Conversion
“intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel” (Restatement (2nd) of Torts)
Prima Facie Case
Case in which the technical elements of the tort are met, burden is on the plaintiff to prove this
Affirmative Defense
Defendant concedes that the elements of the tort are met but nonetheless argue that they should not be held liable, burden is on the defendant to prove this
Battery
Intentionally harmful or offensive physical contact with another person.
Elements of battery:
1. Intend to contact the plaintiff and
2. That contact must be objectively harmful OR offensive
3. Harmful contact results
Assault
Apprehension of imminent harmful or offensive contact.
Elements:
1. Defendant must intend to cause apprehension
2. It must be plausible that the contact will occur.
False Imprisonment
Direct known restraint of the physical liberty of a person, absent adequate justification
Elements:
1. Defendant intended to confine the plaintiff
2. Plaintiff was conscious of the confinement
3. Plaintiff did not consent to the confinement
4. Defendant had no authority to confine the plaintiff.
Trespass to Land
Purposive, unauthorized entry onto the property of another by physical means
Intentional Infliction of Emotional Distress
Outrageous behavior that is intentional or reckless that is intended to cause severe emotional distress
Elements of IIED:
1. Defendant’s conduct was intentional or reckless
2. Defendant’s conduct was extreme or outrageous
3. Defendant caused the plaintiff emotional distress
4. Emotional distress was severe
Trespass to Chattels
Intentionally using or intermeddling with the chattel in possession of another.
A trespass to chattels occurs if the defendant’s contact with the chattel:
1. Impairs its condition, quality or value
2. Deprives the possessor of use of the chattel for a substantial time
3. Causes bodily harm to the possessor or something legally relevant to the possessor
Negligence
A defendant acts negligently if they not exercise reasonable care under all circumstances.
Elements of negligence:
1. The defendant has a duty to use reasonable care to protect other from unreasonable risks of harm
2. There has been a breach of this duty
3. There is a reasonable causal connection between the conduct and the injury
4. There has been actual loss or damage.
Standard of Care
A defendant fails to take precautions that a reasonable and prudent person would under the same circumstances.
Negligence Per Se
If a defendant violates a statute they have automatically breached their duty of care.
Elements of negligence per se:
1. The plaintiff must be in the class of people the statute was meant to protect
2. The injury must flow from the same hazard the statute guards against
3. The statute is appropriate for a tort standard.
Rule of Law
Fact patterns that suggest negligence so strongly that some courts do not even refer them to a jury
Proximate Causation
- Black’s Law: “any cause which in the natural and continuous sequence, unbroken by an efficient intervening causes, produces the result complained of and without which the result would not have occurred”
- Restatement 3rd: “an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious”
- Essentially draws a line around negligence liability
Intervening Cause
- Condition or action which foreseeably arose from the defendant’s negligence, does not break chain of proximate causation
- E.g. ‘acts of God’, third party actions or action by an animal
Superseding Cause
Condition or action which did not foreseeably arise from the defendant’s negligence, breaks chain of proximate cause
Causation in Fact
Elements:
1. Negligent conduct occurred before the injury
2. The injury would not have occurred without the negligent conduct
Sine qua non
Injury would have occurred regardless of another’s actions
Res Ipsa Loquitur
- “The thing speaks for itself”
- Restatement (2nd): “Past experience which reasonably permits the conclusion that such events do not ordinarily occur unless someone has been negligent”
Contributory Negligence
A plaintiff acting negligently is sufficient to completely bar them from recovery.
Elements:
1. Plaintiff’s conduct does not meet the standard of care expected of a reasonable person.
2. Plaintiff’s negligence is in any way an actual and proximate cause of the injury.
Comparative Negligence
If both the plaintiff and the defendant acted negligently, the damages awarded to the plaintiff will be reduced by their portion of the negligence.
Types:
1. Pure comparative negligence: each party bears the damages in proportion to the impact of their negligence on the injury.
2. Modified comparative negligence: if a plaintiff’s negligence is greater than or equal to the defendant’s negligence then recovery is barred.
Assumption of Risk
If a plaintiff takes on risk before they perform an activity, they are unable to recovery from injuries resulting from that activity.
Elements:
1. Plaintiff had actual knowledge of the risk
2. Plaintiff appreciated its magnitude
3. Plaintiff voluntarily encountered it
Types:
* Implied assumption of risk: context suggests that a reasonable person would assume risk
* Express assumption of risk: plaintiff explicitly agrees to assume risk (e.g. through a contract)
Damages
Types:
* Compensatory/actual damages
* Nominal damages (small sum to show you were right)
* Punitive/exemplary damages (punish the defendant to deter others from acting in a similar manner
Mary Carter Agreement
- Plaintiff settles with some defendants but takes all defendants to court.
- Guarantees that the plaintiff will receive some payment but leaves the possibility that the defendants can reduce the amount they pay if there is an excess in damages awarded at trial.
