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Bar Prep > Torts > Flashcards

Torts Flashcards

1
Q

Elements of an Intentional Tort

A

1) Voluntary Act: Defendant’s actions must be voluntary.
2) Intent: Must have either specific or general intent
(a) Specific Intent: An actor has specific intent when the actor acts with the purpose of causing the consequence.
(b) General Intent: An actor has general intent when the actor knows that the consequence is subtantially certain to occur.
3) Causation: Causation is satisfied if the defendant’s conduct was a substantial factor in bring about the harm

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2
Q

Transferred Intent

A

Transferred Intent doctrine allows the defendant to be held liable when the defendant intends to commit an intentional tort against one person but instead commits:
(1) A different intentional tort against the same person;
(2) The same intentional tort against a different person; OR
(3) A different intentional tort against a different person

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3
Q

Battery (Intentional Tort)

A

A battery occurs when the Defendant:
1. Causes or is a substantial factor in bringing about:
2. Harmful or offensive contact:
(a) Contact is harmful when it causes injury, pain, or illness.
(b) Contact is offensive where a person of ordinary sensisbility would find the contact offensive.
3. To the Plaintiff’s person; AND
4. Has specific or general intent

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4
Q

Assualt (intentional tort)

A

An assault occurs when the defendant:
1. Causes or is a substantial factor in bringing about;
2. Reasonable apprehension in the plaintiff
3. Of Imminent harmful or offensive bodily contact to the plaintiff’s person; AND
4. Has specific or general intent

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5
Q

False Imprisonment (intentional tort)

A

A false imprisonment occurs when the defendant;
1. causes or is a substantial factor in bringing about;
2. The confinement of the plaintiff within fixed boundaries; AND
3. Has specific or general intent

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6
Q

Shopkeeper’s privilege

A

Shopkeeper’s privilege is a defense to false imprisonment. A shopekeeper can detain a suspected shoplifter so long as the detainment is reasonable in both time and manner.

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7
Q

Intentional Infliction of Emotional Distress (IIED) (Intentional torts)

A

IIED occurs when the defendant:
1. Acts with extreme or outrageous conduct;
2. Which causes or is a substantial factor in bringing about;
3. Severe emotional distress; AND
4. Has intent to cause severe emotional distress OR acts with recklessness as to the risk of causing severe emotional distress.
NOTE: Reckless conduct applies to IIED, but no transferred intent.

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8
Q

Trespass to Land

A

Defendant:
1. Causes or is a Substantial factor in bringing about;
2. A physical invasion of the plaintiff’s real property; AND
(can be invasion by person or object, i.e. throwing a rock onto their land);
3. Has specific or general intent

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9
Q

Trespass to Chattels (Intentional tort)

A

Defendant:
1. Causes or is a substantial factor in bringing aboutl
2. An interference with the plaintiff’s right of possesion in a chattel; AND
(a) Intereference by intermeddling: Occurs when the defendant directly damages the chattel;
(b) Interference by dispossesion: Occurs when the defendant deprives the plaintiff of his lawful right of possession of the chattel;
3. Has Specific or General intent

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10
Q

Conversion (intentional tort)

A

Defendant:
1. Causes or is a substantial factor in bringing about;
2. An interference with the plaintiff’s right of possesion in a chattel;
3. Where the intereference is so serious, it deprives the plaintiff entirely of the chattel; AND
4. Has specific or general intent

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11
Q

Consent (Defense to intentional torts)

A

The plaintiff’s consent to the defendant’s conduct is a defense to intentional torts (not crimes), provided that:
1. The consent was valid; AND
2. The Defendant’s conduct remained within the boundaries of the plaintiff’s consent.

The Plaintiff’s consent may be express or implied.

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12
Q

Self Defense

A

A defendant is not liable for harm to the plaintiff if:
(1) The defendant reasonably believed that the plaintiff was going to harm him or another; AND
(2) The defendant used only the amount of force reasonably necessary and proportionate to protect himself or another.

Defendant is not permitted to claim self-defense if the defendant was the initial aggressor, unless the other party responded to nondeadly force with deadly force.

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13
Q

Defense of Property

A

A defendant can use reasonable force if he beleives it is reasonably necessary to prevent tortious harm to his property. However, deadly force cannot be used to prevent harm to property.

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14
Q

Necessity (Defense)

A

Available to a defendant who entered on the plaintiff’s land or interferes with the plaintiff’s personal property, provided that the defendant does so to prevent an injury or some other severe harm.

Private Necessity: Private when the defendant’s act is done to benefit a limited number of people. Under private necessity, the defendant MUST pay for the actual damages that he caused. However, the landowner may NOT use force to exclude a defendant.

Public Necessity: A necessity defense is public when the defendant’s act is done for the public good. Defendant is NOT liable for property damage caused.

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15
Q

Negligence Elements

A

**1. Duty: **The defendant owed a duty to the plaintiff to conform to a specific standard of care;
2. Breach: The defendant breached the duty of care owed
3. Causation: Plaintiff was actual or proximate cause of the plaintiff’s injuries.
4. Damages: Plaintiff sustained damages or loss.

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16
Q

Duty

A
  1. A duty of care is owed to all foreseeable plaintiffs that may be harmed by the defendant’s breach of the applicable standard of care.

MAJORITY VIEW (CARDOZO): Defendant owes a duty of care to plaintiffs within the foreseeable zone of danger.

MINORITY VIEW: Defendant owes a duty of care to everyone harmed by their actions or lack thereof.

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17
Q

Affirmative Duty to Act

A

In general, there is NO affirmative duty to act or help others. However, there is one if the defendant:
1. Places the plaintiff in danger;
2. Has a special relationship with the plaintiff;
3. Has a duty to act affirmatively imposed by law; OR
4. Begins to **administer aid **or attempt to rescue the plaintiff.

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18
Q

Reasonable Person Standard

A

The standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard. The defendant is presumed to have average mental abilities and knowledge.

Phyiscal Disabilities: Particular physical disabilities may be taken into account.

Intoxication: Intoxicated people are held to the same standard as sober people unless the intoxication was involuntary.

Community Customs: may be relevant in determining reasonableness, but are NOT dispositive.

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19
Q

Children Standard of Care

A

Children are held to the standard of care of a reasonably prudent child of the same age, experience, and intelligence under the circumstances (more subjective).

However, if the child is engaged in adult activity the court will NOT take the child’s age into account.

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20
Q

Professional, Physician, and Psychotherapist Standards of Care

A

Professionals: A professional (e.g., nurses, accountants, lawyers etc.) are expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities.

Physicians: Held to a national standard of care, and have a duty to disclose the risks of treatment to enable a patient to give informed consent. This duty is only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.

Psycotherapists: In majority of states, have a duty to warn potential victims of patient’s serious threats of harm if the patient has the apparent intent and ability to carry out such threats and the potential victim is readily identifiable.

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21
Q

Landowner Standards of Care

A

Under the traditional approach, the standard of care depends on the status of the entrant. Three types of entrants:
Trespassers, Licensees, and Invitees

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22
Q

Duty of Care to Trespassers

A

Trespassers are persons who enter a landowners property without valid consent or necessity. Two types of trespassers:
(1) Discovered or anticipated trespassers: enter the land without consent, but may be expected by the landowner. The landowner owes a duty to warn or make safe of hidden dangers on the land that pose a risk of death or serious bodily harm (only applies to artificial conditions the landowner is aware of).

(2) Undiscovered Trespassers: NOT expected by the landowner, the landowner owes no duty to undiscovered trespassers.

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23
Q

Duty to Licensees

A

A licensee is someone who enters the landowner’s property for their own purpose or benefit (e.g., social guests). The landowner has NO duty to inspect his property. BUT has duty to warn of or make safe any hidden dangers on the land that pose an unreasonable risk of harm.

24
Q

Duty to Invitees

A

An invitee is a person who is invited on the property for the owner’s benefit or mutual benefit with the invitee. The landowner owes a duty to the invitee to reasonably inspect the land for hidden dangers and if discovered, make them sage.

25
Q

Alternative Premises Liability Approach

A

Some states have rejected the traditional approach distinctions between licensees and invitees simply applying a reasonable person standard to all landowners. In these states, landowners owe the same duty of care to all entrants on their land.

26
Q

Attractive Nuisance Doctrine

A

A landowner owes a duty to child trespassers to warn of or make safe artificial conditions on land, provided that:
1. The artificial condition exists in a place the landowner knows or has reason to know that children are likely to trespass.;
2. The landowner knows or has reason to know that the condition poses a unreasonable risk of death or serious bodily harm;
3. The children, due to age, do NOT appreciate the danger involved; AND
4. The risk of harm outweighs the expense of making the condition safe.

27
Q

Negligence Per Se

A

When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:
(1) Is in the class of people the statute is meant to protect; AND
(2) Suffers the type of harm the statute was designed to protect against.

The defendant will only be liable under negligence per se if the violation of the statute was the proximate cause of the plaintiffs injury.

28
Q

Res Ipsa Loquitor

A

Applied when an element of negligence is difficult to prove, but the circumstances make it obvious that the defendant’s negligence was the most likely cause of the harm. Plaintiff must show that the accident resulting in the harm was:
(1) Of a kind that ordinarily does not occur in the absence of negligence; AND
(2) Caused by an agent or instrumentality within the defendant’s exclusive control

Minority of JDX require that the plaintiff’s actions had no link to the injury.

29
Q

Actual and Proximate Cause

A

to prove negligence, the plaintiff MUST show that the defendant’s conduct was **BOTH **the **ACTUAL and PROXIMATE cause ** of the plaintiff’s injury.

30
Q

Actual Cause

A

In order to prove proximate cause, the plaintiff must show that their injury would not have occurred **BUT FOR **the defendant’s breach.

Substantial factor test: If traditional “but for” causation cannot be shown, most courts are willing to implement a “substantial factor” test. Under a substantial factor test, actual cause can be established if the defendant’s breach was a substantial factor in bringing about the plaintiff’s harm.

31
Q

Proximate Cause

A

To prove proximate cause, the plaintiff must show that their injury was a foreseeable result of the defendant’s conduct.

An intervening cause is an outside force that contributes to the plaintiff’s action after the defendant’s breach.

If the intervening cause is unforeseeable, it is a superseding cause and will cut off the defendant’s liability from that point forward.

Further negligent acts are considered foreseeable (med mal, etc) and Criminal acts, intentional torts, and acts of god are considered unforseeable.

32
Q

Fireman’s Rule

A

Generally bars lawsuits by police officers and firefighter’s from collecting on damages that occur in the course of their dutites, even if clearly caused by the other party’s negligence.

33
Q

Eggshell Plaintiff Rule

A

Defendant is liable for ALL HARM suffered by the plaintiff, even if unforeseeable, preexisting mental or physical condition that aggravates the hamr.

34
Q

Respondeat Superior

A

An employer (principal) may be liable for the torts of their employee (agent) if:
1. An employer-employee relationship exists (NOT independant contractor relationship); AND
2. The employee’s comission of the tort occurs within the scope of employment.

Look at level of control exerted by employer over employee.

35
Q

Detour vs. Frolic

A

Employer liable if tort committed during employees detour ( a minor deviation from scope of employment) but NOT liable if tort committed during employees frolic (major deviation from scope of employment).

36
Q

Business partner liability

A

the negligence of one business partner can be imputed over the other business partners if committed within the scope of the business’s purpose.

37
Q

Negligent Infliction of Emotional Distress (Zone of Danger, Bystander Recovery, Special Relationship).

A

3 ways a plaintiff can recover for NIED:
1. Zone of Danger:
(a). Defendant negligently caused a threat of physical impact;
(b). The plaintiff was within the “zone of danger”; AND
(c). The threat of physical impact caused emotional distress.

2. Bystander Recovery:
(a). Defendant negligently inflicted bodily harm to another;
(b). Plaintiff is closely related to the person injured by defendant;
(c). The Plaintiff was present at the scene of the injury;
(d). The Plaintiff personally observed the injury;
(e). SOME JDX require plaintiff manifest phyiscal symptoms

3. Special Relationship:
(a). Defendant negligently mishandles a corpse; OR
(b). Defendant negligently provides false medical information

38
Q

Joint and Several Liability

A
  1. When two or more parties are jointly and severally liable, each party is independently liable for the full extent of the damages stemming from the tortious act. Thus, the plaintiff can collect the full judgment value from either one of them.
  2. A defendant who pays more than his share of the judgment can seek contribution from the other defendants.
39
Q

Alternative Liability

A

If a plaintiff cannot identify with specificity which among multiple defendants caused his harm, alternative liability allows the plaintiff to shift the burden of proving causation to the defendants.

40
Q

Indemnification

A

Indemnification allows a passive tortfeasor to recover a complete reimbursement from an active tortfeasor.

41
Q

Contributory Negligence

A

In a contributory negligence JDX, a plaintiff cannot recover damages if his own negligence contributed to his injury in any way, UNLESS the defendant:
(1) Was engaged in wanton and willfull misconduct; OR
(2) Had the last clear chance to avoid injuring the plaintiff but failed to do so.

NOT available as a defense for intentional torts.

42
Q

Comparative Fault

A

In a comparative fault JDX, plaintiffs own negligence limits recovery, but NOT necessarily a complete bar to recovery.

1) Pure Comparative Negligence: Under pure comparative negligence, the P’s recovery is limited by the percentage of fault the jury attributes to them.
2) Modified Comparative Negligence: Under modified comparative, same as pure comp. BUT the plaintiff’s recovery is totally barred if they are more at fault than the defendant.

43
Q

Assumption of Risk

A

A defense to negligence when a party knowingly and willingly embraces a risk for some purpose of his own. May be express or implied.

44
Q

Strict Liability

A

Defendant will be liable REGARDLESS of how careful they were. Generally, there are three categories:
1. Animals,
2. Abnormally dangerous activities; AND
3. Defective Products

45
Q

Animals (Strict Liability)

A

Domestic Animals: NOT strictly liable unless the owner knows or has reason to know animal has dangerous propensity.

Wild Animals: Strictly liable for harm caused by the animal regardless of safety precautions taken. HOWEVER, generally NOT strictly liable for harm caused to trespassers.

46
Q

Abnormally Dangerous Activities

A
  1. Defendant is stricly liable for damages caused to the plaintiff is engaged in abnormally dangerous activities. A ADA is one that is:
    A. inherently dangerous
    B. Inappropriate for the location chosen
    C. Virtually impossible to make safe; AND
    D. Of little value to the community
47
Q

Products Liability

A

A strict liability claim under products liability requires the plaintiff to show:
(1) The product was defective in manufacture or design;
(2) The defect existed when the product left the defendant’s control; AND
(3) The defect caused the plaintiff’s injury when the product was used in a foreseeable way.

48
Q

Manufacture Defects

A

Requires the Plaintiff to show that the product:
(1) Deviated from its intended design; AND
(2) Fails to conform to the manufacturer’s own design;

49
Q

Design defects

A

Two tests for a design defect
(1) Under the consumer expectations test, the plaintiff must show that the product is less safe than the ordinary consumer would expect.
(2) Under the risk-utility test, the plaintiff must show that the products** risks outweigh its benefits** AND that there is a reasonable alternative design.

50
Q

Failure to Warn

A

A failure to warn defect requires the plaintiff to show:
(1) Plaintiff was not warned of the risks;
(2) The risks are NOT obvious to an ordinary user; AND
(3) The design/manufacturer was aware of such risks.

51
Q

Scope of Products Liability

A
  1. Plaintiffs: Any person foreseeably injured by a defective product may pursue a products liability claim.
  2. Defendants: A strict liability claim under products liability may ONLY be brought against a merchant who is in the chain of distribution
52
Q

Defamation

A

Defamation occurs when the defendant:
(1) Publishes: The statement must be communicated to a third party who understands the content of the statement.
(2) A Defamatory Statement: Statement must be false and NOT an opinion.
(3) Of or concerning the Plaintiff: A reasonable person must believe it referred to the particular plaintiff
(4) Causing damage to the plaintiff’s reputation.

53
Q

Fault Requirements for Defamation

A
  1. Public figures: Requires actual malice
  2. Private Figures: Need only prove the statement was false and speaker was atleast negligent.
54
Q
A
54
Q

Limitation on Damages

A

Public Figure: Can only recover ACTUAL damages

Private Figure: Actual damages unless ACTUAL MALICE

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