Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Exam > Torts > Flashcards

Torts Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Intentional torts elements

A

Act - volitional
Intent - intent to bring about to forbidden consequences that are the basis of the tort
Causation - substantial factor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Transferred intet

A

Different tort against same person
same tort against different person
different tort against different person

only
- assault
- battery
- false imprisonment
- trespass to land
- trespass to chattels

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Battery

A

Harmful or offensive contact
with the plaintiff’s person

damages not required - can get nominal or punitive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Assault

A

Create reasonable apprehension of an immediate battery

words alone are not enough, but are enough to negate reasonable apprehension

Not damages - nominal or punitive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

False imprisonment

A

Act or omission that confines or restrains P to a bounded area

P must know of confinement or be harmed

no reasonable means of escape known to P

insufficient to restrain - moral pressure or future threats

Damages not required - nominal or punitive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Intentional infliction of emotional distress

A

Act amounting to extreme and outrageous conduct

P must suffer severe emotional distress

Outrageous conduct - transcends all bounds of decency or
- Continuous
- certain type of D - common carrier or innkeepers
- certain type of P - children, elderly, pregnant, known sensitivity

Intent or recklessness

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Bystander IIED

A

Prima facie of ED or
- present when injury occurred
- distress resulted in bodily harm or P was a close relative
- D knew these facts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Trespass to land

A

Physical invasion
of P’s real property

no damages needed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Trespass to chattels

A

Act that interferes with P’s right of possession to chattel
- intermeddling (damaging)
- dispossession

actual damage to possessory right required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Conversion

A

Act that interferes with P’s right of possession
interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value

only tangibles

Damages or replevin - fmv at time of conversion or possession

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Intentional tort defenses

A

Consent - need capacity
- express - unless mistake and D knew and took advantage of mistake, fraud of an essential matter, duress for immediate harm
- implied - custom and usage or P’s conduct

Privileges - preventing the commission
- Self defense
- defense of others
- defense of property

Necessity - only for property torts
- public
- private

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Self defense

A

Reasonably believes about to be attacked - force reasonably necessary

  • No duty to retreat, but may have duty before using deadly force unless in home
  • not available to initial aggressor unless other party responds to nondeadly with deadly
  • may extent to third-party injuries

Reasonable mistake permissible

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Defense of others

A

Use force to defend another when they reasonably believe the other person could have used force

reasonable mistake allowed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Defense of property

A

Reasonable force to prevent commission or in hot pursuit

A request to desist or leave must first be made unless clearly futile or dangerous

reasonable mistake allowed unless mistake of whether entrant has a privilege to enter

No deadly force for property alone

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Shopkeepers privilege

A

Detain a suspected shoplifter
- reasonable belief of theft
- detention in reasonable manner and only nondeadly force
- reasonable period of time and only for purposes of making investigation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Reentry onto land

A

No self help allowed
only ejectment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Public necessity

A

Acted to avert an imminent public disaster

absolute defense

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Private necessity

A

prevent serious harm to a limited number or people

must pay for actual harm

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Elements of negligence

A

Duty
Breach
Causation
Damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Firefighter rule

A

Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs

21
Q

Child standard of care

A

that of a like age, intelligence, and experience

unless adult activity

22
Q

Professional standard of care

A

possess the knowledge and skill of an AVERAGE member of the profession or occupation in good standing

23
Q

Possessor of land duties

A

Unknown trespasser - no duty

Known trespasser - warn or make safe known man-made death traps

licensees - possessor’s permission or for own purpose of business or firefighters and police
- warn or make safe known traps

Invitee - possessor business or held open to public
- warn or make safe known or knowable traps

24
Q

Attractive nuisance

A

Trespassing children

ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property

  • dangerous condition that owner was aware or should have been
  • owner knows or should have known that child might trespass onto land
  • condition likely to cause injury
  • expense of remedying is slight compared to risk
25
Q

Negligence per se

A

Statute for criminal penalties
- p within protected class
- designed to prevent that type of injury

Conclusive presumption of duty and breach

excused compliance - compliance will cause more danger than violation or compliance would be beyond d’s control

26
Q

Negligent infliction of emotional distress

A

Near miss
- zone of danger
- physical symptoms

Bystandard
- close relation
- present and observed or perceived
- physical symptoms

Special relationship
- misdiagnosis
- funeral home

27
Q

Res ipsa loquitur

A
  • accident the type that would not normally occur unless someone was negligent
  • attributed to defendant - usually exclusive control

only an inference of breach

28
Q

but for causation - Merged causes

A

substantial factor test

where sever causes bring about the injury, and any one alone would have been sufficient to cause the injury - D’s conduct is the cause in fact if it was a substantial factor in causing the injury

29
Q

But for causation - unascertainable causes

A

Two negligent acts, only one could have caused the injury but do not know which one

Burden of proof shifts to D

30
Q

Foreseeable intervening fources

A

Medical malpractice
negligence of rescuers
protection or reaction forces
Disease or accident substantially caused by original injury

31
Q

Possibly foreseeable intervening forces

A

D’s conduct increased the risk of harm
- negligent acts of third persons
- crimes and intentional torts of third persons
- acts of god

32
Q

Damages

A

Economic, noneconomic damages
no punitives unless wanton and willful, reckless, or malicious

Eggshell skull - even if not foreseeable

cannot recover - prejudgment interest and attorney’s fees

33
Q

Defenses

A

Contributory negligence - total bar

last clear chance - rebuts contrib negl

Comparative negligence - partial - cannot be more negligent
ASSUME PURE

assumption of risk - members of a class protected by the statute will not be deemed to have assumed the risk
not defense to intentional tort

34
Q

Strict liability - animals

A

domestic - no strictly liable unless knowledge of particular animal’’s dangerous propensities not common to the species

trespassing animals - strictly liable for reasonably foreseeable damages by trespass of your animal

wild - strict liability to licensees and invitees for injuries
- if trespasser, must show negligence

35
Q

Strict liability - abnormally dangerous activity

A

Activity creates a foreseeable risk of serious harm even when reasonable care exercised by all actors

activity is not a matter of common usage in the community

  • foreseeable P
  • harm from the kind of danger to be anticipated and fleeing
36
Q

Products liability theories

A

intent
negligence
implied warranties of merchantability and fitness for a particular purpose
representation theories
strict liability

37
Q

Strict liability - products liability

A
  • D is a merchant
  • the product is defective
  • the product was not substantially altered since leaving D’s control
  • P was making a foreseeable use of the product at the time of injury

No casual seller or service provider
includes entire distribution chain even if no privity

moving through normal channels of distribution creates inference that not altered when leaving D’s control

more than economic loss- must have injury

38
Q

Types of product defects

A

Manufacturing - different from and more dangerous than the products that were made properly

Design - all products of a line are the same but have dangerous propensities

information - failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users

39
Q

Nuisance

A

Invasion of property rights by tortious conduct

Private - substantial, unreasonable interference with another private individuals use or enjoyment of property
- substantial is to the average person, not hypersensitivities or specialized property use
- balance severity of injury to utility of D’s conduct

public - unreasonably interferes with the health, safety, or property rights of the community
- recovery by a private party only if private party suffered unique damages not suffered by public at large

  • can use self help abatement
40
Q

Respondeat superior

A

Employer vicariously liable for torts of employees in the scope of their employment

Liable for intentional torts if
- furthering the business of the employer
- force is authorized
- friction is generated

minor frolic- still within scope
substantial deviation - not within scope

41
Q

Vicarious liability - independent contractor

A

nondelegable duties - duty to keep business premises safe

42
Q

Defamation

A
  • A defamatory statement that specifically identifies P
  • published to third party - intent to publish
  • false
  • fault
  • damages

P must be alive

public official or figure - actual malice
public concern - negligence for actual, malice for punitive

no protection for private actor, private concern

43
Q

Defamation - libel

A

defamation embodied in permanent form - written or printed or televised

do not need to prove special damages - general damages presumed

44
Q

Defamation - slander

A

Spoken defamation

must have special damages unless slander ser se
- reflects on P’s business or profession
- state P committed a serious crime
- serious sexual misconduct
- loathsome disease

45
Q

Defamation defenses

A

Absolute privilege
- between spouses
- during judicial proceedings, by legislators during proceedings, by federal executives in compelled broadcasts

qualified
- public interest in encouraging candor

46
Q

Invasion of right to privacy

A

four types of wrongs
- appropriation of P’s picture or name for commercial purposes

  • intrusion in p’s private affairs - highly offensive to reasonable person
  • publication placing P in false light - highly offensive to reasonable person
  • public disclosure of private facts - highly offensive to reasonable person

Defenses
- consent
- privilege
- truth is not a defense

damages - can be just emotional or special damages

47
Q

Intentional Misrepresentation

A

Misrepresentation of a material past or present fact

scienter - knew or believed was false

intent to induce reliance

causation

justified reliance

damages - actual pecuniary loss

48
Q

Negligent misrepresentation

A

misrepresentation in a business or professional capacity
breach of duty
causation
justified reliance
damages

49
Q

Interference with business relations

A

existence of a valid contractual relationship btw P and 3rd party or valid business expectancy

D’s knowledge of relationship or expectancy

intentional interference inducing a breach or termination

damages

Bar Exam (18 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions