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Torts Flashcards

1
Q

General Duty

A

Act like a reasonably prudent person to foreseeable plaintiffs

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2
Q

What is the duty of a landowner to an unknown trespasser?

A

No duty of care

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3
Q

What is the duty of a landowner to a known trespasser?

A

Duty to warn of known dangers

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4
Q

What is the duty of a landowner to a licensee (social guest)?

A

Duty to warn of known dangers

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5
Q

What is the duty of a landowner to an invitee (business guest)?

A

Duty to warn of danger, to inspect and make premises safe

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6
Q

A parent’s duty regarding their child

A

A parent’s duty is to supervise or control their child if they knew or should have known that the child would cause harm

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7
Q

The general duty to aid or rescue

A

No duty to rescue except if someone tries to get involved then duty to exercise reasonable care

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8
Q

What are examples of special relationships that create a duty to aid?

A
  • Common carrier
  • Innkeeper/guest
  • Teacher/student
  • Employer/employee
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9
Q

What is the duty of a child?

A

Act like other children of the same age, experience, and maturity

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10
Q

What is the duty of a professional?

A

Act like a similar professional with the same training, education, and customs in that community

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11
Q

Define

Breach

A

The failure to comply with the duty of care

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12
Q

What are the two types of causation needed?

A
  • Actual cause - but for test
  • Proximate cause - foreseeability
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13
Q

What damages must occur for a plaintiff to recover in a negligence case?

A

Actual physical injury must happen

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14
Q

The difference between intervening and superseding causes

A
  • Intervening - foreseeable event, defendant will pay for all damages
  • Superseding - unforeseeable and cuts off liability
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15
Q

Superseding Cause examples

A
  • Act of God
  • Intentional tort
  • Criminal act
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16
Q

Define

Negligence Per Se

A

Occurs when there is a violation of an ordinance/statute protecting a specific class of people

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17
Q

What are the elements of Res Ispa Liquitor?

A
  • Occurrence does not normally happen absent negligence
  • Defendant was in exclusive control

Created an inference of negligence

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18
Q

Define

Attractive Nuisance

A

An artificial condition on land causing children to trespass that possesses an unreasonable risk of harm

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19
Q

What is Pure Comparative Negligence?

A

Plaintiff can recover, but damages will be reduced by the percentage of their fault

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20
Q

What is Modified/Moderate Comparative Negligence?

A

Plaintiff cannot recover if they are more than 50% at fault

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21
Q

What is Contributory Negligence?

A

Plaintiff cannot recover if at any percent of fault

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22
Q

What is the exception to Contributory Negligence?

A

Last clear chance rule allows recovery if defendant had the last clear chance to avoid the accident

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23
Q

When does the plaintiff have Assumption of Risk?

A

When the Plaintiff has knowledge and appreciation of the danger and proceeded anyway

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24
Q

Define

Joint and Several Liability?

A

Two or more defendants caused a single accident, all are liable for all damages

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25
# Define Vicarious Liability?
An employer is liable for the negligent acts of their employees acting within the scope of employment
26
What is Indemnification?
The person responsible did nothing wrong but hired the wrong person
27
# Define Battery
Intentionally causing harmful or offensive contact to another or anything connected to that person
28
# Define Assault
Intentionally causing reasonable apprehension of an imminent harmful or offensive contact
29
What is Trespass to Chattel?
Intentionally interfering with the use of another's property
30
# Define Conversion
Intentional act which substantially interferes with another's property ## Footnote The defendant does not have to take the property with the intent to destroy it, just when it was in their position the item was destroyed or lost
31
What is Trespass to Land?
Intentionally entering the land of another; no damage needs to occur
32
What is Intentional Infliction of Emotional Distress (IIED)?
Intentional/reckless extreme and outrageous conduct causing severe emotional distress ## Footnote Plaintiff does not need to suffer physical harm only emotional distress
33
What is Direct theory of IIED?
When there are only two people - the plaintiff and defendant
34
When can a bystander sue for IIED?
* if the bystander is a close family member of the victim * the defendant knows that the bystander is there, and * the bystander suffers emotional distress ## Footnote If the bystander is not a close family member then they need to suffer a phsyical harm
35
# Define False Imprisonment
* Intentional act placing the plaintiff in a confined area with no means of escape; and * Plaintiff is aware of the confinement ## Footnote The facts will say that the plaintiff knew of the confinement
36
What is the Shop-keeper privilege?
Merchant can detain a person for a reasonable amount of time if they have reasonable suspicion of stealing
37
# Define Negligent Trespass to Land
Negligently entering the land of another; liable if there is damage
38
What is Negligent Infliction of Emotional Distress (NEID)?
Negligent conduct causing severe emotional distress and physical harm
39
Bystander NEID
Bystander must be a close family member and emotional distress is enough
40
What is Mishandling Corpse?
Negligent handling of a dead body causing emotional distress to the plaintiff
41
What is Transferred Intent?
* Liability when the defendant intentionally acts towards one person but harms another; * Intentionally acts to cause one tort, but causes another tort
42
When to apply a defense on the MBE?
Only apply a defense if one is presented in the facts
43
# Define Consent
Implied or express consent to contact; cannot exceed the scope
44
What is Self Defense?
Reasonable belief that someone will hurt you; use only same degree of force ## Footnote Use only same degree of force
45
What is Defense of Others?
Reasonable belief it is necessary to defend a third person
46
What is Defense of Property?
Reasonable force to defend property if there is a reasonable belief of threat ## Footnote Cannot use deadly force unless there is threat to someone's life
47
# Define Private Necessity
It is necessary to trespass on plaintiff's property to save defendant's life ## Footnote Defendant will be liable for damages
48
# Define Public Necessity
Necessary to trespass to prevent public harm ## Footnote Defendant will not be liable for damages
49
# Define Private Nuisance
The unreasonable interference with the use and enjoyment of another's property ## Footnote The interference must be unreasonable based on an objective standard (a normal person).
50
Can a plaintiff with an allergy/special sentivity sue for private nuisance?
No
51
# Define Public Nuisance
Unreasonable interference that affects the public at large ## Footnote A government official brings the suit on behalf of the community.
52
What must a private individual show for public nusiance?
special harm/damages
53
Defamation
A false, publicized statement of or about the plaintiff that hurts their reputation and causes damage ## Footnote The statement must be heard and understood by a third person.
54
Are special damages required for libel?
No ## Footnote Libel = written statement
55
What is needed for slander?
Special Harm ## Footnote Slander = spoken statement
56
What is slander per se?
Four kinds of statements where special damages are not required: * Statement on one's profession or business * Statement on the chastity of a woman * Statement accusing someone of a crime or felon * Statement accusing someone of having a loathsome disease (STD) ## Footnote These statements are considered so harmful that damages are presumed.
57
What is the standard of proof for defamation of a private individual?
Negligence as to the truth
58
What is the standard of proof for defamation of a public individual?
Actual malice ## Footnote The reckless disregard of the truth.
59
Absolute defense to defamation
Truth
60
What is absolute privilege in defamation cases?
Statements made in the course of any official proceedings ## Footnote This provides complete immunity from defamation claims.
61
What is qualified privilege?
Statements about a matter that appeared necessary to protect the defendant's interest or public interest ## Footnote The defendant must have made the statement honestly and had a reasonable belief it was true.
62
# Define False Light
Portraying someone in a false light ## Footnote It involves something that is not true but doesn't necessarily hurt their reputation.
63
# Define Appropriation
The unauthorized use of the plaintiff's name or likeness for profit ## Footnote This typically involves commercial gain.
64
What does public disclosure of a private matter entail?
Publicly disclosing something that a person would have an expectation of privacy ## Footnote Examples include medical records, but if the information was newsworthy, it may not be considered private.
65
What is intrusion upon seclusion?
Physical invasion of a private space
66
# Define Negligent misrepresentation
Defendant negligently made a misleading statement and the plaintiff relied on it, causing damages ## Footnote A special relationship between the defendant and plaintiff must exist.
67
What is intentional misrepresentation?
Defendant misrepresents a material fact with intent to induce reliance ## Footnote This leads to damages when the plaintiff relies on the false information.
68
Elements of tortious interference with a contractual relationship
* Defendant knows a contract exists, * intentionally induces one party to breach the contract, and * causes damages
69
What constitutes malicious prosecution?
Starting a criminal proceeding without probable cause and for no reason other than to bring someone to justice ## Footnote The proceeding must be dismissed in favor of the accused.

MBE Rules (7 decks)

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