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CA Bar Exam Essay Rules > Torts > Flashcards

Torts Flashcards

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1
Q

Intentional Torts - Battery?

A
  1. Intentional infliction of
  2. Harmful/offensive contact
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2
Q

Intentional Torts - Prima Facie Case?

A
  1. Act by D
  2. Intent by D to effect another
  3. Causation
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3
Q

Intent - Two Ways?

A
  1. Direct Intent - desire or purpose to bring about effect; or
  2. Indirect Intent - knows with substantial certainty that particular effect will occur
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4
Q

Transferred Intent?

A

If D held necessary intent to commit one tort or harm one person, but commits different tort or harms another person, intent transfers in both cases.

Cannot work with conversion or intentional infliction of emotional distress.

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5
Q

Intentional Torts - Battery?

A
  1. Intentional infliction of
  2. Harmful/offensive (reasonable person sense of dignity) contact (direct or indirect)
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6
Q

Intentional Torts - Assualt?

A
  1. Intentionally
  2. Causing apprehension of (P must be aware)
  3. Imminent
  4. Harmful/offensive (reasonable person sense of dignity) contact
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7
Q

Intentional Torts - Intention Infliction of Emotional Distress (IIED)?

A
  1. Intentional/reckless infliction by
  2. Extreme and outrageous conduct
  3. Causing severe emotional distress

Third party liability if (1) physically present, known by D to be present, and close relative; OR (2) physically present, known by D to be present, and suffers bodily harm from distress.

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8
Q

Intentional Torts - False Imprisonment?

A
  1. Intentional
  2. Confinement/restraint
  3. Bounded area
  4. No reasonable means of escape
  5. P is aware or harmed
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9
Q

Intentional Torts - Trespass to Land?

A
  1. Intentional
  2. Physical invasion of (enter, staying, placing item without permission)
  3. Real property of another

Harm to property not required.

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10
Q

Intentional Torts - Trespass to Chattels?

A
  1. Intentional
  2. Interference with
  3. P’s use or possession
  4. In a chattel

Damages is loss in value cause by loss of use.

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11
Q

Intentional Torts - Conversion?

A
  1. Tresspass to Chattel (intentional interference with P’s use or possession in a chattel); and
  2. Subtantial interference (essentially gone - sold or destroyed)

Damages is full market value at time of conversion.

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12
Q

Intentional Torts - Defenses - Consent?

A
  1. Express
  2. Implied
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13
Q

Intentional Torts - Defenses - Self-Defense?

A

Reasonable force.

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14
Q

Intentional Torts - Defenses - Defense of Others?

A
  • Reasonable belief that other justified to defend self
  • Reasonable force
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15
Q

Intentional Torts - Defenses - Defense of Property

A
  • Reasonable force to prevent property tort
  • Warning required
  • Deadly force ONLY if reasonable belief in death or serious bodily harm
  • Mechanical defenses have same limitations as if person defending
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16
Q

Intentional Torts - Defenses - Recapture Chattels?

A
  1. Fresh pursuit
  2. Reasonable force
  3. Wrongful taking
  4. No deadly force!
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17
Q

Intentional Torts - Defenses - Shopkeeper’s Privilege?

A
  1. Temporarily detain to investigate (not arrest - need police)
  2. Reasonable belief item stolen
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18
Q

Intentional Torts - Defenses - Arrest?

A

D exercising legal rights or duties by restraining P.

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19
Q

Intentional Torts - Defenses - Necessity?

A
  1. Reasonably necessary
  2. To prevent great harm
  3. To public = no damages; To private = pay damages.
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20
Q

Negligence - Prima Facie Case?

A
  1. Duty owed
  2. Breach
  3. Actual Cause
  4. Proximate Cause
  5. Damages
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21
Q

Negligence - Duty of Care Standard?

A

Act as reasonable person under the circumstances.

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22
Q

Negligence - Duty of Care Owed To?

A
  1. Majority/Cardozo: Foreseeable P’s (people in zone of danger)
  2. Minority/Andrews: Everyone
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23
Q

Negligence - Duty to Aid/Affirmative Duty?

A

No unless:
1. Special relationship (business open to public, landlord, etc.)
2. Caused the danger
3. Began assisting

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24
Q

Negligence - Duty of Care - Professionals?

A

Act with knowledge and skill of member of the profession in good standing.

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25
Q

Negligence - Duty of Care - Children?

A

Conduct of child of like age, intelligence, and experiance EXCEPT when engaged in adult activity - then resonable person.

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26
Q

Negligence - Duty of Care - Bailment?

A
  • Bailor: gratutious = known dangerous defect in chattel; for hire = known or should known
  • Bailee: if benefit of bailor, low; if benefit of bailee, high; if mutual, ordinary.
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27
Q

Negligence - Duty of Care - Owner/Occupiers of Land - Outside Premises?

A
  1. Natural conditions = No duty
  2. Artificial Conditions = Duty for unreasonable risks from unreasonably dangerous artiifical hazards
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28
Q

Negligence - Duty of Care - Owner/Occupiers of Land - Trespassers?

A

None, except:
1. Known or frequent trespassers
2. Attractive Nuisance

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29
Q

Negligence - Duty of Care - Owner/Occupiers of Land - Known or Frequent Tresspassers?

A

Warn of:
1. Known dangers; and
2. Artificial conditions that pose risk of death or SBH

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30
Q

Negligence - Duty of Care - Owner/Occupiers of Land - Attractive Nuisance?

A

Ordinary care to avoid foreseeable injury to children if:
1. Knew or should have known are is where children tresspass
2. Condition poses unreasonable risk of death or SBH
3. Children do not discover risk due to youth
4. Expense to remedy slight compared to risk
5. Owner fails to use reasonable care to eliminate danger

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31
Q

Negligence - Duty of Care - Owner/Occupiers of Land - Invitee?

A
  • Invitee = invited to do business with owner or open to public
  • Must make reasonable inspection to find hidden dangers and remedy
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32
Q

Negligence - Duty of Care - Owner/Occupiers of Land - Licensee?

A
  • Licensee = enters with consent for her own purpose (e.g., social)
  • Warn of known dangers that licensee unlikley to discover
  • Reasonable care in operations on premises
33
Q

Negligence - Duty of Care - Owner/Occupiers of Land - Landlord & Tenant?

A
  • Landlord: (1) warn known or should know dangers; (2) repair not negligently; and (3) maintain common areas
  • Tenant: (1) same as owner/occupier for premises; and (2) maintain premises.
34
Q

Negligence Per Se - Statute Violation?

A
  1. D violates statute without excuse
  2. P within class of people protected by statute
  3. Statute designed to guard against type of risk suffered by P
35
Q

Three Negligence Per Se Excuses?

A
  1. Complaince = great risk of harm
  2. D was incapacitated
  3. D unaware of factual circumstances that made statute applicable
36
Q

Negligence Per Se - Causation and Damages?

A

Only proves duty and breach; must still prove actual cause, proximate cause, and damages.

37
Q

Negligence - Breach?

A
  1. Failure to meet standard of care.
38
Q

Negligence - Breach - Res Ipsa Loquitor?

A

“It speaks for itself”
1. Type of accident that does not ordinarily occur without negilgence; and
2. Other causes sufficiently eliminated

39
Q

Negligence - Actual Cause?

A

But-for causation.

40
Q

Negligence - Actual Cause - Alternative Causes?

A

When two acts but only one act could cause injury, burden shifts to P to show other caused harm.

41
Q

Negligence - Actual Cause - Substantial Factor Test?

A

When joint tortfeasors and conduct combines, both joint and severally liable as both actions substantial factor in causing injury.

42
Q

Negligence - Proximate Cause?

A

Reasonably foreseeable

43
Q

Negligence - Egg Shell Plaintiff?

A

Take plaintiff as she comes; unforeseeable physical harm from plaintiff’s weakness still liable.

44
Q

Negligence - Proximate Cause - Intervening causes?

A
  • Foreseeable (i.e., negligence by rescuer, resulting med mal) = still liable
  • Unforseeable = generally not liable
45
Q

Negligence - Damages?

A
  • Actual injury required
  • Duty to mitigate
46
Q

Negligent Infliction of Emotional Distress?

A
  • Physical injury to P
  • P in zone of danger
47
Q

Negligence - Three Defense?

A
  1. Contributory Negligence - any negligence from P bars recovery
  2. Comparative Negligence - P damages reduced by % negligent; if partial comparative, more than 50% bars recovery
  3. Assumption of the Risk - P knew risk and voluntarily consented to risk
48
Q

Strict Liability - Animals?

A
  1. Trespass: reasonably foreseeable damages by animal tresspass
  2. Wild Animals: any injury from dangerous propensity typical of species
  3. Domestic: any injury from known or should have known propensity
49
Q

Strict Liability - Ultrahazardous Activities?

A
  1. High risk of serious harm
  2. Cannot eliminate risk with reasonable care
  3. Not common in area; and
  4. Danger outweighs value
50
Q

Strict Liability - Cause and Damages?

A

Strict liability proves Duty and Breach; Need to prove causation and damages.

51
Q

Products Liability - Five Theories?

A
  1. Strict liability
  2. Negligence
  3. Warranty
  4. Misrepresentation
  5. Intent
52
Q

Products Liability - Strict Liability?

A
  1. Commercial supplier (manufacture, retailer, etc.)
  2. Places product in stream of commerce
  3. Product is defective (Manufacture, Design, and/or Warning)
  4. Actual Cause (but for and defect existed when leaving D)
  5. Proximate Cause (foreseeable)
  6. Damages (no recovery for pure economic)
53
Q

Products Liability - Negligence?

A
  1. Duty
  2. Breach
  3. Actual Cause
  4. Proximate Cause
  5. Damages
54
Q

Products Liability - Warranties?

A
  1. Express
  2. Implied (Merchantability and Fitness for particular purpose)
55
Q

Products Liability - Intentional?

A

Seller intended consequence or was substantially certain to occur

56
Q

Products Liability - Three Product Defects?

A
  1. Manufacture: different/more dangerous than should be; not manufactured as should be
  2. Design: consumer expectations test and risk-ultility test
  3. Warning: fails to give adequate warning to known or should have known risk
57
Q

Products Liability - Compliance with Industry Standards?

A
  • Does not establish not defective conclusively
  • Can establish product was defective
58
Q

Products Liability - Fraud?

A

Same as normal fraud elements
1. Misrepresentation of fact
2. Scienter (knowing/reckless)
3. Intent to induce P reliance
4. Causation
5. Justified reliance
6. Pecuniary damages

59
Q

Fraud/Intentional Misrepresentation?

A
  1. Misrepresentation of fact
  2. Scienter (knowing/reckless)
  3. Intent to induce P reliance
  4. Causation
  5. Justified reliance
  6. Pecuniary damages
60
Q

Negligent Misrepresentation?

A

Same as fraud/intentional misrepresentation but D is business or professional and acted with no reasonable grounds.
1. Misrepresentation of fact
2. Scienter (no reasonable grounds)
3. Intent to induce P reliance
4. Causation
5. Justified reliance
6. Pecuniary damages

61
Q

Private Nuisance?

A
  1. Substantial, unreasonable interference with
  2. Use/enjoyment of property
62
Q

Public Nuisance?

A
  1. Substantial, unreasonable interference with
  2. Health, safety, property rights of community.

Private party can recover only if damages are different than those affecting community.

63
Q

Three Nuisance Defenses?

A
  1. Legislation (persuasive only)
  2. Assumption of Risk/Compartive Negligence (if negligence theory)
  3. Coming to Nuisance - only if P did so to bring suit
64
Q

Defamation Elements?

A
  1. Defamatory statement (false bad fact)
  2. Of or concerning P
  3. Published to third party and understood
  4. Causation
  5. Damages
65
Q

Defamation Damages?

A
  1. Libel = presumed
  2. Slander = prove unless per se (regarding fitness to conduct business, loathsome disease, or immoral criminal behavior)
66
Q

Defamation - Matter of Public Concern?

A
  • Public Figure: D must act with malice
  • Private Figure: D must act with negligence
67
Q

Defamation - Four Defenses?

A
  1. Consent
  2. Truth
  3. Absolute privilege: judicial/legislative proceedings, by officials, between spouses
  4. Qualified privilege: statement related to publisher’s interest
68
Q

Privacy Rights - Misappropriation?

A
  1. P’s name or likeness
  2. Unauthorized use for
  3. D’s commercial advantage
69
Q

Privacy Rights - Intrusion on P’s Solitude?

A
  1. Highly objectionable intrusion into private affairs
  2. Reasonable expectation of privacy
70
Q

Privacy Rights - False Light?

A
  1. Public placement
  2. In false light
  3. Highly objectionable to reasonable person

Malice for public matters or officials

71
Q

Privacy Rights - Publicity of Private Life?

A
  1. Publicized details (public at large)
  2. Private life
  3. Highly objectionable to reasonable person
72
Q

Misuse of Legal Process - Malicious Prosecution?

A
  1. Legal proceedings
  2. End in P’s favor
  3. No probable cause
  4. Improper purpose
  5. Damages
73
Q

Misuse of Legal Process - Abuse of Process

A
  1. Wrongful use/process
  2. Ulterior motive
  3. Willful act/wrongful manner

Think discovery, motion practice, etc.

74
Q

Tortious Interference with Business Relations?

A
  1. Contract or business expectancy
  2. D’s knowledge of expectations
  3. Intentional interference
  4. Damages

Defense for fair competition.

75
Q

Torts - Third Party Issues - Vicarious Liability?

A
  1. Scope of employment
  2. Not independent contractor (controlled method and means)
76
Q

Torts - Third Party Issues - Multiple Defendants?

A
  • Joint and several liability
  • Contribution from co-defendants
  • Indemnity
77
Q

Torts - Third Party Issues - Survival Rights?

A

Tort causes of action survive death parties except:
1. Defamation
2. Privacy
3. Malicious prosecution

78
Q

Torts - Third Party Issues - Wrongful Death?

A

Next of kin may recover

79
Q

Torts - Third Party Issues - Family Relationships?

A

May recover for loss of consortium or services for spouse or child.

CA Bar Exam Essay Rules (16 decks)

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