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BAR EXAM > Torts > Flashcards

Torts Flashcards

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1
Q

What do you need to establish a prima facie case for any intentional tort?

A

Act by the defendant, intent by the defendant, causation of result to plaintiff from defendant’s act.

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2
Q

What is the intent required for an intentional tort?

A

The intent to bring about the forbidden consequences that are the basis of the tort (do not need to intend specific injury that results)

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3
Q

When does transferred intent apply?

A

When the defendant intends to commit a tort against one person but instead
-Commits a different tort against that person;
-Commits the same tort as intended but against a different person; OR
-Commits a different tort against a different person.

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4
Q

What torts does transferred intent apply to?

A

Assault, battery, false imprisonment, trespass to land, trespass to chattels

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5
Q

When is causation satisfied for intentional torts?

A

When the defendant’s conduct was a substantial factor in bringing about the injury.

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6
Q

What is battery? (intentional tort)

A

A harmful or offensive contact with the plaintiff’s person intentionally caused by the defendant.

-Contact can be direct or indirect
-Plaintiff’s person includes anything connected to the plaintiff

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7
Q

When is conduct offensive?

A

If it would be considered offensive to a reasonable person. Consent is implied for ordinary contacts of everyday life.

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8
Q

What is assault? (intentional tort)

A

Intentional creation by the defendant of a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person.

-Apprehension is knowledge, not fear or intimidation
-P must have been aware of threat from D’s act
-Apparent ability is sufficient (even if it’s an empty threat)

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9
Q

Are words alone enough for assault?

A

Generally, no, unless they are coupled with conduct. Words can negate reasonable apprehension, however.

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10
Q

What is false imprisonment? (intentional tort)

A

An intentional act or omission by the defendant that causes the plaintiff to be confined or restrained to a bounded area.

-Time of confinement is irrelevant
-P must be aware of the confinement
-No reasonable means of escape known to P

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11
Q

What are sufficient acts of restraint for false imprisonment?

A

-Physical barriers
-Physical force directed against P, immediate family, or personal property
-Direct threats of force
-Indirect or implied threats of force
-Failure to release P when under legal duty to do so
-Invalid use of legal authority (false arrest)

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12
Q

What is intentional infliction of emotional distress?

A

Intentional extreme and outrageous conduct by the defendant that causes the plaintiff to suffer severe emotional distress

-Conduct that transcends all bounds of decency
-Recklessness as to effect of conduct will satisfy intent element
-Actual damages are required (severe emotional distress is sufficient, not physical injury necessary)

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13
Q

When might conduct that is not normally outrageous become outrageous enough to be considered IIED?

A

-Continuous in nature;
-Committed by a certain type of defendant; OR
-Directed toward a certain type of plaintiff (fragile class of persons)

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14
Q

What is trespass to land?

A

An intentional act by the defendant that causes a physical invasion of the plaintiff’s real property

-Invasion may be by person or by object (but intangible matter would be nuisance rather than trespass)
-D needs intent to enter land, not knowledge that the land belongs to another

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15
Q

What is trespass to chattels?

A

Intentional act by defendant that causes an interference with the plaintiff’s right of possession in a chattel, resulting in damages.

-Interference may be damage or dispossession of chattel
-Mistaken belief that they own the chattel is not a defense

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16
Q

What is conversion?

A

An intentional act by the defendant that causes a serious interference with the plaintiff’s right of possession in a chattel. More serious interference than trespass to chattels (enough to warrant that D pay the chattel’s full value).

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17
Q

How do you distinguish between trespass to chattels and conversion?

A

The seriousness/degree of interference. A less serious interference is trespass to chattels. Trespass to chattels entitles the plaintiff to actual damages, while conversion entitles them to award of fair market value of chattel or possession (replevin)

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18
Q

What are the defenses to intentional torts?

A
  1. Consent
  2. Defense of self, others, or property
  3. Necessity (property torts only)
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19
Q

When is consent a valid defense to an intentional tort?

A

It may be express or implied (inferred from custom/usage/plaintiff’s conduct OR implied by law).

Individuals must have capacity to consent.

Cannot exceed scope of consent.

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20
Q

When is self-defense available as a defense to an intentional tort?

A

When a person reasonably believes they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury.

-Majority rule is that there is no duty to retreat
-Self-defense is not available to an initial aggressor unless the other party responds to aggressor’s nondeadly force with deadly force.

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21
Q

When is defense of others a valid defense to an intentional tort?

A

One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves. Only the amount of force they could have used in self-defense if they were threatened with injury.

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22
Q

When is defense of property available as a defense to intentional torts?

A

A person may use reasonable force to prevent the commission of a tort against their real or personal property. Typically, request to desist or leave is required. Deadly force may not be used to defend only property.

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23
Q

What is the shopkeeper’s privilege?

A

It permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods.

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24
Q

When is necessity a valid defense for intentional torts?

A

When it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. It trumps a property owner’s right to defend property.

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25
Q

What are the two types of necessity?

A
  1. Public necessity - D acts to avert an imminent public disaster.
  2. Private necessity - D acts to prevent harm to a limited number of people. Actor must pay for any injury they cause.
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26
Q

What are the elements of a prima facie case of negligence?

A
  1. Duty on part of defendant to conform to a specific standard of conduct
  2. Breach of duty
  3. Breach is actual and proximate cause of plaintiff’s injury
  4. Plaintiff suffered damages
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27
Q

To whom is a duty owed?

A

Only to foreseeable plaintiffs (persons who were foreseeably endangered by D’s negligent conduct). Rescuers are foreseeable plaintiffs when D negligently puts themselves or a third person in peril.

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28
Q

What is the firefighter’s rule?

A

Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their job.

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29
Q

What is the default standard of care in a negligence action?

A

The reasonably prudent person (objective standard) - D must behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims.

If D has knowledge or experience superior to an average person, they must exercise that experience.

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30
Q

What duty is a child held to for negligence purposes?

A

Child of like age, intelligence, and experience (subjective), except when they are engaged in potentially dangerous adult activities.

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31
Q

What duty is a professional held to for negligence?

A

Knowledge and skill of an average member of the profession or occupation in good standing (national standard of care)

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32
Q

What duty is owed to unknown trespassers by a possessor of land?

A

No duty

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33
Q

What duty is owed to a known trespasser by a possessor of land?

A

For discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:
-Artificial;
-Highly dangerous;
-Concealed; AND
-Known to the land possessor in advance.

34
Q

What duty is owed to a licensee by a possessor of land?

A

A licensee enters the land with the possessor’s permission for their own purpose or business rather than for the possessor’s benefit. Land possessor has duty to warn of or make safe hazardous conditions that are:
-Concealed AND
-Known to the land possessor in advance

35
Q

What duty is owed to an invitee by a possessor of land?

A

An invitee enters the land in response to an invitation by possessor of land (often land that is held open to the public). Landowner owes duty regarding hazardous conditions that are:
-Concealed AND
-Known to the land possessor in advance OR could have been discovered by reasonable inspection.

36
Q

What is the attractive nuisance doctrine?

A

A landowner has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property.

Plaintiff must show:
-Dangerous condition on land that owner is or should be aware of;
-Owner knows or should know that children might trespass;
-Condition is likely to cause injury; AND
-Expense of remedying situation is slight compared with magnitude of risk

37
Q

When may a statutory standard of care from a statute imposing CRIMINAL PENALTIES replace the more general common law duty of care? (negligence per se)

A

If (1) the plaintiff is within the protected class AND (2) the statute was designed to prevent the type of harm suffered by the plaintiff.

38
Q

When is a violation of a statute excused for purposes of negligence per se?

A

Where compliance would cause more danger than violation OR where compliance would be beyond the defendant’s control

39
Q

What is the effect of a statutory violation/negligence per se?

A

It is conclusive presumption of duty and breach in the prima facie case for negligence.

40
Q

There is no affirmative duty to act except in what instances?

A

-When there is a special relationship between the parties
-When someone is in peril due to the person’s own conduct
-When someone assumed a duty by acting

41
Q

What are the three situations where NIED may arise?

A
  1. Near miss cases: D was negligent, P was in zone of danger and suffered physical symptoms from distress
  2. Bystander cases: Bystander outside zone of danger of physical injury was closely related to the person injured by the defendant, present at the scene, and personally observed or perceived the event
  3. Special relationship: Duty arises from relationship between P and D, such that D’s negligence has great potential to cause emotional distress.
42
Q

When has the defendant breached?

A

A question for the trier of fact, but when the defendant’s conduct falls short of the level required by the applicable standard of care owed to the plaintiff. Evidence of custom or usage is not conclusive as to whether conduct amounted to negligence.

43
Q

What is res ipsa loquitur?

A

The fact that an injury occurred may create an inference that the defendant breached his duty. Two requirements:
-accident is of a type that would not normally occur unless someone was negligent AND
-negligence is probably attributable to the defendant (usually because D is in exclusive control of the instrumentality causing the injury)

Is a prima facie case, but P can still lose if the trier of fact rejects the inference of negligence.

44
Q

What are the tests for factual causation?

A

-“But for” test: Injury would not have occurred “but for” the act or omission. D’s rebuttal to this will be “even if”
-Substantial factor test: where several causes bring about the injury and any one alone would be a sufficient cause, D’s conduct is cause in fact if it was substantial factor in causing the injury (Ds can be held jointly & severally liable)
-Unascertainable causes: where there are two acts but only one unknown one caused the injury, burden of proof shifts to Ds to show that their negligence is not the actual cause

45
Q

How do you show proximate cause?

A

It is a limitation of liability based on a foreseeability test. D is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts.

46
Q

What are common foreseeable intervening forces, where D will still be liable?

A

-Medical malpractice
-Negligence of rescuers
-Protection or reaction forces to D’s conduct
-Disease or accident substantially caused by the original injury

47
Q

What is the effect of a superseding force?

A

An intervening force that produces unforeseeable results will be deemed unforeseeable and superseding, breaking the causal connection between D’s initial negligent act and P’s ultimate injury.

48
Q

What is the eggshell skull plaintiff rule?

A

For damages, D takes P as they find P. D is liable for all damages, including aggravation of an existing condition.

49
Q

For personal injury, what may P be compensated for?

A

All their damages, both economic and noneconomic, as well as any resulting emotional distress.

50
Q

For property damage, what may P be compensated for?

A

The reasonable cost of repair or (if property it totally/nearly destroyed), fair market value.

51
Q

When are punitive damages available?

A

Generally not in negligence cases, unless D’s conduct is wanton/willful, reckless, or malicious

52
Q

What is contributory negligence?

A

Negligence on P’s part that contributes to P’s injuries. At common law, it completely barred P’s right to recovery.

53
Q

What is assumption of risk?

A

P may be denied recovery if they assumed the risk of any damage caused by D’s act. They must have (1) known of the risk and (2) voluntarily proceeded in the face of the risk. It is not a defense to intentional torts.

54
Q

What is comparative negligence?

A

The plaintiff’s contributory negligence is not a complete bar to recovery. The trier of fact weighs P’s negligence and reduces damages accordingly.
-Majority: partial comparative negligence, which bars P’s recovery if their negligence was more serious than D’s negligence
-Minority: pure comparative negligence, which allows recovery no matter how great P’s negligence was. Assume this rule on the bar exam.

55
Q

When may someone have strict liability for animals?

A

-Domesticated animals with dangerous propensities not common to the species
-Reasonably foreseeable damages done by their trespassing animal
-Wild animals
But never as to trespassers!

56
Q

When may there be strict liability for abnormally dangerous activities?

A

-Activity creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors AND
-The activity is not a matter of common usage in the community.

Liability extends only to foreseeable plaintiffs and harm must result from danger that is anticipated from the activity.

57
Q

What are the elements for a strict liability theory of products liability?

A
  1. D must be a merchant
  2. Product is defective
  3. Product was not substantially altered since leaving D’s control
  4. P was making a foreseeable use of the product at the time of the injury (foreseeable use can be misuse)
58
Q

What are the types of defects that may exist for a strict products liability analysis?

A
  1. Manufacturing defects: product emerges from manufacturing different from and more dangerous than the products that were made properly
  2. Design defects: all products of a line are the same but have dangerous propensities; P must show that D had a feasible safer alternative.
  3. Information defects: manufacturer failed to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent (prominent, comprehensible, info about mitigation of risk)
59
Q

What are the two types of nuisance?

A
  1. Private nuisance: substantial, unreasonable interference with another private individuals’ use or enjoyment of property (standard is for average member of community, does not consider P’s hypersensitivity or specialized use of property)
  2. Public nuisance: act that unreasonably interferes with the health, safety, or property rights of the community.
60
Q

Is coming to the nuisance a bar on pursuing an action?

A

No, unless P came to the nuisance for the sole purpose of bringing a lawsuit.

61
Q

What are the usual remedies for nuisance?

A

Damages, but injunctive relief may be available for a continuing nuisance.

62
Q

What is vicarious liability?

A

D may be vicariously liable for the tort of another based on the relationship between D and the tortfeasor.

63
Q

What is respondeat superior?

A

An employer is vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship. Detours are within the scope, but frolics are not. Typically only applies to negligence and not intentional torts.

64
Q

When will the principal be vicariously liable for the tortious acts of an independent contractor?

A

Where the independent contractor is engaged in inherently dangerous activities OR the principal’s duty cannot be delegated because of public policy considerations.

65
Q

What is the vicarious liability rule for automobile owners?

A

An automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile unless:
-the state has made the owner liable for tortious conduct of anyone driving with permission
-the state has made the owner liable for tortious conduct of a family member driving with permission

66
Q

Are parents generally liable for the tortious conduct of their children?

A

Not at common law, but many states impose limited statutory liability for the willful/intentional torts of minor children.

67
Q

What is joint and several liability?

A

Under traditional common law, when two or more negligent acts combine to cause an indivisible injury, each negligent actor will be liable to the plaintiff for the entire damage incurred.

68
Q

What is contribution?

A

D who pays more than their share of damages under J&S liability has a claim against other jointly liable parties for the excess. The majority rule is comparative contribution, where contribution is imposed in proportion to the relative fault of the defendants. The minority rule is equal shares.

69
Q

What is indemnification?

A

Shifting the entire loss between or among tortfeasors. Available in vicarious liability situations, under strict products liability for non-manufacturer.

70
Q

What are the elements of defamation?

A
  1. Defamatory statement that specifically identifies P
  2. Published to third party
  3. Falsity of defamatory language
  4. Fault on the part of D
  5. Damage to P’s reputation
71
Q

What is a defamatory statement?

A

One tending to adversely affect one’s reputation. Only actionable if it appears to be based on specific facts. It also must specifically identify P such that a reasonable reader, listener, or viewer would understand that the statement referred to P.

72
Q

How does defamation work for groups?

A

-Small group - every member wins
-Large group - no one wins since no member can prove that the statement specifically identifies them

73
Q

What level of fault for D must be proven in defamation?

A

-Public figure: actual malice, which is either knowledge that statement was false or reckless disregard as to whether it was false
-Private persons: negligence if the statement involves a matter of public concern

74
Q

What is libel?

A

Defamation embodied in permanent form. Damages are presumed and do not need to be proven.

75
Q

What is slander?

A

Spoken defamation. P must prove special damages, unless defamation falls within a slander per se category: adverse reflection P’s business or profession, statement that P has committed a serious crime, imply that P has engaged in serious sexual misconduct, state that P has a loathsome disease.

76
Q

What are defenses to defamation?

A
  1. Consent
  2. Truth
  3. Privilege
    -Absolute for communications between spouses & remarks made by officers of government during work
    -Qualified when there is a public interest in encouraging candor & statement is in scope of the privilege/not made with actual malice (case by case basis)
77
Q

What are the four kinds of wrongs for invasion of privacy?

A
  1. Appropriation of plaintiff’s picture or name: unauthorized use of P’s picture or name for D’s commercial advantage (newsworthiness exception)
  2. Intrusion on P’s affairs or seclusion: act of prying or intruding on P’s private affairs or seclusion that would be highly offensive to a reasonable person
  3. Publication of facts placing P in a false light: must be highly offensive to a reasonable person and statements must circulate to public at large
  4. Public disclosure of facts about P: must be disclosure of private information that would be highly offensive to a reasonable person
78
Q

What are defenses to the right of privacy actions?

A

Consent and the defamation privilege defenses (qualified & absolute privilege)

79
Q

What is intentional misrepresentation (fraud)?

A

Misrepresentation by the defendant with scienter (knowledge of falsity or reckless disregard as to truth/falsity) and intent to induce reliance, causation, justifiable reliance, and damages.

D generally has no duty to disclose material facts but may be liable for active concealment.

80
Q

What is negligent misrepresentation?

A

Misrepresentation by D in a business or professional capacity, breach of duty to P, causation, justifiable reliance, and damages.

D owes duty to those to whom misrepresentation was directed or those who D knew would rely on it.

81
Q

What is interference with business relations?

A

A valid contractual relationship or business expectancy of P and a third party, D’s knowledge of relationship, intentional interference by D inducing a breach or termination of the relationship, and damages.

BAR EXAM (14 decks)

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