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Bar II > Torts > Flashcards

Torts Flashcards

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1
Q

mental state for intentional torts

A

purposeful, or knows consequence is substantially certain

reckless for IIED

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2
Q

single v dual intent for battery

A

single: D intends to bring the contact only

double: D intends to bring contact and intends it to b harmful or offensive

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3
Q

offensive standard for battery

A

objective reasonable person

subjective: D knows it will be highly offensive

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4
Q

elements of battery

A
  1. D intends to cause contact with P’s person
  2. D’s conduct causes contact
  3. Harmful or offensive touching occurs
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5
Q

elements of assault

A

D’s intends to cause P to anticipate
imminent
harmful
offensive contact

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6
Q

IIED

A

by extreme and outrageous conduct, intentionally or recklessly causes P to suffer severe emotional distress

intent can transfer between people but not between intentional torts

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7
Q

what kind of conduct for IIED

A

extreme and outrageous - beyond human decency

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8
Q

special IIED rule for celebs

A

public figures must show falsity and actual malice

private P can’t recover if issue was of public concern

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9
Q

who is owed a duty

A
  • all foreseeable plaintiffs
  • majority Cardozo: plaintiffs within zone of foreseeable harm
  • minority: anyone who is harmed
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10
Q

modern rule for possessors of land’s duty

A

must exercise reasonable care under the circumstances to all land entrants except trespassers

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11
Q

traditional approach for land possessor standard of care

A

trespasser: refrain from willful wanton reckless intentional misconduct

invitee: inspect and discover unreasonably dangerous conditions, warn

licensee: warn of known hidden dangers and use reasonable care

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12
Q

elements of attractive nuisance

A
  1. artificial condition in place owner knows kids are likely to trespass
  2. unreasonable risk of serious bodily injury
  3. kids can’t appreciate danger due to youth
  4. burden of eliminating danger is slight compared with risk
  5. land possessor fails to exercise reasonable care to protect kids
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13
Q

modern factors for determining breach (cost benefit)

A
  1. forseeability of harm
  2. severity of harm
  3. burden of D to prevent harm
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14
Q

res ipsa. plaintiff must prove that

A
  1. type of accident wouldn’t occur without negligence
  2. injury was caused by something in exclusive control of D
  3. injury was plaintiff’s fault
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15
Q

what does negligence per se do

A

changes the duty for the negligence analysis

plaintiff must still be in class of persons

plaintiff must suffer type of harm

violation must be proximate cause

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16
Q

actual cause

A

plaintiff must show that but for D’s actions, wouldn’t have happened

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17
Q

substantial factor rule for ACTUAL

A

when multiple causes of harm and each alone woulda done it

conduct of each D is actual cause if it was a substantial cause

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18
Q

alternative causation for ACTUAL

A

when p’s harm is caused by multiple tortfeasors and each was individually bad

burden of proof shifts to defendants to prove each was not the cause in fact

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19
Q

proximate cause

A

plaintiff must show injury was FORSEEABLE result of D’s conduct

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20
Q

intervening cause for PROXIMATE

A

outside force that happens after

if foreseeable – will not cut of D’s liability

if not foreseeable – will cut off D’s liability

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21
Q

types of negligent infliction of emotional distress

A

zone of danger

bystander

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22
Q

zone of danger for NIED

A
  1. plaintiff was within zone of danger of physical impact
  2. physical manifestation of emotional distress
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23
Q

bystander for NIED

A

outside zone of danger but

  1. is closely related to person harmed
  2. was at scene
  3. personally observed
  4. physical manifestation of emotional distress
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24
Q

Defenses to negligence

A
  1. contributory negligence
  2. comparative fault
  3. assumption of the risk
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25
Q

contributory negligence (old rule)

A

if p contributed – NO DICE

26
Q

comparative fault (modern)

A

Pure comparative: P’s recovery reduced by % he was at fault

Modified (majority): P’s recovery is reduced by % he was at fault. If P is MORE at fault than D, NO DICE

27
Q

what is an abnormally dangerous activity

A

high risk of harm, not commonly found in community, has risk that can’t be eliminated with due care

explosives, fumigation, hazardous waste, chemical storage

28
Q

how does strict liability change analysis

A

replaces the duty/breach element

still must show all others

29
Q

who is liable for strict products liability

A

defendant in business of selling commercial product

30
Q

types of product defect

A
  1. manufacturing defect
  2. design defect
  3. warning defect
31
Q

manufacturing defect

A

deviation from what manufacturer intended that causes harm to plaintiff

test: whether product conforms to D’s own specs

32
Q

design defect

A

consumer expectation test: P must prove dangerous beyond expectation of normal customer

risk utility test: P must prove a reasonable alternative design that is economically feasible was available and failure to use that design rendered product unreasonably dangersou

33
Q

failure to warn

A

foreseeable risk of harm, not obvious to ordinary user, warning would have reduced or avoided it

34
Q

actual and proximate cause for products liability

A

actual: product was defective when left D’s control and was but for cause

proximate: product was used in foreseeable way, misuse ok if forseeable

35
Q

negligent products liability

A

same as a negligence analysis, always do after talking about SPL

36
Q

types of warranties

A

express
implied warranty of merchantability
implied warranty of fitness for particular purpose

37
Q

element of defamation

A
  1. language is about the P
  2. published to 3rd party who understands defamatory nature and
  3. damages P’s reputation
38
Q

damages for damage to P’s reputation

A

libel (written) - general damages presumed

slander (oral) - damages not presumed

slander per se - damages presumed when involved professional, disease, moral, unchaste

39
Q

constitutional defamation elements

A
  1. plaintiff is public figure: must show false and malice
  2. plaintiff is private but matter is public: must show negligence or malice

malice = knew it was false or acted with reckless disregard to truth

40
Q

damages for public figures defamation or private with public matter

A

public - must show actual damage
private - can do punitive

41
Q

defamation defenses

A
  1. truth
  2. consent
  3. absolute privilege
  4. qualified privilege
42
Q

invasion of privacy torts

A
  1. misappropriation
  2. intrusion upon seclusion
  3. false light
  4. public disclosure of private facts
43
Q

misappropriation

A

unauthorized use of NLI for D’s own advantage

44
Q

intrusion upon seclusion

A

D’s acts of intrusion into P’s private affairs are objectionable to a reasonable person

45
Q

false light

A

P must show D published facts about P or attributed views to him that placed him in false light and

are highly offensive to reasonable person

46
Q

public disclosure of private facts

A

actionable if publication would be highly offensive to reasonable person and is not of legit concern to public

47
Q

false imprisonment

A

1) Intent
2) Confinement
3) Without lawful privilege
4) Against consent
5) Within a limited area
6) Any appreciable amount of time, however short

plaintiff must be aware or suffer actual harm

48
Q

trespass to chattels

A

interference with plaintiff’s possession of personal property

must intend to perform act that interferes, causation, damages

49
Q

conversion

A

requires SERIOUS interference with plaintiff’s possession of her property

no transferred intent

50
Q

trespass to land

A

physical invasion of another’s land and intent to enter land

51
Q

private necessity as defense for trespass to land

A

not liable for trespass but yes for actual damages

52
Q

public necessity as defense for trespass to land

A

not liable if actions were reasonable, or reasonable belief

53
Q

private nuisance

A

substantial (offensive to reasonable person)

and unreasonable (balance interests)

interference with another’s use and enjoyment of his land

54
Q

public nuisance

A

unreasonable interference with right common to general public

can only bring as private citizen if you are uniquely hurt

55
Q

defenses to nuisance

A

regulatory compliance is partial defense

coming to the nuisance

56
Q

abatement (eliminating the nuisance)

A

private nuisance: reasonable force ok but must give notice and D must refuse to act first

public: absent unique injury, can only be abated by public authority

57
Q

liability for employee torts

A

liable for torts committed within scope

can include intentional if within scope

may be liable for non delegable duties or inherently dangerous

58
Q

test for independent contractor or employee

A

the more control the employer has, the more likely it’s an employee

59
Q

considering if conduct meets reasonable care

A

(i) the foreseeable likelihood that the person’s conduct will result in harm,
(ii) the foreseeable severity of any harm that may result, and
(iii) the burden of precautions to eliminate or reduce the risk of harm.

60
Q
A

Bar II (16 decks)

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