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VA BAR EXAM > TORTS > Flashcards

TORTS Flashcards

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1
Q

Are incapacity defenses admissible for intentional torts?

A

No, lack of capacity is not a defense to an intentional tort.

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2
Q

What is intent?

A

Desire to produce the legally forbidden consequence

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3
Q

What is transferred intent?

A

You have the desire to produce a legally forbidden consequence but a different consequence or victim results

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4
Q

What are the elements of Battery?

A

1) harmful/offensive contact: unpermitted to an ordinary person
2) w/plaintiff’s person: anything you’re holding, touching, connected to

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5
Q

What are the elements of Assault?

A

1) knowledge: you must see it coming
2) of an immediate battery

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6
Q

What are the elements of False Imprisonment?

A

1) act of physical restraint - Plaintiff must be aware of it or harmed by it
2) confined in a bounded area - no reasonable means of escape that plaintiff can discover

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7
Q

What are the elements of Intentional Infliction of Emotional Distress?

A

1) intent and recklessness sufficient
2) outrageous conduct that exceeds all bounds of decency tolerated in a civilized society
3) severe emotional distress

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8
Q

What are the elements to Trespass to Land?

A

1) physical invasion: walk, enter, drive, throw a tangible object, or project
2) of the plaintiff’s land (includes soil below and air above)

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9
Q

What is Trespass to Chattel?

A

Slight interference with the property of another

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10
Q

What is Conversion?

A

Great interference with the property of another

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11
Q

Is mistake about ownership a defense?

A

No

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12
Q

If you know in advance that a person has a particular hypersensitivity about something and you act on it, what intentional tort could you be liable for?

A

Intentional Infliction of Emotional Distress

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13
Q

What is the remedy for Trespass to Chattel?

A

Cost of repair

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14
Q

What is the remedy for Conversion?

A

Full market value of item in question or possession (replevin)

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15
Q

What are the defenses to intentional torts?

A

1) Consent;
2) Self-Defense;
3) Defense of Others;
4) Defense of Property; and
5) Necessity

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16
Q

What are the two types of consent?

A

Express and Implied

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17
Q

What is express consent?

A

Outright grant of permission in explicit words (oral or in writing) to behave in a way that would otherwise be a tort

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18
Q

What are the exceptions/defenses to express consent, and what is the outcome?

A

Consent obtained through fraud, lack of capacity, or duress is void.

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19
Q

Are mere words alone sufficient to be liable for Assault?

A

No, overt conduct is required because words alone lack immediacy.

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20
Q

How can consent be implied?

A

1) custom and usage: certain invasions are routine where a person goes
2) reasonable interpretation of plaintiff’s objective conduct

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21
Q

What are the three protective privileges?

A

1) Self-Defense
2) Defense of Others
3) Defense of Property

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22
Q

What are the elements of the protective privileges?

A

1) imminent threat (or in progress)
2) reasonable belief the threat is genuine
3) limit force to what’s reasonable, must be proportionate

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23
Q

What are the two types of necessity?

A

Public necessity and private necessity

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24
Q

What is public necessity?

A

Defendant acts in emergency to protect community

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25
Q

What are the elements of a private necessity?

A

Defendant acts in emergency to protect own self interests

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26
Q

What are the elements of Negligence?

A

1) Duty
2) Breach
3) Causation
4) Damages

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27
Q

Can threats constitute restraint for liability for False Imprisonment?

A

Yes, the threat must be plausible.

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28
Q

What is extreme and outrageous conduct?

A

Conduct that exceeds all bounds of decency tolerated in a civilized society

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29
Q

To be liable for negligence, to whom is a duty owed?

A

the foreseeable victim

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30
Q

What duty is owed to an unknown trespasser?

A

No duty of care is owed. This plaintiff always loses.

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31
Q

What duty is owed to an anticipated or known trespasser?

A

Possessor must warn of or make safe any conditions that are:
1) artificial condition
2) highly dangerous
3) hidden
4) known in advance

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32
Q

Do you have to know that you have crossed the boundary line to be liable for trespass to land?

A

No, awareness of boundary is not required.The only intent required is to be on the land.

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33
Q

What duty is owed to a licensee?

A

Duty to warn or make safe hazardous conditions that are:
1) hidden
2) known in advance by possessor

No duty to inspect or repair

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34
Q

What is Trespass to Chattel?

A

Slight intentional interference with personal property that warrants defendant pay damages

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35
Q

What is Conversion?

A

Great intentional interference with personal property that warrants defendant pay property’s full value

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36
Q

What duty is owed to an invitee?

A

Possessor owes a duty regarding hazardous conditions that are:
1) concealed
2) Known in advance by possessor or could have been discovered by a reasonable inspection

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37
Q

What duty is owed to trespassing children?

A

Possessor of land must exercise reasonably prudent care with regard to artificial conditions on the land.

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38
Q

Why is the defense of private necessity a limited defense?

A

Defendant must pay compensatory damages.

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39
Q

What is duty?

A

Legally imposed obligation to take risk reducing precautions for benefit of others

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40
Q

What are the two type of inteference that would make one liable for trespass to chattel?

A

1) intermeddling - directly damaging the chattel
2) dispossession - depriving the plaintiff of their lawful right of possession of the chattel

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41
Q

What is a licensee?

A

One who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit (ex: social guests)

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42
Q

How is the Attractive Nuisance Doctrine applied in Virginia?

A

Virginia rejects the attractive nuisance doctrine, but recognizes that the degree of care to be exercised is greater than that of adults

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43
Q

What is the standard care of duty?

A

That of a reasonably prudent person acting under similar circumstances

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44
Q

In Virginia, a child under the age of ___ is incapable of negligence.

A

7

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45
Q

In Virginia, there is a rebuttable presumption that children of the age ____ are incapable of negligence.

A

7-14

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46
Q

What is the standard of care that children have to uphold to avoid negligence liability?

A

Hypothetical child of similar age, experience, and intelligence acting under similar circumstances.

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47
Q

What is the standard of care for professionals?

A

Professionals must maintain the standard of care of an average member of the same profession providing similar professional services.

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48
Q

What is the exception to the standard of care for children?

A

If the child is engaged in an adult activity such as operating a motorized vehicle, they must exercise the standard of care of a reasonably prudent adult

49
Q

What standard of care does Virginia use as to medical care?

A

VA uses statewide standard of care (or local if Defendant shows it more appropriate)

50
Q

T or F: The possessor is always the owner.

A

False, the possessor is not always the owner. A possessor may also be the renter

51
Q

What is the Firefighter’s Rule?

A

Police Officers and Firefighters are not allowed to recover for injuries that are an inherent risk of their jobs.

52
Q

What is an invitee?

A

Enter land with permission for financial benefit of possessor

53
Q

What is the statutory standard of care?

This is also known as Negligence Per Se

A

1) Plaintiff is a member of the class of people in which the statute was designed to protect; and
2) Statute was designed to prevent the type of injury plaintiff incurred

54
Q

Generally, is there a duty to rescue?

A

No, because there is no duty to act affirmatively.

55
Q

In what situations is there a duty to rescue?

A

1) there is a pre-existing legal relationship between plaintiff and defendant
2) plaintiff causes the peril

56
Q

What pre-existing legal relationships would require a duty to act?

A

1) employer-employee
2) landowner- invitee
3) innkeeper-guest
4) common carrier- passenger

57
Q

What is the standard for the duty of care that rescuers have?

A

to act reasonably under the circumstances

58
Q

What is Res Ipsa Loquitur?

A

A theory of breach when the plaintiff lacks information about what defendant did wrong.

59
Q

What are the elements of Res Ipsa Loquitur?

A

1) Accident of the type normally associated with negligence
2) Accident of the type normally due to negligence of someone in plaintiff’s position*

*P had control of the item causing the injury

60
Q

How can a possessor of land satisfy premises liability?

A

1) Eliminate hazard condition: Repair, Replace, Remove
2) Warn about hazard condition: fully communicate danger

61
Q

What are the requirements for Negligence Per Se?

A

1) Legal: statute is legally appropriate
2) Factual: Defendant violated statutory command

62
Q

What are the exceptions to the Statutory Standard of care?

A

1) Compliance with the statute would have been more dangerous
2)Compliance with the statute would have been impossible

63
Q

What is Virginia’s Good Samaritan Law?

A

Protects anyone who provides aid in emergency from liability for simple negligence. May still be held liable for gross negligence.

64
Q

In physical injuries cases, Plaintiff may also recover

A

emotional damages

65
Q

In a near miss case for NIED, what must the plaintiff prove in addition to negligence?

A

1) plaintiff was in zone of physical danger
2) plaintiff suffers physical symptoms from distress

66
Q

In Virginia, Plaintiff must prove by _____ that physical injury was natural result of fright/shock caused by Defendant’s negligence

A

clear and convincing evidence

67
Q

What is a bystander case for NIIED?

A

negligent defendant causes severe bodily injury to a person not involved in the present litigation as a result of which the plaintiff is emotionally disturbed

68
Q

What is the emotion suffered in a near miss NIED case?

A

fear, fright, anxiety

69
Q

What is the emotion suffered in a bystander NIED case?

A

grief, sadness, melancholy

70
Q

What must the plaintiff prove in a bystander NIED case?

A

1) That the plaintiff and physically injured person are closely related: spouse, parent, child
2) Plaintiff was present at the scene and saw it happen

71
Q

In Virginia, no recovery for bystander unless Plaintiff is

A

placed in the zone of danger by defendant

72
Q

What is the business relationship case for NIED?

A

Plaintiff can recover if highly foreseeable that careless performance by Defendant will produce emotional distress

73
Q

What are examples of business relationships where emotional distress is highly foreseeable?

A

1) Medical laboratory comes to erroneous conclusion that patient has cancer
2) Funeral establishment performs services carelessly

74
Q

How does a plaintiff prove breach?

A

Plaintiff must demonstrate exactly what defendant did wrong AND why it was wrong (fact + reason)

75
Q

What are the two ways to show breach?

A

By an affirmative act or by omission (the failure to do something)

76
Q

What are the two types of Causation?

A
  1. Factual Cause
  2. Proximate Cause
77
Q

What is factual cause?

A

the link between the breach and the harm (i.e., “but for”)

78
Q

What is the substantial factor test?

A

Defendant liable if breach contributed in signficant/substantial way to ultimate injury

2 defendants + 2 breaches + merged causes = substantial factor test

79
Q

What is merged causes?

A

2 Defendants acting independently each commit a breach combining into a single indivisible harm

80
Q

When determining factual causation

If a breach would have been ablt to cause entire harm if it had been the only breach

A

It’s a substantial factor

81
Q

In a merged cause scenario where both breaches are found to be a substantial factor, who is held liable?

A

Defendants held jointly and severally liable

82
Q

What does it mean to be jointly and severally liable?

A

The plaintiff can cover the full amount of damages from either defendant at plaintiff’s option

83
Q

What is unascertainable cause?

A

Simultaneous negligence and only one source of harm. The burden of proof is shifted to the defendants to prove he didnt do it

84
Q

When is a defendant strictly liable for a domesticated animal?

A

If the animal has vicious propensity specific to that one animal and they are known to the defendant

85
Q

Do safety precautions for wild animals limit liability?

A

No, safety precautions are irrelevant.

86
Q

Does strict liability for animals extend to trespassers?

A

No, you are never liable to trespassers.

87
Q

What is an abnormally dangerous activities?

A
  1. Cannot be made reasonably safe even with ordinary care
  2. Uncommon in the community where it is being conducted
88
Q

What are examples of abnormally dangerous activities?

A

explosives, dangerous chemical/biological materials, nuclear energy/high dose radiation

89
Q

What theories might a plaintiff bring a products liability claim?

A

1) negligence
2) UCC claim
3) misrepresentation/fraud
4) strict liability

90
Q

What are the elements for a strict liability claim for products liability?

A
  1. Defendant is a merchant
  2. Product must be defective
  3. Product hasnt been altered since leaving Defendant’s hand
  4. At the time of injury plaintiff was making a foreseeable use of product
91
Q

Are service providers considered merchants?

A

No, the products they provide are incident to their services

92
Q

Is a commercial lessor a merchant?

A

Yes, and therefore, they are strictly liable

(ex: rental car company)

93
Q

What is a manufacturing defect?

A

Product emerges from manufacturing different from others and more dangerous than consumers would expect

“the product departs from its intended design”

94
Q

What is a design defect?

A

risks associated with product’s design outweigh the utility of the design

95
Q

What are the elements to show a design defect?

A

An alternative design would have been:
1. safer;
2. economically feasible; and
3. practical - not difficult to use

96
Q

What is an information defect?

A

Hidden risks without adequate warnings and instructions

97
Q

What are the types of design defects?

A

1) Manufacturing Defect
2) Design Defect
3) Information Defect

98
Q

When is a warning adequate?

A

1) it’s prominent and not hidden
2) Must be comprehensible
3) Provide information about mitigating the risk

99
Q

As to products

There is a presumption that the product has not been altered if

A

the product moves through ordinary channels of distribution

used products are not given this presumption

100
Q

As to the plaintiff making a foreseeble use of a product

Can a plaintiff recover if the use of a product was not appropriate?

A

Yes, foreseeable use does not mean appropriate use or misuse

101
Q

What is comparative responsibility?

A

A defense to strict liability where the plaintiff’s recovery is reduced by the percentage of the responsibility they shared

102
Q

What is nuisance?

A

unreasonable and substantial interference with plaintiff’s peaceful use and enjoyment of their property

103
Q

What is vicarious liability?

A

when a secondary party liable due to a relationship with the primary tortfeasor

104
Q

When is an employer vicariously liable for the actions or inactions of their employee?

A

When the tort is committed within the scope of their employment

105
Q

When are intentional torts usually within the scope of employment?

A

1) job involves use of forece
2) intentional tort to serve boss’s purpose
3) job that creates friction

106
Q

What are the elements of Defamation?

A

1) Defendant made a defamatory statement
2) the statement specifically identifies plaintiff
3) publication of the statement
4) Damages (Economic Harm)

107
Q

What is loss of consortium?

A

Uninjured spouse gets a second independent claim that allows recovery for:
1) loss of household services
2) loss of society/companionship
3) loss of sex

108
Q

What is a defamatory statement?

A

A factual representation that reflects adversely on character:

1) statement adversely affects reputation
2) purports to be factual and isn’t
3) doesn’t have to use name
4) Fault
5) person has to be alive

109
Q

As to defamation,

When is the defamatory statement published?

A

1) statement shared with at least one other person
2) negligent publication is sufficient
3) repeaters are republishers and are liable

110
Q

What is appropriation?

A

Defendant uses plaintiff’s name or images for a commercial purpose

111
Q

What is intrusion?

A

Invasion of plaintiff’s seclusion in a way that would be highly offensive to a reasonable person

112
Q

What is false light?

A

widespread dissemination of a material falsehood about plaintiff that would be highly offensive to the average person

113
Q

What is disclosure?

A

Widespread dissemination of confidential infor that would be offensive to the average person

114
Q

As to defamation,

What is the fault required for defendant?

A

1) private person: negligence
2) public figure: knowledge or reckless disregard

115
Q

What is libel?

A

Any defamation embodied in permanent form. Written

Damages are presumed

116
Q

What is slander?

A

Defamatory statements that are spoken or oral in nature

117
Q

What is slander per se?

A

Words so clearly defamatory that ordinary person would understand injury. Statements that

1) related to business or profession
2) plaintiff committed a serious crime
3) plaintiff committed a serious sexual misconduct
4) plaintiff suffers from a loathsome disease

Damages are presumed

118
Q

What are the defenses to privacy torts?

A
  1. Consent
  2. Absolute/Qualified privilege for false light/disclosure claims

VA BAR EXAM (15 decks)

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