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Torts Final Flashcards

1
Q

Trespass to Land

A

(1) intent
(2) to enter land of another
- owner of land owns proximity upwards
- D loses privilege of stay when acts in a manner not authorized/ leaves something on property - & harm need not be foreseeable

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2
Q

Necessity

A

(1) Public (mayor sets house on fire): must yield to convenience of society; D not liable for damages
(2) Private (mooring on dock): privileged for tort (trespass), but still liable for damages

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3
Q

punitive damages

A
  • used to penalize
  • not entitled to PD
  • intentional torts: outrageous; negligent torts: grossly
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4
Q

Defense of Others

A
  • privileged only to the extent victim has
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5
Q

Negligence

A

(1) duty to use reasonable care (Q of law)
(2) breach (Q of fact)

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6
Q

Intent rule

A

a volitional act for the purpose of inducing the result, or actor knows to a substantial certainty that the consequence will result from his action (Garret v. Dailey)
- single intent: intend act
- dual intent: intend act and harm

transferred intent: transferable b/w all torts, except conversion & IIED
also transferable b/w victims (intend hit A, but hit B)

  • mentally disabled have capacity for intent
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7
Q

Doctor’s duty to act/rescue/warn

A
  • DR need only be reasonable
    (a) gives meds that result in dangerous conduct
    (b) hospitals must restrain patients
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8
Q

Authority of Law

A
  • citizen’s arrest as a defense to F.I. claim: reasonable belief a felony has been committed
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9
Q

substantial factor test

A

apply when 2 or more causes
- if harm would still occur, not substantial

  • failure to read label
  • falling down stairs (D multiplies chances, possibility that injury might not have occurred = not enough to break causal chain)
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10
Q

harm to property damages

A

FMV
(1) destroyed = full value
(2) damaged = difference in value
(3) loss of use = value of use (rent)

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11
Q

Intervening causes

A
  • criminal act of arson not foreseeable, but carelessly dropping a match = RR still liable
  • generally, suicide breaks causal chain, but see epilepsy case
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12
Q

duty owed to trespassers

A
  • duty of care where people are expected
  • obligation arises upon discovery
  • duty to maintain land (if close to road only)
  • if frequent trespassers, D has a duty
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13
Q

cases in which D almost always proximately caused injury (always foreseeable, rarely limits D’s liability)

A
  • subsequent med mal
  • rescue doctrine
  • reaction forces (crowd runs when shooting gun)
  • subsequent disease/accident (injured, then falls down stairs)
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14
Q

Intentional Infliction of Emotional Distress (high bar)

A

(1) intent
- must be aware of P’s presence
(2) conduct is extreme & outrageous
- conduct must exceed all bounds tolerated by society
- abuse of authority, vulnerability, freq. of act
(3) causation
- P subjected to mental suffering b/c of D’s conduct
(4) SEVERE emotional distress
- requires some manifestation of distress (therapy, vomiting, etc.)
- (speech impediment case) humiliation not sufficient

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15
Q

Self-defense

A
  • privileged for threat of battery, NOT retaliation or provocation
  • deadly force only if threat of life/limb (maj: stand your ground / min: retreat first)
  • not liable for reasonable mistake (int’l torts: liable)
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16
Q

BPL

A

B<PL Carroll towing (low burden of having bargeman)

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17
Q

collateral source rule

A

P can double recover b/c court can’t look into gratuitous payment / discounted med services

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18
Q

medmal negligence standard of proof

A
  • lesser standard : 33% missed opportunity, 10% survival
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19
Q

3 NPS rules among jurisdictions

A

(1) violation = determinative (headlight case)
(2) rebuttable presumption/PFC (snowy road)
(3) mere evidence

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20
Q

When does a lessor owe a duty to 3rd parties

A
  • condition known to lessor
  • creates danger outside premises
  • negligent repairs
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21
Q

Trespass to Chattels

A

(1) intent to contact/intermeddle
(2) damage to chattel
- physical contact w/ chattel not required (compuserve)
- damage = dispossession, impairment in condition, deprived of use for substantial time, bodily harm to possessor

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22
Q

negligence: public policy implications

A
  • drunk driving case: setting off foreseeable consequences that lead to P’s injury = proximate cause
  • DES cases: cut off at first gen b/c PP favors access to prescription medication
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23
Q

what duty is owed outside the premises

A
  • duty to inspect trees
  • baseballs over stadium (not the mere fact, but the volume)
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24
Q

Consent as a defense

A
  • can be word/acts (ship vax case)
  • scope of consent (bengals case)
  • deceit constitutes an action for lack of consent (DR birth case)
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25
Palsgraf rule
If P outside scope of reasonably foreseeable consequences, D generally does not owe duty
26
No informed consent claim
(1) failed to inform of material risk before consent (2) If P had known, would not have consented (3) unknown conseq DID occur - & DR must disclose personal interest that may affect prof judgment
27
damages for personal injury
court sets max recovery (PFECD) (1) Past p/m pain (2) Future p/m pain (3) future med Expenses (4) loss of earning Capacity (5) permanent Disability - arguing for more/less = word choice
28
when is there a duty to rescue
- when D is an invitor - injury results from instrumentality under D's control (escalator)
29
Justification
(bus driver case) - detention/restraint that is reasonable
30
market-share liability
DES drug
31
eggshell plaintiff
- takes P as she is - liable for more harm than might be expected - maj: allow mental injury recovery / min: only physical
32
Conversion
(1) intentional exercise of dominion (2) that interferes w/ other's right of control to the extent that requires payment in FMV of chattel - information is not chattels (Senator case) - ideas can be chattels: inventive genius - good faith converter still liable
33
proximate cause rule
foreseeable harm to foreseeable plaintiff - can be direct: nothing intervenes - or only after subsequent action does P get hurt foreseeable intervention? foreseeable outcome?
34
What does P have to prove to get to jury
- direct - circumstantial - operational
35
duty owed to licensee
(enter land for own purposes) - licensee takes premises as found, but duty to warn of known&hidden harms
36
factors for determining whether there is a duty to rescue (barn case)
- nature of harm - opportunity to prevent - public policy - interests/ relationship of parties
37
persons outside categories: children
- attractive nuisance doctrine: liable when dangerous condition attracts children (train turntable) (a) RTK children are attracted (b) RTK trespass would result in severe harm/death (c) children do not know of the danger (d) burden < danger (e) fails to exercise reasonable care to eliminate danger to protect the children
38
duty owed to invitee
(enter land for LO's purposes) - must maintain safe premises - higher standard of care for children
39
Battery (dignitary tort)
(1) intent to contact (2) contact is harmful/offensive - crowded world theory - not necessary to touch P's body, anything immediately connected to P is sufficient - offensive: personal indignity is sufficient in absence of physical injury
40
Recovery of Property
- limited to fresh pursuit - shopkeeper's dilemma: privileged on premises & immediate vicinity; reasonable ground & manner
41
Res Ipsa Loquitir (P invokes when she doesn't know the negligent action)
(1) event does not usually occur absent negligence (can be established through expert testimony) (2) thing @ issue is under D's exclusive control - other causes eliminated RIL is not conclusive
42
Defense of Property
- value life/limb > land/possession - must make verbal request before using force
43
NIED - foreseeable P
RAD (1) closely related to V (2) present @ scene & aware of injury when it happened (3) as a result of witnessing injury, suffers ED beyond what would be expected in a disinterested witness con: worthy P might fail test
44
Reasonable professional
- reasonable pilot: requires expert testimony - good faith attorney
45
Assault
(1) intent to act (2) act puts P into apprehension of imminent contact (3) present ability to effectuate - (Telegraph case): victim must have reasonable apprehension (need not fear) of contact
46
proof of causation
(a) direct evidence (b) circumstantial/statistical - must be more likely than not (51%; 2x as likely)
47
Negligence Per Se
(1) class of persons (2) class of harms (3) appropriate to impose - courts use ButFor test ex: but for failure to remove, bar fight?
48
Reasonable prudent person standard
- objective - custom may be demonstrative, but not determinative - emergency situation - children held to like age/intelligence, except when engaged in adult/dangerous activity
49
False Imprisonment
(1) acts/words intended to confine - moral persuasion is not FI (2) awareness of confinement / injury - intoxication is no defense. memory and awareness are different - if P not aware, injury is valid for this element (3) actual confinement - confined if no reasonable means of escape (yacht case) (4) w/out legal justification - (false arrest for loose dog case)
50
actual cause test
but for D's action, result?
51
Failure to act (Q of law)
duty to warn when there is a special relationship (1) known/reasonably foreseeable (2) imminent probability of harm: heightened foreseeability
52
foreseeability of damage when setting a house on fire
law will limit to the next house over
53
when does the burden shift to D to prove causation
- one negligent act was harmless, other caused harm
54
DR's defenses
(1) emergency (2) something everyone knows (3) disclosure detrimental to patient's best interests
55
direct/indirect harm rule
- (polemis) dropping plank will cause a harm, need not be foreseeable
56
rescue doctrine
foreseeable that a 3rd party will come to V's aid (rescuer has burden of proving causation) (1) D was negligent to V (2) peril was imminent (3) RPP would've concluded peril existed (4) rescuer acted w/ reasonable care
57
DR's defenses for lack of consent
- patient physically unable to give consent - risk if treatment delayed - normal person would consent - DR has no reason to know patient would refuse
58
Med Mal standard of care
- whatever is expected in similar circumstances
59
contributory negligence (minority)
- if P neg, completely barred from recovery - last clear chance doctrine: D had last opportunity to prevent = liable (donkey case)
60
comparative neg (maj)
pure: reduced in prop. to P's neg modified: P cannot recover if negligence >49% - P's burden to assign neg if multiple TFs - failure to mitigate: must act reasonably to recover from injury
61
assumption of risk
- express: determine if clause unam. excused does enforcement violate PP? - implied (broken outhouse): P knows of risk P appreciates magnitude P voluntarily encountered risk
62
when is JSL available
- TFs act in concert - Ds fail to perform common duty to P - Ds cause indivisible harm
63
respondeat superior
- employer liable for injuries caused by employees in course of work - going/coming rule: generally not liable, except if risk arose at work
64
factors for determining whether employee's conduct was within scope of work (RS)
WeFITIN - employee's intent - nature, time & place of deviation - time consumed in deviation - incidental acts expected by employer - freedom allowed to employee
65
independent contractors
- generally employer not liable
66
strict liability
- animals: (Maj) if owner had RTK animal is vicious, then strictly liable ; fencing out/in - abnormally dangerous activities: harms that naturally flow

Torts Final (1 decks)

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