Torts Flashcards
When is someone’s action considered intentional
If they act with the PURPOSE of causing the consequences of the act OR
If they act KNOWING the consequences are substantially certain to occur
Trespass to Chattel elements
- taking someone’s personal property
-or using/interfering with someone’s personal property
Causing actual harm to chattel or deprivation for substantial amt of time
Intentional misrepresentation elements
- misrepresentation of a material fact or failure to disclosure a material fact when you had a duty to do so
- knew representation was false or acted with reckless disregard to truthfulness
- intended to induce P to act or refrain from acting based on misrepresentation
- P relied on misrepresentation
P MUST have actual damages
For Trespass, do you need to know the land belongs to someone else
No, just need the intent to enter the land
When can you use force in self defense
Only if reasonably believe the force is NECESSARY and PROPORTIONATE to the force P is intentionally inflicting or about to inflict
What is the last clear chance doctrine and in what jurisdictions can it be used?
Only in contributory negligence jurisdictons. Says that P may mitigate the consequences of their own negligence if they can prove D had a LAST CLEAR CHANCE To avoid injuring P but failed to do so
What do Good Samaritan statutes do
Protect medical professionals who voluntarily offer aid from liability for ordinary negligence but not gross negligence
What standard for care applies to a professional
Same skill, knowledge, care as a practitioner in that community
Elements of negligence per se
- violation of a statute
- Harm is the type the statute was intended to protect against
- P is within class of people the statute is meant to protect
D’s violation of statute= proximate cause of P’s harm
What test is used if two or more Defendants contributed to P’s injury
Substantial factor test- each d”s action alone would have been a factual cause of injury. So was D’s action a substantial factor?
what is a superseding cause
An intervening event that breaks the chain of proximate cause
To be entitled for damages for NEGLIGENCE, what is critical for P to prove
ACTUAL physical harm, bodily harm, property damage
What is joint and several liability
Default on MBE, if there are multiple parties found liable for one harm, any of them can be forced to pay for entire judgment
what is the imminence requirement for assault
Threatened bodily harm/offensive contact must be imminent. Threats of future harm does not count
What is the general standard of care to apply in negligence
Reasonable prudent person. If a person has physical disability like blindness, that is taken into acct
For defamation, when is proof of actual damages required
For slander. But libel and slander per se do NOT require actual damages, presumed damages are enough
When is a domestic animal owner liable in strict liability
If owner knows their pet is dangerous and harm results from those dangerous propensities
What are the three types of product defect actions
1) manufacturing defect
2) design defect
3) Failure to warn defect
What would constitute a manufacturing defect
A deviation from what the manufacturer intended that causes harm
What would constitute a design defect- what two test are used
a shitty design. 2 tests
1) consumer expectation test- unreasonable dangerous design beyond expectation of ordinary user
2) Risk utility test- reasonably alternative design was available that was economically feasible and failure to use that design made the product dangerous
What is a failure to warn defect
foreseeable risk of harm to the user of a product could have been reduced by a better warning
How do you prove causation for strict product liability
Product must have been defective when it left D’s control and defect was actual cause of harm.
Defect occurred when product was used as intended or in reasonably foreseeable way
3 torts where transferred intent applies
Battery, assault, false imprisonment
what is the learned intermediary rule
the manufacturer of a RX satisfies its duty to warn consumers by informing DOCTORS of any problems with the drug or device
what is the majority rule for proximate cause
D is liable for reasonably foreseeable consequences resulting from his action. The type of harm MUST be foreseeable but the extent of harm does NOT need to be foreseeable.
Types of damages allowed for strict liability claims
personal injury or property damage. NO claims for pure economic loss
What is the eggshell plaintiff rule
D is liable for the full extent of P’s injuries that may increase b/c of P’s preexisting physical,/mental condition or vulnerability even if unusual or unforseeable
What type of jurisdiction should be assumed for the MBE
Pure comparative negligence
Which would be a better answer- eliminating an element of a tort or an affirmative defense to a tort?
eliminating an element of a tort
What type of conduct is required to prove Intentional infliction of Emotional distress
EXTREME AND OUTRAGEOUS conduct
what is the measure of damages for trespass to chattels vs conversion
Trespass to chattell= repair cost
Conversion= full value of item
Does how much reasonable care you take matter for a strict liability claim?
NO- only for negligence
In strict liability, are service professionals (dentists) liable for a defective product
NO
For strict liability and wild animals, would strict liability cover injuries from fear of the animal?
Yes
For PURE SEVERAL liability, what can you be sued for
Only the damages you caused. You also can’t collect from any other defendant
For shopkeeper’s privilege to apply, where must detainment occur
In immediate vicinity of merchant’s premises
For any NIED claim, what must you prove
must have physical manifestation of emotional distress. (don’t need to prove this for the special circumstances one)
what is a guest statute
Prevents NON-PAYING auto passengers from suing the driver when the passenger is hurt as a result of simple (NOT GROSS) negligence
Elements of attractive nuisance
1- landowners knows of condition where kids are likely to trespass
2- condition poses unreasonable risk of death, GBI to kids
3- kids can’t reasonable appreciate the risk
4- risk> utility and burden of eliminating risk
under doctrine of respondent superior, when is the employer vicariously liable for the tortious conduct of employee
if the conduct is within scope of employment
and usually not for intentional torts except if use of reasonable force is inherent in employee’s job or employee is authorized by employer to act to commit intentional torts
what is the modern approach regarding duty of landowners to people coming on land
reasonable care to all land entrants regardless of status
For INVOLUNTARY/forced drug or alcohol use, what standard of care do you use
reasonable std of care of person with same level of intoxication
For VOLUNTARY drug/alcohol use, what std of care do you use
RPP
What type of negligence jurisdiction does this language describe “Traditional defenses based on P’s conduct apply”
Contributory negligence
what are two elements of duty in negligence
- Who is owed a duty
- std of care owed
Who is owed a duty
all foreseeable plaintiffs
what is the default standard of care
RPP under the circumstances
what is landowners duty to trespassors
refrain from willful, wanton, reckless conduct
what is landowner’s duty to invitees
people there for business reasons- to confer economic benefit. Duty to INSPECT and discover dangerous conditions, duty to make safe all dangers the landowner knows of or should know of.
What is duty to licensees
Social guests. duty to warn or make safe all known/concealed dangers
define breach for negligence- how to start negligence essay
D failed to meet applicable std of care
In any negligence action, P must show D owned P a duty to conform his conduct to avoid unnecessary risk of harm to others, D’s conduct fell below applicable std of care and that D’s conduct was cause in fact and proximate cause of P’s injuries
elements of Res Ipsa
when there is no direct evidence of Ds negligence, allows trier of fact to infer negligent conduct
1- type of accident w/n occur w/o negligence
2- injury caused by thing in exclusive control of D
3- injury not due to P’s own actions
what two things must you address for causation
- actual cause- but, for
- Proximate causation- forseeability
What are the various tests for actual causation
- but, for test- but for D’s action, p’s injury would not have occurred
- substantial factor test- when multiple causes of P’s harm and each alone would cause injury. Ask if D’s action is substantial cause of injury
- alternative causation- if multiple D’s and don’t know who harmed P- burden shifts to each D to prove they were not the cause
define proximate cause
P must show the injury was the foreseeable result of D’s conduct.
An unforeseeable intervening act after D’s act will cut off liability
Contributory negligence
If P is at all liable, it bars his recovery
pure comparative negligence
P’s recovery is diminished by % he is at fault.
If bar exam does not specify otherwise, assume pure comparative negligence
modified comparative negligence
majority rule. P’s recovery is barred if p is >50% at fault
defenses to strict product Liability
contributory fault
assumption of risk
What is an express warranty
promise D made about product if product does not meet warranty, D has breached and P can get damages
what is the implied warranty of merchantability
product that is sold is implied to be reasonably useful and safe
what is the implied warranty of fitness for a specific purpose
When a sell guarantees an items is fit for that purpose
elements of defamation
Defamatory (false) statement
of or pertaining to P
Publication
damages to P’s reputation
what is slander per se
When it is about your job, disease, crimes or unchaste behavior.
Can presume damages
Constitutional defenses to defamation
public figures/officials- must prove actual malice- knew statement was false or reckless disregard to whether it was true or false.
Other defenses to defamation
truth
consent
priviledges
elements of false imprisonment
intentional confinement or restraint for any amt of time
must be no reasonable means of safe escape
p knows of or was hurt by confinement.
if a D uses deadly force, is there a duty to retreat in most jurisdictions?
No, even if you can do so safely
what is a private nuisance
An activity that substantially, unreasonably interferes with use/enjoyment of land. Must be intentional, negligent, reckless or result of abnormally dangerous conduct.
$ damages= typical remedy
who does strict liability apply to
Only commercial sellers/manufacturers, distributors
what must you have to show IIED for a public figure
outrageous, extreme conduct–> severe emotional distress PLUS
PUBLICATION- of a false statement made with actual malice
types of extreme outrageous conduct for IIED
FEAR:
F- flagrant indecency
E- exploiting known and special vulnerability
A- abusing authority
R- repeated harassment
in a PURE COMPARATIVE jx, man and woman are both negligent. Man has 1,000,000 in damages. Man is 30% negligent, woman is 70%. How much can man recover
700,000. b/c you have to subtract his percent of negligence from the total
For trespass to chattel, if someone takes and USES the item what must you prove
Actual harm to Chattel or substantial loss of use of chattel or bodily harm to P
3 ways someone can recover under Negligent infliction of emotional damage
- zone of danger
- bystander
- special situations
Explain zone of danger for Negligent infliction of emotional distress
P is in zone of danger from a negligent act
P feared imminent bodily harm
P had serious emotional distress as a result- with physical manifestations of emotional distress
Explain bystander recovery for Negligent infliction of emotional distress
D negligently injured P’s close relative
P saw the event
Seeing the event gave p serious emotional distress with physical manifestations of emotional distress
Explain liability under special situations theory of Negligent Infliction of emotional distress
D acted negligently by either
- erroneous announcement of death/serious illness
-mishandling corpse/body remains of loved one
-contaminated food with repulsive foreign object
P suffered emotional distress as a result.
No physical manifestation of emotional distress is necessary.
first way to rebut claim of negligence
Show D used reasonable care.
For IIED- what must the conduct be?
“exceeds the limits of human decency”- extreme outrageous conduct
For public nuisance what kind of suffering must the P prove
suffering different from the public at large
Does the eggshell plaintiff rule apply to strict products liability claims?
Yes- D is liable for the full extent of P’s injuries due to P’s preexisting physical, mental condition or vulnerability even if unusual or unforeseeable.
For strict liability, the person using the product must have used it in ____ way
Reasonably foreseeable
for plane crash or med malpractice, what should you think of as cause of action
Res ipsa-
Key element- item that caused harm must have been under defendant’s exclusive control
For false imprisonment- would the D’s use of moral pressure or future threats constitute confinement
NO
Can the press broadcast an entire entertainment event?
No, because broadcasting the entire entertainment event w/o the performer’s permission would violated the entertainer of the commercial value of his performance
does a mistaken believe that the item is yours absolve liability for conversion?
NO
if builder did NOT follow building code… (one designed to prevent this type of damage) but damage would have been the same even if he did follow the building code…
Not negligent b/c not the but for cause of the damage
What is the doctrine of alternative liability
if there are multiple tortfeasors and it is PROVEN that they all engaged in tortious conduct but you can’t prove which one caused P’s injury then burden falls on each D to prove it wasn’t them.
BUT it must be prove they ALL DID SOMETHING BAD
Duty of care to known/anticipated trespassors
landowners owe a duty to discovered or anticipated trespassers to protect them from concealed, dangerous, artificial conditions. I
is an auctioneer subject to strict liability for defective product he sells
No- b/c not in the business of selling that product
what not to forget for negligence per se
Even if it is the type of harm the statute is designed to protect and the class of people the statute was trying to protect, you still need to prove causation and harm. Violation of the statute just gets you duty and breach)
The only situation where a duty to inspect the property is imposed
FOr invitees- one that enters a store or public place
Are parents vicariously liable for the acts of their kids
NO- but they may be directly liable for their own negligence for failure to supervise
For IIED does the P need to show physical symptoms?
NO- just SEVERE emotional distress
actual malice std for defamation of public figures
D knew it was false or acted with reckless disregard as to whether it was true or false
4 slander per se categories where damages are presumed
- slander that the P committed a crime
- Slander about his job
- slander saying he has a horrible disease
- slander that the P is unchaste
Modified comparative negligence - if P’s negligence exceeds what?
If P’s negligence EXCEEDS 50% he can’t recover. If equal to 50% HE CAN
If a person knowingly or purposely trespasses, do they need to harm the land? What about if they negligently trespass?
If they have intent to trespass, they do not need to harm the land to be liable for intentional trespass.
If they negligently trespass, they must harm the land to be liable for damages.
For NIED claims, what not to forget
It is a negligence action- so still need to prove duty of care, etc…
A claim for purely economic loss (e.g., loss of business) is not allowed under a
strict products liability theory
for strict liability, do products still have to be used in reasonably foreseeable way
YES
key part of attractive nuisance
Risk of harm to kids is greater than the burden of eliminating the danger and the landowner fails to exercise reasonable care to protect kids from the harm
to make a claim for public nuisance, do you need an ownership in land
No. Just for private nuisance
when can you get punitive damages for intentional torts
with willful and wanton conduct
key attractive nuisances for kids
trampolines, treehouses, swimming pools
for attractive nuisance- key issue
landowner must know or have reason to know that KIDS ARE LIKELY TO TRESPASS
under negligence theory, can you sue for purely economic damages
NO
for pure comparative fault, do you get a separate jury instruction on assumption of the risk
NO b/c it folds into comparative fault rules
defamation can not be for…
a DEAD PERSON. You can’t defame a dead person
for assault the threat of harm must be what?
IMMINENT
Negligence per se- harm must be …
manner of harm the statute is stated for
a contract is voidable for misrepresentation even if
the seller is unaware of the misrepresentation. I.e odometer was rolled back by person the seller bought the car from
just need the misrepresentation to be material, it induced assent to the contract, and the other party justifiable relied on it
what is an invitee and duty to them
invitee is someone going onto the property for business purposes- person going into church or a store.
Duty to inspect for unknown dangers and make safe
a social guest at your house would be considered what
A licensee.
Just have a duty to warn of known dangers. No duty to inspect
For Intentional infliction of emotional distress, can you recover if the harm was to a close family member
YEs but not to a stranger
standard of care for person with intellectual disabilites
RPP
Can it be battery if you are unconscious or hypnotized and not aware of the contact
YES
firefighter’s rule
Police or fire can’t recover from negligence that comes with the job, I.e someone speeding and bales of hay flying off their car into police man causing police man to crash
if you build a garage that goes onto your neighbor’s property but then you sell your house, are you still liable for trespass after you sold the house
YES. and it doesn’t matter whether or not you knew the property was your neighbors
Can you have transferred intent for trespass to chattel
Yes but only if there are actual damages
When is the only time punitive damages are allowed
For willful or wanton misconduct
Punitive damages are NEVER allowed in what type of cases
Negligence cases
If a car negligently hits a woman and then at hospital she refuses blood transfusion, what damages is P liable for
Only for damages that P could have avoided-up to point where d refuses transfusion
What is the burden of proof in civil torts case
Preponderance of evidence
What is a dram shop law
A commercial seller (bar) of liquor is under a duty to NOT sell liquour to VISIBLY intoxicated people.
If nobody is VISIBLY intoxicated when leaving the bar, cant sue the bar bc causation will fail.
Can assumption of risk be a defense for intentional torts? I.e for being attacked after breaking into home
No
What is a detour
Detour is a minor deviation from scope of employment. Employers are still vicariously liable during detour. Ie stopping for lunch quickly or hitting car while en route to job site
What is a frolic
Outside scope of employment bc substantial departure from employmwnt. Torts durong frolic are are NOT within scope of employment so employer is off the hook. Ie shopping during work time
