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Things to remember for the Bar > Torts > Flashcards

Torts Flashcards

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MBE flashcards
1
Q

Battery

A

Harmful or offensive contact of another where the defendant intended such harm

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2
Q

Transferred intent

A

D intends to commit a tort but instead commits a different tort, commits the same tort against a differnet person or both

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3
Q

when does transffered intent apply (5)

A

Battery
Assault
False imprisionment
t2land and chatel

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4
Q

what are the 6 intentional torts

A

battery

assault

T2 land

T2 chattel

false imprisonment

IIED

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5
Q

Assault

A

D intends to cause reasonable apprehesion of an imminent battery

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6
Q

Do words alone create assault

A

no

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7
Q

False imprisionment

A

Intentional confinement of P to a bounded area against P’s will caused by D’s act or ommision

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8
Q

What must there be in order for false imprisionment to happen

A

no reasonable means of escape

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9
Q

Exceptio to false imprisonment

A

Shopkeepers privillege

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10
Q

Shopkeepers privillege

A

A shopkeeper (one tasked with safeguarding) may detain a shoplifter for a reasonable period of time, in a reasonable manner (can also be defense to battery) if the shopkeeper has reasonable suspicion to believe that the detained person committed or attempted to steal store property

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11
Q

IIED

A

Extreme and outrageous conduct intended by the defendant that causes serve emotional distress

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12
Q

What damages are required of an IIED

A

actual damages not nominal

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13
Q

what is the only intentional tort that causes damages

A

IIED

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14
Q

For Close family members of a victim of IIED, the D intentionally or reckless cause severe distress and what else needs to happen in order to collect damages

A

and know the D is present

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15
Q

For a 3rd party of a victim of IIED, the D intentionally or reckless cause severe distress

A

bodily harm to the 3P

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16
Q

T2 land

A

intentionally entering the property of another without privilege or consent

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17
Q

Physical invasion for T2land

A

Entry by anything tangible (e.g., bullet, pesticide, person), not light, noise or vibrations

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18
Q

Who is considered an owner for t2land

A

Anyone in possession of land (LL, T, APer), which includes surface, airspace, subterranean space

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19
Q

Why is mistake not a defense for T2land

A

D only needs intent to enter land not intent to tresspass

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20
Q

Are damamges required for t2land

A

no

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21
Q

T2chattel

A

Intentional interference with P’s possessory right to personal property

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22
Q

Conversion

A

subsantial intferference with P’s possesory right to personal property

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23
Q

what can you recover for conversion

A

rental value or FMV at the time of tresspass or conversion

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24
Q

Defenses to Int Torts (6)

A

Consent
Defense of Self, property or others
necessity - public and private

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25
Q

Consent is a defense so long as

A

it does not exceed the scope

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26
Q

Defense of self

A

Δ may use force reasonably believed to be necessary to avoid imminent harm by Π

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27
Q

When does defense of self get messy and when does it apply

A

when there is a duty to retreat and applies where there is a safe way of escape

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28
Q

Where is there no duty to retreat

A

Home

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29
Q

In Defense of property, what type of force is allowed to defend one’s property

A

reasonable force

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30
Q

Defense of others

A

A person may use reasonable force in defense of another when that person believes that the other is in danger of immediate bodily harm. The force used must be proportionate to the threat

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31
Q

When does necessity apply as a defense

A

only in property torts

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32
Q

Public necessity

A

Δ may interfere with Π’s property to protect public from harm (absolute defense)

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33
Q

Private Necessity

When is P liable

When is D liable

A

Δ may protect individual interests if threatened harm substantially greater than Δ’s harm. Δ liable for any harm caused. Π liable for any harm caused preventing Δ’s necessary act

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34
Q

To be liable for negligence, Δ must failed to

A

behave with the level of care that someone of ordinary
prudence would have exercised under the same conditions.

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35
Q

What are the 5 elements of negligence

A

Duty of Care
Standard of care
Breach
Causation
Damages

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36
Q

Duty of care can be proven by which two ways and which one is the marjoirty view

A

Cardozo (Majority)

Andrews

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37
Q

Under the cardozo view who does the D have a duty of care to

A

P is in the forseeable zone of danger

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38
Q

Under the Andrews view who does the D have a duty of care to

A

to everyone

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39
Q

Duty of care rule

A

Δ owes a duty not to subject any foreseeable Π to unreasonable risk of injury. Foreseeability is based on either the andrews or cardozo split

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40
Q

Nonfeasance is when there is no duty owed to take steps to rescue or aid except when there is affrimative duty is created via

A

special realtionships
D conduct creating the peril
D undertaking the action for the P’s benefit
Creating reliance through the D
Contract

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41
Q

What are the special relationships in duty

A

parent-child, common carriers, innkeepers, shopkeepers

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42
Q

Are rescuers foreseeable under the duty of care

A

yes it is per se foreseeable as long as the rescuers behavior was not wanton

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43
Q

When is someone able to recover under a Negligent infliction of emotion distress?

When is Pain and suffering recoverable

A

Through a bystander or a direction action avenue

direct action - Π is owed a duty if Π was in zone of danger + suffered bodily harm from threat of physical impact or emotional distress as result of negligence

Pain and suffering is recoverable under bystander action - Π is owed a duty if Π was present at scene (not in zone of danger) + suffered severe emotional distress + had close relationship with V)

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44
Q

Standard of care

A

Δ owes a duty to act as a reasonably prudent person in same or similar situation (who has Δ’s relevant physical characteristics), absent negligence per se or a special relationship

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45
Q

Negligence per se

A

A statute (including one that provides for criminal penalty) defines the standard if Π is in the class of persons the statute was designed to protect + injury is type of injury statute was designed to protect. An unexcused violation of statute constitutes negligence per se—a breach of duty

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46
Q

What are exceptions to negligence per se

A

Statute may be excused if it would be more dangerous to follow it or compliance is beyond Δ’s control (unforeseeable, incapable)

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47
Q

Childerns standard of care

A

Held to standard of reasonable child of same age, experience, intelligence, unless adult activity

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48
Q

Landowners owe a different non-delegable duty to differnt types of entrants. For a inviteee (someone who enters land to open public with the intent to confer economic benefit), I must exercise

A

reasonable care to prevent injuries: Inspect + make safe dangerous conditions

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49
Q

Landowners owe a different non-delegable duty to differnt types of entrants. For a Licensee (someone who enters land not oepned to public not to confer a economic benefit) I has a

A

Duty to warn of or make safe known dangers

50
Q

Landowners owe a different non-delegable duty to differnt types of entrants. For a tresspasser (someone who enters the land w/o express or implied consent) what is the duty owed to an anticipated tresspasser and a undiscovered tresspasser

A

Anticipated/known trespasser: Duty to warn of or make safe known, artificial, highly dangerous conditions. Cannot use deadly force to defend property

Otherwise no duty to undiscovered trespassers

51
Q

Landowners owe a different non-delegable duty to differnt types of entrants. For a artifical condition, I owes a _____? What happens if the seller sold and vacated a property

A

Duty of reasonable care to entrants and known trespassers

If seller sold and vacated the property, his liability continues only until the buyer has had reasonable opportunity to discover the condition and take precautions

52
Q

Landowners owe a different non-delegable duty to differnt types of entrants. For a LL- T

A

liable for: common areas (lobby), negligent repairs, known hidden defects, reasonable care to discover and repair defects if LL knows T is going to hold property open to general public

53
Q

Attractive Nussiance doctrine

A

Δ has duty to exercise ordinary care and avoid foreseeable risk of harm (warn and make safe) to children caused by artificial conditions on property if: 1) dangerous condition owner is/should be aware of, 2) owner knows/should know children frequent the vicinity, 3) condition likely to cause injury (b/c Π child’s inability to appreciate the risk—doctrine does not apply to a “bright” child), 4) expense of remedying danger is outweighed by risk

54
Q

Professional SOC

Medical SOC

GP SOC

A

Required to possess and exercise the knowledge and skill of a member of the profession in good standing. Medical specialists held to national standard. General practitioners held to local standard

55
Q

Can customs or usage be used to estsblish SOC

A

yes, but the court can find that the entire industry is negligent

56
Q

Breach of duty

A

Duty is breached where Δ’s conduct falls below level required by the applicable standard of care owed to Π

57
Q

What are the 3 ways to calculate breach of duty

A

Hand formula
Negligence per se
Res Ispa

58
Q

Under the Learned Hand Formula, a breach of a duty owed by the defendant can be established if

A

the burden of taking a precaution is less than the probability of the
harm occurring the gravity of the likely harm

59
Q

Under the Res Ipsa Loquitur test, a breach of a duty can be established if there is no direct evidence demonstrating what happened,

A

is one that would normally not occur in the absence of negligence by someone, and the instrument was under the exclusive control of the defendant at the time the accident occurred.

60
Q

what types of casuation do you need to bring up in a negligence issue

A

actual (but for ) and proximate cause

61
Q

But for

A

Π must show more likely than not, but for Δ’s negligence, Π would not have been injured

62
Q

Proximate cause in Negligence

A

cause: Δ is liable for harmful results caused by his acts if they were foreseeable (in any manner for any harm—see eggshell skull rule)

63
Q

what can break the proximate cause chain if you do not foresee the risk

A

superseeding cause

64
Q

Superseeding cause

A

an unforeseeable, intervening cause that breaks the chain of causation and becomes the proximate cause. The more intentional the intervening cause, the more likely it is superseding.

65
Q

Eggshell skull rule

A

Δ takes Π as he finds him; Δ is liable even if extent of damages unforeseeable

66
Q

Damages for negligence

A

Π is entitled to economic damages (e.g., medical expenses), noneconomic damages (e.g., pain, emotional distress), punitive damages (if Δ conduct is reckless or malicious), property damage (reasonable repair cost or FMV)

67
Q

In what instances can you recover for pure economic harm like loss of income

A

NIED or attorney fees

68
Q

Collateral source rule

A

Total damages are not reduced by benefits from other sources, but other Δs can reduce

69
Q

Duty to mitigate can reduce your damage award. What is duty to mitigate

A

Π has a duty to take reasonable steps to mitigate damages (seek treatment)

70
Q

what is the default damage rule in MBE

A

pure compartive negligence

71
Q

pure compartive negligence

A

P’s recovery is reduced by his fault

72
Q

Modified compartive negligence

A

Bars recovery to P if P was more or in a minority of jdx at least as negligent than D

73
Q

Contributory negligence

A

Any fault by Π bars recovery. If Δ had last clear chance to avoid harm, Π can recover fully

74
Q

what is one way to completely bar your recovery or reduce it other than duty to mitigate

A

Assumption of the risk

75
Q

Assumption of the risk

A

Occurs where the plaintiff voluntarily, and unreasonably proceeds in the face of a known risk created by the defendant’s negligence.

76
Q

firefighters rule

A

If professional (including volunteer) rescuer Π is injured by risks inherent in occupation from Δ’s negligence, recovery for negligence is barred (assumed risk as part of job)

77
Q

Strict liability occurs with

A

Wild Animals
Domestic Animals if they had reason to know or should know of the dangerous activity and
Abnormally dangerous activities

78
Q

Abnormally dangerous activities

A

one with a high risk of harm, that is not commonly
found in the community, which has a risk that cannot be eliminated with due care.

79
Q

Defenses to SL

A

contributory negligence, compartive negligence, assumption fo the risk

80
Q

What is the duty associate with product liability

A

Any commercial supplier in distribution chain of the product has an absolute duty to supply safe products to any foreseeable Π (including bystanders). No privity is required between Π and Δ

81
Q

To find liability for a PL, P must show

A

Π must show a type of defect in product when it left Δ’s control (breach of absolute duty)

82
Q

What are the 3 types of defects to show to find liability

A

manufacturing, design or inadequate warnings defect

83
Q

Manufacturing defect is when the product came out

A

more dangerous than intended

84
Q

A manufacturing defect is based on the ordinary consumer expectation test and it is when

A

Product failed to perform as safely as an ordinary consumer would expect. Δ must anticipate reasonable misuse

85
Q

Design deffect

A

the design itself resulted in product not safe for its intended use

86
Q

what two tests do you use for design deffect

A

feasiable alternative and risk utility

87
Q

Feasiable alternative (design deffect)

A

Product could have been made safe w/o serious impact on price or utility

88
Q

Risk utility test (Design defect)

A

Danger of design > utility to society, feasibility of alt designs

89
Q

Inadequate warning defect

A

Product must have clear and complete warnings of dangers that may not be apparent to users.

90
Q

when is a warning not needed for a defect

A

when its obivious

91
Q

Product liability elements

A

duty
liability
Causation -but for and proximate cause
Damages
No known defenses

92
Q

When does the learned intermediary rule apply

A

Manufacturer is relieved of liability if an intermediate handler discovers the defect and knowingly passes it to Π or failed to convey manufacturer warning to Π

93
Q

what are the damages to a Product liability claim

A

physical injury or property damages

94
Q

Defenses to product liability

A

misuse in a unntend and unforseeable way
AOR
Compartive and Contributory negligence
Alteration of the product that was unforeseeable

95
Q

Implied warranty theory protects

A

purchaser, family, household, and guests

96
Q

Implied warranty of merchantability occurs when the merchant is dealing in the kinds of goods and

A

refers to whether the goods are of average acceptable quality and fit for the ordinary purpose the goods are used

97
Q

Implied warranty of fitness for a partitcular purpose is breached by the seller of goods and refers to

A

whether the seller knows or has reason to know the particular purpose the goods are required for and the buyer is relying on the seller’s skill and judgment in selecting the goods

98
Q

Express warranty

A

Δ makes representation affirming a fact or promising to the buyer as to the product that becomes the basis of the bargain. No need to show breach, just that product did not live up to warranty.

99
Q

Defamation must show 4 out of the 6 elements which are

A

defamatory language
of or concering the P
Publication
Damage to the D reputation
Statement was false
Or Fault of the D

100
Q

Defamatory language cannot be

A

oppinions

101
Q

Fault of the D for a public figure requires that the P must show

A

malice (knowledge of falsity of statement or reckless disregard as to truth or falsity)

102
Q

Fault of the D for a private person, public concern

A

must show negligence require falsity and actual injury

103
Q

Fault of the D for a private concern

A

it is enough that they publicized it

104
Q

What are defense to defamation

A

qualified privillege
truth
absoulte privillege

105
Q

Qualified Privillege

A

Comm’n that appears reasonably necessary to protect Δ’s own legitimate interests or is of interest to recipient, e.g., past employer’s reference, reports of public hearings, newsworthy events

106
Q

what is an exception to qualified privillege

A

if the D acted with malice or statement is out of the scope of privillege

107
Q

Absoulte privillege occurs when

A

in a context where there is no privilege: Statements made by legislators (or aides) on floor, between federal executive officials, judicial proceedings, comm’n between spouses

108
Q

Wrongful death

A

Actions based on wrongful death provide monetary relief for injury resulting to the spouse and next of kin (but not to creditors). Recovery is allowed to the extent that the deceased could have recovered in an action had he lived; e.g., decedent’s contributory negligence reduces wrongful death recovery in comparative negligence jx

109
Q

Survival action

A

Cause of action that survives the death of a party, only applicable to injury to property and person, not to personal interests (e.g., defamation, privacy, malicious prosecution) which expire upon death

110
Q

Loss of consortium and services

A

Π spouse may recover against Δ for injuring Π’s spouse and depriving the benefits of the spousal relationship, including the loss of companionship, comfort, society, and sexual relations

111
Q

Interference with contractual relations

A

Δ knew of valid K between Π and 3P + acted with purpose of having K breached or made harder to perform + damages

112
Q

Fraud

A

Fraud requires a showing that the defendant made a false misrepresentation, scienter, an intent to reduce reliance, causation, justifiable reliance and actual economic damages.

113
Q

scienter

A

defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness

114
Q

Intent to reduce reliance

A

The defendant must have intended to induce the plaintiff to act or refrain from acting in reliance on the misrepresentation.

115
Q

Casuation

A

The misrepresentation must have caused the plaintiff to act or to refrain from acting.

116
Q

Justifiable reliance

A

The plaintiff’s reliance must have been justifiable. Further, the plaintiff is under no duty to investigate the truth or falsity of the statement.

117
Q

Actual economic damages

A

The plaintiff must prove actual economic loss to recover.

118
Q

When the D is liable for fraud, what 2 ways can you calculate general damages

A

i) “loss of bargain,” which is the majority rule and (ii) “out of pocket”, the minority rule. Some states allow the plaintiff to elect the measure to be applied to determine damages.

119
Q

Loss of bargin - K based

A

buyer is entitled to the difference between the value of what he was promised and the market value of what he received.

120
Q

Out of pocket - tort based

A

buyer is entitled to the difference between the amount that he paid and the market value of what he received. This measure seeks to compensate the buyer for the loss suffered.

121
Q

Special damages in fraud action

A

plaintiff can also recover special damages that were caused by the defendant, but they must be specially pled. In a contract action, they are referred to as consequential damages, and require certainty, foreseeability at the time of contracting, and must be unavoidable.

Things to remember for the Bar (21 decks)

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