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UBE Bar Exam Flashcards > Torts > Flashcards

Torts Flashcards

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1
Q

Proximate Cause

A

Legal Cause, deals with limitations of liability for unforeseeable/unusual consequences

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2
Q

Negligence

A

Breach of duty which causes damages

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3
Q

Professionals

A

Required to possess the knowledge or skill of a good standing member of the profession

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4
Q

Negligent Infliction of Emotional Distress (NIED)

A

(1) P in zone of danger and (2) must suffer physical symptoms of distress

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5
Q

Vicarious Liability - Parent for child

A

not liable for forts of child unless acting as agent of parent

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6
Q

Standard of Care - common carriers and innkeepers

A

high degree of care, liable for slight negligence, P must be guest

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7
Q

Products Liability - Express warranty

A

an affirmation or promise concerning goods that is not met

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8
Q

Bystander Negligent Infliction of Emotional Distress

A

(1) P and injured are closely related (2) P was present at scene of injury and (3) P personally witnessed event

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9
Q

Vicarious Liability - Bailor for Bailee

A

generally not liable

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10
Q

Duties of Bailor

A

must inform bailee of dangerous defects, if for hire then must notify of defects which bailor is aware

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11
Q

Wrongful Prosecution

A

initiating a criminal proceeding against P w/o PC for an improper purpose which causes damages

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12
Q

Products Liability - Intent Theory

A

liability imposed of D intended the consequences or know they were substantially certain to occur

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13
Q

Negligent Misrepresentation

A

misrepresentation in a business capacity which breaches a professional duty that the P relied on that caused damages

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14
Q

Standard of Care - automobile driver to gues

A

ordinary care

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15
Q

Nuisance - Injunctive Relief

A

will be rewarded if legal remedy is inadequate or unavailable

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16
Q

Scope of Foreseeable Risk

A

proximate cause is limited only to foreseeable risks. not liable for unforeseeable harmful results

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17
Q

Actual Cause

A

causation in fact to injury.

  1. But-For – injury would not have occurred but for the act of X, applies with multiple acts
  2. Joint Causes – several causes bring injury but only 1 alone is enough to cause injury
  3. Alternative Causes – 2 simultaneous acts and any 1 alone is enough to cause, burden shifts to D to say it wasn’t him
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18
Q

Duties owed by bailee

A

a. Benefit of bailor – low standard of care (person giving chattel)
b. Benefit for bailee – high standard of care (person receiving chattel)
c. Mutual benefit – ordinary standard of care

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19
Q

Comparative Neglience

A

not a complete bar to recovery

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20
Q

Wild Animals Strict Liability

A

strict liability

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21
Q

Assault

A

intentionally causing reasonable fear of imminent harm or incomplete battery

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22
Q

Privilege

A

invasion of land to arrest 3rd party

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23
Q

Personal injury Damages

A

compensation for past, present, and prospective damages, economic & noneconomic

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24
Q

Negligence Per Se

A

Statutory Standards of Care – imposed by the law if (1) P is within the protected class and (2) the statute was designed to prevent the type of harm suffered by P, creates presumptive breach of duty. Excuse – may be excused if compliance with statute would cause more harm than violation

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25
Q

Indemnity

A

shifting the entire loss among tortfeasors. Available by (1) contract (2) vicarious liability situations (3) strict products liability (4) unknown degree of fault

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26
Q

Duty

A

Owed to all foreseeable Ps to conform to a specific standard of conduct

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27
Q

Duty to Licensees

A

enter for benefit of owner. (1) Duty to warn/make safe and (2) exercise reasonable care in conduct of operations

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28
Q

Assumptive of Risk

A

P may be denied recovery if P knew the risk and proceeded in face of the risk

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29
Q

Dramshop Acts

A

imposes liability based on ordinary negligence principles, also creates cause of action for 3rd person injured by intoxicated vendee

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30
Q

Proving a Defect - Scientifically Unknowable Risks

A

D is not held liable is dangers are not foreseeable at time of marketing

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31
Q

Vicarious Liability - Frolic and detour

A

minor deviation is still under scope of employment, if deviate is substantial then not liable

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32
Q

Breach - Custom or Usage

A

may be used to establish standard but does not control if negligent

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33
Q

Proving a Defect - Design Defect

A

D could have made the product safer w/o impact on price

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34
Q

Damages

A

not presumed and nominal damages are not available

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35
Q

Duties to People off Premises

A

no duty for natural conditions, only artificial if unreasonable dangerous

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36
Q

Bystander IIED

A

P is present during injury, P is closely related to injured person, D should have known that

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37
Q

Absolute Privilege

A

(1) remarks made during judicial processing, (2) legislators during proceedings, (3) federal executive in compelled broadcasts, and (4) between spouses

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38
Q

Shoplifting detention

A

may keep D if there is (1) reasonable belief to theft, (3) reasonable manner and nondeadly force, and (3) for a reasonable period of time for purpose of making an investigation

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39
Q

Discipline

A

parent or teacher may use reasonable force to discipline a child

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40
Q

Conversion

A

signification interference of possession of personal property

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41
Q

Last clear Chance Doctrine

A

person with last clear chance who fails to do so is negligent

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42
Q

Duties to Trespassers

A

no duty to undiscovered trespassers. If discovered duty to (1) warn/make safe, artificial conditions involving risk of death or bodily harm (2) reasonable care for active operations

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43
Q

Self Defense of Others

A

If intended target is allowed to use the D can use

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44
Q

Products Liability Theories

A

5 Theories: (1) Intent (2) Negligence (3) Strict (4) Warranties and (5) Representation

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45
Q

Intrusion upon Seclusion & Disclosure

A

prying into business that is highly offense to a reasonable person

46
Q

Manufacturing Defects

A

comes from manufacturing more dangerous than if properly made

47
Q

Proving a Defect - Gov. Safety Standards

A

noncompliance with gov. standard shows product is defective, compliance is not conclusive

48
Q

Defense to Defamation: Truth

A

Truth

49
Q

Duty to Invitees

A

land held open to public. Duty to (1) warn/make safe, (2) exercise reasonable care in operation, and (3) reasonable inspection

50
Q

Qualified Privilege

A

can be lost through abuse (1) if not within scope of privilege or (2) actual malice

51
Q

Standard Of Care for Medical Specialist

A

National standard of Care, also duty to disclose risk of treatment

52
Q

Punitive Damages

A

not available unless D’s actions are wanton & willful, reckless or w/malice

53
Q

Intentional Torts

A

voluntary action by plaintiff

54
Q

Partial comparative neglience

A

bars P’s recovery if P is more that 50% negligence

55
Q

Battery

A

intentional offensive touch or strike against another

56
Q

Vicarious Liability - Intentional Torts

A

generally not liable unless force or friction is generated by nature of the job or furthering business of employer

57
Q

Vicarious Liability - Automobiles

A
  1. Family use doctrine – is liable for household members driving with express or implied permission
  2. Permissive use – liability imposed on anyone driving with owner’s consent
  3. Negligent Entrustment – owner liable for own negligence in entrusting car to driver
58
Q

Self Defense

A

D reasonably believed he or she is about to be attacked and uses force to protect oneself

59
Q

Vicarious Liability

A

employer is liable for torts under employee if within scope of employment

60
Q

Slander

A

spoken defamation, special damages required unless about

a. Conduct in one’s profession
b. STD
c. Chastity
d. Crime of moral turpitude (common law crimes)

61
Q

Public Nuisance

A

act that unreasonably interferes with the health, safety, or property rights of the community

62
Q

Trespass to Chattel

A

interference of possession of personal property

63
Q

Inadequate warnings

A

manufacturer fails to give correct warnings

64
Q

Domestic Animals

A

no strict liability unless D has knowledge of propensity, not duty for trespassers but strict liability for injuries inflicted by watchdogs

65
Q

Self Defense of Property

A

may be used to prevent tort against property or in hot pursuit to recapture, D must request to leave/desist

66
Q

Public Nuisance - Recovery by private party

A

only allowed if unique damages not suffered to public at large

67
Q

Consent

A

allowing the tort to occur, may be expressed or implied

68
Q

Duty to Act

A

no duty to act

  1. Good Samaritan Statues – exempt medical staff for ordinary but not gross negligence
  2. Peril – duty to assist if one negligently or innocently placed in peril
  3. Special Relationship – common carriers, innkeepers, and shopkeepers, reasonable care
69
Q

Intention Infliction of Emotional Distress (IIED)

A

intentional or reckless extreme or outrageous conduct causing severe emotional distress

70
Q

Actual malice

A

(1) knowledge that the statement was false or (2) reckless disregard

71
Q

Contribution

A

D who pays more than his share under joint and several liability now has a claim to other liable parties for excess damages paid

72
Q

Products Liability - Misrepresentation of fact

A

statement was material concerning quality of goods and seller intended to induce reliance

73
Q

Products Liability - Strict Theory

A

(1) commercial supplier (2) produced/sold a defective product (3) that caused (4) damages

74
Q

Intentional Interference with Business Relations

A

(1) contract exists (2) that D knew about (3) and intentionally interfered (4) which caused damages.

75
Q

Duty to mitigate

A

P must take all reasonable steps to mitigate damages

76
Q

Proving a Defect - Manufacturing Defect

A

P must show that product failed to be safe under ordinary circumstances

77
Q

Pure Comparative Negligence

A

bars P’s recovery if negligence was more serious than defendant’s negligence

78
Q

Products Liability - Breach of Warranty Theory

A

product fails to live up to standards and causes damages

79
Q

Products Liability Negligence Theory

A

Commercial supplies were negligent in selling a defective product. Can be rebutted by cursory insoection

80
Q

Extreme & Dangerous Activity

A

must create a foreseeable risk of serious harm when reasonable care is exercised and not a common activity

81
Q

Release

A

release of 1 tortfeasor does not discharge others unless provided for

82
Q

Collateral Source Rule

A

damages are not reduced by insurance

83
Q

Proving a Defect - Unavoidably Unsafe Products

A

D not liable is danger is apparent by nature of product & no way to make safer

84
Q

Design Defect

A

all products are the same but have dangerous propensities

85
Q

Standard of Care bailment duties

A

bailee transfers possession of chattel but not title,

86
Q

Nuisance

A

invasion of private property rights or public rights

87
Q

Private Nuisance

A

substantial unreasonable interference with one’s use or enjoyment of land

88
Q

Defamation of Public Concern

A

add (1) falsity of statement and (2) actual malice

89
Q

Property Damages

A

reasonable cost of repair or fair market value at time of incident

90
Q

Appropriation

A

using P’s image w/o consent for monetary gain

91
Q

Trespass to Land

A

physical invasion of real property

92
Q

Res Ipsa Loquitur

A

occurrence of event establishes a breach if (1) accident would not normally occur absent negligence and (2) negligence is attributed to D

93
Q

Misrepresentation

A

making a false statement of material fact with for the intent of P to rely on statement which causes damages.

94
Q

Warranty of Merchantability Theory

A

whether goods are of average quality and fit for ordinary purpose for which goods are used

95
Q

Standard of Negligence

A

Objective. Reasonably Prudent Person

96
Q

Rescuers

A

Are always foreseeable Ps

97
Q

Libel

A

written defamation, general damages presumed

98
Q

Satisfaction

A

recovery of full payment, only 1 allowed

99
Q

Joint and Several Liability

A

2 or more negligent acts combined to cause an indivisible injury, each D is jointly and severally liable. If injury is divisible then each D is liable for their portion of injury

100
Q

Vicarious Liability - Independent Contractor

A

not liable unless engaged in inherently dangerous activity or duty is nondelegable for public policy considerations

101
Q

Necessity

A

may interfere with real or personal property when necessary to avoid threatened injury and threatened injury or substantially more serious than invasion. Public and private (actor must pay for an injury caused).

102
Q

Contributory Negligence

A

attributing P’s action which bar recovery

103
Q

Nonrecoverable Damages

A

cannot get back attorney’s fees or interest

104
Q

False Light

A

(1) attributing highly offensive characteristics to P and publishing it or (2) publishing private info about P

105
Q

Defamation

A

(1) defamatory language (2) about P that was (3) publicized to a 3rd person and (4) damaged P’s reputation

106
Q

Defense to Defamation: Consent

A

complete defense

107
Q

Duty of Lessor and Lesee

A

Lesee has duty to maintain, Lessor has duty to warn of existing defects

108
Q

Warranty of Fitness for a Particular Purpose

A

seller knows purpose of what goods are used for and P relied on seller’s skill in selection

109
Q

Standard of Care - Children

A

standard of a child of like age, education, intelligence, and experience. Subjective

110
Q

Strict Liability

A

(1) absolute duty to make safe (2) the danger of the activity is the actual and proximate cause of P’s injury (3) damages.

111
Q

Attractive Nuisance Doctrine

A

(1) owner knows of condition (2) owner knows kids are there (3) condition is likely to cause injury (4) expense of remedying situation is cheaper than risk

UBE Bar Exam Flashcards (13 decks)

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