Torts - Adaptibar Flashcards

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1
Q

Is Battery an intentional tort?

A

Batter IS an intentional tort, and a defendant must be capable of forming the intent to commit the act of an offensive or harmful touching of the plaintiff’s person. (a mental intent is necessary)

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2
Q

Need a person intend that harm occur?

A

No, a person need only intend to do the act that causes the harm.

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3
Q

Absent intent, is there a cause of action for trespass?

A

No.

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4
Q

What is a prima facie case for trespass to land?

A

It consists of:

  1. an act of physical invasion of the plaintiff’s real property by the defendant;
  2. intent on the defendant’s part to bring about a physical invasion of the plaintiff’s real property; and
  3. causation
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5
Q

What is the intent required to show trespass?

A

The intent to put the cause into action.

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6
Q

Are children liable for their intentional torts?

A

Yes, when they are capable of forming the requisite intent.

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7
Q

What is the doctrine of transferred intent?

A

If a defendant has the requisite intent for the commission of a battery, his inadvertent touching of a third person will still result in battery

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8
Q

What may a plaintiff recover in a pure comparative rule jurisdiction?

A

The plaintiff may recover his full amount of damages, less the portion attributed to his own negligence.

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9
Q

What is the prima facie case for conversion?

A
  1. an act by the defendant interfering with the plaintiff’s right of possession in the chattel;
  2. intent to perform the act to bring about the interference with the plaintiff’s right of possession;
  3. causation; and
    1. damages
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10
Q

When does conversion occur?

A

When a defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interferes with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff use of the chattel.

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11
Q

What are damages for conversion?

A

The full market value at the time of the conversion.

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12
Q

When is a rescuer a foreseeable plaintiff?

A

A rescuer is a foreseeable plaintiff as long as the rescue is not done recklessly

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13
Q

When is the party being rescued liable?

A

The party being rescued is liable if he negligently puts himself or a third party in peril and the rescuer is injured attempting a rescue

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14
Q

What is the best defense against a negligence claim?

A

You should challenge one of the key elements of negligence: usually foreseeability.

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15
Q

What is a nuisance?

A

A tortious harm that interferes with either private property rights or public rights.

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16
Q

What is a private nuisance?

A

A substantial, unreasonable interference with another private individual’s use or enjoyment of property.

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17
Q

What is a public nuisance?

A

An act that unreasonably interferes with the health, safety, or property rights of the community.

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18
Q

What is needed for a plaintiff to recover damages for a public nuisance?

A

The private injury suffered must be unique damage not suffered by the public at large (unique harms NOT suffered by the public at large)

19
Q

What is the prima facie case for defamation?

A
  1. defamatory language;
  2. of or concerning the plaintiff;
  3. publication; and
  4. damage to the reputation of the plaintiff
20
Q

What must a public figure (i.e. nationally known athlete) or a matter of public concern prove in a defamation case?

A

Falsity and fault by actual malice.

21
Q

When does a party act with actual malice?

A

If he or she has knowledge that the statement was false or a reckless disregard as to the truth or falisty of the statement.

22
Q

What is vicarious liability?

A

It is a form of liability in which the defendant is liable for the actions of someone else (typically raised in an employment/agency relationship)

23
Q

What is the “core” of vicarious liability?

A

the relationship between the parties, such that the defendant had some ability or duty to control the other individual

24
Q

Does the defendant’s belief in the need to use force to defend another need to be reasonable?

A

Yes, it must be at least reasonable.

25
Q

If a defendant makes a negligent mistake about whether the third party is in physical danger, or about whether the defendant’s proposed physical contact will help avoid danger, will the defendant be able to invoke the defense-of-others defense?

A

NO!

26
Q

For a defendant who mistakenly believed a third party was in danger, what is necessary to invoke the privilege of defense of others?

A

The mistake must have been reasonable.

27
Q

Prima Facie case for trespass to land

A
  1. an act of physical invasion of plaintiff’s real property by the defendant;
  2. intent by the defendant to bring about a physical invasion of the plaintiff’s real property; and
  3. causation
28
Q

Is a mistake as to the lawfulness of entry a defense to trespass?

A

No, as long as the defendant intended the entry upon that particular piece of land

29
Q

What does negligence per se require?

A
  1. there was a criminal or other regulatory statute/ordinance/law that imposed a penalty for its breach;
  2. the defendant violated that law;
  3. the harm caused by the violation was the type of harm that the law was intended to protect against;
  4. the plaintiff was in the class of individuals the law was intended to protect; and
  5. the violation of the law caused (both proximate and actual causation) the harm to the plaintiff.
30
Q

Prima facie case for defamation

A
  1. defamatory language on the part of the defendant;
  2. that the defamatory language was of or concerning the plaintiff;
  3. publication of the defamatory language by the defendant to a third person; and
  4. damage to the reputation of the plaintiff

Where defamation refers to a public concern or involves a matter of public concern, the plaintiff also needs to prove:

  1. falsity and
  2. fault by the defendant
31
Q

To prevail against a defendant on defamation of a private person involving a matter of public concern, what must the plaintiff demonstrate?

A

That:

  1. the defamation was false;
  2. the defendant was negligent; and that
  3. the defendant’s negligence caused actual harm to the plaintiff
32
Q

What is the prima facie case for public disclosure of private facts?

A
  1. publication or public disclosure by the defendant of private information about the plaintiff, and
  2. the matter made public is such that its disclosure would be highly offensive to a reasonable person
33
Q

What are the elements of intentional infliction of emotional distress?

A
  1. defendant’s intentional (with purpose or knowledge to a substantial certainty); or reckless
  2. extreme and outrageous conduct;
  3. that causes the plaintiff severe emotional distress
34
Q

When is a manufacturer held strictly liable?

A

When a flaw in the manufacturing process makes a product more dangerous than it was intended

35
Q

Is ordinary contributory negligence a defense in a strict products liability action?

A

No, it is not a defense where the plaintiff merely failed to discover the defect or guard against its existence or where the plaintiff’s misuse was reasonably foreseeable

36
Q

Is assumption of risk a defense in a strict products liability action?

A

It may be, where the plaintiff engaged in voluntary and unreasonable conduct. The plaintiff must use the product despite discovering the defect and being aware of the danger.

37
Q

When may a person engage in slef-defense?

A

When he reasonably believes he is being or is about to be attacked. In general, retreat or an attempt to retreat is not necessary.

38
Q

Does a landowner owe a duty to undiscovered trespassers for dangerous conditions on his premises?

A

No!

39
Q

What duty is owed by a landowner to anticipated trespassers?

A

The landowner owes a duty to warn and make safe concealed artificial conditions that he knows of and that pose a risk of serious bodily harm.

40
Q

When is a trespasser “discovered”?

A

As soon as the landowner is aware of the trespasser’s presence.

41
Q

When is a trespasser anticipated?

A

If the landowner knew or should have known that persons were likely to or frequently did trespass on his property.

42
Q

What standard of care is owed to a licensee?

A

A licensee is one who enters another’s land with the owner’s consent for their own purpose or business (i.e. a social guest). A landowner owes a licensee a duty to warn or make safe known highly dangerous artificial and natural conditions and to exercise reasonable care.

43
Q

What standard of care is owed to an invitee?

A

An invitee is one who enters the land of another in relation to the landowner’s business or as a member of the public who enters the landowner’s land for a purpose for which the land is held open to the public. A landowner owes an invitee a duty to make reasonable insoections to discover, warn and/or make safe concealed artificial and natural conditions that pose a serious risk of bodily harm or death.