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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

Malice (defamation)

A

To establish a reckless disregard for the truthfulness of a statement, the defendant must have entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient.

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2
Q

Assault/Battery damages

A

nominal OK absent actual damages

  • punitive if malice involved
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3
Q

NY Intentional Torts SOL

A

1 year after injury

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4
Q

IIED NY distinction

A

Intentional mishandling of a corpse

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5
Q

Assault

A
  1. reasonable apprehension of
  2. imminent harm
  3. caused by D’s action/threat
  4. D’s intent to cause such harm/apprehension
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6
Q

IIED

A
  1. Extreme and Outrageous behavior
    - exceeds all bounds of human decency
  2. Intentionally or R
  3. Results in severe emotional distress
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7
Q

IIED 3rd parties

A
  1. Immediate family
    - D aware
  2. Bystander
    - D aware
    - physical injury
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8
Q

False Imprisonment

A

i) Intending to confine or restrain another within boundaries fixed by the actor;
ii) Those actions directly or indirectly result in such confinement; and
iii) The other is conscious of the confinement or is harmed by it

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9
Q

Shopkeeper’s privilege

A
  • reasonable grounds to suspect theft
  • may detain for reasonable time
  • reasonable manner
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10
Q

Consent by mistake

A

Valid unless:

  • D caused mistake
  • D knew of mistake and took advantage
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11
Q

NY Duty to Retreat

A

Retreat

  • if can do so safely
  • home
  • w/n curtilage (enclosed area surrounding home)
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12
Q

Self Defense injury to 3rd parties

A

Not liable so long as not negligent

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13
Q

Defense of property

A
  • cannot use deadly force

- may use reasonable non-deadly force if reasonable believe that necessary to protect tortious harm to property

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14
Q

Recapture of chattel

A
  • can use reasonable force

- but must be peaceful if initial taking was lawful

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15
Q

Trespass to chattel

A

Intentionally

  • dispossess P of chattel
  • or intermeddles and damages chattel

*Mistake of fact not a defense

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16
Q

Conversion

A 
Intentionally commits act
- Deprives P of possession 
- OR interferes w/ P's possession 
So serious that 
- deprives P of use of her chattel
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17
Q

Conversion remedy

A

Full value of chattel at time of conversion

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18
Q

Conversion Defenses

A
  • NOT OK: mistake of law/fact

- OK NY: good faith purchaser unless informed and refuses to comply

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19
Q

Necessity defense

A

right to use other’s property to save lives or more valuable property

  • trespass to land/chattels and conversion
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20
Q

Public necessity vs Private necessity

A

If public necessity, not liable for any damage

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21
Q

Private Nuisance

A
  • substantial (to reasonable person)
  • unreasonable (injury > usefulness)
  • interference
  • use and enjoyment of land
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22
Q

Nuisance self-help (abatement)

A

may enter another’s land to abate nuisance after:

  • notice
  • refusal to comply
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23
Q

Standard of care (negligence)

A

Most courts: Reasonably prudent person under the circumstances

Modern approach: cost-benefit approach

  • foreseeability of harm, severity of harm and burden of precautions
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24
Q

Duty

A

Duty to all foreseeable persons who may be injured by failure to show reasonable care

  • Zone of danger
  • If any P foreseeable, then duty to all harmed as result
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25
Q

Special class of foreseeable Ps

A
  • if D negligently put the rescuer or the rescued party in danger
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26
Q

Firefighter Rule

A
  • cannot recover against negligent party if inherent in the job
  • NY does not recognize
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27
Q

Standard of care for children

A

reasonable child of similar age, intelligence, and experience

  • unless involved in adult activities
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28
Q

Standard of care (physicians)

A

Traditionally, same or similar locale standard

  • Modern trend: national standard
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29
Q

Informed consent exception (MBE)

A
  1. risk commonly known
  2. patient unconscious
  3. disclosure would be harmful
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30
Q

Common Carriers and Innkeepers

A

highest standard of care consistent w/ practical operation

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31
Q

Bailees

A
  1. Exclusive benny of bailee –> bound to use great care
  2. Mutual benny –> ordinary negligence
  3. Bailor benny –> gross negligence
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32
Q

Negligence Per Se

A
  1. Criminal or regulatory statute
  2. Against class of persons protected by statute
  3. Respecting the harm contemplated by statute
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33
Q

Defenses to neg per se

A
  1. Impossible under the circumstances

2. An emergency justified violation

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34
Q

Duty to Trespassers

A

Undiscovered: refrain from willful, wanton, reckless, or intentional misconduct

Discovered: Duty to warn/protect from concealed, dangerous, artificial harms

*does not apply to natural conditions or artificial harms absent risk of SBI

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35
Q

Attractive Nuisance

A

Liable to injuries to children if:

  • artificial condition
  • knows/should know children are likely to trespass
  • knows/should know poses risk of death/SBI
  • kids cannot discover/appreciate risk
  • utility of maintaining the condition and burden of eliminating risk are slight
  • fails to exercise reasonable care to protect kids
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36
Q

Invitees

A
  • inspect property
  • discover unreasonably dangerous conditions
  • protect visitor from them

*Non-delegable

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37
Q

Licensees

A

Duty to correct or warn of concealed dangers that are known or should be obvious

*No duty to inspect

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38
Q

Landlord tort liability

A 
common areas
w/r/t hidden dangers which LL failed to warn
or 
hazard caused by LL's negligent repairs
or 
hazard LL agreed to fix
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39
Q

Duty to act

A
  • voluntary rescuers must exercise reasonable care
  • created peril (even if not negligent)
  • K
  • authority
  • relationship
40
Q

Res Ipsa Loquitor

A
  • infer N absent direct neg
  • doesnt ordinary occur w.o neg
  • exclusive control of D
  • not due to any action on part of P
41
Q

Collateral Source Rule

A

Traditionally: no credit against tortfeasor liability

NY: does not recognize collateral source rule

42
Q

Punitive damages in tort

A

willful, wanton, reckless, malicious

43
Q

NIED

A
  • N act
  • creates foreseeable risk of physical injury
  • causes a threat of physical impact
  • results in emotional distress (usually manifests physically)
44
Q

NIED (bystander)

A
  • outside zone of danger
  • closely related
  • present at scene
  • personally observed (or otherwise perceived)
45
Q

Wrongful death

A

spouse, next of kin, personal rep

  • loss of support
  • loss of companionship
46
Q

Non-fatal injury to family

A

Spouse: loss of consortium

Parent: loss of services if child injured
- some jx allow companionship if kid killed

Child

  • most allow loss of companionship if parent died
  • most do not allow loss of consortium for injured parents
47
Q

Vicarious Liability (negligence)

A
  1. right to control the activities of emp
  2. w/n scope of employment
    - intended to benny the employer
    - not a frolic
48
Q

Vicarious Liability (intentional torts)

A
  1. Use of force part of job

2. Authorizes emp to act on his behalf and position provides opp to commit tort

49
Q

Non-delegable duties

A
  • inherently dangerous activities

- Duty to keep public places in reasonably safe condition

50
Q

Parental liability of children

A

Generally not liable for child’s torts

Exceptions:

  • child acting as parent’s agent
  • statutory
51
Q

Negligence of parents

A

duty to exercise reasonable care to prevent intentional or negligent harm to 3rd party if:

  • knows/should’ve known of necessity and opportunity to control child
  • ability to control child
52
Q

Abnormally dangerous activities

A

Strict liability

53
Q

Abnormally dangerous (def)

A

foreseeable and highly significant risk of harm

54
Q

Animals

A

Wild animals –> SL if harm arises from dangerous propensity of animal of which owner has reason to know

  • P must not knowingly cause injury
  • applies to fearful reaction to sight of unrestrained wild animal

Domestic animals –> SL if knows/should know of dangerous propensity

55
Q

Defenses to SL

A
  • contributory neg is NOT a bar

- assumption of the risk IS a bar to recovery

56
Q

Animal damage to land

A

Owner is SL for any damage caused by his animal (not a household pet) while trespassing

57
Q

Products liability damages

A

Non-econ damages not allowed in neg or SPL

58
Q

SPL

A
  1. defective
  2. Existed at time left D’s control
  3. defect caused injury when used in an intended or reasonably foreseeable way
    - foreseeable misuses count!
59
Q

Design defect tests

A
  1. Consumer expectation test
  2. Risk-Utility Test
    - reasonable and feasible alternative available and failure to use that alternative rendered design defective
60
Q

Product alteration

A

significant changes = superseding causes

61
Q

Defamation

A
  1. Defamatory language
  2. concerning P
  3. Published to 3rd party
  4. Damages P’s reputation
    - can’t damage deceased’s reputation
62
Q

Defamation (public concern)

A

P must prove falsity

- negligence or malice

63
Q

Defamation (public official - public figure)

A

P must prove malice

  • falsity
  • P entertained serious doubts
64
Q

Libel damages

A 
- P need only prove general damages
BUT,
if nature of defamation reqs proof of extrinsic facts, P must prove special damages or slander per se
- crime
- trade/profession
- disease
- sexual misconduct
65
Q

Slander damages

A

Special damages or slander per se

66
Q

Constitutional limits on damaages

A

Public figure: actual damages only

Private individual/matter of public concern: only actual damages unless malice proven

Private individual/private matter: general (including presumed damages) w/o showing malice

67
Q

Misrepresentation

A
  1. material fact
  2. K or R
  3. Intended to induce P to act
  4. P actually relied
  5. Justifiably
  6. Damages (economic)
68
Q

Negligent Misrepresentation

A
  1. Providing false info
  2. to P
  3. P justifiably relied on info
  4. P is in K w/ D or P is 3rd party beneficiary known by D
69
Q

Neg SOL

A

3 years from negligent act

70
Q

SOL based on exposure to harmful substance

A

3 years from discovery of injury or when injury reasonably should’ve been discovered

71
Q

NY parent/child

A

NO negligent supervision tort unless:

  • aware of vicious tendencies
  • negligent giving child a dangerous instrument
72
Q

NY Physician Informed consent action

A
  • D failed to timely disclosure relevant risks/alternatives
  • Reasonable person would’ve gone through with it
  • Poxy cause
73
Q

NY Landowners

A

Collapsed common law categories:

Duty of reasonable care in maintaining property in a safe condition to all foreseeable Ps.

74
Q

NY NIED w/o physical injury

A
  1. Special duty owed
  2. Breach of duty that creates unreasonable risk of physical harm
  3. P saw injury to immediate family member while P in zone of danger
75
Q

NY wrongful death damages

A

NOT OK: non-economic

76
Q

NY vicarious liability damages

A

Punitive only allowed when:

  • grossly negligent hiring
  • general managerial responsibilities delegated to employee
  • Employer authorized conduct
77
Q

NY permissive use statute

A

owner liable for tortious acts of allowed users

- not intentional torts

78
Q

NY parental liability limit

A

5K for willful/intentional acts of child over 10

79
Q

NY dram shop law

A

if patron visibly intoxicated or habitual drunkard

80
Q

NY limited immunity to local municipalities

A
  • immune from traditional gov functions
  • not immune for proprietary functions
  • not immune if special relationship:
  • voluntary assumed duty
  • reliance on past performance
81
Q

Recreational facilities

A

Cannot disclaim liability by means of K or tix

  • caused by their employees if
  • user pays a fee

VOID AGAINST PUBLIC POLICY

82
Q

NY Scaffold law

A

general contractors and owners SL for height-related injuries

  • not applicable to 1-2 family dwellings
  • architects/engineers not responsibly for planning
83
Q

NY SPL - comparative neg

A

is a bar to SL and product liabilities

84
Q

NY Invasion of privacy

A

Only recognizes appropriation

  • fails at death
  • not intrusion/false light/ disclosure
85
Q

NY - Theft of trade secrets

A

Valid trade secret
not commonly known
secrecy is preserved
D used improper means to acquire it

86
Q

No Fault insurance

A
  • requires insurance for injuries to any person other than a person in another car

Covers basic econ loss up to 50K

  • reasonable medical expenses
  • 80% of lost wages (up to 2k/mo)
  • 2K death benny
  • DOES NOT COVER non-econ

*Extends to accidents in other states

87
Q

Escaping No fault

A
  1. Serious injury
    - death
    - serious disfigurement
    - fracture
    - perm or extended loss/impairment of body parts or functions
  2. Uninsured Motorist
  3. Econ loss > 50K
88
Q

No fault exceptions

A
  1. P intentionally contributed to harm
  2. Committing a felony
  3. Stolen vehicle
  4. Uninsured
89
Q

Worker’s Compensation

A

No fault insurance covering injured employees.

Covers:

  • medical expenses
  • wage replacement
90
Q

Escaping worker’s comp

A
  1. Grave injury
    - -> perm disfigurement, in pain, disabled
  2. Can sue 3rd parties
91
Q

Proxy cause

A

exists when the defendant’s actions are a direct cause of the plaintiff’s injuries. Or, if an intervening force occurs between the defendant’s act and the plaintiff’s injury, the defendant still may be liable if the intervening force was foreseeable.

92
Q

Publishing private facts

A
  1. The First Amendment shields the media from liability for publication of a lawfully obtained private fact
  2. First Amendment also shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern, and the publisher neither obtained it unlawfully nor knows who did
93
Q

Invasion of privacy

A

on the public disclosure of private facts is grounded in the disclosure of truthful information about the plaintiff that is not of legitimate concern to the public and that a reasonable person would find highly offensive

94
Q

Personal injury damages included

A

includes all actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium

95
Q

Seatbelt rule

A

the plaintiff’s failure to wear a seatbelt is not admissible as evidence of comparative negligence,

  • is admissible as evidence of a failure to mitigate damages.
  • A plaintiff who fails to wear a seatbelt cannot recover for those injuries that would have been prevented had the seatbelt been worn.
96
Q

Nuisance allows this type of damages

A

Purely economic - trespass/SL/neg do not

Bar Exam (18 decks)

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