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Kaplan Foundation Slides > Kaplan Torts Foundation Slides > Flashcards

Kaplan Torts Foundation Slides Flashcards

1
Q

Intentional Torts- Coverage Areas

A 
Assault
Battery
False Imprisonment
Trespass to Chattel
Conversion
Trespass to Land
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2
Q

Intentional Torts- Defenses

A
  • Consent
  • Necessity
  • Shopkeeper’s Privilege
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3
Q

Torts Checkpoint Items

A
  • What is the Cause of Action?
  • Prima Facie Case and Defense
  • Who are Your Parties?
  • Does the Intent Transfer?
  • What is the Harm?
  • Are Damages Needed?
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4
Q

Kaplan Torts Exam Approach to Each Question

A 
Step 1- Identify the cause of action
Step 2- Look for elements
Step 3- Consider defenses
Step 4- Knock out wrong answer choices
Step 5- Choose the best of what’s left
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5
Q

3 Types of Battery

A
  • Defendant intends to commit an offensive or harmful contact, and an offensive or harmful contact results
  • Defendant intends to commit an assault, and an offensive or harmful contact results
  • Defendant commits an act, which he knows or should know creates a substantial certainty that a harmful or know, offensive contact will occur
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6
Q

Consent

A
  • If the victim gives permission, what would otherwise be tortious is instead privileged.
  • An individual can convey consent expressly in words or through non verbal gestures.
  • An individual can imply consent when, under the circumstances, the conduct of the individual reasonably conveys consent.
  • Consent can also be implied by law. Generally courts recognize by law consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent.
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7
Q

Assault

A

• An act by the defendant creating a reasonable
apprehension in plaintiff of immediate harmful or
offensive contact
• Intent on the part of the defendant to bring about
apprehension of immediate harmful or offensive contact in the plaintiff
• Causation

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8
Q

Intentional Infliction of Emotional Distress

A
  • Extreme and outrageous conduct
  • Intent by defendant that plaintiff suffer severe emotional distress, or recklessness
  • Causation
  • Damages severe emotional distress
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9
Q

IIED- Third Party Recovery

A

When the defendant causes physical harm to a third party and the plaintiff suffers emotional distress because of her relationship to the injured person:

  • Plaintiff must be present;
  • Plaintiff was a close relative to the injured person;
  • Defendant knew or should have known of the presence of the plaintiff and
  • Actual damages are required
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10
Q

Trespass to Chattels versus Conversion

A

• Trespass to chattels- defendant interferes with
another person’s lawful possession of a chattel
(movable personal property).
• The interference can be any physical contact with the chattel in a quantifiable way, or any dispossession by taking it, destroying it, or barring owner’s access
• Conversion is a greater wrong as trespass to chattels is argued to be actionable per se.
• Factors- duration, value, damage

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11
Q

Necessity

A

A defense which allows the defendant to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in her behavior because the action minimizes the overall loss.
-Public necessity- Defendant injures a private property interest to protect the community. A Complete defense.
-Private necessity- Defendant injures a private property interest to protect a private interest valued greater than the appropriated
or injured property. An incomplete defense. The defendant is privileged to interfere with another’s property, but is liable for the damage

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12
Q

Trespass to Chattels or Larceny?

A
  • Who are the parties?
  • Criminal law requires an intent to permanently deprive the owner of possession

• Torts law requires only and intent to take, regardless of knowledge of ownership

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13
Q

Intentional Entries onto the Land

A
  • Defendant is liable for intentional entries onto the land of another
  • Damage to the land is not required
  • Mistake is no defense
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14
Q

Unintentional Entries onto the Land

A

A person is not liable for trespass for negligent or reckless entries unless he causes damage to the land.

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15
Q

False Imprisonment

A
  • An act by the defendant that confines or constrains the plaintiff
  • To a bounded area;
  • Defendant intends to confine
  • Causation
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16
Q

Shopkeeper’s Privilege

A

if a shopkeeper reasonably believes that a theft has occurred, he is privileged to make a detention in a reasonable manner for a reasonable period of time.

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17
Q

Negligence - Coverage Areas

A

Duty, Breach, Causation, Damages Negligence Per Se
Res Ipsa Loquitor
Standards of Care
Defenses
Multi Party Liabilityyy
Foreseeable Intervening forces Unforeseeable Intervening forces Contributory Negligence Comparative Fault
Assumption of the Risk

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18
Q

Torts Checkpoint Items

A
  • Are all Elements Present?
  • Watch for Statutes- right type?
  • Reading Comprehension
  • Who is Responsible, and Who Else?
  • Where are you Procedurally?
  • What kind of jurisdiction are you in?
  • Defenses to mitigate?
  • Defenses to exonerate?
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19
Q

TORTS- Negligence and Defenses

Duty

A

• What?
-A legal requirement to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risks of injury to others

• To Whom?
-All foreseeable plaintiffs

• When?

   - Everyday situations
   - Emergency situations
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20
Q

Duties of Care–MBE Trespasser Unknown

A

No Duty to warn of dangers, but you cannot actively set harmful traps to trespassers (Spring Gun)

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21
Q

Duties of Care–MBE Licensee

A

Friend - Duty to Warn of Known Dangers

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22
Q

Duties of Care–MBE Invitee

A

Customer (Potential Customer)- Duty to Inspect, Warn and Make Safe

23
Q

Negligence Per Se

A

Statute designed to: (1) Prevent the particular type of injury from occurring; (2) Protect the type of class of plaintiff: (3) prevent the specific conduct that caused 1 and 2

24
Q

Res Ipsa Loquitur

A

The Accident does not normally occur absent negligence on the part of the defendant AND the instrumentality causing the accident was with the defendant’s EXCLUSIVE control

25
Q

Contributory Negligence

A
  • A negligent plaintiff is barred from recovery, even if they are 1% negligent;
  • Minority Rule;
    3- Last Clear Chance Rule–that a negligent plaintiff can still recover if he can show the defendant had the last clear chance to avoid the injury and failed to do so;
    4- Only use if fact patter says this is a Contributory Negligence Jurisdiction
26
Q

Comparative Negligence

A

A negligent plaintiff’s recovery will be reduced by the percentage of his own negligence

27
Q

Pure Comparative Negligence Jurisdiction

A

Plaintiff can recover even if the plaintiff’s negligence exceeds the defendants

28
Q

Modified Comparative Negligence Jurisdiction

A

Plaintiff can only recover if the plaintiff’s negligence is equal to or less then the defendant’s negligence

29
Q

Modified Comparative Negligence Jurisdiction 50%

A

Plaintiff can only recover if the plaintiff’s negligence is equal to or less then the defendant’s negligence

30
Q

Modified Comparative Negligence Jurisdiction 49%

A

Plaintiff can NOT recover if the plaintiff’s negligence is equal to or more then the defendant’s negligence

31
Q

Joint Tortfeasors

A

Where the combined negligent acts of two or more tortfeasors cause an indivisible injury (incapable of apportionment), each tortfeasor is held jointly and severally liable

32
Q

Release

A

When a tortfeasor makes a pretrial agreement to pay her share of the damages awarded to the plaintiff, such settlements usually precede the court’s determination of each tortfeasor’s relative liability

33
Q

What is the effect or a valid Release

A

The settling defendant’s percentage of fault is deducted from the damages awarded the plaintiff regardless of the actual payment made by the settling defendant

34
Q

A negligent defendant will be liable for Foreseeable Intervening Causes, such as

A 
1- Negligent Rescue
2- Subsequent Medical Malpractice
3- Subsequent disease 
4- General Negligence
5- Reasonably Foreseeable Criminal Acts in which the original tortfeasor substantial created
35
Q

Unforeseenable / Superseding Causes that will relieve the original tortfeasor from subsequent liable (of the acts)

A

1- Acts of Good; such as lightening or floods
2- Intentional torts of third parties
3- Intentional crimes of third parties

If unforeseeable then the defendant is not liable (superseding)

36
Q

Other Torts-Coverage Area

A 
Strict Liability
   1- Strict Product Liability 
   2- Wild Animals 
   3- Ultra hazardous Activities
   4- Defenses

Nuisance
Defamation
Invasion of Privacy
Misrepresentation

37
Q

Check Point Items (How to approach the MBE questions)

A

1- Who are the Parties? Sellers, Public Figures: Wild Animal Owners?

2- Are the elements Satisfied?
3- Multiple Causes of Action?
4- Defenses?
5- Fault of Behalf of the Plaintiff?

38
Q

Abnormally Dangerous Activities include:

A

1- A category of activity subject to strict liability
2- If the activity creates a risk of serious injury to the land or chattels of the plaintiff or to the plaintiff himself and the risk cannot be eliminated through the exercise of due care, and the particular activity is not generally performed in that particular physical area

39
Q

Examples of Abnormally Dangerous Activities

A 
Storage of Explosives
Fumigation
Crop Dusting
The Storage of Flammable Liquids
Pile Driving
The Maintenance of a Hazardous Waste Site
40
Q

Wild Animals

A

An owner of a wild animal is strictly liable to persons who are injured by the animal

41
Q

Examples of Wild Animals are

A 
Lions
Tigers
Bears
Elephants
Wolves
Monkeys
Sharks
Snakes
Spiders
42
Q

Strict Products Liability is

A

One who sells a product in a defective condition unreasonable dangerous to the use or consumer is held strictly liable for the harm or injury that is caused

43
Q

Defenses to Strict Liability

A

Assumption of the risk
Adequate Warning
Product Misuse

44
Q

Products Liability Defendants are

A

One who sells a product in a defective condition unreasonably dangerous to the user or consumer;

Defendant must be a commercial seller of such prodcuts

45
Q

Misrepresentation elements are

A 
1- False statement
2- Scienter
3- Intent to induce plaintiff to act 
4- Justifiable reliance
5- Damages
46
Q

A Private Nuisance is

A

A disturbance that creates a substantial and unreasonable interference with the use and enjoyment of one’s property

47
Q

Defamation elements

A

1- Defamatory Statement of fact, NOT opinion;
2- Publication to any 3rd party who reasonably understands
3- Damages, General Damages presumed, Special Damages required except libel and slander per se
4- Plaintiff’s Standard of proof by Public official or public figure must show/prove defendant’s Malice
4- Plaintiff’s Standard of proof by Private Person is (1) matter of pubic concern then the plaintiff has to prove a negligence standard, or
(2) matter of private concern you only need publication

48
Q

Slander Per Se

A 
Defamatory Statement which imputes: 
1- Loathsome Disease
2- Unchastity to a woman
3- Improper conduct in one's trade, business or profession
4- False accusation of a crime
49
Q

Invasion of Right of Privacy

A

1- Appropriation
2- False Light
3- Intrusion upon seclusion
4- Public Disclosure of Private Facts

50
Q

Invasion of Right of Privacy–Appropriation

A

Is when the person name or likeness is used in a commercial advertisement without the person’s authorization

51
Q

Invasion of Right of Privacy–False Light

A

False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories – false light cases are about damage to a person’s personal feelings or dignity, whereas defamation is about damage to a person’s reputation

52
Q

Invasion of Right of Privacy- Intrusion upon Seclusion

A

It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.

53
Q

Invasion of Right of Privacy

A

Is an invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain

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