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Bar Exam > Torts > Flashcards

Torts Flashcards

1
Q

To establish a prima facie case for any intentional tort, the plaintiff must prove:

A

1) An act by the D
2) Intent by the D
3) Causation of the result to the plaintiff from the D’s act

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2
Q

What is the intent requirement for intentional torts?

A

The intent to bring about the forbidden consequences that are the basis of the tort.

The D does not need to intend the specific injury that results.

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3
Q

The transferred intent doctrine applies when the D intends to commit a tort against one person but instead:

A

1) Commits a different tort against that person;

2) Commits the same tort as intended but against a different person; OR

3) Commits a different tort against a different person.

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4
Q

Transferred intent doctrine may be invoked only if both the tort intended and the tort that results are one of the following:

A

1) Assault

2) Battery

3) False Imprisonment

4) Trespass to Land

5) Trespass to Chattels

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5
Q

What are the elements of Battery?

A

1) Harmful or offensive contact; AND

2) Contact must be with the plaintiff’s person

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6
Q

What are the elements of Assault?

A

1) Act by the D creating a reasonable apprehension in the plaintiff; AND

2) Of an immediate battery (harmful or offensive contact to the plaintiff’s person)

Fear is not required.

Words alone are not sufficient.

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7
Q

What are the elements of False Imprisonment?

A

1) An act or omission on the part of the D that confines or restrains the plaintiff; AND

2) The plaintiff must be confined to a bounded area.

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8
Q

What are the elements of Intentional Infliction of emotional distress?

A

1) An act by the D amounting to extreme and outrageous conduct;

2) The intent on the part of D to cause P to suffer severe emotional distress (physical injury is unnecessary, mental anguish is sufficient), or recklessness as to the effect of defendant’s conduct;

3) Causation; AND

4) Damages

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9
Q

Regarding emotional distress, what is extreme and outrageous conduct?

A

Conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if:

1) It is continuous in nature

2) It is committed by a certain type of D (common carriers or innkeepers may be liable even for mere “gross insults”); OR

3) It is directed toward a certain type of plaintiff (young children, elderly persons, someone who is pregnant).

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10
Q

When the D’s conduct is directed at a third 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:

A

1) They were present when the injury occurred;

2) The distress resulted in bodily harm or the plaintiff is a close relative of the third person; AND

3) The D knew these facts.

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11
Q

What are the elements to Trespass to Land?

A

1) Physical invasion (may be a person or object; if intangible matter enters, the Plaintiff may have a case for nuisance, but not for trespass since those things are not physical); AND

2) Of the plaintiff’s real property; AND

3) Causation.

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12
Q

What are the elements to Trespass to Chattels?

A

Act by the D that interferes with the plaintiff’s right of possession in a chattel

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13
Q

What are the two types of interference re Trespass to chattels?

A

1) Intermeddling (directly damaging the chattel); OR

2) Dispossession (depriving the plaintiff of their lawful right of possession of the chattel)

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14
Q

What are the elements to Conversion?

A

1) Act by the D that interferes with the plaintiff’s right of possession in a chattel; AND

2) Interference is serious enough in nature or consequence to warrant that the D pay chattel’s full value.

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15
Q

How do you distinguish between Trespass to chattels & Conversion?

A

The degree of interference by the D.

Small harm = Trespass to chattel

Big harm = Conversion

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16
Q

What are three defenses to intentional torts?

A

1) Consent

2) Necessity

3) Protective Privileges

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17
Q

What is the Express (Actual) Consent Defense?

A

The D is not liable if the plaintiff expressly consents to the D’s conduct.

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18
Q

What are the exceptions to the Express (Actual) Consent Defense?

A

1) Mistake will undo express consent IF the D knew of and took advantage of the mistake;

2) Consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; AND

3) Consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

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19
Q

What is the Implied Consent defense?

A

Apparent consent is that which a reasonable person would infer from custom and usage OR the plaintiff’s conduct.

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20
Q

Regarding the protective privileges defense of self others, or property, ask the following three questions:

A

1) Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify.

2) Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?

3) Was a proper amount of force used?

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21
Q

A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied:

A

1) There must be a reasonable belief as to the fact of theft;

2) The detention must be conducted in a reasonable manner and only nondeadly force can be used;

3) The detention must be only for a reasonable period of time and only for the purpose of making an investigation.

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22
Q

What is the necessity defense?

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.

Necessity defense is only applicable to property torts.

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23
Q

What are the two types of necessity defenses?

A

1) Public Necessity - A D can raise public necessity as a defense if they acted to avert an “imminent public disaster.”

2) Private Necessity - When the action was to prevent serious harm to a limited number of people. The actor must pay for any injury they cause (unless the act was to benefit the property owner)

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24
Q

What are the elements of a prima facie case of negligence?

A

1) A duty on the part of the D to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury;

2) A breach of that duty by the D;

3) The breach is the actual and proximate cause of the plaintiff’s injury; AND

4) Damages.

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25
Q

A duty of care is owed only to:

A

1) Foreseeable plaintiffs - the class of persons who were foreseeably endangered by the D’s negligent conduct.

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26
Q

What is the Reasonably Prudent Person standard of care?

A

An objective standard, measured against what the average person would do.

A D’s mental deficiencies and inexperience are NOT taken into account.

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27
Q

There are special standards of care based on the type of defendant. To whom do these special standards apply to?

A

1) Children;

2) Professionals; AND

3) Possessors of Land;

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28
Q

What is the special standard of care for children?

A

Children are held to the standard of a child of like age, intelligence, and experience.

This is a subjective test.

Children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care

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29
Q

What is the special standard of care for professionals?

A

professional is required to possess the knowledge and skill of an AVERAGE member of the profession or occupation in good standing.

D is no longer compared to an imaginary objective standard. D is compared to the average member of the profession

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30
Q

What is the special standard of care for possessors of land?

A

It depends.

The duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff’s status as

unknown trespasser;

known trespasser;

licensee; OR

invitee.

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31
Q

What is the special standard of care for unknown trespassers?

A

No duty is owed to undiscovered trespassers.

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32
Q

What is the special standard of care for Known trespassers?

A

As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:

1) Artificial (built by humans);

2) Highly dangerous (involving risk of death or serious bodily harm);

3) Concealed from trespasser; and

4) Known to the land possessor in advance.

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33
Q

What are licensees?

A

A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit.

Social guests are considered licensees.

34
Q

As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are:

A

1) Concealed to the trespasser; and

2) Known to the land possessor in advance.

35
Q

What are Invitees?

A

Invitees enter onto the land in response to an invitation by the possessor of the land. They enter for a purpose connected with the business of the land possessor.

36
Q

The landowner owes a duty to invitees regarding hazardous conditions that are:

A

1) Concealed to trespasser; AND

2) Known to the land possessor in advance or could have been discovered by a reasonable inspection.

37
Q

What is a statutory standard of care?

A

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

1) The plaintiff is within the protected class; AND

2) The statute was designed to prevent the type of harm suffered by the plaintiff.

38
Q

In general, no one has a legal duty to act. However, there are two exceptions:

A

1) Special relationship between parties (parent-child);

2) Peril due to on conduct - One has a duty to assist someone they have negligently or innocently placed in peril.

39
Q

Near Miss Cases - The duty to avoid negligent infliction of emotional distress may be breached when the D creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail:

A

1) The plaintiff must be within the “Zone of Danger.”; AND

2) The plaintiff must suffer physical symptoms from the distress.

40
Q

What is a breach of duty?

A

When the D’s conduct falls short of that level required by the applicable standard of care owed to the P.

41
Q

Under Res Ipsa Loquitur, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires the plaintiff to show that:

A

1) The accident causing the injury is a type that would not normally occur unless someone was negligent;

2) The negligence is probably attributable to the D.

42
Q

Once negligent conduct is shown, the plaintiff must show that the conduct was the cause of their injury. For liability to attach, the P must show both:

A

1) Factual cause (actual cause); AND

2) Proximate cause.

43
Q

What is the “But For” Test?

A

An act or omission is a factual cause of an injury when the injury would not have occurred “BUT FOR” the act or omission.

A D can refute this by showing that the P would have still been injured “even if” the act or omission did not occur.

44
Q

Merged causes - substantial fact test. What is it?

A

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the D’s conduct is the cause in fact if it was a SUBSTANTIAL factor in causing the injury.

45
Q

What is the Unascertainable causes approach for factual causation?

A

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.

46
Q

What is the doctrine of proximate cause?

A

A limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts.

47
Q

Under the general rule, what is the scope of foreseeable risk?

A

A D generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts.

This is a Foreseeability test.

48
Q

The D is liable when their negligence caused a foreseeable reaction from an intervening force or created a foreseeable risk that an intervening force would harm the plaintiff. The following intervening forces that are normal responses or reactions to the situation created by the D’s negligent act are almost ALWAYS foreseeable:

A

1) Medical malpractice;

2) Negligence of rescuers;

3) Protection of reaction forces to the D’s conduct;

4) Disease or accident substantially caused by the original injury.

49
Q

What are superseding forces?

A

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

Superseding forces break the causal connection between the D’s initial negligent act and the plaintiff’s ultimate injury, thus relieving the D of liability.

50
Q

What is the “Eggshell-skull” plaintiff rule?

A

The D is liable for ALL damages, including aggravation of an existing condition, even if the extent of severity of the damages was unforeseeable.

51
Q

What are the elements of strict liability for products liability?

A

The plaintiff must show:

1) The D is a merchant;

2) The product is defective;

3) The product was not substantially altered since leaving the D’s control; AND

4) The P was making a foreseeable use of the product at the time of the injury.

52
Q

There are three types of product defects. What are they?

A

1) Manufacturing defect - a product emerges from manufacturing different from and more dangerous than the other properly made products

2) Design defect - when all products of a line are the same but have dangerous propensities. P must show that the D could have made the product safer, without serious impact on the product’s utility or price (“Feasible Alternative”) approach.

3) Information Defect - A product may be defective as a result of the manufacturer’s failure to give ADEQUATE instructions or warnings as to the risks involved in using the product.

53
Q

What is nuisance?

A

A nuisance is an invasion of property rights by tortious conduct.

It must be offensive, inconvenient, or annoying to an AVERAGE person in the community.

It will not be characterized as substantial if it is merely the result of plaintiff’s hypersensitivity.

54
Q

What is a Private Nuisance?

A

A substantial, unreasonable interference with another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession.

55
Q

What is a Public Nuisance?

A

An act that unreasonably interferes with the health, safety, or property rights of the community.

56
Q

What is vicarious liability?

A

The active tortfeasor commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act.

57
Q

What is the doctrine of respondeat superior?

A

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship.

58
Q

It is usually held that intentional tortious conduct by employees is not within the scope of employment. What are the exceptions:

A

1) The employee is furthering the business of the employer (remove customers because they are rowdy);

2) Force is authorized in the employment (a bouncer); AND

3) Friction is generated by the employment (i.e., bill collector).

59
Q

In general, the principal will not be vicariously liable for the tortious act of an independent contract (the agent). There is one exception:

A

For situations where a duty is simply nondelegable due to public policy considerations.

For example, the duty of a business to keep its premises safe for customers.

60
Q

What is Joint and Several Liability?

A

When 2 or more negligent acts combined to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (liable to the plaintiff for the entire damage incurred).

If the injury is divisible, each defendant is liable only for the identifiable portion.

61
Q

What are the elements of Defamation?

A

1) A defamatory statement that specifically identifies the plaintiff;

2) Published to a third party (a communication to a third party who understands it, but it must be made intentionally or negligently);

3) Falsity of the defamatory language;

4) Fault on the part of the D; AND

5) Damage to the plaintiff’s reputation.

62
Q
A
63
Q

What is a defamatory statement?

A

A defamatory statement is one tending to adversely affect one’s reputation.

A statement of opinion is actionable only if it appears to be based on specific acts, and an express allegation of those facts would be defamatory.

64
Q

Public official or figure must prove actual malice in defamation cases. What is actual malice?

A

1) Knowledge that the statement was false; OR

2) Reckless disregard as to whether it was false.

This is a subjective test.

65
Q

Private persons must prove ___________ if matter of public concern.

A

Negligence.

66
Q

What is Libel?

A

Libel is a defamation that is embodied in permanent form.

67
Q

What is Slander?

A

Slander is spoken defamation.

68
Q

The plaintiff must prove special damages, unless the defamation falls within one of the slander per se categories. These are defamatory statements that:

A

1) Adversely reflect on the plaintiff’s business or profession;

2) State that the plaintiff has committed a serious crime;

3) Impute that the plaintiff has engaged in serious sexual misconduct; OR

4) State that the plaintiff has a loathsome disease.

69
Q

What are the damages for conversion?

A

Fair market value of the property AT the time of the conversion.

70
Q

Is mistake of ownership a valid defense to trespass to land?

A

NO

71
Q

Is the intent to cause harm or injury necessary for any intentional tort claim?

A

NO

72
Q

For a negligent infliction of emotional distress claim, there are two exceptions where damages do not have to been shown:

A

1) Mishandling of a corpse; AND

2) False report of a death.

73
Q

For a negligent infliction of emotional distress claim, must the plaintiff show physical injury due to the negligent act?

A

YES

74
Q

May you use deadly force to protect property?

A

NO; only non-deadly force is fine.

75
Q

To establish a negligence per se claim, remember the two Ps:

A

1) Protect a class

2) Prevent a particular harm

76
Q

What are the two main duties a landowner owes to an Invitee?

A

1) Duty to inspect; AND

2) Duty to make safe.

77
Q

True or False, Under a pure comparative model, a plaintiff may recover their damages even if their fault is greater than the defendant’s fault.

A

TRUE

78
Q

When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable to the plaintiff for the entire damages incurred. Joint and several liability applies even though each tortfeasor acted entirely independently.

However, each tortfeasor will be liable only for the identifiable portion IF:

A

1) the actions are independent,

2) plaintiff’s injury is divisible, and

3) it is possible to identify the portion of injuries caused by the defendants.

79
Q

How do you establish a prima facie case for Invasion of privacy involving public disclosure of private facts about the plaintiff?

A

Plaintiff must show that the publication was of private information about the plaintiff and that its public disclosure would be highly offensive to a reasonable person.

There is no liability for publication of matters occurring in a public place.

80
Q

How does a Defendant breach a duty to avoid negligent infliction of emotional distress?

A

A D breaches a duty to avoid negligent infliction of emotional distress when he 1) creates a foreseeable risk of physical injury to the plaintiff through causing a threat of 2) physical impact that leads to emotional distress.

Damages are recoverable ONLY IF the D’s conduct causes some physical injury.

Plaintiff must be in the zone of danger!

81
Q

Trespass to chattel requires 4 elements. What are they?

A

1) An act of D that interferes with plaintiff’s right of possession in the chattel (dispossession of or damage to the chattel);

2) Intent to perform the act bringing about the interference with plaintiff’s right of possession;

3) Causation; AND

4) Damages.

Bar Exam (14 decks)

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