Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Exam > Torts > Flashcards

Torts Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Intentional torts- to establish a prima facie case of intentional tort, plaintiff must prove:

A

act by defendant (the act required is a volitional movement by defendant), Intent (specific or general) and causation (the result must have been legally caused by defendant’s act- satisfied if defendant’s conduct was a substantial factor in bringing about the injury)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Transferred Intent

A

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead (i) commits a different tort again that person, (ii) commits the same tort as intended but against a different person, or (iii) commits a different tort against a different person.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Limitations on use of transferred intent

A

Transferred intent may be invoked only if both the tort intended and the tort results are one of the following:

  • Assault
  • Battery
  • False Imprisonment
  • Trespass to land
  • Trespass to chattels
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Battery

A

(i) Harmful or offensive conduct;
(ii) to plaintiff’s person;
(iii) intent; and
(iv) causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Assault

A

(i) An act by defendant creating a reasonable apprehension in plaintiff
(ii) of immediate harmful or offensive contact to plaintiff’s person;
(iii) intent; and
(iv) causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

False Imprisonment

A

(i) An act or omission on the part of the defendant that confines or restrains plaintiff;
(ii) to a bounded area;
(iii) intent; and
(iv) causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

False Imprisonment - Methods of confinement or restraint

A

Sufficient Methods:
physical barriers, physical force, threats of force, failure to release, and invalid use of legal authority

Insufficient Methods:
moral pressure and future threats

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Intentional Infliction of Emotional Distress

A

(i) An act by defendant amounting to extreme and outrageous conduct;
(ii) Intent or recklessness;
(iii) Causation; and
(iv) Damages- severe emotional distress

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

IIED- Extreme and Outrageous Conduct

A

Conduct that transcends all bounds of decency. Conduct that is not normally outrageous can become so if: it is continuous in nature; it is directed toward a certain type of plaintiff (children, elderly persons, pregnant women, supersensitive adults if the sensitivities are known to the defendant); or it is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Trespass to Land

A

(i) Physical invasion of plaintiff’s real property (ii) Intent; and
(iii) Causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Trespass to Chattels

A

(i) An act by defendant that interferes with plaintiff’s right of possession in a chattel;
(ii) Intent;
(iii) Causation; and
(iv) Damages ( actual damages- not necessarily to the chattel, but at least to a possessory right- are required)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Trespass to Chattels- Two types of Interference

A

Intermeddling- directly damaging the chattel

Dispossession- depriving plaintiff of his lawful right of possession of the chattel

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Conversion

A

(i) An act by defendant that interferes with plaintiff’s right of possession in a chattel;
(ii) The interference is so serious that it warrants requiring defendant to pay the chattels full value;
(iii) Intent; and
(iv) Causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Conversion

A

Only tangible personal property and intangibles that have been reduce to physical form (e.g., a promissory note) are subject to conversion.
Plaintiff may recover damages (fair market value at the time of the conversion) or possession (replevin).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Trespass to Chattels vs. Conversion Chart

A

Act by defendant:

  • An interference with plaintiffs right of possession of chattel- TRESPASS TO CHATTELS
  • An interference with plaintiff’s right of possession so serious as to warrant that defendant pay the chattel’s full value- CONVERSION

Intent:
- Intent to do the act that brings about the interference – TRESPASS TO CHATTELS AND CONVERSION

Remedy:

  • Recovery of actual damages from harm to chattel or loss of use- TRESPASS TO CHATTELS
  • Damage award of fair market value of chattel at time of conversion or recover possession of chattel- CONVERSION
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Defenses to Intentional Torts

A
  1. Consent
  2. Self-Defense, Defense of Others, and Defense of Property
  3. Privilege of Arrest
  4. Necessity
  5. Discipline
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Defenses to Intentional Torts- Consent

A

Plaintiff’s consent to defendant’s conduct is a defense, but the majority view is that one cannot consent to a criminal act. Any consent pact pattern raises two inquires: (i) was there valid consent? 9ii) did the defendant stay within the boundaries of the consent?
- Capacity is required for consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Defenses to Intentional Torts- Consent-Express consent and implied consent

A

Express consent- defendant is not liable if plaintiff expressly consent to the defendant’s conduct.
Implied Consent- apparent consent is that which a reasonable person would infer from custom and usage or plaintiff’s conduct. Consent implied by law arises when action is necessary to save a person’s life or some other important interest in person or property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Defenses to Intentional Torts- Consent-Exceptions to Express Consent

A

(i) Mistake will undo express consent if defendant knew of and took advantage of the mistake;
(ii) consent induced by fraud will be invalidated if it goes to an essential matter but not a collateral matter; and
(iii) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Defenses to Intentional Torts: Self-Defense, Defense of Others, and Defense of Property

A

ask the following three questions:

  1. Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify.
  2. Is a mistake permissible as to whether the tort being defended again (battery, trespass, etc.) is actually being committed?
  3. Was a proper amount of force used?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Defenses to Intentional Torts: Self-Defense

A

When a reasonable person believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Defenses to Intentional Torts: Defense of Others

A

One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself. A reasonable mistake as to whether the other person is being attack or has a right to defend himself is permitted.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Defenses to Intentional Torts: Defense of Property

A

One may use reasonable force to prevent the commission of a tort against her real property or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. Defense doesn’t apply once the tort has been committed. However, one may use force in hot pursuit of another who tortiously dispossessed the owner of her chattels because the tort is viewed as still being committed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Defenses to Intentional Torts- Recapture of Chattels

A

One my use only peaceful means to recover the chattel. Force may only be used when in hot pursuit. A timely demand to return the chattel is first required unless clearly futile of dangerous.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Defenses to Intentional Torts: Privilege of Arrest

A

The actor my have a privilege to make an arrest of a third person. The privilege of arrest carries wtih it the privilege to enter another’s and for the purpose of effect the arrest. Although the arrest itself may be privileged, the actor may still be liable for subsequent misconduct.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Defenses to Intentional Torts: Necessity

A

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertake to acer it. Two type of necessity: (i) public- when the act is for the public good; and (ii) private- when the act is solely to benefit a limited number of people.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Defenses to Intentional Torts: Discipline

A

A parent or teacher may use reasonable force in disciplining children.

28
Q

Defamation: Common law elements

A

(i) Defamatory language,
(ii) “Of or concerning” the plaintiff;
(iii) Publication thereof by defendant to a third person; and
(iv) Damage to plaintiff’s reputation

29
Q

Defamation: Constitutional requirements

A

If the defamation involves a matter of public concern, the Constitution requires the plaintiff to prove two additional elements:

(v) Falsity of the defamatory language; and
(vi) Fault on the part of the defendant

30
Q

Defamation: Defamatory Language

A

Language tending to adversely affect one’s reputation. A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient.

31
Q

Defamation: Colloquium

A

If the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the statement refers to the plaintiff. Known as pleading “colloquium.”

32
Q

Defamation: Damage to Plaintiff’s Reputation- Libel

A

Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed.

33
Q

Defamation: Damage to Plaintiff’s Reputation-Slander

A

Slander is spoken defamation. Plaintiff must prove special damages, unless defamation falls within slander per se categories; i.e., defamatory statements that:

1) adversely reflect on one’s conduct in a business or profession;
2) One has a loathsome disease;
3) One is or was guilty of a crime involving moral turpitude; or
4) A woman is unchaste.

34
Q

Defamation: First Amendment Concerns- Falsity

A

If a statement of public interest is true, plaintiff has no cause of action for defamation.

35
Q

Defamation: Public Figure

A

A person becomes a “public figure” by achieving pervasive fame or notoriety or by voluntarily assume a central role in a particular public controversy.

36
Q

Defamation: Malice

A

Malice is:
(i) Knowledge that the statement was false; or
(ii) Reckless disregard as to whether it was false
This is a subjective test.

37
Q

Defamation Defenses

A
  1. Consent
  2. Truth
  3. Absolute Privilege
  4. Qualified Privilege
38
Q

Defamation Defenses: Consent

A

Consent is a complete defense. The rules relating to consent to intentional torts apply here.

39
Q

Defamation Defenses: Truth

A

Where plaintiff does not need to prove falsity, defendant may prove truth as a complete defense.

40
Q

Defamation Defenses: Absolute Privilege

A

Defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in “compelled” broadcasts, and between spouses. (Absolute privilege can never be lost).

41
Q

Defamation Defenses: Qualified Privilege

A

May have a qualified privilege for the following: reports of official proceedings; statement in the interest of the publisher- defense of one’s actions, property, or reputation; statements in the interest of the recipient; and statement in the common interest of the publisher and recipient.
Qualified privilege may be lost if (i) the statement is not within the scope of the privilege; or (ii) it is show that the speaker acted with malice.

42
Q

Invasion of Right to Privacy

A

Four kinds of Wrongs:

1) Appropriation of Plaintiff’s Picture or Name
2) Intrusion on Plaintiff’s Affairs or Seclusion
3) Publication of Facts Placing Plaintiff in False Light
4) Public Disclosure of Private Facts About Plaintiff

43
Q

Intentional Misrepresentation (Fraud, Deceit)

A

(i) Misrepresentation of a material fact. Silence is generally not enough; on e must make affirmative misrepresentations;
(ii) Scienter, when defendant made the statement, she knew or believed it was false and that there was no basis for the statement;
(iii) Intent to induce plaintiff to act or refrain from actin gin reliance upon the misrepresentation;
(iv) Causation (actual reliance);
(v) Justifiable reliance; and
(vi) Damages (plaintiff must suffer actual pecuniary loss)

There are no defenses to intentional misrepresentation.

44
Q

Negligent Misrepresentation

A

(i) Mistrepresentation by defendant in a business or professional capacity;
(ii) Breach of duty toward a particular plaintiff;
(iii) Causation;
(iv) Justifiable reliance; and
(v) Damages

45
Q

Malicious Prosecution

A

(I) Institution of criminal proceedings against plaintiff;

(ii) Termination in plaintiff’s favor;
(iii) Absence of probable cause for prior proceedings;
(iv) Improper purpose; and
(v) Damages.

Prosecutors are immune form liability.

46
Q

Negligence

A

(i) A duty on the part of the defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
(ii) A breach of that duty by defendant;
(iii) The breach is the actual or proximate cause of the plaintiff’s injury; and
(iv) Damage

47
Q

Negligence: Duty of Care

A

A duty of care is owed to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care.

48
Q

Negligence: Negligent Infliction of Emotional Distress

A

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable ricks of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (1) the plaintiff must be within the zone of danger; and (2) the plaintiff must suffer physical symptoms from the distress.

49
Q

Negligence: Breach of Duty

A

Where a defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty.

50
Q

Negligence: Breach of Duty- Res Ipsa Loquitur

A

The very occurrence of an even may tent to establish a breach. RIL doctrine requires plaintiff to show that (i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and (ii) the negligence is attributable to defendant.

51
Q

Negligence: Causation

A 
Plaintiff must show both actual cause and proximate case: 
Actual cause (causation in fact)- But for test, substantial factor test, alternative causes approach 
Proximate cause (legal causation)- doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of once's act.
52
Q

Negligence: Proximate Cause- Scope of foreseeable risk

A

A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This is a foreseeability test.

53
Q

Negligence: Direct vs. Indirect Cause

A

Direct cause- where there is an uninterrupted chain of events from the negligent act to plaintiff’s injury, defendant is liable for all foreseeable harmful results.
Indirect cause- An affirmative intervening force comes into motion after defendant’s negligent act and combines with it to case plaintiff’s injury.
- Defendant is liable for both foreseeable results caused by foreseeable intervening forces and unforeseeable intervening forces (unless the unforeseeable intervening force was a crime or intentional tort of a third party).
- Superseding forces- break the causal connection between defendant’s initial negligent act and plaintiff’s ultimate injury, thus relieving the defendant of liability.

54
Q

Negligence: Damages

A
  1. Personal injury- plaintiff is to be compensated for all his damages (past, present and prospective), both economic damages and noneconomic damages.
  2. Property damages- reasonable cost of repair or fair market value at the time of the accident.
  3. Punitive damages- may recover if defendant’s conduct is “wanton and willful.” reckless or malicious.
  4. Nonrecoverable items- interest from the date of damage in a personal injury action and attorneys’ fees.
  5. Duty to mitigate- plaintiff has a duty to take reasonable steps to mitigate damages
  6. Collateral Source Rule- damages are not reduced just because plaintiff received benefits form other sources.
55
Q

Negligence: Defenses

A

1) Contributory Negligence: negligence on the part of the plaintiff that contributes to her injuries.
2) Assumption of Risk: plaintiff may be denied recovery is she assumed the risk of any damage caused by defendant’s act. Plaintiff must have known of the risk and voluntarily proceeded in the face of that risk.
3) Comparative Negligence: Plaintiff’s contributory negligence is not a complete bar to recovery. Rather the trier of fact weighs the plaintiff’s negligence and reduces damages accordingly.

56
Q

Strict Liability

A

(i) the nature of the defendant’s activity imposes an absolute duty to make safe;
(ii) the dangerous aspect of the activity was the actual and proximate cause of the plaintiff’s injury; and
(iii) the plaintiff suffered damage to person or property

57
Q

Strict Liability

A

Strict liability for reasonably foreseeable damage done by a trespass of an owners animals.

Abnormally dangerous activities- two requirements: 1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and 2) the activity is not a matter of common usage in the community.

58
Q

Products Liability

A

Refers to the liability of a supplier of a defective product to someone injured by the product.
Plaintiff must show: (i) a defect and (ii) existence of the defect when the product left the defendant’s control.

59
Q

Products Liability: Five theories of liability

A

1) Intent,
2) Negligence,
3) Strict Liability,
4) Implied warranties of merchantability and fitness for a particular purpose, and
5) Representation theories (express warranty and misrepresentation)

60
Q

Products Liability: Manufacturing Defects

A

If a product emerges form manufacturing different and more dangerous than the products that were made properly, it has a manufacturing defect.
Defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect.

61
Q

Products Liability: Designe Defects

A

When all products of a line are the same but have dangerous propensities, they may be found to have a design defect.
Plaintiff usually must show that he defendant could have made the product safer, without serious impact of the product’s price or utility.

62
Q

Products Liability: Inadequate Warnings

A

Manufacturer’s failure to give adequate warnings as tot eh risks involve din using the product that may not be apparent to users.

63
Q

Products Liability: Liability based on Intent

A

Any injured plaintiff can sue for compensatory damages adn punitive damages. The defenses available are the same in other intentional tort cases.

64
Q

Products Liability: Liability Based on Negligence

A

Plaintiff must show (i) duty, (ii) breach, (ii) actual and proximate case, and (iv) damages. Users, consumers and bystanders are considered foreseeable plaintiffs. Manufacturers, wholesalers adn retailers can be held liable. Physical injury or property damage must be show. Same defenses as in a general negligence action.

65
Q

Products Liability: Liability Based on Strict Tort Liability

A

(i) a strict duty owed by a commercial supplier of a product;
(ii) production or sale of a defective product;
(iii) actual and proximate case; and
(iv) damages

66
Q

Nuisance

A

Nuisance is not a separate tort in itself. Rather, nuisances are a type of harm- the invasion of either private property rights or public rights by conduct that is tortious because it falls into the usual categories of tort liability.

Bar Exam (7 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions