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Bar Prep > Torts > Flashcards

Torts Flashcards

1
Q

Vicarious Liability - Negligence of Employee

A

Employer’s liabile for the negligence of their employees commited while servants are acting within the scope of their employment

detour= quick stop on route & is w/in scope

frolic= significant deviation from job & not w/in scope

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2
Q

Liability for Negligence of Independent Contractor

A

Principal is liable for the negligence of IC when:

1) IC is engaged in an inherently dangerous activity; or
2) non-delegable duty is involved (e.g. duty to keep premises safe/ keep car in working condition)

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3
Q

Liability for Intentional Torts (both EE/IC)

A

Employer/Principle is generally not liable for the intentional torts of an employee/IC UNLESS:

  1. force is authorized in the employment;
  2. friction is generated by the employment; or
  3. EE/IC is furthering the business of the ER/P (must have authority whether implied, apparent, or express)
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4
Q

Assault

A

1) volitional act
2) done w/ the intent to cause either:
a) a harmful or offensive contact OR
b) an apprehension of imminent harmful or offensive contact
3) that causes the reasonable apprehension of a harmful or offensive contact

NOTE: D must have intent to do the contact not necessarily the harm

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5
Q

Battery

A
  1. Volitional act (conscious muscle movement)
  2. Done w/ intent to cause either
    1. harmful of offensive contact; OR
    2. an apprehension of imminent harmful or offensive contact
  3. that causes harmful or offensive contact to the person of another

harmful= slightest physical change

offensive based on society’s standard/ person of ordinary sensitivity

NOTE: D must have intent to do the contact not necessarily the harm

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6
Q

False Imprisonment

A
  1. an act intending to confine someone w/in boundaries fixed by the actor
  2. that directly or indirectly results in such confinement AND
  3. plaintiff is either conscious of the confinement or is harmed by it

confinement includes denial of the means to leave and threats of immediate force

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7
Q

Shopkeeper’s Privilege

A

Can Claim privilege if:

1) △ has reasonable grounds to believe theft occured
2) hold P for a reasonable time to ascertain the facts
3) in a reasonable manner

(Defense to False Imprisonment)

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8
Q

Crime Prevention

A

a private person may arrest someone if they have a reasonable belief that a crime has occured that involves breach of the peace (causing a disturbance)

(Defense to False Imprisonment)

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9
Q

Trespass to Chattels

A

1) an act which is an intermeddling or dispossession
2) of the personal property of another
2) which causes harm to OR loss of use of the property

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10
Q

Conversion

A

interference w/ P’s right of possession that is serious enough to warrant that △ pay full value of the chattel

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11
Q

Intentional Infliction of Emotional Distress (IIED)

A

1) commission of an act
2) that constitutes extreme & ourtageous conduct
3) that causes severe emotional distress

NOTE: Don’t need to show physical harm

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12
Q

Abuse of Process

A
  1. using a legitimate process; (e.g., discovery, complaint, etc.)
  2. for a wrongful purpose; AND
  3. an act or threat against the P to accomplish the wrongful purpose

wrongful purpose = using process for anything other than what its intended for

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13
Q

Malicious Prosecution

A

1) initiation of civil or criminal proceedings w/out probable cause
2) for wrongful purpose; AND
3) favorable termination of the proceedings on the merits

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14
Q

Protective Privilege of: Self Defense, Defense of Others, or Defense of Property

A

applicable when:

  1. threat is in progress or imminent;
  2. there is a reasonable belief that the threat is generating (accuracy)
  3. response is proportional to the level of threat
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15
Q

Negligence

A

to establish a prima facie case for negligence the plaintiff must prove: duty, breach, actual cause, proximate cause, and harm

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16
Q

General Duty

A

the duty owed to all foreseeable plaintiffs is the duty to act as a reasonably prudent person under similar circumstances

(∏ is foreseeable if in they are in the zone of danger. if they’re not, then discuss Cardozo/ Andrews split)

Under the majority Cardozo view, a foreseeable plaintiff is one who is in the “zone of danger”. Under the minority Andrews view, the defendant owes a duty to any plaintiff that suffers as a proximate result of their actions.

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17
Q

Land Owner/ Possessor Duty to Person OFF the Premises

A

Generally owe no duty to protect someone outside/off the premises from natural or artificial conditions on the land EXCEPT FOR DUTY TO:

  1. protect from unreasonably dangerous artificial conditions abutting adjacent land
  2. take precautions to protect passerby from dangerous conditions
  3. maintain trees
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18
Q

Land Owner/ Possessor Duty to Person ON the Premises

A

Liability depends on classification of the person coming onto the land as an invitee, licensee, or trespasser

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19
Q

Invitee

A

on the premises for the business purpose of the owner (e.g., customer)

Owner/ possessor has a duty to inspect, discover, repair or protect against harm if they:

  1. know or should’ve discovered the condition,
  2. should realize that it poses an unreasonable risk of harm; and
  3. should expect that the invitee will not discover/realize the danger or will fail to protect themselves
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20
Q

Licensee

A

on the premises for their own purpose (e.g. guest)

Owner/ possessor has a duty to repair & protect against known dangers if:

  1. know or have reason to know of the condition & should realize that it involves an unreasonable risk of harm to llcensees & should expect that licensees will not discover/ realize the danger AND
  2. fail to exercise reasonable care to make condition safe or warn licensee of the condition/ risk AND
  3. licensee doesn’t know or have reason to know of the condition or risk involved
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21
Q

Known Trespasser

A

Owner/ possessor owes a duty to adequately warn of any artificial dangerous conditions maintained by them & will be liable for harm if:

1) likely to cause death or serious bodily harm;
2) not likely to be discovered by trespasser &
3) failed to exercise reasonable care to warn

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22
Q

Unknown Trespasser

A

No duty but can’t use willful and wanton conduct

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23
Q

Attractive Nuisance Doctrine

A

plaintiff must show:

  1. there’s a dangerous condition on the premises that the owner is/should be aware of;
  2. owner knows that kids frequent the vicinity
  3. condition is likely to cause injury bc of kids inability to appreciate the risk;
  4. expense of remedying the situation is slight compared to the magnitude of the risk
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24
Q

Other Standard’s of Care

A

Professionals –standard of care is the care used by average member of the profession in good standing

Children – child must conform to the standard of care of a child of like age, intelligence,& experience. However, if they are engaged in an adult activity, they are held to standard of care as an adult.

Common Carrier/ Innkeeper –heightened duty to use the highest degree of care to aid & assist passengers

Firefighters Rule – firefighters & cops are barred from recovering for injuries caused by inherent risks of their jobs

Rescuers – rescuee liable to rescuer who is injured in course of the rescue if rescuee’s own negligence put them in a position of requiring a rescue

Custom – custom/ usage in industry or trade may be used as evidence of a duty or lack thereof

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25
Q

Negligent Infliction of Emotional Distress

A

Plaintiff must be in the zone of danger from the negligence& suffered physical symptoms from the emotional distress for there to be an appreciable duty.

Exceptions to the zone of danger requirement

  1. ∏ is closely related to person injured, was present at the scene, & perceived the injury;
  2. duty arises out of special relationship & negligence has great potential to cause emotional distress (e.g. physician patient);
  3. mishandling of a relatives corpse or erroneously stating a relative has died
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26
Q

Breach

A

when the defendant’s conduct falls below the level required by the applicable standard of care, she has breached her duty

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27
Q

Res Ipsa Loquitor

A

when the breach of a duty is unknown, can infer negligence if

  1. △ had control of the instrumentality of the harm &
  2. harm would not have occurred in the absence of negligence
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28
Q

Actual Cause

A

requires that but for the △ conduct, the harm would not have occurred to the ∏

if concurrent causes & either alone is sufficient as a cause, use substantial factor test

If unascertainable cause, both liable unless one can argue the other did it

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29
Q

Negligence Per Se (statutory duty and breach)

A

unexcused violation of a criminal statute is negligence per se if: 1) plaintiff was a member of the class intended to be protected by the statute 2) risk is of the type intended to be protected against 3) violation caused the plaintiffs injuries

In a majority of jurisdictions a finding of negligence per se results in a conclusive presumption of duty and breach

EXCEPTIONS: compliance would’ve been more dangerous &/or compliance is impossible

30
Q

Proximate Cause

A

requires that the type of harm is foreseeable from the defendant’s conduct

31
Q

Harm

A

the plaintiff must prove she suffered an injury

32
Q

Defenses to Negligence

A

contributory negligence, comparative negligence, assumption of risk, emergency

33
Q

Contributory Negligence

A

when a ∏’s own negligence contributes to their injury, it acts as a complete bar to recovery & △will not be liable.

EXCEPTION – Last Clear Chance Doctrine: ∏ was no longer able to protect himself and △was in a position where they could have prevented it. ∏’s contrib negligence is erased & defendant is liable

34
Q

Comparative Negligence

A

in comparative negligence jurisdiction, a ∏’s recovery limited by extent to which their negligence contributed to their damages.

Pure comparative fault – will lessen plaintiff’s recovery by the percentage of his fault

Non-pure comparative fault – bars recovery if plaintiffs fault exceeds 50%

35
Q

Assumption of Risk

A

plaintiff is denied recovery if they knew of the particular risk & voluntarily assumed it

36
Q

Emergency

A

so long as △ didn’t create the emergency, the duty is to act as a reasonable person would under the same emergency

37
Q

Nuisance

A

Public Nuisance interferes in a common public interest (health, safety, peace, etc.) OR involves the violation of a statute, ordinance, or regulation

  • usually brought by govt actor & private individual can only bring if they suffer harm that is different in kind from that suffered by the general public

Private Nuisance is an unreasonable invasion w/ another’s interest in the use & enjoyment of their land & the invasion is either intentional or unintentional & otherwise actionable as negligence, recklessness, or abnormally dangerous activity

Defenses: hypersensitivity & coming to the nuisance

38
Q

Trespass

A

entry onto or remaining upon the land in possession of another w/ a privilege to do so, created by possessors consent or otherwise.

mistake is not defense to trespass. If no damages, can still get nominal damages. But, if someone trespasses out of necessity, △ will only be liable for actual damages.

39
Q

Necessity

(public necessity & private necessity)

A

PUBLIC NECESSITY – person may enter or interfere w/ another’s real or personal property if it appears necessary to protect the community or significant group of ppl (e.g., natural disasters). Complete defense

PRIVATE NECESSITY – person may enter or interfere with another’s real or personal property if it appears necessary to protect their own interests or that of a limited # of ppl. Must pay for any harm caused

40
Q

Strict Liability– Animals

A

Owners/possessors of wild animals are strictly liable for the harm caused by the animals

Plaintiff must prove: 1) △ owned the animal; 2) the animal is wild; & 3) animal caused harm to ∏ that is of the kind caused by the wildness of the animal

Owner of domestic animal is strictly liable for harm caused by the animal if the owner knows or has reason to know of animal’s vicious tendencies

41
Q

Strict Liability – Abnormally Dangerous Activities

A

Elements are:

  1. carrying on of an abnormally dangerous activity;
  2. which causes harm;
  3. the risk of which makes the activity abnormally dangerous

In determining whether activity is abnormally dangerous the court will look at:

  1. high degree of risk or harm;
  2. gravity of the harm;
  3. inability to eliminate the risk by using reasonable care &
  4. whether activity is of common usage in the community

DEFENSES: assumption of risk & comparative fault

42
Q

Products Liability

A

there are three theories of products liability – strict products liability, negligence, and breach of warranty

The liability applies to everyone in the vertical chain of distribution of the product from

  • product designer
  • manufacturer
  • distributor
  • retailer
43
Q

Strict Products Liability

A

Elements:

  1. △ is in the business of selling or otherwise distributing products (vertical chain of distrib)
  2. △ sells or otherwise distributes a defective product that remains unchanged when it gets to consumer AND
  3. defect actually and proximately causes the harm to a foreseeable person

THREE TYPES OF DEFECT: manufacturing defect, design defect, and failure to warn defect

44
Q

Manufacturing Defect

A

where the product departs from its intended design (i.e. flaw)

45
Q

Design Defect

A

where the defect is common to the entire product line. There are two theories of design defect:

  1. risk utility theory: there is an inherently unreasonable risk bc risk of harm is significant and there is little to no utility to the product
  2. reasonable alternative design: there was a reasonable alternative design that was safer and would’ve been economically feasible
46
Q

Failure to Warn Defect

A

subject to liability for failure to warn if:

  1. manufacturer knows or has reason to know that the product is likely to be dangerous for the use its supplied for
  2. has no reason to believe that the users of the product will realize its dangerous condition AND
  3. fails to inform the users of the product’s dangerous condition or the facts which make it likely dangerous
47
Q

Defenses to Strict Products Liability

A

Comparative negligence and assumption of risk ARE DEFENSES

Contrib negligence and reasonably foreseeable misuse ARE NOT DEFENSES

48
Q

Products Liability Negligence

A

plaintiff must prove duty, breach, actual cause, proximate cause, and harm

PLN duty– manufacturer owes a duty to all foreseeable users or bystanders to make the product carefully if a product when negligently made is reasonably certain to place users in peril

If plaintiff, is someone other than original purchaser, manufacturer knows that the product will be used by persons other than the immediate purchaser w/out further inspection/ tests

49
Q

Defenses to Products Liability Negligence

A

contributory negligence, comparative negligence, & assumption of risk are all applicable defenses

Furthermore, a retailer who purchases from a reputable manufacturer w/ no reason to anticipate that the product is dangerous will not be liable

50
Q

Breach of Warranty

A

there are 3 types of sales warranties:

  • express warranty,
  • implied warranty of merchantability, and
  • implied warranty of fitness for a particular purpose
51
Q

Express Warranty

A

Elements:

  1. making an express warranty, which is an affirmation of fact concerning goods,
  2. reliance on the express warranty by the consumer, &
  3. breach of the warranty which causes harm to a foreseeable person
52
Q

Implied Warranty of Merchantability

A

Merchantability refers to whether the goods are of fair average quality & fit for ordinary purpose. applies to goods sold by merchant who deals in goods of the kind

Elements:

  1. existence of warranty,
  2. reliance on it by the purchaser,
  3. breach,
  4. breach of warranty proximately caused the loss sustained
53
Q

Implied Warranty of Fitness for a Particular Purpose

A

refers to whether the seller knows/ has reason to know the particular purpose the goods are required for and buyer is relying on sellers skill and judgment in selecting the goods

elements: existence of warranty, breach, and breach proximately caused loss sustained

54
Q

Defamation

A

Elements:

  1. a defamatory statement
  2. of or concerning the ∏ (reader/ hearer reasonably understands statement is defamatory & relates to ∏)
  3. publication of the statement (communication of statement to 3rd person) AND
  4. ∏ suffered harm to reputation

defamatory statement = holds ∏ up to ridicule or harm to reputation & not an opinion unless defamatory founded on asserted facts. There are 2 types:

slander (oral/spoken – ​special damages need to be pleaded & proven)

libel (written/letter– special damages don’t need to be pleaded/ proven)

55
Q

Slander Per Se

A

where the slander is clear on its face & therefore requires no proof of special damages

5 categories for statements re:

  1. accusation of a crime
  2. presence of contagious or loathsome disease
  3. tends directly to injure in respect to office, profession, trade or buisness
  4. impotence/ want of chastity;
  5. statement that causes actual damage
56
Q

Libel Per Se

A

where libel is clear on its face & therefore doesn’t require proof of special damages

statements re:

  1. accusation of a crime
  2. presence of loathsome or communicable disease
  3. tends directly to injure in respect to office, profession, trade or business
  4. impotence/ want of chastity
  5. statement that causes actual damage
57
Q

Absolute Privilege

(defamation defense)

A

doesn’t matter if statement is false or made w/ malice if made in:

  1. proper discharge of an official duty (duty imposed by law on gov official)
  2. legislative proceeding
  3. judicial proceeding
  4. any other official proceeding authorized by law OR
  5. the initiation or course of any proceeding authorized by law
58
Q

Qualified Privilege

A

applicable when made w/out malice & to a person interested therein:

  1. by one who is also interested OR
  2. by one who stands in motive for the communication to be innocent OR
  3. by one who is requested by the person interested to give the info
59
Q

Public Official & Public Figure Standard

A

may not recover damages of any kind for a defamatory falsehood relating to his official conduct UNLESS

  1. ∏ proves the statement was false; and
  2. made w/ actual malice (knowledge it was false or reckless disregard of its falsity)
60
Q

Public Concern

A

where statement involves matter of public concern, ∏ must prove falsity & that △ made the false statement through negligence to obtain actual damages. In order to recover presumed/punitive damages, must still prove malice

61
Q

Private Concern

A

∏ must only prove 4 elements of defamation to collect actual damages BUT must prove malice to collect presumed/ punitive damages

62
Q

INVASION OF PRIVACY – Intrusion

A

a person who unreasonably & seriously intereferes w/ another’s interest in not having his affairs known, is liable to the other for intrusion

objective standard

63
Q

INVASION OF PRIVACY–Public Disclosure of Private Facts

A
  1. Public disclosure
  2. of a private fact
  3. that would be offensive & objectionable to the reasonable person
  4. that is NOT of a legitimate public concern (not newsworthy)

newsworthiness factors:

  • social value of facts published;
  • depth of article’s intrusion into ostensibly private affairs;
  • extent to which party voluntarily acceded to public notoriety
64
Q

False Light

A

requires:

  1. △ publicized a private matter concerning ∏
  2. that places the ∏ b4 the public in a false light
  3. that would be highly offensive to a reasonable person AND
  4. if a matter of public interest, △ acted w/ malice
65
Q

Appropriation

A

protects persons pecuniary interest in the commercial value of their ID

requires:

  1. an appropriation or use;
  2. of the ∏’s identity
  3. by the △
  4. for the △’s commercial purpose
66
Q

MISREPRESENTATION–Intentional Misrepresentation

A
  1. △ made a false representation concerning a presently existing material fact
  2. that △ either knew was false or made recklessly knowing that he had insufficient knowledge on which to base the representation
  3. for the purpose of inducing another party to act on the representation
  4. that the other party actually relied on it
  5. and was thus induced to act to his injury/ damage
67
Q

MISREPRESENTATION–Concealment

A
  1. Defendant omits a material fact, and the omission makes what the Defendant said misleading or untrue
  2. that D either knew was false or made recklessly knowing that he had insufficient knowledge on which to base the representation
  3. for the purpose of inducing another party to act on the representation
  4. that the other party actually relied on it
  5. and was thus induced to act to his injury/ damage
68
Q

MISREPRESENTATION–Negligent Misrep

A
  1. △ made a false representation concerning a presently existing material fact
  2. honestly believing them to be true but w/out reasonable ground for such belief
  3. for the purpose of inducing another party to act on the representation
  4. that the other party actually relied on it
  5. and was thus induced to act to his injury/ damage
69
Q

Intentional Interference w/ a K

A

∏ must prove:

  1. interference
  2. which is intentional &
  3. improper or unlawful
  4. in a K between 2 other persons
  5. causing one of them not to perform the K
70
Q

Interference w/ Prospective Economic Relations

A
  1. economic relationship btwn ∏ & 3rd parties
  2. knowledge by the △ of the existence of the relationship
  3. intentional, wrongful acts independent of the interference itself designed to disrupt the relationship
  4. actual disruption of the relationship &
  5. damages proximately caused by the acts

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