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Bar Exam > Torts Review > Flashcards

Torts Review Flashcards

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1
Q

Regarding damages recoverable in negligence, what might result in a reduced recovery for a plaintiff?

A

Failure to mitigate damages; In property damage cases, the plaintiff has a duty to preserve and safeguard the property, and in personal injury cases, he has the duty to seek appropriate treatment to effect a cure or healing and to prevent aggravation.

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2
Q

What kinds of damages are recoverable in a wrongful death action?

A

The measure of recovery in wrongful death actions under most statutes allows recovery for loss of support, loss of companionship, etc.

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3
Q

In a strict liability case for products liability, who is the only defendant you may recover from?

A

commercial supplier : a manufacturer, retailer, assembler, or wholesaler

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4
Q

What is the effect of a pure comparative negligence policy?

A

recovery is allowed no matter how great the plaintiff’s negligence is

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5
Q

What is the effect of a partial comparative negligence policy?

A

a plaintiff will be barred from recovery if his negligence is greater than 50%

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6
Q

What must a plaintiff show to establish that a manufacturer’s negligence resulted in a design defect?

A

the plaintiff must show that those designing the product knew or should have known enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed.

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7
Q

Elements of CL defamation

A

(i) statement

(ii) About the P

(iii) Publisized / to a third person

(iv) Damage to the reputation of the plaintiff.

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8
Q

A prima facie case for intentional infliction of emotional distress requires…

A

(i) extreme and outrageous conduct;

(ii) Intent to cause the plaintiff to suffer severe emotional distress, OR recklessness as to the effect;

(iii) Causation; and

(iv) Damages - severe emotional distress.

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9
Q

Assault elements

A

(i) An act creating a reasonable apprehension of immediate harmful or offensive contact to the plaintiff’s person;

(ii) Intent to bring about apprehension

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10
Q

In a strict liability action in tort, what uses are manufacturers liable / not liable for?

A

Manufacturers must anticipate reasonably foreseeable misuses of a product, but a product manufacturer is not liable if the injury results from an unintended and unforeseeable misuse of the product.

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11
Q

What is a landowner’s duty to his neighbors when it comes to his own activities / his guests?

A

A landowner has a duty to exercise reasonable care with respect to his own activities on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to those outside the property.

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12
Q

Elements of battery

A

(1) harmful or offensive contact (2) with the P’s person

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13
Q

To establish a prima facie case for ANY intentional tort, you must show…

A

(1) an act by D; (2) intent of D, (3) causation of the result to P from the D’s act

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14
Q

False imprisonment elements

A

(1) an act or omission on the part of the D that confines or restrains the P; (2) the P must be confined to a bounded area

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15
Q

What are the two most common tested methods of restraint that are NOT enough to legally confine or restrain?

A

moral pressure and future threats

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16
Q

What is extreme and outrageous conduct?

A

transcends all bounds of decency (could be (1) continuous; (2) committed by a certain D; committed against a certain P)

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17
Q

IIED to a 3rd party elements

A

Either the prima facie case elements OR (1) they were present when the injury occurred; (2) the distress resulted in bodily harm OR the plaintiff is a close relative; and (3) the D knew these facts

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18
Q

Elements of trespass to land

A

(1) physical invasion (2) of the P’s real property (no intent or damage req)

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19
Q

elements of trespass to chattels

A

(1) act by the D that (2) interferes with the plaintiff’s right of possession in a chattel

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20
Q

elements of conversion

A

(1) act by the D that (2) interferes with the plaintiff’s right of possession in a chattel so seriously that the D should pay the chattel’s full value to the P

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21
Q

Possible remedies for conversion?

A

Replevin or damages(fair market value at conversion)

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22
Q

Remedy for trespass to chattels?

A

actual damages from harm or loss of use

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23
Q

What are the defenses to intentional torts?

A

consent, self-defense, defense of others, defense of property, recapture of chattels, public necessity, private necessity

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24
Q

When may self-defense be used?

A

when one reasonably believes that they are being or are about to be attacked, they may use force as is reasonably necessary to protect against the injury (no duty to retreat)

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25
Q

When may defense of others be used?

A

one may use force to defend another when they reasonably believe that the other person could have(/had a right to) used force to defend themselves

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26
Q

When may defense of property be used?

A

After a request to desist/leave, one may use reasonable force. Cannot use once the tort has been committed - but may use in hot pursuit

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27
Q

Shopkeeper’s privilege elements

A

there must be (1) reasonable belief as to the theft (2) detention must be conducted in a reasonable manner), (3) detention must be for a reasonable time and only for investigatory purposes

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28
Q

How may you recover real property?

A

via an ejectment proceeding

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29
Q

How may you recover chattels?

A

only peacefully, once the tort has been committed

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30
Q

When may a D assert the defense of public necessity?

A

if they acted to avert an imminent public disaster

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31
Q

When may a D assert the defense of private necessity?

A

if they acted to prevent serious harm to a limited number of people

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32
Q

Elements for prima facie case of negligence

A

(1) D owed P a duty, (2) there was a breach of the duty (3) the breach was the actual and proximate cause of P’s injury, and (4) damages

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33
Q

What standard are children held to in negligence?

A

the standard of a child of like age, intelligence, and experience

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34
Q

What standard are professionals held to in negligence?

A

as possessing the knowledge and skill of an average member of the profession

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35
Q

What duty does a possessor of land owe to unknown trespassers?

A

No duty

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36
Q

What duty does a possessor of land owe to known (discovered or anticipated) trespassers?

A

Must warn of or make safe any conditions that are (1) artificial, (2) highly dangerous, (3) concealed, (4) known to the land possessor in advance

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37
Q

What duty does a possessor of land owe to licensees? (and what are they)

A

Licensee is one who enters onto the land with the possessor’s permission for their own purpose or business

Must warn of or make safe any hazardous conditions that are (1) concealed, and (2) known to the land possessor in advance

38
Q

What duty does a possessor of land owe to invitees? (and what are they)

A

Enter the land either to do business with the possessor or enter for a purpose for which the land is held open to the public. they lose invitee status if their conduct does not conform to the purpose of the invite.

Owes a duty for hazardous conditions that are (1) concealed, and (2) known to the land possessor in advance OR could have been discovered by a reasonable investigation

39
Q

What must an attractive nuisance P show?

A

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

40
Q

Elements of negligent infliction of emotional distress

A

(1) P must be in the zone of danger and (2) P must suffer physical symptoms from the distress (minority of states drop #2)

41
Q

Bystander in negligence case elements to recover for their own distress

A

(1) P and the injured person are closely related and (2) the P was present at the scene and personally observed / perceived the event

42
Q

What happens in a negligent infliction of ED case where there is a special relationship (i.e. doctor-patient, mortician, therapist, etc.) ?

A

if the nature of the relationship makes the D more likely to be able to inflict great emotional distress in case of negligence, will be liable for negligent infliction of emotional distress AND the underlying negligence. (i.e. wildly wrong and negligent diagnosis (terminal illness))

43
Q

How may a P show that a D breached their duty of care in a negligence action?

A

(1) custom in industry, (2) violation of statute (negligence per se), or (3) res ipsa loquitor

44
Q

What intervening forces might a D argue were not foreseeable that they WILL be liable for?

A

Medical malpractice, negligence of rescuers, protection or reaction forces to the D’s conduct , disease or accident

45
Q

What intervening forces might a D argue were not foreseeable that they WILL NOT be liable for?

A

negligent acts of 3d persons, crimes and intentional torts of 3d persons, and acts or God

46
Q

What damages may you seek for personal injury?

A

all damages past, present, and prospective; both economic (medical expenses) and noneconomic (pain and suffering)

47
Q

What damages may you seek for property damage?

A

reasonable cost of repair or (if totally or almost totally destroyed) fair market value at the time of the accident. No emotional distress damages for property torts (including someone killing your pet :( )

48
Q

What punitive damages may you seek in a negligence case?

A

Generally not available - only if D’s conduct is wanton and willful, reckless, or malicious

49
Q

What damages may you never seek in negligence?

A

(1) interest from the date of damage in a personal injury action (“pre-judgment interest”), (2) attorneys’ fees

50
Q

When has a P assumed risk for negligence purposes? and what is the effect of that?

A

P must have (1) known of the risk and (2) voluntarily proceeded in the face of that risk.

They will be denied recovery

51
Q

What negligence recovery policy should I assume all questions on the MBE use (unless stated otherwise)?

A

pure comparative negligence - i.e. allow recovery no matter how great P’s negligence was

52
Q

What is a partial comparative negligence recovery scheme?

A

P’s damage aware will be reduced if their fault is below the threshold level - otherwise, its barred

53
Q

Are parents vicariously liable for the intentional torts of their children?

A

No. Parents are not vicariously liable at common law for the intentional torts of their children (although many states have imposed limited liability for certain conduct by statute). However, a parent (or anyone else having care or custody of a child) can be held liable for injuries caused by the child where the parent herself was negligent.

54
Q

Elements for slander per se

A

A defamatory statement communicated to another constitutes slander per se if it adversely reflects on a person’s abilities in her business or profession. At common law, damages are presumed for slander per se.

55
Q

If slander does not fall into one of the slander per se categories, what, other than falsity, does a plaintiff absolutely have to show to prevail?

A

the consumer will not prevail without a showing of special damages

56
Q

Elements! How to establish a prima facie case in products liability based on strict liability in tort

A

To establish a prima facie case in products liability based on strict liability in tort, the following elements must be proved: (i) the defendant is a commercial supplier (ii) that produced or sold a product that was defective when it left the defendant’s control (iii) that actually and proximately caused (iv) damage to the plaintiff’s person or property. To establish the second element, the plaintiff need prove only that the product in fact is so defective as to be “unreasonably dangerous.”

57
Q

What is the second element of a prima facie case in products liability based on strict liability in tort and how must a plaintiff show it?

A

The second element of a products liability based on strict liability in tort is “a product that was defective when it left the defendant’s control.” To establish the second element, the plaintiff need prove only that the product in fact is so defective as to be “unreasonably dangerous.”

58
Q

If you destroy someone elses property (reasonably) for the public good, what kind of damages can the owner of the property seek from you?

A

None, bitch! One may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it. Where the act is for the public good, the defense is absolute and no damages may be recovered by the party whose property was injured.

59
Q

Elements : prima facie case for interference with business relations

A

To establish a prima facie case for interference with business relations, the following elements must be proved: (i) existence of a valid contractual relationship between plaintiff and a third party or a valid business expectancy of plaintiff; (ii) defendant’s knowledge of the relationship or expectancy; (iii) intentional interference by defendant that induces a breach or termination of the relationship or expectancy; and (iv) damage to plaintiff.

60
Q

Strict liability - Domestic animal

A

not strictly liable UNLESS owner know of that particular animal’s dangerous propensities (domestic animals include farm animals like bulls and honeybees)

61
Q

Strict liability - trespassing animal

A

an owner is strictly liable for the reasonably foreseeable damage done by a trespass of his animal

62
Q

Strict liability - Wild animal

A

owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those that are kept as pets)

63
Q

Strict liability - Animals when the injured party is a trespasser

A

not liable to trespassers unless the owner was negligent.

64
Q

Strict liability - abnormally dangerous activity (requirements)

A

(1) activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors and (2) the activity is not a matter of common usage in the community

65
Q

Private nuisance

A

a substantial unreasonable interference with another private individual’s use or enjoyment of property that they have a right to possess (average member of the community standard; severity of the injury must outweigh the utility of the D’s conduct)

66
Q

public nuisance

A

unreasonably interferes with the health safety or property rights of the community . Recovery by private party only allowed if the private party suffered unique damage not suffered by the public at large

67
Q

Vicarious liability - Employer - EE generally

A

will be liable if the tortious acts occur within the scope of the employment relationship

frolic/detour - makes a minor deviation, still in scope of employment; if substantial, the employer is not liable

68
Q

Vicarious liability - Employer - EE intentional torts

A

employer not vicariously liable unless the the (1) ee is furthering the business of the employer, (2) force is authorized in the employment, or (3) friction is generated by the employment

69
Q

Employer liability for own negligence?

A

Happens if the employer negligently selected or supervised their employees or independent contractors

70
Q

Vicarious liability - Employer - Independent contractor

A

NOT LIABLE, but there are public policy exceptions to the rule where a duty is nondelegable (like keeping its a business ‘premises safe for customers)

71
Q

vicarious liability - partners and joint venturers

A

liable for the conduct of another member committed in the scope and course of the affairs of the partnership or joint venture

72
Q

Automobile owner liability if someone else is driving (generally and exceptions)

A

not liable for the tortious conduct of another person driving the vehicle subject to exceptions:

(1) family car - liable for tortious conduct of immediate family or household members driving with express or implied permission

(2) liability for own negligence in negligently entrusting car to a driver

73
Q

Is a parent vicariously liable for the tortious conduct of their kids?

A

no, but most states have statutes making parents liable for any willful and intentional torts of their child up to a certain dollar amount)

BUT will be vicariously liable if child is acting as the agent of the parents

And parents could be held liable in negligence themselves for negligently allowing the child to do something

74
Q

Tavernkeepers. Common Law verses modern law majority

A

CL, no liability for injuries resulting from patrons intoxication, unless proven under regular theory of negligence.

Modern law, Dramshop act- usually create a cause of action in favor of any third person injured by the intoxicated person

75
Q

What is joint and severable liability?

A

When two or more negligent acts come together, combine, and proximately cause an indivisible injury

76
Q

Defamation elements

A

Defamatory statement that specifically identifies the P, published to a third party, falsity, fault on D’s part, and damage to P’s reputation

77
Q

“fault on the defendants part” in defamation means what for Public Official or Public figure?

A

Public figure means achieving pervasive fame or notoriety OR voluntarily assuming a central role in a public controversy

They must show actual malice - knowledge that the statement was false OR reckless disregard as to falsity

78
Q

“fault on the defendants part” in defamation means what for private persons?

A

only negligence of the falsity must be proved if the statement is of public concern; if not public concern, constitutional limitations do not apply

79
Q

Damages - presumed or not? Libel, Slander

A

Libel (written / permanent form) general damages are presumed.

Slander (spoken) must prove special damages unless in a slander per se category

80
Q

Slander per se categories

A

adversely effect business or profession, serious crime committed (most common law crimes), serious sexual misconduct, loathsome disease

81
Q

Defenses to defamation

A

consent,

truth,

absolute privilege (can never be lost)(spouses, judicial proceedings, remarks by legislators during proceedings, federal executive officials in compelled broadcasts),

qualified privilege (can be lost through abuse)(references and recommendations, reports of public hearings or meetings, statements made to those who are to take official action , statements made to defend one’s own actions, property or reputation

82
Q

Appropriation

A

(1) unauthorized use of plaintiffs picture or name (2) for the defendants commercial advantage

83
Q

False light

A

one attributes to P views they do not hold or actions they did not take - it must be highly offensive to a reasonable person under the circumstances

For liability, D must circulate the statement to the public at large

84
Q

Public disclosure of private facts

A

the public disclosure must be highly offensive to a reasonable person of ordinary sensibilities; liability even if the fact is true

85
Q

Defenses to appropriation, false light, public disclosure of private facts?

A

consent, and privilege (truth is NOT a good defense)

86
Q

Misrepresentation elements

A

(1) misrepresentation of a material past or present fact,
(2) scienter when the D made the statement (knew or believed it to be false / had no basis when they made the statement)
(3) intent to induce the P to act or refrain from acting in reliance on the misrepresentation
(4) causation (actual reliance)
(5) justifiable reliance
(6) Damages (P must suffer actual pecuniary loss)

87
Q

DEfenses to Misrepresentation

A

None, idiot

88
Q

Negligent misrepresentation elements

A

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

89
Q

interference with business relations elements

A

(1) existence of a K relationship between P and 3d party (or valid business expectancy of P)
(2) D knows of relationship or expectancy
(3) intentional interference by D inducing a breach or termination of the relationship or expectancy
(4) damages

90
Q

What is the duty of reasonable care?

A

(1) when a person engages in an activity, they are under a legal duty to act as a reasonably prudent person, under the same or similar circumstances
(2) this general duty is owed to foreseeable plaintiffs, which are the class of persons who were foreseeably endangered by D’s negligent conduct.

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