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Bar Exam > GA Torts > Flashcards

GA Torts Flashcards

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1
Q

Battery

A

GA doesn’t require intention, but it is considered in the assessment of damages.

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2
Q

Medical Battery

A

P needs to establish:

  1. there was a lack of consent to the procedure performed OR
  2. the treatment was a substantial variance with the consent granted
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3
Q

Shopkepper’s Privilege

A

Activation of an anti-shoplifinting device constitutes reasonable cause for a person to be detained if a notice was posted informing patrons that such a device was being used.

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4
Q

Intentional Infliction of Emotional DIstress

A

In a case involving a physical impact, the conduct in question that caused the emotional distress must be aimed at the plaintiff.

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5
Q

Sexual Harassment

A

Established under the common law and is treated like assault, battery, or intentional infliction of emotional distress.

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6
Q

Trespass to Land

A

A person holding title, if no person is in actual possession, may bring an action for trespass. If a tenant is in possession, the owner or remainderman or reversioner may bring the action.

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7
Q

Conversion Damages

A

Damages can be received in the highest market value existing between the time of the conversion and the trial.

If replevin is sought, P may also recover the fair rental value of the property.

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8
Q

Consent

A

Ineffective where a D’s tortious conduct also constitutes a crime.

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9
Q

Self-Defense

A

D acting in self-defense has no duty to retreat before using deadly force if the person reasonably believes that such force is necessary to prevent death or great bodily injury to himself.

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10
Q

Defense of Others

A

Reasonable Mistake Doctrine: Allows the use of force to defense another if the actor reasonably believes that the person in need of aid would be permitted to use self-defense.

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11
Q

Defense of Habitation

A

Permits a lawful occupant to use deadly force against an intruder when, based on a reasonable belief:

  1. entry is made or attempted in a violent manner and presents a serious threat of personal violence to occupant
  2. force is used against a person not a member of the household who is unlawfully and forcefully entering OR
  3. entry is made for the purpose of committing a felony, and deadly force is necessary to prevent felony
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12
Q

Defense of Property

A

Deadly force is justified only when based on a reasonable belief that it is necessary to prevent the commission of a forcible felony.

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13
Q

Recovery of Wrongfully Dispossessed Land

A

D may never use force to recover land. Allows for an action of ejectment to recover the land.

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14
Q

Rescuer

A

Any person with a licensed in medicine or surgery or things like that who provide emergency aid at the scene of a crime gratuitously will not be held liable for any mistakes they make.

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15
Q

Public Duty Doctrine

A

Municipalities may not be liable for its failure to provide police protection based on a general duty to protect the public. Instead a special relationship between the injured party and the gov tortfeaser must exist. To establish a special relationship the P must show:

  1. an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party
  2. knowledge on the part of the municipality that inaction could lead to harm AND
  3. justifiable and detrimental reliable by the injured party on the municipality’s affirmative undertaking.
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16
Q

Negligent Infliction of Emotional Distress

A

P must demonstrate an impact resulting in either a physical injury or another type of personal injury, such as to reputation. If no personal injury, recovery is allowed only if the conduct was malicious, willful, or wanton.

No bystander actions unless a parent and child are physically injured through another’s negligence and the parent witnesses the child’s suffering and death.

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17
Q

Wrongful Birth and Life

A

No wrongful birth or life actions. Allows wrongful pregnancy/conception actions.

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18
Q

Business Relations Test

A

Distinguishes between invitees and licensees. If the injured person had present business relations with the owner of the property that would render his presence there of mutual aid or benefit, he is an invitee and owed a higher duty of care.

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19
Q

Known Trespassers

A

Landowner must exercise reasonable care in conducting operations on the property and must refrain from willful and wanton conduct, but there is no duty to warn of hidden dangers unless the landowner observes the trespasser in a position of peril.

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20
Q

Firefighter Rule

A

Precludes firefighters from recovering damages for injuries resulting from a negligently caused fire. If injuries are caused by negligence unrelated to the fire, the firefighter has status of licensee

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21
Q

Landlord Duty of Care

A

Landlord who is not in possession is responsible to the tenant and third parties for damages arising from defective construction or from failure to keep the premises in repaid.

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22
Q

Age of Capacity

A

Tort immunity for any child under 13.

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23
Q

Health Care Professionals

A

Held to a national standard of care. Emergency room health care professionals may be held liable only for gross negligence proved by clear and convicting evidence.

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24
Q

Informed Consent

A

Obtained after a patient has been informed of

  1. the diagnosis of the condition that requires the procedure
  2. the nature and purpose of the procedure
  3. the material risks generally recognized by reasonably prudent physicians as being involved in the procedure
  4. the likelihood of procedure’s success
  5. any practical, generally recognized alternatives to the procedure AND
  6. the prognosis if the procedure is not performed.
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25
Q

Res Ipsa Loquitur

A

Doesn’t apply in medical malpractice cases

26
Q

Loss of Chance

A

When there is evidence that the death resulted from the affirmative conduct of the D, proximate cause may be established, even though the patient ultimately would have died from an underlying medical condition.

27
Q

Proximate Cause

A

D only owes a duty of care to foreseeable Ps who are within the ambit of risk.

28
Q

Punitive Damages

A

Can be recovered only when the P proves clear and convincing evidence that D’s action showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care raising a presumption of conscious indifference to consequences. Award cannot exceed $250,000, except in product liability cases or tort cases where D acted with specific intent to cause harm or under the influence of alcohol or illegal drugs.

29
Q

Contributory Negligence

A

Partial Comparative Negligence System: P is contributorily negligent if his negligence was the proximate cause of the injury or if he could have avoided the D’s negligence by exercising ordinary care. P is barred from recovery.

If P’s percentage of negligence was less than the D’s, then P may recover for the D’s proportionate share. If P’s share is equal to or greater than D’s, P cannot recover.

30
Q

Contributory Negligence Multiple Ds

A

P’s percentage of negligence is compared to the aggregated percentage of all the D’s negligence when they are jointly and severally liable.

If not jointly and severally liable, P’s percentage is compared to each D individually.

31
Q

Contributory Negligence of Children

A

Depends on the child’s mental and physical capabilities when child is under 13. However, children under 6 cannot be contributorily negligent.

32
Q

Owner Occupant Doctrine

A

The negligence of a driver of a vehicle is imputed to the owner who is a passenger in the vehicle at the time of the accident when a 3rd party is involved. Doesn’t apply to bar the owner from recovering damages from the driver.

33
Q

Last Clear Change Doctrine

A

P negligently places himself in a perilous position from which he was powerless to remove himself and the D then had a change to avoid the accident/injury in the exercise of ordinary care but failed to do so.

34
Q

Assumption of Risk

A

Applies when D can show that P had

  1. actual knowledge of the danger inconsistent with safety
  2. understanding and appreciation of the risk associated with the danger AND
  3. a voluntary exposure to the risk.

A complete bar to recovery

35
Q

Dangerous Dog Statute

A

The owner of a domestic animal may be liable for personal injury if the owner had prior knowledge of the animal’s dangerous or vicious propensities.

If dog is not on a leash and there is a leash law then that is enough to establish vicious propensity.

36
Q

Abnormally Dangerous Activity

A

Only blasting

37
Q

Strict Products Liability

A

Only applies to items of personal property sold as new, directly or through a dealer. D must be the actual manufacturer of the item. A manufacturer cannot be held liable based on theories of market share or enterprise, public nuisance or other theories of industry wide liability.

Action must be brought within 10 years of first sale for use or consumption.

38
Q

Danger Utility Test

A

A product is defective if a jury determines that the danger it threatens outweighs its utility to society. Balances the likelihood, nature, and potential severity of injuries caused by a product, considering the availability and cost of safer alterative designs.

39
Q

Warranty

A

Extends implied warranty protection to a buyer’s family, household, and guests

40
Q

Public Nuisance

A

Right of action is given on a showing of special damage to an individual, and a complaint may be filed by the district attorney on behalf of the public. Police Power may justify public nuisance.

41
Q

Nuisance Per Se

A

An act, occupation, or structure that is a nuisance at all times and under all circumstances regardless of location or surroundings, and damages are presumed. Damages must be proved.

42
Q

Nuisance Per Accidens

A

An act, occupation, or structure that becomes a nuisance because of location, manner of operation, or other factors. Damages must be proved.

43
Q

Agricultural or Forestry Nuisance

A

An agricultural or forestry operation cannot become a nuisance by any changed conditions in or about the locality if the operation was not a nuisance at the time it began.

44
Q

Defamation

A

Cam recover for any false and malicious publication, not privileged, which intentionally or negligently results in damage to him. Must be read or heard and comprehended by a 3rd party.

45
Q

Defamacasts

A

Defamatory radio and television broadcasts. A private individual defamed in a broadcast may recover actual damages if he shows that the broadcasted failed to use ordinary care to determine the truth or falsity of the statements at issue. A public figure must prove actual malice.

46
Q

Liable Per Se

A

Publication obviously defamatory. Damages are presumed.

47
Q

Liable Per Quod

A

Publications not obviously defamatory, but when considered with innuendo, colloquium, and explanatory circumstances because libelous. Requires special proof of damages. Prima facie case:

  1. D published false statements
  2. statements were defamatory
  3. statements were of or concerning the P
  4. statements were published to a 3rd person
  5. publication caused special damage to the P AND
  6. D did so with actual malice
48
Q

Slander Per Se

A
  1. accusations that P committed a crime
  2. allegations that a person has a contagious disorder that may exclude him from society
  3. charges intended to injury the P in his trade, business, or profession
  4. any defamatory statements that cause the P to suffer special damages

Damages are presumed for the first 3 and the 4th needs to plead and prove special damages.

49
Q

Defamation Damages

A

Actual damages if D can prove:

  1. the statement was made without malice
  2. within 7 days of receipt of a written demand (3 if broadcasted statement) a retraction was published in as conspicuous a manner as the original statement AND
  3. if requested by P, the retraction was accompanied by an editorial repudiating the statement.

Limited to actual damages if the D proves that the P never made a written demand for a retraction.

50
Q

Limited Purpose Public Figure

A

Becomes involved in a visible way in an important public controversy. They bear the burden of proving that alleged defamatory statements against them were published with actual malice in order to recover damages.

51
Q

Matter of Public Concern

A

Private P must prove negligence.

52
Q

Malicious Prosecution

A

Legal advice is considered to be some evidence of probable cause, but isn’t conclusive. Prosecutors are not absolutely privileged, they only have qualified privilege which can be overcome by a showing that the prosecutor pursued the prosecution knowing that the D was innocent or recklessly disregarded facts supporting his innocence.

53
Q

Abusive Litigation

A

Any person who takes an active part in initiating, continuing, or procuring civil proceedings against another is liable for the tort if he acts with malice and without substantial justification. The person claiming abusive litigation must give written notice of the claim to all people he intends to sue. The suit cannot actually be brought until the underlying proceeding terminates in P’s favor.

54
Q

Intentional Misrepresentation

A

P must exercise reasonable diligence to protect himself from fraud. P does have a duty to investigate unless some sort of confidential relationship exists between himself and the D.

55
Q

Inference with Contractual Obligations or Business Relations

A

In addition to showing there was a valid contract, P must show that D;

  1. acted improperly and without privilege
  2. acted purposely and maliciously with the intent to injure
  3. induced a 3rd party or parties not to enter into or continue the contract with the P AND
  4. caused the P financial injury.
56
Q

Owner Occupant Doctrine

A

An owner who is occupying his vehicle at the time of the accident is responsible for the action of his driver when a 3rd party is involved.

57
Q

Parent Child Vicarious Liability

A

Liability on a parent or guardian can be up to $10,000 for a child’s willful or malicious injury to a person resulting in medical expenses or destruction of real or personal property. Parents who lost custody of their child are not liable.

58
Q

Tavern Keepers Vicarious Liability

A

A person who knowingly furnishes alcoholic beverages to a person who is not of lawful drinking age, or to a noticeable intoxicated person, knowing that they will drive soon, may be liable for injury or damage caused by the minor or intoxicated person.

59
Q

Contribution and Indemnity

A

When joint liability applies, D must pay an equal share regardless of their relative degrees of fault. Contribution is prohibited in a case involving moral turpitude.

Indemnity allows a passively negligent D to recover indemnification from the actively negligent D.

60
Q

No Joint and Several Liability

A

In cases where the P was partially at fault. A D is liable only for his portion, and there is no right of contribution.

61
Q

Wrongful Death Damages

A

Full value of decedent’s life including, loss support and consortium. If death was result of criminal act or negligence, funeral, medical, and other expenses are recoverable.

62
Q

Release

A

Release of one D doesn’t discharge the other Ds unless expressly provide for in the release agreement.

Bar Exam (21 decks)

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