Chapter 5 - Torts - Concepts Flashcards
1
Q
A tort is not always a (1)–some are imposed by the law just for causing (2) or (3). Tort law originates from (4) and has been organized by ALI’s publishing of (5).
A
- wrongful act
- injury
- damage
- English common law
- Restatement of Torts
2
Q
3 basic types of torts
A
- negligent acts or omissions (failure to exercise reasonable care)
- intentional acts (doing something intentionally wrong)
- Strict liability (regardless of intent or negligence–wild animals, explosives, dangerous activities)
3
Q
An employer held liable for an employee’s actions is an example of (1). Two modern types of torts are (2) and (3). Tort liability has also been imposed on (4) and (5).
A
- vicarious liability
- invasion of privacy
- toxic torts (environmental)
- tobacco companies
- gun manufacturers
4
Q
Negligence is the failure of a person to exercise (1), which is determined by what an (2) would do in similar circumstances, and such negligence led to (3) or (4).
A
- reasonable care
- ordinary, reasonable, prudent person
- injury
- damage
5
Q
4 basic elements of negligence
A
- duty of care owed
- breach of duty
- proximate cause and that result was foreseeable
- resulted in loss or damage to plaintiff
6
Q
Professionals are held to a standard of care that matches (1). Part of the duty of care is to (2), and they often require the patient to sign give (sign) (3) to say he understands these. Psychiatrists are required to (4).
A
- reasonable skilled practitioners in the field
- inform clients of potential risks
- informed consent
- protect intended victims from harm
7
Q
3 potential exceptions to reasonable standard of care
A
- emergency situations (examine circumstances)
- children (under 7)(except doing adult activities)
- physical and mental handicapped (physical=act as prudent person with disabilities) (mental=usually held to same standard as normal person)
8
Q
In order to establish a (1) case, the plaintiff must show duty and breach. If a statute covers a defendant’s actions, surrounding circumstances do not need to be examined; this is (2). In cases where negligence is present simply because an injury occurred, this is called (3)–such as an exploding beer bottle or removal of the wrong organ.
A
- prima facie
- negligence per se
- res ipsa loquitur
9
Q
The actual cause of the plaintiff’s case is often determined by the (1) test; other courts will determine whether the def’s action was a (2) in injury. The idea of (3) or (4), which must be proven, is proof that the foreseeable consequence of the def’s act was the plaintiff’s injury.
A
- “but for”
- substantial factor
- proximate cause
- legal cause
10
Q
In (1) the NY Court of Appeals determined that injury caused to a woman by a scale falling after being hit by an explosion from dropped fireworks, was not a foreseeable result of actions by the railroad’s employees.
A
- Palsgraf v. Long Island Railroad
11
Q
If an (1) caused the plaintiff’s injury, that doer will generally be liable.
A
- intervening act
12
Q
In “ordinary negligence,” the plaintiff may collect (1) to “make him whole,” which may include (2). In gross negligence–intentional failure to perform a required act, or outrageous disregard for rights of others–(3) can come into play.
A
- compensatory damages
- loss of consortium
- punitive damages
13
Q
The most common defense in negligence cases is (1). The three most common affirmative defenses are (2), (3) and (4).
A
- denial of negligence
- assumption of risk (permission slips, implied consent)
- contributory negligence (PLT gets nothing if also contributed)
- comparative negligence (determined percentage of fault)
14
Q
In pure comparative negligence, the plaintiff may (1). In modified comparative negligence, the plaintiff (2). Comparative negligence poses a problem for (3) and (4).
A
- collect even if contributing (20% damages asked, even if 80% liable)
- receives nothing if 50%+ liable
- multiple defendants
- assumption of risk (insurance underwriters)
15
Q
An intentional tort consists of a willful act that the tortfeasor knows will cause (1), (2), (3) or (4)
A
- injury
- interferes with another’s property
- injures a person’s reputation
- wrongfully invades someone’s privacy
16
Q
Intent for the sake of intentional torts is distinguished from (1) and is the (2) to cause immediate consequences or the (3) that they will occur. Sometimes (4) comes into play.
A
- motive
- desire
- knowledge
- transferred intent
17
Q
Four categories of intentional tort
A
- Person’s body (assault, battery, false imprisonment
- Person’s reputation (defamation)
- Newer torts against persons (infliction of emotional distress, invasion of privacy)
- Person’s property (trespass, misuse, conversion, concealment, fraud)
18
Q
(1) and (2) frequently go together, the former being placing a person in (3) of injury, and the latter being the actual (4) and can include simply unreasonably touching another person.
A
- Assault
- Battery
- apprehension
- contact/injury
19
Q
A jailer holding a person too long, a suitor locking in someone to keep her from leaving, and a store detaining an accused shoplifter all commit (1)
A
- false imprisonment
20
Q
Separate from (1), individuals may bring civil suit for intentional torts to recover monetary damages. Actions for (2) are far less frequent than (3) in which the defendant likely carries liability insurance.
A
- state prosecution for the crimes
- intentional torts
- negligence lawsuits
21
Q
Courts differ on whether defamation by (1) and (2) are slander or libel, but the same principles apply to each. Defamation tends to harm the reputation so as to (3) or (4). Defamation can also depend on the (5).
A
- television
- radio
- lower community estimate of him
- prevent third parties from dealing with im
- “temper of the times”
22
Q
5 accusations that can count as defamation irrespective of loss
A
- perjury
- treason
- guilty of crime
- has loathsome disease
- sexual relations with a minor
23
Q
The US Supreme Court has deemed (1) and later (2) exempt from being able to sue from libel, since they have access to the media.
A
- public officials
2. public figures
24
Q
In Newton v. National Broadcasting Co., a station broadcast that a well-known entertainer had mafia dealings; an appeals court overturned damages because of a lack of (1). A similar judgment was made in (2), for which a reverend sued after a magazine joked that he had incestuous relations with his mom.
A
- actual malice
2. Hustler Magazine v. Falwell
25
4 distinct wrongs, as held by Alabama Supreme Court, of invasion of privacy
1. intrusion upon the plaintiff's physical solitude/seclusion
2. publicity which violates ordinary decencies
3. putting the plaintiff in a false (not necessarily defamatory) position in the public eye
4. appropriation of the plaintiff's personality for commercial use
26
A public official/figure who claims to have been placed in a false light bears the burden of proof required in (1).
1. defamation
27
3 types of interference with property
1. trespass to land (entering land without permission)
2. nuisance (affecting someone's property)
3. conversion (stealing property)
28
4 requirements at common law for fraud or misrepresentation (which many statutes today still use)
1. a false statement of a material fact
2. knowledge by the person making the statement that the representation is false
3. intent by the person making the statement that the representation will induce the other person to act
4. justifiable reliance on the representation to the injury of the other party
29
(1) can be considered fraud. (2) is generally exempt from liability. (3) is a protected area for fraud and misrepresentation, but the plaintiff often falls short on proving (4) on the seller's representations.
1. concealment
2. puffing (sales talk)
3. Sales of securities
4. justifiable reliance
30
Three main defenses to torts again a person
1. consent
2. self-defense (and defense of others)
3. authority of law
31
5 points where consent defense will not stand
1. intoxication
2. not competent
3. fraud
4. coercion
5. infancy (for some statutes, such as statutory rape)
32
One may use (1) to protect himself if he (2) it is necessary. Intervening on behalf of the (3) may not be protected.
1. reasonable force
2. reasonably believes
3. aggressor
33
(1) is a defense against slander and libel. Statements made by public officials in doing their job or in testimony are protected by (2). Employers informing prospective employers, or someone filing a police report, is protected under (3).
1. Truth
2. privilege
3. qualified privilege
34
Two main defenses against property torts
1. reasonable use of force
| 2. necessity
35
(1) cannot be used to protect property. There must be a (2) and some jurisdictions require (3). (4) and (5) are ok, but (6) are not.
1. deadly force
2. serious risk of harm
3. retreat if possible
4. Guard dogs
5. electric fences
6. spring guns
36
Strict liability refers to (1), such as dangerous animals and dynamite, and was also upheld for (2) and for (3).
1. abnormally dangerous activities
2. reservoir waters flooding a mine
3. phosphate slime storage contaminating public water (unnatural use of land)
37
Sales of products originally relied on the doctrine of (1), but have grown into (2). At first, a manufacturer was only liable to the (3). Macpherson v. Buick Motor Car Co, changed this, holding the manufacturer liable for (4). and even (5) injured by a defective product.
1. caveat emptor (let the buyer beware)
2. strict liability
3. immediate buyer
4. all persons reasonably foreseen as users
5. bystanders
38
The rationale for imposing strict liability is that it will (1) and most companies have (2).
1. increase the level of safety of products
| 2. liability insurance
39
For product liability, the PLT must prove (1). The Def can show (2) or (3).
1. proximate cause
2. unforeseeable use of the product
3. use beyond recall
40
A warning does not (1) the seller from liability for defect. Limits to product liability cases have dealt with (2)
1. immunize
| 2. jurisdiction
41
Vicarious liability gives employers incentive to (1) employees. An employer-employee relationship must be distinguished from one of an (2), in which vicarious liability would not apply. One exception to this latter statement is (3).
1. carefully select and train
2. independent contractor
3. contracting of dangerous work
42
The trend has been to (1) vicarious liability in employment situations, and (2) hold the employer liable. Employers have a duty to investigate prospective employees and exercise (3); failure is known as (4). This has been extended to (5) and was remanded for a case in which a (6) assaulted a (7).
1. broaden
2. foreseeable torts (eg, violence perpetrated by someone with a history of violence)
3. reasonable supervision
4. negligent hiring
5. clergypersons and offenses against minors
6. maintenance man
7. townhouse dweller (let onto premisis)
43
Vicarious liability has cracked down over time on (1). One standard applied is the idea of (2)
1. owners of cars negligently driven by others
| 2. dangerous instrumentality
44
9 "special case" torts
1. professional malpractice
2. liability of owners in real estate
3. negligent infliction of emotional distress
4. survival actions
5. wrongful death actions
6. preconception torts
7. torts involving alcohol
8. toxic torts
9. torts involving deprivation of constitutional rights
45
Professional malpractice is failure to meet the (1) of professionals with (2). (3) must be established, and negligence can be established with (4) or (5).
1. reasonable standard of care
2. similar training and experience
3. proximate cause
4. common knowledge
5. expert testimony
46
Two most common professional malpractice torts
1. medical malpractice
| 2. legal malpractice
47
Generally a property owner only has liability to a tenant/renter if the owner knows of a (1).
1. concealed danger
48
Visitors to a store are (1) and a (2) applies. Liability exists where the owner (3) or had (4) of the situation.
1. invitees
2. reasonable care
3. knew of a danger
4. constructive notice
49
A guest to a house is a (1) and the reasonable standard of care is (2) than that to an invitee. (3) and (4) are also considered at this standard.
1, licensee
2. lesser
3. firefighters
4. police officers
50
An owner is generally (1) for damage to a trespasser unless it is (2). This is different for (3) and a greater standard of care is owed of the owner possesses an (4).
1. not liable
2. intentional
3. children
4. attractive nuisance
51
Most courts allow a plaintiff who is a (1) to recover for (2) if they can demonstrate a physical consequence from fright or shock.
1. bystander
| 2. negligent infliction of emotional distress
52
(1) allow continuance of a deceased's cause of action; (2) are an exception.
1. survival statutes
| 2. defamation suits
53
(1) allow that someone who causes death of another person is not off the hook more than someone who merely injures another; they are commonly referred to as (2) after English common law. (3) are allowed to sue; (4) are not.
1. wrongful death acts
2. Lord Campbell's Acts
3. Dependents (spouse, kids)
4. live-in cohabitants
54
In (1) cases, which can be lack of advise to terminate pregnancy, onset of illness causing a defect or improper sterilization, the person may sue for (2). (3) is somewhat different and refers to birth that would not have occurred "but for," and damages of just (4). A (5) has been upheld for a baby that could have been immunized from a blood defect.
1. wrongful birth
2. added expenses associated with the defect/birth
3. wrongful life
4. medical expenses
5. preconception tort
55
(1) eliminate the proximate cause requirement in alcohol laws and allow a person injured by an intoxicated person to recover damages against the (2). These are particularly sensitive to (3) and can extend to (4) as well as (5).
1. Dram shop acts
2. vendor
3. sales to minors
4. social hosts
5. parents who allow their kids to attend alcohol parties
56
Toxic torts involve human exposure to (1) that include those regulated by (2). Among many legal problems with toxic torts are the (3) and (4).
1. toxins
2. government agencies
3. scientific complexities
4. number of people involved
57
Worker's compensation is paid out to those injured (1) and (2). Employees can obtain coverage without proving (3), but benefits do not extend to (4).
1. in the course of employment
2. arising out of employment
3. fault
4. pain and suffering
58
The reduction of Exxon's punitive damages for the oil spill is an example of protection of (1).
1. due process (not excessive fines)
59
Deprivation of constitutional rights under (1) is a cause of action existing to deter (2) from abusing authority. A famous case was excessive force used against (3). It must be established which (4) was (5).
1. color or authority of law
2. state actors
3. Rodney King
4. substantive right
5. infringed
60
The doctrine of sovereign immunity holds that the (1) as a sovereign nation and the (2) as sovereign states cannot be sued without consent. Often sovereign immunity is (3). A case of social services workers ended with the ruling that immunity does not apply to flouting of (4).
1. United States
2. states
3. waived
4. constitutional rights
61
The (1), enacted by Congress, waives the federal government's sovereign immunity for "negligent or wrongful acts", Claims are brought to the appropriate (2) and filed in the (3). There are numerous (4).
1. Federal Tort Claims Act of 1946
2. federal agency
3. US Court of Claims
4. exceptions
62
Chisholm v. Georgia held that sovereign immunity did not apply to (1) when sued in (2), but this decision was nullified in the (3).
1. states
2. federal court
3. 11th Amendment
63
With the trend in (1) the trend is to abolish immunities of state or local governments. Suing a state is usually limited to (2) or (3) and immunity comes into play for (4).
1. liability insurance
2. proprietary
3. operational activities (road maintenance)
4. discretionary activities (passage of laws)
64
Common law recognized (1) to protect marital harmony and limit collusive lawsuits, but due to (2) of women, that has changed. (3) is limited to parental authority and would not apply to (4).
1. interspousal immunity
2. separate legal idenities
3. Parental immunity
4. negligence (in a car accident, for example)
65
With liability insurance, most courts hold charitable organizations liable to the same extent as (1) and (2).
1, individuals
| 2. private corporations
66
3 important recent developments in using tort law for social problems
1. suits against tobacco industry (users and states)
2. suits against gun manufacturers for gun violence
3. suits against pharmacists for failing to warn about drug dangers
67
In Cipollone v. Liggett Group, Inc, the SC held that (1) did not bar (2).
1. warnings in cigarette advertisements
| 2. seeking of damages
68
5 areas tort reform is common
1. motor vehicle accidents
2. immunity of governmental bodies
3. charitable institutions
4. products liability
5. environmental liability
69
(1) allow an injured party to collect form his or her own insurance instead of the party alleged to be at fault. Where injury is (2) or damages exceed (3), tort actions are preserved.
1. no-fault automobile insurance laws
2. permanent
3. certain thresholds
70
6 areas of present advocacy for tort reform
1. joint and several liability (multiple defendants jointly responsible for damages--moving to limit this)
2. collateral sources (jury access to sources of reimbursements of the plaintiff--movement to allow it)
3. non-economic damages (caps on pain and suffering)
4. Punitive damages. (caps)
5. statutes of limitations (shortening times)
6. restriction on legal fees (contingency fees lead to unnecessary lawsuits)
71
Lecture: torts compensate someone for (1) in (2). They can be (3), (4) or (5).
1. damage sustained
2. civil wrongs
3. negligence
4. intentional torts
5. strict liability
72
Lecture: In determining negligence cases, it is asked what an (1), (2) and (3) person (orp) would do. Negligence cases depend on a (4) case
1. ordinary
2. reasonable
3. prudent
4. prima facie
73
Lecture: In determining duty, (1), including (2), are held to a higher standard in commission of their professions. (3) are held to a lesser standard unless (4).
1. professionals
2. psychologists/psychiatrists
3. children
4. doing adult things
74
Lecture: (1) cases are such that unless they are (2) or (3), they are solid.
1. prima facie
2. overcome
3. defended
75
Lecture: (1) is based on the defendant's violation of a law and resulting in damage. In this case the person can be sued (2) and (3).
1. negligence per se (hitting someone while running a red light)
2. criminally
3. civilly
76
Lecture: In (1), negligence is inferred just because the incident occurred, even sans (2), such as an exploding beer bottle.
1. res ipsa loquitur
| 2. direct evidence of liability
77
Lecture: 3 factors of res ipsa loquitur
1. Thing causing accident was under def's control
2. accident happened only as a result of careless act--PLT did not contribute
3. proximate cause of foreseeable injury
78
Lecture: In Cohen v. Petty, Cohen was injured in a vehicle Petty was driving. Petty argued faiting/sickness as an (1).
1. intervening cause
79
Lecture: (1) are damages related to loss of a spouse's services.
1. loss of consortium
80
Lecture: Intentional torts--willful acts--can be stacked on their (1). Three reasons to sue on top of criminal prosecution are (2), (3) and (4).
1. crime
2. control (can be party instead of just witness)
3. burden is lighter (preponderance instead of reasonable doubt)
4. cash
81
Lecture: Defamation in Arizona requires proof that the dispersal of info was (1) and that it was (2). You also must prove (3) plus (4) and that the act was (5).
1. not consented to
2. not true
3. destruction of reputation
4. financial loss
5. malicious
82
Lecture: 4 options in proving invasion of privacy
1. solitude infringed upon
2. publicity that violates ordinary decency
3. damaged opinion in public eye
4. use image for commercial purposes
83
Lecture: 2 defenses to assault/battery false imprisonment
1. consent (sexual)
| 2. authority of law (detain)
84
Lecture: 2 defenses to defamation
1. truth
| 2. privilege (Congress' well of floor)
85
Lecture: In Catco v. Briney, Catco, maimed, sued from prison and won for a (1) rigged to prevent (2).
1. shotgun
| 2. theft
86
Lecture: With toxic torts, often money has (1) after having gone through the courts, and people have a (2) to become (3). This is in contrast to (4),
1. appropriated
2. certain amount of time
3. part of the pool
4. class action lawsuits
