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Torts BSOL > Torts Final > Flashcards

Torts Final Flashcards

1
Q

What is an Intentional Tort?

A

An intentional act that causes harm.

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2
Q

How is intent shown?

A

Intent can be either Specific or General

Specific Intent is acting with a purpose.
General Intent is knowing to a substantial certainty that a result will happen.

Intent is based on a subjective standard.

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3
Q

What are the 7 intentional torts?

A 
Battery
Assault
False Imprisonment
Intentional Infliction of Emotional Distress
Trespass to Land
Trespass to Chattels
Conversion
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4
Q

What are the elements of battery?

A

Intent
Act
Causing Harmful or Offensive Contact
to the Plaintiff’s Person

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5
Q

What are the elements of Assault?

A

Intent
Act
Causing Reasonable Apprehension
Imminent Harmful or Offensive Contact

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6
Q

Do the actor have to have the ability to create harm for assault liability?

A

No.
The actor must have the Apparent Ability to create harmful or offensive contact. and some overt action. This does not have to create fear in the plaintiff, only apprehension of contact.

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7
Q

What are the elements of False Imprisonment?

A

Intent
Act
Causing confinement or restraint to a bounded area with no reasonable means of escape

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8
Q

How long must a person be bound for a false imprisonment claim?

A

Time is immaterial. Any amount of confinement or restraint is considered false imprisonment. However, the person must be aware of the confinement.

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9
Q

Can storekeepers be liable for false imprisonment?

A

Yes. Under the shopkeeper’s rule, with a reasonable belief of theft, a person can be detained in a reasonable manner for a reasonable length of time to conduct a reasonable investigation.

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10
Q

Can threats against property satisfy confinement?

A

Yes. A person can be confined under direct or indirect threats of force against self, family, or property, or threats of public humiliation.

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11
Q

What are the elements of Intentional Infliction of Emotional Distress?

A

Intent OR recklessness
Act of extreme and outrageous conduct
Causing severe emotional distress

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12
Q

What is the meaning of Extreme and Outrageous Conduct?

A

Conduct that exceeds all bound of human decency. Generally words or comments are not enough, but in the case of special relationships (innkeepers, common carriers) or known susceptibility or sensitivity (elderly, preganant, etc.), or in over prolonged amount of time, words can meet extreme and outrageous.

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13
Q

Are actual damages required for IIED?

A

Yes. IIED requires the plaintiff actually suffer from SEVERE emotional distress as a result of the conduct.

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14
Q

What is the Bystander Rule for IIED?

A

When the plaintiff is present during an act; and,
the plaintiff is a close relative to the injured person; and,
the defendant knew both of these, then;
then plaintiff can have a claim for IIED if she meets the other elements.

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15
Q

What are the elements for Trespass to Land?

A

Intent
Act causing unauthorized entry or invasion
Another’s real property

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16
Q

Limits on authorized entry

A

A lawful entry to another’s real property can be limited in time, space, or purpose. If aware of these limits, a rightful entrant becomes a trespasser if exceeded.

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17
Q

What are the elements for Trespass to Chattels?

A

Intent
Act interfering with another’s right of possession
Chattel
Damages are required

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18
Q

What degree of interference is required?

A

Any interference with the right of possession is sufficient. This can be simple intermeddling to dispossession.

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19
Q

What are the elements for Conversion?

A

Intent
Act exercising dominion and control that seriously interferes with another right of possession
Another’s chattel
Damages are required

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20
Q

What distinguishes Conversion and Trespass to Chattels?

A

Conversion is the serious interference to the point it warrants the full value of the chattel. Conversion is the complete or substantial deprivation of use.

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21
Q

What are the defenses (privileges) to intentional torts?

A 
Consent
Self Defense
Defense of Others
Defense of Property
Recovery of Property
Necessity
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22
Q

What is the privilege of consent?

A

Consent is a willingness or agreement for the conduct to occur. This can be expressed through words or actions, or implied when a reasonable person would infer the plaintiff’s agreement.

Consent can be applied to all intentional torts.

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23
Q

When can consent be invalid?

A

Consent can be invalid if the person lacks capacity because of age, mental status, or impairment.

Consent can be invalid if given under fraud or duress.

(Medical) consent can be invalid if not Informed to all material consequences and considerations.

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24
Q

What is the privilege of self defense?

A

Self defense is the use of reasonable force to protection oneself from a reasonable belief of present or future attack.

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25
Q

What is the privilege of Defense of Others?

A

If one has a reasonable belief that another person has the right to self-defense, she may use reasonable force to defend that person.

For the purpose of objectivity, the plaintiff ‘steps into the shoes’ of the person being defended.

26
Q

What is the privilege for Defense of Property?

A

Defense of Property allows for reasonable force to prevent a tort against one’s property. The plaintiff must request to desist first and only use reasonable force (no spring guns, etc.).

27
Q

What is the privilege for Recovery of Property?

A

Reasonable force to recover a rightful possession, only if in hot pursuit on prompt notice of dispossession.

28
Q

What is the privilege of Necessity?

A

Necessity protects the interference of another’s property when it is reasonably necessary to avoid greater harm.

Necessity if only available for torts against property.

29
Q

What are the two types of Necessity privilege and their differences?

A

Public Necessity is an absolute defense, used to avoid widespread harm and typically done by public officials.

Private Necessity only benefits a limited number of people. In private necessity, the plaintiff must pay for the harm caused.

30
Q

What are the elements of Negligence?

A 
Negligence requires:
A Duty to act within a standard of care;
A Breach of that Duty;
The Breach is the Actual and Proximate Cause of the Harm; 
Damages to person or property.
31
Q

What is the meaning of Duty?

A

Ordinary, prudent, and reasonable people have a duty take steps to reduce risks to Foreseeable Plaintiffs.

32
Q

What is the Zone of Danger?

A

The zone of danger refers to the area where risks are foreseeable, and those in the Zone of Danger are owed a duty of reasonable care.

(Palsgraf case, scales fell at train station)

33
Q

Are Rescuers foreseeable plaintiffs?

A

Danger invites rescue. If the actor negligently caused a person to need or objectively appear to need imminent rescue and the rescuer acts with reasonable care, a rescuer is a foreseeable plaintiff.

Firefighter rule applies, firefighters and police assume the risk.

34
Q

What is the Standard of Care?

A

The standard of care is how a reasonably prudent person in a like or similar situation would respond.

35
Q

When is a higher standard of care applied?

A

A higher standard of care applies to professional and highly skilled or trained individuals, like doctors, lawyers, pilots, etc.

These are held to like professionals in similar situations, generally requiring expert testimony.

36
Q

What is the standard of care for children and incompetents?

A

The standard of care does not “lower” but is held to a like person in like or similar circumstances. Children are considered with a degree of subjectivity based on their experience and education, unless participating in adult activities.

37
Q

What is the duty for owners of land to those not on the premises?

A

Generally, there is no duty to those not on the premises. However, if an artificial condition is unreasonably dangerous there is a duty. There is also a duty to protect those passing by.

38
Q

What duty is owed to a trespasser?

A

There is no duty to an undiscovered trespasser.

Once a trespasser is discovered or anticipated, there is a duty to warn or make safe artificial and highly dangerous conditions that are not obvious to the trespasser.

There is virtually always a duty to use reasonable care for active operations.

39
Q

What is the Attractive Nuisance doctrine?

A

Also called Artificial Conditions Highly Dangerous to Trespassing Children, there is a duty to make safe those items that would attract children trespasser.

40
Q

What is a Licensee?

A

A licensee is a visitor who enters with permission for his own purposes or business.

41
Q

What duty is owed to a Licensee?

A

A licensee is owed a duty to warn of known risks, or make safe known risks, and use reasonable care during active operations. The owner has no duty to inspect the premises to discover risks.

42
Q

What is an Invitee?

A

An invitee is one who enters a property in response to an express or implied invitation for the purpose of, or in advancement of, the owner’s interests.

43
Q

What duty is owed to an Invitee?

A

An invitee is owed a duty to warn or make safe, but also a duty to reasonably inspect the property for any non-obvious risks.

44
Q

How are privileged entrants classified?

A

Privileged entrants are generally considered as invitees, and the owner has a duty to inspect for non-obvious risks. Examples of privileged invitees are health inspectors, mail carriers, census takers, etc.

The Firefighter’s Rule lessens the duty for firefighters and police officers, so that the owner must warn of known defects but not inspect or make safe.

45
Q

When does a Lessor have a duty to a Lessee?

A

Generally, the duty of care is on she who has occupation and control of a property. Exceptions place a duty on the owner/landlord in 6 situations. They are:

(1) When the lessor knows or has reason to know of defects that are not known to the lessee.
(2) When a condition is dangerous to persons outside the premises.
(3) When the lessor covenants to make repairs and has rights to enter for inspection or repair.
(4) When the lessor voluntarily (not by covenant) makes repairs in a negligent manner.
(5) When the property is to be available for public admission.
(6) When the lessor shares control of some portion of the property, as in common areas or leased office space.

46
Q

What factors must be met to satisfy negligence per se?

A

Two factors must be satisfied to use negligence per se. They are:

(1) the statute being violated must protect the same class as the injured, and;
(2) the type of harm/damage must be the same the statute is intended to prevent.

47
Q

What is required for Negligent Infliction of Emotional Distress?

A

When a defendant breaches a duty and creates a foreseeable risk of physical injury to the plaintiff. The plaintiff must be in the “Zone of Danger” unless closely related to person harmed, present, and personally observed the injury.

Special relationships lessen the standard, such as doctor misdiagnosing a patient or the mishandling of a corpse.

48
Q

Who has an affirmative duty to act?

A

Generally there is no legal duty to act. By acting, the actor assumes the duty to use reasonable care.

Good Samaritan Laws have typically protect gratuitous actors except for gross negligence.

Special relationships can also create a duty to act.

49
Q

What must be shown to find a breach of duty?

A

A breach of duty requires that the defendant knew or should have known of the risk, and the defendant had the time and opportunity to reduce the risk.

50
Q

What is Res Ipsa Loquitur?

A

Res Ipsa Loquitur literally means “the thing speaks for itself” and can imply negligence when no other reason for the act is present. The plaintiff must show the act would not ordinarily occur without negligence.

Res Ipsa does not make a presumption of negligence, the defendant can rebuke with a preponderance of the evidence.

51
Q

What is the basic test to show Cause in Fact?

A

The “But For” test can show cause in fact, when the harm would not occur “but for” the act.

52
Q

What is the Substantial Factor Test?

A

The substantial factor test is used when two or more causes come together at the same time to create harm and either one would have caused the harm. One of these causes may be the Substantial Factor.

53
Q

When is the Alternative Liability doctrine used?

A

The alternative liability doctrine shifts the burden to the defendants to prove they did not cause the harm. This is used when multiple defendants act negligently, all possible tortfeasors are named, and their conduct was substantially simultaneous in time and character, but it is unknown which caused the harm.

54
Q

What is the primary factor in evaluating proximate cause?

A

Proximate cause is based on foreseeability. However, a harm does not have to be likely or probable to be foreseeable, and the plaintiff is taken as she is (eggshell skull).

55
Q

When are tortfeasors held jointly and severally liable?

A

When two or more act combine to cause an indivisible injury, each tortfeasor is liable for the entire damage.

However, if the actions were independent, the injury is divisible, and it is possible to identify the injury caused by each tortfeasor, each tortfeasor will be held liable for his identifiable portion.

56
Q

When tortfeasors are acting in concert, then…

A

If tortfeasors are acting in concert and injure plaintiff, each tortfeasor will be held jointly and severally liable, regardless if the injury is divisible.

57
Q

When there are multiple tortfeasors, what is Satisfaction?

A

Satisfaction is the recovery of the full judgement. Once a plaintiff recovers a full judgement on a harm, the injury is satisfied and the plaintiff can no longer pursue any other tortfeasors.

58
Q

What is the effect of a Release of one or more tortfeasors?

A

A release of one or more tortfeasors surrenders the palintiff’s actions against those specific tortfeasors. The plaintiff can still pursue claims against any other tortfeasors.

59
Q

Modified Comparative Negligence

A

The most common approach to comparative negligence. When the plaintiff is >50% (or >51% in some states) responsible for her harm, the plaintiff cannot recover.

60
Q

Pure Comparative Negligence

A

Minority rule. Plaintiff can recover (minus plaintiff’s degree of fault) regardless of degree assigned to plaintiff.

61
Q

Contributory Negligence

A

Very minority rule. If plaintiff is at all responsible for harm (negligent), then plaintiff cannot recover.

Torts BSOL (2 decks)

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