Exam #3 - Torts Flashcards
(175 cards)
1
Q
A tort is a…
A
civil liability for injury.
2
Q
What are the four types of torts we discussed?
A
- injury to persons
- injury to property
- injury to reputation
- injury to business
3
Q
What are the three types of injury to persons?
A
- intentional torts
- negligence
- strict liability
4
Q
True or False: Assault requires physical contact.
A
FALSE - Assault in the tort definition involves NO physical contact.
5
Q
True or False: If you did not see an assault coming, then there is no tort.
A
TRUE!
6
Q
The attempt or threat, anticipation or fear of unconsented-to physical contact is better known as…
A
assault.
7
Q
The unwanted application of force to the physical person of another is better known as…
A
battery.
8
Q
True or False: Battery includes any touching at all.
A
TRUE!
9
Q
True or False: In order to constitute as battery, there must be demonstrable injury produced (bruising, broken bones, etc.).
A
FALSE!
10
Q
Sexual harassment is a type of…
A
battery.
11
Q
The forceable restraint of anyone, anywhere, against their will, in such a way as to prevent their escape without justification is better known as…
A
false imprisonment.
12
Q
True or False: Only police or security personnel can be held liable for false imprisonment.
A
FALSE - Anyone can be held liable for false imprisonment.
13
Q
What is the “eggshell skull plaintiff” rule? To what does it apply?
A
It applies to false imprisonment. If THIS plaintiff couldn’t escape, even if another person could, you are still liable.
14
Q
The ownership / lease of land that includes the “right to exclude others” is the…
A
trespass to land.
15
Q
Unlawful entry onto the land of another is…
A
trespass.
16
Q
True or False: Trespass is when you have NO permission.
A
TRUE!
17
Q
What duty do you have to trespassers?
A
To warn them of known, latent (hidden) dangers (ex. “Beware of Dog” sign)
18
Q
What is the difference between invitees and licensees?
A
invitees –> business guests who have permission to be on the property.
licensees –> social guests who have permission to be on the property.
Both are there WITH YOUR CONSENT!
19
Q
What duty do you have to invitees and licensees?
A
To reasonable care to protect your guests’ safety
20
Q
True or False: You are allowed, by law, to use deadly force in defense of your property.
A
FALSE!
21
Q
What is the “attractive nuisance” doctrine? To what does it relate?
A
It relates to property rules.
This states that, if you have something on your property that would be interesting to children, you have to make reasonable effort to keep them out.
22
Q
What is a “chattel?”
A
Personal property.
23
Q
Unconsented-to use or interference with the personal property of another is better known as…
A
trespass to chattel.
24
Q
You roommate borrowing your car without permission is an example of a…
A
trespass to chattel.
25
Permanent interference with the use/possession of another's personal property is better known as...
conversion.
26
If you let your roommate borrow your car while you're abroad and you find out when you're back that they've sold it, that's an example of...
conversion.
27
What is the "castle doctrine?"
If someone unlawfully enters your home, you have the legal right to use deadly force without the obligation to retreat.
28
Temporary possession of another's property with the duty of care is better known as...
bailment.
29
A pawn shop is an example of...
bailment.
30
The permissable use of your property that interferes with someone else's use and enjoyment of their property is better known as...
nuisance.
31
What is "coming to the nuisance?"
A defense of "the nuisance was here first."
32
True or False: The government is allowed to take your property if it's for public use.
TRUE! It's called "eminent domain."
33
A false statement that purports to be factual that injures the reputation of another...
defamation.
34
True or False: Statements of opinion can qualify as defamation.
FALSE!
35
Spoken (or oral) defamation is known as...
slander.
36
Written defamation is known as...
libel.
37
Defamation requires...
publication!
A third party must read or hear the statement.
38
Truth is an absolute defense. What does this actually mean?
If a statement is injurious to reputation, but it's true, there is no recovery.
39
What three things must you prove for defamation?
1. the statement was false
2. a 3rd party heard
3. the reputation was damaged
40
True or False: For defamation, there is a requirement that you knew the statement was false.
FALSE!
41
True or False: For defamation, you don't have to prove that you intended to damage the reputation.
TRUE!
42
In defamation, repetition is actionable. What does this mean?
Examples: repost, retweet
You don't have to be the original author to face liability.
43
What is "actual malice?" To what does it relate?
Defamation in the instance of a public figure.
Sarah Palin example.
If she sues the NYT, she must prove that:
- the defendant knew the statement was false, OR
- the defendant acted with reckless disregard whether it was true or false
44
In "defamation per se..."
damages are presumed.
45
What falls under "defamation per se?"
If you make claims about these things, and they're false, it automatically is assumed to be defamation.
- loathsome disease (fatal, no treatment, STDs, etc.)
- commission / conviction of a heinous crime
- mental illness
- other misconduct (affairs, ethical breaches)
46
What is "absolute privilege?" To what does it relate?
Relates to injury to reputation (defamation).
You have a complete defense to defamation (no lawsuit can succeed, even if the statement is false + damaging.)
Examples: gov't documents, statements in court
47
What is "conditional privilege?" To what does it relate?
Relates to injury to reputation (defamation).
You have a legal, moral, or social obligation to make a statement (performance review, for example).
It's associated with employment.
48
True or False: You can lose absolute privilege.
FALSE!
49
True or False: You can lose conditional privilege.
TRUE, if abused.
50
The public disclosure of private facts is better known as...
invasion of privacy.
51
In invasion of privacy...
what is "false light?"
making something appear as if it's true
52
In invasion of privacy...
what is "appropriation?"
using another's image or likeness without their consent
53
In invasion of privacy...
what is the "right of publicity?"
Elvis, Marilyn, Einstein
54
What is "trade libel?"
A business tort that occurs when someone makes false or disparaging statements about a business's products or services, causing financial harm.
Wendy's Finger in Chili Incident
55
What is "slander of title?"
A false and disparaging statement is published about someone's ownership or title to real property, causing financial harm to the owner.
56
Name an example of tortious interference with a contract.
If you have a covenant not to compete and a company hires you anyways, forcing a b/k.
57
What is the acronym for remembering the aspects of negligence?
DBCD
duty
breach
causation
damage
58
What duty do you have for negligence?
To act with reasonable care under the circumstances (foreseeability - how to prevent)
59
What is a breach of duty in regards to negligence?
The failure to act with reasonable care under the circumstances
60
True or False: In negligence, the duty that you have is dependent on the risks foreseeable to you at that time.
TRUE!
The foreseeability determines what the duty is.
61
What is the rule about responsibility as it pertains to negligence?
If you are negligent, you are responsible for all the damages caused whether they were foreseeable or not!
62
What is "proximate cause" in negligence?
"Proximate cause" refers to the direct and foreseeable consequences of a negligent act or omission. It essentially establishes a link between the defendant's conduct and the plaintiff's injury, ensuring that liability is reasonably assigned.
63
What is "but for" causation?
"But for" causation, also known as factual causation, is a legal test used to determine if an action was the actual cause of an injury or harm. It asks: would the harm have occurred "but for" (without) the defendant's actions or inactions? If the answer is no, then the defendant's conduct is considered the but-for cause.
64
The conduct which has the closest responsibility for the injury is also known as...
proximate cause.
65
What is the difference between contributory negligence and comparative negligence?
Both methods of measuring responsibility.
Contributory - At common law, an outright bar to recovery. If you are at all responsible, you cannot get any damages.
Comparative - Modern rule. You can get damages for the % that you're not responsible for.
66
What is the translation of "res ipsa loquitur?"
"The thing speaks for itself."
67
"Res ipsa loquitur" creates a...
a presumption of negligence.
68
"Res ipsa loquitur" makes the party's...
prima facie case.
69
What is another way of saying "gross negligence?"
egregious behavior
70
True or False: "Gross negligence" can be used to justify punitive damages.
TRUE!
71
What is "assumption of the risk" as a negligence defense?
- only applies in certain circumstances (skydiving, parasailing, etc.)
- have to have the freedom to reject them
- applies to ADULTS ONLY
72
True or False: In negligence, "assumption of the risk" applies to adults only.
TRUE!
73
True or False: A wavier accounts for both ordinary and gross negligence.
FALSE - A waiver is only effective as to ordinary negligence, NOT gross negligence.
74
What are the various defenses to torts?
- assumption of the risk
- privilege (defamation only)
- truth (defamation only)
- self-defense
- justification
- consent
75
True or False: You can consent to a violent tort.
FALSE - You cannot consent to a violent tort.
76
What are economic compensatory damages?
Those for which you could point to a receipt. (wages, medical expenses, out-of-pocket costs, losses, etc.)
77
What are non-economic compensatory damages?
You still get $$, but no receipt / not easily quantifiable. (pain + suffering, loss of consortium / companionship, loss of a limb)
78
For what kind of compensatory damages do many states have statutory caps?
Non-economic
79
For what kind of compensatory damages are there NO statutory caps?
Economic
80
In civil law, the plaintiff is...
private parties.
81
In criminal law, the plaintiff is...
the government.
82
In civil law, the burden of proof is...
mere preponderance.
83
In criminal law, the burden of proof is...
beyond a reasonable doubt.
84
In civil law, the verdict is determined with...
the majority of jury.
85
In criminal law, the verdict is determined with...
a unanimous jury.
86
In civil law, the remedy is...
money or injunctive relief.
87
In criminal law, the remedy is...
fines (for lesser offenses), imprisonment, or the death penalty (in some states).
88
What is "malum in se?"
Crimes wrong in and of themselves (inherently wrong)
89
What is "malum prohibitum?"
Crimes wrong because we say so (like speeding)
90
These crimes are punishable by death or imprisonment for a year or more.
felonies
91
When you are imprisoned for a year or more, that is...
prison.
92
When you are imprisoned for less than a year, that is...
jail.
93
These crimes are punishable by fines or imprisonment of less than one year.
misdemeanors
94
These crimes include traffic violations, parking violations, or other violations of codes; they are punishable by fines, some possible jail time, typically for repeat offenders.
petty offenses
95
What are the two main elements of a crime?
actis reus --> the act itself
mens rea --> the intent / state of mind
96
True or False: Thoughts are punishable, even when they are unattached to wrongful conduct.
FALSE! Thoughts are only punishable when they are attached to wrongful conduct.
97
Any death of a human being caused by another is known as...
homicide.
98
What is 1st degree murder?
Murder with intent or planning.
"malice aforethought" or "lying in wait"
99
What is 2nd degree murder?
Intentional killing, but WITHOUT malice aforethought.
100
What is manslaughter?
Deliberate killing, but often with "provocation" -- spontaneous, unplanned, or on-impulse.
101
What is involuntary manslaughter?
Killing that results from criminal negligence.
102
When it is left to the prosecutor to decide whether or not to bring something into the evidence, this is called...
prosecutorial discretion.
103
Under defenses to crimes, what must you prove to argue insanity?
That you were incapable of understanding the nature of the act.
104
Under defenses to crimes, what must you prove to argue entrapment?
You were enticed into committing a crime by law enforcement.
105
Under defenses to crimes, what must you do to argue immunity?
Plea the 5th Amendment
106
The taking of another person's property from them by either force or threat of force is otherwise known as...
robbery.
107
The taking of another person's property from them by either force or threat of force with a knife or gun is otherwise known as...
armed robbery.
108
What kind of a crime is robbery?
felony
109
What kind of crime is armed robbery?
felony
110
Theft that involves "breaking and entering" by force or without permission is otherwise known as...
burglary.
111
What kind of a crime is burglary?
either a felony or misdemeanor, depends on context
112
The taking of another's personal property without force or threat is otherwise known as...
larceny.
113
What kind of a crime is larceny?
either a felony or misdemeanor, depends on context
114
The deliberate burning of property (regardless of motivation) is otherwise known as...
arson.
115
What kind of a crime is arson?
felony
116
Defacing another person's property is otherwise known as...
vandalism.
117
What kind of a crime is vandalism?
either a felony or misdemeanor, depends on context
118
CONSTITUTIONAL LIMITS ON STATE POWER
The 4th Amendment protects you from...
unreasonable search + seizures.
119
CONSTITUTIONAL LIMITS ON STATE POWER
The 5th Amendment protects you from...
self-incrimination; double jeopardy.
120
CONSTITUTIONAL LIMITS ON STATE POWER
The 6th Amendment grants you...
the right to a speedy trial / trial by jury / right to counsel / confront witnesses.
121
CONSTITUTIONAL LIMITS ON STATE POWER
The 7th Amendment grants you...
the right to a trial by jury in civil cases where $20+ is at issue.
122
CONSTITUTIONAL LIMITS ON STATE POWER
The 8th Amendment protects you from...
cruel and unusual punishment, excessive bail.
123
What does a warrant require?
"probable cause"
124
What is the "plain sight" doctrine in relation to the 4th Amendment?
The 4th amendment protects against unreasonable search and seizures. If the item is in plain sight, it can be searched (e.g. if you get pulled over for speeding and have a gun in sight in the car).
125
What is the "exclusionary rule" in relation to the 4th Amendment?
You cannot use evidence obtained from a wrongful search or seizure in the evidence.
126
What do the Miranda Rights include?
- right to remain silent
- can and will be used against you in a court of law
- right to an attorney
- if you can't afford an attorney, one will be provided to you
127
What is the due process under criminal procedures?
- arrest
- booking
- arraignment / initial appearance before a judge or magistrate
- defendant hears the charges against them and gets the chance to enter a plea
- bail
- indictment
128
True or False: Everyone has the right to due process.
FALSE - Foreign and domestic terrorists lose the right to due process.
PATRIOT ACT!
129
An indictment happens when...
there is enough information to charge the defendant.
130
A "speedy trial" is a time limit imposed on the...
STATE.
The state can waive it.
131
True or False: In criminal cases, the defendant is presumed guilty until proven innocent.
FALSE - They are presumed innocent until proven guilty.
132
What is the state burden of proof for criminal cases?
"beyond a reasonable doubt"
133
True or False: The defendant is always forced to testify in a criminal case.
FALSE - The defendant CANNOT be forced to testify.
134
If a jury is not unanimous, it is called a _______________. The following happens...
"hung jury"
It is considered a mistrial, and they cannot reach a conviction.
135
True or False: In criminal appeals, the defendant gets automatic appeal if convicted.
TRUE!
136
True or False: In criminal appeals, the state can appeal if a defendant is acquitted.
FALSE - The state has NO RIGHT to appeal if the defendant is found not guilty.
137
Agency is a tripartite relationship. What are the parts?
principal
agent
3rd party
138
In the tripartite relationship of agency, who is the vicarious tort teasor?
the principal
139
In the tripartite relationship of agency, who is the primary tort teasor?
agent
140
A consensual fiduciary relationship whereby one person agrees to act for and on behalf of another is also known as...
agency!
141
In this definition of agency:
**A consensual fiduciary relationship whereby one person agrees to act for and on behalf of another**
"consensual" means...
voluntary, agreed to
142
If an agency relationship is not consensual, this violates...
the 13th Amendment
143
In this definition of agency:
**A consensual fiduciary relationship whereby one person agrees to act for and on behalf of another**
"fiduciary" means...
it is founded on TRUST, where the agent must act in the principal's best interest
144
Acronym for remembering the principal and agent duties (respectively)?
a CRISP CANOL
145
What are the duties of the principal?
CRISP
Cooperation
Reimbursement of Expenses
Indemnification (liability costs)
Safety
Payment (compensation)
146
What are the duties of the agent?
CANOL
Care + skill
Accounting (records)
Notice (will be "imputed" to principal)
Obedience
Loyalty
147
In the duties of the agent, "notice" involves the conveying of information from...
the 3rd party -> agent -> principal
148
If the 3rd party gives information to the agent, but it doesn't get back to the principal, who is responsible?
the principal
149
The power to bind the principal in contract is also known as...
authority.
150
What is EXPRESS authority?
written or oral
151
What is IMPLIED authority?
also called "inherent" or "ministerial"
not explicitly stated but you know they need to happen
152
If the agent is authorized...
the principal is BOUND!
153
In the case of unauthorized actions by the agent, what can the principal do?
- reject (argue breach of common law obedience)
- ratify
154
What is apparent authority?
Essentially an estoppel argument for authority.
- representation
- made by the agent
- looks to have been authorized by the principal
- did the principle "clothe the agent with the 'indica of authority'"?
- 3rd party relies on agent's apparent authority
- reliance is reasonable
- not really authority at all
155
If the principal chooses to ratify an unauthorized act, that ratification dates back to...
the date of the unauthorized act.
156
True or False: A principal can partially ratify an unauthorized act, to extract only that which benefits them.
FALSE - the principal must ratify EVERYTHING.
157
What is "respondeat superior," and why is it relevant to the discussion of agency?
"let the master answer"
In corporate, legal doctrine that holds an employer liable for the actions of an employee, even if the employer didn't specifically authorize the conduct.
158
If the agent commits a tort, that makes the agent the _____________________ and the principal the ______________________.
agent -> primary tort teasor
principal -> vicarious / secondary liable
159
True or False: As a general rule, the principal is liable for the agent's torts committed while on the master's business.
TRUE
160
A minor deviation is known as a...
detour.
161
A substantial deviation, usually something you chose to do, is known as a...
frolic.
162
True or False: In negligence, there is a presumption that the principal is liable for the agent's torts.
TRUE.
163
True or False: In intentional torts, there is a presumption that the principal is liable for the agent's intentional torts.
FALSE.
164
If a principal hires an agent without an adequate background check, the principal now has...
primary liability.
165
The difference between an agent and an independent contractor comes out of the...
Internal Revenue Service (IRS) code.
166
True or False: As a general rule, the principal is responsible for the torts of an agent, but not for that of an independent contractor.
TRUE!
167
A principal is NOT liable for an agent's crimes, except when...
- fraud
- statutory crimes (zones, ordinances, health + safety, etc.)
168
True or False: If an act is authorized, the principal is liable.
TRUE!
169
In this type of agency disclosure, the 3rd party thinks the agent is the principal themselves.
undisclosed
170
In this type of agency disclosure, the 3rd party knows that there is a principal, but they don't know who he/she is.
partially disclosed
171
In this type of agency disclosure, the 3rd party knows the principal and who he/she is.
fully disclosed
172
In this type of agency disclosure, the agent will be held primarily liable on the contract.
undisclosed
173
In this type of agency disclosure, the agent can usually be held liable as a co-party.
partially disclosed
174
In this type of agency disclosure, the agent has no liability to the 3rd party.
fully disclosed
175
What can terminate agency?
- expiration of stated time period
- "mission accomplished"
- event ("until I return")
- mutual agreement
- either party's decision
- notice of termination
- death
- impossibility of performance
- war
- filing for bankruptcy
