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Torts Flashcards

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1
Q

Voluntary

A

The type of act that is performed while the actor is in conscious control of his or her bodily movement.

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2
Q

Involuntary

A

The type of act that is reflexive, conclusive, or performed while the actor is unconscious.

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3
Q

Battery

A

The intentional act of causing a harmful or offensive bodily contact with another person.

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4
Q

Harmful

A

Contact that impairs the body (in the context of battery).

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5
Q

Offensive

A

Contact that affronts a reasonable sense of personal dignity (in the context of battery).

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6
Q

Assault

A

The intentional act of placing another person in reasonable apprehension of an imminent harmful or offensive contact.

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7
Q

Trespass to Land

A

The intentional act of entering or remaining on another person’s real property without permission.

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8
Q

Trespass to Chattels

A

The intentional act of interfering with another’s personal property.

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9
Q

Actual Consent

A

A defense to intentional torts based on the Plaintiff’s actual willingness for the otherwise tortious conduct to occur.

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10
Q

Apparent Consent

A

A defense to intentional torts based on the Defendant’s reasonable belief that the Plaintiff assented to the otherwise tortious conduct.

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11
Q

Implied Consent

A

A defense to intentional torts based on the Plaintiff’s assent to otherwise tortious conduct is implied as a matter of law or policy, notably in circumstances in which the Plaintiff’s life or health is in danger and the Plaintiff is unable to communicate.

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12
Q

Self-Defense

A

A defense to intentional torts in which reasonable force is used to protect oneself form the treat of imminent unlawful force by another.

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13
Q

Necessity

A

A defense to intentional torts that allows a person to interfere with another’s real or personal property interests when such interferences reasonably appear necessary to prevent imminent, substantially greater threat of harm from a natural, non-tortious force.

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14
Q

A person acts with intent to a particular consequence when the person either:
1. has a ______ to cause the consequence; or
2. has ______ that the consequence will result.

A
  1. Purpose
  2. Knowledge with substantial certainty.
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15
Q

The doctrine of transferred intent allows
(1) intent as to one tort to qualify as intent for purposes of another tort, and
(2) intent at to __________.

A

One person to qualify as intent as to another person.

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16
Q

The tort of false imprisonment involves an intentional act of restraint on another person, causing ________.

A

That person to be confined within a bounded/limited area.

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17
Q

In the context

A
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18
Q

In the context of false imprisonment, confinement may be accomplished by a defendant’s
(1) ________,
(2) ________, or
(3) A combination of both.

A

(1) Words
(2) Acts

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19
Q

In order for a competent adult plaintiff to prove false imprisonment, the plaintiff must show thaht shew as either __________ the confinement.

A
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20
Q

In order for a competent adult plaintiff to prove false imprisonment, the plaintiff must show that she as either __________ the confinement.

A

Conscious of or harmed by.

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21
Q

The following elements are required to establish a prima facie case for intentional infliction of emotional distress:
1. Defendant engaged in ______ conduct.
2. Defendant acted either with the intent to cause severe emotional distress or with ________.
3. The conduct caused the plaintiff _______ emotional distress.

A

conscious of or harmed by.

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22
Q

The following elements are required to establish a prima facie case for intentional infliction of emotional distress:
1. Defendant engaged in ______ conduct.
2. Defendant acted either with the intent to cause severe emotional distress or with ________.
3. The conduct caused the plaintiff _______ emotional distress.

A
  1. Extreme and outrageous,
  2. Recklessness as to whether the conduct will cause severe emotional distress,
  3. Severe.
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23
Q

For a defendant to be liable for intentional infliction of emotional distress to a plaintiff who was a bystander with respect to the defendant’s conduct, the plaintiff-bystander must show the following elements:
1. Defendant caused ______ to a third-party victim,
2. Plaintiff-bystander is ______ to the victim,
3. Plaintiff-bystander witnessed _____
4. Defendant had _______ of elements (2) and (3),
5. Plaintiff-bystander suffered _______ as a result.

A
  1. A physical injury,
  2. A close relative,
  3. The defendant’s conduct,
  4. Knowledge, and
  5. Severe emotional distress.
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24
Q

For trespass to chattels, in addition to showing the defendant intended to interfere with a chattel, the plaintiff must show either:
1. _____ of the chattel; or
2. Harm to the chattel in the form of physical damage or _____.

A
  1. Dispossession
  2. Impairment of value
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25
Q

In determining whether a defendant’s interference with a plaintiff’s personal property was “serious” for purposes of conversion, a court typically will consider the following factors:
1. the ________ done to the property
2. The _____ of the defendant’s actions and resulting interference or dispossession
3. Whether the defendant’s actions were taken _________
4. The _______ to the plaintiff.

A
  1. Severity of the damage
  2. Extent and duration
  3. In good faith
  4. Burden or expense.
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26
Q

What are the five intentional torts for which the doctrine of transferred intent can be applied?

A
  1. Battery
  2. Assault
  3. Trespass to Land
  4. Trespass to Chattels
  5. False imprisonment
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27
Q

A landowner’s duty to an invitee covers both known dangers on the land and ______.

A

Dangers that a reasonable inspection of the land would detect.

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28
Q

Generally, in determining whether a defendant breached the duty of care, the defendant’s conduct is examined as to whether the defendant behaved as ___________.

A

A reasonable prudent person would under the circumstances.

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29
Q

A person with special knowledge about a particular thing, which a reasonable person would not have, has a ______ standard of care when performing an act that is related to such knowledge.

A

Heightened

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30
Q

A person with special knowledge about a particular thing, which a reasonable person would not have, has a ______ standard of care when performing an act that is related to such knowledge.

A

Heightened

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31
Q

A landowner’s duty to a licensee is to warn about or make safe any _______ on the land.

A

Already known dangers.

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32
Q

A landowner owes a duty to warn a known or anticipated trespasser of any ________ on the land that pose a risk of death or serious bodily harm

A

Human-made conditions

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33
Q

A person who enters the land of another falls under one of what three categories of entrants?

A
  1. Trespassers
  2. Licensees
  3. Invitees
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34
Q

What are the five main elements of a negligence claim?

A
  1. Duty
  2. Breach
  3. Actual Cause
  4. Proximate Cause
  5. Damages
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35
Q

Wrongful Death

A

The type of claim brought by the representative of a decedent’s estate to recover damages where the defendant’s tortious conduct resulted in the decedent’s death.

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36
Q

Pure economic loss

A

Financial harm without any physical injury or property damage, which generally is not recoverable in a negligence claim.

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37
Q

Compensatory

A

The type of damages in a negligence action that encompass items to make the plaintiff’s whole, such as medical bills / lost wages / pain & suffering / decreased property value.

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38
Q

Eggshell Plaintiff

A

The rule under which a defendant found to be at fault will be liable for the full extent of the plaintiff’s physical injury, even if the full scope was not foreseeable to the defendant due to the plaintiff’s preexisting condition or sensitivity that exacerbated the injury.

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39
Q

Joint Tortfeasors

A

Multiple defendants who acted together while behaving unreasonably in bringing about a harmful incident, and who all may be treated as causes even if one or more did not directly harm the plaintiff.

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40
Q

Proximate Causation

A

Doctrine that limits a plaintiff’s recovery from a defendant for injuries that fall outside the scope of liability of that defendant’s negligent conduct due to the harm being unusual or distant from the negligence.

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41
Q

Unlike public necessity, a defendant who successfully asserts the defense of private necessity still is liable for any ______.

A

Actual damage caused by the defendant’s actions.

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42
Q

The privilege of recapture of chattels, which allows a person to use force to regain possession of personal property taken from the person, is subject to what 3 limitations?

A
  1. Property must have been unlawfully taken from the person
  2. Person must have been acting in hot pursuit (acting without an unreasonable delay)
  3. Person must have used reasonable, nondeadly force.
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43
Q

Duty

A

A legal obligation to act with reasonable or ordinary care.

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44
Q

Reasonable Care

A

Actign with proper conduct in a manner that does not cause foreseeable harm to others.

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45
Q

Trespasser

A

A person who enters the land of another without permission.

46
Q

Firefighter’s Rule

A

Doctrine that precludes a public safety official, who was privileged to enter certain land without the landowner’s permission and not for the landowner’s benefit, from suing the landowner for negligence with respect to an injury that the official incurred on the land.

47
Q

Hand Formula

A

Cost-benefit test that, where used by courts, considers a defendant’s conduct unreasonable if the defendant failed to take a precaution that would have cost less than the cost of the harm multiplied by the probability of loss.

48
Q

Bailment

A

The process of one person delivering property to another person, who holds the property.

49
Q

Guest Statutes

A

Certain laws, adopted by a minority of states, that provide that a gratuitous social passenger in a vehicle cannot sue the driver for negligence unless the driver’s conduct rose to the level of gross negligence or recklessness.

50
Q

Respondeat Superior

A

Doctrine under which an employer is held vicariously liable for the acts of its employees or agent.

51
Q

Under the attractive nuisance doctrine, a landowner owes a duty of reasonable care to a child trespasser if the following 4 requirements are met:

A
  1. Risk to the child is due to a human-made condition that poses a risk of death or serious bodily harm
  2. Condition is in a place that the landowner knows or has reason to know that children are likely to trespass
  3. The child is likely to discover the condition or appreciate the risk
  4. The burden of taking precautions to avoid harm low in relation to the risk of harm to the child.
52
Q

For a person with a disability to be judged by a standard of care that recognizes the limitations caused by the disability, the disability must be both: 1._____________

Under majority rule, the standard of care for children is that a child of similar: 2. _________

A professional is subject to a standard of care based on what is reasonable for: 3.____________

A
  1. Physical and serious
  2. Age, education, intelligence, and experience
  3. An average professional in the same profession.
53
Q

For negligence per se to apply in a case, the following 4 elements must be met:

A
  1. Defendant violated a specific law that pertains to safety
  2. Plaintiff is among the class of people that the law is intended to protect
  3. The law is designed to prevent the harm that the plaintiff suffered
  4. There is no legitimate excuse for the defendant’s noncompliance with the law
54
Q

For res ipsa loquitur to be applied to case, 3 elements must be met:

A
  1. Event that led to the claimed injury is of the type that would not ordinarily occur in the absence of negligence
  2. Claimed injury was allegedly caused by an instrumentality solely within the defendant’s control
  3. No fault of the plaintiff contributed to the event that led to the claimed injury
55
Q

Where _________ applies, the plaintiff may choose to recover the full amount of damages from any of the defendants found liable to the plaintiff

A

joint and several liability

56
Q

To analyze proximate causation, a court will use one of what 3 tests:

A
  1. Foreseeability
  2. Scope of liability
  3. Directness and remoteness
57
Q

A negligent defendant may be liable to a plaintiff for pure emotional harm only when one of the 4 situational exceptions exists:

A
  1. Where the plaintiff was in the zone of danger created by the defendant and incurred physical symptoms as a result
  2. Where the plaintiff observed the suffering of a close relative physically harmed by the defendant
  3. Where the defendant damages the corpse of the plaintiff’s close relative
  4. Where the defendant misinformed the plaintiff that a relative either died or was seriously physically injured
58
Q

In states where contributory negligence applies, contributory negligence may be negated when (1) the defendant’s negligence was subsequent to the plaintiff’s and (2) the defendant had ___________ by exercising ordinary care.

A

The last clear chance to avoid the accident.

59
Q

Where express assumption of risk applies, the plaintiff, prior to being injured, must have entered into (1) _______ promising not to sue the defendant for injuries.

Under the implied assumption of risk, the plaintiff must have both (2) ______ approached a risk negligently created by the defendant.

A
  1. A waiver of liability
  2. Voluntarily and knowingly
60
Q

Vicarious Liability

A

Doctrine in which a defendant is legally responsible for a tort committed by another.

61
Q

Frolic

A

An act by an employee that goes FAR outside the employee’s usual scope of employment, in which the employee is deemed to have left the scope of employment for respondeat superior purposes.

62
Q

Detour

A

An act by an employee that goes slightly outside the employee’s usual scope of employment, in which the employee is deemed to have remained within the scope of employment for respondeat superior purposes.

63
Q

Strict Liability

A

Type of claim in which a plaintiff may recover damages without showing wrongful or unreasonable conduct, although the plaintiff still must show causation.

64
Q

Abnormally Dangerous

A

The category of activities that are not of common usage and that involve a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, which may be subject to strict liability.

65
Q

Manufacturing Defect

A

Type of defect that occurs when a product is produced in a way that was unintended, and this unintended manner of production renders the product more dangerous than usual.

66
Q

Reasonable Alternative-Design

A

Technologically and economically feasible design that, if it had been used instead of the product at issue, would have prevented the harm or reduced the likelihood of harm.

67
Q

The main factor in determining whether a person is an employee and not an independent contractor for respondeat superior purposes is whether the employer controls _______ in which the person works, rather than just the output.

A

The manner

68
Q

In determining whether a tortfeasor-employee was acting within the scope of employment for respondeat superior purposes, a court will consider 3 factors:

A
  1. Whether the employee was hired to do the kind of work that the employee was doing when the tort occurred
  2. Whether the tort occurred during the time and in the space of the employment
  3. Whether the employee’s conduct was motivated at least in part by a desire to serve the employer
69
Q

An employer may be vicariously liable for torts committed during an independent contractor’s work if the employer has a nondelegable duty to ensure that ________

A

The work is done with reasonable safety.

70
Q

For the hirer of an independent contractor to be liable to a plaintiff for physical harm caused by the independent contractor’s negligence under the doctrine of apparent agency, the following 2 elements are required:

A
  1. The hirer made a representation that led the plaintiff to believe that the independent contractor was an employee
  2. The plaintiff then reasonably relied on the representation to the plaintiff’s detriment
71
Q

3 common affirmative defenses to strict liability for abnormally dangerous activities are:

A
  1. Comparative negligence
  2. Assumption of the risk
  3. Statutory privilege, in that the abnormally dangerous activity in which the defendant engaged is an essential public service
72
Q

When a person files suit after being injured by a defective product, what are the 3 possible claims that may be brought?

A
  1. Negligence
  2. Breach of Warranty
  3. Products liability
73
Q

What are the 4 elements necessary to bring a prima facie case for products liability:

A
  1. Defective Product
  2. Defendant is a commercial party in the business of selling the product
  3. Defect existed when the product left the Defendant’s control
  4. Defect caused foreseeable injury to person or property other than the product itself
74
Q

A product is considered defective (for purposes of products liability) if the defect makes the product _________.

A

Unreasonably dangerous

75
Q

If a product was substantially altered after it left the manufacturer, either by the plaintiff or an intermediary, then that alteration may be regarded as ________ that will relieve the manufacturer of liability (for products liability).

A

A superseding cause

76
Q

Under the majority view, liability for a strict products liability claim extends beyond the customer to all _____ by the defective product.

A

Foreseeable persons / users who are injured.

77
Q

What are the 3 types of defects in strict products liability claims?

A
  1. Design Defect
  2. Manufacturing Defect
  3. Inadequate Warning
78
Q

A design defect is one that renders a product unsafe for the product’s intended use and its ______.

A

Foreseeable uses

79
Q

Under the risk-benefit test for design defects, a reasonable alternative product is one that:
1. Is both ________ feasible; and
2. would have either ______ harm

A
  1. Technologically and economically
  2. Reduced the likelihood of or prevented the
80
Q

Warnings for a product are inadequate when the product poses a foreseeable danger to consumers, and the product’s warnings do not sufficiently convey the following:
1. The _____ of the danger
2. Any measures that the customer may take to ______.

A
  1. Nature and extent
  2. Minimize or eliminate the danger
81
Q

4 common affirmative defenses to strict products liability are:

A
  1. Comparative negligence
  2. Assumption of risk
  3. Product Misuse
  4. Reseller exemptions and limitations
82
Q

Defamation

A

The tort premised upon a statement that has harmed the plaintiff’s reputation.

83
Q

False-light Publicity

A

Wide dissemination of highly offensive false statements about a private person, which is done either with knowledge of the statements falsity or with reckless disregard of whether they are false.

84
Q

Reasonable Reliance

A

The requirement for misrepresentation is that, following the misrepresentation, the victim must have acted at least in part based on her belief that the misrepresentation was true and that an ordinary person would act likewise.

85
Q

To state a prima facie case of private nuisance, the plaintiff must show the following elements:
1. The defendant _____ the plaintiff’s use or enjoyment of land
2. The defendant acted either (a) both ___________ or (b) negligently, recklessly, or abnormally dangerously

A
  1. Substantially interfered with
  2. Intentionally/knowingly and unreasonably
86
Q

The 3 common affirmative defenses to defamation:

A
  1. Truth
  2. Privilege
  3. Consent
87
Q

What are the 4 major categories of invasion of privacy upon which an action may be based?

A
  1. Intrusion upon seclusion
  2. Appropriation of name and likeness
  3. Public disclosure of private facts
  4. False-light publicity
88
Q

For a defendant’s conduct to be “unreasonable” in the context of private nuisance, the conduct must satisfy one of the following 2 tests:
1. The gravity of the harm is greater than _______
2. The conduct causes serious harm and _____ is feasible

A
  1. The utility of the conduct
  2. Compensating the victim(s)
89
Q

Public nuisance lawsuits may be brought only by either of the following:
1. Private plaintiffs who have suffered from interference in ______ to the general public
2. _________ or its representatives

A
  1. A particularized manner different from the harm
  2. The government
90
Q

The 3 common affirmative defenses to nuisance:

A
  1. Comparative negligence
  2. Assumption of risk
  3. Coming to the nuisance
91
Q

An injunction is available as a remedy for nuisance only where both of the following are true:
1. Monetary damages would be inadequate to compensate the plaintiff for ________
2. ________ weigh in favor of granting the injunction

A
  1. Future harm
  2. Equitable considerations
92
Q

In circumstances where a person is entitled to self-help to abate a nuisance, the person nevertheless acts at her own peril and will be held liable if she _________.

A

Exceeds her right to abate.

93
Q

The 2 types of defamation are:

A
  1. Slander, which involves spoken word
  2. Libel, which involves the publication of a written communication
94
Q

To be defamatory, the defendant’s false statement must be ______ the plaintiff.

A

Of and concerning the plaintiff.

95
Q

Publication, in the context of defamation, means either:
1. Defendant intentionally or negligently communicates the false statement to a 3rd party who _________
2. Defendant ________ fails to remove a published false statement that the defendant has the power to remove

A
  1. Understanding its defamatory meaning
  2. Intentionally and unreasonably
96
Q

If the plaintiff bringing a defamation action is a public official or a public figure, then the plaintiff must prove that, in publishing the false statement, the defendant acted _________.

A

With actual malice.

97
Q

If the plaintiff bringing a defamation action is a private citizen, then the plaintiff must prove that, in publishing the false statement, the defendant acted _______.

A

Negligently, recklessly, or knowingly.

98
Q

To state a prima facie case of fraudulent misrepresentation, a plaintiff generally must show the following elements:
1. The defendant made an intentional misrepresentation of ________
2. The defendant intended to ________ on the misrepresentation
3. The misrepresentation actually and reasonably ________

A
  1. A material fact
  2. Induce the plaintiff to rely
  3. Induced the plaintiff’s reliance
99
Q

To state a prima facie case of negligent misrepresentation, a plaintiff generally must show the following elements:
1. The defendant made a statement consisting of ________
2. The statement was made in the course of ______
3. The statement was made for ______
4. The plaintiff ____ on the statement to the plaintiff’s detriment

A
  1. Materially false information
  2. A business or profession
  3. The economic guidance of another
  4. Reasonably valid
100
Q

Under the Constitution, damages for a defamation action may be presumed when either of the following is true:
1. The plaintiff is a private person, and the defamatory statement is not _________
2. The plaintiff is either a ___________

A
  1. A matter of public concern
  2. Public official or public figure
101
Q

Contributory Negligence:

A

A Defense that applies in some jurisdictions in which a plaintiff may not recover any damages if any fault is attributed to the plaintiff.

102
Q

Pure Comparative Negligence:

A

A defense that applies in some jurisdictions in which a plaintiff’s damages recovery is reduced proportionally based on the percentage of fault attributable to the plaintiff.

103
Q

Modified Comparative Negligence:

A

A Defense that applies in some jurisdictions in which a plaintiff may not recover any damages if the fault attributed to the plaintiff is 50% or more

104
Q

Assumption of Risk

A

A defense that applies in some jurisdictions in which a plaintiff’s damages recovery may be reduced or precluded due to the plaintiff having knowingly and voluntarily encountered a danger pertaining to the event that caused injury.

105
Q

Market-share liability

A

Doctrine in which, if the negligence of multiple commercial defendants could have caused the plaintiff’s injury, but it is uncertain which defendant actually caused the injury, the court will apportion responsibility among the defendants in proportion to the percentage each defendant holds of the overall market.

106
Q

Negligence per se

A

Doctrine under which violations of certain safety statutes, regulations, and ordinances can amount to negligence without proof that the defendant breached a duty of care.

107
Q

Res ipsa loquitur

A

Doctrine under which the plaintiff is presumed to have proven breach of a duty of care where the defendant’s fault with respect to the event that led to the plaintiff’s injury is obvious and there is no plausible alternative for the event’s occurrence.

108
Q

But for

A

The general test for factual causation, in which the plaintiff must establish that, had the defendant’s negligent conduct not occurred, the plaintiff would not have been injured.

109
Q

Substantial Factor

A

An alternate test for factual causation, in which the factfinder determines whether each defendant’s conduct was a significant attributor in causing the plaintiff’s harm.

110
Q

Alternative Liability

A

The doctrine in that, if multiple defendants are negligent at the same time but it is uncertain which defendant caused the plaintiff’s injury, the court will shift the burden of causation to the negligent defendants to show that they were not the causes of the injury.

111
Q

The privilege of defense of property allows a defendant to use force to prevent an ongoing or imminent tort against the defendant’s property if the following 4 elements are met:

A
  1. the defendant has a reasonable belief that another person is either unlawfully entering or interfering with the defendant’s property
  2. The defendant either asked the other person to desist or such a request was not necessary given the circumstances
  3. The other person does not have a greater privilege to enter or interfere with the defendnat’s property
  4. The force used by the defendant is reasonable.

BAR PREP (4 decks)

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