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Bar Exam Class Final > Torts > Flashcards

Torts Flashcards

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1
Q

Intentional Torts Elements - generally (3)

A

C - Causation
I - intent
A - act

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2
Q

Transferred Intent

A
  1. Same Intentional Tort / Different Person
  2. Different Intentional Tort / Same Person
  3. Diff Tort / Diff Person
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3
Q

Battery elements

A

1) Intentional to cause
2) Harmful or Offensive Contact w/ another
3) Results in Harmful of Offensive Contact

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4
Q

Battery - does Plaintiff need to be conscious?

A

No - doesn’t need to be aware

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5
Q

Battery - person is hyper sensitive to contact, still Victim?

A

Yes - if actor KNOWS about sensitivity

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6
Q

Battery - what if just contact w/ person’s hat ?

A

Yes - anything connected to the victim / plaintiff

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7
Q

Battery - The intent; to cause the contact or the resulting harm?

A

Intent of Harm does NOT Matter

Intent to make CONACT is enough!

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8
Q

Battery - Eggshell Plaintiff -

A

Defendant responsible for ALL HARM resulting ..even if worse than expected

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9
Q

Battery Defense =

A

Consent - implied or express

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10
Q

Assault elements

A

1) Intent to Cause
2) Reasonable Apprehension
3) Imminent Harmful or Offensive Contact
4) Causes apprehension

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11
Q

5 Defenses

A
  • Consent
  • Self Defense
  • Defense of Others
  • Defense of Property
  • Privilege of Arrest
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12
Q

Defense - Consent

A

Manifested a willingness to submit to conduct

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13
Q

Defense - Consent - Mistake of believing there was consent

A

Then Defendant = ok Unless Def caused the mistake

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14
Q

Defense - Consent - capacity to consent

A

NO - intoxication, young, incompetency (metal)

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15
Q

Defense - Consent - Emergencies / Sports

A

Implied Consent = ok

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16
Q

Defense - Self Defense is …

A

Reasonable Force

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17
Q

Defense - Defense of Others -

A

Reasonable Force

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18
Q

Defense - Defense of Property

A

Reasonable Force - NOT Deadly force

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19
Q

Trespass to Chattel elements

A
  1. Intentional Interference (dispossess, Using, Damaging)
  2. Right to Posses
  3. Personal Property
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20
Q

Trespass to Chattel - intent

A

to interfering act
> intent to do the act that causes the interference
— not intent to interfere

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21
Q

Trespass to Chattel or Conversion - Mistake Defense

A
  • mistake of ownership is not a defense
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22
Q

Trespass to Chattel - Damages = only

A

Actual Damages

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23
Q

Conversion elements

A

Intentional Depriving the Plaintiff of his property as to deprive him of it permanently

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24
Q

Conversion - Damages

A

Full Value

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25
Q

Trespass to Land

A

Intentionally causes a physical invasion of land

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26
Q

Trespass to Land - Intent

A

Intent to enter is enough / or cause the physical invasion
- intent to do ACT that caused invasion

  • NOT intent of result
    • Mistake of Fact (it’s your land) is NOT a Defense
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27
Q

Trespass to Land - who can be a Plaintiff

A

Anyone in Possession of the Land - NOT just the owner (ex: lessee)

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28
Q

Trespass to Land - Defense : Necessity

A

Available when to prevent an injury or severe harm

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29
Q

Trespass to Land - Defense of Necessity : Damages

A 
Private = Actual Damages/ no force to expel person 
Public = Not liable for Damages
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30
Q

Negligence elements

A

Duty
Breach
Causation
Damages

31
Q

Negligence - Duty

A

Legal Duty:

  • Reasonable Care (NOT utmost care)
  • To the Plaintiff who could FORESEEABLY be in danger
32
Q

Negligence - Duty - to unforeseeable Plaintiff?

A 
No Duty to Unforeseeable Plaintiff
- only to class of persons who might be harmed
33
Q

Negligence - Duty to Rescuers

A

Yes - danger invites rescue

- can be a crime victim recue too

34
Q

Negligence - Duty to Act

A
  • Rescue or assumption of duty
  • Placing another in danger (knock into pool)
  • Authority over another (Prison warden)
  • Relationship (Innkeeper, common carrier)
  • All Must use Reasonable Care *
35
Q

Negligence - Standard of Care for regular people

A

Reasonable

  • Mental or emotional = Doesn’t matter
  • Physical = Modified for person of like traits
  • Intoxication = Only if Involuntary
  • Children = Modified for age
36
Q

Negligence - Standard of Care for Land Owners

A
  1. Trespasser = lowest
  2. Licensee = intermediate
  3. Invitee = highest
37
Q

Negligence - Land Owners to Trespasser

A

(On Land w/o Consent)
Duty to refrain from intentional or reckless conduct

  • Undiscovered = no duty
  • Discovered / Anticipated = Warn of Hidden Dangers
38
Q

Negligence - Land Owners to Trespasser

|&raquo_space; Attractive Nuisance

A
  • Attractive Nuisance Kids = Reasonable care
    > Artificial Condition
    > Risk of harm
    > Reason to Know Kids there
    > Children can’t appreciate danger b/c of age, etc
    > risk to fix less than risk of harm
39
Q

Negligence - Land Owners to Licensee

A

(Friends w/ permission)
Reasonable care + to make safe or warn of hidden dangers
- NO Duty to Inspect

40
Q

Negligence - Land Owners to Invitee

A

(Comes for Economic / Business)

Reasonable w/ Duty to Inspect

41
Q

Negligence - Land Owners : Landlord / Tenant

A

Maintain Common Areas / Repair Hazards + Warn of Hidden Dangers

42
Q

Negligence - Breach

  1. Custom
  2. Professional.
  3. Doctors
A
  1. Custom = admissible but not determinative
  2. Pro = same as others in region
  3. Dr = National Standard
    > Explain risks not commonly known, not if patient refuses knowledge, not if unconscious, not if patient harmed by disclosure
43
Q

Negligence - Breach : Negligence Per Se / Statute Violation

A

Is plaintiff in the class of persons that this statute designed to protect ? If Yes = Duty

44
Q

Negligence - Breach Negligence Per Se : DEFENSE

A

Excuse = complying w/ statute would be MORE Dangerous

— walking wrong way on road

45
Q

Negligence - Res Ipsa Loquitur

A
  • Not ordinarily occur w/o negligence
  • in exclusive control of defendant
  • not due to action of Plaintiff
46
Q

Negligence - Cause in Fact

A

But For …
(Multiple possible - could both defendants have done harm? Then they must prove they didn’t )
- All joint / severable liable

47
Q

Negligence - Med Mal Loss of chance

A

Subtract from before and after

48
Q

Negligence - Proximate Cause

A

Legal Cause
NO Duty or Proximate (Legal) Cause for
– UNFORSEEABLE Plaintiff / Unforeseeable harm
– HARM Not w/in scope of breach (kid drops gun on foot)

49
Q

Negligence - Damages: Eggshell

A

Yes - Liable for full extent

50
Q

Negligence - Damages: Regular Person

A

Make whole

  • Physical + Emotional
  • Plaintiff must mitigate
  • Punitive = If Intentional cause harm
51
Q

Negligent Infliction of Emotional Distress
(NIED) elements
> (Top Gun) >

A
  1. W/In Zone of Danger

2. Threat of Impact Caused Emotional Distress (w/ physical manifestation)

52
Q

Negligent Infliction of Emotional Distress

(NIED) - Pure Economic Damages

A

NO Go !

53
Q

Negligence - Vicarious Liability : Employees

A

Employer and Employee can both be held liable

  • Must be in the scope of employment -
  • Deviation must be minor not major
  • Not Liable for Intentional Torts of Employee
  • Not Liable for Independent Contractors
    > can’t delegate inherently dangerous activities
    > if person reasonably believed that employee was agent - employer said something
54
Q

Negligence - Vicarious Liability

  1. Children
  2. Cars
A
  1. Parents not liable

2. Only if entrusted negligently

55
Q

Negligence - Defense to Damages
2. Comparative Pure

  1. Comparative Modified
A
  1. Pure = Reduced by amount (%) of Plaintiff’s Fault
  2. Modified
    - Plaintiff more at fault = No recovery
    - P equally at fault = No recovery
    - P less at fault = reduced by amount of P’s fault
    (Multiple Def = combine defs fault to compare)
56
Q

Negligence - Defense : Assumption of the Risk

A

Knowingly and Willingly Assume Risk
- Express = written (unless disavows reckless or gross disparity in bargaining power)

  • Implied = Athletic events or proceeding in face of known unreasonable danger
57
Q

To recover in a STRICT PRODUCTS LIABILITY action, Plaintiff must prove –>

A
  1. The product is defective (i.e., manufacturing, design, or contains inadequate instructions or warnings);
  2. The defect existed when the product left the defendant’s control; and
  3. The defect caused the plaintiff’s injury when the product was used in an intended or reasonably foreseeable way.

(A plaintiff is not required to be in privity of contract with the defendant)

58
Q

A defendant engaged in an abnormally dangerous activity may be held strictly liable – WHEN …

A

(without any proof of negligence) for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm.

—strict liability for an abnormally dangerous activity exists ONLY if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place.

59
Q

Product NEGLIGENCE … plaintiff must establish

A
  1. That the defect exists
  2. That had the defendant exercised reasonable care in the inspection or sale of the product, the defect would have been discovered, and the plaintiff would not have been harmed.
60
Q

An action brought under a FAILURE TO WARN theory is essentially the same as a design defect claim

A

The defect in question is the manufacturer’s failure to provide an adequate warning related to the risks of using the product.

1) A defect exists if there were foreseeable risks
2) Not readily recognized by an ordinary user of the product
3) Which could have been reduced or avoided with reasonable instructions or warnings

61
Q

STRICT Products Liability – what negates it ??

A

The misuse, alteration, or MODIFICATION of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates liability.

  • not exactly street legal -
62
Q

Strict Liability - Design Defect
– you have 2 of the same kind product, 1 safe and 1 not so safe but give warning to buyer ..still liable if he buys not safe one?

A

YES - Will be liable if alt designs avail to produce. If you did not or sold the bad design, then you’ll be liable
– Cannot warn away a known defect –

63
Q

Strict Liability for a defective product / food - business entity liability

A

Must be in the business of selling or otherwise distributing product of the type that harmed P

64
Q

Strict liability - A product is defective when

A

At the time of sale or distribution, it contains a manufacturing, design defect, or has inadequate warnings

65
Q

If you know negligence probably exists - then ..

A

Res ipsa loquitur
— prove w/in defendant’s exclusive control
— harm would not have occurred if ordinary care was used
— plaintiff not responsible for his own injury
BUT MUST BE 1 Def EXCLUSIVE CONTROL

66
Q

Strict Product Liability - Adequate Warnings

A
  • Risk in product
  • Not apparent to the ordinary user
  • Providing Adequate Warning would reduce or eliminate the risk
67
Q

Strict Product Liability - Deign Defect

2 Tests

A
  1. Consumer Expectation Test
    - the product failed to meet reasonable expectations of consumers that made it unreasonably dangerous
  2. Alternative Design Test
    - There is a reasonable alternative design available that was economically feasible and the Defendant failed to use it which made the product unsafe
68
Q

Trespass Land - Defense : Necessity

A

Private Necessity
- applies if the
1. interference was reasonably necessary
2. to prevent a serious injury from nature or another force not connected with the property owner
P gets actual damages
(can’t exercise this privilege on behalf of another if the defendant knows the other is unwilling for the def. to take such action)

Public Necessity

  • to save a large number of people from disaster
  • If Def. acts reasonably, he is not liable for any damage (even if the original entry was not necessary, as long as he reasonably believed it was)
69
Q

Negligence - Rescuers

A

Person who comes to the aid of another is a foreseeable plaintiff
- If the defendant negligently puts the rescuer in danger, then he is liable for the rescuer’s injuries.

70
Q

Negligence - Rescuers: “firefighter’s rule”

A

if the injury results from a risk inherent in the job

then barred from recovery

71
Q

Negligence - Rescuers: Assumption of duty

A

No duty to act BUT

- If voluntarily aids or rescues another has a duty to act with reasonable ordinary care

72
Q

Standard of Care - Children

A

A reasonable child of similar age, intelligence, and experience. (subjective b/c unable to appreciate risk)

BUT engaged in a high-risk activity (adult activity) held to the same standard as an adult
- Reasonably Prudent Person under the circumstances

73
Q

Abnormally Dangerous Activity

A
  1. Foreseeable / Highly significant risk of physical harm even when reasonable care is exercised;
    and
  2. The activity is not commonly engaged in.

Bar Exam Class Final (7 decks)

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