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Torts Flashcards

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
Negligence per se occurs when
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
26
Violation of a statute as NPS is excused if
Compliance would be more dangerous OR compliance was beyond defendant's control
27
Is there a duty to rescue?
No
28
A duty to act arises through
Special relationship Statute Contract Causing peril Beginning rescue
29
The standard for common carriers or innkeepers requires
they act with a very high degree of care (so long as the plaintiff was their passenger or guest)
30
NIED requires
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
31
Res ipso loquitur is shown by plaintiff demonstrating that
-The accident is not one that would normally occur unless there was negligence -the negligence is probably attributable to the defendant
32
Under RIL, the negligence is probably attributable to the defendant if
they had exclusive control of the instrumentality
33
The effect of pleading a prima facie res ipsa case is
a directed verdict cannot be given RIL provides an inference of negligence which can be rejected by the finder of fact
34
Under the merged causes or substantial factor test
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
The unascertainable causes approach states
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
These things are always foreseeable and therefore do not break the proximate cause:
-Medical malpractice -Negligence of rescuers -Self defense, property defense, reaction to tort -Disease or accident substantially caused by the original injury
37
A superseding force is one that
Breaks the chain of causation because it produces unforeseeable results
38
An example of a superseding force is
independent criminal actions of third parties (unless they were foreseeable)
39
Assumption of risk denies plaintiff's recovery if
they knew of the risk AND voluntarily proceeded in the face of the risk
40
Liability rules for animals are:
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
Strict liability for abnormally dangerous activities applies if
-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
A products liability action may be brought under any of the following theories
-Intent -Negligence -Implied warranty of merchantability/fitness -Express warranty/misrep -Strict liability
43
Strict liability in a products action is available if
-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
Common defects include:
-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
The effect of compliance or noncompliance with gov safety standards is
Compliance - evidence of, but not conclusive, the product not being defective Noncompliance - establishes that it is defective
46
Private nuisance requires
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
For interference with one's use and enjoyment of their land to be substantial, it must be
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
In nuisance, an interference is unreasonable if
the injury outweighs the utility of the defendant's conduct
49
Nuisance differs from trespass in that
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
A public nuisance is
an act that unreasonably interferes with the health, safety, or property rights of the community
51
Under vicarious liability, an employer is liable for ___ acts but not ____ acts
Acts in the scope of employment or Detour (minor deviations) Frolic (Substantial deviation)
52
Employers are generally not liable for intentional torts except for where
-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
The rules for employers liability with regard to independent contractors are
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
Defamation requires
-Defamatory statement identifying the plaintiff -Published to a third party -That is false -Defendant was at fault -Plaintiff's rep was damaged
55
To be subject to defamation, a person must be ____
alive
56
The standards for defamation based on public or private are:
Public individual - actual malice (knowledge or reckless disregard of falsity) Private individual on matter of public concern - negligence
57
Damage to plaintiff's reputation for purposes of defamation can occur through
Libel - written or permanently recorded Slander - spoken
58
Statements that are slander per se:
-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
Defenses to defamation include
Consent Truty Privilege (absolute or qualified)
60
A PF case of Negligent Misrepresentation requires showing
-Misrep by def in a business/professional capacity -Justifiable reliance -Breach of def's duty to plaintiff -Causation -Damages
61
For a PF case of Interference with Business Relations, the following must be shown
-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
In an Interference with Business Relations case, the def's conduct may be privileged if
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
Invasion of right to privacy can be committed by four acts
-Unauthorized Commercial Use of P's picture or Name -Intrusion on affairs or seclusion -False light -Public disclosure of private facts
64
Intrusion on affairs or seclusion is one kind of _____ and requires ____
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
False light is one kind of _____ and requires ____
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
Public disclosure of private facts is one kind of _____ and requires ____
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
A rescuer will not be able to recover if their actions were
reckless
68
An invitee loses their protected status if
they exceed the scope of their invite
69
The negligence of third persons renders the original tortfeasor liable for the resulting injuries if they were ____
a foreseeable risk caused by the original tortfeasor's conduct
70
For defamation per se, damages are ____ but truth of the statement may ____ recovery
Presumed Diminish
71
Actual malice requires showing
Knowledge or reckless disregard of falsity Reckless disregard exists where the def subjectively had serious doubts about the truth
72
For strict liability warning cases, courts expect suppliers to anticipate what kind of uses?
Reasonably foreseeable misuses
73
At common law, are parents vicariously liable for their children's torts?
No, but many states allow limited liability for intentional torts.
74
Parents can be liable for their children's torts if
they know of a behavioral propensity and fail to act with due care to prevent that behavior
75
Nondelegable duties include
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
Contributory negligence is an _____ that must be raised in _____
affirmative defense the defendant's answer
77
In a strict liability action regarding insufficient warning, the plaintiff is entitled to a presumption that a warning would have been
read and heeded
78
A shopkeepers privilege will prevent a false imprisonment claim as long as
it is reasonable in effectuation and time

BAR Prep (14 decks)

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