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Torts Flashcards

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1
Q

What are the 4 intentional torts where ‘transferred intent’ applies?

A

Assault
Battery
False Imprisonment
Trespass

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2
Q

What is an assault?

A

Intentionally causing in another a reasonable apprehension of a battery.

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3
Q

What does ‘reasonable apprehension’ mean?

A

Aware of an act that causes a reasonable expectation that a result will occur.

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4
Q

Does a reasonable apprehension require fear?

A

No

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5
Q

All intentional torts require what 3 main elements?

A

Act by D
Intent
Causation

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6
Q

Are words and threats enough for an Assault?

A

No, there must be some kind of overt act in combination with the words.

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7
Q

What is a battery?

A

Intentionally causes harmful or offensive contact in another.

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8
Q

When is a contact offensive?

A

When a reasonable person wouldn’t allow or expect it in the normal course of society.

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9
Q

Does contact with a person have to be actual contact with their person?

A

No. Anything closely connected to you or them can count as contact.

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10
Q

What is false imprisonment?

A

Intentional act or omission causing another to be confined or restrained to a bounded area, and they are either aware of it OR injured.

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11
Q

What is considered a ‘bounded area’ for false imprisonment?

A

An area providing limited movement and unaware of reasonable means of escape.

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12
Q

What is the ‘shopkeeper’s privilege’ to False Imprisonment?

A

The reasonable detention of someone, for the purposes of investigation, for reasonably believed to be shoplifting.

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13
Q

What is IIED?

A

Intentional or reckless extreme and outrageous conduct causing severe emotional distress in another.

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14
Q

For IIED, conduct must be outrageous to a reasonable person, other than these 4 categories.

A

Targeting P’s known sensitivity/weakness
Conduct is continuous or repetitive
P is member of fragile class
D is common carrier or innkeeper

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15
Q

What are the 3 additional elements required for a bystander to claim IIED?

A

Was present at the time,
Was a close relative to P OR distress resulted in bodily harm,
Defendant knew these facts.

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16
Q

What is Trespass to Land?

A

Intentional act that causes the physical invasion of another’s real property.

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17
Q

What is trespass to chattels and conversion of chattels?

A

Intentional act that causes the interference with another’s right of possession of personal property, resulting in damages.

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18
Q

What is the damage required, and recovery for, trespass to chattels?

A

Minor interference or damage.
Recover cost of repair or rental value.

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19
Q

What is the damage required, and recovery for, conversion of chattel?

A

Significant interference or damage.
Recover full market value at time of conversion or repossession.

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20
Q

Who can consent to an intentional tort?

A

Anyone with capacity.

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21
Q

What 3 things nullifies consent to a tort?

A

Fraud
Duress
Mistake

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22
Q

What is an implied consent to a tort?

A

Consent based on custom or P’s observable conduct.

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23
Q

What are the 3 elements for Self-Defense?

A

Reasonably believe,
a tort is imminent,
Respond proportionally.

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24
Q

What is required to invoke Defense of Others?

A

Must reasonably believe the other has a right to self-defense.

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25
Q

What are the 2 elements required for Defense of Property?

A

Use reasonable force,
to prevent tort of property.

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26
Q

What are the 3 elements to use Necessity as a defense?

A

Reasonably interfere with another’s property,
To avoid imminent harm,
Interference causes less harm than the imminent harm.

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27
Q

What damages may be awarded for damages caused by Necessity?

A

Public Necessity-None
Private Necessity-Only actual damage to property, unless it was for P’s benefit.

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28
Q

Can a property owner be liable for harm caused by preventing another’s Necessity use of owner’s property?

A

Yes

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29
Q

What are the 2 limitations to recapture of chattel outside of the normal defense of property rules?

A

Must make timely demand of return unless would be futile.
Can only recapture from someone who knows the chattel was wrongfully obtained.

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30
Q

What is defamation?

A

Defamatory language about another that is false, published, and damages their reputation.

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31
Q

Who can defamatory statements be made about?

A

A living person or small group of people.

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32
Q

Can the republisher of a defamatory statement also be liable?

A

Yes

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33
Q

What standard of culpability is required to defamation for: public figures and private people?

A

Public-Malice
Private-Negligence

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34
Q

What are the 3 main ways to establish Slander Per Se (don’t need damages)?

A

The slander adversely reflects on P’s business or professional reputation.
The slander claims a communicable disease.
Slander claims P committed moral turpitude crime.

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35
Q

What damages are required for: Public figure libel, private figure libel?

A

Public figure libel-presumed damages
Private figure libel-presumed damages if a private concern, and only actual damages if public concern.

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36
Q

What are the 3 defenses to Defamation?

A

Truth
Consent
Privilege

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37
Q

What are the 2 types of Defamation privilege defenses?

A

Absolute-Protects govt official statements.
Qualified-Protects public use statements such as reviews, references…etc

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38
Q

What is Appropriation?

A

Unauthorized use of another’s picture or name for commercial advantage.

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39
Q

What is the exception to Appropriation?

A

‘Newsworthiness’-Not liable if used for reporting news.

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40
Q

What is Intrusion upon Seclusion?

A

Intrusion upon plaintiff’s
reasonable expectation of privacy,
in a manner highly offensive to a reasonable person.

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41
Q

What are the 2 elements for Disclosure?

A

Public disclosure of another’s private information when the disclosure would be highly offensive to a reasonable person.

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42
Q

Does the newsworthy exception apply to Disclosure?

A

Yes

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43
Q

What are the 4 elements of Negligence?

A

Duty
Breach
Causation
Damages

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44
Q

Who do you owe a duty to regarding negligence?

A

To all foreseeable plaintiffs.

45
Q

What is the standard for duty of care?

A

To behave as a reasonably prudent person would under similar circumstances.

46
Q

What is the ‘rescuer’s exception’ in Negligence cases?

A

Although a rescuer may not be foreseeable, you owe a duty of care to those who attempt to rescue someone needing rescue due to your negligence.

47
Q

Who does the ‘rescuer’s exception’ not apply to?

A

Fire fighters and officers.

48
Q

What characteristics are considered of the defendant to determine if he acted as a reasonably prudent person?

A

Physical characteristics only…not mental.

49
Q

What can increase one’s standard of the duty of care?

A

Exceptional skill or knowledge.

50
Q

What standard of the duty of care are children held to, and what is the exception?

A

Held to the standard of reasonable similar child.
Doesn’t apply if engaged in adult activity.

51
Q

What are the 3 elements to establish a statutory standard of the duty of care?

A

Harm suffered was type statute meant to prevent.
P is in class of victims statute intended,
Statute applies a standard of conduct.

52
Q

A statutory standard of the duty of care (negligence per se) doesn’t apply under what 2 circumstances?

A

Compliance with statute is more dangerous,
or compliance is impossible.

53
Q

What does Negligence Per Se establish?

A

Duty of Care and breach of that duty.

54
Q

What standard of the duty of care is owed by landowners to unknown/undiscovered trespassers?

A

None

55
Q

What are the 4 requirements for a landowner to warn about, or make safe, hazards for known/discovered trespassers?

A

Hazard is artificial (manmade)
Highly dangerous
Concealed
known by landowner

56
Q

What are the 4 requirements for a landowner to take reasonable care to eliminate dangers to child trespassers?

A

Aware of a dangerous condition,
Should know children are in area,
Condition likely to cause injury,
Magnitude of risk outweighs mitigating

57
Q

Who is a Licensee?

A

One who enters land with permission for own purpose (social guests)

58
Q

Who is an Invitee?

A

One who enters land open to public OR enters land with permission for benefit of owner (patron).

59
Q

Is there a duty to inspect property for non-obvious dangers for licensees…invitees?

A

Not for licensees.
Yes for invitees.

60
Q

Where do landowners owe a duty of care to invitees and licensees?

A

Only those areas they are given permission to be in.

61
Q

What is a breach of duty?

A

When conduct falls short of the standard of care owed under the circumstances.

62
Q

What are the 3 requirements for Res Ipsa Loquitor?

A

Harm would not normally occur absent negligence.
Normally occurs by one in D’s that position.
Injury not caused by Plaintiff.

63
Q

What is defendant not allowed to get if Res Ipsa Loquitor is established?

A

Directed verdict (JMOL).

64
Q

What is the main test for determining actual cause for negligence?

A

‘But-for test’

65
Q

If multiple defendants may have caused an injury, but it is unclear which one, what happens to the burden of proof?

A

It switches to the defendants to establish which one caused the injury.

66
Q

What is the main question to ask to establish proximate cause for negligence?

A

Was the injury a foreseeable result of the breach of duty?

67
Q

Do intervening forces cut off defendant’s liability in a negligence case?

A

Not if the intervening force was foreseeable.

68
Q

What 4 intervening forces are always foreseeable?

A

Medical malpractice.
Rescuer negligence.
Reactionary forces.
Resulting disease or accident.

69
Q

What is the ‘eggshell plaintiff rule’?

A

You take a plaintiff as you find him. You are responsible for injuries you cause even if the injury wasn’t foreseeable.

70
Q

What are the 3 main types of damages?

A

Personal injury
Property damages
Punitive damages

71
Q

What damages are never recoverable for a plaintiff?

A

Interests and attorney fees

72
Q

Does a plaintiff have a duty to try and mitigate damages?

A

Yes

73
Q

What is comparative negligence?

A

D can establish that P is at least partially responsible.

74
Q

What is partial comparative negligence vs pure comparative negligence?

A

Partial-P can recover if they are less than 50% at fault.
Pure-P can always recover regardless of percentage at fault.

75
Q

What is contributory negligence?

A

P cannot recover anything if D can establish P caused at least partially own damage. (not in most jurisdictions anymore).

76
Q

What is Assumption of Risk?

A

D can prevent P from recovering damages if P assumed the risk.

77
Q

What 2 elements are required to establish Assumption of Risk.

A

P knew of the risk.
P voluntarily took the risk.

78
Q

What are the 3 elements for NIED?

A

Negligence results in close risk of physical harm to P.
P gets severe emotional distress.
P exhibits physical reactions to the emotional distress. (minority dont require)

79
Q

Can bystanders file a NIED claim?

A

Yes-the same way as filing a bystander IIED claim, or if there is a special relationship between P and D (ie: erroneous report of death).

80
Q

What are the 3 kinds of Strict Liability cases?

A

Abnormally dangerous conditions
Animal conduct
Products liability

81
Q

What are the 2 defenses to strict liability cases?

A

Assumption of Risk
Comparative Negligence

82
Q

What are the 3 requirements to be an ‘abnormally dangerous activity’?

A

Severe risk
Cannot be made safe
Uncommon in the community

83
Q

Must abnormally dangerous activities be the cause of injury to apply strict liability?

A

Yes

84
Q

For domesticated animals, strict liability applies when?

A

If the owner knew the animal had a propensity to be dangerous.

85
Q

For wild animals, strict liability applies when?

A

Any unprovoked injury

86
Q

What kind of property damage are animal owners responsible for if their animal trespasses?

A

Reasonably foreseeable damages caused by non-household pets.

87
Q

Are trespassers entitled to recover for animal injuries through strict liability?

A

No

88
Q

What are the 4 elements for Products Strict Liability?

A

D was a commercial supplier
Product was defective
Product caused P’s injury
P used product in foreseeable manner

89
Q

Regarding products liability, what is a commercial supplier?

A

One who routinely deals in the product sold.

90
Q

Are rental companies considered commercial suppliers?

A

Yes

91
Q

Who in the distribution line can be responsible for product liability?

A

Everyone on the chain of distribution.

92
Q

Other than the injury, what is required to prove a defective product caused the injury?

A

The product was not substantially altered after leaving the commercial supplier.

93
Q

What are the 3 types of product defects?

A

Manufacturing defect
Design defect
Inadequate Warning

94
Q

What is a manufacturing defect?

A

Product fails to perform as safely as expected due to being different than others of the same product.

95
Q

What is a design defect and how is it established?

A

Product creates an unreasonable risk of danger due to faulty design.
Must show a technological and feasible alternative design.

96
Q

What is an inadequate warning regarding products liability?

A

Manufacturer fails to adequately warn of a non-obvious risk of use or for foreseeable dangers from misuse.

97
Q

What is required of a manufacturer to warn about unavoidably dangerous products (guns, chainsaws…)?

A

Proper instructions for use,
and adequate warnings of known dangers.

98
Q

What are the 3 elements of a Private Nuisance claim?

A

Substantial and unreasonable,
Interference with use and enjoyment,
of private property.

99
Q

What are the 3 elements for Public Nuisance?

A

Unreasonable interference,
With health, safety, or property rights,
Of community at large.

100
Q

What is a main defense to Nuisance?

A

P cannot recover if he ‘came to the nuisance’ (such as buying the property with knowledge of the nuisance).

101
Q

What is Respondeat Superior?

A

Employers are liable for torts committed by employees within the scope of their employment.

102
Q

Employers are not liable for intentional torts committed by employees except for these 3 situations.

A

Job requires force,
Job entails creating friction,
Tort is committed to further employer’s goals

103
Q

When can employers be held liable for torts committed by contractors?

A

When the work is inherently dangerous or when the duty is not delegable (such as premises liability).

104
Q

How does vicarious liability work for partnerships?

A

All partners are liable to each other’s torts committed within the scope of the partnership.

105
Q

When can parents be liable for their children’s torts?

A

Never, but they may be found negligent if they knew their child had a propensity to cause injury.

106
Q

What is joint and several liability and how does the payout work?

A

Arises when 2 or more defendants cause an undivided injury.
Recover whole claim from 1 defendant who then files against the other defendant.

107
Q

What are the 3 main ways a defendant can indemnify another?

A

By contract
Vicarious liability
Strict liability

108
Q

What is the ‘last clear chance’ doctrine?

A

The person with the last clear chance to avoid an accident is liable for negligence, even in a contributory negligence jurisdiction.

109
Q

Can Assumption of Risk be a defense to an intentional tort?

A

No

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