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Bar Prep > Torts Review > Flashcards

Torts Review Flashcards

1
Q

Prima facie case for BATTERY

A
  1. ) Harmful or offensive contact;
  2. ) To plaintiff’s person;
  3. ) Intent; and
  4. ) Causation.
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2
Q

Prima facie case for ASSAULT

A
  1. ) An act by defendant creating a reasonable apprehension in plaintiff;
  2. ) Of immediate harmful or offensive contact to plaintiff’s person;
  3. ) Intent; and
  4. ) Causation.
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3
Q

Prima facie case for FALSE IMPRISONMENT

A
  1. ) An act or omission on the part of defendant that confines or restrains plaintiff;
  2. ) To a bounded area;
  3. ) Intent; and
  4. ) Causation.
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4
Q

Prima facie case for INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A
  1. ) An act by defendant amounting to extreme and outrageous conduct;
  2. ) Intent or recklessness;
  3. ) Causation; and
  4. ) Damages* - severe emotional distress.
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5
Q

Prima facie case for TRESPASS TO LAND

A
  1. ) Physical invasion of plaintiff’s real property;
  2. ) Intent; and
  3. ) Causation.

*nuisance = intangible matter (vibrations, odor, etc.)

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6
Q

Prima facie case for TRESPASS TO CHATTELS

A
  1. ) An act by defendant that interferes with plaintiff’s right of possession in a chattel;
  2. ) Intent;
  3. ) Causation; and
  4. ) Damages.
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7
Q

Prima facie case for CONVERSION

A
  1. ) An act by defendant that interferes with plaintiff’s right of possession in a chattel;
  2. ) The interference is so serious that it warrants requiring defendant to pay the chattel’s full value;
  3. ) Intent; and
  4. ) Causation.
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8
Q

Defenses to Intentional Torts

A
  1. ) Consent
  2. ) Self-defense, defense of others and defense of property
  3. ) Privilege of arrest
  4. ) Necessity
  5. ) Discipline
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9
Q

Common law elements of DEFAMATION

A
  1. ) Defamatory language;
  2. ) “Of or concerning” the plaintiff;
  3. ) Publication thereof by defendant to 3rd person; and
  4. ) Damage to plaintiff’s reputation.
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10
Q

Constitutional requirements for DEFAMATION

A

If defamation involves a matter of public concern, must show common law elements AND:

  1. ) Falsity of the defamatory language; and
  2. ) Fault on the part of defendant.
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11
Q

Libel

A

Written or printed publication of defamatory language. General damages are presumed.

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12
Q

Slander

A

Spoked defamation. Plaintiff must prove special damages, unless slander per se.

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13
Q

Slander per se

A

One of the following categories:

  1. ) Adversely reflects on one’s conduct in a business or profession;
  2. ) One has a loathsome disease;
  3. ) One is or was guilty of a crime involving moral turpitude; or
  4. ) A woman is unchaste.
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14
Q 
Actual Malice
(as defined by NY Times v. Sullivan)
A

*Necessary if defamation case brought by a public official or public figure.

  1. ) Knowledge that the statement was false; or
  2. ) Reckless disregard as to whether it was false.
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15
Q

Defenses to DEFAMATION

A
  1. ) Consent
  2. ) Truth
  3. ) Absolute privilege - can never be lost
  4. ) Qualified privilege - can be lost through abuse
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16
Q

Types of INVASION OF RIGHT TO PRIVACY

A
  1. ) Appropriation of plaintiff’s picture or name
  2. ) Intrusion on plaintiff’s affairs or seclusion
  3. ) Publication of facts placing plaintiff in false light
  4. ) Public disclosure of private fact about plaintiff
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17
Q

Prima facie case for INTENTIONAL MISREPRESENTATION

Fraud, Deceit

A
  1. ) Misrepresentation of a material past or present fact;
  2. ) Scienter;
  3. ) Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation;
  4. ) Causation (actual reliance);
  5. ) Justifiable reliance; and
  6. ) Damages (plaintiff mut suffer actual pecuniary loss).
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18
Q

Prima facie case for NEGLIGENT MISREPRESENTATION

A
  1. ) Misrepresentation by defendant in a business or professional capacity;
  2. ) Breach of duty towards a particular plaintiff;
  3. ) Causation;
  4. ) Justifiable reliance; and
  5. ) Damages.
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19
Q

Prima facie case for NEGLIGENCE

A
  1. ) A duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
  2. ) A breach of that duty by defendant;
  3. ) The breach is the actual and proximate cause of plaintiff’s injury; and
  4. ) Damages.
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20
Q

Negligence

basic standard of care

A

Reasonable person standard.

Objective standard.
One’s conduct is measured against what the average person would do.

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21
Q

Negligence

professional standard of care

A

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities.

22
Q

Negligence

children standard of care

A

Children are held to the standard of a child of like age, education, intelligence, and experience. Children engages in adult activities may be required to conform to an “adult” standard of care.

23
Q

Negligence

Common carriers and innkeepers standard of care

A

Common carriers and innkeepers are held to a very high degree of care - i.e. they are liable for slight negligence. Plaintiff must be a passenger or guest.

24
Q

Negligence

Automobile driver to guest standard of care

A

A guest in an automobile is owed a duty of ordinary care.

25
Q

Negligence

Duty of possessor to those off premises

A

There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.

26
Q

Negligence

Duty owed to trespassers

A

No duty is owed to an undiscovered trespasser. As to discovered or anticipated trespassers, the landowner must:

  1. ) Warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm; and
  2. ) Use reasonable care in the exercise of “active operations” on the property.
27
Q

Attractive Nuisance Doctrine

A

To establish the doctrine’s applicability, plaintiff must show:

  1. ) A dangerous condition on the land that the owner is or should be aware of;
  2. ) The owner knows or should know children frequent the vicinity of the condition;
  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.
28
Q

Negligence

Duty owed to licensees

A

The possessor has a duty to:

  1. ) Warn of or make safe dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover; and
  2. ) Exercise reasonable care in the conduct of “active operations” on the property.
29
Q

Negligence

Duty owed to invitees

A

The landowner or occupier owes the same duties owed a licensee plus a duty to make reasonable inspections to discover non obvious dangerous conditions and, thereafter, make them safe.

30
Q

Negligence

Duty of Lessor and Lessee of Realty

A

The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.

31
Q

Negligence per se

Statutory Standards of Care

A

A clearly stated specific duty imposed by a statute providing criminal penalties may replace the more general common law duty of due care if:

  1. ) Plaintiff is within the protected class; and
  2. ) The statute was designed to prevent the type of harm suffered by plaintiff.
32
Q

Res Ipsa Loquitur

A

Must show:

  1. ) The accident causing the injury is a type that would not normally occur unless someone was negligent; and
  2. ) The negligence is attributed to defendant.
33
Q 
Negligence
Actual Cause ("but for" test)
A

Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act.

34
Q 
Negligence 
Proximate Cause (foreseeability test)
A

A defendant generally is liable for all harmful results that the normal incidents of and within the increased risk caused by his acts.

35
Q

Collateral Source Rule

A

Damages are not reduced just because plaintiff received benefits from other sources.

36
Q

Contributory Negligence

A

Negligence on the part of the plaintiff that contributes to her injuries. Contributory negligence completely barred plaintiff’s right to recover at common law. Almost all jurisdictions now favor a comparative negligence system.

37
Q

Assumption of Risk

A

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant’s act. Plaintiff must have:

  1. ) Known of the risk; and
  2. ) Voluntarily proceeded in the face of risk.
38
Q

Comparative Negligence

A

In comparative negligence states, plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs plaintiff’s negligence and reduces damages accordingly. Two types:

  1. ) Partial comparative negligence - bars plaintiff’s recovery if his negligence was more serious than defendant’s negligence
  2. ) Pure comparative negligence - allows recovery no matter how great plaintiff’s negligence was.
39
Q

Prima facie case for STRICT LIABILITY

A
  1. ) The nature of the defendant’s activity imposes an absolute duty to make safe;
  2. ) The dangerous aspect of the activity was the actual and proximate cause of the plaintiff’s injury; and
  3. ) The plaintiff suffered damage to person or property.
40
Q

PRODUCTS LIABILITY

5 theories of liability

A
  1. ) Intent
  2. ) Negligence
  3. ) Strict Liability
  4. ) Implied warranties of merchantability and fitness for a particular purpose
  5. ) Representation theories (express warranty and misrepresentation)
41
Q

PRODUCTS LIABILITY

common elements

A

To find liability under any products liability theory, plaintiff must show:

  1. ) A defect; and
  2. ) Existence of the defect when the product left defendant’s control.
42
Q

PRODUCTS LIABILITY

Who can sue?

A

Privity is not required. Any foreseeable plaintiff can sue, including users, consumers, and bystanders.

43
Q

PRODUCTS LIABILITY

Who can be held liable?

A

Commercial suppliers such as manufacturers, wholesalers, and retailers can be held liable.

44
Q

PRODUCTS LIABILITY

Prima facie case for strict liability

A
  1. ) A commercial supplier of a product;
  2. ) Producing or selling a defective product;
  3. ) Actual and proximate cause; and
  4. ) Damages.

*For liability to attach, the product must reach plaintiff without substantial alteration.

45
Q

PRODUCTS LIABILITY

Merchantability

A

Refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used

46
Q

PRIVATE NUISANCE

A

Private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

47
Q

PUBLIC NUISANCE

A

Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.

48
Q

Doctrine of Respondeat Superior

A

A master/employer will be vicariously liable for tortious acts committed by her servant/employee if the tortious act occur within the scope of the employment relationship.

49
Q

Joint and Several Liability

A

Where two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable.

50
Q

Contribution

A

The rule of contribution allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for the excess (i.e. it apportions responsibility).

51
Q

Indemnity

A

Indemnity involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances:

  1. ) By contract
  2. ) In vicarious liability situations
  3. ) Under strict products liability
  4. ) In some jurisdictions, where there has been an identifiable difference in degree of fault.

Bar Prep (2 decks)

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