NEGLIGENCE DEFENSES
The ____(1)____ bears the burden of proving the elements of negligence against ___(2)____.
1. defendant
2. plaintiff
**remember: Defendant has to prove that (a) plaintiff owed duty to herself, (b) that she breached that duty, (c) that plaintiff's breach was an actual and proximate cause, and (d) that plaintiff suffered harm
Negligent infliction of emotional distress is a claim against a person whose ___(1)____ caused the claimant to suffer severe emotional anguish.
1. negligence
The prima facie case for intentional torts to persons requires that there be
(1) a voluntary act; (2) intent; and (3) results.
Intent will be satisfied when the defendant intends to commit a tort against one person and the tort results to another person. The intent to commit a tort transfers from the intended victim to the person who was harmed
Transferred intent as to persons
Proximate Cause asks
acceptable:
Whether it is fair to hold the defendant liable for the plaintiff's injury
OR
whether the type of harm that results is reasonably foreseeable based on the defendant's breaching conduct
In a contributory negligence jurisdiction, the effect of "plaintiff's ___(1)____" completely bars recovery. This is an all-or-nothing result.
negligence
A Direct victim who experiences ____(1)_____ and ____(2)_____ from the defendant's negligent conduct as a result of the physical injury
1. physical injury
2. emotional harm (/mental distress, etc)
***remember, if this is the rule that is triggered, you do not need to state it because the rules for compensatory damages already address it
One is liable for battery if there is
(1) a voluntary act which is (2) done with intent to cause harmful or offensive bodily contact and (3) harmful or offensive bodily contact results.
Intent will be satisfied when the defendant intends to commit one tort but ends up committing another tort. The intent transfers to the tort that actually results.
Transferred intent as to torts
Intervening acts or causes
Defendant is a proximate cause of plaintiff's injuries where there is an intervening act if the intervening act is reasonably foreseeable at the time of the defendant's breaching conduct
remember:
generally, the ordinary negligence of intervening acts does not cut off the original tortfeasors liability for plaintiff's harms
-generally, gross negligence, acts of nature, intentional torts and criminal acts of other people do cut off the original tortfeasor's liability (unless there are facts that make these acts reasonably foreseeable at the time of the Defendant's breach)
In a pure comparative fault jurisdiction, the effect of plaintiff's negligence reduces plaintiff's recovery of damages by ____(1)____ (hint: NY)
her share of fault
RST 3rd rule: A defendant owes the plaintiff a duty to protect her from negligently inflicted emotional distress for stand alone emotional harm if
(hint: 3 options/scenarios)
(a) the defendant's negligence places the plaintiff in danger of immediate bodily harm and the emotional harm results from the danger; or
(b) the negligence occurs in the course of specified categories of activities; or
(c) the negligence occurs in the course of specified categories of relationships where negligent conduct is especially likely to cause serious emotional harm AND serious emotional disturbance results (a,b,c inc.)
One is liable for assault if there is a
(1) voluntary act done with (2) intent to cause apprehension of imminent harmful offensive bodily contact and (3) apprehension of imminent or harmful bodily contact results.
Trespass to personal property requires
(1) a voluntary act (2) done with intent and (3) the personal property belongs to another person and (4) intermeddling occurs resulting in (5) actual harm/dispossession/lost use to/of the personal property
for the type of harm to fall within the scope of risks created by the defendant's breaching conduct, generally, it is only required that the type of harm be ___1____ for an actor's conduct for the defendant to be a proximate cause of the plaintiff's injuries
1. foreseeable
In a modified comparative fault jurisdiction, plaintiff can recover damages if plaintiff's negligence was not ___(1)____ than the defendant's negligence, but the plaintiff's damages will be reduced by their share of fault. (ex: wisconsin)
1. greater
**remember: If the plaintiff's negligence is greater than the defendant's negligence, the plaintiff will recover nothing (ie. Wisconsin)
Thing rule: The defendant owes a duty to protect a bystander plaintiff from negligently inflicted emotional distress based on witnessing another person being physically injured by the defendant's conduct when
hint: 3 requirements
(a) the plaintiff is closely related to the victim; and
(b) the plaintiff is present at the scene of the injury producing event at the time it occurs is perceiving the event and is aware that it is causing injury to the victim; and
c) the plaintiff suffers serious emotional distress which is beyond what would be anticipated in a disinterested witness/is not an abnormal response to the circumstances
False imprisonment occurs when there is
(1) a voluntary act (2) done with intent to confine another person within a limited physical area; (3) confinement results and (4) the plaintiff is aware of the confinement when it occurs (or if they are not aware of the confinement when it occurs, the plaintiff must be harmed by the confinement)
Conversion of personal property requires
(1) a voluntary act (2) done with intent and (3) the personal property belongs to another and (4) substantial dominion results
An exception to the foreseeability rule that addresses degree, severity, or extent of Plaintiff's harm
eggshell plaintiff rule
reminder: eggshell plaintiff rule states a Defendant is the proximate cause of Plaintiff's harm if defendant's breaching conduct precipitates or aggravates a pre-existing condition or illness that Plaintiff had, even if that results in harm that is more severe than one would normally expect or reasonable foresee
the difference between joint and several liability and several liability is that in several liability, ____(1)_____, while in joint and several liability, the plaintiff can collect the entire amount of damages from _______(2)________
1. defendant is liable to the plaintiff for no more than their proportionate share of damages
2. all of the defendants or from any single defendant or from any combination of the defendants (and then the defendants can sue one another for contribution)
Intentional infliction of emotional distress occurs when there is
(4 elements)
(1) a voluntary act (2) that constitutes extreme and outrageous conduct (3) which is done with intent or done recklessly to cause distress to another and (4) severe emotional distress results
A shopkeeper is privileged to detain another person on the premises if
(1) the shopkeeper has reasonable belief that plaintiff has taken goods without paying for hem (2) the purpose of detention is for an investigation or to call law enforcement and (3) the detention is conducted in a reasonable manner and for a reasonable period of time.
Trespass to land requires
(1) a voluntary act (2) done with the intent to enter or cause entry upon the land and (3) the land belongs to another and (4) entry on the land results
regarding intervening acts, most courts say ____1______ acts do supersede/cut off liability because they can be unforeseeable while ____2______ acts do not because they are foreseeable.
1. criminal
2. negligent, also will take doctors/first responders