TORTS Flashcards
What are the elements of Intentional Torts?
1) voluntary ACT
2) INTENT –> desire to bring about action OR knowing with substantial certainty it would result
3) CAUSATION –> but for
What is Battery?
Battery is the 1) INTENTIONAL INFLICTION of harm 2) HARMFUL or OFFENSIVE/UNPERMITTED CONTACT 3) to P’s PERSON.
What constitutes Assault?
Assault is an 1) INTENTIONAL ACT 2) that causes P to be placed in REASONABLE APPREHENSION of imminent harmful or offensive contact to P’s person.
What is False Imprisonment?
False Imprisonment is an 1) INTENTIONAL ACT 2) to CONFINE OR RESTRAIN P in BOUNDED AREAS 3) P is AWARE of confinement or harmed by it.
What are the elements of Intentional Infliction of Emotional Distress (IIED)?
IIED is 1) INTENTIONAL or RECKLESS CONDUCT 2) that was EXTREME and OUTRAGEOUS 3) that causes extreme emotional distress 4) P actually suffers severe emotional distress.
What is Trespass to Land?
Trespass to Land occurs when D 1) INTENTIONALLY INTERFERES or INVADES P’s interest in land 2) without permission.
What is Trespass to Chattel?
Trespass to Chattel occurs when D 1) INTENTIONALLY INTERFERES with P’s use of PERSONAL PROPERTY AND 2) the damage is small.
What is Conversion?
Conversion occurs when D 1) INTENTIONALLY INTERFERES with P’s PERSONAL PROPERTY 2) and damage is substantial.
What is Consent?
Consent can be EXPRESS/ACTUAL or IMPLIED; capacity of P to give consent is required.
What is Self-defense?
Self-defense: D is NOT liable if she 1) REASONABLY BELIEVES P was going to harm him/other AND 2) used REASONABLE FORCE necessary to prevent harm.
What is Defense of Property?
Defense of Property allows use of REASONABLE FORCE to defend property BUT NOT deadly force.
What is Necessity?
Necessity: D is NOT liable if D’s intrusion was REASONABLY NECESSARY to prevent serious harm to herself/3rd parties/property.
What is Recapture of Chattels?
Owner may take prompt action and use reasonable, non-deadly force to recover chattel; must first make demand to return unless dangerous/futile.
What is Shopkeeper’s Privilege?
Shopkeeper’s Privilege allows a merchant to 1) TEMPORARILY detain 2) for investigatory purposes if there was a 3) REASONABLE BELIEF OF THEFT.
What are the elements of Negligence?
Plaintiff must show 1) DUTY of CARE 2) BREACH of that DUTY 3) CAUSATION 4) DAMAGES.
What is Duty of Care?
Duty of Care is the legal duty to behave like a REASONABLY PRUDENT PERSON in the same circumstance to all FORSEEABLE P’s.
What is the Reasonably Prudent Person Standard?
Everyone owes a duty to act as a reasonable person would under the same circumstances; varies for children, professionals, and disabled.
What is Breach of Duty?
Breach of Duty occurs when a person does not behave as an objectively, reasonably prudent person would.
What is Negligence Per Se?
Negligence Per Se applies when 1) D violated a statute without excuse 2) P was in the class of people the statute is trying to protect 3) P’s injury was what the statute was trying to prevent.
What is Res Ipsa Loquitur?
Res Ipsa Loquitur can be used when 1) the injury is the kind that does not happen in the absence of negligence 2) other causes can be eliminated.
What is Causation?
Causation requires P to show D’s conduct was both actual and proximate cause of P’s injuries.
What is the Eggshell Skull Rule?
D takes his victim as he finds him; D is liable for all harm suffered by P even if P had unforeseeable, pre-existing conditions.
What constitutes Harm/Damages?
Harm must show damages; 1) personal injury 2) property damages.
What is Comparative Negligence?
Comparative Negligence allows P to recover even if 99% at fault; damages are reduced by % of P’s own fault.
What is Contributory Negligence?
Contributory Negligence bars P’s claim if he contributed to his injury, with exceptions for last opportunity and recklessness.
What is Assumption of the Risk?
Assumption of the Risk denies P’s recovery if 1) P knew or should have known of the risk 2) P voluntarily faced that risk.
What is the Standard of Care owed to Licensees?
Licensees are owed reasonable care and must be warned of known dangers.
What is the Attractive Nuisance doctrine?
Landowners owe a duty to child trespassers to make premises reasonably safe or warn of dangers.
What is the Landlord’s duty?
Landlords generally have no duty to maintain leased premises but must warn of latent defects.
What is Negligent Infliction of Emotional Distress?
Negligent Infliction of Emotional Distress occurs in Near Miss Cases and Bystander Claims under specific conditions.
What is Respondent Superior?
Employer is liable for an employee’s negligent acts if acting within the scope of their relationship.
What is Direct Liability?
Direct Liability occurs when an employer is negligent in supervising employees or hiring.
What is Joint & Several Liability?
Joint & Several Liability allows P to recover the entire amount from any D if multiple Ds caused a single indivisible harm.
What is Indemnification?
Indemnification allows a passive tortfeasor to recover full amount paid to P from an active tortfeasor.
What are the elements of Defamation?
Defamation requires P to show 1) published statement 2) false defamatory statement 3) of and concerning P 4) harmful to P’s reputation.
What are the Invasion of Privacy Torts?
Invasion of Privacy Torts include FAID.
What must P show for a defamation claim?
1) D published a false defamatory statement to a 3rd person, 2) concerning P, 3) that is harmful to P’s reputation, 4) causing special harm.
For public figures, P must also prove 5) actual malice.
What are the types of invasion of privacy torts?
1) False light, 2) Commercial appropriation, 3) Intrusion into one’s privacy, 4) Public disclosure of private facts.
Would it be highly offensive to a reasonable person?
What constitutes a private nuisance?
A substantial, unreasonable interference with another person’s use or enjoyment of their property that is offensive, inconvenient, or annoying to the average person in the community.
What is a public nuisance?
Unreasonable interference with the health, safety, or property rights of the general public, causing injury to the public at large.
What is strict liability?
Liability without fault; D is held liable even if all care was exercised.
Applies to abnormally dangerous activities and certain animal-related incidents.
What are the elements of strict product liability?
1) D is a commercial supplier, 2) product was defective, 3) defect existed when the product left D’s control, 4) defect caused P’s injuries when used foreseeably.
What are the types of product defects?
1) Manufacturing defect, 2) Design defect, 3) Failure to warn.
P must show how each defect caused harm.
What is the negligence theory in product liability?
P may establish liability by showing 1) Duty of care, 2) Breach of duty, 3) Causation, 4) Damages.
What is an express warranty?
A statement of fact regarding goods sold that becomes part of the bargain.
What are implied warranties?
1) Merchantability: goods are fit for ordinary purpose, 2) Fitness for a particular purpose: seller knows buyer’s purpose and buyer relies on seller’s judgment.
