Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Torts > Final Review > Flashcards

Final Review Flashcards

1
Q

What are the 2 types of intent?

A
  1. Specific - the actor is acting to bring about specific consequences
  2. General - the actor knows with substantial certainty that these consequences will result
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

when does transferred intent apply?

A

when the D intends to commit a tort against one person but instead:

  1. commits a different tort against that person
  2. commits the same tort as intended but against a different person;
  3. commits a different tort against a different person
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

which torts is transferred intent applicable to? in other words, both the tort that is intended and the tort that results?

A
  1. assault
  2. battery
  3. false imprisonment
  4. trespass to land; or
  5. trespass to chattels
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Recapture of chattels – how does it work?

A
  • if someone’s possession began lawfully, may only use lawful means to recover the chattel
  • force may only be used when someone has obtained possession wrongfully, i.e. by theft
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

when is recapture of chattels available as defense?

A
  1. a timely demand to return the chattel is first req’d unless clearly futile
  2. recovery only from wrongdoer
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

when may you enter onto land to remove chattel? re: wrongdoer’s land? re: innocent party’s?

A
  • wrongdoer’s land: owner is priviliged to enter onto the land and reclaim them at a R time and in a R manner; after first making a demand for their return
  • innocent party: owner may reclaim her property in a R manner at a R time, must make demand for return of property, if party DN return, owner may enter onto land (supersedes landowner’s privilige).
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

elements of res ipsa loquitur

A
  • **the occurence of the event establishes the breach of duty
    1. the accident causing the injury is a type that WN normally occur unless someone was negligent
    2. the negligence is attributable to D
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what is the effect of establishing re ipsa loquitur?

A

no directed verdict may be given for the defendant. plaintiff can still lose if inference of negligence is rejected by trier of fact.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

what is contributory negligence?

A

negligence on the part of the P that contriubtes to her injuries. completely bars plaintiff’s right to recovery.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

elements of assumption of risk?

A

P must (1) know of the risk and 2. voluntarily proceeded in the face of the risk

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

partial comparative negligence?

A

complete bar if plaintiff’s negligence was more serious than D’s

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

pure comparative negligence

A

allows recovery no matter how great P’s negligence was

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Proximate cause

  • what is it?
  • test?
A
  • doctrine of a limitation of liability and deals with laibility for unforeseeable or unusual consequences of one’s acts
  • foreseeable test: D laible for all normally foreseeable consequences
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

what is a directed cause case?

A

where there is an uninterrupted chain of events from the negligent act to P’s injury, D is liable for all FORESEEABLE harmful results (prox. cause)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

common foreseeable intervening forces?

A
  1. subsequent medical malprctice
  2. rescuers’ negligence
  3. efforts to protect the preson or property of oneself or another
  4. injuries caused by another “reacting” to D’s actions…
    others
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

INDEPENDNET intervening forces, DN lead to laibility for D:

A
  1. negligent acts of 3d persons
  2. crimes and intentional torts of 3d persons
  3. acts of God
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

is an owner liable for damage caused by a trespassing animal?

A

yes for R foreseeable damage, SL

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

liability re: wild animals?

A

SL to licensees and invitees

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

liability re: domestic animals?

A

owner not SL for injuries caused by domestic animals unless he has knowledge of that particular animal’s dangerous propensities that are NOT common in the species. ON THE OTHER HAND, injury caused by the normally dangerous characterstics of domestic animals DN create strict liability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

is SL re: animals availabe for trespassers?

A

generally, no in the absennce of the owner’s negligence. however, a Landowner may be liable on intentioanl tort grounds for injuries inflicted by vicious watchdogs.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

is SL re: animals availabe for trespassers?

A

generally, no in the absennce of the owner’s negligence. however, a Landowner may be liable on intentioanl tort grounds for injuries inflicted by vicious watchdogs.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

what kind of liability arises for negligently selecting or supervising employees?

A

employer’s OWN negligence, NOT vicarious liability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

what are the 2 exceptions to an ER NOT being held liable for independent contractors?

A
  1. engaged in an inherently dangerous activity

2. duty b/c of public policy considerations is nondelegable, FOR EXAMPLE: the duty of a business to keep its premises

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

battery elements:

damages req’d?

A
  1. harmful or offensive contact;
  2. to P’s person
  3. intent; and
  4. causation

*damages not req’d

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

assault elements

  • are damages req’d?
  • are words sufficient?
A
  1. as an by D creating a R apprehension in P
  2. of immediate harmful or offensive contac tto P’s person
  3. intent
  4. causation
    • damages are N req’d
    • words are NOT sufficient, must be coupled w/ conduct
26
Q

false imprisonment

  • time of confinement?
  • awareness of confinemnt?
A
  1. an act or omission on the part of the D that confines or restraints P to a bounded area;
  2. intent
  3. causation
  • time DN matter, an instant suffices
  • P must be aware or harmed by the confinement
27
Q

intentional infliction of emotional distress
elements?
- damages?

A
  1. act by D amounting to EXTREME AND OUTRAGEOUS CONDUCT
  2. intent or recklessness
  3. causation; and
  4. damages - SEVERE emtoinal distress
  • actual damages are req’d, tho DN need to be physical. the more outrageous the conduct, the less needs to be proved on damages.
  • ONLY INTENTIONAL TORT TO THE PERSON THAT REQ’S DAMAGES**
28
Q

xpass to land

A
  1. physical invasion of P’s real property
  2. intent
  3. causation
  • *DN need to have known D was entering onto P’s land
    • DN require damages
29
Q

xpass to chattels

    • intent req’d?
    • damages?
A
  1. an act by D that interferes with P’s right of possession in a chattel;
  2. intent
  3. causation;
  4. damages
    • intent: only intent to interfere; D’s mistaken belief that she owns the chattels is N an excuse
    • actual damages, not nec. to the chattel, but at least to the possessory right — are req’d
30
Q

what types of interference re: xpass to chattels? (2)

A

intermeddling – damaging the chattel

dispossession - depriving P of his right of possession

31
Q

conversion elements

- D mistake in ownership matter?

A
  1. an act by D that interferes w/ P’s right of possession in a chattel;
  2. intent;
  3. causation; and
  4. damages – enough so that warrants paying chattel’s full value

– mistake in ownership does not negate the intent piece, all that matters is that D do act of interference

32
Q

elements of CL defamation

– what are the 2 addt’l elements req’d if it’s a matter of public concern?

A
    1. defamatory language
  2. of or concerning the P
  3. publication to a 3d person
  4. damage to P’s reputation
  5. falsity of the defamatory language;
  6. fault on the part of the D
33
Q

re: CL defamation, do Ps need to rpove falsity?

A

no, but D can offer truth as a defense

34
Q

is name-calling sufficient to establish defamation?

A

no

35
Q

what if a defamatory statement is made ONLY to the P?

A

then it’s not defamation b/c not published to 3d person

36
Q

what is libel? what type of damages must be shown?

A

written or printed publication of defamatory language; P DN need to prove special damages and general damages are presumed
- defamation in radio and TV is treated as libel

37
Q

what is slander? what type of damages must be shown?

A

slander is spoken defamation. plaintiff must prove special damages, unless defamation falls within slander per se categories:

  1. biz or profession
  2. loathsome disease
  3. one is guilty of a crime involving moral turpitude (most CL crimes); or
  4. a woman is unchaste
38
Q

when proving that the defamation involves a matter of public ocncern, P must prove, in addition to the CL elements:

A
  1. falsity of the statement; and

2. fault on the part of the D

39
Q

tell me more about fault re: a matter of public concern.

A
  1. public official or figure must prove actual malice
    A. knowledge that the statement was false
    B. reckless disregard as to whether it was false.
  2. private person must prove negligence if matter of public concern
40
Q

intentional misrepresentation/fraud

A
  1. misrepresentation of a material past or present fact;
  2. scienter, i.e. when D made the statement, she KNEW or BELIEVED it was false
  3. INTENT to induce P to act or refrain from acting IN RELIANCE upon the misrepresentation
  4. Causation (actual reliance)
  5. justifiable reliance
  6. damages (plaintiff must suffer ACTUAL PECUNIARY LOSS)
41
Q

Negligent misrepresentation

A
  1. misrepresentation by D in a biz or professional capacity
  2. breach of duty
  3. causation
  4. justifiable relaince
  5. damages
42
Q

duty of possessor of land to those off the premises

A

no duty to rpotect one off the presmises from natural conditions on the premises; however, there is a duty for unR dangerous artificial conditions; this includes damages cuased by trees – owner is liable

43
Q

duty owed to undiscovered trespasser?

A

none

44
Q

duty owed to discovered or anticipated trespasser?

A

LO must 1. warn of or make safe concealed artificial conditions KNOWN to the LO involving risk of DEATH OR SERIOUS BODILY HARM and 2. use R care in the exercise of “active ops” on the property

45
Q

elements of attractive nuisance doctrine

A
  1. a dangerous condition on the land that the owner is or should be aware of
  2. the owners knwos or should know children frequent the vicinity fo the condition
  3. the condition is likely to cause injury
  4. expesne of remedying the situation is lsight compared w/ the magnitude of the risk
46
Q

duty owed to licensees

A

LO has duty to 1. warn or make safe dangerous conditions (inc natural or artificial) kwnon to the owner that create an unR risk of harm to the licensee and that the licensee is unlikely to discover, and 2. exercise R care in the conduct of active operations on the property. the possessor has NO DUTY to inspect or repair.

47
Q

duty owed to invitees

A

same duty owed to licensees PLUS a duty to make R inspections to discover nonobvious dangerous conditions and make them safe (warning may suffice).

48
Q

NIIED

A

duty to avoid negligent infliction of emotional distress may be breached when the D creates a foreseeable risk of physical injuryt to the P. P usually must satisfy:

  1. P must be within the “zone of danger”
  2. P must suffer physical symptoms from the distress
49
Q

zone of danger?

A

threat of physical impact

50
Q

what is the liability attached to the owner of a wild animal, even one kept as a pet?

A

SL

51
Q

for trespass to land, is not knowing that it’s the D’s land an excuse?

A

no

52
Q

what is the test for the actual cause of an accident? what is there is negligence per se thrown in b/c the D breached a duty in a statute?

A

the “but for” test

just b/c there is a negligence per se does not mean it’s necessarily the actual cause. do the math. 200 ft DN = 150 ft.

53
Q

what duty is a person under if they come to the aid of another voluntarily? what does this mean they are liable for?

A

the rescuer has a duty to act as a RP. the rescuer is liable for any breach in that duty/ordinary negligence.

54
Q

re: a tortfeasor, are they liable for subsequent injuries caused by foreseeable negligence of third parties?

A

yes, even tho third party’s negligence is N foreseeable; could put the P in a more dangerous situation in which it becomes more likely that the P will be subject to another’s negligence

55
Q

Criminal acts and intentional torts of third persons are _________________ forces if the defendant’s negligence created a foreseeable risk that they would occur. ex: maid of house leaving house unlocked, her employer is liable for that nelgigence

A

foreseeable independent intervening

56
Q

if not specified, and % of fault are given, which negligence system should be applied?

A

pure comparative fault

57
Q

if a warning is on a product, but it does not warn of a common side effect or illness associated iwth the product, is it an adequaate warning?

A

no, the product is defective by way of inadequate warning.

58
Q

how do you show reckless conduct re: defamation of a public figure?

A

subjectively that the reporter entertained serious doubts of the story and moved ahead anyway (when it comes to the falsity).

59
Q

when is indemnity available?

A

(i) there is a contractual promise to indemnify; (ii) there is a special relationship between the defendants that would allow for vicarious liability; or (iii) the defendant is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain.

60
Q

when is contribution available?

A

when there are joint tortfeasors who are jointly and severally liable, the tortfeasor held as liable can seek recovery from the other party

Torts (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions