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Tort Study Guide

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What is Tort?
A civil wrong for which the law provides a remedy.
What are three categories of torts?
a. Intentional
b. Negligence
c. Strict Liability
What does an intentional tort require?
a.That the defendants intentionally commit the elements of the tort.
What are 7 examples of intentional torts?
a. Conversion
b. Assault
c. Battery
d. False Arrest
e. Trespass
f. False Imprisonment
g. Intentional Infliction of emotional distress
What is an assault and battery?
-A BATTERY is an un-consented to touching of another person
**it need not to be violent
-An ASSAULT is an attempt to commit a battery or a threat to commit a battery
**it must be an immediate threat
Why is assault and battery a tort instead of a crime?
You need not be afraid of the contact- you simply do not want it to happen
If I intend to hit you but miss and hit someone else—is it still an assault and battery since I did not intend to hit this other person?
a.Yes, transferred intent.
**The court will transfer the intent so that the person who threw the hit can sue in cases of battery, assault, false imprisonment, trespass to chattel, trespass to land.
What if I make a mistake would this be a defense to an intentional tort?
You can sue the person as long as they have intended the acts that make up the trt. Mistakes as to the property of the person who did the wrong does something to, is not a defense. (Unless the person was tricked.)
What if I am insane, is this a defense to an intentional tort?
Not a defense.
**If the person insane understands the conduct that constitutes the tort.
**If you are insane and thinks something crazy, he is still liable as long as he understood that by pulling the trigger of a gun a bullet would fire.
What if I am a young child, is this a defense to an intentional tort?
Not a defense.
**If the child can understand that pulling the trigger of a gun a bullet will fire.
What is a "battery"?
Intentionally causing harmful or offensive contact with another person.
What is "assault"?
Intentionally causing the apprehension of immediate harmful or offensive contact from another person. (The person does not have to be afraid of the contact.)
What is "False imprisonment"?
Intentionally cause the confinement or restraint of a person in a bounded area
What are the four ways I could falsely imprison someone?
a.physical barriers
b.force or threat of force
c.omission when the defendant has a legal duty to act
d.improper assertion of legal authority
Is it possible to falsely confine someone who is asleep and unaware of his false confinement?
Usually a person must be aware of it, but if someone is harmed by the confinement even if he or she were unaware they could sue.
What is "intentional infliction of emotional distress?
The defendant must intentionally or recklessly, by extreme or outrageous conduct, cause the plaintiff severe mental distress.
**The defendant must intend to cause the emotional distress.
What privileges are there to defend against an intentional tort?
a. Consent—if the defendant gave permission there is no cause of action
b. Consent may be given or implied by law (emergency medical treatment)
c. Actions beyond the scope of consent—Hackbart v. Cincinnati Bengals or medical treatment without consent
If you were to consent to some contact do you consent to everything?
You may consent ONLY up to a certain point—playing hockey you consent to being checked but not to being hit on the head with a stick
What types of consent are not valid?
*Fraud—Consent is invalid if induced by fraud
*Duress—Consent is invalid if induced by duress (although economic pressure does not constitute duress)
*Illegality—a person may not consent to an illegal act, as in "go ahead, shoot me."
When is self-defense a privilege to an intentional tort?
A defense to an intentional tort, as long as the force is reasonable
**But: The threat must be immediate Victim's response must be reasonable
What about a reasonable mistake regarding self-defense?
The use of deadly force is reasonable only if the person believes he or she would suffer serious bodily injury or death
Is there a duty to retreat from deadly force?
There is no duty to retreat from deadly force, although some require a retreat from deadly force outside of the home.
When can you NEVER use deadly force?
You may NEVER use deadly force to protect property
*(Remember the spring-loaded shotgun case)
Can you use deadly force to defend another person?
A person may use reasonable force to defend a third person
In what way can a person use force to defend or recover property?
a person may use reasonable force to prevent a tort against real or personal property BUT unlike self-defense, a reasonable mistake will not excuse force that is directed against an innocent third party
What happens with a reasonable mistake when using force to protect property?
Force must be reasonable—NO deadly force merely to protect property (remember spring-loaded gun case)
**Even slight force is unreasonable if it is excessive—if words would work you cannot use force to protect property!!
What is "necessity"?
is another privilege to an intentional tort
*a person may interfere with the
**property interests of an innocent third party in order to avoid greater injury but the threat must be immediate and leave no time for alternate means
***Remember—child in house on fire but sign says: "No Trespassing"
What is negligence?
Another class of torts but in negligence the act is not intentional
What are the elements of negligence?
a. The Defendant owed a Duty of REASONABLE CARE to the plaintiff
b. The Defendant Breached (broke) that duty
c. The Defendant's breach of his or her duty of reasonable care CAUSED the Plaintiff's injury or harm (AND that harm was foreseeable)
**Proximate cause the Plaintiff suffered DAMAGES
ex. lost work, medical bills, pain and suffering)
How do you prove a breach of a duty of reasonable care?
By direct evidence or be circumstantial evidence.
What did the case Byrne v. Boadle stand for?
a man was seriously injured while at the defendant's store when a barrel belonging to the defendant fell on the plaintiff's head.
b. No one could testify how this happened
c. Res Ipsa Loquitur
What is Res Ipsa Loquitur?
"The thing speaks for itself"
**The court will allow this form of circumstantial proof in some obvious cases. (Barrels do not just fall on people's heads without negligence)
What role does the violation of a statute show
may help to prove negligence
Does anyone have a duty to rescue?
NO DUTY TO RESCUE OR INTERVENE
--Unless someone owes a special duty of care to another
--If you create the peril you have a duty to intervene! (Warehouse fire Worcester)
What is dram shop liability?
A commercial supplier of liquor is liable for the torts committed by a person it has supplied with liquor
What is proximate cause?
The negligence must be the legal cause of the injury for which a person sues.
What is the concept of "foreseeable"?
...
What is contributory negligence?
In common law, if a person contributed in any way to his own harm, he was barred from recovering damages. Two cases illustrate this concept well. The second one also mentions the "Last Clear Chance Doctrine."
What does the case of Butterfield v Forrester stand for?
Even though Forrester was negligent, the accident would not have occurred without Butterfield's negligence. Both parties were therefore equally at fault for the accident.
--This case helped to develop the rule of CONTRIBUTORY NEGLIGENCE
What are the differences between contributory and comparative negligence?
a.Contributory: if the plaintiff has been negligent himself he cannot recover damages for the defendant's negligence AT ALL.
b. Comparative: In a pure comparative negligence system, a judge or jury assigns a percentage of fault to each responsible party and then apportions the damage award accordingly
What is "assumption of risk"?
When one knowingly, voluntarily, and intelligently goes into a situation where harm is foreseeable, one is assuming the risk of such possible harm and therefore cannot sue!!.
What is professional malpractice?
The standard for doctors is the custom of their profession. So to sue a doctor you need to show that the doctor failed to follow customary medical practice.
How can you sue a doctor in Massachusetts?
In order to sue a doctor you need to first get the approval of a Medical Tribunal which consists of a doctor, a lawyer and a judge. This process requires you to get expert testimony on the issue.
What is joint and several liability?
Two parties (or more) are held responsible together and as individuals for liability.
What is vicarious liability?
Employers can be held responsible for the negligent acts of their employees under a theory called RESPONDEAT SUPERIOR.
What are nominal damages?
Symbolic damages when there is liability but no actual harm is proven
What are compensatory damages?
Money awarded to a person to cover property loss or other economic harm suffered by the victim and also non-pecuniary losses such as pain and suffering
What are punitive damages?
Money that is awarded to punish especially bad behavior and to deter it from happening again (Think: Ford Pinto!)
What is the duty to mitigate?
Injured victims have a duty to act reasonably to limit (or "mitigate") injuries or defendant will not have to pay
What is immunity?
immunity protects a defendant from tort liability
What is a charitable immunity?
in Massachusetts charities often cannot be sued for more than $20,000
What is spousal immunity?
Historically spouses could not sue each other for torts—no longer true
What is governmental immunity?
Historically people could not sue the government—"sovereign immunity" but state and federal governments have passed laws that allow lawsuits if governmental action causes injury.
What is strict liability?
liability without fault or negligence
**Abnormally dangerous activities such as storing explosives or flammable liquids—If bad things happen and people are hurt or property is damaged you are responsible even if you are not negligent!!
What is product liability?
The maker of a product owes a duty of care in the design, inspection, and fabrication of a product to not only the immediate purchaser of the product but to all persons who might forseeably come into contact with that product
What is an express warranty?
written guarantee
What is an implied warranty of merchantability?
a guarantee that is imposed by LAW that the product sold is fit for use for ordinary purposes.
**The seller must be a "merchant"
What is the duty to warn?
Even if a product is well designed, well manufactured and assembled, a seller may be liable if the product has the potential for injury that is not readily apparent and there are no warnings of the risk
What are 7 differences between a civil and a criminal trial?
Criminal
i. Proof beyond a reasonable doubt
ii. Presumption of Innocence
iii. Unanimous verdict
iv. Right to remain silent and not testify against oneself
v. Government versus Defendant who is found "guilty" or "Not guilty"
What are 7 differences between a civil and a criminal trial?
Civil
i. Proof by preponderance of evidence (more likely than not)
ii. Plaintiff versus Defendant who is found "Liable" or "Not Liable"
iii. No right to remain silent and no right not to testify
iv. Verdict need not be unanimous (3/4 ok)
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