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Bar Prep > Bar Prep - Torts: Key Definitions > Flashcards

Bar Prep - Torts: Key Definitions Flashcards

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0
Q

Prima facie case for torts

A

Must prove act by D, intent, and causation.

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1
Q

What is transferred intent?

A

Concept where P can be held liable for harm if you have intent towards ANY VICTIM regardless of who is hurt.

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2
Q

What is causation?

A

Concept that resulting harm must be legally caused by D’s actions.

Satisfied if conduct was substantial factor in harm.

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3
Q

What is battery?

A

Harmful or offensive touching without consent.

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4
Q

Define “harmful or offensive touching.”

A

Element of intention tort - battery. Unwanted contact that impairs/harms the body or violates a reasonable sense of personal dignity.

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5
Q

What is an assault?

A

Intentional tort that places P in apprehension of immediate battery (harmful or offensive touching).

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6
Q

What is apprehension?

A

Element of intentional tort assault, doesn’t require actual fear, only knowledge

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7
Q

What is false imprisonment?

A

Intentional tort, an intentional act of restraint where P is confined to a bounded area.

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8
Q

What is the definition/importance of a “bounded area.”

A

Element of false imprisonment, intentional tort, defined as an area where there is no reasonable means of escape that P can reasonably discover.

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9
Q

What is intentional infliction of emotional distress?

A

Intentional tort, where D’s extreme and outrageous conduct cause P severe emotional distress.

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10
Q

What damages must P suffer for a successful IIED claim?

A

Actual damages of sever emotional stress, not necessarily physical.

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11
Q

What is trespass to land?

A

D must commit a physical invasion of P’s property. P must merely be the possessor of land.

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12
Q

What is trespass to chattels?

A

Intentional interference with P’s personal property. Requires intermeddling.

Intermeddling = conduct that directly damages P’s chattel.

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13
Q

What is conversion?

A

Intentional interference with P’s personal property that deliberately damages or deprives P of possession.

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14
Q

What is consent?

A

Dense to intentional torts, P consents to intentional and ultimately harmful action. All consent has scope.

Can’t give consent without legal capacity. Aka if drunk, mentally disabled or young child.

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15
Q

What is implied consent?

A

Defense to intentional torts based off P’s implied consent, can be apparent (derived from custom), implied by law, or based on reasonable interpretation of P’s actions (body language).

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16
Q

What is protected privilege?

A

Defense to intentional torts, including self-defense, defense of others or defense of property.

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17
Q

What is necessity?

A

Defense to intentional torts, limited to property torts only.

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18
Q

What is public necessity?

A

Defense for intentional property torts when D uses, damages or enters property in emergency to protect community as a whole.

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19
Q

What is private necessity?

A

D invades P’s property to protect D’s property or self.

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20
Q

What is defamation?

A

Defamatory statement that specifically identifies P, published in public, statement is false, and statement damages P’s reputation.

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21
Q

What is libel?

A

Written defamation.

Written defamatory statement, that is published, that is false, and that damages P’s reputation.

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22
Q

What is slander?

A

Spoken defamation.

Spoken statement that specifically identifies P, is published, is false, and adversely affects P’s reputation.

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23
Q

What is an invasion to right to privacy?

A

Tort claim defined as unreasonable interference with an individual’s solitude or personality.

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24
Q

What are the common claims raised under invasion of right to privacy?

A

Appropriation of P’s likeness, picture or name
Intrusion
False light
Disclosure

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25
Q

What is the claim of false light?

A

Claim concerning wide spread dissemination of major falsehood regarding P that is highly offensive to average person.

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26
Q

What is intentional misrepresentation?

A

Fraud or deceit tort claim, where D makes false representation of material past or present fact, D intends P’s reliance, D actually causes reliance, and cause P damages.

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27
Q

What is the definition of misrepresentation?

A

D must make false representation of material past or present fact, D has duty to disclose.

28
Q

What is negligent misrepresentation?

A

Intentional misrepresentation confined to commercial transactions.

D made misrepresentation is business capacity, D breached duty owed to P, and P must actually rely on misrepresentation to their detriment.

29
Q

What is the claim of interference with business relationship?

A

Claim that D induce commercial harm, such as breach of contract or interference with prospective commercial advantage.

P must existence of valid contractual relationship, D’s knowledge of relationship or expectation, intentional interference and damages.

30
Q

What damages may P recover under a successful interference with business relationship claim?

A

Mental distress damages, punitive damages.

31
Q

What are the elements of negligence?

A

P must show D owed duty, duty was breached, and breach was actual AND proximate cause of P’s damages.

32
Q

Under a negligence claim, what is the definition of duty?

A

P must show D owed a duty of care. Defined under a reasonably prudent person standard. D owes duty of care to act as reasonably prudent person under the circumstances.

33
Q

How is duty defined for individuals with superior skills?

A

If an individual has superior skills, they are held to the standard of an individual with like superior skills or knowledge.

34
Q

With negligence, what are the special duty scenarios concerning children.

A

Child under 5 are incapable of negligence. Over 5 are held to standard of care of similar child of same age, knowledge and experience.

Exception is child doing adult activities, then held to adult standard.

35
Q

What is the standard of care owed by physicians?

A

Physicians are required to exercise the knowledge of similar professionals in similar communities.

36
Q

What duties are imposed in a bail meant scenario?

A

Typically, if then bailment was transferred for the sole benefit of the Bailor (requester), Bailee only liable for gross negligence.

Risk of liability increases as the benefit to Bailee increases.

37
Q

What duty of care is owed by the driver of a car?

A

Ordinary care owed to passengers only.

38
Q

What type of duty is owed by possessor of land to unknown trespasser?

A

No duty owed, the possessor of land is unaware of their presence.

39
Q

What duty is owed to a known or anticipated trespasser?

A

Duty to protect from (man made death traps) where conditions are artificial, conditions highly dangerous, conditions concealed, and possessor knew of hazard.

40
Q

What duty of care is owed to a licensee?

A

Possessor of land must protect licensee from all know death traps. Conditions must be concealed/hidden, possessor must have prior knowledge.

41
Q

What duty of care is owned to invitee?

A

Highest duty to protect from hazards that possessor is aware of or could have identified by reasonable inspection.

42
Q

What duty of care is owed to child trespassers, or with attractive nuisance?

A

Reasonably prudent person standard still applies.

43
Q

When is there a duty to act affirmatively?

A

Never. Exception exists if there is a formal relationship with the person in peril (innkeeper).

44
Q

What is res ispa loquitor?

A

(Thing speaks for itself). When P lacks information and doesn’t know what D did wrong.

45
Q

What is the two part test for res ispa loquitor?

A

(A) accident is type normally associated with negligence, and (B) accident normally done through negligence by someone in D’s position.

46
Q

What is factual causation?

A

Link between breach and injury suffered. Result would not have occurred but for action.

47
Q

What are “merged causes?”

A

When two or more defendants were negligent and released destructive force that hurt the P.

48
Q

What test is applied to “merged causes” situation in negligence claim?

A

Substantial factor test, ask if each breach could have caused the harm itself.

49
Q

What result with multiple defendants and unascertainable cause of harm?

A

Joint and several liability unless D can prove they aren’t liable.

50
Q

What is proximate causation?

A

Legal causation, P must show what happened was a foreseeable consequence of the breach.

51
Q

What is indirect proximate causation?

A

D is liable for harms caused by reasonably foreseeable intervening forces. Common examples include subsequent medical malpractice, negligence of rescuers, or subsequent disease or accident.

52
Q

What is negligent infliction of emotional distress?

A

Tort claim where no physical trauma is sustained to P’s body, but P is left upset and suffers a physical manifestation of injury from distress.

53
Q

What is contributory negligence?

A

MINORITY RULE: If P contributed to injury in any amount, P’s claim is barred.

54
Q

What is pure comparative negligence?

A

If P failed to exercise proper case for his own safety, the jury assigns each party a percentage of liability. Example, if P is responsible for 90% of the harm, he can only recover 10%.

55
Q

What is partial comparative negligence?

A

MAJORITY RULE, (50% Rule) P is barred from recovering against liable D if D is at least as responsible as P.

56
Q

What is the concept of “implied assumption of risk?”

A

P knew the risk and voluntarily exposed himself, then tort claim is completely barred.

57
Q

What is joint and several liability?

A

Damages are joint to P, but the defendants bear several liability amongst themselves. P can recover from one of the D’s, and D’s must settle claim amongst themselves.

58
Q

What is strict liability?

A

D is strictly liable for harm when D has (a) absolute duty to make their activity safe, (b) activity was actual and proximate cause of injury, and (c) P suggested damage to person/property.

59
Q

What are the three most common types of strict liability cases?

A

(1) Trespassing animals,
(2) Abnormally dangerous activity, and
(3) Products liability.

60
Q

When is an owner strictly liable for harm done by animals?

A

(a) Trespassing animals, and (b) Wild animals.

Owner is strictly liable for damage done by trespass of animals as long as damage was reasonably foreseeable.

61
Q

What is a products liability based negligence action?

A

Tort claim where P sues for design defects (D should have known) AND defective product.

P must should duty of care to any reasonably foreseeable P, breach of duty, causation and damages.

62
Q

What is products liability based on strict liability action?

A

Claim based on defective design, inadequate warnings, or defect product.

P must show D had duty to supply safe products, D products or sold defective product, causation, and damages.

63
Q

What are the defenses to strict liability claim based on products liability?

A

Contributory negligence.

64
Q

What is nuisance?

A

Tort claim for tip of harm that is the invasion of either private property rights or public rights by conduct that is tortious.

65
Q

What is public nuisance?

A

Tort claim that harm interferes with health, safety, or property rights of community.

66
Q

What is private nuisance?

A

Claim that D’s activity interferes with P’s ability to enjoy real estate to a reasonable degree. Must be substantial interference, or unreasonable interference.

67
Q

What is vicarious liability?

A

Concept of holding passive party liability when someone commits a tort. Based on special relationship between parties, if one person commits tortious act against third party, another can be liable. (Employer - employee).

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