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Select Topics Part 1 > Torts > Flashcards

Torts Flashcards

1
Q

False Imprisonment

A
  1. An act intending to confine someone within boundaries fixed by the actor
  2. Directly or indirectly resulting in such confinement; and
  3. The confined person is either conscious of the confinement or harmed by it
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2
Q

Shopkeeper’s Privilege

A

Defense to false imprisonment if:

  1. They have reasonable grounds to believe a theft has occurred;
  2. they hold P for a reasonable time to ascertain the facts; and
  3. in a reasonable manner
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3
Q

Defense of Crime Prevention

A

Private person may arrest someone if they have a reasonable belief that a crime has occurred that involves breach of the peace.

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4
Q

Negligence Elements

A
  1. Duty;
  2. Breach;
  3. Actual Cause;
  4. Proximate Cause;
  5. Harm.
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5
Q

Owner Duty to Invitee

A

Owner owes a duty if he:

  1. Knows, or by exercise of reasonable care, should have discovered the condition and should realize that it poses an unreasonable risk of harm to invitees;; and
  2. Should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it.
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6
Q

Negligence Per Se

A
  1. Statute or ordinance must be a criminal statute with clear and defined standards;
  2. Plaintiff must be a member of the class of persons intended to be protected by the statute; and
  3. claimed harm must be the type of harm intended to be protected against by the statute

Finding of negligence per se results in the conclusive presumption of breach and duty in a majority of states

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7
Q

Assumption of Risk

A

P denied recovery if he knows of the risk and voluntarily assumes it.

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8
Q

Vicarious Liability for Intentional Torts

A

Employers generally not liable for employee’s intentional tort because intentional tortious conduct is not within the scope of employment, UNLESS:

  1. Force is authorized in the employment;
  2. Friction is generated by the employment; or
  3. Employee is furthering the business of the employer
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9
Q

Vicarious Liability for Negligence

A

Employers are vicariously liable for the negligence of their employees, committed while employee is acting within the scope of their agency.

Liability for detours but not for frolic.

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10
Q

Vicarious Liability for Independent Contractors

A

Where:

  1. Independent Contractor engaged in inherently dangerous activities; or
  2. Duty is non-delegable (duty to keep premises safe or car in good condition)
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11
Q

Intentional Torts

A
  1. Assault
  2. Battery
  3. False Imprisonment
  4. Trespass to Chattels
  5. Conversion
  6. Intentional Infliction of Emotional Distress
  7. Abuse of Process
  8. Malicious Prosecution
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12
Q

Assault

A
  1. Volitional act;
  2. Done with intent to cause either harmful or offensive contact OR apprehension of imminent harmful or offensive contact;
  3. Causes reasonable apprehension of harmful or offensive contact
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13
Q

Battery

A
  1. Volitional act;
  2. Done with intent to cause either harmful or offensive contact OR an apprehension of imminent harmful or offensive contact that;
  3. Causes harmful or offensive contact;
  4. To the person of another
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14
Q

Trespass to Chattels

A
  1. An act which is an intermeddling or dispossession;
  2. Of the personal property;
  3. Of another;
  4. Which causes harm to, or the loss of use of the personal property
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15
Q

Conversion

A
  1. A serious interference which warrants that defendant pay the full value of the chattel (at time of conversion);
  2. of the personal property;
  3. of another;
  4. which causes harm to or the loss of use of the personal property
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16
Q

Intentional Infliction of Emotional Distress

A
  1. Extreme and outrageous conduct that
  2. causes severe emotional distress

No requirement for actual or physical harm

Harm required for negligent infliction of emotional distress

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17
Q

Abuse of Process

A
  1. Use of legitimate process;
  2. for a wrongful purpose (harass, waste time);
  3. and an act or threat against the plaintiff to accomplish the wrongful purpose

Prohibits the use of any form of process to bring about a result other than that which the process was intended

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18
Q

Malicious Prosecution

A
  1. Initiation of civil or criminal proceedings against Plaintiff;
  2. Without probable cause;
  3. For wrongful purpose;
  4. And the favorable termination of the proceedings on the merits in favor of current plaintiff (original defendant)
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19
Q

Ordinary Duty

A

To act as an ordinary, prudent, reasonable person

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20
Q

Duty of Land Possessors to Persons Outside Their Premises

A
  • No duty to protect someone from either natural or artificial condition of the land
  • Artificial Conditions:
    1. Duty to protect from unreasonable dangerous artificial conditions
    2. Duty to take precautions to protect persons passing by from dangerous condition
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21
Q

Duty of Land Possesors to Persons on Premises

A

Duty to invitees (person on premises for purpose of owner/possessor),

Duty to licensees (on premises for own purpose), and

Duty to trespassers (on premises without consent).

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22
Q

Duty to Invitee

A

Duty to inspect, discover, repair, and protect against known or discoverable dangers.

Land possessor knows or should know of danger to invitee and should expect invitee will not discover or realize the danger

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23
Q

Duty to Licensee

A

Duty to repair and protect against known dangers

  1. Land possessor knows or has reason to know of condition which poses unreasonable risk of harm to licensee and should expect licensee will not discover the danger;
  2. possessor fails to exercise reasonable care to make condition safe or warn licensee;
  3. licensee did not know or have reason to know of the condition or risk involved
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24
Q

Duty to Trespassers

A

Duty for artificial dangerous conditions.

Known Trespassers - duty to warn of artificial, non-obvious dangerous conditions maintained by landowner

Unknown Trespassers - duty not to use willful and wanton conduct

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25
Q

Attractive Nuisance

A
  1. Landowner knows or should know of dangerous condition;
  2. Owner knows children are frequenting the area;
  3. Dangerous condition likely to cause harm or child is unlikely to appreciate the risk;
  4. expense of remedy is slight compared to level of risk
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26
Q

Firefighter’s Rule

A

Bars firefighters/police from recovering from injuries caused by risks of doing job

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27
Q

Common Carriers

A

Heightened duty of care but not strict liability

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28
Q

Rescuees

A

Duty to rescuers if need for rescue is due to rescuee’s own negligence

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29
Q

Custom

A

Custom/usage in industry or trade may be evidence of a duty or lack of duty

30
Q

Negligent Infliction of Emotional Distress

A

Generally no duty to prevent emotional distress in the absence of physical harm and if Plaintiff is outside the zone of danger.

31
Q

NIED Exception to Zone of Danger requirement

A
  1. Plaintiff and victim closely related and

2. Plaintiff was present and perceived the injury

32
Q

Breach

A

Where Defendant’s behavior falls short of the level required by applicable standard of care

33
Q

Res Ipsa Loquitor

A
  1. Defendant had control of the instrumentality of the harm; and
  2. Harm would not have occurred in the absence of negligence
34
Q

Negligence Per Se Analysis

A
  1. Ordinary duty;
  2. Specialized duties;
  3. Ordinary breach;
  4. Breach of specialized duties, if any;
  5. Statutory duty and breach (negligence per se);
  6. Actual Cause;
  7. Proximate Cause;
  8. Harm
35
Q

Negligence Defenses

A
  1. Contributory Negligence (complete bar unless Defendant had Last Clear Chance)
  2. Comparative Fault
    - —-Pure Comparative
    - —-Non Pure Comparative
  3. Assumption of Risk (requires voluntary assumption of risk)
  4. Emergency
36
Q

Public Nuisance

A

Act that causes an unreasonable interference with a public right.

No private cause of action unless harm is different in kind from that suffered by public.

37
Q

Private Nuisance

A
  1. Unreasonable invasion of another’s interest in the use or enjoyment of his or her land;
  2. Invasion is either intentional or unintentional and otherwise actionable as negligence, reckless, or abnormally dangerous conditions or activities
38
Q

Trespass

A
  1. Entry onto or remaining upon land;
  2. In the possession of another;
  3. Without privilege to do so created by possessor’s consent or otherwise

No Defense for Mistake.

39
Q

Strict Liability

A
  1. Wild Animals;
  2. Abnormally Dangerous Activity;
  3. Strict Products Liability
40
Q

Wild Animals

A
  1. Defendant owned a wild animal;

2. That caused harm to P of a kind typically due to the wildness of the animal

41
Q

Abnormally Dangerous Activities

A
  1. Activities involving:
    - —-High degree of risk or harm;
    - —-Gravity of the harm
    - —-Inability to eliminate the risk by using reasonable care
  2. Which causes harm;
  3. risk of which make the activity abnormally dangerous.
42
Q

Products Liability

A

Three theories:

  1. Strict Products Liability;
  2. Negligence;
  3. Breach of warranty
43
Q

Strict Products Liability

A
  1. Defendant is in the business of selling or otherwise distributing products (commercial supplier);
  2. Defendant sells or distributes a defective product (places it in the stream of commerce) and product remains unchanged;
  3. Defect causes the harm
44
Q

Strict Products Liability Defects

A
  1. Manufacturing Defect - product departs from intended design (error in assembly line)
  2. Design Defect - risk/utility OR reasonable and feasible alternative design.

CA only - consumer expectations

  1. Failure to Warn
    a. knows or has reason to know;
    b. that product is likely to be dangerous for the use for which it is supplied;
    c. has no reason to believe that the users of the product will realize its dangerous condition;
    d. fails to adequately and sufficiently warn about the dangerousness of the product
45
Q

Strict Products Liability - Defenses

A
  1. Comparative Negligence;

2. Assumption of the Risk

46
Q

Products Liability - Negligence

A
  1. Duty - to make safe product. duty owed to foreseeable users
  2. Breach
  3. Actual cause
  4. Proximate cause
  5. Harm
47
Q

Products Liability - Negligence Defenses

A
  1. Contributory negligence
  2. Comparative negligence;
  3. Assumption of the Risk
48
Q

Products Liability - Breach of Warranty

A
  1. Express Warranty
  2. Implied Warranties of Merchantability
  3. Implied Warranties of Fitness for a Particular Purpose

Even if Defendant did everything right, if goods that defendant sells are not as warranted, Defendant is in breach and owes Plaintiff damages.

49
Q

Express Warranty

A
  1. Warranty is expressly made (affirmation of fact);
  2. Relied on by purchaser;
  3. Breach causes harm to foreseeable person
50
Q

Warranty of Merchantability

A
  1. Product is of average quality;
  2. Fit for ordinary purpose;
  3. Adequately packaged;
  4. Conforms to promises on label
51
Q

Warranty of Fitness for a Particular Purpose

A
  1. Seller knows of Plaintiff’s special need; and

2. Recommends product with that knowledge

52
Q

Defamation

A
  1. Defamatory statement;
  2. Of or concerning Plaintiff;
  3. Published by Defendant and communicated to a third person;
  4. which results in harm to Plaintiff’s reputation
53
Q

Defamatory Statement

A
  1. Not a personal opinion or hyperbole unless based in assertion of fact. One that holds P up to ridicule or harm to reputation
  2. Slander (oral)
  3. Libel (written or broadcast)
54
Q

Defamation Defenses

A
  1. Truth (complete defense);

2. Privilege (absolute or qualified)

55
Q

Absolute Privlege

A

Does not matter if false or made with malice.

Statements made in:

  1. proper discharge of an official duty;
  2. legislative proceeding;
  3. judicial proceeding;
  4. in any other official proceeding authorized by law; or
  5. in the initiation or course of any other proceeding authorized by law
56
Q

Qualified Privilege

A

Statement made without malice, and to a person interested therein:

  1. by one who is also interested; or
  2. by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent; or
  3. who is requested by the person interested to give the information.

Malice - knowledge of falsity or reckless disregard of the truth

57
Q

Defamation First Amendment Defenses

A

Discuss:

  1. Falsity of defamatory language; and
  2. Fault
58
Q

Invasion of Privacy

A
  1. Intrusion;
  2. Public Disclosure of a Private Fact;
  3. False Light;
  4. Appropriation
59
Q

Intrusion

A
  1. Unreasonably and seriously
  2. Interferes with another’s interest in not having affairs know;
  3. Conduct would offend person of reasonable sensibilities
60
Q

Public Disclosure of Private Fact

A
  1. Public disclosure
  2. Of a private fact;
  3. That would be offensive and objectionable to the reasonable person;
  4. That is not of legitimate public concern;

Constitutional Issue: No liability if truthful information obtained lawfully

61
Q

False Light

A
  1. Defendant publicizes a private matter concerning the Plaintiff;
  2. That places Plaintiff before the public in a false light;
  3. That would be highly offensive to a reasonable person;
  4. And, if matter of public concern, Defendant acted with malice (knowledge or reckless disregard for the truth of the matter and the false light)
62
Q

Appropriation

A
  1. An appropriation or use;
  2. Of the Plaintiff’s identity;
  3. By the Defendant;
  4. For the Defendant’s commercial purpose
63
Q

Intentional Misrepresentation

A
  1. Defendant make a false representation concerning a presently existing material fact;
  2. that Defendant either knew was false or made recklessly, knowing that he had insufficient knowledge on which to base the representation;
  3. For the purpose of inducing the other party to act on the representation;
  4. That the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
  5. Was thereby induced to act to his detriment.
64
Q

Negligent Misrepresentation

A
  1. Defendant made a false representation concerning a presently existing material fact;
  2. Defendant should have known the truth or was careless in ascertaining the truth;
  3. For the purpose of inducing the other party to act on the representation;
  4. That the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
  5. Was thereby induced to act to his injury and damage.
65
Q

Concealment

A
  1. Defendant made a representation concerning a presently existing material fact, but omitted material facts, which omission makes the statement misleading;
  2. That Defendant knew was misleading;
  3. For the purpose of inducing the other party to act on the representation;
  4. That the other party, acting reasonably or justifiably and in ignorance of the falsity of the representation, actually relied on it; and
  5. Was thereby induced to act to his injury and damage
66
Q

Interference with Contract

A
  1. Interference;
  2. Which is intentional,
  3. Improper or unlawful;
  4. In a contract between two other persons;
  5. Causing one of them to not perform the contract
67
Q

Interference with Economic Relationships

A
  1. An economic relationship between plaintiff and third parties;
  2. Knowledge by Defendant of the existence of the relationship;
  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
68
Q

Damages

A

Must be:

  1. Causal
  2. Foreseeable
  3. Reasonably Certain
  4. Unavoidable

Purely economic loss generally not recoverable in a negligence action unless there is also either physical injury or injury to property

Punitive damages only recoverable if Defendant’s conduct was malicious or willful

69
Q

Contribution

A

Allows tortfeasor required to pay more than their share of the damages to have a claim against the other jointly liable parties for the excess he paid

70
Q

Indemnity

A

Shifts liability 100% from one defendant to another where:

  1. Party is only vicariously liable;
  2. Under strict products liability up the vertical chain of distribution;
  3. Considerable difference in degree of fault (intent v. negligence)

Select Topics Part 1 (5 decks)

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