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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

Battery (IT)

A

Elements:

(1) Intent: deliberate, on purpose (intends to or knows desired outcome will occur)
(2) Harmful (physical) or Offensive (unpermitted) Contact
(3) Contact must be with the person’s body (includes what person is holding/on)

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2
Q

Battery: intent (IT)

A

Intent: deliberate, on purpose (intends to or knows desired outcome will occur)

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3
Q

Battery: Contact (IT)

A
  • Harmful contact: physical
  • Offensive contact: unpermitted
  • Contact must be with the person’s body (includes what person is holding/on)
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4
Q

Assault (IT)

A

Elements:

(1) Intent: deliberate, on purpose (intends to or knows desired outcome will occur)
(2) D must place P in reasonable apprehension of harmful or offensive contact (i.e., reasonable knowledge a battery might occur )
(3) Actually causes the plaintiff apprehension; need menacing conduct, but words can negate immediacy

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5
Q

Assault: intent (IT)

A

Intent: deliberate, on purpose (intends to or knows desired outcome will occur)

Under the transferred intent doctrine, the intent to inflict a battery satisfies the intent requirement for assault

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6
Q

Assault: reasonable apprehension (IT)

A

D must place P in reasonable apprehension of harmful or offensive touching (i.e., reasonable knowledge a battery might occur)

Empty threat: focus on what plaintiff knows or has reason to know/believe –> if reason to believe threat is real, element satisfied

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7
Q

Assault: immediacy/actual apprehension (IT)

A

Actually causes the plaintiff apprehension (i.e. actuall aware); need menacing conduct, but words can negate immediacy

Words alone lack immediacy, need menacing gesture/conduct

Words can negate immediacy of menacing conduct – examples: (a) conditional words (if you weren’t my friend); (b) words that promise action in the future

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8
Q

False Imprisonment (IT)

A

(1) Intent
(2) Defendant must commit an act of restraint
(3) Plaintiff must be confined within a bounded area

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9
Q

False imprisonment: intent (IT)

A

Intent: deliberate, on purpose (intends to or knows desired outcome will occur)

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10
Q

False imprisonment: act of restraint (IT)

A

P must be aware of or harmed by the confinement

  • Physical restrain
  • Threats are sufficient if would operate on the mind of a reasonable/ordinary person
  • Omission can be sufficient (e.g. failure to move someone from A to B)
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11
Q

False imprisonment: bounded area (IT)

A
  • Does not have to be marked by physical boundaries, can be approximate
  • Not bounded if there is a reasonable means of escape P can reasonably discover (not reasonable if dangerous, dirty etc.)
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12
Q

Intentional Infliction of Emotional Distress (IT)

A

(1) Intent
(2) D must engage in outrageous conduct
(3) P must suffer severe distress

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13
Q

Intentional Infliction of Emotional Distress: intent (IT)

A

Intent: deliberate, on purpose (intends to or knows desired outcome will occur)

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14
Q

Intentional Infliction of Emotional Distress: outrageous conduct (IT)

A

D must engage in outrageous conduct: conduct that exceeds all bounds of decency tolerated in a civilized society

Mere insults are not outrageous

Activity suggesting outrageousness:

  1. Conduct is continuous or repetitive
  2. Defendant is a common carrier or innkeeper
  3. P is a member of a fragile class (young children, elderly, pregnant women)
  4. D has prior awareness of and exploits P’s peculiar emotional sensitivity
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15
Q

Intentional Infliction of Emotional Distress: severe distress (IT)

A

P must suffer severe distress

-Can prove with whatever evidence P chooses

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16
Q

Trespass to Land (IT)

A

(1) Intent
(2) Physical invasion
(3) Act must interfere with P’s possession of real estate

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17
Q

Trespass to land: intent (IT)

A

Intent: deliberate, on purpose (intends to or knows desired outcome will occur)

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18
Q

Trespass to land: physical invasion (IT)

A

Two ways to physically invade:

(1) Enter property
(2) Throw/project/propel some tangible thing onto property

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19
Q

Trespass to land: interfere with P’s possession (IT)

A

Interference onto property includes the surface and reasonable distances above into the air and down into the soil

The proper P is the possessor, who is not necessarily the owner

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20
Q

Trespass to chattels (IT)

A

Slight, intentional interference with P’s personal property

Remedy: cost of repair

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21
Q

Conversion (IT)

A

Significant interference with/harm to P’s personal property

Remedy: Item’s full market value

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22
Q

Affirmative defenses to intentional torts (IT)

A

(1) Consent
(2) Protective privileges
(3) Necessity defense

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23
Q

Affirmative defense: consent (IT)

A

Consent has a scope (e.g. visitor in house, surgery)

Applies to all intentional torts

(1) Express consent: clear statement of consent
- Invalid if result of duress or fraud

(2) Implied consent: (a) custom and usage (place/activity where certain invasions are routine); (b) D’s reasonable interpretation of plaintiff’s objective conduct and surrounding circumstances (i.e. body language)

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24
Q

Affirmative defense: protective privileges (IT)

A

Types of defenses:

(1) Self-defense
(2) Defense of others
(3) Defense of property

Requirements:

(1) Timing: threat in progress of imminent
(2) Reasonable belief threat is genuine

Limitation: can only use proportional force

  • Deadly force okay except to protect property
  • Cannot use machine to do what you couldn’t do
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25
Q

Affirmative defenses: necessity defense (IT)

A

Only applies to property torts (trespass to land, trespass to chattels, conversion)

(1) Public necessity: D invades P’s property during emergency to protect community/large group of people

(2) Private necessity: D invades P’s property in emergency to protect own interest
- Liable for compensatory/actual damages
- Not liable for punitive or nominal damages
- As long as emergency continues, property owner can’t throw D off property/back into emergency – if P does, P is liable for harm to D

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26
Q

Defamation

A

Elements:

1) D must make a defamatory statement
(2) Publication of statement
(3) Damage to P (slander or libel

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27
Q

Defamation: defamatory statement

A

A statement is defamatory if it tends to adversely affect P’s reputation. If in opinion form, defamatory if sounds like could be backed up by fact (but isn’t)

Does not need to include name so long as P otherwise identifiable

Must be a living person

28
Q

Defamation: publication

A

D must reveal the statement to someone other than P

Publication does not need to be deliberate, careless, negligent, inadvertent suffices

29
Q

Defamation: damage to P - libel

A

Often presumed

Libel: defamatory statement that is permanently embodied in some medium of expression, typically written

30
Q

Defamation: damage to P - slander

A

Slander: spoken/oral defamation

(1) Slander per se: damage presumed if (a) statement about P’s business/profession, (b) statement that P committed serious crime, (c) statement imputing unchastity to a woman, or (d) statement that P suffers from leprosy or venereal disease
(2) Slander not per se: must show economic harm

31
Q

Defamation: affirmative defenses

A

(1) Consent: express or implied
(2) Truth
(3) Privileges: absolute and qualified

32
Q

Defamation affirmative defense: Privileges

A

(1) Absolute privileges: (a) spousal: what one spouse says to another cannot be the basis of defamation; (b) what officers of the three branches say in their official capacity cannot be defamation
(2) Qualified privileges: usually where public interest in candor – not liable if (a) D makes statement in good faith and (b) D limits self to matters relevant to topic at hand

33
Q

Defamation affirmative defense: Truth

A

D has burden to prove statement is true, and if satisfied not liable

34
Q

Defamation: public concern cases

A

If underlying statement is a matter of public concern, P must prove: (a) Fault: statements were not made in good faith; and (b) Falsity: statements are factually inaccurate

35
Q

Privacy Law

A

(1) Appropriation: cannot use P’s name/picture without permission for commercial purposes, but newsworthiness exception
(2) Intrusion: invasion of P’s seclusion in a manner offensive to average person (must have reasonable expectation of privacy)
(3) False light: widespread dissemination of material falsehood about P that would be highly offensive to average person
(4) Disclosure: widespread dissemination of confidential information about P that would be highly offensive to an average person, but newsworthiness exception

36
Q

Privacy Law: affirmative defenses

A

(1) Consent: applies to appropriation, intrusion, false light, and disclosure
(2) Defamation privileges (absolute and conditional): apply to false light and disclosure

37
Q

Negligence

A

Elements:

(1) Duty
(2) Breach of duty
(3) Causation
(4) Harm/damage

38
Q

Negligence: Duty

A

The obligation to take risk-reducing precautions

Objective standard: Must take the same amount of care as a reasonably prudent person acting under similar circumstances (“reasonable care”)

Only exists with respect to foreseeable victims (except rescuers)

39
Q

Negligence: Duty - Exceptions

A

Reasonable care is not measured objectively if:

(a) If D has superior knowledge or skill regarding the subject matter, compare D to reasonably prudent person w/ equivalent superior skill or knowledge

OR

(b) Where relevant, incorporate D’s physical attributes into the reasonably prudent person standard (e.g. blindness, height, wheelchair)

40
Q

Negligence

Special standards of care - Children

A

(a) Children under 4 are incapable of negligence
(b) Older children: (subjective) standard of care is that child must behave the same as a hypothetical child of the same age, experience, and intelligence acting under similar circumstances – EXCEPT when engaged in adult activity (then adult standard applies)

41
Q

Negligence

Special standards of care - Professionals

A

A professional is obligated to exercise the skill and knowledge normally possessed by members of the same profession in good standing

*NOT how a reasonable professional would behave

42
Q

Negligence

Special standards of care - Premises Liability

A

Concerns a property owner’s liability for a plaintiff who is harmed/injured by a hazardous condition on the land

(1) Unknown/undiscovered trespasser: no duty of care
(2) Known/anticipated trespasser: duty arises if hazardous condition meets four requirements: (a) artificial/man-made hazard; (b) highly dangerous; (c) concealed from entrant; and (d) D has prior knowledge of the condition
(3) Licensees (permission to enter, but no economic benefit to owner): duty of care if: (a) condition concealed and (b) possessor knew about condition in advance
(4) Invitees (permission to enter and economic benefit): duty of care if: (a) condition concealed and (b) possessor knew about or could have discovered through reasonable inspection

Exceptions:

(a) Police officers/firefighters never recover if injury is from inherent job risk
(b) Duty of reasonable care exists to prevent injury to child trespassers

Satisfy duty by: (a) eliminate hazard OR (b) give/put up a warning

43
Q

Negligence

Special standards of care - Statutory standards of care

A

Can borrow statutory standard of care IF

(1) P demonstrates he is member of class of persons statute is trying to protect AND
(2) P demonstrates incident is within risks statute was trying to prevent

Exceptions: don’t use statutory standard (even if satisfy test) if

(a) Statutory compliance would be more dangerous than statutory violation OR
(b) Compliance was impossible under the circumstances

44
Q

Negligence

Special standards of care - Duty to act affirmatively

A

Generally no duty to act affirmatively (but if opt into doing something, must do so with reasonable caution)

Exceptions: duty to act reasonably if

(1) Pre-existing relationship between the parties (e.g. employer-employee), or
(2) If D caused the peril, there is an duty to rescue

45
Q

Negligence

Special standards of care - Negligent infliction of emotional distress

A

D behaved negligently but P did not suffer physical harm

(1) Near miss cases: D almost physically harmed P – P must show (a) D’s negligence placed P in zone of physical danger and (b) subsequent physical manifestation of distress
(2) Bystander cases: D severely injures someone, P is third-party bystander – P must show (a) victim was close family member and (b) contemporaneous witness (close in space and time)
(3) Relationship cases: P and D are in a pre-existing business relationship, and it is highly foreseeable that careless performance by D will cause significant distress

46
Q

Negligence: Breach of duty

A

Two ways to establish

(1) P must: (a) Identify specific conduct that falls short of the standard of care; and (b) Explain why the conduct was unreasonable
(2) Res ipsa loquitor: P must prove (a) accident was a type normally associated with negligence; and (b) accident would normally have been due to the person in D’s position (exclusive control)

47
Q

Negligence: Factual Causation

A

P must establish the breach caused the injury using the “but for” test – but for the breach, the injury would not have occurred

“But for” does NOT apply IF multiple Ds

(a) Merged causes: if each negligent D’s actions merge to case harm, D liable only if satisfies “substantial factor test” (each breach capable of causing the harm by itself)
(b) Unascertainable causes: more than one breach, but unclear which caused harm; each D has burden to prove he wasn’t responsible

48
Q

Negligence: Proximate/Legal Causation

A

P must show liability would be fair – i.e., must establish harm is foreseeable
-Relevant factors for foreseeability: time, distance, unusual v. ordinary

(1) Defendant IS liable for FORESEEABLE results due to FORESEEABLE intervening forces, both dependent and independent
(a) Intervening negligent medical treatment
(b) Intervening negligent rescue
(c) Intervening reaction or protection forces
(d) Subsequent disease or accident

(2) Defendant IS usually liable for FORESEEABLE results caused by UNFORESEEABLE intervening forces
(3) Defendant is NOT liable for UNFORESEEABLE results caused by FORESEEABLE intervening forces
(4) Defendant is NOT liable for UNFORESEEABLE results caused by UNFORESEEABLE intervening forces

49
Q

Negligence: Damage

A

Eggshell skull principle: once D satisfies duty, breach, and causation, D liable for all harm – take P as you find him

Defendant is liable for ALL of the damage caused: past, present, future; economic and noneconomic

50
Q

Negligence: Defense - Comparative Negligence

A

Jury weighs P’s lack of care and D’s negligence, and jury assigns percentage of fault and damages accordingly

Majority rule: purely comparative
Minority rule: partial/modified comparative fault - P only recovers if P’s fault is under 50%

51
Q

Negligence: Defense - Strict Liability, Animals

A

(a) Domesticated animals: no strict liability, unless D has knowledge the specific animal’s dangerous propensities – but no liability wrt trespasser
(b) Wild animals: strict liability, safety precautions irrelevant

52
Q

Negligence: Affirmative defense - Comparative Responsibility

A

Jury considers behavior of both parties, assigns responsibility, and reduces damages accordingly

53
Q

Nuisance

A

Interference with ability to use and enjoy real estate to an unreasonable degree

54
Q

Vicarious Liability

A

(1) Employer-employee relationship:employer is vicariously liable for employee’s torts within the scope of employment
- Intentional torts generally outside scope of vicarious liability, unless (a) force is part of the job, (b) job causes social tensions, (c) intentional tort driven by motive of loyalty to employer

(2) Hiring part-Independent Contractor: no vicarious liability, except if IC hurts customer on property
(3) Automobile owner and automobile driver: no vicarious liability, except if driver is doing an errand for owner
(4) Parents and kids: no vicarious liability for kids’ torts

55
Q

Contributory Negligence

A

Contributory negligence is the negligence on the part of the plaintiff that contributes to her injuries.

Standard of care: same as standard for ordinary negligence

If plaintiff contributes to her injuries, she is barred from getting any damages

56
Q

Loss of Consortium Claim

A

Spouse of tort victim can raise and try to prove the following claims:

(a) Loss of services
(b) Loss of society
(c) Loss of sex

57
Q

Collateral Source Rule

A

Damages generally are not reduced or mitigated by reason of benefits received by a plaintiff from other sources

58
Q

Duty to Mitigate

A

Does not involve receipt of money

In property damage cases, P has a duty to preserve and safeguard the property

In personal injury cases, P has a duty to seek appropriate treatment to effect a cure or healing and the prevent aggravation

Failure to mitigation precludes recovery of any additional damages caused by aggravation of the injury

59
Q

Nonrecoverable Items

A

Costs that are not recoverable as damages in negligence actions, such as attorneys’ feeds and interest from the date of damage in a personal injury action

60
Q

Interference with Contract or Prospective Economic Advantage

A

Elements: P must prove

(1) Existence of a valid contractual relationship between the plaintiff and a third party or a valid business expectancy of the plaintiff
(2) The defendant’s knowledge of the expectancy
(3) Intentional interference by the defendant that induces a breach or termination of the relationship or expectancy
(4) Damage to plaintiff

61
Q

Survival Statutes

A

Survival of tort actions: survival acts allow one’s cause of action to survive the death of one or more of the parties.

The acts apply to actions involving torts to property and torts resulting in personal injury.

The acts do not apply to torts invading intangible personal interests (e.g., defamation); those expire with death

62
Q

Wrongful Death Acts

A

Wrongful Death Acts grant recovery for pecuniary injury resulting to the spouse and next of kin

Decedent’s creditor have no claim against the amount awarded

Recovery is allowed only to the extent that the deceased person could have recovered in an action had he lived. (So contributory negligence applies.)

63
Q

Negligence: Defense - Strict Liability, Types

A

(1) Wild animals
(2) Abnormally dangerous activities
(3) Products liability

64
Q

Contributory Negligence: Defenses

A

(1) Last clear chance: exception to contributory negligence – permits plaintiff to recover despite her contributory negligence because the person with the last clear chance to avoid an accident who fails to do so is liable for the negligence

65
Q

Negligence: Defense - Strict Liability, Abnormally Dangerous Acitivites

A

Strict liability if (a) activity creates a foreseeable risk of serious harm even with reasonable care and (b) activity not common in location where conducted

Certain activities almost always satisfy: explosives, handling/transporting highly toxic material, high doses of radiation or nuclear energy

66
Q

Negligence: Defense - Strict Liability, Products Liability (Defective Products)

A

Elements:

(1) Commercial supplier (merchant who regularly deals in the goods)
(a) No privity requirement

(2) Production or sale of a defective product unreasonably dangerous to users
(a) Manufacturing defect: differs from all other products from same factory and is more dangerous
(b) Design defect: danger of product outweighs value such that reasonable person wouldn’t sell it – P must prove viable alternative exists (safer but not more expensive or impractical)
(c) Information defect: product cannot be redesigned in cost-effective way, but still has residual risks that are unknown to consumer and were not communicated

(3) Actual and proximate cause
(4) Damages
(5) Defect existed when left D’s hands; and
(6) P must be making foreseeable use of product at time of injury

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