Purple Add-ons Flashcards
If two friends are engaging in horseplay, will there always be a battery?
Sometimes there is an argument for consent in that situation
Because IIED is so subjective about what is outrageous, generally an answer that indicates this on the exam is what?
Wrong
If an examiner wants you to pick IIED, the question will involve what?
Conduct that is super obviously outrageous, so much so that no reasonable person could think otherwise
Can a joke be actionable under IIED?
Only if it transcends all bounds of decency in a civilized society
If emotional distress is only attributable to property damage, and there is no tangible physical manifestation of it, can there be a claim for IIED?
Usually no
What is the controlling issue in a nuisance case?
Whether or not the person can abate the nuisance without unreasonable expense compared to the harm to the plaintiff’s use of the land if the nuisance continues unabated
Where does nuisance liability come from?
The harm done, not the actor’s state of mind
If someone refuses to abate a nuisance, after being requested to do so, his continued interference with the neighbor’s property is considered what?
An intentional tort which is enough for malice, intent to injure, and can be inferred from the continued operation of the nuisance, so the court can award punitive damages
What does the “different in kind” issue for public nuisance mean?
If your injury is puking and stomachaches from a pig farm’s smell, and everyone else is just annoyed by the smell, you haven’t suffered a different injury in kind to compare it with the others
When are injunctions given for nuisance?
When the legal remedy is inadequate because money damages won’t solve the problem, the interference is one of a continuing nature, and the balance of equity tips in favor of the plaintiff
What does it mean for the balance of equity to tip in favor of the plaintiff for an injunction for nuisance?
Hardship to the defendant versus hardship to the plaintiff and community
If you rip a page from someone’s book, would that be considered conversion?
No, because it wouldn’t be destruction of the book, it would just be mere intermeddling
If a patient gives consent for an operation to be performed by her doctor, but a specialist ends up doing the operation instead, and he does a wonderful job, is that a battery?
Yes because the plaintiff didn’t consent to the operation being done by that person
If a doctor performs surgery to find out what is wrong with your stomach, and when he gets in there he finds an abscess, can he remove it right then without being charged with a battery?
Yes, because the patient consented to find the cause of the harm would be enough to justify removing what was causing it, so the court would find implied consent because removal was ultimately necessary to protect the plaintiff’s life
Can contributory negligence be a defense to intentional torts?
Never
If two people agree to fight, have they consented to one another’s batteries?
No, because their fight was considered a breach of the peace
If a breach of the peace is involved, can it be held that the participants consented?
No, public interest requires that they be held liable for their torts
If a police officer makes a reasonable mistake and arrests someone that is actually innocent of a misdemeanor charge, is there police privilege for this?
Majority: no, minority: yes
If you have a warrant and you mistakenly arrest the twin brother of the person you have a warrant for, is there a privilege?
No, you can only arrest the person named in the warrant
You can’t be liable for negligence unless your conduct was what?
Unreasonable
What is a testing trick for an answer pick that states a finding of fact, like whether or not a 10-year-old can understand the dangers of using a stick?
Since this is not a simple yes or no answer, but a matter of opinion that would be a question for the jury, this should be eliminated
What standard are learners or beginners in an activity that involves a known risk to others held to?
The same standard as experienced people
If you are a therapist, and your patient is bent on committing suicide, do you have a duty to warn others about this?
No, because he doesn’t present a risk of harm to other people, so you have to abide by your confidentiality rule
When would a doctor be held liable if he was administering aid under the good Samaritan rule?
If he acted recklessly, willfully/wantonly in causing injury
For NIED, most states say the plaintiff had to have been subjected to what?
Actual impact or threat of it, but minority says it’s okay if it was a close family member who had contemporaneous observance
Common carriers owe a duty to choose the course of action that is what?
Least likely to expose passengers to risk of harm
If a plane gets hijacked and is being used to fly to Cuba, under the common carrier doctrine, what should the common carrier do?
Since it would be less harmful to let the plane fly there than to start a gun battle on board, they should let it happen
If a carpool involves the sharing of expenses for consideration, what status does that give riders?
Passenger status
What is necessary to show joint enterprise?
Joint control, so just sharing expenses is not enough
Do carpools create joint enterprises?
No, because there is no mutuality of control
Res Ipsa Loquitur only applies to situations where a lay jury could say what?
That the accident wouldn’t usually happen without negligence
If a situation involves complex machinery beyond the experience of an ordinary jury, does Res Ipsa Loquitur apply?
No, because a lay jury couldn’t say whether not that accident would happen without negligence
In order for Res Ipsa Loquitur to apply, the instrumentality must’ve been what?
Under the defendant’s exclusive control
If a period of time is relatively short, like 15 minutes, and no other explanation appears for something like a parked car rolling backwards, what can be inferred?
That the driver was negligent in parking the car
What are the two different views about landlords having a duty to their tenant’s guests?
- old view: duty is limited to those he is in privity with
- modern: owes the same duty to guests as he does to the tenant
What is the landlord’s duty with regard to common areas?
He is treated as the land occupier of common areas and is liable to both tenants and visitors in those areas with no privity issues
If a non-customer uses a bathroom in a store or restaurant, what is the duty owed?
Even though they might not be a customer, because the premises is open for public admission, washroom users are treated as invitees, so they’re owed a duty to use due care to inspect and discover dangerous conditions and to make them safe
If someone slips in water that was left on a bathroom floor for many hours, can liability fall on the landowner?
Yes, because he had time to discover it and remedy it
The last clear chance doctrine overrides what?
The contributory negligence rule
Last clear chance doctrine only applies when who is contributorily negligent?
Plaintiff, and not the plaintiff’s spouse or someone else
If your husband and the boat driver were both a negligent and it resulted in you ending up overboard, would the last clear chance doctrine bar you from recovery?
No, because you weren’t contributorily negligent in creating your own injuries
The last chance doctrine is what to the contributory negligence defense?
An exception
What does a person have to actually know in order to assume the risk of an activity?
The possibility of that injury and he must voluntarily choose to encounter it
Is it relevant what a reasonable person would know for assumption of the risk?
No, the question is what the plaintiff actually knew about the risks involved
If the plaintiff didn’t actually suffer an injury, can he prevail for medical malpractice?
No
If a doctor didn’t tell you there was a 2% chance of death from surgery, and you have the surgery and everything goes well, can you sue for medical malpractice?
No, because you weren’t actually injured
Professional malpractice cases require all of the elements of what?
A normal negligence claim
If a professional didn’t act reasonably in rendering professional services, but his conduct didn’t cause the harm to the plaintiff, is he liable under malpractice?
No, because all of the elements of negligence apply and causation would be missing
What is the overriding standard for malpractice?
Defendant has to demonstrate at least a minimal degree of competence required by a member of the profession in good standing
What is the only time that the community standard is applied for malpractice?
If there is a close call
What is unclean hands?
A policy-based doctrine that bars a plaintiff from bringing suit when his own behavior has been reprehensible
Strict liability only applies to injuries caused by wild animals if the defendant is the what?
Owner
If a bear attacks someone on the defendant’s campground, is assumption of the risk a defense?
Only if the plaintiff actually knew of the danger
If you don’t know that bears actually live on a campground, and you get attacked by a bear, did you assume the risk?
No
Is it considered malicious if you print allegations that come from a reliable source?
No
Does failure to warn apply to manufacturing defects?
No
What is the only time a plaintiff can recover for slander?
If he can prove special damages of a pecuniary nature
What is the exception to the rule that you have to prove special damages of a pecuniary nature to recover for slander?
Slander per se
Under slander per se, the statement was so horrible that the reputational injury is what?
Presumed by its very utterance so special damages are required before the plaintiff can recover general damages
If you’ve made a reasonable mistake about whether consent was given, can that be a defense to invasion of privacy?
No
If the harm wasn’t reasonably foreseeable, will courts hold you strictly liable?
Usually not
What are the most heavily tested areas of torts?
Negligence, intentional torts, defamation, products liability, strict liability
