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Business Law > Exam #2 - Torts > Flashcards

Exam #2 - Torts Flashcards

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1
Q

Intentional Torts what are they?

A

tort: “wrong” or “to twist” - a civil wrong that is not a contract or warranty

  • state laws, private laws, and judge made laws*
  • torts are different in each state*
  • restatement of torts allow for nation wide uniformity*
  • judges, scholars, etc. get together every year to unify torts*
  • not a source of law*
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2
Q

Elements of Intentional Torts

A

1) state of mind

2) conduct/action

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3
Q

Purpose/Goal of Intentional Torts

A

1) from plaintiff’s view - compensation ($)

2) deter the defendent from committing the crime

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4
Q

4 Categories of Torts

A

1) intentional torts (12)
2) business torts (2)
3) unintentional tort (negligence)
4) strict liability torts

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5
Q

State of Mind

A
  • intentional*
  • malice (ill will)
  • intent (purpose to do action)
  • recklessness (consciously disregarding risks)
  • unintentional*
  • negligence
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6
Q

Battery (3 elements)

A

1) intentional (to cause touching or fear of it)
2) unconsented
3) harmful or offensive touching (what most people would consider harmful/offensive)

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7
Q

Assault (3 elements)

A

1) intentional (to cause touching or the fear of it)
2) unconsented
3) reasonable fear of immediate harm

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8
Q

Defamation (5 elements)

A

1) unprivileged
- AP=absolute privilege (litigator)
- QP=qualified privilege (employer referral in good faith)
2) publication (just need to prove that at least ONE other person heard)
3) of a false + defamatory
4) fact
5) made w/ negligence or actual malice (look at state of mind)

EX: people accusing 2020 voting booths that the companies made them to be rigged for a certain outcome

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9
Q

Intentional Infliction of Emotional Distress (3 elements)

A

1) intentionally or recklessly cause
2) extreme + outrageous conduct (beyond the bounds of civilized society)
3) severe emotional distress

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10
Q

False Imprisonment (4 elements)

A

1) intentionally
2) cause of confinement
3) for an appreciable time (can be a few seconds)
4) without consent

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11
Q

Merchant Protection Statute Defense

A

for retailers or false imprisonment - if all 3 are met then merchant is not liable for false imprisonment

1) reasonable suspicion of shoplifter
2) stopped for a reasonable amount of time
3) manner in which they investigate must be reasonable

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12
Q

Invasion of Privacy (4 versions NOT elements)

A

1) intrusion upon seclusion (intrudes on private life - ex: reading one’s mail)
2) public disclosure of private facts (ex: sex life)
3) false light publicity (ex: news exaggerates for more publicity)
4) someone making money off of you (ex: using a celebrity name to promote/sell a product)

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13
Q

Misuse of Legal Proceedings (Malicious Prosecution) 4 elements

A

happens after trial and verdict is in P’s favor

1) D intentionally files a false lawsuit
2) no facts
3) improper purpose
4) terminates in the now P’s favor

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14
Q

Deceit - aka fraud (5 elements)

A

lying and causing economic harm

1) false statement (omission or silence when aware of the lie)
2) of material fact
3) knowingly or recklessly made
4) with the intent to induce reliance
5) actual, justifiable, and harmful reliance

EX: a company selling medical grade masks when they aren’t really medical grade

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15
Q

Property Torts

A

1) trespass to land
2) private nuisance
3) conversion of personal property

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16
Q

Trespass to Land

A
  • intentionally invading land yourself or with an object
  • no harm required
  • drones count

real/immovable propoerty: land, windmill, well

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17
Q

Private Nuisance

A
  • doing something on one’s own property that interferes the enjoyment of another’s property
  • ex: too loud music, bad smell (from court case with pig farm)
18
Q

Conversion of Personal Property

A
  • taking someone else’s things either on accident or purposely
  • ex: stealing a customer list

movable/personal property: pen, jacket, purse

19
Q

Intentional Interference with Contracts or Economic Advantage (3 elements)

A

1) existence of a currently valid contract between the P and the third party
2) D had knowledge of contract
3) D intentionally and unfairly interfered with contract causing a breach

20
Q

Intentional Employment Tort (3 elements)

A

1) employer had knowledge of a dangerous condition of employment
2) employer had actual knowledge that if the employee is subjected to the dangerous condition, harm is certain or substantially certain to occur
3) employer required the employee to be subjected to the dangerous situation (ex: a job requirement)

21
Q

Transferred Intent

A

when someone intends to harm one victim but ends up harming another one unintentionally

22
Q

Workers Comp.

A

people couldn’t sue for this until after industrial revolution began

  • $ is awarded for being injured on the job
  • negligence lawsuits can also stem from these to get more $
23
Q

Negligence (4 elements)

A

1) duty (forseeable)
2) breach (forseeable)
3) causation (forseeable)
4) damages

24
Q

Duty (negligence)

A

act like a reasonable person under the circumstances, there can be a special relationship between the parties causing for duty (ex: landlord and its tennent)

25
Q

Breach (negligence)

A
  • forseeable of the harm
  • seriousness of the harm
  • benefit of conduct
  • ease or difficulty or avoiding the risk of harm
26
Q

Duty & Breach Special Rules

A
  • professionals (malpractice - using an expert witness)
  • possessor of land (being injured on someone’s propoerty)
  • rescuers (need a special relationship)
  • res ipsa loquiter
  • negligence per se
27
Q

Res Ipsa Loquiter

A

“things speak for itself”

1) D had exclusive control of causing the harm
2) harm would not have happen if someone wasn’t acting unreasonably

28
Q

Negligence Per Se

A

only happens with legislation/statutes/laws

1) P within class of persons protected by the legislation
2) P suffered the kind of hamr meant to be protected by said legislation

29
Q

Causation (negligence)

A
  • was the breach the actual cause (factual - using science)
  • proximate cause: a natural/probable consequence of a negligent act that should have been forseeable under the circumstances
  • intervening cause: another party intervening that is not forseeable
30
Q

Damages negligence

A
  • compensatory damages (personal injury, property damage, economic loss)
  • punitive damages
31
Q

Eggshell Plaintiff Concept (Thin Skull Rule)

A

D is not allowed to say anything about the injuries and how many there are

ex: “well if that old lady wasn’t so frail she wouldn’t have been hurt as badly as she was”

32
Q

Negligence Defenses

A
  • contributory negligence
  • comparative negligence
  • assumption of the risk
  • pure comparative negligence
  • modified
33
Q

Contributory Negligence (defense)

A

if D also proves P was at fault for injuries even if only a little then P loses

34
Q

Comparative Negligence (defense)

A

compares D and P’s amount of negligence where both are liable

ex: D is 70% liable and P is 30% liable (pay is based on there jury made percentages too)

35
Q

Pure Comparative Negligence (defense)

A

doesn’t matter the %, P is responsible to pay their portion indamages

36
Q

Modified (defense)

A

if P > 50% at fault for their injuries then they lose

37
Q

Strict Liability (2 ways)

A

1) abnormally dangerous activities (activities that cannot be made safe)
2) products liability (negligence and strict liability)

38
Q

Examples of Abnormally Dangerous Activities

A
  • oldest form=keeping wild animals as pets
  • crop dusting
  • fireworks
39
Q

Products Liability

A

sue for negligence under…

  • manufacturer
  • inspection
  • failure to warn or inadequate warning
  • design
40
Q

Strict Product Liability (3 elements)

A

1) seller is enegaged in the business of selling the product
2) product is defective when sold and unreasonably dangerous
* 2 tests must be applied here BUT only ONE needs to be met*
- consumer expectationtest=what a reasonable consumer expects
- risk benefit test=ask jury to look at risk of product and compare it to the benefits (if risk outweighs benefit then it is unreasonably dangerous)
3) causes harm

41
Q

Strict Liability (4 types of defects)

A

1) manufacturing (how it was made)
2) design (involves all products)
3) packaging (product is fine but the way it was packaged caused harm)
4) failure to warn/inadequately warn (should have explained how to handle product)

42
Q

Product Liability Defenses

A
  • unforseeable product misuse
  • assumption of the risk
  • contributory/comparative negligence

Business Law (2 decks)

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