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July 2023 MEE > Torts LAST PUSH > Flashcards

Torts LAST PUSH Flashcards

1
Q

Transferred Intent Torts

A

(a) assault
(b) battery
(c) false imprisonment
(d) trespass to land
(e) trespass to chattels

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2
Q

Battery

A

harmful or offensive contact with the Plaintiff’s person

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3
Q

Assault

A

act by defendant creating a reasonable apprehension in the plaintiff of an immediate battery

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4
Q

False Imprisonment

A

an act or omission by the defendant that constrains or restrains the plaintiff to a bounded area

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5
Q

Methods of Confinement for False Imprisonment

A

(a) physical barriers
(b) physical force directed against the Plaintiff, immediate family, or personal property
(c) direct threats of force
(d) indirect or implied threats of force
(e) failure to release the Plaintiff when under a legal duty
(f) invalid use of legal authority

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6
Q

Intentional Infliction of Emotional Distress

A

an act by the defendant amounting to extreme and outrageous conduct that causes the Plaintiff to suffer severe emotional distress

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7
Q

Conduct Not Normally “Extreme and Outrageous” May Become So If:

A

(i) continuous in nature
(ii) committed by a certain type of defendant
(iii) directed towards a certain type of plaintiff

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8
Q

Trespass to Land

A

physical invasion of the Plaintiff’s real property

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9
Q

Trespass to Chattels

A

act by the defendant that interferes with the Plaintiff’s right of possession in a chattel

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10
Q

Conversion

A

act by the defendant that interferes with the Plaintiff’s right of possession in a chattel - serious enough in nature and consequences to warrant that the defendant pay the chattels full value

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11
Q

Defenses to Intentional Torts

A

(A) Consent
(B) Protective Privileges
(C) Necessity

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12
Q

Express (Actual) Consent EXCEPTIONS:

A

(1) mistake will undo express consent if the defendant knew or took advantage of the mistake
(2) consent induced by fraud will be invalidated if it goes to an essential matter, not a collateral one
(3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation

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13
Q

Shopkeepers Privilege

A

(1) reasonable belief as to the fact of theft
(2) detention conducted in a reasonable manner and only nondeadly force
(3) detention made for a reasonable period of time and only for the purpose of making an investigation

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14
Q

Public Necessity

A

a defendant can raise public necessity as a defense if they acted to avert an imminent public disaster

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15
Q

Private Necessity

A

action was to prevent serious harm to a limited number of people - actor must pay for any injury caused

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16
Q

Duty Owed to Undiscovered Trespasser

A

artificial conditions: no duty

natural conditions: no duty

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17
Q

Duty Owed to Discovered or Anticipated Trespasser

A

artificial conditions: duty of reasonable care to warn of or make safe known conditions if nonobvious and highly dangerous

natural conditions: no duty

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18
Q

Duty Owed to Licensee (social guest)

A

artificial condition: duty of reasonable care to warn of or make safe known conditions if nonobvious and dangerous

natural conditions: duty of reasonable care to warn of or make safe known conditions if nonobvious and dangerous

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19
Q

Duty Owed to Invitee

A

artificial condition: duty of reasonable care to make reasonable inspections to discover nonobvious dangerous conditions and to warn or make them safe

natural condition: duty of reasonable care to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe

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20
Q

Attractive Nuisance

A

(1) a dangerous condition on the land that the owner is or should be aware of
(2) owner knows or should know that children might trespass on the land
(3) condition is likely to cause injury
(4) expense of remedying the situation is slight compared with the magnitude of risk

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21
Q

Statutory Standard of Care

A

only if:
(1) plaintiff is within the protected class
(2) statute was designed to prevent that type of harm suffered by the Plaintiff

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22
Q

Negligent Infliction of Emotional Distress

A

when defendant creates a foreseeable risk of physical injury to the plaintiff - satisfying the following two elements:
(1) plaintiff must be within the “zone of danger”
(2) must suffer physical symptoms from the distress

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23
Q

Bystander Recovery for NIED

A

a bystander outside the zone of danger of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as:
(1) plaintiff and person injured are closely related and
(2) plaintiff was present at the scene of the injury and personally observed or perceived the event

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24
Q

Res Ipsa Loquitor

A

(1) accident causing the injury is a type that would not normally occur unless someone was negligent
(2) negligence is probably attributable to the defendant

25
Q

Common Foreseeable Intervening Forces

A

normal responses or reactions to the situation created by the defendant’s negligent act are almost always foreseeable:
(1) medical malpractice
(2) negligence or rescuer
(3) protection or reaction forces to the defendant’s conduct, including efforts to protect person or property
(4) disease or accident substantially caused by the original injury

26
Q

Assumption of Risk

A

Plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendants act - plaintiff must have:
(1) known of the risk and
(2) voluntarily proceeded in the face of the risk

27
Q

Liability for Animals

A

an owner is not strictly liable for injuries caused by domesticated animals unless they have knowledge of that particular animal’s dangerous propensities that are not common to the species

28
Q

Abnormally Dangerous Activities

A

courts generally impose two requirements for finding an activity to be abnormally dangerous:
(1) activity must create a foreseeable risk of serious harm even when reasonable care is exercised
(2) activity is not a matter of common usage

29
Q

Product Liability Theories

A

(1) Intent
(2) Negligence
(3) Implied Warranties of Merchantability and Fitness for a Particular Purpose
(4) Representation theories
(5) Strict Liability

30
Q

Product Liability Strict Liability

A

(a) the defendant is a merchant
(b) the product is defective
(c) product was not substantially altered since leaving defendant’s control
(d) plaintiff was making a foreseeable use of the product at the time of the injury

31
Q

Product Liability - Manufacturing Defects

A

if a product emerges from the manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect

Plaintiff must show that the product failed to perform as safely as an ordinary consumer would expect

32
Q

Product Liability - Design Defect

A

when all products of a line are the same but have dangerous propensities, they may be found to have a design defect

plaintiff must show that the defendant could have made the product safer without serious impact on the products utility or price

33
Q

Products Liability - Information Defects

A

a product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent users

34
Q

Implied Warranties

A

(1) merchantability
(2) fitness for a particular purpose

35
Q

Warranty of Merchantability

A

whether the goods are of average acceptance quality and are generally fit for the ordinary purpose for which he goods are used

36
Q

Warranty of Fitness for a Particular Purposes

A

arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the sellers skill and judgment in selecting the goods

37
Q

Products Liability - Representation Theory

A

a defendant may be liable when a product does not live up to some affirmative representations

38
Q

Two Representation Theories

A

(a) express warranty
(b) misrepresentation of fact

39
Q

Express Warranty

A

any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty

40
Q

Misrepresentation of Fact

A

a seller will be liable for misrepresentation of facts concerning a product where:
(1) the statement was of a material fact concerning quality or uses of goods
(2) the seller intended to induce reliance by the buyer in a particular transaction

41
Q

Private Nuisance

A

substantial, unreasonable interference with another private individuals use or enjoyment of property the other individual actually possess or has a right of immediate possession

42
Q

Public Nuisance

A

an act that unreasonably interferes with the health, safety, or property rights of the community

43
Q

Employer-Employee Vicarious Liability

A

an employer will be vicariously liable for tortious acts committed by their employee if the act occurs within the scope of employment relationship

44
Q

Employer-Employee Vicarious Liability - Intentional Torts EXCEPTIONS

A

(A) employee is furthering the business of the employer
(B) force is authorized in the employment
(C) friction is generated by the employment

45
Q

Vicarious Liability Independent Contractor

A

employer of independent contractor is not vicariously liable unless the activity is inherently dangerous or a duty is nondelegable on public policy grounds

46
Q

Indemnification

A

shifting the entire loss between or among tortfeasors - available:
(1) in vicarious liability situations
(2) strict products liability for the non-manufacturer

47
Q

Defamation

A

(1) a defamatory statement that specifically identifies the plaintiff
(2) published to a a third party
(3) damage to plaintiff’s reputation
(4) falsity of the language
(5) fault on the part of the defendant

48
Q

Libel

A

(damages generally presumed) embodied in permanent form

49
Q

Slander

A

spoken - plaintiff must prove special damages unless it falls into slander per se categories

50
Q

Slander Per Se

A

(i) adversely reflects on the plaintiff’s business or profession
(ii) state that the plaintiff committed a serious crime
(iii) impute that the plaintiff has engaged in serious sexual misconduct
(iv) state that the plaintiff has a loathsome disease

51
Q

Invasion of Right to Privacy

A

(1) appropriation of the plaintiff’s picture or name
(2) intrusion on the plaintiff’s affairs or seclusion
(3) publication of facts placing the plaintiff in a false light
(4) public disclosure of private facts about the plaintiff

52
Q

Invasion of Privacy - Appropriation

A

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

53
Q

Invasion of Privacy - Intrusion Upon Seclusion

A

claim forbids such as eavesdropping, spying, interception - act of prying or intruding must be highly offensive to a reasonable person

54
Q

Invasion of Privacy - Publication of Facts Placing Plaintiff in False Light

A

one attributes to the plaintiff views they do not hold or actions they did not take - highly offensive to a reasonable person

55
Q

Invasion of Privacy - Public Disclosure of Private Facts

A

wrong involves public disclosure of private information about the plaintiff - highly offensive to a reasonable person

56
Q

Misrepresentation

A

(A) misrepresentation of a material past or present fact
(B) scienter
(C) intent to induce the plaintiff to act or refrain from acting in reliance upon
(D) causation
(E) justifiable reliance
(F) damages

57
Q

Duty to Disclose

A

(1) stands in a fiduciary relationship to the plaintiff
(2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction, (3) has spoken and their utterance deceives the plaintiff

58
Q

Negligent Misrepresentation

A

(1) misrepresentation by the defendant in a business or professional capacity
(2) breach of duty toward a particular plaintiff
(3) causation
(4) justifiable reliance
(5) damages

59
Q

Interference with Business Relations

A

(A) existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff
(B) defendant’s knoweldge of the relationship or expectancy
(C) intentional interference by the defendant in inducing a breach or termination of the relationship or epxectancy
(D) damages

July 2023 MEE (16 decks)

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