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BAR Prep > Torts > Flashcards

Torts Flashcards

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1
Q

A prima facie case for any intentional tort requires showing three things

A

act
intent
causation

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2
Q

Transferred intent applies in tort to tort TI for five torts:

A

Assault, Battery, False Imprisonment, Trespass to land, Trespass to chattels

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3
Q

Causation for a tort requires that the defendant’s conduct be at least a

A

substantial factor

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4
Q

The elements to battery are

A

Intent to cause harmful/offensive contact
Actual harmful or offensive contact
Caused
with another’s person

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5
Q

The elements of assault are

A

intentional
creation of reasonable apprehension
of harmful/offensive/unconsented contact

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6
Q

For assault, fear is ____

A

not required

Only a reasonable apprehension of imminent harmful or offensive contact

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7
Q

An assault cannot occur if the def

A

did not know about it

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8
Q

Words can negate an assault if

A

Clearly indicating that there is no imminent threat of harmful/offensive/unconsented contact

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9
Q

False imprisonment requires

A

Intent to
Confine or restrain
in a bounded area

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10
Q

Insufficient acts of restraint include:

A

moral pressure
future threats

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11
Q

Is there a time requirement for false imprisonment

A

No, the length is immaterial

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12
Q

Is there an awareness requirement for false imprisonment

A

yes, the plaintiff must know or be harmed by the confinement

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13
Q

What is a bounded area for false imprisonment

A

A place where there is no reasonable means of escape known to the plaintiff

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14
Q

IIED requires showing

A

An act that is extreme and outrageous
causing damages in the form of severe emotional distress
that was perpetrated intentionally or recklessly

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15
Q

For IIED bystander cases, the defendant may be liable if he intentionally or recklessly causes severe emotional distress to some one other than the intended victim if they are:

A

i) An immediate family member
-present at the time of the defendant’s conduct
-defendant is aware of such presence
(no damages in the form of severe emotional distress must be proven)

ii) Any other bystander who is
-present at the time of the extreme and outrageous conduct
-Def’s conduct results in actual damages (severe emotional distress)

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16
Q

Trespass to land requires

A

Intentional (not involuntary)
physical invasion
of real property

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17
Q

Is intent required for trespass

A

Not to trespass, only to enter the land

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18
Q

Trespass to chattels requires

A

intentional (not involuntary)
interference
with P’s right of possession in a chattel

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19
Q

The difference between trespass to chattels and conversion is

A

Conversion requires a serious interference AND the remedy is the full value of the chattel or possession

TtC requires any interference and only allows actual damages recovery

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20
Q

Defenses to intentional torts are

A

Consent (unless consent given is exceeded)
Protective privilege (self-def, def of others, def of property)
Necessity (public or private)

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21
Q

Special duties of care include:

A

Children
Professionals
Possessors of land

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22
Q

For children the standard of care is

A

Under 5 - incapable of capacity to be negligent
5-18 - subjective test based on a child of the same age, intelligence, and experience

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23
Q

Professionals are held to a standard of care requiring

A

they act as an average practitioner of good standing in the profession

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24
Q

Possessors of land have the following standard of care

A

-Unknown Trespassers - no duty
-Known/Anticipated Trespassers - warn or make safe hidden, deadly, man made hazards
-Licensees - warn or make safe all hidden, man made or natural hazards they know of
-Invitees - warn or make safe all hidden, man made or natural hazards they know of or would discover on reasonable inspection
-Attractive nuisance - applies where (1) there is a dangerous artificial condition that the owner knows or should know of, (2) kids are likely to trespass, and (3) cost of remediation is slight compared to risk

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25
Q

Negligence per se occurs when

A

the tortfeasor violates a statute AND
the victim is the type of person intended to be protected AND
the harm is the type the statute sought to prevent

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26
Q

Violation of a statute as NPS is excused if

A

Compliance would be more dangerous OR compliance was beyond defendant’s control

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27
Q

Is there a duty to rescue?

A

No

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28
Q

A duty to act arises through

A

Special relationship
Statute
Contract
Causing peril
Beginning rescue

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29
Q

The standard for common carriers or innkeepers requires

A

they act with a very high degree of care (so long as the plaintiff was their passenger or guest)

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30
Q

NIED requires

A

Near Miss:
-Def creates a foreseeable risk of physical injury to the plaintiff
-The plaintiff is in the zone of danger
-And the near miss caused physical symptoms from distress

Great Likelihood of Distress:
-Def’s actions are highly likely to severe cause emotional distress
-P suffers emotional distress as a result

Bystander:
-P is closely related to injured person
-P was present and perceived injury

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31
Q

Res ipso loquitur is shown by plaintiff demonstrating that

A

-The accident is not one that would normally occur unless there was negligence
-the negligence is probably attributable to the defendant

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32
Q

Under RIL, the negligence is probably attributable to the defendant if

A

they had exclusive control of the instrumentality

33
Q

The effect of pleading a prima facie res ipsa case is

A

a directed verdict cannot be given

RIL provides an inference of negligence which can be rejected by the finder of fact

34
Q

Under the merged causes or substantial factor test

A

When two independent acts cause the same injury, but either one would have been sufficient, both acts qualify has having actually caused the injury

35
Q

The unascertainable causes approach states

A

that when there are multiple negligent acts, but only one actual cause, the burden of determining which action caused the injury shifts to the defendant. if they cannot make a determination, they are all liable.

(If there are multiple acts, but only one was negligent, the plaintiff will fail if they cannot establish who caused the injury)

36
Q

These things are always foreseeable and therefore do not break the proximate cause:

A

-Medical malpractice
-Negligence of rescuers
-Self defense, property defense, reaction to tort
-Disease or accident substantially caused by the original injury

37
Q

A superseding force is one that

A

Breaks the chain of causation because it produces unforeseeable results

38
Q

An example of a superseding force is

A

independent criminal actions of third parties (unless they were foreseeable)

39
Q

Assumption of risk denies plaintiff’s recovery if

A

they knew of the risk AND voluntarily proceeded in the face of the risk

40
Q

Liability rules for animals are:

A

Domestic animals - not strictly liable unless
-damages from reasonably foreseeable trespass of the animal
-known dangerous propensity

Wild animals - strictly liable for
-all injuries from wild animals (unless to trespassers)

41
Q

Strict liability for abnormally dangerous activities applies if

A

-The activity creates a foreseeable risk of harm even when reasonable care is used
-The activity is not common in the area

(explosives, nuclear waste, etc)

42
Q

A products liability action may be brought under any of the following theories

A

-Intent
-Negligence
-Implied warranty of merchantability/fitness
-Express warranty/misrep
-Strict liability

43
Q

Strict liability in a products action is available if

A

-The def is a merchant (commercial supplier of the product)
-The product is defective
-The product is substantially the same as when in def’s control
-The plaintiff was making foreseeable use of the product

44
Q

Common defects include:

A

-Manufacturing defects - single instance of nonconformity
-Design defects - dangerous propensity of all products produced (unless danger is apparent and can’t be ameliorated, I.e. knives)
-Information defects - failure to make conspicuous and sufficent warning

45
Q

The effect of compliance or noncompliance with gov safety standards is

A

Compliance - evidence of, but not conclusive, the product not being defective

Noncompliance - establishes that it is defective

46
Q

Private nuisance requires

A

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

(interference cannot be predicated on a particular vulnerability or use of the plaintiff, it must amount to unreasonable interference for anyone)

47
Q

For interference with one’s use and enjoyment of their land to be substantial, it must be

A

offensive, inconvenient, or annoying to the average person in the community

If it is a nuisance ONLY because of Plaintiff’s hypersensitivity or specialized use, then it does not qualify

48
Q

In nuisance, an interference is unreasonable if

A

the injury outweighs the utility of the defendant’s conduct

49
Q

Nuisance differs from trespass in that

A

Nuisance only involves an interference with the use and enjoyment of the land

Trespass involves an interference with the exclusive possessory right of land

50
Q

A public nuisance is

A

an act that unreasonably interferes with the health, safety, or property rights of the community

51
Q

Under vicarious liability, an employer is liable for ___ acts but not ____ acts

A

Acts in the scope of employment or Detour (minor deviations)

Frolic (Substantial deviation)

52
Q

Employers are generally not liable for intentional torts except for where

A

-the intentional tort was committed in furtherance of the business
-force is authorized in scope of employment
-friction is generated by the type of employment

53
Q

The rules for employers liability with regard to independent contractors are

A

The employer is generally not liable, except when:
-a contractor is doing something inherently dangerous on the premises
OR
-where the principal directs them to complete a nondelegable duty

54
Q

Defamation requires

A

-Defamatory statement identifying the plaintiff
-Published to a third party
-That is false
-Defendant was at fault
-Plaintiff’s rep was damaged

55
Q

To be subject to defamation, a person must be ____

A

alive

56
Q

The standards for defamation based on public or private are:

A

Public individual - actual malice (knowledge or reckless disregard of falsity)

Private individual on matter of public concern - negligence

57
Q

Damage to plaintiff’s reputation for purposes of defamation can occur through

A

Libel - written or permanently recorded
Slander - spoken

58
Q

Statements that are slander per se:

A

-Adversely comments on plaintiff’s business or profession
-Stating that plaintiff committed a serious crime
-Imply that plaintiff has engaged in serious sexual misconduct

59
Q

Defenses to defamation include

A

Consent
Truty
Privilege (absolute or qualified)

60
Q

A PF case of Negligent Misrepresentation requires showing

A

-Misrep by def in a business/professional capacity
-Justifiable reliance
-Breach of def’s duty to plaintiff
-Causation
-Damages

61
Q

For a PF case of Interference with Business Relations, the following must be shown

A

-Existence of valid contractual relationship between P and 3P OR a valid business expectancy of the P
-Def’s knowledge of the relationship or expectancy
-Intentional interference by Def
-Damages

62
Q

In an Interference with Business Relations case, the def’s conduct may be privileged if

A

It is a proper attempt to obtain business for itself or protect its interest, more likely to be found where def:
-Interfered w/ prospective business rather than existing clients
-Used commercially acceptable means of persuasion
-Is a competitor seeking the same customers
-Has a financial interest in or for the 3P or is responding to their request for business advice

63
Q

Invasion of right to privacy can be committed by four acts

A

-Unauthorized Commercial Use of P’s picture or Name
-Intrusion on affairs or seclusion
-False light
-Public disclosure of private facts

64
Q

Intrusion on affairs or seclusion is one kind of _____ and requires ____

A

invasion of privacy

Intrusion on privacy that is highly offensive to a reasonable person

(Photos in public do not qualify b/c they’re not private)

65
Q

False light is one kind of _____ and requires ____

A

invasion of privacy

-Attribution to the P of views they don’t hold or acts they didn’t do
-The attribution is shared to the public at large
-That attribution is highly offensive to a reasonable person

1st A limit - Where a matter of public interest, actual malice must be proved

66
Q

Public disclosure of private facts is one kind of _____ and requires ____

A

Disclosure of private info that is highly offensive to a reasonable person

1st A limit - Where a matter of public interest, actual malice must be proved

Defenses:
-Consent
-Privilege
(NOT truth)

67
Q

A rescuer will not be able to recover if their actions were

A

reckless

68
Q

An invitee loses their protected status if

A

they exceed the scope of their invite

69
Q

The negligence of third persons renders the original tortfeasor liable for the resulting injuries if they were ____

A

a foreseeable risk caused by the original tortfeasor’s conduct

70
Q

For defamation per se, damages are ____ but truth of the statement may ____ recovery

A

Presumed

Diminish

71
Q

Actual malice requires showing

A

Knowledge or reckless disregard of falsity

Reckless disregard exists where the def subjectively had serious doubts about the truth

72
Q

For strict liability warning cases, courts expect suppliers to anticipate what kind of uses?

A

Reasonably foreseeable misuses

73
Q

At common law, are parents vicariously liable for their children’s torts?

A

No, but many states allow limited liability for intentional torts.

74
Q

Parents can be liable for their children’s torts if

A

they know of a behavioral propensity and fail to act with due care to prevent that behavior

75
Q

Nondelegable duties include

A

the duty of a business to keep its premises and instrumentalities safe for its customers

For example: common carriers owe a nondelegable duty to their passengers to provide a safe vehicle

76
Q

Contributory negligence is an _____ that must be raised in _____

A

affirmative defense

the defendant’s answer

77
Q

In a strict liability action regarding insufficient warning, the plaintiff is entitled to a presumption that a warning would have been

A

read and heeded

78
Q

A shopkeepers privilege will prevent a false imprisonment claim as long as

A

it is reasonable in effectuation and time

BAR Prep (14 decks)

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