Torts Terminology Tilley 2023
Unreasonable assumption of risk
1. Contributory negligence: Careless failure to recognize risk. 2. Secondary Assumption of risk 2: Conscious taking of unreasonable risk. In comparative negligence state, Contributory negligence and secondary assumption of risk 2 are treated the same way, in a comparative fault matter.
Accidental Confinement
A confinement arising out of a misunderstanding that ordinarily is not actionable as false imprisonment. If it results in bodily injury, the person who causes the confinement may be liable in negligence instead.
Defense of Property
A defendant may use this defense against a plaintiff APPROPRIATELY OR PROPORTIONALLY in defending their property or their chattels from temporary capture, burglary, or trespassing.
Defense of Others
A defendant may use this defense against a plaintiff PROPORTIONALLY if the defendant actually and reasonably believes that injuring another is necessary to avoid an imminent injury of the requisite type to one or more third parties.
Self-Defense
A defendant may use this defense against a plaintiff by REASONABLY AND PROPORTIONALLY protecting their bodily integrity under the actual and reasonable belief that is it necessary to injure another to avoid imminent injuries to themselves.
Consent
A defendant may use this defense against a plaintiff by saying a plaintiff cannot prevail on her tort claim because she has assented, under appropriate conditions, to endure a bodily contact, or an apprehension of contact, or a confinement, that would otherwise be tortious.
Res Ipsa Loquitor
A defendant must have had exclusive control of the thing causing the injury and the accident is of such a nature that it ordinarily would not occur in the absence of negligence by the defendant. The stretching of this doctrine is what created the strict liability for products. There may be no provable fault, but they make defendants pay.
Investigative Detention
A defense for false imprisonment: a seizure of a person with the limited scope of conducting an investigation and for which an officer must have reasonable suspicion. A person must not be detained longer than is necessary to investigate the suspicious circumstances and in no case longer than 60 minutes. If no probable cause is found, the person shall be immediately released.
Inter-Familial Immunity
A defense in which, historically, wives could not sue their husbands because legally once they were married, they became the same legal entity as their husbands so they could not sue on their own behalf/children could not sue their parents. This immunity is starting to decline with more enhanced appreciation of social realities.
Charitable Immunity
A defense that shields a charitable institution from liability for any torts committed on its property or by its employees.
Risk Utility test
A design defect exists when the risk of harm from a design outweighs the utility of that design. There are seven factors identitied as part of this test: 1. the product's utility to the public as a whole, 2. its utility to the individual user, 3. the likelihood that the product will cause injury, 4. the availability of a safer design, 5. the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, 6. the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and 7. the manufacturer's ability to spread the cost of any safety-related design changes.
Vicarious Liability
A form of indirect liability that establishes legal responsibility for another person's breach of their duty of care.
Respondent Superior
A legal doctrine that underpins vicarious liability: employers are vicariously liable in this way for torts committed by their workers within the scope of employment even if the employer is not personally negligent. Torts committed while workers are on detour are subject to this. Torts committed while workers are on frolic are not.
manufacturing defect
A particular product has this defect if it diverges from the manufacturer's own specifications for the product. The defect will be charged to the manufacturer so long as it emerges while the product is in its control or possession. This type of defect applies to an individual issue with the product.
Shopkeeper's Privilege
A person who reasonably believes another person has stolen, or is attempting to steal property, may detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property. There are three components to this defense to false imprisonment: 1. a reasonable belief a person has stolen or is attempting to steal; 2. detention for a reasonable time; and 3. detention in a reasonable manner.
Person, Reputation, or Property
A plaintiff can demonstrate a detention affected by a threat by showing that the threat was such that it would inspire in the threatened person a just fear of injury to what?
Failure to Warn/Instruct
A product has this defect when safety requires that the product be sold with a warning, but the product is sold without a warning (or without an adequate warning).
Contributory Negligence
A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is even partly the plaintiff's own fault.
Qualified Duty
Courts often resist the embrace of a general or unqualified duty of reasonable care. There are three well-established categories. They involve, respectively, cases in which the defendant is alleged to have: 1. unreasonably failed to provide assistance or protection to the plaintiff (affirmative duty or duty-to-rescue cases); permitted or maintained unreasonably dangerous 2. conditions on property in his or her possession (premises liability cases); or 3. acted without reasonable care for the plaintiff's economic prospects (pure economic loss cases).
No.
Did A owe a duty for pure economic loss? In Aikens v. Debow, Person A was driving a truck loaded too high and hit an overpass, which was the main public highway allowing for the most direct access to Person B's business. It was foreseeable that hitting the overpass would cause damage, but was it foreseeable that B's business would suffer a loss?
Yes
Did Taco Bell have a duty to rescue? In Baker v. Fenneman & Brown Properties, LLC, Person A had seizures at the Taco Bell and seriously injured himself. Taco Bell employees did nothing to render assistance to him in between the incident and him going to the hospital. Does a customer-employee relationship imply a duty to assist and care?
Yes.
Do common carriers have a duty to rescue?
No
Do courts applying modern comparative fault law have generally recognized plaintiff fault as a defense to claims for assault, battery, false imprisonment, and other wrongs involving intentional injurings?
No
Does B have a duty to rescue here? In Osterlind v. Hill, Person A rented a canoe from Person B while drunk and drowned in the lake after it capsized. B clearly heard cries of help. B was sued for negligence. Did B violate a legal duty in renting a canoe to a drunk A?
No
Does an industry's general custom dictate the standard of care for that industry?
No. Only in special circumstances, yes.
Does conduct that bars a person from traveling along a particular route, or to a particular destination count as confinement?
Yes
Does intangible property such as electronic data apply to the common law of conversion?
No
Does the rule of contributory negligence extend to claims alleging recklessness or intentional wrongdoing on the part of the defendant?
Yes
Does throwing something onto someone else's land count as trespassing?
Foreseeability
Duty is assumed to be universal except for no duty scenarios identified by the courts (rescue, economic loss, NIED, premises). But what creates a duty in those normally no-duty scenarios?
The Doctrine of Extended Personality
For battery, anything which is closely connected to the plaintiff's person is regarded as an extension of the physical person itself, i.e. a sleeve or a hat or a shopping cart.
Experts
How is professional standard measured in court?
5
How many US jurisdictions today still use contributory negligence rules?
Scope of the Risk
How should proximate cause be determined here? In Thompson v. Kaczinski, Person A disassembled a trampoline and placed the parts near the road, and a storm came and scattered them overnight and a car crashed into one of the pieces.
Yes
If a defendant could not reasonably foresee the exact intervening dynamic, but could foresee the end result, is D's breach still a proximate cause?
Implied Warranty of Utility
If a product is put in the chain of commerce, it contains within this implied warranty that the product is going to work properly.
Yes
If an employee alleges that the employer engaged in reckless or intentional behavior, can an employe recover from workers compensation AND sue?
Yes
If children are known to come onto the land, does an owner have an enhance duty of care to child trespassers?
Superseding cause
If defendant breached, but another act or force came into operation and directly caused the plaintiff's injury, then defendant is considered an indirect cause of the injury, meaning the plaintiff cannot prove he was a proximate cause.
No
If defendant could reasonably foresee the intervening dynamic, is that dynamic is a superseding cause, and is D not a proximate cause of the injury?
Multiple Sufficient Causes
If multiple acts occur, each of which alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.
Yes.
If the danger is probable, is that enough to be an exception to the privity rule?
Yes
If the defendant could not reasonably foresee the intervening dynamic, is that dynamic a superseding cause, making D no longer a proximate cause of the injury?
No.
If the facts of the case satsify other intentional torts to you, can you still win on your claim for IIED?
Imminently Dangerous
If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then THIS. Its nature gives warning of the consequences to be expected.
Yes
If the plaintiff's economic interests are known to the defendant and the defendant had the special knowledge to do something in the plaintiff's interest and failed to do so, is there a duty for pure economic loss?
No
If the statute violated was not devised to set a safety standard for the class of person to which a plaintiff belongs, does the violation of the statute count as negligence per se?
Yes
If the utility of a safety precaution outweighs the cost of the precaution, then is it negligent not to carry the safety precaution?
Yes
If there is an evident, emotional charge to the relationship between plaintiff and defendant, does the defendant maybe have a duty to refrain from imposing harm on the plaintiff in an NEID way?
No
Are casual sellers/sellers of used goods/service providers part of the defendant class in strict product liability cases?
No
Are children capable of negligence if they are less than 7?
Yes
Are clumsy people, old people, women, the mentally ill/challenged included in the objectivity rule?
Yes
Are defendants required to demonstrate that their product is reasonably safe for its intended use?
Yes
Are future threats actionable as IIED?
Yes.
Are possessors of domestic animals strictly liable for injuries the animal inflicts if he knows or should have known the animal had dangerous propensities?
No.
Are possessors of domestic animals strictly liable for injuries the animal inflicts?
Yes
Are possessors of wild animals strictly liable for injuries the animals inflict on another, on the theory that owner knows such animals are likely to inflict serious harm, regardless of whether they've been "tamed."?
Yes
Are prescription drugs and vaccines products exempt from product liability laws?
Yes
Are there states in which a dog's first bite holds an owner strictly liable for anyone except trespassers or provokers or the animal?
No
Are threats to call the police oridnarily sufficient in themselves to effect an unlawful imprisonment? In Fotjik v. Charter Med. Corp., Person A, a middle-aged man, turns himself into a hospital for alcoholism treatment after friends and family threaten to call the police to bring him in themselves. A claims the hospital falsely imprisoned him and made him feel like he could not get out.
No
Are you liable for negligence per se if while attempting to comply with the statute, a violation occurs?
Yes. Yes.
Are you liable for trespass if someone directs you to or commands you to? Is the person who directs you also liable?
No
At common law, would a dog's first bite have the owner held liable for strict liability?
Yes
Can a breach of an affirmative duty to protect or rescue count as one of two or more but-for causes of a victim's injury?
Yes
Can a judge, via a rule of conduct as a matter of law, determine the standard of care?
Yes
Can comparative fault apply in strict liability cases?
Yes
Can consent sometimes be implied from the conduct of the parties?
Yes
Can injured plaintiff recover from any commercial supplier in the chain who places an article (product) on the market in a defective condition, even if it exercised all possible care in the preparation and sale of the article in question?
No
Can offensive (but unharmful) batteries be defended through self-defense?
No
Can self-defense be used if the conduct in question threatens to result in defamation or distress of the victim?
No
Can self-defense be used to respond to non-threatening provocations, such as tauntings or teasings?
Yes
Can statutes determine what the standard of care is?
Yes
Can the but-for test apply to multiple causation when there are two defendants whose actions are both necessary?
No
Can the but-for test apply to multiple causation where there are two defendants, either of which's actions are sufficient?
No
Can the express assumption of risk achieved through a signed waiver bar a plaintiff from recovery if the waiver is against public policy?
Yes
Can the express assumption of risk achieved through a signed waiver bar a plaintiff from recovery so long as the waiver is not against public policy?
Yes
Can the judge and jury in hybrid determine what the standard of care is?
No
Can the proximate cause be determined simply by reference to temporal or spatial proximity?
Yes, if reasonable.
Can the seizure, destruction, or damage of trespassory objects or structures occur for the purpose of preventing or curtailing an invasion?
Yes
Can you commit a trespass beneath/above the surface of a piece of land?
No
Can you commit a trespass if you undertake no voluntary or intentional act with respect to a piece of land? For example, if you are pushed or injured and fall onto the land.
No
Can you spare yourself from injury by injuring innocent third parties, such as using someone as a human shield?
No. If you are oblivious to an attempted assault, there is no action for assault.
Can you sue for assault if you are oblivious to an attempted assault?
No
Can you sue for purely economic loss in product liability?
Yes.
Can you transfer Property Tort A to Bodily Tort B?
Yes.
Can you transfer intent when a tortfeasor acts for the purposes of injuring a different victim in a manner than would have constituted a different tort? In other words, can you transfer intent across torts?
Yes
Can your noncompliance for negligence per se be excused by age or ability?
Yes
Can your noncompliance for negligence per se be excused by reasonable ignorance that the statute applies?
yes
Can your noncompliance for negligence per se be excused by the confusing nature of the statute?
Yes.
Can your noncompliance for negligence per se be excused if your noncompliance would be less dangerous than complying?
Trespassers
One who enters property without permission. D must refrain from willful or wanton harms.
Negligence
Prima Facie Case 1. A duty of care was owed. 2. That duty of care was breached. 3. The breach was an actual, but-for cause of an injury. 4. The breach was a natural and probable, direct proximate cause of the injury. 5. There was an injury.
False Imprisonment
Prima Facie Case Actor A is subject to liability to other person P for false imprisonment if 1. A acts, 2. Intending to confine P; 3. A's act causes P to be confined without consent; and 4. P is aware of their confinement.
IIED (Intentional Infliction of Emotional Distress)
Prima Facie Case An actor could be held liable for conduct that 1. is outrageous (Magruder's phrase was "beyond all bounds of decency"); 2. is undertaken for the purpose of causing the victim emotional distress so severe that it could be expected to affect adversely his physical health; and 3. causes such distress (even if that distress does not actually generate the expected physical harm). In other words, one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Negligent Supervision
Prima Facie Case: A plaintiff must show that: 1. the parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur AND 2. the parents had the opportunity to control the child.
Battery
Prima Facie Case: Actor A is subject to liability to person P for battery if: 1. A acts, 2. Intending to cause contact with P; 3. The contact is of a harmful or offensive type; and 4. A's act causes P to suffer a contact that is harmful or offensive. In other words, this tort requires an intended contact, either direct or indirect, that could be construed as harmful or offensive and cause the victim to be harmed or offended.
Negligent Infliction of Emotional Distress (NIED)
Prima Facie case for this tort. Damages should be recoverable only if the plaintiff: 1. is closely related to the injury victim, 2. is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (does not have to physically see the accident) 3. as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.
Trespass to Land
Prima facia case The core case of this tort involves an actor physically invading — or causing a physical invasion of — land lawfully possessed by another. All that matters, at least prima facie, is 1. whether the actor set out to make or remain in contact with the land in question, and 2. whether the actor did in fact make or remain in such contact.
Assault
Prima facie Case: Actor A is subject to liability to person P for assault if: 1. A acts, 2. Intending to cause in P the apprehension of an imminent harmful or offensive contact with P; and 3. A's act causes P to reasonably apprehend such a contact. In other words, this tort requires an act that is intended to cause apprehension of an imminent harmful or offensive contact in a victim, and actually and reasonably that act is apprehended by the victim.
Forseeability
The majority in Palsgraf says we decide duty is not about pre-agreement, but by looking at the circumstances in which the plaintiff and defendant are in, would we be able to determine that their relationship was such that one could cause harm to the other? What concept is this?
The Hand Formula
The owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: 1. The probability that she will break away; 2. the gravity of the resulting injury, if she does; 3. the burden of adequate precautions. This relationship has been formalized by the law and economics school as such: an act is in breach of the duty of care if: B<PL where B is the cost (burden) of taking precautions, and P is the probability of loss (L). L is the gravity of loss. The product of P x L must be a greater amount than B to create a duty of due care for the defendant.
Conversion
These are example of ways you can commit this tort: destruction, dispossession, alteration, unauthorized use, unauthorized sale, refusal to surrender.
Conversion
This tort is an act or omission with intent to assert complete dominion or control over an item in such a way that would unreasonably withhold possession from one that has a right to it. A party seeking to make out a prima facie case must prove: 1. the appropriation of another's property to one's own use and benefit, 2. by the intentional exercise of dominion over it, 3. in defiance of the true owner's rights. 4. It must result in substantial injury to the chattel of significant dispossession to the plaintiff. 5. The remedy is the full, fair value of the thing at the time of the tort.
Nuisance
This tort protects landowners against neighbors who generate noises, noxious smells, and other ongoing conditions that make it difficult or impossible for owners to enjoy or use their own properties.
Defect
This tort rule is a legal principle that holds a manufacturer strictly liable in tort when an article he places on the market, proves to have an issue that causes injury to a human being. Three kinds: 1. Manufacturing 2. Design 3. Failure to Warn/Instruct
Transferred Intent Doctrine
Under this doctrine, the law transfers the perpetrator's intent from the target to the actual victim of the act. This doctrine works for both battery and assault.
Battery, intent to harm or offend unnecessary
What issue is this? In Wagner v. State, Person A is in line at a store and is suddenly attacked from behind by a mentally disabled patient. Intention of contact that causes offense or harm is sufficient to claim battery in the absence of intent to cause harm or offend.
Superseding cause
What kind of cause appeared in this case? In Port Authority of New York & New Jersey v. Arcadian Corp., Company A makes fertilizer prills. Terrorists interfered with the prills and distorted them in a criminal fashion that led to an unanticipated result of the bombing. The breach and the injury are not too remote, but the court let the remoteness slide for causes out of the ordinary and unanticipated).
Failure to Warn/Instruct
What kind of defect is being argued here? In Chow v. Reckitt & Colman, Inc., A was injured while using RDL to clear a clogged floor drain in the kitchen of the Manhattan restaurant where he worked. A cannot read English and testified through an interpreter that, although he had used RDL many times in the past, he never read the instructions and warnings printed on RDL's bottle. As B stresses, A's handling of the product was not in accordance with the label's instructions and warnings. But A's mishandling of the product here, alone, is not enough to entitle defendants to summary judgment. Summary judgment may be granted on the basis of A's conduct when A's actions constituted "the sole proximate cause" of his or her injuries B failed to show that A's handling of RDL constituted the sole proximate cause of his injuries because a factfinder could conclude on the basis of the record that "RDL is dangerous" that the product was so inherently dangerous that it should never have found its way into the stream of commerce.
Social licensee
What kind of person entering onto land is B? In Rowland v. Christian, Person A had a broken faucet in her bathroom that she had warned the apartment managers about. Person B was an invited guest in A's home and he used the sink and hurt his hand. It was ruled that where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.
Vain or idle threats
What kind of threats are insufficient for an action for assault because they are not of such a nature as to put a person of ordinary reason and firmness in fear of IMMINENT bodily or offensive hurt?
Preponderance Standard
What method was used to come to this conclusion? In Muckler v. Buchl, Person A fell down the stairs of her poorly lit apartment building hallway and broke her hip and died in hospice. In a wrongful-death action founded upon premises liability, a plaintiff must show that the death was more likely than not to have been caused by the defendant's negligence. Because the measurements of the lights were less than that required by the city ordinance. The jury in this case has concluded that it is more likely than not that this was the case.
Comparative Fault
What principle is being used here? In Hunt v. Ohio Dept. of Rehabilitation & Correction, Person A, a prisoner, was taught for ten minutes how to operate a snowblower before completing a job. It became clogged and when she switched it off to remove snow, her glove got caught and her fingers were severed. A sued for negligent training and supervision. The prison owed A a duty to warn of the potential risks and the proper actions to take in case of clogging. A disregarded a potential hazard and failed to use common sense when she inserted her hand in the chute of the snowblower.
Comparative Fault
What principle is being used here? In United States v. Reliable Transfer Co., A tanker owned by Company A ended up stranded on a sandbar. A sued the United States for failing to maintain a flashing light that would have helped the ship's captain avoid the sandbar. It was ruled that damages should not be split equally in a case where the damages from each side are disproportionate
The Privity Rule
What rule is this case an exception to? In MacPherson v. Buick Motor Co., Person A is injured in a car accident because one of the wheels manufactured by Person B was defective. Person A originally bought the wheel from Person C, who bought it from B. It was ruled that if to the element of danger (and there is inherent danger in cars) there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.
Multiple Necessary Causes
What type of causation is this? In McDonald v. Robinson, Person A and Person B were driving separate vehicles and caused an accident which dragged a pedestrian and injured her. A and B were sued in a single action and that their concurrent negligence caused her injuries. There was no possible way by which it could be said that the negligence of one or of the other of the defendants was the sole or proximate cause thereof. The plaintiff can establish actual causation with respect to each defendant because the carelessness of each had to occur for the accident to occur: But for each actor's carelessness there would have been no accident and no injury to the plaintiff.
Implied consent
an implicit consent to harmful contacts that is highly dependent on the circumstances of the facts and questions the informal understandings of how things works.
Joint and Several Liability
liability that a person or business either shares with other tortfeasors or bears individually. It entitles a not-at-fault plaintiff such as to recover up to 100 percent of her damages from any one of two or more defendants who is found liable for her injuries.
Invitee/business invitee
one invited to enter or remain as member of public or in furtherance of owner's business or institutional interest. Defendant must provide reasonably safe premises.
Licensees/social licensees
one invited to enter the property for own purposes with express or implied permission of the owner. D must provide reasonably safe premises or warning of non-obvious dangers of which he knows or reasonably should know
Preponderance Standard
one type of evidentiary standard used in a burden of proof analysis: the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.
Workers Compensation
state programs that provide benefits to workers who suffer work-related injuries or illnesses, or to their survivors
Proximate Cause
that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces that event, and without which that event would not have occurred. Was the defendant's breach the direct cause of the plaintiff's injury? Was the outcome a natural and probable, foreseeable result of the breach? If yes, then this element of negligence is satisifed.
Express Assumption of Risk
the plaintiff expressly agrees to assume the risk of harm from the defendant's conduct. This is a complete bar to liability.
Alternative Causation
What type of causation is this? In Summers v. Tice, Person A sues damages for personal injuries arising out of a hunting accident, in A's negligence action against two hunters, B and C. Both hunters negligently fired, at the same time, in A's direction. Both defendants were negligent and "[t]hat as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff's right eye and that another birdshot pellet was caused to and did lodge in plaintiff's upper lip." Under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.
Defense of Property
What type of defense did A argue here? In Katko v. Britney, Person B was injured by a shotgun trap while trespassing in Person A's uninhabited farm house. It was ruled that this type of defense against B does not work unless the intrusion itself also threatens death or serious bodly harm to A.
Self-Defense
What type of defense did B argue here? In Haeussler v. De Loretto, Person A went to Person B's house to inquire about his missing dog. The dog was in the house and then ran out. A got upset and was waving his hands and appeared angry and drunk. He had a fighting history, so B pushed him out of the doorway and closed the door.
Implied Consent
What type of defense did B argue here? In Koffman v. Garnett, 13-year-old Person A is a football player and Coach B ordered A to stand upright and motionless so B could explain proper tackling techniques. B, without further warning, tackled A and broke his arm.
Objective
What type of standard negligence is this? In Campbell v. Kovich, Person A was struck in the eye by an object being ejected by Person B who was mowing A's lawn. It was ruled that inspecting a mower's path is what ordinary care requires as to what degree of care a person mowing a lawn must exercise, and B did that and was not negligent.
Yes
When a bystander sees the death or injury of someone they have a close relationship with, are they entitled to damages for NEID?
Res Ipsa Loquitur
When applicable in negligence actions, this doctrine permits a jury to infer that plaintiff's injury was caused by defendant's carelessness even when plaintiff presents no evidence of particular acts or omissions on the part of defendant that might constitute carelessness. This type of case has traditionally been defined by three features: 1. the injury must happen in a way that ordinarily does not occur absent carelessness on someone's part; 2. the instrumentality causing the injury must have been in defendant's exclusive control; and 3. the injury must not have arisen from acts or carelessness on the part of the plaintiff.
C. When the injury could have been discovered through the exercise of appropriate diligence.
When does the period for a statute of limitations run? a. When the injury was actually discovered. b. When the injury occured. c. When the injury could have been discovered through the exercise of appropriate diligence.
Alternative Causation
When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm.
Shopkeeper's Privilege for B, False Imprisonment by Threat for A.
Which defense did Manager B argue here? How about A? In Grant v. Stop-N-Go Market, Person A is mistaken to have stolen cigarettes from a gas station and the manager grabs his shoulder and threatens to call the police, and makes A feel like he cannot leave the gas station. It was ruled that A had just fear for damage to his reputation and just fear as it was his first interaction with the law. Person A stayed in the station under duress to the threat, although he consented. It was ruled B's defense couldn't apply.
Consent, Self-Defense, and Defense of Property
Which defenses to assault and battery may also be used as defenses for false imprisonment?
Defendant
Who generally has the burden of proof in comparative fault?
Yes.
Will emotional injury count when the affected party is in the zone of danger, meaning the claimant was located in the dangerous area created by the negligent party, and the claimant is frightened by the fear of injury?
no
Will silence alone support an inference of consent/permission to enter?
Restitution
a body of law that says when you have been enriched unjustly, you are not entitled to keep that enrichment. You might have to pay back any of that enrichment that is deemed unjust. For example, the necessity privilege is a condition. it is a privilege to do harm, but it is conditioned on the expectation that you will take responsibility for the harm that you do.
Subjectivity
a test for breach in which there are unique expectations for a certain class of people: 1. children under the age of 7 2. common carriers 3. exceptionally skilled individuals (only when others rely on their skills for safety) 4. Members of a learned profession 5. People with physical differences
Actual Cause
Also known as cause in fact, this is measured by the "but for" standard: But for the defendant's actions, the plaintiff would not have been injured. Would the plaintiff have been injured if the defendant had acted with the care he was duty-bound to exercise? If the answer to this question is "no," the but-for test is satisfied and actual causation is established. If the answer is "yes," plaintiff's claim fails the but-for test and, except in certain special cases discussed below, actual causation is not established.
Yes.
Is there a duty to rescue when your activity gave rise to the need for rescue?
Yes
Is this a defense to trespass to land? entry in order to effect an arrest or otherwise prevent crimes
yes
Is this a defense to trespass to land? entry incidental to the use of a public highway or navigable stream
Yes
Is this a defense to trespass to land? entry to abate a private nuisance
Yes
Is this a defense to trespass to land? entry to reclaim goods
Yes.
Is this test enough to succeed in a strict product liability claim? The plaintiffs must show: 1. that the product was defective, 2. that the defect existed at the time the product left the manufacturer's hands, and 3. that the defect caused the plaintiff's injury.
Stand Your Ground Laws
Laws that state that a person who reasonably believes that use of force or threat of force against another is necessary to defend herself from the imminent use of unlawful force by the other has no duty to retreat if they're in a place where they have the right to be and are not engaged in criminal conduct.
Strict Liability
A standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or intent on the part of the defendant in certain limited situations: 1. Abnormally dangerous activities 2. Possession of wild animals/some domesticated animals 3. Vicarious liability 4. Statutory forms (compensation schemes) a. Workers compensation b. No-fault automobile insurance
Scope of the Risk
A test that says if the injury was one of the things that made the behavior risky and was one of the things that might have manifested as a result of the behavior, then the behavior is a cause.
Expressed (actual) consent
A type of consent in which one is made aware of what they are consenting to and then proceeds to voluntarily consent.
Apparent consent
A type of consent that is a reasonable but mistaken interpretation of consent based on the plaintiff's behavior.
Expert Witness
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 1. the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; 2. the testimony is based on sufficient facts or data; 3. the testimony is the product of reliable principles and methods; and 4. The expert has reliably applied the principles and methods to the facts of the case.
Strict Product Liability
Actor A is subject to liability to person P in this tort if: 1. P has suffered an injury; 2. A sold a product; 3. A is a commercial seller of such products; at the time it was sold by A, the product was in a defective condition; and 4. the defect functioned as an actual and proximate cause of P's injury
Implied Consent
Age, gender, and sophistication of parties, their relationship, etc. all may play a part in an interaction involving which type of consent?
Market Share Liability
In certain circumstances where the plaintiff is unable to identify the actual tortfeasor and it is unjust to preclude them from recovery, then the group responsible for the overall harm can be held liable. A. All defendants named in the suit are potential tortfeasors (that is, they did produce the harmful product at issue at some point in time) B. The product involved is fungible (mutually interchangeable) C. The plaintiff cannot identify which defendant produced the fungible product which harmed her in particular, through no fault of her own D. A substantial share of the manufacturers who produced the product during the relevant time period are named as defendants in the action. 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
Yes
In general, is there a duty to rescue?
California
In what state is the modern approach used in which duty owed to all categories of persons except flagrant trespassers?
Objectively
In what way would the standard of negligence be measured here? In Vaughan v. Menlove, Person B's hay was stacked in such a way that it might catch on fire and it did, burning down Person A''s home. B was warned consistently that this might happen.
Yes
Is causation still required in strict product liability?
No
Is either physical injury or manifestation required to recover on an IIED claim?
Yes
Is how a testifying medical expert personally would have treated a plaintiff or a plaintiff's decedent relevant to the issue of whether a defendant physician committed malpractice?
No
Is it a product? Human body parts, tissues, blood, blood products, and cells
No
Is it a product? Intangibles, such as electricity and x-rays
No
Is it a product? Live animals sold as pets or livestock
Sometimes
Is it a product? Maps and charts
No
Is it a product? Textual material — such as encyclopedias, guides, or books
No
Is it a product? Used products
Yes
Is it a product? mass-produced or prefabricated homes
No
Is it a product? parcels of land and individual buildings and houses traditionally would not be deemed products.
Yes
Is liability imposed where the purchasing corporation is merely a continuation of the selling corporation?
No.
Is merely stating a product is dangerous, that everyone knows it is dangerous, and that precise warnings of its danger were given and not followed sufficient to entitle defendants to summary judgment as a matter of law?
Yes
Is reasonable but mistaken belief that an entrant has permission to enter a defense to a claim for trespass to land or personal property or conversion when the entrant's reasonable but mistaken belief is induced by the conduct of the possessor as opposed to being induced by a third party or some other feature of the situation?
No
Is reasonable but mistaken belief that an entrant has permission to enter a defense to a cliam for trespass to land or personal property or conversion?
No
Is the government liable, in the absence of legislation, in matters involving the police?
Subjectively
Is the liability of children 7 and older measured objectively or subjectively?
subjectively
Is the liability of common carriers measured objectively or subjectively?
Subjectively
Is the liability of exceptionally skilled individuals measured objectively or subjectively?
Subjectively
Is the liability of lawyers, doctors and architects measured objectively or subjectively?
subjectively
Is the liability of lawyers, doctors, and architects measured objectively or subjectively?
Subjectively
Is the liability of people with physical differences measured objectively or subjectively?
Yes
Is the party guilty of the negligence is liable to the party injured in instances of imminent danger, whether there be a contract between them or not?
No
Is the possibility of danger enough to be an exception to the privity rule?
No
Is there a duty owed to others for a purely economic loss in the absence of personal injury or injury to property?
Yes
Is there a duty to rescue when you have a special relationship with the victim?
Yes
Is there a duty to rescue when you have already undertaken the process of rescuing the victim?
No. A touching need not be flesh-on-flesh, nor directly caused, to give rise to a claim. Shootings, dog attacks ordered by the dog's owner, gassing, blowing smoke on someone, etc. are examples of indirect contact.
Must the contact in a tort of battery be direct/flesh-on-flesh?
Negligence Per Se
Negligence that arises from a statutory violation. It is negligence established as a matter of law, so that breach of duty is not a jury question. Requirements: 1. A statute must set standards of conduct. 2. Plaintiff must be in class of persons statute is meant to protect. 3. Plaintiff suffered the type of harm the statute is meant to prevent.
Battery
What issue is this? In Paul v. Holbrook, Person A is frequently verbally sexually harassed by Person B and one day Person B makes physical contact by massaging A's shoulders. While the contact is not harmful, it was intended and it was offensive given the facts and caused A to suffer that offensiveness.
Reasonable
Should a rescue attempt be perfect, or reasonable?
Multiple Necessary Causes
The careless conduct of each of two defendants act as a necessary condition of a single injury suffered by P. This doctrine applies only when each of two or more careless acts by independent actors function as a butfor cause of the injury to the plaintif
Secondary Assumption of Risk 1
The conscious taking of a reasonable risk (the injured person who gets in the car with a drunk driver to get to the hospital on an empty and dark road). This is a complete bar in some situations/states, holding the plaintiff responsible for knowing and their voluntary choices. It is treated as comparative fault component in some states, putting reasonable plaintiffs on par with unreasonable plaintiffs.
Universal Duty
The dissent in Palsgraf says that everyone owes a duty to everyone, and that we should never be dismissing cases at the duty stage of assessing negligence. What concept is this?
False imprisonment
The elements of this tort's cause of action are: 1. willful detention by the defendant, 2. without consent of the detainee, and 3. without authority of law.
Assumption of Risk
The idea of a plaintiff's negligence claim failing because she was aware of a discrete, immediate, and significant risk of injury posed by the defendant's careless conduct, yet freely chose to proceed so as to expose herself to that risk. There are four ways: 1. Express a. where you contract out of liability. This is a complete bar to liability if the contract is considered enforceable. 2. Primary a. A situation where the risk is open and obvious, confronting it is voluntary, and the decision to engage with the risk is reasonable in light of the benefits. Complete bar. 3. Secondary 1 a. The conscious taking of a reasonable risk. This is a complete bar in some situations/states, holding the plaintiff responsible for knowing and their voluntary choices. 4. Unreasonable a. Careless failure to recognize risk b. Conscious taking of unreasonable risk
Negligent Infliction of Emotional Distress (NEID)
There is no duty to avoid imposing pure emotional harm unless the action results in emotional distress situations when: 1. emotional trauma has a physical result from one being in the zone of danger. 2. When a bystander to an injury witnesses death or injury of someone they are close to. 3. Plaintiff and Defendant has a special relationship with evident emotional freight.
The Privity Rule
The rule that a plaintiff cannot bring tort claims against a defendant for nonfeasance that resulted from a contract which the plaintiff was not privy to.
Government Immunity
This defense has been applied to prevent suits against a government entity unless that entity has consented to the suit.
The Doctrine of Necessity
This doctrine applies with special force to the preservation of human life. 1. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 2. One may sacrifice the personal property of another to save his life or the lives of his fellows. AND ALSO: 1. Where those in charge of property deliberately and by their direct efforts hold their property in such a position that damage to another's property results, and, having thus preserved their property at the expense of another's, the owners are responsible to the other owners to the extent of the injury inflicted. 2. You must prove to be entitled to this affirmative defense that you are facing a threat of imminent harm.
The Doctrine of Last Clear Chance
This doctrine is for cases in which it seemed counterintuitive to permit a defendant to avoid responsibility for an accident that he could have foreseen and avoided, just because the plaintiff's fault also contributed to the injury. If a defendant has the last opportunity to prevent an accident resulting from careless acts of both the defendant and the plaintiff, the defendant will not enjoy the protection of the contributory negligence defense.
Abnormally Dangerous Activities
This element of strict liability is determined by a multifactor test applied by a judge: a. Probability of harm b. Likely gravity of harm c. Fit between activity and place (inappropriateness of the activity to the place where it is carried on) d. Value of activity to the community compared with its dangerous attributes e. Commonness or uncommonness of activity f. Inability to eliminate risk even with care. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability.
Primary assumption of risk
This is a complete bar to liability. This is also called a no duty rule or a breach rule. It occurs in a situation where the risk is open and obvious and implied, confronting it is voluntary, and the decision to engage with the risk is reasonable in light of the benefits (such as going to a baseball game to get a ball that is hit into the stands)
Objectivity
This is a concept of measuring breach. One has behaved negligently if he has acted in a way contrary to how a reasonably prudent person would have acted under similar circumstances. This includes clumsy people, old people, women, the mentally ill/challenged.
Permission to Enter
This is a defense to trespass. If the property owner consented to you accessing the property, you did not trespass. However, it is essential to note that consent must be by someone with the proper authority to do so. This defense has scope and: a. May be implied from the conduct of the parties. b. May be geographically or temporally restricted.
Comparative Fault
This is a legal principle that assigns blame between multiple parties based on shared fault in an incident in four ways: 1. When two or more parties have contributed by their fault, liability for such damage is to be allocated among the parties proportionately to the relative degree of their fault, and that liability for such damages is to be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of their fault (most states) 2. Responsibility shall be split evenly among all parties whose fault is found to have contributed to the plaintiff's injury. A careless plaintiff would be entitled to recover 50 percent of his damages from a careless defendant simply because there are two at-fault parties among whom to divide legal responsibility. 3. A plaintiff is barred from recovery if his or her actions were a greater cause (more than fifty percent) of his or her injuries than any acts of the defendant. 4. A plaintiff is barred from recovery if his or her actions were an equal cause (fifty percent) of his or her injuries.
Trespass to Chattels
This is a tort for damage to personal property or temporary interference or intermeddling with its use, even though the possessor is not permanently deprived of it. 1. A defendant acts with intent to dispossess, use, or intermeddle resulting in possessor to be dispossessed of, impaired of, deprived of the use of the thing, or bodily harmed by the thing. 2. Acknowledges that the chattel is someone's but that the trespasser is going to muck it up or hold onto it for a bit so that person cannot use it. 3. The damages would be the cost of repair or where you were before the interference.
design defect
This kind of defect applies to the entirety of the product as a whole. The idea is that there is a flaw in the plan or specifications for the product. The flaw (or flaws) alleged may be small or technical, or may go to the essence of the product. For example, one of the central allegations in litigation over surgical gloves made of latex is that the very idea of using latex as the primary material for such gloves is unacceptably risky.
Confinement
This occurs when a tortfeasor or those acting on behalf of the tortfeasor causes the victim to be within a bounded physical space.
Premises Liability
This qualified duty tort is determined by: 1. classifying the status of the injured person as an invitee, licensee, or a trespasser; 2. Determining the duty, if any, which was owned to the injured party; and 3. Determining whether this duty was breached by the landowner or business operator.
No
Was there a legal cause here? In Palsgraf v. Long Island Railroad Co., Case of fireworks package falling off a train and exploding and hitting something that fell onto Person A. Workers were negligent in causing the package to fall as they pushed a passenger carrying them onto a train. The conduct of the workers, if a wrong in its relation to the holder of the package, was not a wrong in its relation to Person A, standing far away.
No
Was there a legal cause of injury here? In Union Pump Co. v. Albritton, Person A and Person B extinguished a fire on a gas pump. To shut off a valve, they walked on an above-ground pipe rack, and when they returned and walked across it again, Person A, following Person B, slipped and fell and was injured. She sued the pump company because she alleged that but for the pump fire, she would have never walked across the pipe rack, which was wet from fighting the fire. Was it a natural consequence of a pump on fire that someone would fall off a pipe rack? Is the injury too far from the actual cause?
Expressed, Implied, Apparent
What are the three types of consent?
Trespasser
What category of person coming onto land is A? In Leffler v. Sharp, Person A went to a bar and wandered through a window onto the roof and fell, even though there were warning signs on a door to the roof . It was ruled that A was this and the defendants took reasonable steps to make sure access to the roof was denied by keeping the door locked and stenciling the letters "NOT AN EXIT" on the door.
Necessity for B, Restitution for A
What defense is being asserted by B here? What about A? In Vincent v. Lake Erie Transp. Co., Person A owned a dock and contracted with Company B to allow its boat to anchor and unload cargo there. A storm came and the boat remained tied to the dock to prevent damage to it and damaged the dock. It was ruled that A's injury was inflicted because B prudently and advisedly availed itself of A's property for the purpose of preserving its own more valuable property. Thus, A was entitled to compensation for the injury done. Note: Dissent said if A constructed a dock to a navigable line of waters and entered into contractual relations with B, then A takes the risk of damage to his dock by a boat caught there by a storm.
Consent/Permission to Enter
What defense was attempted here? In Copeland v. Hubbard Broadcasting, Inc., Person A is invited to accompany a doctor to watch a procedure on Family B's cat. Person A secretly records the experience and sends it to the media, who airs it on TV. It was ruled that Family B only allowed for A to accompany the doctor, and that recording the procedure and the family and the home was outside the scope of the defense used.
Res Ipsa Loquitur
What doctrine is applied here? In Byrne v. Boadle, Person A was passing along a highway in front of a house owned by Person B when he was struck by a barrel of flour being lowered from the window above. A plaintiff seeking to rely on this doctrine must connect the defendant to the harm. The exclusive control element has been liberalized and it is now enough for a plaintiff to get the issue to a jury if he can provide evidence showing that the defendant probably was the responsible party even if the defendant did not have exclusive control. Further, most jurisdictions no longer require the plaintiff to prove that he did not contribute to his harm.
Res Ipsa Loquitur
What doctrine is being applied here? In Kambat v. St. Francis Hosp., Person A died of infection after a medical pad was left in her abdomen after a hysterectomy. There are some medical and surgical errors of which any person is competent to conclude from common experience that such things do not happen if there has been proper skill and care. An example of one of these is when an operation leaves a sponge or implement in the patient's interior, the thing speaks for itself without the aid of any expert's advice.
Transferred Intent Doctrine
What doctrine of intentional torts is this? In In re White, Person A pulled a gun on Person B. Person B ran away and drove off on a motorcycle. Aiming at Person B, Person A shot the gun, and while the firing of the gun was intentional, A accidentally shot Person C. Person C can make an active case for battery.
Abnormally Dangerous Activities
What element of strict liability is exemplified here? In Klein v. Pyrodyne Corp., Company A was selected to set off public fireworks at a state fairground for an event. During the event, all the fireworks exploded and Bs were injured. Bs brought suit against A. An operator of a public firework display is strictly liable for any harm resulting from the public firework display. This case is an exception, not the norm.
Hand Formula
What formula was used here? In United States v. Caroll Towing Co., A district court held Company A partly liable for damage to a barge and for lost cargo by not having an attendant aboard the barge when it broke free from a pier. A sought review. The court applied this formula and found that the burden of having an attendant aboard the barge was less than the gravity of injury of a runaway barge multiplied by the probability that the barge would break free if unattended.
Battery and Assault
What intentional tort(s) are these defenses for? 1. Consent 2. Self-Defense 3. Defense of Others 4. Defense of Property
Strict Liability
What is A liable for? In Pingaro v. Rossi, A had a dog and took measures to warn everyone at Company B of his dog's aggression. C, an employee of B, was bitten by the dog after entering A's backyard to check a gauge. "Humans are recruiting instrumentalities that have their own inherent biological, physical, or chemical properties that once unleashed cannot be held back."
Market Share Liability
What theory is this? In Sindell v. Abbott Labs, Person A's cancer results from her mother taking synthetic estrogen while pregnant with A. A did not know whose drug it was so she named every manufacturing company that mainly produced it in the suit (5). If the Plaintiff joins a substantial share of the manufacturers into the lawsuit, the chances of the actual tortfeasor escaping liability are greatly reduced. To determine damages, each manufacturer's liability will depend on the share it had in the market for the drug unless that defendant can show that it could not have made the product that Plaintiff's mother ingested. In this way, each manufacturer is liable for an equivalent portion of the injury as to its share of the defective drug it manufactures.
Duress, Fradulence, and Lack of Capacity to Consent
What three elements negate the defense of consent?
NEID
What tort did A suffer? In Dillon v. Legg, Person A and her daughter watched her toddler daughter get hit by a car and die. A was awarded damages for this tort for being closely related, present at the scene and aware of the injury/death, and suffered emotional distress beyond which would be anticipated by a disinterested witness.
NEID
What tort did A suffer? In Thing v. La Chusa, Person A did not physically see her son hit by a car but it was ruled that foreseeability was not a meaningful restriction. The test takes into account whether the plaintiff was located near the scene of the accident, if the shock resulted from a direct emotional impact upon the plaintiff from the sensory observance of the accident and if the plaintiff and victim were closely related.
Negligence per se
What tort is A liable for? In Dalal v. City of New York, Person A hits Person B with their car while not wearing their prescription glasses that they are required to wear while driving. It was ruled that the statute for traffic laws sets up a standard of care, the unexcused violation of which is this tort.
Negligence per se
What tort is A liable for? In Martin v. Herzog, Person A was killed in their buggy when hit by Person B's car. Person B veered into the middle of the lanes and Person A did not have their lights on. It was ruled that the unexcused omission of statutory signals in this tort and the duty of one driver to another cannot be relaxed under one statute to another.
Assault
What tort is this? In Vetter v. Morgan, Person A is driving at 1 am and Person B pulls next to them at a stoplight and made violent and obscene gestures and banged on her window, threatening to pull her out of the car; when the light turned green, B's car veered into A's lane, causing A to swerve and crash. Words can constitute this tort if together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact.
Conversion
What tort is this? 1. In Thyroff v. Nationwide, Person A used Company B's computer hardware and software for personal email and data storage and when he was fired, B repossessed and denied him access to his personal information on the system. It was ruled that it's not the physical nature of a document that determines its worth on a conversion claim, but the information memorialized in the document that has intrinsic value.
Assault
What tort is this? In Beach v. Hancock, Person A points an unloaded gun threateningly at Person B and snaps the trigger twice. It is clear that A intends to do harm or to cause B to apprehend harm, so the injury suffered is B's reasonable fear for his life.
Trespass to Land
What tort is this? In Burn Philps Food, Inc. v. Cavalea Cont'l Freight, Inc., Company A sued Company B for repayment of mistaken taxes paid on a piece of real estate that A thought belonged to them but actually belonged to B. Company B counterclaimed that Company B encroached onto its land. The court ruled that A could have discovered the land and tax error sooner, and that the statute period began to run when they discovered the error.
Strict Product Liability
What tort is this? In Escola v. Coca Cola Bottling Co. of Fresno, A was injured by a bottle of Coke that exploded in her hands just 36 hours after being delivered to her restaurant by Company B, who fills the bottle. Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present.
IIED (Intentional Infliction of Emotional Distress)
What tort is this? In Littlefield v. McGuffey, Person A's landlord was racist and kicked her out of her apartment because her child's father was not white. The landlord harassed her and even left a note on her new home threatening to kill the father. A was fearful for herself and her child. It was ruled that a physical manifestation of emotional distress is not a required element of this tort.
IIED (Intentional Infliction of Emotional Distress)
What tort is this? In Dickens v. Puryear, Person A slept and did drugs with a minor. The minor's father gathered four men and beat A to semi-consciousness and threatened to kill him or cut his balls off. They handcuffed him and kept beating him. The father told A to go home, pack, and leave the state, otherwise he would be killed. It was ruled that The threat of future harm by telling him to pack up and leave the state or he be killed does satisfy this tort.
Multiple Sufficient Causes
What type of causation is this? In Ford Motor Co. v. Boomer, Person A died of mesothelioma after working two separate and unrelated jobs that exposed him to asbestos. In concurring causation cases, the cause-in-fact element of proximate cause uses the following standard: exposure to the defendant's product alone must have been sufficient to have caused the harm. The use of THIS approach is still proper whether the concurring causes are all tortious, or whether some are innocent. The court found that the exposure to the asbestos dust in one job was enough.