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MBE Bar Studies > Torts > Flashcards

Torts Flashcards

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1
Q

Intentional Torts

A

1) Act by D — requires some volitional movement
2) Intent — specific or general
» Specific — intent to bring about a specific harm
» General — substantial certainty that tortious conduct will result from D’s act
3) Causation — substantial factor
» D’s conduct must be a substantial factor in bringing
about the resulting harm

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2
Q

Transferred Intent

A

Arises when D acts with the
intent to commit a given tort but:
a) Commits it against a different person than intended
b) Commits a different tort than intended
c) Both a) and b)

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3
Q

Torts Transferred Intent Applies To

A

1) Assault
2) Battery
3) False imprisonment
4) Trespass to land or chattel

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4
Q

Assault

A

An intentional act by D creating P’s reasonable apprehension of immediate harmful or offensive contact to P’s person
• Also considered an attempted battery

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5
Q

Elements of Assault

A

1) Act by D that creates a reasonable apprehension in P
2) Of immediate harmful or
3) Intent
4) Causation

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6
Q

Battery

A

An intentional harmful or offensive contact to P’s person by D

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7
Q

Elements of Battery

A

1) Harmful or offensive contact by D (reasonable person)
2) To P’s person
3) Intent
4) Causation

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8
Q

False Imprisonment

A

An act or failure to act by D resulting in P’s restraint or

confinement to a bounded area

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9
Q

Elements of False Imprisonment

A

1) Act (or omission) resulting in P’s restraint or confinement
2) P is confined to a bounded area
3) Intent
4) Causation

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10
Q

Shopkeeper’s Privilege

A

A store may detain a suspected
shoplifter on store property for a reasonable period of time
• Reasonable cause — store must have reasonable cause to
believe detainee stole or attempted to steal store property
• Limited duration — store may only detain the suspect for a
short period of time and only for purposes of investigation
• Shopkeeper may be held liable for any harm caused by acts exceeding the privilege

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11
Q

Assault Apprehension

A

» Apprehension = P is aware of D’s act
» Words alone are insufficient, unless coupled with conduct
» Note — beware of fact patterns where D appears incapable of accomplishing the threatened harm
• Apparent ability is sufficient, as long as it could reasonably create P’s apprehension

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12
Q

Act or Omission for Restraint or Confinement

A

» Restraint or confinement does not have to be physical
• E.g., threats of force, invalid use of legal authority
» Duration is not important; brief confinement will suffice

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13
Q

Confined to Bound Area

A

» P must be aware of, or be harmed by, the confinement
» P’s freedom of movement must be limited
» P must have no reasonable means of escape
• If a reasonable person could get out (e.g., by opening an unlocked door), no false imprisonment

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14
Q

IIED

A

Extreme and outrageous conduct by D causing P’s severe emotional distress

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15
Q

Elements of IIED

A

1) Extreme and outrageous conduct by D
2) Severe emotional distress in P
3) Intent or recklessness
4) Causation

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16
Q

Extreme & Outrageous Conduct

A

» Conduct that exceeds the bounds of decency in society
• Mere insults alone are insufficient
» Non-outrageous conduct may be actionable if:
a) D targets P’s known sensitivity or weakness;
b) D’s conduct is continuous or repetitive;
c) D targets a P who is a member of a “fragile” class
(e.g., elderly, children, pregnant women); or
d) D is a common carrier or innkeeper

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17
Q

Severe Distress

A

» P must suffer severe emotional distress from D’s conduct
• Physical symptoms are not necessary
» Note — watch for facts indicating extreme, outrageous
conduct but P is unbothered — this is not IIED

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18
Q

Bystander of Emotional Distress

A

A bystander closely related to a person physically injured or
killed by D’s conduct may recover for emotional distress

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19
Q

Elements for Bystander of Emotional Distress

A

1) D’s conduct seriously injured or killed a third person
2) P is closely related to the injured person
3) P was present when the injury occurred
4) D knew elements 2) and 3)
5) P suffers severe emotional distress

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20
Q

Trespass to Land

A

A physical invasion of P’s real property by D

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21
Q

Elements to Trespass to Land

A

1) Physical invasion of P’s real property by D
2) Intent
3) Causation

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22
Q

Physical Invasion of Land

A

» D enters P’s property or propels an object onto it
• E.g., D walks on P’s property, throws a ball onto P’s property, chases someone onto P’s property
» P must only have actual or constructive possession
• Ownership not required
» Must be a physical invasion
• Invasions by light, sound, smell are not trespass (but may give rise to nuisance)
» P’s real property includes surface space, airspace, and
subterranean space to a reasonable distance

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23
Q

Trespass to Chattel/Conversion

A 
1) D interferes with P’s right of possession in tangible
personal property (chattel)
2) Intent
3) Causation
4) Damages
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24
Q

Interference with Property

A

» Interference usually occurs through dispossession (depriving P of his possessory rights in chattel) or intermeddling (damaging P’s chattel)
» Trespass — minor interference or damage
» Conversion — significant interference or damage that justifies D paying the chattel’s full value
• A longer and/or more damaging use of P’s chattel gives rise to conversion

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25
Q

Trespass Damages

A

P must have some loss of use
» Trespass — P can recover cost of repair or rental
value of chattel
» Conversion — P can recover full market value at the
time of conversion or repossess the chattel

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26
Q

Consent Torts

A

A defense to all intentional torts
• If P consents to D’s otherwise tortious conduct, D is not liable for that act
• Capacity required — P must be capable of consenting
» E.g., drunks, mentally impaired, and young children are incapable of consenting to tortious conduct

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27
Q

Express Consent

A

P gives D verbal or written consent

• Nullified by duress, fraud, or mistake

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28
Q

Implied Consent

A

D can reasonably infer P’s consent based on custom or P’s observable conduct
• Often arises if P participates in an activity or goes to a place
where minor torts are common

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29
Q

Scope of Consent

A

D can be held liable for conduct that exceeds the scope of P’s valid consent (express or implied)

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30
Q

Self Defense

A

No duty to retreat
• Reasonable mistake by D is allowed
• Only available to initial aggressor if D responds to non-deadly force with deadly force

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31
Q

Defense of Others

A

D steps in the shoes of the intended target
• D may not use greater force than the intended target could
have reasonably used
• Reasonable mistake by D is allowed

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32
Q

Defense of Property

A

Unavailable if initial actor had a privilege to enter the land (e.g., recapturing chattel)
• Reasonable mistake only allowed as to whether an intrusion occurred, not whether a privilege existed

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33
Q

Necessity

A

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger

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34
Q

Necessity Requirements

A

1) D’s interference with P’s property must be reasonably
necessary to avoid an immediate threatened injury
2) Threatened injury must be more serious than the interference undertaken to avert it

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35
Q

Public Necessity

A

Absolute defense
• D’s invasion of P’s property must be reasonably necessary to protect the community or a large group of people
• Absolute defense — P cannot recover any damages

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36
Q

Private Necessity

A

Limited defense
• D invades P’s property to protect an individual or small group
• Limited defense — P can recover actual damages, but not
punitive or nominal damages (unless D’s act benefitted P)

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37
Q

Recapture of Chattels

A

A defense to trespass; D may use peaceful means to recover

possession of chattel taken unlawfully

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38
Q

Appropriation

A

Use of P’s name or likeness for commercial purposes (e.g., promotion or advertisement) without P’s consent
• Newsworthiness exception — no liability for use of P’s name
or likeness for the purpose of reporting news

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39
Q

False Light

A

Widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a
reasonable person
• Includes mischaracterization of P’s views or conduct
• Matters of public concern — D must have actual malice or reckless disregard for the truth of the matter publicized

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40
Q

Intrusion Upon Seclusion

A

Intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person
• P must have a reasonable expectation of privacy
» No reasonable expectation of privacy in a public place
• Must be highly offensive — e.g., peeping, eavesdropping, or using hidden cameras in P’s domain
• No newsworthiness exception

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41
Q

Disclosure

A

Public disclosure of P’s private information

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42
Q

Requirements of Disclosure

A

1) Highly offensive to a reasonable person
• Public activities are not objectionable
• E.g., D announces that the mayor frequents strip clubs — no liability b/c the acts occur in public
2) Public disclosure —publicized to some small extent

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43
Q

Defamation

A

A statement concerning P, made by D to a third person, that is
harmful to P’s reputation
• If statement involves a matter of public concern or a public
figure or official, falsity and fault may be required

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44
Q

Elements of Defamation

A

Defamatory Statement
Concerning P
Publication
Harmful to P’s Reputation

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45
Q

Additional Elements for Public Concern or Person

A

1) Falsity — P must prove the statement was false
2) Fault — P must prove D was at fault; standards differ for public vs. private figures:
» Public official or figure — actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
» Private figure — negligence standard

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46
Q

3 Persons for Defamation

A

Public figure = one who has pervasive fame or notoriety, or
who voluntarily assumes a central role in a public matter
• Public official = public office holder
• Matter of public concern = statement relates to a community interest or concern (includes national interests)

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47
Q

Types of Defamation

A

Libel
Slander
Slander per se

48
Q

Libel

A

P does not have to prove special damages
• Libel = a written defamatory statement
» Note — TV and radio broadcasts are considered libel

49
Q

Slander

A

P must prove special damages unless the statement constitutes slander per se
• Slander = a spoken defamatory statement
• Special damages — a specific economic loss

50
Q

Slander per se

A

Presumed Damages
a) Concerns and adversely reflects on P’s business or
professional reputation;
b) Claims that P has a loathsome disease;
c) Claims that P committed a crime of moral turpitude; or
d) Imputes a woman’s chastity

51
Q

Truth Defense Defamation

A

Truth is a complete defense to a defamation claim

52
Q

Privilege Defense Defamation

A

Absolute privilege — protects statements by govt. officials
in their official capacity
• Qualified privilege — D’s liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness

53
Q

Malicious Prosecution

A

• Arises when D initiates a frivolous charge or claim against P with an improper purpose (e.g., filing a false police report)

54
Q

Elements of Malicious Prosecution

A

1) D commenced a prior criminal or civil legal proceeding
against P
2) Proceeding terminated in P’s favor
3) No probable cause for the original proceeding
4) D had an improper purpose in initiating the proceeding
5) Damages

55
Q

Abuse of Process

A

Arises when D uses the legal system as an ulterior purpose

to threaten or act against P

56
Q

Elements of Abuse of Process

A

1) Wrongful use of process for an ulterior purpose
2) Definite act or threat against P to accomplish an ulterior
purpose

57
Q

Elements of Intentional Misrepresentation

A

1) D misrepresents a past or present material fact
2) D knows or believes the misrepresentation is false
3) D intends to induce P to act or refrain from acting in reliance on the misrepresentation
4) Actual reliance by P (causation)
5) Justifiable reliance by P
6) Damages — P must suffer monetary loss

58
Q

Elements of Negligent Misrepresentation

A

1) D misrepresents a past or present material fact in a
business or professional setting
2) Breach of duty of care owed to a particular P (i.e., D knew P could rely on the misrepresentation)
3) Actual and justifiable reliance by P
4) Damages — P must suffer monetary loss

59
Q

Elements of Intentional Interference w/ Business Relations

A

1) P has a valid contractual relationship or business expectancy
2) D has knowledge of the relationship or expectancy
3) D intentionally interferes with that relationship
4) D’s interference causes a breach or termination in P’s
contract or expectancy
5) Damages

60
Q

Negligence Elements

A

Duty of Care
Breach of Duty
Causation
Damages

61
Q

Duty of Care

A

D owes a duty of care to all foreseeable victims of his activities

62
Q

Default Duty of Care

A

Reasonably prudent person (RPP)
• D’s duty is to behave like a reasonably prudent person under
the circumstances
» RPP is considered to be someone with D’s physical
characteristics, but with the knowledge and mental capacity of an ordinary person

63
Q

Foreseeable Victims

A

Zone of danger = the area around D’s activities in which a P

could foreseeably be injured

64
Q

Rescuer’s Exception

A

If D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable
» Does not apply to firefighters or police

65
Q

Children Duty of Care

A

Held to the standard of care of a like child of similar age, education, intelligence, and experience (subjective test)
• Generally, children under seven lack capacity to be held negligent

66
Q

Duty of Care Common Carriers & Innkeepers

A

Held to an “utmost care”
standard
• Liable for even slight negligence to passengers or guests

67
Q

Duty of Care Custom or Usage in Industry

A

Can be used to establish a
standard of care, but failure to adhere does not automatically
give rise to a breach of duty

68
Q

Duty of Care Professionals

A

Expected to act with the care of an average member of the profession in good standing in similar communities
• Specialists (e.g., neurosurgeons) are held to a national standard of care

69
Q

Elements of Negligence per se

A

1) The statute provides a criminal penalty
2) Standard of conduct is clearly defined in the statute
3) P is within the class of people the statute was designed to
protect
4) The statute was designed to protect against the type of
harm P suffered

70
Q

When Negligence per se does not apply

A

a) Compliance is more dangerous than non-compliance

b) Compliance is impossible under the circumstances

71
Q

Duty of Care Unknown or Undiscovered Trespassers

A

No duty owed

72
Q

Duty of Care Anticipated Trespassers

A

Where an owner has reason to
believe of trespassers on her land
• Activities — an owner has a duty of reasonable care in
carrying out activities on her property
• Dangerous conditions — an owner has a duty to warn or
make safe any conditions the owner knows of that are manmade, concealed, and dangerous
» Note — this is rare; look for spring guns, traps, etc.

73
Q

Attractive Nuisance

A

An owner must take reasonable care to eliminate dangers on
her property or protect children from those dangers if:
1) She is aware or should be aware of a dangerous condition (natural or artificial) on her property
2) She knows or should know children are in the vicinity
3) The condition is likely to cause injury if encountered
4) The magnitude of the risk outweighs its utility or the
expense of remedying it

74
Q

Duty of Care Licensee

A

Activities carried out on property — reasonable care
• Known dangerous conditions — duty to warn or make safe
• Duty to inspect — n/a for licensees

75
Q

Duty of Care Invitee

A

Activities carried out on property (reasonable care)
Known dangerous conditions — duty to warn or make safe
Owners have a duty to conduct a reasonable inspection to discover non-obvious dangers and make them safe

76
Q

Scope of Duty for Licensee & Invitee

A

Limited by the scope of the invitation/license
• Owner’s duty extends only to those areas where one is an
invitee or licensee (e.g., store owner does not owe a duty of
care in an employees-only area)

77
Q

Breach of Duty

A

D breaches his duty when his conduct falls short of the

standard of care owed under the circumstances

78
Q

Ways to Demonstrate a Breach

A

RPP standard
» Negligence per se — violation of a relevant statute
» Specialized standard of care
» Custom or usage in an industry — not an automatic
breach, but may be relevant

79
Q

Res Ipsa Loquitor

A

The very occurrence of the accident causing P’s injuries suggests negligent conduct
» Arises if facts cannot establish a breach of duty because circumstances surrounding the event are unknown to P

80
Q

Elements of Res Ipsa Loquitor

A

1) The harm would not normally occur without negligence
2) The type of harm is normally caused from negligence by someone in D’s position
3) The injury-causing instrument was in D’s exclusive control

81
Q

Actual Cause

A

Establishes a causal connection between the alleged breach of
duty and the resulting injury
“But-for” test — but for D’s alleged breach of duty, P’s injury
would not have occurred

82
Q

Substantial Factor Actual Cause

A

For multiple causes of P’s injury
• D’s breach is the actual cause if it was a substantial factor in
bringing about P’s injury
• Used if multiple causes bring about P’s injury and any one
alone would have caused the injury
» E.g., floods start on D1’s land and D2’s land, both of
which spread to P’s land and destroy P’s house

83
Q

Burden Shifting Test Actual Cause

A

For several possible causes of P’s injury
• Used if multiple Ds act (often simultaneously), only one causes P’s injury, but unclear which D caused the injury
» E.g., P is hit by a stray bullet at a busy firing range and it’s unknown which shooter hit P
• Burden of proving actual cause shifts to Ds
» If no D can prove another D was responsible, all D’s are jointly and severally liable

84
Q

Proximate Cause

A

Establishes that it is fair under the law to hold D responsible
for P’s injuries
Foreseeability — the measuring stick for proximate cause
• D is liable for the foreseeable outcome of his conduct
Direct causes — if P’s injury is the direct consequence of D’s
negligent conduct, D is liable unless the outcome is unusually
bizarre or unpredictable

85
Q

Intervening Causes Proximate Cause

A

Where contributing acts occur
between D’s conduct and P’s injuries
• D is usually liable if the injury could have possibly resulted
even without the intervening forces
• Approach — consider the type of harm being protected against by holding D negligent for his conduct
» If P’s resulting injury is the type of harm being protected against, D’s conduct is the foreseeable,
legal cause of P’s injury

86
Q

Eggshell Plaintiff Rule

A

D takes P as he finds him and is
liable for the full extent of P’s injuries, regardless of whether
they are foreseeable

87
Q

Comparative Negligence

A

D can establish that P’s injuries are at least partially the result of P’s own negligence
• Court apportions fault between P and D and reduces P’s recoverable damages accordingly
• Partial/modified comparative negligence — P can only recover damages if he was less than 50% at fault
• Pure comparative negligence — P can recover damages even
if he was more than 50% at fault

88
Q

Contributory Negligence

A

P is barred from recovery if D
establishes that P’s negligence contributed to her injuries
• Last clear chance defense — P can rebut D’s contributory
negligence claim by alleging D had the last clear chance to
avoid the injury-causing accident

89
Q

Assumption of Risk

A

D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act
• Requirements — D must show:
1) P knew or should have known the risk (objective standard)
2) P voluntarily proceeded in the face of that risk

90
Q

NEID

A

P may recover for emotional distress resulting from D’s

negligence, but only if P’s emotional distress gives rise to some physical manifestation

91
Q

Elements NEID

A

1) D’s negligence results in a close risk of bodily harm to P
2) D’s negligence results in P’s severe emotional distress
3) P exhibits some physical manifestation attributable to her
emotional distress

92
Q

Strict Liability

A

P can establish D’s liability for P’s injuries without proving D
acted negligently

93
Q

Elements for Strict Liability

A

1) Nature of D’s activity imposes absolute duty to make safe
2) Causation — actual and proximate cause
3) Damages to P’s person or property

94
Q

Defenses to Strict Liability

A

Assumption of risk, comparative negligence

95
Q

Abnormally Dangerous Activities

A

Abnormally dangerous or ultrahazardous activities or conditions give rise to strict liability for any resulting injuries

96
Q

Requirements for proving abnormally dangerous activity

A

1) The condition or activity imposes a severe risk of harm to persons or property
2) It cannot be made reasonably safe
» Cannot be performed without a serious risk of harm
3) The condition or activity is uncommon in the community

97
Q

Strict Liability Animal Conduct

A

Wild animals — owners are strictly liable to licensees and
invitees for unprovoked injuries caused by their wild animals
• Domestic animals — no strict liability unless owners know
of their animal’s unusually dangerous propensities
» E.g., if a dog has previously bitten people, its owner is
strictly liable; but the negligence standard applies if this is the first time this dog has bitten anyone
• Trespassers cannot recover — trespassers are generally not
entitled to recovery under strict liability

98
Q

Elements Product Liability Strict Liability

A

1) D is a merchant
2) Product is defective
3) Product is unaltered since leaving D’s control
4) P used the product in a foreseeable manner

99
Q

Who can sue Product Liability Strict Liability

A

Foreseeable users or bystanders

100
Q

Manufacturing Defect

A

When a product departs from its
intended design, causing it to be more dangerous than designed
• P must show that the product failed to perform as safely as
an ordinary consumer would expect

101
Q

Design Defect

A

When a product creates an unreasonable risk of danger due to its faulty design
• P must show that a hypothetical alternative design exists that
is safer but has a comparable cost and purpose

102
Q

Inadequate Warning

A

When a manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use
• The manufacturer also has a duty to warn of foreseeable
dangers from misuse of the product

103
Q

Elements of Inadequate Warning

A

P must show that the product has risks that 1) Cannot be eliminated by redesign, and
2) Consumers would not ordinarily notice

104
Q

Unavoidably Unsafe Products

A

1) Proper instructions for use, and

2) Adequate warnings of known dangers

105
Q

Misrepresentation of Fact

A

Seller will be liable for any
misrepresentation made in the course of a sale if:
1) Seller made a misrepresentation regarding a material fact concerning the quality or use of the goods
2) Seller intended to induce reliance by buyer
3) The misrepresentation induced justifiable reliance

106
Q

Nuisance

A

Tortious invasion of either public or private property rights
• Note — nuisance is a harm caused by tort, not a tort itself

107
Q

Private Nuisance

A

A substantial, unreasonable interference with another individual’s use or enjoyment of her property
• Substantial interference — must be offensive, annoying, or
inconvenient to the average person in the community
» Interference is not substantial if P is hypersensitive or using property for a specialized, abnormal purpose
• Unreasonable interference — severity of P’s injury must
outweigh the utility of D’s conduct

108
Q

Public Nuisance

A

Unreasonable interference with health, safety, or property rights of the community at large
• Recovery is only available to a private party if she suffered
unique damage not suffered by the public at large
• Govt. usually brings public nuisance suits

109
Q

Defenses to Nuisance

A

P cannot recover if he “came to the nuisance” (e.g., bought
property next door) for the sole purpose of bringing suit
• Contributory negligence is available if P asserts a negligence theory and acted negligently in creating the nuisance

110
Q

Vicarious Liability

A

When D commits a tort against P and a third person is held

liable due to his relationship with D

111
Q

Respondeat Superior

A

Employers are liable for torts
committed by employees within the scope of their employment
• Intentional torts are usually outside the scope, unless:
a) The job requires use of force (e.g., bouncer)
b) The job entails creating friction (e.g., bail bondsman)
c) The intentional tort is done to further the employer’s
goals (e.g., physically breaking up a fight in a store)

112
Q

Parent-Child Vicarious Liability

A

Parents are not liable for their children’s torts
• But parents may be separately negligent if they had reason
to know of a child’s propensity to injure or facilitated the tort

113
Q

Tavernkeepers Vicarious Liability

A

Businesses serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron

114
Q

Joint and Several Liability

A

Arises if the acts of two or more Ds combine to produce a single indivisible injury
• Each D is jointly and severally liable for the entire harm if his
actions were a factor in bringing about P’s injury
• Satisfaction — if P recovers fully from one D, she may not recover more from a jointly liable D

115
Q

Contribution

A

D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid
• Not applicable to intentional tort liability
• Contribution is usually imposed in proportion to relative fault

116
Q

Imdemnity

A

Involves shifting the entire loss between or amongst Ds
• Available by contract, in vicarious liability situations, or
under strict products liability

MBE Bar Studies (8 decks)

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