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Rules for CA Bar Exam (Attack Sheet) > Torts Flashcards > Flashcards

Torts Flashcards

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1
Q

What are the requirements for all intentional torts?

A

Act, intent to bring effect, effect legally caused by defendant’s act.

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2
Q

Intentional torts: How can intent be achieved?

A

Direct intent when D has desire or purpose to bring about effect, or indirectly when D knows with substantial certainty that particular effect will occur.

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3
Q

Can transferred intent provide requisite intent?

A

Yes - EXCEPT with respect to conversion/IIED

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4
Q

Causation

A

Effect legally caused by D’s act or some action set in motion by D. Or D’s act was substantial factor.

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5
Q

Elements for battery

A

Intent, harmful or offensive touching, contact.

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6
Q

Battery: what constitutes “harmful touching”?

A

Causes pain or bodily damage

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7
Q

Battery: what constitutes “Offensive” touching?

A

Offends reasonable person’s sense of dignity

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8
Q

Battery: What constitutes “contact”

A

Direct or indirect, includes contact with object closely identified with plaintiff’s body.

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9
Q

Assault

A

Intentional causing of an apprehension of an imminent harmful or offensive contact.

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10
Q

Does plaintiff need to be aware of an assault?

A

Yes.

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11
Q

Assault: what constitutes “imminent” contact

A

defendant must have apparent present ability to carry out the threat.

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12
Q

IIED

A

Intentional or reckless inflection of severe emotional or mental distress caused by defendant’s extreme and outrageous conduct.

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13
Q

How is the intent element of IIED satisfied?

A

desire/purpose to cause distress, knowledge with substantial certainty that distress will result, reckless disregard of high probability emotional distress will occur.

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14
Q

For IIED: What constitutes extreme and outrageous conduct?

A

Conduct beyond all possible bounds of decency

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15
Q

When can a third person recover for IIED?

A

P physically present and known by D to be present, and is close relative of 3rd; OR P was physically present and known to be present, and plaintiff suffers bodily harm as a result of emotional distress. (heart attack) (If you suffer bodily harm , doesn’t matter if you were close relative)

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16
Q

False imprisonment

A

D causes P to be bound to area; P must be aware.

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17
Q

Trespass to land

A

Intentional physical invasion of land of another; entering or remaing or placing object on land w/o permission.

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18
Q

Trespass to chattels

A

Intentional interference with person’s use or possession of chattel

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19
Q

Conversion

A

Intentional interference with plaintiff’s possession of property that is so sbustantial, warrants requiring defendant to pay property’s full value.

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20
Q

What are the intentional torts?

A

Assault, Battery, Trespass (Land and Chattels), IIED, Conversion, False Imprisonment

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21
Q

Defenses to intentional torts

A

Consent, self-defense, defense of others, defense of property (warning required); recapture of chattels, shopkeeper’s privilege (temp detain shoplifters); arrest under a legal authority, necessity

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22
Q

Elements: Negligence

A

Duty, Breach, Actual Cause, Proximate Cause, damages

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23
Q

What is the general duty a care?

A

Duty to act as a reasonable person.

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24
Q

To whom is the duty of care owed?

A

All forseeable plaintiffs in the zone of danger.

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25
Q

What is the standard of care?

A

Act as reasonable person under the circumstances.

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26
Q

When is there an affirmative duty to act?

A

Special relationship, D caused danger, D volunteered assistance.

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27
Q

What is the duty of care for professionals?

A

knowledge and skill of member of their profession in good standing.

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28
Q

Standard of care for children (and exceptions)

A

Duty to conform to conduct of child of like age, intelligence, experience UNLESS child engaged in adult activity - potentially dangerous activity.

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29
Q

Duties - Bailment

A

Bailor - gratuitous bailment, bailor must inform of known, dangerous defects. Bailment for hire: bailor inform of defects which he is aware. Bailee: standard of care low for bailee where sole benefit is for bailor.

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30
Q

Duties for Owners and Occupiers of Land - Outside the Premises

A

No duty to protect from damage caused by hazardous natural conditions on premises; duty exists to prevent damage caused by unreasonable risk of harm for dangerous artificial hazards.

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31
Q

Duties for Owners and Occupiers of Land - Damage on the premises - trespasser

A

No duty except known or frequent trespasser, attractive nusance (forseeable injury to children)

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32
Q

Duties for Owners and Occupiers of Land - Damage on the premises - invitee (business)

A

Duty to make reasoanble inspection to find hidden dangers and make necessary repairs)

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33
Q

Duties for Owners and Occupiers of Land - Damage on the premises - licensee

A

Owner has duty to warn of all known dangerous conditions licensee unlikelyto discover. NO duty to repair or inspect.

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34
Q

Duties for Owners and Occupiers of Land - Damage on the premises - Landlord/Tenant

A

Lessee: maintain property. Lessor: warn of existing dangers lessee not likely to discover, repair not negligently, maintain common areas.

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35
Q

Duty: attractive nuisance

A

Owner knows kids trespass, condition poses unreasonable risk of serious injury/death, children don’t realize danger due to youth, benefit to owner and expense to remedy slight compared to risk, owner FAILS to use reasonable care to eliminate danger.

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36
Q

When is a defendant negligent per se (for. violating statute)?

A

Violates statute without excuse, plaintiff within class of persons statute designed to protect, statute designed to guard against type of risk suffered by plaintiff.

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37
Q

Negligence per se - when is defendant’s violation excused?

A

Compliance would great greater risk of harm, defendant incapacitated, defendant unaware of factual circumstances that made the statute applicable.

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38
Q

Does compliance with a statute itself establish defendant not negligent?

A

No

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39
Q

What constitutes a breach of duty?

A

Defendant’s conduct fails to conform to applicable standard of care.

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40
Q

Res ipsa loquitor

A

“the thing speaks for itself” - can be used to establish breach of duty - accident type that doesn’t occur w/o negligence, other causes eliminated by evidence.

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41
Q

Actual Cause/Causation in fact

A

“But-for” test.- but for defendnat’s act, injury to P would not have resulted.

42
Q

2 Ds, 2 acts, only 1 could have caused injury. Burden of Proof?

A

Burden of Proof shifts to each defendant to show other defendant caused harm.

43
Q

Multiple tortfeasors, conduct combines to cause harm - liability?

A

All Ds, jointly and severaly liable

44
Q

Proximate Cause

A

Generally, defendant liable for all harmful results that were reasonably forseeable.

45
Q

Is defendant liable for additional unforseen physical consequences caused by weak plaintiff?

A

Yes - defendant “takes his plaintiff as he finds him”

46
Q

When is D liable for intervening cause?

A

when it is forseeable.

47
Q

Is actual injury required to obtain tort damages?

A

Yes. No nominal damages.

48
Q

Types of tort damages

A

Direct loss, out of pocket economic losses, pain and suffering, hedonistic damages

49
Q

How does plaintiff establish right to damages

A

causation, forseeable, certainty, mitigated damages.

50
Q

When are punitive damages available?

A

If defendant’s conduct was wanton and willful

51
Q

NIED

A

Negligent infliction of emotional distress

52
Q

D’s potential defenses to Negligence

A

Contributory negligence, comparative negligence,assumption of risk

53
Q

To which activities do strict liability apply?

A

Animals, Ultrahazardous/abnormally dangerous activities.

54
Q

Which animal activities is an owner strictly liable for?

A

Reasonably forseeable damage done by trespass of animals; any injury caused by wild animals that resutl from dangerous propensity that is typical of species; domestic animals known to be dangerous.

55
Q

What makes an activity abnormally dangerous for purposes of determining whether strict liability applies?

A

High degree of risk, risk can’t be eliminated, not common, not appropriate, danger outweighs activity value to community

56
Q

Is contributory negligence a defense to strict liablity?

A

No

57
Q

Is assumption of risk a defense to strict liability?

A

Yes

58
Q

What are 5 theories to establish products liability

A

strict tort liability, negligence, warranty, misrepresentation, intent

59
Q

What are the elements for a commercial seller to be strictly liable for personal injuries caused by a defective product?

A

defective product, actual cause, proximate cause, damages.

60
Q

What are three ways a product can be defective?

A

Manufacturing defect, design defect, warning defect

61
Q

What two tests do court use to establish design defect?

A

Consumer expectation test - expectations when used in reasonably forseeable manner; risk utility test - risk of danger inherent in design outweighs benefits of the design, danger could have been avoided by reasonable alternative design.

62
Q

When does a warning defect exist?

A

Maker fails to give adequate warning to known (or should have known) danger.

63
Q

Is compliance with industry standards dispositive to show product is not detective?

A

No, but lack of can compliance can establish defective product.

64
Q

Can plaintiff recover under strict product liability for purely economic loss?

A

No, must show physical injury or property damage.

65
Q

Defenses for strict product liability

A

assumption of risk, comparative negligence (product misuse, except if forseeable).

66
Q

Product liability: Are disclaimers of liability effective?

A

No

67
Q

What warranty breaches may give rise to cause of action?

A

Express warranty, implied warranty of merchantibility, fitness for particular purpose.

68
Q

What are defenses to breach of warranty claim?

A

Assumption of risk, comparative negligence, failure to give notice of breach within reasonable time.

69
Q

What misrepresentations of fact will give rise to liability for seller?

A

Misrepresentation of material fact concerning quality or use of goods; seller intended to induce reliance by buyer and DID in fact induce reliance.

70
Q

How is a defendant liable for products liability under an intent theory? Are punitive damages allowed?

A

If defendant intended consequence or knew they were substantially certain to occur. Punitive damages allowed here.

71
Q

Elements of Fraud: Intentional Misrepresentation

A

misrepresentation of a material fact, scienter, intent to induce reliance, causation,k justifiable reliance, pecuniary damages.

72
Q

Elements of negligent misrepresentation (business/professional)

A

misrepresentation in business/professional capacity - no reasonable grounds for believing misrepresentation to be true, intetn to induce P reliance, causation, justifiable reliance by P, pecuniary damages to P.

73
Q

Private Nuisance

A

substantial, unreasonable interference with another private individual’s use or enjoyment of his land

74
Q

Public Nuisance

A

substantial, unreasonable interference with health, morals, safety, or property rihts of community.

75
Q

What are remedies for nuisance?

A

Damage and injunctive relief

76
Q

Defamation

A

Defamatory statement concerning plaintiff is published to a person causing damage to plaintiff’s reputation.

77
Q

Does a defamatory statement need have actually harmed the plaintiff’s reputation?

A

No - P must show it would have had it been believed.

78
Q

What are the damages for defamation by libel?

A

Libel - printed defamation - general damages presumed.

Slander per se - damages presumed for language that adversely reflects on P’s fitness to conduct business/profession, alleges plaintiff has laothsome disease, imputes criminal behavior to plaintiff, imputes serious sexual misconduct to plaintiff.

79
Q

What are the damages for defamation by slander?

A

Slander -plaintiff must prove special damages; P has suffered some pecuniary loss.

80
Q

Damages for defamation for slander per se?

A

Slander per se - damages presumed for language that adversely reflects on P’s fitness to conduct business/profession, alleges plaintiff has laothsome disease, imputes criminal behavior to plaintiff, imputes serious sexual misconduct to plaintiff.

81
Q

When is it necessary to consider Constitutional law defamation requirements?

A

If defamation is matter of public concern

82
Q

Requirements of constitutional defamation

A

P prove elements of common law defamation and establish fault on defendant. Test to determine fault depends on status of plaintiff.

83
Q

What is the standard to establish defamation in a matter of public concern, when the plaintiff is a public figure?

A

Actual malice (defendant made falsestatement with knowledge or reckless disregard

84
Q

What makes a plaintiff a public figure?

A

Has achieved pervasive fame or voluntarily assumed role in public controversy.

85
Q

Public figure in a matter of public concern- standard, and damages presumed?

A

actual malice and Yes

86
Q

What is the standard to establish Defamation - private person in matter of public concern

A

Negligence - only negligence regarding falsity of statement has to be proven.

87
Q

Damages for defamation - private in a matter of public concern

A

only actual injury damages recoverable; if malice exists, damages presumed.

88
Q

Defenses for defamation

A

Consent, truth,Privilege (remarks during judicial or legislative proceedings, between spouses); qualified privile to statements made to protect publishers interest. Privilege can be lost if defendant abuses it.

89
Q

Misappropriation

A

unauthorized use of plaintiff’s picture or name for defendant’s commercial advantage

90
Q

Intrusion on plaintiff’s solitude

A

Intrusion into plaintiff’s private affairs, where one has a reasonable expectation of privacy, that is highly objectionable

91
Q

Placing plaintiff in false light

A
  1. attributes to plaintiff views he does not hold or actions he doesn’t take, 2. false light objectionable to reasonable person, and 3 publication is public.
92
Q

What is the standard for false light in a matter of public interest?

A

Malice

93
Q

What is the standard for placing a public figure in false light?

A

actual malice.

94
Q

Publicity of private life

A

public disclosure of private facts that are not a matter of legitimate public concern, release objectionable to reasonable person.

95
Q

Misuse of legal process

A

malicious prosecution - institution of proceedings against P; termination of proceeding in P favor, absence probably cause for proceedings, improper purpose, damages.

96
Q

What type of seller is strictly liable for personal injuries caused by a defective product?

A

Commercial supplier

97
Q

Can breach of implied warranty result in cause of action?

A

Yes

98
Q

Can breach of express warranty result in cause of action?

A

Yes

99
Q

Can breach of implied warranty of merchantability give rise to cause of action?

A

Yes

100
Q

Does an owner have land have the duty to warn licensees of dangerous conditions on land? Does owner have duty to repair or inspect?

A

Yes duty to warn, No duty to inspect.

101
Q

What is slander per se? Damages?

A

Slander per se - damages presumed for language that adversely reflects on P’s fitness to conduct business/profession, alleges plaintiff has laothsome disease, imputes criminal behavior to plaintiff, imputes serious sexual misconduct to plaintiff.

Rules for CA Bar Exam (Attack Sheet) (15 decks)

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