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Undeleted > Torts > Flashcards

Torts Flashcards

1
Q

Req of Intentional Torts

A

Act
Intent
Causation
Damages

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2
Q

Intent to bring physical or mental effect

A

Either desire or purpose OR

Knows w/ substantial certainty effect will occur

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3
Q

Transferred Intent Tort

A

Same tort different person
Different tort same person
Different tort different person
Cannot be invoked w/ conversion or IIED

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4
Q

Causation Int Torts

A

Need not be direct (i.e. setting in motion)

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5
Q

Assault Req Tort

A

Intentional causing of an
Apprehension of an
Imminent
Harmful or offensive contact

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6
Q

Apprehension Assault

A

Must be reasonable

Must be aware

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7
Q

Imminent Assault

A

Apparent present ability to
Carry out threat
Not future or hypothetical harm

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8
Q

Harmful or offensive contact

A

Touching that causes pain or bodily damage OR

Offends reasonable person’s sense of dignity

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9
Q

Battery Req Tort

A

Intentional infliction of
Harmful or offensive
Bodily conduct

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10
Q

Bodily Conduct Battery Tort

A

Can be indirect including contact w/

Object closely identified w/ plaintiff’s body

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11
Q

False Imprisonment

A

Intentionally causes
Plaintiff to be confined, restrained or detained to
Bounded area w/ no reasonable means of escape
Plaintiff is either aware or harmed

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12
Q

Plaintiff to be confined, restrained or detained False Imprisonment

A

Use of physical force, threats, duress,

Invalid legal authority OR refusing safe means of escape

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13
Q

Shopkeeper’s privilege

A

For reasonable time and manner
Detain suspected shoplifter
Typically 10-15 minutes

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14
Q

Bounded area

A

Can be large and does not have to be stationary

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15
Q

Plaintiff is either aware or harmed

A

Must be conscious or, if not

Must be harmed in some way

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16
Q

Req IIED

A

Intentional or reckless infliction of
Severe emotional or mental distress caused by
Defendant’s extreme & outrageous conduct

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17
Q

Intentional or reckless infliction IIED

A

Desire or
Knows w/ substantial certainty OR
Reckless disregard for high
Probability distress will occur

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18
Q

Severe emotional or mental distress caused by

A

Beyond reasonable person should endure
Can be evidenced by defendant’s conduct
Hypersensitivity
Only liable if defendant knew of sensitivity

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19
Q

Defendant’s extreme & outrageous conduct

A

Beyond all possible bounds of decency
Usually if defendant in position of
Authority or influence OR
Plaintiff member of group w/ heightened sensitivity

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20
Q

3rd Party Liability IIED

A

Plaintiff physically present & known by defendant AND
Close relation to other person OR
Suffers bodily harm as result of distress

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21
Q

Req of Trespass to Land

A 
Can be brought by anyone w/ 
Legal possession; not just owner
Intentional
Physical invasion to
Land of another
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22
Q

Physical Invasion Trespass to Land

A

Entry w/ out permission
Remaining w/ out right to be there OR
Placing or projecting object w/out permission

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23
Q

Req of Trespass to Chattel

A

Intentional
Interference w/ use or possession
Of chattel
Damages

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24
Q

Interference w/ use or possession Chattel

A

Owner precluded from using or possessing

Typically temporary

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25
Q

Damages Trespass to Chattel

A

Actual damages
Loss of value caused by loss of use OR
Cost of repair

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26
Q

Req of Conversion

A

Intentional
Interference w/ use or possession that
So substantial warrants full value
Damages

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27
Q

Interference w/ use or possession that

A

Sells to 3rd party
Refuses to give back OR
Destroys

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28
Q

So substantial warrants full value Conversion

A 
Courts take into account:
Duration & extent of interference
Intent to assert right inconsistent w/
Rightful possess w/ good faith
Expense or inconvenience to plaintiff
Extent of harm
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29
Q

Damages Conversion

A

FMV at time of conversion

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30
Q

Self Defense Tort

A 
Reasonable force to prevent
Threatened harm or offensive contact AND
Threatened confinement or imprisonment
Deadly force
Only allowed if defendant in 
Danger of death or SBI
Degree of force
Only degree necessary to 
Prevent threatened harm
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31
Q

Defense of Others Tort

A

Reasonable force to defend
Another when
Reasonably believes that other person
Could have used force to defend himself

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32
Q

Defense of Property Tort

A 
Reasonable force to defend against
Tortious harm to property
Warning required
Unless appears futile or dangerous
Deadly force
Only if non-deadly force will not suffice AND
Reasonably believes danger of death or SBI
NO mechanical devices (i.e. Home Alone)
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33
Q

Recapture of Chattel

A

Reasonable force to regain possession if:
Fresh pursuit
NO deadly force

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34
Q

Consent Defense Tort

A

May be express or implied
Scope
Not beyond what consented to

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35
Q

Express Consent Defense Tort

A

Must be willing and knowing
Consent by mistake valid defense
Consent by fraud invalid if essential matter

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36
Q

Implied Consent Defense Tort

A

Emergency
Injuries arising from athletic contests
Mutual consent to combat

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37
Q

Necessity Defense Tort

A

Enters land or interferes with property to

Prevent injury or severe harm

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38
Q

Private Necessity Defense Tort

A

Must pay for actual damages caused
Not liable for nominal damages
Landowner may not use force to exclude

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39
Q

Public Necessity Defense Tort

A

When necessary to protect

Large number of people from public calamities

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40
Q

Insanity Defense Tort

A

Generally no defense if able to

Form requisite intent to do so

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41
Q

Negligence

A

Defendant’s conduct imposes
Unreasonable risk upon another
Resulting in injury

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42
Q

Req of Negligence

A

Duty
Breach
Causation
Damage

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43
Q

Duty Neg

A 
Act as reasonable person
Who is it owed to
Foreseeable plaintiffs (majority)
In the zone of danger
Everyone (minority)
Including unforeseeable
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44
Q

Standard of Care Duty Neg

A

Reasonable person under circumstances
Physical characteristics of defendant
Voluntarily intoxicated held to same standard as sober
Not mental characteristics

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45
Q

Special Duties with Affirmative Duty to Act

A 
Common carrier
Innkeepers
Automobile drivers
Special relationship
Causing the danger
Volunteer assistance
46
Q

Common carrier Duty

A

Highest duty of care w/

Practical operation of business

47
Q

Innkeeper Duty

A 
Ordinary negligence (majority)
Slight negligence (minority)
48
Q

Automobile drivers Duty

A 
Ordinary care (majority)
Refrain from wanton & willful misconduct (minority)
49
Q

Special relationship Duty

A

Business or landowner holding premises open to public
Landlords and tenants
Or other special relationships

50
Q

Volunteer Assistance Duty

A

Must proceed w/ reasonable care

51
Q

Professional Duty

A

Required to possess knowledge and skill

Of their profession or occupation

52
Q

Fireman’s Rule Prof Duty

A

Risk takers are prohibited from suing or

Injuries stemming from assumed risk of profession

53
Q

Children Duty

A

Conform to conduct of child of like
Age, intelligence, and experience
Exception
Child engaged in adult activity (i.e. driving)

54
Q

Bailor Duties

A

For gratuitous, bailor must:
Inform of known, dangerous defects in chattel
Bailment for hire:
Inform of defects of which should know

55
Q

Bailee Duties

A 
Sole benefit for bailor:
Standard is low
Sole benefit for bailee:
Higher standard of care
Mutual benefit:
Ordinary standard of care
56
Q

Off Premises Injuries

A

Not liable for injuries resulting from natural conditions

57
Q

Categories for Duties Owed Land

A

Trespasser
Invitee
Licensee

58
Q

Trespasser Duty

A

Owes no duty to undiscovered trespassers but

Must refrain from willful, wanton, or intentional misconduct

59
Q

Discovered Trespasser Duty

A

Warn or protect against concealed

Dangerous artificial conditions

60
Q

Undiscovered Trespasser Duty

A 
No duty unless owner should
Reasonably have known trespassers
Entering land
Then use reasonable care
No duty to inspect
61
Q

Attractive Nuisance

A

Liable to trespassing children if
Artificial condition poses
Unreasonable risk of SBI AND
Because of age, children cannot appreciate danger or do not find burden of eliminating danger
Slight compared to risk of harm AND owner fails to exercise reasonable care

62
Q

Invitee Duty

A 
One who enters land in response to
Invitation by owner to do
Business w/ owner OR
Public invitee for land open
To public at large
63
Q

Non-Delegable Duty

A

Make reasonable inspection to
Find hidden dangers AND
Take affirmative action to remedy

64
Q

Licensee Duty

A 
One who enters land w/ owner’s consent
For his own purpose (social guest)
Duty to: 
Warn to all known dangerous conditions that create unreasonable risk of harm that unlikely to discover AND to use
Reasonable care in conducting activities
NO duty to repair or inspect
65
Q

Breach Neg

A

When defendant’s conduct fails to

Conform to applicable standard of care

66
Q

Trad Breach Neg

A

What reasonably prudent person would do

67
Q

Cost-Benefit Analysis Breach Neg

A

Unreasonableness of risk vs

Utility of act

68
Q

Res Ipsa Loquitur

A

Establishes breach in situations where

Event creates an inference defendant likely negligent

69
Q

Elements of Res Ipsa Loquitur

A

Ordinarily not occur in absence of negligence
Cause w/ in exclusive control
Not due to action by plaintiff

70
Q

Modern Trend Res Ipsa Loquitur

A

Shifts burden of medical holding all jointly and severally liable
Products liability when came from upstream
Generous interpretation of exclusivity

71
Q

Actual Causation Neg

A

But for defendant’s act,

Injury would not have occurred

72
Q

Multiple Tortfeasors/Multiple Possible Actual Cause Neg

A

Substantial factor test
Concurrent tortfeasors acting in concert
Alternate causation

73
Q

Substantial factor test

A

More than one at fault and
Conduct combined caused harm
Negligence was substantial factor to harm

74
Q

Concurrent tortfeasors acting in concert

A

Joint and several liability

75
Q

Alternate causation

A

Two acts of negligence, only one could
Cause injury but unknown
Burden shifts to defendants to show not them

76
Q

Proximate Causation Neg

A

Reasonable foreseeability

Liable for all harm reasonably foreseeable

77
Q

Eggshell-skull plaintiff

A

Liable for unforeseen harm that may be
Increased b/c of plaintiff’s pre-existing
Physical or mental conditions or vulnerability

78
Q

Intervening Causes

A

Foreseeable, then still liable:
I.e. medical malpractice or negligence by rescuers
Unforeseeable, generally not liable if broke chain of causation:
I.e. fender bender, get hits by another car

79
Q

Collateral Source Rule Torts

A

Benefits from outside sources (P’s insurance) not
Credited against liability BUT
D’s insurance is
Modernly statutes have eliminated or modified

80
Q

Negligent infliction of emotional distress (NIED)

A

Liable when defendant engages in
Negligent conduct that causes plaintiff to
Suffer serious emotional distress

81
Q

Types of Negligent infliction of emotional distress (NIED)

A 
Actual impact or threat OR
Zone of danger OR
Bystander but must be 
Related and Personally witnessed OR
Special relationship (i.e. mishandling a corpse or misdiagnosis)
82
Q

Defenses to Negligence

A

Contributory negligence
Comparative Negligence
Assumption of Risk

83
Q

Contributory negligence

A

Negligence on part of plaintiff

Bars recovery

84
Q

Comparative Negligence

A 
Negligence on part of plaintiff but
Does not bar recovery
Pure:
Reduces in proportion to fault
Partial Comparative:
Reduces if less than 51%
Bars if more than 50%
85
Q

Assumption of Risk

A

Bars if assumed risk of damage where knew of risk and voluntarily consented
Comparative fault:
May reduce recovery but does not bar

86
Q

Strict Liability

A

Held liable for activities regardless of
Precautions taken to prevent harm

Animals
Abnormally Dangerous Activities

87
Q

Trespass of Animal Strict Liability

A

Liable if reasonably foreseeable damage

88
Q

Wild Animals Strict Liability

A

Not custom to keep type of animal
S/L despite precautions so long as arises from dangerous propensity of animal OR which owner knows about
S/L for fearful reaction of unrestrained animal
No S/L of undiscovered trespasser
EXCEPT vicious watchdog

89
Q

Domestic animals Strict Liability

A

S/L if knows or reason to know of dangerous propensities and harmful results
Public stray, then negligence

90
Q

Abnormally Dangerous Activities

A

High degree of risk or serious harm
Cannot be eliminated by exercise of reasonable care
Danger outweighs activity’s value to community
Not appropriate for location
Not common activity

91
Q

Defenses of Strict Liability

A

Assumption of risk

NOT contributory negligence

92
Q

Products Liability

A

Liability of seller of tangible item, which
Because of defect causes injury to purchaser
User or bystander based on Intent

93
Q

Intent Products Liability

A

Defendant intended consequences or
Knew to substantial certainty to occur
Defenses same as intentional torts

94
Q

Product Strict Liability

A

Manufacturing Defect
Design Defect
Failure to Warn

95
Q

Manufacturing defect

A

Product deviated from intended design

96
Q

Design Defect

A 
Consumer Expectation Test:
Less safe than ordinary consumer would expect
Risk-utility Test:
If risks outweigh benefits
Must show reasonable alternative design
97
Q

Failure to Warn

A 
Foreseeable risk NOT
Obvious to ordinary user
Prescription drugs
Warning goes to doctor UNLESS
Marketed directly to consumers (more common now)
98
Q

Req of Strict Products Liability

A

Product Defective
Defect existed when left defendant’s control (actual cause)
Caused injury when used in foreseeable way (proximate cause)
Damages

99
Q

Defenses to Strict Products Liability

A 
Assumption of risk
Comparative negligence BUT NOT
If plaintiff’s neg or misuse foreseeable
Disclaimers not effective
Compliance w/ industry standards NOT defense
100
Q

Products Negligence

A

Retailers and wholesalers rarely liable

Manufacturer likely could be

101
Q

Products Warranty

A

Express
Implied Warranty of Merchantability
Fitness for Particular Purpose

102
Q

Express Warranty Products

A

Statement of fact or promise concerning goods

Only need to show did not live up to promise

103
Q

Defenses to Products Warranty

A

Assumption of risk
Comparative/contributory negligence
Unless neg/misuse foreseeable
Failure to give notice of breach under UCC

104
Q

Misrepresentation Prod Liability

A

Liable for misrepresentation of fact when
Statement was material fact concerning
Quality or uses of goods AND
Seller intended to induce reliance buyer AND
Buyer did in fact rely
Must still prove causation and damages

105
Q

Defenses to Misrepresentation Prod Liability

A

Comparative

UNLESS intentional

106
Q

Privacy Claims

A

Only for individuals & terminates upon death

Misappropriation
Intrusion into Seclusion
False Light
Public Disclosure of Private Facts

107
Q

Misappropriation

A

Unauthorized use of plaintiffs
Picture or name for
Defendant’s commercial advantage

108
Q

Intrusion into Seclusion

A

Intrusion into private aspect of plaintiff’s
Life in private place
Highly objectionable to
Reasonable person

109
Q

False Light

A

One attributes to plaintiff views he does not hold
Objectionable to reasonable person under circum
Publication is public
If public interest, malice required
Truth not defense

110
Q

Public Disclosure of Private Facts

A

Public disclosure of private facts that
Not matter of legitimate public concern
Objectionable to reasonable person

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