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torts Flashcards

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1
Q

elements of intentional torts

A

*act or omission
*intent
*causation

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2
Q

definitions of intent

A

*purpose of causing something
*knowing with substantial certainty the thing will happen

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3
Q

elements of battery

A

*D acts in a manner that
*causes harmful or offensive contact (direct or indirect contact, with anything connected to the person)
*with the intent to cause contact

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4
Q

elements of assault

A

*D acts in a manner that
*causes reasonable apprehension of imminent harmful or offensive conduct
*with the intent to cause apprehension

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5
Q

elements of intentional infliction of emotional distress

A

*D engages in extreme and outrageous conduct that
*causes P severe emotional distress
*with the intent to cause distress or with recklessness as to the risk of causing distress

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6
Q

elements of false imprisonment

A

*D acts in a manner that
*directly or indirectly results in confinement
*with the intent to confine or restrain P within fixed boundaries
*and P is conscious of the confinement or harmed by it

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7
Q

defenses to intentional torts

A

*consent (actual and implied)
*capacity
*self-defense
*defense of others
*defense of property
*recapturing chattels
*parental privilege
*privilege of arrest

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8
Q

what use of force is allowed for self-defense, defense of others, defense of property, recapture of chattels, regaining possession of land?

A

*self-defense: reasonable and proportionate
*defense of others: reasonable, as long as third party had privilege of self-defense
*defense of property: reasonable BUT never deadly
*recapturing chattels: reasonable unless the taking was legal
*regain possession of land: no force (legal remedies only)

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9
Q

elements of trespass to chattels

A

*dispossess P of chattel OR use or intermeddling with P’s chattels (or damage)
*with the intent to perform the interfering act (not intent to interfere)

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10
Q

elements of conversion

A

*deprive P of possession OR interfere with the chattel in a manner so serious as to deprive P entirely of its use
*with the intent to perform the interfering act (not intent to interfere)

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11
Q

trespass to chattels vs. conversion (+factors)

A

*the level of interference

*the duration and extent of interference
*D’s intent to assert a right inconsistent with the rightful possessor
*D’s good faith
*the expense or inconvenience to P
*the extent of harm

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12
Q

elements of trespass to land

A

*D physically invades land (with person or objects)
*with the intent to enter or invade

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13
Q

private vs. public nuisance

A

D substantially and unreasonably interferes with P’s use and enjoyment of their land

vs.

D unreasonably interferes with a right common to the public as a whole

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14
Q

exception to trespass to land

A

*private necessity: liable for actual damages
*public necessity: complete bar

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15
Q

circumstances creating an affirmative duty to act

A

*assuming a duty / voluntary undertaking (e.g., rescuer)
*placing another in danger / risk creator
*by authority: must have the ability and actual authority to control another
*by (special) relationship

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16
Q

traditional (majority) rule for land possessor’s duty of care

A

*invitee: on land for a material/economic purpose or land open to public / must use reasonable care to inspect, discover unreasonable dangerous conditions, and take reasonable steps to protect

*licensee: gets permission to enter / must make the land reasonably safe or warn of hidden dangerous, must use reasonable care in acting

*trespasser: no duty (but can’t act willfully or wantonly)

*discovered/anticipated trespasser: same as licensee

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17
Q

minority rule for land possessor’s duty of care

A

reasonable care for all except flagrant trespassers

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18
Q

elements of attractive nuisance

A

*artificial conditions exists in a place where the owner knows or has reason to know that children are likely to trespass
*the owner knows or has reason to know the artificial condition poses an unreasonable risk of death or serious bodily harm
*children, due to age, don’t discover or can’t appreciate the danger
*maintenance is slight compared to the risk of injury
*the owner failed to exercise reasonable care

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19
Q

landlord duties

A

*maintain safe common areas
*repair hazardous conditions
*warn of hidden dangers

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20
Q

duty to off-premises victims

A

prevent unreasonably dangerous artificial conditions

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21
Q

informed consent exceptions

A

*the risk is commonly known
*the patient is unconscious
*the patient waives or refuses informed consent
*the patient is incompetent
*the patient would be harmed by the information

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22
Q

elements of negligence per se

A

*a statute imposed a duty on D
*D violated the statute
*P suffered the type of harm intended to be prevented by the statute
*P was in the class meant to be protected
*the violation caused the harm

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23
Q

considerations for duty

A

*does a duty exist? was this a foreseeable P and foreseeable harm?
*what is the standard of care?

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24
Q

considerations for causation

A

*is there “but for” causation? if not, are there multiple tortfeasor? multiple sufficient causes? a loss of chance?
*was the breach a proximate cause of the harm? was the harm within the scope of the breach? did an intervening (foreseeable, like negligence) vs. superseding cause occur?

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25
Q

excuses to negligence per se

A

*compliance would have been more dangerous
*compliance was impossible (or an emergency arose)
*the party exercised reasonable care in trying to comply
*the party was incapacitated
*the statue is too vague

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26
Q

elements of res ipsa loquitor (traditional vs. modern)

A

*the accident was of a kind not ordinarily occurring in the absence of negligence
*the thing causing the harm was within the exclusive control of D
*the harm was not due to any action by P

vs.

*the accident was of a type ordinarily occurring as a result of negligence of a class of actors
*D is a member of that class

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27
Q

what are compensatory damages?

A

actual damages provided with the purpose of making P whole again

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28
Q

how are compensatory damages calculated for personal injury and property damage?

A

*personal injury = past and future medical expenses + lost income + reduced earning capacity + past and future pain and suffering
*property damage = different in market value (OR cost of repair or replacement)

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29
Q

when does NIED apply?

A

*if the person is within the zone of danger and the threat of immediate physical impact (caused by D’s negligence) caused them emotional distress
*if the person is a bystander (closely related to injured person, present at scene, and personally observed the injury)
*if a special situation exists (announcement of death or illness in error, mishandling corpse of loved one, contaminating food with repulsive object)

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30
Q

five special types of liability for negligence

A

*loss of consortium
*wrongful death
*survivor action
*wrongful birth
*wrongful life

31
Q

when are employers liable for the actions of independent contractors?

A

*nondelegable duties: inherently dangerous activities, duty to public or specific Ps for certain work, duty to keep premises safe
*apparent authority: the injured person accepted the IC’s services on a reasonable belief the IC was an employee (based on the manifestations of the employer), the IC’s negligence is a but for and proximate cause of the harm

32
Q

types of liability for car owners

A

*negligent entrustment: directly liable for negligently entrusting a car to someone who is not in the position to exercise reasonable care
*family purpose doctrine: vicariously liable for any family member driving the car with permission
*owner liability: vicariously liable for anyone driving the car with permission

33
Q

triggers of joint and several liability

A

*multiple tortfeasors
*multiple sufficient causes
*res ipsa loquitor against multiple Ds
*tortfeasors acting in concert
*vicarious liability

34
Q

types of comparative negligence

A

*pure: reduce damages by amount at fault
*modified: same but recovery barred if 50% or more at fault

35
Q

defenses to negligence

A

*contributory negligence
*comparative negligence
*assumption of the risk

36
Q

factors influencing whether a condition is abnormally dangerous (strict liability)

A

*the severity of the harm
*the appropriateness of the location
*whether the condition brings great value to the community

37
Q

considerations for strict liability based on animals

A

*is it a domestic animal?
*does the domestic animal have a known dangerous propensity? or is it a vicious watchdog?

38
Q

elements of strict product liability

A

*a defect exists
*that existed when it left D’s control
*and which caused P’s injury (physical harm or damage to property other than the defective product) when used in a foreseeable way

39
Q

types of product defects (+elements/tests)

A

*manufacturing defect: the product deviated from the intended design — the product was nonconforming with the manufacturer’s specification

*design defect: does the design comply with consumer expectations? OR does the risk outweigh the utility (foreseeable risk of harm) and the risk could be mitigated by a reasonable design alternative?

*failure to warn: a foreseeable risk exists that is not obvious to the ordinary consumer + reasonable warnings would reduce that risk

40
Q

defense to strict product liability

A

*comparative negligence
*assumption of the risk
*unforeseeable misuse, modification, or alteration
*substantial change
*compliance with regulation
*“state of art”

41
Q

elements of defamation

A

*defamatory (false + diminish/deter) statement
*of or concerning P (a living person)
*published (communicated) to third party who understood its defamatory nature
*damage to P’s reputation results

42
Q

what are the constitutional limits to defamation?

A

*public official or figure: actual malice required to recover
*private individual + matter of public concern: negligence required to recover actual damages
*private individual + matter of private concern: negligence require to recover general damages

43
Q

libel vs. slander vs. slander per se

A

written, printed, or recorded statement / general damages

vs.

spoken statement / special damages (economic loss)

vs.

false spoken statement concerning
*commission of a serious crime
*unfitness for a trade or profession
*has a loathsome disease
*severe sexual misconduct
for general damages

44
Q

absolute privileges to defamation

A

statements
*in judicial proceedings
*in legislative proceedings
*between spouses
*in required publications by TV/radio

45
Q

conditional privileges to defamation

A

*the statement must be made in good faith
*P can show a higher level of culpability to overcome
*statements made
*in the interest of D
*in the interest of the recipient of the
statement
*impacting some important public
interest

46
Q

right to privacy claims

A

*intrusion upon seclusion
*false light
*appropriation of right to publicity
*public disclosure of private facts

47
Q

elements of intrusion upon seclusion

A

*D intrudes upon the private affairs of P
*in a manner that would be highly offensive to a reasonable person

48
Q

elements of false light

A

*D makes public facts about P
*that place P in a false light
*and which would be highly offensive to a reasonable person

49
Q

elements of appropriation of right to publicity

A

*D appropriates P’s name or likeness
*for D’s advantage
*without P’s consent
*and causes injury

50
Q

elements of public disclosure of private facts

A

*D publicizes a matter concerning the private life of another
*the matter is highly offensive to a reasonable person
*the matter is not of legitimate concern to the public

51
Q

elements of intentional misrepresentation

A

*false representation of a material fact (includes concealment)
*D knew the representation was false or acted recklessly as to its falsity
*D acted with an intent to induce reliance
*such actions cause reliance (action/restraint)
*reliance was justifiable
*actual damages were incurred

52
Q

elements of negligent misrepresentation

A

*false representation of a material fact
*D was negligent as to its falsity
*in the course of business or a profession
*P was in a contractual relationship with D OR D knows P is in a limited group
*the misrepresentation cause justifiable reliance or a pecuniary loss

53
Q

elements of intentional interference with a contract

A

*valid contract with a third party
*D knew of the contract
*D intentionally interfered, leading to breach or additional burden to performance
*damages

54
Q

elements of misappropriation of trade secrets

A

*existence of information that is not generally known
*P took reasonable precaution to protect it
*D acquired the information by improper means

55
Q

elements of trade libel

A

*publication
*of a false or derogatory statement
*made with malice
*relating to P’s business
*special damages were incurred due to the interference with or damage to P’s business relationships

56
Q

elements of slander of title

A

*publication
*of a false statement
*derogatory to P’s title
*made with malice
*causing special damages
*diminished value in the eyes of third parties

57
Q

elements of malicious prosecution

A

*intentionally and maliciously
*instituting a legal action for an improper purpose
*without probable cause
*dismissed in favor of the person the action was brought against

58
Q

elements of abuse of process

A

*beginning a legal procedure properly
*but abusing it to achieve an ulterior motive

59
Q

requirements for assumption of the risk and effects

A

*voluntary acceptance of a known and unreasonable risk of harm
*subsumed into comparative fault in many jurisdictions

59
Q

what is an abnormally dangerous condition?

A

*a condition that creates a foreseeable and highly significant risk of physical harm, even when due care is exercised
*and the activity is not commonly engaged in

60
Q

what is the merchant’s privilege to false imprisonment?

A

a business confines someone to investigate, where it
*reasonable believes the person is a shoplifter
*the confinement is done in a reasonable manner in or near the premises
*for a reasonable time

61
Q

what is the firefighter’s rule?

A

emergency personnel cannot recover from a party whose negligence cause an injury, where the injury results from a risk inherent to the job

62
Q

when is an owner of a wild animal strictly liable?

A

for harm caused
*by P’s fearful reaction to the animal
*as a direct result of the animal’s abnormally dangerous characteristics

63
Q

doctrine of transferred intent rules and applicability

A

*same tort, different person: battery, assault, false imprisonment
*different tort, same person: battery, assault

64
Q

factors for whether conduct is extreme and outrageous

A

*abusing position of authority
*exploiting known special vulnerability
*repeated or prolonged conduct
*going beyond bounds of human decency

65
Q

alternatives to proving duty and breach

A

*negligence per se
*res ipsa loquitor

66
Q

define the rescue doctrine

A

when a person negligently endangers themself or others, they are liable for harm caused to any rescuers (except: firefighter’s rule)

67
Q

three special circumstances that may modify the standard of care

A

*physical disability
*involuntary intoxication
*children

68
Q

is an expert required to testify to the applicable standard of care for a professional?

A

yes, unless the negligence is so apparent that a lay person could identify it

69
Q

when is an employer vicariously liable for intentional torts of an employee?

A

*reasonable force inherent to and committed within scope of employment
*employee authorized to act on employer’s behalf

70
Q

six types of vicarious liability

A

*parents
*respondeat superior
*nondelegable duty
*business partner
*Dram shop
*car owners

71
Q

define comparative fault

A

P’s recovery is reduced by their percent of fault, as determined by the jury

72
Q

define joint and several liability

A

when multiple Ds cause P’s harm, P may recover the full amount from any one D

73
Q

define the economic loss doctrine

A

P can’t recover for negligence or strict liability for only economic losses (must show some physical injury or property damage)

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