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Bar Exam > Torts > Flashcards

Torts Flashcards

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1
Q

Transferred Intent Doctrine

A

D is liable for whatever results from intended act, regardless of whether intended the result

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2
Q

List of Intentional Torts

A 
Battery
Assault
False Imprisonment
IIED
Trespass to Land
Trespass to Chattels
Conversion
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3
Q

Battery Elements

A

(1) Harmful or offensive contact to P’s person

  • Harmful = physical injury
  • Offensive = unpermitted to person of ordinary sensitivity
  • Person includes anything holding/touching/connected to
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4
Q

Assault Elements

A

(1) Places P in reasonable apprehension of (2) immediate battery

  • Apprehension = knowledge; apparent ability creates reasonable apprehension (“unloaded gun”)
  • Immediacy = conduct; words INsufficient
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5
Q

False Imprisonment Elements

A

(1) Act of restraint (2) confining P to a bounded area

  • Act - threats are sufficient; failure to act can be act if preexisting duty; P must be aware of OR harmed by it
  • Bounded area - Not bounded if reasonable means of escape P can reasonably discover
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6
Q

IIED Elements

A

D (1) engages in outrageous conduct, (2) intentionally, recklessly, or w utter disregard to P’s emotional tranquility, (3) causing P severe emotional distress

  • Outrageous conduct - Insults insufficient; repeated things like debt collection; acts by common carriers/innkeepers; P belonging to fragile class; targeting KNOWN emotional weakness
  • Severe emotional distress - No specific evidence needed
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7
Q

Trespass to Land Elements

A

(1) Act of physical invasion (2) of P’s land

  • Act - Physical entry on land by person OR tangible/physical object
  • Land - Includes air above+soil below
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8
Q

Trespass to Chattels Elements

A

(1) Slight interference with chattels (vandalism)

* Mistake of ownership NOT a defense

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9
Q

Conversion Elements

A

(1) Great interference with chattels (theft)

  • Special remedy - Not just cost of repair, but full market value
  • Mistake of ownership NOT a defense
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10
Q

Affirmative Defenses to Intentional Torts

A

Consent
Protective privileges (self-defense, defense of others, defense of property)
Necessity

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11
Q

Consent Defense

A

P (w capacity) consented

  • Express consent
  • Implied consent by: (1) custom and usage, OR (2) D’s reasonable interpretation of P’s objective conduct
  • Defense to ALL intentional torts
  • Void if obtained through fraud/durress
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12
Q

Protective Privileges Defenses

A

Self defense, defense of others, defense of property

  • Threat must be in progress or imminent
  • D must have reasonable belief that threat is genuine
  • Force must be proportionate; deadly force not allowed for defense of property
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13
Q

Necessity Defenses

A
  • Public necessity - Protecting community/group of ppl
  • Private necessity - Protecting D’s interest from catastrophe
  • Private necessity only a partial defense; must pay compensatory damages
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14
Q

Negligence Elements

A

(1) Duty, (2) Breach, (3) Causation, (4) Harm/damage

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15
Q

To Whom a Duty Is Owed

A

“Foreseeable victims”, like those in the “zone of danger”

  • Rescuer exception - Rescuer can sue for damages if comes to the scene and gets hurt
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16
Q

Default Standard of Care

A

Reasonably prudent person acting under similar circumstances

  • Exceptions: (1) Superior skill/knowledge, (2) D’s physical characteristics may be relevant
17
Q

6 Special Duty Standards

A 
Children
Professionals
Premises liability cases
Statutory standards of care
Duties to act affirmatively
NIED
18
Q

Children Standard of Care

A

No duty for <5 yo; >=5 yo must behave like children of similar age, experience, and intelligence under similar circumstances

  • Adult activity exception
19
Q

Professionals Standard of Care

A

Care of an average member of the same profession providing similar professional services (“custom”)

  • Informed Consent doctrine - Doctors must disclose risks of treatment
20
Q

Premises Liability Standards of Care

A

(1) Unknown trespasser - No duty
(2) Known/anticipated trespasser - Known, man-made death traps
(3) Licensee (enter w permission, but don’t enrich) - All known traps
(4) Invitee (enter w permission to enrich OR enter a public space) - All reasonably knowable traps

  • Firefighters/police officers - Can’t recover if injuries are from inherent risks of job
  • Trespassing kids/attractive nuisance doctrine
  • Satisfy by repairing or giving warning
21
Q

Statutory Standards of Care

A

Apply a criminal statute if (1) designed to protect P’s class of ppl, AND (2) designed to prevent type of injury

  • AKA “negligence per se”
  • Exceptions: (1) If compliance would’ve been more dangerous than violation, (2) If compliance was impossible
22
Q

Duties to Act Affirmatively

A

NO such duties

  • Exceptions: (1) Pre-existing (legal) relationship, (2) D caused the danger
  • If you act even tho no duty, liable if you negligently fuck it up
23
Q

NIED

A

(1) Establish duty under another negligence standard
(2) If no physical injury:
(a) Near-miss - P (1) was in zone of danger, AND (2) emotional distress had physical manifestations
(b) Bystander - (1) P and victim were close family members, AND (2) P witness injury in real time
(c) Business relationship - E.g. patients/labs, funeral parlor/customers

24
Q

Breach

A
  • Showing fact+reason
  • Res ispa loquitor - Requires (1) accident is a type normally associated w negligence, AND (2) accident of this type would normally be due to negligence of someone in D’s position/D had control over injury-causing item at time
25
Q

Types of Causation

A

Actual cause/cause-in-fact

Proximate cause

26
Q

Actual Cause

A
  • Default = But-for test (Was the breach necessary for producing the injury?)
  • Merged cause scenarios - Substantial factor test (Did each contribute in a substantial way? If one was capable, both were substantial factors)
  • Unascertainable cause - Burden shifts to Ds
27
Q

Proximate Cause

A

Foreseeability of harm/fairness of liability

  • 4 foreseeable/liable outcomes:
    (1) Intervening negligent medical treatment
    (2) Intervening negligent rescue
    (3) Intervening protection/reaction forces
    (4) Subsequent disease or accident
28
Q

Eggshell Skull Doctrine

A

P recovers for all harm suffered, even if it’s surprisingly great in scope

  • Applies to ALL torts
29
Q

Comparative Negligence Defense

A

P failed to exercise proper care for his own safety

  • Proper care - Could be of a reasonably prudent person; could be from a self-protecting statute
  • Default/pure - Assign damages based on blame %
  • Modified/partial - If P is >50% to blame, no damages
30
Q

Strict Liability Categories

A

Animals
Abnormally Dangerous Activities
Products

31
Q

Strict Liability for Animals

A

Strict liability for (1) wild animals, regardless of safety precautions, and (2) domestic animals with known vicious propensities

32
Q

Strict Liability for Abnormally Dangerous Activities

A

Must be (1) foreseeable risk of serious harm even w reasonable care, AND (2) uncommon in area where it’s being conducted

33
Q

Strict Liability for Products

A

(1) D is a merchant, AND (2) product is defective, AND (3) product wasn’t altered since left D’s hands, AND (4) at time of injury, P was making a foreseeable (not necessarily proper) use of product
* Merchant - Includes upstream entities and commercial lessors; EXCLUDES casual sellers and service providers

  • Manufacturing defect - Product differs from others coming off the line
  • Design defect - Costs of the design outweigh its benefits such that a reasonable merchant wouldn’t put it on the market; show an alternative design that is (1) safer, (2) economically feasible, AND (3) practical
  • Information defect - Failure to adequately warn of unavoidable risk that isn’t obvious

*Presumption that product not altered if has moved in ordinary channels of distribution

34
Q

Comparative Responsibility Defense to Strict Liability

A

If D can prove P was careless/reckless, recovery is reduced

35
Q

Nuisance

A

Unreasonable interference with P’s ability to use and enjoy property

  • Balancing of interests tests
36
Q

Vicarious Liability

A
  • Employer-employee - Employer liable if tort committed within scope of employment; intentional torts outside scope unless job involves use of force
  • Hiring party/independent contractor - No vicarious liability, unless IC works on your property and hurts your customers
  • Car owner/driver - No vicarious liability, unless owner asks driver to do something
  • Parent/child - No vicarious liability
37
Q

Loss of Consortium

A

Spouses always have separate claim when partner is injured

  • Recover for:
    (1) Loss of household services
    (2) Loss of society/companionship
    (3) Loss of sex

Bar Exam (15 decks)

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