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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

Battery Elements

A

an intentional, harmful or offensive contact, with P person

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2
Q

Harmful or offensive contact

A

contact that offends reasonable sense of personal dignity

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3
Q

battery intent

A

desire to bring about the harm or contact or knowing the harm or contact is substantially likely to occur

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4
Q

battery damages required

A

nominal damages are sufficient

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5
Q

assault elements

A

an intentional act, that causes P to be placed in reasonable apprehension, of an imminent harmful or offensive contact w P person

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6
Q

assault intent

A

for the purpose fo causing such apprehension or with knowledge to a substantial certainty that the apprehension will result

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7
Q

reasonable apprehension

A

P must be aware of D act AND believe D is able to commit the act

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8
Q

false imprisonment elements

A

intentional act, to restrain P to a bounded area with no reasonable means of escape, and P is aware of the confinement or harmed by it

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9
Q

false imprisonment intent

A

purposely bringing about the confinement or knowing the confinement is substantially certain to occur

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10
Q

restraint definition (false imprisonment)

A

physical force or threat

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11
Q

IIED elements

A

intentional or reckless conduct,
that is extreme and outrageous (transcends all bounds of decency),
that causes extreme emotional distress, and
P actually suffers severe emotional distress

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12
Q

IIED reckless definition

A

a deliberate disregard of a high risk that emotional distress will follow

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13
Q

IIED third party requirements

A

all elements of IIED required, and D intentional/reckless infliction of emotional distress is caused to either a member of a person’s immediate family present at the time or any other person present if it results in bodily harm

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14
Q

trespass to land elements

A

D intentionally, either enters land physically or propels object or third-party onto the land

intent to trespass is not required, only intent to be on the land

P must be possessor of the land at the time of the trespass

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15
Q

trespass to land damages recovery

A

P may recover the decrease in value of the property or cost to repair the property - nominal damages are sufficient

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16
Q

trespass to chattels & conversion elements

A

trespass to chattels: D intentionally interferes with personal property of another (damage, preventing use by the owner) and the amount of damage is small

conversion: D intentionally interferes with personal property of another (damage, preventing use) and the damage is substantial (P recovers FMV)

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17
Q

doctrine of transferred intent

A

the intent to harm one party can be transferred when
D intends to commit a tort against one particular person and
either commits a different tort against that person or another person is injured by the same or different torts (applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels)

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18
Q

intentional torts

A

battery, assault, false imprisonment, trespass to land/chattel, conversion

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19
Q

intentional tort defense consent

A

consent may be expressed or implied.

P must have the capacity to consent, may be withdrawn at any time, cannot consent to a crime

implied consent: D can reasonably infer consent based on custom or observable conduct (objective standard)
arises where: participating in an activity where torts are common (contact sports), ordinary contacts of life (brushing on someone in a crowded area)

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20
Q

intentional tort defense privilege

A

conduct that normally would be subject to liability, but is excused under the circumstances
Circumstances constituting privilege: necessity, self-defense/defense of others, defense of property, recapture of chattels, shopkeeper privilege

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21
Q

defense of necessity

A

D is not liable for harm to P property if D intrusion was or reasonably appeared to be necessary to prevent serious harm to a person or property.

applies ONLY to intentional property torts

public necessity - complete defense - when D acts for the public good

private necessity - incomplete defense - when D is protecting his own or a few others interest in property. liable for damage unless the purpose was to help plaintiff

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22
Q

self defense/defense of others

A

D is not liable for harm to P if he reasonably believed P was going to harm him or another AND used reasonable force necessary to protect himself or another.

Min: do not allow this if you are the initial aggressor

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23
Q

defense of property

A

may use reasonable force to defend property; deadly force never allowed

cannot use indirect deadly force, i.e., trap, spring gun, vicious dog, etc., against trespasser

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24
Q

recapture of chattels

A

an owner wrongfully taken chattels may take prompt action and use reasonable, non-deadly force to recover chattels from the wrongdoer
force is deemed unreasonable without first making demand to return the item unless demand is futile or dangerous

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25
Q

shopkeeper privilege

A

shopkeepers may temporarily detain a person reasonably suspected of shoplifting for the purpose of investigation

when a request to remain has been made and refused, reasonable non-deadly force may be used to detain suspect

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26
Q

negligence PF claim elements

A

duty, breach of duty, causation (actual and prox) and damages

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27
Q

affirmative duty to act

A

no general duty to act except if there is a pre-existing relationship b/t parties:

  1. put the person in periol
  2. assumed rescue (only if it increases the risk of harm or harm is suffered b/c of reliance on the person providing help), or
  3. a duty is imposed by law/contract
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28
Q

reasonable person standard

A

every person owes the duty to act as a reasonable prudent person would act under the circumstances
must follow community customs & statutory requirements are relevant but not dispositive (merely evidence of reasonable care)

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29
Q

reasonable person standard disabled

A

phsyical disability - must act as a reasonable person with the disability would act
mental disability - must act as a reasonable person without the disability would act (court does not consider mental disability)

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30
Q

standard of care children

A

must act as a hypothetical child of similar age, experience, and intelligence acting under similar circumstances unless the child is engaging in adult activity

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31
Q

professional standard of care

A

must act with the knowledge and skill of an average member of that profession participating in a similar community
specialist - holding oneself out as a specialist requires acting as an average member of that profession practicing that specialty
medical doctor - held to the degree of care and skill of an average qualified doctor under the national standard

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32
Q

common carrier and inkeeper SOC

A

held to uptmost standard - will be liable for slight negligence to passengers or guests

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33
Q

landowner duty to entrants

A

some states - only requires exercise of reasonable care under circumstances

majority: duty of care is determined by the type of trespasser
- undiscovered: no duty owned
- anticipated trespasser (w/o permission, but expected): reasonable care in operations of the property and must warn or make safe highly dangerous artificial conditions that the landowner knows of
- Licensee (social guest): reasonable care in operations and must warn of or make safe dangerous conditions that are known but not apparent to guest
- invitee (enters for owner benefit, shop, or business): same duty as licensee + duty to make reasonable inspections to find and make safe non-obvious dangerous conditions

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34
Q

attractive nuisance

A

landowner owes a duty to child trespassers to make the premises reasonably safe or warn of hidden dangers on the land where the landowner knows or should know of a dangerous artificial condition likely to cause serious bodily injury, knows or should know children are likely to frequent the area and unlikely to appreciate the risk and the risk of harm outweighs the expense of making it safe
**does not apply if child is engaging in adult activity

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35
Q

landlord duty to maintain or warn of conditions to tenants

A

no duty to maintain the leased premise unless otherwise agreed
landlord must warn of latent defects
–> hedge (not weeds) is artificial dangerous condition and must be maintained so that there are no foreseen injuries resulting from obstruction of view

landlord must make premises safe from criminal acts:

  • common law: no duty to provide safe premises regarding third party criminal acts
  • modern: duty to take reasonable precautions to protect tenant against foreseeable attacks
36
Q

negligence per se

A

elements of duty and breach are established when D breaches a statute and the P can show that the statute purpose is to prevent the type of harm suffered and P is a member of the class of persons intended to be protected

exceptions: compliance with statute is more dangerous than violation OR is impossible

maj: violation of statute establishes conclusive presumption of duty and breach of duty, but P must still show causation and damages for PF case
Min: showing violation is either a rebuttable presumption as to duty and breach or the statutory violation is only PF claim of negligence

37
Q

res ipsa loquitor

A

when breach element is difficult to prove.

plaintiff must show that the injury typically does not occur in absence of negligence, other reasonable causes are sufficiently eliminated by the evidence and the negligence was within the scope of duty D owed

circumstantial evidence doctrine: b/c D is in exclusive control of the instrumentality causing injury, negligence is attributable to D

**does not switch burden or create presumption, only avoids directed verdict

38
Q

Actual causation negligence

A

actual cause - the harm would not have occurred but for the D conduct.

substantial factor test: deemed an actual cause if it is a substantial factor in bringing about the injury, even if multiple causes
if both causes are substantial factors, then they are merged and jointly and severally liable

unascertainable causes: when two acts are negligent, but it is unclear which was actual cause of injury, the burden shifts to each of negligent actors to show their act was not the actual cause
**applies where here are two acts, but we know only one of them caused the injury, but we don’t know which one –> shifts burden to D to show cause

39
Q

proximate cause

A

injury was a foreseeable result of the breach - D is not liable for remote harms cause

Superseding intervening cause: an unforeseeable and intervening act that occurs after the breach that serves to break the causal chain b/t initial wrongful act and ultimate injury so that it becomes a direct immediate cause of injury

indirect cause: intervening force occurs after D act and combines to cause the injury – foreseeable intervening forces do not cut off D liability

intervening causes that are natural reaction to wrongful acts are foreseeable

if the intervening cause resulted in an unexpected injury it is deemed unforeseeable

criminal acts are usually not foreseeable unless D should have anticipated the criminal act or conduct makes criminal act more likely

40
Q

Eggshell P rule

A

D is liable for all harm P suffers as a result of his conduct, even if P suffers from pre-existing mental or physical condition that makes the harm worse than what a normal person might suffer

41
Q

negligence defenses: comparative and contributory negligence

A

pure comparative - P negligence will reduce his recoverable damages by percentage of his fault (apply this unless otherwise stated)

partial comparative - if P is 50% or more at fault, then P claim is barred. if less than 50% at fault, damages are reduced by % of fault

contributory negligence - P claim is barred if he contributed to his injury except where D had the last opportunity to avoid accident or D was reckless

42
Q

negligence defense: assumption of the risk

A

expressly or impliedly voluntarily assumed a known risk

43
Q

NIED

A

D negligence results in close risk of bodily harm to P (must be in zone of danger), negligence causes P severe emotional distress, states are split on whether P has to exhibit some physical manifestation attributable to emotional distress

special NIED claims:

  1. bystander claims - negligence by D, P was present and perceived the negligence, person injured was P close family member (some states req P to be in zone of danger)
  2. pre-existing relationship - there is a pre-existing relationship b/t parties and D negligent act foreseeably causes emotional distress (only allowed in egregious situations/typical for false reporting death, etc.)
44
Q

doctrine of respondent superior

A

an employer is liable for employee negligent acts if the employee was acting within the scope of employment

45
Q

scope of employment - respondent superior

A

employee acts within the scope of employment when performing work assigned by employer or engaging in a course of conduct subject to employers control

time, place, purpose test: to determine the scope of employment, courts analyze whether the conduct is of the kind the employee is employed to perform, occurs substantially within the authorized time and space limits, and is motivated (in whole or part) to serve the employer

intentional torts are generally outside the scope UNLESS specifically authorized, driven by desire to serve employer, or act was result of naturally occurring friction from type of employment

46
Q

employer liability vicarious liability/agent/employee

A

a principal or employer will be liable for an agent’s acts outside of the respondeat superior doctrine if the principal intended the conduct or consequences,
was negligent or reckless in hiring, supervising, training or controlling agent,
negligence occurs from non-delegable duty or
agent had apparent authority, the agent’s actions taken with apparent authority constitute the tort AND the third party reasonably relied on the authority

47
Q

agent v. independent contractor

A

primary focus is whether the principal had the right to control the manner and method in which job was performed
factors: type of work, pay, who supplied equipment/tools, degree of supervision, skill, work benefits, extent of control, length of time employed, characterization of relationship, reason for hiring agent

48
Q

liability for independent contractor negligence

A

an employer/principal is not liable for independent contractor torts except where:
inherently dangerous activities
non-delegable duty owed by principal
estoppel (principal holds out contractor as his agent, third party reasonably relies on contractor’s skill, and third party suffers harm)

49
Q

joint and several liability

A

if multiple D are prox cause of single indivisible harm, then P may recover the entire amount of damages from any D

any D who pays more than his share of the damages may bring action against the other D for contribution

50
Q

indemnification

A

passive tortfeasor can assert its claim against an active tortfeasor to recover the FULL amount it paid or may have to pay to P

51
Q

contribution

A

D may seek contribution from other D if he pays more than his share of liability

the amount recoverable from each D is based on % of fault

52
Q

doctrine of joint enterprise

A

negligence of one D to be imputed to other D if they are engaged in an explicit/implied agreement to engage in tortious conduct

53
Q

doctrine of market share liability

A

all manufacturers are liable for their share of the market

liability results if all D are potential tortfeasors, products are identical and share the same defective qualities, P is unable to identify which D caused injury through no fault of his own, and substantially all the manufacturers of the product are named as D

54
Q

defamation PF claim

A

a false defamatory statement (statement that tends to harm the reputation of another), of and concerning P made by D, publication by D to third party and damages

55
Q

slander

A

oral defamatory statement. must prove special damages unless it is slander per se
slander per se = impugning business integrity or skill, unchastity of unmarried woman, loathsome disease, or crime of moral turpitude

56
Q

libel

A

written defamatory statement - do not need to show special damages unless the statement does not fall within slander per se and defamatory nature is not clear on its face

57
Q

defamation public official/figure

A

must show actual malice (reckless disregard to falsity or knowledge of falsity)

58
Q

private figure speaking about public matter

A

must also show negligence for defamation

59
Q

defenses to defamation

A
  • absolute priviege: complete defense. applies to statements made in judicial proceedings, b/t spouses, exec branch officials, and during legislative proceedings
  • qualified privilege: applies when the statement is conditionally privileged and privilege is not abused (no malice). applies to statements by former/prospective employers (in good faith for legit purpose), in gov’t reports of official proceedings, during testimony in legislative proceedings, in self-defense, and to warn others about danger or harm
60
Q

misappropriation of name or picture

A

occurs when D used P name or likeness for commercial advantage

newsworthy is a defense

61
Q

false light

A

occurs when D causes widespread dissemination of P beliefs, thoughts, or actions, in a false light, that would be highly objectionable to a reasonable person

if public figure or matter of public concern - must show actual malice

62
Q

intrusion of privacy

A

occurs when D intrudes into private affairs of P, P has reasonable expectation of privacy and the intrusion is highly offensive to a reasonable person

63
Q

public disclosure of private facts

A

occurs when D caused widespread dissemination of truthful private information that is highly objectionable to a reasonable person

newsworthiness is a defense unless actual malice is present

64
Q

intentional inference with business relations

A

must show there was a k or business expectancy, D knew of k or expectancy, D intentionally induced the party to breach the k or terminate relationship, breach occurred, and P suffered damages

65
Q

defenses to intentional interference with business relations

A

legit competitive activity
giving truthful information
having a financial interest in the party that breached or terminated
honestly giving requested advice, usually in a special relationship

66
Q

fraud

A

misrepresentation of material fact, knew the statement was false or should have known, intent to induce P, actual and reasonable reliance by P and damages

67
Q

negligent misrepresentation

A

a misrepresentation supplied for the guidance of others in a business transaction, D knew or should have known the information was supplied to guide business transaction, D was negligent in obtaining or communicating the false information, actual and reasonable reliance by P, and the false information prox cause damages

68
Q

duty to disclose arises where

A

fid relationship
necessary to correct an earlier mistake
active concealment occurs or
seller of real property knows material facts that affect value of property that buyer is unaware of and cannot reasonably discover

69
Q

public nuisance

A

an unreasonable interference with health, safety, or property rights of the community (considerable amount of people or neighborhood)
must show actual damages

70
Q

private nuisance

A

substantial and unreasonable interference with a person’s use or enjoyment of property
must be offensive, inconvenient, or annoying to a reasonable person

71
Q

defenses to nuisance

A

coming to the nuisance

statutory compliance

72
Q

strict liability animals

A

domestic animals - the owner is not strictly liable unless he has knowledge of the animals vicious propensities
wild animals - owner is subject to strict liability for harm caused regardless of safety precautions taken
animal owners are strictly liable for the trespass and resulting property damages caused by animal if reasonably foreseeable

73
Q

strict liability abnormally dangerous activity

A

activity that is not of common usage in the community and creates a foreseeable and highly significant risk of physical harm even where reasonable care is exercised

74
Q

strict products liability

A

a commercial supplier is strictly liable for any harm caused by defective product.

elements:
product was defective when it left hands of D (manufacturing defect, design defect, or failure to warn)
product was not altered when reached P
caused an injury to P when it was being used in the intended or foreseeable manner and
D is commercial supplier who routinely deals in goods of this type

there are situations where misuse can be foreseeable and not break causation

intermediaries negligence is considered foreseeable and does not break causal chain

75
Q

manufacturing defect

A

when the product differs from the intended design and is more dangerous than if made properly

76
Q

design defect

A

exists if the product can be made safer, more practical, and at similar cost
trier of fact should balance the alternative designs vs. risk to consumer

77
Q

failure to warn

A

requires that P was not warned of risk that is not obvious to ordinary user, but known to the manufacturer or designer

warning must be proportionate to risk

78
Q

commercial supplier

A

any person or entity engaged in the business of selling goods of the type

causal sellers and service providers are not commercial suppliers

79
Q

damages strict product liability

A

recovery for personal injury and property damage

recovery solely for economic loss is not allowed

80
Q

product liability - negligence duty

A

commercial suppliers owe a duty to all foreseeable users and must act as a reasonably prudent supplier would for the type of product

**retailers and wholesalers establish due care by a cursory inspection of the product

requires:
duty of care (each supplier in stream of commerce owes duty of care to all foreseeable users that the product is safe for its use)
breach of duty (violation of statute is conclusive on breach/retailers & suppliers satisfy this by cursory inspection of product)
causation
damages (must show physical injury)

81
Q

product liability breach of warranty

A

liability can occur based on express or implied warranty

damages for breach - personal, property, economic
disclaimer of warranty - usually not effective in personal injury action

82
Q

implied warranty of merchantability

A

requires goods sold by merchant (person dealing in goods of the kind) must be fit for their ordinary purpose

83
Q

implied warranty of fitness for particular purpose

A

arises where the seller knows or has reason to know of the buyers particular purpose for the goods and buyer relies on seller’s skill or judgment to select/furnish suitable goods

breach occurs where gods are not fit for the purpose

84
Q

last clear chance doctrine

A

P can rebut D contributory negligence defense by proving D had last clear chance to avoid injury causing accident

**only applies where contributory negligence is raised as defense

85
Q

rescuer exception to “foreseeable P”

A

if D puts himself or another in danger, he can be held liable for rescuer injuries - it is foreseeable that danger invites rescue

there is no duty to rescue, but if your actions cause the situation, you must assist

86
Q

dram shop act

A

common law prohibits liability for over serving patrons and subsequent negligence caused by over serving patrons, but states who have dram shop acts impose liability

Bar Exam (17 decks)

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