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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

Four Broad Areas of Torts

A
  1. Intentional Torts and Defenses
  2. Negligence
  3. Strict Liability
  4. Miscellaneous
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2
Q

Hypersensitivity of the Plaintiff…

A

…is ignored.

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3
Q

Capacity Defense?

A

Doesn’t exist. So just eliminate any answer choice that says, “X did not have capacity” or something.

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4
Q

Battery requires…

A
  1. Harmful or Offensive (Unpermitted) Contact
  2. Intentionally
  3. With plaintiff’s person (need not be instantaneous; poison → later harm counts.)
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5
Q

Assault

A

Putting the plaintiff in:

  1. Reasonable Apprehension (knowledge!!)
  2. of Immediate Battery.
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6
Q

False Imprisonment

A
  1. An act of restraint that confines P in a bounded area, with
  2. Intent by the defendant to confine the plaintiff;
  3. Causation, and
  4. Aware of or harmed by the confinement.
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7
Q

Emotional Distress

A
  1. Extreme and Outrageous Conduct (all bounds of decency);
  2. Plaintiff suffered severe emotional distress
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8
Q

Trespass to Land

A
  1. Physical invasion by person or tangible object
  2. Of land, including air above/soil below.
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8
Q

Affirmative Defenses to Intentional Torts

A
  1. Consent (express or implied) (remember scope of consent)
  2. Protected Privileges (self-defense, others, defense of property)
  3. Necessity (public or private)
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8
Q

Trespass to Chattels

A

Intentional interference with plaintiff’s personal property.

Small harm.

Pay damages.

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8
Q

Conversion

A

Intentional interference with P’s personal property so serious that D needs to pay its full value.

Big harm.

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9
Q

Protected Privileges Defense

A
  1. Self-Defense
  2. Defense of Others
  3. Defense of Property

Requires:

  1. Proper Timing (immediate)
  2. Reasonable Accuracy (reasonable belief in the moment the threat was genuine)
  3. Reasonable Force (no duty to retreat in most states)
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10
Q

Necessity Defenses

A
  1. Public Necessity
    - Guy breaks into Acme Fire Extinguisher company to put out fire on street
  2. Private Necessity
    - Must pay compensatory damages
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11
Q

Negligence

A

Duty - Breach - Causation - Damages

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12
Q

To Whom Do You Owe A Duty?

A

Foreseeable Victims. Those nearby, basically.

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13
Q

Negligence Duty Standard

A

Reasonably prudent person acting under similar circumstances.

Stupid/drunk people don’t get allowances.

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14
Q

Exceptions to the Reasonable Person Duty Standard

A
  1. Superior Skill or Knowledge.
  2. Physical Characteristics Where Relevant. E.g. blind person, where that’s relevant somehow.
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15
Q

Negligence Duty for Specific Defendants

A
  1. Special Standard of Care for Children
    - Under 5 → No Liability
    - 5-18 → Sliding Scale. Standard of RP of similar age/experience/intelligence. Subjective.
  2. Professionals. Same care as the average member of their profession.
  3. Possessors of Land to Those Who Enter their Property
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16
Q

Standards of Care for Possessors of Land to Those Who Enter their Property

A
  1. Unknown Trespasser: No duty.
  2. Known/Anticipated Trespasser: Must protect from known, highly dangerous, man-made, concealed conditions.
  3. Licensee: Must protect from all known, concealed traps.
  4. Invitee: Must protect from all known/should have known, concealed traps.

Must eliminate or warn about the conditions.

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17
Q

Statutory Standards of Care

A

Plaintiff “borrows” a criminal statute as an alternative standard of care.

Must show the judge the statute protects the:

  • Class of Person and
  • Class of Risk

→ Negligence Per Se.

But not when compliance would have been more dangerous or impossible.

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18
Q

Affirmative Duties to Act

A

None, except:

  1. Special Relationship (family member, business owner)
  2. Defendant Created Conduct
  3. Assumption of Duty by Acting
  4. Duty to Prevent Harm from Third Persons
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19
Q

Negligent Infliction of Emotional Distress

A
  1. Near Miss Case. Negligent D almost hurt P. In addition to ordinary negligence (RP standard), P can show:
    - D put P in the zone of physical danger; and
    - P suffers from physical symptoms from the distress.
  2. Bystander Case. D negligently injuries a third party causing emotional distress. P and 3P must be closely related and P must be present.
  3. Business Relationship Cases. P can recover if it is highly foreseeable that D’s carelessness will produce emotional distress. E.g. Doctor tells P they have cancer, they don’t.
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20
Q

Breach

A

P must point to concrete, specific behavior by the D that falls short of the relevant standard of care.

21
Q

Res Ipsa Loquitur → must show:

A
  1. Accident is normally associated with negligence;
  2. Accident would normally be due to the negligence of someone in D’s position.
22
Q

Directed Verdict for Defendant

A

While breach of duty is ordinarily a question for the trier of fact, a plaintiff’s failure to offer any evidence on that element of the prima facie case will permit a directed verdict for the defendant.

23
Q

Causation

A
  1. Factual
  2. Proximate
24
Q

Factual Causation

A
  1. But-For
  2. Substantial Factor
  3. Unascertainable Causes Approach.
    - When there are two acts, only one of which causes injury, but it is not known which one, Defendant must prove their negligence is not the actual cause.
25
Q

Proximate Causation

A

Foreseeability Test. If there is attenuation between D’s Act and P’s Harm, D is still liable if the harm is foreseeable.

  1. Intervening Force. D acts, then an intervening force causes harm in a foreseeable way.
    - Medical malpractice
    - Negligence of Rescuers
  2. Superseding Forces. Often unforeseeable. Break the causal connection.
26
Q

Damages for Negligence Torts

A

Eggshell Skull Doctrine. Once the plaintiff has established all other elements of the claim, plaintiff receives ALL damages suffered, even if they are surprisingly great in scope.
IOW, you take your plaintiff as you find your plaintiff.

Not limited to Negligence claims. Same for battery. Think of the V case.

27
Q

Affirmative Defense to Negligence Torts

A

Only one AD to negligence torts: Comparative Negligence!

  • D shows P failed to exercise proper care for their own safety.

Jury instructed to assign % of Fault. P’s recovery is reduced proportionally.

28
Q

Strict Liability

A
  1. Animals
  2. Abnormally Dangerous Activities
  3. Products Liability
29
Q

Animals Strict Liability Rules

A

Strict Liability for…

  1. Animals you know have dangerous propensities not common to the species.
  2. Trespassing Animals
  3. Wild Animals (but not in favor of the trespassers; e.g. I trespass, get hurt by a snake, that’s on me.)
30
Q

Abnormally Dangerous Activities Rules

A

Strict Liability for:

  1. A foreseeable risk of serious harm even when reasonable care is exercised.
  2. Not a matter of common usage in the community. E.g. explosives, chemicals.
31
Q

Elements for Strict Products Liability

A
  1. Defendant → Merchant
  2. Product → Defective
  3. Product → Not Substantially Altered since leaving D’s control.
  4. Plaintiff → Made a Foreseeable Use of it. (not synonymous with intended.)
32
Q

Products Liability → Contractual Privity?

A

Not required. Bystanders can sue.

33
Q

Damages for Products Liability

A

Physical Injury OR Property Damage must be shown.

Not economic loss.

34
Q

Negligence Products Liability

A

Foreseeable Plaintiff can sue for physical injury or property damage.

Disclaimers ineffective.

35
Q

Implied Warranties

A
  1. …of Merchantability.
  2. …of Fitness.

Vertical Privity not needed. No fault needed.

Damages: Personal Injury, Property Damages, AND ECONOMIC LOSS allowed!!!

36
Q

Defenses to Products Liability

A
  1. Assumption of Risk
  2. Contributory Negligence
    - No Defense if P failed to realize/guard against the danger.
    - Defense if P knew of the danger and their unreasonable conduct was the cause of the harm.
  3. Comparative Negligence
37
Q

Products Liability → Representation Theories

A
  1. Express Warranty
  2. Misrepresentation of Fact
38
Q

Nuisance

A
  1. Private: A substantial, unreasonable interference with another’s use or enjoyment of property.
    - Substantial: Inconvenient/offensive to the average person. NOT FOR HYPERSENSITIVE PLAINTIFFS.
    - Unreasonable Interference: Severity of Injury > Utility of D’s Conduct.
  2. Public: Unreasonably interferes with the health, safety, or property rights of the community.
    - Recovery allowed for private party who suffered unique damage.
39
Q

Remedies for Nuisance

A
  1. Damages (usually)
  2. Injunctions
  3. Abatement by Self Help (only after notice + D didn’t act; necessary).
40
Q

Defenses to Nuisance

A
  1. Legislative Authority
  2. Conduct of Others (one steel mill not responsible for other mills’ pollution.)
  3. Contributory Negligence
  4. Coming to the Nuisance (P can’t bring a suit if they “came” solely to bring a harassment suit.
41
Q

Vicarious Liability

A
  1. Employer-Employee, where employee is acting within the scope of employment.
    - Detour → Minor Departure → Employer Liable.
    - Frolic → Major Departure → Employer Not Liable.
    - Intentional Torts → No Liability, unless the tort is to further the employer’s purposes.
  2. Independent Contractors → Hiring party generally not liable, unless IC is on the business premises and hurts the customer.
42
Q

Multiple Defendants: Joint and Several Liability

A

Plaintiff can recover full damages from any Defendant Plaintiff chooses.

43
Q

Multiple Defendants: Contribution

A

Defendant seeks compensation from co-defendants according to % of Fault.

44
Q

Multiple Defendants: Indemnification

A

Full reimbursement to the out-of-pocket defendant. Happens where:

  1. Vicarious Liability: “Higher” defendant (employer) can indemnify the actual tortfeasor.
  2. Strict Liability. If the party that paid the Plaintiff was not the manufacturer, they can indemnify the manufacturer.
    - I sue Home Depot and Manufacturer for defective drill. Hold HD jointly and severally liable. They pay me. They can indemnify Manufacturer.
45
Q

Loss of Consortium

A

Where the injured party is married, the uninjured spouse of the victim has an additional claim against all Ds.

46
Q

Defamation

A
  1. Defamatory Statement that,
  2. specifically identifies the Plaintiff…
  3. …published to a third party…
  4. …that is FALSE…
  5. …with FAULT on the Defendant’s part…
  6. …that DAMAGES the P’s reputation.
47
Q

Defamatory Statement

A
  1. Must tend to adversely affect P’s reputation.
  2. Innuendo: If not defamatory on its face, P may plead additional facts to show it was innuendo.
  3. Must be a living person (or corporation/association/partnership).
48
Q

“Specifically Identifies the Plaintiff” in Defamation

A
  1. A reasonable audience would understand it was about them.
  2. If not about Plaintiff on its Face: Colloqium, where P can show extrinsic evidence to prove it’s about them.
49
Q

“Published to a Third Party” in Defamation

A

Intent to publish, not intent to defame.

Who is Liable? Primary publishers.

  • Secondary Publishers only if they knew it was defamatory.
50
Q

Fault on the Defendant’s Part in Defamation

A
  1. Public Figure: ACTUAL MALICE, which means:
    - Knowledge it was false, OR
    - Reckless disregard to its falsity.
  2. Private Person if about a matter of public concern: NEGLIGENCE STANDARD.
51
Q

Damages the Plaintiff’s Reputation in Defamation

A
  1. Libel: Defamation in permanent form. (Written publication, including radio/TV.) → Damages Presumed.
  2. Slander: Spoken defamation.
    - …special damages need to be proven
    - UNLESS it’s a slander per se category, where it:

a. Reflects adversely on P’s business/profession;
b. Claims P has committed a serious crime/sexual assault; or
c. States P has a loathsome disease.

52
Q

Defenses to Defamation

A
  1. Consent
  2. Truth
  3. Privilege
    - Absolute (spousal or made during judicial proceedings)
    - Qualified (references, reports of public hearings)
53
Q

Privacy Rights

A

AIFP: All In For Potter

  1. Appropriation. Unauthorized use of the P’s picture or name for the D’s commercial advantage. E.g. advertisements or promotions.
  2. Intrusion on Plaintiff’s Affairs or Seclusion.
    Prying or intruding in a private thing in a way highly offensive to a RP. Photos taken in public don’t count.
  3. Publication of Facts Placing Plaintiff in False Light.
    D publicly attributes to P views they do not hold/actions they do not take, in a way highly offensive to a RP.
    - 1A Limitation. If the matter is of public interest, actual malice on the defendant’s part must be proved.
  4. Public Disclosure of Private Facts About Plaintiff. Must be highly offensive to a RP.
    Liability even if statement is true.
    First Amendment limitations probably apply if of legitimate public interest.
54
Q

Defenses to Privacy Torts

A
  1. Consent
  2. Privilege Defenses
  3. Truth is not a defense.

Bar Exam (8 decks)

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