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Torts Final > Torts Final > Flashcards

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
Q

Palsgraf rule

A

If P outside scope of reasonably foreseeable consequences, D generally does not owe duty

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26
Q

No informed consent claim

A

(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
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27
Q

damages for personal injury

A

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
Q

when is there a duty to rescue

A
  • when D is an invitor
  • injury results from instrumentality under D’s control (escalator)
29
Q

Justification

A

(bus driver case)
- detention/restraint that is reasonable

30
Q

market-share liability

A

DES drug

31
Q

eggshell plaintiff

A
  • takes P as she is
  • liable for more harm than might be expected
  • maj: allow mental injury recovery / min: only physical
32
Q

Conversion

A

(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
Q

proximate cause rule

A

foreseeable harm to foreseeable plaintiff
- can be direct: nothing intervenes
- or only after subsequent action does P get hurt
foreseeable intervention?
foreseeable outcome?

34
Q

What does P have to prove to get to jury

A
  • direct
  • circumstantial
  • operational
35
Q

duty owed to licensee

A

(enter land for own purposes)
- licensee takes premises as found, but duty to warn of known&hidden harms

36
Q

factors for determining whether there is a duty to rescue (barn case)

A
  • nature of harm
  • opportunity to prevent
  • public policy
  • interests/ relationship of parties
37
Q

persons outside categories: children

A
  • 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
Q

duty owed to invitee

A

(enter land for LO’s purposes)
- must maintain safe premises
- higher standard of care for children

39
Q

Battery (dignitary tort)

A

(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
Q

Recovery of Property

A
  • limited to fresh pursuit
  • shopkeeper’s dilemma: privileged on premises & immediate vicinity; reasonable ground & manner
41
Q

Res Ipsa Loquitir (P invokes when she doesn’t know the negligent action)

A

(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
Q

Defense of Property

A
  • value life/limb > land/possession
  • must make verbal request before using force
43
Q

NIED - foreseeable P

A

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
Q

Reasonable professional

A
  • reasonable pilot: requires expert testimony
  • good faith attorney
45
Q

Assault

A

(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
Q

proof of causation

A

(a) direct evidence
(b) circumstantial/statistical - must be more likely than not (51%; 2x as likely)

47
Q

Negligence Per Se

A

(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
Q

Reasonable prudent person standard

A
  • objective
  • custom may be demonstrative, but not determinative
  • emergency situation
  • children held to like age/intelligence, except when engaged in adult/dangerous activity
49
Q

False Imprisonment

A

(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
Q

actual cause test

A

but for D’s action, result?

51
Q

Failure to act (Q of law)

A

duty to warn when there is a special relationship
(1) known/reasonably foreseeable
(2) imminent probability of harm: heightened foreseeability

52
Q

foreseeability of damage when setting a house on fire

A

law will limit to the next house over

53
Q

when does the burden shift to D to prove causation

A
  • one negligent act was harmless, other caused harm
54
Q

DR’s defenses

A

(1) emergency
(2) something everyone knows
(3) disclosure detrimental to patient’s best interests

55
Q

direct/indirect harm rule

A
  • (polemis) dropping plank will cause a harm, need not be foreseeable
56
Q

rescue doctrine

A

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
Q

DR’s defenses for lack of consent

A
  • patient physically unable to give consent
  • risk if treatment delayed
  • normal person would consent
  • DR has no reason to know patient would refuse
58
Q

Med Mal standard of care

A
  • whatever is expected in similar circumstances
59
Q

contributory negligence (minority)

A
  • if P neg, completely barred from recovery
  • last clear chance doctrine: D had last opportunity to prevent = liable (donkey case)
60
Q

comparative neg (maj)

A

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
Q

assumption of risk

A
  • 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
Q

when is JSL available

A
  • TFs act in concert
  • Ds fail to perform common duty to P
  • Ds cause indivisible harm
63
Q

respondeat superior

A
  • employer liable for injuries caused by employees in course of work
  • going/coming rule: generally not liable, except if risk arose at work
64
Q

factors for determining whether employee’s conduct was within scope of work (RS)

A

WeFITIN
- employee’s intent
- nature, time & place of deviation
- time consumed in deviation
- incidental acts expected by employer
- freedom allowed to employee

65
Q

independent contractors

A
  • generally employer not liable
66
Q

strict liability

A
  • 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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