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116 Cards in this Set
- Front
- Back
Elements of Battery
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1. Harmful or offensive contact occurs
2. Intentionally 3. Directly or Indirectly 4. To a person or object intimately connected to the person |
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Definition of offensive for battery
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What a reasonable person would perceive as offensive
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Elements of Assault
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1. Intent to cause apprehension in the mind of the π
2. Of an imminent battery 3. ∆ has apparent ability to complete battery 4. Apprehension occurs 5. Apprehension is inflicted directly or indirectly 6. π is aware of apprehension at the time |
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Purpose of Battery
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To protect one's right of dignity
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Purpose of Assault
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To protect one's right of emotional tranquility (of the threat of an imminent battery)
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Notes on battery
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1. If the battery feared will occur at another time, there is no assault
2. Words are usually not enough, but words can clarify ambiguous conduct 3. Even if a π thinks he can ward off battery there can is still apprehension |
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Elements of False Imprisonment
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1. Intent to confine (∆ desires or knows to a substantial certainty that π will be confined)
2. Boundaries are defined by ∆ 3. Confinement occurs (no reasonable means of escape) 4. Confinement occurs directly or indirectly 5. π must be aware of confinement (some juris. do not require awareness if π is harmed) |
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Reasonable means of escape (false imprisonment)
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1. A victim must look for a reasonable means of escape from confinement
2. There is no reasonable means of escape if there is a chance of bodily harm or damage to dignity 3. Courts do not award damages caused by an unreasonable means of escape when π is safe in confinement |
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4 ways confinement can occur
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1. Physical force
2. Physical boundaries 3. Threats of battery against π or a third party 4. Sometimes detention of property (fungible or unique) |
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False imprisonment against a legal authority
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1. π has good faith belief that ∆ is a legal authority
2. π should remain with ∆ even if there is a reasonable, safe means of escape - encourages compliance with law |
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Duty and false imprisonment
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1. A ∆ can have a duty to provide a means of escape to a π
2. Duty can be defined by relationship (parent-child, employer-employee) or contract |
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Culpability and false imprisonment
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Intentional confinement - must release ∆
Negligent confinement - must release ∆ once π becomes aware Innocent confinement - must release ∆ once π becomes aware of confinement |
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Elements of IIED
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1. Intent serious emotional distress - intent can be knowledge that emotion distress will result to a substantial certainty
2. Serious emotional distress occurs 3. ∆'s conduct must be extreme and outrageous |
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Extreme and outrageous for IIED
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1. Varies across cultures and time
2. Beyond the bounds of societal acceptability 3. Name calling is not E&O 4. A π's vulnerabilities are relevant if they are known by ∆ 5. Courts are reluctant to address familiar or religious issues 6. Courts will consider positions of superiority in determining E&O |
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Elements of 3rd Party IIED
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1. ∆ must intend emotional distress (∆ must be aware of ∆'s presence)
2. Severe emotional distress must occur 3. ∆'s conduct must be E&O 4. 3rd party must be present at E&O event (seeing, but sometimes also hearing) 5. 3rd party must have familiar relationship with victim or emotional distress must manifest physical symptoms |
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Carrier Doctrine and IIED
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Carriers are held to a higher standard than normal individuals and conduct less than E&O can warrant liability
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Elements of Trespass to Land
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1. Intent to be on the land when trespass occurs (good faith beliefs are irrelevant)
2. Invasion must occur 3. Must be an invasion of the possessory interest of π 4. Invasion occurs directly or indirectly |
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Purpose of trespass to land
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1. Protects a right of exclusive possession
2. Anyone who has a right of possession superior to that of ∆ can recover 3. Does not require actual damages |
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Limits of possessory interest to land
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Usually possessory interest extends into sky near ground and under ground
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Difference between trespass and nuisance
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Trespass - an intrusion interfering with the right to exclusive possession of property
Nuisance - an intrusion interfering with the use and enjoyment of property |
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Privilege and TtL
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1. Once a privilege has expired, any further presence is trespass
2. Privilege can expire with time 3. Privilege can expire with space 4. Privilege can expire by purpose 5. Unintentional breach of privilege is irrelevant to TtL |
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Elements of Trespass to Chattels
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1. Harm be caused to chattel or possessor of movable, transferable personal property
2. Substantial deprivation 3. Dispossession 4. (Usually) Actual damages |
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Elements of Conversion
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1. ∆ substantially intermeddles with
2. π's possessory interest 3. In chattels 4. That the ∆ should be required to purchase the chattels |
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Notes on conversion
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1. ∆ is required to give π full value of chattel (π can decide to have full value or chattel returned)
2. How value of chattel is determined depends on circumstance (sometimes market value) |
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7 ways to convert chattel
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1. Acquiring possession
2. Improper delivery 3. Use 4. Disposition 5. Damage or alteration 6. Reception 7. Refusal of surrender |
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6 factors in determining seriousness of intermedling with chattel
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1. Extend and duration of ∆'s control
2. ∆'s intent to assert a right inconsistent with the owner's right of control 3. ∆'s good faith 4. Extent and duration of interference 5. Harm done to chattel 6. Inconvenience/expense caused |
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Types of Information protected from conversion
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1. Information for sale
2. Scientific invention 3. Secret plans made for the conduct of commerce |
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Consent!
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π has agreed to conduct that would otherwise be tortious
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Definition of Express Consent
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Agreement made in writing or words to tortious conduct
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Notes on Express Consent
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1. Courts can use public policy reasons to not acknowledge consent
2. There is ONLY consent to what a π has agreed to and nothing beyond that |
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Definition of implied consent
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The circumstances are such that a reasonable person in the ∆'s position would conclude that π would consent and this ∆ came to such a conclusion
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Consent and contact sports
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Players implicitly consent to contact within (1) the rules of the game and (2) the general custom and practice of the sport
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4 ways implied consent can arise
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1. Community mores
2. Lack of objection 3. π's (ambiguous) conduct 4. π's participation in an activity |
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Emergency doctrine
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Consent to medical treatment is implied in a dire situation when neither the victim nor a responsible party can consent but a reasonable person would
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5 requirements of emergency doctine
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1. Time is of the essence
2. Treatmenst is essential (to prevent loss of life or limb) 3. Reasonable person would consent to treatment 4. ∆ believes the particular π would consent 5. π cannot consent |
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Do Not Resuscitate
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1. If doctors do not follow DNR orders, there are no real damages
2. If they do follow them, damages can be substantial |
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Parent-child medical consent
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1. Parents have medical custody over their children
2. Doctor can attempt to circumvent parents' wishes by seeking medical custody through court order (House) 3. Courts only get involved if decision is life threatening (still not lupus...) |
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When consent isn't consent: mistake of fact and duress
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1. When the ∆ makes or is aware of a mistake of material fact that creates consent
2. There can be a duty to notify another if there will be consent formed based on a mistake of material fact 3. There can be a duty to disclose a material fact when a person would have wanted to know the information and they would not have been able to determine this information themselves 4. Consent cannot be given under legal duress (compulsion) |
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When consent isn't consent: violation of law
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1. In some jurisdictions, πs cannot consent to actions that violate positive law
2. If the legislature enacted a law with the intent of preventing foolhardy consent, π will still have a CoA |
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Self-defense: Retaliation
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Anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another, but when threat has ended, so too does privilege
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Self-defense: reasonable belief
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∆ must have a reasonable belief that force is necessary to protect from imminent battery
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Self-defense: provocation
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Abusive words, accompanied by actual threat of physical violence may yield privilege but words are generally not enough
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Self-defense: amount of force
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The ∆ must use force that is reasonably necessary for protection against the threatened battery
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Self-defense: deadly weapons
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For a ∆ to use deadly force in self-defense, there must be a reasonable apprehension of SBI/deadly force
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Self-defense: retreat
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1. Some jurisdictions will require retreat before using deadly force
2. Most jurisdictions do not require retreat in a π's home 3. Most jurisdictions will not require retreat if the force is not SBI |
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Self-defense: transferred intent
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π is not liable for accidentally injuring another while using self-defense
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Defense of a 3rd Party: privilege
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1. Typically involves family members or relationship where protection is required
2. Did ∆ use reasonable force? |
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Defense of a 3rd Party: reasonable belief
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∆ is allowed to defend third party so long as they believe 3rd party had a right to use self-defense; ∆ must use amount of force 3rd party would have been privileged to use
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Defense of a 3rd Party: reasonable mistake
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Some courts will not allow liability if ∆ made a reasonable mistake about the need for intervention to prevent harm to a 3rd party
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Defense of property: force
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Courts will allow the use of force to defend property, but will generally not allow the use of deadly force
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Defense of property: deadly force
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Courts will always favor life and limb over property; most courts allow ∆ to threaten the use of deadly force
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Right to recover property
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Courts will always favor the legal recovery of property
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Right to recover property: interrupted possession
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Most courts will allow the use of non-deadly force to immediately recover property when possession has been interrupted
1. ∆ must go after property as soon as he learns it has been taken 2. Hot pursuit 3. ∆ must first demand recovery before using force |
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Shopkeeper's Privilege
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Shopkeepers can use non-deadly force to confine someone they suspect of shoplifting; shopkeeper cannot confine suspect until they confess
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Public necessity requires...
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A threat to the entire community
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Requirements to use public necessity
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1. Does not have to have a connection with community
2. Does not have to be a public official 3. ∆ must act reasonably under the circumstances 4. Threat is immediate 5. Cannot subject life or limb to save property |
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Definition of private necessity
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Allows ∆ to invade someone's property or meddle with their chattel to protect ∆'s property
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Notes on private necessity
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1. ∆'s conduct must be reasonable
2. Reasonableness is sometimes determined by relative value of both property protected and property trespassed 3. A conditional privilege and ∆ should be prepared to pay for all damages |
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Privilege: Authority of law
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Law officials (police officers, military personnel) are allowed to engage in otherwise tortious conduct if allowed by law
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Privilege: Disciple
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Parents and those acting in loco parentis are allowed to use reasonable force to restrain
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Justification
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∆ shows that in the interest he is furthering, the tort committed was justifiable (i.e. bus driver confining children until they reached police station)
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Elements of negligence
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1. Duty
2. Breach of duty |
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Requirements of CoA for negligence
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1. Duty
2. Breach of duty 3. Causation 4. Harm |
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Goal of negligence law
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To reduce risk to reasonable risk
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4 types of negligence
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1. Negligence as a finding of fact
2. Negligence as a finding of law 3. Negligence as defined by a legislature 4. Negligence per se |
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Formula for negligence
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1. ∆ must expose π to an unreasonable risk of harm
2. Likelihood and severity of risk 3. ∆ must not have taken reasonable precautions to prevent injuries 4. Must weigh social utility against the risk |
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Carroll Towing formula for negligence
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b > (p)(i) → l
b < (p)(i) → no l |
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The standard of care for negligence is...
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That of an ordinary, reasonable, prudent person under the circumstance (ORPP UTC)
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ORPP
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ORPP is an objective standard:
1. ORPP must conform to his community's standards and do was an ORPP in his community would do 2. Although ORPP may not know everything, when he becomes aware he doesn't know everything, he takes reasonable steps to find out 3. There are certain things that ORPP would not know |
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Evidence of custom
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1. What an ordinary, reasonable member of the relevant community would follow
2. Evidence of custom can help establish whether ∆ acted reasonably 3. It demonstrates that certain conduct can be reasonable but does not automatically show ∆ was reasonable |
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Considerations for custom
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1. Is the conduct a custom?
2. Is the custom generally reasonable? 3. Even if reasonable, was it reasonable under these circumstances? |
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ORPP in an emergency
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1. ORPP is allowed to put his own life and limb above that of another in an emergency
2. If the ∆ creates the emergency, the theory of negligence applies to the ∆'s negligence in creating the emergency 3. If ∆ failed to anticipate an emergency, the court will look to his negligence in failing to do so |
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Physical characteristics of ORPP
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http://www.flashcardexchange.com/mycards/add/1589252Where physical challenges or superior endowments are relevant, the court asks how ORPP with these characteristics would handle the situation
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Reasonable children
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1. Children will often be held to the standard of care of a reasonable child of like age, maturation, or intelligence
2. Some jurisdictions adopt use of reasonable adult standard when the nature of the conduct is adult or inherently dangerous |
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Reason for using reasonable child standard
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1. Children must have time to grow and learn
2. Children must be allowed to be children 3. How much damage can children really cause? |
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The rule of 7's
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1. 0-6 incapable of negligence
2. 7-14 incapable of negligence but this can be rebutted 3. 15-majority capable of negligence but this can be rebutted |
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Mental characteristics of ORPP
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1. Most jurisdictions hold insane persons to ORPP standard
2. Some jurisdictions allow the trier of fact to assess the level of insanity and if it affected the ∆'s ability to comply with his duty (insanity must be sudden and unexpected) 3. Mental retardation is not usually considered |
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Standard of care: professionals
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1. Must act as a member of the profession in good standing
2. Must have minimal levels of knowledge, is careful and prudent about use of that knowledge, and uses discerning judgment 3. Standard applies if there is contract or if there is no payment for services 4. Expert testimony is often necessary to enlighten the trier of fact what the standard of care is for the profession |
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Malpractice
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Professionals are not liable for bad results if they did what a member in good standing would do
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Legal malpractice
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Blowing the statute of limitations and failure to investigate are ALWAYS malpractice against lawyers - if lawyer does not take case they must inform client of SoL and urgent need to find another lawyer
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Medical malpractice
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1. Requires an expert to testify to what a member of the profession in good standing would do in the situation
2. Not enough for the expert to testify that he would have done something different, must testify that a member in good standing would have |
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Location of medical member in good standing
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1. Some jurisdictions utilize local standard, reasoning that regional differences in practice and resources dictate standard
2. Others have adopted national standard, reasoning that doctors pass national certification |
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Notes on standard of care: member in good standing
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When members in good standing do not agree on the standard of care, it is enough that the ∆ followed one of the standards, even if it is the minority view
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Medical informed consent
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1. Some use what member in good standing would tell a patient
2. Some use what a reasonable person would want to know 3. If the doctor tells you nothing, but no harm occurs, there is no CoA for negligence |
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Requirements for negligence as defined by statute
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1. π must be in the class of persons meant to be protected
2. The risk must be a risk that the statute was designed to eradicate |
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Three "banana peel" theories
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1. Actual notice
2. Constructive notice 3. ∆ created condition |
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Actual notice
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∆ actually knew condition existed
1. Direct - passerby tells ∆ condition exists 2. Circum. - passerby sees ∆ actively avoid or address then ignore condition |
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Constructive notice
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A condition has existed for so long ORPP would have noticed
1. Direct - passerby says condition existed for a certain amount of time 2. Circum. - the visual characteristics of condition when noticed |
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Burden of pleading
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π must plead the elements for a CoA
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Burden of production
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Proving party has to put forward enough evidence that reasonable people could find, more likely than not, that the fact at issue exists
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Burden of persuasion
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Must convince the reasonable person more likely than not that the fact in issue exists
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Notes on res ipsa loquitor
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"The thing speaks for itself"
Circumstantial evidence designed to help the party meet burden of production and ultimately burden of persuasion when there is not direct or regular circumstantial evidence When RIL is used, the burden of persuasion is usually on the ∆ to show another explanation RIL can be used against multiple ∆s when there is a joint duty of care |
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Elements of res ipsa loquitor
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1. Event is one, when it happened, that is the result of negligence
2. The ∆ had exclusive control over the event |
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Procedural weight and RIL
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1. It is usually just evidence that helps the case get to a jury
2. In some jurisdictions is a rebuttable presumption |
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Criteria for determining if expert testimony is reliable and relevant
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Reliable - result that is reached by good scientific method (in peer review article)
Relevant - must advance issue of causation (general causation or specific causation) Often courts will allow a demonstration of specific causation from signature diseases, progressions, or symptoms |
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Loss of chance
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1. When a doctor's negligence results in a loss of chance that the decedent would have survived treatment damages can be rewarded
2. It is the value of decedent’s entire life as if he had overcome and then award percentage loss attributed to the doctor’s negligence |
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Concurrent causes
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When there are multiple causes, there is no requirement that the ∆'s negligence has to be the only cause of the harm
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Independent alternative cause
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Burden of proof regarding causation is on the ∆s where π can show all parties were negligent but cannot demonstrate which one factually caused harm
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3 Situations in which legal causation can be raised
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1. Unforeseeable consequences
2. Intervening factors 3. Public policy 4. Shifting liability |
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Unforeseeable consequences
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1. Proximate and remote harm
2. Eggshell π 3. Direct causation 4. Foreseeability 5. Zone of danger |
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Proximate & remote harm
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1. NY rule says that ∆ is only liable for proximate harms (natural, expected, ordinary, anticipate) of his negligence and not remote harms
2. NY rule limits liability to damage to the 1st property owner |
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Eggshell π
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1. ∆ must take his π as he finds her
2. Applies to both physical and mental conditions 3. (Usually) need an expert to testify that accident aggravated condition |
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Direct causation rule
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1. ∆ has exposed π to risk of harm
2. An unforeseeable risk results 3. ∆'s negligence was the direct cause of harm suffered 4. π friendly |
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Foreseeability rule
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1. Limits liability to harm that is a foreseeable risk
2. Balanced with burden of preventing any risk (even very small) when ∆ becomes aware of that risk 3. ∆ friendly |
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Zone of danger rule
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Only persons who were within the zone of danger of the risk can recover for a ∆'s negligence
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Act of God
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1. The ∆ has been negligent but before negligence comes to fruition it is interrupted by an act of God (unanticipated and unusual such that ORPP would not have anticipated)
2. If AoG brings about same risk as ∆'s negligence, ∆ can still be liable |
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Intervening acts of 3rd parties
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1. Innocent acts do not limit liability of ∆
2. Negligent acts do not limit liability of ∆ because they are normally foreseeable 3. Intentional acts limit liability when they are unforeseeable but do not limit liability when they are foreseeable |
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4 scenarios when an intentional intervening act does not limit liability
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1. When you are hired to protect the plaintiff from intentional intervening acts
2. When defendant defeats the protections (ie: burglar alarm systems) 3. When you take someone into custody and negligently let them go 4. Where you bring into contact with the plaintiff someone you know or should know has violent tendencies and you bring them together under circumstances where one could perceive this would occur |
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Rescue doctrine
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Rescue workers have normally been compensated for the risks they take and do not have a CoA against negligent ∆
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Suicide as an intervening act
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The court must find that the suicide was an irresistible impulse so that the act was negligent and not intentional to determine if ∆ is liable
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Social host liability
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1. It is not unforeseeable to a social host that guests at his party who drink may drive and get into an accident
2. Most jurisdictions do not put liability on social hosts because they are not trained to recognized overly drunk people, cannot really restrain people, and do not have insurance to cover such situations |
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Respondeat superior
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"Let the master answer for his servant"
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Considerations of respondeat superior
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1. There must be some level of control over the employee by the employer
2. How the parties view their relationship 3. Does the employee get paid by salary or by the job? 4. Whether the employer pays taxes and benefits for the employee 5. Who provides the tools? |
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Exceptions to respondeat superior
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1. π cannot sue a ∆ for negligence by a hired contractor - π can sue ∆ for negligently contracting
2. π can sue a ∆ for negligence by a contractor if the duty is nondelegable 3. π can sue the employer for negligent hiring |
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Requirements for respondeat superior
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1. Employee must be acting within the scope of his employment (sometimes when employee is furthering the the interest of his employer)
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Joint liability exists when...
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1. There is a common law duty
2. When there is a common agreement to create the unreasonable risk |