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Texas Bar Exam Feb. 2024 > Torts > Flashcards

Torts Flashcards

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1
Q

Intentional Torts - Prima Face Case Generally

A
  • voluntary act
  • intent (purpose or substantial certainty)
  • particular outcome resulted from defendant’s act (causation)
  • specific elements of the intentional tort
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2
Q

Intentional Torts - Harms to Persons

A
  • assault
  • battery
  • false imprisonment
  • IIED
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3
Q

Intentional Torts - Harms to Property Interests

A
  • trespass to land
  • trespass to chattels
  • conversion
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4
Q

Battery

A
  • intentionally causing
  • harmful or offensive
  • bodily contact with another person
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5
Q

Harmful / Offensive Bodily Contact

A

physical harm or offends a reasonable sense of personal dignity

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6
Q

Assault

A
  • intentionally placing a person in
  • reasonable apprehension of an
  • imminent
  • harmful or offensive contact
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7
Q

Apprehension

A

anticipation or perception of imminent harmful/offensive conduct

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8
Q

False Imprisonment

A
  • intentional
  • act of restraint on another person causing that person’s
  • confinement within a bounded area
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9
Q

Confinement

A

physically restricting freedom of movement or threatening the use of imminent unlawful force where no reasonable means of escape

PLAINTIFF MUST BE AWARE OF OR HARMED BY THE CONFINEMENT

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10
Q

Intentional Infliction of Emotional Distress

A
  • extreme and outrageous conduct that
  • intentionally or recklessly causes a person to suffer
  • severe emotional distress
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11
Q

Extreme and Outrageous Conduct

A

utterly intolerable in civilized community

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12
Q

Severe Emotional Distress

A

medical diagnosis or physical manifestation that is not required but can help prove existence of severe distress

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13
Q

Trespass to Land

A
  • intentionally entering or remaining on
  • another person’s real property
  • without permission

*damage to land is not required.
*includes space above/below the ground

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14
Q

Trespass to Chattels

A
  • act that
  • intentionally
  • interferes with
  • another person’s personal property

Interference = dispossession, harm, reduce value

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15
Q

Conversion

A
  • act causing
  • serious and substantial interference with or destruction of
  • another person’s personal property

*Substantial interference justifies the defendant pay the full value of the personal property

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16
Q

Transferred Intent - Definition

A
  • intent for one tort can qualify as intent for another
  • intent as to one person can qualify as intent to another person
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17
Q

Where Transferred Intent Applies

A
  • battery
  • assault
  • false imprisonment
  • trespass to land
  • trespass to chattels
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18
Q

Eggshell Skull

A

if prima facie case established, plaintiff will recover full extent of damages, even if plaintiff’s specific harm was unforeseeable

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19
Q

Defenses to Intentional Torts

A
  • consent
  • self-defense
  • defense of others
  • defense of property
  • necessity
  • discipline
  • recapture of chattels
  • arrest
  • shopkeeper’s privilege
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20
Q

Consent

A
  • actual willingness for conduct to occur
  • apparent consent: reasonable person would believe person consented
  • implied consent: matter of law or policy
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21
Q

Scope of Consent

A

if defendant’s conduct exceeds scope, liable for any additional harm caused

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22
Q

Invalid Consent

A

infancy, intoxication, mental illness, obtained by fraud/trickery.

Cannot consent to illegal act

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23
Q

Self-Defense

A
  • use of reasonable force to protect oneself form the
  • threat of imminent
  • unlawful force

*Must have a REASONABLE belief.

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24
Q

Self-Defense: Retreat

A

not necessary prior to using non-deadly or deadly force.

MINORITY RULE: must retreat before deadly force UNLESS in your home.

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25
Q

Self-Defense: Proportional

A

must be proportional to unlawful force prevented (so can only use deadly force when deadly force threatened)

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26
Q

Self-Defense: Initial Aggressor

A

Not available to initial aggressor unless:
- person communicates withdrawal to other person OR
- other person makes sudden escalation of force

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27
Q

Defense of Others

A
  • use of force to protect another person from a
  • threat of
  • imminent unlawful force

*same rules for self-defense apply

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28
Q

Defense of Property

A
  • use of force to prevent an
  • ongoing or imminent tort against person’s property

Actor must request the other to desist unless request appears dangerous or futile

Must be proportional BUT deadly force never allowed to defend property.

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29
Q

Defense of Property: Greater Privilege

A

force not privileged if other has a greater privilege to enter onto or interfere with the property (necessity, recapture of chattels)

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30
Q

Necessity

A

Can interfere with real or personal property rights of another when:
- such actions reasonably appear necessary to prevent an
- imminent
- substantially greater threat of harm from a natural force

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31
Q

Public Necessity

A

harm threatened a large number of people or the public at large

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32
Q

Private Necessity

A

Harm threatened the defendant herself or a limited number of people

*Defendant still liable for any actual damages caused by actions.

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33
Q

Discipline

A

permits a:
- parent to
- use reasonable force or confinement as reasonably appears
- necessary for the discipline, control, or education of a child

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34
Q

Recapture of Chattels

A
  • use of reasonable
  • non-deadly force to
  • regain possession of personal property that was
  • recently (in hot pursuit)
  • unlawfully taken
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35
Q

Arrest

A
  • police officer or private person can use force in effectuating an arrest of another person, provided the arrest was:
  • proper and the
  • amount of force used was reasonable
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36
Q

Shopkeeper’s Privilege

A

Shopkeeper can detain another IF shopkeeper has a:
- reasonable ground to believe that the
- person recently engaged in shoplifting

*Detention can only be for a reasonable amount of time and the confinement / force used must be reasonable

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37
Q

Negligence: Prima Facie Case

A
  • duty
  • breach
  • factual causation
  • proximate causation
  • actual harm
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38
Q

Duty

A

refrain from acting unreasonably.

NO DUTY if plaintiff unforeseeable or liability would be crushing to defendant (public policy)

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39
Q

Affirmative Actions to Protect Others

A

No duty to rescue / control third party’s conduct UNLESS:
- special relationship with (a) third party who committed harm or (b) injured party (parent/child, employer/employee, property owner, custodial, psychotherapist/patient)

  • invited public onto defendant’s land
  • voluntarily undertaken rescue
  • agreed to work together with injured party
  • created danger OR
  • duty imposed by statute
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40
Q

Landowners / Possessors: Adult Trespassers

A

no duty to protect people who enter land without permission. If trespasser known / anticipated, must warn trespasser of human-made conditions that pose risk of death or serious bodily harm

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41
Q

Landowners / Possessors: Child Trespassers

A

Duty of reasonable care owed if:
- human-made condition poses unreasonable risk of death or serious bodily harm to children and knows or should reasonably know of both condition and risk
- knows or has to reason to know children likely to trespass
- child, because of its youth, unlikely to discover condition or appreciate the risk
- burden of taking precautions is low in relation to the risk of harm to the child AND
- fails to exercise reasonable care to eliminate danger

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42
Q

Landowners / Possessors: Licensees

A

Duty to warn about or make safe already known dangers on land is owed to people who enter land with landowner’s permission or are privileged entrants

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43
Q

Landowners / Possessors: Invitees

A

Duty owed to people who provide material benefit to landowner/possessor or if land open to public.

Duty of reasonable care with respect to:
- activities undertaken on land
- known dangers AND
- dangers that could be discovered with reasonable inspection

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44
Q

Landowners / Possessors: Transitory Foreign Substance

A

business may be liable if had either actual or constructive notice dangerous condition because condition either:
- existed for such length of time that premises owner should have known of condition in exercise of due care OR
- occurred with such regularity that foreseeable

*Shopper’s failure to notice open and obvious condition is often foreseeable.

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45
Q

Landowners / Possessors: Scope

A

If licensee or invitee voluntarily goes beyond reasonable scope of license or invitation, drops to lower status (invitee / trespasser)

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46
Q

Landowners / Possessors: Open and Obvious Dangers

A

No duty to warn about dangers that are open and obvious.

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47
Q

Landowners / Possessors: Firefighter’s Rule

A

Public safety officials cannot sue people for negligence in causing events that made the public duties necessary

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48
Q

Landowners / Possessors: Common Areas

A

duty to maintain areas and make reasonable repairs to leased property

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49
Q

Landowners / Possessors: Persons Off Land

A

Duty of reasonable care with regard to human-made conditions or activities on land but no duty with regard to natural conditions on the land

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50
Q

Standard of Care

A

Defendant must behave as reasonable person under the circumstances

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51
Q

Standard of Care - Exceptions - Serious Physical Impairment

A

serious physical impairment: standard will recognize physical limitations

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52
Q

Standard of Care - Exceptions - Child

A

child: child of similar age, education, intelligence, experience UNLESS adult activity

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53
Q

Standard of Care - Exceptions - Professional

A

professional: same or similar community.

INFORMED CONSENT: what reasonable patient would want to know

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54
Q

Standard of Care - Exceptions - Special Knowledge or Skills

A

special knowledge or skills: someone with that extra knowledge or skill

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55
Q

Standard of Care - Exceptions - Emergency

A

acting in emergency: what reasonable person would do that in that situation UNLESS defendant created emergency

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56
Q

Standard of Care - Exceptions - Bailee

A

extraordinary care required if bailee benefits

reasonable care if both parties benefit

avoidance of gross negligence if only bailor benefits

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57
Q

Methods of Proving Breach

A
  • hand formula
  • custom
  • negligence per se
  • res ispa loquitor
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58
Q

Hand Formula

A

defendant breached if:
- cost of burden of taking precaution is
- less than probability of loss
- multiplied by gravity of law

B<PH

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59
Q

Custom

A

Does not dictate result (because may be unreasonable) BUT can be used to prove defendant fell below standard of care

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60
Q

Negligence Per Se

A
  • plaintiff in class of people protected by the law
  • violated law was designed to prevent the type of harm the plaintiff suffered AND
  • no excuse for the defendant’s noncompliance (i.e., compliance would impose greater risk of harm or was impossible)
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61
Q

Res Ispa Loquitor

A

Jury can draw inference of breach if:
- event that led to injury was the type that would not ordinarily occur had there been no negligence
- injury was caused or was more likely than not caused by instrumentality solely within defendant’s control AND
- plaintiff’s fault did not contribute to the injury

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62
Q

Factual Causation

A
  • but for the defendant’s conduct, the plaintiff would not have been injured OR
  • defendant’s conduct was a substantial factor in causing the plaintiff’s harm
63
Q

Factual Causation: Alternative Liability

A

if uncertain which defendant caused injury, all defendants must show they were not the causes

*applies to small groups

64
Q

Factual Causation: Market Share Liability

A

If uncertain which defendant caused the injury, court will hold each defendant liable for its proportional share of the overall market

*applies to large groups

65
Q

Factual Causation: Joint Tortfeasors

A

all treated as causes even if one individual did not directly harm plaintiff if actions were within scope of joint venture

66
Q

Proximate Causation

A

Foreseeability test: injury must have been a reasonably foreseeable result of defendant’s negligence.

If unforeseeable intervening force occurs, superseding cause that cuts off defendant’s liability

Eggshell plaintiff: liable for full extent of injury if type of injury was foreseeable (even if scope was not)

67
Q

Actual Harm

A

must suffer physical injury or damage to property

  • suffering only economic or emotional harm not enough
  • attorney’s fees not recoverable
  • punitive damages not recoverable UNLESS conduct willful, wanton, or malicious
68
Q

Negligent Infliction of Emotional Distress

A

Can recover for emotional harm IF plaintiff:
- was in zone of danger (risk of physical harm) and suffered physical symptoms of distress
- observed close relative suffering physical harm
- defendant damaged dead body of plaintiff’s close relative OR
- defendant misinformed plaintiff that relative died or was seriously injured

69
Q

Defenses to Negligence

A
  • pure comparative negligence
  • modified comparative negligence
  • contributory negligence
  • assumption of the risk
70
Q

Pure Comparative Negligence

A

recovery reduced proportionally based on percentage of fault allocable to plaintiff

71
Q

Modified Comparative Negligence

A
  • type 1: may recover only if plaintiff is less than 50% at fault
  • type 2: may recover only if plaintiff is less than or equal to 50% at fault
72
Q

Contributory Negligence

A

Slightly negligent plaintiff can recover nothing from negligent defendant

73
Q

Contributory Negligence - Exceptions

A
  • defendant has last clear chance to avoid the accident
  • defendant violated safety statute where it was the defendant’s responsibility to avoid the harm OR
  • defendant was reckless or intentional in causing the harm
74
Q

Assumption of the Risk

A

plaintiff:
- knowingly and
voluntarily encountered a risk

*operation significantly limited in jurisdictions that have comparative negligence.

75
Q

Vicarious Liability: Parents

A

parents not vicariously liable for child’s act UNLESS child is acting as an agent

76
Q

Vicarious Liability: Car Owners

A

car owner liable for accidents caused by negligence of another driver who the owner permits to drive the owner’s car

77
Q

Vicarious Liability: Employers

A

liable for torts of employee committed within scope of employment

78
Q

Employee

A

actor is employee if employer controls the manner in which the person works (tools, policies, work hours, type of work)

79
Q

Scope of Employment

A
  • employee was hired to do the kind of work the employee was doing when the employee committed the tort
  • tort occurred during the time and space of employment AND
  • employee’s conduct was motivated by desire to serve employee
80
Q

Scope of Employment: Intentional Torts

A

not in scope unless employee’s responsibilities put employee in position where intentional torts occur

81
Q

Scope of Employment: Frolic and Detour

A

not liable for actions during frolic (outside usual course of employment) but are liable for actions during a detour

82
Q

Nondelegable Duties

A

employer liable for torts of independent contractor if the work is:
- inherently or unusually dangerous
- occurs in a public place OR
- affects the public or a large group of people

83
Q

Apparent Agency

A

one who hires an independent contractor to perform services is liable for physical harm caused by independent contractor’s negligence IF:
- hirer made representation that led plaintiff to believe independent contractor was an employee AND
- plaintiff reasonably relied on the representation to the plaintiff’s detriment

84
Q

Vicarious Liability: Dramshop

A

business licensed to sell alcohol is not ordinarily responsible for injuries patrons caused under the influence UNLESS business provided
- alcohol to a minor or
- additional alcohol to an adult who was already visibly intoxicated

85
Q

Vicarious Liability: Social Host Liability

A

for noncommercial providers of alcohol, not liable for injuries caused by guests unless:
- provided alcohol to a minor when they know the person was a minor or
- provided additional alcohol to adult who was visibly intoxicated

86
Q

Joint and Several Liability

A

If more than one defendant liable for single injury, plaintiff may recover full amount from any wrongdoer

87
Q

Several Liability

A

recovery limited to extent of defendant’s fault

88
Q

Contribution

A

If one defendant pays beyond his individual share of responsibility, he can recover overpayment from other defendants

89
Q

Indemnification

A

defendant can shift liability for damages to another person (e.g., between principle and agent or contracting parties) UNLESS defendant barred by wrongful nature of his conduct

90
Q

Strict Liability

A
  • abnormally dangerous activities
  • wild animals
  • domestic animals
  • livestock
91
Q

Strict Liability: Abnormally Dangerous Activities

A

persons who engage in unusually dangerous activities are liable even if act with utmost care.

Abnormally dangerous activity:
- uncommon (appropriateness of activity to place where carried on) AND
- very likely to cause physical harm (impossible to eliminate risk with reasonable care and if harm would be great compared to value to community)

Examples: blasting, toxic materials, etc.

*HARM SUFFERED MUST BE RELATED TO WHY ABNORMALLY DANGEROUS IN THE FIRST PLACE

92
Q

Strict Liability: Wild Animals

A
  • animal’s dangerous propensities cause injury
  • harm foreseeable and
  • harm related to animal’s dangerous propensities
93
Q

Strict Liability: Domestic Animals

A

owner knows or has reason to know the animal has dangerous propensities

94
Q

Strict Liability: Livestock

A

animal’s trespass

95
Q

Strict Liability: Defenses

A
  • Comparative Negligence: reduced proportionally based on percentage of fault allocable to plaintiff
  • Assumption of the Risk: cannot recover if plaintiff (1) knowingness and (2) voluntarily encountered a risk
96
Q

Products Liability - Prima Facie Case

A

STRICT LIABILITY
- commercial seller
- defective product
- existed when left the defendant’s control
- foreseeable injuries

97
Q

Products Liability: Commercial Sellers

A

engaged in business of making or selling product

98
Q

Products Liability: Defective Product - Evidence

A

unreasonably dangerous.

Noncompliance with regulations / industry standard is evidence regarding whether defective.

If product destroyed or cannot be inspected/located, can infer defect if injury that occurred was kind that ordinarily would not occur in absence of defect

99
Q

Products Liability: Defective Product - Manufacturing Defect

A

unintended manner of product renders product more dangerous than usual (something wrong with that specific product)

100
Q

Products Liability: Defective Product - Design Defect

A

intended design makes product unsafe for intended and foreseeable uses (all products dangerous). TWO TESTS:

  • risk-benefit test: defective if benefits of alternative (safer) design clearly outweigh additional costs. Reasonable if both technologically and economically feasible and would reduce likelihood of harm
  • consumer-expectations test: defective if renders product more dangerous than what ordinary consumer would expect when using product in intended manner
101
Q

Products Liability: Defective Product - Failure to Warn

A

warnings do not sufficiently convey nature and extent of foreseeable dangerous (must be clear and conspicuous, not hidden).

  • Read-and-Heed: courts presume plaintiffs would read adequate warning and take appropriate precautions
  • Learned Intermediary: drug manufacturer not liable if manufacturer provides warning to physicians that is adequate for physicians
  • Obvious Dangers: no warning required
102
Q

Products Liability: Existence

A

defect must have existed when product left defendant’s control.

If substantially altered after left manufacturer, alteration = superseding cause.

103
Q

Products Liability: Foreseeable Injuries

A

must cause bodily harm or property damage beyond product itself.

Foreseeable parties: customer, member of customer’s family or household, guests, bystanders.

104
Q

Products Liability: Defenses

A
  • comparative negligence
  • implied assumption of the risk
  • express assumption of the risk
  • product misuse
105
Q

Products Liability: Comparative Negligence

A

reduced proportionally based on percentage of fault allocable to plaintiff

106
Q

Products Liability: Implied Assumption of the Risk

A

traditional rule - complete bar to recovery

modern rule - recovery reduced if plaintiff:
- knowingly and
- voluntarily encountered a risk (circumstances indicate assumed risk)

107
Q

Products Liability: Express Assumption of the Risk

A

recovery barred if plaintiff
- knowingly and
- voluntarily encountered a risk (assumes risk verbally or in writing)

108
Q

Products Liability: Product Misuse

A

defendant not liable for harm caused by misuse of product BUT may be liable if misuse reasonably expected

109
Q

Products Liability: Express Warranties

A

seller:
- makes a promise or statement of fact about quality of goods
- describes certain attributes of the goods OR
- displays sample or model representing the attributes and quality of goods being sold

*Cannot disclaim through general disclaimers.

*Puffery (promise or opinion about value or quality) does not create express warranty

110
Q

Products Liability: Implied Warranty of Merchantability

A

goods fit for the contract’s description; are of fair, average quality; and fit for ordinary purpose of goods.

Created under the UCC if:
- seller is merchant AND
- warranty is not disclaimed in writing (“as is”)

111
Q

Products Liability: Implied Warranty of Fitness for a Particular Purpose

A

seller has:
- reason to know buyer has a particular purpose for which the goods will be used AND
- has reason to know that buyer is relying on seller’s judgment or skill to recommend or select suitable goods and so recommends or selects such goods for the buyer.

112
Q

Nuisance - Types

A
  • private
  • public
113
Q

Private Nuisance

A
  • substantial and
  • unreasonable interference with the
  • use and enjoyment of land owned by an individual or a small number of individuals

*Defendant must act intentionally, negligently, or recklessly

114
Q

Private Nuisance: Substantial

A

significant given general social expectations

115
Q

Private Nuisance: Unreasonable

A

gravity of harm greater than utility of defendant’s conduct or conduct causes serious harm and compensating victims is feasible

116
Q

Private Nuisance: Use and Enjoyment

A

interference affects land’s value or pleasure in occupying it

117
Q

Public Nuisance

A

unreasonable interference with right the general public possesses

118
Q

Public Nuisance: Standing

A

can be brought by:
- plaintiffs who have suffered from interference in a particularized manner different from harm to general public or
- the gov’t

(check this???)

119
Q

Public Nuisance: Factors

A
  • significant interference with public’s health, safety, peace, comfort, and convenience
  • proscribed by law AND
  • continuous or produced a permanent and long-lasting effect
120
Q

Defenses to Nuisance

A
  • comparative / contributory negligence
  • assumption of the risk
  • coming to the nuisance
121
Q

Defenses to Nuisance: Comparative / Contributory Negligence

A

available only if nuisance’s action based on defendant’s negligence

122
Q

Defenses to Nuisance: Assumption of the Risk

A

cannot recover if plaintiff:
- knowingly and
- voluntarily encountered a risk

123
Q

Defenses to Nuisance: Coming to the Nuisance

A

Traditional rule: cannot recover if purchased / leased the land knowing defendant conducting the nuisance activities

Modern rule: courts balance if interference is substantial and unreasonable (knowledge does not eliminate liability)

124
Q

Defamation: Prima Facie Case

A
  • defamatory statement
  • false statement
  • of/concerning the plaintiff
  • publication
  • fault
  • damages
125
Q

Defamation: Libel v. Slander

A

slander - spoken words and gestures

libel - written communication or similar broadly disseminated statement

126
Q

Defamation: Defamatory Statement

A

must damage plaintiff’s reputation

per quod: not defamatory on its face. plaintiff must introduce extrinsic evidence to prove defamatory

per se: defamatory on its face; presumed to damage reputation without proof

127
Q

Defamation: False Statement

A

opinion is not enough unless implies or rests on facts

128
Q

Defamation: of/concerning

A

reasonable person would understand the statement referred to the plaintiff

Large groups cannot recover BUT each person in a small group can recover

129
Q

Defamation: Publication

A

statement communicated intentionally or negligently to a third party who understands defamatory meaning

130
Q

Defamation: Fault

A
  • Public official / figure: actual malice (knowledge or reckless indifference). someone with considerable responsibility in gov’t; prominent in society or has influence/power
  • Private person and matter of public concern: negligence; includes matter of interest to large number of people
  • private person, not a matter of public concern: no fault required
131
Q

Defamation: Damages

A

Damages presumed for:
- private person, not a matter of public concern
- public official/figure OR
- accusations that person (a) committed a serious crime; (b) had a loathsome disease; (c) engaged in sexual activity / misconduct; or (d) behaved in a way that was incompatible with business / profession

Actual damages = emotional distress, lost wages. Must prove if not presumed

132
Q

Defamation: Defenses

A
  • truth
  • absolute privilege
  • qualified privilege
  • consent
133
Q

Defamation: Defenses - Truth

A

complete defense, even if causes reputational harm

134
Q

Defamation: Defenses - Absolute Privilege

A

complete defense. Includes:
- testimony and materials used in judicial proceedings
- materials used by legislators performing legal functions
- communications between spouses

135
Q

Defamation: Defenses - Qualified Privilege

A

If applies, plaintiff must prove defendant acted with intent, recklessness, malice, or overpublication. Covers:
- statements made by former employer to prospective employer
- statements in self-defense / to protect others
- testimony in legislative proceedings and
- negative remarks about artistic/cultural works

136
Q

Defamation: Defenses - Consent

A

complete defense if scope of consent not exceeded

137
Q

Invasion of Privacy: Types

A
  • intrusion upon seclusion
  • appropriation of name or likeness
  • public disclosure of private facts
  • false-light publicity
138
Q

Intrusion Upon Seclusion

A

Plaintiff had a:
- reasonable and
- actual expectation of privacy upon which
- the defendant intruded and
- the intrusion would be highly offensive to a reasonable person

139
Q

Appropriation of Name or Likeness

A

defendant
- used someone’s name, photo, or some other recognizable feature of a person
- without permission
- in commercial advertising

Liability does not extend to newsworthy or creative activities protected by the First Amendment

140
Q

Public Disclosure of Private Facts

A
  • publication
  • would be highly offensive to a reasonable person and
  • is not of public concern

*Truth is not a defense

141
Q

False-Light Publicity

A

defendant
- spread a falsehood about a private person to
- a large number of people
- the false statement is highly offensive and
- it was done knowingly or with actual malice

142
Q

Invasion of Privacy - Defenses

A

consent and privilege defenses available to defendant in defamation cases based on false light or public disclosure of private facts but NOT intrusion upon seclusion

143
Q

Misrepresentation - Types

A
  • fraudulent (intentional) misrepresentation
  • negligent misrepresentation
144
Q

Fraudulent (Intentional) Misrepresentation

A
  • intentional misrepresentation of material fact (reasonable person would have cared about the fact or defendant knew plaintiff cared about it BUT not puffery / opinion)
  • intent to reduce reliance
  • actual inducement of reasonable reliance AND
  • plaintiff suffers pecuniary damages as a result
145
Q

Negligent Misrepresentation

A
  • negligent statement of materially false information
  • in the course of a business or profession
  • for the economic guidance of others
  • where the plaintiff reasonably relied on the information to the defendant’s detriment
146
Q

Misrepresentation - Defenses

A

Negligent Misrepresentations:
- comparative negligence
- contributory negligence
- assumption of the risk

If intentional, no defenses available.

147
Q

Intentional Interference with Business Relationship

A
  • valid contract between the plaintiff and a third party
  • defendant engaged in wrongful conduct
  • defendant intended to, and did, cause a breach of th plaintiff’s contract AND
  • plaintiff suffered damages as a result
148
Q

Intentional Interference with Business Relationship: Defenses

A

no liability if defendant lawfully disclosed truthful facts or was trying to protect a legal or economic interest in good faith

149
Q

Abuse of Process

A

occurs when party institutes a legal process or proceeding with a wrongful or ulterior motive

150
Q

Malicious Prosecution

A
  • party institutes a legal proceeding with no probable or reasonable cause for doing so
  • party knows that claim is baseless or acts with malice regarding basis for claim AND
  • proceeding resolved against the party
151
Q

Tort - Immunities

A
  • federal government
  • state government
  • parents
152
Q

Tort - Immunities - Federal Government

A

can sue federal gov’t if:
- plaintiff exhausts administrative remedies and
- suit is brought in federal court.

No jury trial permitted.

Federal employees cannot be sued for actions within scope of employment - plaintiff must sue gov’t.

153
Q

Tort - Immunities - State Government

A

generally, can sue state and local gov’ts if acting like private parties but not if acting purely as gov’ts

154
Q

Tort - Immunities - Parents

A

Children can sue parents for intentional torts but parents have privilege to use reasonable force to discipline children

Texas Bar Exam Feb. 2024 (16 decks)

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