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2022 MBE > Torts > Flashcards

Torts Flashcards

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1
Q

Intentional tort generally:

A

P must prove (1) act (2)intent and (3) causation

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2
Q

Intent in intentional tort:

A

D acts with the

(1) purpose of causing the consequence OR
(2) knowledge that the consequence is substantially certain to follow.

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3
Q

Battery element

A

D causes a

(a) harmful or offensive contact
(b) with the person of another
(c) with intent to cause that contact or apprehension

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4
Q

Single-intent rule for battery intent (majority rule)

A

D liable if (1) intends to cause the contact but (2) need not intend that the contact be harmful/offensive

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5
Q

Damage requirement for battery

A

no proof of actual harm required

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6
Q

Assault elements

A

act or threat by D that causes

(a) reasonable apprehension of
(b) imminent, AND harmful/offensive bodily contact and
(c) D intended to cause that contact or apprehension

Mere words generally not sufficient.
Imminent means no threats of future harm

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7
Q

Intentional infliction of emotional distress (IIED) elements

A

D

(a) intends to cause severe emotional distress or acts with reckless disregard as to the risk
(b) does extreme & outrageous conduct
(c) that causes P’s severe emotional distress

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8
Q

IIED: outrageous

A

a conduct is outrageous if it exceeds the possible limits of human decency

© mere insults/threats not outrageous,

unless words + conduct (1) D is in a position of authority OR (2) P is in a group that has heightened sensitivities (e.g. children)

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9
Q

IIED: Transferred intent

A

Transferred intent does not apply to IIED when if you intended battery against A and end up committing IIED against A or B.

Transferred intent applies if you intended IIED against A and end up committing against B (like family or bystander).

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10
Q

IIED: Family member of the victim may recover for IIED if

A

(a) D intentionally or recklessly causes severe emotional distress to P’s family member;
(b) D act extreme outrageous conduct
(c) P was present at the time and perceived such conduct

intentional or reckless (ie, D knew that P was present and closely related to the injured person)

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11
Q

IIED: Nonfamily bystander of a victim can recover for IIED if

A

(a) D intentionally or recklessly causes severe emotional distress to victim;
(b) D act extreme outrageous conduct
(c) P was present at the time and perceived such conduct
(d) bodily injury / require proof of actual harm.

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12
Q

IIED: Damages

A

No proof of actual harm required (except for bystander)

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13
Q

False imprisonment: elements

A

D

(a) intends to confine/restrain another
(b) confine/restrain
(c) P is conscious or is harmed

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14
Q

False imprisonment: Intent requirement

A

(1) acts with the purpose of confining or
(2) acts with knowledge that confinement is substantially certain to result.

NOT negligence.

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15
Q

False imprisonment: Damages

A

no proof of actual harm required unless D unaware

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16
Q

False imprisonment: Confinement

A

threats, force, false authority, failure to provide a means of escape © future threats does not constitute confinement or restraint

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17
Q

Shopkeeper’s privilege:

A

reasonable detention of suspected shoplifter

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18
Q

Intentional torts involving personal injury:

Consent

A

A defense

Express or Implied consent by custom, emergencies, consensual athletics

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19
Q

Intentional torts involving personal injury:

Consent is not a defense/is negated when

A

(1) mistaken consent is caused or knowingly utilized by D;
(2) fraud;
(3) duress
(4) incapacity/incompetency
(5) intoxication

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20
Q

Intentional torts involving personal injury:

Self-defense is a defense if

A

reasonable force proportionate to anticipated harm

© initial aggressor

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21
Q

Initial aggressor doctrine

A

Initial aggressor can’t claim self-defense unless the other party responded to nondeadly force with deadly force

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22
Q

Self-defense: reasonable mistake

A

Allowed

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23
Q

Self-defense: liability for injury to bystander while self-defense

A

Person acting in self-defense has no liability if injuries were (a) accidental and actor was (b) not negligent toward the injured bystander

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24
Q

Use of force in defense of property:

A

reasonable force OK if used based on reasonable belief that it is necessary to prevent tortious harm.

No deadly force allowed

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25
Q

Use of force when taking back personal property wrongfully taken:

A

Reasonable force OK but only if you first request its return unless doing so would be futile

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26
Q

Use of force when taking back possession of land:

A

No use of force

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27
Q

Use of force when preventing trespass on one’s land:

A

use reasonable force to remove trespasser only if

(a) D reasonably believed force is necessary to end trespass and
(b) D first asked P to leave (or futile)

© visitor acting under necessity

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28
Q

Private arrest privilege if:

A

if (a) felony was actually committed and

(b) reasonable to suspect that the person committed it

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29
Q

Public arrest privilege if

A

if (a) reasonable to believe felony was committed and (b) reasonable to suspect that the person committed it.

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30
Q

Privilege of arrest for misdemeanor:

A

Public arrest allowed only if committed in officer’s presence.

Private arrest allowed only if breach of the peace.

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31
Q

Trespass to chattel elements

A

intentional interference with P’s right of possession by dispossessing or use/intermeddling

P must show actual harm to or deprivation of use for a substantial time.

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32
Q

Trespass to chattel: intent

A

only intent to do the act is necessary.

Transferred intent applies.

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33
Q

Conversion elements

A

(a) intentional interference with P’s right of possession so serious that
(b) it deprives P of the use of the chattel

© no conversion if able to repair.

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34
Q

Conversion: Intent

A

intent to convert—to take or exercise dominion over personal property.
© not accidentally damaging if permission to use
©© if accident occurred while using outside scope of consent

Transferred intent does not apply—must intend to control the particular property

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35
Q

Trespass to chattel: Mistake of law or fact

A

Not a defense

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36
Q

Conversion: Mistake of law or fact

A

Not a defense

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37
Q

Conversion: Accidental damage

A

Not conversion if permission to use

©© if accident occurred while using outside scope of consent

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38
Q

Trespass to land element

A

(a) intent to enter land

(b) physical invasion

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39
Q

Trespass to land: Intent

A

intent to trespass not required. just intent to enter the land

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40
Q

Trespass to land: Damages

A

no proof of actual damages required

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41
Q

Trespass to land: mistake of fact

A

Not a defense

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42
Q

Defense to trespass in land: private necessity

Liability for damages

A

A defense if entered to protect own person/property from serious harm.

Still responsible for damages

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43
Q

Defense to trespass in land: public necessity

Liability for damages

A

A defense if entered to avert imminent public disaster.

Not liable for damage if actions reasonable or reasonable belief that necessity existed

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44
Q

Negligence:

Duty

A

owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care (Cardozo)

Andrews: duty owed to everyone if a conduct can harm them.

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45
Q

Duty: Are rescuers foreseeable persons for the purpose of duty?

A

Yes. Rescuers who get injured are foreseeable P’s.

© Firefighter’s rule (emergency professionals if injury results from the risk of the job–even if caused by D’s negligence)

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46
Q

No affirmative duty to act—Exceptions:

A

(1) Assumption of duty
(2) place another in danger
(3) by authority
(4) by relationship
(5) by contract
(6) by statute

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47
Q

Standard of care is

A

reasonably prudent person

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48
Q

A reasonably prudent person standard takes into consideration:

A

(1) D’s physical characteristics, not mental
(2) Intoxication (held to the same std as sober unless involuntary)
(3) D’s age © adult activities

49
Q

standard of care: common carrier and innkeepers

A

common carriers–highest duty of care consistent with the practical of operation (Majority)

Innkeepers– ordinary negligence (Majority)

50
Q

Standard of care: for professionals:

A

A professional person, like an electrician, is expected to exhibit the same skill, knowledge, and care as an ordinary professional in the same community.

51
Q

Bailor’s duty to warn:

to gratuitous bailee
to compensated bailee

A

To gratuitous: duty to warn of known dangerous defects

To compensated: duty to warn of defects that are known or that bailor should have known with reasonable diligence

52
Q

Landowner standard of care to trespassers generally

A

Only duty to refrain from willful, wanton, intentional or reckless conduct.

53
Q

Landowner duty to trespassers: Duty to warn?

A

Duty to warn discovered/anticipated trespassers against hidden dangers.

No duty to undiscovered trespassers

54
Q

Attractive nuisance doctrine:

A

A landowner may be liable to trespassing children if ∑

(a) artificial condition where owner knows or reason to know that children are likely to trespass
(b) owner knows that condition poses an unreasonable risk of serious harm
(c) children do not discover or do not appreciate the danger
(d) utility of maintaining the condition is slight compared to the risk
(e) owner fails to exercise reasonable care

55
Q

Landowner duty to licensees:

A

(1) Duty to warn licensees of hidden, known dangers
(2) Use reasonable care in conducting activities on land.
(3) No duty to inspect

56
Q

Landowner duty to invitees:

A

(1) Duty to exercise reasonable care to inspect,
(2) Duty to discover dangerous conditions, and
(3) Duty protect invitees from them.

57
Q

Landowner duty to invitees is non-delegable. This means:

A

A landowner can’t avoid duty by assigning care of the property to an independent contractor.

58
Q

3d Restatement approach for landowner duty:

A

Reasonable standard of care to all except flagrant trespassers

59
Q

Landowner duty to off-premise victims for injury caused by natural conditions:

A

no duty.

60
Q

Landowner duty to off-premise victims for injury caused by artificial conditions:

A

duty to prevent unreasonable risk of harm caused by artificial conditions.

61
Q

Breach occurs when (traditional approach)

A

violation of the standard of care.

Breach occurs if D’s conduct isn’t what a reasonably prudent person would do under the circs

62
Q

Breach: modern approach

A

Breach occurs when B < PL.

Discuss (1) burden to prevent harm (2) foreseeability of harm (3) severity of harm

B = burden $$$; P = probability; L = loss $$$

63
Q

Breach: burden of proof standard for breach

A

preponderance (more likely than not that D failed to meet standard of care)

64
Q

Breach: evidence of custom

A

Admissible to prove breach, but not dispositive, UNLESS professionals.

For professionals, compliance with custom = no breach. Deviation from custom = breach.

65
Q

Breach: doctors’ informed consent

A

Doctors must inform the patient of risks unless

(1) risk commonly known
(2) patient unconscious
(3) patient waives
(4) patient incompetent
(5) patient would be harmed by the disclosure

Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence)

As with any other negligence, P must prove duty+breach, causation and injury.

66
Q

Breach: negligent per se function (not elements)

A

when a law establishes a standard of care, violation of that law constitutes a breach.

Unexcused violation of the law constitutes negligence per se

67
Q

Breach: negligence per se elements

A

Unexcused violation of the law constitutes negligence per se.

(a) statute imposes a specific duty for protection of others
(b) D neglects to perform the duty
(c) D is liable to anyone in the class of people intended to be protected by the statute
(d) for type of harm the statute was intended to protect against

68
Q

Breach: negligence per se defenses 4

A

(1) compliance impossible or would’ve been more dangerous than noncompliance
(2) violation reasonable under the circs
(3) statute vague
(4) compliance with federal reg pre-empts state tort action

69
Q

Breach: res ipsa loquitur function

A

allows circumstantial evidence of negligence to get to jury

70
Q

Breach: res ipsa loquitur elements

A

(a) accident was a kind that doesn’t ordinarily occur in the absence of negligence
(b) it was caused by agent/instrumentality within D’s exclusive control
(c) P not responsible for the injury (P’s negligence didn’t increase likelihood of D’s negligence.

© exclusive control requirement ignored for product liability

71
Q

Causation: cause in fact (actual cause) established

A

if P shows the injury would not have occurred but for D’s negligence

72
Q

Causation: If there are 2+ Ds or 2+ causes in negligence action, causation test applied is

A

substantial factor test.

73
Q

Causation: loss of chance doctrine

A

if P’s recovery was <50% before D’s conduct; can recover % of total damages equal to their reduced chance of survival

74
Q

Causation: proximate causation

A

P must show that injury was a foreseeable result of D’s conduct

75
Q

Causation: intervening cause

A

Foreseeable intervening cause does not cut off liability.

Unforeseeable intervening cause cuts off D liability.

If foreseeable, does not cut off D’s liability (e.g. subsequent medical malpractice, disease, or accident; negligence of rescuers; normal forces of nature; or efforts to protect a person or property; negligent intervening acts)

76
Q

Causation: unforeseeable superseding causes

A

criminal acts and/or intentional torts by third parties, natural forces.

© if D had a duty to protect P, breached it, and P is harmed by crime, D remains liable.

77
Q

Damages: damage limitations for negligence

Parasitic damages:

A

must prove actual harm (personal or property harm).

  • CANNOT sue if only economic loss.
  • No damages for defamation for dead P

a P who suffers physical injury in negligence lawsuit can also recover emotional damages

78
Q

Damages: three categories of compensatory damages

A

(1) past/future medical expenses;
(2) past/future pain and suffering; and
(3) lost income/reduced future earnings

79
Q

Damages: collateral source rule

A

P’s recovery is not reduced by benefits or payments to P from outside sources (P’s insurance)

80
Q

Damages: collateral source rule exception

A

P’s recovery is reduced by payment by D’s insurer

81
Q

Damages: punitive damages in negligence suits

Rule
Limitation

A

awarded if willful & wanton, malicious, or reckless behavior.

© Cannot exceed single digit ratio to compensatory damages

82
Q

Negligent infliction of emotional distress (NIED) elements ∑

A

NIED requires proof that
(a) D’s negligent conduct placed P in zone of danger of threatened physical impact
(danger of immediate bodily harm) and
(b) the threat of physical impact caused P to suffer emotional distress.

83
Q

P outside the zone of danger can recover for negligent infliction of emotional distress if ∑

A

(a) closely related to victim
(b) present at the scene of injury and
(c) personally observe the injury.

84
Q

Damages requirement for NIED

A

physical symptoms required

85
Q

Damages requirement for people with a special relationship in NIED

A

no threat of physical impact or physical symptoms required

86
Q

Respondent superior

A

Employer is vicariously liable for the negligence of an employee if it occurred within the scope of employment.

87
Q

Employer liability for employee’s intentional torts

A

Employer not liable for intentional torts unless

(1) force inherent to job (e.g. bouncer) OR
(2) EE authorized to act/speak for ER and position provided opportunity for the tort (fraudulent contract as ER’s agent)

88
Q

Detour

A

minor deviation from the scope of employment

Employer still liable

89
Q

Frolic

A

major deviation from the scope of employment

Employer not liable

90
Q

Employee vs. Independent contractor

A

Employee when employer has a right to control the means and methods of employee.

91
Q

Independent contractor—Employers generally not liable for IC’s torts except

A

(1) negligent selection of IC (primary negligence);
(2) vicarious liability for non-delegable duty; or
(3) vicarious liability for IC acting under apparent authority

92
Q

Negligent entrustment

A

A car owner can be directly liable for negligently entrusting vehicle (if D knows or should know of driver’s negligent propensities )

93
Q

Family purpose doctrine

A

A car owner can be vicariously liable for family members driving with permission

94
Q

Owner liability statute

A

A car owner can be vicariously liable for anyone driving with permission

95
Q

Parent direct liability for negligence for children’s conduct

A

Negligent if fails to exercise reasonable care to prevent minor child from intentionally or negligently harming 3rd party if the parent ∑

(a) can control child and
(b) knows/should know the necessity and opportunity for exercising such control

96
Q

Parent vicarious liability for children’s conduct

A

Parent not generally vicariously liable unless child acting as agent or assumed liability

97
Q

Dram shop liability

A

Seller of alcohol directly liable if 3rd party is subsequently injured due to buyer’s intoxication

98
Q

Federal government immunity for torts

A

Immune under FTCA for enumerated torts, discretionary functions, traditional gov activities.

99
Q

Government officials immunity for torts

A

Immunity when performing discretionary functions but not ministerial acts

100
Q

Law enforcement officers immunity for torts

A

Immunity unless intentional torts

101
Q

Public duty rule

A

state/local government not liable to any one citizen for the municipality’s failure to fulfill a duty that owed to public at large, unless special relationship creates a duty

102
Q

Damages: Joint & several liability

A

Each D found liable for single indivisible harm is liable for the entire harm.

103
Q

Damages: Pure several liability

A

Each D liable only for his proportionate share.

104
Q

Damages: Joint tortfeasor’s right to contribution

and exception

A

Tortfeasor who paid more than their fair share can recover excess from other joint tortfeasor.

© not available for intentional tortfeasors

105
Q

Defense: contributory negligence definition

A

Contributory negligence occurs when P fails to exercise reasonable care for her own safety and thereby contributes to her own injury.

P’s negligence must have some way contributed to the cause of the accident

106
Q

Defense: contributory negligence for negligence claims

A

total bar in contributory JX © last chance doctrine.

reduces recovery in comparative JX.

107
Q

Defense: last chance doctrine when P is helpless peril

A

If P is contributorily negligent and in helpless peril, D liable if knew/should have known of P’s peril and could have avoided harming P.

108
Q

Defense: last chance doctrine when P is inattentive/oblivious

A

If P is contributorily negligent and is inattentive/oblivious (in peril but he could escape if he were paying attention), D liable only if actual knowledge of P’s inattention

109
Q

Defense: contributory negligence for strict liability claims

A

not a defense in contributory JX.

reduces recovery in comparative JX.

110
Q

Defense: contributory negligence for intentional torts claims

A

not a defense in both contributory and comparative JX.

111
Q

Defense: assumption of risk for negligence claims

A

total bar in contributory JX.

reduces recovery in comparative JX.

112
Q

Defense: assumption of risk for SL claims

A

total bar in both contributory and comparative JX.

113
Q

Assumption of risk definition

A

arises when P unreasonably and voluntarily proceeds in the face of known, specific risk.

114
Q

Defense: exculpatory clause for negligence claims

Who can contract to disclaim liability for negligence?

A

Generally everyone, unless common carriers, innkeepers, employers

115
Q

Defense: exculpatory clause for negligence claims

Exculpatory clauses in contracts are unenforceable if

A

total bar to recovery in both contributory and comparative JX.

If clause disclaims liability for (1) reckless/wanton misconduct or gross negligence;

(2) gross disparity of bargaining power;
(3) exculpated party offers services of great importance/public necessity;
(4) subject to K defenses; or
(5) against public policy.

116
Q

Damages: pure comparative JX

A

P’s recovery is reduced by P’s percentage fault.

117
Q

Damages: modified comparative JX

A

If P is less at fault than Ds combined, P’s recovery reduced by percentage of fault.

If P is more at fault than Ds combined, P recovers nothing.

118
Q

Damages: modified comparative JX if equally at fault.

A

If P and D are equally at fault, P recovers 50% (minority jurisdiction says P gets nothing)

2022 MBE (18 decks)

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