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MBE > Torts > Flashcards

Torts Flashcards

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1
Q

Battery

A
  • D causes harmful or offensive contact with person of another
  • Acts with intent to cause the contact or apprehension of such contact (i.e., desires to bring about harm or knows that it is substantially certain to occur)

Transferred intent applies
Reasonable person standard

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2
Q

Eggshell plaintiff rule

A

D is L for all harm that flows from battery, even if it is much worse than he expected it to be

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3
Q

Assault

A
  • P’s reasonable apprehension of imminent harmful of offensive contact
  • D must intend to cause either apprehension of contact or contact itself
  • Mere words not enough; need words + circumstances
  • P must be aware of D’s act

Transferred intent applies

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4
Q

Intentional infliction of emotional distress

A
  • Extreme or outrageous conduct intentionally causing severe emotional distress
  • D must intend to cause or act with recklessness of causing such distress

D who directs his conduct at third-party victim can also be L to

  • Victim’s immediate family member who is present at time of conduct
  • Bystander who is present at time of conduct and who suffers distress that results in bodily injury
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5
Q

False imprisonment

A
  • D intends to confine or restrain another within fixed boundaries;
  • Actions directly or indirectly result in confinement; and
  • P is conscious of confinement or harmed by it

Intent – purposeful act or knowing confinement is substantially certain to result

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6
Q

Shopkeeper’s privilege

A

Shopkeeper can, for reasonable time and in reasonable manner, detain suspected shoplifter

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7
Q

Defenses

A
  1. Consent
  2. Self-defense
  3. Defense of others
  4. Defense of property
  5. Parental discipline
  6. Privilege of arrest
    - Private citizen
    a. Felony – has been committed and reasonable grounds to believe suspect committed it
    b. Misdemeanor – has been or reasonably appears that it will be committed in his presence and is breach of the peace
    - Police officer
    a. Felony – same standard as private citizen
    b. Misdemeanor – has been or reasonably appears that it will be committed in his presence
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8
Q

Trespass to chattel

A

Intentional interference with P’s right of possession by either

  • Dispossessing or
  • Using or intermeddling with P’s chattel

Only intent to do the act is necessary; transferred intent applies

Damages – actual, loss of use, or cost of repair

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9
Q

Conversion

A

D intentionally commits act depriving P of possession of his chattel or interfering with P’s chattel in manner so serious as to deprive him entirely of use of it

Only intent to commit the interfering act is necessary

Damages – full value of property at time of conversion

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10
Q

Comparing trespass to chattels to conversion

A

Courts consider

  • Duration and extent of interference;
  • D’s intent to assert right inconsistent with rightful possessor;
  • D’s good faith;
  • Expense of inconvenience to P; and
  • Extent of harm
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11
Q

Trespass to land

A

D intentionally causes physical invasion of someone else’s land

Only intent to enter land or cause physical invasion

P can be anyone in actual or constructive possession of land

Necessity defense
Private – qualified privilege to protect an interest of D if reasonably necessary to protect from injury; L for actual damages
Public – absolute privilege to intrude upon private property to protect a large number of people from public calamities (e.g., spread of fire or disease); not L for damages

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12
Q

Private nuisance

A

Substantial and unreasonable interference with another’s use or enjoyment of his land

  • Substantial = offensive, inconvenient, or annoying to the average person
  • Unreasonable = injury outweighs utility

Defenses

  • Regulatory compliance – incomplete defense
  • Coming to the nuisance – does not entitle D to judgment as matter of law but jury may consider
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13
Q

Public nuisance

A

Unreasonable interference with right common to general public

Cannot recover unless individual has been harmed in special or unique way, different from public

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14
Q

Negligence – elements

A

Failure to exercise care a reasonable person would exercise (i.e., to prevent foreseeable risk of harm to anyone in P’s position)

Elements

  • Duty
  • Breach
  • Causation
  • Damages
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15
Q

Duty

A

Owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care

Failure to act – generally, no duty to act
- Exceptions: assumption of duty; placing another in peril; by K; by relationship (e.g., employer-employee, parent-child)

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16
Q

Negligence – standard of care

A

Reasonably prudent person standard –objective

Evidence of custom – admissible but not conclusive in establishing proper standard of care
- Physicians – traditional rule is “same or similar locale” standard; many changing to national standard

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17
Q

Negligence per se

A

Criminal or regulatory statute imposes a specific duty for protection of others

  • D neglects to perform that duty
  • D liable to anyone in class of people intended to be protected by statute
  • For harm of the type stature was intended to protect against
  • That were proximately caused by D’s violation

Defenses

  • Compliance impossible or more dangerous than noncompliance
  • Violation reasonable under the circumstances (IL DIS)
  • Statutory vagueness or ambiguity
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18
Q

Standards of care for specific classes of defendants

A
  • Common carriers – highest duty of care consistent with practical operations of business
  • Innkeepers – ordinary negligence (majority)
  • Automobile drivers – ordinary care to guests as well as passengers (majority)
  • Bailor – duty to warn all bailees of known dangerous defects and bailees for hire of defects bailor should have known about with reasonable diligence
    Bailee – gratuitous only L for gross negligence; bailee for hire must exercise extraordinary care; bailee for mutual benefit must take reasonable care
    Sellers of real property – duty to disclose, known, concealed, unreasonably dangerous conditions
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19
Q

Standard for possessors of land – trespassers

A

Refrain from willful, wanton, reckless, or intentional misconduct (e.g., no spring-guns)

  • Discovered – warn or protect against concealed, dangerous, artificial conditions
  • Undiscovered –generally no duty unless owner should reasonably know
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20
Q

Attractive nuisance doctrine

A

L for injuries to trespassing children if

  • Artificial condition poses unreasonable risk of serious bodily injury,
  • Children cannot appreciate danger,
  • Burden of eliminating danger slight compared to risk of harm, and
  • Owner fails to exercise reasonable care

IL DIS: NO attractive nuisance theory, but a landowner may still be L for injuries to children based on failure to take preventative action to avoid injuries

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21
Q

Standard for possessors of land – invitees

A

Invited to enter for purposes for which the land is help open or for business purposes

  • Reasonable duty to inspect, discover dangerous conditions, and protect invitee from them
  • Duty does not extend beyond scope of invitation
22
Q

Standard for possessors of land – licensees

A

Enters land of another with permission or privilege (social guest; emergency personnel)

  • Warn of concealed dangers that are known or should be obvious
  • No duty to inspect

IL DIS: same duty owed to invitees

23
Q

Negligence – breach or violation of duty of care

A

Traditional – compare D’s conduct with what reasonably prudent person would do under the circumstances

Modern/Restatement – cost-benefit analysis

24
Q

Res ipsa loquitur

A

Circumstantial evidence establishes an inference of negligence

  • P’s harm would not have occurred if D used ordinary care (no injury would typically occur in absence of negligence)
  • P not responsible for injury
  • P’s injury under D’s exclusive control
25
Q

Negligence –causation

A

Cause in fact – “but for” D’s act/omission, injury would not have occurred
- Joint and several L – may apply if 2+ Ds are each factual cause of indivisible injury or Ds acted with common plan or design

Proximate cause

  • Foreseeability – D liable for reasonably foreseeable consequences of foreseeable type
  • P can recover if P was a foreseeable victim of D’s conduct
  • Superseding cause – breaks chain of PC, D not L; unforeseeable intervening cause (criminal act, intentional tort)
26
Q

Negligence – damages

A

Actual damages –for negligence –must prove actual injury (personal injury or property damage), not just economic loss

Compensatory damages –make the victim whole

Duty to mitigate – not duty to D but may reduce P’s recovery

27
Q

Negligent infliction of emotional distress

A

D’s negligence creates foreseeable risk of injury to P and D’s actions cause a threat of physical impact that causes emotional distress

  • Bystander must be within zone of danger; if not, may be allowed if close relationship to injured person, present at scene, and personally observed injury
28
Q

Wrongful death

A

Recoverable damages include loss of support, companionship, society, and affection but not pain/suffering of P; recovery limited to what decedent could recover

29
Q

Vicarious liability

A
  1. Liability of employer for employee’s torts
    - Generally, only L if within employer’s right to control
    - Tort within scope of employment; not L for intentional torts unless force inherent in job
    - Employer may be L for detour (minor deviation) but not frolic (major deviation)
  2. Independent contractors – not L except for
    - Negligent selection of IC
    - Vicarious L for non-delegable duty, or
    - Vicarious L for IC engaged in inherently dangerous activity
  3. Dram shop L – CoA against seller of intoxicating beverages when third party is subsequently injured due to buyer’s intoxication
30
Q

Joint and several liability

A

Each D found L for single indivisible harm L for the entire harm
- Need to be able to show that all of the Ds were negligent

31
Q

Pure several liability

A

Each D liable only for his proportionate share

32
Q

Contributory negligence

A

P’s fault is complete bar to recover (CL/traditional rule)

  • Last clear chance rule – P may mitigate legal effect of own fault if D had last clear chance to avoid injuring P
33
Q

Comparative fault

A

Pure – P’s damages reduced by proportion that P’s fault bears to total harm

Partial – if P is less at fault than Ds combined, P’s recovery is reduced by percentage of fault
- If P is more at fault than Ds combined, P recovers nothing

34
Q

Assumption of risk

A

Unreasonably proceeding in face of known, specific risk bars recovery

  • Contributory negligence – bars recovery
  • Comparative fault – reduces recovery
35
Q

Abnormally dangerous activities (SL)

A

Not commonly engaged in; inherent, foreseeable, and highly significant risk of harm
- SL limited to harm expected from activity

36
Q

Wild animals

A

Not by custom devoted to the service of humankind where it is being kept

  • Owner is SL for harm done by wild animal despite owner’s precautions to prevent harm, as long as harm arises from dangerous propensity characteristic of animal or about which owner has reason to know
  • Owner SL for reasonably foreseeable damage caused by trespassing animal
  • Owner SL for injuries caused by P’s fearful reaction to unrestrained wild animal
  • Owner not SL to undiscovered trespasser except for injuries by vicious watchdog
37
Q

Domestic animals

A
  • Owner SL for injuries if knows or has reason to know of dangerous propensities and harm results
  • Owner SL for reasonably foreseeable damage caused by trespassing household pets if owner knows or has reason to know that the pet is intruding on another’s property in a way that has a tendency to cause substantial harm
38
Q

Defenses to SL

A
  1. Contributory negligence – does not bar recovery
  2. Comparative fault –may reduce P’s recovery
  3. Assumption of risk – bars recovery
39
Q

Products liability (SL)

A
  • Product was defective (in manufacture, design, or failure to warn)
  • Defect existed when it left D’s control
  • Defect caused P’s injury when used in reasonably foreseeable way

Ps – not required to be in privity; anyone foreseeably injured may recover
Ds – must be in business of selling (includes manufacturer, distributor, and retail seller)

Damages – musty have personal injury or property damage; pure economic loss only under warranty action

40
Q

Manufacturing defect

A

Product does not conform to D’s own specifications

41
Q

Design defect

A

Consumer expectations test – dangerous beyond expectation of ordinary consumer

Risk-utility test – risks outweigh benefits and reasonable alternative design (economically feasible) available; failure to use design rendered product unreasonably safe

42
Q

Failure to warn

A
  • Foreseeable risk of harm,
  • Not obvious to ordinary user of product, and
  • Risks could have been reduced or avoided with reasonable instructions or warnings
43
Q

Learned-intermediary rule

A

Manufacturer of prescription drug typically satisfies duty to warn by warning prescribing physician of problems with the drug

44
Q

Defamation

A
  • Defamatory language – diminishing respect, esteem, or goodwill toward P
  • Of or concerning P
  • Publication – communication to third party
  • Falsity – required for public officials/figures
  • Fault – actual malice for public officials/figures (i.e., D knew statement was false or acted with reckless disregard of its truth); negligence for private figures
45
Q

Defenses to defamation

A
  • Truth
  • Consent
  • Absolute privilege
  • Qualified privilege
46
Q

Intrusion upon seclusion

A

D’s act of intrusion into P’s private affairs, objectionable to reasonable person
- No publication required

47
Q

False light

A

Publication of facts about P or attributing views/actions to P that place him in false light objectionable to reasonable person under circumstances

48
Q

Misappropriation

A

Unauthorized use of P’s picture or name for D’s advantage; lack of consent; injury

49
Q

Public disclosure of private facts

A

Public disclosure of private facts about P that would be highly offensive to reasonable person and is not of legitimate concern to the public

50
Q

Intentional misrepresentation

A
  • False representation of material fact
  • Scienter – knowledge or reckless disregard of truth
  • Intent to induce P to act or refrain in reliance on misrepresentation
  • Causation – actual reliance
  • Justifiable reliance – not justifiable if statement obviously false or lay opinion
  • Damages – actual economic loss/consequential damages
51
Q

Negligent misrepresentation

A
  • D provides false information to P as a result of D’s negligence in course of D’s business or profession
  • P justifiably relies on information and incurs pecuniary damages as a result

MBE (8 decks)

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