TORTS LAW Flashcards
Negligence
NR DBCD
Rule Statement:
Negligence requires:
(1) duty,
(2) breach,
(3) causation, and
(4) damages.
Duty:
The defendant must owe a legal duty to the plaintiff to conform to a specific standard of conduct to protect the plaintiff from an unreasonable risk of harm.
Breach:
The defendant must fail to meet the standard of conduct required, breaking the duty owed to the plaintiff.
Causation:
There must be a causal connection between the defendant’s breach of duty and the harm suffered by the plaintiff. This includes both actual cause (cause-in-fact) and proximate cause (legal cause).
Damages:
The plaintiff must suffer actual harm or injury as a result of the defendant’s breach. Damages can include physical injury, property damage, and emotional distress.
Common Tricks on the Exam:
Duty of Care:
Questions might suggest a duty where none exists. Ensure there is a recognized legal duty owed by the defendant to the plaintiff.
Proving Breach:
Fact patterns may overlook the specifics of how the standard of care was breached. Confirm the breach is clearly demonstrated.
Establishing Causation:
Scenarios might confuse actual cause with proximate cause. Verify both elements are satisfied to establish causation.
Quantifying Damages:
Questions might imply nominal damages suffice. Ensure the plaintiff has suffered actual, compensable harm.
Duty of Care
ADOC IO 2AFP
Rule Statement:
A duty of care is owed to all foreseeable plaintiffs.
Owed to All Foreseeable Plaintiffs:
The duty of care extends to those individuals who could reasonably be anticipated to be affected by the defendant’s actions.
Common Tricks on the Exam:
Scope of Duty:
Questions might suggest the duty of care is owed to unforeseeable plaintiffs. Ensure the duty is only to foreseeable plaintiffs.
Specific Relationships:
Fact patterns may overlook specific relationships that create a duty of care. Confirm the relationship between the parties establishes a duty.
General vs. Specific Duty:
Scenarios might confuse general duty with specific duty of care in certain situations. Verify the context-specific duty of care applicable to the case.
Standard of Care
TBSOC IA RPS
Rule Statement:
The basic standard of care is a reasonable person standard.
Reasonable Person Standard:
The standard of care is measured by what a reasonably prudent person would do under similar circumstances.
Common Tricks on the Exam:
Subjective vs. Objective Standard:
Questions might confuse subjective beliefs with the objective reasonable person standard. Ensure the focus is on what a reasonable person would do.
Variations in Standard:
Fact patterns may overlook situations where the standard of care varies (e.g., professionals, children). Confirm if a specialized standard applies.
Specific Circumstances:
Scenarios might ignore the context of the situation. Verify that the standard considers the specific circumstances of the case.
Negligence Per Se
ASDMR CLDOC CNPSI
SPFCP
SCDSOC
PIWPC
SWD2PTOHSBTP
Rule Statement:
A statutory duty may replace common law duty of care, creating negligence per se, if:
The statute provides for a criminal penalty;
The statute clearly defines the standard of conduct;
The plaintiff is within the protected class; and
The statute was designed to prevent the type of harm suffered by the plaintiff.
Requirements for Negligence Per Se:
Provides for a Criminal Penalty:
The statute must impose a criminal penalty for its violation.
Clearly Defines the Standard of Conduct:
The statute must explicitly outline the required behavior or actions.
Plaintiff is Within the Protected Class:
The plaintiff must belong to the group of individuals the statute aims to protect.
Designed to Prevent the Type of Harm Suffered:
The harm the plaintiff suffered must be the kind the statute was intended to prevent.
Common Tricks on the Exam:
Statutory Purpose:
Questions might misinterpret the purpose of the statute. Ensure the statute is designed to prevent the specific type of harm suffered.
Protected Class:
Fact patterns may overlook whether the plaintiff is within the protected class. Confirm the plaintiff falls under the statute’s protection.
Criminal Penalty Requirement:
Scenarios might ignore the necessity of a criminal penalty. Verify the statute includes a criminal penalty for violations.
Actual Causation
PMETHWNHOB4DC
Rule Statement:
Plaintiff must establish that harm would not have occurred but-for the defendant’s conduct.
But-For:
The harm would not have happened if the defendant had not engaged in the conduct.
Defendant’s Conduct:
The actions or omissions of the defendant that are being claimed as the cause of the plaintiff’s harm.
Common Tricks on the Exam:
Concurrent Causes:
Questions might suggest that multiple causes can confuse actual causation. Verify that the “but-for” test is satisfied.
Foreseeability:
Fact patterns may conflate actual causation with proximate causation (which involves foreseeability). Confirm actual causation focuses on the direct link between conduct and harm.
Alternative Scenarios:
Scenarios might present alternative causes. Ensure the focus is on whether the harm would have occurred but-for the defendant’s conduct.
Proximate Causation
DIL 4LFH CBUC
Rule Statement:
Defendant is liable for all foreseeable harm caused by the underlying conduct.
All Foreseeable Harm Caused:
The defendant is responsible for harm that a reasonable person could foresee as a result of their actions.
Underlying Conduct:
The specific actions or omissions of the defendant that led to the harm.
Common Tricks on the Exam:
Foreseeability vs. Actual Causation:
Questions might conflate proximate causation with actual causation. Ensure the focus is on the foreseeability of the harm.
Chain of Events:
Fact patterns may complicate the directness of the harm. Confirm that the harm was a foreseeable result of the defendant’s conduct, even if other events intervened.
Extent of Harm:
Scenarios might overlook that proximate causation covers the extent of harm, not just the initial impact. Verify all foreseeable consequences are considered.
Intervening Cause
WMFC2I AUIE SCC B DA&PI
Intervening Cause
ICUICESDAAPI
Rule Statement:
When multiple forces contribute to the injury, an unforeseeable intervening event severs the causal connection between a defendant’s acts and a plaintiff’s injury.
Unforeseeable Intervening Event:
An event that is not anticipated and interrupts the chain of causation.
Causal Connection:
The link between the defendant’s actions and the plaintiff’s harm.
Defendant’s Acts:
The actions or omissions of the defendant initially contributing to the situation.
Plaintiff’s Injury:
The harm suffered by the plaintiff.
Common Tricks on the Exam:
Foreseeability of the Event:
Questions might confuse foreseeable and unforeseeable events. Ensure the intervening cause is truly unforeseeable to sever liability.
Maintaining Causation:
Fact patterns may suggest an intervening cause where the original causation remains. Verify if the causal link is actually severed.
Extent of the Injury:
Scenarios might ignore that proximate causation can still apply if the harm was foreseeable, despite an intervening cause. Confirm the event breaks the causal chain completely.
Assumption of Risk
APWKOR + VPITFOR MBDR
Rule Statement:
A plaintiff who knew of risk and voluntarily proceeded in the face of the risk may be denied recovery.
Knew of Risk:
The plaintiff was aware of the potential danger involved in the activity or situation.
Voluntarily Proceeded in the Face of the Risk:
The plaintiff chose to continue despite knowing the risk.
Denied Recovery:
The plaintiff may not be entitled to compensation for any resulting harm.
Common Tricks on the Exam:
Awareness of Risk:
Questions might suggest the plaintiff did not fully understand the risk. Ensure the plaintiff had actual knowledge of the risk.
Voluntariness:
Fact patterns may overlook whether the plaintiff’s decision to proceed was truly voluntary. Confirm the plaintiff was not coerced or under duress.
Extent of Recovery Denial:
Scenarios might imply partial recovery is possible. Verify that assumption of risk can lead to a complete bar on recovery.
Contributory Negligence
PWF2ERC C2 LCOTOI MBDR O HDRDJX
Rule Statement:
Plaintiffs whose failure to exercise reasonable care contributes to the legal cause of their own injuries may be denied recovery or have damages reduced, depending on the jurisdiction.
Failure to Exercise Reasonable Care:
The plaintiff did not act as a reasonably prudent person would under similar circumstances.
Legal Cause:
The plaintiff’s negligence must be a contributing factor to the harm they suffered.
Own Injuries:
The injuries that the plaintiff is seeking recovery for.
Denied Recovery or Damages Reduced:
In some jurisdictions, contributory negligence can completely bar recovery, while in others it can lead to a reduction in the amount of damages awarded.
Common Tricks on the Exam:
Extent of Contributory Negligence:
Questions might suggest minor negligence can completely bar recovery. Verify the jurisdiction’s rule on contributory versus comparative negligence.
Jurisdictional Variations:
Fact patterns may ignore differences between contributory and comparative negligence jurisdictions. Confirm the specific rule applicable to the scenario.
Reduction of Damages:
Scenarios might misinterpret the effect on damages. Ensure understanding of whether recovery is barred or damages are reduced based on the jurisdiction.
“Pure” Comparative Negligence
CN RROD IP2F
Rule Statement:
Contributory negligence reduces recovery of damages in proportion to fault.
Reduces Recovery:
The amount of compensation the plaintiff can receive is decreased.
Damages:
The monetary compensation sought by the plaintiff for their injuries.
Proportion to Fault:
The reduction in recovery is directly related to the percentage of fault attributed to the plaintiff.
Common Tricks on the Exam:
Extent of Fault:
Questions might overlook the exact percentage of fault. Ensure recovery is reduced precisely in accordance with the plaintiff’s degree of fault.
Comparison with Contributory Negligence:
Fact patterns may confuse pure comparative negligence with contributory negligence. Confirm the jurisdiction applies pure comparative negligence.
Calculation of Damages:
Scenarios might misinterpret how damages are calculated. Verify that the plaintiff’s recovery is proportionally reduced based on their fault.
“Partial” Comparative Negligence
CN BROD IP IS>50% AF
Rule Statement:
Contributory negligence bars recovery of damages if plaintiff is more than 50% at fault.
Bars Recovery:
The plaintiff cannot receive any compensation if their fault exceeds a certain threshold.
Damages:
The monetary compensation sought by the plaintiff for their injuries.
More than 50% at Fault:
The plaintiff’s recovery is completely barred if they are found to be more than 50% responsible for the harm.
Common Tricks on the Exam:
Threshold for Fault:
Questions might suggest recovery is barred at lower fault percentages. Ensure the threshold is more than 50%.
Comparison with Pure Comparative Negligence:
Fact patterns may confuse partial comparative negligence with pure comparative negligence. Confirm the jurisdiction applies partial comparative negligence.
Exact Fault Calculation:
Scenarios might misinterpret the specific fault percentage. Verify that the plaintiff’s fault is accurately assessed to determine if it exceeds 50%.
Respondeat Superior
AEIL4T CBE AIC&SOE
Rule Statement:
An employer is liable for torts committed by employees who are acting in the course and scope of their employment.
Liable:
The employer is legally responsible for the actions of their employees.
Torts Committed:
Wrongful acts, such as negligence or intentional harm, done by the employee.
Employees:
Individuals hired by the employer to perform work or services.
Acting:
Engaging in conduct or performing duties.
Course and Scope:
The activities or tasks that are part of the employee’s job responsibilities.
Employment:
The relationship between the employer and employee, including the duties and activities the employee is hired to perform.
Common Tricks on the Exam:
Scope of Employment:
Questions might misinterpret activities as outside the scope of employment. Ensure the actions were within the employee’s job duties.
Independent Contractors:
Fact patterns may confuse employees with independent contractors. Verify the individual is an employee, not an independent contractor.
Intentional Torts:
Scenarios might overlook that some intentional torts are covered under respondeat superior. Confirm the tortious act relates to the employment duties.
Intentional Torts: Trespass to Land
AI&PIOPP
Rule Statement:
An intentional and physical invasion of plaintiff’s property.
Intentional and Physical Invasion:
The act of deliberately entering or causing a tangible object to enter another’s property.
Plaintiff’s Property:
The land or premises owned or legally occupied by the plaintiff.
Common Tricks on the Exam:
Intent Requirement:
Questions might suggest that accidental entry constitutes trespass. Ensure the invasion was intentional.
Nature of Invasion:
Fact patterns may overlook the need for a physical invasion. Confirm the invasion was tangible and physical.
Ownership and Possession:
Scenarios might confuse the plaintiff’s right to claim trespass. Verify the plaintiff owns or legally occupies the property.
Intentional Torts: Trespass to Chattels
AII W AROP 2PP
Rule Statement:
An intentional interference with another’s right of possession to personal property.
Intentional Interference:
The act of deliberately disrupting the plaintiff’s control over their property.
Right of Possession:
The plaintiff’s legal right to possess the personal property.
Personal Property:
Moveable items or belongings, as opposed to real property (land or buildings).
Common Tricks on the Exam:
Intent Requirement:
Questions might suggest that negligent interference constitutes trespass to chattels. Ensure the interference was intentional.
Possession vs. Ownership:
Fact patterns may confuse possession with ownership. Confirm the plaintiff’s right to possess the property, not necessarily own it.
Extent of Interference:
Scenarios might misinterpret minor disruptions as trespass. Verify that the interference was significant enough to warrant a claim.
Intentional Torts: Conversion
ASII W AROP 2TE TTD RPOTP FMV
Rule Statement:
A substantial intentional interference with another’s right of possession to the extent that the damages require payment of the property’s full market value.
Substantial Intentional Interference:
The act of deliberately and significantly disrupting the plaintiff’s control over their property.
Right of Possession:
The plaintiff’s legal right to possess the personal property.
Property’s Full Market Value:
The extent of the interference is so significant that the defendant must pay the full value of the property.
Common Tricks on the Exam:
Extent of Interference:
Questions might confuse minor interference with substantial interference. Ensure the interference warrants full market value compensation.
Possession vs. Ownership:
Fact patterns may confuse possession with ownership. Confirm the plaintiff’s right to possess the property, not necessarily own it.
Valuation of Damages:
Scenarios might suggest partial damages. Verify that the interference justifies the property’s full market value compensation.
Intentional Torts: Battery
AII OHOOC OPP
Rule Statement:
An intentional infliction of harmful or offensive contact on plaintiff’s person.
Intentional Infliction:
The act must be done with the purpose or knowledge that harmful or offensive contact will occur.
Harmful or Offensive Contact:
The contact must cause injury, pain, or be offensive to a reasonable person.
Plaintiff’s Person:
The contact must be with the plaintiff’s body or something closely associated with it.
Common Tricks on the Exam:
Intent Requirement:
Questions might suggest accidental contact constitutes battery. Ensure the contact was intentional.
Nature of Contact:
Fact patterns may overlook whether the contact was harmful or offensive. Confirm the contact meets this criterion.
Plaintiff’s Person:
Scenarios might confuse contact with the plaintiff’s body with contact involving objects. Verify the contact involves the plaintiff’s person or closely associated items.
Intentional Torts: Abnormally Dangerous Activity
AIROSH2POP CBPWOTR ROC + NC2AWP
Rule Statement:
The activity involves risk of serious harm to people or property, cannot be performed without that risk, regardless of care, and is not common to the area where performed.
Involves Risk of Serious Harm:
The activity poses a significant danger of causing serious harm.
People or Property:
The risk must be to individuals or their property.
Cannot be Performed Without That Risk:
The danger cannot be eliminated even with the utmost care.
Not Common:
The activity is unusual or uncommon in the area where it is conducted.
Area Where Performed:
The location where the activity takes place.
Common Tricks on the Exam:
Extent of Risk:
Questions might suggest that minor risks qualify. Ensure the activity involves a serious risk of harm.
Elimination of Risk:
Fact patterns may overlook that the risk cannot be mitigated by taking precautions. Confirm the risk persists regardless of care.
Commonality:
Scenarios might imply the activity is common in the area. Verify the activity is unusual or uncommon where it is performed.
Intentional Torts: Defamation
ADSCP TIP2A3P + CD
Rule Statement:
A defamatory statement concerning the plaintiff that is published to a third party and causes damages.
Defamatory Statement Concerning:
A statement that harms the plaintiff’s reputation or subjects them to ridicule, contempt, or hatred.
Plaintiff:
The person about whom the statement is made.
Published:
The statement is communicated to someone other than the plaintiff.
Third Party:
An individual or group who receives the defamatory statement.
Causes Damages:
The statement must result in harm to the plaintiff, such as financial loss, emotional distress, or reputational damage.
Common Tricks on the Exam:
Nature of the Statement:
Questions might overlook whether the statement is truly defamatory. Ensure it harms the plaintiff’s reputation.
Publication Requirement:
Fact patterns may ignore that the statement must be communicated to a third party. Confirm it was published.
Harm to Plaintiff:
Scenarios might suggest defamation without actual damages. Verify the statement caused harm to the plaintiff.
Intentional Torts
Intentional Torts
Battery
Rule Statement: Battery is the intentional infliction of harmful or offensive contact with the plaintiff’s person.
Elements:
Intent to cause contact
Harmful or offensive contact occurs
Contact is with the plaintiff’s person
Mnemonic: ICH (Intent, Contact, Harmful/Offensive)
Tested: February 2011
False Imprisonment
Rule Statement: False imprisonment is the intentional confinement of the plaintiff within fixed boundaries without lawful justification.
Elements:
Intent to confine
Actual confinement occurs
Plaintiff is aware of the confinement or harmed by it
Mnemonic: IFA (Intent, Fixed boundaries, Awareness)
Tested: February 2012
Consent
Rule Statement: Consent is a defense to intentional torts if the plaintiff has agreed to the defendant’s conduct.
Elements:
Voluntary agreement
Informed consent
Within the scope of the consent
Mnemonic: VIS (Voluntary, Informed, Scope)
Tested: February 2011
Battery
Battery
Rule Statement: Battery is the intentional infliction of harmful or offensive contact with the plaintiff’s person.
Elements:
Intent to cause contact
Harmful or offensive contact occurs
Contact is with the plaintiff’s person
Mnemonic: ICH (Intent, Contact, Harmful/Offensive)
False Imprisonment
False Imprisonment
Rule Statement: False imprisonment is the intentional confinement of the plaintiff within fixed boundaries without lawful justification.
Elements:
Intent to confine
Actual confinement occurs
Plaintiff is aware of the confinement or harmed by it
Mnemonic: IFA (Intent, Fixed boundaries, Awareness)
Consent
Consent
Rule Statement: Consent is a defense to intentional torts if the plaintiff has agreed to the defendant’s conduct.
Elements:
Voluntary agreement
Informed consent
Within the scope of the consent
Mnemonic: VIS (Voluntary, Informed, Scope)
General Negligence
General Negligence
Rule Statement: Negligence occurs when a defendant breaches a duty of care owed to the plaintiff, causing harm.
Elements:
Duty of care
Breach of duty
Causation (both actual and proximate)
Damages
Mnemonic: DBCH (Duty, Breach, Causation, Harm)
Children
Children
Rule Statement: A child is held to the standard of care of a child of similar age, experience, and intelligence.
Exception: If engaged in adult activity, held to an adult standard.
Tested: July 2015
Owners and Occupiers of Land
Trespassers: No duty to undiscovered trespassers. Duty to warn or make safe known artificial dangers for discovered trespassers.
Licensees: Duty to warn or make safe known dangers.
Invitees: Duty to inspect and make safe known and discoverable dangers.
Attractive Nuisance
Attractive Nuisance
Rule Statement: Landowners owe a duty to children to protect against dangers posed by artificial conditions on their land.
Elements:
Artificial condition
Likely to attract children
Unreasonable risk of harm
Children unable to appreciate the risk
Burden of eliminating danger slight compared to risk
Mnemonic: ALUCB (Attraction, Likely, Unreasonable, Child, Burden)
Negligence Per Se
Negligence Per Se
Rule Statement: A statutory violation establishes a breach of duty if the statute was designed to protect against the type of harm suffered by the plaintiff.
Elements:
Statutory violation
Harm of the type the statute intended to prevent
Plaintiff within the class the statute intended to protect
Mnemonic: SHC (Statute, Harm, Class)
