
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Definition
| Common carrier+ passenger; innkeeper+ guest; temp. legal guardian+ his charge; teacher+ pupil; coach+ players; spouses; parents+ child; hit and run drivers. |
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Term
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Definition
| A spouse or therapist has a duty to exercise reasonable care to protect a foreseeable victim of danger that they know of through a relationship w/ the criminal/criminal-to-be. |
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Term
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Definition
| Severe emotional distress resulting from D's negligence. Reaction must be that of a normal, reasonable person. P must be present when an injury occurs and be VERY closely related to the injured party. |
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Term
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Definition
| A duty is owed to known trespasser and NOT to those unknown. Circumstantial evidence can show owner knew trespassers frequented an area and thus were known. The duty arises when the trespasser is discovered. |
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Term
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Definition
| One who enters the premises by permission for their own purposes, i.e. a social guest. |
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Term
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Definition
| Duty to warn of any hidden dangers, which are unknown to the guest, which the owner has knowledge. |
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Term
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Definition
| One who enters the premises in furtherance of the owner's business. |
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Term
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Definition
| Duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. This duty only exists while the invitee is w/in the scope of his invitation. |
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Term
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Definition
| Small amount to vindicate rights. NOT in negligence OR IIED b/c damages are required. |
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Term
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Definition
| Financial equivalent of the loss or harm. Given to restore P to pre-injury status. |
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Term
| Factors in Determining Compensatory Damages |
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Definition
| Permanency of injury; future deterioration; medical costs; any restrictions. |
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Term
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Definition
| Meant to punish and deter activity. More likely in cases involving intent, recklessness, and statutes. P has NO entitlement to them, but may be given a percentage by the court. |
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Term
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Definition
| P has a duty to mitigate damages if a reasonable person would have done so. |
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Term
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Definition
| P is barred from recovery if at all negligent. |
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Term
Comparative Negligence:
Pure |
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Definition
| P's damages are reduced in proportion to the percentage of negligence attributed to him. NY is a pure jurisdiction. |
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Term
Comparative Negligence:
50% Modified |
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Definition
| P can recover if P's negligence does not exceed D's |
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Term
Comparative Negligence:
49% Modified |
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Definition
| P can recover if P's negligence is less than D's. |
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Term
| Express Assumption of Risk |
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Definition
| Contractual (oral or written) through the use of exculpatory clauses. The clause must include the type of risk assumed and the language must include the risk. NOT an automatic bar from recovery, but evidence to do so. |
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Term
| Implied Assumption of Risk |
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Definition
| Based on actions. Requires: knowledge of the risk; appreciation of its magnitude; AND voluntarily encountering it. Used as evidence for comparative negligence. |
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Term
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Definition
| Imposition of liability w/o fault. D is liable regardless of reasonableness. Causal link still required. Applies to activities NOT substances. |
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Term
Strict Liability:
Abnormally Dangerous Activities |
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Definition
| 6 Factor Balance Test: high degree of risk; likelihood that harm will be great; inability to eliminate risk by reasonable care; NOT common usage; inappropriateness of activity to place; value to community vs. dangerous attributes |
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Term
Strict Liability:
Predetermined Abnormally Dangerous Activities |
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Definition
| Blasting; transport/storage of toxic chemicals and inflammable liquids; pile driving; crop dusting; fumigation w/ toxic gases; testing of rockets; fireworks displays; operation of plutonium production facility; operation of hazardous waste disposal sites; operation of oil wells; storage of large quantities of water/liquids. NOT aviation. |
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Term
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Definition
| Medical expenses; lost wages; loss/impairment of future earning capacity; future inflation; NOT subject to federal income taxes; NO interest. |
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Term
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Definition
| Physical pain and suffering/mental anguish; loss of function or appearance; emotional distress due to physical injury; loss of enjoyment of life; reduced life expectancy; reduction in chance of survival; los of consortium. |
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