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Torts Flashcards

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1
Q

What are the elements of battery?

A

(1) Intentionally causing
(2) Of harmful or offensive contact
(3) To another or anything physically connected to that person

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2
Q

What are the elements of assault?

A

(1) Intentional act
(2) Which causes reasonable apprehension
(3) Of an IMMINENT harmful or offensive contact

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3
Q

Is physical contact required for assault?

A

NO – Physical contact is not required for assault.

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4
Q

Is physical contact required for battery?

A

YES – Physical contact IS required for battery.

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5
Q

What is trespass of chattels?

A

(1) Intentional
(2) Interference with use
(3) Of someone else’s property
(4) But they will receive the chattel back
(5) And they are owed any actual damages incurred to the property

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6
Q

What is conversion?

A

(1) Intentional act
(2) That substantially interferes with the use of another’s property
(3) So extensively that the property is now lost, destroyed, or gone
(4) And they are owed the value of the property at the time of conversion

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7
Q

Does conversion require an intent to destroy the property?

A

NO - The taker only has to intend to take the property. They do not have to intend to destroy the property, but if they do, they have to pay you the actual value at the time of conversion.

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8
Q

What are the elements of trespass to land?

A

(1) Intentional
(2) Entering of the land of another

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9
Q

Do you have to know the landowner of the land you trespass on to be liable?

A

NO, it does not matter if you know who they are. Trespass is trespass is trespass.

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10
Q

Does it count as trespass to land if you throw an item that lands on someone else’s property?

A

Yes, IF you consciously throw the item and it lands on another property, you are liable for trespass to land.

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11
Q

Is damage to the property required for liability for trespass to land?

A

No, the mere act of the trespass is the offense. There does not need to be damage to the property.

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12
Q

What is intentional infliction of emotional distress?

A

(1) Intentionally or recklessly (malice = recklessness)
(2) Extreme and outrageous conduct
(3) Causing severe emotional distress
(4) But NOT physical harm

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13
Q

What parties should you look for indicate IIED in regular cases?

A

Two parties:
(1) Plaintiff
(2) Defendant

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14
Q

What is the family bystander rule for IIED?

A

(1) Bystander is close family member of the plaintiff
(2) Defendant knows that the bystander is present
(3) Bystander suffers emotional distress

Then Bystander can sue Defendant for IIED

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15
Q

When can a non-family bystander sue the defendant for IIED?

A

Bystanders that are not close family members MUST have been physically injured to sue for IIED.

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16
Q

What are the elements of false imprisonment?

A

(1) Intentional act
(2) Placing the plaintiff in a confined, bound area
(3) With no means of escape
(4) And Plaintiff is aware of the confinement

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17
Q

What is the shopkeeper’s privilege?

A

IF:
(1) Merchant is in the commercial establishment or store
(2) They have reasonable suspicion that someone is stealing from them
THEN:
(3) Merchant can detain the suspect in a reasonable manner for a reasonable period of time

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18
Q

What is negligent trespass to land?

A

(1) Negligently
(2) Entering the land of another
(3) And damaging the property in some way

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19
Q

What is negligent infliction of emotional distress?

A

(2) Negligent conduct
(2) You are in the zone of danger
(3) You suffer emotional distress and physical harm

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20
Q

Is physical harm required for intentional infliction of emotional distress?

A

NO – there cannot be physical harm for intentional infliction of emotional distress

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21
Q

Is physical harm required for negligent infliction of emotional distress?

A

YES – There MUST be physical harm for liability for negligent infliction of emotional distress.

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22
Q

Can a bystander sue for negligent infliction of emotional distress? Must they have suffered physical harm?

A

Only FAMILY bystanders can sue for negligent infliction of emotional distress.

Emotional distress is enough; Bystander does nOT need to have been injured.

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23
Q

Can you bring suit for the negligent handling of a corpse? is physical harm required?

A

Yes, you can sue for negligent infliction of emotional distress:
(1) If someone is negligent in handling a corpse
(2) And it causes you emotional distress

Physical harm is not required.

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24
Q

What is transferred intent?

A

If Actor was trying to commit a tort against A, but mistakenly committed the tort against B instead, then Actor is still liable and can be sued by B despite not intending to harm B.

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25
Q

Is consent a defense to an intentional tort?

A

Yes - Plaintiffs can give express or implied consent to a contact. If they do, they cannot sue for that contact.

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26
Q

When can you sue for a tort that you consented to?

A

Plaintiff can sue for a tort after giving consent when the Actor exceeds the scope of the consent.

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27
Q

What is required for self-defense?

A

When you have a (1) reasonable belief that someone is about to hurt you, you can use (2) reasonable force equal to that you’re facing to (3) defend yourself or others.

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28
Q

Can you use force to defend property? When?

A

You can use reasonable force to defend your property if you have reasonable belief that someone is about to enter your land.

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29
Q

Can you use deadly force to defend your property?

A

NO, unless there is danger to an actual person on the land, you cannot use deadly force to defend only the land.

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30
Q

What is private necessity?

A

A defense to intentional trespass:
When someone enters the property as the only option to avoid private or personal harm, they can use the defense of necessity.

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31
Q

What is public necessity?

A

A defense to intentional trespass:
When it is necessary to trespass on someone’s land to prevent a public harm

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32
Q

Are damages owed under a private necessity defense? Are damages owed under a public necessity defense?

A

Private necessity = YES, you owe damages for any amount of actual damages caused

Public necessity = NO damages owed

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33
Q

When should you pick the answers that talk about a defense or exception?

A

ONLY when the question specifically talks about or asks about THAT exception or defense.

Do NOT pick the choice mentioning the exception or defense just because it’s legally correct. Only if they’re asking you about it.

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34
Q

What are the three types of negligence questions?

A

(1) Traditional duty/breach negligence
(2) Negligence Per Se
(3) Res Ipsa Loquitur

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35
Q

Who is a duty owed to, generally?

A

A duty is owed to foreseeable plaintiffs in the zone of danger.

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36
Q

What is the typical standard of care for treatment of reasonably foreseeable plaintiff?

A

You must act like a reasonably prudent person.

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37
Q

What is the duty of care that landowners owe to unknown trespassers?

A

NO duty of care is owed to unknown trespassers on land.

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38
Q

What is the duty of care that landowners owe to known trespassers?

A

There is a duty to warn the known trespasser of known dangers on the land.

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39
Q

Who are licensees? What is the duty of care owed to licensees?

A

Licensees are people invited to someone’s property socially or for personal reasons. There is a duty to warn licensees of known dangers.

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40
Q

Who are invitees? What duty of care is owed to invitees?

A

Invitees are people invited to businesses for BUSINESS reasons. The duty owed to them is:
(1) To warn of the dangers
(2) To inspect and make the property safe for invitees

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41
Q

When do parents have a special duty to supervise their children?

A

Parent has duty to supervise the child when the parent knows or should have known that the child was likely to cause harm

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42
Q

Is there a general duty to come to someone’s aid or rescue?

A

Not generally, unless you get involved in the situation. Then you must exercise reasonable care.

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43
Q

When does one have a duty to render aid to another, absent of special relationhip?

A

You have a duty to exercise reasonable care ONCE YOU decide to get involved! Not before that.

Great reminder to practice minding your business.

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44
Q

Do common carriers (plane, train, bus) have a duty to help passengers?

A

Yes, they always have a duty to help passengers because they are in their care.

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45
Q

Do teachers and students have a special relationship that creates a duty to help?

A

Yes, teachers have a duty to help students.

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46
Q

Do innkeepers have a duty to help guests?

A

Yes, innkeepers have a special relationship with guests and always havea duty to help.

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47
Q

Do employers owe a duty to employees to help or rescue them?

A

Yes, employers and employees have a special relationship, so there is always a duty to help.

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48
Q

What is the duty of care for children?

A

Children have a duty to act like other children of the same age, experience, and maturity.

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49
Q

What is the duty of care for professionals?

A

Professionals must act like other professionals of the same customs, education, training, and care in that community.

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50
Q

What does breach mean?

A

Failure to comply with the duty of care

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51
Q

What are the two types of causation?

A

(1) Actual causation (But-for)
(2) Proximate causation

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52
Q

What is actual cause?

A

But-for causation: But for the actions of the defendant, the harm would not have occurred.

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53
Q

What is proximate cause?

A

Foreseeability – The defendant’s actions were the proximate cause of the harm if the harm was a foreseeable result of defendant’s actions.

(How is a raven like a writing desk?)

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54
Q

Are both actual causation and proximate causation required for negligence liability?

A

YES: without both, there is no negligence.

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55
Q

What is an intervening cause?

A

When there is
(1) an original negligent act, and
(2) then other acts of negligence contributing e to the harm occur after the original act, and
(3) those subsequent acts are foreseeable

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56
Q

What is a superseding cause?

A

When there is
(1) an original negligent act, and
(2) then other acts of negligence contributing e to the harm occur after the original act, and
(3) those subsequent acts are NOT foreseeable

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57
Q

Is the original tortfeasor liable for harms caused by intervening causes?

A

YES because intervening causes are foreseeable

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58
Q

Is the original tortfeasor liable for harms caused by superseding causes?

A

NO because the superseding causes are not foreseeable

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59
Q

What makes superseding causes unforeseeable?

A

(1) It’s an act of God
(2) It’s an intentional tort
(3) It’s a criminal act
(4) The fact pattern says so

ALL ELSE is INTERVENING, and original tortfeasor is LIABLE FOR EVERYTHING! (thunder clap, lightning strike)

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60
Q

When should you NEVER choose the answer discussing the intervening or superseding cause?

A

If there is literally nothing else that happens in the fact pattern after Actor 1 does the first negligent act. Count the acts.

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61
Q

What are the elements of negligence per se?

A

Where there is:
(1) Violation of an ordinance or statute, and
(2) Injured party is part of class of people that the ordinance was designed to protect, and
(3) The injury is the kind that we were trying to prevent in the first place

LIABLE for negligence per se.

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62
Q

Jon drives 50 miles per hour in a 20 MPH school zone.
Jon hits child with car and breaks the child’s leg.

Is this negligence, or is it negligence per se? Why or why not?

A

This is negligence per se.
(1) Speed limit = Ordinance that Jon broke
(2) Child = The reason we have school zones
(3) Injury = Broken child leg from speeding cars is what speed limit wants to avoid.

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63
Q

Jon drives 50 miles per hour in a 20 MPH school zone.
Jon hits child, whose backpack flies away.
The backpack goes across the street and hits an old lady.
Old lady falls over and breaks her hips.

Is this negligence, or is it negligence per se? Why or why not?

A

This is just negligence.

(1) Speed limit in school zone = Violated ordinance
(2) Old lady = NOT who the speed limit is designed to protecrt
(3) Old lady broken hips = Not what we’re trying to avoid with school zones.

So not negligence PER SE.

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64
Q

What is res ipsa loquitur?

A

Res ipsa is when:
(1) Whatever happened does not normally happen absent negligence
(2) The defendant was in exclusive control of the instrumentality

Then: The jury can come to an INFERENCE of negligence.

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65
Q

What should you think when you see:
(1) A regular looking negligence question, and
(2) A motion to the judge from one of the parties, and
(3) Question is how the judge will rule on the motion?

A

This is a res ipsa loquitur question.

The right answer will USUALLY talk about whether the “reasonable jury” can or cannot “INFER” negligence.

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66
Q

What should you think when you see a tort that arises from the violation of a statute?

A

This is a negligence per se question!

If they broke a law, the question is then WHO was injured and WHAT was the injury. If that’s what the law was trying to protect and avoid = Negligence per se!

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67
Q

What is an attractive nuisance?

A

(1) An artificial condition is on the land, which
(2) Causes children to trespass
Think: pools, treehouses, trampolines

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68
Q

What are the elements for liability for attractive nuisance?

A

(1) Owner of land knows or should know that children will trespass
(2) Condition poses unreasonable risk of harm
(3) Children, because of their age or maturity, do not realize the risk involved
(4) The utility of maintaining the artificial condition is slight compared to the risk to the children
(5) Owner fails to make the attractive nuisance safe

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69
Q

What are the defenses to negligence?

A

(1) Pure comparative negligence
(2) Modified comparative negligence
(3) Contributory negligence
(4) Assumption of the risk

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70
Q

What is pure comparative negligence?

A

Defense to negligence:
Where the plaintiff is also negligent, so the amount of damages they recover are reduced by their percentage of fault

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71
Q

What is modified comparative negligence?

A

Defense to negligence:
The plaintiff cannot recover at all IF they are MORE than 50% responsible for the damages

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72
Q

What is contributory negligence?

A

Defense to negligence and BAR to recovery:
Plaintiff cannot recover at ALL if they are responsible AT ALL (even 1% at fault)

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73
Q

What is the last clear chance rule?

A

Exception to contributory negligence rule:
If the (1) defendant had the last clear chance to avoid the accident, (2) but fails to do so, then (3) the plaintiff can still recover, EVEN IN a contributory negligence jurisdiction.

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74
Q

What is assumption of the risk?

A

Defense to negligence:
(1) Where the plaintiff had knew of the risk
(2) And appreciated the danger of the risk
(3) But acted anyways

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75
Q

What is joint and several liability?

A

When:
(1) Two or more defendants
(2) Cause a single accident
(3) And it’s unclear the percentage of fault for each defendant:

The plaintiff can recover all their damages from one of ANY of the defendants–they need only pick one.

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76
Q

What is contribution?

A

When one co-defendant has to pay damages for a joint act, they can sue the co-defendant to recoup their money spent. That suit is called contribution.

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77
Q

What is vicarious liability?

A

When an employer is liable for the negligent acts of their employees, as long as the employee was acting in the scope of employment.

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78
Q

When is the employer NOT vicariously liable for the employee’s actions?

A

(1) When the employee has committed an INTENTIONAL act
(2) When the employee is no longer acting pursuant to their job in the scope of their employment

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79
Q

Generally, employers are only vicariously liable for their employees.

When are employers liable for the negligent acts of independent contractors?

There are only two scenarios when this is the case.

A

Employees are only responsible for the negligent acts of independent contractors ONLY when:
(1) The work is an abnormally dangerous activity
(2) The work involves a non-delegable duty - work that involves safety or benefit for the public at large

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80
Q

What is the difference between contribution and indemnification?

A

Contribution = Both parties did something wrong and sued party wants to recoup from co-guilty party (think joint and several liability)

Indemnification = Sued party did not do anything wrong, so they want to recoup from the actually responsible party (this vicarious liability)

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81
Q

What two types of activities can you be strictly liable for?

A

(1) Possession of wild, non-domesticated animals (lions and tigers and bears, oh my!)
(2) Abnormally dangerous activities

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82
Q

Is there strict liability for possession of a wild animal if the resulting injury is from FEAR of the animal, rather than the animal itself?

A

YES! If Jon sees your lion, gets spooked, runs away, and breaks his leg, this is still because of the wild animal and the possessor IS liable. Regardless of how actually dangerous the animal is.

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83
Q

When is there NOT strict liability regarding possession of an animal?

A

When the injury sustained in the presence of a wild animal is not the kind inherently related to (1) the wild actions of the animal or (2) fear of the animal.

Example: You trip over a sleeping grizzly bear because you didn’t see it and break your leg. No strict liability for the grizzly bear owner because you could have tripped over anything. That’s on you, babe.

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84
Q

When is there strict liability for injuries involving domesticated animals?

A

When the facts tell you that the domesticated animal (cat/dog) has dangerous tendencies

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85
Q

Is it possible to domesticate wild animals?

A

NO - traditional wild animals are subject to strict liability in all events.

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86
Q

What are abnormally dangerous activities?

A

(1) Excavation - blowing shit up, dynamite, kaboom
(2) Chemicals - mad scientist, toxic material, acids

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87
Q

What is the legal defense to strict liability?

A

Assumption of the risk:
(1) Knew and appreciated the danger of the activity
(2) Did the activity anyway

No strict liability applies.

88
Q

What is product liability?

A

(1) Bought or using a product
(2) Product breaks or doesn’t work properly
(3) Owner brings suit

89
Q

What are the three theories of product liability? Or in other words, the three causes of action?

A

(1) Negligence
(2) Breach of warranty
(3) Strict product liability

90
Q

What needs to happen for a product liability suit based on negligence?

A

The merchant of the product fails to do what they were supposed to do in selling you the product

91
Q

What needs to happen for a product liability suit based on a breach of warranty?

A

The product is advertised to act in one way, but then it does not work in the advertised way

92
Q

What’s the difference between the warranty of merchantability and warranty of fitness for a particular purpose?

A

Merchantability = Product acted as it should, like it was supposed to

Fitness for a particular purpose = Product only works for a particular purpose

93
Q

What is required for the default strict product liability?

A

A defective product is required for strict product liability:
(1) Product sold by commercial seller
(2) Foreseeable user used the product in the manner it was intended
(3) The product was not changed since the purchase

94
Q

What is required for strict product liability for an inadequate warning?

A

The vendor should have warned the buyer about the product and failed to do so.

TIP: The right answer here will be talking about the adequacy of the seller’s warning.

95
Q

What is strict liability in tort?

A

Strict liability in tort is the same thing as strict product liability –> You’re looking for the answer talking about a defective product

96
Q

Is assumption of the risk a defense to strict product liability?

A

YES, just like assumption of the risk is a defense to regular strict liability.

97
Q

What are the defenses to strict product liability?

A

(1) Assumption of the risk
(2) Misuse

98
Q

What is the defense of misuse?

A

If the buyer misuses the product on their own, they cannot sue on strict product liability.

99
Q

What is a private nuisance?

A

The unreasonable interference with the use and enjoyment of another’s property, based on an objective standard.

100
Q

What is a public nuisance? Who normally brings this suit?

A

Some sort of unreasonable interference with property that affects the public at large. (Think contaminated water or downed electrical lines.)

Usually brought by government officials.

101
Q

Can private plaintiffs sue for public nuisance?

A

Yes, but they must prove SPECIAL or UNIQUE damages or harm

102
Q

How should you approach a defamation question?

A

(1) Make sure the statement is defamatory
(2) Ask if it’s libel, slander, or slander per se

103
Q

What are the required elements of defamation?

A

(1) False, negative statement
(2) About the plaintiff
(3) That hurts their reputation
(4) With publication
(5) That causes damage

104
Q

What does publication mean, for defamation purposes?

A

Publication = Heard and understood by a third person.

HEARD by another person, and UNDERSTOOD by that person, so different languages will not count.

105
Q

What is libel? Are special damages required?

A

Libel is defamatory statements in permanent, written form.

No pecuniary/economical/special damages are required.

106
Q

What is slander? Are special damages required?

A

Slander is defamatory statements that are spoken out loud.

Pecuniary, economic loss must be proven for a slander claim.

107
Q

What statements are slander PER SE?

A

(1) Statements about one’s profession or business (“You’re the worst lawyer on the face of the planet”)

(2) Statements about the chastity of a woman (“That WHORE”)

(3) Statements accusing someone of committing a felony (“Idk i feel like the glove probably fits”)

(4) Statements accusing someone of having a loathsome disease (“That syphilis-ridden leper”)

108
Q

What is the standard of proof for defamation against a private citizen?

A

The private citizen must prove that the speaker acted NEGLIGENTLY.

109
Q

What is the standard of proof for defamation against a public figure?

A

RECKLESSNESS - to prove defamation against a public figure, they must show that the speaker acted with malice (AKA: reckless disregard of the truth)

110
Q

Is truth a defense to defamation?

A

Yes, TRUTH is the ABSOLUTE defense to defamation

111
Q

What is the absolute privilege?

A

People have the privilege to make statements in any official proceeding that would in other settings be defamatory

112
Q

Qualified privilege

A

If you only state a matter that appears necessary to protect the defendant’s interests or the public interests

Generally looks like one party asking another person to make a statement on their behalf, the speaker being honest, and the speaker’s statement ends up hurting the asking party. No defamation suit!

113
Q

What are the four types of invasion of privacy?

A

(1) False light
(2) Appropriation
(3) Public disclosure
(4) Intrusion upon seclusion

114
Q

What is false light?

A

When you say something about a person that is simply not true, so the effect is that you portray them in a false light. It is not necessarily harmful to anyone’s reputation.

115
Q

What is the difference between invasion of privacy and defamation?

A

Defamation = Statement is NEGATIVE and false
Invasion of privacy = Statement is JUST FALSE

116
Q

What is appropriation?

A

The (1) unauthorized use of the plaintiff’s name and likeness
(2) For profit/commercial advantage.

TIP: Look for the commercial advantage! That is a required element

117
Q

What is public disclosure?

A

When one person publicly discloses a private matter. Note: PRIVATE matter, not newsworthy matters.

118
Q

What is a newsworthy matter? Versus a private matter?

A

Newsworthy matters include:
(1) matters you publicize on your own behalf
(1) common events that is relevant to the public at large

119
Q

What is intrusion upon seclusion?

A

The physical invasion of someone’s physical space and affects. Going through briefcases, files, rifling through someone’s office. An insane level of not minding your own business. An alarming absence of hobbies or fulfilling pursuits.

120
Q

What is intentional misrepresentation?

A

(1) Defendant misrepresents a material fact
(2) That they knew or should have known was false
(3) With intent to induce reliance
(4) And the plaintiff does rely on the misrepresentation
(5) It causes damages

121
Q

What is negligent misrepresentation?

A

(1) Defendant negligently or accidentally misleads a person
(2) And Defendant has a special relationship with that person
(3) And that person detrimentally relied on the misrepresentation
(4) And there’s damages

122
Q

What is tortious interference with a contractual relationship?

A

(1) Contract exists between two parties
(2) And defendant is aware of the contract
(3) And defendant intentionally induces one of the parties to breach
(4) And the induced party does breach, causing damages

123
Q

What is malicious prosecution?

A

(1) You start a criminal proceeding
(2) Without probable cause
(3) For some reason other than the regular pursuit of justice
(4) And the proceeding is dismissed in favor of the accused because they didn’t really do anything in the first place

124
Q

Is a defendant liable to the intended victim if his liability arises under the transferred intent doctrine?

A

NO - under transferred intent, the defendant is liable to the injured person alone

125
Q

To what torts does the doctrine of transferred intent apply?

A

(1) Assault
(2) Battery
(3) False imprisonment
(4) Trespass to land
(5) Trespass to chattels

126
Q

Is there such thing as attempted assault as an independent charge?

A

Nope, not on its own.

127
Q

Does the victim of a potential assault need to feel fear or intimidation to apprehend harmful contact?

A

No! They need to feel apprehensive, but there is no requirement that they feel fear or intimidation.

128
Q

When will a defendant be liable for a plaintiff’s unreasonable fears?

A

When the defendant KNOWS of the plaintiff’s unreasonable fears and uses it to put the plaintiff in apprehension

129
Q

Does the plaintiff have to be aware of the source of threatened assault to apprehend it?

A

No! The plaintiff does not need to be aware of the source - defendant is liable even if plaintiff does not know their identity or location

130
Q

Can words alone establish the element of apprehension in a prima facie case of assault?

A

NO - no matter how violent the words are, they are usually not enough ALONE to create reasonable apprehension of harmful contact

131
Q

What are the ways to establish the element of apprehension in a prima facie case of assault?

A

(1) Expectation of contact (for the flinchers)
(2) Apparent ability to act (whose gonna beat my ass??)
(3) Conditional threat (“Your money or your life”)

132
Q

What is “harmful or offensive” contact?

A

Contact that causes actual injury, pain, or disfigurement, or that would be considered offensive to a reasonable person

133
Q

Will indirect contact, like sticking something in someone’s path to trip them, count as battery?

A

Yes! As will anything connected to the person’s body.

134
Q

Is it required to prove apprehension for battery?

A

NO - no apprehension is required for battery. Plaintiff does not even need to be conscious of the harmful contact.

135
Q

For battery, does intent mean intent to harm, or intent to act?

A

Intent to HARM. The act must be taken with intent to harm someone.

136
Q

When is the requisite intent for intentional torts satisfied?

A

When the actor knows with substantial certainty that the consequences of their conduct would result.

137
Q

Can a landowner use force to regain real property after being tortiously dispossessed?

A

NO - this is self help, which is not allowed to recover the property.

138
Q

Can a property owner use force to defend their property from tortious interference?

A

Yes - the property owner can use reasonable force, but not force that will cause death or serious bodily harm.

139
Q

Can you use force to recapture your chattel?

A

Yes, when in hot pursuit of the tortfeasor, the owner of the chattel can use reasonable force against the tortfeasor alone or his goons who know about the trespass.

CaNNOT use force against innocent 3rd party if they gain possession of the chattels.

140
Q

Can a citizen use force to effect a misdemeanor arrest?

A

Yes, the citizen is allowed to use only the amount of force necessary to make the arrest. NEVER deadly force.

141
Q

When someone enters the property of another, what privileges might they have that outweigh the landowner’s privilege to use force to defend their property?

A

(1) Necessity
(2) Right of reentry
(3) Right to enter upon another’s land to recapture chattels

142
Q

Is a shopkeeper required to notify the police to avoid liability for false imprisonment when detaining a suspect for shoplifting?

A

No - they are only required to (1) conduct the detention in a reasonable manner and (2) detain the suspect for only a reasonable time

143
Q

Must a landowner make a request to desist for defending their property?

A

Yes - a landowner usually must make a request to desist before defending her property

144
Q

When does a landowner NOT have to make a request to desist before using force to defend their property?

A

When the circumstances make it clear that the request would be futile or dangerous

145
Q

Can you use force to recover chattel that was originally possessed lawfully?

A

NO - if you first let the person use your chattels, you can only use peaceful means to get it back.

Force can only be used with trespassers who acquired the chattels wrongfully.

146
Q

Can you use a vicious guard dog to defend your property?

A

NO - one may only use reasonable force to defend their property. A vicious dog counts as indirect deadly force.

147
Q

Can motorist recover?

A

No - this is an example of private necessity.

148
Q

What is required for a statutory standard of care to apply in a negligence case? (This is Negligence Per Se)

A

(1) The specific duty imposed by the statute must be clearly stated
(2) Plaintiff must show they were in the class intended to be protected by the statute
(3) Plaintiff must show that the statute was designed to prevent the type of harm that the plaintiff suffered

149
Q

When can violation of an applicable statute be excused?

A

(1) If compliance with the statute would cause more danger than a violation
(2) If compliance with the statute would be beyond the defendant’s control (think blind pedestrian crossing against a light)

150
Q

Can an invitee lose their status as an invitee?

A

YES, an invitee can lose invitee status if they exceed the scope of their invitation.

151
Q

Are firefighters who enter the landowner’s premises to fight a fire considered invitees?

A

NO - firefighters (thank you for your service) and cops are generally treated like licensees, NOT invitees

152
Q

Does a landowner need to inspect for dangerous conditions or repair known dangerous conditions on the land for a licensee?

A

No - generally, a warning will suffice.

153
Q

What is the firefighter’s rule?

A

(1) Firefighters (and cops) are treated as invitees on private property

(2) Firefighters are precluded from recovering for injuries occurring on duty from risks inherent to their job, even if they are caused by another person’s negligence

154
Q

For res ipsa loquitur, does the fact that a particular injury occurred establish a breach of duty as a matter of law?

A

NO - it tends to establish breach of duty, but it is still up to the fact-finder to accept or reject the evidence

155
Q

For res ipsa, is it required that the defendant had actual possession of the instrumentality causing the injury?

A

NO - it is not required that the defendant have actual possession. Just that the defendant is connected to the negligence.

156
Q

May a directed verdict for the defendant be granted in a case of res ipsa?

A

No

157
Q

Can a plaintiff assert res ipsa against any one party related to the injury?

A

NO - The injury has to be one that wouldn’t happen without THAT PARTY’S negligence.

158
Q

Must you prove a party’s actual breach of duty to argue res ipsa, or simply create an inference of breach?

A

You must prove the party’s actual breach of duty as step 1! The inference is that the breach caused the harm, not that the breach occurred. No shown breach = No res ipsa.

159
Q

What happens if a plaintiff asserts res ipsa but doesn’t present ANY evidence for the breach of duty element?

A

Directed verdict for the defendant will be granted! Obviously evidence of the breach of duty element is REQUIRED. Why would you waste everyone’s time coming to court with no evidence?? FOH

160
Q

Is a defendant for the harmful results of his conduct that are unforeseeable?

A

No - we are not monsters. Defendant isn’t liable if the harm is an unforeseeable result of his conduct

161
Q

What is direct proximate cause (or “direct cause”)?

A

Direct cause is when the facts present an uninterrupted chain of events from the time of defendant’s negligent act to the time of plaintiff’s injury

162
Q

Where there is direct proximate cause for the injury, what is the relevance of an unusual timing or manner of the injury?

A

No relevance at all - In direct cause cases, the unusual manner in which the injury occurred is not relevant!

163
Q

Is negligence of rescuers generally foreseeable? How come?

A

Yes - because a rescue attempt is a common intervening force that is a normal response or reaction to the defendant’s negligent act

164
Q

Is it possible for a defendant to proximately cause the plaintiff’s injury even though they didn’t actually cause it?

A

No! Proximate cause is the limit, so the reverse is true.

165
Q

Is it possible for the defendant to actually cause the plaintiff’s injury but not proximately cause it?

A

Yes! Proximate cause is the LIMIT on liability. So you can have actual without proximate. But you cannot have proximate without actual.

166
Q

What is indirect proximate cause (or “indirect cause”)?

A

Indirect proximate cause is when another force comes into play AFTER the defendant’s negligent act and combines with it to cause the injury.

167
Q

What are the three common foreseeable intervening forces? Why does this matter?

A

(1) Efforts to protect person or property
(2) Negligence of rescuers
(3) A subsequent disease

Since these are foreseeable intervening causes, they do not negate defendant’s proximate cause. SO if you see these after defendant’s negligent act, defendant is STILL LIABLE.

168
Q

Are criminal acts of a third person usually a foreseeable intervening cause?

A

Not typically. It’s a natural response or reaction to try to help, but not to sprinkle some crime on the situation.

169
Q

Who is liable for the negligence of a rescuer who becomes an intervening cause of the injury?

A

The original tortfeasor is liable for the rescuer’s negligence (because the rescuer’s negligence is foreseeable)

170
Q

If Jon acts negligently when making efforts to protect a person or property from the defendant’s negligence, who is liable for Jon’s negligence?

A

The defendant is liable for Jon’s negligence because Jon’s negligence is a foreseeable reaction to defendant’s negligence.

171
Q

Is the original tortfeasor liable for subsequent diseases contracted by someone who is in a weakened condition from the defendant’s negligence?

A

Yes - Defendant caused weakness which caused disease –> Defendant caused disease and is liable for doing so. Welcome to proximate cause, babe.

172
Q

What are independent intervening causes?

A

Independent intervening causes are forces that operate on a situation created by a defendant’s negligence but are independent actions, rather than natural reaction to the defendant’s wildin

173
Q

When are independent intervening causes foreseeable?

A

Independent intervening causes are foreseeable IF the defendant’s negligence created a significant risk that these forces would cause harm to the plaintiff

174
Q

What are common independent intervening forces?

A

(1) Independent negligent acts of a third person
(2) Criminal act of a third person
(3) Acts of God

175
Q

In what rare situation are third party criminal acts foreseeable intervening causes?

A
176
Q

Are contribution rules relevant to a plaintiff seeking recovery against a defendant?

A

No - Contribution rules only apply when the defendant has paid the full judgement and is trying to recoup from other tortfeasors.

177
Q

You see a question asking how much a PLAINTIFF recover, and it discusses contribution + joint and several liablility. What’s the key to remember?

A

Joint and severally liable means the plaintiff can recover ALL their damages from ONE of the multiple parties responsible for the injury. Plaintiff doesn’t give a damn about contribution rules. The answer will never be “plaintiff get half from one party because of contribution rules.”

178
Q

When is strict liability imposed on the owner of a wild animal?

A

Strict liability is imposed on the owner of a wild animal for any injury caused by the wild animal, even those which are docile or kept as pets

179
Q

Is an owner strictly liable for damage done by the trespass of their animals if the owner acted with reasonable care to keep the animals from trespassing?

A

YES - the owner of any animal is responsible for reasonably foreseeable damage caused. It does not matter that the owner acted with reasonable care to keep them from trespassing. Clearly he did a shit job.

180
Q

When is the owner of a domestic animal strictly liable for injuries caused by the animal?

A

Owners of domestic animals are strictly liable if:
(1) the animal has propensities more dangerous than normal for the species
(2) the owner knows about the domestic animal’s dangerous propensities

181
Q

Is the owner of a domestic animal with dangerous propensities liable for injuries caused by the animal if the animal has never injured anyone before?

A

YES - the owner is liable for the dangerous animal, even if this is Killer’s first mauling.

182
Q

What makes an activity abnormally dangerous? Is that a question for the jury to decide?

A

An activity is abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors.

And no, it’s a question of law that the court can decide on a motion for a directed verdict.

183
Q

Can a plaintiff establish a strict liability claim for an abnormally dangerous activity if the harm was not foreseeable?

A

No - the harm must flow from the “normally dangerous propensity” of the condition or thing involved. No liability for unforeseeable harms.

184
Q

Are bulls domestic animals or wild animals?

A

Bulls are actually domestic animals, apparent-f*ckin-ly

185
Q

Do strict liability cases require suppliers to have an opportunity to inspect?

A

Yes! In a strict liability action based on the sale of a defective product, a retailer may be liable for a manufacturing or design defect even if it had no opportunity to inspect the manufacturer’s product before selling it

186
Q

Do products liability cases require suppliers to have an opportunity to inspect?

A

Yes - because the supplier’s negligence must be proven here! Unlike in strict liability cases.

187
Q

In products liability cases, must injured bystanders be foreseeable?

A

Yes - Products liability cases based on both negligence AND strict liability require that an injured bystander be foreseeable

188
Q

Is privity required in products liability cases based on either negligence or strict liability?

A

No. So if the answer says “because privity is required” on a products liability question, that’s the wrong answer.

189
Q

Can you recover solely economic losses in products liability cases?

A

NO - under neither a negligence nor a strict liability can plaintiffs recover when their only injury is economic.

190
Q

What 2 types of damages are recoverable under both negligence and strict liability theories of product liability?

A

(1) Personal injury
(2) Property damages

And ONLY these types of damages. If it’s only economic damages, no dice, no payout, hit the road.

191
Q

Will a supplier be liable for in a product liability suit when an intermediary failed to discover a defect?

A

YES - the supplier is liable even if other people also failed after they did. An intermediary’s failure to discover a defect is not a superseding cause.

192
Q

When does the failure of an intermediary to discover a defect become a superseding cause of the injury?

A

When the intermediary’s conduct becomes more than ordinary foreseeable negligence.

193
Q

What does it mean for an intermediary’s conduct to become “more than ordinary foreseeable negligence?”

A

If a supplier discovered a dangerous defect and then took no actions (like alerting the manufacturer, warning the consumer, removing the product from sale), this is more than ordinary foreseeable negligence.

194
Q

What happens in a strict product liability case where the supplier’s conduct is more than ordinary foreseeable negligence?

A

If the supplier starts acting bonkers, that may prevent establishing causation against a manufacturer

195
Q

Can a manufacturer be held liable for strict product liability if the product was destroyed due to its dangerous defect?

A

Uh yeah, if it’s self-destruction level defective, the plaintiff can rely on the inference that shit doesn’t just become destroyed, UNLESS there was a product defect. Boom, causation.

196
Q

What is the basic requirement to show actual cause in a strict product liability case?

A

The basic requirement to show actual cause is that the defect in the product must have existed when the product left the defendant’s control.

197
Q

In strict product liability cases, plaintiffs will claim that the defect was inadequate warnings on the product. Are they entitled to a presumption that they would have read and heeded an adequate warning if it was there?

A

Yes - plaintiffs are entitled to the presumption that an adequate warning would have been read and heeded

198
Q

When manufacturers don’t know about the defect and objectively don’t have reason to know about the defect, can they still be held liable?

A

Yes. That is strict liability. Life is tough.

199
Q

What are the 4 things the plaintiff needs to show to prove strict product liability?

A

(1) The defendant is a commercial supplier
(2) The defendant produced or sold a product that was defective when it left defendant’s control
(3) The defective product was actual + proximate cause of plaintiff’s injury
(4) The plaintiff suffered damages to person or property

200
Q

Does the plaintiff in a strict liability suit have to be a consumer?

A

No! The plaintiff need only be foreseeable and have suffered damages to person or property.

Foreseeable plaintiff = in the zone of danger

201
Q

Can the retailer be held liable under strict product liability for a product with a manufacturing default when the retailer had no opportunity to inspect and didn’t know about the defect?

A

YES - as a commercial supplier, the retailer is liable for defective products they sell. It doesn’t matter that they didn’t inspect or know because this is strict liability land.

202
Q

Who can indemnify who in strict product liability cases?

A

Each supplier has the right of indemnification against all the PREVIOUS suppliers in the distribution chain. The manufacturer is ultimately liable.

203
Q

Can a defendant be both vicariously liable and directly liable in the same case?

A

Yes!

204
Q

When is an employer vicariously liable for her employee’s torts?

A

ONLY when the torts are committed within the scope of the employment relationship.

205
Q

Are defendants generally liable for the torts of the the independent contractors they hire?

A

Generally no, but there are some exceptions

206
Q

What is the doctrine of respondeat superior?

A

Respondeat superior: An employer may be liable for tortious acts (including intentional ones) committed by their employee IF the tortious acts occur within the scope of employment.

207
Q

When is an employee’s intentional tortious conduct within the scope of employment?

A

Courts will find intentional torts to be in the scope of employment when:
(1) Force is authorized in the employment
(2) Friction is generated by the employment
(3) The employee is furthering the business of the employer

208
Q

What is a tortious frolic?

A

A tortious frolic is when an employee is on a delivery or work trip and deviates majorly in time or geography for a personal errand and commits a tort while deviating.

209
Q

Are employers liable for their employees’ tortious frolics?

A

Hell no!

210
Q

Can an employer be liable for negligently supervising an employee under respondeat superior?

A

No - Respondeat superior only imposes vicarious liability. Negligent supervision would make the employer directly liable.

211
Q

When is a principal vicariously liable for the tortious acts of their independent contractor?

A

A principal is vicariously liable for the tortious acts of their independent contractor when:
(1) the contractor is engaged in inherently dangerous activities (blasting!)
(2) the duty, because of public policy considerations, is simply nondelegable (ex: duty of a business to keep premises safe for customers)

212
Q

What duty do employers have regarding hiring employees? Who do they owe that duty to?

A

An employer owes a duty to all who may foreseeably come into contact with their employee to exercise due care in the hiring, supervision, and retention of employees

213
Q

When can you be liable for conversion for accidentally causing damage to another’s chattel?

A

Accidental damage of chattels is conversion when the defendant was using the chattel without permission.

214
Q

What damages are the plaintiff entitled to in a conversion case?

A

In a conversion case, the plaintiff is entitled to damages for the fair market value of the chattel at the time and place of the conversion.

215
Q

Is a homeowner liable for their guest’s injuries when they were caused by unknown dangerous conditions?

A

No! Guests = Licensees, and homeowners have no duty to warn the licensees of unknown dangerous conditions.

216
Q

Are damages reduced/mitigated by benefits received by the plaintiff from other sources, like health insurance?

A

No! For example, if you have $100k in damages and your health insurance covers $20k in medical bills, your damages are STILL calculated based on the $100k number (rather than 80k).

217
Q

Do humiliation and mental distress count as actual injuries?

A

Yes <3

MBE (8 decks)

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