Tort Law

What does "res ipsa loquitur" mean?

(helps plaintiffs who are having a hard time proving HOW the defendant acted carelessly) - a principle that helps the plaintiff prove negligence because the accident is so crazy that it speaks for itself - because of this crazy accident (fridge falling) the jury can presume that the defendant must have been careless

What is Culpable negligence?

- a higher degree of negligence, often gross negligence, its a reckless action that shows a blatant disregard for the safety and general well being of the public

What must a plaintiff prove to win a negligence case?

- duty - breach - causation - damages

how are economic torts different from intentional torts?

- economic torts result from business transactions that cause economic losses , rather than physical harm

What is circumstantial evidence?

- evidence that is indirect - ex: no one saw anyone leave the building, but muddy foot prints say otherwise

Attractive Nuisance

- extra duty on owner or occupier when the known trespassers are children - when they know or should be aware of child trespassers, they have a duty to remediate a dangerous artifical condition on the land capable of causing death, or serious injury - so long as condition can be remedied w/ out imposing unreasonable burden on owner

When is actual cause found in a case?

- if the connection btw the defendant's act and the plaintiff's injuries passes the "but for" test - if the injury would have not occurred , "BUT FOR" the defendant's conduct the event did occur, the defendant is the cause of the injury. ----this is not enough for liability. there must be proximate cause too.

What is the difference between licensee and a invitee?

- invitee is typically paying to be on your land. You owe a higher duty to them than a licensee - an invitee is conducting business of some sort. a liscensee is not. (think: they are licensed to be on your property)

What must be proven in order a crime to be charged as an intentional infliction of emotional distress?

- must be outrageous or extreme - must cause severe emotional pain

how does an activity qualify as ultrahazordous or abnormally dangerous for strict liability?

- not so much about the characteristics of an activity - more about a policy judgement that ppl who undertake certain activities must be responsible for any harm that results

What are the two types of comparative negligence? (+describe them)

- pure comparative negligence: plaintiff damages are totaled and reduced to reflect their contribution to injury. - modified comparative negligence: plaintiff will not recover if the plaintiff is equally or more responsible for their injury

What is the restatement of laws of torts?

- six requirements that must be met to win strict liability over the company supplying the product 1. Product must be defective when the defendant sells it 2. defendant must normally sell or distribute this product 3. product must be unreasonably dangerous because of condition 4. plaintiff must incur physical harm to self or property 5. deffective condition must be the proximate cause of the injury or damage 6. good must not be changed from the time it was sold to the time injury happened

________ animals are animals that are not domesticated ________ animals are those who have been bred to be helpful to humans

- wild animals - domesticated animals (dogs, cats, cows, pigs, chickens)

How are torts and crimes different?

- with a crime (Ex:murder) society punishes the the murderer, but doesn't compensate the victim - with torts it would view death as a private wrong and victim would be compensated

What are the 4 elements of tort of negligence? (what does the plaintiff have to prove to prove negligence)

1. Needs to demonstrate that defendant owed plaintiff a duty. Injury must be forseeaable 2. Must be a breach of duty (defendant failed to act as a reasonable person) 3. Must demonstrate the defendant caused the plaintiff's injuries. (causation in-fact and proximate causation both proven) 4. Must show injuries

in order to claim res ipsa loquitor... what must the plaintiff prove?

1. accident wouldn't have happened unless someone acted carelessly 2. the defendant was in control of whatever caused the accident

In tort theory, there are 2 kinds of causes that a plaintiff must prove: ___________ and ____________

1. actual cause 2. proximate cause

What are the purposes of tort law?

1. compensate victim for any losses 2. deter others from repeating the same behavior

What are the 4 elements of tort of negligence? (what needs to happen for it to be considered negligence)

1. duty of care the defendant had 2. breach of duty of care 3. connection btw case and injury (causation)--- did the breach of duty of care cause the plaintiffs injury? 4. actual damage or loss

what are the 3 kinds of torts?

1. intentional tort 2. negligent tort 3. strict liability tort

What are the 3 categories of tort?

1. intentional tort (battery) 2. negligence (slip and fall) 3. strict liability (activities inherently dangerous like TNT)

What are the 3 categories of potential product defects?

1. manufacturing defects 2. design defects 3. warning defects

In the US, to win a negligence lawsuit, what must the plaintiff prove?

1. the defendant owed the plaintiff a duty to be reasonably careful 2. the defendant breached her duty of care

What are the 3 subcategories that fall under the animal's rule for strict liability?

1. wild animals 2. (trespassing) livestock 4. ultrahazordous or abnormally dangerous

What doctrine protects children who trespass on another's property due to the presence of something such as an unfenced swimming pool? Attractive nuisance Assumption of the risk Res ipsa loquitor Contributory negligence

Attractive nuisance

T/F: you can not be sued for a tort against property

FALSE

T/F: tort of battery does not require touching, assault does

FALSE, assault does not require touching, battery requires touching

T/F: it is not possible to have a battery without an assault

FALSE- it is

T/F: the fear that the plaintiff may be injured in the future, is enough for a tort case

FALSE- plaintiff must allege and prove she was injured

T/F: strict liability applies to commercial and private sellers

FALSE- strict liability only applies to commercial sellers (think Craigslist car)

T/F: in order for an activity to qualify as abnormally dangerous, it needs to present a danger that is not normal.

FALSE- that is not correct

t/f: in a civil case, the tort victim or his family does not bring the action, the state does

FALSE- the tort victim or the family brings the action

T/F: most states believe that words alone are good enough to believe you are about to be touched

FALSE- they do not believe words alone are good enough

Does strict liability torts require intent or carelessness?

NEITHER!

Soot, smoke, noise, odor, or even a flying arrow can become the basis for trespass TRUE OR FALSE?

TRUE

T/F: A tort is a civil wrong, other than a breach of contract

TRUE

T/F: An animal can be tamed and still be wild.

TRUE

T/F: In strict liability: if i do the activity and i am harmed, the party that supplied me with the activity is held liable.

TRUE

T/F: Intentional torts require some level of intent to be committed, such as the intent to batter someone

TRUE

T/F: The judgment against a defendant in a civil tort suit is usually expressed in monetary terms, not in terms of prison times or fines, and is the legal system's way of trying to make up for the victim's loss.

TRUE

T/F: Unlike criminal law, tort law does not need a specific intent. Tort law is also less concerned about the reasons for the defendants actions.

TRUE

T/F: W/ intentional torts you don't need to cause to intend the harm that they sue you for, you just need to intend to affect the other person and harm needs to result from your actions.

TRUE

T/F: a professional (lawyer, doctor, etc) is held to a higher standard of care then a normal person.

TRUE

T/F: a statement is not defamatory unless it is false

TRUE

T/F: a threat to detain personal property can be considered false imprisonment.

TRUE

T/F: an animal can be considered wild, but also kept as a pet

TRUE

T/F: if an animal has not been bred to be helpful to humans, it is considered to be wild

TRUE

T/F: in strict product liability, any retailer, wholesaler, or manufacturer that sells an unreasonably dangerous product is strictly liable.

TRUE

T/F: when the owner has some knowledge of some propensity of the animal to cause harm, strict liability (under common law) will apply

TRUE

t/f: it can be considered false imprisonment if the only thing keeping you from leaving is the threat of harm in the future

TRUE

A _________ is when YOU sue someone else for doing something to you.

Tort

T/F: Negligence torts do not require intent to harm, but require some level of carelessness or neglect.

True

True or False Res ipsa loquitur can be applied in cases of negligence where the evidence of causation is inaccessible to the plaintiff. True False

True

Is negligence an Intentional tort OR Unintentional tort

Unintentional tort

force majeure means?

act of god

What are the things that come with absolute responsibility for safety (strict liability)?

animals, ultrahazordous or abnormally dangerous activities, and products liability

During school lunch, Pete decided to pull another prank. As Kathy was attempting to sit down with a tray of food, Pete pulled Kathy's chair from beneath her. Kathy fell to the floor. Which tort is most applicable under these facts? a. Intentional infliction of emotional distress b. Battery c. Negligent infliction of emotional distress d. Assault

b

What is a tort? a. a crime b. a private wrong c. a breach of contract d. an offense against the state

b

During school lunch, Pete decided to pull another prank. As Kathy was attempting to sit down with a tray of food, Pete pulled Kathy's chair from beneath her. Kathy fell to the floor. Which tort is most applicable under these facts? Intentional infliction of emotional distress Battery Negligent infliction of emotional distress Assault

battery

the intentional infliction of harmful or offensive contact

battery

what is the difference between battery and assault?

battery is harmful or offensive contact, assault is giving someone the belief that you are about to make harmful or offensive contact with them

name some of the intentional torts

battery, assault, conversion, intentional infliction of emotional distress

Tort of conversion or trespass? a. you gave your roomate permission to borrow your car for the day, and they stole your car instead b. an employer refuses to pay you for work

both are conversion!

What are the main excuses that will completely or partially excuse the negligence of the defendant?

contributory negligence or comparitive negligence, assumption of risk, act of god

The intentional commission of an act that a reasonable person knows would cause injury to another is known as

culpable negligence

what are punitive damage?

damages exceeding simple compensation---- - punitive damages don't set out to pay you back. they are meant to punish the defendant the defendant is paying the person for damages (maybe you damaged their name)----it doesn't have a specific amt to it. ex: you messed up my car. my car is worth 20,000. Pay me 20,000. That is compensatory damage. ex: you really hurt my feelings. court orders Tim to pay Chelsey $1,000.

injury to a person's good name or reputation

defamation

negligence per se

doctrine can be very helpful to plaintiffs because it can function as a free pass on the element of breach of the duty of care. If the evidence shows that the defendant failed to comply with the statute or regulation, and if the negligence per se doctrine applies, then there will be no need to make an elaborate argument to the jury about the conduct being unreasonable.

What process bring animals out of the realm of strict liability?

domestication

confining someone against their will is called?

false imprisonment

T/F: trespassing cats and dogs give rise to strict liability under common law

false, they do not give rise to strict liability under common law

What is proximate cause?

in order for there to be liability on the defendant's behalf, the injury to the plaintiff must be forseable (not too remote) , basically the defendant had to have seen it coming def: a cause that is not to remote or unforseeable

After serving 10 years in prison, David was released on grounds of false imprisonment. David's situation represents an example of which type of tort? Negligence Intentional Strict liability Conversion

intentional

Name the type of tort: intends the consequences of his or her act or knew with substantial certainty that certain consequences would result from the act.

intentional tort

Based on the scenario, which type of landowner liability did Heather have to Bob? Heather hires Bob to fix the tile in her bathroom. The tile has been falling off in big chunks, but she had not yet told Bob that. When Bob enters the bathroom, he is hit on the head by falling tile. Heather is found liable. This an example of?

invitee

What is the defense of necessity?

it allows a defendant in emergencies, to escape tort liability for committing an intentional tort against an innocent person.

what does the doctrine of transferred intent say?

it allows the intent required by one intentional tort claim to be satisfied by showing the defendant's intent to commit a different intentional tort. A defendant intends to hit Bart with a baseball, but errantly throws wide left so that the ball whizzes right by Ashanti's head. The tortious intent to inflict a battery on Bart can be "transferred" to Ashanti for an assault claim. In this case, the intent transfers both from battery to assault and from Bart to Ashanti.

what is attempted battery?

it is attempting physical contact and failing

people on private property with the consent of the owner or occupier are called ___________

licensees

Pecuniary damages are?

losses that can be remedied in monetary terms

Professional negligence by these professionals is known as ....

malpractice

What does negligence per se mean?

means that the act is considered negligence through the violation of statutes and regulations that causes harm to the defendant ex: city ordinance requires dog to be leashed in park. an injury caused by an unleashed dog in the park - may mean the owner is automatically liable via negligence per se

What does contributory or comparative negligence mean?

means the plaintiff was also negligent

what are chattels?

moveable property (ex:car)

The center stage cause of action in torts is __________.

negligence

____________ refers to conduct that falls below the standards established by law for the protection of others against unreasonable risk of harm.

negligence

the most common tort claim is?

negligence

define chattel

personal property that is moveable

when the tort is committed to help one or a few people.

private necessity

is when the tort is committed in order to protect the public as a whole from some danger. The defense of public necessity is a total defense, voiding all liability.

public necessity

what is the difference between slander and libel?

slander- spoken word libel- published in written form

what is conversion?

taking property permanently- you are converting property from the owners to your own (taking a boat)------------to get in trouble you must take the property and not return it, or return it with significant damages

what does respondeat superior mean?

the higher authority must respond to claims brought against one of its agents

In the absence of contracts, ________ law holds individuals legally accountable for the consequences of their actions.

tort

Kathy mistakenly parked her car in the driveway of her neighbor, Pete. The following morning, he found that he could not pull his car out of his garage and into the street. Pete knocked on Kathy's door for an hour, but she never answered. What tortuous activity occurred? Conversion Invasion of privacy False imprisonment Trespass

trespass

T/F: For intentional torts, the plaintiff must show that the defendant intended harm but the harm does not need to be directed at a particular person and doesn't need to be malicious as long as the harm is a direct consequence of the defendant's actions.

true

when does the tort of conversion take place?

when someone takes your property permanently

when can someone sue for false imprisonment?

when there are no reasonable means of escape