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Torts > Flash Cards for Bar Courses - Torts > Flashcards

Flash Cards for Bar Courses - Torts

1
Q

Transferreed Intent can only be invoked to which torts?

A
  • Assualt
    -Battery
    -False Imprisonment
    -Trespass to Land
    -Trespass to Chattels
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2
Q

Battery

A
  • Harmful or Offensive Contact, AND
  • Contract must be w/ the P’s person

Offensive = unpermitted by a person of ordinary sensitivity

DAMAGES ARE NOT required

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3
Q

Assault

A

1) Reasonable Apprenhension of (2) an immediate Battery

Apprehension = knowledge (DOES not include fear)

P MUST be aware of the threat by the D’s act

DAMAGES ARE NOT required

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4
Q

False Imprisonment

A

(1) D confines or restrains the P and (2) P must be confinded to a bounded area

It is IRRELEVANT how short the confinement is. P MUST know of the confinement or be harmed by it.

Bounded = freedom of movement is limited in all directuons. No reasonable means to escape.

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5
Q

Intentional Infliction of Emotional Distress (IIED)

A

Act by D amounting to extreme and outrageous conduct and P must suffer severe emotional distress

ACTUAL DAMAGES ARE REQUIRED

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6
Q

Tresspass to Land

A

1) Physical invasion
2) of P’s real property (includes airspace and subterranean space for a reasonable distance)

Can be by person or object

DAMAGES ARE NOT REQ.

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7
Q

Trespass to Chattels

A

Act by D that interferes w/ P’s right of possession in a chattel
-May be by damaging chattel or depriving of their lawful right of possession of the chattel

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8
Q

Conversion

A

1) Act by D that interferes w/ P’s right of possession
2) Interference is serious to warrant D to pay the chattel’s full market value

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9
Q

Consent

A

Capacity Req. -

Express Consent - (exceptions – mistake, induced by fraud, and obtained by duress

Implied Consent - Which a reasonable person would infer from custom and usage or the P’s conduct

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10
Q

Self Defense

A

When a person reasonably believed that they are being ot are about to be attacked, the use of reaonably necessary foruce to protect against injury is permitted.

Duty to retreat: a duty to retreat b4 using deadly force, unless actor is in their home

Reasonable mistake as to the existence of danger is allowed

One may ONLY use force that reasonably appears to be necessary to prevent the harm.

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11
Q

Defnese of others

A

May use force when they reaosnably believe that the other person could have used force to defence themselves

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12
Q

Defense of Proeprty

A

may use reasonable force to prevent the commission of a tort against real or personal property. A REQUEST TO DESIST MUST BE MADE unless it would be DANGEROUS.

CANNOT USE DEADLY FORCE TO PROTECT PROPERTY.

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13
Q

Shoplifitng Detentions

A

1) must be reasonable belief
2) detention must be conducted in a reasonable manner and nondeadly force can be used
3) detention must be only for a reasonably period of time and for purpose of makiung the investigation

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14
Q

Necessity of use of land

A

A person may interfere w/ real property and personal property when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force

Public Necessity: D can raise necessity as a defense if they acted to avert an imminent public disastor

Private Necessity: can be a defense when the action was to prevent serious harm to a limited number of ppl. Actor must pay for any injury they cause, unless it was to benefit the property owner.

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15
Q

Negligence

A

-Duty
-Breach
-Actual and Proximate Cause
-Damages

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16
Q

Duty

A

A duty is owed to all foreseeable P’s.

Rescuers are foreseeable P when the D negligently put themselves or a 3rd person in peril.

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17
Q

Basic Standard of Care

A

All persons owe a duty to behave w/ the same carea as a reasonably prudent person.

Exceptions:
1) Superior Skill or Knowledge - D is held to the std of car of a person who has knowledge or experience superiror to that of an avg. person
2) person w/ disability must act in accordance w/ what someone with that disabaility would do.

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18
Q

Child’s Standard of Care

A

Children are held to a std of care of like AGE, INTELLIGENCE, AND EXPERIENCE. this is a subjective test.

Child under 5 is usually w/ capacity to be negligent

19
Q

Professional Std of Care

A

Professional are req. to possess the knowledge and skill of an avg. member of the profession in good standing.

Doctor’s duty to disclose- Dr. has a duty to disclose the risks of treatment to enable a pateint to give informed consent. Dr. breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent after learning of the risk.

If no damages for surgery that was not consented to = patient can recover nominal damages

20
Q

Standard of Care for Trespassors

A

Unknown - NO DUTY

Known - Landowner must warn of or make safe any conditions that are: (Man-Made Death Traps)
-Artificial - only if manmade
-Highly dangerous - causes death or serious bodily injury
-Concealed - NO DUTY IF DANGER IS OBVIOUS
-Known

21
Q

Licensee (standard of care)

A

A licensee is one who engters onto the land w/ the possessor’s permission for their own purpose or business

Must warn of:
-concealed
-and known dangers

Social Guests are Licensees

22
Q

Invitees

A

Enter onto the land in response to an invitation by the possessor of the land or land held open to the public.

Must warn of:
-Concealed and
-Known to the land owner in advance or could have neen discovered by a reaonsable inspection

Firefihters and Police: only make aware of know concealed dangers

23
Q

Attractive Nuisance

A

1) Dangerous condition on the land that the owner is or should be aware of
2) Owner knows or should know that kids might trespass on land
3) condition is likely to cause injury b/c of child’s inability to appreaciate risks
4) expense of remedying the sitation is sligth compared w/ the magnitude of risk

Child need NOT have been attracted

24
Q

Statutory Standards of Care

A

A clearly stated specific duty imposed by a statute providing for crim penalties may replace the more general common law duty if:
-P is WITHIN THE PROTECTED CLASS
- the statute was DESIGNED TO PREVENT THE TYPE OF HARM SUFFERED

can be excused is compliance would cause more danger than violation or where violation is beyond D’s control

25
Q

Affirmative Duties to act

A

Generally one does not habe a legal duty to act

Execeptions:
- Special relationship between Parties (parent-child; common carriers, inkeepers, Employer-employee, business-customer)
- Peril Due to own Conduct
-Assumption if Duty by Acting ( one may assume a duty by acting

26
Q

Duty to prevent 3rd person from harm

A

May be imposed is one has actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would req. exercise of control)

27
Q

Negligent Infliction of emotional Distress

A

Near Miss cases:
-P must be w/ in the Zone of Danger
-P must suffer physical symptoms from distress

Bystander Cases:
- P and person injured by D are closely related
- P was present at the scene of the injury and personally observed or percieved the event.

Special relationships between P and D
-D may be laibel for direcly causesing P severe empotional distress when a duty arises from the relationship between P and D. I.e. (Doctor’s misdiagnosis of terminal illness; mortaury’s negligent cremation of deceased family’s instructuons.

28
Q

Res Ipsa Loquitur

A

The accident causeing the injury is a type that would not normally occur unless someone was negligent
-negligence is probably attributable to the D

Effect of Res Ipsa
-No directed verdice may be given to D, P can still lose, hoeverr, if the interferecen of negligence is rejected by the trier of fact

29
Q

actual causation

A

But-for test: act or omission is a factual cause of an injury when the injury would not have occurred “but for” the act or ommission.

Substantial Factors test: where several causes bring about injury any one would have been sufficient to cause the injury. D’s are held jointly and severably liable

Unascertainable Causes Approach: applies when there are 2 acts only one of which cause injury but we do not know which one. Both D’s are liable unless one can prove they are not.

30
Q

Proximate Causation

A

A D is generally liable for all harmful results that are the normal incidents of and within the increasredd risk caused by their negligent acts. (Foreseeability test)

Common foreseeable risk:
-Medical Malpractice
-Negligence of rescuers
-Protection or reaction forces
-disease or accident

31
Q

Superseding Forces

A

Intervenigng forces that produce unforeseeable results are gennerally deemed unforseeable and superseding.

32
Q

Damages and Defenses to Negligence

A

You take your P as you find them - Eggshell-skull rule

Punitive damages are not availabe in negligence cases unless the D’s conuct is wanton and wilfull or reckless and malicious.

33
Q

Assumptoion of risk

A

P must have:
-known of risk
-voluntarilay proceeded in the face of the risk

34
Q

Comparative Negligence

A

Partial - P can only recover it P if their negligence is more than D’s negligence

Pure - allow recovery no matter how great P’s negligence was

MBE uses PURE

35
Q

Strict Liabiltiy

A

Domesticated Animals - Owner not laible unlessthey have knowledge of the particualr anima;l]s dangerous propensities

Trespassing Animals: Onwer is laibnle for reasonably foreseeable damage done by trespass of his animals

Wild Animals: owner is strictly liable to licenees and invirees for injuries causes by wild animals (even those kept as pets)

Abnormall dangerous activies:
1) Activity must create a foreseeable risk of derious harm even when reasonable care is exercised
2) activitry is not a matrter of common usage in the community

i.e : Blasting or mtfg explosives, storing or transporting dangerous chemicals, anything involviong radiation or nuclear energy

36
Q

Products liability

A

Refers to the laibiltu of a supplier of a defective product to someone injured by the product
5 theories:
-Intent
-Neglience
-Implied warranties or merchantability and fitenss for a particular use
-representation therories
-Strict liabiltiy

Elements of strict liability:
-D is a merchant
-Product is defective
-Product is not substantially altered
-P was making a foreseeable use of the product at the time of the injury

Defective Products/Sale of defective goods
Must be:
- Commercial Supplier
- Production or Sale of a defective product that is unreasonably dangerous
- Actual & Proximate Cause
- Damages

37
Q

Nuisance

A

Is an invasion of property rights by tortious conduct

Private Nuisance - is a substantial, unreasonable interferenece w/ another private individual’s use or enjoyment of proeprty that the other individfual acvtually possess or has a right to immediate possession.;

Intereference must be substantial: it is offesnive, inconviewnent, or annoying to the average person in the community. NOT it it is merely a result of the P’s hypersensitivity or specialized use of the property.

Public Nuisance: is an act that unreasonably intereferes with the health, safety, or property rights of the community.

38
Q

Vicarious Liabiltity

A

Employer- employee: must occur in the scope of emplyement and must be employed
-Frolic and detour: emp making a minor deviation is still acting within the scope of the employement.

Independent Contractors: Principal is generally not liable wjenm the hiring party does not control the manner and method which the Ind. contracto performs the job. There is a duty for businesses to keep the premsies safe. Al;so a duty is the ind. contracto is enegaged in an inherently dangerous conduct.

39
Q

Defamation

A

-A defamatory staement that specifically identitifies the P
-publiushed to a 3rd party
-falsity of the defamatoiry language
-fault on part of D
-Damages to P’s repuatation

Name calling is insuffcient

Fault:
-Public Officiual or figuire must provce actual malice
-private persons must propve negliuegce if matter oif public concern

  • D -Defamatory
  • P - Publication
  • D- Damages (general or special)
  • P - Status of ur P (P must show fault or falsity)
  • D - Defenses (can be truth)
40
Q

Libel

A

is a defamatiion that is embodiued in permenant form. Does nto need to prove special samages to recover and general damages are presumed.

41
Q

Slander

A

Is spoke Defamation

Slander per se:
-P’s bsuienss or profession
-P’ commited a serious crime
-P’s sexual misdocnuide
-P’s loathsom disesase

42
Q

Invasion of Privacy

A

-Appropration
-Intrusion
-False Light
-Public disclosure of private facts

43
Q

What constitutes trespass

A

Is the unlawful entry onto the land of another, causing damage.

44
Q

Factors courts consider when considering an injunction

A

(1) burden of the injunction on the enjoining party

(2) hardship to the opponent

(3) whether injunction is in the public interests

Torts (1 decks)

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