torts Flashcards

1
Q

trespass

what is the difference b/w trespass to chattels and conversion (incl. remedy)?

A

trespass to chattels
* MINOR, INTENTIONAL interference w P’s right to control chattel
* liable for ACTUAL damages – repairs, cost of use, etc.
conversion
* SUBSTANTIAL, INTENTIONAL interference w P’s right to control chattel
* P can recover fair mkt value of chattel at time of conversion

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

IIED

what are some examples of conduct that would qualify as extreme and outrageous (for the purposes of IIED)?

A
  • abusing a position of authority
  • exploiting a KNOWN spl vulnerability
  • repeated or prolonged conduct
  • going beyond the bounds of human decency
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

common carriers

what are the common law & modern approaches to common carrier duty? which is the majority rule?

A
  • COMMON LAW (MAJORITY): common carriers can be liable for even slight negligence because they owe the highest duty of care to their passengers that is consistent with practical business operation
  • MODERN RULE (MINORITY): common carriers are negligent only if they fail to use reasonable care to protect passengers from harm that arises within the scope of that relationship.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

P’s fault

what must a D prove for their defense of P’s contributory negligence to be successful (in a contributory negligence jxdn)?

A
  • P was negligent – i.e. P failed to use reasonable care for their own safety
  • P’s negligence was the PROXIMATE cause of P’s harm
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

res ipsa loquitor

what are the traditional and 3d restatement approaches to res ipsa loquitor? which is the majority approach?

A

TRADITIONAL (MAJORITY):
* P’s harm would not occur UNLESS someone was negligent,
* D had exclusive control over (or was responsible for all others who had control) over the thing that caused harm, AND
* P did nothing to cause harm (this element is loosely applied in comparative negligence jxdns bc conflicts w approach that P’s comparative negligence isn’t a total bar to recovery)

3D RESTATEMENT (MINORITY):
* Accident that caused P’s injury is a type that ordinarily happens due to the negligence of a class of actors
* D is a member of that class

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

when to use contributory negligence vs. assumption of risk as a defense?

A

assumption of risk is a slightly higher bar.

contributory negligence (traditional rule): P’s failure to exercise reasonable care for their own safety is a COMPLETE bar to recovery

assumption of risk: P voluntarily accepts a KNOWN risk of harm – i.e. they had to have known about the risk that ulimately caused their injury

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

liability

what is the practical difference, for P, b/w “joint and several liability” and “several liability”

A
  • joint and several liability: P can recover from any D the total amt of damages (minus the P’s share of comparative fault). That D can then sue the other(s) for contribution
  • several liability: P is limited to recovering from each D the portion of damages that corresponds to that D’s proportionate share of fault.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what is a landowner’s duty to trespassers?

A

a landowner owes a duty to KNOWN or ANTICIPATED trespassers to
(1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers, and (2) use reasonable care in activities conducted on the land

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

when may a P hold a D liable for IIED if P was NOT the intended target of D’s extreme and outrageous conduct?

A
  • if P contemporaneously perceived D’s extreme and outrageous conduct,
  • if P was closely related to the 3d party (intended victim)
  • if D knew of P’s presence and that relationship
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

what is the result, in a pure comparative fault jxdn, when the P and D are both at fault and both entitled to recover dmgs?

A

In a pure comparative-fault jurisdiction, when the P and the D are both entitled to recover damages, the P’s recovery is reduced (i.e., offset) by the D’s recovery (and vice versa).

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

when does proximate cause occur?

A

Proximate cause occurs when the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.

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

what is a guest statute wrt driving?

A

a guest statute is designed to prevent a NON-PAYING passenger of a vehicle for suing the driver for injuries resulting from the driver’s negligence.

the passenger can normally only sue the driver if the driver’s actions constitute GROSS negligence or WILFUL and WANTON misconduct.

e.g. - drunk driving, playing “chicken”, driving a car knowing the brakes are faulty, or continuing to drive dangerously after the passenger has asked to be let out or that the car be stopped

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

when is the commercial seller of a component that is integrated into a defective product subject to liability?

A

the commercial seller of a component that is integrated into a defective product is subject to liability if:
1. the component is defective OR
2. the supplier / seller subsantially participated in the process of integrating the component into the product’s design AND the component’s integration caused the product to be defective

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

when is a commercial seller subject to strict products liability?

A

a commercial seller is subject to strict products liability when
1. the defective product harms a foreseeable plaintiff when it was used in an intended or reasonably foreseeable way AND
2. the defect existed at the time the product left the commercial seller’s control

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

what are the elements a P must est to make a prima facie case for intentional interference w/ K?

A
  1. a valid K existed b/w P and 3d party
  2. D knew of the contractual relationship
  3. D intentionally interfered w the K, causing a breach
  4. the breach caused dmgs to P
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what is the modern (minority, 3d restatement) approach to landowner duty to land entrants?

A

Under the modern approach to land-possessor liability, land possessors owe a duty of reasonable care to all land entrants except for flagrant trespassers

wrt flagrant trespassers, the landowner must not act in an intentional, willful, or wanton manner that causes serious harm AND must exercise reasonable care to flagrant trespassers in peril

17
Q

what are nondelegable duties? (incl. main examples)

A

nondelegable duties are those that cannot be assigned to another to avoid liability

incl:
* maintaining safe conditions on premises open to the public
* safely performing activities that are: (1) abnormally dangerous; (2) infringe on private property, (3) are regulated by law, OR (4) are conducted in a public place

18
Q

for the purposes of vicarious liability, who is an independent contractor?

A

one who performs work for another outside of an ER / EE relationship

19
Q

under what circumstances may principals be vicariously liable for an independent contractor’s torts?

A

A principal is generally not vicariously liable for its independent contractor’s torts.

Vicarious liability will be imposed when the independent contractor breaches a nondelegable duty of care owed by the principal—e.g., a land possessor’s duty to keep the premises safe for business visitors.

20
Q

what remedy can landowner P claim from trespasser D if their land is trespassed out of private necessity?

A

cannot claim nominal or punitive damages

can claim actual damages caused by the trespass UNLESS the entry was for the landowner’s benefit

nondefensible trespass: can claim all three types of damages

public necessity: no damages

21
Q

what are the elements of private nuisance?

A

iability for private nuisance arises when a defendant’s interference with the use and enjoyment of the plaintiff’s property is both:

  • substantial – offensive, annoying, or intolerable to a normal person in the community AND
  • unreasonable – effectively renders the land unavailable for ordinary use or enjoyment by the possessor and satisfies certain criteria.

P’s hypersensitivity for any reason does not matter for these purposes - objective test

22
Q

when is a product defective for inadequate warnings or instructions?

A

A product is defective due to inadequate warnings or instructions when
* (1) it poses a foreseeable risk of harm that is not obvious to an ordinary user AND
* (2) reasonable instructions or warnings could have reduced that risk.

23
Q

what are the 8 special relationships imposing a duty to protect others?

A

PHESCCI

Parent - child
Hospital - patient
ER - EEs
Shopkeeper - business invitees
Common carriers - passengers
Custodian - person in custody
Innkeeper - guests

24
Q

what is the rule for a common carrier’s duty of care to its passengers?

(Majority traditional rule & Minority modern rule)

A

a common carrier owes a heightened duty of care to its passengers –

  • MAJORITY: highest level of care consistent w the practical operation of the business
  • MINORITY: reasonable care to protect passengers from harm that arises within the scope of the relationship
25
Q

what is normally required to establish a profession’s applicable std of care (and professional’s deviation from such std)

A

usually expert testimony is required

but not required when the D’s negligence is so apparent that a lay person could identify it

26
Q

when is a product defective for design under the risk utility test?

A
  • design creates a foreseeable risk of harm AND
  • risk could have been mitigated by a reasonable alternative design
27
Q

name the elements of the entry requirement for trespass to land

A

entrant must either:

(1) intentionally enter land (or cause a thing or other person to enter land) OR
(2) intentionally remain on land (or cause a thing or other person to remain on land)

D only needs intent to cause a physical invasion - not intent to commit a wrongful trespass

28
Q

to whom does SL extend when an animal (other than a dog or cat) wanders onto another’s land and causes reasonably foreseeable damage (e.g. goats that eat garden vegetables)?

A
  • SL extends to the owner of the ANIMALS – not to the owner of the LAND on which the animals were kept (unless the landowner also has the right to possess the animals)
29
Q

describe a parent’s duty with respect to their child’s torts

A

parents owe a reasonable duty of care to prevent their minor child from causing foreseeable harm to others

30
Q

for what kinds of harm can a P recover damages under a negligence theory?

A

personal injury or dmg to property

cannot recover for purely economic loss

31
Q

what are the elements of intentional interference with a contract?

A
  • VALID CONTRACT existed bw P and 3d party
  • D knew of the Kual relationship
  • D intentionally and improperly interfered w the K’s performance AND
  • that interference caused P pecuniary loss

NOTE: the pecuniary loss NEED NOT be substantial

32
Q

what are the elements of fraudulent misrepresentation?

A
  • Knowingly or recklessly misrepresented material fact to induce reliance
  • in any setting
  • justifiable reliance caused pecuniary loss
33
Q

what are the elements of negligent misrepresentation?

A
  • negligently provided P w false information
  • in a commercial setting or setting w risk of physical harm
  • justifiable reliance caused pecuniary loss OR physical harm
34
Q

The tort of negligent misrepresentation based upon a breach of the duty to supply correct information requires proof of which elements?

A
  • D negligently provided false information during the course of their business or profession
  • P justifiably relied upon the false information and suffered pecuniary (i.e., financial) loss as a result
  • P was in a contractual relationship with the defendant or was a third party known by the defendant as one for whose benefit the information was supplied

BUT P cannot recover if they used the info for a different purpose than that intended / communicated to D

35
Q

when is a battery privileged in defense of a 3d party?

A

if D reasonably believes that:
* the circumstances are such that the 3d party has the privilege of self-defense, AND
* D’s action is immediately necessary to protect 3d party