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Bar Studying - MBE Subjects Only > Torts - Intentional Torts > Flashcards

Torts - Intentional Torts Flashcards

1
Q

A prima facie case of battery requires

A

an (1) intentional act by the defendant that (2) causes a (3) harmful or offensive contact to the plaintiff’s (4) person.

Intent can be actual or knowledge with substantial certainty. The relevant intent is the intent to create the contact, not the intent to create the resulting injury.

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2
Q

A prima facie case of assault requires

A

an (1) intentional act by the defendant that (2) causes a (3) reasonable apprehension in the plaintiff of (4) immediate harmful or offensive contact to (5) P’s person.

**P must be aware of D’s activity.

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3
Q

A plaintiff’s person includes

A

anything connect to plaintiff (purse, hat, coat, etc.)

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4
Q

A prima facie case of false imprisonment requires

A

an (1) intentional act or omission that by the defendant that (2) causes the plaintiff to be (3) confined to a bounded area, (4) the plaintiff must known of the confinement or be harmed by it, (5) the must not be aware of any reasonable means of escape.

**Requires that P be aware of D’s activity

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5
Q

False imprisonment does not require actual physical barriers, but can include

A

physical force and threats of force

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6
Q

A prima facie case of IIED requires

A

(1) D’s actions are extreme and outrageous; (2) intent or recklessness; (3) causation; (4) damages - severe emotional distress

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7
Q

Intent may be either

A

(1) actual; or
(2) D KNOWS WITH SUBSTANTIAL CERTAINTY that the consequences will result

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8
Q

A prima facie case of trespass to land requires

A

an (1) intentional act by the defendant that (2) causes a (3) physical invasion of the plaintiff’s real property.

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9
Q

A prima facie case of trespass to chattels requires

A

(1) an intentionalact by D that (2) causes an (3) interference with P’s right of possession of the chattel (damage or possessory); (4) damages (actual, but can be to the possessory right)

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10
Q

A prima facie case of conversion requires

A

similar to trespass to chattels except that the interference is so serious that it warrants requiring D to pay the chattel’s full value

*Mistake as to ownership is no defense

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11
Q

In a conversion case, a plaintiff may recover

A

(1) damages (FMV at time of conversion); or
(2) Possession (replevin)

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12
Q

“Conversion” simply requires a _____ invasion of the chattel ______ of another.

A

serious; interest.

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13
Q

“Intent” for conversion and trespass to chattles refers to the intent to ___________, good faith belief is ________.

A

perform the physical act that results in the conversion or trespass; irrelevant.

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14
Q

The five defenses to intentional torts are

A

(1) Consent
(2) Self-Defense/Defense of Others/Defense of Property
(3) Necessity
(4) Privilege of Arrest
(5) Discipline (parent/child)

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15
Q

The two requirements of consent are

A

(1) consent was valid; and
(2) D stayed within the boundaries of the consent

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16
Q

Consent can be both

A

(1) express
(2) implied

  • (2)(a) apparent consent - reasonable person would infer consent
  • (2)(b) implied by law - action is necessary to save a person’s life/property (Good Samaritan)
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17
Q

The capacity required for intent is that

A

everyone is capable of intent, even young persons and mentally incompetent. Incapacity is not a defense.

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18
Q

The capacity required for consent

A

individuals w/o capacity are incapable of consent, e.g., incompetents, drunk persons, very young children

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19
Q

The adequacy of consent to medical procedures is evaluated under the doctrine of

A

informed consent.

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20
Q

The adequacy of “informed consent” is measured by whether the __________ was serious enough that a __________ in the _______ position would have ___________.

A

undisclosed risk;

reasonable person;

patient’s;

withheld consent.

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21
Q

Self-defense applies when

A

a person reasonably believes that she is being or is about to be attacked, she may use such as as is reasonably necessary

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22
Q

If D is the initial aggressor, then D cannot claim ______ unless ___________________.

A

self-defense;

the other party responded to D’s non-deadly force by using deadly force

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23
Q

Duty to retreat: The majority rule is that

A

there is no duty to treat.

But the modern trend imposes a duty to retreat before using deadly force if it can be done safely.

No duty to retreat in own home.

24
Q

D may use force to defend another if D

A

(1) reasonably believes that the other person could have used force to defend himself,
(2) D may use as much force as D could have used if D were the one attacked.

**Reasonable mistake as to whether the person is being attacked or has the right to self-defense is permitted.

25
Q

The shopkeeper privilege allows

A

a shopkeeper to detain a suspected shoplifter if the shopkeeper has (1) a reasonable belief of theft;

(2) conducts the detention in a reasonably manner using non-deadly force;
(3) detains the suspected shoplifter for a reasonable period of time

REASONABLE (1) BELIEF; (2) MANNER; (3) TIME

26
Q

In defending property, a ____________ must usually precede the use of force, EXCEPT when

A

request to desist;

the circumstances make it clear that the request would be futile or dangerous, then a request to desist is not required.

27
Q

The prima facie case of common law defamation requires

A

(1) a defamatory statement
(2) of and concerning the plaintiff
(3) published to a 3rd party
(4) that damages P

28
Q

If the defamation involves a matter of public concern, plaintiff must also prove

A

(1) falsity of the statement; and
(2) fault by the defendant (negligence or actual malice, depending on P’s status)

**Falsity at common law need not be proven because truth is an affirmative defense at common law

29
Q

If the defamation involves a matter of public concern and plaintiff is a public figure

A

plaintiff must prove that defendant acted with ACTUAL MALICE (knowledge of falsity or reckless disregard as to falsity)

**In addition to affirmatively proving that the statement is actually false.

30
Q

If the defamation involves a matter of public concern and P is a private figure and

A

plaintiff must prove that defendant was NEGLIGENT with regard to the statement’s truth or falsity

**In addition to affirmatively proving that the statement is actually false.

31
Q

Plaintiff is a public figure for defamation purposes if plaintiff is a

A

(1) public officials; or
(2) plaintiff achieves pervasive FAME or notoriety; or
(3) plaintiff voluntarily assuming a central role in a particular public controversy

32
Q

Damages: Where D was merely negligent in a defamation case, only _______ damages are recoverable.

A

“actual injury”

33
Q

Damages: Where D acted with actual malice in a defamation case,

A

damages may be presumed and punitive damages are allowed

34
Q

The “reckless conduct” prong of actual malice is not measured by whether a reasonable person would have ____________, but rather

A

investigated before publishing;

there must be a showing that the defendant in fact (subjectively) entertained serious doubts as to the truthfulness of his publication

35
Q

Damages: If defamation is spoken (slander), plaintiff must prove ____________ as part of plaintiff’s prima facie case.

A

special damages (economic harm, pecuniary loss).

36
Q

Damages: If defamation is written (libel), juries may

A

presume special damages.

37
Q

The three common law defenses to defamation are

A

(1) Truth
(2) Absolute privilege
(3) Qualified privilege

38
Q

At common law, truth is an element of the prima facie case or defense?

A

Defense to be raised and proven by defendant.

**But if matter is of public concern or P is a public figure, burden is on P to prove falsity.

39
Q

The three categories of the absolute privilege defense to defamation are statements made

A

(1) during judicial proceedings
(2) during legislative proceedings
(3) between spouses

**Applies no matter how bad D behaves

40
Q

Qualified privilege may be lost if

A

(1) the statement is not within the scope of the privilege; or
(2) the speaker acted with actual malice.

D bears the burden of showing a privilege exists.

41
Q

The qualified privilege defense to defamation can apply in the following cases

A

(1) reports of official proceedings
(2) statements made in defense of one’s actions, property, or reputation
(3) statements in the interest of the recipient
(4) statements in the common interest of the publisher and recipient

42
Q

A statement is defamatory if it

A

injures P’s reputation.

Mere name calling is not enough.

43
Q

A defamatory statement is “of and concerns the plaintiff” if

A

the statement is reasonably understood to refer to the P.

For groups, look at group size.

44
Q

A defamatory statement is “published” when

A

communicated to a third party in an understandable fashion.

The third party must be capable of understanding the communication (e.g. communicating to someone who doesn’t speak English is NOT a publication).

**Statements made to the PLAINTIFF are not “published”.

45
Q

Damages: In slander per se cases, a plaintiff may recover _____ damages and need not prove _______.

A

presumed damages;

special damages (economic harm/pecuniary loss).

46
Q

In defending a defamation claim on the grounds that the speaker did not intend for the statement to be overheard, the standard is whether it was

A

reasonably foreseeable that the statement would be overheard.

47
Q

The four traditional categories of slander per se are

A

(1) impugning P’s reputation in business or profession (2) accusing P of a crime of moral turpitude (3) loathsome disease (4) unchastity of a woman

48
Q

The four invasion of privacy torts are

A

(1) Misappropriation (2) Intrusion (3) False Light (4) Public disclosure of private facts

49
Q

The tort of appropriation requires

A

use of the P’s name or picture for commercial advantage w/o permission.

50
Q

The tort of intrusion requires

A

(1) interference with P’s seclusion in a way that would be highly offensive to a reasonable person; and
(2) P must have a reasonable expectation of privacy.

51
Q

The tort of false light requires

A

(1) publication of information
(2) that puts the plaintiff in a false light
(3) that would be highly offense to a reasonable person

52
Q

The tort of public disclosure of private facts requires

A

(1) publication of information
(2) that would be normally confidential and
(3) the disclosure would be highly offense to a reasonable person

**Newsworthy disclosures are not actionable

***Truth is not a defense

53
Q

The defenses to invasion of privacy actions are

A

(1) Consent
(2) Absolute and Qualified Privilege, but only for false light and public disclosure claims

54
Q

A prima facie case of fraud requires

A

(1) Affirmative misrepresentation (silence not enough)
(2) Scienter
(3) Materiality
(4) Reasonable Reliance
(5) Damages (no harm, no foul)

55
Q

The three types of intentional interference with business relations are

A

(1) Inducing breach of contract
(2) Interference with contractual relations (making performance more difficult)
(3) Interference with prospective business relations

56
Q

Wrongful institution of legal proceedings includes

A

(1) Malicious prosecution
(2) Abuse of process

57
Q

Accidentally causing damage to another’s chattel may constitute a conversion when

A

the damage occurred while the defendant was using the chattel without permission.

Bar Studying - MBE Subjects Only (15 decks)

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