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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

Effect of hypersensitivity of plaintiff

A

None

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2
Q

Incapacity defense

A

None. Always have capacity

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3
Q

7 intentional torts

A

battery, assault, false imprisonment, IIED, trespass to land, trespass to chattel, conversion

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4
Q

Elements of battery

A

1) defendant committed a harmful or offensive contact; and 2) contact was with the plaintiff’s person

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5
Q

Offensive touching

A

offends reasonable sense of personal dignity

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6
Q

Contact

A

has to be with plaintiff’s person, including anything touching plaintiff

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7
Q

Elements of Assault

A

1) defendant must place plaintiff in reasonable apprehension; 2) of an immediate battery

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8
Q

Reasonable Apprehension

A

plaintiff has reason to know or believe, does not indicate fear

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9
Q

Effect of words on assault

A

words alone lack immediacy, need some sort of conduct (menacing gesture); can also negate immediacy

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10
Q

Conditional threats

A

do not suffice for immediacy for assault

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11
Q

Effect of plaintiff not seeing action in anticipation of a battery

A

no assault

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12
Q

Elements of false imprisonment

A

1) defendant commits act of restraint; and 2) plaintiff confined in a bounded area

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13
Q

Types of acts of restraint

A

1) threats which must act on the mind of a reasonable person; 2) omissions if pre-existing duty to help plaintiff move about

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14
Q

Effect of plaintiff not knowing about restraint

A

no false imprisonment

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15
Q

What is not a bounded area

A

area not bounded if there is a reasonable means of escape that plaintiff can reasonably discover. If way out is disgusting/humiliating then not reasonable

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16
Q

Elements of IIED

A

1) defendant must engage in outrageous conduct; 2) plaintiff must suffer severe emotional distress

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17
Q

Intent for IIED

A

can be either intent or recklessness

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18
Q

Outrageous conduct by defendant without severe emotional distress on the part of the plaintiff

A

no IIED

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19
Q

Restatement definition of outrageous conduct

A

conduct that exceeds all bounds of decency tolerated in civil society, mere insults not outrageous

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20
Q

Hallmarks of outrageous conduct

A

conduct that is continuous or repetitive, defendant is a common carrier or innkeeper, plaintiff member of a “fragile class” of persons, when defendant knows about plaintiff’s hypersensitivity and exploits it

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21
Q

Fragile class of persons

A

young children, the elderly, pregnant women

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22
Q

Evidence to prove IIED

A

evidence that plaintiff severely distressed, but do not need any particular evidence NOR that plaintiff suffered physical symptoms

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23
Q

Elements of trespass to land

A

1) defendant commits an act of physical invasion that; 2) interferes with plaintiff’s exclusive possession of the land

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24
Q

Ways to commit trespass to land

A

1) physically entering the land; 2) throwing a physical object onto the land (not floodlights or loud noise)

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25
Q

Effect of intent of defendant in trespass to land

A

none. Defendant does not need to know that he has trespassed. Only need intent to get to location in question. However, if plaintiff is unconscious, then no intent (e.g., sleep walking, fainting)

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26
Q

Who the claim of interference with possession of land belongs to

A

actual possessor of the land, not necessarily the owner if owner is renting out, etc

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27
Q

Possessor’s land rights

A

right to air above and soil below out to a reasonable distance

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28
Q

Trespass to chattels/conversion

A

Intentional interference with personal property

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29
Q

Personal Property

A

Anything you own that is not real estate or buildings

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30
Q

Ways to interfere with personal property

A

1) physically damage; 2) steal it

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31
Q

Trespass to chattels v. conversion

A

Degree of interference. modest = t.c.; severe = conversion (basically a forced sale)

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32
Q

Affirmative defenses to intentional torts

A

1) consent; 2) protective privileges; 3) necessity

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33
Q

Defense of consent

A

defense to all 7 intentional torts, first question is did plaintiff have legal capacity to consent?

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34
Q

Capacity for consent vis-a-vis children

A

children have capacity to consent to age appropriate touching

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35
Q

Remedy for trespass to chattels

A

cost of repair

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36
Q

Remedy for conversion

A

full value of item damaged

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37
Q

Types of consent

A

express; implied

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38
Q

Express consent

A

declaration in words giving the defendant permission to act in a way that otherwise would be a tort

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39
Q

Exceptions to express consent

A

Consent void if obtained by fraud or duress

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40
Q

Implied consent

A

arise from custom where plaintiff goes to a place/engages in an activity where certain invasions routinely take place; can be based on reasonable interpretation of plaintiff’s objective conduct

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41
Q

Scope of consent

A

all consent has scope and if exceeded then no defense

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42
Q

Scope of consent for medical procedures

A

doctor operates on remote area = no implied consent; doctor operates on immediate area = implied consent

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43
Q

Protective privileges (intentional torts)

A

self defense; defense of others; defense of property. All involve responding to a threat

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44
Q

Rules of protective privileges

A

1) proper timing (must react to threat as it happens or when it it imminent); 2) defendant must have reasonable belief that threat is genuine (allows for reasonable mistake); 3) response must be proportional/ncessary

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45
Q

Deadly force and privileges

A

can use deadly force for self defense and defense of others when other person threatens with deadly force; NOT allowed for defense of property (nor can you use deadly mechanical devices to protect property)

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46
Q

Defense of necessity

A

only applies to property torts

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47
Q

Types of defense of necessity

A

1) public necessity; 2) private necessity

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48
Q

Public necessity

A

defendant invades plaintiff’s property in an emergency to protect community as a whole or a significant group of people. Absolute defense

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49
Q

Private necessity

A

defendant invades property of plaintiff in an emergency to protect interest of his own (safety or goods)

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50
Q

Consequences of private necessity

A

1) defendant liable for compensatory damages (actual harm to property); 2) defendant never liable for nominal or punitive damages; 3) as long as emergency continues defendant cannot be thrown off plaintiff’s land

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51
Q

Elements of defamation

A

1) defendant must make a defamatory statement that specifically identifies the plaintiff; 2) must be publication of the statement; 3) damages

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52
Q

Defamatory statement

A

statement that adversely effects reputation (typically factual statement reflecting poorly on one’s character; mere name calling does not suffice)

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53
Q

Identify plaintiff (defamatory statement)

A

name actual used or identify plaintiff by some other easily identifiable information; plaintiff must be alive at time statement made

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54
Q

Statement that speaks of a group

A

small group = each member has coa; big group = no one has coa

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55
Q

Publication

A

nothing to do with books or printing presses, suffices to merely tell one other person (can say defaming statement to plaintiff alone), doesn’t have to be intentional, can be negligent

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56
Q

Libel

A

written/recorded defamatory statement

57
Q

Slander

A

spoken/oral defamatory statement

58
Q

Slander per se

A

presumed damages; 4 categories (closed list)

59
Q

Categories of slander per se

A

1) statement deals with plaintiff’s business or profession; 2) statement that plaintiff committed a crime of moral turpitude; 3) statement imputing chastity on a female (premarital sex); 4) statement that plaintiff suffers from loathsome disease (leprosy or STD)

60
Q

Slander not per se

A

no presumption of damages and have to prove economic loss

61
Q

Affirmative defenses to defamation

A

1) consent; 2) truth (defendant has bop); 3) privileges

62
Q

Absolute privileges to defamation

A

Based on status of communicator. 1) spouses; 2) judicial/legislative/executive in conduct of activities (note for judicial includes judge, jury, witness, parties, counsel); 3) members of the media for fair reporting on public proceedings (if accurate)

63
Q

Qualified privileges to defamation

A

based on circumstances of speech. Comes into existence when public interest in encouraging candor. 1) speak/act in good faith; 2) have to confine to statements that are relevant

64
Q

Matter of public concern

A

special case of privilege for defamation. Something that is newsworthy and public benefits from knowing. In these cases plaintiff must also prove: 1) falsity of statement; 2) fault (if plaintiff a public figure - plaintiff must show defendant knew statement false or was reckless in publishing; if plaintiff private - plaintiff may also show negligence in publishing)

65
Q

Privacy

A

1) appropriation; 2) intrusion; 3) false light; 4) disclosure

66
Q

Appropriation

A

defendant uses plaintiff’s name or image for commercial purpose (does not need to be a celebrity). Newsworthiness exception (e.g., cover of newspaper/Sports Illustrated)

67
Q

Intrusion

A

an invasion of plaintiff’s seclusion by the defendant in a way highly offensive to the average person; must be in a place with expectation of privacy

68
Q

False light

A

defendant makes widespread dissemination of a material falsehood about plaintiff highly offensive to average person (can overlap with defamation. Get economic damages for defamation, get emotional damages for false light)

69
Q

Disclosure

A

widespread dissemination of confidential information about plaintiff that would be highly offensive to average person. Newsworthiness exception and only available if facts truly private and not just compartmentalized private

70
Q

Elements of negligence

A

1) duty; 2) breach; 3) causation (legal and factual); 4) damage

71
Q

Duty (negligence)

A

legally imposed obligation to take risk reducing precautions

72
Q

Who duty is owed to (negligence)

A

foreseeable victims

73
Q

Unforeseeable victim

A

individuals outside zone of danger (Palsgraf). Exception: rescuers

74
Q

Amount of duty owed

A

that equal to amount given by reasonably prudent person acting under similar circumstances. Objective standard, don’t make allowances for plaintiff’s particular characteristics

75
Q

2 exceptions to reasonably prudent person standard

A

1) superior skill/knowledge about material relevant to case - then standard becomes a reasonably prudent person with that skill/knowledge (can be body of knowledge or specific knowledge); 2) defendant’s physical characteristics where relevant

76
Q

Special duty of care rules

A

children, professionals, premises liability, duties to act affirmatively, NIED

77
Q

Duty of care for children

A

<5, none; 5-18, hypothetical child of similar age, experience, intelligence acting under similar circumstances EXCEPT when child is engaging in an adult activity

78
Q

Adult activity

A

one that imposes a significant risk of harm. Usually operating a motor vehicle

79
Q

Duty of care for professionals

A

obligated to exercise skill and knowledge normally possessed by those in that same profession in good standing in similar community (conformism)

80
Q

Similar community

A

community analogous to one where defendant primarily works, geographic (i.e., big city docs to big city docs; small down docs to small town docs)

81
Q

Types of entrants

A

undiscovered trespasser, discovered/anticipated trespasser, licensee, invitee

82
Q

duty owed to undiscovered trespasser

A

none

83
Q

discovered/anticipated trespasser

A

where possessor knows that people continually trespass on property

84
Q

duty to discovered trespasser

A

duty to protect from conditions that are 1) artificial, 2) highly dangerous, 3) concealed (not open and obvious), 4) were known in advance to possessor (no duty to investigate)

85
Q

licensee

A

enter land with permission from possessor but not for possessor’s economic or business benefit; also people who come to solicit at your door have implied license to be there

86
Q

duty to licensee

A

duty to protect from conditions that are 1) concealed/hidden (not open and obvious), and 2) that were known about in advance (no duty to investigate)

87
Q

invitee

A

enter land with permission and either 1) confer economic benefit to possessor or 2) land is open to the public

88
Q

duty to invitees

A

protect from conditions that are 1) concealed to invitee, and 2) condition defendant knew about in advance OR could have discovered through reasonable inspection (duty to protect against all reasonably knowable traps on land)

89
Q

firefighter exception

A

firefighters and police officers never recover for negligence for injuries that are inherent risks of their job

90
Q

Child trespassers/attractive nuisance doctrine

A

property possessor owes vanilla negligence standard of care (reasonably prudent person) to protect trespassing children from dangerous artificial conditions on land; liable even if the thing that attracted the kid onto the land in the first place wasn’t what hurt the kid

91
Q

Ways to satisfy duty of care in premises liability

A

1) fix problem; 2) give warning

92
Q

Statutory standards of care

A

Can borrow std of care from criminal statute if 1) plaintiff can show he’s a member of the class of persons the statute is designed to protect, and 2) plaintiff shows the accident is in the class of risks statute trying to prevent (class of person-class of risk test)

93
Q

Effect of failure to borrow from criminal statute

A

Litigated under r.p.p. standard

94
Q

Exceptions to statutory standards of care

A

1) if statutory compliance more dangerous than compliance; 2) if statutory compliance impossible

95
Q

Duties to affirmatively

A

none (ex: no duty to rescue) EXCEPT 1) pre-existing relationship with person in peril (common law: legal relationship; modern: trend toward any relationship); 2) defendant put plaintiff in peril/caused the peril (even if defendant not negligent)

96
Q

NIED

A

negligent defendant, no trauma to plaintiff’s body, but plaintiff left emotionally distressed

97
Q

Types of NIED

A

1) near miss: defendant’s negligence didn’t hurt plaintiff but almost did; 2) bystander case: defendant negligently hurt X, and plaintiff suffers emotionally for seeing it; 3) relationship cases: plaintiff and defendant in pre-existing business relationship AND highly foreseeable that if business done carelessly, distress will result (e.g., patient’s lab work)

98
Q

Near miss rule for recovery

A

plaintiff can only recover if he was in “zone of danger” and had subsequent, physical manifestations

99
Q

Bystander case rule for recovery

A

1) plaintiff and X must be close family (spouse and child always count); 2) plaintiff must be physically present and see the accident as it happens)

100
Q

Res ipsa loquitor elements

A

1) plaintiff must show accident type that is normally associated with negligence and 2) accident is of a type normally due to someone in defendant’s position

101
Q

Effect of showing res ipsa

A

case gets to go to the jury, and jury gets to decide if it wants to accept or reject

102
Q

Types of causation

A

1) Factual causation (establishes connection between breach and injury); 2) proximate causation (i.e., fairness/foreseeability)

103
Q

Standard test for factual causation

A

but-for; requires us to imagine alternative universe where defendant acted carefully and if plaintiff escapes injury in that world then defendant but-for cause

104
Q

Types of multiple defendant cases

A

1) merged causes (multiple defendants each of whom commit own breach and the destructive forces then combine/merge to hurt plaintiff); 2) unascertainable cause (multiple breaches/defendants, each equally likely to cause the singular harm and plaintiff cannot show preponderance of the evidence who caused it)

105
Q

Merged cause test

A

substantial factor test: breach that could have caused all the harm if it had been the only force in the story then both defendants held jointly and severably liable

106
Q

Effect of unascertainable cause

A

BOP shifts to each defendant to show not their breach, and if they can’t do it then they are jointly and severably liable

107
Q

Proximate cause groups

A

1) direct cause question (defendant breaches, plaintiff suffers near immediate harm) - harm almost always foreseeable, only deny recovery if consequences freakish and bizarre; 2) indirect cause (something happens between breach and injury)

108
Q

4 situations (well-settled quartet) where courts find foreseeability

A

1) intervening medical malpractice; 2) intervening defective rescue; 3) intervening protective or reactive forces; 4) subsequent disease or accident

109
Q

Other fact patterns foreseeability test for proximate cause

A

Ask what is the harm I’m worried about with this breach. If matched with plaintiff’s injury, then defendant’s breach is proximate cause

110
Q

Eggshell skull doctrine

A

once plaintiff establishes all other elements of negligence except damages, defendant liable for all damaged suffered by plaintiff even if surprisingly large (note: covers every tort)

111
Q

Affirmative defense to negligence

A

Comparative negligence: defendant allowed to show plaintiff failed to exercise proper care for own safety (reasonable prudence). Once it comes in, jury must evaluate percentages of fault and reduce plaintiff’s recovery to that effect

112
Q

Types of strict liability

A

1) injuries caused by animals; 2) abnormally dangerous activities; 3) products liability

113
Q

Types of claims for injuries caused by animals

A

1) domesticated animals; 2) wild animals

114
Q

Rule for injuries caused by domesticated animals

A

generally no strict liability except when owner aware of animal’s dangerous propensities (one bite rule) EXCEPT for trespassers

115
Q

Rule for injuries caused by wild animals

A

Strict liability even if reasonable precautions taken

116
Q

Test for abnormally dangerous activity

A

1) one with foreseeable risk of serious harm even when reasonable care exercised (cannot be made safe); 2) not common in community where defendant conducts the activity…most common: blasting, dangerous chemicals/biological items, radiation/nuclear energy

117
Q

Elements of products liability

A

1) must be a merchant; 2) product is defective (plaintiff has bop); 3) product has not been altered since it left defendant’s hands); 4) plaintiff has show he was making foreseeable use of the product (certain product uses are foreseeable)

118
Q

Merchant

A

one who routinely deals in goods of this type (NOT casual sellers)

119
Q

4 types of merchant problems

A

1) casual seller (not); 2) service providers providing products incident to service (not); 3) commercial lessor (are); 4) every firm in distribution chain subject to strict liability and consumer has coa against each

120
Q

Types of defective products

A

1) manufacturing defect; 2) design defect; 3) information defect

121
Q

Manufacturing defect

A

if product differs from all others that came off assembly line in a way that makes it more dangerous than consumers expect (safety precautions don’t matter)

122
Q

Test for design defect

A

If there’s another way product could have been made and 1) safer alternative design exists, and 2) a.d. cost effective or equal, and 3) a.d. practical (doesn’t interfere with primary purpose)

123
Q

Information defect

A

if product has residual risk that can’t get rid of, and consumers wouldn’t be aware of those risks and the product lacks an adequate warning (adding warning only applies to residual risks cannot design out AND must be adequate)

124
Q

Presumption for if product has been altered since leaving defendant’s hands

A

If product has moved in ordinary channels of distribution (i.e., isn’t sold used), then presumption that product hasn’t been altered since leaving defendant’s hands

125
Q

Defense to strict liability

A

comparative responsibility, any plaintiff fault results in assignment of fault and reduction in recovery

126
Q

Nuisance

A

plaintiff proves that defendant interferes with ability to enjoy his property to an excessive or unreasonable degree

127
Q

Test for nuisance

A

balance interests of defendant’s interest in using land in accordance with zoning laws and plaintiff’s interest in being able to enjoy property without unreasonable/excessive interference

128
Q

Vicarious liability

A

Holds passive party liable for someone else’s tort based on relationships

129
Q

Relationships implicated for vicarious liability

A

1) employer-employee; 2) hiring party-independent contractor; 3) auto owner-driver; 4) parent-children

130
Q

Employer-employee VL

A

employer liable for tortfeasor employee if employee acting in scope of employment

131
Q

VL for intentional employee torts

A

No liability except when 1) physical force part of job description; 2) job that generates friction; 3) any intentional tort that’s an effort to serve employer’s interest

132
Q

hiring party-independent contractor VL

A

hiring party not generally liable except when independent contractor hurts an invitee on the property

133
Q

parent-children VL

A

not generally liable with some small statutory exceptions

134
Q

auto owner-driver VL

A

generally not liable except when owner lends car to driver to carry out an errand for the owner

135
Q

General rule for recovery by one co-defendant from other co-defendants after plaintiff’s debt satisfied entirely from one defendant

A

jury assigns percentage of fault and each defendant liable for that percentage, so the one defendant can collect the percentages of damages from the others

136
Q

Exceptions to rule of recovery from co-defendants by singular co-defendant

A

1) defendant held vicariously liable - then gets full indemnification from tortfeasor; 2) in products case - retailer can get full indemnification from manufacturer

137
Q

Loss of consortium

A

if tort victim married, uninjured spouse can get separate coa against original defendants

138
Q

Types of loss of consortium damages

A

1) loss of services; 2) loss of society; 3) loss of sex

Bar Exam (10 decks)

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