Torts Flashcards
1
Q
What are the requirements for all intentional torts?
A
Act, intent to bring effect, effect legally caused by defendant’s act.
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.
3
Q
Can transferred intent provide requisite intent?
A
Yes - EXCEPT with respect to conversion/IIED
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.
5
Q
Elements for battery
A
Intent, harmful or offensive touching, contact.
6
Q
Battery: what constitutes “harmful touching”?
A
Causes pain or bodily damage
7
Q
Battery: what constitutes “Offensive” touching?
A
Offends reasonable person’s sense of dignity
8
Q
Battery: What constitutes “contact”
A
Direct or indirect, includes contact with object closely identified with plaintiff’s body.
9
Q
Assault
A
Intentional causing of an apprehension of an imminent harmful or offensive contact.
10
Q
Does plaintiff need to be aware of an assault?
A
Yes.
11
Q
Assault: what constitutes “imminent” contact
A
defendant must have apparent present ability to carry out the threat.
12
Q
IIED
A
Intentional or reckless inflection of severe emotional or mental distress caused by defendant’s extreme and outrageous conduct.
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.
14
Q
For IIED: What constitutes extreme and outrageous conduct?
A
Conduct beyond all possible bounds of decency
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)
16
Q
False imprisonment
A
D causes P to be bound to area; P must be aware.
17
Q
Trespass to land
A
Intentional physical invasion of land of another; entering or remaing or placing object on land w/o permission.
18
Q
Trespass to chattels
A
Intentional interference with person’s use or possession of chattel
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.
20
Q
What are the intentional torts?
A
Assault, Battery, Trespass (Land and Chattels), IIED, Conversion, False Imprisonment
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
22
Q
Elements: Negligence
A
Duty, Breach, Actual Cause, Proximate Cause, damages
23
Q
What is the general duty a care?
A
Duty to act as a reasonable person.
24
Q
To whom is the duty of care owed?
A
All forseeable plaintiffs in the zone of danger.
25
What is the standard of care?
Act as reasonable person under the circumstances.
26
When is there an affirmative duty to act?
Special relationship, D caused danger, D volunteered assistance.
27
What is the duty of care for professionals?
knowledge and skill of member of their profession in good standing.
28
Standard of care for children (and exceptions)
Duty to conform to conduct of child of like age, intelligence, experience UNLESS child engaged in adult activity - potentially dangerous activity.
29
Duties - Bailment
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.
30
Duties for Owners and Occupiers of Land - Outside the Premises
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.
31
Duties for Owners and Occupiers of Land - Damage on the premises - trespasser
No duty except known or frequent trespasser, attractive nusance (forseeable injury to children)
32
Duties for Owners and Occupiers of Land - Damage on the premises - invitee (business)
Duty to make reasoanble inspection to find hidden dangers and make necessary repairs)
33
Duties for Owners and Occupiers of Land - Damage on the premises - licensee
Owner has duty to warn of all known dangerous conditions licensee unlikelyto discover. NO duty to repair or inspect.
34
Duties for Owners and Occupiers of Land - Damage on the premises - Landlord/Tenant
Lessee: maintain property. Lessor: warn of existing dangers lessee not likely to discover, repair not negligently, maintain common areas.
35
Duty: attractive nuisance
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.
36
When is a defendant negligent per se (for. violating statute)?
Violates statute without excuse, plaintiff within class of persons statute designed to protect, statute designed to guard against type of risk suffered by plaintiff.
37
Negligence per se - when is defendant's violation excused?
Compliance would great greater risk of harm, defendant incapacitated, defendant unaware of factual circumstances that made the statute applicable.
38
Does compliance with a statute itself establish defendant not negligent?
No
39
What constitutes a breach of duty?
Defendant's conduct fails to conform to applicable standard of care.
40
Res ipsa loquitor
"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.
41
Actual Cause/Causation in fact
"But-for" test.- but for defendnat's act, injury to P would not have resulted.
42
2 Ds, 2 acts, only 1 could have caused injury. Burden of Proof?
Burden of Proof shifts to each defendant to show other defendant caused harm.
43
Multiple tortfeasors, conduct combines to cause harm - liability?
All Ds, jointly and severaly liable
44
Proximate Cause
Generally, defendant liable for all harmful results that were reasonably forseeable.
45
Is defendant liable for additional unforseen physical consequences caused by weak plaintiff?
Yes - defendant "takes his plaintiff as he finds him"
46
When is D liable for intervening cause?
when it is forseeable.
47
Is actual injury required to obtain tort damages?
Yes. No nominal damages.
48
Types of tort damages
Direct loss, out of pocket economic losses, pain and suffering, hedonistic damages
49
How does plaintiff establish right to damages
causation, forseeable, certainty, mitigated damages.
50
When are punitive damages available?
If defendant's conduct was wanton and willful
51
NIED
Negligent infliction of emotional distress
52
D's potential defenses to Negligence
Contributory negligence, comparative negligence,assumption of risk
53
To which activities do strict liability apply?
Animals, Ultrahazardous/abnormally dangerous activities.
54
Which animal activities is an owner strictly liable for?
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
What makes an activity abnormally dangerous for purposes of determining whether strict liability applies?
High degree of risk, risk can't be eliminated, not common, not appropriate, danger outweighs activity value to community
56
Is contributory negligence a defense to strict liablity?
No
57
Is assumption of risk a defense to strict liability?
Yes
58
What are 5 theories to establish products liability
strict tort liability, negligence, warranty, misrepresentation, intent
59
What are the elements for a commercial seller to be strictly liable for personal injuries caused by a defective product?
defective product, actual cause, proximate cause, damages.
60
What are three ways a product can be defective?
Manufacturing defect, design defect, warning defect
61
What two tests do court use to establish design defect?
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
When does a warning defect exist?
Maker fails to give adequate warning to known (or should have known) danger.
63
Is compliance with industry standards dispositive to show product is not detective?
No, but lack of can compliance can establish defective product.
64
Can plaintiff recover under strict product liability for purely economic loss?
No, must show physical injury or property damage.
65
Defenses for strict product liability
assumption of risk, comparative negligence (product misuse, except if forseeable).
66
Product liability: Are disclaimers of liability effective?
No
67
What warranty breaches may give rise to cause of action?
Express warranty, implied warranty of merchantibility, fitness for particular purpose.
68
What are defenses to breach of warranty claim?
Assumption of risk, comparative negligence, failure to give notice of breach within reasonable time.
69
What misrepresentations of fact will give rise to liability for seller?
Misrepresentation of material fact concerning quality or use of goods; seller intended to induce reliance by buyer and DID in fact induce reliance.
70
How is a defendant liable for products liability under an intent theory? Are punitive damages allowed?
If defendant intended consequence or knew they were substantially certain to occur. Punitive damages allowed here.
71
Elements of Fraud: Intentional Misrepresentation
misrepresentation of a material fact, scienter, intent to induce reliance, causation,k justifiable reliance, pecuniary damages.
72
Elements of negligent misrepresentation (business/professional)
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
Private Nuisance
substantial, unreasonable interference with another private individual's use or enjoyment of his land
74
Public Nuisance
substantial, unreasonable interference with health, morals, safety, or property rihts of community.
75
What are remedies for nuisance?
Damage and injunctive relief
76
Defamation
Defamatory statement concerning plaintiff is published to a person causing damage to plaintiff's reputation.
77
Does a defamatory statement need have actually harmed the plaintiff's reputation?
No - P must show it would have had it been believed.
78
What are the damages for defamation by libel?
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
What are the damages for defamation by slander?
Slander -plaintiff must prove special damages; P has suffered some pecuniary loss.
80
Damages for defamation for slander per se?
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
When is it necessary to consider Constitutional law defamation requirements?
If defamation is matter of public concern
82
Requirements of constitutional defamation
P prove elements of common law defamation and establish fault on defendant. Test to determine fault depends on status of plaintiff.
83
What is the standard to establish defamation in a matter of public concern, when the plaintiff is a public figure?
Actual malice (defendant made falsestatement with knowledge or reckless disregard
84
What makes a plaintiff a public figure?
Has achieved pervasive fame or voluntarily assumed role in public controversy.
85
Public figure in a matter of public concern- standard, and damages presumed?
actual malice and Yes
86
What is the standard to establish Defamation - private person in matter of public concern
Negligence - only negligence regarding falsity of statement has to be proven.
87
Damages for defamation - private in a matter of public concern
only actual injury damages recoverable; if malice exists, damages presumed.
88
Defenses for defamation
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
Misappropriation
unauthorized use of plaintiff's picture or name for defendant's commercial advantage
90
Intrusion on plaintiff's solitude
Intrusion into plaintiff's private affairs, where one has a reasonable expectation of privacy, that is highly objectionable
91
Placing plaintiff in false light
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
What is the standard for false light in a matter of public interest?
Malice
93
What is the standard for placing a public figure in false light?
actual malice.
94
Publicity of private life
public disclosure of private facts that are not a matter of legitimate public concern, release objectionable to reasonable person.
95
Misuse of legal process
malicious prosecution - institution of proceedings against P; termination of proceeding in P favor, absence probably cause for proceedings, improper purpose, damages.
96
What type of seller is strictly liable for personal injuries caused by a defective product?
Commercial supplier
97
Can breach of implied warranty result in cause of action?
Yes
98
Can breach of express warranty result in cause of action?
Yes
99
Can breach of implied warranty of merchantability give rise to cause of action?
Yes
100
Does an owner have land have the duty to warn licensees of dangerous conditions on land? Does owner have duty to repair or inspect?
Yes duty to warn, No duty to inspect.
101
What is slander per se? Damages?
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.
