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Torts Checklist
Intentional Torts
I. Assault
A. Elements
1. D intends to cause
Intent to cause contact
Intent to cause fear of contact
2. Fear or apprehension
Reasonable
3. Harmful or offensive
contact
Imminent
B. Affirmative defense
II. Battery
A. Elements
1. D intends to cause
Intent to cause contact
Intent to cause fear of contact
2. Harmful or offensive
contact
B. Affirmative defenses
1. Self-Defense
a.
Reasonable apprehension of harm or offensive contact by D.
b.
Reasonably necessary force
c. If
D is the aggressor he must "retreat to the wall" until there is no choice but to
defend
d.
Limits as to "deadly force"
Mere Trespass
Felonious Entry
Entry of Dwelling
Reasonably Necessary Force
1. Warning or request to leave
2. Reasonable force short of deadly force
1. Reasonable force short of deadly force
1. Reasonable force, even deadly force if
a. felonious entry
b. threat to person
Whenever a property owner uses a firearm to protect property, he risks using "deadly
force"
Courts don't look favorably on it
e.
Self-defense justified
(1) Challenge to fight
(2) Consent to illegal act (?)
f.
Self-defense not justified
(1) Oral provocation
(2) Consent to illegal act (?)
2. Defense of others
a.
Court examines circumstances and decides if the aid was warranted
b.
Person does it at her own risk
3. Consent (See c,d above)
a.
Challenge to fight is consent
b.
Consent to an illegal act may be considered consent
c.
Oral provocation is never consent
III. False Imprisonment
A. Elements
1. D intends to cause
confinement
2. D fails to provide another
exit when D has blocked only apparent exit
3. Confinement against will
Actual or perceived
B. Affirmative defense
1. Reasonable detention for
safety, order, etc.
IV. Intentional Infliction of Emotional Distressed
A. Elements
1. Restatement 46
A. D
intentionally or recklessly causes
B.
Severe emotional distress
C.
With or without physical consequences
2. Restatement 312
A. D
intentionally and unreasonably causes
B.
Emotional distress
C.
Foreseeable physical injury
B. Affirmative defense
V. Invasion of Privacy
A. Elements
1. D intends to cause
intrusion
2. Intrusion into seclusion
B. Affirmative Defense
Unintentional Torts
VI. General Negligence
A. Elements
1. Unreasonable risk
2. Foreseeable harm
B. Affirmative defense
1. Assumed risk
VII. Medical Malpractice
A. Physical
1. Failure to disclose/inform
a.
Falls below ordinary standard of care
2. Negligent care
a.
Ordinary standard of care test
(1) Known risk to medical community (in geographical/ medical area?)
(2) Common enough that people in this field regularly dicsclose it.
b.
Material risk test
(1) Should Dr. have foreseen this problem?
(2) Was there a significant risk that it would occur?
(3) Did Dr. fail to disclose the risk?
Duty |
Ordinary Material Every Known
| Every
to
|---------------------------|-----------------|-------------------|--------------->
| Possible
Inform | Standard Risk
Forseeable Risk | Risk
B. Emotional/Psychological
1. Negligent failure to warn
a.
Specific threat of violence
b.
Specific victim
2. Negligent release
(discharge) from custody
a.
Threat of violence (may be inferred from previous behavior)
b.
Foreseeable victim (not just class)
3. Negligent failure to
commit (policy considerations make this difficult)
a.
Threat of violence
b.
Serious condition
c.
Foreseeable victim
4. Negligent
misrepresentation that D was harmless
Duty-Risk
VII. Duty-Risk analysis
A. Duty (must be a legal duty)
1. Basis (relationship)
2. Scope (Risk)
B. Breach (violation of duty)
1. Standard of care
2. Substandard conduct
C. Causal Relation
D. Damage
VIII. Notes on duty-risk
A. Generally, no duty to aid unless
1. Special relationship
(employer/employee; father/son)
2. Undertake to give aid and
a.
worsen the condition
b. P
relies to detriment
c.
terminate unreasonably (Restatement doesn't recognize this)
IX. Policy considerations
A. Moral considerations (default=tilt for D)
1. Serious safety rule?
2. Risk of serious injuries?
3. Too unusual to be
concerned about?
4. Foreseeable?
5. Who's fault?
B. Economic considerations (default=tilt for D)
1. Compliance reduce risk of
loss?
2. Optimum risk reducer?
3. Optimum loss distributor?
4. Compliance costly burden?
C. Administrative considerations (default=tilt for P)
1. Unusually difficult
problems of proof?
2. Indeterminate liability?
4. Flood of cases?
Proximate Cause
X. Proximate Cause
A. Elements
1. Foreseeable?
2. Cause in Fact?
Duty/Risk
Proximate
Basis
DUTY
Scope
Duty/Risk;
Policy: Flood of Litigation.
BREACH
Standard
Utility/Risk;
Statute
Substandard
Conduct
Utility/Risk
CAUSATION
Cause in
Fact
Cause in Fact;
Intervening
Party; Chain
Reaction
