Beruflich Dokumente
Kultur Dokumente
Intent: Knowing with a substantial certainty that the act will bring about a certain
harm.
INTENTIONAL TORTS:
Battery: The intent to cause a harmful or offensive touching of another’s person or
body.
False Imp.: The intent to confine another against his/her will within fixed boundaries
with no reasonable means of egress. P must be aware of confinement.
I.I.E.D.: The intent to act outrageously and extreme to cause severe emotional
harm. In Florida, P must have a manifestation of emotional harm.
Trespass
to Land: The intent to be on the land, or force someone or something to be on the
land that P is the owner of, and you have no privilege to be on the land.
Trespass
to Chattels: An intentional act to intermeddle with another’s chattel in which the chattel
is harmed and/or owner is deprived use of for a substantial time or bodily
harm is caused to possessor.
PRIVILEGES/DEFENSES:
Self-Defense: If you don’t act in a reasonable and proportionate way you will
become a victim of a tortious act.
1. Can use reasonable force.
2. Must retaliate if no longer threatened. If aggressor tries to
escape or withdraws.
3. Must have reasonable belief that if you don’t act you’ll be victim.
4. Provocation - need more than just words.
5. Retreat is only necessary when using deadly force. May stand
your ground.
6. Not liable when you injure a 3rd person when using self-defense.
Defense of
Others: May use same amount of force as if you were the person
being attacked. Must know who aggressor is, if mistake is made,
NO privilege. Can only use the same amount of force as the
person trying you are trying to defend.
Defense of
Property: May use reasonable force to expel another or a chattel from
imminent intrusion of his land. May not be deadly force unless
intrusion threatens death or serious harm. Must request intruder to
leave. Minimal amount of force to terminate intrusion. If intruder
mistakenly sets foot on property, you have no defense against him.
Recovery of
Property: May use reasonable non-deadly force to recover personal
property wrongfully taken as long as actor is in “hot pursuit”.
Mistake if reasonable is no defense.
NEGLIGENCE:
Definition: The inadvertent or unintentional failure to exercise that care which Herman
would.
!One is liable for negligence when one owes a duty, breaches that duty, and
causes harm to the other as a result.
Person with physical disability - owe duty of Herman with same disability.
If you’ve created the peril (dangerous situation), then you have a higher
standard of care. Don’t have the luxury of acting like Herman.
Common Carriers - Owe a higher duty of care; liable for slight negligence.
!Invitees: One who’s primary purpose for visit is for owners benefit.
(Customers in a store, business purposes)
DUTY: Reasonable Care to warn and inspect. (Not to set traps, warn of all
dangerous conditions, even you don’t know of danger, can still be held
liable)
!Licensees: One who’s primary purpose of visit is for the interest of a 3rd party or
themselves.(Social guest, sales person)
DUTY: Must warn of known dangers, not to set traps, doesn’t have to inspect.
CAUSE IN FACT:
!When BUT FOR your act, the injury would not have occurred. When if Herman
had acted, the injury would not have occurred.
!Type of harm Herman would worry about. The type of harm that is foreseeable.
If unforeseeable, then let D go!
!When the harm was the same that the legis. was concerned with.
!When the harm is of the same type as the “L” in Hand’s equation.
Eggshell skull rule: you take the person as you find them - all you have to foresee is
is an injury, you don’t have to foresee its extent.
!INTERVENING CAUSE: happens between time of D’s negligence and P’s injury,
act of 3rd party or thing (entity).
Multiple Causes:
!Concurrent causes: Use Substantial factor test. “But for Both” stated
actions, it is more likely than not that P would not have sustained the
injury. Each D in a multiple D tort, will be responsible for the entire result
when separate acts of negligence combine to produce directly a single
injury. Eg: large fire goes into a smaller one.
!If Substantial factor test fails and we know one of the D’s had to be
responsible, then the burden of proof shifts from P to D.
D’s percentage of the Market Share which they own.
D’s must show they did not sell a product or that their market
share is as great as P alleges.
P must define market and show that it is more likely than not that
at least one of the multiple D’s P is suing could have caused harm
to P.
DIRECT EVIDENCE: Produce guy from Publix testifies he spilled juice and did not
clean it up.
CIRCUMSTANTIAL: Showing a dirty banana peel, stain on clothing.
!The thing speaks for itself. When an injury occurs and no evidence to point to anyone
specific.
Must prove: 1. D had exclusive care, custody and control of the instrumentality.
2. Type of harm that wouldn’t have happened unless someone was
negligent.
3. P did not contribute to event.
DEFENSES TO NEGLIGENCE:
Joint and Several Liability: - where 2 or more D’s act in concert, they are jointly
and severally liable. P can sue either, or both of them. P is entitled to recover the
entire amount from either or both.
!Assumption of Risk:
Express: (K’tual) P has assumed the risk of negligence and D cannot be liable if:
Implied: D must show that the P’s actions demonstrate that she knew of the risk in
question and voluntarily consented to bear that risk.
Involuntary: P is not barred from recovery - saving a child from a burning house.
STRICT LIABILITY:
!Allows for liability without fault.
CAUSATION: - Cause in Fact: When the harm would not have occurred if you
had not engaged in the activity (but for).
ANIMALS: - Domestic - Animals kept as pets, if it has vicious tendencies, then you
are liable. Must know animal to be dangerous. Not liable if there is a
warning sign that says “Bad Dog”
Elements:
!Is the risk of harm great?
!Severity of harm
!The risk will materialize even if reasonable care.
!The activity is not one of common usage or custom.
!Was the activity inappropriate to the place in which it took place (location).
!Is the value of the activity to the community great enough to offset its unavoidable
risks? (Necessity/luxury distinction must be made here).
Non natural use of land: In quantities and in a manner that could cause harm. Eg: a
fire not in a fire place.
Act of God is not a defense, instead it created a proximate cause (cause at law)
problem, not foreseeable. Excessive water due to a hurricane causes flooding - no
strict liability, but may be negligent if dam broke due to lack of care.
PRODUCTS LIABILITY:
Theories of Liability:
!Intentional Tort
!Negligence
!Strict Liability
!Warranties
If you could have cured the defect for a minor amount of money relative to the risk
involved, you should have cured it. A warning cannot save you if you thought that
was the cure. (Eg. Highly flammable clothing with warning label, if you could have
prevented the clothing from being flammable, then you can be sued.)
!Strict Product Liability: A person is strictly liable for selling a product that is in a
defective condition unreasonably dangerous to a consumer,
and the product harms the consumer or his property.
Defenses: !State of Art Defense: accidents occur because there are reasons
we could not anticipate or know
!Misuse of product: not using product for its intended use.
!Warranties: