Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Review > Torts > Flashcards

Torts Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Are children or mentally incapacitated people capable of intent?

A

Yes! Everyone is capable of intent. Be careful not to get tricked with this!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are the intentional torts?

A 
Battery
Assault
IIED
Trespass to land
Trespass to chattels
False imprisonment 
Conversion
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are the elements for battery?

A

Harmful or offensive contact
To plaintiff’s person
Intent
Causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the elements of assault?

A

An act creating a reasonable apprehension
Of immediate harmful or offensive contact to plaintiff’s person.
Intent
Causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Are words alone sufficient to create the apprehension of immediate harm?

A

No. They must be coupled with actions. (And remember that sometimes the words can negate the apprehension.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are the elements for false imprisonment?

A

An act or omission on the part of the defendant that confines or restrains plaintiff to a bounded area.
Intent
Causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What elements must be present for a prima facie case for an intentional tort?

A

Act by Defendant
Intent (specific or general)
Causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

When will a plaintiff’s super sensitivities be taken into account?

A

Only when the defendant knew of them in advance.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

If assault and battery both work on the same fact pattern, which should be chosen?

A

Battery. The ultimate consequence is what matters.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

For what intentional torts can intent be transferred?

A 
Assault
Battery
False imprisonment
Trespass to land
Trespass to chattels
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Are actual damages required for battery?

A

Not to prove a prima facie case. P can recover at least nominal damages even with no actual damage. Punitive damages may be recovered where D acted with malice in most jurisdictions.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What elements must be present for a shoplifting detention?

A
  1. There must be reasonable belief as the the fact of the theft.
  2. The detention must be conducted in a reasonable manner and only nondeadly force may be used.
  3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What are the elements for IIED?

A
  1. Outrageous or extreme conduct.
  2. Intent (can only be transferred when close relative actually sees an act where D knew the P was present.)
  3. Damages (substantial emotional harm)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Must there be intent for IIED?

A

No. Recklessness will suffice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What are the elements for trespass to land?

A

An act of physical invasion to land.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Does there have to be any actual damage to prove trespass to land?

A

No. Just going onto the land is enough.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What does “land” include for purposes of trespass?

A

Both the (reasonable) airspace above and subsurface below.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What are the elements of trespass to chattels?

A

An act of invasion to personal property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What are the elements of conversion?

A

An act of invasion to personal property to the degree that is serious enough to warrant that the D pay for the value of the chattel.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

May a bona fide purchaser of converted goods be liable for conversion?

A

Yes, even though they had no knowledge.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What are the remedies available for conversion?

A

The converter may pay fair market value for the chattel at the time and place of conversion (but the converter is also given title to the chattel at that point).
The remedy of replevin may also be used here in order for the P to have the chattel returned if he wishes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What are the defenses to intentional torts?

A 
Consent
Self defense
Defense of others
Defense of property
Necessity 
Discipline
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What are the two different kinds of consent?

A

Express and implied

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is implied consent?

A

Consent that can be inferred from either the P’s actions, custom and usage, or because there is implied consent by law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

When can express consent be invalidated?

A

When the consent arose from fraud (but has to be to an essential matter) or when it is obtained by duress.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

If the D goes beyond the act consented to and does something substantially different, is there liability?

A

Yes. E.g. If there is consent for a tonsillectomy but the surgeon does an appendectomy, then there was not valid consent.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

When is a person justified in using reasonable force in self defense?

A

When he reasonably believes that there is an imminent threat of force about to be used against her.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

When may deadly force be used in self defense?

A

When there is a reasonable belief that deadly force is getting ready to be used against the P.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

When may defense of others be raised?

A

When a person is defending another person in the same manner and under the same conditions as the person attacked would have been entitled to defend himself.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What are the elements for a prima facie case for defamation?

A

Defamatory language that is of or concerning the P, which has been published to a 3rd party and has damaged the reputation of the P.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

If the defamation refers to a public figure or is of public concern, then what are the elements of the prima facie case?

A

Defamatory language that was false that is of or concerning the P, which has been published to a 3rd party and has damaged the reputation of the P. Fault on the D’s part must also be proven here.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What damages must be proven for slander?

A

Special damages must be proven, unless it is slander per se.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

What is slander per se?

A

Slander that is on its face defamatory.
Examples are when it adversely defames the business or profession, when you say someone has a loathsome disease, accuse someone of a horrible crime, or imputing unchaste behavior to a woman.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What fault must be proven on the D’s part for defamation of a public official?

A

Actual malice. There must be clear and convincing proof that the statement was made with actual malice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What fault must be proven on the D’s part for defamation of a public figure?

A

Actual malice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What constitutes “actual malice”?

A

NYT v Sullivan test

  1. Knowledge that the statement was false OR
  2. Reckless disregard for as to its truth or falsity.
37
Q

What fault must be proven on D’s part for defamation of a private person in a matter of public concern?

A

Fault amounting to at least negligence.

38
Q

What are damages limited to for defamation from matters of public concern?

A

Actual damages

(unless actual malice is found, and then presumed or punitive damages are allowable.

39
Q

What are the four privacy claims?

A

Appropriation
Intrusion
False Light
Public disclosure of private facts.

40
Q

What are the elements for fraud?

A 
Misrepresentation of a material past or present fact 
Scienter 
Intent
Causation 
Justifiable reliance 
Damages
41
Q

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

A

(i) Duty on the part of the D to conform to a specific standard of conduct of P against an unreasonable risk of injury
(ii) A breach of that duty
(iii) Breach is the actual and proximate cause of the P’s injury; and
(iv) Damage

42
Q

To whom is a duty of care owed?

A

All foreseeable plaintiffs.

Always ask if the plaintiff was foreseeable and if so, what the applicable standard of care is.

43
Q

Who are foreseeable plaintiffs?

A 
Cardozo view (majority): Anyone in the foreseeable zone of danger. 
Andrews view (minority): Everyone is foreseeable.
44
Q

When is a rescuer a foreseeable plaintiff?

A

When the D negligently puts himself or a 3rd person in peril. (Danger invites rescue.)
*Firefighters and cops may be barred by the “firefighter’s rule” from recovering here (it’s their job)

45
Q

What is the basic standard for the duty of care?

A

The reasonable person. This is an objective standard.
Mental deficiencies and inexperience are NOT taken into account.
“Reasonable person” is considered to have the same physical characteristics as D–but one is expected to know one’s physical handicaps and to exercise the care of a person with such knowledge.

46
Q

What is the standard of care for professionals?

A

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities.

47
Q

What duty to disclose to doctors have regarding risks of treatment?

A

A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent.
This is breached if the doctor failed to disclose a risk that was serious enough that a reasonable patient would have withheld consent upon learning of the risk.

48
Q

To what standard of care are children held?

A

They are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test.
However, children engaged in adult activities may be required to conform to the “adult” standard of care.

49
Q

To what standard of care are common carriers and innkeepers held?

A

They are held to a very high degree of care; they are liable for even slight negligence.

50
Q

To what standard of care does an automobile driver owe to a guest?

A

An automobile guest is owed a duty of ordinary care.

51
Q

What duty does a landowner owe to those off premises?

A

There is no duty to protect one off the premises from natural conditions, but there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.

52
Q

What duty is owed to undiscovered trespassers to land?

A

No duty is owed to undiscovered trespassers.

53
Q

What duty is owed to discovered or anticipated trespassers to land?

A

Landowner must:

(i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily injury, and
(ii) use reasonable care in the exercise of “active operations” on the property.

54
Q

What are the elements for attractive nuisance?

A

(i) a dangerous condition on the land the owner is or should be aware of
(ii) owner knows or should know that children frequent the vicinity of the location
(iii) the condition is likely to cause injury, and
(iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

55
Q

What is the duty owed by landowners to licensees?

A

Possessor has a duty to

(i) warn of or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover,
(ii) exercise reasonable care in the conduct of active operations on the property

56
Q

What is the duty owed by possessors of land to invitees?

A

The duties to a licensee plus a duty to make reasonable inspections to discover non-obvious dangerous conditions and, thereafter, make them safe.

57
Q

What are the elements for res ipsa loquitur?

A

(i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and
(ii) the negligence is attributable to defendant (i.e. this type of accident ordinarily happens because of the negligence of someone in D’s position.)

58
Q

What is the effect of res ipsa loquitur?

A

P has made a prima facie case and no directed verdict may be given for the D.
If P moves for directed verdict, ALWAYS deny.
If D moves for a directed verdict, deny if P has established res ipsa loquitur; grant if P has failed to establish.

59
Q

What are the tests for actual causation?

A

“But for” test
Joint causes–substantial factor test
Alternative causes approach

60
Q

What is the “but for” test?

A

Act or omission is the cause in fact of an injury when the injury would have not occurred but for the fact.
This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.

61
Q

What is the joint causes test for actual causation?

A

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, D’s conduct is the cause in fact if it was a substantial factor in causing the injury.

62
Q

What is the alternative causes approach for actual causation?

A

This test applies when there are two acts, only one of which causes injury, but it is not known which one. Burden of proof shifts to the D’s, and each must show his negligence is not the actual cause.

63
Q

What is the general rule for proximate cause?

A

A D is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.
This is a foreseeability test.

64
Q

If there are direct causes, for what harmful results is D liable?

A

For all foreseeable harmful results, regardless of the unusual manner in which they arose or the unusual timing of cause and effect.

65
Q

If there are foreseeable results caused by foreseeable intervening forces, is defendant liable?

A

Yes, where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm P.

66
Q

What are common dependent intervening forces?

A

These are almost always foreseeable:

(i) Subsequent medical malpractice.
(ii) negligence of rescuers;
(iii) efforts to protect the person or property of oneself or another;
(iv) injuries caused by another “reacting” to D’s actions;
(v) subsequent diseased caused by a weakened condition; and
(vi) subsequent accident substantially caused by the original injury

67
Q

If there are foreseeable results caused by unforeseeable intervening forces, is defendant liable?

A

Usually, unless the unforeseeable intervening force was a crime or intentional tort of a 3rd person.

68
Q

If there are unforeseeable results caused by foreseeable intervening forces, is defendant liable?

A

No. In the rare case where a totally unforeseeable result was caused by a foreseeable intervening force, courts usually don’t hold the D liable.

69
Q

If unforeseeable results are caused by unforeseeable intervening forces, is D liable?

A

No. The unforeseeable intervening force is deemed to be superseding. Superseding forces break the causal connection b/t D’s initial negligent act and P’s ultimate injury, relieving D of liability.

70
Q

What does “D takes his P as he finds him” mean?

A

D is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. “Eggshell-skull” plaintiff rule.

71
Q

What are the damages that can be proven?

A

Personal injury
Property damage
Punitive damages (usually not available in negligence cases–only if D’s conduct is “wanton and willful”, reckless, or malicious)
Nonrecoverable items (interest from the date of damage and attorney’s fees)
Duty to mitigate–P has a duty to mitigate damages
Damages are not reduced just because P received benefits from other sources

72
Q

What are the defenses to negligence?

A

Contributory negligence
Assumption of risk
Comparative negligence

73
Q

What is contributory negligence?

A

Negligence of the part of the P that contributes to her injuries.
If there is contributory negligence, then P’s right to recovery is completely barred.

74
Q

What is the assumption of risk?

A

If the P knew of the risk and voluntarily proceeded in the face of the risk, then the risk was assumed.

75
Q

What is comparative negligence?

A

P’s contributory negligence is not a complete bar to recovery. Instead, the trier of fact weighs P’s negligence and reduces damages accordingly.

76
Q

What is partial comparative negligence?

A

P’s recovery is barred if his negligence was more serious than D’s.

77
Q

What is pure comparative negligence?

A

P can recover no matter how great his negligence was. (If P was 90% negligent, he can still recover 10% from D)

78
Q

What is needed for a prima facie case for strict liability?

A

(i) the nature of the D’s activity imposes and absolute duty to make safe,
(ii) the dangerous aspect of the activity was actual and proximate cause of the P’s injury, and
(iii) the P suffered damage to person or property

79
Q

What is the liability for trespassing animals?

A

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.

80
Q

What is the rule for strict liability and wild animals?

A

An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets).

81
Q

What is the rule for strict liability for domestic animals?

A

Owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless he has knowledge of that particular animal’s dangerous propensities that are not common to the species.

82
Q

What is the rule for strict liability for abnormally dangerous activities?

A

(i) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors, and
(ii) the activity is not a matter of common usage in the community

83
Q

What are the theories of liability for products liability?

A
  1. Intent
  2. Neglitence
  3. Strict liability
  4. Implied warranties of merchantability and fitness for a particular purpose
  5. Representation theories (express warranty and misrepresentation)
84
Q

What are the common elements needed to find liability under any products liability theory?

A
  1. A defect and

2. Existence of the defect when the product left D’s control.

85
Q

What are the types of defects?

A

Manufacturing defects
Design defects
Inadequate warnings

86
Q

How do you prove a manufacturing defect?

A

D will be liable if P can show that the product failed to perform as safely as an ordinary consumer would expect. D must anticipate reasonable use.

87
Q

How do you prove a design defect?

A

P usually must show that the D could have made the product safer, without serious impact on the product’s price or utility. (Feasible alternative” approach)

88
Q

How are government safety standards taken into account for product liability?

A

A product’s noncompliance with gov’t safety standards establishes that it is defective.
Compliance with safety standards is evidence, but not conclusive evidence, that the product is not defective.

89
Q

Are manufacturers liable for unavoidably unsafe products?

A

No. Things like knives cannot be made safer, so there will be no strict liability b/c the danger is apparent and there is no way to make it safer.

Bar Review (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions