Torts Flashcards
Which of the following is not an element of a tort?
A - Duty
B - Breach of duty
C - Consideration
D - Injury
C - Consideration (elements of tort are: legal duty, breach of the duty, causal relation between plaintiff’s damage and defendant’s act, and damage - consideration is an element of contract law)
What are the Elements of a Tort?
Elements of a Tort:
- Existence of a Legal Duty = responsibility to other people to act according to the law
- Breach of the Duty = to break or fail to observe the duty
- Casual Relation between Plaintiff’s Damage & Defendant’s Act = connection between the cause and effect
- Damage/Injury = loss or harm that’s the result of injury to a person, property, or reputation, the extent to which the plaintiff was harmed (could be physical harm, monetary loss, or emotional distress) which is different than Damages (award/compensation given to plaintiff who was harmed)
The Burden of Proof in a Tort Case is:
A - Beyond a reasonable doubt
B - Preponderance of the evidence
C - Clear and convincing
D - Conclusive
B - Preponderance of the evidence (beyond a reasonable doubt is for criminal cases)
What is the burden of proof in civil cases (tort cases and contract law cases)?
Burden of Proof in Civil Case (Tort/Contract) = preponderance of the evidence
Burden of Proof in Criminal Case = beyond a reasonable doubt
What is the Eggshell Skull Rule?
A - Used to explain why Humpty Dumpty fell off the wall.
B - The plaintiff must be close enough to the defendant’s negligent act that the plaintiff was at immediate risk of physical harm.
C - A sovereign or state cannot commit a legal wrong and is immune from civil suit.
D - The unexpected frailty of the injured person is not a valid defense to the seriousness of the injury that is caused to them.
The Eggshell Skull Rule is D - The unexpected frailty of the injured person is not a valid defense to the seriousness of the injury that is caused to them.
What is the Eggshell Skull Rule?
Eggshell Skull Rule (aka thin skull rule) = opposite of a defense, the fragility of an injured person is not a valid defense to the seriousness of any injury to that person - it doesn’t matter whether plaintiff’s constitution is like concrete or an eggshell, the tortfeasor’s still responsible for the damage
Four basic causes of action in _______ law are: (1) negligent hiring; (2) negligent retention; (3) negligent supervision; and (4) negligent training.
A - Employment
B - Maritime
C - Product liability
D - Premises liability
A - Employment = all aspects of the employer/employee relationship including cases where an employer’s held legally responsible for tortuous acts of an employee such as: negligent hiring/retention/supervision/training; employees can assert tort claims directly against their employers for may causes of action including discrimination, retaliation, pension issues, workplace safety, unemployment compensation, and harassment
Maritime (aka admiralty law) = governs private maritime businesses and other nautical matters such as shipping on the waters of the world; maritime tort - injury to person/property where admiralty takes jurisdiction because tort occurred in maritime setting
Product Liability = sue manufacturers, distributors, suppliers, retailers and others who make products available to the public for injuries those products cause - plaintiff must prove that product was defective and defect made product unreasonably dangerous; claims may be a manufacturer’s mistake (carelessness in putting product together), defectively designed (Ford Pinto exploding when rear-ended), or the product failed to provide adequate warnings or instructions about how to properly use the product (tobacco companies not warning customers about the dangers of smoking)
Premises Liability = type of personal injury case where injury was caused by some type of unsafe or defective condition on someone’s property - for it to apply: 1. defendant must possess premises/land; 2. plaintiff must be invitee (invited to the premises by possessor as member of the public for purpose of business such as shopper in a store) or licensee (person invited to premises by possessor for purpose other than financial gain such as neighbor dropping by); and 3. there must be negligence (slip and fall, dog bite, and inadequate security are the most common types of premises liability cases)
A person injured by a drunk driver that was over-served at a bar can sue pursuant to:
A - Criminal law
B - Dram shop law
C - Premises liability
D - Social host liability
B - Dram Shop Law = make business liable to anyone injured by the drunken patron
Criminal Law = dram shop laws are associated with DUI accidents or other injuries caused by intoxicated adults or minor but are not criminal cases
Premises Liability = dram shop laws apply to premises such as a bar serving alcohol to adults or minors but are not premises liability cases
Social Host Liability = imposes liability on social host as a result of their serving alcohol to adults or minors - liability is on individuals whereas dram shop law typically applies to businesses
A close family member witnesses or arrives immediately on the scene of an accident where another family member was injured or killed by the defendant’s negligence is called:
A - The impact rule
B - The zone of danger
C - The foreseeability rule
D - A bystander case
D - A bystander case = aka bystander exception, when close family member witnesses or arrives immediately on the scene of an accident where another family member was injured or killed by the defendant’s negligence, the bystander who suffered no physical injury as a result of the defendant’s negligence may sue for NIED
A - The impact rule = requires that something contact or impact the plaintiff as a result of defendant’s negligent act, even if the impact is minor (only followed in a few states - limits liability of people against whom negligent infliction of emotional distress [NIED} claims are made)
B - The zone of danger = requires that plaintiff is close enough to defendant’s negligent act that plaintiff was at immediate risk of physical harm (some states follow - limits liability in NIED claims)
C - The foreseeability rule = defendant must have been able to reasonably predict that their actions could result in the negative consequences experienced by the plaintiff - no requirement that defendant’s negligent conduct involves some form of risk or physical harm (most states follow - limits liability in NIED claims)
What type of liability occurs when there are two or more persons liable for the same tort?
A - Primary Liability
B - Joint and Several Liability
C - Strict Liability
D - Vicarious Liability
B - Joint and Several Liability = 2+ people liable for the same tort; if jointly liable, each liable up to full amount of obligation; if several liability, each liable only for respective obligation; if joint and several liability, plaintiff can recover all damages from any defendant regardless of individual share of liability
A - Primary Liability = direct obligation (unlike secondary liability, where one party assumes the legal liability for the actions of another party - typically applied to copyright matters or intellectual property rights such as patent infringements, can be vicarious liability or contributory infringement)
C - Strict Liability = person is legally responsible for the things that go wrong, even if the person did not intend for the thing to go wrong - they’re strictly liable no matter what the circumstances and must pay compensation for damages even if they’re not at fault; purpose is to be strict and encourage safety & improved standards of prevention to offer general public better protection from the risks involved in particular activities (ex. product liability, owning wild animals, or ultra-hazardous activities like storing explosives or transporting toxic waste)
D - Vicarious Liability = one person’s held liable for the torts of another person, even though that person didn’t commit the harmful act (ex. when employer’s liable for tort of employee committed during course of employment aka respondeat superior meaning “let the master answer”)
Which type of evidence will not be allowed at a tort trial?
A - Employment record
B - Medical record
C - Police report
D - School record
C - Police report - considered hearsay for use at trial (statement that declarant doesn’t make while testifying at current trial/hearing and party offers in evidence to prove truth of the matter asserted in statement), valuable evidence in tort case but can’t be used at trial
A - Employment record - can be obtained through a signed authorization or a subpoena and may include medical, legal, or mental health information that may be valuable to a tort claim
B - Medical record - statements made for medical diagnosis or treatment are exceptions to hearsay; medical records can be obtained through a signed authorization or through a subpoena to the medical care provider
D - School record - can be obtained through a signed authorization or a subpoena and may include medical, legal, or mental health information that may be valuable to a tort claim
Which f the following events could be the basis for a strict liability case:
A - Dog Bite
B - Slip and Fall
C - Negligent Hiring
D - Medical Malpractice
A - Dog Bite is Strict Liability - owner is responsible regardless of the circumstances
B - Slip and Fall is Premises Liability
C - Negligent Hiring is Employment Law
D - Medical Malpractice is a legal cause of action that occurs when a medical professional deviates from standards in the profession and that deviation causes injury to a patient/client - arise out of improper, unskilled, or negligent treatment of a patient by a health care professional
False Imprisonment is:
A - Negligence Tort
B - Intentional Tort
C - Strict Liability Tort
D - Personal Injury Tort
False Imprisonment = confining another person in a bounded area - can be confined in various ways, by physical barriers that leave no room for escape, overpowered by brute strength, or by fraud/deception
B - Intentional Tort = performed on purpose/with intent - person wanted to cause the act
A - Negligence Tort = not on purpose but caused by a lack of reasonable care
C - Strict Liability Tort = person’s responsible regardless of the circumstances
D - Personal Injury Tort = one person causes another person harm by failing to take reasonable precautions or exercise a reasonable level of care - harm’s almost always unintentional, injury to person not property
Which of the following is a defense to a negligence tort?
A - Consent
B - Self-defense
C - Necessity
D - Comparative fault
Defenses to Negligence Torts: assumption of risk, comparative fault/contributory negligence, recreational use statutes, Act of God/Force Majeure, sovereign immunity, statute of limitations, and discovery rule
D - Comparative fault = defense to negligence tort - occurs when plaintiff has, through plaintiff’s own negligence, contributed to the harm suffered by failing to act prudently
A - Consent = defense to intentional tort - used by defendant to negate responsibility for the tort
B - Self-defense = defense to intentional tort - defendants have right to defend themselves from bodily harm aka justifiable defense, defense must be appropriate and proportionate
C - Necessity = defense to intentional tort - gives state or individual the right to take or use the property of another, applies to emergency situations where there wasn’t another alternative to avoid harm, defendant didn’t cause threat of harm, and ultimate damage caused was less than what would’ve happened
Running into a pedestrian because the drive’s speeding is an example of:
A - Product Liability
B - The Lincoln Law
C - Negligence per se
D - Premises Liability
C - Negligence per se - driver violated a statute (speeding) designed to protect against the type of accident/harm caused by such conduct and plaintiff’s someone statute designed to protect
A - Product Liability (defective/not properly labelled for use products)
B - The Lincoln Law (aka the False Claims Act related to Qui Tam lawsuits)
D - Premises Liability (unsafe/defective condition on someone’s property)
