Brainscape's Knowledge GenomeTM

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


See full index

Torts > Torts > Flashcards

Torts Flashcards

1
Q

1

Prima Facie case for intentional Tort: (3)

A
  1. Act by Def
  2. Intent (general or specific)
  3. Causation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

6A

7 Intentional Tort:

A
  1. Battery
  2. Assault
  3. False Imprisonment
  4. Intentional Inflection of Emotional Distress
  5. Trespass to Land
  6. Trespass to Chattel
    7 Conversion
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

7A

Battery 2 elements:

A
  1. Harmful or Offensive contact

2. Contact with plaintiffs person

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

8

Battery

  1. What is harmful contact: (3)
  2. What is offensive contact:
  3. Ex of Direct and Indirect Contact:
  4. Can a plaintiffs person be a purse or clothing:
A
  1. injury
  2. pain
  3. disfigurment
  4. offensive to a reasonable person
  5. Direct = striking plaintiff
    Indirect = setting a trap
  6. Yes
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

10A

Assault 2 Elements:

A
  1. Reasonable apprehension of immediate

2. harmful or offensive contact (battery)

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

18A

False Imprisonment 2 Elements:

A
  1. Def commits and act of restraint

2. Plaintiff confined to a bounded area

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

21A

Intentional Inflection of Emotional Distress 2 Elements:

A
  1. Outrages conduct

2. Plaintiff suffers severe emotional distress

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

22

  1. Extreme outrages conduct is:
  2. 3 things to look for re conduct:
  3. Does the Def need to know the sensitivity of Plaintiff if sensitive adult:
  4. Requisite intent can be_____.
A
  1. conduct that transcends all bounds of decency
  2. continuous
  3. certain plaintiff (child, pregnant, elderly)
  4. type of Def (innkeeper / common carrier)
  5. yes
  6. Recklessness
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

23 Intentional Infliction of Emotional Distress

  1. Damages required:
  2. Bystander plaintiff 3 elements:
  3. What are 2 things that IIED has that are different form other intentional torts:
A
  1. yes - actual damage of severe distress
  2. Plaintiff present when (IIED to another)
  3. close relative
  4. Def knew Plaintiff present and close relative
  5. recklessness works for intent
  6. damage requirement
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

24A

Trespass to Land 2 Elements:

A
  1. Physical invasion

2. Interference w/ exclusive Possession of Land

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

26A

Trespass to Chattel (2):

A
  1. Def interferes w/ Plaintiffs right of possession
  2. small harm / damage

(damage or theft)

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

28A

Conversion (2):

A
  1. Def interferes w/ Plaintiffs right of possession
  2. serious harm

(damage or theft)

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

30 Conversion

  1. Can intangible property reduced to something physical be subject to Conversion: ex.
  2. Potential Plaintiffs:
  3. What can Plaintiffs recover:
A
  1. Yes ex. promissory note
  2. Anyone w/ possession or right to possession
  3. fair market value at time of conversion or, replevin
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

31A

  1. Def keys car on plaintiffs door, trespass to chattel or conversion and remedy:
  2. Def sledge hammers all over plaintiffs car, trespass or conversion and remedy:
A
  1. Trespass, cost of repair 1k

2. Conversion, cost of replacement 25k

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

32

5 defenses to intentional torts:

A
  1. consent
  2. self defense, defense of property or others
  3. privilege of arrest
  4. necessity
  5. discipline
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

42* reworded

  1. A person can use a reasonable amount of force tp prevent a commission of a tort against their property but under what circumstances is this limited:
  2. Mistake allowed:
  3. When is mistake not allowed:
A
  1. if an actor has a privilege to enter land (necessity, right of re-entry, recapture) that privilege supersedes land owners right to defend property
  2. yes
  3. entrant had privilege to enter (#4) unless entrant enters with out notice
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

44

  1. Can one re-enter and forcefully take land back:
  2. Can one re-enter and forcefully take back chattel:
  3. Exception to 11:
A
  1. N0 - common law yes but now must use procedures
  2. No
  3. Force may be used when in “hot pursuit”
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

47

  1. Can owner enter wrongdoers land to reclaim chattel:
  2. But must always re above:
  3. Can owner enter innocent party land to recover:
  4. But must always____and will be______.
A
  1. Yes - reasonable time and manner
  2. make a demand for return
  3. Yes - readable time and manner
  4. demand return / liable for any actual damages caused by entry
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

48

  1. If chattel is on innocent third parties land because of owners fault what does this do:
  2. Shopkeepers and mistake:
  3. How much force may be used:
A
  1. Cuts of right to enter land and recover
  2. Have a right to detain if reasonably think they person “shoplifted” goods
  3. reasonable
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

53

  1. Two types of Necessity:
  2. What is the liability of action under 2nd type:
A

Public - act is for public good

Private - act is for benefit of a limited number of people

  1. actor must pay for injuries caused unless benefits property owner
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

53B*

  1. X is walking and gets stuck in a horrible blizzard. Only structure around is a farm house. X breaks window and takes shelter in unoccupied farm house . T sues for window, T prevail:
  2. What if X goes through unlocked front door and T sues for Trespass $1 nominal damages T prevail:
  3. Why the different result between 1 and 2:
A
  1. Yes - no necessity defense, X did for own benefit
  2. No - no harm done
    - “not” liable for punitive or nominal damages re a
    tort that of trespass in necessity
  3. In 1 there were actual damages in 2 damages
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

53C

  1. same hypo (53B) what if T is home and tells X you can’t stay here and pushes him out into the blizzard an X gets frost bite and looses an arm. T liable:
  2. What type of necessity are 1 -3 53B and 53C cards?
A
  1. Yes - X had a tight to take sanctuary
    - as long as “emergency’ continues P can’t throw
    D of the land
  2. Private Necessity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

56A

Defamation 3 elements:

A
  1. defamatory statement
  2. publication
  3. damage Plaintiff’s reputation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

56B

How does falsity of statement work under common law re defamation:

A

Traditionally common law presumed that a statement was false once Plaintiff proved that the statement was defamatory

see. defenses and truth re private matter

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

57

  1. Defamatory language is:
  2. Can opinion be actionable;
  3. Name calling actionable:
  4. Can a dead person be defamed:
  5. Can a corporation be defamed:
A
  1. language tending to adversely affect ones reputation
  2. only is based on certain facts
  3. No
  4. No - must be a living person
  5. Yes
26
Q

61

Damages to Plaintiffs Reputation

  1. Libel what is it and what damgages need to be proved:
  2. Slander what is it and what damages ned to be proved:
    2a. Unless:
A
  1. written or printed word. Plaintiff does not need to prove special damages and general damages are presumed.
  2. spoken word, Plaintiff needs to prove special damages unless falls into special per se category
    2a. Per se(4): profession, disease, crime moral turpitude, unchaste
27
Q

66 Defenses to Defamation

  1. Absolute privilege (5):
  2. Qualified privilege (3):
A
  1. judicial proceeding
  2. legislative proceeding
  3. federal executive officials
  4. compelled broadcasts
  5. spouses
  6. report official proceeding
  7. defense of ones actions, property or reputation
  8. public reason / police report
28
Q

67E

Defamation 1st And / Public Concern elements (5):

A
  1. defamatory statement
  2. published
  3. damages Plaintiffs reputation
  4. false
  5. fault of Def
29
Q

67F

  1. X newspaper writes story that T Mayor is taking bribes. If T sues x newspaper for defamation must T mayor prove T is taking bribes:
A
  1. Yes - must prove false to win b/c is a matter of public concern
30
Q

64 *

Plaintiff must prove Def re
a. fault of def
b. damage
FOR:

  1. Public official or person
  2. Private person matter of public concern
  3. Private person matter of private concern
A
  1. a. malice
    b. presumed damges
  2. a. negligence
    b. actual damages unless malice used then presumed
  3. a. Plaintiff need not show fault
    b. presumed
31
Q

85

Duty of care is owed to foreseeable Plaintiffs. What happens if DEF breaches foreseeable duty to (P1) and also causes injury to (P2) who was unforeseeable: (2views)

A
  1. Foreseeable Danger Zone - DEF is liable only if reasonable person would have foreseen risk of injury to P2 (fireworks train case)
  2. Everyone is Foreseeable - DEF is liable if P2 established existence of duty was breached to P1
32
Q

99

To establish Attractive Nuisance Doctrine: (4)

A
  1. dangerous conditon land owner is or should be aware of
  2. owner aware or should be aware children in area
  3. condition likely to cause harm
  4. expense to remedy slight compared to harm
33
Q

100

  1. Licensees: ex
  2. Duty owed Licensees: (2)
  3. Is there a duty to repair by possessor to Licensees:
A
  1. one who enters property with permission
    ex. social guest
  2. warn or make safe dangerous condition know to owner that licensee cannot discover
  3. reasonable care in “active operation of land”
  4. No
34
Q

101

  1. Invitee: ex.
  2. Duty owed Invitee: (3)
A
  1. one who enters land in response to invitation and benefit of landowner
    ex. grocery store, ballgame, amusement park
  2. warn make safe dangerous condition
  3. inspect and repair
  4. erasable care in “active operation land”
35
Q

106 STATUTORY STANDARD OF CARE

  1. A clear statute may establish a duty of care and may allow Plaintiff action if: (2)
  2. How does excuse of violation work:
  3. So violation of statute can be negligence per se, does compliance of statute establish duty of care:
A
  1. Plaintiff in protective class
  2. Statute designed to prevent type of harm
  3. Violation of statute ok if compliance would have caused more danger
  4. No
36
Q

112

  1. Peril due to DEFs conduct duty to act:
  2. Special relationship between parties duty to act:
  3. Duty to control third person exist:
A
  1. One has a duty to assist someone he has neglegenlty or innocently placed in peril
  2. parent child / innkeeper / common carrier
  3. NO - unless have control over them
37
Q

114 NEGELIGENCE

  1. Custom and Usage:
  2. If DEF acted according to Custom and Usage are they automatically NOT liable:
  3. DEF Violation of Statute can make his conduct:
  4. What does P still need to show re violation of statute:
A
  1. what others do in the industry may set the standard
  2. NO - trier of fact may say all industry acting negligent
  3. Per se a breach of duty
  4. causation and damges
38
Q

115

  1. Res Ispa Loquitur:
  2. What does P need to show: (2)

ex.

A
  1. occurrence of accident implies breach of duty / negiligence
  2. accident that occurred would NOT normally occurred unless someone was negligent
  3. negligence attributed to DEF
    ex. sponge left in patient after surgery
39
Q

132 STRICT LIABILITY

  1. Strict Liability elements; (3)

ex.

A
  1. nature of DEF activity very dangerous
  2. dangerous activity actual and proximate cause
  3. damage to P person or property
40
Q

133A

  1. X’s dog has bitten 2 people. Y is over X house and Y gets bit. Y sues under strict liability, Y prevail? What if X dog never bit before? What if Y is a trespasser?
  2. What if X has a wild animal and bites Y under all above circumstance:
  3. What if X took extreme precautions re his wild animal:
A
  1. YES -X had prior knowledge
  2. NO -Y must prove negligence
  3. NO -Y must prove negligence
  4. X is strictly liable because its a wild animal
  5. Does not matter strict liability
41
Q

E

  1. What do you write on essay if no special duty ((ie. professional) exists re duty of care on an essay:
  2. What do you write on essay if there is a special duty (ie. professional) exist re duty on an essay:
  3. What do you NEVER write re professional standard ex. dr.
A
  1. because no special standard of duty applies hers, the ct will use the general standard of a “reasonable prudent person.”
  2. the “custom” of the profession sets the duty of care
  3. the standard of a “reasonable” dr.
    * need to use CUSTOM of profession
42
Q

G Anticipated Trespasser Duty Owed

  1. DEF (land owner) owes a duty to an Anticipated trespasser if (4):
    (different than attractive nuisance doctrine)
  2. what is the phrase that summarizes the above:
A
  1. artificial condition
  2. highly dangerous
  3. concealed
  4. land owner had knowledge

“man made death trap”

43
Q

107

  1. Negligent Infliction of Emotional Stress: (2)
  2. Danger zone is:
  3. What must P show re physical symptoms:
A
  1. P in danger zone
  2. P suffer physical symptoms / mental w/ physical
  3. P shows distress caused by a threat of physical impact
  4. P must show the DEFs conduct caused P physical symptoms:
44
Q

109

  1. DEF may be liable for causing P emotional distress b/c of special relationship between P and D ex:
  2. P may be able to recover for emotional stress w/out proving 2 requirements (danger zone/physical symptoms) if DEF negligence creates great likelihood of stress. ex: (2)
A
  1. DEF doctor misdiagnosed P patient
  2. erroneous report of relatives death
  3. mishandling of relatives corpse
45
Q

P * Neg Infliction of Emotional Distress

  1. X runs a red light a barley misses hitting Y pedestrian. T observers from corner. Y just after X passes has a heart attack out of fear. Y sues for NIED. T sues for NIED b/c he has horrible nightmares and can’t sleep. Y prevail: T prevail:
    25a. What if Y was hit by car and T was Y’s mother, T recover for NIED:
A

Y - YES in “danger zone” and had physical symptom heart attack

T - NO, not in danger zone

25a. YES - despite being outside danger zone b/c of special / familial relatioship

46
Q

T

  1. “but for test” - ex. car red light
  2. Joint Causes - Substantial Factor - ex. forest fire
  3. Alternative Cause - ex. shot gun accident
A
  1. “but for” DEF running red light, P would not have been injured
  2. X throws cigarette out window, starts a fire in forest. T camp fire is left burning and starts fire in forrest. Fires combine and burn down Y’s home. X and T both actual liable
  3. X, Y and T all shoot a shotgun at bird. Y gets hit but does not know by X or T gun, Y can sues both and X and T and they would have to show it was not their pellet or they would be liable.
47
Q

137

Products Liability Claim 4 elements:

A
  1. DEF merchant
  2. Product had Defect
  3. Not altered since left DEF
  4. Plaintiff using product in foreseeable way
48
Q

139 TYPES OF DEFECT (product liability)

  1. Manufacturing Defect:
  2. Design Defect:
  3. Inadequate warning:
  4. Can prescription drugs and medical devices warning be given to “‘learned intermediaries”: ex.
A
  1. a product emerges from manufacturer more dangerous than other product (one bad apple)
  2. all products in line are dangerous
  3. manufacturer fails to warn about dangers of product
  4. yes - a pharmacist gives warnings
49
Q

140

Plaintiffs prove / show what to prevail for:

  1. Manufacturing defect:
  2. Design defect: (3)
  3. How do Gov, safety standards work:
    (noncompliant - compliant)
A
  1. product failed to perform safely as ordinary consumer would expect
  2. Def could have made SAFER
  3. low impact on PRICE
  4. low impact on UTILITY
  5. products non-compliance establish product defective. compliant evidence product evidence product is not defective nut not conclusive
50
Q

140B

  1. X co. makes snow blowers. Snow blower works w/ a blade. Snow gets stuck, Y puts hand inside to remove and gets cut. There was no warning re blade. Y sues under strict liability, failure to warn / lack of information,. Y prevail:
  2. Same as above but DEF adds small warning w/out and explanation. Y prevail:
  3. Crib ex. baby head stuck in slats (C. 140A) what if X co. had put a warning on Crib stating watch babies head. Y prevail”
A
  1. YES- failure to warn, danger NOT obvious
  2. YES- inadequate warning
  3. YES -can’t use a warning to defeat a Design Defect
51
Q

146 PRODUCTS LIABILITY

  1. What type of damages must be shown:
  2. Can a P recover on a sole claim of economic loss as the damage:
A
  1. injury or property

2. No (could be brach of K tho)

52
Q

148

  1. Strict Liability P shows product is ____ and was ____when _____ DEF control.
  2. Can a retailer be held liable even though NO opportunity to inspect:
  3. Can a P rely on interferance if difficult to establish a product ws defective when left DEF control:
A
  1. defective, detetive, left
  2. Yes
  3. Yes
53
Q

158A NUISANCE

  1. Is nuisance a separate tort itself:
  2. So what categories does nuisance fit into: (3)
  3. 2 types of Nuisance:
A
  1. No part of class of torts
  2. intentional
  3. negligent
  4. strict liability
  5. PRIVATE
  6. PUBLIC
54
Q

155

Private Nuisance is:

A
  1. substantial, unreasonable interference w/ another private individuals property they possess
55
Q

156 PRIVATE NUISANCE

  1. Substantial interference:
  2. Unreasonable interference is viewed by looking at:
  3. People are allowed to use their land…____
A
  1. offensive, inconveinant or annoying to average person
  2. DEF’s reasonable use of land and he severity of injury on the P
  3. reasonable way considering the neighborhood
56
Q

161

  1. No one actor is liable for all damage by others ex.
  2. Is contributory negligence a defense to a nuisance claim:
  3. Can P still sue for Nuisance if they purchased the land to an already existing nuisance:
A
  1. 10 steel mills pollute a stream. Each steel mill is only liable for the pollution they caused.
  2. No -unless P is using negligence theory
  3. Yes -unless P purchased just to bring suite
57
Q

163

  1. Are intentional Torts conducted by employees w/in scope of employment:
  2. 3 exceptions:
  3. Employers who negligently select a supervisor can be held liable under _____ theory but not ____ ____.
A
  1. generally NO
  2. Force Authorized by Employer - bouncer
  3. Friction Created by Employer - repossessor
  4. Further Business of Employer - remove crowd
  5. negilgence - vicarious liablity
58
Q

174

  1. Contribution;
  2. Comparative Contribution:
    Vs.
  3. Equal Shares Contribution:
  4. Must the Contribution DEF have liability:
A
  1. Allows DEF who paid more than his share to have a claim against the other liable parties
  2. contribution is imposed in proportion to fault
  3. DEFs pay equal shares regardless of fault
  4. Yes
59
Q

175

  1. Indemnity:
  2. Available in 4 circumstances
A
  1. entire loss is shifted between trotfeasers
  2. by contract
  3. vicarious liability
  4. strict products liability
  5. indemnification degree of fault

ex. retailer who negligently sells a product may seek indemnification from manufacturer who is MOST at fault

60
Q

177B

CONSORTIUM Remedy is claimed by a ______for

1.
2.
3.

A
  1. loss of services
  2. loss of companionship
  3. loss of intimacy

Torts (1 decks)

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