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CA BAR SLAP DOWNS > Torts > Flashcards

Torts Flashcards

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1
Q

Negligence Prima Facie Case

A

In order to prevail on a claim for negligence, a plaintiff must show duty, breach, causation (actual and proximate), and damages

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2
Q

Duty

A

A person owes a duty to act as a reasonable prudent person would in the same or similar circumstances.

Maj: Cardozo foreseeable in zone of danger

Min: Andrews everyone

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3
Q

Duty - Standard of Care - Statutory

A

If a statutory standard is applicable, it must be followed to satisfy one’s duty

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4
Q

Actual Cause

A

Show defendant’s conduct was the but-for cause of injury

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5
Q

Proximate Cause

A

Show that injury was foreseeable in order to recover

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6
Q

Damages

A

Plaintiff must show actual damages to recover

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7
Q

Vicarious Liability - Respondeat Superior

A

An employer is liable for the negligence of their employees for all acts committed in the course and scope of their employment

The employee is under direct supervision and control of his employer

Employers are not responsible for the torts or negligence of independent contractors unless the IC was negligently hired or the duty he performed was nondelegable

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8
Q

Contribution and Indemnity

A

Vicariously liable employers can sue employees for reimbursement due to employee’s own actual negligence

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9
Q

Libel

A

Published or written defamation

Truth is a defense

Damages are presumed

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10
Q

Defamation

A

Defamation involves making untrue statements about a person or entity to the public

Two types: libel (published or written) and slander (spoken)

Damages need not be proven for slander but must be proven for libel

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11
Q

Defamation for Public Figure

A

Public figures must prove malicious intent on the part of defendant for claim

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12
Q

Private Nuisance

A

Defendant is continuously, substantially (reasonable), and unreasonably interfering with the plaintiff’s use and enjoyment of her property

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13
Q

Private Nuisance Defense - unusually sensitive

A

Plaintiff cannot be unreasonably sensitive

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14
Q

Public Nuisance

A

Defendant’s actions are causing health and safety concerns to citizens

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15
Q

Public Nuisance Defense - Damages Not Unique

A

Private citizens that bring public nuisance claims have to prove that their damages are unique compared to the rest of the public

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16
Q

Intentional Trespass

A

Requires a plaintiff to show that the defendant intended to intrude onto someone else’s property and damages. Can be done by defendant himself or extension of his person

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17
Q

Negligent Trespass

A

Defendant entered onto someone else’s property through recklessness or negligence (duty, breach, causation, damages)

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18
Q

Defenses to Trespass

A

Private Necessity: emergency situation and are attempting to save own lives in the process (only liable for nominal damages)

Public Necessity: if the public is in an imminent emergency situation (not liable for any damages)

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19
Q

Assault

A

Intentional act that causes apprehension of fear of an imminent harmful for offensive contact to another

Can be shown by volitional act y the defendant

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20
Q

Battery

A

An intentional or offensive touching of another or another’s person without consent

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21
Q

Trespass to Land

A

TPL is the unlawful entry onto the land of another without consent

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22
Q

Vicarious Liability - parent/child

A

Liability for third parties exists if the parent has known of a child’s behavior and fails to prevent their behavior

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23
Q

Trespass to Chattel

A

TTC is the trespassory taking or damaging of the personal property of another without consent

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24
Q

Defense of Others

A

Defendant is permitted to use force reasonably necessary under the circumstances to defend another person from harm

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25
Q

Transferred Intent

A

TI for tort applies when a person intends to commit a tort against a specific person but commits a tort against another person

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26
Q

Private Nuisance

A

A substantial and unreasonable interference with the plaintiff’s use and enjoyment of their property. Whether a nuisance is unreasonable is looked at from the prospective of an average member of the community, and particular uses are not considered

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27
Q

Public Nuisance

A

A public nuisance is an unreasonable interference with the health, safety, and wellness of the community. To sue for a claim of public nuisance, the plaintiff must have suffered a unique harm that is different than the communities harm generally

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28
Q

Coming to the nuisance

A

When someone comes to the nuisance (moves into the neighborhood) for the purpose of suing, this is a valid defense for nuisance

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29
Q

Trespass to Land

A

A trespass to land occurs when someone intentionally intrudes on the land of another. The intrusion can be physical or with some type of object

Causes damages

30
Q

Negligence per se

A

A standard of care and a breach of that standard may be imposed in a state statute when the statute identifies a class of plaintiffs intended to be protected by the statute. Therefore, if the plaintiff identified under the statute suffers the type of harm that is identifiable in the statute, then the defendant will have breached his duty to other drivers

Protected Person

Protected Injury

Conclusion

Then go into negligence analysis

31
Q

Proximate Cause/Superceding Cause

A

Argue under proximate cause

32
Q

Joint tortfeasors to plaintiffs harm

A

A plaintiff who brings suit against 2 tortfeasors and claims that the cause of harm was because of both of them, can potentially hold both of them jointly and severally liable

33
Q

Defense: Contributory

A

A plaintiff will be barred to recover from a defendant under negligence if any negligence on the part of the plaintiff contributed to the accident

34
Q

Defense: Comparative Negligence

A

In a comparative negligence jurisdiction, the plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the plaintiff’s full damages are reduced by the proportion that the plaintiff’s own negligence contributed to the injury.

Partial: A plaintiff will be barred from recovery if the court determines that the plaintiff was 51% at fault or more. Less than 51%, he can recover

Pure: A plaintiff and defendant’s recovery for negligence will be apportioned by % of fault

35
Q

Defense: Assumption of the Risk

A

A plaintiff will be barred to recover under negligence if the plaintiff consented to the defendant’s conduct that led to the harm

36
Q

Standard of Care: utility company

A

similar situated companies in the industry with respects to custom

37
Q

Breach: Learned Hand

A

Under the learned hand formula, if the gravity of the harm is outweighed by the defendant’s failure to remedy the risk of danger and the burden to pay to remedy the cost is slight, then a defendant may be liable

38
Q

Joint and Several Liability/Contribution

A

Under the majority rule, a P could collect from either defendant and then the co-defendant can seek contribution from the non paying defendant

Talk about indemnification

39
Q

Battery

A

A battery is a harmful or offensive touching of another

40
Q

Strict Liability - Wild Animal

A

Persons housing wild animals are strictly liable for the harms that occur as a result of the animal hurting someone in the capacity one may reasonably expect to be harmed by the animal

Domestic animals will not hold the party SL unless it is known by the owner that the animal has propensity to cause harm (one-bite rule)

41
Q

Invitee/Licensee

A

Invitee: duty to visitors of property to remove any defects that may cause harm

Licensee: duty to patrons to find defects and remove any that may cause harm

42
Q

NIED

A

To establish NIED, one must show that there was negligence and that there was a severe emotional anguish that manifested itself in a physical ailment. No physical ailment = no recovery unless 3P was close relative

43
Q

IIED

A

Extreme and Outrageous Conduct (exceeds normal or commonly understood bounds of decency)

Intent

Causation

Severe Emotional Distress

44
Q

Defamation

A

Defamatory Statement (reputation in community)

Concerning the P

Published to 3P (Libel-written vs Slander-spoken)

Capable of understanding the statement to be defamatory in relation to the defamed

Causation

Damages

45
Q

Defamation for Public Figures

A

Add Malice

Acted in reckless disregard for the truth of falsity of the statement

46
Q

Remedies must be…

A 
FUCC
Foreseeable
Unavoidable
Certain
Causal

Duty to mitigate

47
Q

Punitive

A

In tort cases, punitive damages may be awarded where a tortfeasor’s conduct is willful and wanton

48
Q

Sovereign Immunity

A

At CL, a state sovereign could not be held liable for the torts of its agents or itself. However, most jurisdictions have passed statutes that waive SI for negligence actions. Thus, _____ can be held liable for its torts in most jurisdictions, subject to damage caps in some jurisdictions

49
Q

Respondeat Superior

A

Allows a P to hold a principal responsible for the torts of its agents so long as the tort was committed within the scope of the agent’s employment

Principals are not liable for torts committed by independent contractors unless the principal owed a duty that cannot be contracted out

50
Q

Independent contractor vs employee

A

To determine, courts will look at:

business relationship and k between

whether state had control over the manner and means in which x performed

whether job performance provided by C was the kind of performance typically performed by an independent contractor

whether the parties had thought they were in an employee-employer relationship

whether the job performed included a duty that could not be delegated

51
Q

Duty to protect 3P tortfeasors

A

Generally no duty to protect, however patients may be protected

52
Q

Premises Liability

A

Under the traditional appraoach, a person on a premises is categorized as a trespasser, licensee, or invitee

Invitee - duty to ensure the premises was safe

However, in CA, abolished categorizations and just hold that a landowner or possessor of real property owe a duty of reasonable care to everybody except flagrant trespassers

53
Q

Inn Keeper/Common Carrier Duty

A

At CL, certain businesses that catered to providing transport and lodging services owed a heightened duty of care

Includes common-carrier and inns

UTMOST CARE

54
Q

Defense: Emergency Situation

A

In the event of an emergency, a party will be judged by the reasonable standard a prudent person would exercise

55
Q

DELETE

A

Learned Hand analysis: a aprty has acted negligently if the benefits from acting outweigh the potential costs

56
Q

DELETE

A

actual (but-for)

proximate - discuss superseding intervening cause (cuts liability off of breach) “chain of causation”

57
Q

RPP for Companies

A

Reasonably Prudent electrical company etc

58
Q

Cost-Benefit Approach

A

Modern trend instead of RPP w companies

The cost-benefit analysis requires looking at the likelihood and severity of the harm and the defendant’s burden in avoiding the harm

59
Q

Strict Liability - Abnormally Dangerous Activity

A

An ADA is an activity that creates a substantially high risk of harm even though reasonable care is exercised, and it is not typically engaged in by the community

60
Q

Strict Liability - Products

General Rule

A

A defendant who is in the business of selling a commercial product may be strictly liable for a defective product causing foreseeable injuries to a plaintiff. To establish a prima facie case for strict products liability, the plaintiff must prove that the defendant had an absolute duty as a commercial seller of the product, that the defendant produced or sold a defective product, the product was the actual and proximate cause of the plaintiff’s injuries, and damages.

61
Q

Strict Liability - Products: Absolute Duty

A

A defendant who is in the business of selling a commercial product, including manufacturers, distributors, and retail sellers, is under an absolute duty to provide a safe product.

62
Q

Strict Products Liability - Products: Defective Product

A

A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (i.e., failure to warn) that make the product unreasonably dangerous.

63
Q

SPL: Design Defect

Consumer Expectations and Risk-Utility

A

Depending on the jurisdiction, courts usually apply either the consumer-expectation test or the risk-utility test (or a hybrid of both tests) to determine whether a design defect exists.

Under the consumer-expectation test, the plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer.

Under the risk-utility test, the plaintiff must prove that a reasonable alternative design that is economically feasible was available to the defendant, and failure to use that design rendered the product unreasonably dangerous.

64
Q

SPL: Causation

Actual and Proximate

A

To be the actual cause of plaintiff’s injury, the product must have been defective when it left the defendant’s control.

To be the proximate cause of plaintiff’s injury, the injury must have occurred when the defective product was being used in an intended or reasonably foreseeable way.

65
Q

SPL: Damages

A

The plaintiff must also suffer personal injury or property damage. This element is met because….

66
Q

Negligence case - SPL duty

A

The commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable plaintiff (i.e., a purchaser, user, or bystander). Here, Consumer was a purchaser and a user of the product. Thus, Manufacturer and Retailer owe her a duty of reasonable care.

67
Q

Negligence case - SPL breach

A

Failure to exercise reasonable care in the inspection or sale of a product constitutes breach. The plaintiff must establish not only that the defect exists, but that the defendant’s lack of reasonable care led to the plaintiff’s harm.

68
Q

SPL/Negligence: Consumer Misuse

A

As discussed above, strict liability attaches when the plaintiff is making foreseeable use of the product.

Consumer’s misuse of the product does not relieve Manufacturer of its duty towards her.

69
Q

SPL Contributory Negligence

A

In a contributory negligence jurisdiction, the plaintiff’s negligence is generally not a defense to a strict products liability action when the plaintiff negligently failed to discover the defect or misused the product in a reasonably foreseeable way.

70
Q

Defense: Contributory Negligence

A

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

CA BAR SLAP DOWNS (16 decks)

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