Bar Prep - Torts: Key Definitions Flashcards Preview

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Flashcards in Bar Prep - Torts: Key Definitions Deck (68)

What is transferred intent?

Concept where P can be held liable for harm if you have intent towards ANY VICTIM regardless of who is hurt.


Prima facie case for torts

Must prove act by D, intent, and causation.


What is causation?

Concept that resulting harm must be legally caused by D's actions.

Satisfied if conduct was substantial factor in harm.


What is battery?

Harmful or offensive touching without consent.


Define "harmful or offensive touching."

Element of intention tort - battery. Unwanted contact that impairs/harms the body or violates a reasonable sense of personal dignity.


What is an assault?

Intentional tort that places P in apprehension of immediate battery (harmful or offensive touching).


What is apprehension?

Element of intentional tort assault, doesn't require actual fear, only knowledge


What is false imprisonment?

Intentional tort, an intentional act of restraint where P is confined to a bounded area.


What is the definition/importance of a "bounded area."

Element of false imprisonment, intentional tort, defined as an area where there is no reasonable means of escape that P can reasonably discover.


What is intentional infliction of emotional distress?

Intentional tort, where D's extreme and outrageous conduct cause P severe emotional distress.


What damages must P suffer for a successful IIED claim?

Actual damages of sever emotional stress, not necessarily physical.


What is trespass to land?

D must commit a physical invasion of P's property. P must merely be the possessor of land.


What is trespass to chattels?

Intentional interference with P's personal property. Requires intermeddling.

Intermeddling = conduct that directly damages P's chattel.


What is conversion?

Intentional interference with P's personal property that deliberately damages or deprives P of possession.


What is consent?

Dense to intentional torts, P consents to intentional and ultimately harmful action. All consent has scope.

Can't give consent without legal capacity. Aka if drunk, mentally disabled or young child.


What is implied consent?

Defense to intentional torts based off P's implied consent, can be apparent (derived from custom), implied by law, or based on reasonable interpretation of P's actions (body language).


What is protected privilege?

Defense to intentional torts, including self-defense, defense of others or defense of property.


What is necessity?

Defense to intentional torts, limited to property torts only.


What is public necessity?

Defense for intentional property torts when D uses, damages or enters property in emergency to protect community as a whole.


What is private necessity?

D invades P's property to protect D's property or self.


What is defamation?

Defamatory statement that specifically identifies P, published in public, statement is false, and statement damages P's reputation.


What is libel?

Written defamation.

Written defamatory statement, that is published, that is false, and that damages P's reputation.


What is slander?

Spoken defamation.

Spoken statement that specifically identifies P, is published, is false, and adversely affects P's reputation.


What is an invasion to right to privacy?

Tort claim defined as unreasonable interference with an individual's solitude or personality.


What are the common claims raised under invasion of right to privacy?

Appropriation of P's likeness, picture or name
False light


What is the claim of false light?

Claim concerning wide spread dissemination of major falsehood regarding P that is highly offensive to average person.


What is intentional misrepresentation?

Fraud or deceit tort claim, where D makes false representation of material past or present fact, D intends P's reliance, D actually causes reliance, and cause P damages.


What is the definition of misrepresentation?

D must make false representation of material past or present fact, D has duty to disclose.


What is negligent misrepresentation?

Intentional misrepresentation confined to commercial transactions.

D made misrepresentation is business capacity, D breached duty owed to P, and P must actually rely on misrepresentation to their detriment.


What is the claim of interference with business relationship?

Claim that D induce commercial harm, such as breach of contract or interference with prospective commercial advantage.

P must existence of valid contractual relationship, D's knowledge of relationship or expectation, intentional interference and damages.


What damages may P recover under a successful interference with business relationship claim?

Mental distress damages, punitive damages.


What are the elements of negligence?

P must show D owed duty, duty was breached, and breach was actual AND proximate cause of P's damages.


Under a negligence claim, what is the definition of duty?

P must show D owed a duty of care. Defined under a reasonably prudent person standard. D owes duty of care to act as reasonably prudent person under the circumstances.


How is duty defined for individuals with superior skills?

If an individual has superior skills, they are held to the standard of an individual with like superior skills or knowledge.


With negligence, what are the special duty scenarios concerning children.

Child under 5 are incapable of negligence. Over 5 are held to standard of care of similar child of same age, knowledge and experience.

Exception is child doing adult activities, then held to adult standard.


What is the standard of care owed by physicians?

Physicians are required to exercise the knowledge of similar professionals in similar communities.


What duties are imposed in a bail meant scenario?

Typically, if then bailment was transferred for the sole benefit of the Bailor (requester), Bailee only liable for gross negligence.

Risk of liability increases as the benefit to Bailee increases.


What duty of care is owed by the driver of a car?

Ordinary care owed to passengers only.


What type of duty is owed by possessor of land to unknown trespasser?

No duty owed, the possessor of land is unaware of their presence.


What duty is owed to a known or anticipated trespasser?

Duty to protect from (man made death traps) where conditions are artificial, conditions highly dangerous, conditions concealed, and possessor knew of hazard.


What duty of care is owed to a licensee?

Possessor of land must protect licensee from all know death traps. Conditions must be concealed/hidden, possessor must have prior knowledge.


What duty of care is owned to invitee?

Highest duty to protect from hazards that possessor is aware of or could have identified by reasonable inspection.


What duty of care is owed to child trespassers, or with attractive nuisance?

Reasonably prudent person standard still applies.


When is there a duty to act affirmatively?

Never. Exception exists if there is a formal relationship with the person in peril (innkeeper).


What is res ispa loquitor?

(Thing speaks for itself). When P lacks information and doesn't know what D did wrong.


What is the two part test for res ispa loquitor?

(A) accident is type normally associated with negligence, and (B) accident normally done through negligence by someone in D's position.


What is factual causation?

Link between breach and injury suffered. Result would not have occurred but for action.


What are "merged causes?"

When two or more defendants were negligent and released destructive force that hurt the P.


What test is applied to "merged causes" situation in negligence claim?

Substantial factor test, ask if each breach could have caused the harm itself.


What result with multiple defendants and unascertainable cause of harm?

Joint and several liability unless D can prove they aren't liable.


What is proximate causation?

Legal causation, P must show what happened was a foreseeable consequence of the breach.


What is indirect proximate causation?

D is liable for harms caused by reasonably foreseeable intervening forces. Common examples include subsequent medical malpractice, negligence of rescuers, or subsequent disease or accident.


What is negligent infliction of emotional distress?

Tort claim where no physical trauma is sustained to P's body, but P is left upset and suffers a physical manifestation of injury from distress.


What is contributory negligence?

MINORITY RULE: If P contributed to injury in any amount, P's claim is barred.


What is pure comparative negligence?

If P failed to exercise proper case for his own safety, the jury assigns each party a percentage of liability. Example, if P is responsible for 90% of the harm, he can only recover 10%.


What is partial comparative negligence?

MAJORITY RULE, (50% Rule) P is barred from recovering against liable D if D is at least as responsible as P.


What is the concept of "implied assumption of risk?"

P knew the risk and voluntarily exposed himself, then tort claim is completely barred.


What is joint and several liability?

Damages are joint to P, but the defendants bear several liability amongst themselves. P can recover from one of the D's, and D's must settle claim amongst themselves.


What is strict liability?

D is strictly liable for harm when D has (a) absolute duty to make their activity safe, (b) activity was actual and proximate cause of injury, and (c) P suggested damage to person/property.


What are the three most common types of strict liability cases?

(1) Trespassing animals,
(2) Abnormally dangerous activity, and
(3) Products liability.


When is an owner strictly liable for harm done by animals?

(a) Trespassing animals, and (b) Wild animals.

Owner is strictly liable for damage done by trespass of animals as long as damage was reasonably foreseeable.


What is a products liability based negligence action?

Tort claim where P sues for design defects (D should have known) AND defective product.

P must should duty of care to any reasonably foreseeable P, breach of duty, causation and damages.


What is products liability based on strict liability action?

Claim based on defective design, inadequate warnings, or defect product.

P must show D had duty to supply safe products, D products or sold defective product, causation, and damages.


What are the defenses to strict liability claim based on products liability?

Contributory negligence.


What is nuisance?

Tort claim for tip of harm that is the invasion of either private property rights or public rights by conduct that is tortious.


What is public nuisance?

Tort claim that harm interferes with health, safety, or property rights of community.


What is private nuisance?

Claim that D's activity interferes with P's ability to enjoy real estate to a reasonable degree. Must be substantial interference, or unreasonable interference.


What is vicarious liability?

Concept of holding passive party liability when someone commits a tort. Based on special relationship between parties, if one person commits tortious act against third party, another can be liable. (Employer - employee).