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
