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Bar Exam (Austin) > Torts > Flashcards

Torts Flashcards

1
Q

Act - definition

A

Volitional movement by the defendant

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2
Q

Intent - defintion

A

Desire to produce the legally forbidden consequences

**Young children and persons who are mentally incompetent will be liable for their intentional torts

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3
Q

Transferred Intent

A

Applies when Defendant intends to commit a tort against one person but instead:
- Commits a different tort against that person
- Commits the same tort as intended but against a different person
OR
- Commits a different tort against a different person

** ONLY WORKS FOR
- Assault, Battery, False Imprisonment, Trespass to Land, and Trespass to chattels

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4
Q

Battery

A
  1. Act creating harmful or offensive contact
  2. Intent to bring harmful or offensive contact
  3. With plaintiff’s person
  • Harmful = Causes actual injury, pain, or disfigurement
  • Offensive = to a reasonable person
  • Contact can be direct or indirect… also does not have to be instantaneous (Poisoning someone)
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5
Q

Assault

A
  1. Act creating reasonable apprehension
  2. Of immediate battery
  3. Intent to do the act

Reasonable apprehension
- Knowledge of harmful or offensive contact must be reasonable
- Plaintiff must be aware of the threat
o Fear or intimidation is NOT required
- P must anticipate battery!
- If D has the apparent ability to commit battery = reasonable apprehension
o Unloaded gun hypo
 If P knows gun is unloaded = No Assault
 If P does not know gun is unloaded = Yes Assault
 If P does not know? = Yes Assault = reasonable apprehension

Immediacy
- Victim of IMMEDIATE BATTERY
- Words are NEVER enough -> must be coupled with conduct
o Words can negate reasonable apprehension and immediacy
 Ex. -> D shakes their fist but states they are not going to strike to P

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6
Q

False Imprisonment

A
  1. Act of restraint
  2. P must be confined in bounded area
  3. Intent to do the act
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7
Q

Intentional Infliction of Emotional Distress (IIED)

A
  1. Extreme and outrageous conduct
  2. Severe emotional distress
  3. Actual Damages!
  4. Intent to do the extreme conduct!
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8
Q

IIED bystander Cases

A

D’s conduct is directed at 3rd person, and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or that:
(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 were facts

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9
Q

Trespass to Land

A
  1. Physical Invasion
  2. Of land
  3. Intent to physically enter onto the land (does not need to know)

2 Types of Invasion
- By person
o Awareness of boundary is not needed!!
 Deliberate act is required
- By object
o Kicking a soccer ball onto plaintiff’s land is a trespass
o Invasion must be tangible
Land
- Includes air above/soil beneath to reasonable distance

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10
Q

Trespass to Chattels

A

Intentional interference with Plaintiff’s personal property that warrants D pay damages

  • mistaken belief that they own the chattel is no defense

Types of Interference
- Intermeddling
o Directly damaging the chattel
- Dispossession
o Depriving the plaintiff of their lawful right of possession of the chattel

Small harm = Trespass to Chattels
Big harm = Conversion

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11
Q

Conversion

A

Intentional interference with Plaintiff’s personal property so serious that warrants D pay property’s full value

Acts of Conversion
- theft, wrongful transfer/detention, and substantially changing, severely damaging, or misusing a chattel

Small harm = Trespass to Chattels
Big harm = Conversion

Remedies for Conversion
- P may recover damages (FMV at time of conversion) or possession (replevin)

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12
Q

Consent - Defense

A

Express and Implied

Implied Consent
- Custom and Usage
- Body language consent

Can be liable if you you exceed your scope of consent

Cannot consent to criminal act

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13
Q

Protective Privileges Defenses

A

o Self-defense
o Defense of others
o Defense of property

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14
Q

Shopkeeper’s Privilege

A
  • Reasonable belief as to the fact of theft
  • Detention must be conducted in a reasonable manner
  • Detention must be only for a reasonable period of time and only for the purpose of
    investigation

** A shopkeeper is NOT required to notify the police in a reasonable amount of time to avoid liability for false imprisonment when detaining a suspect for shoplifting

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15
Q

Self-Defense

A

Person reasonably believes that they are being or are about to be attacked
- No duty to retreat
o Self defense not available to initial aggressor unless the other party responds to the aggressor’s nondeadly force by using deadly force
o May extend to 3rd-parties
o A reasonable mistake as to the existence of the danger is allowed
o One may use only that force that reasonably appears to be necessary to prevent the
harm (including deadly force)
o More force than necessary? -> defense is lost!

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16
Q

Defense of Others

A

o One may use force to defend another when they reasonably believe that the other
person could have used force to defend themselves
o A reasonable mistake as to whether the other person is being attacked or has a right
to defend themselves is permitted
o Defender may use as much force as they could have used in self-defense if they were
the one threatened with the injury

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17
Q

Defense of Property

A

o One may use reasonable force to prevent the commission of a tort against their
property
 A request must first be made unless it would futile or dangerous
o Defense does not apply once tort has been committed
 However, one may use force in hot pursuit of another who has tortiously
dispossessed the owner of their chattel because the tort is viewed as still in
progress if the defendant is in the act of fleeing
o THIS DEFENSE IS NOT AVAILABLE WHEN an individual has a privilege to enter onto the
land of another because of necessity, recapture of chattel, etc. that privilege will
supersede the privilege of the land possessor to defend their property

**NO DEADLY FORCE unless invasion of property also entails a serious threat of bodily harm

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18
Q

Reentry onto Land

A

A landowner may not use force to regain real property after being tortiously dispossessed

Most states today do not allow resort to “self-help”; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession

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19
Q

Recapture of Chattels

A

When another’s possession began lawfully (for example, conditional sale), one may use only peaceful means to recover the chattel

An owner may use reasonable force to recapture a chattel when in “hot pursuit” of the tortfeasor

If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel

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20
Q

Defense of Necessity

A

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it!
- Two Types
o Public Necessity
 Defendant acts in emergency to protect community
* Absolute defense!
o Private Necessity
 Defendant acts in emergency to protect own interests
* Limited or qualified defense
o Must pay compensatory damages
o But not liable for nominal/punitive damages
o Can remain as long as emergency continues

DEFENSE ONLY FOR PROPERTY TORTS

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21
Q

Negligence - 4 elements

A
  1. Duty (Standard of care)
  2. Breach
  3. Causation (Actual and proximate cause)
  4. Damages
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22
Q

Duty

A
  • Duty of care owed to all foreseeable plaintiffs
  • If D’s conduct creates an unreasonable risk of injury to persons in position of the
    plaintiff, the general duty of care extends from the D to the P
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23
Q

Duty - Rescuers and Firefighter Rule

A

A rescuer is a foreseeable plaintiff when the D negligently put themselves or a 3rd person in peril - rescuers can recover damages!
o Danger invites rescue!

  • Exceptions
    o Firefighter Rule
     Firefighters and police offices are barred by the “firefighter’s rule” from
    recovering for injuries cause by the inherent risks of their jobs
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24
Q

Basic Standard of Care

A

Reasonably prudent person acting under similar circumstances

Low intelligence and retarded? -> don’t care! Still suppose to act as a reasonably prudent person!

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25
Q

Superior Skill or Knowledge - Standard of Care

A

A Defendant who has knowledge or experience superior to that of an average person is required to exercise that experience!

Hypothetical reasonably prudent person with same superior skill or knowledge!

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26
Q

Physical Characteristics - Standard of Care

A

Where relevant incorporate Defendant’s physical characteristics

For example, a blind person should act as a reasonable prudent person who cannot see and not attempt to, for instance, drive a car

27
Q

Children - Standard of Care

A

Under age 5: No Standard

Age 5-18: Hypothetical child of similar age, experience, and intelligence acting under similar circumstances
o Subjective standard
o Pro-defendant standard

Exception for Child Engaged in Adult Activity
o Reasonably prudent standard!
o Most common: Operating a motorized vehicle
 Ex. Boat, farm equipment (tractor combine), jet skis, snowmobiles, ATV’s

28
Q

Professionals - Standard of Care

A

Same care as average member of profession providing similar professional services in good standing!

DO NOT WRITE REASONABLE DOCTOR! IT IS AN AVERAGE DOCTOR!!!

29
Q

Possessors of Land - Standard of Care

A

Activities conducted on the land use ordinary reasonable prudent person standard of care!
- Eliminate hazard condition
o Repair
o Replace
o Remove
- Warn about hazard condition

BUT DEPENDS ON STATUS OF ENTRANT!!

30
Q

Unknown Trespassers - Possessors of Land Standard of Care

A

NO DUTY is owed to an undiscovered trespasser

31
Q

Known/Anticipated Trespasser - Possessors of Land Standard of Care

A

Duty to warn or make safe any conditions IF hazard is:
1. Artificial condition
 Built by human beings
 No duty for natural conditions -> ice, snow
2. Highly Dangerous
 Involving risk of death or serious bodily harm
3. Concealed from trespasser
4. Known to the land possessor in advance

*Known, man-made death traps

32
Q

Licensee - Possessors of Land Standard of Care

A

Enters land with permission but without financial benefit to possessor
o Ex. Social Guests for dinner; Someone who walks up to your door to sell something
(You’ve given them implied permission apparently)

Duty IF hazard is:
o 1. Concealed from licensee
o 2. Known by possessor

*All known traps

33
Q

Invitee’s - Possessors of Land Standard of Care

A

Enter land with permission for financial benefit of possessor
o Includes when open to public at large
 Ex. Customer of business
Duty IF hazard is:
1. Concealed from invitee
2. Known by possessor OR could have discovered through reasonable inspection
- All reasonably known traps
- A person loses his status as an invitee if he exceeds the scope of the invitation-if he
goes into a portion of the premises where his invitation cannot reasonably be said
to extend

34
Q

Trespassing Children (Attractive Nuisance Doctrine) - Possessors of Land Standard of Care

A

Reasonably prudent care under circumstances to protect from artificial hazards

Elements
1. Dangerous condition that owner is or should be aware of
2. Owner knows children might trespass on land
3. Condition is likely to cause injury
4. Expense of remedying is slight compared with magnitude of risk

35
Q

Statutory Standard of Care - Negligence per se

A

Plaintiff “borrows” statute as alternative standard of care to use instead of reasonably prudent person standard!

A statute may establish the standard of care in a negligence case IF:
1. Plaintiff is within protected class
o Ex. Red light statute -> Designed to protect pedestrians and motorists
 Students, patients, children, customers
2. Harm suffered is within risks statute is trying to prevent

Exceptions to Statutory Standard of Care
- Compliance would have been more dangerous -> Will not use criminal statute
- Compliance would have been impossible -> Will not use criminal statute

**While violation of the statute establishes a conclusive presumption of duty and breach of duty, compliance with the statute does not establish a conclusive presumption of due care

36
Q

Affirmative Duty to Act?

A

NO DUTY TO ACT AFFIRMATIVELY!

Exceptions - duty to act reasonably under circumstances!! not to rescue!!
- Relationship between parties
 Innkeepers-Guest, Common carrier-passenger, Business owner-customer, family
member-family member
- Defendant caused peril
- One may assume a duty to act by action
o For example, once the D undertakes to aid someone, they must do so within
reasonable care

37
Q

Negligent Infliction of Emotional Distress - Near Miss

A

In physical injuries cases, Plaintiff can also recover emotional damages when defendant creates a foreseeable risk of physical injury

In addition to negligence must show:
1. Plaintiff in “zone of physical danger”
2. Plaintiff suffers physical symptoms from distress

38
Q

Negligent Infliction of Emotional Distress - Bystander Case

A

Defendant negligently injures 3rd party causing Plaintiff emotional distress

In addition to negligence must show
1. Plaintiff and 3rd party closely related (Spouse, parent, child) -> STRICT**
2. Plaintiff present at the scene and observed event

39
Q

Negligent Infliction of Emotional Distress - Business Relationship Cases

A

HAS TO HAVE A BUSINESS RELATIONSHIP! -> Plaintiff can recover if highly foreseeable that careless performance by Defendant will produce emotional distress

Examples of Business relationships where emotional distress is highly foreseeable
o Patient/medical laboratory
 False positive cancer diagnosis
o Customer/funeral parlor
 Funeral home does work carelessly!
 Losing grandma! Cremating instead of burying!
o NOT customer/dry cleaner
 Dry cleaner takes shirt and loses it – no business relationship here!

40
Q

Res Ipsa Loquitor

A

Used by Plaintiff without information about Defendant’s breach

Plaintiff must show:
1. Accident would not normally occur unless someone was negligent
2. Negligence is probably attributable to the defendant

Still have to show causation and damages

Establishing Res Ipsa Loquitur means no directed verdict -> gotta be up to jury!

41
Q

But-For Test

A

Injury would not have occurred “but for” act or omission

42
Q

Merged Causes - Substantial Factor Test

A

2 defendants acting independently each commit a breach combining into single indivisible harm
- Ex. Two separately caused fires merge together to create one big fire! The fire
ends up burning down a house!
If 2 defendants + 2 breaches + merged causation USE SUBSTANTIAL FACTOR TEST instead of “but-for” test!

Substantial Factor Test
- Defendant liable if breach contributed in significant/substantial way to ultimate injury
o If breach would have been able to cause entire harm if it had been only breach,
it’s a substantial factor!
- Merged cause scenario where both breaches found to be substantial factor =
Defendants held jointly and severally liable

43
Q

Unascertainable Cause

A

2 acts, only one of which causes injury, but unknown which one

The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause
o If unable to show their negligence is not the actual cause, both may be liable!

44
Q

Proximate Causation

A

Was the outcome a foreseeable risk associated with breach?

Common ALMOST ALWAYS foreseeable intervening forces
- Medical malpractice
- Negligence of rescuers
- Protection or reaction forces
o Includes efforts to protect person or property
- Subsequent disease or accident substantially caused by the original injury

May be foreseeable if D’s negligence increased risk of harm from these forces
- negligent acts of 3rd parties
- crimes and intentional torts of 3rd persons; and
- acts of God

45
Q

Superseding Force

A

Intervening forces that produce unforeseeable results are generally deemed unforeseeable and superseding

46
Q

Damages

A

Once plaintiff has established all other elements of claim, plaintiff receives ALL damages suffered, even if surprisingly great in scope

Take plaintiff as you find the plaintiff!!!

47
Q

Comparative Negligence

A
  • Defendant shows Plaintiff failed to exercise proper care for own safety
  • Jury will be instructed to assign % of fault

Example – Pure comparative negligence
- P proves $100,000 in damages
- Jury finds D 80% at fault & P 20% at fault
- P’s damages reduced by 20%
- P will recover $80,000

48
Q

Liability for Animals

A

Domesticated animals
o Generally, NO strict liability
o Exception
 If knowledge of animal’s dangerous propensity’s
* Normal actions from animals do not create dangerous propensity’s … such as a
bull charging at someone -> not strictly liable
* Dangerous propensity = dog biting humans
o First bite = no strict liability
o All other bites after first bite = strict liability!
* Exception
o Strict liability NOT available to trespassers
o Examples
 House pets and farm animals
 Dogs, cats, cows, sheep, goats, etc.

Wild animals
o STRICTLY LIABILTY
o Lions, coyotes, giraffes, etc.

49
Q

Abnormally Dangerous Activities

A

An activity is abnormally dangerous if it involves substantial risk of serious harm to person or property even when reasonable care is exercised.

Two requirements for finding an activity to be abnormally dangerous
1. Foreseeable risk of serious harm when reasonable care is exercised
2. Not a matter of common usage in the community

Common examples
- Explosives – using them or blasting them
o Dynamite, TNT, nitro glycerin
o Using them in different industries – demolishing buildings, opening mine shafts
- Dangerous chemical/biological materials
- Nuclear energy/radiation

***Firework displays are not necessarily abnormally dangerous activities

50
Q

Products Liability - Strict Liability

A

Plaintiff must show:
1. Defendant is a merchant (commercial supplier)
2. Product is defective
3. Product was not substantially altered since leaving D’s control
4. P was making a foreseeable use of the product at time of injury
- Foreseeable does not mean intended or appropriate use… Many products
commonly misused in ways that could be considered foreseeable

51
Q

Affirmative Defenses to Strict Liability

A

Traditional rule
o Knowingly encountering dangerous situation bars recovery -> ONLY USE THIS RULE
IF PROBLEM SAYS TRADITIONAL DEFENSES ARE USED

Comparative Responsibility
o Assign percentages of comparative responsibility

52
Q

Private Nuisance

A

Substantial, unreasonable interference with use or enjoyment of real estate

Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community!

It is not substantial if it is merely the result of the p’s hypersensitivity or specialized use of their own property

53
Q

Public Nuisance

A

Act that unreasonably interferes with the health, safety, or property rights of the community

54
Q

Employer/Employee - “Respondeat Superior”

A

Employer can be held liable if employee acting within scope of employment at time of accident

Frolic or Detour
- Minor departure
o Detour = employer liable
- Major Departure
o Frolic = employer not liable
- Ex. -> D is employed by UPS and is a delivery guy. He is delivering packages. He drives 2
blocks outside of route and gets food. Runs red light and gets in crash. Employer is
liable! If he went 5 hours away up state, that is a frolic = employer is liable

Intentional torts
- Generally, outside of scope of employment
o Ex. -> Supermarket employee intentional batters’ customer!
- Can be within scope of employment if employee acting to further employer’s purposes
- If occupation involves authorization to use physical force, misuse of that force is within
scope of employment
o Nightclub bouncers uses a little more force than necessary

55
Q

Within Scope of Element of Test

A

An act will be considered within the scope of employment if it was:
1. expressly authorized by the employer OR
2. of the same general nature as the employee’s job and motivated by a desire to serve the employer

56
Q

Independent Contracts/Hiring Party

A

Hiring party generally not liable for torts committed by independent contractor

Exceptions:
(i) The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or
(ii) The duty, because of public policy considerations, is simply non-delegable, e.g., the duty of a business to keep its premises safe for customers.

**Such an activity does not have to be classified as abnormally dangerous; it need only be an activity in which there are special dangers to others inherent in or normal to the activity

57
Q

Joint and Several Liability

A

Plaintiff can recover full damages from ANY defendant Plaintiff chooses

58
Q

Contribution

A

Defendant seeks compensation from co-defendants

59
Q

Comparative Contribution

A

Contribution imposed in proportion to relative fault of various defendants

60
Q

Defamation - 5 elements

A
  1. Defamatory statement specifically identifying Plaintiff
  2. Published to 3rd party
  3. Falsity
  4. Fault
  5. Damages

Defamatory statement -> statement adversely affecting reputation
 Factual representation that reflects adversely on character
 Subject to True/False test is normally a good test
 Opinion is actionable only if implies specific facts
 Name calling is insufficient
Do not have to use Plaintiff’s name – any identfying information sufficient
 Defamation of a deceased person not actionable!
 Plaintiff must be alive!
Group Defamation
 Small group – everybody has claim
 Large group – no one has claim

o Publication must be to at least 1 other person beyond Plaintiff!
o Publication does not have be intentional!

Fault required Depends on Plaintiff
 Private Person -> Negligence
 Public Figure -> Knowledge or reckless disregard (actual malice)

Libel -> Defamation embodied in permanent form (written or printed publication)
 Damages are presumed!
Slander -> Spoken/oral defamation
 Slander per se -> words so clearly defamatory that ordinary person would understand
injury
* Presumed damages!
* Categories
o Adversely reflects business/profession
o Committed serious crime
o Serious sexual misconduct
o Loathsome disease
 Plaintiff must prove economic harm for slander other than slander per se

61
Q

Affirmative Defenses to Defamation

A

Consent
o Express or implied

Privileges
o Absolute privileges
 Between spouses
 Officers of government in connection with official work
o Qualified privileges
 Available on case-by-case basis when public interest in encouraging candor
 Only applies to statements made in good faith and relevant in scope
o Common Interest Privilege
 Qualified privilege for statements made to colleagues within same organization

62
Q

Invasion of Right to Privacy - 4 kinds

A
  1. Commercial Advantage of plaintiff’s picture or name
  2. False light - publication of facts placing the plaintiff in false light
  3. Public disclosure of private facts
  4. Intrusion on the plaintiff’s affairs or seclusions

**First 3 require actual publication

**Intrusion, False Light, public disclosure must be highly offensive to a reasonable person

63
Q

Is there a duty to rescue?

A

No duty imposed on a person to come to the aid of another absent a special relationship between parties

If the person gratuitously comes to the aid of another, the actor must exercise due care in providing the assistance, and must not leave the person in a worse position than he found her

Bar Exam (Austin) (17 decks)

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