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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

Elements of Intentional Torts

A

Act + intent + causation

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2
Q

Transferred Intent torts

A

Assault, battery, false imprisonment, trespass to land/chattels

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3
Q

Assault

A

Act + reasonable apprehension of immediate battery

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4
Q

Battery

A

Harmful conduct + contact with person

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5
Q

False Imprisonment

A

Act/omission + confinement of P in bound area

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6
Q

Intentional Infliction of Emotional Distress

A

Act (extreme/outrageous) + P suffers
Recklessness can satisfy intent
Actual damages are required

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7
Q

Intentional Infliction of Emotional Distress - Bystanders

A

Presence + bodily harm OR person was close relative and D knew that

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8
Q

Trespass to Land

A

Physical invasion of real property

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9
Q

Trespass to Chattels

A

Act + interference with P’s right of possession
Actual damages are required
Mistaken ownership is not a defense

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10
Q

Conversion

A

Act + serious interference with right of possession
Provides full market value/possession
Mistaken ownership is not a defense

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11
Q

Affirmative Defenses to Intentional Torts

A

Consent
Self Defense
Defense of Others
Defense of Property
Necessity Defenses

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12
Q

Consent

A

Express or Implied (custom/conduct)
Exceptions: mistake, fraud, duress

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13
Q

Self Defense

A

D believes they are being/about to be attacked, responds in heat of moment
No duty to retreat in house
Duty to retreat before using deadly force if safe
Reasonable mistake is allowed

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14
Q

Defense of Others

A

If D reasonably believes protected person could use force
Reasonable mistake is allowed

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15
Q

Defense of Property

A

Force may be used, but request to leave/stop must happen first if safe
Reasonable mistake is allowed re intrusion, but not others’ privileges (which supersceed right)
No deadly force allowed

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16
Q

Shopkeeper’s Privilege

A

Merchant can detain w/ reasonable belief
Reasonable time, manner, and suspicion

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17
Q

Necessity Defense

A

Only for property torts
Can interfere if necessary in emergency if threat is more serious than invasion
Public necessity (avert public disaster) Private necessity (prevent serious harm to people) > pay for damage caused

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18
Q

Negligence Elements

A

Duty + breach + actual/proximate cause + damages

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19
Q

Who is owed a duty of care?

A

All foreseeable plaintiffs (zone of danger)

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20
Q

Standard for Duty of Care

A

Reasonably prudent person under similar circumstances

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21
Q

Special Duty of Care - Children

A

Standard of like child (age, intelligence, experience) [unless engaged in adult activity]

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22
Q

Special Duty of Care - Professional

A

Standard of knowledge/skill of average member of profession

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23
Q

Special Duty of Care - Land Possessors - Known Trespassers

A

Known, man-made, concealed death traps on land

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24
Q

Special Duty of Care - Land Possessors - Licensees

A

Protect licensees from all known traps (concealed)

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25
Q

Special Duty of Care - Land Possessors - Invitees

A

Protect from concealed and known traps (or ones that could be discovered)

26
Q

Special Duty of Care - Land Possessors - Children

A

Dangerous condition (known/should know), owner knows children may trespass, condition will injure child, and expense of remedy is slight compared to possible harm

27
Q

Negligence Per Se

A

Borrowing a criminal statute to show duty and breach
Requires showing P is class of persons protected and the injury is the class of risk to be prevented + D violated statute
Exception if compliance would cause more harm

28
Q

Affirmative Duty to Act

A

Reasonably prudent person standard
Special relationships (parent, shopkeeper)
Peril due to own conduct
Assumption of Duty by Acting
Guest in Automobile

29
Q

Negligent Infliction of Emotional Distress

A

Duty breached if D creates foreseeable risk and P is in zone of danger and suffers physical symptoms from the distress

30
Q

Negligent Infliction of Emotional Distress - Bystander

A

P and injured person related, P present, P observed

31
Q

How to show breach?

A

Evidence of custom/usage used to show reasonable person standard

32
Q

Res Ipsa Loquitur

A

Type of injury occurs with negligence by someone in D’s position
This makes a prima facie case (no directed verdicts)

33
Q

Factual Causation

A

Injury would not have occurred but for act or omission

34
Q

Factual Causation - Merged Causes

A

Substantial factor test (each breach could cause) > joint & severable liability

35
Q

Proximate Causation

A

D liable if negligence caused foreseeable reaction or risk (time, distance, etc.)

36
Q

Personal Injury Damages

A

All damages, economic damages, and noneconomic damages (maybe also emotional if physical injury)

37
Q

Property Damages

A

Reasonable cost of repair or full market value

38
Q

Punitive Damages

A

Only if D wanton, willful, reckless, or malicious

39
Q

Defenses to Negligence

A

Comparative Negligence
Assumption of Risk

40
Q

Comparative Negligence

A

P failed to exercise care for own safety
Jury will assign a percentage of fault (at discretion) and P’s recovery reduced

41
Q

Strict Liability For:

A

Animals
Abnormally Dangerous Activities
Products Liability

42
Q

Strict Liability - Animals

A

Liable if knowledge of animal’s dangerous propensities specific to this animal
Not owed to trespassers
Liable for reasonably foreseeable damages from your animals trespassing
Wild animals: strictly liable to licensees and invitees

43
Q

Strict Liability - Abnormally Dangerous Activities

A

These are activities which cannot be made safe with ordinary care + activity is not common in community
Liability to foreseeable Ps (reasonable person would foresee)

44
Q

Strict Liability - Products Liability

A

D is commercial supplier, product was defective when it left D’s control, product was actual/proximate cause of injury, and P suffered damages
Product moved through normal distribution > inferred defective manufacture (unless retailer discovered and didn’t warn buyer)
P has to be making a foreseeable use of product, but misuse is foreseeable

45
Q

Strict Liability - Products Liability - Manufacturing Defect

A

Product is different from others and more dangerous

46
Q

Strict Liability - Products Liability - Design Defect

A

All products of line have dangerous propensities
P must show safer, practical, and economically feasible al design

47
Q

Strict Liability - Products Liability - Informational Defect

A

Manufacturer failed to give adequate info
Adequate warnings are prominent, comprehensible, and give info about mitigating any risks

48
Q

Nuisance

A

Interference with P’s use/enjoyment of real estate

49
Q

Private Nuisance

A

Substantial, unreasonable interference with use/enjoyment of another
Must be offensive, inconvenient, or annoying to average person in community

50
Q

Public Nuisance

A

Unreasonably interferes with health/safety/property rights of community
Recovery available if private party suffered unique damage not suffered by public

51
Q

Remedies for Nuisance

A

Injunctive relief (damages inadequate), self-help after notice + refusal

52
Q

Vicarious Liability

A

Employer-employee: liable if within scope of relationship (respondeat superior)
Intentional torts only count if: furthering business, force authorized, friction generated
Independent Contractors: hiring party not liable if they don’t control manner/method BUT there are some duties which are nondelegable (businesses > safe premises)

53
Q

Comparative Contribution

A

Contribution in proportion to relative faults of various Ds

54
Q

Indemnification

A

Full reimbursement to out-of-pocket D

55
Q

Defamation

A

Statement, identifying P, published, with falsity and fault, resulting in damage

56
Q

Defamation - Fault

A

Public Official/Figure: Malice (knowledge of false or reckless disregard)
Private Persons if matter of public concern: Negligence; Only actual damages are recoverable, but with malice > punitive too

57
Q

Defamation - Damages

A

Libel – permanent form, damages are presumed
Slander – spoken form, must prove economic damages unless slander per se (adverse impact on business/profession, claim of serious crime, sexual misconduct, loathsome disease)

58
Q

Defamation - Defenses

A

Consent
Privilege

59
Q

Defamation - Defenses - Absolute Privilege

A

Absolute – Can never be lost
Communications between spouses
Officers of government acting in official capacity

60
Q

Defamation - Defenses - Qualified Privilege

A

Lost through abuse/malice
Applies when there is a public interest in encouraging candor
Applies to statement made in good faith and relevant in scope

61
Q

Invasion of Right to Privacy

A

Appropriation of P’s picture or name for commercial purposes
Intrusion on P’s affairs or seclusion
Publication of facts placing the plaintiff in a false light (public interest > malice)
Public disclosure of private facts

62
Q
A

Bar Exam (8 decks)

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