Tort Process 1. P has to find a lawyer 2.

Motion to dismiss a complaint – Everything stated in the complaint is taken as true and there is no
cause for action. 3. Defendant files an answer to the motion – Defendant must state any affirmative defenses at this point. If they are not brought up here, they cannot be brought up later. 4. Discovery

5. Motion for summary judgment – are there disputed facts? If no, there will be a summary judgment
by the judge. If there are disputed facts, the trial goes on. 6. Burden of proof – P has the burden of proof

7. Motion for directed verdict – If every inference from the evidence is given for the P and no
reasonable jury can find for the P, the jury is dismissed. 8. Jury instructions

9. Motion for dismissal J.O.B – D wants the jury ruling set aside or the damages awarded are to high. 10. Court of appeals – have there been any legal errors, cannot review disputed facts found by the

(I)Consciousness (A)The D must have been conscious for there to be any intent. (II)Intend the Act (A)Must mean to do the action (example)D meant to throw the stick at the P (counter-example)Walking with the stick and D trips, stick flies out of their hand at the P (III)Intend the consequences or substantial certainty (A)Must know the harmful or offensive consequence will happen, or be substantially certain it will happen. (like a harmful or offensive touch for battery) (example)D pulled the chair out, knowing P was going to try and sit there (counter-example)D grabs a chair without seeing a P trying to sit down (B)Is a subjective test. (1)Objective testimony can be brought in about what a reasonable person should have known (including a reasonable minor child) but still need to prove the specific defendant had the intent of the consequences. (Rules) (A)Minor children can be shown to have intended acts and the specific consequences of them. (B)Don't have to know the act was bad (C)Doesn't matter why the act was done (D)Even mistaken identity (thought dog was wolf) There is still intent to do the act and intent to have the consequences (kill the animal which happens to be a dog not a wolf) (E)Mistaken identity does not negate intent. (F)Intent can be transferred in common law trespass cases (1)If A intends to shoot B and misses (assault) but hits C (battery) the intent to batter B transfers to

cane. raising fist. (II)Restraint of a person (rule)Person must be aware of their restraint at the time it occurs. the restrainer is still liable (2)A failure to have a recollection of the restraint does not matter. however slight can constitute a battery (an unwanted kiss) (B)Offensive contact is taken in the objective state (would a reasonable person find the contact offensive) (damages)(not an element) False imprisonment (I)Intentional (A)specific intent do the act and specific intent to cause a restraint. and the D is capable of it) (B)Victim must be aware for there to be an apprehension of the battery (C)Must be reasonable apprehension of touching (objective standard) (III)Harmful or Offensive (A)Any touching.the battery of C and A is liable. (exceptions) (1)If the person suffers an injury as a result of the restraint. however slight can constitute a battery. Intentional Torts Battery (I)Intent (A)must be conscious (B)Intent to do the act (C)Intent to cause a harmful or offensive touching (II)Touching of another (A)Any touching that is done in an angry manner can be a battery (B)Can be anything intimately attached to a person (clothes. and it is going to happen right now. plate in hand) (III)Harmful or offensive (A)Any touching. only the awareness of the restraint while it happened (A)Physical restraint of a person (B)Unreasonable means of escape can involve any of the following. pointing gun) (C)intend the apprehension (II)Apprehension of touching (imminent) (A)needs to be an imminent fear (it is going to happen. (B)Offensive contact is taken in the objective state (would a reasonable person find the contact offensive) Assault (I)Intent (A)conscious (B)intend the action (speaking. (1)Exposure (nude) of the person . or knowing with substantial certainty.

except in exigent (extreme) circumstances (III)Without legal justification (A)If statutory legal procedures are followed for commitment to a mental institution. to restraint of a person against their will (4)Threats of future actions are not enough (I will call the police if you leave) (5)No duty to release passenger off a plane before it reaches its destination. the citizen is not liable. (G)False arrest (1)Taken into custody (2)By Someone claiming legal authority to do so (3)But the person does not have legal authority to do so (rule)A person aiding an officer in a false arrest can be held liable. nominal damages may be awarded (C)Cannot recover damages for injuries acquired during escape if the person could have remained imprisoned without a risk of harm Intentional Infliction of Emotional Distress (I)Intentional or reckless (A)done for the purpose of causing the distress. (exception)If the officer requests the help of a citizen. or (B)done with a knowledge the distress is substantially certain (Exceptions?) (C)Knew the bystander was there and the bystander suffered bodily harm as a result of the distress (D)Knew the bystander was there and the action was directed at a member of his family (II)Extreme and outrageous conduct (rule)Subjective to the person the actions were directed towards (must take into account a woman. (Damages) (A)May be actual and/or exemplary (B)No actual damages need to be proven. there is no false imprisonment.(2)Material harm to clothing (3)Danger of substantial harm to another (4)Danger to the person (5)Person does not know there is a reasonable means of escape and it is not apparent (i)person restraining the person this way is under a duty to inform the person of the other exit (C)Can be in a moving vehicle (D)Can be in an area as large as an entire state (E)Can be restrained by words which he fears to disregard (F)Retention of a persons property can be enough (Example)taking a woman's purse and not giving it back so they may leave. in itself. (exceptions) things that are not restraint of a person (1)Refusal to admit (entrance) (2)Another reasonable exit exists and is apparent (3)persuasion to stay without implied or real use of force does not amount. (B)An officer with a valid warrant (C)An officer with probable cause a crime was committed and the person arrested committed it. over a hardened marine) (A)Conduct must exceeds all bounds usually tolerated by society . unless they knew it was a false arrest. (D)A conviction of the crime the person was arrested for is a complete defense to false arrest.

(II)Unlawful (A)unauthorized is unlawful (rule)Doesn't matter if the trespass was socially useful or beneficial to the owner (B)Failure to remove a thing placed on the land pursuant to a license or other privelage (1)Was previously allowed or permitted and (a)is no longer allowed or permitted and is not properly removed. soil below and air above (A)By a person (B)By a thing (caused by someone) (rule)does not include things that are not contesting the owners exclusive right to the land (example)lights. including future threats of violence (3)cursing someone with a weapon in your hand (no threats though) (III)Cause severe emotional distress (Rule)Made on an objective. (C)Can be vibrations of air or earth (caused by someone) (examples) blasting nearby causing a foundation on a house to crack (D)Mining under a person's property is usually a trespass (E)Flying planes over a person's property is usually not a trespass. unless it is extremely low (Exceptions) . or (b)the privilege for the trespass is no longer permitted and the thing is not removed (C)failure to leave after a “welcome” has expired (1)D must know the welcome has expired (exceptions) (1)certain public land owners cannot refuse entry or service based on discrimination (2)If a land owner controls an area so large as to essentially be a municipal government. “bitch” (2)profanity and abuse over the phone. he is required to allow freedom of speech and peaceful picketing (Think company town) (III)entry of a close (rule)includes all the land. smoke passing over land from a fire. whether D knew it was not theirs or not is irrelevant.(B)Atrocious and intolerable in a civilized community (Counter examples) (1)words like “bastard”. “bum”. rather than subjective standard (A)Must cause a severely disabling emotional response (examples) (1)Serious threats to physical well-being (2)A public utility or carrier has a greater standard to be held to (3)Continuous humiliation and embarrassment by racial slurs and jokes at work (IV)Without privilege (Damages) (required) (A)Emotional distress (B)Resulting bodily harm Trespass to Land (I)Intentional (A)Conscious (B)Intend the act (1)Person meant to walk onto the land (where not forced on) (C)Intent to cause the consequences (1)Intended to be on the specific land.

but most show actual and substantial damages (Damages) (A)nominal damages (B)Compensatory (C)Punitive (D)Emotional distress may be awarded for aggravating circumstances (E)Liable for consequences of the trespass (need not be foreseeable) Trespass to Chattels (I)Intentional (II)Without consent or other privilege (III)Use or Intermeddling with a chattel (A)Intermeddling is defined as bringing about a physical contact with a chattel (1)electronic signals by a computer are a physical contact (IV)of another (Liability if and only if) (A)The chattel is impaired as to it's (1)Condition (2)Quality (3)Value (B)The possessor is deprived of the use of the chattel for a substantial time (C)Bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest... To protect from nominal damages a possessor can use reasonable force to protect his chattels.. Conversion (I)Intentional (II)Exercise of dominion or control (A)Ways of converting a chattel that so seriously interfere with the owners right.. full value can be required to be paid include. (D)Possessor is dispossessed of the chattel (rule)No nominal damages are awarded for this tort.(A)Environmental Trespass – Same as regular trespass. bill. check. stock etc. such as driving 10k extra miles in a car) (4)receiving it (purchasing from a thief) (5)Disposing of it (selling it to someone else)(throwing it in the garbage) (6)Misdelivering it (delivery to a wrong person by mistake and it's lost thereafter) (7)Refusing to surrender it (will not give it back) (III)of a chattel (A)Can be a real piece of property (not land) (B)Can be a promissory note. stock etc. (C)Can be a conversion of rights to a promissory note. scientific research) (IV)Of another . (1)Acquiring possession of it (such as stealing it) (2)Damaging or altering it (killing an animal)(modifying a weapon) (3)using it (bailee violates the terms of bailment(buys a car instead?)) (Uses the chattel more than was permitted. bill. (D)Can be information that is gathered and arranged at cost and sold as a commodity (E)Ideas that are formed with labor or inventive genius (literary works. check.

(B)Damages cannot be recovered for sentiment alone. (rule)Sports players who consent to a game that is violent consent to permitted behavior in the game. If the action breaks the rules of the game. it must be viewed in light of the surrounding circumstances. If a reasonable conclusion from the behavior and circumstances suggest consent is given. so no demand for it's return is required. other methods for finding value can be used. (Damages) (A)Damages are usually the fair market value of the property converted. then it was given. (1)The extent and duration of the exercise of dominion or control (2)The actor's intent to control or have dominion over the chattel (3)The actor's good faith (a)Does not prevent recovery by the original possessor/owner (b)Cannot obtain good title from a thief (can obtain a good title that was taken by fraud) (4)The extent and duration of the resulting interference with the possessor's right of control (5)The harm done to the chattel (6)The inconvenience and expense caused to the possessor (Rules) (Demand) – of the chattels return is required in some places before an action conversion can be brought. but it must be taken into account that the chattel is returned when damages are awarded. No secret undisclosed intents matter. (Return) – When there is a return of a chattel.(A)Does not have to be an owner. (3)If there is no market value. but did not have possession. (rule)A person cannot give consent if they are incapable of expressing a rational will (drunk off their . such as manufacturing costs. can be a possessor (A finder can recover for conversion) (1)Even if the possession is wrongful against the true owner (one converter can have action against another converter) (B)Can be a person who has immediate right to the chattel. but do not consent to behavior or actions that are not permitted by the game. the actor may be liable in court. (1)Plaintiff may be able to recover damages for emotional harm if the conduct is outrageous. (V)That interferes with the right of the possessor so seriously that the actor may justly be required to pay for the full value of the chattel (A)Seriousness of the interference and whether or not the actor should be required to pay the full value of the chattel takes into account the following factors. (2)Market value is determined at the time and place of the conversion. (1)What the property could have been sold for in the open market by a willing seller to a willing buyer. (C)Punitive damages may be awarded when the conversion was done maliciously (but not when it was done innocently) Privileges Consent (rule)In determining if consent was given. it does not bar the action of conversion. However in most places the conversion takes place when the defendant takes dominion and control of the good. (rule)Consent is not necessarily given for acts that violate the “terms of agreement”. Such as a football player does not consent to having their knee intentionally kicked in by another player just because they are playing a violent sport.

the position of the D should be stronger (Examples) (1)A state that has a law prohibiting sex with a minor. the consent does not prohibit the minor from collecting damages from the act because the act was illegal. (rule)Can be liable for trespass. (rule)Right to refusal of treatment is not limited to those suffering terminal illnesses (rule)Patients competent to refuse treatment. mentally ill) (B) There is a risk of serious bodily harm if treatment is delayed (C) A reasonable person would consent to treatment under the circumstances (D) The physician has no reason to believe the patient would refuse treatment under the circumstances. (teacher in dunk tank for raising money for charity. rather than fraud to the essential character of the act itself. (A)The patient is unable to give consent (unconscious. intoxicated. (rule)Informed Consent – physicians must inform patients of the possible problems of an operation before obtaining consent.(should be an objective test though) Provocation (rule)words alone are not provocation for self defense (rule)Some jurisdictions words can be a challenge to fight and thus may constitute consent . (rule) Medical care providers may act in the absence of express consent if. (damages)If the patient is kept alive against their will they may recover nominal damages. even if it the decision is fatal. the consent of the adults does prohibit an action in court. Self Defense (Rule) Anyone is privileged to use reasonable force to defend themselves against a threatened battery. Consent to illegal acts Several factors to consider if consent can be given to an illegal act (A)Should compensation be denied to a P who is a fellow wrongdoer? (B)Would not giving the P recovery damages deter others from participating in illegal acts? (C)What are the potential liabilities in deterrence of the P and others like him? (D)Has the P been intentionally battered by the P and should that matter? (E)If both are guilty. doesn't have to be a straight lie By Fraud (rule)Consent induced by fraud or misrepresentation as to the collateral matter. Reasonable belief (rule)The privilege exists as long as the D reasonably believes that the force is necessary to protect themselves. not just battery.ass) Medical stuff (rule) A patient must be consulted and give consent before a physician may operate. (rule)once an aggressor retreats. Retaliation (rule)retaliation is not covered under self defense. By Deceit (rule)Consent received by deceit is not a lawful privilege (rule)Deceit can be misleading information. may refuse treatment. and a minor consents to sex. will not invalidate consent. (2)A state that has a law prohibiting sex among unmarried adults. money is actually used for a student party). an attack by the previous victim can be fended off under self defense. (proof)Burden of proof lies on the person claiming self defense. but cannot recover compensatory damages for wrongful living or wrongful prolonging of life.

(rule)To justify use of deadly force. (II)Reasonable force (A)May use force that the D thought was reasonably necessary to the situation (B)May not use force intended or that is likely to cause death or great bodily harm (1)Land possessor may be charged in criminal and civil court for such actions (C)May not set up mechanical devices to use force that would not be permitted if the property possessor was there and used it himself. deadly force may be permissible (1)Signs posted about vicious dog (2)Barbed wire gives notice of itself . (rule)The majority rule is that a D may stand his ground and use deadly force if necessary. (example)Can't kick someone out into a tornado. the D can be held liable for battery Defense of Property (rule)May defend personal property using reasonable force against unlawful intrusions. except of the defense of others (rule) reasonable force to defend another is allowed. unless it is not reasonable to make the request. Amount of force (rule)The amount of force used in self defense is limited to a reasonable amount of force to protect against the threatened battery. (B)May not be able to eject a person when it puts the person into unreasonable physical danger. (I)Defend personal property (A)Possessor who used for to defend property in a reasonably mistaken belief that he had privilege is not entitled to protection under the privilege. Injury to third party (rule)An attempt at self defense that injures a third party is a defense so long as the D was not negligent in the attempted self defense Retreat (rule)Generally retreat is not necessary for any force used that will not cause serious injury to the attacker. unless (1)The intruder in some way mislead the possessor as to his identity or authority. though not usually required in ones home. (D)May not use any force until a request has been made for the intruder to leave. (1)May eject into danger if the presence of the person puts the others on the premises in danger (a)May be considered self-defense or defense of others (example)A person who has H1N1 and is coughing all over the place in a studio apartment. a D must have feared for his life or feared great bodily harm. (1)If the request could not be made safely in time. even when he is mistaken in his belief that intervention is necessary.(rule)words can be introduced as provocation to reduce punitive damages against the D. (rule)Retreat can be required before using deadly force. Defense of others (rule) a defense similar to self defense. (2)The request would be useless (E)May use deadly force if the intruder threatens the safety of the D or his family (self-defense) (F)Sometimes if there is clear warning given to the invader. so long as the mistake was reasonable. (rule)other view is that a mistaken defense of others. (example)Can't throw a teenager off a moving train for stealing a ride. (rule)Restatement says a D may use deadly force before retreat if the D had any reasonable doubt whether retreat could be safely made.

force used to overcome the resistance is not unnecessary (B)May not use force that is unreasonable to recover the property (1)Cannot use force calculated or likely to cause death or great bodily harm. or without breech of peace. If the buyer will not give up the property. . (B)May not detain a person until they agree to pay for merchandise. (III)Fresh pursuit (A)Prompt discovery (B)Prompt and persistence effort to recover (1)Any undue lapse in the pursuit will mean the possessor must regain possession by the law and not force. when a person refuses to pay (boat ride) (D)A request to stay must be made if it is practicable to do. if it can be done without unnecessary violence. the owner must resort to legal remedy. Most states require force not be used. (1)A clause in the contract giving the owner a right to retake by force is void. but rather legal remedy.(Some jurisdictions) (1)May use more force when a felony is being committed (not usually deadly force today) (2)Deadly force may be used to protect against burglary (III)Unlawful intrusion (A)No privilege to use force against those who are authorized to enter (example)Cannot stop a meter reader who has the right to be there (example)Police officer who is allowed to be there Recovery of Property (Rule)A possessor has a right to obtain property fraudulently taken or taken by force. (I)taken fraudulently or by force (II)Retake without unnecessary violence. in a fresh pursuit. (rule)this privilege varies greatly from state to state (Rule)Some states allow for the retaking of real property by the use of reasonable force short of death or serious injury. and the destruction of the property would save other property. (Rule)In payment plans that the buyer defaults on. the possessor may use any reasonable force necessary to defend himself (D)May not use any force until a demand for a return of the property has been made (1)Not required when the demand appears to be useless or dangerous. Necessity (Rule)When there is an imminent threat to the P's property already. (I)Merchant (II)Reasonable belief of larceny (III)Reasonable detainment (A)May not detain a person and hold them until a signed confession is given. as it would constitute a breech of the peace. (C)Some states extend the privilege to providers of service. or breech of peace (A)If the unlawful taker resists. (example)Shop owner may not choke hold a shoplifter in a parking lot. (C)If the wrongdoer resists. an owner may repossess the property only if it does not cause a breech to the peace and may not recapture it by force. it's destruction may be done out of necessity to save other property and the person doing the destruction will not be held liable. (Rule)Merchants may reasonably detain a person whom is reasonably believed to have taken a chattel unlawfully.

Some jurisdictions allow officers to arrest without a warrant. (D)Military officers may use discipline to keep order in their ranks. (Citizen will be held liable if there was no felony committed) (C)Only may arrest for a non-felony if it was committed in your presence and you are in hot pursuit. (A)Lawful arrest (counter-example) The arrest is not lawful if. (2)If the officer acts improperly during the arrest (excessive use of force) (3)An arrest is not lawful if the officer does not properly carry out the warrant (like arresting the wrong person) Common Law (A)An officer or citizen may arrest without a warrant to prevent a felony if it is reasonably apparent it is being committed in his presence. (D)Cannot arrest for misdemeanor unless it was committed in the presence without a warrant. teacher. housekeeper etc. (Rule)When there is no imminent threat to the P's property. Discipline (Rule)This privilege to keep order is given to parents or someone standing in the place of a parent. ie break into a house and steal. (B)If the damage is caused by the whether alone. (B)Corporal punishment has been held not to violate the eight amendment and is privileged under discipline. the D can be held liable for damages to the P's property. (A)Others in place of the parent may include. but the D creates a threat to the property by guarding himself from the threat. without the actions of the D's. then the D's are liable for damages. . (Rule)Necessity can also be when a person holds a gun to your held and tells you to do something. the ship owner is liable for the damage to the dock. then the D's are not liable.(A)Sometimes a municipality can be held liable for torts committed that saved the municipality at the expense of others. (Rule)Reasonableness of actions are to be determined from a consideration of all the circumstances. Authority of Law (Rule)Police officers. may act under authority of law if the D is duly commanded or authorized by law to do acts that would otherwise be tortious.. daycare provider. (A)A ship staying docked to prevent damage destroys the dock. etc. (E)An officer may be held liable for excessive use of force. (C)However if the direct cause of the damage to the P's property is caused by the D's saving their property. babysitter. (C)Captains of a ship may use discipline to keep order with crew and passengers. (1)The amount of force allowed to be used declines the farther away we get from real parents. Justification (Rule)Restraint of a person from inflicting personal injuries is justified. (1)The court issuing the warrant has no authority at all to issue the warrant (If the warrant is “fair on it's face” the officer will not be held liable. military personal. A citizen may arrest if a felony HAS been committed and he reasonably believes he is arresting the person who committed the felony. (B)An officer may arrest if he reasonable believes a felony has been committed and reasonably believes he is arresting the person to have committed the felony. mental heath facility officials.

(III)A reasonably close causal relationship between the breech and the resulting injury (A)Actual cause (B)Proximate cause (IV)Actual loss or damages (A)May not recover for punitive damages unless actual damages are shown. (D)Foreseeability of a risk (1)There must exist. (E)If the precaution necessary to prevent an injury is less than the probability of the injury times the severity of the injury. (1)The risk is unreasonable if it outweighs the utility of the act. considering what normally regulates human affairs. therefore a duty of reasonable care must be taken. (H)Factors to determine magnitude of risk (1)The social value of the interests which are imperiled (2)The extent of the chance that the conduct will cause an invasion of any interest of another. (example)creating a fire hazard that an ordinary man would know is dangerous. in the situation at hand. (B)This standard applies to all parties involved in the event (1)Thus it is an affirmative defense to claim contributory negligence. (3)The extent of harm likely to be caused (4)The number of persons likely to be invaded if the risk takes effect in harm. just an ordinary person. . and the likelihood is of such appreciable weight and moment as to induce a reasonable prudent person to act to avoid the risk.Negligence Definition – Not doing something in which a reasonable man. (2)The extent of the chance that the interest will be advanced or protected by the conduct. (F)How to determine unreasonableness and the magnitude of risk and utility of conduct. a reasonable and prudent man would take the precaution. (Rule)An ordinary man is just that. The policy does not require the conduct of an extraordinarily careful person. Standard of Care The Reasonable and Prudent Person (Policy)Requires in all cases a regard to caution such as a man of ordinary prudence would observe. (C)In order for there to be a duty of reasonable care the action must be clearly or intrinsically dangerous. (3)The extent of the chance that such interest can be adequately advanced or protected by another less dangerous course of conduct. (I)A duty to use reasonable care (A)Conduct that falls below the standard of care established by law to prevent unreasonable risks of harm. would do or doing something which a reasonable and prudent man would not do. that ignites is negligent. some real likelihood of some damage. (II)A breech of the duty (A)What should the actor have done? And did they do it? If not there is a breech of duty. or (2)The the particular manner in which it is done (G)Factors to determine the utility of the conduct (1)The social value of the interest which is to be advanced or protected by the conduct.

in lapse of time. sudden and unexpected emergency. However if there was no way to put up a railing. can not be held negligent for an accidental contact with another person. you can show that it is customary to put handrails on stairs so your landlord was negligent. (Rule)Must distinguish ignorance from a breach of duty to find out. (example)All apartments are installing handrails on stairs. (example)Extremely bald tires on a car is assumed to be known by a driver since a simple inspection would disclose the fact. or distracted attention occurs. However. this custom may be proved to show that a person has fallen below the required standard conduct.(example)Driving a care that an ordinary man would know is unsafe (extremely bald tires) and causing an accident because of them. (example)A drunk person walking down the street is entitled to the same safe street as a sober person Age . (Rule)When certain dangers have been removed by a customary way of doing things safely. (rule)The customary practice must be so well known that the person can be charged with knowing. then his actions must be judged in light of those circumstances. the person is assumed to know. Intoxication (Rule)An intoxicated person cannot use their intoxication as a disability. (Rule)Anything a person would know through a reasonable inspection. your landlord would not be negligent. or negligent ignorance for not knowing. the emergency doctrine does not apply. the tenant (ignorant) can rely on the landlord and assume the things installed are safe. (Rule)An intoxicated person is however entitled to the same reasonable safety that a normal person is entitled to. this does not make pillows at the bottom of the stairs the reasonable standard of care. (Rule)The mere fact that another person uses a better or safer practice does not establish a standard. normally cautiously. Likewise if proof shows the person did conform to the standard. it would not be in the circumstances. then they can use that to show they were not negligent. (Rule)What usually is done may be evidence of what ought to be done. and though ordinarily swerving into the wrong side of traffic would be negligent. The proof is not admitted in the abstract. (example)Acting as a reasonable drunk person does not make the person less negligent. Even when walking without a cane he cannot be held liable if it was not unreasonable for him to not be using the cane. and you fall and get injured. (example)An encounter with a falling boulder off a cliff would constitute a sudden emergency. is negligent. (example)A blind man walking with a cane. (example)A landlord installing something has a duty to make sure it is safe. it must bear on what is reasonable conduct under all the circumstances. but what ought to be done is fixed by a standard of reasonable prudence. that was not of his own making. Emergency doctrine (Rule)If a person is acting under an unforeseen. (example)It is not a defense to negligence when doing something unsafe to claim everyone else does it this way. Persons with disabilities (Rule)A person with a disability is required to take the precautions which a reasonable blind person would take under the circumstances. (Rule)It is commonly held that a reasonable person will not forget something they know. because the person is liable for the negligence that created the emergency. yours does not. whether it usually is complied with or not. (example)The landlord across the street has pillows at the bottom of the stairs. a person may be found not negligent. (Rule)If the emergency is created by the negligence of the actor.

(B)Just because a person is a professional good results are not automatically guaranteed (though they can be guaranteed in a contract if the professional chooses to do so) (C)Professionals who hold themselves out to be “specialists” are held to a higher standard. (ie not testing for glycoma in the eye) (exception)When the negligence is negligence not related to the profession. since a lay person would not know what a professional is supposed to do. (rule)Professionals are not expected to know everything. and (C)He will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge in his service. Mental illness (Rule)Held to the reasonable prudent person standard. (A)This is an objective test. (rule)Conversely. however. but he must also testify that what the D did was did not conform with the standard of care of an ordinary member of the profession. skill. but is often a test question) The Professional (RULE)Held to the standard of the reasonable ordinary professional.(Rule)Children are held to the standard of care of a reasonable prudent child of their same age in their same circumstances. (DAMAGES)In order to recover damages against a professional. just what the ordinary member of the profession knows. such as leaving bed rails down after a doctor inspects a patient. In other words tactical decisions by doctors or lawyers on an ambiguous subject that could go either way are not actionable. (RULE)Expert testimony is required to show what the professional standard of care in the situation is. (exception)The sudden onset of mental illness (doesn't happen practically. A professional can still be found negligent even if he was conforming to the customary practice if the P can prove the custom is negligent. it is not conclusive. (RULE)A professional who engages in a service to another impliedly claims. (rule)A professional acting in good faith and in an honest belief that his advice and acts are well founded and in the best interest for his customer is not liable for a mere error of judgment. and (B)He will exert his best judgment in his duties. the P must show that the D's negligence was the proximate cause of the harm (failure to recover/injury) and were it not for the negligence the P would have avoided the harm (recovered/avoided injury) . or from the omission to use reasonable care and diligence or from the failure to exercise in good faith his best judgment. and ability necessary to the practice of his profession and which others similarly situated ordinarily possess. (A)He possesses the requisite degree of learning . (exception)When the activity of a child is inherently dangerous (such as driving a motorized vehicle) the child is to be held to an adult standard of care. (rule)The expert must not only testify that he would not have done the same thing the D did. (D)NOT the “average” as this would leave half the professionals negligent. (Rule)Infirmities caused by age should be taken into account in determining whether comparative negligence should be instructed to a jury. (rule)Testimony as to the customary practice in the profession is a strong argument for proving there was no negligence. and does not modify for the specific professional. he is answerable in damages for any loss which which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated. and NOT the cream of the crop of the professionals as this would leave most professionals negligent.

(1)Local standard of care for non-specialists (2)Similar community for doctors (3)National standard for certified specialists (national certifications) Disclosure (Rule)In obtaining a patients consent. (rule)HIV positive doctors have to disclose their status to patients. (rule)This is generally covered under negligence by saying that a reasonable person in like circumstances would have to exercise the higher care depending on the degree of risk. Aggravated Negligence (rule)Different degrees of care depend on the risk of harm involved (both severity and possibility). or (2)Full disclosure would be detrimental to the patient's best interest. (rule)Must “stop. the standard is what other doctors in the community do. (1)may plead and prove the P knew of the risk. and (B)If he had been informed of the risks he would not have consented to the treatment. a physician has a duty to disclose all information material to the patients decision. that may affect the physician's professional judgment. or (3)An emergency existed requiring prompt treatment and patient was in no condition to decide for himself. looking and listening would not have avoided the incident. (rule)A physician must disclose personal interests unrelated to the patient's health. whether research or economic.(RULE)Doctors are held to the standard of care in the community. look and listen” at railroad crossings. Rules of Law (Policy)Some courts have laid down standards of conduct that are always negligent. and (C)The adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment. a failure to do so may give rise to a failure to give full disclosure and could lead to an action. (B)Juries do not understand what doctors should do. so we leave it to what the community has established as the standard of care (community of doctors). Exceptions have been made for circumstances where stopping. (rule)There are three possible standards of care for doctors. (rule)Physician may owe a duty to non-patients injured by adverse affects of a prescription the physician failed to disclose to his patient (ie. (A)For doctors the standard is determinative or in other words. (exception)If the doctor or hospital has a national certification. (A)The D physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment. (rule)Must disclose discrepancy in mortality rates between an inexperienced physician and an experienced one. though even these rules of the law can have exceptions to them. Makes driver drowsy and causes an accident) (Rule) In a medical malpractice action a patient suing under the theory of informed consent must allege and prove. such as when there was an obstruction on the railroad so the driver would have been forced to stop in an unsafe . (defenses)The D physician can use as a defense any of the following. then the doctor is held to the national standard of care.

(D)A court should consider whether the statute clearly defines the prohibited conduct. Effect of Statute (Rule) The unexcused omission of a statutory requirement is more than evidence to negligence. (RULE)In deciding whether a court will apply negligence per se to a statute there are several factors to consider. (Rule) A person who breaks a criminal statute is not to be held liable for damages. and (C)The harm was proximately caused by the violation of the statute. (POLICY)It's important to remember that if negligence per se is not used for the statute violated. (Rule) Jurors have no power to relax a duty owed by one driver to another. if not then applying it as negligence per se could be difficult and detrimental to tort law. (rule)If this is found the D is said to be “negligent per se” or prima facia depending on the state (rule)It is still up to the court to adopt this legislative negligence over regular common law negligence Applicability of Statue (Policy)It is appropriate for the court to examine preliminarily the appropriateness of the standard as a measure of care for civil litigation under the circumstances on the tracks to be able to see an oncoming train. . (A)The court can look to see if it's appropriate to hold the D liable under the circumstances. (C)The absence of common law duty should be a factor in considering whether to use the statute as negligence per se. a P can still have an action using the default negligence standard of the reasonable person in like circumstances. (RULE)PRIMA FACIA states leave the decision of whether the violation of the statute constitutes negligence up to the jury where NEGLIGENCE PER SE states decide the issue as a matter of law. but can be used to prove negligence. all of the following. However the violation of the statute can still be used as evidence towards proving negligence. (F)Would negligence per se produce liability that is disproportionate to the offense committed? If so then that would be a strong factor to not take violation of the statute as negligence per se. (E)Would the statute create liability without fault? If so then it probably shouldn't be negligence per se in tort law. it is negligence in itself. (rule)violations of advisory codes are not negligence per se. unless the breaking of the statute is the cause of the damages. (rule)violations of administrative regulations are usually given less weight than statutes (rule)do not necessarily constitute negligence per se. (rule)Statutes can have more than one purpose (example)no noisy mufflers (1) prevents annoying noise pollution (2) Allows the driver to be able to reasonably hear traffic hazards. (B)Recognizing a new purely statutory duty “can have an extreme effect upon the common law of negligence” when it allows a cause of action where the common law would not. Violation of Statute (RULE)A person is liable in civil court for negligence if he violates a statute and. (A)Is it appropriate to impose tort liability for violations of the statute. but can be used to prove negligence. (A)The person harmed is in the group the statute was enacted to protect. (rule)violations of ordinances are usually given the same weight as statutes. and (B)The harm is of the type the statute was trying to prevent.

prudent person in the circumstances. then he is liable for failing to correct it. (A)So if there is sufficient evidence to show there was an excuse for the violation. or the D should have known about the hazard and did nothing about it. and sufficient time to correct the condition. actual or constructive notice of the specific condition need not be proved. but also the alleged wrong doer has an opportunity to come forward with evidence and rebutt the presumption of negligence. (6)This is not an exhaustive list. an unexcused violation is “negligence per se” which must be declared by the court and not left to the jury. strong and credible evidence that there was an adequate excuse. (3)The actor is unable after reasonable diligence or care to comply. (C)There is no exact time limitation (just a reasonable time) (D)Each incident must be viewed in the light of its own unique circumstances (E)The owner has a duty to inspect the premises to assure the safety of patrons (reasonably inspect) (F)If by the exercise of the reasonable care the owner would have discovered the condition. Proof Of Negligence Court and Jury: Circumstantial Evidence (RULE) In order to prove negligence. (4)The actor is confronted by an emergency not due to his own misconduct. (A) A minority of states hold that the violation is only evidence of negligence for the jury to decide. (Rule)If the finder of fact determines an excuse exists. (RULE)The statutory purpose doctrine. (A)Knowledge may be shown by circumstantial evidence (1)This is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.(Rule)A statute designed to protect human life is not to be brushed aside as if it were an optional duty. then the standard of care reverts back to the common law standard of care of the reasonable. (B)Whether a dangerous condition has been there long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. (A)Reasonable excuses can be (unless otherwise stated in the statute)(Restatement S288A) (1)The violation is reasonable because of the actor's incapacity. . (RULE)When a statute applies to the facts. or the D knew of the hazard and did nothing about it. (5)Compliance would involve a greater risk of harm to the actor or to others. the P must prove that the hazard was either the direct or proximate cause of the D. (RULE)Constructive knowledge – The P does not need to show the D had actual knowledge of a hazard when they can show evidence which suggest the dangerous condition was present for a sufficient perod of time so the owner should have known. (Rule)Compliance with statutes is not “reasonable per se” but can be shown as evidence of acting reasonable. (Rule)A violation of a statute establishes a prima facia case for negligence that can be refuted by showing there was positive unequivocal. and the requirement of proximate cause need to be satisfied. the statute should not apply in the circumstances anyway and there should be no criminal liability. Then. (2)The actor neither knows or should know of the occasion for compliance. (RULE)When the operation methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable. (RULE)If the P relies on the owner having knowledge of the dangerous condition he must prove the owner had notice. the logical basis for the notice requirement dissolves.

In MI if you don't have a more than 50% chance to live. . In some jurisdictions. and (C)The D did not exercise reasonable care to reduce or eliminate the risk. Other jurisdictions say they will value the loss of chance in and of itself. The P has to be unconscious or unable to see the negligence. times the total damage from the D. Causation two issues (1)actual cause (2)proximate cause ACTUAL CAUSE must prove causation by a preponderance of evidence. Res Ipsa Loquitur (definition)Res Ipsa Loquitur . Other Jurisdictions say what you do is take the percentage of loss of chances of recovery. Leave it up to the jury to decide (if there is a permissible inference) Is an explanation of what the D did. If an expert can't determine how something happened. and (B)The condition posed an unreasonable risk of harm. And each of the D either did it or saw who did it. and those facts are proven. how can we ask a jury to? Some force is more likely than not going to kill the P and the D negligently does not advise or help the D.“The thing speaks for itself” (RULE)When something occurs where there appears to be negligence on the face of it. (B)To get around this. Ybarra – the group being charged has to have either done it. or know who has done it.(A)Essentially if you operate a business in a manner where spills and hazardous conditions are frequent and the norm. and that's the liability of the D. (RULE)The P must prove four elements to prove negligence (A)The D had actual or constructive knowledge of the dangerous condition. the P can have full recovery for the D. The joint mothers would have had to have been able to have knowledge of the incident to be able to be held. then the burden shifts to the D to prove that there was no negligence. you are assumed to be on constructive notice that there is always a hazardous situation. Terotagen is a chemical that causes a birth defect. because there is a reasonable inference. or say who did it. and is permissible proof of that. Must show that there is enough evidence that a reasonable juror could conclude that it is more likely than not that the negligence caused the harm. a owner can have non slick flooring with mats down and warning signs up for customers. there is no cause of action. Must show that you did not cause the negligence. Burden of proof shifts from the P to the D if he can prove that one person of a party or group was negligent. and (D)The D's failure to use such care proximately caused the harm. Must have all of the possible culprits in front of the court. So the motion to dismiss must be denied. This makes the D's talk. Joint and several liability – you are all liable and have to pay for the total.

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