2. harmful or offensive contact.
3. without consent or privilege.
(2) the other is thereby put in such imminent apprehension; and
(3) no defense or privilege applies.
Conway included this: Under the doctrine of transferred intent, Jack's intent to cause a battery will transfer to the tort of assault that he actually committed.
Just as good:
1. Intentional act by the defendant to confine plaintiff within boundaries fixed by the defendant.
2. Without legal authority, and with no reasonable means of escape.
3. Plaintiff is conscious of confinement.
2. Relative size, and tone are relevant to establishing or disproving consent.
2. intentional and tangible invasion, intrusion or entry by D onto that land, that
3. harms the plaintiff's interest.
2. Substantial dominion is exercised over chattel. (substantial enough to require repayment of full value)
3. and interfere with plaintiff 's right of possession in the chattel.
2. With plaintiff's use and enjoyment of their personal property.
3. Harm occurred(think condition, quality or value of the property, loss of use of the property, etc.)
1. D owed P a legal duty;
2. D, by behaving negligently, breached that duty;
3. P suffered actual damage;
4. D's negligence was a factual cause of P's damage;(but for the defendants negligence this wouldn't have happened.) and substantial factor test
5. D's negligence was a proximate cause of P's damage (damage was within the "scope of liability" of D)
Medical expense
Lost wages/earning capacity
Pain and Suffering
1.The statute clearly defines the standard of conduct;
2.The statute was intended to prevent the type of harm at issue; and
3.Plaintiff is a member of the class of persons the statute was intended to protect
2. Consent
3. Defense of others
4. Defense of land
5. Recapture of chattels
6. Public and Private necessity
7. Shopkeeper's privilege (not really defense more of exception)
2. Implied-in-fact consent (if Plaintiff takes part in a game of tag, then plaintiff's consent to be touched by whomever is "It" is implied)
3. Consent implied by law (in emergency situations, consent may be implied if P is unable to consent, or if a reasonable person would consent in the circumstances, or if there is no indication that P would not consent if able to do so) (Arguably, Mr. Sansweet's consent to being rescued might have been implied by law)
-can only use the amount and type of force that reasonably appears necessary to protect against a threat
-can use deadly force only if I reasonably believe the other person is about to kill or seriously harm me
reasonable manner of detention
reasonable time of detention
EX: Saving row of houses from being destroyed by fire by
intentionally blowing up plaintiff's house
Privilege applies to public officials and private individuals
Privilege does not relieve defendant from paying for harm done to property
Risk can be outside of the scope if the harm occurs in a manner outside of the risk.
Risk can be outside of the scope because the extent of it is unforeseeable.
Traditional Contributory Negligence
Pure Comparative Fault rule:
Modified Comparative Fault rule (WI):
Modified Comparative Fault rule (ND):
Modified Comparative Fault rule (TX):
P recovers proportionate share so long as P’s fault not “greater than” D’s
those related to the driver on a public road as a guest of the state has a cause of action if the accident was intentional or was recklessly caused.
Trespasser(Discovered or undiscovered).
Invitee
Licensee
No reasonable duty of care, BUT
Duty to avoid intentional injury;
Duty to warn of known dangerous artifical conditions creating unreasonable risk of harm.
Avoid acts of gross negligence
reasonable care in operations of property and;
must warn or make safe of highly dangerous artificial conditions.
express or implied invitation to conduct business; or open to the public.
reasonable duty of care.
Must make property reasonably safe
duty to inspect & repair dangerous conditions
act reasonable for activities on-premise. Expectation of safety
no reasonable care, but
duty to avoid intentionally, or willful injury
duty to warn of known dangerous/ unreasonable risk of harm, where the licensee doesn’t know about the condition and isn’t likely to discover it
Avoid acts of gross negligence with any activities owner has on-premises
landowner has duty of reasonable care if they reasonably know, or forsee that:
1. dangerous condition on his land
2.Children likely to tresspass on his land;
3. youth and inexperience, children face an unreasonable risk of serious injury
only children of tender years
does not apply when engaged in adult activity
firefighters cant recover against def. whose negligence caused firefighters injury on job
does not apply to priavte rescuers.
expert testimony generally required for P to show that D’s procedure/care did not meet the standard accepted by relevant medical community
risks and consequences of a medical procedure; success rate not a required
Doctor must inform of material facts:
P prove doctor should have known what is material and also prove that had she been informed neither she nor reasonable persons would have accepted the treatment
38. Affirmative Duty Based on Statutory Provisions Imposing Obligations to Protect Another
§ 39. Duty Based on Prior Conduct Creating a Risk of Physical Harm
§ 40. Duty Based on Special Relationship with Another
§ 41. Duty to Third Parties Based on Special Relationship with Person Posing Risks
§ 42. Duty Based on Undertaking
§ 43. Duty to Third Parties Based on Undertaking to Another
§ 44. Duty to Another Based on Taking Charge of the Other
voluntarily renders services to another and knows or should know the services will reduce the risk of physical harm; has a duty of reasonable care to the other in conducting the undertaking if:
a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
b) person the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking
takes charge of another who reasonably appears to be:
1) Imperiled; and
2) Helpless or unable to protect himself or herself
has a duty to exercise reasonable care while the other is within the actor’s charge.
a) An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from putting the other in a worse position than before the actor took charge of the other and if the other reasonably appears to be in imminent peril of serious physical harm at the time of termination, to exercise reasonable care with regard to the peril before terminating the rescue
D generally not liable for doing nothing
the no duty-to-act rule
one has no duty to aid or warn unless she created the danger or a special relationship existed
Special relationships & foreseeability
no duty owed if no special relationship exists or the third person harm was not foreseeable.
employers generally vicariously liable for torts of employees committed within scope of employment
negligent hiring & retention/supervision & training:
liability turns on whether employer knew/should have known that employee’s conduct would subject others to harm
(1) extreme and *outrageous* conduct
(2) *Intent* to cause P to suffer severe emotional distress *or recklessness* as to the effect of D's conduct
(3) causation (proximate)
(4) damages [i.e., severe emotional distress]
(severity and regularity used to determine if conduct is extreme and outrageous)
Plaintiff be: 1. present; and
2. either (a) a (close) family member (spouse, parent, sibling or child), or (b) suffer bodily harm from the emotional distress
exception to terroism
must have physical injury
Zone of danger: P can recover if placed in “immediate risk of physical harm” by D’s negligence
can recover, even if outside the “zone of danger” of physical injury, if:
I)P and the person injured by D are closely related;
ii)P was present or near the scene of the injury; and
iii.)P personally observed or perceived the event
1. Accident where injury does not ordinarily happen in the absence of negligence;
2. caused of accident was under exclusive control of defendant; and
3. accident not caused or contributed to by plaintiff.
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