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MBE > Torts > Flashcards

Torts Flashcards

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1
Q

Elements of Negligence

A

Duty, breach, causation, damages

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2
Q

Duty

A

You owe a duty of care to foreseeable plaintiffs

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3
Q

Standard of care (generally)

A

Reasonable person standard – Reasonably prudent person under the circumstances

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4
Q

Standard of care (professional)

A

A professional owes a duty of reasonable care comparable to that of similar professionals in the community

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5
Q

Standard of care (children)

A

Children must act like other children their age

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6
Q

Standard of care (parents)

A

Parents have a duty of care if they knew or should have known the child would commit the tort

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7
Q

Duty to aid

A

Generally, there is no duty to render aid or to rescue someone

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8
Q

No duty to aid or rescue, but

A

if you begin to render aid, you owe reasonable care

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9
Q

Special relationships, definition

A

certain relationships under which you always owe a duty to aid or rescue

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10
Q

Types of special relationships under which you must always render aid include:

A

Parent/child
Innkeeper/guest
Airline/flyer

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11
Q

Three categories of person entering another’s land

A

Unknown Trespasser, Known Trespasser/Licensee, and Invitee

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12
Q

Duty owed to Unknown Trespassers

A

No duty owed

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13
Q

Duty owed to Known Trespassers/Licensees + example of licensee

A

Duty to warn of known dangers

Licensees are people coming to your house, usually socially

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14
Q

Duty owed to Invitees + example of invitee

A

Duty to warn, clean up, and make safe

Invitees are usually in a business situation, such as a supermarket

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15
Q

Breach

A

Failure to comply with level of care

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16
Q

Causation (4)

A

Actual cause, proximate cause, intervening cause, and superseding. cause

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17
Q

Actual cause

A

But for the ∆’s actions, no damage would have occurred

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18
Q

Proximate cause

A

Foreseeable

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19
Q

Intervening cause

A

Separate act which does not cut off liability because it was foreseeable

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20
Q

If foreseeable:

A

it was likely to occur and defendant pays no matter what

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21
Q

Superseding cause

A

Separate act that is so unforeseeable that it cuts off liability

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22
Q

Types of superseding causes

A

1) Acts of God
2) Intentional Torts
3) Criminal Acts

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23
Q

Criminal Acts exception

A

A defendant will be liable for the criminal actions of a third party if they were a reasonably foreseeable result at the time of the defendant’s negligence

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24
Q

Damages

A

Actual physical harm is required, economic damage alone is not enough

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25
Q

Defenses to Negligence (from one party to the other)

A

Contributory Negligence, Pure Comparative Negligence, Modified/Modern Comparative Negligence, and Assumption of Risk

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26
Q

Contributory Negligence

A

If plaintiff was even 1% liable, recovery is barred

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27
Q

Exception to contributory negligence

A

Last Clear Chance: defendant had the last clear chance to avoid accident and failed to do so. Plaintiff can then recover full damages.

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28
Q

Pure comparative negligence

A

Plaintiff will recover, but recovery is reduced by the percentage they were negligent

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29
Q

Modified/Modern Comparative Negligence

A

If plaintiff is liable for up to 50%, then they recover reduced damages. If more than 50%, they recover nothing

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30
Q

Assumption of risk

A

Plaintiff understands and appreciates the risk, but goes ahead anyway

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31
Q

Joint and Several liability

A

2+ people cause a single accident and liability is unknown. Plaintiff elects one ∆ to pursue and collects all damages

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32
Q

After π collects in J+S liability, pursued ∆ can claim

A

Contribution: may seek contribution from co-defendant to get money back that they are not liable for

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33
Q

Vicarious liability

A

Employer will be liable for the negligent actions of his employees as long as the employee was acting in the scope of their employment

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34
Q

Independent contractor

A

IC are not employees, therefore the person who hired them is not responsible for their negligence

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35
Q

Independent Contractor exceptions

A

If the job the independent contractor is doing is abnormally dangerous, or the job is a non-delegable duty (job done for the good of the public)

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36
Q

Negligence Per Se Elements

A

Violation of a statute or ordinance, plaintiff was in the class protected by the statute, and the harm caused is the type that the statute was designed to protect from

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37
Q

Res Ipsa Equation

A

(1)Whatever occurred does not normally occur absent negligence + (2) exclusive control by defendant = inference of negligence

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38
Q

What does res ipsa question?

A

Is there even a chance that the defendant could be responsible for the injury

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39
Q

Strict liability

A

Wild animals or abnormally dangerous activities

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40
Q

Wild animals

A

Lions, tigers, bears. Domesticated animals possible only if they have dangerous propensities.

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41
Q

Note on domesticated animals

A

Only a possessor who knows that the domesticated animal has a dangerous propensity is liable.

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42
Q

FEAR in Strict Liability

A

any kind of injury that is the type of injury that you suffer when running away in fear of a wild animal is also covered under SL

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43
Q

Abnormally dangerous activites

A

Blasting, explosives, hazardous chemicals,

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44
Q

Defense to Strict Liability

A

Assumption of risk: the plaintiff understood and appreciated the risk and proceeded anyway

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45
Q

Products liability situation

A

Plaintiff bought something, it is broken.

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46
Q

Products liability theories

A

Strict Product Liability, Negligence, and Warranty

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47
Q

Strict Product Liability

A

Product was defective when it left the factory, sold by seller engaged in business of selling the product, sold to a foreseeable user who used it in a manner it was intended

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48
Q

Who can you sue under SPL

A

Anyone in chain who handled the product

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49
Q

Negligence in products liability

A

Someone in the chain of selling failed to do something they were supposed to do

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50
Q

Warranty

A

There was a label, sticker, or something in writing promising how product would work

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51
Q

Nuisance types

A

Private nuisance and public nuisance

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52
Q

Private nuisance

A

Unreasonable interference of an objective person’s use and enjoyment of their property (no economic loss)

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53
Q

Public nuisance

A

Nuisance to the entire community brought by public official. Plaintiffs must prove special or unique harm

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54
Q

What intent is relevant for specific intent torts?

A

The intent to bring about the forbidden consequences that are the basis of the tort. The defendant need not intend the specific injury that results.

Ex: Intending to hurt vs. Wanting to break arm, specifically.

55
Q

Transferred intent possibilities

A

Want to commit one tort but instead:

1) commits a different tort
2) commits the same tort against a different person
3) commits a different tort against a different person

56
Q

Transferred intent limitations

A

Only invoked if BOTH the tort meant and the one committed are:

1) assault
2) battery
3) false imprisonment
4) trespass to land
5) trespass to chattels

57
Q

Intentional torts causation

A

Causation is satisfied if the defendant’s conduct was a substantial factor in bringing about the injury

58
Q

Intentional torts: Battery.

A

Elements:
1) harmful or offensive touching 2) with the plaintiff’s person

59
Q

Elements:
1) harmful or offensive touching 2) with the plaintiff’s person

A

Intentional tort: Battery

60
Q

All intentional torts require: (3)

A

Establishment of:

1) testable elements
2) intent and
3) causation

61
Q

Contact is harmful if

A

It causes actual injury, pain, or disfigurement

62
Q

Contact is offensive if:

A

It would be considered offensive to a reasonable person

63
Q

Damages for intentional torts

A

not required for intentional torts EXCEPT IIED

64
Q

For most intentional torts, damaged are not required because (2)

A

1) Plaintiff can recover nominal damages even if actual damages are not proved.

2) plaintiff may recover punitive damages for malicious conduct

65
Q

Assault elements (2)

A

(1) defendant causes reasonable apprehension in plaintiff (2) of an immediate battery

66
Q

Apprehension has to be

A

Reasonable. No exaggerated fear of contact

67
Q

Awareness in assault

A

The plaintiff must have been aware about the threat from defendant’s act

68
Q

Apparent ability (assault)

A

If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.

69
Q

False imprisonment elements

A

1) an act or omission of defendant that confines or restrain the plaintiff

2) the plaintiff must be confined to a bounded area

70
Q

Methods of confinement (6)

A

1) physical barriers
2) physical force directed against plaintive, immediate family or personal property
3) direct threats of force
4) indirect or implied threats of force
5) failure to release a plaintiff when under a legal duty to do so (taxi driver)
6) invalid use of legal authority

71
Q

Time of FI confinement

A

Irrelevant how long the confinement lasted

72
Q

Knowledge of confinement

A

A plaintiff must know of the confinement or be harmed by it

73
Q

Definition of a bounded area

A

There must be no reasonable means of escape known to the plaintiff

74
Q

Intentional infliction of emotional distress elements

A

1) Extreme and outrageous conduct by defendant

2) Plaintiff must suffer severe emotional distress

75
Q

Definition of outrageous conduct

A

Conduct that transcends all bounds of decency

76
Q

Conduct that is not normally outrageous may come so if:

A

1) it is committed by a certain type of defendant

OR

2) it is directed toward a certain type of plaintiff (more sensitive individuals)

OR

3) its continuous in nature

77
Q

Intent for IIED

A

Recklessness as to the effect of defendants conduct will satisfy the intent requirement

78
Q

Damages for IIED

A

Actual damages (emotional distress), not nominal damages are required.

The more outrageous the conduct the less proof of damage required

79
Q

IIED in bystander cases (THIS FLASHCARD IS UNFINISHED)

A

Plaintiff may recover by showing either:

A) the elements for emotional distress
OR
B) 1) they were present when the injury occurred and 2) the distress resulted in bodily harm or the plaintiff is a close relative to the third person 3) and defendant knew these facts

80
Q

Exam tip regarding IIED

A

IED is a fallback tort position if there is an alternative that will also allow plaintiff to recover, use it

81
Q

Trespass to land elements

A

1) Physical invasion 2) of the plaintiff’s real property

82
Q

Physical invasion must be by

A

A person or object, no intangible matter.

Intangible matter would be a nuisance, not a trespass .

83
Q

A trespass to land claim belongs to

A

The person with the right to possess the property

84
Q

Example of a person with right to process a property

A

If you enter a rented apartment without permission, the tenant would have the claim against you, the landlord would not

85
Q

Intent in trespass to land

A

The defendant need only have intended to enter that particular piece of land

86
Q

Damages in trespass to land

A

The plaintiff can recover without showing actual injury to the land

87
Q

Trespass to chattels elements

A

Interference with a plaintiff’s right to possession in a chattel

88
Q

Trespass to chattels: two types of interference

A

Intermeddling and dispossession

89
Q

TTC: Intermeddling definition

A

Directly damaging the chattel

90
Q

TTC: Dispossession definition

A

Depriving the plaintiff of their lawful right of possession of the chattel

91
Q

Intent in TTC

A

Intent to do the act of interference

92
Q

Mistake in TTC

A

A defendant’s mistaken belief that they own the chattel is not a defense

93
Q

TTC Damages

A

At least damages to a possessory right are required

94
Q

Conversion elements

A

1) defendant interferes with plaintiff’s right of possession in a chattel
2) the interference is serious enough to warrant that defendant pay the chattel’s full value

95
Q

Acts of conversion

A

1) Wrongful acquisition (theft), 2) wrongful transfer, 3) wrongful detention, and 4) substantial change, severe damage, or misuse of chattel

96
Q

Intent in Conversion

A

Intent to do the act that interferes with the plaintiff’s right of possession

97
Q

Mistake in conversion

A

Mistaken belief that they own the chattel is not a defense

98
Q

Conversion versus TTC: Seriousness of interference

A

The longer the period of withholding, and the more extensive the use, the more likely it is to be conversion. Less serious the interferences are TTC.

99
Q

What can be converted?

A

Only tangible personal property and intangibles that have been reduced to physical form (promissory note)

100
Q

Conversion remedies

A

Damages (FMV at conversion) or possession (replevin)

101
Q

Defense to intentional torts: Consent

A

Generally, Consent to the defendant’s conduct is a defense

102
Q

Majority view about consent

A

One cannot consent to criminal acts

103
Q

Types of consent

A

Express and implied

104
Q

The defendant is not liable if the plaintiff

A

Expressly consents to defendant’s conduct

105
Q

Exceptions to express consent (3)

A

1) Mistake, if defendant knew about it and used it to their advantage
2) Fraud, if it was as to an essential matter
3) Duress, except for duress through threats of future harm or economic deprivation

106
Q

Implied consent definition

A

A reasonable person would infer consent from custom and usage or from plaintiff’s conduct

107
Q

Consent implied by law

A

Arises where action is necessary to save life or some other important interest in person or property

108
Q

Capacity to consent

A

Plaintiff must have capacity to consent. Individuals without capacity are deemed to be incapable of consent.

109
Q

Capacity to consent: people with limited capacity

A

Can consent but only within the scope of their understanding.

110
Q

Exceeding consent

A

Defendant may be liable for exceeding scope of consent

111
Q

Protective privileges:

A

Defense of self, others, or property

112
Q

Questions to ask when protective privileges are involved?

A

Is the privilege available? (Only for preventing commission of tort)
Is a mistake permissible as to whether the tort is actually being committed?
Was a proper amount of force used?

113
Q

Protective privileges issue

A

Whether the defendant’s response to the tort by the plaintiff constituted a tort against the plaintiff or instead was privileged by a defense

114
Q

Self defense definition

A

When a person reasonably believes that they are being or are about to be attacked, they may use reasonably necessary force to protect against injury

115
Q

Duty to retreat: majority rule

A

No duty to retreat

116
Q

Duty to retreat: modern trend

A

Duty to retreat before using deadly force if able to safely do so, except for in your own home

117
Q

Self-defense for initial aggressor

A

Cannot claim self defense except where other party responds to non-deadly force with deadly force

118
Q

Self defense: Third party injuries

A

Protection from liability may extend to injuries to third parties while defending yourself, but not if it was deliberate

119
Q

Self defense: mistake

A

A reasonable mistake as to the existence of the danger is allowed

120
Q

Self defense: amount of force

A

Only force that appears reasonably necessary to prevent harm

121
Q

Defense to property

A

Reasonable force to prevent tort against real or personal property. Must first request to desist or leave if safe.

122
Q

Hot pursuit defense to property

A

One may use force in hot pursuit of another who has dispossessed them of their chattels because tort is technically still in progress

123
Q

Mistake in defense of property

A

Reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required

124
Q

Force in defense of property

A

Reasonable force. One may not use force causing death or serious bodily harm unless invasion also entails threat of bodily harm

125
Q

Shoplifting detentions definition

A

A shopkeeper has the privilege to detain a suspected shoplifter for investigation but:

1) must have reasonable belief as to fact of theft
2) detention must be in a reasonable manner with only non-deadly force; and
3) detention can only be for a reasonable period of time and only for investigation purposes

126
Q

Reentry onto land: common law

A

One could use force to reenter land only when an intruder came into possession tortiously

127
Q

Reentry onto land: modern law

A

You cannot resort to self-help. There are procedures such as ejectment

128
Q

Recapture of chattels

A

When another’s possession began lawfully, only peaceful means can be used for recovery of chattels. When it was obtained tortiously, reasonable force can be used while in hot pursuit

129
Q

Necessity

A

A person may interfere with the real or personal property of another when it is reasonable and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to advert it

130
Q

Types of necessity

A

Public necessity and private necessity

131
Q

Public necessity

A

To advert an imminent public disaster

132
Q

Private necessity

A

When the action was to prevent serious harm to a limited number of people. Defendant must pay for any injury they cause.

133
Q

Necessity is a defense _______

A

Only to property torts

134
Q

Examples of people with limited capacity: (2)

A

Older children and people with mild intellectual disabilities

MBE (8 decks)

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