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Rules > Torts > Flashcards

Torts Flashcards

1
Q

Intentional Tort Elements

A

(1) voluntary act (2) intent (3) causation

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2
Q

Transferred intent

A

Allows defendant to be held liable when the defendant intents to commit an intentional tort against one person but instead commits: (1) a different tort against the same person; (2) the same tort against a different person; OR (3) a different tort against a different person

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3
Q

Transferred intent applies to?

A

assault, battery, false imprisonment, trespass to land, and trespass to chattels

B FAT

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4
Q

Battery

A

defendant (1) cause or is a substantial factor in bringing about (2) harmful or offensive contact (3) to the plaintiff’s person and (4) has specific or general intent

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5
Q

Offensive contact

A

A person of ordinary sensibility would find the contact offensive

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6
Q

Assault

A

when a 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 AND (4) has specific or general intent

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7
Q

False imprisonment

A

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

**plaintiff must be aware of the confinement or be harmed by it

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8
Q

Shopkeeper’s Privilege

A

A shopkeeper can detain a suspected shoplifter so long as the detainment is reasonable in time and manner.

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9
Q

IIED

A

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

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10
Q

Trespass to land

A

Defendant (1) causes or is a substantial factor in bringing about (2) a physical invasion on the plaintiff’s real property AND (3) has specific or general intent (only need to have intended to enter the land; irrelevant whether the defendant believed the land belonged to him; mistake of fact is not a defense to trespass)

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11
Q

Trespass to chattels

A

The defendant (1) causes or is a substantial factor in bringing about (2) an interference with the plaintiff’s right of possession in chattel AND (3) has specific or general intent

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12
Q

Interference with chattel by intermeddling

A

Intermeddling occurs when the defendant directly damages the chattel

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13
Q

Interference by dispossession

A

Dispossession occurs when the defendant deprives the plaintiff of his lawful right of possession of the chattel

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14
Q

Conversion

A

Occurs when the defendant (1) causes or is a substantial factor in bringing about (2) an interference with the plaintiff’s right of possession in a chattel (3) where the interference is so serious, it deprives the plaintiff entirely of the use of the chattel AND (4) has specific or general intent

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15
Q

Consent as a defense to torts

A

Consent will be a defense provided that (1) the consent was valid; (2) the defendant’s conduct remained within the boundaries of the plaintiff’s consent

**may be express or implied through words or conduct

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16
Q

Self defense and defense of others

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 that was reasonably necessary and proportionate to protect himself or another

A reasonable mistake as to the existence of danger to the defendant or the person the defendant is attempting to protect is allowed

The 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

A defendant may use reasonable force if he believes it is reasonably necessary to prevent tortious harm to his property.

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17
Q

Private necessity

A

A necessity defense is private when the defendants 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 the defendant

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18
Q

Public necessity

A

A necessity defense is public when the defendant’s act is done for the public good. Under public necessity, the defendant is NOT liable for the property damage he caused.

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19
Q

Negligence

A

stop playing.

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20
Q

To whom a duty is owed

A

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

Majority view: zone of danger

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21
Q

Affirmative duty to act

A

NO affirmative duty to act or help others. However, a duty to act affirmatively will arise if the defendant: (1) places the plaintiff in danger; (2) has a special relationship with the plaintiff (common carrier, innkeeper, family member, etc.) (3) has a duty to act affirmatively imposed by law OR (4) begins to administer air or attempt to rescue the plaintiff

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22
Q

NIED Zone of danger

A

Can recover if: (1) the defendant negligently caused a threat of physical impact (2) the plaintiff was in the zone of danger and (3) the threat of physical impact caused emotional distress

Must suffer physical symptoms!

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23
Q

NIED bystander recover

A

(1) defendant negligently inflicted bodily harm to another; (2) plaintiff is closely related to the person injured by the defendant; (3) the plaintiff was present at the scene of the injury; AND (4) the plaintiff personally observed the injury.

**some jurisdictions require that the plaintiff manifest physical symptoms after witnessing the injury

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24
Q

NIED special relationship

A

Plaintiff can recover for NIED in certain circumstances where a pre-existing relationship exists between the defendant and plaintiff. Arises when: (1) defendant negligently mishandles a corpse or (2) defendant negligently provides false medical info

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25
Q

RPP standard

A

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, but physical disabilities are taken into account

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26
Q

Children standard of care

A

reasonably prudent child of similar age, experience, and intelligence unless engaged in an adult activity

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27
Q

Professional standard of care

A

Professional is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar comunities

28
Q

Physician standard of care

A

Physicians are 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.

29
Q

Psychotherapist standard of care

A

Duty to warn potential victims of a patient’s serious threats of harm if the patient had the apparent intent and ability to carry out such threats and the potential victim is readily identifiable

30
Q

Duty to unknown trespassers

A

No duty to undiscovered trespassers

31
Q

Duty to known trespassers

A

Enter the land without consent, but may be expected by the landowner. He owes a duty to warn or make safe hidden artificial dangers on the land that pose a disk of death or serious bodily harm that he is aware of. (HACK)

32
Q

Licensees

A

Concealed and known

33
Q

Invitees

A

Concealed and known or could have been discovered by reasonable inspection

34
Q

Attractive nuisance doctrine

A

A landowner owes a duty to child trespassers to warn of or make safe artificial conditiosn on the land, provided that:

(1) the artificial condition exists in a place where 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 artificial condition poses an unreasonable risk of death or serious bodily harm

(3) the children, due to their age, do NOT appreciate the danger involved AND

(4) the risk of harm outweighs the expense of making the condition safe

35
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 meant to be protected by the statute AND (2) suffers the type of harm that the statute was designed to protect against.

**Defendant will only be liable under negligence per se if his violation of the statute was the proximate cause of the plaintiff’s injury

36
Q

Res Ipsa

A

“The thing speaks for itself” applies 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. For this to apply, P 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.

**some jurisdictions also require that the injury was NOT due to any action on the part of the plaintiff.

37
Q

Actual Cause

A

But/For

38
Q

Substantial Factor Test

A

If traditional but/for cause 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

39
Q

Proximate Cause

A

To prove proximate cause, the plaintiff must show that her injury was a foreseeable result of the defendant’s conduct. An intervening cause is an outside force or action that contributes to the plaintiff’s harm AFTER the defendant’s breach has occurred. If the intervening cause is unforeseeable, it is a superseding cause and the defendant’s liability to the plaintiff will be cut off form that point forward.

Negligent acts are foreseeable (medical malpractice) but criminal acts, intentional torts, and nature-induced “acts of god” are unforeseeable.

40
Q

Fireman’s Rule

A

Fireman’s rule generally bars lawsuits by police officers and firefighters from collecting on damages that occur in the course of their duties even if the injuries were a clear result of the other party’s negligence

41
Q

Eggshell Plaintiff Rule

A

Under this rule, the defendant is liable for ALL HARM suffered by the plaintiff, even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition that aggravates the harm

42
Q

Respondeat Superior

A

Under this doctrine, an employer may be liable for torts committed by an employee if: (1) an employer-employee relationship exists AND (2) the employee’s commission of the tort occurs within the scope of employment.

43
Q

Employee?

A

extent of control that the principal exercises over the details of the agent’s work

44
Q

What is within scope of employment?

A

Function for which the employee was hired to perform, within the employer’s authorized time and space limits, conducted to serve the employer, and foreseeable to the employer

45
Q

Employer responsible for intentional torts?

A

No, unless (1) tort was authorized by the employer OR (2) force was within the scope of employment in the employee’s work

46
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

47
Q

Contributory negligence

A

In a contributory negligence jurisdiction, 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 willful misconduct; OR (2) has the last clear chance to avoid injuring the plaintiff, but failed to do so.

*not a valid defense to intentional torts

48
Q

Comparative fault

A

In a comparative fault jurisdiction, the plaintiff’s own negligence limits recovery but is NOT necessarily a complete bar to recovery. Two different approaches

49
Q

Pure comparative negligece

A

Under pure comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence

50
Q

Modified comparative negligence

A

Under modified comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence. If plaintiff is MORE at fault than the defendant, the plaintiff’s recovery is completely barred.

51
Q

Assumption of the risk

A

Assumption of risk is a defense to negligence that applies when a party knowingly and willingly embraces a risk for some purpose of his own (similar to consent in intentional torts). Assumption of risk may be express or implied

52
Q

Strict liability

A

Defendant will be liable for damages REGARDLESS of how careful they were. three categories: (1) animals; (2) abnormally dangerous activities; and (3) defective products

53
Q

Domestic animal liability

A

not strictly liable for harm unless the owner knows or has reason to know of the animal’s dangerous propensity

54
Q

wild animal liability

A

Animals that, as a species or class, are not customarily kept in the service of mankind. An owner of a wild animal is strictly liable for any harm caused by the animal regardless of safety precautions taken by the owner.

NOT STRICTLY LIABLE FOR HARM CAUSED BY TRESPASSERS

55
Q

Abnormally dangerous activities

A

One that is (1) inherently dangerous (2) inappropriate for the location chosen; (3) virtually impossible to make safe and (4) of little value to the community

56
Q

products liability

A

strict liability requires p to show: (1) product was defective in manufacture, design, or failure to warn; (2) 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

57
Q

Manufacture defects

A

(1) deviated from its intended design AND (2) fails to conform to the manufacturers own design

58
Q

Design defects

A

P must show product: (1) could have been safer; (2) without serious impact on the product’s (2) utility or (3) price

59
Q

Failure to warn

A

A failure to warn defect requires the P to show: (1) p was NOT warned of the risks regarding the use of the product (2) the risks are NOT obvious to an ordinary user AND (3) the designer was aware of such risks

60
Q

Scope of products liability

A

plaintiffs: any person foreseeably injured by a defective product may pursue a products liability claim

defendants: a strict liability claim under products liability may ONLY be brought against a merchant who is in the chain of distribution

61
Q

defamation

A

a (1) false (2) defamatory statement (3) published to a third party (4) of or concerning the plaintiff (5) causing damage to plaintiff’s reputation (6) by fault of defendant

62
Q

Public officials and figures

A

Actual malice standard; knew it was false or reckless disregard for the truth

63
Q

Slander per se

A

(1) damages business (2) concerning someone’s chastity (3) someone has a loathsome disease (4) statements attributing a crime of moral turpitude to P

64
Q

Interference with business relations

A

(1) existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff; (2) the defendant’s knowledge of the relationship or expectancy; (3) intentional interference by the defendant inducing a breach or termination of the relationship or expectancy; (4) damages

65
Q

Negligent misrepresentation

A

(1) misrepresentation by the defendant in a business or professional capacity; (2) breach of duty toward a particular plaintiff; (3) causation; (4) justifiable reliance; (5) damages

66
Q

Misrepresentation

A

(1) misrepresentation; (2) defendant knew or believed statement was false; (3) intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation; (4) causation; (5) justifiable reliance; (5) damages

Rules (15 decks)

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