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Bar Review > Torts > Flashcards

Torts Flashcards

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1
Q

Intentional Torts [Three Elements]

A
  1. Act
  2. Intent
  3. Causation
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2
Q

Intent

A

Acts with purpose of cause consequence, or knows consequence is substantially certain.

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3
Q

Transferred Intent

A

Intent to cause tort or a tort can be transferred to different person and/or tort.

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4
Q

Battery

A
  1. Harmful or offensive contact
  2. Causes injury pain or illness
  3. OR is offensive to person of ordinary sensibility
  4. Must intend the contact
  5. Can recover nominal damages
  6. No battery if there is consent
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5
Q

Assault

A
  1. Reasonable apprehension of imminent harm
  2. Intends to cause apprehension or contact
  3. Plaintiff must be aware, must be reasonable
  4. Imminent, no substantial delay
  5. More than mere words
  6. Can recover nominal damages
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6
Q

Intentional Infliction of Emotional Distress

A
  1. Intend to cause distress or act with recklessness
  2. Engage in extreme and outrageous conduct that causes the distress
  3. Must be cause of harm
  4. Prove damages beyond distress an ordinary person would endure
  • Exception for public figures, must show false statement made with actual malice (recklessness of knowledge of falsity)
  • hypersensitivity only a factor if P was aware of it

Can end up causing harm to third parties. If bystander requires actual physical harm.

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7
Q

False Imprisonment

A
  1. confine or restrain within fixed boundaries
  2. Plaintiff is aware OR harmed
  3. can be through physical barriers, restraint, or threat. Or failure to provide reasonable means to escape where there is duty
  4. Intent or knowing
  5. Can recover nominal damages
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8
Q

Defenses to Intentional Torts

A
  1. Consent
  2. Self-defense
  3. Defense of Others
  4. Defense of Property
  5. Parental Discipline
  6. Privilege of Arrest
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9
Q

Consent

A

Express consent: words or actions, willingness to submit to conduct

Implied consent: silent where silence can reasonably construed of consent. i.e. emergencies, injury, mutual consent to combat

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10
Q

Self-defense

A

Use of reasonable force - proportionate to defend against harm

Generally, no duty to retreat in modern states.

Not liable for accidental injury to bystanders absent negligence.

May use reasonable force in defense of others

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11
Q

Defense of Property

A

Reasonable force if necessary to prevent tortious harm.

May never use deadly force.

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12
Q

Citizen Arrest

A

Must know felony has been committed and reasonably believe person is perp.

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13
Q

Tresspass to Chattel

A
  1. disposses, use, interfere or damage chatell
  2. Intend act
  3. Only actual damages
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14
Q

Tresspass to land

A
  1. physical invasion of land
  2. intent to enter land
  3. no actual damages required
  4. Necessity as defense to trespass, still liable for actual damages in private necessity.
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15
Q

Private Nuisance

A

substantially and unreasonably interferes with use and enjoyment

annoying to ordinary, reasonable person.

Defense: regulatory compliance, coming to the nuisance

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16
Q

Public Nuisance

A

Unreasonable interference with public as a whole. Private plaintiff must show special or unique harm.

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17
Q

Elements of Negligence

A
  1. Duty
  2. Breach
  3. Causation
  4. Damages
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18
Q

Is there a duty

A

Duty of care to those who may be foreseeably harmed by conduct.

No affirmative duty

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19
Q

Scope of Duty

A

Foreseeability of Harm & Foreseeability of Plaintiff

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20
Q

Standard of Care

A

Reasonably prudent person under the circumstances - Objective standard.

Presumed to have average mental abilities

Intoxication not considered unless involuntary

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21
Q

Standard of Care [children]

A

modified standard to reasonable child of similar age, unless child is engaged in high-risk adult activity

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22
Q

Standard of Care [tresspasser]

A

Refrain from willful, wanton, intentional, or reckless misconduct

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23
Q

Attractive nuisance doctrine

A
  1. artificial condition where knows children are likley to trespass
  2. condition poses unreasonable risk of death or harm
  3. children do not discover or cannot appreciate danger
  4. slight utility of maintaining compared to risk of injury
  5. fails to exercise reasonable care
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24
Q

Standard of Care [licensee]

A

Must make reasonably safe and/or warn of concealed dangers. No duty to inspect

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25
Q

Standard of Care [invitees]

A

owes duty of reasonable care, to inspect, discover dangerous conditions, and protect from them.

Non-delegable duty

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26
Q

Breach of Duty

A

Reasonable Person Standard or B

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27
Q

Breach for Professionals

A

evidence of custom admissible, dispositive

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28
Q

Breach for Physicians

A
  1. modern trend to national standard
  2. patients must give consent and docs. must explain risks unless:
    a. risks are commonly known
    b. patient is unconcious
    c. patient waives/refuses the information
    d. patient is incompetent; or
    e. would be harmed by disclsoure
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29
Q

Breach of statutes

A

negligence per se

  1. law imposes duty
  2. vioaltes statute
  3. P in class intended to be protected by law
  4. accident type of harm sought to be avoided by law
  5. harm was caused by violation of statute.

-can excuse/rebut if complying with statue was more dangerous than violating or compliance was impossible

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30
Q

Res ipsa Loquitur

A

In some cases, circumstantial evidence can be enough.

  1. accident is type that does not normally occur without negligence
  2. was caused by something within exclusive control of D
  3. was not due to any negligence by P
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31
Q

Res Ipsa modern trends

A
  1. Med Mal. hold all D’s jointly & severably liable
  2. Products liability, will often ignore exclusivity requriements
  3. comparative-fault - many loosely apply third element
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32
Q

Causation

A

Cause in fact, actual cause

Proximate Cuase, legal cause

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33
Q

Cause in fact

A

But for test

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34
Q

Substantial factor Test

A

when multople factors make actual cause difficult, can apply subtantial factor test.

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35
Q

Loss of chance

A

In case of disease where death is more likely than not, D can recover loss of chance

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36
Q

Proximate cause

A

Is injury within scope of breach/

1. Foreseeability of harm

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37
Q

superseding cause

A

cause that breaks the chain of causation

38
Q

Intervening cause

A

does not break the chain of causation

39
Q

Compensatory Damages

A

Make plaintiff whole again.

Can include “parasitic damages”: of emotional distress associated with physical injury

Generally i)medical expense, ii)earning capactiy, iii) pain and suffering

difference in market value for property

40
Q

Collateral Source Rule

A

Traditionally do not account for outside payments, generally shifting to modify in a way that avoids double recovery

41
Q

Punitive damages

A

may be available if D was willful, reckless, wanton, ,or with malice

42
Q

Negligent Infliction of Emotional Distress

A

Needs either:

  1. zone of danger and caused distress
  2. Bystander: i) cloesely related, ii) present, iii) personally observed.
  3. Negigent medical info or mishandling of a corpse
    - Most require some physical manifestation
43
Q

Wrongful Death

A

brough by a spouse or rep. to cover losses suffered by spouse or rep.

44
Q

Survivial Action

A

brough on behalf of decedent for claims that would have been available at death

45
Q

Vicarious liability

A

Held liable for another persons negligece

46
Q

Respondeat Superior

A

Employer held vicariously liable for acts that are within the scope of employment

Does not generally include intentional torts

47
Q

Scope of employment

A

Detour: minor deviation, employer still liable

Frolic: major deviation, employer no longer liable

48
Q

Independent Contractors

A

Employer generally not liable unless employer retains control or non-delegable

49
Q

Non-delegable duties

A
  1. inherently dangerous
  2. duties to public or specific people for certain work
  3. shopkeepers
50
Q

Other liability

A
  1. biz partners if within scope of biz
  2. Auto owners, negligent entrustment, family purpose, owner liability

-General rule is parents not liable for children’s torts

51
Q

Dram shop laws

A

Bar owners, bartenders, and social hosts liable when caused person to drink to much and injured third-parties.

52
Q

Govt. Immunity

A

generally immune, has been waived, Federal Tort Claims Act.

Generally, discretionary govt. functions not waived, but ministerial functions is waived.

53
Q

Firefighters Rule

A

An emergency proffesional is barred from recovering for the negligence if the injury is from an inherent risk of the job.

54
Q

Joint and Several Liability

A

two or more defendants are each liable for a single and indivisible harm to the plaintiff for the entire harm.

  1. two or more tortfeasors
  2. Tortfeasoers acting in consert
  3. Employer and employee are liable
  4. Res Ipsa for mulitple d’s
55
Q

Contributory Negligence

A

completely bars the palintiff’s recovery

56
Q

Last Clear Chance Doctrine

A

Allows a negligent plaintiff to recover upon showing that defendant had the last clear chance to avoid injuring plaintiff

57
Q

Comparative fault

A

Not a complete bar to recovery, but limits recovery.

58
Q

Modifiend comparative negligence

A

P is more at fault than D, then P’s recovery is barred

59
Q

Assumption of the Risk

A

Analogous to consent, Applies when party knowingly and willingly embraces a risk for some purpose of their own

60
Q

Express Assumption of Risk

A

Waiver, if clear and enforcable

No reckless or wanton conduct or gross disparity of bargaining power.

61
Q

Strict Liability

A
  1. Abnormally dangerous activiies,
  2. Wild animals
  3. Defective products
62
Q

Abnormally Dangerous Activity

A
  1. Creates a foreseeable and highly signifiant risk of harm
  2. Severity of harm resulting from activity
  3. Appropriateness of activity
  4. Value to activity
63
Q

Wild Animals

A

species or class not cutsomarily kept in the service of humankind.

Liable for dangerous propensity

64
Q

Domestic Animals

A

liable if has reason to know animal has dangerous propensity

65
Q

Strict Products Liability

A
  1. manufacturing defects
  2. design defects
  3. failure to warn
66
Q

Elements of SPL claim

A
  1. defective product
  2. defect existed when left D’s control
  3. Injury from defect when product used in a foreseeable way
67
Q

Manufacturing Defect

A

Product deviated from Intended Design

Does not conform to Manufacturers own specs

68
Q

Design Defect

A

Consumer Expectation Test - defective if less safe than ordinary consumer would expect

Risk-Utility Test - product is defective in design if risks outweigh benefits, must show that there is reasonable alternative design

69
Q

failure to Warn

A

Of foreseeable risk no obvious to ordinary user

70
Q

Learned intermediary

A

Drug maker may warn physician only unless drug is marketed directly to consumers

71
Q

Implied Warranty of Merchantability

A
  1. Suitable for the Ordinary Purpose for which it is sold
72
Q

Implied Warranty of Fitness for a Particular Purpose

A

Seller nows particular purpose, and buyer relies on seller’s skill or judgment

73
Q

Defamation

A
  1. defamatory statement
  2. concerning plaintiff
  3. published to third party who understood nature
  4. damage to P’s reputation
74
Q

Public Figure Defamtation

A

kew or acted with reckless disregard that statement was false. Actual Malice Standard

75
Q

Private person defamation

A

must prove statement is fales and that person was negligent with respect to falsehood.

not a matter of public concern

76
Q

Libel

A

written, printed, or recorded statement

77
Q

Slander

A

spoken statment

78
Q

absolute privilege release from defemation

A
  1. judicial proceeding
  2. legislative proceeding
  3. between spouses
  4. if required by publications on TV etc.
79
Q

Conditional privilage from defamtion

A

Good faith statement made to some duty or responsibility

80
Q

Intrusion Upon Seclusion

A

intrudes upon private affairs in manner objectionable to a reasonable person

81
Q

False LIght

A
  1. make public facts about P
  2. That place p in false light
  3. which would be highly offensive to reasonable person
82
Q

Appropriation of Right to Publicity

A
  1. another’s name or likeness
  2. for the D’s advantage
  3. without consent
  4. causes injury
83
Q

Public Disclsoure of private Facts

A
  1. publicses matter concerning private life of another
  2. Highly offense to reasonable person
  3. Not of legitimate concern to public
84
Q

Intentional Misrepresentation

A
  1. False representation
  2. Scienter
  3. Intent to induce reliance
  4. Causation
  5. Justifiable Reliance
  6. Damages
85
Q

Negligent Misrepesntation

A
  1. false infor
  2. resulting from negligence
  3. during course of bus
  4. causing justifiable relaince
  5. in contractual relationhp or limited group for whose benefit info is supplied
86
Q

Intentional INterference with a Contract

A
  1. valid K
  2. D knew of K
  3. D intentionaly interfered resulting in breach
  4. Breach caused damages

-d’s conduct must exceed the bounds of free competition and expression

87
Q

Interference with a Prospective Economic Advantage

A

D intentionally interferes with relaitionph or benefit absent a contract, otherwise same elements

88
Q

Misappropriation of Trade Secrets

A
  1. P has info generally known
  2. P has taken reasonable precaustions to protect
  3. D acquires secret by improper means
89
Q

Trade Libel

A
  1. Publication
  2. Of false or derogatory statement
  3. With Malice
  4. Relating to P’s title, business, wuality of biz, or products
  5. causing special damages as result of interefernce or damage iwth relationship
90
Q

Slander of Title

A
  1. Publication
  2. Of a false statement
  3. Derogatory to P’s title
  4. with malice
  5. causing special damages
  6. diminsh value in eyes of 3rd party
91
Q

Malicous PRosecution

A

intentionally and malicously institutes or pursues a legal action for an improper prupose, without probable cause, and aciton is dismissd in favor of D

92
Q

Abuse of Process

A

Sets inmotion legal proceeding but has abused it for some alterior motive.

Must also cause damages

Bar Review (6 decks)

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