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Bar Prep Summer 2014 > Torts > Flashcards

Torts Flashcards

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1
Q

Vicarious Liability

A

Employers are vicariously liable for the negligence of their employees committed while the servants are acting within the scope of their employment.

Liable for negligence of an independent contractor if: engaged in an inherently dangerous activity, or the duty is non-delegable.

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2
Q

Vicarious Liability for Intentional Torts

A

Typically no liability, unless: force is authorized in employment, friction is generated by employment, the employee is furthering the business of the employer, or a parent/child relationship exists

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3
Q

Assault

A

Occurs when a defendant intentionally commits an act that places a plaintiff in reasonable apprehension of imminent harmful or offensive contact.

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4
Q

Battery

A

Occurs when a defendant intentionally commits an act with intent to cause harmful or offensive contact, or apprehension of harmful or offensive contact, that results in harmful or offensive contact with plaintiff’s person or something closely associated

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5
Q

False Imprisonment

A

Occurs when a defendant intentionally causes plaintiff to be confined to bounded area, and plaintiff is either aware of confinement or harmed by it.

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6
Q

Trespass to Land

A

Occurs when a defendant intends to physically invade land that is in the exclusive possession of another, and directly or indirectly invades the land. No requirement of harm or intent to invade, just intent to do the act that invades

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7
Q

Trespass to Chattels

A

Occurs when a defendant’s intermeddling with or disposition of plaintiff’s property causes harm or loss of use to the property.

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8
Q

Conversion

A

Occurs when a defendant’s intermeddling with or dispossession of the chattel is of such seriousness that it warrants payment of full value of the chattel.

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9
Q

Intentional Infliction of Emotional Distress (IIED)

A

Occurs when a defendant intends to cause severe emotional distress through extreme and outrageous conduct, which causes plaintiff to suffer severe emotional distress. No requirement of physical harm.

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10
Q

Consent (Defense to IT)

A

Plaintiff must have the legal capacity to consent; can either be express or implied. If conduct exceeds the reasonable scope of consent, then no longer a defense.

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11
Q

Self-Defense (Defense to IT)

A

A person may use proportionately reasonable non-deadly force if they reasonably believe that such force is necessary to protect himself from imminent bodily harm.

May only use deadly force if the actor reasonably believes that such force is necessary to protect himself from imminent death or serious bodily harm.

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12
Q

Defense of Others (Defense to IT)

A

May use proportionately reasonable, non-deadly or deadly force to defend a victim, to the extent that the victim would be privileged to use the force under the circumstances. Reasonable mistake will be protected.

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13
Q

Defense of Property (Defense to IT)

A

Reasonable, non-deadly force may be used if such force is imminently necessary to prevent or terminate an unprivileged intrusion and, prior to the use of such force, the actor demands that the intruder leave or desist.

Deadly force is never permissible.

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14
Q

Crime Prevention

A

A person or police officer may non-deadly force to the extent reasonably necessary to prevent commission of a felony, riot, or serious breach of the peace.

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15
Q

Shopkeeper’s Privilege (Defense to False Imprisonment)

A

A shopkeeper can detain a person for a reasonable time if:

  1. Reasonable ground to believe a theft has occurred
  2. Holds plaintiff for a reasonable time to ascertain the facts
  3. In a reasonable manner
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16
Q

Privilege of Arrest

A

Police officer can make a warrantless felony arrest if they have PC to believe a felony has been committed; deadly force if felon threatens death or serious bodily harm. Private citizen may only make a warrantless felony arrest if the felony has been committed and they have reason to believe the person committed the felony.

Warrantless misdemeanor arrests permissible if misdemeanor was a breach of the peace and committed in their presence.

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17
Q

Necessity (Defense to IT)

A

Public necessity: applies when D invades P’s property in an emergency situation to protect the community; not liable for damages.

Private necessity: applies when D invades P’s property in an emergency for personal benefit; liable for damages caused.

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18
Q

Defamation (In General)

A

A defamatory statement, of and concerning the plaintiff, that is published to a third party who understood the statement, and the statement harms the reputation of the plaintiff.

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19
Q

Libel

A

Written or recorded in some other form; defamatory on its face and do not need to prove special damages

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20
Q

Slander Per Se

A

Spoken, and either:

  1. Reflects adversely on plaintiff’s abilities in his business,
  2. Indicates plaintiff is suffering from a foul or loathsome disease,
  3. Alleges plaintiff is or was guilty of a crime involving moral turpitude, or
  4. Imputes unchaste behavior to a woman or impotence to a man

-Do not need to prove damages to recover

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21
Q

Slander

A

Requires proving of special harm in order to recover damages.

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22
Q

Of or Concerning the Plaintiff (Defamation)

A

Reference to the plaintiff by name or other identifiable characteristics

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23
Q

Publication to a Third Party (Defamation)

A

The statement must have been communicated to a third party, capable of understanding the statement.

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24
Q

Private Figure + Public Damages (Defamation)

A

Need to show at least negligence to recover; however, will still have to prove damages unless done with actual malice (knowledge of falsity or reckless disregard), in which case damages are presumed

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25
Q

Public Figure (Defamation)

A

Need to show actual malice (knowledge of falsity or reckless disregard) to recover.

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26
Q

Private + Private (Defamation)

A

Presumed damages may be recovered, even if actual malice is not established.

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27
Q

Absolute Privilege (Defamation)

A

From one spouse to another, compelled by law to be published, accurate report of public proceedings made by broadcasters or other media outlets, in a public record by judges/jurors/counsel, or made in proper discharge of a law or government official

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28
Q

Qualified Privilege (Defamation)

A

Statement is made in good faith, with a reasonable belief to its truth, to a party who requested the information, and it is relevant to the inquiry or was made to defend a publisher’s actions

-Can be lost through excessive use or malice

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29
Q

Intrusion (Privacy Tort)

A

Intrusion upon seclusion of a plaintiff in a way that would be highly offensive to the average person.

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30
Q

Public Disclosure of Private Facts (Privacy Tort)

A

Occurs where defendant made a widespread dissemination of private information about a plaintiff, not of legitimate public concern, that would be highly offensive to the average person.

-Defamation privileges apply

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31
Q

False Light (Privacy Tort)

A

Occurs where a defendant attributes to plaintiff views he does not hold or actions he did not take, that would be highly offensive to a reasonable person.

32
Q

Commercial Appropriation

A

Defendant uses plaintiff’s name or images for a commercial purpose, without permission.

33
Q

Abuse of Process (Tort)

A

Use of a legitimate process for a wrongful purpose, and/or an act or threat against plaintiff to accomplish the harmful purpose, and the harm to plaintiff occurs.

34
Q

Malicious Prosecution (Tort)

A

Initiation of civil or criminal proceedings without probable cause, for a wrongful purpose, that results in termination on the merits that is favorable to plaintiff, but harm still results

35
Q

Interference With Business Relations

A
  1. Existence of a valid contractual relationship between plaintiff and third party, or valid business expectancy
  2. D’s knowledge of the relationship or expectancy
  3. Intentional interference by D inducing a breach or termination of relationship or expectancy
  4. Damages
36
Q

Intentional Misrepresentation (Tort)

A

D made a false representation concerning a PRESENTLY EXISTING material fact, that he either knew was false or made recklessly, for the purpose of inducing the other party to act on it, the other party acted in justifiable reliance, and was injured.

-No general duty to disclose a material fact, unless: P and D are in a fiduciary relationship, selling real property and knows P is unaware and cannot discover a defect, or has spoken and utterance deceives the plaintiff.

37
Q

Negligent Misrepresentation (Tort)

A

Misrepresentation by defendant in a business or professional capacity, breach of duty towards plaintiff, causation, justifiable reliance, damages.

38
Q

Negligence Per Se

A
  1. Statute or ordinance is criminal in nature (includes traffic infractions),
  2. P is a member of the class of persons intended to be protected by the statute, and
  3. Claimed harm is of the type intended to be protected against by the statute.

-Only establishes duty and breach

39
Q

Duty (Andrews)

A

Duty to exercise reasonable prudence in performance of all activities is owed to any person that could be foreseeably injured by D’s failure to exercise reasonable care

40
Q

Duty (Cardozo)

A

D owes a duty of care to anyone who is within the “zone of danger”

41
Q

Rescuers (Negligence)

A

Rescuers are owed a duty of care if the rescue is not wanton, and D’s negligence caused the peril; person being rescued has a duty not to negligently put themselves in harms way.

-Professional rescuers cannot recover for injuries caused in the performance of the rescue.

42
Q

Duty to Trespassers

A

Undiscovered trespassers: no duty of care, except same as to those off premises: unreasonably dangerous artificial conditions.

Discovered: includes trespassers owner knows or should reasonably know about; duty to warn of or make safe known conditions, if nonobvious and highly dangerous

43
Q

Duty to Invitee

A

Invitee enters the premises to confer economic benefit to the possessor, or the property is open to the public at large.

Liable if: owner knows or should have known of the unreasonably dangerous, concealed condition, that could have been discovered through reasonable inspection.

INSPECT, DISCOVER, REPAIR

44
Q

Duty to Licensee

A

Licensee is a social guest.

Liable if: owner knows or should know of unreasonably dangerous, concealed possession, of which possessor has prior knowledge.

REPAIR AND WARN.

45
Q

Duty to Children (Attractive Nuisance)

A

Must exercise reasonable prudence to protect trespassing children from artificial conditions, where owner:

  1. Knows or should know of a dangerous condition
  2. Knows or should know that children frequent the vicinity
  3. Condition is likely to cause injury because of the child’s inability to appreciate the risk
  4. Expense of remedying the situation is slight compared to magnitude of risk.
46
Q

Duty of Lessor of Land

A

Avoid an unreasonable risk of harm to others, caused by dangerous conditions in the portions of land over which he has retained control. Must warn lessee of existing defects that they are not likely to discover.

47
Q

Duty of Professional

A

Must exercise the skill or knowledge normally possessed by an average professional in good standing in the field, performing similar services.

48
Q

Duty of Children

A

Held to the subjective standard of a child of like age, intelligence, and experience acting under similar circumstances; children may be held to an adult standard if they are engaging in an adult activity.

49
Q

Negligent Infliction of Emotional Distress (NIED)

A

A plaintiff may recover for NIED if he suffered distress that manifested itself in physical symptoms, and distress was caused by a threat of physical impact, because plaintiff was in the zone of danger.

-If outside the zone of danger: P and injured person must be closely related; P is present at the scene, and P personally perceived or observed the event.

50
Q

Breach

A

A defendant breaches his duty of care when his conduct falls short of that level required by the applicable standard of care.

51
Q

Actual Cause

A

But-for causation

52
Q

Concurrent Causes

A

When several acts combine to cause the injury, but none of the acts standing alone would have been sufficient, actual cause is proven if the injury would not have occurred but-for D’s actions

53
Q

Joint Causes

A

When several acts combine to cause the injury, but any one of them would have been sufficient alone to cause the harm, causation is satisfied if D’s actions were a substantial factor in causing injury.

54
Q

Proximate Cause

A

D is liable for all foreseeable harms that were the direct result of D’s negligent act, even if the extent or severity was not foreseeable.

Acts that are always foreseeable: criminal acts of others, intentional torts, foreseeable acts of god, intervening medical malpractice, negligent rescue, subsequent disease or accident

55
Q

Contributory Negligence + Defenses

A

Contributory negligence is a complete bar to recovery.

Exceptions: last clear chance doctrine (the person with the last clear chance to avoid an accident and fails to do so will be liable); assumption of risk (P knew of the risk and voluntarily proceeded in the face of it)

56
Q

Comparative Negligence

A

Pure: reduces recovery by the percentage attributable to the plaintiff; non-pure: recovery barred if P’s fault exceeds 50%

57
Q

Public Nuisance

A

Interference in a common public interest, such as public health, safety, convenience, or comfort. In order for a private person to bring suit, they must have suffered harm different in kind from that of the general public.

-If seeking injunctive relief, hardships will not be balanced if D’s conduct was willful.

58
Q

Private Nuisance

A

Substantial (offensive or inconvenient to the average person) and unreasonable (harm outweighs benefit) invasion or interference with another’s interest in the use or enjoyment of his land.

59
Q

Wild Animals (Strict Liability)

A

Strictly liable for harm caused by wild animals, if the harm caused is that which makes the animal dangerous. Safety precautions are legally irrelevant.

60
Q

Domestic Animals (Liability)

A

No strict liability, unless knew or had reason to know of propensity of the animal to cause harm,or damage done by trespass of animals (ex: cows escape and trample neighbor’s yard)

61
Q

Abnormally Dangerous Activity

A

The carrying on of an abnormally dangerous activity, that causes harm, the risk of which is what makes the harm abnormally dangerous. Safety precautions are legally irrelevant; consider things such as the degree of risk of harm, gravity of harm, and inability to make safer.

62
Q

Strict Products Liability

A
  1. D is in the business of selling or otherwise distributing products,
  2. D sells a defective product (makes product dangerous beyond expectation of ordinary consumer),
  3. The product has not been altered since it left D’s hands, and 4. The use or foreseeable misuse was the proximate cause of P’s injuries.
63
Q

Manufacturing Defect (Products Liability)

A

Occurs when a specific product departs from its intended design or differs from all others that came off the assembly line, in a way that could make it more dangerous than consumers would expect (ex: finding a worm in a bottle of Coke)

64
Q

Design Defect (Products Liability)

A

Occurs when a product is made identically according to manufacturing specifications, but it is dangerous beyond the expectations of the consumer, and cannot be made safe by a warning.

65
Q

Risk-Utility Theory (Design Defect - Strict Products Liability)

A

Plaintiff must prove that there is an inherently unreasonable risk because the risk of harm is significant, or that there is little utility to the product.

66
Q

Alternative Design Theory (Design Defect - Strict Products Liability)

A

Plaintiff must show that there was a reasonable and feasible alternative design that was both economically feasible and safer.

67
Q

Warnings Defect (Strict Products Liability)

A

A manufacturer will be liable if he knew or had reason to know that the product is likely to be dangerous for the use for which it is supplied, has no reason to believe that users would realize the dangerous condition, and manufacturer fails to inform the users of the product’s dangerous condition or factors making it dangerous.

68
Q

Negligence Theory of Products Liability

A

A manufacturer of a product owes a duty to those other than the immediate purchaser to make the product carefully if the product, when negligently made, is reasonably certain to place users in peril, and the manufacturer knows that the product will be used by persons other than the immediate purchaser without further inspection.

Duty, breach, causation, damages.

69
Q

Warranty Theory of Products Liability

A

Warranty theory is fault free; even if defendant did everything right but the goods were not as warranted, the defendant is liable.

If the buyer is the party suing, need to show that the warranty was part of the “basis of the bargain.”

70
Q

Express Warranties (Warranty Theory of PL)

A

Making of an express warranty (an affirmation of fact concerning the goods); reliance on the warranty, and breach of the warranty caused harm.

A seller is liable if they misrepresented or omitted a material fact, that seller knew or should have known was incorrect, and P actually relied on it.

71
Q

Implied Warranty of Merchantability (Warranty Theory of PL)

A

Existence of a warranty that the goods are merchantable (fit for their ordinary use), reliance on the warranty, and breach caused the loss sustained.

72
Q

Implied Warranty of Fitness for a Particular Purpose (Warranty Theory of PL)

A

Existence of warrant, breach, breach proximately caused loss sustained. Seller must know of the particular or special needs of the buyer, and have recommended the product on that knowledge

73
Q

Joint and Several Liability

A

When two or more tortious acts combine to proximately cause an indivisible injury to a P, each tortfeasor is jointly and severally liable for that injury. Can seek indemnification.

74
Q

Indemnification

A

Can shift the entire loss between or among tortfeasors, if: provided for by contract, a party is only vicariously liable, or there is a strict products liability action.

75
Q

Res Ipsa Loquitur

A

In situations where there is no direct evidence of negligence, a plaintiff can make out a prima facie case of negligence by showing:

  1. Accident causing the injury is a type that would not normally occur absent negligence, and
  2. Negligence is attributable to D (instrumentality was in their exclusive control)
76
Q

Alternative Causes (Causation)

A

Where there are two acts, one of which was negligent but it is unclear which, burden shifts to the defendants to show that they were not negligent (Summers v. Tice).

Bar Prep Summer 2014 (11 decks)

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