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Torts Flashcards

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1
Q

Describe the Intent necessary for intentional torts

A

There must be a voluntary act. The defendant must intend the consequences of his act, and the act cannot be negligent. Intent can transfer between otrts or between persons.

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2
Q

What assumptions can you assume generally in Torts?

A

Assume comparative negligence, joint and several liability, and survival and wrongful death are allowed.

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3
Q

Can any persons not be liable for intentional torts?

A

Children and mentally incompetent people can’t be liable.

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4
Q

What damages are necessary/allowed for intentional torts?

A

Actual damages aren’t necessary and nominal damages are allowed.

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5
Q

What factors can be considered for punitive damages?

A

The defendant’s wealth, the reprehensibility of the misconduct, and the actual harm caused. The modern trend is to limit punitive damages.

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6
Q

What harm is a defendant liable for for an intentional tort?

A

Defendant’s are liable for all harm caused by intentional tort, even if the harm wasn’t foreseeable.

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7
Q

What is an assault in torts?

A

When the Defendant intentionally causes the plaintiff’s reasonable apprehension of imminent harm. No fear is required from the plaintiff.
Words alone aren’t enough unless the plaintiff can’t see defendant (blind or dark room)
A conditional threat is ok as long as it is immediate: “your money or your life vs. I’ll spit on you next week.
The plaintiff must be aware of the act, and the defendant must have the actual or apparent ability to cause harmful/offensive contact.
Extra sensitivity can be considered if the defendant is aware of the plaintiff’s susceptibilities.

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8
Q

Which intentional torts have transferred intent?

A 
Assault
Battery
Trespass to land
trespass to chattel (NOT CONVERSION)
False Imprisonment
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9
Q

What damages are allowed/required for assault?

A

Nominal damages are ok, and actual damages are not required.

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10
Q

What is a battery?

A

The defendant must intentionally cause harmful or offensive contact with the plaintiff. The contact can be with the plaintiff’s body or something connected to him.
Harmful or offensive contact is by a reasonable person unless the defendant knows about the plaintiff’s particular susceptibility.
Awareness of the contact is not necessary.

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11
Q

What is false imprisonment?

A

The defendant intends to confine or restrain the plaintiff in a bounded area and does so. The restraint can be done physically or by threat of immediate physical force.
Being excluded from an area (including your house) is not imprisonment.
The time of confinement doesn’t matter other than proving damages.
The plaintiff must be aware of the confinement unless he is incapable of being aware, like an infant or mentally incompetent.

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12
Q

What damages are allowed/required for false imprisonment?

A

Nominal damages are allowed and actual damages are not needed.

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13
Q

What is IIED?

A

Defendant intentionally OR RECKLESSLY does extreme or outrageous conduct that causes severe emotional distress in the plaintiff.
Words alone can be enough.
Transferred intent does not apply, but a minority will allow it for onlookers if a family member is a target of the outrageous conduct.

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14
Q

What damages are allowed/required for IIED?

A

Nominal damages are not allowed, and Sever emotional harm must be shown.

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15
Q

What is a trespass to land?

A

The defendant voluntarily enters another’s land, including airspace to a reasonable height.
There is no intent to trespass required, only the intent to enter the land. So believing the land is yours doesn’t matter–still trespassing.

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16
Q

What damages are allowed/required for trespass to land?

A

Nominal damages are allowed, and actual damages are not necessary.

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17
Q

What is conversion?

A

The intentional destruction or wrongful possession for a significant period of time of another’s personal property.
Trespass to chattel involves less harm or shorter time.
Defendant’s belief that the property is his doesn’t matter–still a trespass/conversion.

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18
Q

What are the damages for conversion?

A

The fair market value of the chattel or replevin (return).

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19
Q

What damages are allowed/required for conversion?

A

conversion requires actual damages, and nominal damages are not permitted.

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20
Q

What are the damages for trespass to chattel?

A

The reduction in the value or the value of the loss of use

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21
Q

What damages are allowed/required for trespass to chattels?

A

Actual damages are required and nominal damages are not allowed.

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22
Q

What is consent in torts?

A

A defense to all torts. It cannot be based on duress.
It can be implied, like by participating in an activity or an emergency.
Consent is valid if the defendant reasonably believes it, even if there is none.
The defendant can’t exceed the scope of the consent.

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23
Q

What is capacity to consent?

A

The plaintiff must have the capacity to understand the consequences of consent. Children and drunk people can’t consent.

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24
Q

Consent and mistakes?

A

Consent based on a mistake is allowed so long as the defendant doesn’t know about the mistake (i.e. identity).

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25
Q

Consent and misrepresentations?

A

It cannot be based on a misrepresentation unless it’s a collateral matter–like a wrongful birthday.

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26
Q

Changed levels of outrageousness in IIED?

A

Who the Defendant is can make conduct more outrageous–common carriers and innkeepers are more likely to be outrageous.
Who the plaintiff is can also make it more outrageous, like pregnancy or children.
The defendant must know of extra sensitivities for them to be considered.

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27
Q

Trespass to land and proper plaintiffs?

A

The plaintiff can be the owner, a tenant, or anyone else with superior possession rights than the defendant.

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28
Q

When is self-defense allowed?

A

When the defendant reasonably believes an intentional tort is about to be comitted against him and he uses reasonable force to prevent it.

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29
Q

Duty to retreat and self defense?

A

There is no duty to retreat generally. There is a modern trent that retreat is necessary outside the home before using death or serious bodily injury

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30
Q

Retaliation and self defense?

A

Retaliation is not allowed for self defense. Only prevention.

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31
Q

Self-defense and injured bystanders?

A

So long as the self defense is reasonable and valid, the defendant is not liable.

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32
Q

When is defense of others allowed?

A

A defendant can protect anyone whom he reasonably believes is entitled to self-defense.

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33
Q

What defense is allowed for defending property?

A

Reasonable, non-deadly force can be used ot protected land or chattels. Retaliation is not allowed, only prevention.

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34
Q

Recourses if Chattel is taken?

A

Reasonable non-deadly force is permitted to regain possession if the original taking was illegal, you are in fresh pursuit, and a request for return would be useless or dangerous.

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35
Q

What is public necessity?

A

A defense to trespass to land, chattels, and conversion when the defendant commits a tort to avoid greater injury to the public. There is NO liability to the defendant then.

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36
Q

What is private necessity?

A

When a defendant commits a tort to prevent greater injury to a small number of persons, the defendant is only liable for actual damage caused.

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37
Q

Is discipline a tort?

A

Persons responsible for children are permitted to use reasonable force to control a child.

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38
Q

What is the merchant’s privilege?

A

A defense to false imprisonment when a shop owner reasonably believes that a person detained has shoplifted.

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39
Q

What is defamation?

A

Defamation lowers the plaintiff’s reputation in a respectful community by publishing (communicating) to a third person. It must be a statement of fact, not opinion (not just saying “in my opinion”).
It can be slander or libel.
It depends on what a reasonable person would find defamatory.
The defamed person can’t be dead.

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40
Q

What is the difference between slander and libel?

A

Slander is live speech, while writings, tv statements, oral repetitions of writings or written repetitions of speech are all libel.

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41
Q

Facial defamation?

A

Facial defamation needs no extrinsic facts to make it defamatory. “Aaron married Jennifer”

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42
Q

Non facial defamation requires what?

A

Inducement: pleading additional facts to make something defamatory (he’s married already)
Innuendo: pleading defamatory meaning: “married” means “killed.”
Colloquium: pleading extrinsic facts to prove that hte statement concerns the plaintiff.

43
Q

Defamation in relation to groups?

A

If a group is defamed, one individual can be a plaintiff alone if the group is small. A football team is small. If it is large, the plaintiff can’t bring a defamation action.

44
Q

Republication and defamation?

A

The person who repeats the defamatory statement can be liable for defamation, and this can increase the original defendant’s liability if republication was intended or reasonably foreseeable.

45
Q

Damages allowed/required for defamation?

A

Damages were presumed, and no actual damages were required at common law. But for SLANDER that is not moral turpitude, business misconduct, sexual misconduct, or loathsome disease, then special/economic damages are required.
A minority says that non-facially defamatory libel requires special damages (libel per quod)

46
Q

Defenses to defamation?

A

Truth is a defense. The plaintiff doesn’t have to prove falsity.
Consent
Spouse-to-spouse statements
Statements made in judicial proceedings
Statements made by executive branch officials
Statements made by legislators in hearings or floor debates.

47
Q

Public/private relations to defamation?

A

Public plaintiffs must show falsity by clear and convincing evidence and that there is malice. Government officials and celebrities are public plaintiffs.
Limited purpose plaintiffs must show falsity be clear and convincing evidence and malice only in those cases involving the particular public controversy they have a public role in.
A private plaintiff (not a government official) with a public concern must show falsity and negligence rather than malice, but must show malice to collect punitive damages.
A private plaintiff with a private matter has regular common law defamation.

48
Q

What is malice in defamation?

A

knowledge that the statement is false or reckless disregard for its truth.

49
Q

What are qualified privileges to defamation?

A

employers/professors giving recommendations, credit bureau reports. When a qualified privilege, the defendant is only liable if he acted in malice, had excessive publication, or made a statement unrelated to the policy of the privilege.`

50
Q

What is invasion of privacy?

A

An overview tort for 4 things:

1) . misappropriation of the plaintiff’s picture/likeness or name for commercial advantage.
2) . unreasonable intrusion into plaintiff’s affairs or seclusion.
3) . Public disclosure of private facts.
4) . False light

51
Q

What does unreasonable intrusion into seclusion require?

A

The intrusion must be of something private and it must be highly offensive to a reasonable person. No communication to a third person is required. (wiretapping, reading mail)

52
Q

What is public disclosure of private facts?

A

Disclosing true, private facts
not generally known
not part of a public record or legitimate public interest
in a very public way
that a reasonable person would not want made public

53
Q

What is false light?

A

False attibution of a belief or action that a reasonable person would find highly offensive publicized in a public way with malice.

54
Q

What defenses are there to invasion of privacy?

A

Actual consent, not a reasonable belief in consent.

55
Q

What is Deceit or fraudulent misrepresentation?

A

a misrepresentation of a material fact, that the plaintiff relies on. Generally not silence, unless there is a fiduciary duty or a duty to correct earlier misinformation.
the defendant must have scienter–intent to deceive.

56
Q

Proper plaintiffs for deceit/ Fraudulent misrepresentation?

A

Only the ones defendant meant to deceive or those who could foreseeably rely on the statement.

57
Q

What damages are allowed/required for fraud

A

Actual damages are required, no nominal.

58
Q

What is negligent misrepresentation?

A

A misrepresentation of fact because of the defendant’s negligence that the plaintiff relied on.

59
Q

Proper plaintiffs for negligent misrepresentation?

A

Only persons that the defendant knew would rely.

60
Q

Damages allowed/required for negligent misrepresentation?

A

Actual damages are required, no nominal.

61
Q

What is tortious interference with contract/ business relations?

A

Defendant knows about and intentionally interferes with the plaintiff’s valid contract. It can’t be at will or a prospective contract unless the defendant used violence or wrongful tactics.

62
Q

What is malicious prosecution?

A 
Criminal prosecution
That the plaintiff wins
that was not supported by probable cause
that had an improper purpose in the prosecution
With damages (actual?)
63
Q

What is the normal duty for negligence?

A

The duty not to affirmatively act to create an unreasonable risk of foreseeable harm.

64
Q

To whom does a person owe a duty?

A

Those within the foreseeable zone of danger is the majority or in the minority, it’s everyone. Foreseeable plaintiffs include rescuers

65
Q

What are duty exceptions?

A

Firefighters and police during a rescue are excluded.
There is also no duty (even for doctors) to aid someone in peril unless you create the peril (even absent fault) or there is a special relationship (parent-child, hotel-guest, employer-employee, common carrier-passenger)
A person who begins to help must complete the help.
There is no duty to prevent third persons from committing torts

66
Q

Describe the negligence standard of care?

A

You are expected to act as an ordinary, prudent person would, whether it’s your best or not. The standard is not lowered for less experience, but it can be raised for it.

67
Q

Special duties of care for different people?

A

PHysical disabilities can be considered, like the reasonably prudent blind person.
Child standard is what a child of like age, knowledge, education, intelligence, and experience would do unless engaged in an adult activity.
Professional standard is an average member of the profession in the community.
Specialist standard is a national standard. this is usually used for doctors.
Drivers owe nonpaying riders only duty of no gross negligence, though this is statutory.

68
Q

What duties does a landowner owe people off the land?

A

When the plaintiff is injured by a natural condition off the land there is no duty, unless by a decaying tree.
When the plaintiff is injured off the land by an artificial condition, there is no duty, unless injured by a dangerous condition on the edge of the property.
When a plaintiff is injured by an activity, reasonable care must be used.

69
Q

What does the defendant’s duty to people on the land depend on?

A

The plaintiff’s status as a trespasser, licensee, or invitee.

70
Q

What duties does an owner owe trespassers?

A

(Same as anticipated) For an undiscovered trespasser, no duty at all.
For a discoverd trespasser, no duty for natural or non dangerous artificial condition. IF the artificial condition is highly dangerous, then duty to warn or make safe.
Duty of reasonable care for activities.

71
Q

What duties are owed an anticipated trespasser?

A

(Same as discovered) For an undiscovered trespasser, no duty at all.
For a discoverd trespasser, no duty for natural or non dangerous artificial condition. IF the artificial condition is highly dangerous, then duty to warn or make safe.
Duty of reasonable care for activities.

72
Q

What duties does a landowner owe children?

A

Duty of reasonable care. Attractive nuissance must be avoided:

1) . dangerous, artificial condition
2) . the defendant know or should have known children are likely to come by it (no need to be attracted by it)
3) . The child cannot appreciate the danger
4) . The expense of making the condition safe is slight compared to the danger.

73
Q

What is a licensee and what duty does a landowner owe licensees?

A

A licensee is a social guest, there for his own benefit, like salesmen, police, and firefighters.
For activities, reasonable care.
For natural and artificial conditions, duty to warn or make safe non obvious dangerous conditions, but no duty to inspect.

74
Q

What is an invitee and what duty does a landowner owe them?

A

Business invitee on the property for the landowner’s economic benefit. Public invitees are there for public purpose, like airport passengers, museum tourists.
Reasonable care for activities.
Duty to warn or make safe known or should have known non obvious dangerous conditions.

75
Q

What is res ipsa loquitur and what is its effect?

A

The plaintiff shows
1). something happened that ordinarily only occurs if someone was negligent and
2). more probable than not, the defendant was negligent because he had exclusive control over the injury-producing thing.
It merely prevents a directed verdict, does not shift the burden or create a presumption of evidence. Just lets it get to the jury.

76
Q

How does industry custom work with the duty/breach analysis?

A

Custom can provide some evidence, but not conclusive, of the reasonable standard of care. Expert testimony is required to establish the custom and whether it was complied with.

77
Q

How does violating a statute affect duty/breach?

A 
Under the majority approach, violating a statute shows the breach of a duty/ negligence per se.  The minority treats it as some evidence of negligence.  The statute violation must be unexcused in light of balancing the harms of following and not following,, the harm suffered must be the type of harm to be prevented, and the plaintiff must be in the class of persons meant to be protected.  
   You might still be required to act above the statute's requirements.
78
Q

What does causation require?

A

Actual cause and proximate cause

79
Q

When is but-for cause not used?

A

When there is more than one tortfeasor.
Use substantial factor test if there is moe than one negligent person.
If multiple defendants are acting jointly, both are the actual cause of the entire injury.
Multiple sufficient causes test: If two defendants aren’t acting jointly and either’s negligence would have caused the injury, they are each the actual cause of the entire injury.
If multiple defendants are not acting jointly and their negligence comine to form a larger injury, they are each the actual cause of the greater injury.
If multiple defendants are not acting jointly and they are both negligent and only one casued the harm, it is their responsibility to prove it wasn’t him or they are jointly liable.

80
Q

What is the proximate cause test?

A

The harm suffered by the plaintiff must be reasonably foreseeable to the defendant at the time of the defendant’s act. This means the type of harm, but not the extent. Eggshell skull doctrine- you take the plaintiff as they are.
Proximate cause does not extend to purely economic damages suffered by third persons.

81
Q

What is an intervening cause?

A

An event that occors after the defendant’s action that causes additional harm. If it is foreseeable, the defendant is liable for the harm. If it is not foreseeable, then it is superceding and the defendant is not liable.

82
Q

What types of intervening actions are routinely foreseeable?

A

Medical malpractice, negligent rescuers, non-extraordinary weather. Crimes and intentional torts are usually unforseeable, but crime may be, like a landowner with knowledge of criminal activity.

83
Q

What types of damges are allowed/required for negligence?

A

Actual damages are required. Pain and suffering, lost earning capacity, loss of consortium, and medical expenses are all allowed. Damages are not offset by insurance payments.

84
Q

Emotional distress damages?

A

For emotional distress damages, the majority requires some physical injury or symptom and that the plaintiff was in the zone of danger. A modern approach allows a family member to recover who sees it. For another possible trent, Damages may be recoverable for an act that is likely to result in physical symptoms, though there are non yet, like false diagnosis of a terminal illness.

85
Q

What is assumption of risk?

A

Wen the plaintiff substantially knew, understood, and voluntarily accepted the risk. This defense is not available to a rescuer.

86
Q

What is contributory negligence?

A

A dying trend, when any negligence by the plaintiff will bar recovery. This is limited by the last clear chance doctrine, where the defendant acts subsequent to the plaintiff’s negligence and causes harm that would not have occurred.

87
Q

What is comparative negligence?

A

Today’s majority view where the plaintiff’s recovery is reduced by his fault amount. The last clear chance doctrine does not apply to comparative negligence.

88
Q

When does strict liability apply?

A

1) . When there is an inherently dangerous activity–one where the risk of harm cannot be eliminated no matter how much care is taken, and the activity is unusual for the area.
2) . When there is a wild animal
3) . When there is a domestic animal known to have a dangerous propensity

89
Q

What are defenses to strict liability?

A

Assumption of risk and undiscovered trespasser (duty to warn or make safe), but not contributory negligence.

90
Q

Who are proper defendants for product liability?

A

manufacturers, and also sellers and component parts makers. Not garage sellers or loans. No privity is required. Failure to discover a defect is not a superseding cause–the seller has no duty to correct the manufacturer’s mistake.
It doesn’t apply to services (like blood transfusion.) or to unaviodably unsafe products, like knives.

91
Q

When is there strict liability for product liability?

A

When there is an unreasonably dangerous (considering economically feasible alternatives) defect in design, manufacture, or warning/instruction.

92
Q

Defenses to strict liability product liabilty?

A

unforeseeable unintended use of the product.
Assumption of the risk
Comparative negligence
Not Contributory negligence

93
Q

What damages are allowed/required for product liability?

A

There must be physical damages to a person or property other than the product at issue.

94
Q

What is nuisance?

A

Substantial an unreasonable (considering the time of day, frequency, and area) interference with the use and enjoyment of one’s property, like odor, noise, and light. It must be substantial to an average person and sensitivity is never considered here.

95
Q

What damages are allowed/ permitted for nuissance?

A

Actual harm is required.

96
Q

What is public/private niussance?

A

public nuisance affects the health, safety, or property rights of the general public. To have a private cause of action, the plaintiff must have a unique injury apart from that of the public.

97
Q

Describe two vicarious liability torts relationships.

A

Servants (employees) and Independent contractors. Masters are vicariously liable for employees activities while in the scope of their employment. Commuting is not within employment scope.
Independent contracts only create liability when it is an inherently dangerous activity or non delegable duty, like a landowner’s duty to repair

98
Q

How to determine whether its an employee or independent contractor?

A

the length of employment, possession of the tools used, the skill involved

99
Q

What is indemnification?

A

When a defendant seeks full reimbursement from another person, like employer-employee or seller-manufacturer.

100
Q

What is contribution?

A

When joint and several liability causes one defendant to pay more than his share, then he is entitled to contribution from other defendants. The majority rule is that each defendant pays a pro rata share divided by the number of defendants. Other states contribute by the comparative amount of fault.

101
Q

What is wrongful death?

A

Damages for loss of support, companionship, ect. paid to the family.

102
Q

What is a survival action/statute?

A

Damages suffered between the tort and death, like medical expenses. The damages are paid to the estate.

103
Q

What immunities are there for torts?

A

1). State governments are immune, but have limited waivers.
2). municipal governments are immune while doing government functions, but not for proprietary ones, like garbage and parking lots
3). Federal government immunity is waived by FTCA
There is no spousal immunity, parent-child immunity, or charitable immunity in the majority.

MBE (4 decks)

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