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UBE July 2021 > Torts > Flashcards

Torts Flashcards

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1
Q

DEFINE BATTERY.

A

It is an intentional, harmful or offensive conduct that offends a rx sense of personal dignity with the plaintiff’s person.

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2
Q

Does a victim’s person include anything connected to it?

A

Yes

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3
Q

What is the intent needed for batter?

A

A desire to bring about the harm/conduct or knowing the harm/contact is substantially certain to occur.

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4
Q

Are nominal damages enough to make ab act intentional for a battery?

A

Yes

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5
Q

Define Assault.

A

An intentional act that causes the plaintiff to be placed in rx apprehension of an imminent harmful or offensive conduct with plaintiff’s person.

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6
Q

What is the intent needed for an assault?

A

For the purpose of causing such apprehension or with knowledge to a substantial certainty that the apprehension will occur.

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7
Q

What does rx apprehension mean?

A

Plaintiff must be aware of D’s act and believe D is able to commit the act.

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8
Q

Define False Imprisonment.

A

An intentional act that restrains P to fixed boundaries, with no rx means of escape, and P is aware of the confinement or harmed by it.

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9
Q

What is the intent needed for False Imprisonment?

A

Purposely bringing about the confinement or knowing the confinement is likely to occur.

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10
Q

What does retrain mean?

A

By physical force or through threats.

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11
Q

Define IIED.

A

An intentional or reckless conduct that was extreme and outrageous, that transcends all bounds of decency, that causes extreme emotional distress and P actually suffers severe emotional distress.

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12
Q

What is the intent needed for IIED?

A

The person desires to inflict severe emotional distress or knows that such distress is certain or substantially certain to occur.

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13
Q

Define reckless.

A

A deliberate disregard of a high risk that emotional distress will follow.

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14
Q

What if conduct is directed to a 3rd party?

A

D is liable for intentional/reckless infliction of emotional distress caused to a member of such person’s immediate family present at the time or any person present, if it results in bodily harm.

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15
Q

Define Trespass to Land.

A

D is liable if he intentionally either enters the land physically or remains on land or propels physical objects or a 3rd person onto to the land or fails to remove an object he is under the duty to remove.

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16
Q

Does Trespass to Land require intent to trespass?

A

No, only intent to be on the land.

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17
Q

What are the damages P can recover in a Trespass to Land?

A

P can recover the decrease in value of the property or cost to repair the property.

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18
Q

Define Trespass to Chattels.

A

D is liable when he intentionally interferes with the personal property of another and the amount of damage is small.

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19
Q

Define Conversion.

A

D is liable when he intentionally interferes with the personal property of another and the amount of damage is substantial. P can recover the full market value of the property.

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20
Q

What is the doctrine of transferred intent?

A

The intent to harm one party can be transferred when D intents to commit a tort against on particular individual and either commits a different tort against that person or another person is injured by the same or different tort.

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21
Q

The doctrine of transferred intent applies to which torts?

A

assault, battery, false imprisonment, trespass to land and trespass to chattels.

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22
Q

DEFINE CONSENT.

A

May be express through words or conduct but can’t exceed the bounds of the consent given. P must have the capacity to consent. P can’t consent to a crime in some courts.

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23
Q

CAN CONSENT BE WITHDRAWN AT ANYTIME?

A

YES

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24
Q

DEFINE APPARENT CONSENT.

A

WORDS/CONDUCT ARE RX UNDERSTOOD TO BE CONSENT SUCH AS CUSTOMARY PRACTICE, FAILURE TO OBJECT.

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25
Q

DEFINE IMPLIED BY LAW CONSENT.

A

Occurs in special circumstances such as medical emergencies.

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26
Q

DEFINE PRIVILEGE.

A

It is conduct that normally would subject the actor to liability, but is excused under the circumstances

27
Q

DEFINE NECESSITY.

A

D is not liable for harm to P’s property if D’s intrusion was or rx appeared to be necessary to prevent serious harm to a person or property.

28
Q

WHICH TORTS IS NECESSITY APPLICABLE TO?

A

Only to intentional torts to property.

29
Q

DEFINE PUBLIC NECESSITY.

A

When D acts for the public good. This is a complete defense.

30
Q

DEFINE PRIVATE NECESSITY.

A

When D is protecting his own or a few others property interests. D is liable for damages unless the purpose was to help P. This is an incomplete defense.

31
Q

DEFINE SELF-DEFENSE.

A

D is not liable for harm to P if he rx believed P was going to harm him or another and used rx force that was necessary to protect himself or another.

32
Q

DEFINE DEFENSE OF PROPERTY.

A

D may use rx force to defend property but cannot use deadly force.

33
Q

DEFINE RECAPTURE OF CHATTELS.

A

An owner of wrongfully taken chattels may take prompt action and use rx, non-deadly force to recover chattels from the wrongdoer.

34
Q

DO YOU FIRST NEED TO MAKE A DEMAND FOR D TO RETURN THE ITEM BEFORE USING RX FORCE TO RECOVER THE TAKEN CHATTEL?

A

Yes, if not then the force is considered unreasonable.

35
Q

WHEN CAN YOU DETAIN FOR INVESTIGATION?

A

Shopkeepers may temporarily detain a person rx suspected of theft in or near their store for the purpose of investigation. When a request to remain has been made and refused, rx non-deadly force may be used to detain.

36
Q

WHAT ARE THE PRIMA FACIE ELEMENTS FOR NEGLIGENCE?

A

DUTY, BREACH OF DUTY, CAUSATION (ACTUAL + PROX), AND DAMAGES.

37
Q

DEFINE AFFIRMATIVE DUTY.

A

There is no general duty to act affirmatively except if there is a special pre-existing relationship between the parties, D put P in peril, D has already undertaken the rescue of P, or a duty is imposed by law.

38
Q

IF D HAS ALREADY UNDERTAKEN THE RESCUE OF P WHEN IS HE LIABLE?

A

D is liable only if he increases the risk of harm or harm is suffered because of reliance on the person providing help.

39
Q

DEFINE THE RX PERSON STANDARD.

A

Every person owes a duty to act as a rx prudent person would act under the circumstances. Following community customs and statutory requirements are relevant but not dispositive.

40
Q

DEFINE PHYSICAL DISABILITY STANDARD

A

Must act how a rx person with the disability would act.

41
Q

DEFINE MENTAL DISABILITY OR BELOW AVERAGE INTELLIGENCE.

A

Must act as a rx person without the disability.

42
Q

DEFINE CHILDREN STANDARD.

A

Must act as a hypothetical child of similar age, experience, and intelligence acting under similar circumstances. Unless child is engaging in adult activity.

43
Q

DEFINE PROFESSIONAL STANDARD.

A

Must act with the knowledge & skill as an average member of that profession participating in a similar community.

44
Q

WHO ARE PROFESSIONALS?

A

Doctors, lawyers, accountants, engineers, and nurses.

45
Q

DEFINE SPECIALIST AND THEIR STANDARD.

A

Someone who holds himself out as a specialist then must act as an average member of that speciality.

46
Q

DEFINE MEDICAL DOCTOR STANDARD.

A

They are held to the degree of care and skill if an average qualified practitioner under a national standard.

47
Q

DEFINE PSYCHOLOGIST/PSYCHOTHERAPIST STANDARD.

A

Also have a duty to warn victims when their patient makes a credible threat that therapist believes poses a real risk of serious physical violence to readily identifiable victim.

48
Q

DEFINE LAND OWNER STANDARD.

A

In some states landowner/possessor must exercise rx care under the circumstances to all entrants. In other states the duty of care is determined by type of entrant.

49
Q

DEFINE UNDISCOVERED TRESPASSER STANDARD OF CARE.

A

No duty is owed.

50
Q

DEFINE ANTICIPATED TRESPASSER STANDARD OF CARE.

A

Rx care in operations of property and must warn or make safe highly dangerous artificial conditions that the land owner knows of.

51
Q

DEFINE LICENSEE STANDARD OF CARE.

A

A social guest is owed by the landowner a rx care in operations of property and must warn or make safe dangerous conditions that are known but not apparent to a guest.

52
Q

DEFINE INVITEE STANDARD OF CARE.

A

Someone who enters land for homeowner’s benefit, shop or business is owed the same duty as a licensee plus the duty to make rx inspections to find and make safe non-obvious conditions.

53
Q

DEFINE ATTRACTIVE NUISANCE.

A

Landowner owes a duty to child trespassers to male the premises rx safe or warn of hidden dangers on the land.

54
Q

WHEN IS PERSON LIABLE FOR ATTRACTIVE NUISANCE?

A

If D knows or should have known of a dangerous artificial condition likely to cause death or SBI and knows or should have known children are likely to frequent the area and children are unlikely to discover the condition or appreciate the risks and the risk of harm outweighs the expense of making safe.

55
Q

What is a LL’s duty to tenants?

A

LL generally has no duty to maintain the leased premises unless by law or contract but must warn of latent defects and must make safe from criminal acts.

56
Q

Under the modern law does LL have duty to take rx precautions to protect a tenant from fx harms?

A

Yes.

57
Q

WHAT IS NEGLIGENCE PER SE?

A

The elements of duty and breach are established when D violates the statute. To use P must show that the statute’s purpose is to prevent the type of harm P suffered and P is in the class of persons the statute seeks to protect.

58
Q

WHAT ARE THE EXCEPTIONS TO NEGLIGENCE PER SE?

A

If compliance with statute would have been more dangerous then the violation of it or if compliance was impossible.

59
Q

DEFINE RES IPSA LOQUITUR.

A

Can be used when the breach element is difficult to prove. (The thing speaks for itself)

60
Q

WHAT IS REST. 2ND TEST FOR RES IPSA LOQUITUR?

A

P must show that the injury is of the kind that typically doesn’t occur in the absence of negligence, other responsible causes are sufficiently eliminated by the evidence and the negligence was within the scope of duty D owned to P.

61
Q

DEFINE ACTUAL CAUSATION.

A

The “but for” cause, also called the substantial factor test. Deemed an actual cause if it is a substantial factor in bringing about the injury.

62
Q

DEFINE PROXIMATE CAUSATION.

A

Injury must have been a fx result of the breach. D is not liable for remote harms caused.

63
Q

DEFINE INTERVENING CAUSE.

A

An act that occurs after the breach that contributes to the harm. Intervening causes that are dependent to D’s wrongful conduct is usually deemed fx. If the intervening cause resulted in an unexpected injury it is usually deemed unfx and D is not liable

UBE July 2021 (2 decks)

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