Torts Flashcards
What is a tort?
A tort is a civil wrong that is the basis for a legal course of action.
When does a tort occur.
- A tort occurs when a person violates a duty to others.
- A tort occurs when someone deliberately, or through carelessness, causes harm or loss to another person, or to that person’s property.
A __________is a civil wrong that is the basis for legal cause of action.
tort
A tort is a civil wrong that is the basis for a _________________.
legal cause of action
A _________ occurs when a person violates a duty to others.
tort
A tort occurs when a person violates a ____________to others.
duty
A _______________ occurs when someone deliberately, or through carelessness, causes harm or loss to another person, or to that person’s property.
tort
Define Intentional Tort
A tort committed by someone acting with general or specific intent.
A tort committed by someone acting with general or specific intent is called a _________________.
intentional tort
Name 7 Intentional Torts Against Persons
- Assault
- Battery
- False Imprisonment
- Defamation of Character
- Misappropriation of the Right to Publicity
- Invasion of the Right to Privacy
- Intentional Infliction of Emotional Distress (IIED)
Does the law protect a person from unauthorized touching, restraint, or other contact?
Yes
Does the law protect a person’s reputation and privacy?
Yes
The law protects a person from _______________ touching, ____________, or other contact.
- Unauthorized
2. Restraint
The law protects a person’s _____________ and privacy.
reputation
The law protects a person’s reputation and ____________.
privacy
What is Assault as a tort?
It is a civil wrong - not a criminal wrong. It is the threat of immediate harm or offensive contact, or any action that causes reasonable apprehension of imminent harm.
Threat of immediate harm or offensive contact, or any action that arouses reasonable apprehension of imminent harm is what kind of tort?
assault
If someone makes you think s/he is about to hurt you it is an assault tort. What is the term used for the action?
reasonable apprehension of imminent harm
An assault tort is a threat of immediate harm or offensive contact, or any action that causes _______________________________.
reasonable apprehension of imminent harm.
Spell imenent. ⬅Not the correct spelling
im-mi-nent
What is Battery as a tort?
The unauthorized and harmful or offensive physical contact with another person.
The unauthorized and harmful or offensive physical contact with another person is ____________.
battery
In a battery tort, the __________ ______________ is the person’s reasonable sense of dignity and safety.
interest protected
In a battery tort, the interest protected is the person’s _____________________________________.
reasonable sense of dignity and safety
In a battery tort, does there have to be direct contact?
No.
True or False: There does not have to be direct contact in a battery tort.
True
Examples of indirect contact in battery tort:
Rock thrown, bullet, pulling chair, poison
What is the Doctrine of Transferred Intent?
Intent that the law may shift from an originally intended wrongful act to a wrongful act actually committed. For example, if you throw a rock at me, but hit the guy behind me instead, the intent may be transferred to the actual act: you hit the guy behind me with a rock=battery=it does not release you from liability just because your original intention was to harm me. The intent transfers to the guy behind me.
Doctrine of transferred intent
From target to actual victim
What is False Imprisonment?
The intentional confinement or restraint of another person without authority or justification and without that Preston’s consent constitutes false imprisonment.
Victim may be restrained by physical force, barriers, threats of physical harm or false assertion of legal authority.
If Jac locked the paralegal class in the room while we were taking an exam and came back before anyone had finished or tried to leave is that false imprisonment?
No. One must know s/he is imprisoned.
Intentional confinement or restraint of another person without authority or justification and without that person’s consent constitutes ___________________.
false imprisonment
What methods can be used to constitute false imprisonment?
physical force, barriers, threats of physical harm, or false assertion of legal authority.
True or False? You can’t be falsely imprisoned if you don’t know.
True
Merchant Protection Statutes
laws that allow shopkeepers to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment.
____________________ allows shopkeepers to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment.
Merchant Protection Statutes
What conditions must a shopkeeper follow to be within the guidelines for Merchant Protection Statutes?
- There are reasonable for suspicion.
- Suspects are detained for only a reasonable time; and
- Investigations are conducted in a reasonable manner.
What is the key word for the 3 conditions of the Merchant Protection Statutes?
REASONABLE (reasonable suspicion, reasonable time, reasonable manner)
Defamation of Character
The act of harming the reputation of another by making a false statement to a third person.
Who is protected during his or her lifetime from false statements by others?
Everyone
For Defamation of Character to be a tort what conditions must be met?
- The defendant made an untrue statement of fact about the plaintiff; and
- The statement was intentionally or accidentally published to a third party.
When an untrue statement of fact is made about me by my neighbor to my parents, is that defamation of character? Why or why not?
Yes. It is an untrue statement of fact about me, and it was published to a third party.
What is “published” when talking about Defamation of Character?
simply means that a third person heard or saw the untrue statement. It does not mean to appear newspapers, magazines, or books.
My neighbor told me to my face, when the two of us were having coffee at her house, that I am a actually a man, which is not true. Is that Defamation of Character? Why or why not?
No. It was an untrue statement of fact (first condition), but it was not published to a third party (no third person heard or saw my neighbor say that)
What is the difference between slander and libel?
Slander is an oral defamatory statement and libel is a defamatory statement that appears in a letter, newspaper magazine book, photograph, movie, radio, television, or video.
What is Libel?
A defamatory statement that appears in a letter, newspaper, magazine, book, photography, movie, radio, television, or video.
What is Slander
An oral defamatory statement
My neighbor told my other neighbor that it her strongest opinion that I am actually a dude. Can I sue for defamation of character? why or why not?
No. It’s not defamation of character because opinion is protected.
Is Opinion protected in defamation of character?
Yes. Opinion is not the same as statement of fact.
Opinion is protected.
Opinion is not the same as statement of fact.
What is a complete defense to defamation?
Truth
If the statement made about me by my neighbor to my parents, turned out to be true, is that defamation? why or why not?
No. If the statement is true, it is not defamation.
Truth in defamatory tort is a ________________________.
complete defense
What about famous people? What’s different?
The plaintiff must be able to prove the defendant acted with “actual malice”
What Supreme Court case made a ruling on Defamation of Character in regards to famous people?
New York Times v. Sullivan
What does “actual malice” mean?
the defendant made the false statement knowingly or with reckless disregard of its falsity.
Fame has grown to include public officials like movie stars, sports personalities, or other celebs.
like Kim Kardashian. :/
What is Misappropriation of the Right to Publicity?
Each person has the exclusive legal right to control profit from the commercial use of his or her name and personality.
_____________________________says that each person has the exclusive legal right to control and profit from the commercial use of his or her name and personality.
Misappropriation of the Right to Publicity
Spell ms.apropri-a-shun.
M-I-S-A-P-P-R-O-P-R-I-A-T-I-O-N
Any attempt by another person to profit off of someone else’s name or personality is ______________________.
actionable
What can a plaintiff in a misappropriation of the right to publicity tort?
- Recover unauthorized profits, and
2. Obtain and injuction.
What is Invasion of the Right to Privacy?
The violation of a person’s right to live without being unwarranted and undesired publicity.
The violation of a person’s right to live without being subjected to unwarranted and undesired publicity is ____________________________.
invasion of the right to privacy.
Invasion of the Right to Privacy is the violation of a person’s right to live without being subject to ____________________________________.
unwarranted and undesired publicity
What are some examples of Invasion of the Right to Privacy?
reading someone else’s mail, email, and wiretapping
What’s the acronym for Intentional Infliction of Emotional Distress?
IIED
What does IIED stand for?
Intentional Infliction of Emotional Distress
To prove IIED a plaintiff must prove that a defendant’s conduct was _____________________________
______________________________.
“so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.”
What is IIED?
When a person’s extreme and outrageous conduct intentionally causes severe emotional distress to another.
If a person’s ___________________
_______________________ intentionally causes severe emotional distress to another, that’s IIED.
extreme and outrageous conduct
Spell OutRageUs
O-U-T-R-A-G-E-O-U-S
For an IIED most states require that the mental distress _____________
_______________________________
______________________________.
be manifested by some form of physical injury, discomfort, or illness, such as insomnia, nausea, ulcers, or headaches.
Intentional Torts Against Property
an intentional tort involving damage to property
What are the two broad categories of property?
- Real property
2. Personal Property
What is Real Property?
land and anything attached to it
What is Personal Property?
Things that are movable like cars, books, clothes, pets.
What is Tresspass to Land?
Trespass to land is interference with an owner’s right to exclusive possession of land.
Is actual harm to the property necessary in a trespass to land tort?
No
_____________________ is interference with an owners right to exclusive possession of land.
Trespass to land
Trespass to personal property is ____________________
______________________________________________.
when one person injures another’s personal property or interferes with the enjoyment of the property.
__________________________ is when one person injures another’s property or interferes with the enjoyment of the property.
Trespass to personal property
Is negligence intentional?
No
Negligence Tort is when an _____________ tort.
unintentional
Define Negligence
“the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do”
A person is liable for harm that is the __________________
_________________ of his or her actions.
foreseeable consequence
The “omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do” is ______________________.
negligence
What is a Tortfeasor?
Someone who commits a tort.
What are the elements of negligence?
Plaintiff must prove that:
- Tortfeasor owed a duty of care to plaintiff;
- Defendant breached that duty;
- Plaintiff suffered injury; and
- The breach caused the injury.
Is actual harm to the property necessary in a trespass to land tort?
No
_____________________ is interference with an owners right to exclusive possession of land.
Trespass to land
Trespass to personal property is ____________________
______________________________________________.
when one person injures another’s personal property or interferes with the enjoyment of the property.
__________________________ is when one person injures another’s property or interferes with the enjoyment of the property.
Trespass to personal property
Is negligence intentional?
No
Negligence Tort is when an _____________ tort.
unintentional
Define Negligence
“the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do”
A person is liable for harm that is the __________________
_________________ of his or her actions.
foreseeable consequence
The “omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do” is ______________________.
negligence
What is a Tortfeasor?
Someone who commits a tort.
What are the elements of negligence?
Plaintiff must prove that:
- Tortfeasor owed a duty of care to plaintiff;
- Defendant breached that duty;
- Plaintiff suffered injury; and
- The breach caused the injury.
What is Duty of Reasonable Care?
the obligation we all owe each other - the duty NOT to cause any unreasonable harm or risk of harm.
What duty of reasonable care do businesses owe?
the duty to make safe products, and not to cause accidents
What is the Reasonable Person standard?
how an objective, careful, and conscientious person would have acted in the same circumstances
Subjective intent
“I did not mean to do it”
Subjective intent is ______________ in asserting liability.
immaterial
duty to ____ cause harm
NOT
Breach of Duty
A duty was owed, and the breach is the failure to exercise care. The failure to act as a reasonable person would act. May be an action, or a failure to act when there is a duty.
If there is a breach and no injury is the breach actionable?
No.
Injury to Plaintiff
In negligence, something must actually be damaged
Even if there is a breach, it is not ____________ unless the plaintiff suffers an ________________.
- actionable 2. injury
Negligence-no injury =
no tort
Can you have the same injury as someone else in a negligence tort and receive different damages?
yes. same injury, different damages. ex. hand damage to Metta World Peace or me
Cause-in-Fact
But for test; Substantial factor test
But for test; Substantial factor test
Cause-in Fact
Proximate Cause
Forseeability; intervening cause
Forseeability; Intervening cause
Proximate Cause
What is the “but for” (Cause-in-Fact)
Requires that plaintiff prove by a preponderance of the evidence tht, but for the defendant’s negligent act, plaintiff would not have been injured
define preponderance
more likely than not
The ___________________ requires that a plaintiff prove by a _________________ of the evidence, that, ____________ the defendant’s negligent act, plaintiff would not have been injured.
- “but for” test
- preponderance
- but for
In cause-in-fact, for the “but for” test, the plaintiff must__________________________
_____________________________
____________________________.
produce sufficient evidence of cause-in-fact; jury may not speculate.
What is the difference between “prove by a preponderance of the evidence” and “prove beyond a reasonable doubt”
Prove beyond a preponderance is used in civil negligence torts and is “more likely than not” and in a criminal case you must prove “beyond a reasonable doubt”
If “but for” fails what test do the courts apply?
the “substantial factor” test
What is concurrent causes: cause-in-fact
the substantial factor analysis where two or more events of negligence result in an injury (concurrent cause cases), courts will find a defendant’s conduct to be a cause-in fact of plaintiff’s injury if it was “a material and substantial factor” in causing plaintiff’s injury.
What are concurrent cause cases?
Where two or more events of negligence result in an injury
In a concurrent cause case, courts will find a defendant’s conduct to be __________________ of a plaintiff’s injury if it was a _______________________________
in causing plaintiff’s injury.
- cause-in-fact
2. material and substantial factor
In ________________________________ cases, the _____________________________ rule prevents defendant from avoiding liability (under a “but for” test) merely because another event also contributed to plaintiff’s injury.
- concurrent cause
2. concurrent cause liability
The ___________________________ applies where two or more events contribute to an indivisible injury.
substantial factor test
What test applies where two or more events contribute to an indivisible injury?
substantial factor test
Substantial Factor Test
the test that applies where two or more events contribute to an indivisible injury..
The element of ________________________determines the scope of defendant’s liability.
proximate cause
Proximate cause again introduces the concept of ___________________ into the analysis.
forseeability
What is the difference between the concern of “legal duty” with foreseeable risk and the “proximate cause” concern of foreseeable risk?
“legal duty” is concerned with foreseeable risk to others in the general sense and proximate cause is concerned whether the defendant could foresee the risk which caused the accident that injured plaintiff
Foreseeability as Determining Liability was first introduced in what case?
Palsgraf v. Long Island RR
Foreseeability as Determining Liability is applied by courts to ____________________
___________________________________.
limit the defendant’s liability on the basis of fairness and policy considerations. The concept is also applied to an alleged intervening cause, and liability may be imposed where the ultimate injury is foreseeable, even if the so-called intervening cause was not, or where the intervening cause was itself foreseeable.
Translation of Res Ipsa Loquitur
Latin for “the thing speaks for itself”
What is the Latin term for “the thing speaks for itself”
Res Ipsa Loquitur
What does the doctrine of Res Ipsa Loquitur (the thing speaks for itself) do?
It switches the burden to the defendant to prove s/he was NOT negligent.
If a defendant is in control of a situation in which plaintiff was injured, and has superior knowledge of the circumstances surrounding the injury, the plaintiff might have proving negligence. What doctrine applies? and what does that mean?
Doctrine - Res Ipsa Loquitur
Meaning - the doctrine raises a presumption of negligence and switches the burden to the defendant to prove s/he was NOT negligent.
Res Ipsa Loquitur applies when
1_____________________
2_____________________.
- The defendant had exclusive control over the instrumentality or situation that caused injury;
- The injury ordinarily would not have occurred “but for” someone’s negligence.
Liability of Landowners
Owners and renters of real property owe certain duties to protect visitors from injury.
The liability depends on the visitors status.
Invitees and licensees are owed a duty of ordinary care.
Trespassers are owed a duty not to willfully injure a trespasser.
What is the liability of landowner to a trespasser?
To not willfully injure a trespasser.
What is the liability of landowner to an invitee or licensee?
A duty of ordinary care.
Do owners and renters of real property owe certian duties to protect visitors from injury?
Yes.
__________________________ concerns the certain duties that owners and renters of real property have to protect visitors from injury.
Liability of landowners
Name the 5 defenses against negligence.
- Superseding or Intervening Event
- Assumption of the Risk
- Contributory Negligence
- Comparative Negligence
- Doctrine of Strict Liability
What is a superseding or intervening event as a defense to negligence?
A person is liable only for foreseeable events, so a defendant can raise a superseding as a defense to liability. (ex. golfer negligently hits Jill, a spectator, with a golf ball. while waiting for the ambulance, Jill is hit by lighting and dies. Golfer not liable for Jill’s death by lightning)
What is Assumption of the Risk as defense to Negligence?
If a plaintiff knows of, and voluntarily enters into or participates in, a risky activity that results in injury, the law recognizes that the plaintiff assumed the risk involved.
When a plaintiff knows and voluntarily enters into a risky activity that results in injury the defense for negligence is ________________________________.
Assumption of the Risk
Does Texas use Contributory Negligence?
No.
What is Contributory Negligence?
A plaintiff who is partially at fault for the injury cannot recover against the negligent defendant. (If a driver hits a jaywalker, and the court decides the jaywalker is 20% at fault, then the jaywalker cannot recover anything)
What is Comparative Negligence?
Damages are apportioned according to fault.
Several states, including Texas, have adopted ____________________________________, which it calls proportionate responsibility, under which the plaintiff takes nothing if his/her share is 50% or more.
partial comparative negligence
Partial Comparative Negligence is___________
_________________________________
_________________________________.
called proportionate responsibility, under which the plaintiff takes nothing if his/her share is 50% or more. (Texas uses this)
Several states, including Texas, have adopted partial comparative negligence, which it calls _______________________________, under which the plaintiff takes nothing if his/her share is 50% or more.
partial comparative negligence
Doctrine of Strict Liability
If an entity sells a defective product that is unreasonably dangerous, it will be liable for harm caused to the user or property. It applies only to sellers who are in the business of selling, not casual sellers, applies only to products, not services, and all parties in the chain of distribution are strictly liable. (babies-r-us responsible for crib that kills babies, as well as maker of crib)
Does the Doctrine of Strict Liability sell to casual sellers, if you buy something from your neighbors garage sale?
No.
Who is liable under the doctrine of strict liability in the following:
A subcomponent manufacturer produces a defective tire and sells it to a truck manufacturer. The truck manufacturer puts the tire on one of it’s new trucks. The truck is distributed by a distributor to the dealer, who sells it to a buyer, who has an accident caused by the defective tire.
All those parties are strictly liable.
What is the statute of limitations for Medical Malpractice in Texas?
2 years from time of tort.
What was the discovery rule in Texas for medical malpractice?
The discovery rule used to determine when you start the 2 year statute of limitations. When you discovered the tort, the statute of limitations started, but George W. Bush got rid of the Discovery Rule as part of “Tort Reform”
What is the statute of limitations for Legal Malpractice?
4 years
What must you prove in Legal Malpractice?
must prove that you would have won
How did the medical malpractice cap of $250,000 become law?
We voted on it.
What are damages in a civil action?
The money, monetary compensation awarded by a court in a civil action to a plaintiff who has been injured through the wrongful conduct of the defendant.
Damage is_________________________.
physical harm caused to something in such a way as to impair its value, usefulness, or normal function.
What is the difference between damage and damages?
Damage is physical harm caused to something in such a way as to impair its value, usefulness, or normal function and Damages is money, monetary compensation awarded by a court in a civil action to a plaintiff who has been injured through the wrongful conduct of the defendant.
What are the kinds of damages that can be awarded?
- Compensatory Damages
- Punitive Damages
- Speculative Damages
- Statutory Damages
What are Compensatory Damages
Sometimes called “actual damages” include things like medical costs, repair or replacement costs, lost wages, pain and suffering, loss of enjoyment, loss of consortium, Compensatory Damages are usually divided into economic and noneconomic damages.
Things like medical costs, repair or replacement costs, lost wages, pain and suffering, loss of enjoyment, and loss of consortium are awarded with _____________________________________.
Compensatory Damages
Compensatory Damages are usually divided into ______________________________.
economic and non-economic damages
What is the term for “actual damages”
Compensatory Damages
What are Punitive Damages
sometimes called “exemplary damages” Damages awarded as apenalty or to punish the defendant. They are not awarded for compensatory purposes and they are not economic or non-economic.
What is the term for “exemplary damages”
Punitive Damages
What purpose do punitive damages serve?
awarded as a penalty or to punish the defendant
What are Speculative Damages
Sometimes called “future damages” they are damages that are not yet incurred, but are reasonable expected to be incurred as a result of the injury
What is the term for “future damages”
Speculative Damages
What are Statutory Damages
Damages that are set by statue.. “if X happens it’s worth Z”
Can attorney fees be damages?
Yes, attorney fees are also damages and may be set by statute or contract.
What is IOLTA?
Interest on Lawyers Trust Account
What goes into IOLTA?
Retainer (unearned fee), settlement money before distribution
Who gets the interest on IOLTA?
The State Board and it is used for legal services for indigenous Texans
