Intentional Torts and Defenses
Intentional Torts Names
What is... ABFIT
1) Battery
2) Assault
3) False Imprisonment
4) Intentional Infliction of Emotional Distress
5) Trespass to land, chattel, & conversion
Standard of care
What is "defendant must do what a reasonable person under the circumstances would do"
translation of "res ipsa loquitur"
What is "the thing speaks for itself"
Eggshell Plaintiff
Who is ... analyzed only for proximate causation. Take the plaintiff as you get them... preexisting conditions and all
Plaintiff recovery if they contribute in a contributory negligence state
How much is ZERO?
Battery
What is... single intent; an actor is subject to liability to another if:
1) actor intends to cause contact with a person;
2) actor's affirmative conduct causes contact
3) contact causes bodily harm or is offensive
Person/people that determines a duty exists
Who is the judge?
Breach is decided by
Who is the jury?
Palsgraf Determinations
What is only proximate cause on behalf of defendant if plaintiff was in the forseeable zone of danger created by the defendant's conduct
Birds-eye-view
zone determined by jury
Pure Comparative Negligence
What is... plaintiff recovers damages which is reduced by the percent of their own fault
False Imprisonment
What is...
Actor intends to confine within a limited area,
Affirmative conduct causes confinement,
Plaintiff is aware of confinement or suffers bodily harm as a result
The Hand Formula?
What are "the Hand Factors"?
1) The likelihood that the conduct will injure others;
2) the seriousness of the injury if it happens
3) Balance the interest which must be sacrificed to avoid risk
Standard of care for children
what are children of the same age, maturity, and expereinces UNLESS the activity is inherently dangerous then it is an adult standard of care
But For Causation Analysis
What is...
1) identify the injury involved/harm to plaintiff
2) idenfity the defendant's wrongful conduct
3) create a counter-factual scenario in which defendant didn't act tortiously
4) ask if the injury would have still occured
5) if (4) is no, causation established
Express versus Implied Assumption of Risk
What is...
Express Assumption
1) language needs to be clear
2) no public policy exceptions
Implied Assumption
1) plaintiff has actual or constructive knowledge of the risk
2) plaintiff has to appreciate the risk
3) plaintiff voluntarily accepts risk
Available Affirmative Defenses
What are...
3 types of consent (actual, implied, & apparent)
Defense of self/others, & property
Shopkeeper's Privilege
Inherently Dangerous/Dangerous Items
What are the 5 factors?
- character and location of premise
- the purpose for which the item is used
- the probability of injury
- precautions necessary to prevent injury
-relations between precautions cost to benefit of item
Res Ipsa Loquitur Elements
1) harm suffered is the type of accident that doesn't happen unless someone is negligent
2) Instrumentality was under the exclusive control of the defendant
NIIED Bystander Rule
What is...
1) plaintiff was near the scene
2) plaintiff observed the incident with their senses
3) must be a close relative
4) severe distress caused as a result
Start of Statute of Limitations clock for continuing torts
When is the completion of the continuing tort
Rare Defenses
What is...
1) necessity
2) arrest
3) immunity
4) discipline
Special Relationship to a Third Party
What is Duty of Care Exists if:
1) harm is forseeable
2) comparative interests of the parties
3) public good/societal intereset
4) opportunity to prevent
Negligence Per Se Test
What is the Safety Statute
1) plaintiff is the class of person intended to be protected by the statute
2) the type of harm suffered by the plaintiff is the type of harm that the statute intends to protect
3) Whether it was appropriate to use the statute for negligence per se
Wagon Mount Test
What is...
1) determine if there was negligence
2) was any kind of damage forseeable
3) determine if there was a reasonable forseeability of that damage
4) if (3) is met, then perfrom a risk-prevention analysis to see if risk could have been reduced with minimal burden
Difference between the two types of modified comparative negligence
What is... yikes
1) 50/50% - plaintiff can recover if their fault does not exceed 50% or is greater than defendant
2) 51% or 49% - plaintiff can recover as long as their fault is not as great or is less than defendant
*only differs when fault is 50/50*