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Bar Prep Questions + Rule of Law > Torts > Flashcards

Torts Flashcards

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1
Q

what does liability for an intentional tort require?

A

voluntary act

intent

elements of the tort

causation

harm

lack of privilege or defense

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2
Q

how is intent established?

A

if D either desires that this act will cause the harmful result or knows with a substantial certainty that the result will follow.

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3
Q

can children and mentally incompetent persons be held liable for intentional torts?

A

Yes if the required intent is met.

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4
Q

what is transferred intent?

A

when D intends to commit one tort but commits a different tort against that same person or another person.

D’s intent is transferred to the second tort

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5
Q

is transferred intent limited?

A

Yes

assault 
battery 
false imprisonment 
trespass to land 
trespass to chattel
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6
Q

what are the torts against persons?

A

assault
false imprisonment
intentional infliction of emotional distress
battery

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7
Q

what are the torts against property?

A

trespass to land
respass to chattels
conversion

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8
Q

What is assault?

A

P experiences a reasonable apprehension of an immediate harmful or offensive contact

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9
Q

assault:

how do you determine if offensive or harmful contact exists?

A

if a reasonable person would regard it as offensive

exaggerated fears are no actionable unless D knew about that fear and used it to put P in apprehension

fear is NOT required ONLY an apprehension of a harmful or offensive contact

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10
Q

assault:

can words be assault?

A

No, words alone are insufficient

some sort of overt act is required

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11
Q

assault:

are actual damages required for assault?

A

NO

can recover nominal damages

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12
Q

what is battery

A

harmful or offensive contact with the victim or something closely connected with the victim.

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13
Q

battery

what type of standard is used?

A

reasonable person standard

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14
Q

battery:

what does can also consist of battery?

A

includes anything connected to the victim’s person

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15
Q

battery:

is direct touching required?

A

Not required for the tortfeasor or the victim

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16
Q

battery:

if D sets in motion a force that can bring about harm is that battery?

A

Yes!

example: throwing a baseball at someone

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17
Q

battery:

does P have to feel apprehension (fear)?

A

No, not required

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18
Q

false imprisonment

A

intentional act that causes a P to be confined or restrained to a bounded area against P’s will and the P knows of the confinement or is injured.

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19
Q

false imprisonment:

what is confinement?

A

confining by physical barriers

failing to release P where theD has a legal duty to do so
OR
asserting invalid legal authority

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20
Q

false imprisonment:

how much time is sufficient?

A

very brief time is okay

no specific duration of time is required

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21
Q

false imprisonment:

does P have a duty to resist?

A

No, if D makes a credible threat to use physical force

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22
Q

false imprisonment:

when is P considered not confined?

A

not confined if there is a reasonable means of escape that P is actually aware exists

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23
Q

false imprisonment:

does P have to be aware that they are being confined?

A

Yes, they must have knowledge of confinement or actual harm

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24
Q

false imprisonment:

what is shopkeeper’s privilege?

A

defense

shopkeeper’s privilege requires detention if:
in a reasonable manner
for a reasonable period of time
based on a relationship belief as to theft

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25
Q

intentional infliction of emotional distress

A

intentional or reckless act amounting to extreme and outrageous conduct that causes the P severe mental distress

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26
Q

intentional infliction of emotional distress:

is reckless conduct sufficient?

A

Yes if D acts in deliberate disregard of a high degree of probability that emotional distress will follow

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27
Q

intentional infliction of emotional distress

is extreme and outragous conduct sufficient?

A

beyond the bounds of decency

conduct a civilized society would not tolerate

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28
Q

is extreme and outragous conduct sufficient?

mental distress must be…..

A

severe and substantial

more than a reasonable person could be expected to endure

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29
Q

trespass to land

A

intentional act is a physical intrusion of property

intentional entry is all that is required– NO intent to cause harm is required

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30
Q

trespass to land

must P be the owner of the land?

A

P must be in actual possession or have the right to immediate possession of that land (not ownership)

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31
Q

trespass to land

is mistake a defense

A

no, D need not know they are trespassing

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32
Q

trespass to land

what if P causes a 3rd person to enter onto their land

is this trespass to land?

A

Yes,

satisfied if P causes a 3rd person to enter onto P’s land or remains upon the P’s land when under a legal duty to leave.

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33
Q

trespass to land

what is included in P’s land?

A

the area both above and below the surface

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34
Q

trespass to land

what type of damages is D liable for?

A

nominal damages

actual harm

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35
Q

trespass to chattel

A

intentional act that interferes with the P’s chattel causing harm.

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36
Q

trespass to chattel

what is chattel?

A

tangible personal property or intangible property that has a physical representation

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37
Q

trespass to chattel

is mistake a defense?

A

No

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38
Q

trespass to chattel

what is considered an interference?

A

dispossession or intermeddling

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39
Q

trespass to chattel

when may trespass to chattel amount to conversion?

A

when it is a more serious interference

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40
Q

conversion

A

intentional act that causes the destruction or serious interference with the plaintiff’s chattel

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41
Q

conversion

what is the difference between conversion and trespass to chattel?

A

the interference is more serious and includes:

greater use of the chattel
AND
a longer period of interference

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42
Q

conversion

is mistake a defense?

A

no

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43
Q

conversion

what is P entitled to in damages?

A 
FMV at the time of the conversion 
\+ 
consequential damages 
OR 
replevin
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44
Q

conversion

what if D offers to return the chattel?

A

is not a defense and does not alleviate the conversion

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45
Q

what are defenses to intentional torts?

A 
self-defense
defense of others 
defense of property 
necessity 
consent
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46
Q

self defense

A

a D may use force reasonably necessary to protect against injury when he reasonably believes he is being or is about to be attacked

D can not be the initial aggressor

LOOK FOR: duty to retreat

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47
Q

defense of others

A

a D may use force reasonably necessary to protect another against injury when he reasonably believes they are about to be or are being attacked.

D can not be the initial aggressor

LOOK FOR: duty to retreat

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48
Q

defense of property

A

requires D to request P to stop or leave unless it would be futile

D may not use deadly force

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49
Q

necessity

A

requires that injuring P’s property was reasonably necessary to avoid a substantially greater harm to the public, to the D or to save the D’s more valuable property

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50
Q

necessity

what kind of standard is applied

A

reasonable person standard

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51
Q

consent

A

can be express or implied

D will still be liable if he exceeds the scope of the consent

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52
Q

what are the economic harm and dignitary torts?

A

defamation
fraud/misrepresentation
invasion of property
nuisance

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53
Q

defamation

A

a defamatory message of or concerning the P that is communicated to a 3rd person and damages the P’s reputation

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54
Q

defamation

defamatory message

A

message lowers a P in the community’s esteem or discourages a 3rd person from associating with him

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55
Q

defamation

publication

A

a 3rd person received the defamatory message and understood it to be about the P

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56
Q

defamation

what are types of defamation?

A

libel
slander
slander per se

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57
Q

defamation

libel

A

the written form of defamation

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58
Q

defamation

slander

A

defamation not preserved in permanent form, including the spoken word

59
Q

defamation

slander per se

A

commission of a crime

allegations of a loathsome disease

imputes improper conduct of business or profession

serious sexual misconduct

60
Q

defamation

damages

A

general
punitive
pecuniary or special damages

61
Q

defamation

general damages

A

no proof of actual damages required

62
Q

defamation

pecuniary damages or special damages

A

quantifiable monetary losses

plaintiff must prove unless slander per se

63
Q

defamation

punitive damages

A

need additional showing of malice

64
Q

defamation

defenses

A

truth
privileges
consent

65
Q

defamation: defenses

truth

A

historical defense

P must prove falsity of claim in prima facie case

66
Q

defamation: defenses

privileges

A

absolute

qualified

67
Q

defamation: defenses

absolute

A

defendant may not be held liable for an otherwise defamatory statement as a matter of law

68
Q

defamation: defenses

qualified

A

defendant is not held liable for an otherwise defamatory message unless he loses the protection of the privilege

69
Q

defamation: defenses

qualified

what does this apply to?

A

communications of a matter of interest to the recipient

defendant has burden of proving privilege

70
Q

defamation: defenses

absolute

what does this apply to?

A

applies to legislator, participant in judicial proceeding, policy making officials and spouses

defendant has burden of proving privilege

71
Q

defamation: defenses

qualified

when does privilege not apply or is lost if….

A

the matter is outside the scope of the privilege
- includes: matters not relevant to the interest protected by the privilege

OR

Defendant acts out of malice
- defendant’s primary motive was something other than furthering the interest that justified the privilege

72
Q

defamation

what if the P is a public official or public figure?

A

malice is required

- knowing falsity or recklessness as to truth or falsity

73
Q

misrepresentation/ Fraud

A

an intentional assertion of a material false fact that a plaintiff justifiably relied upon and that causes damages to P

74
Q

misrepresentation

misstatement of fact

A

not an opinion unless rendered by someone with superior skill

false affirmative statement
active concealment
omissions of fact/failure to disclose

75
Q

misrepresentation

scienter/malice

A

statement was made:
knowing it was false
OR
with reckless disregard as to its truth or falsity

76
Q

what are the elements of misrepresentation

A 
misstatement fo fact 
scienter/malice 
intent to induce reliance 
justifiable reliance (reasonable person standard) 
causation/damages
77
Q

invasion of privacy

invasion of privacy consists of 4 separate torts- what are they?

A

appropriation of name or picture

intrusion on Ps affairs/seclusion

publication of facts placing P in a false light

public disclosure of private facts about P

78
Q

invasion of privacy

appropriation of the P’s name or picture

A

unauthorized use of the P’s identity or likeness for the defendant’s commercial advantage

79
Q

invasion of privacy

intrusion on the P’s affairs/seclusion

A

D unreasonably intrudes into the P’s seclusion

  • physical or non-physical intrusion
  • must be highly objectionable to a reasonable person
  • refers to the P’s physical solitude and the privacy of personal affairs or concerns

P must have a reasonable expectation of privacy

80
Q

invasion of privacy

Publication of facts placing plaintiff in a false light

A

defendant publishes matters that portray a plaintiff in a false light

attributing to the P’s views he does not hold or actions he did not take

reasonable person would find offensive

must be communicated to a substantial number of people

81
Q

invasion of privacy

public disclosure of private facts about the P:

A

D unreasonably discloses private facts about a plaintiff to the public

needs to be highly offensive to a reasonable person and not of legitimate public concern

must be publication to the public

does not apply if publication is newsworthy

82
Q

what invasion of privacy torts do consent and privilege defenses apply to?

A

all invasion of privacy torts

83
Q

what invasion of privacy torts does truth defense apply to?

A

a defense to portrayal in a false light

84
Q

public nuisance

A

unreasonable interference with a right common to the general public.

85
Q

what does the court consider for a public nuisance?

A

if the conduct involves a significant interference with the public health, safety, peace, comfort, or convenience

if the conduct is proscribed by a statute, ordinance or regulation

AND

if the conduct is of a continuing nature or has produced a permanent or long-lasting effect

86
Q

can a person recover personally from a public nuisance?

A

NO unless the person suffers a harm of a kind different from that suffered by other members of the public

87
Q

private nuisance

A

an activity or thing that substantially and unreasonably interferes with the P’s use and enjoyment of the land

the interference must be substantial including: offensive
inconvenient
annoying
to an average person in the community

interference must be unreasonable

88
Q

strict liability

A

D is liable for injuring a P whether or not the D exercied due dare

policy of law: impose liability regardless of how carefully the D has conducted himself

89
Q

strict liability applies to:

A

abnormally dangerous activities
wild animals
products liability

90
Q

what happens when strict liability is grounded in a statute?

A

LOOK FOR ACTUAL STATUTE

IF SEE STATUTE- THINK: strict liability

91
Q

elements of strict liability case

A

P must prove

nature of the D’s activity imposed an absolute duty to make safe

the dangerous aspect of the activity is the actual and proximate cause of the P’s injury

and

P suffered damage to person or property

92
Q

strict liability:

anbormally dangerous activity

A

create a foreseeable risk of serious hamr even with the exercise of reasonable care AND must be an activity that is not a matter of common usage

THINK: if reasonable care is used, it is not an abnormally dangerous activity

93
Q

strict liability

wild animals

A

depends on the nature of the animal

injury by a wild animal will almost always result in strict liability even if D claims it is domesticated

D liable for damages when the animal trespass if it reasonably foreseeable

94
Q

strict liability

domesticated animals

A

arises by statute

dependent on the owner’s knowledge

95
Q

strict liability

products liability

A 
defect 
design defect 
control 
changes 
business
causation 
damages
96
Q

strict liability: products liability

defect- manufacturoring defect

A

product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design

food products are treated the same way!

97
Q

strict liability: products liability

design defect

A

P must show a reasonable alternative design that is a less dangerous modification or alteration and was economically feasible

98
Q

strict liability: products liability

design defect- warning defect

A

while adequate warnings insulate a defendant

inadequate warnings result in liability

99
Q

strict liability: products liability

design defect- foreseeable misuses

A

the seller must anticipate reasonably foreseeable misuses of the product

100
Q

strict liability: products liability

design defect– reasonable alternative design

A

must exist at the time fo the original design

later improvements do not constitute a reasonable alternative design

101
Q

strict liability: products liability

control

A

defect must have existed at the time the product left their control

102
Q

strict liability: products liability

changes

A

product must reach the user without substantial change in the condition in which it was supplied

103
Q

strict liability: products liability

business

A

only commercial suppliers can be held liable

causal sellers are not laible

104
Q

strict liability: products liability

causation

A

both actual cuase and prozimate cuase required

105
Q

strict liability: products liability

damages

A

compensatory and punitive damages available

most states deny recover under strict liability when the sole claim is for economic loss

106
Q

strict liability: products liability

additional theories of recovery

A

intentional conduct
negligence
breach of warranties

107
Q

strict liability

defenses

A

comparative fault

assumption of risk

108
Q

negligence

A

duty
breach
causation
damages

109
Q

negligence

duty

A

defendant must meet a certain standard of conduct for the protection of others against unreasonable risk

when action is taken a duty of care is owed to all foreseeable p’s

no affirmative duty to act exists

110
Q

negligence

duty

when does an affirmative duty exist?

A

innkeepers
common carriers
special relationships

111
Q

negligence

duty

what if someone assumes the duty to act?

A

liable if leaves the P in a worse condition

REMEMBER: assume no statute

IF STATUTE IS GIVEN: good samaritan statute will relieve liability under certain conditions

112
Q

negligence

duty

is there a duty to control others?

A

No!

EXCEPTION: special relationships

special relationships:
parents and children
masters and servants
employer and employee

113
Q

negligence

duty- special relationship

parent and child

A

parents have a duty to exercise reasonable care to control their child if they know or have reason to know of the necessity and have the ability to control their child

114
Q

negligence

duty- special relationship

masters and servants (employee/er relationship)

A

duty to control servants while acting within the scope of their employment

duty of care in hiring employees

look for knowledge of prior bad

115
Q

negligent infliction of emotional distress

A

P must be in the zone of danger

suffered a physical manifestation

EXCEPTIONS TO THE ZONE: negligent death notice and mishandling of corpse

116
Q

negligent infliction of emotional distress

bystander

A

located near the scene of the accident

suffered severe emotional distress from the sensory and contemporaneous observation of scene

had a close relationship with the victim

117
Q

possessors of land

what are the types of people that someone can have on their land?

A

invitee
licensee
trespasser

118
Q

possessors of land

what duty does a landowner have to an INVITEE?

A

duty to prevent injuries and duty to discover dangerous conditions

119
Q

possessors of land

what duty does a landowner have to a LICENSEE

A

duty to exercise reasonable care and to warn of dangerous conditions

120
Q

possessors of land

what duty does a landowner have to an UNKNOWN TRESPASSER

A

no duty of care

121
Q

possessors of land

what duty does a landowner have to a KNOWN TRESPASSER

A

depends on the jurisdiction*

122
Q

possessors of land

what duty does a landowner have to CHILDREN

A

heightened standard of care as to artificial conditions

123
Q

standard of care

A

D’s conduct is measured against a reasonable, ordinary prudent person.

124
Q

standard of care

child

A

held to that of a child of the same age, education, intelligence, and experience

age 6 and below: conclusive presumed to be incapable of negligence

age of 7-13: rebuttable presumption of no negligence

age of 14 and ^: presumption of capability for negligence

125
Q

breach

A

when D’s conduct falls short of the standard of care

126
Q

negligence per se

A

statute calls for a criminal penalty, that statute’s specific duty replaces the common law duty

P must prove: 
that he was in the class intended to be protected by the statute

the harm suffered is the harm that the statute was designed to prevent

standards of conduct are clearly defined

127
Q

res ipsa loquitur

A

circumstantial evidence doctrine

accident that caused the injury would not normally happen unless someone was negligent and the negligence is attributable to the D

128
Q

causation

types?

A

ALWAYS ADDRESS BOTH

actual
legal/proximate

129
Q

actual cause

A

cause in fact

but for the D’s actions, the P’s injury would not have occurred

OR

D’s actions were a significant fact in bringing about the injury

130
Q

causation

what happens when there are multiple Ds?

A

if there are multiple D’s and there is uncertainty on who caused the injury the burden of proof shifts to P to prove that harm has been caused by one of them.

burden then shifts back to the D to show their negligence was not the actual cause

131
Q

causation

legal/proximate

A

P must prove that D’s actions were the proximate or legal cause of her injury

test based on foreseeability

D are liable for the normal incidents within the increased risk caused by their acts.

ONLY to foreseeable plaintiffs who are within the zone of danger– risk must also be foreseeable!

132
Q

causation

legal/proximate cause

eggshell plaintiff

A

D takes the full consequence for a P’s injuries

even if the injures are more severe than they would have been with a normal person

133
Q

direct cause

A

if there is an uninterrupted chain of events between a D’s negligent act and the Ps injury

D is liable for all foreseeable harmful results

134
Q

indirect cause

A

a force came into motion after the D’s act and combined with the negligent act to cause the P’s injury

intervening force may break the chain of causation between the initial act and the ultimate injury

135
Q

foreseeable intervening acts

A

do not cut off a defendant’s liability

include:
subsequent medical malpractice
negligence of rescuers
subsequent accidents

KEY: forseeability

136
Q

unforeseeable intervening acts

A

do not cut off liability

may include:
naturally occurring phenomena
criminal acts of 3rd persons (unless foreseeable)
intentional torts of 3rd persons
extraordinary forms of negligent conduct by the 3rd person

137
Q

damages

A

actual harm or injury

138
Q

what kind of damages can a P recover from negligence suit?

A

compensated for all past, present and prospective damages

includes: 
economic (medical, lost earnings) 
noneconomic (pain, suffering) 
*punitive 
   - if D's actions were wanton and willful, reckless or malicious

NOT nominal

139
Q

negligence

defenses

A

contributory fault
comparative fault
assumption of risk

ASSUME pure comparative fault applies in the jurisdiction of the case

140
Q

negligence

comparative fault

A

that P’s conduct contributed to her injury and is compared to D’s negligence

damages are reduced accordingly

does not apply to intentional torts

141
Q

assumption of risk

A

requires that P must have known of the risk and still voluntarily proceeded with the action.

P consented to D’s actions

can be express or implied

142
Q

joint and several liability

A

when 2 or more tortious acts combine to cause an indivisible injury.

each D is liable for the entirety of plaintiff’s damages

143
Q

joint and several liability

if P recovered in full from one D then….

A

she cannot recover from the second D

the rule fo contribution allows the tortfeasor that paid to seek recovery for the amount that was more than their share from the other D

Bar Prep Questions + Rule of Law (15 decks)

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