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NY/ MBE Bar Study > Torts 2.0 > Flashcards

Torts 2.0 Flashcards

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MBE flashcards
1
Q

What are the 3 elements of defamation?

A
  1. statement by D about P
  2. Published (to at least 1 other person other than P, regardless of mistake)
  3. Damages (types depend on whether slander (oral- need proof of economic harm)/ libel (written- no damages requried))
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2
Q

What 5 types of defamation via slander DO NOT require proof of economic damages?

A

When there is slander per se including:

  1. statements about business incompetence
  2. criminal/ moral turpitude
  3. loathsome disease
  4. sexual misconduct
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3
Q

What are the 5 elements of a misrepresenation fraud tort claim?

A
  1. misrepresentation of fact by D
  2. intent/ recklessness (good faith/ reasonable misstatement ok)
  3. purpose of statement to induce P’s reliance
  4. P does rely
  5. Damages (economic, $)
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4
Q

What are the 4 elements of an intentional interference w/ business relations claim?

A
  1. valid K
  2. D knows of K
  3. D induces 3rd party to breach/ abandon K
  4. there is subsequent breach
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5
Q

What are the 2 key parts of the tort of false imprisonment?

A
  1. D engages in act of restraint/ confining AND

2. P confined in bounded area (must be locked in space w/o reasonable means of escape)

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6
Q

What are 4 signs of outrageous conduct for IIED?

A
  1. repetitive/ continuous conduct
  2. D is common carrier/ innkeeper (ex: too ugly to stay here)
  3. P member of fragile class (preggo, old)
  4. deliberate explotation of known sensitive/ phobia
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7
Q

What are the 2 key parts of the tort of assault?

A
  1. actual apprehension

2. immediate offensive contact

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8
Q

What 2 factors must be shown to constitute tort of battery?

A
  1. D engaged in harmful/ offensive contact &

2. contact was w/ P’s person (or anything connected to P, ex: horse touching, holding, carrying)

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9
Q

What is an offensive touching for a battery?

A

contact that is unpermitted by a person of ordinary sensitivity

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10
Q

What are the 2 parts of the tort of intentional infliction of emotional distress (IIED)?

A
  1. D’s outrageous conduct

2. causes P’s severe distress

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11
Q

What 3 types of P’s lack capacity to consent to tortious conduct?

A
  1. intoxicated
  2. mentally ill
  3. children (can consent to age-appropriate conduct i.e. sports, not sex)
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12
Q

What happens if a D exceeds scope of consent?

A

D will be found liable

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13
Q

Is an honest mistake or good faith belief a defense to trespass to land?

A

NO, all required is intent to enter land

-same true for trespass to chattels and conversion

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14
Q

What are examples of a physical invasion? (trespass to land)

A
  1. throw/ propel tangble object

2. intangible force (ex. light, sound, smell, not physical invasion)

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15
Q

What is the key distinction b/w trespass to chattels and conversion?

A

chattels applied to small harm

conversion is substantial interference w/ personal property (ex. D lost/ refuses to return property)

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16
Q

What are the 3 main defenses to claims for physical harms?

A
  1. consent
  2. priviledges
  3. immunities (necessary for property torts)
17
Q

What are the 2 types of consent?

A
  1. express (oral/ written)
  2. implied
    - custom/ usage (subway)
    - D’s reasonable interpretation of P’s overt conduct (objective standard)
18
Q

What is public necessity immunity?

A

D invades P’s property to protect community as a whole (D escaped lion on P’s land), not liable

19
Q

What is private necessity immunity?

A

D invades P’s property in an emergency to protect D’s own interest, liable for damages done to P’s property (no nominal/punitive damages)

20
Q

What are the 4 elements of a prima facie case for negligence?

A
  1. legal duty
  2. breach of duty
  3. actual & proximate causation
  4. damages
21
Q

What are the 3 types of protective priviledges?

A
  1. self-defense
  2. defense of others
  3. defense of property
22
Q

What are 2 exceptions to the general rule that there is no duty of care to unforeseeable P’s?

A
  1. rescuers

2. prenatal/ fetal injuries

23
Q

What is the main exception to the rule that there is generally no duty of care to conduct of 3rd parties?

A

duty arises where a special relationship exists between D & 3rd party (ex. parolee and parole officer, child and parent)
-standard: D knows/ shouldve known actor likely to cause bodily harm to others

24
Q

Do parents owe a special duty to children to excercise due care in supervising day-to-day activities?

A

NO

-does have duty to protect from foreseeable harm that is subject to parents control

25
Q

What 2 factors must a D show to invoke a protective privilege?

A
  1. proper timing (imminent/ inprogress)
  2. reasonable belief tort is about to be committed
    - > reasonable mistake will not negate privilege
26
Q

What is the rule of symmetry/ proportionality? (protective privilege)

A

D must limit response to force necessary under the circumstances

27
Q

What type of duty is owed to an undiscovered trespasser?

A

No duty owed, undiscovered trespasser always loses neg claim

28
Q

What are the 2 types of discovered trespassers?

A

Trespassers occupier has

  1. actual knowledge of
  2. anticipated trespassers (past pattern of regular trepass)
29
Q

When is deadly force permitted?

A

When human life is in jeopardy (or reasonable belief)

-not allowed to protect property

30
Q

Who does a person hold a general duty to?

A

foreseeable victims of his carelessness

31
Q

What is the common standard of care a person should observe?

A

person should act like reasonably prudent person would in similar circumstances (objective standard)

32
Q

What are the 3 situations where the general standards of care could be different?

A
  1. D w/ superior knowledge (raise standard)
  2. child D (under 4, incapable of neg; 4-18, use subjective standard unless child engaged in adult activitiy)
  3. professional D (avg member of profession- apples to apples)
  4. duty owed by occupiers of land
33
Q

Generally, what is the duty an occupier owes to people who come on their land?

A

duty to protect against all known, man-made deathtraps on land

NY/ MBE Bar Study (25 decks)

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