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American Law > Torts > Flashcards

Torts Flashcards

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1
Q

What is a tort?

A

a civil wrong other than breach of contract
- The action that constitute a tort might also be a criminal wrong, but this is not guaranteed and they are separate causes of action

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2
Q

Examples of torts

A
  • Libel and Slander
  • Malicious Prosecution
  • False Imprisonment
  • Interference with someone else’s contract
  • Trespass
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3
Q

What is a tortfeasor?

A

A person who commits a tort

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4
Q

What are the basic elements of a traditional negligence tort claim?

A
  • A duty or standard of care owed to another
  • A breach of that duty (typically through negligence)
  • That causes
  • Harm to another person
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5
Q

What is negligence?

A

failure to live up to society’s ideal of reasonable care in a given situation

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6
Q

True or False
There is no one set of rules for negligence and torts, it is entirely dependent on the specifics of the situation

A

True

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7
Q

What is the general duty in the U.S. ?

A

Our basic duty is to avoid acting in ways that would injure other people or their property – and nothing more

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8
Q

Do Americans have a duty to rescue?

A

No

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9
Q

What is the defense of assumption of risk?

A

It argues that defendants do not have a duty to stop plaintiffs from engaging in inherently risky activities and being injured as a result

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10
Q

How does someone recover on a tort claim?

A

The plaintiff must show that the defendant owed them some duty of care in connection with their injury – even if the defendant was definitely negligent

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11
Q

What is an intentional tort?

A

A type of tort where the defendant does not injure the plaintiff as a result of negligence, but does so on purpose

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12
Q

What are examples of intentional torts?

A

They include (among other things) battery, assault, and conversion (a form of theft)

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13
Q

True or False
Intentional torts require more evidence of intent than traditional negligent torts

A

True

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14
Q

What are the elements of Intentional Infliction of Emotional Distress (Intentional Tort)?

A
  • The defendant acts
  • The defendant’s conduct is outrageous
  • The defendant acts purposely or recklessly, causing the victim emotional distress so severe that it could be expected to adversely affect mental health
  • The defendant’s conduct causes such distress
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15
Q

What is Malicious Prosecution (Intentional Tort)?

A

Malicious Prosecution occurs when an individual brings repeated civil suits or criminal complaints against another without merit.

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16
Q

What are the elements of Malicious Prosecution?

A
  • The defendant maliciously and w/o probable cause instituted a criminal or civil complaint against the plaintiff
  • Which resulted in a prosecution or lawsuit
  • That ended favorably for the plaintiff
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17
Q

What is Tortious Interference?

A

Tortious Interference aka interference with contractual relations is a tort whereby a third party wrongfully interferes with contractual relations between two others

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18
Q

What is Defamation?

A

Statements made by one party that damage another’s reputation

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19
Q

What is Libel?

A

Defamation via printed word, advertisement, radio and TV broadcasts, etc.

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20
Q

What is Slander?

A

Spoken word defamation

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21
Q

What are the elements of a Defamation claim?

A
  • A false statement presented as true
  • Made negligently
  • Published to a third party
  • Causing damage/harm to reputation
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22
Q

What is defamation per se?

A

Statements that are defamatory per se (sometimes referred to generically by courts as libel per se) are so obviously and naturally harmful to a person’s or business’s reputation on their face that proof of injury to the plaintiff’s reputation may be presumed.

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23
Q

Defamation per se*

A

A plaintiff who is alleging defamation but not defamation per se has to prove special damages (loss of business, for example) which can be very difficult

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24
Q

What is an absolute defense to defamation?

A

The truth

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25
Q

How are non-intentional tort claims analyzed?

A

Using a negligence standard

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26
Q

What does the jury need to answer when deciding whether a defendant was negligent?

A
  • Did the defendant act as a reasonably prudent person would have under the circumstances?
    • (Whatever the jury or the appellate court thinks that is)
27
Q

What does “under the circumstances” mean?

A

The law does NOT make allowance for a person less intelligent than average

28
Q

True or False

A

If an act is in common practice, even if it is dangerous, it might not be negligent

29
Q

What group of people are held to a standard of care proportionate to their ability to care for themselves in the circumstance?

A

Children, those who lack capacity, and the inexperienced

30
Q

P*L>B

A
  • P – probability of the type of accident that occurred
    • L – the magnitude of the likely loss caused by that accident
    • B – the burden (cost) of preventing the accident

If the product of P and L are greater than B, the company must take action to prevent the loss or be liable

31
Q

Examples of Malpractice

A
  • An attorney failing to file a document on time
  • An accountant who misses obvious tax fraud on an audit
  • A doctor who fails to prescribe standard medication
32
Q

How are professionals expected to act?

A

As would a reasonably skilled, prudent, competent, and experienced member of [their] profession

33
Q

What does proving malpractice require?

A

Typically, proving malpractice requires expert testimony from other members of the field as to what a reasonable member of the profession would do in that situation, and whether this person fell short

34
Q

True or False

A

In some circumstances, a plaintiff may not need to fully prove negligence and it may instead be inferred by the court via circumstantial evidence

35
Q

What does the document of Res Ipsa Loquitor allow?

A

The doctrine of res ipsa loquitur (“The thing speaks for itself”) allows the court to infer negligence where it is implied by the very nature of the accident

36
Q

What are the elements of Res Ipsa Loquitor?

A
  • The incident was of a type that does not generally happen without negligence
  • It was caused by an instrumentality solely in defendant’s control
  • The plaintiff did not contribute to the cause
37
Q

What is the basic duty to rescue rule in the United States?

A

The basic rule in the United States is that individuals do NOT have a legal duty to intervene when others are in peril (exceptions shortly)

38
Q

What is the European Bystander rule?

A

This contrasts with the European bystander rule in which individuals can be punished for failing to aid someone in need of help.

39
Q

Difference between moral and legal duties

A

Imposing a legal duty means imposing anything from civil liability to fines and possible imprisonment if someone fails to act.

40
Q

Why not impose a general duty of care?

A
  • Individuals who intervene may themselves be put in jeopardy
  • Bystanders may not have enough information to act, and could accidentally make a situation worse
  • Individuals may lack the skills/physical ability/expertise to intervene successfully without meaningful risk to themselves
41
Q

What are the exceptions to the Duty to Rescue? P1

A
  • Status – people are obligated to help their children, spouses, and employees
  • Statute – While the common law imposes no duty, duty can be imposed by statute (such as those requiring doctors to report suspicion of child abuse to the authorities)
    • Several states now have Good Samaritan Statutes which may require individuals to intervene but also relieve them of liability for civil damages that might be caused by intervening in most cases
  • Contract – A duty to intervene can be created by contract, such as when a baby-sitter agrees to care for children
42
Q

What are the exceptions to the Duty to Rescue? P2

A
  • Assumption of a Duty – once someone voluntarily intervenes, they assume a duty of care to intervene
  • Creation of Peril – Individuals are obligated to intervene when they intentionally or negligently create danger to another person
  • Control – The intersection of status and assumption of duty – individuals have a duty to those under their control/command. Such as employees, members of the military, or children.
  • Property Owners also have a duty to make sure their property is safe for those who they invite onto it (especially for commercial purposes)
43
Q

In addition to exceptions to the duty to rescue, what else do prosecutors need to prove to say that a defendant created a duty?

A

Prosecutors must also prove the defendant
1. Had Knowledge of the peril
2. acted with the required intent (that is, they did not simply show poor judgement or made a reasonable mistake); and that this inaction
3. caused the harm to the victim

44
Q

Torts: Property Owners

A
  • Invitees
    • Duty of care: regularly inspect, fix hazards, post warnings
  • Licensees
    • Duty of care: make aware of known hazards
  • Trespassers
    • Duty of care: basically none
    • BUT no traps!
45
Q

What is attractive nuisance?

A

There is a dangerous condition on their property that was likely to attract children incapable of understanding the danger due to their age, and they were injured by the condition. The landowner failed to take steps to guard against the injury; and preventing access to the condition or rendering it harmless was feasible without obstructing its intended purpose.

46
Q

What does a plaintiff need to prove in order to get recovery in a tort action?

A

They must prove the defendant’s negligence caused the plaintiff’s harm

47
Q

What are the two forms of cause?

A
  • Cause-In-Fact aka the “but-for” cause (the actual evidence, or facts of the case, that prove a party is at fault)
  • Proximate Cause – mainly focused on foreseeability
48
Q

What is foreseeability?

A

Whether a person of average intelligence could have reasonably foreseen the consequences of the defendant’s conduct

49
Q

What are the two ways that states limit the recovery of plaintiffs that are negligent themself?

A
  • Contributory Negligence serves as a total bar to recovery
  • Comparative Fault limits recovery proportionally
50
Q

What is Contributory Negligence?

A

A common law tort rule which bars plaintiffs from recovering for the negligence of others if they too were negligent in causing the harm.

51
Q

What is Comparative Fault?

A

A tort principle used by the court to reduce the amount of damages that a plaintiff can recover in a negligence-based claim according to the degree of negligence each party contributed to the incident.

52
Q

What is the assumption of risk?

A
  • Assumption of Risk bars recovery for plaintiffs who voluntarily assume a known risk. It can be
    • Express as in the form of a liability waiver
    • Implied - where a plaintiff participates in an obviously dangerous activity, or remains after danger has been made clear
53
Q

When does the doctrine of Res Ipsa Loquitor apply to product liability cases?

A
  • The defendant had exclusive control over the allegedly defective product during manufacture
  • Under normal circumstances, the plaintiff would not have been injured by the product if the defendant had exercised ordinary care and
  • The plaintiffs conduct did not contribute significantly to the accident
54
Q

When is a warning required on a product?

A

If the danger is non-obvious then a warning is required if an average person would not know about the safety hazard. Where products are obviously dangerous warnings are not required. However! If the plaintiff is knowledgeable about the hazard, then a failure to warn wouldn’t cause the plaintiff’s injuries.

55
Q

What is Imputed Negligence?

A

Imputed negligence means that under certain conditions, the negligence of one person can be attributed to another. Several examples can illustrate this principle. First, an employer–employee relationship may exist where the employee is acting on behalf of the employer.

56
Q

What holds employers liable for the negligence of employees?

A

Most commonly, the doctrine of respondeat superior can hold employers liable for the negligence of their employees conducted during the course of employment

57
Q

What is the doctrine of Respondeat Superior?

A

Respondeat superior is a legal doctrine, most commonly used in tort, that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.

58
Q

What are the basic elements of Respondeat Superior?

A
  • The individual was an employee when the injury occurred
    • The employee was acting within the scope of his or her employment
    • The activities of the employee were a benefit to the employer
59
Q

What acts are not considered to be in the scope of employment? (Relating to Respondeat Superior)

A
  • Acts occurring when the employee is commuting to or from work/home
  • The employee is on an undertaking of his own
  • The act is prohibited by the employer
  • The act is an unauthorized delegation from the employer – in which case he is directly liable
60
Q

What are Strict Liability Torts?

A
  • Strict Liability torts impose liability without any proof of negligence, which may apply where:
    • The defendant was engaged in abnormally dangerous activities such as handling poisons, toxic chemicals, explosives, etc OR
    • In products liability cases where a product was unreasonably dangerous and defective
61
Q

What is the Joint and Several Liability Damage Rule?

A

If multiple defendants contribute to the plaintiffs harm, the plaintiff can seek damages from all of them or any of them individually

62
Q

What is the Eggshell Plaintiff Damage Rule? (Thin Skull Rule)

A

An injury to a plaintiff that is exacerbated by a plaintiff’s unique vulnerability (such as a thin skull) is legally deemed to be foreseeable

63
Q

What is the Deepest Pockets Damage Rule?

A

The costs of an accident should be placed on those who, because of their wealth, are better able to shoulder them.

64
Q

Examples of tort reforms

A
  • Limiting joint and several liability
  • Increasing immunity of physicians
  • Reducing liability of drug manufacturers
  • caps on non-economic damages
    • Limits on pain and suffering, loss of enjoyment, loss of consortium, etc.
    • Would theoretically reduce malpractice insurance costs and overall medical costs

American Law (7 decks)

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