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Torts > Memory > Flashcards

Memory Flashcards

1
Q

Transferred Intent

A

5 traditional, but can argue for more!?

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2
Q

False Imprisonment

A
  • Act
  • Intent to confine another within fixed boundaries
  • Unlawful confinement or restraint
  • Victim is conscious of confinement or harmed by it
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3
Q

Malicious Prosecution

A

–Criminal Or civil litigation, by D vs P from original suit
–Termination of process in favor of original P
**NB: dropped charges do not count
–There is malice:
1-Improper purpose (R2D)
2-Wanton disregard of facts or the law
3-showing ill will
–No probable Cause
–Damages to plaintiff

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4
Q

Abuse of Process

A 
Use of legal process civil/criminal
-within litigation
-usually for interim procedures
against another person
-to accomplish a purpose for which it was not designed
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5
Q

Intentional Interference with Contractual and Economic Relations /Business Advantage

A
  • Valid contractual relationship or business expectation
  • knowledge
  • Improper and intentional interference
  • Causing breach
  • Resultant damage

Improper - Factors:

  • Nature of conduct
  • Motive
  • Interest interfered with
  • Interests advanced by interferer
  • Social interest (freedom of action of interferor, contractual interest of other party)
  • Proximity
  • Relations between parties
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6
Q

Intentional Misrepresentation

A

(1) false representation in reference to a material fact
(2) made with knowledge/reckless disregard of its falsity
(3) and with the intent to deceive / induce reliance
(4) with justifiable action taken in reliance upon the representation
(5) resulting in pecuniary harm
Misrepresentation resulting in physical harm is a separate tort: §310.

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7
Q

IIED

A
  • Outrageous and extreme conduct
  • Intent/Recklessness
  • Causation
  • Serious emotional harm

Think about NIED too

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8
Q

Defenses to Intentional Torts

A
  • Self Defense
  • Defense of Others
  • Consent
  • Necessity
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9
Q

Self Defense

A
  • Use of reasonable force
  • Defendant reasonably believed
  • Necessary
  • To prevent immediate harm

Some jx. Reasonable Mistake

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10
Q

Consent

A
  • Autonomous adult has the right to waive their interest
  • Express: objective manifestation
  • Implied: custom, conduct
  • Note: was consent induced by duress or material fraud?
  • Children, mentally incapacitated, or someone coerced cannot consent!
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11
Q

Necessity

A
  • Reasonable belief of imminent danger to greater interest
  • Do minimal harm to protected interests
  • Liable for damages if he intentionally uses another’s property for his own property’s benefit and he damages that property
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12
Q

Manufacturing Defect

A

Strict liability - compare to intended design

OR Res Ipsa

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13
Q

Res Ipsa

A

Res Ipsa Krebs:

  • Cause known
  • Instrumentality under exclusive control
  • Instrumentality unlikely to cause the harm w/o neg on part of controller

Res Ipsa Modern:

  • -Evidence supports inference someone was neg.
  • -evidence supports inference it was D that was neg
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14
Q

Design

A

Standard:
- Negligence like approach’
2 tests
- Consumer expectations (ordinary customer would use product)
- risk utility tests (show better design)

Risk utility factors:Factors to consider

Gravity of danger posed by challenged design
Likelihood that danger will occur
Mechanical feasibility of a safer design
Financial cost of different design
Adverse consequences to the product and the consumer that would result from alternative design

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15
Q

Warning

A

Standard:
Negligence-like approach - reasonable warning

Important questions:

  • Was there a warning at all (and should there have been?)
  • If warning was content clear/sufficient?
  • Format: Size? Placement?
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16
Q

Exceptions to Breach

A
  • Physical disability
  • Child standard of care
  • Negligence per se
  • Professional negligence/medical malpractice
17
Q

Hand Formula

A

Burden < (Probability x Loss)

18
Q

Excuses to Negligence Per Se

A
  • -Incapacity (incapable of compliance)
  • -No knowledge of occasion for compliance (i.e. stop sign covered by tree example)
  • -Emergency
  • -Compliance involves greater risk
19
Q

Medical Malpractice

A

Informed Consent
- Proper consent? No - then battery
- Flawed consent?
- Breach: did physician negligently omit information that should have been provided?
Physician Standard: would reas. physical disclose?
Patient standard: would reas. patient find the information material?

Causation -
would P have agreed if had missing info?
Objective Standard: Would RP have gone through with it if they knew of the risk?
Subjective Standard: Would this patient?

Malpractice Negligence

  • Duty
  • Breach, (but with professional standard)
  • causation (but with physician or patient standard)
  • Scope of liability
  • Damages

Can use Res Ipsa for causation
+ Ybarra Extension
–Circumstances suggest at least one D at fault
–Innocent P should recover and only way to do justice
–impossible case
**Most states limit to unconscious victims; judges hate to make special rules just cuz we dont like the results.

20
Q

Exceptions to Scope Foreseeability

A
  • Medical complications
  • Eggshell Skull
  • Rescuer Rule
21
Q

Bystander Liability

A
  • do negligence claim for principal
  • usually NIED

3 tests
- Zone of Danger

  • Dillon Foreseeability
    + Proximity to accident
    + direct sensory observation
    + Relationship to V (argue for others)
  • Thing
    + Present at scene
    + sensory/contemporaneous awareness of harm
    + close relationship to V (usually family)
22
Q

Tarasoff

A

1) If a therapist (maybe beyond)
- -Has a special relationship with perpetrator
- -Determined/should have determined that perpetrator is a danger to others
- -Foreseeable victim; possibilities
- —Clearly identifiable (Thompson)
- —Just foreseeable (Cansler)
2) Then: duty of reasonable care or duty to warn
3) *Special relationship between either the person who needs to be controlled or the foreseeable victim of the conduct is sufficient, and does not need to be a relationship to both.

23
Q

Landowner Duty to protect form criminal acts

A
  • must be foreseeable

then uses one of four tests

  • Specific harm
  • Prior similar incidents
  • Totality of circumstances
  • Balancing Test
24
Q

Landowner Duty

A

Invitee
-Due Care

Licensee

1) warning against/fixing known hidden (non-obvious) traps or danger
- Need to warn or fix
2) no willful/wanton injury

Trespasser
duty to
unanticipated = no willful/wanton injury

duty to
anticipated
1) warning/fixing of artificial hidden traps known to owner
2) no willful/wanton injury

duty to child trespassers - attractive nuisance
3 approaches for child trespass

Zinc majority = attractive nuisance must have drawn the children onto the land (invitation to come on the land)
Attractive nuisance elements (children see from far off land…)

Zinc dissent = if children see on the land an attractive nuisance, the owner might be liable if he was aware children might be on the land and failed to make artificial hazards safe/warn, regardless of how children got onto the land. Focuses on what harmed the children.

Restatement 339
-Children see, from far-off land
-Artificial condition (natural = beach, artificial = something you built, like a swimming pool)
-Hazardous
-Unfenced
-Unhidden
-Attracts child on land
If child harmed by condition, owner might be liable
25
Q

Express AoR

A

P signed a waiver
1) Is waiver for negligence only (no - shortly consider severability)
2) ambiguous (interpret against drafter)
3) against public policy (Tunkl)
• Type of business suitable for public regulation
• Essential service
• General service (open to public)
• Advantage in bargaining strength
• Standardized contract
• Control: transaction places buyer under control of seller

26
Q

Implied AoR

A

P must have subjective knowledge and appreciation of risk + voluntary exposure to risk. If P tried to minimize or avoid risk, no assumption of risk.

27
Q

Primary Implied Assumption of Risk

A

a sport + inherent risk to sport → participants/spectators of sports assume risks inherent to that sport

Identify scenario (P took risk on themselves), implied, primary, AND comparative

28
Q

Pre-Natal Torts

A 
Wrongful Conception (birth of unwanted)
- recovery limited to medical and pregno
Wrongful Birth (Negl causin birth with disability)
- recover pregno and maybe costs of disabled child rearing

Wrongful Life (Child sues for own birth

  • in CA, can allow damages ,most wont
  • can get special damages
29
Q

Defamation

A

1) defamatory language on the part of the defendant
2) that the defamatory language was of/concerning the plaintiff
3) Negligent/Reckless+ disregard for falsity
3A) Public Figure? Actual Malice.
4)publication of the defamatory language by the defendant to a third person
5) damage to the reputation of the plaintiff

30
Q

Pure Economic Loss

A

Biakanja Factors:

1) was transaction intended to affect Plaintiff ?
1) was harm foreseeable
3) degree of certainty P suffered injury
4) how close is D’s conduct related to the injury
5) how morally culpable was the defendant
6) policy of preventing the harm?

Torts (4 decks)

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