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BAR STUDY > Torts > Flashcards

Torts Flashcards

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1
Q

Battery - elements

A

1) harmful or offensive contact,
2) with π’s person,
3) caused by ∆’s intentional act.

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2
Q

Assault - elements

A

1) ∆’s intentional act,
2) causes π reasonable apprehension,
3) of imminent battery.

NB: words not enough.

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3
Q

False imprisonment - elements

A

π acts 1) intending to restrain,

2) another person,
3) to a bounded area,
4) and does so.

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4
Q

IIED - elements

A

1) intentional or reckless,
2) extreme/outrageous conduct,
3) which causes π severe emotional distress.

NY: CoA for intentional mishandling of corpses.

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5
Q

Defenses to intentional torts

A

1) consent (express/implied)
2) self-defense (deadly/non-deadly/property)
3) recapture of chattels
4) disciplining children
5) arrest
6) Private necessity (imperfect defense)
7) Public necessity (unqualified privilege)

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6
Q

Self-defense specifics

A
  • Reasonable belief & proportionality req’d
  • Initial aggressor: no defense unless π responded to non-deadly force w/ deadly force
  • 3rd parties: no liability to them if self-defense is legit and didn’t respond negligently
  • Property: non-deadly, reasonable force OK to prevent tortious harm to property
  • Defense of others - OK

NY: Yes duty to retreat unless in home/curtilage AND not aggressor.

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7
Q

Recapture of chattels - specifics

A

Reasonable force OK to reclaim personal prop wrongfully taken by another. If original taking was lawful, only peaceful means OK

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8
Q

Arrest - specifics

A

1) Misdemeanors: only if mis-D is breach of peace in the presence of citizen/cop
2) Felonies: reasonable belief felony committed and that arrestee committed it (cops), OR felony actually committed and reasonable belief arrestee did it (citizens).

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9
Q

Trespass to chattel - elements

A

1) intentional,
2) interference w/ π’s right of possession,
3) which causes damage

  • NB: interference = taking, using, intermeddling.
  • Damages = loss of use or repair costs.
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10
Q

Conversion - elements

A

1) intentional,
2) possession/interference w/ chattel
3) so serious that π is deprived of chattel.

  • Cf. trespass to chattel: conversion is more serious interference.
  • Damages = full value @ time of conversion or replevin.

*NY: good-faith purchaser liable iff 1st informed of conversion and then refuses to return.

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11
Q

Private nuisance

A

1) unreasonable & substantial interference
2) with another’s use/enjoyment of property.

  • NB: no recovery for thin-skinned π; but yes recovery for thick-skinned πs.
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12
Q

Trespass - elements

A

1) intentional
2) physical invasion of another’s land

  • NB: ∆ need not enter land himself.
  • Damages = nominal OK.
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13
Q

Public nuisance

A

1) unreasonable interference
2) w/ right common to public at large.

-Remedy = suit/prosecution by gov’t UNLESS π suffers harm that is diff in kind.

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14
Q

Necessity defense

A
  • Private: ∆ can use π’s property to extent nec’y to save life or more valuable property. Liable for the actual damages however.
  • Public: ∆ may reasonably damage π’s property when nec’y to protect large number of people. absolute protection from liability
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15
Q

“Reasonable Care”

A
  • Takes into aacct physical but not mental disability
  • Scaled up for those w/ superior competence, OR for pros (SoC = practitioners in that community), OR innkeepers/carriers to guests:
  • Kids = reasonable kid of same age, experience UNLESS doing adult activity (adult standard). Usually no liability for kids under 4.
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16
Q

Informed Consent

A

Docs must explain risks beforehand and get consent unless: a) patient unconscious and no relative there, b) risk commonly known, OR c) disclosure would be harmful to this partic patient

NY: P must show failure to make timely disclosure, reasonable person wouldn’t consent if informed, and proximate causation.

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17
Q

Guest Statute

A

Some states lower standard of care that drivers owe passengers; must show gross neg.

NY: No guest statute; drivers owe passengers reasonable duty of care.

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18
Q

Affirmative Duty

A
  1. Recue initiated already (but Good Samaritan Laws protect pro rescuers who use due care)
  2. Placing victim in peril: even if non-negly
  3. Duty created by K
  4. “By authority”: parent-child or employer-employee
  5. Special relationship
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19
Q

Res ipsa

A

Tried of fact may infer negligence in absence of direct evidence and:

  1. accident is kind not ordinarily occurring w/out neg
  2. instrumentality was exclusively in D’s control
  3. not caused by P
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20
Q

Wrongful Life/Fetuses

A

Fetuses owed duty of care if viable.

Mother can usually recover costs of labor and/or special care for failure to diagnose defect or perform contraceptive procedure correctly.

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21
Q

Respondeat Superior

A
  • Employer liable for torts caused by employees w/in scope of employment (only liable for intentional torts if force is part of job)
  • Only liable for indie Kors if neg in selecting them, OR inherently dangerous activity, OR non-delegable duty owed to public or specific P
  • Indemnification: employer who pays out can seek complete reimbursement from employee.
22
Q

Neg Entrustment

A

Owner of car is only liable for borrower’s torts if he inez of user’s dangerous propensities. BUT “permissive use statutes” make owner automatically liable, AND “family use statutes” make owner liable for family-member drivers.

NY: Permissive use law makes owner vicariously liable for anyone allowed to USE (not nec’ly drive) the car. No liability for their intentional torts though.

NB: in NY, failure to wear seatbelt is inadmissible for comp fault purposes, but is admissible to limit P’s recovery to injuries that would’ve been suffered anyway.

23
Q

Parental Vicarious Liability

A

Parents are not liable for kids’ torts UNLESS child is parent’s agent OR parent knew of need to supervise/control child and did not.

NY: NO liability for neg supervision unless entrusted child w/ dangerous instrument OR aware of vicious tendencies. Liability lmtd to $5K for intentional acts of kids over 10.

24
Q

Dram Shop Acts

A

Make bar owners SL for selling booze to someone who later, bc of their drunkeness, injures another.

NY: Recovery allowed if buyer was “visibly intoxicated.”

25
Q

Govt Immunity

A

FTCA waives fed immunity except as to most intentional torts, and for gov’t contractor in products liability case if product conformed to specs & firm warned govt of possible danger. Same for states.

Municipalities: Immune when acting in trad govt functions but not “proprietary” functions (i.e., those trad done by private company). (NY: 90 day notice, then sue w/in 1 yr)

Pub duty rule: city immune from suit based on failure to perform duty owed to ALL citizens, unless some special relationship caused reliance on govt performance.

26
Q

“Pure Several Liability”

A

Minority view saying each tortfeasor is only liable for their share of fault.

27
Q

Contrib Neg

A

@CL, complete bar to recovery. But no defense to intentional torts or gross negligence.

“Last Clear Chance” rule allowed recovery if D had last chance to avoid the harm.

NY: No contrib. neg.; pure comparative regime.

28
Q

Assump of Risk

A

Generally, express assumption of the risk will bar recovery. Implied assume can bar in contrib neg jxes OR reduce recovery in comp neg jxes.

NY: Express assump (P knew of specific risk, and voluntarily assumed it) completely bars recovery. Primary AoR (risk obvious and inherent in activity, and P voluntarily engages in activity) also bars recovery. BUT no disclaiming liability from employees by owners of rec facilities open to public for a fee.

29
Q

“Abnormally dangerous activities”

A

Def = not ordinarily engaged in, inherent risk or serious harm, cannot be performed safely.

30
Q

SL for Animals

A

4 Rules: Only SL for harms to trespassers if vicious watchdog. Liable for harm BY trespassing animals iff reasonably foreseeable. SL for harm from wild animals if had reason to know or part of their wild nature (unless P caused it). SL for injured from domestic animals only if you have reason to know.

31
Q

SL & P’s Neg

A

Contrib neg usually doesn’t bar recovery in SL, but assumption of the risk does. In comp fault jxes, P’s neg just reduces recover as in neg cases.

NY: Comp. neg. in SL cases as well.

32
Q

Defamation - Elements

A
  1. D’s defamatory language
  2. concerning P
  3. is published to 3d party who understands defamatory nature
  4. resulting in damage to P’s rep
Libel = defamation by written or otherwise permanently recorded form
Slander = defamation by any other form of communication

TRUTH is absolute defense.

33
Q

Defamation - Public vs. Private Figures

A

Public figure => must prove actual malice to recover. Malice = knowing falsity or reckless disregard for truth (failure to fact-check not enough w:out serious doubts).

Private figure, public concern => must prove malice OR negligence.

Private figure, private concern => only need neg.

34
Q

Defamation - Damages

A

Libel -> need only show general damages from harm to rep.

Slander -> reqs showing of “special damages,” meaning either specific econ harm OR slander per se.

Slander per se = 1) directly relating to P’s professional ability, 2) “loathsome disease,” 3) sexual misconduct, 4) claiming P guilty of crime, OR - in NY - 5) P is gay.

35
Q

Invasion of Privacy Torts - MBE

A

1) Unreasonable Intrusion on Privacy (no pub/sharing needed)
2) False Light: D made known public facts about P that put him in (reasonably objectionable) false light
3) Misapprop of right to publicity: unauthorized use of likeness for comm gain
4) Pub Disclosure of Private Facts: iff highly offensive AND not newsworthy

I FLAP = intrusion, false light, appropriation, private facts.

NB: Truth is NOT a defense.

36
Q

Privacy Torts - NY

A

Only misappropriation, which survives death.

37
Q

Intentional Misrepresentation

A
  1. Misrep of material fact
  2. Through active concealment or failure to disclose in case of duty to disclose
  3. w/ intent to induce reliance on misrep

Damages -> no nominal damages. must be actual pecuniary/consequential damage.

38
Q

Neg. Misrep.

A 
1 Misrepresentation
2 breach
3 causation
4 justifiable reliance
5 damage

Usually only available in commercial transactions, and D only liable to party rep was made to OR those D knew would reasonably rely on it.

39
Q

Intentional Interference w/ K

A

1 D knew of K
2 intentionally interfered resulting in breach
3 w/out justification
4 causing damage to P

NY: “inducing breach of K”

40
Q

Duty to Those on Your Land

A

NY: Landowner owes duty to maintain property in safe condition to all persons foreseeably at risk. Status as trespasser may affect foreseeability.

MBE: Must warn known trespassers of concealed artificial dangers, but no duty re natural conditions or to unknown trespassers. Must warn licensees (guests) of known dangers and use reasonable care on the land. Must warn invitees as above + conduct reasonable inspections and make it safe for invitees.

41
Q

Attractive Nuisance Doctrine

A

Landowner may be liable to kid trespassers if:

1 artificial condition exists where kids likely to trespass
2 condition poses unreasonable risk of serious injury or death to children
3 children bc of age can’t appreciate the risk
4 cost to change is slight compared to risk to kids
5 landowner fails to take reasonable care to protect kids

42
Q

Collateral Source Rule

A

Benefits/payments to P from outside sources are not credited against liability of tortfeasor. EXCEPT: payments by the tortfeasor or those acting for him.

NY: NO CSR and judgments are reduced by outside payments.

43
Q

NIED

A

Zone of Danger: recovery for emotional harm OK if he feared for own safety b/c of D’s conduct.

Majority rule: no recovery unless some physical manifestation of emotional distress (night,are or shock is enough).

NY: only allowed w/out physical injury if: 1) special duty owed to P but no threat to his safety; 2) breach of duty to P creating unreasonable risk of physical harm; OR 3) P sees injury to immediate family while in zone of danger.

44
Q

Punitives Against Employer

A

NY: only available for torts of employee when:

1) gross neg in hiring
2) managerial responsibilities were delegated to employee, OR
3) employer authorized/ratified tortious conduct

45
Q

“Equitable Share”

A

NY: tortfeasor 50% or less at fault is liable only for that equitable share of non-economic damages. Econ damages still follow J&S L. Doesn’t apply to car crash or workers comp.

46
Q

Scaffold Law

A

NY: all Kors, owners, and agents except for 1-/2-fam homes must erect scaffolding during construction and are SL for harm from falls or falling objects.

47
Q

Failure to Warn

A

Def: foreseeable risk of harm, not readily recognizable by ordinary users, could have been reduced by reasonable instructions/warning.

NY: mfr not liable for “substantial” post-sale modification under design defect, but may be for failure to warn against such modification.

48
Q

Comp Fault - NY

A

NY has pure comp fault regime but preserves assumption of the risk as total bar to recovery. AND P cannot recover if guilty of serious crime.

Applies to SL products liability claims the same as in neg actions.

49
Q

No-Fault Auto Insurance

A

Req’d in NY. Covers up to 50K in econ loss. No tort suit unless: Serious injury, Uninsured motorist, or Econ loss exceeds 50K (S.U.E.).

50
Q

MFRing Defect

A

Def: product defectively mfr’d, defect existed when it left ∆’s control, it caused π’s injury, while using it in reasonably foreseeable way.

“Defectively mfr’d” = departed from mfr’s own intended design.

51
Q

Design Defect

A

Def: product defectively designed, defect existed when left ∆’s control, caused π’s injury, while π used in reasonably foreseeable way.

“Defectively designed” = two tests:

  • Consumer-expectation test: product is dangerous beyond expectation of ordinary consumers
  • Risk-utility test: reasonable alternative design (i.e., economically feasible) was available and failure to use it rendered product not reasonably safe.

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