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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

To establish a prima facie case for any intentional tort, the plaintiff must prove:

A
  1. An act by the defendant
  2. Intent by the defendant
  3. Causation of the result to the plaintiff from the defendant’s act
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2
Q

What is considered an “act” by a defendant to satisfy an intentional tort?

A

A volitional movement

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3
Q

What is the required “intent” to satisfy an intentional tort?

A

Intent to bring about the forbidden consequences that are the basis of the tort.

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4
Q

What is transferred intent?

A

When the defendant intends to commit a tort against one person but instead:
1. Commits a different tort against that person
2. Commit the same tort as intended but against a different person
3. Commits a different tort against a different person

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5
Q

Transferred intent may be invoked if the tort that results are one of the following:

A
  1. Assault
  2. Battery
  3. False Imprisonment
  4. Trespass to Land
  5. Trespass to Chattels
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6
Q

What is required “causation” to satisfy an intentional tort?

A

The defendant’s conduct must be a substantial factor in bringing about the injury.

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7
Q

Is incapacity a defense to intentional torts?

A

No

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8
Q

What are the elements of battery?

A
  1. Harmful or offensive contact
  2. With the plaintiff’s person
  3. Intent
  4. Causation
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9
Q

What is “harmful or offensive contact” under the tort of battery?

A

Harmful = actual injury, pain, or disfigurement
Offensive = offensive to a reasonable person

Note: May be direct (e.g., striking the plaintiff) or indirect (e.g., poison)

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10
Q

What are the elements of assault?

A
  1. An act by the defendant creating a reasonable apprehension in the plaintiff
  2. Of an immediate battery
  3. Intent
  4. Causation
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11
Q

What satisfies a “reasonable apprehension” under the tort of assault?

A
  • For apprehension to be shown, the plaintiff must have been aware of the threat from the defendant’s act
  • The apprehension must be reasonable
  • The plaintiff need not be aware of the defendant’s identity
  • The plaintiff must believe the defendant had the apparent ability to commit a battery, even if the defendant did not actually have the ability
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12
Q

What are the elements of false imprisonment?

A
  1. An act or omission on the part of the defendant that confines or restrains the plaintiff
  2. The plaintiff must be confined to a bounded area
  3. Intent
  4. Causation
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13
Q

What are sufficient acts of restraint under the tort of false imprisonment?

A
  1. Physical barriers
  2. Physical force directed at the plaintiff, immediate family, or personal property
  3. Direct threats of force
  4. Indirecrt or implied threats of force
  5. Failure to release the plaintiff when under a legal duty to do so
  6. Invalid use of legal authority
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14
Q

What are insufficient acts of restraint under the tort of false imprisonment?

A
  1. Moral pressure
  2. Future threats
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15
Q

Must a plaintiff know they are being confined under the tort of false imprisonment?

A

Yes

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16
Q

What is a “bounded area” under the tort of false imprisonment?

A
  • For an area to be “bounded,” freedom of movement must be limited in all directions
  • There must be no reasonable means of escape known to the plaintiff
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17
Q

What are the elements of intentional infliction of emotional distress?

A
  1. An act by the defendant amounting to extreme and outrageous conduct
  2. The plaintiff must suffer severe emotional distress
  3. Intent (Recklessness)
  4. Causation
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18
Q

Conduct that is not normally outrageous may become so if:

A
  1. It is continuous in nature
  2. It is committed by a certain type of defendant; or
  3. It is directed toward a certain type of defendant
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19
Q

When the defedant’s conduct is directed at a third person, and the plaintiff suffers severe emtional distress because of it, the plaintiff may recover by showing either:

A
  1. The prima facie case elements of emotional distress; or
  2. The plaintiff:
    a. Was present when the injury occurred
    b. The distress resulted in bodily harm or the plaintiff is a close relative of the 3rd person; and
    c. The defendant knew these facts
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20
Q

What are the elements to trespass to land?

A
  1. Physical invasion
  2. Of the plaintiff’s real property
  3. Intent to enter land (knowledge is not required)
  4. Causation)
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21
Q

What are the elements of trespass to chattels?

A
  1. Act by the defendant that interferes with the plaintiff’s right of possession in a chattel
  2. Intent to interefere
  3. Causation
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22
Q

What are the elements of conversion?

A
  1. Act by the defendant that interferes with the plaintiff’s right of possession in a chattel
  2. Interference is serious enough in nature or consequence to warrant that the defendant pay the chattel’s full value
  3. Intent to interfere
  4. Causation
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23
Q

Is mistake of ownership a defense to conversion or trespass to chattels?

A

No

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24
Q

What are the remedies to conversion?

A
  1. Damages (fair market value at the time of conversion); or
  2. Replevin (possession)
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25
Q

What are the defenses to intentional torts?

A
  1. Consent
  2. Defense (Self-Defense, Defense of Others, and Defense of Property)
  3. Necessity (Private or Public)
26
Q

What are the requirements for consent to be a valid defense?

A
  1. The plaintiff must have had capacity to consent
  2. Consent was express or implied
  3. The defendant did not exceed the scope of consent
  4. Consent was not granted by:
    a. Mistake that the defendant knew and took advantage of
    b. Fraud
    c. Duress
27
Q

What are the requirements for self-defense to be a valid defense?

A
  1. The defendent reasonably believes that they are being or are about to be attacked
  2. The defendant uses force as is reasonably necessary to protect against injury
  3. The defendant is not the inital aggressor (unless the other party responds to the aggressor’s nondeadly force by using deadly force)
28
Q

Is there a duty to retreat in self-defense?

A

Generally, no; however, the modern trend imposes a duty to retreat before using deadly force if this cacn be done safely, unless the actor is in their home.

29
Q

Is mistake of danger allowed in self-defense?

A

Yes, a reasonable mistake as to the existence of the danger is allowed.

30
Q

When may defense of property be used?

A
  1. The defendant uses reasonable force (may NOT use deadly force or serious bodily injury)
  2. A request to desist or leave must be made first unless it clearly would be futile or dangerous
  3. May use force it hot pursuit
31
Q

What is shopkeeper’s privilege?

A

A shopkeeper has a privilege to detain a suspected shoplift for investigation. For the privilege to apply, the following conditions must be satisfied:
1. There is reasonable belief as to the fact of theft
2. The detention is conducted in a reasonable manner with nondeadly force
3. The detention lasts only for a reasonable period of time and only for the purpose of making an investigation

32
Q

What is the defense of recapture of chattels?

A

When another’s possession began lawfully, one may use only peaceful means to recover the chattel. Reasonable force may be used to recapture chattel only in hot pursuit of one who has obtained possession wrongfully.

33
Q

What is the defense of necessity?

A
  1. Public Necessity - A defendant acted to avert an “imminent public disaster”
  2. Private Necessity - A defedant acted to prevent serious bodily harm to a limited number of people. Note: the actor still must pay for any injury they cause
34
Q

What are the elements of negligence?

A
  1. Duty of care to the plaintiff
  2. A breach of that duty by the defendant
  3. The breach is the actual and proximate cause of the plaintiff’s injury
  4. Damages
35
Q

To whom does a defendant owe a duty generally?

A

Only for foreseeable plaintiffs–the class of persons who were foreseeably endangered by the defendant’s negligent conduct.

36
Q

Are civilian rescurers owed a duty of care?

A

Yes, a rescurer is a foreseeable plaintiff when the defendant negligently put themselves or a 3rd person in peril

37
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 jobs.

38
Q

What is the basic standard of care?

A

All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims.

39
Q

Are a defendant’s mental deficiencies and inexperience taken ino account in the standard of care?

A

No

40
Q

What is the standard of care for someone with superior skill or knowledge?

A

A defendant who has knowledge or experience superior to that of an average person is required to exercise that experience.

41
Q

What is the standard of care for someone with physical deficiencies?

A

The “reasonably prudent person” is cosndiered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim.

42
Q

What is the standard of care for children?

A

Children are held to the standard of a child of like age, intelligence, and experience, UNLESS the child is engaged in potentially dangerous adult activities

43
Q

At what age are childred considered without capacity to be negligent?

A

5

44
Q

What is the standard of care for professionals?

A

A professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing.

45
Q

What is the standard of care for landowners?

A
  1. Unknown Trespassers - No duty
  2. Known Trespassers - Warn or make safe any condition that is: artificial, highly dangerous, concealed, and known
  3. Licensees - Warn or make safe any condition that is: concealed and known
  4. Invitees - Warn or make safe any condition that is: concealed and known or could have been discovered by a reasonable inspection
46
Q

What is the difference between licensees and invitees?

A

A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessior’s benefit.

An invitee is one who enters onto the land in response to an invitation by the possessor of the land.

47
Q

What is the duty owed to trespassing children?

A

A landowner must exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property. The plaintiff must show:
1. A dangerous condition on the land that the owner is or should be aware of
2. The owner knows or should know that children might trespass on the land
3. The condition is likely to cause injury
4. The expense of remedying the situation is slight compared with the magnitude of the risk

48
Q

Negligence Per Se

A

A clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more general common law duty of care if:
1. The plaintiff is within the protected class
2. The statute was designed to prevent the type of harm suffered by the plaintiff

49
Q

What is the exception to negligence per se?

A

When complaince with the statute would cause more danger than violation or where compliance would be beyond the defendant’s control.

50
Q

Is there an affirmative duty to act? If so, when?

A

No; however, they may be a duty to act if:
1. A special relationship exists between the parties
2. The defendant negligenty placed someone in the peril; or
3. The defendant acts when they have no duty to act

51
Q

“Near Miss” Negligence

A
  1. The plaintiff was within the zone of danger
  2. The plaintiff suffered physical symptoms of the distress
52
Q

Bystander Negligence

A
  1. The plaintiff and the person injured by the defendant are closely related
  2. The plaintiff was present at the scene of the injury and personally observed or perceived the event
53
Q

Res Ipsa Loquitor

A
  1. The accident causing the injury is a type that would not normally occur unless someone was negligent
  2. The negligence is probably attributable to the defendant
54
Q

What is the effect of res ipsa loquitur?

A

The plaintiff has made a prima facie case and no directed verdict may be given for the defendant. However, the plaintiff may still lose if the inference of negligence is rejected by the trier of fact.

55
Q

What are the two types of causation?

A
  1. Factual Causation
  2. Proximate Causation
56
Q

Substantial Factor Test

A

Where several causes bring about injury, and any one alone could have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

57
Q

Unascertainable Causes Test

A

Where there are two acts, only one of which causes injury, but it is not known which one, the burden of proof shits to the defendants, and each must show that his negligence is not the actual cause.

58
Q

What is proximate cause?

A

A defendant is liable for all harmful results that are foreseeable.

59
Q

What are the intervening forces that are always foreseeable?

A
  1. Medical malpractice
  2. Negligence of rescuers
  3. Protection or reaction forces to the defendant’s conduct
  4. Disease or accident substantially caused by the original party
60
Q

Eggshell Skull Rule

A

A defendant is liable for all damages, including the aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.

61
Q

Are punitive damages available in negligence cases? If so, when?

A

Punitive damages are generally not available; however, a plaintiff may recover if the defendant’s conduct is “wanton and willful,” reckless, or malicious

62
Q

Assumption of Risk

A

The plaintiff may be denied recovery if they assumed the risk of damage by the defendant’s act. The plaintiff must have:
1. Known of the risk; and
2. Voluntarily proceeded in the face of that risk

Bar Exam (9 decks)

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