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TORTS Flashcards

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1
Q

INTENTIONAL TORTS: PRIMA FACIE CASE

A

1) Act
2) Intent
3) Causation

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2
Q

INTENTIONAL TORTS: INTENT REQUIREMENT

A

A defendant acts intentionally if it his PURPOSE to bring about the consequences or if he knows with SUBSTANTIAL CERTAINTY that the consequences will result.

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3
Q

INTENTIONAL TORTS: TRANSFERRED INTENT

A

The intent to commit a tort against one person is transferred to the other tort or injured person when one:
1) commits a different tort against that person
2) commits the same intended tort but against a different person OR
3) commits a different tort against a different person

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4
Q

INTENTIONAL TORTS: MINORS AND INCOMPETENTS

A

Are held liable and held to have the requisite intent

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5
Q

INTENTIONAL TORTS: CAUSATION

A

Is satisfied where the conduct of the defendant is a SUBSTANTIAL FACTOR

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6
Q

INTENTIONAL TORTS: BATTERY

A

1) Intent to bring about a harmful or offensive contact to another person
2) such contact occurs
3) and causation

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7
Q

INTENTIONAL TORTS: BATTERY DAMAGES

A

No actual damages need to be sustained. Nominal damages can be awarded and punitive damages may be given when the defendant acted WITH MALICE

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8
Q

INTENTIONAL TORTS: ASSAULT

A

Intent to create a reasonable apprehension in the plaintiff of an immediate harmful or offensive contact.

Plaintiff must be AWARE of the threat

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9
Q

INTENTIONAL TORTS: ASSAULT AND THE EFFECT OF WORDS

A

Mere words CANNOT constitute assault, but they can NEGATE the elements needed

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10
Q

INTENTIONAL TORTS: ASSAULT DAMAGES

A

NO HARM is required. Nominal damages can be awarded and punitive damages for MALICE

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11
Q

INTENTIONAL TORTS: FALSE IMPRISONMENT

A

1) Confinement or restraint of plaintiff to a bounded area
2) with the intent to do so
3) causation

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12
Q

FALSE IMPRISONMENT: METHODS OF RESTRAINT/CONFINEMENT

A

1) Physical barriers
2) Physical force directed at plaintiff or immediate family
3) Direct threats of force
4) Indirect threats of force - reasonably imply force will be used

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13
Q

FALSE IMPRISONMENT: SHOPKEEPER’S PRIVILEGE

A

1) Must be a reasonable belief that theft has occurred
2) Detention must be conducted in a reasonable manner
3) and the detention must last for only a reasonable time

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14
Q

INTENTIONAL TORTS: IIED

A

1) An act by D of EXTREME and OUTRAGEOUS conduct
2) intent to cause SEVERE emotional distress or RECKLESNESS
3) Causation
4) DAMAGES - SEVERE ED

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15
Q

IIED: WHAT IS EXTREME AND OUTRAGEOUS CONDUCT?

A

Conduct that transcends ALL BOUNDS OF DECENCY tolerated by society

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16
Q

IIED: KNOWN SENSITIVITIES

A

Offensive or insulting language that is not necessarily outrageous can create liability for IIED when the defendant knows the plaintiff has a known sensitivity such as pregnant women, elderly people, children

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17
Q

IIED: BYSTANDER CASES

A

When D’s conduct is directed towards a 3rd person and P suffers severe ED they must show:
1) P was present
2) P suffered bodily harm or was a CLOSE RELATIVE of 3rd person
3) D KNEW this

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18
Q

INTENTIONAL TORTS TO PROPERTY: TRESPASS ON LAND

A

1) Physical invasion of Ps real property
2) Intent to bring about the physical invasion AND
3) causation

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19
Q

INTENTIONAL TORTS TO PROPERTY: WHAT CONSTITUTES PHYSICAL INVASION

A

1) Physically being on land without permission
2) Throwing objects onto land
3) Lawful right of entry expires

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20
Q

INTENTIONAL TORTS TO PROPERTY: INTENT REQUIREMENT FOR TRESPASS ON LAND

A

Intent to enter the land is sufficient

Mistake is NOT A DEFENSE

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21
Q

INTENTIONAL TORTS TO PROPERTY: TRESPASS TO CHATTELS

A

1) An act of D interfering with Ps right of possession in chattel
2) Intent to perform the act bringing about the interference
3) Causation
4) DAMAGES (ACTUAL DAMAGES REQ’D)

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22
Q

TRESPASS TO CHATTELS: INTENT REQUIREMENT

A

Only need the INTENT TO DO THE ACT OF INTERFERENCE

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23
Q

INTENTIONAL TORTS TO PROPERTY: CONVERSION

A

1) An act by D interfering with Ps right of possession in chattel
2) Intent to perform the act bringing about the interference
3) Causation
4) DAMAGES - SERIOUS ENOUGH TO PAY FULL FAIR MARKET VALUE AT TIME OF CONVERSION

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24
Q

CONVERSION: SERIOUSNESS OF INTERFERENCE

A

1) Refusal to return
2) alteration of chattel
3) longer withholding period
4) Extensive use

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25
Q

DEFENSES TO INTENTIONAL TORTS: CONSENT

A

1) Express
2) Implied - what a reasonable person would infer from plaintiff’s words, conduct

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26
Q

DEFENSES TO INTENTIONAL TORTS: SELF-DEFENSE

A

When a person has reasonable grounds to believe that he is being or is about to be attacked, he may use REASONABLY NECESSARY FORCE for his protection

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27
Q

SELF DEFENSE: INJURY TO 3RD PARTIES

A

If a defendant uses self-defense and injures a bystander, he is still protected by the defense

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28
Q

INTENTIONAL TORTS: DEFENSE OF OTHERS

A

If the person reasonably believes the person he is aiding would have a right to self-defense, defendant is not liable for using defense on the 3rd person’s behalf.

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29
Q

INTENTIONAL TORTS: DEFENSES TO PROPERTY

A

One may use reasonably necessary force to prevent the commission of a tort against her property but must request to desist first unless that request would be dangerous

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30
Q

DEFENSES OF PROPERTY: HOT PURSUIT

A

One may still defend his property while in hot pursuit of the trespasser because it is viewed as if the trespasser is still in the process of committing the tort

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31
Q

DEFENSES TO PROPERTY: PUBLIC NECESSITY

A

It is an absolute defense to interfere with one’s land where the interference is reasonable and apparently necessary to avert an imminent public disaster

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32
Q

DEFENSES TO PROPERTY: PRIVATE NECESSITY

A

It is a QUALIFIED DEFENSE to interfere with one’s land where the interference is reasonable and apparently necessary to prevent injury to a limited number of people

The trespasser is liable only for the harm to the property and not the trespass itself

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33
Q

NEGLIGENCE: PRIMA FACIE CASE

A

1) duty
2) breach
3) causation
4) damages

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34
Q

NEGLIGENCE: GENERAL DUTY OF CARE

A

One must act as a REASONABLY PRUDENT PERSON would under the same or similar circumstances

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35
Q

NEGLIGENCE: WHO IS OWED A DUTY OF CARE?

A

A duty of care is owed to FORESEEABLE PLAINTIFFS

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36
Q

NEGLIGENCE: SPECIAL DUTY - DANGER INVITES RESCUE

A

A rescuer is a foreseeable plaintiff when a defendant negligently puts themselves in danger AND so long as the rescue is not reckless

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37
Q

NEGLIGENCE: FIREFIGHTER RULE

A

Bars professional rescuers like police and firemen from recovering for negligence because the inherent risks of their job

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38
Q

NEGLIGENCE: SPECIAL DUTY- PRENATAL INJURY

A

A duty of care is owed to all VIABLE fetuses at the time of the injury and is actionable

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39
Q

NEGLIGENCE: PHYSICAL CHARACTERISTICS CONSIDERED IN THE REASONABLE PERSONS STANDARD

A

A “reasonable person” is considered to have the same physical characteristics as the defendant

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40
Q

NEGLIGENCE: STANDARD OF CARE AND MENTAL CAPACITY

A

Mental capacity is NOT considered in determining whether one acted as a reasonably prudent person

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41
Q

NEGLIGENCE: PROFESSIONAL STANDARD OF CARE

A

A professional is required to possess and exercise the knowledge and skill of an average person in their profession

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42
Q

NEGLIGENCE: CHILD STANDARD OF CARE

A

1) Kids under 5 - NO DUTY
2) Age 5-18: A child is required to conform to the standard of care of a child of like AGE, INTELLIGENCE, AND EXPERIENCE

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43
Q

NEGLIGENCE: CHILD ENGAGED IN “ADULT ACTIVITIES”

A

Will be held to the “reasonably prudent person standard”

44
Q

NEGLIGENCE: DUTY TO UNKNOWN TRESPASSERS

A

A land possessor owes NO DUTY to unknown trespassers

45
Q

NEGLIGENCE: DUTY TO KNOWN/ANTICIPATED TRESPASSERS

A

Duty to warn and make safe from:
1) known and
2) concealed
3) highly dangerous artificial conditions

46
Q

NEGLIGENCE: DUTY TO LICENSEES (SOCIAL GUESTS)

A

Duty to warn and make safe from:
1) a dangerous condition
2) known and concealed to the licensee
3) that creates an unreasonable risk of harm

47
Q

NEGLIGENCE: DUTY TO INVITEES (PUBLIC AND CUSTOMERS)

A

Duty to warn and make safe from:
concealed dangerous conditions that were either known or could have been known to the land possessor upon reasonable inspection

48
Q

NEGLIGENCE PER SE: STATUTORY STANDARD OF CARE

A

1) Plaintiff is in the protected class under the statute AND
2) Statute was designed to protect against the harm suffered

ESTABLISHES DUTY AND BREACH ELEMENTS

49
Q

SPECIAL STANDARD OF CARE: COMMON CARRIERS/IN-KEEPERS

A

Are held to a very high degree of care to their guests - responsible for even the slightest negligence

50
Q

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

A

Defendant creates a foreseeable risk of physical injury to a plaintiff who:
1) is in the zone of danger
2) and suffers physical symptoms

51
Q

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: BYSTANDER CASES

A

A bystander who sees the defendant negligently injure another from outside the zone of danger can recover IF:
1) plaintiff and injured party are CLOSELY RELATED and
2) Plaintiff was PRESENT and OBSERVED or PERCEIVED the incident

52
Q

RES IPSA LOQUITUR: BREACH OF DUTY

A

Requires plaintiff to show:
1) accident was of the type that would not normally occur in the absence of negligence
2) AND negligence was PROBABLY ATTRIBUTABLE to defendant

53
Q

RES IPSA LOQUITUR: DIRECTED VERDICTS

A

1) DENY D’s motion if established or breach shown in another way
2) GRANT D’s motion if P failed to establish Res Ipsa or breach in some other way

54
Q

NEGLIGENCE: CAUSATION

A

Plaintiff must show actual and proximate causation

55
Q

NEGLIGENCE: ACTUAL CAUSATION

A

An act or omission is the the factual cause of injury when the injury would not have occurred but for the act or ommission

56
Q

NEGLIGENCE: MULTIPLE CAUSATION

A

When multiple causes bring about an injury and any one alone could have caused it, D’s act is the cause in fact when it was a SUBSTANTIAL FACTOR in bringing about injury

57
Q

NEGLIGENCE: UNASCERTAINABLE CAUSES APPROACH

A

When there are two acts but it is not known which one caused the injury - the burden is on each D to show they were not the factual cause

58
Q

NEGLIGENCE: PROXIMATE CAUSE

A

Defendant is liable for all natural and foreseeable consequences stemming from their negligent act.

59
Q

NEGLIGENCE: INTERVENING CAUSES

A

When D’s negligence causes a foreseeable intervening force that could harm P, they are liable for that intervening harm such as:
1) med mal
2) rescuer negligence
3) protection or reaction forces
4) disease or accident

60
Q

NEGLIGENCE: SUPERSEDING CAUSES

A

Defendant will not be liable where there negligence an unforeseeable intervening force that harms plaintiff

61
Q

NEGLIGENCE DAMAGES: Eggshell Skull Doctrine

A

Defendant takes the plaintiff as they find them and is responsible for all injuries to P including aggravation of pre-existing conditions

62
Q

NEGLIGENCE DAMAGES: GENERALLY

A

1) economic damages (past, present, future)
2) non-econ damages - pain/suffering

63
Q

NEGLIGENCE DAMAGES: PUNITIVE DAMAGES

A

Allowed where D’s conduct is wanton, willful or malicious

64
Q

NEGLIGENCE DEFENSES: CONTRIBUTORY NEGLIGENCE

A

1) Negligence by the Plaintiff under the ordinary negligence standard that contributes to their injuries
2) is a COMPLETE BAR on right to recover

65
Q

NEGLIGENCE DEFENSES: ASSUMPTION OF RISK

A

P may be denied recovery if they:
1) knew the risk AND
2) voluntarily proceeded in the face of the risk

66
Q

NEGLIGENCE DEFENSES: PARTIAL COMPARATIVE NEGLIGENCE

A

Bars plaintiff’s recovery if their fault was greater than defendant’s

67
Q

NEGLIGENCE DEFENSES: PURE COMPARATIVE NEGLIGENCE

A

Allows P to recover no matter how great their fault but reduces recovery based on % of their fault

68
Q

STRICT LIABILITY: DOMESTIC ANIMALS

A

Not liable for injuries caused by domestic animals unless the animal has KNOWN DANGEROUS PROPENSITIES

69
Q

STRICT LIABILITY: WILD ANIMALS

A

Strict liability to licensees/invitees for harm caused by wild animals (even pets)

70
Q

STRICT LIABILITY: ABNORMALLY DANGEROUS ACTIVITIES

A

1) Activity must create a foreseeable risk of harm even when reasonable care is used
2) Activity not a matter of COMMON USAGE

71
Q

STRICT PRODUCTS LIABILITY (MERCHANT’S ONLY)

A

P MUST SHOW:
1) D is a merchant
2) DEFECTIVE product
3) no substantial alteration since product left D’s control
4) P made foreseeable use of the product

72
Q

STRICT PRODUCTS LIABILITY: MANUFACTURING DEFECTS

A

If the product emerges from manufacturing different/more dangerous than the other products made, D liable IF
1) P shows that product failed to perform as as safely as an ordinary consumer would expect

73
Q

STRICT PRODUCTS LIABILITY: DESIGN DEFECT

A

1) Applies to products with dangerous propensities
2) P must show D could have made product safer without serious impact on utility or price

74
Q

PRODUCTS LIABILITY: NEGLIGENCE

A

Same standard as ordinary negligence - supply a defective product

75
Q

PRIVATE NUISANCE

A

1) Substantial interference - offensive, inconvenient, annoying to avg person in community
2) Unreasonable interference - severity of conduct outweighs utility
3) in the use and enjoyment of Plaintiff’s land

76
Q
A
77
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

78
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

79
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

80
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

81
Q
A
82
Q

STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS

A

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent

83
Q

STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS

A

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent

84
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

85
Q

PUBLIC NUISANCE

A

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

86
Q

VICARIOUS LIABILITY: EMPLOYER-EMPLOYEE

A

Under the doctrine of respondeat superior, employer will be held liable for tortious conduct of employees within the scope of their employment

Frolic: minor deviation from business activities = still liable

Detour - more substantial = no liability

87
Q

VICARIOUS LIABILITY: INTENTIONAL TORTS

A

Generally, an employer is not liable for intentional torts of employees EXCEPT WHEN:
1) Employee is furthering the business
2) force is authorized
3) friction is generated by employment

87
Q

STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS

A

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent

88
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

89
Q

VICARIOUS LIABILITY: INDEPENDENT CONTRACTORS

A

Generally, principal is not liable for torts of independent contractors EXCEPT:
1) duty of business to keep premises safe
2) negligence in selecting or supervising IC

90
Q

MULTIPLE DEFENDANT ISSUES: JOINT AND SEVERAL LIABILITY

A

When two or more acts combine to cause an indivisible injury, each defendant is responsible for the whole of the injury

91
Q

MULTIPLE DEFENDANT ISSUES: ACTING IN CONCERT

A

Each is J/S liable even if the injury is divisible

92
Q

MULTIPLE DEFENDANT ISSUES: CONTRIBUTION

A

Allows D who pays more then their fair share under J/S liability to have a claim for the excess

93
Q

MULTIPLE DEFENDANT ISSUES: INDEMNIFICATION

A

Shifts the entire loss to another defendant in:
1) vicarious liability cases
2) Strict products liability of non-manufacturer

94
Q

DEFAMATION ELEMENTS (GENERALLY)

A

1) A defamatory statement that specifically ID’s the plaintiff
2) Made to a 3rd party
3) that is FALSE
4) fault by D
5) Damage to P’s reputation

95
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

95
Q

STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS

A

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent

96
Q

DEFAMATION: PUBLIC FIGURES

A

Must prove ACTUAL MALICE:
1) knowledge of false statement OR
2) Reckless disregard for the truth

97
Q

DEFAMATION: LIBEL

A

1) made in permanent (printed) form
2) Damages are PRESUMED

98
Q

DEFAMATION: SLANDER/SLANDER PER SE

A

Spoken defamation that requires special damages proven unless slander per se:
1) adverse reflection on business or profession
2) says P committed serious crime
3) Says P engaged in serious sexual misconduct

99
Q

INVASION OF RIGHT TO PRIVACY

A

ANY OF THE FOLLOWING:
1) Appropriation of P’s picture or name
- unauthorized use for D’s commercial advantage
2) intrusion on P’s affairs or seclusion
- highly offensive to reasonable person
3) Publication of facts portraying P falsely
- highly offensive to reasonable person
4) Public disclosure of private facts of P
- highly offensive to reasonable person

100
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

100
Q

STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS

A

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent

100
Q

STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS

A

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent

101
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

102
Q

TRESPASSING KIDS: ATTRACTIVE NUISANCE DOCTRINE

A

Def: Landowners are liable for reasonably foreseeable risk of harm caused to children based on artificial conditions. P MUST SHOW:
1) dangerous condition on land
2) owner knows/should know kids might trespass
3) Condition is likely to cause injury
4) Remedy cost is minor compared to risk

102
Q

STRICT PRODUCTS LIABILITY: INFORMATION DEFECTS

A

A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent

BAR (8 decks)

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