What is the prima facie case for intentional tort liability?
An act by the defendant, an intent, and causation.
What kind of intent is necessary to constitute an intentional tort?
The act in the complaint must refer to a volatile movement by the defendant. Unconscious and reflexive acts are excluded, but acts by incompetents are considered to be volitional conduct.
What kind of intent is necessary to constitute an intentional tort?
The defendant must have an intent to achieve the consequences of his conduct by specific intent, or by conduct whose consequences are known with substantial certainty to result from such conduct.
When does transferred intent apply.
It occurs when the defendant intends to inflict a battery, assault, false imprisonment, trespass to land, or trespass to chattels on plaintiff. If he causes any of these five torts to that person or to another person he will be held liable on an intention
Which persons have the capacity to commit an intentional tort?
Everybody is liable for intentional torts. Age, mental capabilities, and intoxication are not taken into account, nor are the plaintiff's super sensitivities. Everyone must be dealt with as an average person, unless the defendant in fact knows of the plai
What is negligence?
Negligence is conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.
What is the prima facie case for negligence?
Negligence requires a showing that a duty was owed, that the duty was breached, and that the breach was the actual and proximate cause of damages.
How does liability for negligence arise?
Liability for negligence may be predicated on a volitional act, or on a willful omission to act if there is an affirmative duty to act. Omissions to act create negligence liability when the defendant is under an affirmative duty to act. The duty to act ma
Define 'duty'.
Duty is an obligation that is recognized by the law as conformance to a particular standard of conduct toward another
What is the general duty of care?
When a person is involved in any activity, he is under a legal duty to act as would an ordinary, prudent, reasonable person under the same or similar circumstances (objective test). This standard of care is imposed upon a person even for events that canno
What is the effect of a defendant's mental ability on the standard of care?
The defendant is held to the standard of a reasonable person under the same circumstances. A person's mental deficiency is not a defense.
What duty of care is owed by a bailor?
On gratuitous bailments, the bailor must notify the bailee of any known defect in the chattel that may cause injury (no duty for unknown defects). The same standard applies to bailments for hire.
What duty of care is owed by a bailee?
If the bailment is for the sole benefit of the bailor, slight diligence is required. If the bailment is for the sole benefit of the bailee, great diligence is required. In mutual benefit bailments, ordinary due care is required.
When is a master liable for torts of his servant?
An employer is liable for failure to prevent an employee's tortious conduct within the scope of employment and for the failure to use due care in hiring a reliable employee.
What does 'respondent superior' mean?
An employer is vicariously liable for any tortious acts of his employees that are performed within the scope of employment, except in cases of intentional torts when the intentional tort does not fall within the scope of the employment duties
What is the liability of an innkeeper under common law?
At common law there is no liability imposed for the consequences of a customer's intoxication.
What is the purpose of dram shop acts?
They impose liability on commercial establishments in favor of third persons injured by the intoxicated patron (this does not include the person who was drinking and caused the damage).
List the defenses to negligence.
Contributory negligence, comparative negligence, assumption of the risk, last clear chance. Last clear chance is a plaintiff's argument.
What is contributory negligence?
Negligent conduct of the plaintiff that falls below the standard established by law for the protection of self against unreasonable risk of harm and is a contributing cause to his own injuries.
What standard of care applies in contributory negligence?
The same as in ordinary negligence. What a reasonable person would have done under the same or similar circumstances.
May a rescuer be contributorily negligent?
Rescuing a person or property from danger is not contributory negligence unless the person's attempt is quite reckless under the circumstances.
Compare avoidable consequences with contributory negligence.
A plaintiff owes a duty to mitigate damages to a person or property after the damages are inflicted. A plaintiff cannot recover for avoidable consequences. Avoidable consequences only reduce the amount of damages that the plaintiff can recover, whereas co
Is contributory negligence a valid defense for intentional torts?
Contributory negligence is never a defense for intentional torts, or for willful or wanton misconduct
Is contributory negligence a defense to a strict liability cause of action?
Contributory negligence is not a defense for strict liability torts unless it is found that the plaintiff knowingly took an unreasonable risk.
When is contributory negligence imputed?
Contributory negligence is imputed in master/servant situations, joint enterprises (but only for suits from outside of the venture and not for those between persons involved within the enterprise), and in cases of injury to third persons for wrongful deat
What is the purpose of comparative negligence?
The comparative negligence approach attempts to individualize accident recoveries by spreading economic liability on all parties in proportion to their guilt. As a matter of public policy, this doctrine was used to prevent the harsh and unrealistic result
What is the effect of contributory negligence on a plaintiff's recovery in a pure comparative jurisdiction?
In this type of jurisdiction, the plaintiff can recover a percentage of his damages even if his own negligence exceeds the defendant's percentage (plaintiff 85%; defendant 15%: plaintiff recovers 15%).
What is the effect of contributory negligence on a plaintiff's recovery in a partial comparative jurisdiction?
Under partial comparative negligence, the plaintiff cannot recover if his damages exceed certain threshold levels. Some jurisdictions deny any recovery by the plaintiff if his negligence equals or exceeds the defendant's negligence.
What is assumption of the risk?
One who knows and appreciates a known danger and voluntarily chooses to encounter it will have assumed the risk of injury.
What is the prima facie case of assumption of the risk?
(1) The Plaintiff recognized and understood the particular risk involved. (2) The Plaintiff voluntarily chose to encounter the risk. (3) The Plaintiff encountered the risk expressly or by implication.
Does assumption of the risk apply to police and fire fighters?
Yes. Police and fire fighters are barred from pursuing recoveries against those rescued, as rescue is one of the occupational hazards of the job.
To which actions does assumption of the risk apply?
Assumption of the risk is a defense to negligence and strict liability.
How is express assumption of the risk interpreted?
It exists by agreement as a matter of contract.
What are the limitations on express assumption of the risk?
If offer and acceptance problems relating to unconscionability arise, the exculpatory clause may render the contract invalid. Other problem areas include actual terms and conditions of the agreed contract as well as problems associated with adhesion contr
How is implied assumption of the risk proven?
Implication is determined by the plaintiff's words and conduct, which determine the plaintiff's subjective state of mind (no reasonable person standard).
Why was the doctrine of Last Clear Chance developed?
As a matter of public policy to escape from the harsh results of contributory negligence, some jurisdictions have developed the doctrine of Last Clear Chance.
What is the Last Clear Chance doctrine?
The person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (This is a plaintiff's argument).
What is the result when a plaintiff puts himself in a position of helpless peril?
When a plaintiff puts himself in a position of extremis from which he cannot extricate himself, the defendant will be liable if he knew or should have known of the situation.
What is the result when a plaintiff puts himself in a position of inattentive peril?
When a plaintiff puts himself in a position of extremis from which he could have extricated himself had he been attentive, the defendant will be liable if he knew of the situation.
Does vicarious liability exist between automobile owners and drivers?
General rule: There is no vicarious liability, but half of the states have enacted the family purpose doctrine which imposes liability for family or household members driving with the owner's express or implied permission.
What are permissive use statutes?
Some states have enacted permissive use statutes, which impose liability for damages caused by anyone driving with the owner's consent.