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Torts_ > Writing Template > Flashcards

Writing Template Flashcards

1
Q

Vicarious Liability

A

Respondaet Superior, Driver/Owner of Automobile, Parent/Child, Tavern Keepers

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2
Q

Respondaet Superior

A

An employer is responsible for the tortious acts of their employees if the tort was committed within the scope of their employment. Employers are usually not responsible for the intentional torts of their employees unless their job includes the use of force (like a bouncer). Here…

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3
Q

Independent Contractor

A

Generally, the principle is not liable for the acts of an independent contractor unless: 1) the contractor was engaged in an inherently dangerous activity, or 2) the duty non-delegable by the principle. Here…

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4
Q

Partner or Joint Venture

A

Each partner is vicariously liable for any other partner’s torts committed within the scope of the partnership. Here…

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5
Q

Driver/Owner of Automobile

A

Under the common law, the owner of an automobile is not vicariously liable for the tortious acts of the driver. However, under modern law, an owner may be held liable if his

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6
Q

Parent/Child

A

Parents are generally not liable for the torts of their children. However, a parent may be held separately negligent if they had reason to know of a child’s propensity to injure or the parent’s conduct facilitated the child’s tort (i.e. leaving a gun out). Here…

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7
Q

Tavern Keepers

A

Businesses serving alcohol may be held liable if a P is injured by an intoxicated patron if the business was negligent in serving the patron alcohol. Here…

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8
Q

Joint and Several Liability

A

Joint and Several Liability arises if the acts of two or more D’s combine to produce a single injury. Each D is jointly and severally liable for the entire harm if his individual act was a substantial factor in bringing about P’s injury.

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9
Q

Contribution

A

A defendant who pays more than her share of the damages under J/S liability can assert a claim against other liable parties for the excess paid. Contribution is usually imposed in proportion to relative fault. Here…

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10
Q

Indemnity

A

Indemnity is the shifting of the loss between and amongst Ds. It is available by contract, in vicarious liability situations, or under strict products liability. Here…

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11
Q

Negligence

A

Negligence requires a showing of 1) duty, 2) breach, 3) causation, and 4) damages

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12
Q

Duty

A

D owes a duty of care to all reasonably foreseeable Plaintiffs as a result of his activities. A foreseeable P is anyone in the “zone of danger” Here…

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13
Q

Standard of Care

A

D has a duty to behave as a reasonably prudent person under the same or similar circumstances. Here…

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14
Q

Standard of Care - Children

A

A defendant child must act as a reasonable child of the same age, intelligence, and experience, unless the child is engaged in an adult activity, then the Reasonably Prudent Person standard applies. Here…

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15
Q

Standard of Care - Professionals

A

A profession is expected to act with the care of an average member of the profession in good standing in the community. However, specialists are held to a national standard of care .Here…

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16
Q

Standard of Care - Common Carriers/Inkeepers

A

Common carriers and innkeepers are held to an “utmost care” standard and are liable for even slight negligence toward passengers or guests. Here…

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17
Q

Standard of Care - Adults w/Disabilities

A

Disables adults are expected to act as a reasonable person with the same disability or diagnosis. Here…

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18
Q

Standard of Care - Landowner to Trespassor

A

Owners and occupiers of land do not owe a duty of care to unknown trespassers, however, they may have a duty of care for anticipated trespassers and child trespassers.

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19
Q

Anticipated Trespassers

A

Where an owner has reason to believe of trespassers on his land, he has a duty to warn of or make safe any man-made, concealed, and dangerous conditions. Here…

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20
Q

Child Trespassers - Attractive Nuisance

A

Most courts impose a duty on a landowner to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions. To prevail on this theory, P must show that 1) there is a dangerous condition on D’s land, 2) D knew that children were frequent in the area, 3) the condition is likely to cause injury because of the child’s inability to appreciate the risk, and 4) the expense of remedying the situation is slight compared to the magnitude of the risk. Here…

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21
Q

Standard of Care - Landowner to Licensee

A

A licensee is one who enters onto the land with the owner’s permission(social guest). The landowner has a duty to warn or make safe any known dangers on the land. Here…

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22
Q

Standard of Care - Invitee

A

An invitee is one who enters onto the land with the owner’s permission and for the owner’s commercial benefit. The landowner owes the invitee a duty to make reasonable inspection of the property and warn of all known dangers. Here…

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23
Q

Statutory Standard of Care - Negligence Per Se

A

an existing statute may establish the standard of care so long as 1) P is within the class of people the statute was designed to protect, and 2) P suffered the harm that the statute was designed to protect. Here…

However, D is excused from violation of a statute if 1) compliance with the statute would have resulted in a harm greater than the harm produced by the violation of that statute or 2) compliance with the statute would have been impossible. Here…

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24
Q

Duty to Rescue

A

D has no duty to rescue unless: 1) D has a special relationship with the victim, 2) D has a statutorily required duty to save, 3) D created the peril, or 4) D has voluntarily undertaken the rescue. Here…

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25
Q

Breach

A

D breaches a duty when his conduct falls short of the standard of care owed to the P. Here…

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26
Q

Negligence Per Se

A

Violation of a statute is negligence per se, meaning that P must only prove causation and damages. Here…

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27
Q

Res Ipsa Loquitur

A

RIL doctrine is applied if the P cannot establish a breach of duty, but the very occurrence of the accident suggests negligent conduct. For RIL to apply P must show they were not contributorily negligent and the thing that caused the harm was in the control of the D at the time of the accident.

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28
Q

Actual Cause

A

The P must show that “but for” the alleged breach of duty, the P would not have suffered the harm. Here…

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29
Q

Substantial Factor Test

A

If there are multiple causes for P’s injury, the court will apply the substantial factor and D’s breach will have been an actual cause if it was a “substantial factor” in bringing about P’s injury. Here…

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30
Q

Proximate Cause

A

D is liable for all foreseeable injuries and damages as a result of his conduct. Here…

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31
Q

Intervening Cause

A

Where contributing acts occur between D’s conduct and P’s injuries, D is usually still liable for the injury if the intervening cause was also foreseeable. Independent intervening acts may be foreseeable where the D’s negligence increased the risk that these acts would cause harm to the P. Here…

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32
Q

Superseding Force

A

Where the intervening force is an unforeseeable crime or intentional tort of a third party, it will be deemed a superseding cause that cuts off the D;s liability for the damages. Here…

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33
Q

Eggshell Plaintiff Rule

A

D takes his P as he find him and is liable for the full extent of P’s injuries, regardless of whether or not the extent of the injuries is foreseeable. Here…

34
Q

Damages

A

P must prove actual damages. Here…

35
Q

Punitive Damages

A

Punitive damages are ONLY meant to punish D for his reckless, malicious, or wanton conduct. Here…

36
Q

Defenses

A

Contributory Negligence, Comparative Negligence, Assumption of the Risk

37
Q

Contributory Negligence

A

P is completely barred from recovery if D establishes that P’s negligence contributed to her injuries. Here…

38
Q

Last Clear Chance

A

P can rebut D’s contributory negligence claim by alleging D had the last clear chance to avoid the injury-causing accident. Here…

39
Q

Comparative Negligence

A

D can reduce his liability if he can establish that P’s injuries are at least partially the result of P’s own negligence. Here…

40
Q

Pure Comparative Negligence

A

Pure comparative negligence allows P to recover damages even if he was more than 50% at fault. Here…

41
Q

Partial Comparative Negligence

A

Partial comparative negligence does NOT allow P to recover damages unless he was less than 5-% at fault. Here…

42
Q

Assumption of the Risk

A

D can deny P’s recovery by establishing the P assumed the risk of damage caused by D. To assume the risk, either expressly or impliedly, the P must have known of the risk and voluntarily assumed it. Here…

43
Q

Products Liability

A

Merchants may be liable in negligence or strict liability for the products that they place in the stream of commerce.

44
Q

Strict Products Liability

A

A commercial seller may strictly liable for the injuries caused by defective products. In order to prevail, P must show a strict duty, breach, causation, and damages.

45
Q

Strict Duty

A

A commercial seller has a strict duty to supply safe products. Here…

46
Q

Breach of Strict Duty

A

Breach of a strict duty can be shown by proving there was a manufacturing defect, design defect, or inadequate warning. Here…

47
Q

Manufacturing Defect

A

If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect. D will be liable if P can show that the product failed to perform safely as an ordinary consumer would expect. Here…

48
Q

Design Defect

A

For a design defect, P must show that the D could have made the product safer, without serious impact in the product’s price or utility. Here…

49
Q

Inadequate Warnings

A

A product may be defective as a result of the manufacturer’s failure to give adequate warnings as to the unapparent risk involved in using the product. Here…

50
Q

Government Safety Standards

A

Noncompliance with government product safety standards establishes that the product is defective. Here…

51
Q

Implied Warranty of Merchantability

A

Implied in every sale of goods is a warranty of merchantability, which is that the seller warrants that the goods are of average acceptable quality and are generally fit for their ordinary purpose. Here…

52
Q

Implied Warranty of Fitness for a Particular Purpose

A

If the seller knows or has reason to know the particular purpose for which the buyer is purchasing and the buyer relies on the seller’s skills or judgment, the sell implies that the goods are fit for that purpose. Here…

53
Q

Express Warranty

A

D may be liable if a product falls short of an express warranty made by the seller. An express warranty is an affirmation of fact or promise concerning the goods that becomes part of the basis of the bargain. Here…

54
Q

Misrepresentation

A

A seller will be liable for misrepresentations of fact concerning a product where the statement was of a material fact concerning the quality or uses of goods and the seller intended to induce reliance by the buyer in a particular transaction. Here.. (mere puffery is not enough)

55
Q

Strict Liability

A

P can establish D’s liability for P’s injuries without proving that D acted negligently. A D is strictly liable for any harm suffered due to D’s involvement in “ultra hazardous” activities or if someone is harmed by D’s animal.

56
Q

Ultra Hazardous

A

Those engaged in ultra hazardous activities are strictly liable for any injuries resulting from those activities. An activity is ultra hazardous if: 1) it imposes a severe risk of harm, 2) it cannot be made reasonably safe, and 3) the activity is uncommon in the community. Here…

Injury
The P must be injured by the ultra hazardous activity and not merely by one engaged in an ultra hazardous activity. Also, D is SL for those who are injured while fleeing a ultra hazardous activity. Here,…

57
Q

Domestic Animals

A

Animal owners are strictly liable ONLY if they know of their animal ‘s dangerous propensities. i.e. the one-bite rule. Here…

58
Q

Property Damages by Trespassing Animals

A

Animal owners are strictly liable for all reasonably foreseeable damage resulting from their animal’s trespass onto another’s property. Here…

59
Q

Wild Animals

A

Wild animal owners are strictly liable for injuries caused by their wild animals. This includes any injury suffered while fleeing a wild animal. However, trespassers are generally not entitled to recovery under strict liability. Here…

60
Q

Intentional Torts

A

Assault, Battery, Intentional Infliction of Emotional Distress, False Imprisonment, Trespass to Land, Trespass to Chattel, Conversion

61
Q

Assault

A

Assault is an intentional act with the intent to place the P in reasonable apprehension of an immediate harmful or offensive contact. Here… (failed battery)

62
Q

Battery

A

Battery is an intentional harmful or offensive contact to P’s person by D, without consent. Here…

P’s person is anything connected to the P’s person.

63
Q

Intentional Infliction of Emotional Distress

A

IIED requires extreme or outrageous conduct by the D causing P’s severe emotional distress. P need only show that D was reckless, meaning that D disregarded the likely consequences of his actions. Here…

64
Q

Extreme or Outrageous

A

Conduct is extreme or outrageous if it “Exceeds the bound of decency in a civilized society.” Mere insults are typically insufficient. However, non-outrageous conduct may be deemed extreme or outrageous if: 1) D attacks P’s known sensitivities, 2) D’s conduct is continuous or repetitive, 3) D targets a “fragile” P, i.e. pregnant, child, elderly, or 4) D is a common carrier or innkeeper. Here…

65
Q

Severe Emotional Distress

A

P must suffer severe emotional distress, but need not suffer physical symptoms. Here…

66
Q

False Imprisonment

A

1) an intentional act by the D which 2) confines the P to a bounded area by force or threat of force, 3) with no reasonable means of escape, and 4) harm/knowledge of confinement. Here…

67
Q

Shopkeeper’s Privilege

A

A store may detain a suspected shoplifter so long as they have 1) reasonable cause 2) use reasonable force, and 3) only hold the suspect for a reasonable period of time. Here…

68
Q

Privilege of Arrest

A

a misdemeanor arrest without warrant is privileged only if the misdemeanor was a breach of the peace and was committed in the presence of an arresting party. Here…

69
Q

Trespass to Land

A

Trespass to Land requires 1) D’s physical invasion of 2) P’s real property and 3) intent. Intentional entry upon the land in the possession of another.

Physical Invasion occurs when D enters onto P’s property or propels an object onto it.

Intent to cause a physical invasion, does not need to be an intent to harm.

70
Q

Trespass to Chattel

A

An intentional act by the defendant that interferes with P’s right of possession in the chattel that results in damages. Here…

71
Q

Conversion

A

Conversion requires an intentional act by the defendant that interferes with P’s right of possession in the chattel that is serious enough in nature or consequence to warrant the D pay the full fair market value for the chattel. Permanent deprivation or return of the chattel in a substantially altered or damaged state would warrant payment of its full value .Here…

72
Q

Defenses - CANDDD ReD

A

Consent, Arrest, Necessity, Defense of Self, Defense of Others, Defense of Property, Re-entry to Land Wrongfully Held, Recapture of Chattel, Discipline

73
Q

Consent

A

Defense to ALL intentional torts. Consent can either be express or implied by custom or P’s conduct. However, D must stay within the scope of the consent. Here…

74
Q

Arrest

A

Reasonable force may be used to apprehend a criminal. Deadly force allowed if person poses an imminent threat. Privileged to enter another’s land to effect arrest. Mistaken arrest creates liability for false imprisonment.

75
Q

Necessity

A

Defense to torts against property in which D damages P’s property in an effort to avoid a greater danger. This is an absolute defense if D’s invasion of P’s property was reasonably necessary to protect the community or a large group of people (public necessity). However, P will be able to recover for property damage if D invades his property only to protect himself or his property (private necessity). Here…

76
Q

Defense of Self

A

D may defend himself if he 1) ha a reasonable belief that the tort is being or about to be committed against him and 2) only uses reasonable force to defend himself. Not available to agressor unless other party escalates use of force. Extends to third-party injuries if they are not deliberate. Here…

77
Q

Defense of Others

A

D may defend others if 1) the victim would have been able to use self-defense 2) the tort is in fact being committed or about to be committed against the victim, and 3) uses reasonable force. Here…

78
Q

Defense of Property

A

D may defend his property if he 1) has reasonable belief that a tort is being or about to be committed on his property and 2) uses reasonable force to protect his property. Here…

79
Q

Re-entry to Land Wrongfully Held

A

MAJ - No privilege to use force to regain possession of land. MIN - allows force

80
Q

Recapture of Chattel

A

No privilege to use force to recapture chattel unless in “hot pursuit”. If force is used, must be reasonable non-deadly force. Must make timely demand to return chattel unless circumstances show it would be futile. Recovery can only be from wrongdoer, not innocent party. Entry to land to recapture chattel allowed if reasonable time and in reasonable manner.

81
Q

Discipline

A

Reasonable force may be used by on in loco parentis with plaintiff. Parents or guardians can discipline children.

Torts_ (1 decks)

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