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Torts > Final Exam Prep > Flashcards

Final Exam Prep Flashcards

1
Q

Intent

A

(1) Knowledge that actions are substantially certain to make contact, OR
(2) Purpose to bring about results

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2
Q

Transferred Intent

A

Intent to commit a tort upon A is pieced together with resulting injury to B
(applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels)

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3
Q

Battery

A

Actor is subject to liability if
(1) He acts intending to cause a harmful or offensive contact, AND
(2) He causes a harmful or offensive contact (Plaintiff only has to show that defendant made contact)
Test is what would be offensive to the ordinary person not unduly sensitive to a personal dignity

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4
Q

Assault

A

An actor is subject to liability if
(1) He intends to cause imminent apprehension of a harmful or offensive contact, AND
(2) He causes imminent apprehension of a harmful or offensive contact

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5
Q

False Imprisonment

A

Direct restraint of one person of the physical liberty of another without adequate legal justification
(1) Acts intending to unlawfully or unjustifiably confine or restrain someone within a bounded area
(2) Causes someone to be unlawfully or unjustifiably confined or restrained within a bounded area, AND
(3) Plaintiff is conscious of the confinement (minority jurisdictions require harmed by it)
There must be no reasonable means of escape and confinement may occur through barriers, force/threats, or duress (not mere moral persuasion)

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6
Q

Intentional Infliction of Emotional Distress

A

When one intentionally subjects another to the mental suffering incident to serious threats to physical well-being
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for emotional distress, AND
(2) Bodily harm to the other results from it
*All jurisdictions require that the plaintiff prove severe is not just mere emotional distress - there has to be actual damage

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7
Q

Bystander Rule

A

When defendant’s conduct is directed at a third person and not a plaintiff, plaintiff cannot recover for the emotional distress unless it can be shown that the defendant intended to cause harm

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8
Q

Limitations on the Bystander Rule

A

Conduct must take place in the presence of the plaintiff, and conduct must be directed at a family member of the bystander’s immediate family

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9
Q

Trespass to Land

A

Every unauthorized, and therefore unlawful, entry into the land of another is a trespass. An actor is subject to liability when
(1) He acts intending to enter or remain on the land of another without permission or consent to do so, AND
(2) He in fact enters or remains on the land of another without such permission

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10
Q

Bounds of Tresspass

A

Land in its legal significance has an indefinite extent, upwards as well as downwards; land is not limited to soil/surface and plaintiff’s exclusive right to possess land extends above or below to a limited degree (includes physical objects and people entering)

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11
Q

Trespass to Chattels

A

One who uses or intentionally intermeddles with a chattel which is in possession of another is liable for trespass if (she causes damage)
(1) Chattel is impaired as to its condition, quality, or value
(2) Possessor is deprived of use of the chattel for a substantial time
(3) Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest, OR
(4) Dispossesses the other of the chattel

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12
Q

Conversion

A

Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. An actor is subject to liability for conversion if:
(1) She acts intending to exercise dominion and control over a chattel
(2) She exercises dominion and control; AND
(3) The interference is serious enough to require defendant to pay full value
*If someone buys something from a converter, they are also liable for conversion

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13
Q

Consent

A

Willingness in fact for the conduct to occur
(1) Can be expressed (“go ahead”) or implied (through conduct)
(2) If plaintiff’s behavior was such as to indicate consent on her part, defendant was justified in his act, whatever her unexpressed feelings may have been - defendant could only be guided by overt acts and manifestations of plaintiff’s feelings
*Consent by fraud or deceit is not valid

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14
Q

Self-Defense

A

(Apparent Necessity) Privilege exists when the defendant reasonably believes that force is necessary to protect herself from an imminent threat; AND
(Proportionality) privilege is limited to use of force which is, or reasonably appears to be, necessary to protect against the threatened injury

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15
Q

Basic Rules for Self-Defense

A

Revenge is not self-defense, nor is “he deserved it”; words alone are not an imminent threat, nor is threat of future harm; no duty to retreat before using deadly force, but a minority of jurisdictions impose a duty to retreat before using deadly force

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16
Q

Defense of Others

A

Allowed to the same extent you can defend yourself
(you must reasonably believe the victim is privileged to use force (stand in their shoes))

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17
Q

Defense of Property

A

May use non-deadly force but
(1) No force intended to or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with chattel
Unless intrusion threatens death or serious bodily harm to occupiers or users of premises

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18
Q

Recovery of Property

A

A property owner may use reasonable force to recover chattel
(1) Courts expect defendant will make a demand first
(2) Requires fresh pursuit
(3) No room for mistakes, even reasonable ones
(4) Not reasonable to use deadly force or force calculated to inflict serious bodily harm

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19
Q

Shopkeeper’s Privilege

A

(defense to false imprisonment): privilege in favor of a merchant to detain for reasonable investigation a person whom he reasonably believes to have taken a chattel unlawfully

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20
Q

Necessity (defense to trespass/trespass to chattels/conversion)

A

A person will be excused from trespass when they act to avoid a greater harm

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21
Q

Public Necessity

A

Avoid harm to public or avert a public disaster; not liable to compensate

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22
Q

Private Necessity

A

Relieved of tort to trespass, but must compensate plaintiff for damage done

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23
Q

Elements of Negligence

A

(1) Duty to use reasonable care: requires actor to conform to certain standard of conduct for protection of others against reasonable risks of harm
(2) Breach of Duty: failure to conform to required standard
(3) Causation: Reasonably close causal connection between conduct and relating injury
(cause in fact and proximate cause)
(4) Damages: actual loss or damage results to interests of another

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24
Q

Negligence Formula

A

In all cases of this kind in the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of injury therefrom, the precautions necessary to prevent such injury, and the relations such precautions bear to the beneficial use of the premises
Cost is a factor
Mathematical: When B<PL - negligence exists

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25
Q

Standard of Care of the Ordinary Reasonably Prudent Person

A

What a RPP should known and act:
Community’s common sense, common experience, and common understanding; common practices and customs if reasonable; Emergency - how would a reasonable person act in an emergency context

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26
Q

Standard of Care for Children/Minors

A

It is the duty of the child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances - unless it is an inherently dangerous activity
When the child engages in an activity that is inherently dangerous, child should be held to an adult standard of care

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27
Q

Mental Health Standard

A

Held to the same standard as everyone else despite circumstances or condition of their illness

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28
Q

Physical Health Standard

A

Considered in the context of a RPP with the same physical limitations

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29
Q

Professional Standard of Care

A

One who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care
Requires: knowledge, skill, good judgement, use of due care

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30
Q

Medical Malpractice requires informed consent

A

Full disclosure of all material risks incident to treatment must be made (things that would likely affect patient’s decision)

31
Q

Exceptions to informed consent

A

Patient already knows of risks, disclosure would be detrimental to patient, or it’s an emergency and the patient is in no condition to decide

32
Q

Doctors must disclose economic or research interests when

A

they may affect medical judgement

33
Q

Standard Imposed by Statute

A

May be used as a shortcut to establish a person’s duty to negligence

34
Q

Excused Statutory Violations

A

Incapacity (child), lack of actual or constructive knowledge, inability to comply after reasonable diligence, emergency/compliance would involve greater risk of harm

35
Q

Negligence Per Se

A

Plaintiff belongs to the class that the statute was intending to protect; AND
Plaintiff’s injury is of a type that the statute was designed to prevent

36
Q

Proof of Negligence

A

Burden of proof is on the plaintiff, standard is preponderance of evidence (more likely than not)

37
Q

Types of Evidence

A

Direct evidence (eyewitnesses), circumstantial evidence (allows us to infer defendant was negligent)

38
Q

Res Ipsa Loquitur

A

Allows plaintiff to avoid a directed verdict and get to the jury in a case where plaintiff has no direct or circumstantial evidence of negligence other than the mere accident itself
Judge decides if res ipsa applies and its procedural effect, ordinary care is that res ipsa creates an inference of negligence, depending on procedural effect, jury must decide where defendant was negligent

39
Q

“But for” Test

A

Negligence is a cause in fact of the harm to another if the harm would not have occurred but for that negligence
Defendant’s negligence is not a cause in fact if the harm would have occurred regardless of the negligence

40
Q

Single Indivisible Rule

A

Where separate acts of negligence combine to produce directly a single indivisible injury each tortfeasor is responsible for the entire result, even though his act alone might have caused it

41
Q

Substantial Factor Test

A

Defendant’s negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm (material or substantial element)
Use this when there are two or more causes and “but for” test does not yield satisfactory results - when either of two or more acts would alone sufficed to cause the injury

42
Q

Summers Rule

A

Where two or more defendants commit substantially similar negligent acts, only one of which caused the plaintiff’s injury, burden of proof on the issue of causation shifts to the defendants

43
Q

Palsgraf Rule

A

Defendant is the proximate cause of the harm if at the time they acted, they could anticipate or foresee the type of harm that injured the plaintiff
(Majority) Defendants owe a duty to those whose injury is a type that made the conduct unreasonable in the first type - it is foreseeable that the actions or inactions could harm the defendant - was the plaintiff in the zone of danger?
(Minority): duty is owed to the whole world and proximate cause is only a limiting factor

44
Q

Intervening Cause

A

If the subsequent act is a normal or foreseeable consequence of the situation created by the defendant’s negligence (within the scope of original risk created), the defendant is still liable for harm. Subsequent intervening act does not break the chain of causation of defendant’s original negligent act

45
Q

Superseding Cause

A

If a subsequent act or event is NOT normal or foreseeable, it is superseding and breaks the chain of causation. Defendant is not liable for increased harm. Normally, intentional wrongdoing by a third party or unexpected weather event (not foreseeable in the context)

46
Q

Rescue Doctrine

A

Danger invites rescue - it is foreseeable that someone will try to rescue the person that the defendant places in danger (even if it is himself). An injured rescuer can sue the party which caused the danger requiring the rescue in the first place

47
Q

Joint and Several Liability

A

Each of the tortfeasors is liable jointly and each is also individually liable for the full amount
*For our purposes, assume pure and several liability unless told otherwise

48
Q

Joint and Several Liability imposed under 3 scenarios

A

(1) Acting in concert: there is an express or implied agreement, mere knowledge is not enough, and mere presence at the scene is not enough
(2) Vicarious liability: common duty scenarios (employer and negligent employee are both on the hook for the employee’s negligence)
(3) Indivisible Injury: independent actors combine to cause a single, indivisible injury

49
Q

No Duty to Aid and Rescue

A

In general, there is no duty to come to the aid of someone, to prevent third parties from harming others, or to prevent individuals from harming themselves

50
Q

Exceptions to the No-Duty Rule

A

(1) Special Relationship to the victim: family members, employer/employee, shopkeeper/business patron, carrier/passenger, hotel/guest, school/student
(2) “Take Charge” or “Control” Rule: parent/child, employer/employee, therapist/patient
(3) Innocent Creation of the Risk: hit and run
(4) Voluntary Assumption of Duty: make situation worse
(5) Statute: ex. landlords instructed to provide locks

51
Q

No Duty Owed to Trespassers

A

No duty is owed until it is discovered (then there is a general duty to avoid harm. If there are known dangers or frequent/anticipated trespassers, you treat the duty to person like a licensee)

52
Q

Licensees

A

A person who enters the premises with permission/consent “for their own purposes” (social guest). You have a duty to warn them of any KNOWN dangers which are hidden or unknown to guest

53
Q

Invitees

A

A person who enters the premises in furtherance of “owner’s business.” You have to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. Only invitee status as to scope of the invitation (time and place considerations)

54
Q

Attractive Nuisance

A

Possessors of land are liable for harm to trespassing children where children are likely to trespass because of an artificial condition on the land that involves a risk of death or serious bodily injury. The child does not appreciate the danger, utility of condition/burden of eliminating the danger is slight compared to the risk involved, and possessor fails to exercise reasonable care to protect children

55
Q

Damages

A

Nominal, compensatory, and punitive (only for egregious intentional torts)
Physical injury or property damage required for negligence

56
Q

Contributory Negligence

A

All or nothing rule: plaintiff is barred completely if the plaintiff is negligent in any amount

57
Q

Pure Comparative Negligence

A

Plaintiff’s recovery is reduced by the % of fault attributable to them

58
Q

“Not greater than” Modified Comparative Negligence

A

Plaintiff’s recovery is reduced by the % of fault attributable to them as long as their fault is not greater than the fault of the defendant

59
Q

“Not as great as” Modified Comparative Negligence

A

Plaintiff’s recovery is reduced by the % fault attributable to them as long as the plaintiff’s fault is not as great as the fault of the defendant

60
Q

Slight/Gross Comparative Negligence

A

Plaintiff’s recovery is reduced by the % of fault attributable to them as long as plaintiff’s fault is “slight” compared to that of the defendant

61
Q

Express Assumption of the Risk

A

Express agreements/contracts to assume a risk, even a negligently created risk, are generally enforced by the courts - complete bar

62
Q

Exceptions to Express Assumption of Risk

A

Plaintiff cannot consent to: accepting the risk of an intentional injury, the risk of an injury where there is grossly unequal bargaining power (must be freely given), the risk of injury for a transaction that affects public interest

63
Q

Implied Assumption of Risk

A

Plaintiff must: actually know about the risk, appreciate the magnitude of the risk, and voluntarily encounter the risk

64
Q

Statute of Limitations

A

Assigns a certain time after which rights cannot be enforced by a legal action
Policies: promote stability and prevent stale claims

65
Q

Accrual of a Cause of Action

A

At time of actual injury, but per the discovery doctrine, the time period will not start until the plaintiff discovers or in the exercise of reasonable care and diligence for their own health and welfare should have discovered the resulting injury

66
Q

Vicarious Liability/Respondeat Superior

A

Employer can be held vicariously liable for the torts of its employee if the employee injures another during the course of their employment
*business should absorb the costs its undertakings impose on others

67
Q

Going and Coming Commute Exception to Respondeat Superior

A

An employee driving to and from work is not acting within the scope of their employment - not applicable when an employee endangers others with a risk arising from or related to work (ex. drinking on the job)

68
Q

Scope of Employment

A

An employee is acting within the scope of their employment when they are performing services for which they have been employed, or when they are doing anything reasonably incidental to their employment

69
Q

Frolic

A

Pursuit of employee’s personal business as a substantial deviation from or an abandonment of employment

70
Q

Detour

A

A deviation that is sufficiently related to the employment to fall within the scope of employment

71
Q

Intentional Torts and Respondeat Superior

A

Employer is liable where employee commits an intentional tort in order to serve employer’s purposes

72
Q

Independent Contractor

A

One who is engaged to perform a certain service for another according to their own methods, manner, free from control and direction of the employer in all matters connected with the performance of the service

73
Q

Factors to consider with Independent Contractors/Respondeat Superior

A

Extent of control over details of work, whether the actor is engaged in a distinct occupation or business, whether the type of work is customarily performed under employer’s supervision, who supplies tools, equipment, and place of work, length of employment, how is the party paid, and parties’ belief as to nature of the job

Torts (1 decks)

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