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CA Bar Prep > Torts > Flashcards

Torts Flashcards

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1
Q

Intentional Torts

A
  1. Battery
  2. Assault
  3. IIED
  4. False Imprisonment
  5. Tresspass to Land/Chattel
  6. Conversion
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2
Q

Battery

A
  • Intent

- Harm/offensive contact

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3
Q

Assault

A
  • Intent
  • Cause apprehension or imminent
  • Harmful/offensive contact
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4
Q

IIED

A
  • Intent/Reckless
  • Extreme/outrageous conduct
  • Severe emotional distress
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5
Q

False Imprisonment

A
  • Intent
  • Confine
  • Bounded Area
  • No reasonable means of escape
  • P was aware or harmed
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6
Q

Trespass to Land

A
  • Intent
  • physical invasion
  • P has right to possession
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7
Q

Conversion

A
  • Trespass to Chattel
  • Substantial Interference
  • P pays full amount
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8
Q

Intentional Tort Defenses

A
  1. Consent
  2. Self-defense
  3. Defense of Others
  4. Defense of Property
  5. Recapture Chattels
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9
Q

Consent

A
  • Express

- Implied

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10
Q

Self Defense

A

Reasonable Belief

Reasonable Force

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11
Q

Defense of Others

A

Reasonable belief that other could defend

Reasonable force

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12
Q

Defense of Property

A

Reasonable force to prevent tort

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13
Q

Recapture Chattels

A
  • In pursuit
  • Reasonable force
  • Wrongful taking
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14
Q

Negligence

A

defendant’s conduct causes unreasonable risk to another which results in injury.

Plaintiff must prove:
Duty 
Breach 
Actual Cause 
Proximate Cause
Actual Damages
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15
Q

Duty/Standard of Care

A

A person has the duty to act as a reasonable person unless a special duty applies

  1. Reasonable Person
  2. Landowners Standard
  3. Negligence Per Se
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16
Q

Reasonable Person Duty/Standard of Care

A

A person has the duty to act as a reasonable person to:

  • Foreseeable plaintiffs (cordoza)
  • Unforseeable plaintiffs = everyone (andrews)
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17
Q

Landowners Duty/Standard of Care

A
  1. Licensee = Guests
    Duty to warn of known dangerous conditions
  2. Invitee = Business
    Duty to make reasonable inspections to find hidden dangers
  3. Trespasser
    Even if a person is a trespasser, force that will cause death or serious bodily harm may not be used. Indirect deadly force also cannot be used as a means to protect property.

the landlord should recognize dangers and expected to notice and appreciate reasonable risk conditions of the common area, ex: “sprinkler head could be a hazard

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18
Q

Negligence Per Se Duty/Standard of Care

A
  • defendant violates the statute
  • plaintiff within the class the statute was designed to protect
  • statute was created to stop that kind of accident
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19
Q

Breach

A
  • Failure to meet standard of care
  • violate negligence per se
  • Res ipsa loquitur
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20
Q

Actual Cause

A

But for test. The injury would not have happened but for the act of the defendant or the defendants conduct was a substantial factor in causing the injury

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21
Q

Proximate Cause

A
  • Also called legal cause, it is the direct cause = foreseeability = defendant is liable for all harmful results that were foreseeable
  • Eggshell = defendant is liable for unforseen consequences to plaintiff because defendant takes plaintiff as they are
  • intervening = defendant is liable for all foreseeable intervening causes (med mal & negligence by rescuer)
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22
Q

Damages

A

General/Putatative

Duty to Mitigate

23
Q

Negligence Defenses

A
  1. Contributory Negligence
  2. Comparative Negligence
  3. Assumption of the Risk
24
Q

Contributory Negligence

A

A defense to negligence. Plaintiff was at fault as well so bars recovery

25
Q

Comparative Negligence

A

A defense to negligence. Plaintiff was at fault as well but it does not bar recovery. Liability divided between plaintiff and defendant to their degree of fault

  1. partial comparative = if plaintiff is over 50% bars recovery
  2. pure comparative = allows recovery regardless of how much plaintiff is at fault. However recovery is reduced by the percentage of their own negligence
26
Q

Assumption of the Risk

A

A defense to plaintiff knew of the risk and consented

27
Q

Strict liability

A
  1. Animals

2. Ultra hazardous activity

28
Q

Animals Strict liability

A

owner is strictly liable for trespass of his animals

wild= injuries from animals dangerous propensities

domestic = injuries only if owner knew or had reason to know of animals dangerous propensities

29
Q

Abnormally Dangerous Activity

A

A person or company can be held strictly liable for its actions of a abnormally dangerous activity if the actions involve a substantial risk of serious harm to a person or property even if reasonable care is exercised

  • High risk of serious harm
  • reasonable care won’t eliminate risk
30
Q

Defenses to Strict Liability

A

Assumption of the risk

31
Q

Product Liability

A
  1. Intent
  2. Strict Liability
  3. Negligence
  4. Warranties
  5. Misrepresentation
32
Q

Intent Product Liability

A

plaintiff is liable if they had intent for it to happen or knew it was likely to happen

33
Q

Strict Liability Product Liability

A

A commercial supplier can be held strictly liable for the sale of any product which is in a defective condition or unreasonably dangerous to the user. Knowledge of danger is not a element of strict liability. The defect must have existed at the time the product left the defendants control. The product must also be in substantially the same condition as it was at the time of purchase. Strict liability can be imposed upon a retailer and up the chain to the manufacturer for the sale of any product which is defective or unreasonably dangerous to the user and results in physical harm

  1. commercial supplier
  2. places product in the stream of commerce
  3. product is defective
manufacturing defect(product deviated 
from intended design)

design

warning. (manufactures must foresee reasonable misuses of a product even if a manufacturer used every available means to inspect and discover defects, the care exercised by the manufacturer is irrelevant in a strict liability action. The supplying of unreasonable dangerous defective product satisfies the breach of strict liability. but a product manufacturer is not liable if the injury results from an unintended and unforeseeable misuse of the product
4. actual cause
5. proximate cause
6. Damages

In order to recover damages against a manufacturer on the theory of strict liability, the product must have been defective at the time it left the control of the manufacturer.

34
Q

Negligence Product liability

A

Rare because retailers/wholesalers only have a duty to inspect or warn of known dangers. A manufacturer would stil be liable under negligence theory

35
Q

Warranties Product Liability

A
  1. Express Warranties
  2. Implied Warranties
  3. Merchantability (implied warranty in every sale of good that it is fit for ordinary purpose
  4. Fitness for a particular purpose (seller knows or has reason to know the buyer wants the good for a specific purpose
36
Q

Misrepresentation Product Liability

A

Seller gave material fact that was relied on

37
Q

Nuisance

A
  1. Private Nuisance
  • substantial unreasonable interference
  • use/enjoyment of property
  1. Public Nuisance
    - substantial unreasonable interference
    - health and safety of community
38
Q

Nuisance Defenses

A
  1. Coming to the Nuisance

2. Assumption of risk/contributory negligence

39
Q

NIED

A

-Plaintiff suffers physical injury
-Plaintiff was in the zone of danger (majority)
minority = plaintiff observers the injury but not within the zone of danger

40
Q

Defamation

A
  1. Defamatory Statement
  2. About defendant
  3. publication to a 3rd party
  4. Damages. Harmed the plaintiff
    =libel
    =slander (if slander the plaintiff must prove special damages which is damage to the plaintiff’s property, occupation, trade, profession or business relationships) four exceptions where special damages are not required (1) criminal activity (2) misconduct of plaintiff occupation (3) sexual misconduct (4) plaintiff having a disease.

Public figure = malice

Private Figure = Negligence

41
Q

Defamation Defenses

A
  1. Consent
  2. Truth
  3. Privilege
42
Q

Privacy Rights

A
  1. Misappropriation
  2. Intrusion on p’s solitude
  3. Publicity of Private Life
  4. False Light
43
Q

Misappropriation

A

Plaintiff name of picture
unauthorized use
defendant financially benefits

44
Q

Intrusion on P’s Solitude

A

Intrusion
Private Place
Highly offensive to a reasonable person

45
Q

Publicity of Private Life

A

Publicized details
Private Life
Highly offensive to reasonable person

46
Q

Vicarious Liability

A

3rd party liability.

  • employment
  • employee v. independent contractor
47
Q

3rd Party Liability Multple Defendants

A

a.Joint and several liability
Two or more negligent acts combine to cause plaintiff harm each ∆ is liable for the entire harm. Ꙥ can recover from either

b.Contribution
Reimbursement from the other ∆

c.Indemnity
Shift the entire responsibility to the other ∆ so they can get reimbursed every penny they paid.

48
Q

3rd Party Liability Multiple Defendants

A

a.Joint and several liability
Two or more negligent acts combine to cause plaintiff harm each ∆ is liable for the entire harm. Ꙥ can recover from either

b.Contribution
Reimbursement from the other ∆

c.Indemnity
Shift the entire responsibility to the other ∆ so they can get reimbursed every penny they paid.

49
Q

Negligent Actions Unite with Another

A

When are defendants negligent act unites with another event, the defendants concurrent negligence will be considered the cause of at least part of the harm

50
Q

Res Ipsa Loquitur

A

Infer negligence when no direct evidence that the defendant acted negligently. Plaintiff must prove

  1. event would not have happened absent negligence
  2. in the defendants exclusive control
  3. plaintiff is not the one who caused it to happen.
51
Q

Wrongful birth

A

parents may recover economic damages for the negligent failure to diagnosis a hereditary or congenital condition and if they knew about it they would not have had the baby

52
Q

Non delegable Duty

A

A landowner who holds his land open to the public has a nondelegable duty to keep the premises safe for business visitors. The landowner is liable for any negligence that causes a guest to be injured by unsafe conditions on the premises, even the negligence of an independent contractor

53
Q

Independent Contractor

A

Ordinarily a landowner would not be liable for the acts of an independent contractor, so long as the contractor was not negligently hired. Two broad exceptions exist

i. the independent contractor is engaged in inherently dangerous activity, (excavating next to a public sidewalk, blasting)
ii. the duty is non-delegable

CA Bar Prep (11 decks)

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