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Selected Topics Midterm > Torts > Flashcards

Torts Flashcards

1
Q

Vicarious Liability

Negligence/Employee

A

Principals/Employers are vicariously liable for the
negligenceof their employees, committed while the
employee is acting within the scope of their agency.

VL for detour but not frolic (significant deviation).

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2
Q

Vicarious Liability

Negligence/IC

A

Vicarious Liability of Principal for negligence of IC in two situations:
1. The IC is engaged in inherently dangerous activities; OR
2. The duty is non‐delegable (duty to keep premises safe, house safe, car in good condition)

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3
Q

Vicarious Liability

Intentional Torts

A

Principals liable for intentional torts of agents (employees AND independent contractors) IF:
* Force is authorized by employment
* Friction is generated by employment
* Employee/agent furthering business of employer (discuss types of authority—express, implied, apparent)

  • Vicarious Liability is NOT a defense for employee
  • Employee/agent liable to Principal as well through
    indemnity
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4
Q

Assault

A

(1) A volitional act (conscious muscle movement)

(2) Done with the intent to cause either:
* Harmful or offensive contact that, OR
* An apprehension of imminent harmful or
offensive contact that

(3) Actually and Proximately Causes the
reasonable apprehension of harmful or
offensive contact

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5
Q

Battery

A

(1) A volitional act

(2) Done with the intent to cause either:
* Harmful or offensive contact, OR
* An apprehension of imminent harmful or
offensive contact that

(3) Actually and Proximately Causes harmful or
offensive contact to the person of another

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6
Q

False Imprisonment

A

(1) An act intending to confine someone within boundaries fixed by the actor

(2) Directly or indirectly resulting in such confinement, and
* (Threat of future harm is not confinement, but threat of immediate or present harm is)

(3) The confined person is either conscious (aware) of the confinement or harmed by it

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7
Q

Shopkeeper Privilege

False Imprisonmet DEFENSE

A

reasonable grounds to believe theft occurred, may detain one for a reasonable time and in a reasonable manner to ascertain what has happened

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8
Q

Crime Prevention

False Imprisonment DEFENSE

A

If a misdemeanor, reasonable belief crime involving disturbing the peace occurred and must have been in presence of arresting person

If felony, reasonable belief felony has occurred, but need not be committed in presence of arresting person

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9
Q

Trespass to Chattels

A
  1. An act which is an intermeddling or dispossession
  2. Of the personal property
  3. Of another
  4. Which causes harm to, or the loss of use of, the personal property

always talk about conversion right after??

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10
Q

Conversion

A

interference is serious enough in
result to warrant that defendant pays the full value of the chattel at the time of conversion.

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11
Q

IIED

A
  1. Extreme and outrageous conduct that
  2. Causes severe emotional distress

  • No requirement for actual/physical harm - Harm only required for NIED
  • Third‐Party IIED - Plaintiff must be closely related to harmed person and must see the harm inflicted
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12
Q

Abuse of Process

A
  1. Use of a Legitimate Civil Process (Service, Filing of Complaint, Discovery, etc.)
  2. For a wrongful purpose (harass, waste time)
  3. And an act or threat against the plaintiff to accomplish the wrongful purpose

Prohibits the use of any form of process to
bring about a result other than that for which
the process was intended

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13
Q

Malicious Prosecution

A
  1. Initiation of civil, administrative, or criminal
    proceedings against plaintiff
  2. Without Probable Cause
  3. For a wrongful purpose
  4. And the favorable termination of the proceedings on the merits in favor of current plaintiff (defendant in original case) (includes a dismissal with prejudice)
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14
Q

Negligence

Umbrella Statement

A

The five elements of negligence are:
1. Duty
2. Breach
3. Actual Cause
4. Proximate Cause
5. Harm

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15
Q

Ordinary Duty

Negligence

remember analysis for not a forseeable plaintiff

A

When a person engages in an activity, they are under a legal duty to act as an ordinary, prudent, reasonable person.

Unforseeable plaintiff
Discuss the Cardozo/Andrews split under
duty.
* Cardozo—plaintiff must be in zone of danger;
* Andrews—focus on foreseeability of harm/whether harm is too attenuated from cause)

  • Incorporate standard of care and to whom duty is owed as
    part of duty analysis
  • No duty to foresee a criminal act unless breach of duty itself
    foreseeably increases the risk of the criminal act occurring
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16
Q

Duty Possessors of Land

Specialized Duty

A

a landowner owes no duty to protect
someone outside the premises from either
natural or artificial condition on the land.

Natural Condition - EXCEPTIONS
* trees that harm persons/property off-premises

Artificial Condition - EXCEPTIONS
* duty to protect from unreasonable dangerous artificial conditions
* duty to take precautions to protect persons passing by from dangerous condition

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17
Q

Duty to Invitee

Specialized Duty

A

Duty to invitee if Possessor:
1. Knows or by the exercise of reasonable care,
should have discovered, the condition and should realize that it poses an unreasonable risk of harm to invitees; and
2. Should expect that the invitee will not discover or realize the danger or will fail to protect themselves against it.

IF DUTY EXISTS, then duty to inspect, discover, repair and protect against known or discoverable dangers

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18
Q

Duty to Licensee

Specialized Duty

A

Duty of Possessor if Possessor:
1. Knows or has reason to know of the condition and should realize that it involved an unreasonable risk of harm to the licensees and should expect that the licensees will not discover or realize the danger; and
2. Fails to exercise reasonable careto make the condition safe or to warn the licensee of the condition and the risk involved; and
3. The licensees do not know or have reason to know of the condition or the risk involved

IF DUTY EXISTS, then duty to repair and protect against known dangers

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19
Q

Duty to Trespassers

Specialized Duty

A

Duty only extends to artificial dangerous
condition:
* Known trespassers: Duty to warn of artificial, non‐obvious dangerous conditions maintained by landowner
* Unknown trespassers: Duty not to use willful and wanton conduct

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20
Q

Duty – Attractive Nuisance

Specialized Duty

A
  1. Landowner knows or should know of
    dangerous condition
  2. Owner knows children are frequenting the area
  3. Dangerous condition likely to cause harm due to child’s inability to appreciate risk
  4. *Expense of remedy *slight compared to level of risk.
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21
Q

Duty - Firefighter’s Rule

Specialized Duty

A

The firefighters’ rule* bars* firefighters and police officers and other first responders, on public policy or assumption of risk grounds, from recovering for injuries caused by the special risks of doing their job or effecting a rescue.

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22
Q

Duty - Common Carriers

Specialized Duty

A

Common carriers, such as airlines and similar modes of travel, have a heightened duty to use the highest degree of care to aid and assist their passengers, but it is still a duty of care—there is no strict liability

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23
Q

Duty - Rescuers

Specialized Duty

A

A rescuee is liable to a rescuer who is injured in the course of the rescue if the rescuee’s own negligence put them in the position of requiring a rescue.

third parties who foreseeably place rescuers in danger are similarly liable, such as a vehicle manufacturer whose negligently designed or manufactured automobile foreseeably loses control and necessitates a rescue on a highway, where the rescuer is then hit by other traffic.

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24
Q

Duty - Custom

Specialized Duty

A

Custom or usage in an industry or trade may be introduced as evidence of a duty or lack of duty.

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25
Q

Duty - NIED

A

general, there is no duty to prevent emotional distress harms in the absence of physical harm. Plaintiff must usually be within the zone of danger from the negligence and suffer physical symptoms from the emotional distress

EXCPETIONS - (zone of danger and physical symptoms not required):
* Plaintiff and victim closely related, plaintiff
present and perceived the injury
* Duty arises from special relationship
* Mishandling of corpse of relative
* Erroneous statement that relative has died

26
Q

Breach of Duty

A

____ breached the duty to ____ reasonably when he / she ____ .

Where defendant’s behavior falls short of
that level required by the applicable standard
of care

27
Q

Res Ipsa Loquitor

A
  1. defendant had control of the instrumentality of the harm
  2. harm would not have occurred in the
    absence of negligence

Discuss ONLY if the act or omission
constituting breach is unknown

rarely on essay, mostly on MBE

28
Q

Negligence Per Se

A
  1. Statute or ordinance must be a criminal statute (includes traffic and safety and regulatory infractions)
  2. **plaintiff must be a member of the class **of persons intended to be protected by the statute
  3. claimed harm must be the type of harm intended to be protected against by the statute

  • A finding of negligence per se results in the
    conclusive presumption of breach and duty in
    a majority of states
  • Even if you find negligence per se, discuss all
    five elements of negligence as if negligence
    per se is not established.
29
Q

Actual Cause

A

____ is the actual cause of ____’s injuries because but for ____’s conduct, ____’s injuries would not have occurred. Therefore, actual cause is established.

But for D’s breach, P would not have been injured

30
Q

Proximate Cause

A

Proximate cause exists when the type of harm present is generally foreseeable from the type of conduct. If establishing liability is too attenuated, there is likely not proximate cause.

31
Q

Harm

A

____ was harmed by ____’s action because ____ suffered a _____.

32
Q

Contributory Negligence

Negligence DEFENSE

A

A plaintiff may invoke the last clear chance doctrine to avoid a finding of contributory negligence. In the case of the “inattentive plaintiff,” the plaintiff could have discovered his situation and avoided the harm, but the defendant still has the last opportunity to avoid the harm, knows of the harm, and realizes or should realize it, and fails to do anything about it.

33
Q

Pure Comparative Fault

Negligence DEFENSE

A

Pure comparative fault reduces the recovery by the percentage attributable to plaintiff’s fault.

34
Q

Non-Pure Comparative Fault

Ngeligence DEFENSE

A

Non-pure comparative fault bars recovery if plaintiff’s fault exceeds 50%.

35
Q

Assumption of the Risk

Negligence DEFENSE

A

Plaintiff is denied recovery if he or she knows of the risk and voluntarily assumes it.

Merely venturing into traffic or driving a car is not an assumption of the risk—the particular risk must be apprehended and understood, not a generalized risk of harm. Certain risks are not assumed: the risk of traveling on a common carrier; where a statute protects a class; fraud, force, or emergency.

36
Q

Emergency

Negligence DEFENSE

A

this is an issue of the standard of care, and thus duty, but a number of states characterize it as a defense.

Discuss this when the facts state something like, “Defendant suddenly swerved to avoid …” So long as defendant did not create the emergency, the duty is to act as a reasonable person would under the same emergency.

37
Q

Public Nuisance

A

Public nuisance interferes in a common public interest: public health; public safety; public convenience; public comfort; or public peace; or it involves the violation of a statute, ordinance or regulation.

A private person can generally only bring an action for public nuisance where the private party suffers harm that is different in kind from the harm suffered by members of the public in general.

38
Q

Private Nuisance

A

(1) An unreasonable invasion of another’s interest in the use or enjoyment of his or her land (objective test)

(2) And the invasion is either:
* Intentional;or
* Unintentional and otherwise actionable as negligence, reckless or abnormally dangerous conditions or activities

If the invasion is intentional and unreasonable, the court will not balance the harms in considering an injunction.

39
Q

Trespass

A

Entry onto or remaining upon land in the possession of another without a privilege to do so created by possessor’s consent or otherwise.

  • NOT a defense
  • Where trespasser has the privilege of necessity, (1)
    defendant still liable for actual damages but not
    punitives; and (2) landowner may not eject trespasser
    or their property by use of excessive force
40
Q

Animals

Strict Liability

A

plaintiff in a strict liability case must show that:
1. Defendant owned a wild animal
2. That caused harm to plaintiff of a kind typically due to the wildness of the animal

Owners and possessors of livestock and wild animals are strictly liable for the harm caused by the animals, including both property damages and personal injury.

41
Q

Abnormally Dangerous Activities

Strict Liability

A

(1)Carrying on of an abnormally dangerous activity
* High degree of risk or harm
* Gravity of the harm
* Inability to eliminate the risk by using reasonable care

(2) Which causes harm

(3) The risk of which make the activity abnormally dangerous

42
Q

Products Liability

A

There are three theories of liability in products liability: strict liability in tort, negligence, and breach of warranty

ALWAYS START WITH THIS

43
Q

Strict Products Liability

Products Liability

A
  1. Defendant is a commercial supplier—they are in the business of selling or otherwise distributing products [i.e. manufacturers, wholesalers, retailers, distributors]
  2. Defendant sells or distributes a defective product (places it in the stream of commerce) and product remains unchanged [i.e. manufacturing defect, design defect, inadequate instructions or warnings]
  3. The defect actually and proximately causes the harm to a foreseeable person (privity not required)
44
Q

Defects

STRICT Products Liability

A

(1) *Manufacturing *– product departs from design
* Error on the assembly line

(2) Design
* Risk/Utility –OR
* Reasonable & feasible alternative design
* Consumer expectations (CA ONLY)

(3) Failure to Warn
(1) Defendant knows or has reason to know that the product is likely to be dangerous for the use for which it is supplied; and
(2) has no reason to believe that the users of the product will realize its dangerous condition; and
(3) fails to adequately and sufficiently warn about the dangerousness of the product

Discuss all 3 types of defects

45
Q

Negligence

Product Liability

A

(1) Duty
* Duty to make a safe product
* Duty owed to purchaser AND to others than immediate purchaser if:
▪ Reasonably certain to imperil user
▪ Likely to be used by others without inspection/tests
▪ BUT retailers only liable for negligence if they actually become aware of a
defect and still sell the product–generally there is no duty of a retailer to
inspect each product they sell.

(2) Breach

(3) Actual Cause

(4) Proximate Cause

(5) Harm

46
Q

Express Warranty

Products Liability - Breach of Warranty

A
  1. **Warranty **is expressly made (affirmation of fact)
  2. Relied on by purchaser
  3. Breach causes harm to foreseeable person
47
Q

Implied Warranty of Merchantability

Products Liability - Breach of Warranty

A
  1. the product is sold by a merchant in goods of the kind;
  2. there is an implied warranty that the products are of fair average quality and fit for the ordinary purposes for which such products are used, are adequately packaged or labeled, and conform to the promises or affirmations made on the container or label, if any;
  3. the warranty is breached because the products are not of such quality and fitness; and
  4. the breach cause the loss / injury
48
Q

Implied Warranty of Fitness for a Particular Purpose

Products Liability - Breach of Warranty

A

seller must know of the particular or special needs of the buyer at the time of the sale, and must recommend the product with that knowledge.

49
Q

Defamation

A
  1. A defamatory statement (harm to plaintiff’s reputation; not opinion unless based in assertion of fact)
  2. Of or concerning the plaintiff
  3. Publication, which means communication of the statement to a third person
  4. Harm to reputation (unless defamation per se)

  • slander = oral
  • libel = written or broadcast
  • DEFENSES (truth and privilege)
50
Q

Absolute Privilege

Defamation DEFENSE

A

Statements made in:
* the proper discharge of an official duty
* legislative proceeding
* judicial proceeding
* in any other official proceeding authorized by law
* in the initiation or course of any other proceeding authorized by law.

51
Q

Qualified Privilege

Defamation DEFENSE

A

Statement is made without malice, and
to a person interested therein:
* by one who is also interested, or
* by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or
* who is requested by the person interested to give the information.

52
Q

Intrusion

Invasion of Privacy

A

person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others is liable to the other for intrusion

An objective standard is used—defendant should have realized that his conduct would have offended a person of ordinary sensibilities.

53
Q

Public Disclosure of Fact

Invasion of Privacy

A
  1. Public disclosure
  2. Of a private fact
  3. That would be** offensive and objectionable to the reasonable person**
  4. That is not of legitimate public concern

Constitutional issue: No liability if truthful information
obtained lawfully

54
Q

False Light

Invasion of Privacy

A
  1. Defendant publicizes a private matter concerning the plaintiff
  2. That places the plaintiff before the public in false light
  3. That would be highly offensive to a reasonable person
  4. And, if matter of public concern, defendant acted with malice (knowledge or reckless disregard for the truth of the matter and the false light)
55
Q

Appropriation

Invasion of Privacy

protect’s one pecuniary interests

A
  1. An appropriation or use
  2. Of the plaintiff’s identity
  3. By the defendant
  4. For the defendant’s commercial purpose
56
Q

Intentional Misrepresentation

Misrepresentation

A
  1. Defendant made a false representation concerning a presently existing material fact
  2. Scienter – that the defendant either a) knew was false or b) made recklessly, knowing that he had insufficient knowledge on which to base the representation
  3. For the purpose of inducing the other party to act on the representation
  4. That the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
  5. Was thereby induced to act to his injury and damage
57
Q

Negligent Misrepresentation

Misrepresentation

A
  1. Defendant made a false representation concerning a presently existing material fact
  2. Scienter – that the defendant should have known the truth – was careless in ascertaining the truth
  3. For the purpose of inducing the other party to act on the representation
  4. That the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
  5. Was thereby induced to act to his injury and damage
58
Q

Concealment

Misrepresentation

A
  1. Defendant made a representation concerning a presently existing material fact, but omitted material facts , which omission makes the statement misleading
  2. Scienter – that the defendant knew was misleading
  3. For the purpose of inducing the other party to act on the representation
  4. That the** other party**, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
  5. Was thereby induced to act to his injury and damage
59
Q

Interference with Contract

Interference with Economic Relationships

A
  1. interference
  2. which is intentional and
  3. improper or unlawful
  4. in a contract between two other persons
  5. causing one of them to not perform the contract.
60
Q

Interference with Economic Relationship

Interference with Economic Relationship

A
  1. an economic relationship between plaintiff and third parties;
  2. knowledge by the defendant of the existence of the relationship;
  3. intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship;
  4. actual disruption of the relationship; and
  5. damages proximately caused by the acts.

Selected Topics Midterm (5 decks)

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