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Paralegal > Torts > Flashcards

Torts Flashcards

0
Q

When does a Tort occurs?

A

When a person violates a duty to others

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1
Q

What is a tort?

A

Is a civil wrong doing that is the basis for legal cause of action

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2
Q

When does a Tort occurs?

A

When someone deliberately or through carelesness causes harm or loss to other person or its property.

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3
Q

What is an intentional tort?

A

Is a category of torts that describes a civil wrong resulting from an intentional act.

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4
Q

Mention few intentional torts

A

Assault
Battery
False imprisonment

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5
Q

What is assault?

A

Is the threat of immediate harm or offensive contact

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6
Q

What is battery?

A

Unauthorized, harmful or offensive physical contact with another person

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7
Q

In battery what is the interest protected?

A

The persons reasonable sense of dignity and safety

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8
Q

Does battery has to be a direct contac?

A

No, it could be a stone trown, a bullet, poison, pulling a chair.

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9
Q

How is from target to actual victime called?

A

Doctrine of transferred intent

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10
Q

What constitutes false imprisonment?

A

The intentional confinement or restrain of one person without authority or justification and without that persons consent.

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11
Q

Mention few reasons why a suspected shoplifter can be detained without the store been liable for false imprisonment?

A

There are reasonable ground of suspicion
The suspect is only detained for a reasonable amount of time
The investigations are done in a reasonable manner.

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12
Q

What is defamation of character?

A

Is false statements by others

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13
Q

For defamation, what does the plaintiff has to prove?

A

That the defendant made an untrue statement of fact about the plaintif and
That the statement was intentionally or accidentally published to a third party

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14
Q

What are the merchants protection statutes?

A

There are reasonable ground for suspicion
That the suspect is detained for a reasonable time
That investigations are conducted in reasonable mater

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15
Q

What are these?
There are reasonable ground for suspicion
That the suspect is detained for a reasonable time
That investigations are conducted in reasonable mater

A

The Merchant Protection Statutes

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16
Q

What does publish mean?

A

That a third person saw or heard the untrue statement

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17
Q

What does SLANDER mean?

A

That the defamation statemen is oral

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18
Q

If the defamation statement is oral it is called?

A

Slander

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19
Q

What does Libel mean?

A

That the false statement appears in a book, letter, newspaper, movie, radio or video

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20
Q

If a false statement appears in a book, movie, radio, Tv, video or newspaper it is called?

A

Libel

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21
Q

Is an opinion the same as statement of fact?

A

No, an opinion is protected from defamation

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22
Q

What is truth?

A

It is a complete defense

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23
Q

What is a complete defense called?

A

A TRUE

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24
Q

What does actual malice mean?

A

That the defendant made the false statement knowingly or with reckless disregard of its falsity

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25
Q

In what case did the Supreme Court held that public officials cant recover from defamation unless they can prove the deffendant acted with ACTUAL MALICE.

A

New York Times v. Sullivan

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26
Q

In a Misappropiation of the right to publicity the plaintiff can

A

Recover unauthorized profits
And
Obtain an injunction

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27
Q

What is invation to the right of privacy?

A

Is the violation of the persons right to live without being subject to unwarranted and undesired publicity

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28
Q

Give examples of Invation of the Right of Privacy

A

Reading others mail and wiretapping

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29
Q

What is IIED?

A

Intentional Infliction of Emotional Distress

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30
Q

What does a plaintiff has to prove to an IIED?

A

That the defendas conduct was of extreme degree and intolerable in a civilized society.
That his mental distress was sever and presented nausea, ulcers and headaches.

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31
Q

Name types of Properties in Torts

A

Real property and

Personal property

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32
Q

What is real property?

A

Land or anything attached to it

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33
Q

What is personal property?

A

Cars, jewlery, cloths, pets

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34
Q

What is Trespass to land mean?

A

Is the interference with the owners right to exclusive possesion of the land

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35
Q

Give two Intentional

Infliction of Emotional Distress

A

Trespass to land
And
Trespass to personal property

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36
Q

What is traspass to personal property?

A

Is when one person injures anothers personal property and interfears with the property enjoyment

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37
Q

How is the negligence in a Tort

A

Unintentional

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38
Q

What is negligence?

A

Is the failure to act in a reasobable way or not to be prudent.
It is the omission to do something which a reasonable person would do.

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39
Q

What are the elements of negligence?

A

Tortfeasor owed a duty of care to plaintif
The defendant breached that duty
The plaintiff suffered injury
The breach cause the injury

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40
Q

What is Duty of Reasonable care?

A

Is the obligation we owe each other not to cause any harm or risk of harm

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41
Q

What is a Business duty?

A

To make safe products and not to cause accidents

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42
Q

Give example of personal duty

A

Drive carefully, not to push anybody on the escalator

Not to live skateboards on a side walk

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43
Q

What is an objective, careful and conscientious person of act in the same circumstances called

A

Reasonable persons standard

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44
Q

What does subjective intent mean?

A

That he didnt mean to do that

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45
Q

What is a breach?

A

Is the feilure to exercise care
It is the failure to act as a reasonable person would act.
Could be an act or the failure to act.

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46
Q

Is every breach actionable?

A

No, unless there is an injury.

No injury no tort

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47
Q

Cause-in-fact equals to?

A

But for

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48
Q

For cause- in- fact the plaintiff must do what?

A

Produce suficiente evidence of cause- in-fact

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49
Q

Give an example of cause-in-fact case

A

Caranna v. Eades

The kid foling from the hotels balcony

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50
Q

What is a concurrent cause case?

A

When two or more events of negligence result in an injury

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51
Q

In a but for test what happens to the defendant?

A

He is prevented from avoiding liability

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52
Q

When does the substancial factor test applies?

A

When two ore more events contribute an undivisible injury

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53
Q

What does preponderance mean?

A

More likely than not

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54
Q

More likely than not is?

A

Preponderance

55
Q

What does proximate cause do?

A

It determines the scope of the defendants liability

56
Q

What is legal duty concerned with?

A

The Foreseeable risk in the general sense

57
Q

What is proximate cause concerned with?

A

If the defendant could foresee the risk which cause the accident that injured the plaintiff

58
Q

Proximate clause equals to

A

Foreseeability

59
Q

Who introduced the foreseeability concept?

A

Andrews J. In the seminal case of

Palsgraf v. Long Island RR

60
Q

What is the foreseeable concept applied for in courts?

A

To limit the defendants liability on the basis of fairness and policy consideration

61
Q

What does RES IPSA LOQUITUR mean?

A

The thing speaks for itself

62
Q

How is the thing speaks for itself called in italian?

A

Res Ipsa Loquiture

63
Q

When does RES IPSA LOQUITURE applies in court?

A

If a deffendnt is in control of a situation in which the plaintif was injured

64
Q

When might a plaintif have difficulty on proving negligence?

A

When the defendant is in control of a situation in which the plaintif was injured and has superior knowlwdge of the circumstances sorrounding the injury

65
Q

What does the RES IPSA LOQUITURE doctrine raises?

A

A presumption of negligence and switches the burden to the defendant to prove the he was not negligent

66
Q

When does RES IPSA LOQUITURE applies?

A

The deffendan had exclusive control over the instrumentality or situation that caused injury
The injury had not occurred BUT FOR someones negligence

67
Q

What is Liability of landowners?

A

Is the owners or renters of real property duty to protect visitors from injury

68
Q

What does the liability depends on?

A

On the visitors status

69
Q

What kind of duty are the invitees and licensees owed?

A

The duty of ordinary care

70
Q

What kind of duty are traspasees owed?

A

A duty not to willfully injure a traspaseer.

71
Q

What are the defenses against negligence?

A 
1- supersiding or intervining event
2- assumption of the risk
3- contributory negligence
4- comparative negligence
5- doctrine of strict Liability
72
Q

What is Supersiding or intervining event?

A

Is when a person is liable for a forseeable event

73
Q

What can a defendant raise as defense for liability?

A

A superseding event

74
Q

What does foreseeable mean?

A

To see or know beforehand

75
Q

What is assumption of risk?

A

When the plaintiff knows the risk and assumes it

76
Q

What is contributory negligence?

A

A plaintif is partially at faul for the injury

77
Q

What is comparative negligence?

A

Damages according to the portion of the fault

78
Q

What kind of negligence has Texas addopted in court?

A

Partial comparative negligence

79
Q

In comparative negligence what is the percentage taken under consideration?

A

If Is the plaintif is 50% or more negligent he gets nothing

80
Q

What is DOCTRINE OF STRICT LIABILITY?

A

Is the liability applied to business of selling

81
Q

When does the Doctrine of Strict Liability applies?

A

For products not services

82
Q

Who is liable under the Doctrine of Strict Liability?

A

All parties in the line of distribution

83
Q

In Texas, what is the Statute for Medical Malpractice?

A

2 years

84
Q

What is the discovery rule?

A

The discovery Rule does not apply in Texas.

The malpractice starts when it happens

85
Q

What is the cap for Medical Malpractice in Texas?

A

$250,000

86
Q

What change the Medical Malpractice in Texas?

A

The Tort Refom

87
Q

What do you have to consider for Medical Malpractice?

A

The statutes of limitation
The Discovery Rule
The tort reform

88
Q

What do you have to consider in Legal Malpractice?

A

The Statutes of Limitation

What you must prove

89
Q

What is Damage?

A

It is a physical harm caused to something that impairs its value, usefullness or normal function

90
Q

What is damages equal to?

A

Money

91
Q

Name the kinds of Damages

A

Compensatory damages
Punitive damages
Speculative damages
Statutory damages

92
Q

How is Compensatory damages also called?

A

Actual damages

93
Q

What does compensatory damages include?

A 
Medical cost
Repair or replacement costs
Lost wages
Pain and suffering
Loss of employment
94
Q

How are compensatory damages normally divided?

A

Into economical and

Non-economical damages

95
Q

What are punitive damages also called?

A

Exemplary damages

96
Q

How are the damages awarde in punitive damages?

A

As a penalty or punishment to the defendant

97
Q

What are punitive damiges awarded for?

A

Non compensatory, non economic or economic

98
Q

How is speculative damages also called?

A

Future damages

99
Q

Explain speculative damages

A

Are damages that have not occured but are expected to occure as result of the injury

100
Q

What are Statutory damages?

A

Damages that are set by Statute

101
Q

What are Attorneys fees?

A

They are damage

102
Q

How can attorneys fees be set?

A

By statute or by contract

103
Q

What is IOLTA

A 
Interest
On
Lawyers
Trust
Account
104
Q

What goes into IOLTA?

A

The money the client pays

105
Q

Who gets the interest of IOLTA?

A

The State Bar to fund legal services

106
Q

What is the case of the baseball game called?

A

Manning v. Grimsley

107
Q

What is the car seat case al Kmart called?

A

Johnson v. Kmart

108
Q

Name the four elements of negligence

A

The tortfeasor owed a duty of care
The defendant breached that duty
The plaintiff suffered injury
The injury was caused by the breach

109
Q

What test requires that the plaintiff prove by a preponderance that if not for the defendants negligence act….

A

The but for test

110
Q

If the but for test fails what test does the court supply?

A

The substantial test

111
Q

Landowners owe a duty of?

A

Ordinary care

112
Q

What is subjective intent?

A

The duty not to cause harm

113
Q

Foreseeability equals to?

A

Proximate care

114
Q

Res Ipsa Loquitur is?

A

The thing speaks for itself

115
Q

Explain the Discovery Rule

A

The Statute of Limitation start when you discover the injury

116
Q

Proximate cause has to do with?

A

Forseability of the risk

117
Q

All parties in the chain of distribution are…………….

For injuries cause by the defective product

A

Strictly liable

118
Q

If someone uses my photo and makes money without my consent, they constitute the civil tort of?

A

Invasion of the Right of privacy

119
Q

An unintentional tort is?

A

A negligent tort

120
Q

Categories of visitors

A

Invitees
Traspaseers
Licensees

121
Q

In a but for test the defendant is prevented from…..

A

Aboiding liability

122
Q

In a but for test the defendant is prevented from…..

A

Aboiding liability

123
Q

if someone attempts to use my name or personality commercially without my permission, that may be the tort of?

A

misapropiation to the right of publicity

124
Q

If a person’s extreme and outragwous conduct intentionally causes severe emotional distress to someone else, that might be?

A

IIED

125
Q

………………….is interference with an owner’s right to exclusive possession of land.

A

traspasee to land

126
Q

When a person injures, or interferes with the enjoyment of another person’s property, that could be the tort of?

A

traspasee to personal property

127
Q

the failure to exercise care is called?

A

breach

128
Q

when trying to determine the cause.in.fact in a negligence suit, the court will use the…………………………… test. If that test fails, courts will use the ……………………………test

A

but for

subtantial test

129
Q

Invitees and licensees are owed a duty of…………….

A

ordinary care

130
Q

If a person knows of, and voluntarily enters into a risky activity, that is known as……………….

A

asumption of the risk

131
Q

Explain contributory negligence

A

when a person breaches the duty of ordinary care and causes injury, s/he can be held entirely or partially responsable for the resulting injury

132
Q

explain partial comparative negligence

A

if the plaintiff negligence excedes 50% of the responsibility s/he is completly forbiden from recovering damages

133
Q

give example of a non-economic damages

A

pain and suffer

134
Q

the purpose of punitive damages is to————-

A

punish

135
Q

what goes into IOLTA

A

the unearned attorney’s fees

Paralegal (25 decks)

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