Torts I - Definitions

There are certain rules that govern actions of medical malpractice which are (3)(4)

3. P has to prove affirmative evidence of standard medical practice, jury is not permitted to speculate as to what the required standard is, or whether D has departed therefrom 4. Unsuccessful treatment or failing to bring best results is not malpractice, it must be affirmatively proven

There are certain rules that govern actions of medical malpractice which are (5)(6)

5. Negligence on part of the physicians or surgeons by reason of his depart from the proper standard of practice must be established by expert medical testimony unless negligence is so grossly apparent 6. In the expert medical testimony, it is not enough that they would have followed a different course of treatment than followed by D, unless it appears that the course of treatment followed deviated from one of the approved methods by the standard in the community

Documents in Conversion

Generally documents cannot be converted, but information on the documents sometimes can be protected

Substantial Factor Test

Material contributing cause; individual act that could have caused the harm independently

Age limits for child negligence

Under 7 = incapable of any negligence 7-14 = may be presumed incapable, but may be proven capable over 14-17 = maybe presumed capable, but may be proven incapable

Expressed Consent

Verbal, written, or by third party, does not have to be delivered

Market Share Liability

a court can hold each manufacturer responsible for a percentage of the plaintiff's damages that is equal to the percentage of its market share

Egg Shell Plaintiff Rule

a defendant does not have the right to expect a perfect plaintiff, you take the plaintiff as you find him/her.

Extreme & Outrageous

there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.

Bullseye Palsgraf Cardozo

to whom did the defendant owe a duty and is the plaintiff in the foreseeable zone of danger

Specific Intent

is purpose or desire to invade another's legally protected interest, in the way the law forbids.

Circumstantial Evidence

it is one more inferences which may arises reasonably from a serious of proven facts

Foreseeability

If the chance of harm is so great that ordinary men would take precautions to avoid it, then failure to do so is negligence

Professional Attorney standard of care

(1) he possesses the requisite degree of learning, skill, and ability to necessary to the practice of his profession and which others similarly situated ordinarily possess (2) he will exert his best judgement in the prosecution of the the litigation entrusted to him (3) and will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his clients cause

Four Prong Analysis for Custom

1. Is there a custom? 2. Is it reasonable? 3. Is it reasonable to follow it under the circumstances? 4. Is it reasonable to fail to perform the custom under the circumstances?

There are certain rules that govern actions of medical malpractice, which are (1) (2)

1. One who is licensed to practice medicine is presumed to have ordinary skill and learning possessed by average member of the medical profession, in which they apply ordinary and reasonable care. If they do not possess prerequisite skill and learning, or if they do not apply it, it is malpractice. 2. He must have done something in his treatment of patient which is forbidden in standard good medical practice or neglected to do something which the standard requires

Four Prong Analysis for Negligence Per Se

1. Plaintiff is in the protected class of persons the legislation set to protect 2. This is kind of harm the statute sough to prevent 3. The statute must be appropriate 4. Fairness

The Rescue Doctrine

1. The D was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued 2. The peril or appearance of peril was imminent 3. A RPP would have concluded such peril of appearance of peril existed 4. The rescuer acted with reasonable care in effectuating the rescue 5. P has to show that it was foreseeable that someone might be injured in the way which P was injured

Res Ipsa Loquitur Elements

1. This type of injury does not occur absent negligence 2. Defendant was in control of the instrumentality of injury (the thing causing plaintiff's injury) 3. Plaintiff was not contributory

Child Standard of Care

A child is held to the standard of a child of the same intelligence, training, experience, age, and maturity

Driver's Standard of Care

A driver owes a duty of care to his or her passengers because it is foreseeable that they may be injured if, though inattention or otherwise, the driver involves the car he or she is operating in a collision

Disabled Person Standard of Care

A person must take the precautions which the ordinarily reasonable person would take if they were [insert disability of individual]

A Reasonable Person Under The Average Circumstances

A reasonable person considers the average circumstances and is not required to consider accidental occurrences outside of these circumstances

Negligence Per Se

A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to protect

Intrinsically Dangerous

An object sitting by itself has to be dangerous and has to be dangerous before it was used

Defense of Property

An owner or premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life of inflicts great bodily injury

Self-Defense

Anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another

Defense of Others

Anyone is privileged to use reasonable force to defend others against a threatened battery on the part of another

Continuing Trespass

Arises when one knowingly and voluntarily acts with intent to remain on land past permitted authority, absent privilege, resulting in daily damages

Enterprise Liability Theory

Arises where several defendants acting independently adhere to an industry wide standard of care where all defendants jointly control the risk of injury from their product

Transferrable Torts

Battery Assault False Imprisonment Trespass to Land Trespass to Chattels

Learned Hand Theory

Burden less than the probability of injury times its seriousness/magnitude for the harm to come to fruition. [B<PxL]

Three burdens of proof on the plaintiff

Burden of pleading Burden of producing Burden of persuading

Actual Cause

Cause in fact, sine qua non, without which, would not be

Risk-Utility Test Factors

Character and location Purpose for which they are used Probability of injury Precautions necessary to prevent such injury Relations such precautions bear to the beneficial use of the premises

Third Party IIED Elements

Close family relationship P must have been present at the scene D must know of P's presence D must intend to cause severe emotional distress Severe emotional distress must come about

Customs standard of care

Custom or industry practice may be used as evidence as what a reasonable person would do under the circumstances, but it is not conclusive

Public Policy of IIED

Develop a thicker skin and right to blow off steam

Public Policy of Recovery of Property

Do not want a breach of peace

Excused Negligence Per Se

Excused violation of a legislative enactment or an administrative regulation is not negligence unless the enactment or regulation is construed not to permit such excuse.

Negligence Formula

Duty Breach Evidence Actual Cause Proximate Cause Damage

Conversion Factors

I DIG HI Intent to assert inconsistent rights Duration/extent of dominion/control Interference both extent and duration that results Harm Inconvenience

Doctors Consent

If one is unconscious and there is no time to receive consent then there is not a need for consent to continue with life-saving treatment

Medical Malpractice

In medical malpractice, the duty of care is generally formulated as the degree of reasonable case and skilled expected members of the medical profession under same or similar circumstances

Average Reciprocity of Advantage

In the long run both will benefit from giving up the property, property is given up for greater good

Majority and Minority View on Negligence Per Se

Majority: Violation of statute gives rise of negligence per se unless excused Minority: Violation of statute is only evidence of negligence, the jury can accept or reject

Mentally Ill Standard of Care

Majority View: most courts do not make any allowance for mental illness, the D is judged by the reasonable person standard Minority View: Makes an exception for sudden onset

Recovery of Property

One may use reasonable force to recover chattel that is wrongfully taken if one is in fresh pursuit immediately after it was taken

Risk-Utility Test

One must take reasonable precautions so that risk does not outweigh the utility

Implied consent

Overt acts in with action consenting permission

Stranger in Strange Land Standard of Care

Own job to possess knowledge of the communities norms and conform behavior to standards

Private Necessity

Privilege that justifies the defendant's harming of the plaintiff's property in order to protect his own interests or those of a few private citizens

Public Policy of Conversion

Protection of Possessory Rights

Public Policy of Assault

Protection of mental integrity

Public Policy of Trespass to Land

Protection of possessory and ownership rights and keeping the peace

Public Policy of trespass to chattels

Protection of possessory rights

Public Policy of Nuisance

Protection of property and ownership rights and keeping the peace

Apparent Consent

That which a reasonable person would infer from custom and usage or plaintiff's conduct.

Manner of Conversion

RAM RUDD Receiving Acquiring Misdelivering Refuse to surrender Using Damaging/Altering Disposing of it

Emergency Standard of Care

Reasonable person in an emergency, not of his or her making

Public Policy of Battery

Right to bodily integrity

Public Policy of False Imprisonment

Right to dignity and freedom of bodily movement

Bullseye Wagon Mound #1

Saying it cant be that just some but the precise kind of harm must be foreseeable. This is strict foreseeability, the kind of harm has to be precisely foreseeable.

Public Policy of Self-Defense

Self-Preservation

Informed Consent v. Battery

TAC Treatment Available alternative Collateral Rules

Cost v Benefit Analysis

The comparison of the costs and benefits to society of providing a public good

Reasonable Prudent Person standard of care

The degree of care a reasonable and prudent person would exercise under the circumstances with knowledge of an ordinary person and what is discoverable at surface level.

Reasonable Belief [Self-Defense]

The privilege exists when the defendant reasonable believes that the force is necessary to protect himself against a battery even though there is in fact no necessity

Discipline

The privilege of parents to discipline their children also covers those who are temporarily responsible for them, the amount of force that is acceptable may be less than what would be acceptable for a parent to use

Injury to Third Party [Self-Defense]

The privilege of self-defense is carried over, and the defendant is held not to be liable to third party in the absence of some negligence towards him

Merchant or Shopkeepers Privilege [Recovery of Property]

The shopkeeper has the privilege to detain someone who they reasonably believes has committed theft, for a reasonable amount of time

Professional Standard of Care

The standard is expressed in objective form, the knowledge, training, and skill of an ordinary member of that profession

Res Ipsa Loquitur

The thing speaks for itself, the mere fact of the accident having occurred may give rise to evidence of negligence

Directly

The touching element of battery may be accomplished by touching something so intimately connected with the person so as to be a part of that person. It is a direct touching.

Public Policy of Defense of Property

The value of human life and limb, not only to the individual concerned but also to society's outweighs the interests of a possessor of land

Analysis for Excused Negligence Per Se

The violation is excused when: a) Violation was reasonable b) Neither knows or should know of occasion of compliance c) Unable after reasonable diligence or care to comply d) Is confronted by an emergency not due to his own conduct e) Compliance would involve a greater risk of harm to the after or to others

Public Policy of Cost v Benefit Analysis

To great of a burden to spend on old structures rather than new ones

Retaliation [Self-Defense]

When the battery is no longer threatened, the privilege terminated; and thereafter the original victim himself becomes liable for battery

Rule of two innocent parties

Where one of two innocent parties suffer a loss it should be borne by the one who occasioned it

Independent Concurrent Cause

Where two causes combine to cause damages, and either alone could've caused the harm, then both sources, assuming both are negligent, are liable as long as each is a substantial factor in bringing about the harm.

Negligence

arises when one falls below the standard of care set by law to protect others from unreasonable risk of harm.

Ejectment

action to remove possessor of land, remove person in wrongful possession.

Act

an external manifestation of the actors will, and does not include any of its results, even the most direct, immediate, and intended.

Proximate Cause

any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred

Constructive Notice

arises from presumption in the law based on facts and circumstances, of which a defendant had a duty to take notice. The law presumes one has acquired such notice; therefore, one is imputed with notice.

Breach

arises when one fails to conform to the regular standards.

Trespass to Chattels

arises when one intentionally alters or changes the value of someone else's chattel, absent privilege. 1. The chattel is impaired as to its condition, quality or value, or 2. the possessor is deprived of the use of the chattel for a substantials time, or 2. bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest

Intentional Infliction of Emotional Distress

arises when one voluntarily acts by intentional or reckless, by extreme and outrageous conduct that causes severe emotional distress, absent privilege.

Assault

arises when one voluntarily acts intending to cause and does cause another apprehension of imminent harmful or offensive contact, with apparent ability to carry it out, absent privilege.

Battery

arises when one voluntarily acts with intent to cause and does cause harmful or offensive contact or apprehension of such contact, whether directly or indirectly, and such contact results, absent privilege.

Trespass to Land

arises when one voluntarily acts with intent to enter and does enter the land in possession of another, one commits trespass, absent privilege.

Conversion

arises when one voluntarily acts with intent to exercise dominion and control over chattel, that so seriously interferes with the other's right to control it that the actor may be justly required to pay full value of the chattel, absent privilege.

False Imprisonment

arises when one voluntarily acts with intent to, and does restrain another to a bounded area by force or threat of force where person, aware or harmed, absent privilege.

Apprehension

awareness or seizure of the mind (does not have to be fear).

Duty

based on the standard of care that requires me to act reasonably under the same or similar circumstances.

Voluntary

bodily movement performed consciously and as result of effort and determination.

Direct Evidence

by the very fact, negligence can be established

Bullseye Polemis

court saying it does not matter if you can foresee the extent of the harm. As long as your actions were the direct cause of the plaintiff's harm without sufficient break (intervening cause that supersedes the defendant's negligence) in the chain of causation. Because your action started it, you are responsible for the end of it.

Reckless

deliberate disregard of a high degree of probability that emotional distress will result.

Severity

distress so severe that a reasonable person would not be able to endure it.

Provocation [Self-Defense]

does not justify battery buy may limit liability to actual damages

Nuisance

intentional substantially unreasonable interference with another's use and enjoyment of land, absent privilege.

Superseding Cause

intervening cause which is so substantially responsible for the ultimate injury, then it serves to cut off the liability of the preceding actors regardless whether prior negligent were or were not substantial factor in bringing about the

Intervening Cause

is a cause which comes into active operation, in producing the result after the negligence of the initial defendant

Transferred Intent

one intends to commit one tort and commits another.

Child Standard Exception

one is held to an adult standard of care if one is engaging in an adult or inherently dangerous activity

Bullseye Wagon Mound #2

one is liable for both reasonably foreseeable harm and remotely foreseeable harm. As long as B < P x L then the defendant had a responsibility to act

Irresistible Impulse

one may retain the power to intend and the power to know however one may have an impulse to act and as a result of that impulse is incapable of involuntary conduct

Agent

person or thing that acts on behalf of another.

Public Necessity

privilege that justifies the defendant's harming of the plaintiff's property in an effort to prevent great harm to the public as a whole or to a substantial number of persons

But-For Test

refers to a cause or a factor without which the event would not have occurred. If not for the defendant's negligence the harm would have not occurred

Bullseye Palsgraf Andrews Dissenting

rejects zone of danger as the definitive test and instead says that a defendant owes a duty to society at large and is responsible not only to those persons he expects to harm but to those people he actually harms. As long as there is no efficient break in the chain of causation (no superseding cause) then the defendant is liable for all consequences of his actions.

Informed Consent

requires that a physician or surgeon to disclose to the patient the risks of proposed medical or surgical treatment. If she does not do so, she may be liable when injury results from the treatment

General Intent

setting in motion a chain of events knowing with substantial certainty, outcome is likely to occur.

Offensive

that which a reasonable person finds objectionable

Harmful

that which causes injury.

Intervening Criminal Act

the intentional or criminal act of third person cuts off liability of the defendant in most cases

Amount of Force [Self-Defense]

the privilege is limited to the use of force that is or reasonably appears to be necessary for protection against threatened battery, differences in age, size, and relative strength are proper considerations

Defendant Concurrent Cause

two or more negligent causes where neither alone could have caused the harm, but they combine to cause one indivisible harm, both are liable and both create one but-for cause

Alternative Liability Theory

two or more negligent defendant but only one could have caused the harm and based on the surrounding circumstances it is impossible for the plaintiff to identify the wrongdoer. Once a plaintiff proves two negligent parties the burden shifts to each defendant to prove he did not cause the harm

Indirectly

using an agent.

Quiet Title Action

where plaintiff is on property of another, claims to own it, plaintiff asked the court to determine title and rest title in the property person.