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Torts 1 > Torts 1 > Flashcards

Torts 1 Flashcards

1
Q

What is an Act?

A

An ACT is to use volitional movement. Volitional Movement is to use one’s own will.

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2
Q

Specific Intent

A

Specific Intent is to desire the consequence or have the purpose to cause the result.

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3
Q

General Intent

A

General Intent is to know with substantial certainty that such a result will occur.

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4
Q

Transferred Intent

A

Transferred Intent is to commit one of the five original writs of trespass and accomplishes anyone.

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5
Q

When does transferred intent apply? (Hint: 5 original)

A

Assault, Battery, False Imprisonment, Trespass to land, Trespass to chattel.

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6
Q

What is a CAUSE?

A

CAUSE means to act directly or indirectly (actor set something in motion).

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7
Q

What is a BATTERY?

A

BATTERY is an act with intent to cause “harmful or offensive” contact or the apprehension of imminent “harmful or offensive” contact and such contact results.

  • *awareness is not neccessary, only contact required.
  • *contact with object closely attached to (P) is sufficient. (Purse, t-shirt, horse).
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8
Q

What is an ASSAULT?

A

ASSAULT is an act with intent to cause “harmful or offensive“ contact or the apprehension of imminent “harmful or offensive” contact and such apprehension of harmful or offensive contact results.

  • *words alone are not enough; words + overt act are sufficient.
  • *actual ability of (D) to cause H/O contact irrelevant.
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9
Q

What is CONTACT?

A

CONTACT means to touch the person or anything intimately connected with them (purse, shirt, etc).

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10
Q

What is HARMFUL contact?

A

HARMFUL contact means to cause bodily harm.

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11
Q

What is OFFENSIVE contact?

A

OFFENSIVE means to insult one’s dignity judged on an objective standard.

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12
Q

What is APPREHENSION?

A

APPREHENSION means that they (P) were aware or conscious of the harmful or offensive contact.

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13
Q

What is IMMINENT and What is APPARENT?

A

IMMINENT means immediate, unless (P) attempts to avoid H/O contact.

*only needs to be apparent. Apparent means that the P reasonably believed the D would be able have H/O contact with them.

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14
Q

Crowded World Theory

A

Reasonable and necessary contact in everyday life is inevitable and must be accepted.

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15
Q

What DAMAGES exist for battery and assault?

A

Actual, nominal, or punitive (if there’s malice) awards.

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16
Q

What PRIVILEGES (defenses) exist for battery and assault?

A

Consent, self-defense, defense of others, or defense of property, discipline, and justification.

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17
Q

What is FALSE IMPRISONMENT?

A

FALSE IMPRISONMENT is an act with intent to cause the confinement of another person to a bounded area, which causes such confinement of another, and the person is conscious of or harmed by the confinement.

CONSCIOUS means the P is aware of confinement.

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18
Q

What is CONFINEMENT?

A

Confinement means to prevent P from leaving a bounded area with an apparent or physical barrier, physical force, or credible threats of physical force, or duress.

Confinement must be complete, and the P must not know of a reasonable or safe way of escape.

Moral or social pressure is not enough.

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19
Q

What is a BOUNDED AREA?

A

Bounded Area is something big or small that prevents the P’s movement in all directions constructively or physically.

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20
Q

What is a FALSE ARREST?

A

A FALSE ARREST is a type of false imprisonment when the D restricts or restrains the P’s movement based on a legal authority.

**conviction of the crime is a complete defense to false arrest.

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21
Q

What are the possible DAMAGES awarded for false imprisonment?

A

Actual, nominal, punitive, time loss, physical, mental, humiliation, loss due to reasonable attempts to escape.

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22
Q

What are the possible PRIVILEGES that can be asserted for false imprisonment?

A

Consent, self-defense, defense of others, defense of property, lawful arrest, or shopkeeper’s privilege, justification.

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23
Q

What is shopkeeper’s privilege? (False Arrest)

A

Shopkeepers often have a common-law or statutory privilege to detain persons reasonably suspected of shoplifting for a reasonable time and in a reasonable manner for the purpose of investigating.

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24
Q

What is TRESPASS TO LAND?

A

Trespass to Land is an act with intent to invade another person’s land causing themselves, an object, or a 3rd party to enter or remain on the land of another without permission.

Land means the property or airspace above it.

Intangible Intrusions do not count (smoke, odor, light, noise, etc.)

Reckless or negligent intrusions require proof of actual harm.

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25
Q

Possible DAMAGES for trespass to land

A

Actual, nominal, or punitive awards.

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26
Q

Possible PRIVILEGES to trespass to land

A

Consent of person in lawful possession of land or necessity.

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27
Q

What is TRESPASS TO CHATTELS?

A

Trespass to chattels is an act with intent to cause dispossession of another’s chattel or cause intermeddling with a chattel in the possession of another and such dispossession or intermeddling occurs.

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28
Q

What is a CHATTEL?

A

A chattel is a tangible personal property.

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29
Q

What is INTERMEDDLING?

A

Intermeddling is impairment to quality, condition, or value or bodily harm caused to possessor (requires actual damage).

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30
Q

What is DISPOSSESSION?

A

Dispossession is to take chattel w/o consent, through fraud or duress, barring the possessor access, destroying or bringing the chattel into the custody of law.

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31
Q

What is the PUBLIC NECESSITY defense for trespass to chattels?

A

Public necessity applies where an actor intermeddles or dispossess chattel of another to avert an imminent public disaster. The act is privileged if the actor reasonably believes that it is necessary. This is an ABSOLUTE DEFENSE and relieves the actor of liability for trespass or for damage to chattel.

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32
Q

What are the possible DAMAGES awarded for Trespass to chattels?

A

Actual (required), nominal (not in intermeddling cases), or punitive awards.

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33
Q

What are the possible PRIVILEGES asserted for trespass to chattels

A

Consent, necessity, privileged invasion to regain chattel.

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34
Q

What is CONVERSION?

A

Conversion is an act with intent to exercise dominion or control over another person’s chattel, causing such a serious interference that it would be justified to require the possessor to pay for the full value of the chattel.

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35
Q

What is INTERFERENCE? (Conversion)

A

Interference means
the extent and duration of (D)’s exercise of dominion or control,
(D)’s intent to assert a right which is inconsistent with (P)’s right of control,
(D)’s good faith,
(D)’s harm done to the chattel, and
the inconvenience and expense caused to (P).

36
Q

What is DOMINION OR CONTROL? (Conversion)

A

Dominion or Control means to have the ownership through the power of disposition and the right of claiming it.

37
Q

What is Intentional Infliction of Emotional Distress? (IIED)

A

IIED is an intentional or reckless act by the Defendant’s extreme and outrageous conduct to cause and in which results in severe emotional distress of another.

38
Q

What does RECKLESSLY mean for IIED?

A

Recklessly means deliberate disregard of the high probability harm to others will occur.

39
Q

What does EXTREME AND OUTRAGEOUS CONDUCT mean for IIED?

A

Extreme and Outrageous Conduct is conduct that transcends all bounds of decency.

40
Q

What is SEVERE EMOTIONAL DISTRESS?

A

Severe Emotional Distress includes mental suffering, nausea, or anguish that no reasonable person could be expected to endure in intensity and duration.

41
Q

What’s the rule for INVASION? (Trespass to Land)

A

Invasion means coming on land or remaining on land or causing a thing/person to do so. ***It does not require (D)’s physical entry on land or actual harm. Intangible intrusions like smoke, odor, light, noise, do not constitute a cause of action. Reckless or negligent intrusions require proof of actual harm.

42
Q

What does LAND mean in the context of trespass to land?

A

Land is the property and the immediate reaches above the land. (Airspace included up to a certain point).

43
Q

Special Relationships as it relates to IIED

A

Some special relationships as it relates to IIED includes common carriers and ultilities b/c they are held to a higher standard of care; children, pregnant women, and elderly have lower thresholds to establish emotional distress; mishandling of a corpse of a family member in their presence also is a special relationship that can lead to a cause of action for IIED.

44
Q

What is the Bystander Rule?

A

Bystanders may recover when (D) is aware of their presence AND conduct was directed at member of their immediate family or bystander suffers other bodily harm as result of the distress.

45
Q

Does eggshell rule apply to IIED?

A

No, eggshell rule does not apply; (D) is liable to extent that (P)’s emotional response is reasonable.

46
Q

Possible PRIVILEGES/defenses for IIED?

A

Consent, self-defense, defense of others, defense of property, D’s lack of knowledge to P’s unusual susceptibility.

47
Q

Rule for NEGLIGENCE

A

Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm and it requires
proof of duty,
breach,
causation (cause-in-fact and proximate cause) and
damages.

48
Q

What is a DUTY?

A

DUTY is a legal obligation to use reasonable or ordinary care for the protection of others against unreasonable risks.

49
Q

The proof of DUTY element requires two things to be determined. What are they?

A

A source of duty and a standard of care (what is considered reasonable for the person in the circumstances).

50
Q

What is a BREACH of duty?

A

A failure to conform to required SoC.

51
Q

What are typical sources of duty?

A

Legislation, relationships, private of contract, customs/standards, and owners and occupiers of land.

52
Q

Legislative SoC

A

Legislatures often prescribe standards of care (SoC) for the protection of others through statutes, ordinances, and regulations.

53
Q

Relationships SoC

A

Relationships lead to to duties when P and D had a pre-existing duty, foreseeability of harm, connection between D and P’s injury, and P relied on D to protect them.
Typical relationships include: Duty to control conduct of another, Duty to protect school children, Parent/Child, Store owner/customer, tenant/guest. The Tarasoff Rule. Foreseeable plaintiffs.

54
Q

Duty to Control Conduct of Another

A

The dominant or custodial member required to use reasonable care to regulate the conduct of the person within his custody or control so as to protect third persons or third persons so as to protect the person in his custody or care (ex. Parent-child, master-servant, permitted user of land/chattel).

55
Q

Duty to protect school children

A

School not liable for abuse of teachers because the employees acts are outside the scope of employment. The school, however, may be liable for negligence in hiring, retaining, or supervising the abusers. It may also be liable for negligence in hiring, retaining or supervising the abusers. It may also be liable if school officials knew or should have known of the abuse but took no effective action. The student may also have a civil rights claim against the school. The school may also be liable for negligently failing to protect students from violence by other students, or from attackers by intruders on school grounds.

56
Q

Parent/Child Duty

A

No ED recovery for child’s injury as a result of negligence if parent did not witness injury. Parents may not maintain a wrongful death action for the death of an unborn child. Child may not file a “wrongful life” claim to recover damages for diminished childhood.

57
Q

Store owner/customer (Premises/Liability) Duty

A

Store owner owes a duty to exercise reasonable care in keeping the premises reasonably safe. To establish a premises liability claim, the (P) must establish that the (D) had actual or constructive notice of a dangerous condition creating an unreasonable risk of harm and that (D)’s failure to use reasonable care to minimize the harm, which caused the (P)’s injuries. No notice is required when dangerous condition is continuous and easily foreseeable.

58
Q

Tenant/guest Duty

A

There’s a duty to protect tenant/guest when landlord is in control of property area or responsible for defective condition.

59
Q

Specific Harm Rule (T/G)

A

Under this rule, a landowner does not owe a duty to protect visitors from violent acts of third persons unless he is aware of the specific, imminent harm.

60
Q

Prior Similar Incidents Rule (T/G)

A

Foreseeability is established by evidence of previous crimes on/near premises.

61
Q

Totality of Circumstances Test (T/G)

A

This test takes additional factors into account, such as the nature, condition, and location of the land, and any other relevant factual circumstances.

62
Q

Balancing Test (T/G)

A

The foreseeability of harm is balanced against the burden on the business of imposing a duty to protect against the criminal acts of third persons.

63
Q

The Tarasoff Rule

A

A mental health professional has a duty to use reasonable care to warn a specific third person of a specific serious threat by his patient against the person if the professional, exercising proper professional judgement, in fact predicted or should have predicted that the patient was likely to carry out.

64
Q

Foreseeable Plaintiffs (negligence)

A

(P) in the zone of danger created by the (D). (RPP-SoC) (Palsgraff v. Long Island Railroad).

65
Q

Privity of Contract

A

Establishes a duty as part of a contract. Generally, there is no duty if the contract was never performed (nonfeasance), but a duty arises if a contract was misperformed (misfeasance). However, there are exceptions that implant a duty regardless of non performance. Including public callings, security contracts, fraud, property supervisor, dangerous instrument maintenance, and landlord repair contract.

66
Q

Public Callings (Privity of Contract)

A

Public callings include common carriers, innkeepers, public warehousemen, public utilities, and public officers—are subject to tort liability for nonperformance.

67
Q

Contracts for Security Services (Privity of Contract)

A

Liable for failure to use reasonable care if the failures increases the risk of harm or the other person relies on the undertaking.

68
Q

Fraud (privity of contract)

A

Promises made without intent to perform may be fraud for which a tort action in deceit will lie.

69
Q

Property supervisor (privity of contract)

A

The nonperformance by an agent of his contractual duty to supervise property or persons over which he has been given control, or to take certain precautions for the safety of third persons.

70
Q

Landlord repair contract (privity of contract)

A

Non-performance by a landlord of his contract to repair the premises.

71
Q

When custom and practice have removed certain dangers… (Negligence)

A

The D may have a duty to adjust with the standards if he was aware of the change.

72
Q

Owners and Occupiers of Land Duty (Negligence)

A

OOL’s typically have a duty to maintain their property. Duty to people outside their premises, duty to people on their premises, duty that lessor owes to his lessee and the lessees’ guest, are the three main categories of determining liability for OOL’s.

73
Q

OOL’s Duty (outside the premises)

A

Look to artificial and natural conditions. An artificial condition implants the possessor with a duty to exercise reasonable care to insure they are not dangerous to neighbors. For natural conditions, the possessor only had a duty to address known dangerous issues.

74
Q

OOL’s Duty (on their premises)

A

Look to whether they are Trespassers, licensees, and invitees. For Trespassers, generally there is no duty owed to someone that enters or remains on land without consent. However, there are a few exceptions to that rule. Whether the trespasser was a frequent trespasser, discovered trespasser, in need of rescue, or a child. For licensees or social guest generally, the D is only subject to liability if he knows of a dangerous condition, the licensee does not, doesn’t expect the licensee to discover the condition, and fails to warn or exercise reasonable care. An invitee or in other words a person that is invited on land so both the invitee and the possessor benefit, the possessor owes a duty of exercising reasonable care to the invitee for the premises and the people on the premises.

75
Q

OOL’s Duty (owed to a lessee and the lessee’s guests)

A

Generally, the lessor of real property has no duty to the lessee or the lessee’s guest. However, there are many exceptions to this general rule. They include latent hazards, pre-existing conditions, activities during lease, contracts to repair, used for public, lessor retained control, agreement to repair, notice, services, and negligent repairs.

76
Q

Latent Hazards (Lessor’s duty to lessee and guests)

A

Lessor knows or has reason to know of a concealed unreasoanbly dangerous condition (artificial or natural) existing on the premises at the tine the lessee takes possession, but fails to warn the lessee about it, the lessor is subject to liability to the lesseee and his guests for physical harm caused by that condition.

77
Q

Pre-Existing Conditions (Lessor’s duty to lessee and guests)

A

Lessor remains liable for a condition (existing at the time the lessee takes possession) which the lessor realizes or should realize unreasonably endangers persons outside the premises.

78
Q

Activities During Lease (Lessor’s duty to lessee and guests)

A

Lessor is subject to liability to persons off the premises if he knows when the lease is executed that the lessee intends to conduct an activity on the premises dangerous to such persons and nevertheless consents to that activity or fails to require proper precautions.

79
Q

Contracts to Repair (Lessor’s duty to lessee and guests)

A

Negligent failure to perform the lessor’s contract to repair the premises subjects him to liability to persons off the premises.

80
Q

used for pubic (lessor’s duty to lessee and guests)

A

Lessor must exercise reasonable care to inspect the premises and remedy unreasonably dangerous conditions which exist when possession is transferred.

81
Q

Lessor retained control (lessor’s duty to lessee and guests)

A

Lessor is subject to liability for physical harm caused by a dangerous condition located on a part of the premises which the lessee is entitled to use and over which the lessor has retained control, provided the lessor by the exercise of reasonable care could have 1) discovered the condition and the unreasonable risk; and 2) made it reasonably safe. ***This extends to all lawful visitors, but not to areas where tenants/guests are forbidden.

82
Q

Agreement to Repair (lessor’s duty to lessee and guests)

A

In most jurisdictions, the lessor’s contractual promise to repair or maintain the leased premises subjects him to tort liability for negligence in failing to perform his contract resulting in an unreasonable risk of physical harm, whether the disrepair existed before or after the lessee took possession.

83
Q

Notice (lessor’s duty to lessee and guests)

A

Unless otherwise provided by the lease, the lessor’s duty is only to exercise reasonable care to make repairs after he has notice of the need for them. No inspection of the premises required.

84
Q

Services (lessor’s duty to lessee and guests)

A

The lessor may be liable for failure to provide a service required by the lease (e.g. heat, light) where the premises cannot be safely used without it,

85
Q

Negligent Repairs (lessor’s duty to lessee and guests)

A

Lessor who undertakes (or purports to undertake) repair of the leased premises is subject to liability for physical harm resulting if a) he increases the danger which existed before he undertook the repairs, or b) a concealed danger remains and his repairs create a deceptive appearance of safety, or c) the danger is a latent one and the lessor assures the lessee that the repairs have been made when in fact they have not, provided the danger (or enhanced danger) is such that the lessee neither knows nor should know that the repairs were not made or were made negligently.

Torts 1 (3 decks)

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