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Torts Flashcards

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1
Q

Assault

A

1) A volitional act 2) done with the intent to cause either a) harmful or offensive contact or b) apprehension of imminent harmful or offensive contact that 3) causes the reasonable apprehension of imminent harmful or offensive contact

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2
Q

Battery

A

1) A volitional act 2) done with the intent to cause either a) harmful or offensive contact or b) apprehension of imminent harmful or offensive contact that 3) causes harmful or offensive contact with P’s person

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3
Q

False Imprisonment

A

1) An act intending to confine someone within a bounded area 2) that results in such confinement & 3) P is either conscious of or harmed by the confinement

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4
Q

False Imprisonment - Shopkeeper’s Privilege

A

1) D reasonably believes a theft has occurred & 2) holds P for a reasonable time to ascertain the facts 3) in a reasonable manner

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5
Q

False Imprisonment - Crime Prevention

A

Private person may arrest someone if he has a reasonable belief that a crime involving a breach of the peace occurred

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6
Q

Trespass to Land

A

1) Entry onto or remaining upon the land 2) of another 3) without a privilege to do so

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7
Q

Trespass to Chattels

A

1) An intermeddling or dispossession 2) of another’s personal property 3) which causes harm to, or the loss of use of, the personal property

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8
Q

Conversion

A

1) Interference with P’s right of possession 2) serious enough to warrant that D pay the full value of the chattel at the time of conversion

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9
Q

Intentional Infliction of Emotional Distress

A

1) Intent to cause severe emotional distress & 2) extreme & outrageous conduct that 3) causes severe emotional distress

Insults alone aren’t enough

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10
Q

Negligent Infliction of Emotional Distress

A

Requires P to show physical harm from the emotional distress

No physical harm required if there’s mishandling of a relative’s corpse, false positive diagnosis, or where P & injured person are closely related & P was present at the scene & saw the injury

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11
Q

Abuse of Process

A

1) Using a legitimate process 2) for a wrongful purpose & 3) an act or threat against P to accomplish the wrongful purpose

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12
Q

Malicious Prosecution

A

1) Initiation of a proceeding 2) without probable cause 3) for a wrongful purpose & 4) the favorable termination of the proceeding on the merits

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13
Q

Negligence - Umbrella Rule

A

Negligence requires duty, breach of duty, actual causation, proximate causation, and harm

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14
Q

Duty - Ordinary Duty

A

D has a duty to act as a reasonable person under the circumstances. D had a duty to X to avoid Y

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15
Q

Duty of Landowners - General

A

Landowner owes no duty to protect passersby outside the premises from natural conditions

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16
Q

Duty of Landowners - General Exceptions

A

1) Duty to protect passersby from unreasonably dangerous artificial conditions abutting the land
2) Duty to take precautions to protect passersby from dangerous conditions

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17
Q

Duty to Invitee

A

Enters the land for business purpose of possessor (customer)

Duty to inspect, discover, repair/warn against known or discoverable dangerous conditions

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18
Q

Duty to Licensee

A

Enters the land for own purpose (social guest)

Duty to repair or warn against known dangers

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19
Q

Duty to Known Trespasser

A

Duty to warn of artificial, non-obvious dangerous conditions maintained by landowner

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20
Q

Attractive Nuisance Doctrine

A

P must show 1) owner knows or should know of dangerous condition on the land; 2) owner knows kids frequent the vicinity of the dangerous condition; 3) the condition is likely to cause injury because of the kid’s inability to appreciate the risk; & 4) the cost of remedying the risk is slight compared to the magnitude of the risk

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21
Q

Duty to Control the Conduct of Others

A

If D has the ability & authority to control a 3rd party or domestic animal, D has an affirmative duty to control its conduct if D knows or should know of the 3rd party or domestic animal’s propensity to act in a dangerous way

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22
Q

Firefighter’s Rule

A

Bars firefighters and police officers from recovering from injuries caused by the risks of their job or effectuating a rescue

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23
Q

Rescuer’s Rule

A

Rescuee is liable to a rescuer if the rescuee’s negligence put herself in the position to be rescued

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24
Q

Breach of Duty - ordinary

A

D breached her duty to X when she Y

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25
Q

Negligence per se

A

1) There’s a criminal law, 2) P is a member of the class of persons intended to be protected by the law, & 3) P’s harm is the type of harm intended to be protected against by the law

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26
Q

Actual Cause - But For

A

But for D’s breach, P would not have been harmed

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27
Q

Actual Cause - Concurrent Causes

A

If there are concurrent causes & either alone is sufficient as a cause, use the substantial factor test

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28
Q

Proximate Cause

A

D is liable for all harmful risks foreseeable from the conduct. It’s foreseeable that X may cause Y

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29
Q

Harm

A

P must be harmed as a result of D’s conduct. P was injured because Z

Can’t recover for purely economic harm

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30
Q

Negligence Defense - Contributory Negligence + Last Clear Chance Doctrine

A

If P is contributorily negligent, P is barred from all recovery

D is still liable if D had the last clear chance to avoid the harm

31
Q

Negligence Defense - Pure Comparative Negligence

A

Reduces recovery by the percentage of harm attributable to P’s fault

32
Q

Negligence Defense - Assumption of Risk

A

P is denied recovery if she knows of and voluntarily assumes the risk

33
Q

Negligence Defense - Emergency

A

If D didn’t create the emergency, the duty is to act a circumstantially reasonable person

34
Q

Vicarious Liability - Negligence of Employee

A

Employees are vicariously liable for the negligence of their employee committed while the employee is acting within the scope of employment

35
Q

Detour

A

If a deviation is minor in time or geographic scope, the employee is still within the scope of employment

36
Q

Frolic

A

If a deviation is not minor in time or geographic area, the employee is not within the scope of employment

37
Q

Vicarious Liability - Negligence of Independent Contractor

A

A principal is vicariously liable for the negligence of an independent contract if 1) the IC is engaged in an inherently dangerous activity, or 2) the duty is non-delegable

38
Q

Vicarious Liability - Intentional Torts

A

Employers are generally not liable for an employee’s intentional tort unless 1) force is authorized in the employment, 2) friction/tension is generated by the employment, or 3) the employee is furthering the business of the employer (show authority)

39
Q

Public Nuisance

A

A private party can only bring an action for public nuisance if the private party suffers harm different in kind from the harm suffered by the public

40
Q

Private Nuisance

A

A substantial & objectively unreasonable invasion of another’s interest in the use or enjoyment of her land

If the invasion is intentional or unreasonable, the court won’t balance the harms for an injunction

41
Q

Strict Liability - Animals

A

1) D owns a wild animal/livestock 2) that causes harm to P of a kind caused by the wildness of the animal

42
Q

Strict Liability - Abnormally Dangerous Activities

A

1) Carrying on of an abnormally dangerous activity 2) which causes harm, 3) the risk of which makes the activity abnormally dangerous

43
Q

Products Liability - General

A

The three theories of products liability are strict products liability, negligence, & breach of warranty

44
Q

Strict Products Liability - General Elements

A

1) D is in the business of selling or otherwise distributing products; 2) D sells or distributes a defective product that remains unchanged when it gets to the consumer; & 3) the defect harms a foreseeable person

45
Q

Strict Products Liability - Manufacturing Defect

A

Where the product departs from its intended design

46
Q

Strict Products Liability - Design Defect

A

There is a flaw common to the entire product line

47
Q

Design Defect - Risk-Utility Theory

A

There’s an inherently unreasonable risk because the risk of harm is significant & there’s little or no utility to the product

48
Q

Design Defect - Reasonable Alternative Theory

A

There’s a reasonable alternative design that is safer & economically feasible

49
Q

Strict Products Liability - Failure to Warn Defect

A

Products must have clear & complete warnings of dangers that may not be apparent to users

50
Q

Products Liability - Negligence

A

Same negligence elements

Manufacturer owes a duty to make safe products, & the duty extends to all foreseeable uses & bystanders if product is reasonably likely to imperial & likely to be used without tests

51
Q

Products Liability - Breach of Express Warranty

A

1) The making of an express warranty, 2) reliance by the consumer on the warranty, & 3) a breach of the warranty that harms a foreseeable person

52
Q

Products Liability - Breach of Implied Warranty of Merchantability

A

1) The existence of the warranty, 2) reliance on it by the purchaser, 3) breach, & 4) the breach proximately caused the harm

Merchantability - the goods are sold by a merchant & are of average quality & fit for their ordinary purpose

53
Q

Products Liability - Breach of Implied Warranty of Fitness for a Particular Purpose

A

1) Existence of the warranty, 2) breach, & 3) the breach proximately caused the harm

Seller knows of buyer’s special needs at the time of sale & recommends the product with that in mind

54
Q

Defamation - Elements

A

1) A defamatory statement, 2) of or concerning P, 3) publication, & 4) harm to P’s reputation

55
Q

Slander per se Categories

A

1) Accusation of crime
2) Imputes presence of contagious or loathsome disease
3) Statement about P’s business or profession
4) Impotence or want of chastity
5) Statement that causes actual damage

56
Q

Slander Damages

A

Unless slander per se, no recovery for slander absent proof of special damages (pecuniary loss)

57
Q

Libel Damages

A

Libel per se (defamatory on its face) has presumed damages

Libel per quod, requiring proof of extrinsic facts (inducement) & the defamatory meaning in light of those facts (innuendo), requires proof of special damages before awarding general damages

58
Q

Defamation Defenses

A

Truth

Privilege

59
Q

Defamation Defense - Absolute Privilege

A

Applies to remarks made: during judicial proceedings, by legislators during proceedings, by federal executive officials, in compelled broadcasts, & between spouses

60
Q

Defamation Defense - Qualified Privilege

A

Applies to: reports of official proceedings, statements in the publisher’s interest, statements in the recipient’s interest, & statements in the publisher & recipient’s common interest

Privilege lost if the statement isn’t within the scope of privilege or speaker had malice

61
Q

Defamation of Public Officials & Public Figures

A

P must also prove that the statement was false & made with actual malice (intent or recklessness)

62
Q

Defamation of Private Person & Matters of Public Concern

A

P must also prove falsity & that D made the false statement at least negligently

To get presumed damages or punitive damages, P must show malice

63
Q

Intrusion

A

Unreasonable & serious interference with another’s interest in not having her affairs known

64
Q

Public Disclosure of Private Fact

A

1) Public disclosure 2) of a private fact 3) that isn’t of legitimate public concern 4) that would be offensive & objectionable to a reasonable person

65
Q

False Light

A

1) D publicizes a private matter concerning P 2) that places P before the public in a false light 3) that would be highly offensive to a reasonable person, & 4) if it’s a matter of public interest, D acted with malice

66
Q

Appropriation

A

1) Use 2) of P’s identity 3) by D 4) for D’s commercial purposes

67
Q

Intentional Misrepresentation

A

1) D made a false representation concerning a presently existing material fact 2) that D either a) knew was false or b) made recklessly 3) to induce P to act on the representation, 4) P reasonably relied on it, & 5) was thereby induced to act to her injury

68
Q

Negligent Misrepresentation

A

1) D made a false representation concerning a presently existing material fact 2) that D honestly but unreasonably believed to be true 3) to induce P to act on the representation, 4) P reasonably relied on it, & 5) was thereby induced to act to her injury

69
Q

Deceit (Concealment)

A

1) D omits a material fact making what D said misleading or untrue 2) to induce P to act on the representation, 3) P reasonably relied on it, & 4) P was induced to act to her injury

70
Q

Intentional Interference with a Contract

A

1) Intentional & 2) improper or unlawful 3) interference 4) in a K between two other people 5) causing one of them to not perform the K

71
Q

Interference with Prospective Economic Relations

A

1) An economic relationship between P & a 3rd party 2) that D knows about; 3) intentional, wrongful acts, independent of the interference itself, designed to disrupt the relationship; 4) actual disruption of the relationship; & 5) damages proximately caused by the acts

72
Q

Contribution

A

Allows a D required to pay more than her share of the damages to have a claim against the other jointly & severally liable Ds for the excess paid

73
Q

Indemnity

A

Involves shifting the entire loss between or among tortfeasors

Available by K; where party is only vicariously liable; where different levels of fault exist; & in strict products liability, one D in the vertical chain of distribution can get indemnification from any D higher up the chain

74
Q

Res Ipsa Loquitor

A

Negligence is inferred if 1) D had control of the instrumentality of harm & 2) the harm wouldn’t have occurred in the absence of negligence

Used when the act constituting the breach is unknown

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