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Torts 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

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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

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3
Q

Battery

A

Harmful or offensive contact
with the plaintiff’s person

damages not required - can get nominal or punitive

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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

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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

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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

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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

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8
Q

Trespass to land

A

Physical invasion
of P’s real property

no damages needed

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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

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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

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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

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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

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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

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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

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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

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16
Q

Reentry onto land

A

No self help allowed
only ejectment

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17
Q

Public necessity

A

Acted to avert an imminent public disaster

absolute defense

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18
Q

Private necessity

A

prevent serious harm to a limited number or people

must pay for actual harm

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19
Q

Elements of negligence

A

Duty
Breach
Causation
Damages

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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
Negligence per se
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
Negligent infliction of emotional distress
Near miss - zone of danger - physical symptoms Bystandard - close relation - present and observed or perceived - physical symptoms Special relationship - misdiagnosis - funeral home
27
Res ipsa loquitur
- accident the type that would not normally occur unless someone was negligent - attributed to defendant - usually exclusive control only an inference of breach
28
but for causation - Merged causes
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
But for causation - unascertainable causes
Two negligent acts, only one could have caused the injury but do not know which one Burden of proof shifts to D
30
Foreseeable intervening fources
Medical malpractice negligence of rescuers protection or reaction forces Disease or accident substantially caused by original injury
31
Possibly foreseeable intervening forces
D's conduct increased the risk of harm - negligent acts of third persons - crimes and intentional torts of third persons - acts of god
32
Damages
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
Defenses
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
Strict liability - animals
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
Strict liability - abnormally dangerous activity
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
Products liability theories
intent negligence implied warranties of merchantability and fitness for a particular purpose representation theories strict liability
37
Strict liability - products liability
- 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
Types of product defects
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
Nuisance
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
Respondeat superior
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
Vicarious liability - independent contractor
nondelegable duties - duty to keep business premises safe
42
Defamation
- 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
Defamation - libel
defamation embodied in permanent form - written or printed or televised do not need to prove special damages - general damages presumed
44
Defamation - slander
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
Defamation defenses
Absolute privilege - between spouses - during judicial proceedings, by legislators during proceedings, by federal executives in compelled broadcasts qualified - public interest in encouraging candor
46
Invasion of right to privacy
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
Intentional Misrepresentation
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
Negligent misrepresentation
misrepresentation in a business or professional capacity breach of duty causation justified reliance damages
49
Interference with business relations
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)

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