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Torts Flashcards

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1
Q

Definition of battery

A
  1. Harmful or offensive contact
  2. To P’s person
  3. Intent
  4. Causation
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2
Q

Definition of assault

A
  1. Act by D creating reasonable apprehension in P
  2. Of immediate harmful or offensive contact to P’s person
  3. Intent
  4. Causation
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3
Q

Can words be considered assault?

A

Words alone lack immediacy. Naked verbal threat w/o accompanying conduct isn’t enough

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4
Q

Definition of false imprisonment

A
  1. Act or omission by D that confines or restrains P
  2. To a bounded area
  3. Intent
  4. Causation
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5
Q

False imprisonment - what is a bounded area?

A

Area is not bounded if there’s REASONABLE means of escape that P can reasonably discover

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6
Q

Definition of intentional infliction of emotional distress

A
  1. Act by D amounting to extreme and outrageous conduct
  2. Intent or recklessness
  3. Causation
  4. Damages (severe emotional distress)
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7
Q

IIED - what is outrageous conduct?

A

Standard : exceeds all bounds of decency tolerated in civilized society

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8
Q

Def. of trespass to land

A
  1. Physical invasion of P’s real prop
  2. Intent
  3. Causation
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9
Q

Def. of trespass to chattels

A
  1. Act by D that interferes w/ P’s right of possession in a chattel
  2. Intent
  3. Causation
  4. Damages
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10
Q

Defense of private necessity is only a limited defense, D remains liable for

A

Compensatory damages. Not liable for nominal/punitive damages

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11
Q

Consent may be implied based on:

A

custom and usage or P’s conduct (e.g. normal contacts in body-contact sports)

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12
Q

General rule of transferred intent in intentional torts:

A

When D intends to commit a tort against one person but instead (i) commits a different tort against that person, (ii) commits the same tort but against a different person, or (iii) commits a different tort against a different person

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13
Q

Def. of conversion

A
  1. Act by D that interferes w/ P’s right of possession in a chattel
  2. Interference is so serious it warrants requiring D to pay chattel’s full value
  3. Intent
  4. Causation
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14
Q

2 part test for consent:

A
  1. Was there valid consent (no fraud)?

2. Did D stay w/in boundaries of the consent?

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15
Q

Elements of defamation:

A
  1. Defamatory language
  2. “Of or concerning” the P
  3. Publication to any 3rd person
  4. Damage to P’s rep (for slander, must have economic harm)
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16
Q

In defamation libel case, how to prove damages:

A

General damages always presumed (defamatory statement is written down)

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17
Q

In defamation slander (oral) cases, damages are presumed when:

A

Slander is so hurtful it is called “per se” slander:

Related to P’s biz, accusation of committing crime of moral turpitude,

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18
Q

When defamation involves a matter of public concern, P must additionally prove:

A
  1. False of the statement, and

2. Fault on part of D

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19
Q

In defamation of public concern, P must prove fault on part of D. Analysis depends on whether P is private or public official

A

Public official must prove malice (knowledge that statement was false or reckless disregard about truth)

Private person need not prove malice, only negligence

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20
Q

4 defenses to defamation:

A

Consent
Truth
Absolute privilege (e.g. spouses, gov officers)
Qualified privilege (letters of rec, statements to police), must be made in good faith

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21
Q

Invasion of right to privacy includes 4 kinds of wrongs

A
  1. Appropriation of P’s picture or name
  2. intrusion on P’s affairs or seclusion
  3. publication of facts placing P in false light (attaches views that are highly offensive to a reasonable person)
  4. public disclosure of private facts about P
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22
Q

Invasion of right to privacy tort… must show what damages?

A

No special damages. Emotional distress/mental anguish sufficient

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23
Q 
Intentional misrepresentation (fraud/deceit)
5 elements:
A 
Misrepresentation of material fact
D must have made statement intentionally/recklessly
Intent to induce reliance
Actual reliance
Damages
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24
Q

4 elements of negligence

A

duty
breach
causation
damages

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25
Q

Negligence:

You only owe a duty of care to:

A

Foreseeable victims. Must be in the foreseeable “zone of danger”

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26
Q

Two exceptions to zone of danger rule:

A

Rescuers (duty owed, even if rescuer starts from far away)

Fetuses (no duty owed, even if in zone)

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27
Q

Duty of care standard

A

Exercise amount of care as by a reasonably prudent person in similar circumstances

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28
Q

Exception for reasonably prudent person standards

A

Standard is one-way ratchet going up

If D has superior skill/knowledge, RPP standard is heightened

RPP assumed to have same physical characteristics (e.g. blind person)

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29
Q

Two exceptions to zone of danger rule:

A

Rescuers (duty owed, even if rescuer starts from far away)

Fetuses (no duty owed, even if in zone)

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30
Q

Duty of care standard

A

Exercise amount of care as by a reasonably prudent person in similar circumstances

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31
Q

Exception for reasonably prudent person standards

A

Standard is one-way ratchet going up

If D has superior skill/knowledge, RPP standard is heightened

RPP assumed to have same physical characteristics (e.g. blind person)

32
Q

Duty of care of CHILDREN

A

Under 5, they owe no duty to anyone
5-18, they owe care of hypothetical child of similar age, experience, and intelligence acting under similar circumstances

But just normal duty if doing adult activity

33
Q

Duty of care of PROFESSIONALS

A

Required to exercise skill and knowledge normally possessed by other members of profession in similar communities (empirical real-life standard)

34
Q

Duty of care owed to UNDISCOVERED TRESPASSER

A

Zero duty of care

35
Q

Duty of care owed to all entrants except undiscovered trespasser for active operations

A

Reasonable care

36
Q

Duty of care owed to licensees (i.e. SOCIAL GUESTS)

A

Duty to warn/make safe known, dangerous conditions (both artificial and natural)

37
Q

Duty of care owed to child entrants (if no attractive nuisance)

A

General RPP wrt any artificial condition, but RPP depends on how many kids you live near

38
Q

Statutory standards of duty of care

A

Statute may replace CL duty of care if:

  1. statute provides for crim penalty
  2. statute clearly defines the standard of conduct
  3. P is w/in protected class
  4. Statute was designed to prevent the type of harm suffered by P

Unless compliance was impossible or would’ve been more dangerous

39
Q

No fault insurance: denies right to sue but gives holder a guaranteed right of compensation.

Basic rules (beneficiaries and people barred):

A

First party benefits: policyholder, authorized driver of holder’s car, any pedestrian hit by car

Barred: Drunk drivers, drag racers, car thieves/fleeing felons

40
Q

NY: you can still file negligence claim after no fault insurance if

A

You suffered a serious injury

41
Q

Statutory standards of duty of care

A

Statute may replace CL duty of care if:

  1. statute provides for crim penalty
  2. statute clearly defines the standard of conduct
  3. P is w/in protected class
  4. Statute was designed to prevent the type of harm suffered by P

Unless compliance was impossible or would’ve been more dangerous

42
Q

No fault insurance: denies right to sue but gives holder a guaranteed right of compensation.

People barred from getting no fault benefits:

A

Drunk drivers, drag racers, car thieves/fleeing felons

43
Q

NY: you can still file negligence claim after no fault insurance if

A

You suffered a serious injury

44
Q

Generally: no duty to rescue a stranger in peril

Exceptions:

A

if there’s preexisting relationship
if D put P in peril

There, duty to act reasonably, not rescue

Gratuitous rescuer who rescues w/o duty may be held liable

45
Q

Negligence: breach

Res ipsa loquitor general rule

A

Must show accident is the kind normally associated w/ negligence

Accident of this type is normally due to negligence by someone in D’s position

46
Q

Negligent IIED in a near miss case

A

Must be in zone of danger

There must be subsequent physical manifestation of stress

47
Q

Negligent IIED in bystander case (negligent D who seriously injured individual who isn’t P)

A

Victim must be close family member and P was physically present was X got hurt

NY: P must be in zone of danger

48
Q

Negligence: breach

Res ipsa loquitor general rule

A

Must show accident is the kind normally associated w/ negligence

Accident of this type is normally due to negligence by someone in D’s position

49
Q

Negligence: causation

Always analyze two factors:

A

Factual cause

Proximate cause

50
Q

Negligence: proximate cause is a test of

A

Foreseeability

Think of risks of the breach, and then what happened to P… is there a match?

51
Q

Negligence: factual cause standard in multiple Ds and merged causes

A

See if each breach was a SUBSTANTIAL FACTOR in producing the harm

52
Q

Negligence: factual cause standard in unascertainable cause cases

A

Burden of proof shifts to Ds, each must prove that his negligence is not the actual cause

53
Q

Negligence: proximate cause is a test of

A

Foreseeability

54
Q

Proximate cause: Results are considered foreseeable in some intervening situations:

A

Intervening medical negligence
Intervening negligent rescue
Intervening protection/reaction forces (bystanders freak out)
Subsequent disease or accident

55
Q

Tort damages: general rule of the eggshell skull principle

A

P recovers all damages suffered, even if surprisingly great in scope

56
Q

4 elements to getting an injunction

A
  1. P must show no adequate remedy at law ($ inadequate)
  2. P has particular right in the lawsuit
  3. Injunction must be enforceable (difficult w/ affirmative injunction)
  4. Balance of hardships must tip in P’s favor
57
Q

Affirmative defenses to injunctions

A
  1. “Unclean hands” - P is guilty of some kind of offsetting conduct
  2. Laches doctrine - D has relied detrimentally on P’s acquiescence
  3. 1st amendment (there can be no prior restraint)
58
Q

Default affirmative defense in negligence claims (MBE)

A

Pure comparative negligence - D must show P failed to exercise proper care for his own safety

P’s recovery will be reduced by P’s % of fault

59
Q

Affirmative defenses in negligence claims (NY)

A

Primary assumption of risk - applies only to participants/spectators in sporting events

60
Q

Alternative affirmative defense in negligence claim (not pure comparative) (MBE)

A

Modified/partial comparative fault - if P fault over 50%, absolute bar to recovery

61
Q

Injuries caused by an animal - general rule

A

If injury is caused by domestic animal, no SL, unless you have knowledge of its vicious propensities

62
Q

Injuries caused by an animal to a trespasser… SL?

A

NO SL, even if you have knowledge of its vicious propensities

63
Q

Injuries caused by an animal (NY)

A

If injury is due to aggression by animal, knowledge of vicious propensity leads to SL. If injury is something else, it’s negligence

64
Q

Injuries caused by wild animal that you keep

A

Always SL… safety precautions don’t matter

65
Q

Abnormally dangerous activities are SL. 2 part test for abnormally dangerous:

A
  1. Creates foreseeable risk of serious harm even when reasonable care is exercised
  2. Activity is not commonly used in the community

E.g. blasting

66
Q

Workers’ comp: who is not able to get benefits

A

Independent contractors do not get benefits under workers’ comp

67
Q

Workers’ comp: basically all injuries are covered, w/ 3 exceptions:

A
  1. Drunken injury
  2. Intentionally injuring yourself
  3. Injured during voluntary, off-duty athletic activity
68
Q

4 elements of strict product liability

A
  1. D must be a merchant
  2. P must show product is defective
  3. P must show product hasn’t been altered since leaving D’s control
  4. P must be making a foreseeable (not intended) use of product
69
Q

For strict products liability, how to establish element that product is defective:

A
  1. Manufacturing defect (if it differs significantly from others… quality control method is irrelevant)
  2. Design defect (alternative design could’ve been safer, cost-effective, and practical)
  3. Information defect (warning must be adequate)
70
Q

Nuisance tort general rule

A

Interference w/ P’s use or enjoyment of his land must be substantial (must be offensive, inconvenient, etc. to an AVERAGE person)

71
Q

Vicarious liability: employer-employee general rule

A

Employer is liable for torts of employee if in scope of employment

Also if use of force is part of job and employee is excessive, or if tort is committed in misguided effort to serve employer’s interest

72
Q

Vicarious liability: independent contractor general rule

A

No vicarious liability

Exception: if property owner brings independent contractor, and contractor hurts invitees… there’s VL

73
Q

Vicarious liability: car owner and driver general rule (MBE)

A

No vicarious liability

Exception: if car is lent for you to run an errand for me, it’s principal-agent

74
Q

Vicarious liability: car owner and driver general rule (NY)

A

VL imposed on owner for torts committed by anyone driving the car w/ permission

75
Q

Vicarious liability: parent-child general rule

A

No vicarious liability

76
Q

Torts: married couple, always think loss of consortium. General rule:

A

Uninjured spouse will get separate cause of action against all the same Ds

Loss of services
Loss of society (companionship)
Loss of sex

77
Q

Measure of damages for conversion?

A

Fair market value of chattel. But D can keep the item (it’s like a forced sale)

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