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Bar Prep Countdown > Torts > Flashcards

Torts Flashcards

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1
Q

Theories of Recovery

A

(1) Intentional Tort
(2) Negligence
(3) Strict Liability

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2
Q

Intentional Tort Theory

A 
Requisite Act?
Requisite Intent?
Was there injury, harm, or damages?
Was there causation (actual AND proximate)?
Is there any privilege or defense?
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3
Q

Negligence Theory

A

Did D owe P a duty of care?
Did D breach this duty of care?
Was there injury, harm or damages?
Was there causation (actual AND proximate)?
Does D have any defense? –> contributory negligence, comparative negligence, or assumption of risk?

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4
Q

Strict Liability

A

Did D engage in a “strict liability” activity?
-Possession of animals with known dangerous propensities
-Abnormally dangerous activities
-Supplying of a product in a defective condition unreasonably dangerous
Does D have any defense? - Comparative Negligence & Assumption of Risk

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5
Q

Is contributory negligence a defense for strict liability?

A

NO

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6
Q

Intentional Infliction of Emotional Distress - Requisite Intent

A

Intentional OR Recklessness

Intentional - D acts with the desire to cause severe emotional distress OR knows with substantial certainty that such severe emotional distress is certain to occur

Recklessness - D acts in conscious disregard of a high degree of probability that emotional distress will follow.

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7
Q

Intentional Infliction of Emotional Distress - Extreme and Outrageous Conduct

A

Conduct that exceeds all bounds tolerated by civilized society

Offensive/insulting language is not enough EXCEPT

(1) When D is a common carrier/innkeeper;
(2) D knows of P’s particular sensitivity
(3) D is an authority figure using racial/ethnic slurs against a subordinate

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8
Q

Intentional Infliction of Emotional Distress - Severe Emotional Distress

A

Distress must be greater than a reasonable person would be expected to endure.

Physical injury/manifestation is not required.

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9
Q

Trespass to Land - Entry Circumstances

A

(1) D enters/causes someone or something to enter
(2) D enters the land lawfully but then refuses to leave when required
(3) D fails to remove/eject from P’s land when under a legal duty to do so

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10
Q

Trespass to Chattels - Damages

A

Actual damages is required.
Does not need to be damage to the chattel, but the actual damages would include the

Value of the loss of use of the chattel during the dispossession (fair market rental value) OR the cost to remedy the intermeddling (cost of repair)

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11
Q

Trespass to Chattel - Remedies

A

Cost of repair
Fair Market Rental Value
Punitive damages if D is a particularly bad actor
Replevin

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12
Q

What type of force to eject a trespasser after asking them to leave?

A

Reasonable force

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13
Q

Recapture of Chattels

A

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

Person seeking recapture needs to request its return first OR [request is dangerous/futile and D is in hot pursuit]

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14
Q

Defense to Intentional Tort - Implied Consent

A

Reasonable person interprets P’s conduct as evidencing permission to act

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15
Q

Defense to Intentional Tort - Consent as a Matter of Law

A

Found in the following circumstances when P is unable to consent:

(1) Emergency action is necessary to prevent his death/serious injury
(2) Reasonable person would be expected to consent under the circumstances; and
(3) No reason exists to believe that P would not consent

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16
Q

Defense to Intentional Tort - Mistaken Consent

A

Most jurisdictions, P cannot consent to a crime.

Consent is not effective (negated) P is mistaken about the nature/consequences of D’s act and D is aware of the mistake.

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17
Q

Necessity

A

D is permitted injure P’s property if it is reasonably necessary to avoid a substantially greater harm to public, self, or D’s property

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18
Q

Self-Defense

A

D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.`

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19
Q

Negligence - Duty

A

D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others

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20
Q

Negligence - Who does D owe to?

A

Only to a foreseeable P – those persons inside the geographic zone of danger at the time of D’s negligence

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21
Q

Negligent Entrustment

A

When D gives something dangerous to someone who D knows, or should know, is not competent to handle.

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22
Q

Duties Owed when D is a Governmental Entity

A

(1) When D is acting in a proprietary function (private party) –> Same duty owed as if D was a private party
(2) When D is acting in a discretionary function (using judgment and allocating resources / passing policy) –> NO DUTY
(3) When D is acting in a ministerial function (setting up stop signs) –> D has a duty to not act negligently once D has undertaken to tact

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23
Q

Public Duty Doctrine

A

Courts find that police/firefighters owe no duty for failing to provide an adequate response, unless

(1) special relationship between P and the public agency
(2) Agency has increased the danger beyond what would otherwise exist

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24
Q

When D is a landowner, landlord, utility or government entity - Duty Owed to Invitees

A

To invitees (enter for the owner’s benefit, shop, or business)

(1) reasonable care in operations AND
(2) must warn of (or make safe) dangerous known-but-concealed conditions
(3) Duty to make reasonable inspections to find and make safe non-obvious dangerous conditions

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25
Q

When D is a landowner, landlord, utility or government entity - Duty Owed to Licensees

A

Licensees = Social Guest

(1) Reasonable care
(2) Must warn of known concealed dangers

No duty to Cure

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26
Q

When D is a landowner, landlord, utility or government entity - Duty Owed to Undiscovered Trespasser

A

NO DUTY

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27
Q

When D is a landowner, landlord, utility or government entity - Duty Owed to Anticipated Trespasser

A

Duty to avoid infliction of wanton or willful harm

Warn of (or make safe) highly dangerous artificial conditions that the landowner knows of

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28
Q

Attractive Nuisance Doctrine

A

Child trespassers –> Landowner has a duty of reasonable care and to warn of known, concealed dangers.

Prerequisites:

(1) Child is too young to appreciate the danger
(2) D knows, or has reason to know, of trespass
(3) D knows of the dangerous condition
(4) Condition is artificial
(5) Risk of harm outweighs the expense of making the condition safe

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29
Q

Landowners - Duty owed to P on Adjacent Land

A

Artificial Condition –> Duty of reasonable Care

Natural Condition –> No duty except for trees in urban areas

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30
Q

Landlord’s Duty to Tenants

A

Not liable unless

(1) Common areas over which LL retains control
(2) Negligent repairs
(3) At time of the lease, LL knows of a concealed dangerous condition; (D MUST WARN OF LATENT DEFECTS) OR
(4) LL knows that T is going to hold property open to the public

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31
Q

What is the standard of care that D owes to not be negligent?

A

Reasonable Prudent Person under the same or similar circumstances

Objective standard, but takes into account physical conditions (i.e., blind, deaf, amputee) & emergency situations not of D’s own making

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32
Q

Negligence Per Se

A

When D’s conduct also violates a statute that does not provide for civil liability, (i.e., criminal statutes), D breached a duty to P. P must still prove proximate cause, damages, etc.

Applies if

(1) Statute’s purpose is to prevent the type of harm P suffered; AND
(2) P is in the class of persons the statute seeks to protect

EXCEPTIONS

(1) When compliance with the statute would have been more dangerous than violating it.
(2) Compliance was impossible
(3) Licensing statutes –> Not having a valid driver’s license is not negligence per se

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33
Q

Standard of Care for Professionals

A

Custom

Physicals required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community

Specialists - National standard

General practitioners - locality standard

Lawyers, Architects, and Accountants - Complies with custom

34
Q

Lack of Informed Consent (Doctors) - Duty to Disclose

A

Traditional: Risks that are customarily divulged

New Trend - All material risks that would a reasonable patient would want to know in deciding whether to undergo the procedure.
Failure to divulge = malpractice IF P can show that P would have refused procedure if the risk was divulged

35
Q

Res Ipsa Loquitur

A

Used to show breach

P must show that

(1) This sort of thing typically doesn’t occur absent negligence;
(2) D is probably the responsible party b/c D had control over the instrumentality of harm; and
(3) P did not contribute to the injury

36
Q

How can P prove actual causation?

A

But-For TEST: P shows that, more likely than not, but for D’s negligence, P would not have been injured.

If multiple Ds –> Each D is deemed an actual cause if their individual action was a substantial factor in bringing about the injury

37
Q

What is proximate cause?

A

The injury must have been a foreseeable result of the breach.

The type of harm was foreseeable.

No superseding cause.

38
Q

Superseding Cause

A

Unforeseeable, intervening force that breaks the chain of causation between the initial wrongful act and the ultimate injury

If dependent (natural reaction) to D’s wrongful acts, then it’s foreseeable and not a superseding cause.

Criminal acts are usually superseding causes UNLESS

(1) D should have anticipated the criminal act; OR
(2) D’s conduct makes the criminal act more likely

39
Q

Are punitive damages available for negligence?

A

NO, unless D acts more culpable than negligence (i.e., willful, malicious, or reckless)

Wealth then becomes a relevant factor in calculation.

Capped at 10% of the compensatory damages because of the Due Process Clause

40
Q

Is medical malpractice foreseeable?

A

ALWAYS

41
Q

Collateral Source Rule

A

Just because P has insurance, it does not mean that D does not have to pay.

42
Q

What is the default comparative/contributory negligence rule?

A

PURE Comparative Negligence/Fault–> P’s negligence will reduce P’s recoverable damages by the percentage of his own fault.

43
Q

Contributory Negligence

A

P is barred if P contributed to his injury UNLESS

(1) D had the last opportunity to avoid the accidence [last clear chance doctrine – usually the wrong answer]
(2) D was reckless

44
Q

Partial Comparative Negligence

A

If P is 50% or more at fault, then P’s claim to recovery is barred.

If P is < 50% at fault, then damages are reduced by the percentage of P’s fault.

45
Q

Assumption of Risk

A

Defense to Negligence

Applies if P voluntarily assumed a known risk.

Recovery will be barred or reduced.

46
Q

Firefighter Rule

A

If P is a professional rescuer, and is injured due to an inherent risk in that job, P cannot recover in negligence against the person who created the harm

Different for Good Samaritans, who can sue.

47
Q

Avoidable Consequences

A

P has a duty to take reasonable steps after injury to not increase/exacerbate

48
Q

What if animals trespass and it results in property damage/

A

Animal’s owners are strictly liable, if it’s reasonably foreseeable

49
Q

Abnormally Dangerous Activity

A

As long as D was involved and the activity caused the harm, D is strictly liable for the abnormally dangerous activity, which is when:

(1) There’s a high risk of serious harm to others;
(2) D creates a foreseeable and highly significant risk of physical harm, even when exercising reasonable care
(3) The activity is not a commonly undertaken activity in the community

But P must still be injured by the risk that makes the activity dangerous.

50
Q

Strict Products Liability

A

(1) Product was defective when it left the hands of D
(2) Product was not altered when it reached P
(3) Product caused an injury to P when it was being used in an intended OR unintended but foreseeable use; AND
(4) D is a commercial supplier who routinely deals in goods of this type

Recovery for personal injury and property damage is allowed. Recovery for ONLY economic loss is not allowed.

51
Q

Warning

A

1% risk of severe harm or death –> should warn

1% risk of minor harm –> should not warn unless very high

52
Q

Defenses to Strict Products Liability

A

(1) Misuse - P use of the product is neither intended nor foreseeable
(2) Alteration - Employer removes safety devises to increase efficiency
(3) Assumption of Risk - P used the product with knowledge of the risk

53
Q

Products Liability - Negligence

A

(1) Duty? – Product suppliers owe a duty to all foreseeable users. D must act as a reasonably prudent supplier would for the type of product.
(2) Breach? – A breach will be found if a supplier’s negligence results in a defective product
(3) Damages - Suppliers are also liable for all foreseeable misuses of the product.

Otherwise, all other elements of negligence must be met. All negligence defenses apply

54
Q

If the only harm is to the product

A

P can only sue a claim for warranty

55
Q

Warranty of Merchantability

A

All goods sold by a merchant must be fit for their ordinary purpose

Requires privity and notice

Can be disclaimed by contract

56
Q

Defenses to Nuisance

A

Coming to the nuisance (used to be absolutely defense but modern law says its just a factor)
Statutory Compliance

57
Q

Private Nuisance - Factors for Balancing substantial/unreasonable interference

A

(1) Value of D’s activity
(2) Whether there are alternatives
(3) Nature of locality
(4) Extent of P’s injury
(5) Who was there first?

Remember - must be offensive, inconvenient, or annoying to a reasonable person

58
Q

Defamation

A

(1) False defamatory statement (tends to harm the reputation of another)
(2) Of and concerning the Plaintiff & made by D
(3) Publication by D to a thirrd-party
(4) Damages

59
Q

Slander

A

Type of defamation

Oral defamatory statement

To recover, P must prove
(1) special damages (specific economic losses that flow from the slander).
OR
(2) reputation damages

60
Q

Slander Per Se

A

(1) Slander which imputes to P behavior/characteristics that are incompatible with P’s business, profession, office
(2) Slander that imputes to P commission of a crime of moral turpitude
(3) Allegations that P has a loathsome disease
(4) Falsely imputing lack of chastity to woman

61
Q

Libel

A

Defamation in a relatively permanent form

Reputational harm is presumed, but damages must be proven.

Requires special damages (specific economic losses that flow from the slander) if

(1) the statement doesn’t fall within one of the slander per se categories AND
(2) Defamatory nature is not clear on its face

62
Q

Defamation - Common Law Privileges - Truth

A

Truth –> P must prove falsity as part of their case

63
Q

Defamation - Common Law Privileges - Absolute Privilege

A

Absolute Privilege –> Complete Defense

Applies to

(1) statements made in judicial proceedings,
(2) between spouses,
(3) by executive branch officials, and
(4) during legislative proceedings

The absolute privilege ends if someone repeats in a non-privileged situation

64
Q

Defamation - Common Law Privileges - Qualified Privilege

A

Qualified/Conditional Privilege –> Applies when the (1) statement is conditionally privileged and (2) privilege is not abused (did not act with malice)

Statement is conditionally privileged if:

(1) Comments were made in communication that appears reasonably necessary to advance/protect D’s own interests
(2) Comments communicated on a matter of interest to the recipient
(3) Comments concerned a matter of public interest to an individual empowered to protect that public interest

65
Q

Defamation - Public Official

A

Must also prove actual malice (recklessly disregarded the truth/falsity or knowledge of falsity) by clear and convincing evidence

66
Q

Defamation - Private Individual

A

Public Concern? –> D needs to have been negligent
+malice for presumed/punitive damages

Private Concern? –> Does not need to show actual malice for presumed/punitive damages

67
Q

Invasion of Privacy - Intrusion into Seclusion

A

D unreasonably intrudes into P’s seclusion (zone of privacy)

Intrusion must be highly objectionable to a reasonable person (e.g., wiretapping)

Damages include compensatory damages and if pad enough, punitive damages.

68
Q

Invasion of Privacy - Commercial Appropriation of Likeness or Identity

A

Unauthorized use of P’s name, voice, or likeness for D’s commercial advantage

Newsworthiness purpose is exempt.

69
Q

Invasion of Privacy - Public Disclosure of Private True Facts

A

D caused (1) widespread dissemination (2) of truthful private information (3) that is highly objectionable to a reasonable person.

Newsworthiness is a defense unless actual malice is present.

If a lot of time has passed, then it’s less relevant.

If D gets the information from public records, then D can’t be liable for sharing that information.

70
Q

Invasion of Privacy - Portrayal in a False Light

A

D causes (1) widespread dissemination; (2) of P’s beliefs, thoughts, or actions, (3) in a false light (4) that would be highly objectionable to a reasonable person.

Public figure or matter of public concern –> must show actual malice.

71
Q

Intentional Misrepresentation

A

(1) Misrepresentation of a material fact by D
(2) D knew the statement was false
(3) D intended to induce P
(4) Actual and reasonable reliance by P
(5) Damages

Misrepresentation can be a false, affirmative assertion of fact or concealment.

Failure to disclose isn’t sufficient unless:

(1) there’s a fiduciary relationship
(2) Ambiguous/misleading statement causes reliance
(3) D makes an assertion, believing it to be true, and then discovers it was false and fails to disclose
(4) D makes a false assertion not intending reliance but discovers that P relied; or
(5) P reasonably expects there would be disclosure

72
Q

Intentional Misrepresentation - Required Mental State

A

D knew statement was false or was reckless as to veracity

D intended P (or class of P) to rely

73
Q

Negligent Misrepresentation

A

Generally, no duty to avoid negligent infliction of pure economic loss.

(1) When there’s a special relationship, or if D knows they’re acting for the benefit of a third party, and they rely and suffer economic losses
(2) If knows that they are acting for the benefit of a third party, and the third party relies and suffers economic loss.

74
Q

Interference with Prospective Economic Advantage

A

D knew of prospective economic advantage and acted to interfere with it for improper motives

Legitimate competitive activity is permitted.

75
Q

Injurious Falsehood

A

(1) False statement
(2) Actual malice
(3) Made to another or published
(4) Caused specific economic injury to P

Not about reputational harm –> more about economic loss.

76
Q

Parents Liability for their Children

A

Parents are not generally vicariously liable for torts committed by their child, absent a statute saying otherwise

Parents can be liable though for their own negligence, negligent supervision, or entrustment.

77
Q

Survival Statute

A

Estate of decedent can bring a tort action

Death of the victim does not abate tort action.

78
Q

Wrongful Death Statutes

A

Heirs of the deceased or a personal representative of victim’s estate can bring an action for wrongful death for their own losses resulting from the victim’s death

79
Q

Loss of Consortium

A

When spouse is killed, surviving spouse can bring a claim for intangible injuries of loss, comfort, companionship, etc.

80
Q

Economic Torts

A

(1) Intentional misrepresentation
(2) Negligent misrepresentation
(3) Interference with prospective economic advantage
(4) Injurious falsehood

Bar Prep Countdown (14 decks)

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