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Practice sets > Torts > Flashcards

Torts Flashcards

1
Q

Negligence

A

P must prove: duty, breach, cause (actual + proximate), and harm

If P can’t prove then judge can enter directed verdict for D

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2
Q

Duty of Care Standard

A

Duty of care is owed to foreseeable P’s & is measured agasinst prudent person acting under same or similar circumstances would use.

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3
Q

Exceptions to Reasonable Prudent person standard

A
  1. superior knowledge
  2. age if D child- similar age, intelligence, experience
  3. D’s physical characteristics (blind, deaf, missing an arm)
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4
Q

Exception to Child standard of care

A

Child engaged in adult activity
driving car, boat, shooting a gun
reasonable prudent adult standard

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5
Q

Professional malpractice

A

custom is conclusive as to standard of care; if not followed breached

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6
Q

non malpractice cases

A

custom is evidence to standard of care but showign it wasn’t followed isn’t proof of nelggience

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7
Q

Doctor Standard of Care

A

Informed Consent- must show pt w/ enough info to give informed consent- reasonable peson in position would’ve refused procedure; harm must still be shown

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8
Q

Wrongful Conception

A

woman has child after being told not to

damages are costs associated with birth

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9
Q

Wrongful Birth

A

child is born b/c Dr failed to diagnose disease and parents assert they would’ve aborted child

Damages: extra expenses raising child w/ special needs

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10
Q

Wrongful Life

A

child sues for being born w/ defects

Damages allowed but usually no recovery

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11
Q

Wrongful Death

A

P can only recover if expert testimony estab. chance of survival absent negligence would have been greater then 50% or in loss of chance of survival jurisdictions allow recovery for any loss of chance of survival

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12
Q

Undiscovered Tresspasser

A

1 who comes on land without permission or privilege & landowner isn’t aware

No Duty

landowner can’t engage in intentional and willful misconduct

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13
Q

Discovered Trespasser

A

tresspasser landowner knows or should know of

Landowner must warn or make safe any unreasonably dangerous, concealed, artifiical man made conditions that they know of

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14
Q

Attractive Nuisance

A

dangerous condition on land that owner knows or should know of, children frequent land and owner knows or should know and child can’t appreciate risk, landowner fails to exercise reasonable care to eliminate the danger or protect children

balance the cost to fix v. harm

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15
Q

Licensee

A

Social Guest who has permission to enter land but doesn’t offer economic benefit on possessor of land

Landowner must warn and make safe all concealed dangers that he knows of; no duty to inspect

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16
Q

Invitee

A

enters land to confer economic benefit or one that enters land that is open to pubic at large

Customer, church goer, museum

owner must warn and make safe all dangers that he knows or should know and make inspections

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17
Q

Firefighters Rule

A

licensees- no duty to inspect

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18
Q

Neglgience Per se

A

D violeted statute w/out execuse
right person was injured (P was in class of people trying to protect)
right injury was sustained

P shows duty and breach must prove cause and harm- no directed verdict

don’t have to follow statute if dangerous, impossible, incapacity

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19
Q

Rescurers

A

forseeable P’s but must act w/ ordinary care in conducting resuce but liable if neglgiently worsen condition

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20
Q

Duty to Act

A

no duty to act generally unless

  1. special relationship- parent/child, spouses, psycotherapist
  2. K to take of person
  3. statute
  4. tort- caused peril
  5. reliance- babysitting
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21
Q

Breach

A

P must establish D failed to comply w/ duty of care owed

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22
Q

Res Ipsa Loquitur

A

circumstances surrounding injury are unclear

P has made case for breach; no directed verdict

  1. probably negligent- act doesn’t happen w/out it
  2. probably D- accident is normally due to negligence of someone in D’s position
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23
Q

Actual Causation

A

factual; but for

connection between injury & breach

would same harm occured even if breach didn’t occur

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24
Q

Multiple D’s working in concert to cause harm

A

substantial factor test: breach a substantial factor in causing the harm?

D’s jointly and severally liable meaning each can be sued for whole amount

If D’s beleive they acted independent burden will shift to each individual D to show breach wasn’t cause P

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25
Q

Proximate Cause

A

harm must be forseeable

  1. disease or subsequent accident
  2. medical malpractice
  3. resuce efforts
  4. reactions- running to escape
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26
Q

Harm

A

P compensated for all damages (economic & noneconomic)

Actual injury must result meaning damages must be forseeable

P has duty to mitigate

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27
Q

Egg Shell P Rul;e

A

D must pay damages even if larger b/c forseeability of extent harm not necessar

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28
Q

NIED

A

D is negligent
P hasn’t sustained any physical trauma to body

Zone of danger, bystander, special cases

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29
Q

Zone of Danger & NIED

A

D neglgient
P in zone of danger
P sufferes emotional disress that manifests physicval symptoms (heart attack, shock, miscarriage)

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30
Q

Bystnader Case NIED

A

P witnesses nelggient injury
inflicted on person is closely related to P
P suffers phsyical symptoms

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31
Q

Special cases of NIED

A

Dr. telling pt of disease when he doesn’t have it
errors in relative’s death
mishandeling corpse

*no physical symptoms neccessary

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32
Q

Contributory Negligence

A

old CL bars P’s recovery if he was negligent

BAD LAW

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33
Q

Assumption of Risk

A

P can be denied recovery is assumed risk of D’s nelgigence

D needs to show P was aware of risk and voluntarily assumed it

34
Q

Comparitive Negleigence

A

% of neligence assigned

35
Q

Pure Comparative negligence

A

P can recover regardless of his negligence

DEFAULT

36
Q

Partial Compartive Neglgience

A

if P is more at fault than the D can’t recover or in some states if =

37
Q

Battery

A

D acts w/ intent to cause harmful or offensive contact and harmful/offensive contacts results

38
Q

Act in battery

A

Voluntary movement

39
Q

intent in battery

A

goal to cause injury or D knows w/ substantial certainty that injury will result

40
Q

Offesnive Contact Battery

A

reasonable person standard

41
Q

Battery/Assault Damages

A

actual damages not required

nominal damages can be recovered

42
Q

Incompetency & Battery

A

not defense unless negates element of battery

*beleives punching bag when punching person

43
Q

Assault

A

D acts w/ intent to cause harmful or offensive contact and imminent apprehension directly or indirectly results

44
Q

Act in assault

A

conduct even small gesture

45
Q

Intent in assasult

A

cause hamrful or offensive contact or imminent apprehension of contact

46
Q

Apprehension in assault

A

knowledge or anticipation not fear

47
Q

False Impriosnment

A

D acts w/ intent to confine or restrain the p to bounded area, actual confinement occurs, and P knows of confinement or is hurt

48
Q

Actual Confinement

A

physicla barriers, forcde directed at P or family

no reasonable escape

must know of confienment or be hurt

49
Q

Shop Keeper’s priviliege

A

merchant has priviliege to detain shoplifter if merchant has reasonable beleif as to theft and detains in reasonable manner and reasonable time

50
Q

IIED

A

D intentionally or recklessly engages in extreme or outrageous conduct which causes severe emotional distress

*repetitive, not social norms
if inkeeper or common keeper insulting language enough

extreme senseabilities only matter if D knows

physical injuries not necessary

51
Q

Trespass to Landl

A

physically invases of land of another and intends to be where he is

52
Q

physical invasion

A

intentionally enters land of another and remains on land after lawful entry has lapsed and knows entry will result from conduct

53
Q

Nuisance

A

loud music
lights

Private- substantial unreasonable interference with use and enjoyment- ignore hypersensitve

Public- unreasonable interference with helath, safety, morals of community and suffer unique damages

54
Q

Intent w/ tresspass to ladn

A

D just needs to intend to go on land- doesn’t amtter if he knows land is another’s

55
Q

Trespass to Chattles

A

intentional interference with personals property and harm results

Damages: cost of repair

damage can’t be negligently damaged
belief that property is own no defense

56
Q

Conversion

A

intentional interference with personal property of another and serious and substantial harm results

Damages: FMV at time and place of conversion

*long period of time, refuse to return, total destruction, reselling

57
Q

Defenses to Intentional Torts

A

Consent
Self Defense
Necessity

58
Q

Express Consent

A

words even if mistake

59
Q

Implied Consent

A

p consents to conduct by actions

look to see if D reasonably beleive P was consenting

60
Q

Self Defense

A

person who reasonably believes being harmed by another can use force reasonably necessary to protect against imminent harm

unavilable if 1st agressor, taunting, acting in retailion, threat isn’t immient

61
Q

Defense of property

A

person can’t use deadly force to defend property

can in hot pursuit use reasonable force to get item back if wrongfully taken, but must 1st demand return

62
Q

Public Necessity

A

d not liable and won’t have to pay damages if acts in public interest

protects communtiy as whole

63
Q

private necessity

A

protects own interest and harms property

not liable for tort but will have to pay damages

64
Q

Defamation- private figure private concern (gossip)

A

Defamatory statement about P, unprivileged publication of statement to 3rd party , some degree of fault, damages depends on slander or libel

65
Q

Defamatory Statement

A

adversely effect P’s reputation that identifies P who is alive (corps count)

66
Q

3rd party defmation

A

must understand communication and only intent to publish

67
Q

Libel

A

written or an otherwise permanent defamaotry statement

presumed damages but P may prove dmages to get more $

68
Q

Slander

A

spoken defamtory statrment

presumed damages if slander per se (CLUB): crime of moral turpitude, loathsome disease, unchasity, relfects badly on business or profession

is statement doesn’t fit in this P must prove samafes by showing getting fired or losing out on K

69
Q

Defamation in cases of private figure public ocncern

A 
Defamatory statement
unprivileged publication 
Fault 
Damages 
falsity

Dmages limited to actual but presumed if malice is present

70
Q

Defamation in cases of public figure

A 
defamatory statement 
unprvilieged publication 
fault 
damages
falsity 
malice required h

D made statement with knowledge of falseity with reckless disregard to its truth or falsity

71
Q

Defense to Defamation

A

consent

truth

72
Q

Intursion

A

d intentionally pries or intrudes into private place in a way that would be offensive to reasonable person

73
Q

Appropiation

A

unauthorized use of P’s name or likness to advertise product

P doesn’t need to famous but commerical purpose but be necessary

74
Q

False light

A

D widely spreads facts about P which places P in false light that would be offensive to reasonable person

*must tell a lot of people

75
Q

Disclosure

A

D widely disseminates or publishes private info about P that would be highly offensicve to reasonable perosn

  • info must be accurate and confidential
76
Q

Several Liability

A

D only liable for their % of fault

77
Q

Indeminity

A

1 D seeks 100% of damages from other D

78
Q

Independent Contractor Torts

A

not liable for IC b/c less control but when landowner has nondelegable duty to keep land safe or liable for own neglgience in hiring, firing, or supervising

79
Q

Vicarious liable

A

Employers liable for torts of employees if commited within scope of employment

intentional torts are outside scope unless done for purpose of serving employer or if forseeable

80
Q

Strict Liability for Products

A

P who is consumer
D who is merchant
Defective product
Forseeable use or misuse

Practice sets (10 decks)

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