Torts Flashcards
When does a Tort occurs?
When a person violates a duty to others
What is a tort?
Is a civil wrong doing that is the basis for legal cause of action
When does a Tort occurs?
When someone deliberately or through carelesness causes harm or loss to other person or its property.
What is an intentional tort?
Is a category of torts that describes a civil wrong resulting from an intentional act.
Mention few intentional torts
Assault
Battery
False imprisonment
What is assault?
Is the threat of immediate harm or offensive contact
What is battery?
Unauthorized, harmful or offensive physical contact with another person
In battery what is the interest protected?
The persons reasonable sense of dignity and safety
Does battery has to be a direct contac?
No, it could be a stone trown, a bullet, poison, pulling a chair.
How is from target to actual victime called?
Doctrine of transferred intent
What constitutes false imprisonment?
The intentional confinement or restrain of one person without authority or justification and without that persons consent.
Mention few reasons why a suspected shoplifter can be detained without the store been liable for false imprisonment?
There are reasonable ground of suspicion
The suspect is only detained for a reasonable amount of time
The investigations are done in a reasonable manner.
What is defamation of character?
Is false statements by others
For defamation, what does the plaintiff has to prove?
That the defendant made an untrue statement of fact about the plaintif and
That the statement was intentionally or accidentally published to a third party
What are the merchants protection statutes?
There are reasonable ground for suspicion
That the suspect is detained for a reasonable time
That investigations are conducted in reasonable mater
What are these?
There are reasonable ground for suspicion
That the suspect is detained for a reasonable time
That investigations are conducted in reasonable mater
The Merchant Protection Statutes
What does publish mean?
That a third person saw or heard the untrue statement
What does SLANDER mean?
That the defamation statemen is oral
If the defamation statement is oral it is called?
Slander
What does Libel mean?
That the false statement appears in a book, letter, newspaper, movie, radio or video
If a false statement appears in a book, movie, radio, Tv, video or newspaper it is called?
Libel
Is an opinion the same as statement of fact?
No, an opinion is protected from defamation
What is truth?
It is a complete defense
What is a complete defense called?
A TRUE
What does actual malice mean?
That the defendant made the false statement knowingly or with reckless disregard of its falsity
In what case did the Supreme Court held that public officials cant recover from defamation unless they can prove the deffendant acted with ACTUAL MALICE.
New York Times v. Sullivan
In a Misappropiation of the right to publicity the plaintiff can
Recover unauthorized profits
And
Obtain an injunction
What is invation to the right of privacy?
Is the violation of the persons right to live without being subject to unwarranted and undesired publicity
Give examples of Invation of the Right of Privacy
Reading others mail and wiretapping
What is IIED?
Intentional Infliction of Emotional Distress
What does a plaintiff has to prove to an IIED?
That the defendas conduct was of extreme degree and intolerable in a civilized society.
That his mental distress was sever and presented nausea, ulcers and headaches.
Name types of Properties in Torts
Real property and
Personal property
What is real property?
Land or anything attached to it
What is personal property?
Cars, jewlery, cloths, pets
What is Trespass to land mean?
Is the interference with the owners right to exclusive possesion of the land
Give two Intentional
Infliction of Emotional Distress
Trespass to land
And
Trespass to personal property
What is traspass to personal property?
Is when one person injures anothers personal property and interfears with the property enjoyment
How is the negligence in a Tort
Unintentional
What is negligence?
Is the failure to act in a reasobable way or not to be prudent.
It is the omission to do something which a reasonable person would do.
What are the elements of negligence?
Tortfeasor owed a duty of care to plaintif
The defendant breached that duty
The plaintiff suffered injury
The breach cause the injury
What is Duty of Reasonable care?
Is the obligation we owe each other not to cause any harm or risk of harm
What is a Business duty?
To make safe products and not to cause accidents
Give example of personal duty
Drive carefully, not to push anybody on the escalator
Not to live skateboards on a side walk
What is an objective, careful and conscientious person of act in the same circumstances called
Reasonable persons standard
What does subjective intent mean?
That he didnt mean to do that
What is a breach?
Is the feilure to exercise care
It is the failure to act as a reasonable person would act.
Could be an act or the failure to act.
Is every breach actionable?
No, unless there is an injury.
No injury no tort
Cause-in-fact equals to?
But for
For cause- in- fact the plaintiff must do what?
Produce suficiente evidence of cause- in-fact
Give an example of cause-in-fact case
Caranna v. Eades
The kid foling from the hotels balcony
What is a concurrent cause case?
When two or more events of negligence result in an injury
In a but for test what happens to the defendant?
He is prevented from avoiding liability
When does the substancial factor test applies?
When two ore more events contribute an undivisible injury
What does preponderance mean?
More likely than not
More likely than not is?
Preponderance
What does proximate cause do?
It determines the scope of the defendants liability
What is legal duty concerned with?
The Foreseeable risk in the general sense
What is proximate cause concerned with?
If the defendant could foresee the risk which cause the accident that injured the plaintiff
Proximate clause equals to
Foreseeability
Who introduced the foreseeability concept?
Andrews J. In the seminal case of
Palsgraf v. Long Island RR
What is the foreseeable concept applied for in courts?
To limit the defendants liability on the basis of fairness and policy consideration
What does RES IPSA LOQUITUR mean?
The thing speaks for itself
How is the thing speaks for itself called in italian?
Res Ipsa Loquiture
When does RES IPSA LOQUITURE applies in court?
If a deffendnt is in control of a situation in which the plaintif was injured
When might a plaintif have difficulty on proving negligence?
When the defendant is in control of a situation in which the plaintif was injured and has superior knowlwdge of the circumstances sorrounding the injury
What does the RES IPSA LOQUITURE doctrine raises?
A presumption of negligence and switches the burden to the defendant to prove the he was not negligent
When does RES IPSA LOQUITURE applies?
The deffendan had exclusive control over the instrumentality or situation that caused injury
The injury had not occurred BUT FOR someones negligence
What is Liability of landowners?
Is the owners or renters of real property duty to protect visitors from injury
What does the liability depends on?
On the visitors status
What kind of duty are the invitees and licensees owed?
The duty of ordinary care
What kind of duty are traspasees owed?
A duty not to willfully injure a traspaseer.
What are the defenses against negligence?
1- supersiding or intervining event 2- assumption of the risk 3- contributory negligence 4- comparative negligence 5- doctrine of strict Liability
What is Supersiding or intervining event?
Is when a person is liable for a forseeable event
What can a defendant raise as defense for liability?
A superseding event
What does foreseeable mean?
To see or know beforehand
What is assumption of risk?
When the plaintiff knows the risk and assumes it
What is contributory negligence?
A plaintif is partially at faul for the injury
What is comparative negligence?
Damages according to the portion of the fault
What kind of negligence has Texas addopted in court?
Partial comparative negligence
In comparative negligence what is the percentage taken under consideration?
If Is the plaintif is 50% or more negligent he gets nothing
What is DOCTRINE OF STRICT LIABILITY?
Is the liability applied to business of selling
When does the Doctrine of Strict Liability applies?
For products not services
Who is liable under the Doctrine of Strict Liability?
All parties in the line of distribution
In Texas, what is the Statute for Medical Malpractice?
2 years
What is the discovery rule?
The discovery Rule does not apply in Texas.
The malpractice starts when it happens
What is the cap for Medical Malpractice in Texas?
$250,000
What change the Medical Malpractice in Texas?
The Tort Refom
What do you have to consider for Medical Malpractice?
The statutes of limitation
The Discovery Rule
The tort reform
What do you have to consider in Legal Malpractice?
The Statutes of Limitation
What you must prove
What is Damage?
It is a physical harm caused to something that impairs its value, usefullness or normal function
What is damages equal to?
Money
Name the kinds of Damages
Compensatory damages
Punitive damages
Speculative damages
Statutory damages
How is Compensatory damages also called?
Actual damages
What does compensatory damages include?
Medical cost Repair or replacement costs Lost wages Pain and suffering Loss of employment
How are compensatory damages normally divided?
Into economical and
Non-economical damages
What are punitive damages also called?
Exemplary damages
How are the damages awarde in punitive damages?
As a penalty or punishment to the defendant
What are punitive damiges awarded for?
Non compensatory, non economic or economic
How is speculative damages also called?
Future damages
Explain speculative damages
Are damages that have not occured but are expected to occure as result of the injury
What are Statutory damages?
Damages that are set by Statute
What are Attorneys fees?
They are damage
How can attorneys fees be set?
By statute or by contract
What is IOLTA
Interest On Lawyers Trust Account
What goes into IOLTA?
The money the client pays
Who gets the interest of IOLTA?
The State Bar to fund legal services
What is the case of the baseball game called?
Manning v. Grimsley
What is the car seat case al Kmart called?
Johnson v. Kmart
Name the four elements of negligence
The tortfeasor owed a duty of care
The defendant breached that duty
The plaintiff suffered injury
The injury was caused by the breach
What test requires that the plaintiff prove by a preponderance that if not for the defendants negligence act….
The but for test
If the but for test fails what test does the court supply?
The substantial test
Landowners owe a duty of?
Ordinary care
What is subjective intent?
The duty not to cause harm
Foreseeability equals to?
Proximate care
Res Ipsa Loquitur is?
The thing speaks for itself
Explain the Discovery Rule
The Statute of Limitation start when you discover the injury
Proximate cause has to do with?
Forseability of the risk
All parties in the chain of distribution are…………….
For injuries cause by the defective product
Strictly liable
If someone uses my photo and makes money without my consent, they constitute the civil tort of?
Invasion of the Right of privacy
An unintentional tort is?
A negligent tort
Categories of visitors
Invitees
Traspaseers
Licensees
In a but for test the defendant is prevented from…..
Aboiding liability
In a but for test the defendant is prevented from…..
Aboiding liability
if someone attempts to use my name or personality commercially without my permission, that may be the tort of?
misapropiation to the right of publicity
If a person’s extreme and outragwous conduct intentionally causes severe emotional distress to someone else, that might be?
IIED
………………….is interference with an owner’s right to exclusive possession of land.
traspasee to land
When a person injures, or interferes with the enjoyment of another person’s property, that could be the tort of?
traspasee to personal property
the failure to exercise care is called?
breach
when trying to determine the cause.in.fact in a negligence suit, the court will use the…………………………… test. If that test fails, courts will use the ……………………………test
but for
subtantial test
Invitees and licensees are owed a duty of…………….
ordinary care
If a person knows of, and voluntarily enters into a risky activity, that is known as……………….
asumption of the risk
Explain contributory negligence
when a person breaches the duty of ordinary care and causes injury, s/he can be held entirely or partially responsable for the resulting injury
explain partial comparative negligence
if the plaintiff negligence excedes 50% of the responsibility s/he is completly forbiden from recovering damages
give example of a non-economic damages
pain and suffer
the purpose of punitive damages is to————-
punish
what goes into IOLTA
the unearned attorney’s fees
