Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Torts > Modules 1-3 > Flashcards

Modules 1-3 Flashcards

0
Q

How do you prove liability if the injury is unintentional?

A

Negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
1
Q

What does intent mean?

A
  • that the defendant desires the result

- or that the defendant knows to a substantial certainty that the result will occur

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

How do you prove that the defendant desired the consequences of her acts?

A

Circumstantial evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is the standard for proving intent in the intentional torts?

A

Subjective

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is recklessness?

A

When a defendant takes a substantial or unreasonable risk that the elements of the tort will occur
Ie) driving too fast and risking a collision

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is transferred intent?

A
  • Applied to five intentional torts (battery, assault, FI, trespass to chattel, trespass to land)
  • if the defendant intends any of these torts but her conduct result in any of the other torts the defendant is liable for the tort even though she didn’t intend it
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is an example of transferred intent?

A

If Sally intends to assault George but accidentally makes physical contact with Kim, Sally is liable for battery. This is because the intent to commit one tort satisfies the intent element of another tort. The intent to commit a tort against one victim is transferred to any other victim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the mistake doctrine?

A

If a defendant intends to do the acts which would constitute a tort, it is no defense that defendant mistakes, even reasonably, the identity of the property or person he ask upon, or believes incorrectly there is a privilege
Ie) if you shoot a dog and think it is a wolf you’re liable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Can insanity or infancy be a defense to an intentional tort?

A

No, but if a person is very impaired or very young they may not possess the requisite intent for the crime
Ie) if a one-year-old pulls the trigger begun she probably intended to pull the trigger but didn’t intend for a battery and therefore is reliable
- I tired/insane person doesn’t need to appreciate the significance or wrongness of their act to be liable (Garrett V daily)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is battery?

A

When the defendant’s acts intentionally cause harmful or offensive contact with another’s person or something closely connected to the plaintiff’s body

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What are the elements of battery?

A

1) intent
2) harmful or offensive contact
3) causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What does intent to refer to in a battery?

A

Just requires intent, not an intent to harm. Means intended to cause either harmful or offensive contact.
- The least touching of another in anger is battery
- even if minimal or no physical harm was actually intended it is still a battery
Ie) schoolboy kicking his classmate’s shin
- The brisk of unforeseen harm arising from the battery is borne by the defendant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What does harmful or offensive contact include in a battery?

A

Can be physical, psychological, trivial physical contact, offensive contact. Ie) grabbing the plate out of a person’s hand
- meant to protect injurious physical intrusions and personal autonomy
- victim doesn’t have to be conscious of either the contact or it’s harmful/offensive nature at the time of the intrusion
Ie) you kiss someone while they’re sleeping, and are liable for battery
- offensive according to a reasonable person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What does causation refer to with regard to battery?

A

The defendant’s voluntary action must be the direct or indirect legal cause of the harmful or offensive contact. Defendant doesn’t have to actually make physical contact
Can set of force in motion ie) can hit someone with a rock, snack something from their hand, blow smoke in their face, putting poison in a drink, knocking glasses off your face,

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What are the two types of damages in battery?

A

1: nominal damages - when the plaintiff suffers only trivial harm or offense, they are still entitled to collect some money. The matter how trivial the incident, a batteries actionable, even if damages are only one dollar
2: economic damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Are parents liable for their kids torts?

A

Not unless you can prove that the child’s tort was committed willfully are wantonly

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What are the two types of intent?

A

1) single intent: battery requires a plaintiff to prove merely that the defendant intended to touch -> majority
2) dual intent: must prove that the defendant intended to touch AND intended that the touching be harmful or offensive -> minority

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is the extended liability principle?

A

The defendant who commits an intentional tort is liable for all damages caused, not merely those intended or foreseeable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What does prima facie mean?

A

The elements of the plaintiff has to prove to establish his claim by a preponderance of the evidence (must prove each element is more likely than not)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What does a preponderance of the evidence mean?

A

More than 50%. Must prove each element is more likely than not

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

How many elements does every intentional tort have?

A

Five

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What are the five elements of every intentional tort?

A

1) voluntary act
2) intent
3) causation
4) Harm or injury
5) without privilege

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is a voluntary act?

A

An act of the defendant that is conscious, willed, or purely reflexive ie) epileptic seizure doesn’t count as a voluntary act so there would be no basis for tort liability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is the difference between subjective and objective intent?

A

Subjective: requires that you look into the mind of the defendant and ask, “what is he thinking?”

Objective: looks at conduct and evaluates defendants conduct

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Why was the tort of battery created?

A

To protect unconsented invasions of a person’s body

25
Q

What is assault?

A

When the defendants act intentionally cause the victims reasonable apprehension of immediate harmful or offensive contact
* The apprehension must be reasonable and immediate
Ie) if someone was swinging a bat at another person’s head when that person wasn’t looking, there was no assault

26
Q

What are the elements of assault?

A

A) intent
B) imminent
C) apprehension
D) harmful or offensive contact

27
Q

What is required for intent under assault?

A
  • defendant must desire to be substantially certain that the action will cause the apprehension of the media harmful or offensive contact
  • accidentally creating apprehension is not an assault
    Ie) if someone is afraid because another’s running carelessly towards them, that is not an assault
    Ie) if A insists on shooting an arrow above B, and knows with substantial certainty it will cause apprehension to B, A is liable even though A doesn’t desire to cause apprehension
  • The defendant’s motive is irrelevant so long as he desired or knowingly created apprehension
28
Q

What does apprehension mean in assault?

A

Victim must perceive that harmful or offensive contact is about to happen

  • defendant must have a parent, if not actual, ability to cause imminent harmful or offensive contact
  • if something happens from behind when the victim isn’t looking, it is not an assault
29
Q

Do words count as harmful or offensive contact?

A

Usually no, there must be an overt act in furtherance of the assault.

Sometimes verbal statements can be sufficient ie) threatening to spit on someone, or telling someone that they will be shot

30
Q

What is reasonable apprehension in assault?

A

Apprehension is the victim’s awareness that imminent harmful or offensive contact will occur unless the victim takes effective evasive action
* don’t need to produce fear in the victim
Ie) if Alice strikes out at Bob and Bob knows he can avoid Alice’s contact, there has still been an assault because if Bob did nothing, Alice would hit Bob

31
Q

What is a conditional assault?

A

The assault is conditional on the victim’s noncompliance with an unlawful demand
Ie) if Abby shows Buster a weapon and tells Buster to give her his wallet or else she’ll strike
* defendant doesn’t have to be the source of the threat of harmful/offensive contact (can be another person, can be in animate object)

32
Q

What are the three justifications for the tort of assault?

A
  1. Moral: assault is a wrongful affront to the victim
  2. Compensation: purely psychological injury constitutes compensable harm when it is intentionally inflicted
  3. Veterans: discourages wrongful retaliation to an assault by providing compensation
33
Q

What is false imprisonment?

A

When the defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area for any appreciable time. Victim must be aware of the confinement at the time of restraint, or must have sustained actual harm

34
Q

What are the three things false imprisonment compensates for?

A

psychological, physical, economic injury

35
Q

What is a bounded area?

A

Victim must be confined within an area bounded in all directions
- there cannot be any reasonable means of escape (if it requires the victim to be heroic, endure excessive embarrassment or discomfort, or if the victim is unaware of the means of escape… Bounded area)

36
Q

In false imprisonment, what are the four things that a victim must be confined or restrained by?

A
  1. Physical barriers: must surround victim in all directions so that no reasonable means of escape exists
  2. Force or threat of immediate force: force can be directed at the victim, their family, companions, or property
    Ie) if you grab someone’s coat and won’t give it back, and that person refuses to leave without it, that is false imprisonment
  3. Omission when there is a duty to act: like taking someone out on your boat and then leaving them there
  4. Improper assertion of legal authority: if a victim submits to an arrest and the arresting person is not privileged to act under the circumstances, that is false imprisonment
37
Q

Must the victim be conscious of the confinement in a false imprisonment case?

A

Yes, or if the victim is not aware but gets hurt because of it, then it is false imprisonment

38
Q

What is the rule about time for false imprisonment?

A

No minimum time, can be just one minute, although the amount of compensation is usually related to the period of confinement

39
Q

What is false arrest?

A

Confinement is accomplished through the unlawful assertion of legal authority

40
Q

What is trespass to land?

A

And actionable invasion of an interest in exclusive possession of land (which protects a plaintiff’s interest in the surface of the land, the earth, or other material beneath the surface, and the airspace above it). The invasion must take a physical or tangible form

41
Q

In trespass to land what must happen?

A
  • defendant must enter the land of another or cause a thing or third person to enter
  • or remain on the land
  • or fail to remove from the land of thing which a person is under a duty to remove
42
Q

How does intent work for trespass to land?

A

Plaintiff must prove only that defendant intended the act that resulted in the trespass, that it was volitional, and done with either a desire to cause a physical entry onto the plaintiff’s property or with substantial certainty that the act resulted in such a physical injury

43
Q

Can mistake be a defense for trespass to land?

A

No

44
Q

What is a continuing tort in trespass to land?

A

Failure to remove something from plaintiffs land

45
Q

What must you prove if you want to collect compensatory damages from a trespass to land suit?

A

A) substantial damages
B) The invasion affected an interest in the exclusive possession of the property
C) The act was intentional
D) reasonable foreseeability that the act could result in an invasion of the plaintiffs possessory interest

46
Q

What is a property doctrine of easement?

A

Combination of recognition of possessors ownership with the prerogative for someone else to enter below the surface ie ) if the government is constructing a subway and they want to lay tracks and your land they will seek an easement. If you refuse to grant permission, you will face an easement by condemnation where court will impose the easement and award nominal compensation that reflects how little harm the entry causes

47
Q

What is the rule for the airspace above your land?

A

You have ownership over the immediate reaches above your land. Navigable airspace is for public use, so airplanes can fly there unless they fly low enough to interfere with the possessor’s use of the land

48
Q

What happens if your animal wanders onto someone else’s land?

A

The owner is strictly liable for whatever physical harm the intrusion causes

49
Q

What are restatements?

A

Attempts by legal scholars to put into one document with the state of the common-law is right now. It is not the law in any state, but it is useful as a tool

50
Q

What is summary judgment?

A

When there are no material facts in dispute so the moving party is entitled to judgment as a matter of law, because there’s nothing for the jury to do where these things are true, the judge rules before the jury makes a decision. This ends the case, unless the losing party appeals

51
Q

Is it true that every battery involves an assault?

A

No, what if a defendant is struck with a baseball bat while sleeping?

52
Q

Is it an assault if the defendant gives you a choice of tortious alternatives?

A

Yes. Saying, “I won’t beat you to a pulp if you give me your tickets.” Is an assault even if the threatened battery can be avoided by complying with the aggressor’s demands

53
Q

What does imminent mean in assault?

A

The apprehension created must be imminent contact, as distinguished from any contact in the future. Imminent does not mean immediate, in the sense of instantaneous contact, it means that there will be no significant delay

54
Q

How do damages work for false imprisonment?

A

Because false imprisonment is a trespassory tort, damages can be collected even if there is been no actual harm. But harm is required if the plaintiff was not aware of the confinement at the time
Ie) baby locked in a bank vault, not aware of being confined, but had difficulty breathing, so suffered harm in therefore recovery is permitted

55
Q

What are torts to property?

A
  • intentional invasions of property interests

- trespass to land, conversion of chattels, and trespass to chattels

56
Q

Is it considered a trespass to land where car goes out of control without fault?

A

No, but if you refuse to leave the land it is considered a trespass

57
Q

What is nuisance?

A

An interference with the use and enjoyment of your land. This is for intangible intrusions like noise, odor, light

58
Q

What are the five types of damages that can be recovered from trespass to land?

A
  1. Nominal: because trespass is a trespassory tort, trespassers are liable for at least nominal damages even if no physical harm is done
  2. Physical: if the land is physically harmed, the damages are measured by either cost of repair or by diminution in the value of the premises as a result
  3. Compensatory: with proper proof can be given for the loss of use of the land and for emotional distress or annoyance caused by the trespass
  4. Injunctive relief: where damages are in adequate (like continuing or repeated trespass) The plaintiff may be entitled to an injunction to stop the trespassing or to force the trespasser to leave or remove something placed on the plaintiffs land
  5. Punitive: can be awarded if the trespass is deliberate or malicious
59
Q

What is extended liability for trespass to land?

A

You are responsible for all damages whether directly caused by you or things that follow as a result of your actions
Ie) if you trespass and throw cigarette butt into a puddle, but the puddle is gasoline and you burn down the barn, you are liable

Torts (6 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions