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Bar Exam > Torts > Flashcards

Torts Flashcards

1
Q

In order to establish a prima facie case of intentional tort, P must prove:

A
  1. Act by D
  2. Intent
  3. Causation
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2
Q

In order to find a prima facie case for an intentional tort, there must be an act by D, defined as _______.

A

Volitional movement by D

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3
Q

In order to find a prima facie case for an intentional tort, there must be intent, either _______ or _______.

A

Specific

General

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4
Q

What is specific intent (for purposes of establishing a prima facie case for an intentional tort)?

A

D acts with the specific purpose of bringing about a particular result

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5
Q

What is general intent (for purposes of establishing a prima facie case for an intentional tort)?

A

D acts with knowledge to a substantial certainty that these consequences will result

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6
Q

What is transferred intent (for purposes of establishing a prima facie case for an intentional tort)?

A

Intent to commit a specific tort against a specific person is transferred to the tort actually committed or to the person actually harmed.

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7
Q

Transferred intent is limited to what torts?

A
  1. Assault
  2. Battery
  3. False Imprisonment
  4. Trespass to chattels
  5. Trespass to land
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8
Q

What is causation (for purposes of establishing a prima facie case for an intentional tort)?

A

Satisfied if D’s conduct was a “substantial factor” in bringing about P’s injury

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9
Q

What is battery?

A

Intentional infliction of a harmful or offensive bodily contact

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10
Q

What are the elements of battery?

A
  1. Intentional infliction…
  2. of bodily contact…
  3. that is harmful or offensive…
  4. to plaintiff’s person…
  5. that D caused
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11
Q

What is the specific intent requirement for battery?

A

Purpose of inflicting harmful or offensive contact

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12
Q

What is the general intent option for battery?

A

Knowledge to a substantial certainty that contact will be harmful or offensive

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13
Q

When would indirect contact qualify as bodily contact for battery?

A

Battery caused by something that was put in motion by D

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14
Q

What is the standard for whether contact is harmful/offensive enough to qualify as battery?

A

Reasonable person standard

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15
Q

Contact is considered offensive only if ________.

A

A reasonable person would not consent to it

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16
Q

For purposes of battery, there is implied consent for what contact?

A

Ordinary contacts of everyday life

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17
Q

For purposes of battery, plaintiff’s person is ________.

A

Anything the victim is holding, touching, or connected to

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18
Q

________ are not required in order to find battery.

A

Actual damages

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19
Q

What is assault?

A

Intentional creation of reasonable apprehension of imminent harmful/offensive bodily contact

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20
Q

What are the elements of assault?

A
  1. Intentional act by D
  2. Reasonable apprehension of imminent battery
  3. Causation
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21
Q

An intentional act by D that constitutes assault requires intent to:

A
  1. Create apprehension OR
  2. Make harmful/offensive contact
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22
Q

For purposes of finding assault, apprehension means _______.

A

Knowledge of imminent harmful/offensive contact

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23
Q

For purposes of assault, apprehension is measured from ____________.

A

P’s perspective

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24
Q

Words alone are not sufficient for an assault because __________.

A

Words lack immediacy

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25
Q

For purposes of assault, words may negate __________, even if there is _______.

A

Apprehension

An overt act by D

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26
Q

Are future threats assaultive?

A

No; no imminence, so no assault

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27
Q

What is a conditional threat?

A

Instances where D threatens harm only if the victim doesn’t obey D’s demands.

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28
Q

Conditional threats are not sufficient for assault liability if:

A
  1. D has a legal right to compel the action OR
  2. Condition expressly negate’s D’s intent to harm
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29
Q

________ are not required to find assault.

A

Actual damages

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30
Q

What is false imprisonment?

A

Intentional infliction of confinement where the victim has knowledge of/is harmed by the confinement

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31
Q

What are the elements of false imprisonment?

A
  1. Intentional act or omission…
  2. That confines/restrains P to a bounded area….
  3. P knows of/is harmed by confinement
  4. D caused
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32
Q

What is the specific intent option for false imprisonment?

A

D must act either with the specific intent to confine the victim

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33
Q

What is the general intent option for false imprisonment?

A

D must act with knowledge to a substantial certainty that her actions/inaction would confine the victim

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34
Q

How long must someone be confined in order to qualify as false imprisonment?

A

No specific duration required

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35
Q

What is a bounded area for purposes of false imprisonment?

A
  1. P’s movement is confined in all directions AND
  2. No reasonable means of escape known to the victim (or that victim can reasonably discover)
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36
Q

What is NOT sufficient for false imprisonment?

A
  1. Future threats
  2. Moral pressure
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37
Q

__________ are not required for false imprisonment.

A

Actual damages

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38
Q

What is intentional infliction of emotional distress?

A

Intentional/reckless infliction of severe emotional/mental distress by extreme/outrageous conduct

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39
Q

What are the elements of intentional infliction of emotional distress?

A
  1. Intentional/reckless infliction…
  2. of severe emotional/mental distress…
  3. by extreme/outrageous conduct
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40
Q

What is the specific intent option for intentional infliction of emotional distress?

A

D acts with the specific desire to cause emotional distress in the victim

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41
Q

What is the general intent option for intentional infliction of emotional distress?

A

D acts with knowledge to a substantial certainty that the victim will suffer emotional distress

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42
Q

What is the recklessness option for intent for the intentional infliction of emotional distress?

A

D acts with reckless disregard of the high probability that emotional distress will occur

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43
Q

When is mental/emotional distress severe enough for the tort of intentional infliction of emotional damage?

A

Emotional distress of such substantial/enduring quality that no reasonable person in a civilized society should be expected to endure it.

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44
Q

What is extreme and outrageous conduct (for purposes of intentional infliction of emotional damage)?

A

Conduct that would cause an average member of the community to immediately react in outrage

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45
Q

What factors are considered when looking for extreme/outrageous conduct?

A
  1. Pattern of conduct
  2. D owned victim fiduciary duty
  3. Use of racial epithets
  4. Vulnerable victims
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46
Q

D owes the victim of emotional distress a fiduciary duty in what sitiuations?

A
  1. Employer-employee relationship
  2. Doctor-patient relationship
  3. Common carrier or inn keeper
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47
Q

Who is a vulnerable victim in regards to intentional infliction of emotional distress?

A
  1. Young children
  2. Elderly
  3. Pregnant women
  4. Supersensitive victims (if sensitivity known to D)
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48
Q

Unlike most other intentional torts, _______ are required in order to find intentional infliction of emotional distress.

A

Actual damages

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49
Q

When can P recover for intentional infliction of emotional distress for harm caused by D to 3rd parties?

A
  1. Able to satisfy all elements of prima facie case OR
  2. Immediate family member injured and present when injury occurred
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50
Q

What is trespass to land?

A

Interference with the interest in exclusive possession of land

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51
Q

What are the elements of trespass to land?

A
  1. Wrongful physical invasion
  2. Of P’s real property
  3. Intent
  4. Causation
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52
Q

The air above and ground below P’s land qualify as real property for the purposes of trespass to land, but only __________.

A

Within a space the property’s owner would reasonably use

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53
Q

What intent is required for trespass to land?

A

Intended actual entry (knowing wrongfulness not required)

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54
Q

A plaintiff can recover for trespass even without __________ to the land.

A

Actual damages

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55
Q

What is trespass to chattels?

A

Intentional interference with a person’s use or possession of a chattel

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56
Q

What are the elements to trespass to chattels?

A
  1. Intent
  2. Interference with a person’s right of possession in chattel
  3. Causation
  4. Damages
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57
Q

For purposes of trespass to chattel, interference with a person’s right of possession in chattel can take the form of:

A
  1. Intermeddling (damage with chattel) OR
  2. Dispossession (deprivation of lawful possession)
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58
Q

Loss of possession, even if __________, is sufficient for damages in trespass to chattels,

A

The chattel is eventually returned unharmed

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59
Q

What is conversion?

A

Substantial intentional interference with a person’s use or possession of a chattel

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60
Q

What are the elements of conversion?

A
  1. Intent
  2. Substantial interference with P’s rights of possession
  3. So severe that D justly required to pay full value of chattel
  4. Causation
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61
Q

When is interference with P’s right to possession substantial enough to amount to conversion?

A

Subsubstantial enough to amount to the exercise of dominion or control

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62
Q

What factors establish conversion from trespass to chattels?

A
  1. Duration
  2. Good/bad faith
  3. Harm to property
  4. Inconvenience to victim
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63
Q

If damages are granted as remedy for conversion, they are calculated based on:

A

Fair market value at the time of conversion

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64
Q

What remedies are available for trespass to chattels?

A
  1. Damages
  2. Recover possession
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65
Q

What is express consent?

A

Express consent is consent that is clearly and unmistakably stated

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66
Q

Express consent is invalid if brought about by:

A
  1. Fraud
  2. Duress
  3. Mistake
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67
Q

Fraud only invalidates express consent if __________

A

Related to essential matters

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68
Q

Duress invalidates express consent unless ________.

A

Only threats of future harm/economic deprivation

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69
Q

Mistake only invalidates express consent if:

A
  1. D knew of P’s mistake AND
  2. Took advantage of the mistake
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70
Q

Consent to touching may be implied from:

A
  1. Objective manifestation of P’s consent
  2. Activities where minor invasions are customary
  3. Consent from circumstances (e.g. saving P’s life)
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71
Q

Consent is not a defense if P is incapable of ______.

A

Consenting

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72
Q

Even if there is consent, D will nevertheless be liable if her actions _______.

A

Go substantially beyond the scope of consent

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73
Q

What is the self-defense defense?

A

A person is entitled to use reasonable force to prevent any threatened harmful/offensive contact as well as any threatened false imprisonment

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74
Q

To use force in self-defense, D must reasonably believe ________.

A

Force will be used against her.

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75
Q

D may not use force to prevent harm that is not imminent unless ________.

A

It reasonably appears that there will not be a later opportunity to prevent the harm

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76
Q

What degree of force may D use in self-defense?

A

Only the degree of force required to prevent impending harm

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77
Q

What happens if D uses more force than necessary to prevent impeding harm?

A

WIll subject D to liability for damages caused by the excessive use of force

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78
Q

A non-aggressor victim may use non-deadly force in self-defense anytime the victim reasonably believes that _______.

A

Force will be used against her

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79
Q

When can a victim use deadly force in self-defense?

A
  1. Victim is not at fault
  2. Victim is confronted with unlawful force AND
  3. Victim reasonably believes she is facing imminent threat of death or serious bodily harm
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80
Q

What is the restatement view on whether there is a duty to retreat?

A

Exists for deadly force unless defender is inside her home.

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81
Q

What happens if someone injurs a third party while defending herself?

A

Self-defense extends to accidental third-party injurites

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82
Q

D asserting defense of another cannot use force that is ____________.

A

Excessive under the circumstances

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83
Q

Even if a 3rd party couldn’t have asserted self-defense, D can assert self-defense as long as _________.

A

The belief was reasonable

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84
Q

What is the alter ego theory for defense of a 3rd party?

A

Defender may use the same degree of force in defense of a 3rd party if the tort was threatened against her

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85
Q

What is the defense of property?

A

The general rule is that a person may use reasonable force to defend her property

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86
Q

Before using defense of property, the owner must _____________.

A

make a verbal demand that the offending individual desist/leave

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87
Q

A property’s owner need not provide a warning before using force to defend property if ________.

A

It reasonably appears that the request will be futile or that violence will occur immediately

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88
Q

The use of deadly force is prohibited in defense of property unless ______

A

there is imminent threat of death/serious bodily harm

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89
Q

An owner may not use a _______ device to protect her property.

A

Deadly mechanical

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90
Q

Privilege to _______ trumps the owner’s privilege to defend her property.

A

Enter land

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91
Q

For defense of property, reasonable mistake is permitted as to whether:

A
  1. Tort has actually occured
  2. Verbal warning was required
  3. Intruder had a privilege AND
  4. D caused the mistake
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92
Q

For defense of property, reasonable mistake is NOT permitted for whether ________.

A

Intruder had a privilege to be on D’s property (unless intruder caused the mistake)

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93
Q

What is the defense of recapture of chattels?

A

Right to use reasonable force to regain possession of chattels if the property owner is in “fresh pursuit” of one who has wrongfully obtained possession of chattels

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94
Q

What does it mean for a property owner to be in fresh pursuit of the tortfeasor?

A

Without unreasonable delay

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95
Q

Before making fresh pursuit, an owner must first make a timely demand to return the property unless:

A
  1. Futile OR
  2. Dangerous
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96
Q

The force used to recapture chattels must be _______ but not ________.

A

Reasonable

Deadly

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97
Q

In order to use force to recapture chattels, the initial taking must be _______.

A

Wrongful

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98
Q

An owner may only use force to recapture chattels from:

A
  1. Actual tortfeasor OR
  2. Another third party who is aware that the chattels were tortiously obtained
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99
Q

Can a property owner use force to reenter land?

A

At common law, but not at modern law

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100
Q

What is public necessity as a defense to intentional torts?

A

Interference with real/personal property is necessary to prevent a disaster to the community/many people

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101
Q

What is private necessity as a defense to intentional torts?

A

Interference w/ real or personal property in an emergency to prevent injury to herself/her property/3rd party’s person/property, as long as there is no less-damaging method to prevent the harm

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102
Q

An owner whose property could be damaged from private necessity cannot prevent the exercise of this privilege if _______.

A

There is an emergency

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103
Q

Private necessity is a complete defense to:

A
  1. Nominal damages
  2. Punitive damages
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104
Q

Private necessity is not a defense to ______.

A

Actual damages; must still be payed

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105
Q

What is the shopkeeper’s privilege?

A

A shopkeeper is allowed to detain a suspected shoplifter on store property:
1. In a reasonable manner
2. For a reasonable period of time
3. So long as she has cause to reasonably believe the detained person stole/attempted to steal

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106
Q

Under the shopkeeper’s privilege, a reasonable period of time is ______

A

A short period long enough to determine whether the suspect actually shoplifted goods

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107
Q

A police officer will not be liable for executing an invalid arrest warrant if ________.

A

It appears to have been correctly issued

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108
Q

A police officer may arrest a suspect for a felony without a warrant, if the officer has reasonable belief that:

A
  1. Felony has been committed AND
  2. Suspect committed the felony
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109
Q

What force is permitted when an officer makes an arrest without a warrant?

A

Reasonable force necessary to make arrest

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110
Q

A police officer may only employ deadly force when _______.

A

The suspect poses serious threat

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111
Q

What are the requirements for a felony arrest by a private citizen?

A

Same as a police officer making a warrantless arrest, except that a felony must have actually been committed

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112
Q

Who can make misdemeanor arrests without a warrant?

A
  1. Police officer
  2. Private citizen
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113
Q

A misdemeanor arrest may only be done when:

A
  1. Breach of peace AND
  2. Committed in arresting party’s presence
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114
Q

__________ incapacity is not a defense to intentional torts.

A

Legal

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115
Q

To establish a prima facie case of negligence, P must prove:

A
  1. Duty
  2. Breach of duty
  3. Causation
  4. Damages
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116
Q

What is a duty of care?

A

Legal duty requiring D to act according to a certain standard to protect P against an unreasonable risk of injury

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117
Q

Who is a duty of care owed to?

A

All foreseeable victims

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118
Q

Under the majority view, a plaintiff is foreseeable if ________.

A

A reasonable person would have foreseen a risk of injury

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119
Q

Under the minority view, a plaintiff is foreseeable if ________.

A

Everyone is a foreseeable plaintiff

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120
Q

Who is a foreseeable plaintiff when a rescue occurs?

A

Rescuee, not the rescuer

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121
Q

At what stage does a human become eligible for a duty of care?

A

Viable fetus

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122
Q

What is a basic standard of care… standard?

A

Reasonable person acting under similar circumstances

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123
Q

Only __________ disabilities affect the reasonable person standard.

A

Physical, not mental

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124
Q

How does intoxication affect the reasonable person standard?

A

Irrelevant

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125
Q

How does being a minor affect the reasonable person standard?

A

What would a reasonable person of that age, experience, and intelligence do under similar circumstances

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126
Q

If a child engages in an activity that is normally _____, the child will be held to the reasonable standard of care an adult would exhibit.

A

Pursued only by adults

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127
Q

Children under the age of _______ are incapable of negligence.

A

Four

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128
Q

What is the tender years doctrine?

A

Minor less than seven cannot be found negligent.

Applied in very few jurisdictions

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129
Q

How does custom affect the reasonable person standard?

A

Evidence is admissible but not conclusive

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130
Q

How does emergency affect the reasonable person standard?

A

Must act as a reasonable person would if confronted with the same emergency

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131
Q

How does superior knowledge affect the reasonable person standard?

A

If a person has a higher degree of knowledge than the average person, that person must use this higher level when acting

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132
Q

Is there a legal duty to act?

A

Generally, no.

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133
Q

A legal duty to act will be found where there is:

A
  1. Voluntary assumption of care
  2. Creation of peril
  3. Relationship between parties
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134
Q

Where there is a voluntary assumption of care, there is an obligation to _______.

A

Act with a reasonable standard of care

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135
Q

Where D creates peril, there is a duty to _____.

A

Assist

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136
Q

Common carriers have a duty to ____.

A

Customers

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137
Q

Innkeepers have a duty to _____.

A

Guests

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138
Q

Shopkeepers have a duty to ______.

A

Customers

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139
Q

Prison officers have a duty to _______.

A

Prisoners

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140
Q

When has D breached her duty of care?

A

When D fails to conform her conduct to the applicable standard of care

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141
Q

The negligence per se doctrine applies when _________.

A

A safety statute has a sufficiently close application to the facts of the negligence case before the court

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142
Q

In order for a security statute to apply to the facts and trigger negligence per se, what are the requirements:

A
  1. P is part of a class of persons protected by statute AND
  2. Statute intended to prevent against a particular type of harm suffered by P
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143
Q

An unexcused violation of a safety statute conclusively establishes that D was _______. However, P must still prove _______ and _______.

A

Negligent

Causation and damages

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144
Q

D’s compliance with a security statute does not necessarily establish ________.

A

Due care

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145
Q

Excused violations of security statutes occur when:

A

Compliance
1. Would cause more harm than violation OR
2. Is beyond D’s control

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146
Q

Res ipsa loquitur applies when _____.

A

P doesn’t have direct evidence of D’s negligent conduct

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147
Q

What are the requirements of res ipsa loquitur?

A
  1. No direct evidence as to D’s conduct
  2. Accident doesn’t occur without someone’s negligence AND
  3. Instrument is within D’s exclusive control
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148
Q

What is the result of the doctrine of res ipsa loquitur?

A

P is treated as having produced enough evidence of D’s negligence to get the case to the jury

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149
Q

What is cause in fact?

A

The link between the injury to P and D’s injury of the duty of care

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150
Q

What is the “but for” test?

A

But for the breach of duty by D, P would not have been injured.

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151
Q

The but-for test also applies to concurrent causes when ___________.

A

Neither act alone would have been sufficient to cause the injury

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152
Q

When there are joint causes, each of which would have been sufficient by itself to cause the injury to P, apply the ______ test.

A

Substantial factor test

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153
Q

What is the substantial factor test?

A

As long as one of the causes was a substantial factor in bringing about P’s injury, it will be considered a cause-in-fact.

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154
Q

If both concurrent causes are substantial factors, then _______.

A

The Ds will be jointly liable

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155
Q

If multiple parties breached the duty of care, but it can’t be proved which one caused P’s injury, then:

A

Unless proven otherwise, both are liable. Burden shifts to D.

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156
Q

The doctrine of proximate cause is _________.

A

Philosophical connection which limits liability to consequences that bear some reasonable relationship to D’s conduct so as not to offend notions of common sense, justice. and logic.

157
Q

What is the foresight approach?

A

Were the particular damages foreseeable at the time D acted? If yes, then proximate cause.

158
Q

What is the process for the foresight approach?

A
  1. Why was D negligent?
  2. Was the injury suffered within the foreseeable risk at the time D acted?
159
Q

When is D’s conduct the direct cause of P’s injury?

A

Where there is an unbroken chain of events from negligence to harm.

160
Q

Where D’s conduct is direct cause of P’s injury, D is liable unless _________.

A

The injury wasn’t a foreseeable harm of the risk created by D’s negligence

161
Q

When is D an indirect cause of P’s injury?

A

An affirmative intervening force breaks the chain from D’s negligence to P’s injury

162
Q

D is liable for all damages caused by ______ intervening events stemming from her negligence.

A

Foreseeable

163
Q

______ malpractice is always foreseeable negligence?

A

Medical

164
Q

Negligence of ______ is always foreseeable negligence.

A

Rescuers

165
Q

Reactions to _________ are always foreseeable negligence.

A

D’s actions

166
Q

Subsequent _____ and ______ are always foreseeable negligence.

A

Disease

Accident

167
Q

D is not responsible for the negligent superseding acts of _______.

A

Third parties

168
Q

A tortfeasor will only be held liable for criminal acts of third parties if ______.

A

The tortfeasor should have realized the likelihood of the crime at the time of her negligence

169
Q

D is never liable for acts of _______.

A

God

170
Q

What are personal injury damages?

A

P will be compensated for all past, present, and prospective damages, both economic and noneconomic

171
Q

What is the rule for thin-skulled victims?

A

D takes P as she finds her; foreseeability i not required for the extent of harm

172
Q

What are property damages?

A
  1. Reasonable cost of repair OR
  2. If property has been totaled/destroyed, FMV of property at time of the accident
173
Q

Punitive damages are available only if _________.

A

D’s conduct was reckless, malicious, or willful/wanton

174
Q

Punitive damages are not available in ordinary _______ cases.

A

Negligence

175
Q

What is the duty to mitigate?

A

P has an affirmative duty to take reasonable steps to mitigate damages

176
Q

What is the collateral source rule?

A

P collects damages from a collateral source (such as loss insurance or health insurance)

177
Q

What happens if P contributed negligence?

A

P is completely barred from recovery

178
Q

What is the Last Clear Chance doctrine?

A

If D had an opportunity to prevent the harm just before the accident and did not, P is not barred from recovery.

179
Q

Contributory negligence is not a defense to __________ torts.

A

Intentional

180
Q

What effect does comparative negligence have?

A

P’s negligence is not a complete bar, but rather reduces the amount of P’s recovery by percentage of contribution

181
Q

There is partial comparative negligence, when ____________.

A

P assigned more than 50% of the negligence

182
Q

What happens if there is partial comparative negligence?

A

P is barred from recovery

183
Q

Under pure comparative negligence, then __________.

A

P can recover no matter how great her comparative negligence is

184
Q

P cannot recover if P voluntarily consented to a _______ risk.

A

Known

185
Q

When is there implied assumption of risk?

A

P assumes risk by her conduct

186
Q

When is there express assumption of risk?

A

P expressly agrees with D in advance of any harm that P won’t hold D liable

187
Q

Assumption of risk is not a defense to _________ torts

A

Intentional

188
Q

Landowners don’t have any duty to protect those off the premises for ___________.

A

Natural conditions on the premises

189
Q

Even though a landowner is not liable for the natural condition on premise, they are liable for _______________.

A

Damage caused off the premies by natural conditions on the premises

190
Q

Landowners have a duty of reasonable care for ______________ artificial conditions.

A

unreasonably dangerous

191
Q

A landowner must conduct activities on her land in what manner?

A

A manner that will avoid unreasonable harm to those outside the property

192
Q

If a landowner owes any duty, she may satisfy the duty of reasonable care by:

A
  1. Making the condition safe OR
  2. Issuing a warning of the dangerous condition
193
Q

Who are licensees?

A

People who entered land with owner’s consent but who doesn’t have a business purpose for being there (aka social guests)

194
Q

What duty does a landowner owe to a social guest in regards to activities on the property?

A

Reasonable care

195
Q

What duty does a landowner owe to a social guest in regards to unknown concealed dangers?

A

No duty to inpect

196
Q

What duty does a landowner owe to a social guest in regards to known concealed dangers?

A

Duty to warn

197
Q

Who is an invitee?

A
  1. A person invited onto the land to conduct business with the owner OR
  2. A person invited as a member of the public for purposes of which the land is held open to the public
198
Q

What duty does a landowner owe to invitees in regards to known concealed dangers?

A

Duty to warn

199
Q

What duty does a landowner owe to invitees in regards to activities on the property?

A

Reasonable care

200
Q

What duty does a landowner owe to invitees in regards to unknown concealed danger?

A

Duty to inspect land with reasonable care

201
Q

The main difference between a landowner’s duty to a licensee vs. an invitee is _________.

A

For invitee, duty owed to inspect property for hidden dangers

202
Q

A landowner owes no duty of care to what persons?

A

Undiscovered trespassers

203
Q

There is a duty owed to ________ or ________ trespassers

A

Anticipated

Expected

204
Q

If a landowner knows of a trespasser’s presence, what duty does the owner owe regarding activities on the land?

A

Reasonable care for the trespasser’s safety

205
Q

If a landowner discovers a trespasser, she has a duty to warn the trespasser of any condition that is:

A
  1. Artificial
  2. Highly dangerous
  3. Hidden AND
  4. Known to landowner
206
Q

What standard do landowners owe to children when it comes to activities on the land?

A

Reasonable care

207
Q

What standard do landowners owe to children when it comes to natural conditions of the land?

A

No duty unless licensee or invitee

208
Q

What is the attractive nuisance doctrine?

A

A landowner must exercise reasonable care to avoid a reasonably foreseeable risk of serious harm to children caused by attractive artificial conditions.

209
Q

An owner is liable under the attractive nuisance doctrine if:

A
  1. Dangerous artificial condition owner is/should be aware of
  2. Owner knows/should know children are likely to trespass
  3. Condition is likely to cause injury
  4. Children unaware of the danger
  5. Risk to children substantially outweighs expense of eliminating danger AND
  6. Owner fail to exercise reasonable care
210
Q

What is the firefighter’s rule?

A

Public safety personnel preforming safety duties can never recover for injuries caused by the inherent risks of their jobs

211
Q

Claims for Negligent Infliction of Emotional Distress are brought by parties who were _______________.

A

Not directly physically harmed a a result of the breach

212
Q

The duty to avoid causing negligent infliction of emotional distress to another is breached when:

A
  1. P was in zone of physical danger created by D’s negligent conduct OR
  2. Special relationship between P & D
213
Q

In most jurisdictions, negligent infliction of emotional distress is only found if there are __________ consequences.

A

Physical

214
Q

In most jurisdictions, negligent infliction of emotional distress is only found if there are physical consequences - unless there is:

A
  1. Erroneous report of relative’s death OR
  2. Mishandling of a relative’s corpse
215
Q

A bystander’s fear for others’ safety can be grounds to collect damages for negligent infliction of emotional distress if:

A
  1. P was present at the scene
  2. P observed or perceived the injury AND
  3. P & injured party are closely related
216
Q

What is strict liability?

A

Liability regardless of culpability or fault

217
Q

The owner of livestock is strictly liable for physical damage caused when these animals ______

A

Trespass onto another’s land

218
Q

Animal owners are not strictly liable for the physical harm caused by trespassing animal if they are:

A
  1. Cats
  2. Dogs
219
Q

Owners of _____ or _____ animals are strictly liable for any harm caused by that animal’s _______ nature.

A

Wild or abnormally dangerous

Dangerous

220
Q

A wild animal is _______.

A

One that belongs to a category of animals that have not been generally domesticated

221
Q

For the owner of a wild animal to be held strictly liable, the injury must result from _________.

A

A dangerous propensity that is typical of the wild animal in question

222
Q

Injuries caused by domestic animals don’t give rise to strict liability unless _________.

A

The owner knows or had reason to know that the animal is dangerous

223
Q

A person is strictly liable for any harm that occurs while engaging in a __________ activity.

A

Abnormally dangerous

224
Q

A person is strictly liable for any harm that occurs while engaging in an abnormally dangerous activity, so long as the harm results from _____________.

A

The kind of risk that made the activity abnormally dangerous in the first place

225
Q

_________ precautions taken by D are completely irrelevant while engaging in abnormally dangerous activities

A

Safety

226
Q

Under the 6th Restatement, what are the factors to be considered when determining whether an activity is “abnormally dangerous?”

A
  1. High risk
  2. Of serious harm
  3. Risk can’t be eliminated
  4. Activity not common
  5. Activity not appropriate for place AND
  6. Danger outweighs value
227
Q

Under the 3rd Restatement, an activity is abnormally dangerous if:

A
  1. Activity creates a foreseeable risk of significant harm even when reasonable care is exercised AND
  2. Activity is not one of common usage in the community
228
Q

Liability for abnormally dangerous activities only extended to the kind of risks that __________.

A

Make the activity abnormally dangerous in. thefirst place

229
Q

D will not be liable for harm resulting from abnormally dangerous activities that occurs in a _________ manner

A

Unforeseeable

230
Q

How does comparative negligence affect strict liability?

A

P’s recovery is still reduced by her degree of negligence

231
Q

How does contributory negligence affect strict liability?

A

Contributory negligence does not bar P from recovering under strict liability

232
Q

How does the assumption of risk affect strict liability?

A

P cannot recover

233
Q

A seller of a product is strictly liable for injuries caused by __________.

A

Defective products

234
Q

Which persons are subject to strict liability for harm caused by defective projects?

A

Someone engaged in selling/distributing products who sells/distributes a defective product

235
Q

Anyone who is part of _____________ is subject to strict product liability, regardless of which party is actually at fault.

A

The distribution chain

236
Q

_______ sellers cannot be held strictly liable for product liability.

A

Casual

237
Q

When does a product fall within the requirements of product liability?

A
  1. The product is defective OR
  2. The manufacturer failed to give adequate warning for nonobvious risks
238
Q

For purposes of product liability, a manufacturing defect is _______.

A

A product that deviates from the norm of production in a way that makes it more dangerous, even though all care was exercised

239
Q

For purposes of product liability, what is a design defect?

A

All products are the same, but they bear a feature whose design is itself defective and unreasonably dangerous

240
Q

Liability for design defect is limited to what?

A

Foreseeable risk of harm posed by the product

241
Q

What is the consumer expectation test?

A

P must show that a product failed to perform as safely as ordinary consumer would expect

242
Q

In addition to intended uses, D must anticipate ____________.

A

Reasonable misuses

243
Q

What is the risk-benefit test?

A

To prove a design defect, P must how that D could have made a safer product without serious impact to the product’s price/utility

244
Q

What are the elements of the risk-benefit test?

A
  1. There is a safer alternative design
  2. There is an economically effective alternative design AND
  3. The alternative design is practical to consumer
245
Q

Even if a product is properly designed and manufactured, D will still be liable if:

A
  1. The product has non-obvious, foreseeable risks AND
  2. Manufacturer fails to give adequate warnings/instructions regarding correct usage
246
Q

When must a defective condition exist for product liability to exist?

A

When the product left D’s hands

247
Q

The manufacturer is presumed to be the actual cause of a product defect if __________.

A

The product went through the ordinary channels of commerce

248
Q

What is the doctrine of res ipsa loquitur (as relates to product liability)?

A

Harm sustained by P was caused by a defect existing at distribution when:
1. Ordinarily occurs as a result of a product defect AND
2. No other cause is identified by D

249
Q

If there is a foreseeable misuse of a product, D must either:

A
  1. Take reasonable design precautions OR
  2. Warn the purchaser against such misuse to avoid liability
250
Q

Who can sue based on products liability?

A

Any foreseeable plaintiff, even if no contractual relationship exists

251
Q

What happens if a product is noncompliant with safety statutes?

A

Renders the product defective, actual defects aside

252
Q

What happens if a product is compliant with safety statutes?

A

Nondeterminative evidence against defect

253
Q

Manufacturers are not strictly liable for ________ products.

A

Unavoidably unsafe

254
Q

_______ negligence is a defense to strict products liability; _________ negligence is not.

A

Comparative

Contributory

255
Q

Assumption of ______ is a defense to strict product liability.

A

Risk

256
Q

What effect do disclaimers and waivers have on strict product liability?

A

Absolutely none

257
Q

A sale of goods may include ______ implied warranties.

A

Two

258
Q

What is the implied warranty of merchantability?

A

Goods sold by merchants must be fit for their ordinary purpose

259
Q

The implied warranty of merchantability limits the definition of merchants to those who:

A
  1. Are sellers in business AND
  2. Regularly sell the kind of goods at issue
260
Q

The disclaimer of an implied warranty of merchantability must be ________.

A

In different print/font from the rest of the contract

261
Q

What phrases effectively eliminate implied warranties?

A
  1. “As is”
  2. “With all faults”
262
Q

Merchants can limit remedies unless _____.

A

Doing so would be unconscionable

263
Q

A merchant’s limitation of remedies is prima facie unconscionable when ________.

A

Breach of warranty on consumer goods causes personal injury

264
Q

If a buyer has a particular purpose for purchasing goods that a seller is aware of, then _________.

A

The goods must be fit for that particular purpose

265
Q

Who can bring an action for breach of implied warranties?

A
  1. Buyer
  2. Her family
  3. Her household
  4. Her guests
266
Q

D will be liable when a product does not satisfy some ________ representation

A

Affirmative

267
Q

How can express warranties arise?

A
  1. Statement of fact
  2. By promise
  3. By conduct
268
Q

Statements of ______ are not express warranties.

A

Opinion

269
Q

Disclaimer of express warranty is only effective if ________.

A

It is consistent with the warranty

270
Q

When will a seller be liable for a misrepresentation of a material fact?

A
  1. Misrepresentation of material fact AND
  2. Seller intended to induce reliance
271
Q

What is defamation?

A

Injury to a person’s reputation

272
Q

The common law elements of defamation are:

A
  1. A defamatory statement…
  2. referencing P…
  3. published by D to a third person AND
  4. damaging P’s reputation
273
Q

When is a statement defamatory?

A

Harms P’s reputation

274
Q

Mere _______ or _________ aren’t sufficient for defamation.

A

Insults

Name-calling

275
Q

Can a deceased person be subject to defamation?

A

No

276
Q

Can corporations be defamed?

A

Yes, but only if:
1. The statement prejudices the corporation in its course of business OR
2. Deters others from dealing with the corporation

277
Q

Publication of defamation is defined as __________.

A

Seen/heard by someone other than P

278
Q

What mental state is required for publication of defamation?

A
  1. Intent OR
  2. Negligence
279
Q

What is libel?

A

Defamation published in durable (aka written) form. Can be physical or digital.

280
Q

Does P need to show damages in a libel action?

A

No

281
Q

What is slander?

A

Defamation published in fleeting form (aka speech)

282
Q

What is slander per se?

A

P doesn’t need to show damages to succeed

283
Q

What are the four types of slander per se?

A

Alleging that P has…
1. Crimes of moral turpitude
2. Loathsome disease
3. Sexual misconduct
4. P’s conduct in business, profession, trade, or office

284
Q

If there is no slander per se, P must show ___________ to prevail in a slander action.

A

Economic harm

285
Q

Constitutional issues with defamation arise when:

A
  1. Refers to a public figure OR
  2. Involves a matter of public concern
286
Q

In addition to typical defamation requirements, defamation claims where P is a public figure require:

A
  1. Defamation is false AND
  2. Fault by D
287
Q

Who has the burden of proof of showing that defamation is false (re: public figure defamation)?

A

Plaintiff

288
Q

In defamation actions brought by public officials/figures, there is fault by D if:

A
  1. Knowledge that statement is false OR
  2. Reckless disregard for finding truth
289
Q

In defamation actions brought by private person that involve public concern, P must show ________ to prove fault by D.

A

Negligence

290
Q

What are the defenses to defamation?

A
  1. Consent
  2. Truth
  3. Absolute privilege
  4. Qualified privilege
291
Q

What is the consent defense to defamation?

A

If publication takes place with P’s consent, then D has complete defense

292
Q

What is the truth defense to defamation?

A

If a statement is factually accurate, D has a complete defense to defamation

293
Q

What is the husband & wife privilege for defamation?

A

Any communication between husband and wife is absolutely privileged

294
Q

Any statements during a _____ proceeding are absolutely privileged.

A

Judicial

295
Q

Statements made by _____ while acting in their official capacity are absolutely privileged

A

Government officials

296
Q

One who is required by law to _________ is absolutely privileged in that action.

A

Publish a defamatory matter

297
Q

Qualified privilege is based on the _________ or _________ of the remarks.

A

Circumstances

Occasion

298
Q

Qualified privilege will be lost if ________.

A

Abused

299
Q

When is there actual malice that causes the loss of qualified privilege?

A
  1. D knew the statement was false when made OR
  2. D acted in reckless disregard as to whether it was true
300
Q

A qualified privilege is forfeited if the primary purpose of the statement is __________.

A

Something other than protecting the interest for which the privilege is given

301
Q

D will lose qualified privilege if there is excessive publication, meaning:

A
  1. Made to people to whom publication wasn’t reasonably necessary OR
  2. More damaging info than reasonably necessary
302
Q

There is qualified privilege when reporting on ________.

A

Public proceedings

303
Q

There is qualified privilege to protect ______ or _______ interests.

A

Publisher’s

Recipient’s (based on request)

304
Q

When people with a common interest in a particular subject matter reasonably believe that there is __________, there is qualified privilege.

A

information that someone sharing the common interest is entitled to know

305
Q

There is qualified privilege for communications made to those who act _________.

A

In the public interest

306
Q

The tortious invasion of privacy can occur via:

A
  1. Appropriation
  2. Intrusion
  3. Publicity of private life AND
  4. False light
307
Q

What is appropriation?

A
  1. The unauthorized use of P’s name/picture of D…
  2. for D’s own benefit
308
Q

What is the most common version of appropriation?

A

Use of P’s name/likeness to advertise D’s buiness/product

309
Q

What is the major exception to appropriation?

A

Newsworthy use

310
Q

What is newsworthy use?

A

Use of P’s name/likeness in connection with matters of legitimate public concern

311
Q

Intrusion occurs when:

A
  1. P’s solitude is intruded upon by D…
  2. in a manner that would be highly offensive to a reasonable person
312
Q

Intrusion must take place in a place where _________.

A

There is a reasonable expectation of privacy

313
Q

Publicity of private life occurs when:

A
  1. D has publicized the details of P’s private
  2. The effect must be highly offensive to a reasonable person of ordinary sensibilities AND
  3. The matter isn’t of legitimate concern to the public
314
Q

TO find publicity of private life, the information published must truly be ______.

A

Private

315
Q

What distinguishes false light from publicity of private information?

A

Publicity of private life is based on true information

316
Q

What is the one exception to the publicity of private information?

A

Newsworthy use

317
Q

False light occurs when:

A
  1. D places P before the public eye…
  2. In a false light…
  3. That would be highly offensive to a reasonable person
318
Q

Where there is false light, P may recover damages for both ______ and ______ damages.

A

Social

Emotional

319
Q

How is false light distinguished friom defamation?

A
  1. Defamation allows the recovery of economic damages only
  2. Defamation only requires publication to one person; false light requires widespread dissemination
320
Q

False light does not have to be ________.

A

Defamatory

321
Q

What are the defenses to invasion of privacy?

A
  1. Newsworthy use
  2. Consent
  3. Absolute & qualified defamation privilege
322
Q

What is public nuisance?

A

Interference with a right common to the general public

323
Q

What are the elements of public nuisance?

A
  1. Substantial harm required AND
  2. Injury to the public at large
324
Q

For a private party to recover for. public nuisance, P must show that _________.

A

She recovered unique damage not suffered by the public at large

325
Q

What is a private nuisance?

A

A substantial and unreasonable interference w/ P’s use/enjoyment of her land

326
Q

What are the elements of private nuisance?

A
  1. P has immediate right to possess property
  2. Interference is substantial
  3. Unreasonable interference w/ use/enjoyment of land
  4. D’s conduct is negligent, abnormally dangerous, or intentional
327
Q

When is a private nuisance unreasonable interference with enjoyment of land

A
  1. Harm to P outweighs utility of D’s conduct OR
  2. Harm to P greater than required to bear without compensation
328
Q

What remedies are available for nuisance?

A
  1. Damages
  2. Injunctive relief
  3. Self-help abatement
329
Q

Self-help abatement is only available as a remedy for private nuisance after:

A
  1. Notice to D AND
  2. D’s refusal to act
330
Q

Assumption of _______ is a defense for nuisance as it is for tort actions.

A

Risk

331
Q

What is coming to the nuisance?

A

P purchased/leased property with advance knowledge of nuisance

332
Q

Is coming to the nuisance a defense?

A

Only if P came to the nuisance for the sole purpose of bringing the lawsuit

333
Q

What if third parties contribute to a nuisance?

A

Not a bar to D’s liability for her own contribution

334
Q

What is vicarious liability?

A

Tortious act of one person may be imputed to another based on the relationship between two parties

335
Q

What is the doctrine of respondeat superior?

A

If an employee commits a tort in the scope of her employment, her employer will be vicariously liable

336
Q

A tort is considered in the scope of employment if _______.

A

The employee was acting with the intent to further her employer’s business purpose

337
Q

What is a frolic and detour?

A

Personal errand from scope of employment

338
Q

What part of a frolic and detour is within the scope of employment?

A
  1. At common law, the return trip
  2. At modern law, the whole thing - if the deviation was reasonably foreseeable
339
Q

An employer is generally not vicariously liable for __________ torts of employees.

A

Intentional

340
Q

Employers will be viable for intentional torts of employees if:

A
  1. Specifically authorized by employer
  2. Nature of employment
  3. Motivated by desire to serve the employer
341
Q

In addition to vicarious liability, employers will be liable for their negligence in:

A
  1. Hiring
  2. Supervision
342
Q

If someone hires an independent contractor, are they liable for that contractor’s torts?

A

No

343
Q

What distinguishes employees from individual contractors?

A

The employer has the right to control/direct only the result of the work, not what will be done/how it will be done

344
Q

What is behavioral control?

A

Control over a worker’s action; suggests employee

345
Q

What is financial control?

A

Control over financial aspects of work; suggests employee

346
Q

Determining whether an individual is an employee or contractor will require a thorough analysis of _________.

A

The specific facts of each situation

347
Q

Under what exceptions will an employer be liable for independent contractors?

A
  1. Employer was negligent in hiring/supervising
  2. Duties are too important to be delegated
  3. Inherently dangerous activity
348
Q

General partners and joint ventures are vicariously liable for the tortious conduct of another member that is:

A

In the scope and course of the affairs

349
Q

The owner of a car is only vicariously liable for the torts of the driver if:

A
  1. Immediately family/household driver
  2. Driver acting on owner’s behalf
  3. Negligent entrustment to an unsafe driver
350
Q

At modern law, what limits the liability of parents for intentional torts of their children?

A
  1. Minor children
  2. Limited dollar amount (e.g. $5K)
351
Q

Commercial alcohol sellers will not be liable unless there is ________.

A

a Dramshop act

352
Q

What is a Dramshop act?

A

Alcohol-sellers are liable for the deaths/injuries as a result of alcohol-related car crashes

353
Q

What is joint and several liability?

A

If more than one person is a proximate cause of P’s injury and the harm is indivisible, each D is liable for the entire harm.

354
Q

Under joint & several liability, if the harm is divisible, then each D is liable for _____.

A

Her identifiable portion of the harm

355
Q

If multiple Ds are liable under joint & several liability, P cannot ________.

A

Recover twice

356
Q

Under joint & several liability, the release of one D is the release of all Ds, but not _______.

A

Under modern statutes

357
Q

What is contribution?

A

Under joint and several liability, the entire amount can be collected from any one of Ds, who can then seek to recover a proportional share of damages from other Ds

358
Q

What is indemnity

A

Shifting of liability from one D to another as opposed to sharing as in contribution

359
Q

If A i vicariously liable for B’ conduct, A will be liable to the injured party; B will then be required to ________.

A

Fully indemnify A

360
Q

If a non-manufacturer is held liable under strict product liability, the non-manufacturer will be able to get indemnity from _________.

A

Others higher up the distribution chain.

361
Q

Parties may expressly agree to shift liability via _________.

A

Contract

362
Q

What are survival statutes?

A

Allow P’s cause of action to survive her death.

363
Q

Do survival statutes apply to torts resulting in personal injury?

A

Yes

364
Q

Do survival statutes apply to torts to property?

A

Yes

365
Q

Do survival statutes apply to torts invading intangible personal interests?

A

No

366
Q

What are wrongful death statutes?

A

Allow recovery for pecuniary injury resulting to the victim’s spouse or next of kin

367
Q

What family members CANNOT recover for wrongful death?

A

Children recovering for deceased parents

368
Q

What are loss of consortium damages?

A

Deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor.

369
Q

Los of consortium damages apply to ______, not just ______.

A

All torts

Negligence

370
Q

Give examples of loss of consortium damages?

A
  1. Loss of household services
  2. Loss of society
  3. Loss of sexual relationship
371
Q

What are the elements of intentional misrepresentation?

A
  1. Misrepresentation of material fact
  2. Scienter
  3. Intent to induce P’s reliance on misrepresentation
  4. Justifiable reliance by P
  5. Cauation by P
  6. Damages
372
Q

What is scienter?

A

Knowledge that a statement is false or reckless indifference to the truth

373
Q

What are the elements of negligent misrepresentation?

A
  1. Misrepresentation in business or professional capacity
  2. Breach of duty to P
  3. Justifiable reliance by P
  4. Causation
  5. Damages
374
Q

Recovery for intentional misrepresentation is limited to actual ________ loss.

A

Pecuniary

375
Q

Recovery for negligent misrepresentation is usually limited to _________.

A

Pecuniary loss

376
Q

What is interference with business contract?

A

Cause of action against those who improperly interfere with the performance of a contract between another and a 3rd person

377
Q

What are the elements of interference with contract?

A
  1. Valid contract or business expectancy
  2. Knowledge by D of the business relationship
  3. Intentional interference
  4. Causation
  5. Damages
378
Q

What is misuse of legal procedure?

A

Protects P’s right to not be subjected to unwarranted judicial proceedings

379
Q

The elements of a prima facie case for malicious prosecution are:

A
  1. D initiated criminal proceedings against P
  2. Terminated in favor of P
  3. No probable cause
  4. Improper purpose
  5. Damages
380
Q

Most jurisdictions have extended the doctrine of malicious prosecution to cover _________ as well.

A

Civil cases

381
Q

What is abuse of process?

A

Use of various litigation devices during criminal or civil proceedings for an improper purpose.

382
Q

What are the elements of a prima facie case of abuse of process?

A
  1. Wrongful use of litigation devices for ulterior improper purpose AND
  2. Definite act/threat against P to accomplish ulterior improper purpose
383
Q

What family immunities were recognized at common law?

A
  1. Spouses
  2. Parent-child

Most states have abolished both

384
Q

Sovereign immunity prevents P from ___________.

A

Bringing suit against the government

385
Q

What torts can the US government be held liable for?

A
  1. Assault
  2. Battery
  3. False imprisonment
  4. False arrest
  5. Malicious prosecution
  6. Abuse of process
  7. Libel
  8. Slander
  9. Misrepresentation
  10. Deceit
  11. Interference with contract rights
386
Q

The federal government is not liable for any actions taken within its _______ functions.

A

Discretionary

387
Q

While federal, state, and local governments are all traditionally immune from liability, most governments __________.

A

Waive that immunity

388
Q

What is charitable immunity?

A

Common law used to have immunity from tort claims; not in modern law

Bar Exam (15 decks)

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