Flash Card - Torts

Question 1

What are the general elements for
Intentional Torts?

Answer 1

1) A voluntary act;
2) Committed with intent; AND
3) Causation.

Specific Intent = a desire for the action to cause resulting circumstances.

General Intent = a person is substantially certain that conduct will cause resulting circumstances.

Question 2

What are the elements of Battery?

Answer 2

When there is:
1) An intentional,
2) Harmful or offensive contact,
3) With the plaintiff’s person.
Bodily harm is physical pain, illness, or impairment to another’s body.

Question 3

What are the elements of Assault?

Answer 3

When there is:
1) An intentional act,
2) That causes the plaintiff to be placed in reasonable apprehension (aware of the act and believes that the defendant is able to commit it),
3) Of imminent harm or offensive contact.

Question 4

When is an act deemed Intentional for the tort of Assault?

Answer 4

If it’s done:
a) For the purpose of causing apprehension; OR
b) With knowledge to a substantial certainty that such apprehension will result.

Question 5

When is a defendant liable for
False Imprisonment?

Answer 5

When he:
1) Intentionally acts (purposely or knowing that it’s substantially likely to occur),
2) To restrain the plaintiff to fixed boundaries, AND
3) The plaintiff is conscious of the confinement OR is harmed by it.

*The restraint may be threats and DOES NOT need to be physical or stationary

Question 6

What are the elements of
Intentional Infliction of Emotional Distress?

Answer 6

1) The defendant acted intentionally or recklessly;
2) Their conduct was extreme and outrageous;
3) The act caused extreme emotional distress; AND
4) The plaintiff actually suffered severe emotional distress.

*An act is reckless if it’s a deliberate disregard of a high risk that emotional distress will follow.

Question 7

When is a defendant liable for Trespass to Land?

Answer 7

1) When he intentionally,
2) Either:
a. Enters the land in possession of another;
b. Causes an object/third-person to enter;
c. Remains on the land; OR
d. Fails to remove an object he is under a duty to remove.

*Intent to trespass is NOT required.

Question 8

When is a person liable for Trespass to Chattels?

Answer 8

When he:
1) Intentionally interferes with another’s personal property,
AND
2) The amount of damage is small.

Question 9

When is a person liable for Conversion?

Answer 9

When he:
1) Intentionally interferes with another’s personal property,
AND
2) The amount of interference is substantial.

*Defendant will be liable for full market value of item.

Question 10

Under the Doctrine of Transferred Intent, how can the intent to harm one party be transferred to another party that was injured?

Answer 10

It’s transferred when:
1) The defendant had the intent to commit a tort against one particular individual; AND
2) If in the act of trying to accomplish that tort either:
a. commits a different tort against that person; OR
b. another party is injured.

*Only applies to Battery, Assault, False Imprisonment, Trespass to Land, & Trespass to Chattels.

Question 11

Intentional Tort Defenses

Consent is a defense to intentional torts, and can be express, apparent, or implied by law.

Apparent Consent vs. Implied by Law Consent

Answer 11

Apparent Consent: When words or conduct are reasonably understood to be intended as consent (such as customary practice or a person’s failure to object).

Implied by Law Consent: Occurs in special
circumstances, such as medical emergencies.

*Defendant’s actions CANNOT exceed the bounds of the consent given.

Question 12

Intentional Tort Defenses
What is the defense of Privilege?

Answer 12

It is conduct that under ordinary circumstances would subject the actor to liability, BUT is excused under the circumstances.

Question 13

Intentional Tort Defenses
What is the defense of Privilege to Arrest?

Answer 13

A defense to false imprisonment.
Likely to occur if the crime is serious and the defendant directly observed the crime when making the arrest.

*To make a citizen’s arrest, the detainee must have committed an act that breached the peace in front of the arresting citizen.

Question 14

Intentional Tort Defenses
What is the defense of Self-defense?

Answer 14

Where a defendant is NOT liable if he:
1) Reasonably believed that the plaintiff was going to harm another; AND
2) Used reasonable necessary force to protect himself or another.

Question 15

Intentional Tort Defenses
What is the Shopkeepers Privilege to Detain for Investigation?

Answer 15

Shopkeepers have the privilege to:
1) Temporarily detain,
2) A person reasonably suspected of theft,
3) In or near their store,
4) For the purpose of an investigation.

Question 16

Intentional Tort Defenses
What is the defense of Necessity?

Answer 16

Where a defendant is NOT liable for harm to a plaintiff’s real property if his acts were:
1) Necessary,
2) To prevent serious harm to a person or property.

*Defense is ONLY applicable to intentional torts against property.

Question 17

Intentional Tort Defenses
What are the different Privilege defenses?

Answer 17

Privilege includes:
1) Necessity (acts were necessary to prevent serious harm).
2) Self-defense/defense of others.
3) Defense of property.
4) Recapture of chattels.
5) Detention for investigation.
6) Privilege to discipline children.
7) Privilege to arrest.

Question 18

To Whom a Duty is Owed
Andrews View
vs.
Cardozo View

Answer 18

Andrews: A duty of care is owed to ALL foreseeable plaintiffs.

Cardozo: A duty of care is only owed to foreseeable plaintiffs who are within the zone of danger.

Question 19

What are the elements for a prima facie case of Negligence?

Answer 19

1) A duty owed to the plaintiff by the defendant;
2) A breach of that duty;
3) Causation (the breach was the actual and proximate cause of the plaintiff’s injuries); AND
4) Damages.

Question 20

When will an Affirmative Duty to act arise?

Answer 20

a) There is a pre-existing relationship between the parties;
b) The defendant put the plaintiff in peril;
c) The defendant has undertaken to render aid or rescue the plaintiff; OR
d) A duty is imposed by law.

Question 21

When is a Rescuer liable for injuries caused to another person?

Answer 21

If they fail to exercise reasonable care, AND:
a) The failure increased the risk of harm; OR
b) The harm is suffered because of reliance on the person providing the aid.

**A rescuer is liable if the aid is discontinued and the person is left in a worse position.

Question 22

What is the Reasonable Person Standard?

Answer 22

Every person owes a duty to act as a reasonable prudent person would act under similar circumstances.
(A reasonable person takes appropriate measures to avoid foreseeable risks.)

Question 23

What is the Standard of Care for Children?

Answer 23

They are held to a standard of care a hypothetical child of similar age, experience, and intelligence acting under
similar circumstances.

*If the child is engaged in an adult activity, they have the duty to act as a reasonable ADULT would act under the circumstances.

Question 24

What is the Standard of Care for Medical Doctors?

Answer 24

Held to the degree of care and skill of the average qualified practitioner.

Courts will analyze under National Standard rather than local/community standards.

They have a duty to obtain informed consent before treatment and disclose risks a reasonable patient would want to know.

Question 25

What is the Standard of Care for Professionals?

Answer 25

A professional owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community.

*A specialist is held to the care and skill of an average member of the profession practicing the specialty.

Question 26

What is the Standard of Care for Landowners?

Answer 26

They have to exercise reasonable care to ALL entrants upon their land, and take appropriate measures to avoid foreseeable risks.

*Some states determine the duty of care required based on the type of entrant (trespasser, licensee, invitee).

Question 27

Undiscovered Trespasser vs. Anticipated Trespasser

Answer 27

Undiscovered Trespasser (one who enters the land without permission): NO duty is owed by the landowner.

Anticipated Trespasser (enters without permission but may be expected): The landowner must use reasonable care in operations on the property AND warn of highly dangerous artificial conditions that they know of.

Question 28

Licensee vs. Invitee

Answer 28

Licensee (invited as social guests): Landowner must exercise reasonable care AND warn of (make safe) dangerous conditions the owner knows of but not apparent to the guest.

Invitee (invited on the property for business): Landowner owes all the duties he would to a Licensee, PLUS the duty to make reasonable inspections of the property to find/make safe non-obvious conditions.

Question 29

What is the Attractive Nuisance Doctrine?

Answer 29

For child trespassers, landowners must make the premises reasonably safe or warn of hidden dangers on their land.
Landowners are held liable for harm if:
1) They know the condition is likely to cause death;
2) They know that children frequent the area;
3) That children are likely to discover the condition;
4) The risk of harm outweighs the expense of repair; AND
5) They fail to exercise reasonable care in eliminating the danger.

Question 30

When does Negligence Per Se apply?

Answer 30

When:
1) The statute’s purpose is to prevent the type of harm that the plaintiff suffered; AND
2) The plaintiff is in the class of persons the statute seeks to protect.

*If applicable, the duty and breach elements are established.

Two Exceptions: (1) When compliance with the statute would be more dangerous; (2) Compliance is impossible.

Question 31

Under the Traditional Test for Res Ipsa Loquitur,
what must the plaintiff show?

Answer 31

1) That the injury typically does not occur in the absence of negligence;
2) The instrumentality (thing/object) which caused the injury was in the defendant’s exclusive control; AND
3) Plaintiff did not cause or contribute to the injury.

*If applicable, the breach element is established.

Question 32

Under the Restatement (Second) Test for Res Ipsa Loquitur, what must the plaintiff show?

Answer 32

1) That the event typically does not occur in the absence of negligence;
2) Other responsible causes are sufficiently eliminated by the evidence (incl. plaintiff & third persons); AND
3) The negligence is within the scope of duty the defendant owed the plaintiff.

*If applicable, the breach element is established.

Question 33

Actual Cause vs. Proximate Cause

Answer 33

Actual Cause: The “but for” cause.
Under the substantial factor test –> something that is a substantial factor in bringing about the injury IS an actual cause.

Proximate Cause: The legal cause, which means the injury MUST have been a foreseeable result of the breach.

Question 34

What is an Intervening Cause?

Answer 34

Any act that occurs AFTER the defendant’s breach that contributes to the harm.

*It absolves the defendant of liability if it resulted in an unforeseeable/unexpected injury.

Question 35

When are Intervening Criminal Acts foreseeable?

Answer 35

When:
a) The defendant should have anticipated the act; OR
b) The defendant’s conduct makes the criminal act more likely to occur.

Question 36

What is the Eggshell Plaintiff Rule?

Answer 36

A tortfeasor takes his victim as he finds him.

The tortfeasor is liable for ALL harm a plaintiff suffers as a result of his conduct, even if plaintiff suffered from a pre-existing condition making the harm
greater.

Question 37

Pure Comparative Negligence
vs.
Partial Comparative Negligence
vs.
Contributory Negligence

Answer 37

Pure: P’s negligence/assumption of risk will NOT bar recovery. P’s damages are reduced by % at fault.

Partial: If less than 50% at fault, then P’s damages are reduced by % at fault. If over 50% at fault, then P’s claim is barred.

Contributory: Plaintiff CANNOT recover if he contributed to his own injury in any amount. P’s claim is barred.
Exceptions –> when the defendant had the last opportunity to avoid injury OR was reckless.

Question 38

Negligence Defense
When does Assumption of Risk apply?

Answer 38

If a plaintiff:
1) Voluntarily assumed;
2) A known risk.
May be express (by agreement) or implied.

*A professional rescuer or fireman CANNOT bring a cause of action against someone whose negligence caused their injuries.

Question 39

What are the 3 instances a plaintiff can recover for Negligent Infliction of Emotional Distress?

Answer 39

1) Zone-of-Danger Case: D’s negligence, created foreseeable risk of injury, P is in zone of danger, and P manifests physical symptoms.
2) Bystander Claim: D’s negligence, P is contemporary witness to injury to close family member, and P manifests physical symptoms.
3) Rare Egregious Situations: Pre-existing relationship between P and D, and negligent act foreseeably causes distress.

Question 40

Vicarious Liability

Employee
vs.
Independent Contractor

Answer 40

Employee: Employer controls manner/means of the employee’s performance of work. Employer IS vicariously liable for negligent acts of employee (within scope or employment).

Independent Contractor: A person NOT controlled or subject to control with respect to performance (may or may not be an agent). Principal/employer is generally NOT liable for torts committed by a contractor.

Question 41

Vicarious Liability
What determines whether a person is an
Independent Contractor or Employee?

Answer 41

Whether the principal had the right to control the manner and method in which the job is performed.

(If the principal had substantial control, it’s likely the person will be deemed an employee).

Question 42

Vicarious Liability
Under respondeat superior, an employer is vicariously liable for an employee’s negligent act if the employee was acting within the scope of employment.
When is an employee deemed to be acting within that scope?

Answer 42

When:
a) Performing work assigned by the employer; OR
b) Engaging in a course of conduct subject to the employer’s control.

**Conduct is not outside the scope merely because an employee disregards the employer’s instructions.

Question 43

Vicarious Liability – Respondeat Superior
Acts Within Scope of Employment
vs.
Acts Outside Scope of Employment

Answer 43

Within Scope: When performing work assigned by the employer OR engaging in conduct subject to the employer’s
control.

Outside Scope: Tort occurs within an independent course of conduct AND is not intended by the employee to serve any purpose of the employer.

Question 44

Vicarious Liability
What causes an employee’s Intentional Torts to be considered within the scope of employment?

Answer 44

The Act was:
a) specifically authorized by the employer;
b) driven by a desire to serve the employer; OR
c) the result of naturally occurring friction from the type of employment.

Question 45

Vicarious Liability
In what situations is an employer still liable despite the doctrine of respondeat superior being inapplicable?

Answer 45

When:
a) The employer intended the conduct or consequences;
b) The employer was negligent in selecting, training, retaining, supervising, or controlling the employee;
c) The conduct involved a non-delegable duty to an injured person with whom they had a special relationship; OR
d) The employee had apparent authority, their appearance of authority enabled them to commit the tort, and a third-party
reasonably relied on that authority.

Question 46

Vicarious Liability
When will a principal be liable for torts committed by an Independent Contractor?

Answer 46

If:
a) The contractor is engaged in an inherently hazardous activity;
b) The duty owed by the principal is non-delegable; OR
c) Through the doctrine of estoppel:
The principal holds the contractor out as his agent to a third-party, they reasonably relied on the agent’s skill, and the third-party suffered harm as a result.

Question 47

When is a defendant entitled to Indemnification?

Answer 47

When the defendant is a passive tortfeasor AND seeks to assert his claim against an active tortfeasor.

The defendant is entitled to recover the FULL amount he paid the plaintiff from the active tortfeasor.

*Indemnification is available in vicarious liability situations or by contract.

Question 48

When is a defendant entitled to Contribution?

Answer 48

A joint tortfeasor may seek contribution from other joint tortfeasors if he pays more than his percentage share of liability.

*The amount recoverable is based on PURE comparative fault – a defendant CANNOT recover from another more than that person’s percentage of fault.

Question 49

What is the Doctrine of Alternative Liability?

Answer 49

It allows the jury to find ALL defendants liable if:
1) Multiple defendants are deemed negligent,
2) But it’s unclear which one caused the plaintiff’s injury.

Question 50

What is the Doctrine of Joint Enterprise?

Answer 50

It allows the negligence of one defendant to be imputed to other defendants if:
1) Multiple defendants were engaged in a common project or enterprise; AND
2) All defendants made an explicit/implied agreement to engage in tortious conduct.

Question 51

What is the Doctrine of Market Share Liability?

Answer 51

ALL manufacturers are liable to their proportional share of the market when the following factors are present:
1) All the named Ds are potential tortfeasors;
2) The harmful products are identical and share the same defective qualities;
3) P is unable to identify which D caused the injury; AND
4) Substantially all of the manufacturers that created the defective products during the relevant time period are named as Ds.

Question 52

What is the liability of multiple defendants in a jurisdiction permitting Joint and Several Liability?

Answer 52

If multiple defendants are the proximate cause of a single indivisible harm, then the plaintiff may recover the ENTIRE amount of his damages from ANY single defendant.

Question 53

Defamation
What are the elements of Defamation?

Answer 53

1) A false defamatory statement,
2) Of and concerning the plaintiff made by the defendant,
3) Publication by a defendant to a third party, AND
4) Damages.

Question 54

Defamation
What are the four Slander Per Se categories?

Answer 54

1) Impugning the business integrity of the plaintiff.
2) A statement of unchastity about an unmarried woman.
3) A statement that the plaintiff had/has a loathsome disease.
4) Attributing a crime of moral turpitude to the plaintiff.

Question 55

Defamation
Who is deemed a Public Figure?
What heightened standard applies if plaintiff is a Public Figure or Public Official?

Answer 55

Public Figure = Either (a) injected himself into a public controversy; OR (b) having achieved widespread notoriety.

If person is a Public Figure or Official, then a heightened defamation standard applies.
P must also prove: Actual malice – D spoke with recklessness or knowledge of falsity.

Question 56

Defamation
If plaintiff is a Private Figure on a Matter of Public Concern, what standard applies?

Answer 56

Plaintiff MUST ALSO PROVE:
That the speaker was negligent.

Question 57

Defamation
Qualified Privilege
vs.
Absolute Privilege

Answer 57

Qualified: A defense when the speech serves a socially useful purpose. Speaker must be speaking in good faith AND not be reckless.

Absolute: Defense for defamatory statements made about/by parties in a judicial proceeding.

Question 58

What are the Invasion of Privacy torts?

Answer 58

1) Misappropriation of Name or Picture.
2) False Light.
3) Intrusion of Privacy.
4) Public Disclosure of Private Facts.

Question 59

What are the elements of
Misappropriation of Name or Picture?

Answer 59

When defendant:
1) Uses plaintiff’s name or likeness,
2) For defendant’s commercial advantage.

*Newsworthiness is a defense.

Question 60

What are the elements of False Light?

Answer 60

When defendant:
1) Causes widespread dissemination,
2) Of plaintiff’s beliefs, thoughts, or actions,
3) In a false light,
4) That would be highly objectionable to a reasonable person.

*If a matter of public concern or public figure –> must show actual malice.

Question 61

What are the elements of Intrusion of Privacy?

Answer 61

When:
1) D intrudes into the private affairs of P;
2) P has a reasonable expectation of privacy; AND
3) The intrusion is highly objectionable to a reasonable person.

Question 62

What are the elements of
Public Disclosure of Private Facts?

Answer 62

When defendant:
1) Caused widespread dissemination,
2) Of truthful private information,
3) That would be highly objectionable to a
reasonable person.

*Newsworthiness is a defense unless actual malice is present.

Question 63

What are the elements of
Intentional Interference with Business Relations?

Answer 63

1) There was a contract or business expectancy;
2) The defendant knows of the contract/expectancy;
3) The defendant intentionally induces another party to breach or terminate the contract/relationship;
4) A breach occurs; AND
5) Plaintiff suffered damages.

Question 64

What are the elements for
Intentional Misrepresentation?

Answer 64

Plaintiff must show:
1) Misrepresentation of material facts by the defendant;
2) The defendant knew the statement was false;
3) Intent of the defendant to induce the plaintiff;
4) Actual and reasonable reliance by the plaintiff; AND
5) Damages.

Question 65

What are the elements for
Negligent Misrepresentation?

Answer 65

Plaintiff must show:
1) A misrepresentation by the defendant;
2) Supplied for the guidance of others in a business transaction;
3) The defendant knew that the information was supplied to guide the plaintiff in his business transactions;
4) The defendant was negligent in obtaining/communicating the false information;
5) Actual and reasonable reliance by the plaintiff; AND
6) The false info proximately caused damages

Question 66

When is an action for Abuse of Process available?

Answer 66

When:
1) One party wrongfully uses the court process;
2) Against another for improper purpose;
3) An act or threat is used to accomplish that purpose; AND
4) Damages result.

Question 67

What are the elements of Malicious Prosecution?

Answer 67

1) Initiation/continuation of criminal proceedings against the accused;
2) Claim was initiated for improper purpose;
3) The claim was not supported by probable cause;
4) The claim ended in the plaintiff’s favor; AND
5) The plaintiff suffered damages.

*Most states have expanded this tort to include wrongful civil proceedings.

Question 68

Public Nuisance
vs.
Private Nuisance

Answer 68

Public Nuisance: (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community.
To recover damages, the injured party must show ACTUAL damages.

Private Nuisance: (1) a substantial and unreasonable interference, (2) with a person’s use/enjoyment of her
property.
(offensive/inconvenient/annoying)

Question 69

A defendant engaging in an Abnormally Dangerous Activity is subject to strict liability.
What is an Abnormally Dangerous Activity?

Answer 69

An activity that:
1) Is not of common usage in the community; AND
2) Creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).

Question 70

What are the elements for Strict Products Liability?

Answer 70

1) The product was defective (manufacturing defect, design defect, or failure to warn);
2) The product was not altered when it reached the plaintiff;
3) The product caused an injury when it was being used in an intended use (or unintended foreseeable use);
AND
4) The defendant is a commercial supplier who routinely deals in goods of this type.

Question 71

What 3 theories are available to prove Strict Products Liability?

Answer 71

Manufacturing Defect: Product differs from the intended design AND is more dangerous than if made properly.

Failure to Warn: Plaintiff was not warned of the risks regarding use, which are not obvious to an ordinary user.

Design Defect: There was a way to build the product that was safer, more practical, AND at a similar cost.

Question 72

What is the definition of a Commercial Supplier?

Answer 72

Any person/entity who is engaged in selling goods of the type (routinely sells such goods).

*A strict products liability suit may ONLY be brought against a commercial supplier of goods.

Question 73

Products Liability – Breach of Warranty
What is the Implied Warranty of Merchantability?

Answer 73

It requires that ALL goods sold by a merchant be fit for their ordinary purpose.
*The only issue to determine is whether the product was merchantable when sold.

Question 74

Products Liability – Breach of Warranty
When is an Implied Warranty of Fitness for a Particular Purpose created?

Answer 74

When:
1) A seller knows or has reason to know of the buyer’s particular purpose for which the goods are required; AND
2) The buyer relies on the seller’s skill/judgment to select suitable goods.

Question 75

Products Liability – Breach of Warranty
When is an Express Warranty created?

Answer 75

When:
1) A seller makes an affirmation of fact, promise, or description, OR provides a sample;
2) Which relates to the goods; AND
3) It becomes part of the basis of the bargain.