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Torts Flashcards

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1
Q

Topics? (4)

(Intentional Torts)

A
  1. Elements of Prima Facie Case
  2. Intentional Torts to the Person
  3. Intentional Torts to Property
  4. Defenses to Intentional Torts
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Structure?

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(Intentional Torts: Elements of a Prima Facie Case)

A
  1. Act by Defendant
  2. Intent
    1. Specific, OR
    2. General
    3. Transferred Intent
      1. Assault
      2. Battery
      3. False Imprisonment
      4. Trespass to Chattels
      5. Trespass to Land
  3. Causation
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3
Q

Torts? (4)

(Intentional Torts: Intentional Torts to the Person)

A
  1. Battery
  2. Assault
  3. False Imprisonment
  4. Intentional Infliction of Emotional Distress
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(Intentional Torts: Intentional Torts to the Person: Battery)

A
  1. Elements
    1. Intentional Infliction
      1. Specific
      2. General
    2. Contact
      1. Indirect Contact
    3. Harmful or Offensive
      1. Reasonable Personal Standard
        1. Offensive = Lack of Consent from Reasonable Person
          1. Implied Consent for Ordinary Contacts of Everyday Life
    4. To Plaintiff’s Person
    5. Causation
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Structure?

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(Intentional Torts: Intentional Torts to the Person: Assault)

A
  1. Elements
    1. Intentional Act by Defendant
      1. Intent to Create Apprehension (aka Intent to Commit Assault), OR
      2. Intent to Make Harmful or Offensive Contact (aka Intent to Commit Battery)
    2. Reasonable Apprehension of Imminent Battery
      1. Apprehension = Knowledge Not Fear
        1. Measured From Victim’s Perspective
      2. Imminent Battery
        1. Harmful or Offensive Contact
        2. With Plaintiff’s Person
    3. Causation
  2. Words
    1. Words Alone = Not Sufficient
    2. Ability to Negate Apprehension
      1. Future Threats
      2. Conditional Threats Sufficient
        1. Legal Right to Compel the Action, OR
        2. Condition Expressly Negates Intent
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(Intentional Torts: Intentional Torts to the Person: False Imprisonment)

A
  1. Elements
    1. Intentional Act or Omission
    2. That Confines or Restrains Plaintiff to Bounded Area
      1. Bounded Area?
    3. Plaintiff Has Knowledge Of or Harmed by Confinement
    4. Causation
  2. Means Sufficient for False Imprisonment
    1. Physical Force
    2. Physical Barriers
    3. Threat of Force
    4. Failure to Release
    5. Invalid Assertion of Legal Authority
    6. Future Threats or Moral Pressure = Not Sufficient
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(Intentional Torts: Intentional Torts to the Person: Intentional Infliction of Emotional Distress)

A
  1. Elements
    1. Intentional or Reckless Infliction
      1. Specific Intent
      2. General Intent, OR
      3. Reckless
    2. Severe Emotional or Mental Distress
      1. Severe?
    3. By Extreme & Outrageous Conduct
      1. Factors Considered
        1. Pattern of Conduct
        2. Defendant Owed Victim Fiduciary Duty
          1. Employer-Employee Relationship
          2. Doctor-Patient Relationship
          3. Common Carrier or Inn Keeper = High Courtesy to Customers
        3. Use of Racial Epithets
        4. Vulnerable Victims
          1. Young Children
          2. Elderly
          3. Pregnant Women
          4. Supersensitive Victims if Sensitivity Know to Defendant
      2. Not Extreme & Outrageous Conduct
    4. Actual Damages
    5. Causation
  2. Harm to Third Parties
    1. Prima Facie Case, OR
    2. Immediate Family Member Plaintiff
      1. Plaintiff Was Present When Injury Occurred
      2. Plaintiff = Close Relative of Victim
      3. Defendant Aware of Both
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8
Q

Torts? (3)

(Intentional Torts: Intentional Torts to Property)

A
  1. Trespass to Land
  2. Trespass to Chattels (Personal Property)
  3. Conversion
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9
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Structure?

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(Intentional Torts: Intentional Torts to Property: Trespass to Land)

A
  1. Elements
    1. Wrongful Physical Invasion
    2. Of Plaintiff’s Real Property
      1. Airspace
        1. Reasonable Distance?
      2. Subterraneous Space
        1. Reasonable Distance?
    3. Intent
    4. Causation
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10
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Structure?

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(Intentional Torts: Intentional Torts to Property: Trespass to Chattels (Personal Property))

A
  1. Elements
    1. Intent
    2. Interference with a Person’s Right of Possession in Chattel
      1. Intermeddling = Physical Contact Damages Chattel, OR
      2. Dispossession = Deprivation of the Lawful Right to Possession of Chattel
    3. Causation
    4. Damages
  2. Remedy = Damages
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11
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(Intentional Torts: Intentional Torts to Property: Conversion)

A
  1. Elements
    1. Intent
    2. Substantial Interference with Plaintiff’s Right of Possession
    3. So Severe That Defendant justly Required to Pay Full Value of Chattel
      1. Factors Distinguishing Conversion from Trespass to Chattels
        1. Duration
        2. Good or Bad Faith
        3. Harm to Property
        4. Inconvenience to Victim
    4. Causation
  2. Remedies
    1. Damages = FMV at Time of Conversion
    2. Possession = Replevin
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12
Q

Topics? (10)

(Intentional Torts: Defenses to Intentional Torts)

A
  1. Consent
  2. Self-Defense
  3. Self-Defense of Others
  4. Defense of Property
  5. Recapture of Chattels
  6. Reentry onto Land
  7. Necessity
  8. Shopkeeper’s Privilege
  9. Privilege of Arrest
  10. Legal Incapacity = NO DEFENSE
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13
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Structure?

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(Intentional Torts: Defenses to Intentional Torts: Consent)

A
  1. Express Consent
    1. Exceptions
      1. Fraud
      2. Duress, OR
      3. Mistake
  2. Implied Consent
    1. Apparent Consent
      1. Plaintiff’s Conduct = Objective Manifestations
      2. Custom & Usage
    2. Consent from Circumstances = Consent Implied by Law
  3. Legal Capacity Required for Valid Consent
  4. Exceeding Scope of Consent = Defendant Liable
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14
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Structure?

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(Intentional Torts: Defenses to Intentional Torts: Self-Defense)

A
  1. Reasonable Belief of a Genuine Threat
    1. Reasonable Mistake OK
  2. Imminence Requirement
  3. Degree of Force
    1. Non-Deadly Force
    2. Deadly Force = Imminent Threat of Death or Serious Bodily Harm
  4. Duty to Retreat
    1. Restatement View
      1. Non-Deadly Force = No Duty to Retreat
      2. Deadly Force = Yes if Safe Unless Actor Inside Her Home
  5. Accidental 3rd Party Injuries
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15
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(Intentional Torts: Defenses to Intentional Torts: Self-Defense of Others)

A
  1. Requires Reasonable Belief
    1. Reasonable Mistake OK
  2. Degree of Force = Alter Ego Theory
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16
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Structure?

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(Intentional Torts: Defenses to Intentional Torts: Defense of Property)

A
  1. Warning Required
  2. Deadly Force Prohibited
    1. Exception: Imminent Threat of Death or Serious Bodily Harm
    2. Deadly Mechanical Devices Prohibited
  3. Reasonable Mistake
    1. Intrusion = Yes
    2. Warning Required = Yes
    3. Privilege = No
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17
Q

Structure?

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(Intentional Torts: Defenses to Intentional Torts: Recapture of Chattels)

A
  1. Fresh Pursuit = Without Unreasonable Delay
  2. Timely Demand Required Unless Futile or Dangerous
  3. Reasonable Force But Not Deadly Force
  4. Wrongful Taking
  5. Wrongdoer Only
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18
Q

Structure?

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(Intentional Torts: Defenses to Intentional Torts: Reentry onto Land)

A
  1. Common Law = Yes
  2. Modern Law = No
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19
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Structure?

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(Intentional Torts: Defenses to Intentional Torts: Necessity)

A
  1. Public Necessity
    1. Result = No Compensation for Damages Must Be Paid
  2. Private Necessity
    1. Owner May Not Resist During Emergency
    2. Result
      1. Nominal or Punitive Damages = Complete Defense
      2. Actual Damages = Must Pay Damages for Injuries Caused
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20
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Structure?

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(Intentional Torts: Defenses to Intentional Torts: Shopkeeper’s Privilege)

A
  1. Reasonable Belief
  2. Reasonable Manner
  3. Reasonable Period of Time
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21
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(Intentional Torts: Defenses to Intentional Torts: Privilege of Arrest)

A
  1. With Warrant
  2. Without Warrant
    1. Felony Arrest
      1. Police Officer
        1. Requirement for Privilege
          1. Reasonable Belief Felony Has Been Committed
          2. Reasonable Belief Suspect Committed the Felony
        2. Force Permitted = Reasonable Force Necessary to Make Arrest
          1. Deadly Force = Suspect Poses Serious Threat
      2. Private Citizen
        1. Requirement for Privilege
          1. Felony Actually Committed
          2. Reasonable Belief Suspect Committed the Felony
        2. Force Permitted = Reasonable Force Necessary to Make Arrest
          1. Deadly Force = Suspect Poses Serious Threat
    2. Misdemeanor Arrests
      1. Requirements for Privilege
        1. Breach of Peace
        2. Committed in Arresting Party’s Presence
      2. Force Permitted = Reasonable Force But No Deadly Force
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22
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First two levels?

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(Negligence)

A
  1. Elements for Prima Facie Case
    1. Duty of Care
    2. Breach
    3. Causation
    4. Actual Damages
  2. Defenses
    1. Contributory Negligence = Complete Bar
    2. Comparative Negligence = Reduction of Recovery
    3. Assumption of the Risk
23
Q

Topics? (5)

(Negligence: Elements for Prima Facie Case: Duty of Care)

A
  1. Foreseeable Victims
  2. Basic Standard of Care = Reasonable Person Acting Under Similar Circumstance
  3. Duty of Owner & Occupiers of Land
  4. Legal Duty to Act
  5. Negligent Infliction of Emotional Distress
24
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(Negligence: Elements for Prima Facie Case: Duty of Care: Foreseeable Victims)

A
  1. Majority View = Foreseeable Zone of Danger
  2. Minority View = Everyone is Foreseeable
  3. Specific Situations
    1. Rescuers
    2. Prenatal Injuries
25
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(Negligence: Elements for Prima Facie Case: Duty of Care: Basic Standard of Care = Reasonable Person Acting Under Similar Circumstance)

A
  1. Objective Standard of Care
    1. Physical Disability = Yes
    2. Mentality Characteristics = No
    3. Intoxication = No
    4. Children (Between 4- 18 Years) = Subjective Test
      1. Exceptions
        1. Adult Activities
        2. Children < 4 Years Old = Incapable of Negligence
    5. Custom = Admissible But Not Conclusive
    6. Emergencies = Yes
    7. Superior Knowledge
  2. Standard of Care for Professionals = Community Standard
  3. Standard of Care for Medical Specialists = National Standard of Care
    1. Duty to Disclose Risk of Treatment
26
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(Negligence: Elements for Prima Facie Case: Duty of Care: Duty of Owner & Occupiers of Land)

A
  1. To Those Off Premises
    1. Natural Conditions on Premises = No Duty to Protect
    2. Unreasonable Dangerous Artificial Conditions = Reasonable Care
    3. Activities on Property = Reasonable Care
  2. To Those On Premises
    1. Licensees (aka Social Guests)
      1. Activities = Reasonable Care
      2. Unknown Concealed Dangers = No Duty to Inspect
      3. Known Concealed Dangers = Duty to Warn
    2. Invitees
      1. Activities = Reasonable Care
      2. Unknown Concealed Dangers = Duty to Inspect with Reasonable Care
      3. Known Concealed Dangers = Duty to Warn
    3. Undiscovered Trespassers = No Duty of Care
    4. Discovered Trespassers = Reasonable Care
      1. Activities = Reasonable Care
      2. Dangerous Condition on Land = Duty to Warn or Make Safe
        1. Artificial Condition
        2. Highly Dangerous
        3. Hidden Condition
        4. Known to Landowner
    5. Children
      1. Activities = Reasonable Care
      2. Natural Conditions = No Duty Unless Licensee or Invitee
      3. Artificial Conditions & the Attractive Nuisance Doctrine
        1. Dangerous Artificial Condition That Owner Is or Should Be Aware Of
        2. Owner Knows or Should Know Children Likely to Trespass
        3. Condition Likely to Cause Injury
        4. Children Unaware of the Danger
        5. Risk to Children Substantially Outweighs Expense of Eliminating Danger
        6. Owner Failed to Exercise Reasonable Care
    6. Firefighters & Other Public-Safety Personnel
27
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(Negligence: Elements for Prima Facie Case: Duty of Care: Legal Duty to Act)

A
  1. Exceptions
    1. Voluntary Assumption of Care = Reasonable Care
    2. Creation of Peril = Duty to Assist
    3. Pre-existing Relationship Between Parties
      1. Familial Relationship
        1. Parent-Child
        2. Spousal Relationship
      2. Common Carriers = Duty to Customers
      3. Innkeepers = Duty to Guests
      4. Shopkeepers = Duty to Customers
      5. Prison Officers = Duty to Prisoners
28
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(Negligence: Elements for Prima Facie Case: Duty of Care: Negligent Infliction of Emotional Distress)

A
  1. Duty Breached?
    1. Threat of Physical Impact Leads to Emotional Distress, OR
      1. Zone of Physical Danger
    2. Directly Causes Severe Emotional Distress Likely to Result in Physical Consequences
  2. Physical Consequences Required
    1. Exceptions
      1. Erroneous Report of Relative’s Death, OR
      2. Mishandling of a Relative’s Corpse
  3. Bystander’s Fear for Others’ Safety
    1. Requirements
      1. Plaintiff Present At Scene
      2. Plaintiff Observed or Perceived the Injury
      3. Plaintiff & Injured Party Are Closely Related
29
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(Negligence: Elements for Prima Facie Case: Breach)

A
  1. Violation of Statute (aka Negligence Per Se)
    1. Statute Must Apply to the Facts
      1. Class of Persons Protected by Statute
      2. Protection Against Particular Harm
    2. Unexcused Violation of Safety Statute = Negligence Per Se
      1. Compliance Establish Due Care
    3. Excused Violations
      1. Compliance Would Cause More Harm Than Violation
      2. Compliance Beyond Defendant’s Control
  2. Res Ipsa Loquitur
    1. Requirements
      1. No Direct Evidence
      2. Accident Normally Does Not Occur Without Negligence By Someone
      3. Instrument within Defendant’s Exclusive Control
    2. Result of Doctrine
30
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(Negligence: Elements for Prima Facie Case: Causation)

A
  1. Cause in Fact
    1. But For Test
    2. Concurrent Causes = Substantial Factor Test
      1. Both Substantial Factors = Joint Liability
    3. Alternative Causes
  2. Proximate Cause
    1. Foreseeability
      1. Foresight Approach
        1. Identify Defendant’s Negligence
        2. Within the Risk Foreseen?
    2. Direct Cause (Unbroken Chain)
    3. Indirect Cause
      1. Foreseeable (“Dependent”) Events
        1. Medical Malpractice
        2. Negligence of Rescuers
        3. Reactions to Defendant’s Actions
        4. Subsequent Disease
        5. Subsequent Accident
      2. Unforeseeable (“Independent”) Events
        1. Negligent Acts of 3rd Parties
        2. Crimes & Intentional Torts of 3rd Parties
        3. Acts of God
31
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(Negligence: Elements for Prima Facie Case: Actual Damages)

A
  1. Personal Injury (Thin Skulled Victims)
  2. Property Damage
  3. Punitive Damages
  4. Duty to Mitigate
  5. Collateral Source Rule
32
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(Negligence: Defenses)

A
  1. Contributory Negligence = Complete Bar
    1. Last Clear Chance Doctrine
    2. Not a Defense to Intentional Torts
  2. Comparative Negligence = Reduction of Recovery
    1. Partial Comparative Negligence
    2. Pure Comparative Negligence
  3. Assumption of the Risk-
    1. Implied Assumption of Risk
    2. Express Assumption of Risk
33
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(Strict Liability)

A
  1. Animals
    1. Trespassing Animals = Strictly Liable for Reasonably Foreseeable Damage
    2. Non-trespassing Animals
      1. Wild Animals = Strictly Liable
        1. Dangerous Propensity Limitation
      2. Domestic Animals = No Strict Liability
        1. Exception: Owner Knows or Has Reason to Know Animal is Dangerous
  2. Abnormally Dangerous Activities
    1. Factors for Determining Abnormally Dangerous
      1. High Degree of Risk
      2. Of Serious Harm
      3. Risk Cannot Be Eliminated
      4. Activity Not Common
      5. Activity Not Appropriate for Place
      6. Danger Outweighs Value
  3. Defenses = Assumption of Risk & Comparative Negligence
34
Q

Topics? (5)

(Products Liability)

A
  1. Elements for Strict Products Liability
  2. Proving a Defect
  3. Defenses
  4. Implied Warranties
  5. Representation Theories
35
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Structure?

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(Products Liability: Elements for Strict Products Liability)

A
  1. Merchant
    1. Non-Merchants
      1. Casual Sellers
      2. Service Providers
    2. Non-Manufacturers Liable if Merchants in Distribution Chain
  2. Defect in Product
    1. Manufacturing Defect = Lemon
    2. Design Defect = Design Generally Defective
    3. Duty to Warn = Properly Manufactured & Designed Products
  3. Actual Cause = Defect Existed in Hands of Manufacturer
    1. Presumed if Ordinary Channels of Commerce
    2. Res Ipsa Loquitur
      1. Of the Kind that Ordinarily Occurs As a Result of a Product Defect
      2. Not Solely the Result of Other Causes
  4. Intended Use or Reasonably Foreseeable Misuse
    1. Foreseeable = Reasonable Design Precautions or Warning
  5. Privity Not Required
36
Q

Structure?

  1. _
  2. _
    1. _
    2. _
    3. _

(Products Liability: Proving a Defect)

A
  1. Manufacturing Defect = Product Failed to Perform as Safely as Ordinary Consumer Would Expect
  2. Design Defect
    1. Feasibility of Alternative Design
    2. Financial Cost of Alternative Design
    3. Adverse Consequences to Product & Consumer of Alternative Design
37
Q

Structure?

  1. _
    1. _
    2. _
  2. _
  3. _

(Products Liability: Other Considerations)

A
  1. Safety Standards
    1. Noncompliance = Defective Product
    2. Compliance = Evidence But Not Conclusive
  2. Scientifically Unknowable Risks
  3. Unavoidably Unsafe Products
38
Q

Structure?

  1. _
  2. _
  3. _
  4. _

(Products Liability: Defenses)

A
  1. Comparative Negligence = Yes
  2. Contributory Negligence = No
  3. Assumption of Risk
  4. Disclaimers & Waivers Ineffective
39
Q

Structure?

  1. _
    1. _
    2. _
      1. _
      2. _
        1. _
        2. _
  2. _
  3. _

(Products Liability: Implied Warranties)

A
  1. Implied Warranty of Merchantability
    1. More Limited Definition of Merchant
    2. Implied Warranties of Merchantability Can Be Disclaimed If
      1. General Language of Disclaimer & Conspicuous
      2. “As Is” or “With All Faults”
        1. Limitation of Remedies = OK Unless Unconscionable
        2. Personal Injury = Prima Facie Unconscionable
  2. Implied Warranty of Fitness for Particular Purpose
  3. Who Can Sue?
40
Q

Structure?

  1. _
    1. _
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(Products Liability: Representation Theories)

A
  1. Express Warranty of Quality
    1. Statements of Opinion
    2. Express Warranties Generally Cannot Be Disclaimed
  2. Misrepresentation of Material Fact
    1. Misrepresentation of Material Fact
    2. Seller Intended to Induce Reliance
41
Q

Topics? (3)

(Defamation)

A
  1. Common Law Elements
  2. 1st Amendment Privilege (aka Constitutional Requirements)
  3. Defenses
42
Q

Structure?

  1. _
    1. _
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(Defamation: Common Law Elements)

A
  1. Defamatory Statement
    1. Character Traits
      1. Honesty
      2. Peacefulness
      3. Loyalty
      4. Morality
    2. Insults = Not Defamatory
  2. Reference to Plaintiff
    1. Plaintiff Must Be Alive
  3. Publication by Defendant to 3rd Person
    1. Intentional, OR
    2. Negligent
  4. Damages to Plaintiff’s Reputation
    1. Libel = Damages Not Necessary
      1. Damages Presumed
    2. Slander
      1. Slander Per Se = Damages Not Necessary
        1. Crimes of Moral Turpitude
        2. Loathsome Disease
        3. Sexual Misconduct
        4. Adversely Reflects on One’s Conduct in Business, Profession, Trade, or Office
      2. Not Slander Per Se = Must Prove Special Damage
43
Q

Structure?

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      1. _
        1. _
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(Defamation: 1st Amendment Privilege (aka Constitutional Requirements))

A
  1. Types of Defamation with 1st Amendment Issues
    1. Refers to a Public Figure, OR
    2. Involves a Matter of Public Concern
  2. Two Additional Requirements
    1. Defamation is False
      1. Burden of Proof = Plaintiff
    2. Fault By Defendant
      1. Public Official or Figure = Malice
        1. Public Figure?
        2. Malice?
          1. Knowledge, OR
          2. Reckless Disregard
      2. Private Persons = Negligence
44
Q

Structure?

  1. _
  2. _
  3. _
    1. _
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      3. _
      4. _
    3. _
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  4. _
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    2. _
      1. _
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        1. _
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      3. _
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      4. _
        1. _

(Defamation: Defenses)

A
  1. Consent
  2. Truth
  3. Absolute Privilege = Cannot be Lost
    1. Husband & Wife
    2. Judicial Proceedings
      1. Judges
      2. Lawyers
      3. Parties
      4. Witnesses
    3. Legislative Proceedings
    4. Government Officials
    5. Compelled Broadcasts
  4. Qualified Privilege = Can be Lost if Abuse
    1. Abuse of Qualified Privilege
      1. Actual Malice (Lack of Good Faith)
      2. Excessive Publication
        1. Made to Persons to Whom Publication Not Reasonable Necessary, OR
        2. More Damaging Information Than Reasonably Needed
    2. Categories of Qualified Privilege
      1. Report of Public Proceedings
      2. Protection of Publisher’s Interests
        1. Job References
        2. Letters of Recommendation
      3. Protection of Recipient’s Interests
        1. Job References
        2. Letters of Recommendation
      4. Statements in the Public Interest
        1. Statements Made to the Police
45
Q

Topics? (2)

(Privacy & Nuisance)

A
  1. Invasion of Privacy
  2. Nuisance
46
Q

Structure?

  1. _
    1. _
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      2. _
  2. _
    1. _
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(Privacy & Nuisance: Invasion of Privacy)

A
  1. Appropriation
    1. Elements
      1. Unauthorized Use of Plaintiff’s Name or Picture
      2. For Defendant’s Own Benefit
    2. Exception: Newsworthy Use
  2. Intrusion
    1. Elements
      1. Intrusion of Plaintiff’s Solitude
        1. Must be Private Place
      2. Highly Offensive to a Reasonable Person
  3. Publicity of Private Life
    1. Elements
      1. Publication of the Details of Plaintiff’s Private Life
      2. Highly Offensive to a Reasonable Person of Ordinary Sensibilities
    2. Exception: Newsworthy Use
  4. False Light
    1. Elements
      1. Places Plaintiff Before the Public Eye
      2. In a False Light
      3. Highly Offensive to a Reasonable Person Under the Circumstances
    2. Public Figure = Malice
      1. Knowledge, OR
      2. Reckless Disregard
  5. Defenses
    1. Newsworthy Use
      1. Appropriation
      2. False Light
    2. Consent
    3. Absolute & Qualified Defamation Privileges
      1. Publicity of Private Life
      2. False Light
47
Q

Structure?

  1. _
    1. _
    2. _
    3. _
      1. _
        1. _
        2. _
    4. _

(Privacy & Nuisance: Private Nuisance)

A
  1. Elements
    1. Plaintiff Has Interest in Land
    2. Substantial Inference
    3. Unreasonable Interference with Use & Enjoyment of Land
      1. Unreasonableness?
        1. Harm to Plaintiff > Utility of Defendant’s Conduct, OR
        2. Harm to Plaintiff Greater Than Required to Bear without Compensation
    4. Defendant’s Conduct = Negligent Abnormally Dangerous or Intentional
48
Q

Structure?

  1. _
    1. _
      1. _
      2. _
    2. _
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(Privacy & Nuisance: Nuisance)

A
  1. Public Nuisance
    1. Elements
      1. Substantial Harm Required
      2. Injury to the Public at Large
    2. Recovery by Private Party
  2. Private Nuisance
    1. Elements
      1. Plaintiff Has Interest in Land
      2. Substantial Inference
      3. Unreasonable Interference with Use & Enjoyment of Land
        1. Unreasonableness?
          1. Harm to Plaintiff > Utility of Defendant’s Conduct, OR
          2. Harm to Plaintiff Greater Than Required to Bear without Compensation
      4. Defendant’s Conduct = Negligent Abnormally Dangerous or Intentional
  3. Defenses
    1. Comparative/Contributory Negligence
    2. Assumption of Risk (aka “Coming to the Nuisance”)
49
Q

Topics? (5)

(Extra)

A
  1. Vicarious Liability
  2. Joint Tortfeasors
  3. Survival of Tort Actions
  4. Wrongful Death
  5. Other Miscellaneous Torts
50
Q

Structure?

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    1. _
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  6. _
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(Extra: Vicarious Liability)

A
  1. Respondeat Superior Doctrine = Employer-Employee Relationship
    1. Intentional Torts
      1. Exceptions
        1. Specifically Authorized by Employer
        2. Nature of Employment
        3. Motivated by Desire to Serve the Employer
  2. Independent Contractors
    1. Exceptions
      1. Non-Delegable Duty
      2. Inherently Dangerous Activity
  3. Partners & joint Ventures
  4. Auto Consent
    1. Exceptions
      1. Family Car Doctrine
      2. Driver Acting On Behalf of Owner
      3. Negligent Entrustment = Owner Liable for Own Negligence
  5. Parents & Children
    1. Common Law = Not Vicariously Liable
    2. Modern Law
  6. Tavern Keepers
    1. Common Law = No Liability
    2. Modern Law = Dram shop Acts
51
Q

Structure?

  1. _
    1. _
    2. _
    3. _
      1. _
  2. _
    1. _
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    3. _

(Extra: Joint Tortfeasors)

A
  1. Joint & Several Liability
    1. Satisfaction = Full Payment
    2. Release
    3. Contribution
      1. Contribution Not Available for Intentional Torts
  2. Indemnity
    1. Vicarious Liability = Full Indemnity
    2. Strict Liability = Non-Manufacturer v. Manufacturer
    3. By Contract
52
Q

Structure?

  1. _
  2. _
  3. _

(Extra: Survival of Tort Actions)

A
  1. Torts Resulting in Personal Injury = Yes
  2. Torts to Property = Yes
  3. Torts Invading Intangible Personal Interests = No
53
Q

Structure?

  1. _
  2. _
  3. _
  4. _
    1. _
    2. _
    3. _

(Extra: Wrongful Death)

A
  1. Spouses Recovering for Deceased Spouse = Yes
  2. Parents Recovering for Deceased Child = Yes
  3. Children Recovering for Deceased Parents = Generally No
  4. Loss of Consortium Damages
    1. Loss of Household Services
    2. Loss of Society
    3. Loss of Sexual Relationship
54
Q

Structure?

  1. _
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(Extra: Other Miscellaneous Torts)

A
  1. Misrepresentation
    1. Intentional Misrepresentation (Fraud or Deceit) Elements
      1. Misrepresentation of Material Fact
      2. Scienter
        1. Knowledge, OR
        2. Reckless Indifference to the Truth
      3. Intent to Induce Plaintiff’s Reliance on Misrepresentation
      4. Justifiable Reliance by Plaintiff
      5. Causation
      6. Damages
    2. Negligent Misrepresentation Elements
      1. Misrepresentation in Business or Professional Capacity
      2. Breach of Duty to Plaintiff
      3. Justifiable Reliance by Plaintiff
      4. Causation
      5. Damages
  2. Interference with Business Relationships
    1. Elements
      1. Valid Contract or Business Expectancy
      2. Knowledge By Defendant of the Business Relationship
      3. Intentional Interference
      4. Causation
      5. Damages
  3. Misuse of Legal Procedure
    1. Malicious Prosecution
      1. Elements of Prima Facie Case
        1. Defendant Initiated Criminal Proceedings Against Plaintiff
        2. Terminated in Favor of the Plaintiff
        3. No Probable Cause
        4. Improper Purpose
        5. Damages
    2. Wrongful Civil Proceedings
    3. Abuse of Process
      1. Elements of Prima Facie Case
        1. Wrongful Use of Litigation Devices for Ulterior Improper Purpose
        2. Definite Act or Threat Against Plaintiff to Accomplish Ulterior Improper Purpose

Bar Essays (15 decks)

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