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Torts SG > Torts SG > Flashcards

Torts SG Flashcards

1
Q

What are the intentional torts?

A

Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattel, Conversion

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2
Q

When does transferred intent apply?

A

When one commits a different tort against that same person; When one commits the intended tort but to an unintended party; When one (in happenstance of committing OG tort) commits an unintended tort to an unintended party

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3
Q

What torts does transferred intent apply to?

A

All intentional torts except conversion

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4
Q

What are the elements of trespass to chattel?

A

1) Intent and 2) impairment of condition/depravation of use/bodily harm

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5
Q

Requirement of trespass to chattel unlike trespass to land or conversion?

A

Must prove damages

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6
Q

Trespass to chattel is [insert] and conversion is [insert]

A
  1. Temporary, 2. Permanent
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7
Q

What happens to a chattel in trespass to chattel?

A

You get the chattel back, but devalued

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8
Q

What are the elements of conversion?

A

(1) Intent, (2) Exercise dominion or control over a chattel which so seriously interferes that (3) D’s acts are the proximate cause of P’s loss of property

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9
Q

Medical providers may act in the absence of express consent if:

A

(1) The patient is unable to give consent; (2) There is a risk of seriously bodily harm if treatment is delayed; (3) A reasonable person would consent to treatment under the circumstances; (4) The physician has not reason to believe this patient would refuse treatment under the circumstances

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10
Q

In acting in the privilege of self defense, are you liable for injury to a 3d party?

A

No. Privilege of self-defense is carried over in the circumstance of injury to a 3d party

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11
Q

What is Shopkeepers Privilege?

A

A merchant has the privilege to detain for reasonable investigation a person whom he reasonably believes to have taken chattel unlawfully within the immediate vicinity

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12
Q

What is the privilege of public necessity?

A

Tortious acts may be rendered non-tortious when necessity dictates that under the circumstances it is for the greater interest of the public and safety. Don’t have to pay for damages.

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13
Q

What is the difference between the privilege of public necessity and privilege of private necessity?

A

Private necessity requires compensation to be made. D will be liable for damages from torts committed out of necessity, but not for the tort.

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14
Q

What is the privilege of private necessity?

A

Tortious acts may be rendered non-tortious, but compensation must be made. This must require the threat of serious imminent harm.

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15
Q

Name all of the privileges

A

Consent, Self-Defense, Defense of Others, Defense of Property, Recovery of Property, Necessity, Authority of Law, Discipline, and Justification

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16
Q

What are the elements of Negligence?

A

(1) Duty, (2) Breach of Duty, (3) Causation, (4) Actual Damages

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17
Q

What is the Hand Theory?

A

DBPISH
D= B<PIxSH
Duty= Burden<(Probability of Injury x Severity of Harm)

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18
Q

Describe the Hand Theory

A

Liability for Negligence exists if the burden of taking safety precautions is less than the probability of injury multiplied by the gravity of the resulting injury

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19
Q

What is United States v. Carroll Towing? What was its rule and what does it relate to?

A

Barge broke free and hit tanker, negligent bargee should have been on the boat at time of leak to prevent sinking.

Rule of the case relates to the Hand Theory: the burden was less than the probability of injury and the severity of harm.

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20
Q

When does a violation of a statute or regulation constitutes negligence as a matter of law?

A

When (1) the violation results in injury to a member of the class of persons intended to be protected by the legislation and (2) when the harm is the kind in which the statute of regulation was enacted to prevent.

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21
Q

What is the test for negligence per se?

A

Class of person and Class of risk must match

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22
Q

When D has [insert], there is a duty to keep the premises reasonably safe and they are liable for negligence unless it is a part of the business

A

Notice

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23
Q

Describe Constructive Notice

A

Constructive notice is when you have enough information where you can infer that something was there, and you had a duty to fix it

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24
Q

When is actual or constructive notice of a specific condition not required to be held liable for negligence?

A

Actual or constructive notice of a specific condition is not required when D’s operating methods are dangerous in a way that is both (1) Continuous and (2) Foreseeable

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25
Q

What is the issue in slip and fall cases?

A

Is there sufficient evidence as to whether D had constructive notice of a dangerous condition?

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26
Q

Describe Mascary v. Boston Elevated Ry. Co and its conclusion

A

The skin of a banana in the stairwell was black & trampled. Anyone (even a stranger to D) may have dropped it within a moment of the incident.

Conclusion: No. There was not constructive notice of a dangerous condition.

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27
Q

What does Res Ipsa Loquiter literally mean?

A

“The thing that speaks for itself”

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28
Q

What are the elements of Res Ipsa Loquiter?

A

(1) D had exclusive control over the occurrence, (2) Injury would not have occurred but for some negligence by D, (3) D possessed superior knowledge or means about the cause of the occurrence

29
Q

What occurs in Res Ipsa Loquiter cases?

A

There was an accident -> Accident was caused by a thing or instrumentality under the exclusive control of D at the time of and prior to the accident-> If D used ordinary care in an ordinary course of events, accident would not have happened= A reasonable jury can infer negligence without direct or circumstantial evidence

30
Q

What is the issue in Res Ipsa Loquitur cases?

A

Would a jury find negligence in the absence of evidence?

31
Q

What is conclusion of the Akiona v. US case and what does it relate to?

A

The government did not have exclusive control over the grenade in the time elapsed & did not maliciously dispose of their records.

Relates to Res Ipsa Loquitur. RIL was not found to be applicable in this case.

32
Q

“But For” relates to what?

A

Causation in Fact

33
Q

When is there Causation in Fact?

A

There is cause in fact if a person’s negligence is a substantial factor in bringing about harm to another

34
Q

What is Causation in Fact?

A

It is an essential condition. The injury would not have happened “but for” the negligent event

35
Q

When is the Daubert Test used?

A

When regarding the admissibility of expert testimony in proving causation

36
Q

What is the Daubert Test?

A
  1. Does the expert’s testimony reflect good science, scientific knowledge, & was derived from the scientific method? (Is it good science?)
  2. Is the proposed expert testimony relevant to the task at hand in that it logically advances a material aspect of the proposing party’s case? (Is it relevant to the jury?)
37
Q

Summarize what happened in Daubert v. Merrell Dow Phara. and state its conclusion

A

Minors suffered limb reduction birth defects because mother took Benectin. Plaintiff’s expert did not meet the standards of the Daubert test because he had no pre-exisiting independent research, no peer review, and did not show that the drug likely caused the plaintiffs’ injuries. Plaintiff’s had to prove the drug caused their birth defects and their expert did not show that the drug was the “but for” cause of their birth defects

38
Q

When can the Loss of Chance theory be applied?

A

Loss of Chance Theory may be applied in a situation where D’s medical malpractice has reduced the patient’s chance of recovery or of a better outcome, but not by enough so that the patient could prove that the medical malpractice, as opposed to the underlying disease or injury, caused death or disability, or other injury

39
Q

In cases where there are concurrent causes of a an act of negligence, what occurs?

A

Where separate acts of negligence combine to produce a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.

40
Q

Describe Proximate Cause

A

Proximate cause is an event sufficiently related to the injury that is deemed to be the cause of the injury.

41
Q

What does proximate cause concern?

A

Proximate cause concerns determining whether legal liability should be imposed when cause in fact has been established.

42
Q

If the type of damages was foreseeable by a reasonable person in the shoes of D, then D’s negligent conduct was [insert]?

A

The proximate cause

43
Q

Describe the Eggshell Skull Rule

A

D is liable for all consequences, whether foreseeable or not, of physical injury to P (even if another P would not have suffered injury). D takes P as he finds him and may be liable for aggravation of preexisting conditions.

44
Q

What does the Eggshell Skull Rule apply to?

A

Proximate Cause.
(only for proximate cause, not duty)

45
Q

Palsgraf v. Long Island R.R. Co.
What happened and what was the rule?

A

Two men ran for a train, second man had package and was helped onto the train. Package fell and exploded, knocking down a scale that injured P. Court held no negligence because no causation.

Conclusion: Train guards did not owe a legal duty to P, only to the man with the package. Also, P’s injuries were not reasonably foreseeable consequences of any possible negligence by D.

Rule: D can only be held liable if he owes a legal duty and breaches that duty and if the resulting harm was reasonably foreseeable.

46
Q

Issue: Should we exclude the unforeseeable victim?

What issue does this case apply to?

A

Palsgraf v. Long Island RR Co.

47
Q

What did Cardozo say in Palsgraf v. Long Island RR Co.

A

Cardozo: The package dropped was misleading in its appearance & therefore the harm caused to P on the opposite side of the platform was not foreseeable & D owed her no duty.
Rule: (Duty us based on reasonable risks that are not too remote. No negligence in the abstract)

48
Q

When do acts of a 3d party that intervene with D’s negligent conduct and P’s injury break proximate cause?

A

When they are extraordinary, unforeseeable & independent

49
Q

When acts of a 3d party are extraordinary, unforeseeable, & independent, what happens?

A

They are labeled as superseding and cut off liability from D to P

50
Q

What Doctrine is this?
Original tortfeasor is liable for injury to rescuer who attempts to rescue someone in peril due to tortfeasor negligence.

A

Rescue Doctrine

51
Q

What is the exception to the Rescue Doctrine?

A

Professional Rescuers (in some jxs)

52
Q

Describe the theory of the Rescue Doctrine and state its elements

A

It was foreseeable that a rescuer will come to aid the person imperiled by the negligent act and duty is owed to both the person imperiled and the rescuer. As long as the rescuer does not act recklessly or rashly, the rescuer did not assume the risk of danger resulted from the negligent act.

Elements:(1) negligence caused the peril; (2) the peril was or seemed to be imminent; (3) reasonable person would conclude peril was imminent; (4) rescuer acted with reasonable care

53
Q

Regarding privity of contract, when does liability for physical injury arising out of a failure to repair turn?

A

Turns on whether the contractor have an undertaking.
Example: A maintenance agreement between P and D is insufficient to support liability in absence of an assurance or misrepresentation by D.

54
Q

Describe Nonfeasance and its liability

A

Contract but no performance. Usually no tort liability.

55
Q

Describe Misfeasance and its liability

A

D mis-performs contract. Possibility to recover in tort is made much greater.

56
Q

What is Failure to Act?

A

A person does not have a duty to warn or protect another from criminal acts of a third person

57
Q

What are the special relationships within the exceptions to failure to act and what are the duties imposed due to those relationships?

A

Special Relationships:

Common carrier/passenger, innkeeper/guest, employer/employee= imposes a duty to warn when the danger of 3d party criminal act is known or reasonably foreseen

Owner/invitee, landlord/tenant= only a duty to warn of an imminent probability of injury resulting from a 3d party’s criminal act

58
Q

What happened in Tarasoff v. Regents of CA? What was the rule from the case? What was applied to determine the outcome of this case?

A

Patient says he will kill girl and he does. Once doctor/therapist determined that patient poses a danger of violence to others, he bears the duty to exercise reasonable care to protect foreseeable victim. Legislatures back this up because the public interest of safety outweighs dr/patient confidentiality. Therapist had a duty to warn Tarasoff that his patient was intending to kill her because of their special relationship (dr/patient) & she was a foreseeable victim of danger.

Application of the hand formula. Not applicable when victim is a member of an indeterminate group.

59
Q

What is the duty of a landowner to the outside premises when he creates artificial conditions on his land?

A

There is a greater duty for artificial conditions. Once a landowner alters his land, it becomes an artificial one for the purposes of tort law and the owner must exercise reasonable care for the protection of those outside the premises.

60
Q

A landowner owes no duty to a trespasser except to not willfully or wantonly injure, unless [insert]?

A

(1) Trespasser whose presence was discovered, (2) frequent trespassers on limited area of the land, (3) tolerated intruders, (4) obvious dangerous conditions

61
Q

What is the duty owed to a licensee and what is a licensee?

A

Licensee is a social guest who enters the premises by permission but for the licensee’s own purpose.

Duty owed to a licensee is to warn of a hidden danger, which are unknown to the guest, and which owner has knowledge, and to refrain from injuring the guest willfully and wantonly.

62
Q

What is the duty owed to an invitee and what is an invitee?

A

An invitee is a customer going into a business.

A landowner has a duty to exercise reasonable care to keep the premises reasonably safe.

63
Q

A possessor of land is subject to liability to another as an invitee only for injury the invitee sustained while on the land in the scope of his [insert]

A

Invitation on the part of the premises where the invitation extends. (ex: man falling down stairs in backroom of store while getting a box, once he felt the place he was invited (the store) to enter the backroom, he became a licensee.

64
Q

What is the Attractive Nuisance Doctrine?

A

If there is a temptation that could lead to danger, one must use ordinary care to protect from harm.

65
Q

Where the occupier of land is aware of a concealed condition involving the absence of precautions and an unreasonable risk of harm to those coming in contact with it, the trier of fact can reasonably conclude [insert]?

A

That a failure to warn or repair the conditions constitutes negligence.

Considerations:
(1)foreseeability of harm, (2) certainty of injury, (3) cost of insurance

66
Q

What are the duties of a landlord to a tenant?

A

Landlords has a duty to exercise reasonable care to minimize risks to tenants. Their duty is to take reasonable precautions to protect others from things reasonably anticipated.

Where a landlord has notice of repeated criminal activity in the portion of the premises exclusively within his control, and has reason to anticipate activities from happening again, then he has the exclusive power to take preventative action and is expected to mitigate damages.

67
Q

What is the Recreational Use Statute Defense?

A

A statute establishing limited liability for those who open private property for public use. Bars P from recovery absent willful or wanton negligence.

68
Q

What was the conclusion of Jenkins v. Arkansas Power & Light and what does it relate to in torts?

A

Conclusion: D was not liable because the island is only hazardous if a user dives headfirst without checking. Also, failure to mark the shoal was not malicious.

Relates to the recreational use statute and its defense against torts claims.

69
Q
A

Torts SG (1 decks)

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