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Bar Exam Prep > Torts > Flashcards

Torts Flashcards

1
Q

Battery

A

A harmful or offensive contact with P’s person intentionally caused by D

Person includes things connected to the person
Contact = offensive when not expressly or impliedly consented to by P

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2
Q

Assault

A

Intentional creation by D of a reasonable apprehension of immediate harmful or offensive contact to P’s person

Apprehension doesn’t mean fear
Mere words are not sufficient

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3
Q

False Imprisonment

A

An intentional act or omission by D that causes P to be confined or restrained to a bounded area

Confinement/restraint includes threats of force, false arrests, failure to provide a means of escape when under duty to do so

Ability escape must be reasonable (not disgusting, humiliating, etc.)

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4
Q

Intentional Infliction of Emotional Distress

A

Intentional extreme and outrageous conduct by D that causes P to suffer severe emotional distress

Physical injury not required

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5
Q

Trespass to Land

A

An intentional act by D that causes a physical invasion of P’s real property

D need not have intended to commit a trespass, only to do the act of entering onto land

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6
Q

Trespass to Chattels

A

An intentional act by D that causes an interference with P’s right of possession in a chattel, resulting in damages

Typically involves damage/disposition of P’s chattel
D need not have intended to commit trespass to the chattels, only to do the act that causes interference with chattel

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7
Q

Conversion

A

An intentional act by D that causes a serious interference with P’s right of possession in a chattel

D need not have intended conversion, only to do the act that constitutes a conversion

Interference with chattel is so serious as to require D to pay the full value of the chattel (in effect, a forced sale)

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8
Q

Doctrine of Transferred Intent

A

Intent will transfer from intended tort to committed tort, or from intended victim to actual victim

Both tort intended and tort committed must be battery, assault, false imprisonment, trespass to land, or trespass to chattels

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9
Q

Consent as a Defense

A

May be express or implied (apparent or implied by law)

P must have capacity to consent and D must not exceed the bounds of the consent

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10
Q

Self-Defense, Defense of Others, Defense of Property

A

D must reasonably believe that a tort is being or about to be committed against himself, a third person, or his property

Only reasonable force may be used

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11
Q

Reasonable Force - Deadly Force Appropriate?

A

Deadly force is permitted if reasonably believed to be necessary to prevent serious bodily injury

Deadly force is NEVER permitted to defend only property

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12
Q

Shop-Keeper’s Privilege

A

Permits the reasonable detention of someone the shopkeeper reasonably believes has shoplifted goods

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13
Q

Necessity as a Defense

A

D whose property tort was justified by a public necessity has an absolute defense

If justified only be PRIVATE necessity, defense is QUALIFIED (D must pay for damage caused)

Privilege trumps an property owner’s right to defend his property

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14
Q

Defamation at Common Law

A

Defamatory language concerning P published to a third person that causes damage to P’s reputation

Damage will be presumed IF defamation is libel (written) or if it is slander (spoken) WITH one of four per se categories

a) Business or profession;
b) Loathsome disease;
c) Crime of moral turpitude; or
d) Unchastity of a woman

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15
Q

Defamation of a Public Official/Concern

A

Apply constitutional rules if P is a public official or figure, or if the defamation involves a matter of public concern

1) P must prove statement was false;
2) Public officials must prove “actual malice”
3) Private figures suing on a matter of public concern must show (i) at least negligence as to truth or falsity, and (ii) actual injury (no presumed damages)

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16
Q

Actual Malice for Defamation

A

Statement was made with knowledge that its falsity or reckless disregard of its truth or falsity

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17
Q

Defenses to Defamation (3)

A

a) Truth (when constitutional requirement of proof of falsity does not apply)
b) Absolute privilege for statements in judicial, legislative, or executive proceedings
c) Qualified privilege for matters in the interest of the publisher and/or the recipient (may be lost if the statement is outside the scope of the privilege or made with actual malice)

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18
Q

Types of Invasion of Privacy (4)

A

1) Appropriation of P’s picture or name
2) Intrusion on P’s affairs or seclusion
3) Publication of facts placing P in a false light
4) Public disclosure of private facts about P

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19
Q

Appropriation of P’s Picture or Name

A

Type of invasion of privacy

Unauthorized use of P’s picture or name for D’s commercial advantage

Limited to the advertisement or promotion of products or services

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20
Q

Intrusion on P’s Affairs or Seclusion

A

Type of invasion of privacy

An act of prying or intruding on P’s private affairs or seclusion that would be highly offensive to a reasonable person

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21
Q

Publication of Facts Placing P in a False Light

A

Type of invasion of privacy

Publication of facts about P putting her in a false light in the public eye in a way that would be highly offensive to a reasonable person

Actual malice must be shown if the publication is in the public interest

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22
Q

Public Disclosure of Private Facts About P

A

Type of invasion of privacy

The public disclosure of private information about P such that the public disclosure would be highly offensive to a reasonable person

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23
Q

Defenses to Invasion of Privacy

A

1) Consent

2) Absolute or qualified privileges

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24
Q

Types of Misrepresentation

A

1) Intentional misrepresentation (fraud)

2) Negligence misrepresentation

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25
Q

Intentional Misrepresentation

A

Misrepresentation by D with

(i) SCIENTER (knowledge of falsity or reckless disregard as to truth/falsity);
(ii) INTENT to induce RELIANCE;
(iii) Causation (actual reliance on misrepresentation);
(iv) Justifiable reliance; and
(v) Damages

D generally has no duty to disclose material facts, but may be liable for active concealment

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26
Q

Negligent Misrepresentation

A

Misrepresentation by D

(i) in a BUSINESS or professional capacity;
(ii) Breach of duty to P;
(iii) Causation (actual reliance on misrepresentation);
(iv) Justifiable reliance; and
(v) Damages

D owes a duty only to those whom the misrepresentation was directed or those who D knew would rely on it

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27
Q

Interference with Business Relations

A

(i) A valid contractual relationship or business expectancy of P and third party;
(ii) D’s knowledge of the relationship;
(iii) Intentional interference by D - including a breach or termination of the relationship; and
(v) Damages

D’s conduct may be privileged if it is a proper attempt to obtain business or protect D’s interests

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28
Q

Malicious Prosecution

A

(i)Initiating a criminal proceeding;
(ii) Against P
(iii) Ending in P’s favor
(iv) Absence of probable cause for the prosecution;
(v) Improper purpose (malice); and
Damages

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29
Q

Elements of a Prima Facie Case of Negligence

A
  1. DUTY of care to conform to a specific standard of conduct;
  2. BREACH of that duty;
  3. Breach of duty was the ACTUAL and PROXIMATE CAUSE of P’s injury; and
  4. P suffered DAMAGES to person or property
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30
Q

General Standard of Care

A

Reasonable person/reasonably prudent person (RPP)

Average mental ability, but the same physical characteristics of D

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31
Q

Standard of Care for Professionals

A

Must exercise knowledge and skill or a member of the profession in good standing

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32
Q

Standard of Care for Children

A

Must conform to standard of care of a child of like age, education, intelligence, and experience

Adult standard applies if child is engaged in an adult activity

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33
Q

Standard of Care for Landowners

A

Depends on the status of the person injured on the property

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34
Q

Standard of Care Due to Trespassers

A

Landowner owes NO duty to UNDISCOVERED trespassers

For DISCOVERED and ANTICIPATED trespassers, landowner owes a duty to WARN of or MAKE SAFE know HIGHLY dangerous ARTIFICIAL conditions IF not obvious to the trespasser

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35
Q

Standard of Care Due to Invitees

A

Invitees are those entering as members of the PUBLIC or for a purpose connected to the BUSINESS of the landowner

Landowner’s duty is same as for licensees, but with additional duty to reasonably INSPECT for dangerous conditions

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36
Q

Standard of Care Due to Licensees

A

Licensees are those who come onto the land with EXPRESS or IMPLIED PERMISSION, but for their OWN purpose (includes social guests)

Landowner’s duty is the same as for discovered trespassers, except that it applies to ALL dangerous artificial AND natural conditions

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37
Q

Licensees

A

Licensees are those who come onto the land with EXPRESS or IMPLIED PERMISSION, but for their OWN purpose (includes social guests)

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38
Q

Invitees

A

Invitees are those entering as members of the PUBLIC or for a purpose connected to the BUSINESS of the landowner

39
Q

Criminal Statute as a Standard of Care

A

A criminal statute may serve to establish a specific standard of care in place of the general standard of ordinary care if:

a) P is within the CLASS OF PERSONS that the statute was intended to protect; and
b) The statue was designed to prevent the TYPE OF HARM suffered

40
Q

Attractive Nuisance Doctrine

A

Ordinary reasonable care standard applies for conditions on land that injure children

41
Q

Negligent Infliction of Emotional Distress (NIED)

A

D breaches duty to P by creating a risk of physical injury and P suffers emotional distress as a result

P must be within the “zone of danger” and ordinarily must suffer physical symptoms from the distress

42
Q

Bystander Exception to NIED

A

D breaches a duty to a bystander NOT in the “zone of danger” who (i) is closely related to the injured person, (ii) was present at the scene of the injury, AND (iii) personally observed or perceived the event

43
Q

Breach of Duty

A

D breached applicable duty of care = question for trier of fact

44
Q

Res Ipsa Loquitur

A

“The thing speaks for itself”

Fact that injury occurred may create inference that D breached his duty (type of thing that usually wouldn’t occur unless someone was negligent)

45
Q

Res Ipsa Loquitur Requirements

A

1) The accident causing the injury is a type that would NOT have occurred ABSENT negligence;
2) The negligence is ATTRIBUTABLE to D (usually because D is in EXCLUSIVE control of the instrumentality causing the injury); and
3) The injury was not attributable to P’s own conduct

46
Q

Types of Causation

A

1) Actual causation

2) Proximate causation

47
Q

Actual Causation

A

Usually established by “but for” test

Act is actual cause of injury when it would not have occurred BUT FOR the act

48
Q

Joint Causation

A

Type of actual causation

When two acts bring about an injury and EITHER ONE ALONE would have sufficed, EITHER of the acts is an actual cause of the injury if it was a “SUBSTANTIAL FACTOR” in bringing it about

49
Q

Alternative Causation

A

Type of actual causation

When two acts were negligent, but it is NOT CLEAR which was the actual cause of the injury, the BURDEN SHIFTS to EACH of the negligent actors to show that his negligent act was not the actual cause

50
Q

Proximate Cause

A

D is liable for ALL harmful results that are the normal incidents of and within the increased risk from D’s actions

Limits liability for unforeseeable consequences of D’s actions

Foreseeable intervening causes do not cut off D’s liability for the consequences of his negligent act

51
Q

Indirect Cause Cases

A

An INTERVENING FORCE occurs after D’s negligent act and combines with it to cause the injury

Foreseeable intervening causes (such as negligent rescue) do not cut off D’s liability for the consequences of his negligent act

52
Q

Damages

A

P must show actual harm or injury to complete prima facie case for negligence

53
Q

Damages P Can Recover for Negligence

A

P can recover economic damages (e.g.: medical expenses) and non-economic damages (e.g.: pain and suffering)

54
Q

Eggshell Victim Doctrine

A

Tortfeasor takes the victim as he finds him

Extent or severity of the harm need NOT have been foreseen

55
Q

Defenses to Negligence (3)

A

1) Contributory negligence
2) Comparative negligence
3) Assumption of risk

56
Q

Contributory Negligence

A

Defense to negligence

Standard of care required of P to avoid injury is judged using RPP standard

57
Q

Comparative Negligence - Types

A

Pure and partial

Almost all states have rejected rule that P’s contributory negligence will totally bar her recovery

58
Q

Pure Comparative Negligence

A

Defense to negligence

Negligent P can recover damages reduced by the percentage of her fault, EVEN IF she was PRIMARILY at fault

59
Q

Partial Comparative Negligence

A

Defense to negligence

Negligent P can recover reduced damages as long as her fault is not above a certain level, usually NOT ABOVE 50%

If it is, she is barred from recovering

60
Q

Assumption of Risk

A

Defense to negligence

Arises when P is AWARE of a risk and VOLUNTARILY assumes it (either expressly or impliedly)

In comparative negligence states, most implied assumption of risk situations are analyzed under comparative negligence rules

61
Q

Strict Liability

A

Imposes liability on D for P’s injury even though D was not negligent

62
Q

Strict Liability - Situations

A

1) Owner of a wild animal, or an abnormally dangerous domestic animal for injuries caused by the animal
2) One engaged in an abnormally dangerous activity - an activity that creates a FORESEEABLE risk of serious harm EVEN when reasonable care is exercised by all actors

63
Q

Extent of Strict Liability

A

Harm must result for the KIND OF DANGER that makes the animal or activity abnormally dangerous

Most states apply comparative fault rules to strict liability cases

64
Q

Products Liability - Theories

A

Liability for defective products may be brought under various theories of liability:

(i) Intent;
(ii) Negligence;
(iii) Strict liability;
(iv) Implied warranties of merchantability;
(v) Fitness for a particular purpose;
(vi) Representation theories

65
Q

Products Liability

A

Arises when a commercial supplier supplies a product in a DEFECTIVE CONDITION unreasonably dangerous to users

66
Q

Products Liability - Manufacturing Defect

A

Product VARIES from other products in the manufacturing process and is dangerous BEYOND the expectation of the ordinary customer

67
Q

Products Liability - Design Defect

A

ALL products of the line have dangerous characteristics because of mechanical failures, packaging, or INADEQUATE warnings, AND a less dangerous modification or alternative was ECONOMICALLY FEASIBLE

68
Q

Products Liability Based on Negligence

A

Standard elements of negligence prima facie case apply

Breach of duty is shown by NEGLIGENT conduct by D that LEADS to supplying a defective product to P

69
Q

Products Liability Based on Strict Liability

A

Liability arises from supplying defective product, EVEN IF D exercised due care and was not negligent

Even a RETAILER who had NO opportunity to INSPECT the product may be held liable as a commercial supplier

Defect must have existed WHEN the product LEFT D’s control

70
Q

Nuisance Actions - Types (2)

A

1) Private nuisances

2) Public nuisances

71
Q

Nuisance

A

Type of harm that may be based on intent, negligence, or strict liability

72
Q

Private Nuisance

A

A private nuisance is a SUBSTANTIAL, UNREASONABLE INTERFERENCE with another person’s USE or enjoyment of her property

73
Q

Public Nuisance

A

A public nuisance is an act that UNREASONABLY INTERFERES with the HEALTH, SAFETY, or PROPERTY rights of the community

74
Q

Remedies for a Nuisance Action

A

Usual remedy is damages, but injunctive relief may be available for a continuing nuisance

75
Q

“Coming to the Nuisance” as a Defense

A

“Coming to the nuisance” is NOT a defense

One who has just moved onto land adjacent to a nuisance MAY bring a nuisance action

76
Q

Vicarious Liability

A

D may be vicariously LIABLE for tort of ANOTHER based on RELATIONSHIP between D and tortfeasor

77
Q

Vicarious Liability - Common Types (4)

A

a) Employer-Employee
b) Principal-Independent Contractor
c) Automobile Owner-Driver
d) Parent-Child

78
Q

Respondeat Superior

A

Vicarious liability for employer-employee relationship

Employer is liable for torts of an employee that occur WITHIN THE SCOPE OF THE EMPLOYMENT RELATIONSHIP

79
Q

Liability of Principal for Independent Contractor

A

General rule is that principal is NOT vicarious liable for the torts of an independent contractor, but BROAD exceptions exist

Exceptions:

a) Independent contractor is engaged in INHERENTLY DANGEROUS activities
b) The principal’s DUTY CANNOT BE DELEGATED because of public policy considerations

80
Q

Liability of Automobile Owner for Driver

A

An automobile owner is NOT vicariously liable for the negligence of the driver, UNLESS the state has adopted:

a) A permissive use statute (imposing liability for the torts of anyone driving with permission); or
b) The family purpose doctrine (imposing liability for the torts of a family member driving without permission)

81
Q

Permissive Use Statute

A

Imposes liability on the automobile owner for the torts of anyone driving with permission

82
Q

Family Purpose Doctrine

A

Imposes liability on the automobile owner for the torts of a family member driving with permission

83
Q

Liability of Parent for Child

A

A parent is NOT vicariously liable for a child’s torts at common law

Statutes in many states impose limited liability for child’s INTENTIONAL torts

84
Q

Vicarious Liability - Liability for Own Negligence

A

Regardless if vicarious liability applies or not, D can be held LIABLE for his OWN NEGLIGENCE

(e.g.: negligence in hiring the employee, supervising the child, or entrusting the car to the driver)

85
Q

Joint and Several Liability

A

When two or more tortious acts COMBINE to proximately cause an INDIVISIBLE injury to P, each tortfeasor is jointly and severally liable for the injury

86
Q

Who Can P Recover from under Joint and Several Liability?

A

P can recover his ENTIRE damages from any ONE of the tortfeasors

Many states abolished rule for (i) tortfeasors less at fault than P, or (ii) all tortfeasors for non-economic damages

87
Q

Joint and Several Liability - Contribution

A

Allows a tortfeasor who paid more than his share of the damages to recover the excess from other tortfeasors in proportion to their fault

88
Q

Vicarious Liability - Survival

A

Survival statutes PRESERVE a victim’s cause of action AFTER his death, EXCEPT for torts involving INTANGIBLE PERSONAL interests

89
Q

Vicarious Liability - Wrongful Death

A

Wrongful death statutes permit a personal REPRESENTATIVE or surviving spouse to RECOVER damages from a tortfeasor for the loss of the decedent’s support and companionship

90
Q

Intra-Family Tort Immunity

A

Rule that one family member could NOT SUE another in tort for PERSONAL INJURY - abolished in most states

EXCEPT children, generally, cannot sue their parents for their exercise of parental supervision

91
Q

Governmental Tort Immunities

A

Governments generally have waived their sovereign immunity from suit for MINISTERIAL acts, but have NOT waived immunity for DISCRETIONARY acts

92
Q

Ministerial Acts

A

Acts performed at the operational level that do not require the exercise of judgment

93
Q

Discretionary Acts

A

Acts taking place at the planning or decision-making level

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