Chapter 6 - Exam 2 Flashcards
(115 cards)
1
Q
what is a tort?
A
civil wrongs other than breach of contract
2
Q
in tort law, plaintiffs usually seek ______ damages for the wrong they suffered by the defendant
A
money
3
Q
what are the 3 classifications of tort law?
A
intentional torts, negligence, strict liability
4
Q
what is REQUIRED for an intentional tort? what isn’t required?
A
intent is required, no evil or harmful motive is required
5
Q
what are the types of intentional torts against persons we talked about?
A
- assault and battery
- false imprisonment
- intentional infliction of emotional distress
- Invasion of the right to property
- defamation
- fraudulent misrepresentation
6
Q
what do you call the person who is committing the tort?
A
tortfeasor
7
Q
In tort law, ______ means only that the person intended the consequences of his or her act or knew with substantial certainty that specific consequences would result from the act.
A
intent
8
Q
what is an assault?
A
any intentional and unexcused threat of immediate harmful or offensive contact—words or acts that create a reasonably believable threat
9
Q
assault is more about _____, not physical harm
A
feeling
10
Q
T/F: under tort law, a defendant can give reasons as to why the plaintiff shouldn’t win
A
true
11
Q
with intentional torts, courts seem to focus on the _____, not necessarily the _____
A
act, harm
12
Q
what is a common defense for intentional torts?
A
consent
13
Q
Intentional Torts against Person is also called what?
A
personal torts
14
Q
what is battery?
A
an unexcused and harmful or offensive physical contact intentionally performed (completion of the act)
15
Q
_____ can lead to battery, and _______ can include assault
A
assault, battery
16
Q
is malic necessary for battery?
A
no
17
Q
if someone isn’t aware of the situation (asleep, distracted, etc) were they assaulted?
A
no because assault is based on feeling, you can’t feel if you’re unaware
18
Q
what are the defenses to assault and battery?
A
consent, and self defense/defense of others
19
Q
to raise a defense under self defense & defense of others, it must have…(2)
A
- reasonable defense in both real and apparent danger
- reasonable force used
20
Q
what is false imprisonment?
A
intentional confinement or restraint of another person’s activities without justification or excuse
21
Q
false imprisonment must include:
- barriers/restraints that are _____ or _____ threats of physical force.
- the person restraint must not _____ to the restraint
A
physical, oral, agree
22
Q
is moral pressure enough to file false imprisonment?
A
no
23
Q
does false imprisonment apply to shop lifters?
A
no because owners have the right to detain them
24
Q
words or acts that create a reasonably believable threat can be classified as…
A
assault
25
If the act that created the apprehension is completed and results in harm to the plaintiff, it is a _____
battery
26
t/f: the contact of a battery can be to something that is attached to the person
true
27
what is intentional infliction of emotional distress?
ex) someone told your parents you were dead(lie)`
extreme or outrageous conduct causing extreme emotional distress to another
28
speech about celebrities is protected under 1st amendment so can intentional infliction of emotional distress be used by celebrities?
no
29
what is defamation?
wrongfully harming a person's good reputation
30
what are the 3 types of defamation?
libel, slander
31
libel is _____ words while slander is ____ words
written, oral
32
t/f: if the lie someone said about you, can you win your defamation suit?
no
33
what are the prima facie elements that the plaintiff must prove in a defamation case?
1. defendant made a false statement of fact
2. the statement was understood as being about the plaintiff and intended to harm the plaintiff's reputation
3. published to a 3rd party
34
what's the extra prima facie element the plaintiff has to prove if they're a public figure?
actual malice, meaning the defendant knew the allegation was false
35
Publication here means that the defamatory statements are communicated (either ________ or _______) to persons other than the defamed party.
accidentally, intentionally
36
which defamation gets the following kind of damages?
- proof of the libel, general damages are presumed; proof of special damages isn't necessary because words can be seen
damages for libel
37
which defamation gets the following kind of damages?
- the plaintiff must prove that he suffered "special damages" before defendant is libel
damages for slander
38
what is an exception of damages for slander?
slander per se - false statement is actionable without proof of "special damages" or economic damages
39
what are the 4 types of slander per se?
statement that...(4)
1. person has loathsome, communicable disease
2. person has committed improprieties in their profession or trade (embezzlement)
3. person has committed or been imprisoned for a serious crime
4. UNMARRIED woman is unchaste
40
____ is an absolute defense of defmation?
truth
41
aside from truth, what are the only 2 situations in which the law excuses defamation?
privileged speech which contains absolute and qualified privilege
42
absolute speech has to do with the ____ of the contention in the proceeding
nature
43
absolute speech is only allowed in which 2 proceedings?
judicial and legislative proceedings
44
statements made by attorneys and judges in the courtroom during a trial are _______ privileged, as are statements made by government officials during _______debate.
absolutely, legislative
45
what makes up qualified privilage?
statement was made in good faith and to those with legitimate interest in the communication
46
An employer’s statements in written evaluations of employees, for instance, are protected by a _______ privilege
qualified
47
False and defamatory statements about public figures that are published in the media will not constitute defamation unless the statements are made with ______ _____.
actual malice
48
pubic figures have higher burden in proving ______
defamation
49
what is the invasion of the right to privacy tort?
right to solitude and freedom from prying public eyes
50
what are the 4 acts that qualify under invasion of the right to privacy?
intrusion, false light, public disclosure of private facts, appropriation of identity
51
state the act of invasion of the right to privacy;
- invading private spaces (wire tap, peeping tom, landlord camera)
intrustion
52
state the act of invasion of the right to privacy;
- publishing info that places someone in false light, makes us cause doubt on their belief
false light
53
state the act of invasion of the right to privacy;
- when a person publicly discloses private facts about an individual that an ordinary person would find objectionable or embarrassing
public disclosure of private facts
54
state the act of invasion of the right to privacy;
- using a person's name, picture, likeness, or other identifiable characteristic for commercial purposes without permission
ex) using someone's voice for an ad without consent
appropriation of identity
55
the following elements are a part of ______
a. misrepresentation of material facts or conditions with the knowledge that they're false or with reckless disregard for
the truth
b. intent to induce another to reply on the misrepresentation
c. justifiable reliance by the deceived party
d. damages suffered as a result of the reliance
e. a casual connection between the misrepresentation and the jury
fraudulent misrepresentation
56
A __________ leads another to believe in a condition that is different from the condition that actually exists.
misrepresentation
57
although persons sometimes make misrepresentations accidentally because they are unaware of the existing facts, the tort of fraudulent misrepresentation (fraud), involves ________ deceit for personal gain.
intentional
58
For fraud to occur, more than mere _______, or seller’s talk, must be involved. ______ exists only when a person represents as a fact something he or she knows is untrue
puffery, fraud
59
reliance on a statement of _______ may be fraud if the person making the statement has superior _______ of the subject matter
opinion, knowledge
60
what are the intentional torts against business interests? (business torts) 2
1. wrongful interference with a contractual relationship
2. wrongful interference with a business relationship
61
to sue against wrongful interference with a contractual relationship, you need a contract at the _____, it isn't about the breach. and the plaintiff must prove that the defendant actually ______ of the contract's existence and _______ the breach of the contractual relationship
heart, knew, induced
62
what are the 3 elements the plaintiff needs to prove when suing for wrongful interference with a contractual relationship?
1. there was a valid, enforceable contract
2. the 3rd party knew about the contract
3. 3rd party intentionally caused either of the 2 parties to break contract
63
unreasonably interfering with another’s business in their attempts to gain a greater share of the market makes up which intentional tort against business interests?
wrongful interference with a business relationship
64
individuals may not _______ unreasonably with another's business to gain a share of the marktet
interfere
65
what is predatory behavior of a business?
when a business is trying to "steal" customers from another business by targeting them specifically, different from attracting them
66
what 3 elements must the plaintiff prove under wrongful interference with a business relationship?
1. there was an established business relationship
2. tortfeaser used "predatory behavior" AND
3. tortfeaser intentionally caused the business relationship to end
67
what are the 2 defenses to wrongful inteference?
1. bona fide competitive behavior, aggressive marketing and advertising strategies
68
what are the intentional torts against property?
1. trespass to land
2. trespass to personal property
3. disparagement of property
69
wrong is committed against the individual who has legally recognized rights with regard to real or personal property is intentional torts against ______
property
70
what are the 2 property types?
real and personal property
71
what's real property?
land and things permanently attached to the land
72
what's personal property?
other property like boats, cars, jewelry, accounts
73
define the intentional tort against property:
- a person, without permission, enters onto, above, or below the surface of land that is owned by another; causes anything to enter onto the land; or remains on the land or permits anything to remain on it after being told to leave
- no harm to the land is necessary
- reasonable intrusion to airspace is reasonable (30k feet)
trespass to land
74
trespass to land focuses on the lack of..
permission
75
the owner must _________ or ___________ establish that the person is a trespasser
expressly, implicitly
76
implicitly or expressly?
- tell a guest to leave & they won't
- post "no trespassing" signs
expressly
77
implicitly or expressly?
- anyone on the property to commit an illefal act
implicitly
78
Any person who enters onto another’s property to commit an illegal act (such as a thief entering a lumberyard at night to steal lumber) is ______a trespasser, with or without posted signs.
impliedly
79
______ is liable for damages caused to the property & can't hold the _____ liable for injuries that the trespasser sustains except for "reasonable duty"
trespasser, owner
80
what is the rule that varies depending on the status of the parties; the owner would have a duty to warn in certain circumstances
reasonable duty
81
the owner cannot _________ injure the trespasser, but can remove them with ______ _______
willingly, reasonable force
82
what does the "attractive nuisance" doctrine state?
young kids don't assume the risk if they're attracted to some object on the premises, owner can be held liable
83
what are the 2 defenses to trespassing?
1. the trespasser goes in to help someone
2. The trespasser has a license
84
-wrongfully harming/interfering with the personal property owner's right to the exclusive possession and enjoyment of their property while involving intentional meddling is...
trespass to personal property
85
what is the defense to trespass to personal property?
if meddling was warranted
86
Any act that deprives an owner of personal property or of the use of that property without the owner’s permission and without just cause can constitute...
conversion
87
what are the 2 non-defenses of conversion?
1. good intention
2. you don't know that what you purchased was stolen
87
what are the 2 types of disparagement of property?
slander of quality & slander of title
88
disparagement of property is lies about the _____
property
89
state the slander based on the info:
- publication of false information about another's product, alleging it's not what the seller claims
- actual damages must be proved to have proximately resulted from statements about a competitor's products
slander of quality
90
When a publication falsely denies or casts doubt on another’s legal ownership of property, resulting in financial loss to the property’s owner, the tort of slander of _____ occurs
title
91
The tort of ________ occurs when someone suffers injury because of another’s failure to live up to a required duty of care.
negligence
92
The original taking of the personal property from the owner was a _____. Wrongfully retaining the property is _____.
trespass, conversion
93
if there's no ______, there's no negligence but the negligence must be ______
risk, forseeable
94
To succeed in a negligence action, the plaintiff must prove the following :
______: actor must owe a duty of care to the injured party
______: defendant must breach that duty
______: defendant's breach must cause plaintiff's injury
______: plaintiff must suffer a legally recognizable injury
duty, breach, causation, damages
95
what is the reasonable projective way that the defendant should've acted in is called...
reasonable person standard
96
what is the duty of landowners?
they must exercise reasonable care to protect business invitees (customers) from harm, including foreseeable risks and risks they should've known about
97
what happened in Martin V. Walmart?
martin slips and falls, walmart was liable because they shoud've protected him
98
what are obvious dangers?
no duty to warn, but can be liable for failure to maintain, exception is children
99
landowner has the duty to warn _____ of known risks
licensees
100
what is the duty of professionals?
they're held to a higher standard, sued to professional capacity, violation leads to malpractice
101
is it necessary to help a stranger?
not unless you put them in the situation
102
Another element necessary to a negligence action is ________. If a person breaches a duty of care and someone suffers injury, the person’s act must have caused the harm for it to constitute the tort of negligence.
causation
103
what are the 2 causation questions the court asks?
1. is there cause in fact?
2. is there proximate cause?
104
Causation in fact usually can be determined by use of the but for test: “but for” the wrongful act, the injury would ____have occurred.
not
105
which test seeks to determine whether there was a cause-and-effect relationship between the act and the injury suffered.
but for
106
__________ cause, or legal cause, exists when the connection between an act and an injury is strong enough to justify imposing liability.
proximate
107
Proximate cause asks whether the injuries sustained were ____________ or were too remotely connected to the incident to trigger liability.
forseeable
108
If there is causation in fact but a court decides that the defendant’s action is not the proximate cause of the plaintiff’s injury, the causation requirement (has/has not) been met
has not
109
Generally, if the victim or the consequences of a harm done were unforeseeable, there (is/isn't) proximate cause.
isn't
110
_______ is the test for proximate cause after Palsgraf (weigh station accident)
foreseeability
111
the purpose of tort law is to compensate for ______ _________ harms and injuries resulting from ______ acts
legally recognizable, wrongfull
112
what are the 2 special negligence statutes?
dram shop act, good samaritan stature
113
state the special negligence statue:
- if a bar owner/bartender serves an intoxicated person and that person goes on to injure someone, they can be held liable
- a party host can be liable for injuries caused by a guest who became intoxicated in their home
dram shop act
114
