Intentional Torts
Define consent (express and implied)
Willingness in fact for conduct to occur
- express: clear and unmistakable, given directly either verbally or in writing
-implied: can infer from a persons conduct, actions, or surrounding circumstances
For increased risk of future harm what must be proven
That there is above a 50% chance that the harm will occur in the future, proven by a preponderance of the evidence.
Difference between superseeding and intervening causes:
Intervening- reasonably foreseeable
Superseeding- an unforeseeable intervening cause
(1) party seeking instruction was not negligent prior to instruction
(2) emergency was sudden and w/o warning
(3) reaction to emergency was spontaneous and w/o time for reflection
Give 4 examples of Special Relationships
employer employee, common carrier and passenger, innkeeper and guest, student and school, landlord and tennant, parent and child
u wake up inside an alien spaceship. the aliens yell "surprise" and throw a birthday cake in ur face to celebrate their bday. you did not consent :( you then steal a party hat and and leave. what claims could u bring and what claims could the aliens bring against u?
battery
false imprisonment
trespass to chattels
FUNGIBLE
Define direct cause
uninterrupted causation and no intervening acts between defendants action and ps injury
Firefighter rule- holds that firefighters/police officers can not recover based on the negligent conduct that required their presence (prevents double taxation)
Define gross negligence
Indifference to the consequences of actions
(1) Objective- act or omission must involve extreme degree of risk AND
(2) Subjective- the actor must have actual awareness of the risk involved, but proceed in conscious disregard to rights, safety, or welfare of others
Rule statement for IIED, and what is the bar of proof
intent or recklesness in causing severe emotional distress through extreme and outrageous conduct and the emotional distress actually occurs. The bar is extremely high to prove - preponderance of the evidence
Define Concert of Action and give an example
Multiple actors agree to work together to do a harmful act that is against the law, they need not actively take part in it, the bar is set as low as aid or encouragement to the wrongdoer. Only an implicit understanding is needed.
Drag Racing.
What are the elements of the substantial factor test?
Number of other factors that contribute
whether actors conduct created a force or series of forces that are continuous and active up until time of harm
lapse of time
Difference between licensees and invitees
Invitees- a person who enters the land w/owner's knowledge + mutual benefit of both
A space ship lands on your mom and you witnessed it and want to file a claim against the aliens for NIED... using the Dillon Rule of Foreseeability what would you have to prove?
1. You were near the scene of the accident
2. The shock resulted from a direct emotional impact from the contemporaneous observance of the accident
3. You and your mom are closely related
4. Did she die or suffer serious bodily harm
What are the (rest) affirmative defenses to intentional torts. (5 more)
Shopkeepers privilege
self defense
defense of property
limited ppn
absolute ppn
Define/name all elements of alternative liability:
when one of multiple defendants causes the harm, but its unclear which and both are negligent
(1) more than one tortfeasor
(2) all tortfeasors engaged in similar conduct
(3) plaintff was injured as a result of the actions of one of the tortfeasors
(4) plaintff name all tortfeasors to cllaim
The aliens shut off the fire alarms in your apartment, a fire starts but you are unable to evacuate with enough time to get out scott free, you suffer 3rd degree burns as a result and have to get surgery for skin grafts to not look so chopped. Do a foreseeability analysis to determine whether there is proximate cause.
try your best :)
where defendant acted negligently and plaintiff has actual knowledge of the danger yet assumed the risk and voluntarily exposed themselves to the danger
(1) cause of accident is unknown
(2) defendant had exclusive control over injury causing instrumentality
(3) intrumentality would not normally cause harm w/o the actions of the defendant
You are abducted by aliens in your sleep. The aliens probe u while u are asleep but you wake up for a sec and think youre having dream. when u wake up you see one of the aliens bday cake in the room and you decide to eat it (yum). What claims could you bring against aliens and what claims could aliens bring against u?
False imprisonment conversion and battery
Elements of MISC
More than one tortfeasor, multiple acts occur at the same time, each of which would have been the actual cause of the harm, even in the absense of the other. Unless an act of god which removes liability from other defendant.
An alien space ship lands on earth in the middle of Joe Exotics zoo. The aliens get out of their spaceship to look at the tigers. A tiger escapes from its cage to attack an alien. What claims can they bring?
Strict liability and trespass
Elements when one has a duty to protect third parties from harm.
A special relationship exists between the actor and the third person's conduct or a special relation exists between the actor and the other which gives the other which gives to the other a right to protection.
Whats the difference between the Wisconsion rule and the Unit rule
Wisconsion rule: Ps share of negligence is compared in turn w/ the negligence apportioned to each individual defendant
Unit rule: Ps share of negligence is compared to the sum of the shares of negligence apportioned to the other actors