TORTS Flashcards
What must a plaintiff prove to make a claim for negligence?
A plaintiff must prove duty, breach, causation, and harm to make a claim for negligence.
What is the general rule for determining duty?
The reasonably prudent person standard applies.
What factors are considered in determining duty for children?
Use a subjective standard for children. Look at the age, intelligence, and experience of the child.
What is the exception for children regarding the reasonably prudent person standard?
An exception exists if the child was engaged in an adult activity. If the child was engaged in an adult activity, use the reasonably prudent person standard.
Tip: examples of an “adult activity” include driving a car or boat or shooting a gun.
What factors are considered in determining duty based on physical characteristics?
Take into account if the defendant is physically impaired.
What factors are considered in determining duty in the case of profesionals?
Take into account a defendant’s superior knowledge.
What is negligence per se?
Statute
If a defendant violates a statute and the plaintiff was in the class of people that the statute was trying to protect and the plaintiff received the injury the statute was trying to prevent, duty and breach are established.
Tip: the plaintiff still must prove causation and harm.
What is the role of custom regarding the duty owed by the defendant?
Custom generally is evidence of duty of care. In professional malpractice cases, it is conclusive evidence.
When is there a duty to control third parties?
Generally, there is not a duty to control the conduct of third parties. However, one has a duty to act reasonably to control a third party if one has a special relationship with the third party (e.g., an owner and the occupiers of his land, a prison and its prisoners, or a mental institution and its patients).
What is the requirement for a premises possessor regarding undiscovered trespassers?
A person the premises possessor does not or should not know of
No duty of care is owed. However, the premises possessor cannot act wantonly or willfully.
What must a premises possessor do for discovered trespassers?
A person the premises possessor knows or should know is trespassing.
The premises possessor must warn of or make safe unreasonably dangerous artificial conditions that it knows of.
What is the duty owed to licensees?
Social guests
The premises possessor must warn of or make safe all concealed dangers that it knows of.
What is the duty owed to invitees?
One that enters a public place or business
The premises possessor must warn of or make safe all dangers that it knows or should know of.
Tip: this is the only case where a duty to inspect is imposed on the premises possessor
What must a plaintiff show to establish breach of duty?
A plaintiff must show that the defendant breached its duty of care.
What is res ipsa loquitur?
When the circumstances surrounding the injury are unclear, if a plaintiff can show that the injury likely was the result of negligence and that it likely was the defendant that was negligent, the plaintiff has made a case for breach.
Tip: If the plaintiff can show res ipsa loquitur, it means that the case should go to trial and no directed verdict should be entered for the defendant. It does not necessarily mean that the plaintiff wins his case.
What are the two types of causation required in negligence cases?
- Actual (but for)
- Proximate
What does actual (but for) cause refer to?
There must be a factual connection between the breach and the injury suffered.
What must be true for proximate cause?
The harm must be a foreseeable result of the breach.
What are some examples of proximate cause?
Examples of harm that is considered foreseeable: (1) medical malpractice that occurs after an accident, (2) harm that occurs during rescue efforts to protect life and property endangered by defendant’s negligence, and (3) a disease or subsequent accident that occurs after an accident.
What is the multiple causes issue?
If there are two or more defendants, use the substantial factor test. If a defendant’s breach was a substantial factor in causing the harm, the defendant is liable.
What is the alternative causes issue?
The plaintiff must show that all potential defendants are joined in the lawsuit and all defendants are negligent. The burden then will shift to each defendant to show its breach of duty was not the actual cause of the harm.
True or false: A plaintiff must suffer actual harm to successfully sue in a negligence action.
True
Tip: a plaintiff cannot recover punitive damages or nominal damages in a negligence action.
True or false: A plaintiff is not permitted to recover in negligence or strict liability if he has suffered a pure economic loss (i.e., no injury to himself).
True
Tip: in this case, the plaintiff may have a remedy in contract (but not tort).
What is comparative negligence?
A judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each.
What is pure comparative negligence?
The plaintiff can recover no matter how negligent he is. His damages simply are reduced by his percentage of fault.
Tip: this is the default on the MBE unless otherwise stated.
What is partial (modified) comparative negligence?
If the plaintiff was more at fault than the defendant (or in some states, if the plaintiff and defendant were equally at fault), the plaintiff cannot recover.
What is contributory negligence?
The plaintiff cannot recover if he was even a little bit negligent unless the defendant had the last clear chance to avoid the injury.
Do not apply this doctrine on the MBE unless you are told to!
What is assumption of risk?
If the plaintiff knew of the risk and voluntarily assumed it, he generally cannot recover damages.
However, some courts will analyze assumption of risk using a comparative fault analysis.
What is joint and several liability?
In a joint and several liability jurisdiction, the plaintiff may recover all of his damages from any single defendant (and the defendant may seek contribution from a codefendant). In a several liability jurisdiction, each defendant is liable only for his percentage of fault.
Tip: apply joint and several liability on the MBE unless told otherwise.
What is the liability of employers for the torts of their employees?
Employers or principals are vicariously liable for the torts of their employees or agents that are committed in the scope of employment. If an employer/principal is found liable under this theory, it may seek indemnity (i.e., full payback) from its employee.
Intentional torts usually are outside the scope of employment unless they were foreseeable or they were committed for the purpose of serving the employer.
What is the liability of principals for the torts of their independent contractors?
A principal is generally not liable for the torts of his independent contractors. However, a principal is liable if the duty is nondelegable or the activity is inherently dangerous. The principal also may be liable for his own negligence in hiring, firing, or supervising the contractor.
Tip: a duty generally is nondelegable if it involves safety.
What is the general rule regarding parental liability for children’s acts?
Generally, parents are not vicariously liable for the acts of their children. However, a parent may be directly liable for his own negligence (e.g., failure to supervise).
What is assault in terms of intentional torts?
Defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension) and
an imminent apprehension directly or indirectly results.
Tip: Apprehension does not mean fear. Apprehension is knowledge or anticipation of the impending contact.
What constitutes battery?
Defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension) and a harmful or offensive contact directly or indirectly results.
What defines false imprisonment?
Defendant acts with the intent to confine or restrain the plaintiff to a bounded area, actual confinement occurs, and the plaintiff either knows of the confinement or is hurt by it.
What is intentional infliction of emotional distress (IIED)?
Defendant intentionally or recklessly engages in extreme or outrageous conduct that causes the plaintiff to suffer severe emotional distress.
Tip: The plaintiff does not need to show physical symptoms to prevail. However, the plaintiff must show she suffered “severe emotional distress.”
What is trespass to land?
Defendant physically invades the land of another and intends to be where he is.
What is trespass to chattels?
Defendant intentionally interferes with another’s personal property and harm results. The damages are the cost to repair the property.
What is conversion?
Defendant intentionally interferes with another’s personal property and a serious and substantial harm results. The damages are the fair market value of the property.
What is the defense of consent in tort law?
Consent to the act that causes harm may negate liability.
It can be express or implied.
What is chattel?
Personal property
Chattels refer to movable personal property.
What is self-defense?
In torts
The defendant reasonably believes force is necessary to protect against the unlawful use of force.
Define public necessity as a defense.
Defendant acts to protect the public from a greater harm that would have occurred had he not acted.
What is private necessity?
Defendant acts to protect an interest of his own. He is not liable for a tort, but he still must pay for actual damage caused.
What is transferred intent?
Intent can transfer for torts involving assault, battery, false imprisonment, trespass to land, and trespass to chattels.
What are the elements of negligent infliction of emotional distress (NIED)?
(1) the defendant is negligent,
(2) the plaintiff suffers physical symptoms from its emotional distress, and
(3) the plaintiff is either in the zone of danger or the plaintiff witnesses a negligent injury to a person closely related to the plaintiff.
Note: There are special cases where physical symptoms are not necessary to prove. These include cases where a corpse is mishandled and cases involving erroneous reports of a relative’s death to a plaintiff.
What must a plaintiff prove in a strict liability case?
In a strict liability case, the plaintiff must prove duty (which is, in this case, absolute), causation, and harm.
Tip: in a strict liability case, whether the defendant was acting reasonably is immaterial.
Define abnormally dangerous activities.
An abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a matter of common usage in the community.
Tip: examples include blasting, mining, explosives, etc.
What is strict liability in relation to wild animals?
A defendant is strictly liable for foreseeable harms caused by wild animals. Examples of wild animals include: skunks, bears, and monkeys.
Tip: strict liability is not available to a trespasser (the trespasser can sue under a theory of negligence but not strict liability).
Tip: Negligence must be shown if the harm is caused by a domestic animal (i.e., a pet or farm animal). Examples include dogs, cats, sheep, honey bees, rabbits, horses, and cows.
What are the requirements for products liability?
The defendant must be a merchant. The product must be defective at the time it left the defendant’s hands.
What are the types of defects in products liability?
Manufacturing defect: the product departs from its intended design and it is more dangerous than expected.
Design defect: The product comes out exactly as the manufacturer intended. However, there is an alternative design that is safer, practical, and cost-effective.
Lack of warning/instructions: No warning: If there’s a hidden risk, there should be a warning. If risk is obvious, no warning necessary. Yes warning: examine the size of the warning, color, if there are pictures, etc. to see if it’s adequate.
Who bears liability regarding products liability?
Everyone in the chain of distribution is liable under a strict products liability theory.
Tip: pay careful attention to the call of the question to see if you are supposed to apply a strict liability standard or another standard (e.g., negligence).
What are the defenses regarding products liability?
Assumption of risk, comparative negligence, or unforeseeable misuse of a product.
What are the requirements for general defamation?
General defamation requires four elements:
1. a defamatory statement about the plaintiff,
2. an unprivileged publication of the statement,
3. fault (at least negligence), and
4. damages.
In libel cases (cases where the defamatory statement is written or recorded), damages are presumed.
What are the four slander per se categories?
(CLUB)
(1) committing a crime of moral turpitude,
(2) suffering from a loathsome disease,
(3) unchastity if the plaintiff is a woman, or
(4) something that reflects badly on the plaintiff’s business or profession.
What must a public figure prove in defamation cases?
If the plaintiff is a public figure, he also must prove that the statement is false and that the defendant acted with malice.
Tip: Memorize the definition of malice for public figure cases.
What is malice in the context of defamation?
Malice is present when the defendant knows the statement is false or acts with reckless disregard as to whether it is true or false.
What are the defenses to defamation?
- Consent
- Truth
- Privileges
Define the privileges regarding defenses for defamation.
Privileges can be absolute (made during legislative, executive, or judicial proceedings) or qualified (when candor is encouraged).
Tip: common examples of when a defendant may have a qualified privilege is when he is speaking as a past employer of the plaintiff for a job reference or if he is speaking to a police officer investigating a crime
Which are the invasions of privacy in regards to defamation?
(FAID)
* False light
* Appropiation
* Intrusion
* Disclosure
Define false light in invasion of privacy.
Defendant widely spreads facts about the plaintiff, which places the plaintiff in a false light that would be offensive to a reasonable person.
What constitutes appropriation in invasion of privacy?
Defendant uses the plaintiff’s name or likeness in an unauthorized way to advertise a product.
What is intrusion in invasion of privacy?
Defendant intentionally pries or intrudes into a private place in a way that would be offensive to a reasonable person.
What is disclosure in invasion of privacy?
Defendant widely disseminates or publishes private information about the plaintiff that would be highly offensive to a reasonable person.
What defenses can be used against the invasions of privacy?
Consent is a defense to all four privacy torts. Defamation privileges apply to false light and disclosure.
What are the requisites for misrepresentation?
(1) There is a material misrepresentation by the defendant,
(2) the defendant knew his statement was false or said it with reckless indifference to the truth,
(3) he had the intent to induce the misrepresentation, and
(4) the plaintiff relied on it and suffered pecuniary damage.
Define private nuisance.
The defendant uses his property in a way that causes a substantial unreasonable interference with the plaintiff’s use or enjoyment of his land.
Tip: Do not take into account the plaintiff’s peculiar use of his land. Ask if the defendant’s use of his land would substantially interfere with an average member of the community’s use and enjoyment of his property
What is public nuisance?
Defendant unreasonably interferes with the health, safety, or morals of a community. In order to successfully sue, the plaintiff must suffer unique damages
What constitutes intentional interference with business relations?
(1) There is a valid business relationship or expectancy that existed between the parties that the defendant knew of;
(2) the defendant intentionally coerced one of the parties to terminate the relationship, breach a contract, or withhold a business expectancy;
(3) the defendant was not authorized to interfere; and
(4) the interference resulted in damages.
