Torts (from outline) Flashcards
A duty is owed to _____ plaintiffs that are ____ endangered by the defendant’s negligent conduct
Foreseeable; foreseeably
Rescuers are _____ when the defendant negligently put themselves or a third person in peril
foreseeable plaintiffs
The firefighters rule states that firefighers and police officers cannot recover from injures caused by ___-
the inherent risks of their jobs
To prove negligence, a plaintiff must show there was a duty, breach, causation (_____) and damages
actual and proximate
A P must show that D breached its __
duty of care
The two types of causation in negligence that must be present are
actual (but-for) and proximate (forseeable)
Actual (but-for) causation is when there is a ____ between the breach and the injury suffered
factual connection
Proximate cause exists when the harm is a _____ result of the breach
foreseeable
Examples of harms considered foreseeable include:
(1) medical malpractice that occurs after an accident, (2) harm that occurs during rescue efforts to protect life and property endangered by D’s negligent conduct, and (3) a disease or subsequent accident that occurred after an accident.
When you have 2 or more defendants, in determining who is negligent, use the ____ test
substantial factor test
which says if a D’s breach was a substantial factor in causing the harm, the D is liable
For an “alternative cause” scenario, the P must show that ALL potential defendatns are joined in the lawsuit and that all D’s are negligent.
The burden will shift to ______
each defendant to show its breach of duty was NOT the actual cause
An intervening cause is a subsequent injury that occurs after the original injury, and it is a ______
normal consequence of the original injury
AKA foreseeable type of harm
if this exists, then the original P will be held liable for his original injury
A superseding cause occurs when an injury occurs after the original injury that is _______
unforeseeable
this cuts off the original defendant’s liability, so he/she will NOT be held liable for those damages
Examples of unforeseeable things:
- acts of god
- intentional torts
- crimes
- and ANYTHING THE DAMN FACT PATTERN TELLS YOU is unforeseeable
Can a plaintiff recover punitive or nominal damages in a negligence action?
no
Name 3 defenses to negligence (CAC)
- Comparative Negligence
- Contributory Negligence
- Assumption of the Risk
For pure comparitive negligence, the P can recover ____. Plus, his damages are simply reduced by his percentage of fault
This is the default on MBE
no matter how negligent he is!!!!
Partial (modified) comparative negligence is when a P is more at fault than the D, the P ________ recover
cannot
Contributory negligence is when the P CANNOT recover if he was even A LITTLE BIT NEGLIGENT (he contirbuted to the negligence) UNLESS the D had the _______ to avoid the injury
last clear chance
Assumption of the risk is a ddefense to negligence if the P ______ of the risk and _____ assumed it, then he CANNOT recover damages
Knew; voluntarily
only defense for strict liability cases
Children are held to the standard of care to a child of
similar age, experience, and intelligence, UNLESS engaged in an adult activity
Professionals are held to a _____ standard of care to an average member of their profession in good standing
national
Doctors have a duty to disclose risk of treatment to enable a patient to give _____
informed consent
An undiscovered trespasser is one whom the land owner does not know or ____
The duty of care owed to an undiscovered trespasser is ____
should not know of
NO DUTY. Ha almost tricked you there
A discovered/ anticipated trespasser is one whom the landowner knows or should know is trespassing.
The Duty owed to an anticipated trespasser is to ____ or make safe ______ artificial conditions the landowner KNOWS OF
Warn of; unreasonably dangerous
a licensee is one who enters the land with the possessor’s permission for their own ____business (social guest)
The duty owed to a licensee is to ______ or make safe all _____ the land owner KNOWS OF
purpose
warn of; HIDDEN DANGERS
There is NO DUTY TO INSPECT
An invitee is one who is invited onto the property for the owner’s own benefit (like customer at mall open top ublic)
The duty owed to an invitee is to warn of or make safe ______ they should know of or ______
All dangers
Should know of
Duty to inspect - yes!
Trespass to land is the physical act of _____ the land of another
entering
Conscious act of stepping onto that land.
Do you have to damage the land for trespass to land?
no
IIED - is physical harm required
NO
IIED requires that the D act with intentional or ____ conduct (knew or should have known) causing severe _____
Reckless (malicious)
emotional distress
Bystander cases of IIED scenario 1:
The bystander is a ____ of the P, the D KNOWS that the person is there, and the bystander suffers ____
close family relative
emotional distress
Bystander cases of IIED scenario 2:
The bystander is _____ a family member of P, but that person suffers _______
NOT a family member
PHYSICAL HARM
False imprisionment is when the defendant acts with the ____ to confine or restrain P to a BOUNDED area, actual confinement occurs, and P either ______ or is hurt by it
Shopkeeper privilege
intent
knows of the confinement
Merchant has reasonable suspicion that someone is stealing from them, then they can be detained for reasonable amount of time
Assault requires that the P demonsrtate that he ______ a harmful or offensive touch that was ____
reasonably apprehended
imminent
Apprehension does NOT mean fear. Apprehension is knowledge or anticipati
Battery is when the D acts with the ____ to cause ____ contact, or with a ______ and a ____ contact directly or indirectly results
“Substantial certainty” element for battery liability
intent
harmful or offensive
knowledge that a harmful contact would occur,
harmful or offensive
There is no rule of tort law stating that a plaintiff is prohibited from pursuing claims for battery and products liability on the basis of same set of facts
Negligent trespass to land occurs when someone enters into another’s land ________and there is __________
Negligently
Damage
NIED occurs when the D acts negligently, the P is in the _______, causing D BOTH severe emotional distress AND ____
zone of danger
PHYSICAL HARM
Bystander theory of NIED
If the bystander is a _____ present at the scene and they suffer ____ then they can recover.
Does the D have to KNOW that the bystander was there?
close family member
emotional distress
NO
If someone acts negligently in the care/ handling of a corpse, and P suffers ____, then P can sue for NIED without showing ____
emotional distress
physical harm
Defenses to intentional torts include 4
- consent
- self defense
- public necesssity
- private necessity
Can you have implied consent?
Yes, like you are playing football game. but it must not go BEYOND the scope of the consent.
Self defense is a defense to intentional torts if you have _____ that someone will hurt you, and you can apply _____back at that person
reasonable belief
same force
Defense of others is a defense to intentional torts as long as there is ______ that the defense is necessary to protect a third person
reasonable belief
Defense of property is allowed to defend property as long as there is _____ that the defense will stop the thing on the land
reasonable belief
You cannot use Deadly force to protect property UNLESS there is a ____ to the person’s ______
threat
own saftey
Necessity is a defense to intentional tort.
Private necessity, it is a defense if you must enter someone else’s property out of necessity. If it is _____. However, even though this is a defense to the tort, you must still pay for _____ to the property
necessary to protect yourself
damages
Public necessity is when someone must come onto your property to prevent a greater public harm.
Are you liable for any damage to the property?
NO
Misrepresentation occurs when there is (1) a material misreprsentation by the D,(2) the D ____ that this statement was false, or said it with _____ to the truth, and (3) he had the ____ to induce the misrepresentation, and (4) the P relied on it and suffered ____
(1) knew; reckless indifference
(3) Intent
(4) pecuniary damages
A private nuisance is when the D uses the property in a way that causes a _____ with P’s use or enjoyment of his land
DO you take into account P’s peculiar use of the land?
substantial unreasonable interference
No. Ask if the D’s use of the land would substantially interfere with an average member of his community’s use and enjoyment of his property
A public nuisance is when the D unreasonably interferes with the _____of a community.
To sue successfully on a public nuisance, the p must suffer
Healthy, saftey, or morals
unique damages
An attractive nuisance is when the P must show that there was a dangerous condition on the land that the owner ____aware of or ______ aware of, the owner _____ or _____ that children might trespass, and that the condition is likely to cause ___
is; should
knows, should know
injury
In cases of negligence per se, P can prove duty + breach if P can show that D violated a ____ without exclude and _____ the particular harm that the ____ was trying to protect against, and the person harmed was in the _____the statute was aimed to protect and sustained the right _____
statute; statute
class of persons
injury
in cases of res ipsa, the jury can _____that negligence occured when the thing that happened is something that does not normally occur in _______, and the D was in_____
This creates a ______ of negligence
infer
the absense of negligent conduct
exclusive control
rebuttable presumption
Does the exclusive control element exist in medical res ipsa cases?
no
conversion is when the D ______with another’s property and a ______ harm results.
**The DAMAGES for the intentional tort of conversion is the _____ of the property ______
intentionally interfers
serious and substantial
fair market value
at the time of the conversion
It doesn’t matter whether the actor knows that an item is in another’s possession
trespass to chattels is when D _______ with another’s personal property and ____ results (this is NOT _____)
The DAMAGES for the intentional tort of trespass to chattels is the cost to _____ the property
intentional interferes
harm
substantial
repair
an abnormally dangers activity is one that creates a ______risk of harm even when reasonable care is exercised, and the activity is NOT of _____ in the community
(i.e., blasting, mining, explositves)
foreseeable
common
A defendant is strictly liable for the foreseeable harm by wild animals
yeah just know this
under a strict liability theory of products liability, the defendant is a commercial supplier, and there must be PROOF that the product is defective at _____ without
The two types of product liability theories are (1) manufacturing defect, and (2)
the time it left the defendatn’s hands
substantial alteration
(2) design defect
For a manufacturing defect, the product must have departed from its __ and it is more dangerous than expected.
intended design
For a design defect, the product came out correctly, but there is an _____ that is safer, more practical, and more _____
alternative design
cost efficient
Here, there was a feasible saftey design that would have prevented the worker’s injury. The model without the saftey device was sold at a slightly reduced price, indicating that it was ___ to include the saftey device for a small price
feasible
When it is feasible to install a saftey device, a manufacturer does NOT fulfull its obligation to _____ by warning the purchaser that the product is unsafe
make a safe product
Under a theory of strict product liability, _____commercial supplier in the chain of distribution is liable for the injuries caused by defective or unreasonaby dangerous product sold
ANY
assumption of the risk may be a defense where a plaibntiff engaged in voluntary and ___ conduct and used the product despite discovering of the defect and being ____ of the danger
unreasonable
aware
A product is _____ if it FAILS to include a feasible saftey device that would prevent injuries forseeably incurred in ordinary use
A plaintiff can recover on a design defect by prevailing on a risk-utility analysis, typically by demonstrating the existance of an ___ design alternative
defective
economically
Defenses to strict products liability include: _____, comparative negligence, or _______
assumption of the risk
unforeseeable misuse of the product
General defamation requires a showing of (1) a defamatory statement about the P, an (2) ____, (3) fault (at least negligence), and (4) ___.
For libel cases (writen/ recorded statement) damages are ____
(2) unprivileged publication
of the statement,
(4) damages
presumed
If you have a public figure trying to sue under defamation, the P must prove that the statement is _____ and the D acted with _____
______ is present when the D knows the statement is false or acts with reckless disregard to its falsity
false
Malice
Defenses to defamation cases include
consent, truth, privileges (can be aboslute or qualified)
___ is a defense to all four privacy torts
consenet
False light is when the D widely spreads facts about the P that places P in a false light + ___
offensive to a reasonable person
appropriation is when the D uses P’s name or likeness in an _____ way to advertise a product
unauthorized
intrusion upon seclusion is when D intentionally pries or intrudes into a private place in a way that would be ____
offensive to a reasonable person
Disclosure of private facts is a privacy tort in which D disseminates or publishes private information about the P that would be ___
highly offensive to a reasonable person
Whenever a person engages in an activity, he is under a legal duty to act as a ____
reasonably prudent person engaged in the same or similar activity
Under the doctrine of respondeat superior, an employer is vicariously liable for the tortious acts of his employees when they are within the
scope of employment
In a negligence case, evidence of custom, usage, or industry standards, while relevant, is NOT ____ of negligence
dispositive
Proximate cause is present here because the harmful result that has occured was within the range of foreseeable consequences that could result from ______
the negligent thing the D did
a tortfeasor takes his victim
as he finds her
AKA the fact that the extent or severity of harm was not foreseeable does NOT relieve the defendant from liability
establishign the elements of an IIED claim reuqires showing both that the D ____ to cause severe emotional distress and that the D’s conduct was _____ and _____
intended
extreme and outragerous
whether a D’s conduct was reasonable under the circumstances is irrelevant if a D intended to make a ____ or offensive contact with the P
harmful
But it would be relevant in a negligence action
in a battery claim the P must show that some sort of _____ contact occured
bodily
a lack of privity is not a barrier ot negligence claims based on _____
manufacturing products
anyone foreseeably put at risk by a defective product and actually injured by the products defective condition may sue for ____
negligencew
if the company had owed a duty to the homeowner, it could argue that the cousin’s actions were a proximate cause of the homeowner’s loss
BUT a stronger defense is that the company owed _______ to the homeowner
no duty
a duty of a landowner for dangerous artificial conditions exists only where the owner has REASON to know that trespassers are in _______to the condition and that they are ____ to appreciate the risk
dangerous proximity
unlikely.
Even then - the duyt is only to exercise reasonable care to WARN the trespassers of the danger
for the condition on land to be considered an attractive nuisance, there must be evidence that the possessor has REASON to know that children are likely to trespass, and evidence that the P did ______ the risk involved
not appreciate
the corporation will prevail because the obviousness of the risk, couples with the warning sign, would have been _____ by the “bright 9 year old child_
appreciated
if a nuisance has no utility but substantially interferes with the neighbor’s use and enjoyment of his property, then ______ is available as a remedy
injunction
does a nuisance have to be continuous to substantially interfere with the neighbor’s use and enjoyment of his property?
no it does not have to be continous
a nuisance is a tortious harm that interferes with either private property rightrs or ____ rights
public
a private nuisance is a____interference with another private indivdiaul’s use or enjoyment of property that is offensive, inconvenient, or annlying to an average person of the community
substantial, unreasonable
To prevail on a nuisance claim, a plaintiff must demonstrate that the nuisance is an unreasonable interference by showing that the injury outweighs the __ of the D’s condult
utility
When the nuisance cannot be removed without undue burden, and the nuisance has utility, damages for the _____ of the affected plaitnfif may be ordered
reduction in property value
private nuisance is a substantial, _____ interference with another’s use or enjoyment of property. The person claiming nuisance must actually ___, or have a right of immediate possession to the property
unreasonable
possess
A substantial interference is an interference that is offensive or annoying to the average person in the community - the plaintiffs _____ are irrelevant
hypersensitivities
to establish a prima facie case of tortious interference with a contracty, the plaintiff must prove (i) the existance of a valid contractual relationship between the plaintiff and a thrid party, (ii) that the defendant KNEW of the relationship or expectancy, (iii) that the defendant intentionally _______ and thereby induced a ____ or termination of the relationship or expectancy; and (iii) the P differed damage as reuslt
interfered
breach
because a tortious interference claim involves an interference in a contractual relationship between the P and a third party, it CANNOT be brought by a P against a D with whom __-
the P has contracted
courts have historically held that causing property owner to view unsighly things from their property does not by itself establish the sort of ____ with the use and enjoyment of property that is necessary for ______ liability
unreasonable interference
nuisance (private)
Despite the fact that teh seller just sold the home, he _____ of the dangerous condition of the roof and the forseeablability of harm to persons outside the premises from windswept falling tiles. Instead, he left the dangerous conditions without taking precautionary measures to protect against dislodged tiles
was or should have been aware
*It was IRRELEVANT that the seller was no longer the owner or occupier of the house. The seller’s negligent conduct was the breach of his duty of care and proximately caused the pedestrian’s injuries
a possessor of real proeprty’s duties continue even ____ a sale - the seller still owed a duty to third parties until the buyer has a reasonable opportunity to discover the nonobvious dangerous on the property
Thus, the seller’s duty to pedestrians in this question remains because it is merely the day after the sale, and slates that blow off windstorms are a dangerous, nonobvious condition that the seller ______ from prior windstorms
AFTER
knew about
land owners owe multiple duties. When selling property, these duties continue even ____ - the seller still owes a duty to third parties until the buyer has a reasonable opportunity to discover the nonobvious dangerous of the property
after the sale
ordinary contrinutory negligence is NOT a defense in a strict products liability action where the P merely _______ or guard against its existance, or where the P’s misuse was reasonable foreseeable
failed to discover the defect
Assumption of the risk is a defense in a SL case when the P engaged in _______ and _____ conduct and used the product despite discovering the defect and being aware of the danger
voluntary + unreasonable
under joint and several liablity, the ENTIRE AMOUNT can be collected from __of the defendants. That defendant, in turn, can seek to recover a proportional share of the damages from the other defendants.
ANY ONE
under ________ negligence principles, a P that is even 1% at fault may NOT recover
contributory
a limitation on the contirbutory negligence bar is when the D had the “_______” to avoid the harm - and in that situation, the P claim is NOT barred
last clear chance
the issue in this question is economic damages of a third party without accompanying physical harm.
Normally, pure economic loss may NOT be recovered by a third party as a matter of ____.
That is the type of harm the supporting actor is asserting in this question
public policy
Does the actual DEFENDANT have to forsee the harm cased?
No. It only has to be foreseeable as a general matter.
It is foreseeable that harming one indiciual would cause his colleague to suffer loss of revnue or be fired
are punitive damages recoverable in negligence cases?*
NO
NoPe
Negligence = NO punitive damages
*Unless additional proof is offered that the defendant was wanton, and willfull, reckkless, or malisious
are punitive damages generally recoverable in intentioanl torts?
Yes
PIT
Punitive = Intentioanl torts
ex:
Assault, Battery
As a common carrier, the airlines owes a duty to its passeners to furnish assistance when they are subject to danger, especialyl when its an result of conditions created by the airline that cause a foreseeable risk of harm.
Here, the flight attendant served the man a significant amount of booze, causing him to become intoxicated and agitated, and she did NOTHING when he became violent.
This was a breach of the affirmative ______ from such foreseeable risk of harm
duty to protec the plaintff
in special situations like common carriers, there is an _______ to protect passengers from foreseeable risks caused by its own conditions
affirmative duty
the motorist’s motion for a directed verdict should be granted because a person who is unconscious is ____ for the acts he had no control over unless it was FORESEEABLE and precautions were not taken
not liable
a directed verdict is a ruling entered by a trial judge after determining that there is no ___(LSEB) for a reasonable jury to reach a different conclusion
legally sufficient evidentiary basis
