Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Torts > Key things > Flashcards

Key things Flashcards

1
Q

IIED

A

A defendant is liable for intentional infliction of emotional distress (IIED) if he intentionally or recklessly acts with extreme and outrageous conduct that causes the plaintiff severe emotional distress
Extreme and outrageous - conduct that exceeds the possible limits of human decency
Damages - must prove severe emotional distress beyond what a reasonable person should endure

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Private nuisance

A

Substantially and unreasonably interferes with another’s use and enjoyment of land

Offensive, inconvenient, etc to normal, sensible person in community

Special sensitivities - can only recover if average person would be offended

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Intentional torts

A

Act
Intent
-actor acts with purpose of causing consequence or
- actor knows that consequence is substantially certain to follow
Causation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Battery

A

Defendant causes harmful or offensive contact with person of another and
acts with intent to cause contact or apprehension of contact
Need to intend the contact, not the defense
Damages - no proof of actual harm required, nominal allowed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Assault

A

Defendant engages in act that causes reasonable apprehension of an imminent harmful or offensive bodily contact and defendant intends to cause apprehension of such contact or to cause contact itself
IMMINENT
Damages - no proof of actual damages required, nominal ok

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

IIED toward 3rd party

A

If defendant directs extreme and outrageous conduct toward one party and ended up causing severe emotional distress to another (in certain circumstances)
- immediate family member - contemporaneously perceived
- bystander - present at time of conduct, perceives, suffers physical injury
If defendant’s purpose was to cause IIED to 3rd person, the victim need not have contemporaneously perceived

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

False imprisonment

A

-intends to confine or restrain another within fixed boundaries
- actions directly or indirectly result in confinement and
- plaintiff is conscious of confinement or is harmed by it
Damages - nominal and actual

threat using moral pressure doesn’t count as confinement, has to be something like a locked door

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Defenses

A

Most jurisdictions state that you need not retreat before using reasonable, proportionate force
Initial aggressor - not allowed to claim self-defense unless other party has responded to nondeadly force with deadly force
Defense of others - reasonable force that other would be entitled to use
Defense of property - reasonable force, no deadly force, can recapture chattels wrongfully taken

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Trespass to chattels

A

Intentional interference with plaintiff’s right to possess personal property by
- dispossessing plaintiff of chattel
- using or intermeddling with plaintiff’s chattel
- damaging chattel
Requires plaintiff to show actual harm or deprivation of the use of chattel for substantial time
Damages - actual damages, nominal damages, cost of repair BUT use & intermeddling - can only recover actual damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Conversion

A

Intentionally committing an act depriving the plaintiff of possession of chattel or interfering with plaintiff’s chattel in a manner so serious to deprive plaintiff entirely of its use
Damages - full value at time of conversion
Person who initially has permission commits conversion when intentionally uses chattel in a manner that exceeds scope of permission and seriously violates plaintiff’s right to control the chattel

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Trespass to land

A

Defendant intentionally causes a physical invasion of someone’s land
Need only intend to enter land
Mistake of fact not a defense
Damages - no proof of actual required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Necessity as defense to trespass

A

Private necessity - must pay for damage

Public necessity - need not pay for damage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Nuisance

A

Private - activity that substantially and unreasonably interferes with another’s use and enjoyment of their land
Public - unreasonable interference with right common to public as whole, private individual needs to show they were harmed in a special or unique way

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Negligence elements

A

Duty, breach, causation, damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Duty

A

Legal obligation to act in a certain way
Majority - duty owed to plaintiff if part of group who might be foreseeably harmed by conduct
Intoxication - held to same standard as sober people unless intoxication was involuntary

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Affirmative duty to act

A

In general, no duty to help others
Unless someone assumes duty, then can’t cause more harm
Placing another in danger

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Standards of care for common carries/innkeepers

A

Traditional - utmost care, still used in majority

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Possessors of land

A

Traditional - standard of care depends on trespasser, licensee, invitee

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Trespassers

A

Lowest duty of care
Duty to refrain from willful, wanton, intentional, or reckless misconduct
Undiscovered trespassers - no duty
Discovered/anticipated trespassers - must warn to protect from hidden dangers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Attractive nuisance

A

Injuries to children
Artificial condition where owner has reason to know children are likely to trespass, landowner knows that artificial condition poses an unreasonable risk, children don’t discover/can’t appreciate danger, utility of maintaining condition is slight compared to risk of injury, land possessor fails to exercise reasonable care

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Licensees

A

Enter land with express or implied consent
Duty to either make property reasonably safe or warn licensees of concealed dangers
No duty to inspect for dangers
Must exercise reasonable care

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Invitees

A

Someone who comes onto land for material or economic purpose
Duty to use reasonable care to inspect property, discover unreasonably dangerous conditions, take reasonable steps to protect invitee from them

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Landlord/tenant

A

Landlord must maintain safe common areas
Warn of hidden dangers
Repair hazardous conditions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Breach

A

Violation of standard of care
Traditional - reasonable person standard
Newer approach - cost benefit analysis

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Breach - professionals

A

Lawyers, doctors, accountants, electricians

Custom is admissible and dispositive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Negligence per se

A

When law establishes standard of care, violation of law constitutes a breach

  • Criminal law or regulatory statute imposes specific duty
  • Defendant violates statute
  • Plaintiff is part of class of people intended to be protected by statute
  • Accident is type it was meant to prevent
  • Harm caused by violation
27
Q

Res ipsa loquitur

A

Circumstantial evidence of negligence sufficient evidence of negligence (enough for jury to infer negligence)

  • Accident of a kind that does not ordinarily happen in absence of negligence
  • Caused by agent or instrumentality within exclusive control of defendant
  • Not due to plaintiff’s action
28
Q

Causation

A

Cause in fact and proximate (legal) cause

29
Q

Cause in fact

A

But for test - if one tortfeasor involved
Substantial factor test - multiple tortfeasors, all came together to cause injury
Alternative causation - plaintiff’s harm caused by only one of a few defendants, can’t tell which one, burden shifts to defendant to show they’re not liable

30
Q

Proximate cause

A

Person liable for risks that made conduct negligent

Foreseeable victim

31
Q

Damages for negligence

A

Full extent of injuries
Compensatory - economic, injury to body/property
Punitive - punish to deter future conduct
CANNOT recover for only economic loss or property damage if there is no bodily injury

32
Q

NIED

A

Can recover for pure emotional harm absent physical injury in some cases

  • Zone of danger, caused emotional distress
  • Bystander - closely related to injured person, present at scene of injury, personally observed it
  • Special relationship - negligent medical info, negligent handling of corpse
33
Q

Vicarious liability

A

One person held liable for another person’s negligence

Principal/agent relationship

34
Q

Joint and several liability

A

Responsible party can still be held liable for negligence but another person also liable
Either can be on the hook for the entire cost
Two or more tortfeasors, tortfeasors acting in concert, alternative liability, res ipsa

35
Q

Respondeat superior

A

Employer held vicariously liable for negligence of employee
Intentional torts - outside scope of employment
Detour, frolic
Independent contractors - employers generally not liable for IC torts, except nondelegable duties

36
Q

Dram shop liability

A

Liable for injuries caused when person drinks too much

Direct liability for person’s own negligence in serving the person

37
Q

Contributory negligence

A

Old rule

If plaintiff negligent in any way, barred recovery

38
Q

Comparative fault

A

Plaintiff’s negligence does not completely bar recovery, just limits plaintiff’s ability to recover
Pure comp neg- default rule, judgment decreased by plaintiff’s percent fault
Pure several - plaintiff can only recover amount from one defendant
Modified comp neg - when plaintiff’s own negligence exceeds 50%, can’t recover

39
Q

Strict liability

A

Abnormally dangerous activities

Animals

40
Q

Abnormally dangerous

A

Held liable for personal injuries and property damage caused by the activity that caused risk related to abnormally dangerous activity

41
Q

Animals

A

Wild animals - strictly liable for harm arising from animal’s dangerous propensities
Trespassers - not strictly liable
Domestic animals - if owner knows or has reason to know that animal has dangerous propensities, can be strictly liable
Trespassing animals - owner of animal strictly liable for reasonably foreseeable damage caused

42
Q

Products liability

A

Negligence or strict products liability

43
Q

Strict products liability

A

Manufacturing defects, design defects, failure to warn
Elements of claim
1. product was defective
2. defect existed when product left defendant’s control
3. defect caused plaintiff’s injury when product was used in a foreseeable way
service providers - not strictly liable, like dentist implanting fake tooth
Damages - personal injury or property, usually can’t for purely economic

44
Q

Breach of warranty

A

Implied - merchantability, fitness for a particular purpose

express - affirmation of fact or promise by seller that is party of basis of bargain

45
Q

Defamation

A

Must prove defendant
1. made defamatory statement (needs to be false)
2. that is of or concerning the plaintiff
3. statement was published/conveyed to 3rd party who understood its defamatory nature VERY IMPORTANT and
4. damage to reputation results
Libel - written, printed, recorded, general damages without proof of measurable harm
Slander - written, must prove special damages showing economic loss

46
Q

Defamation + constitution

A

Public official/figure
Harder to prove defamation, plaintiff must prove that person who made the statement either knew it was false or acted with reckless disregard for the truth, actual malice
Matter of public concern - plaintiff must prove that statement is false and person who made the statement was negligent with respect to its falsehood

47
Q

Privacy torts

A

Applies to individuals, not corporations

Terminates upon death of plaintiff

48
Q

Intrusion upon seclusion

A

defendant intrudes upon the plaintiff’s private affairs, in a manner that is objectionable to a reasonable person

49
Q

False light

A

plaintiff must prove that defendant published facts about plaintiff or attributed views or actions to plaintiff that place him in a false light and are highly offensive to a reasonable person

50
Q

Appropriation of right to publicity

A 
Appropriates another’s name or likeness
For the defendant’s advantage
Without consent; and 
Causes injury 
Must be exploitative but it need not be commercial
51
Q

Public disclosure of private facts

A

Defendant publicizes a matter concerning the private life of another and the matter is highly offensive to reasonable person and is not of legitimate concern to the public

52
Q

Intentional misrepresentation

A
  1. false representation about a material fact
  2. knowledge
  3. intent
  4. causation
  5. justifiable reliance
  6. damages - must prove actual, economic, pecuniary loss
    - deceptive or misleading statements
    - concealing material fact
    - generally no duty to disclose material facts but may have a duty if there’s a fiduciary relationship, other party is likely to be misled, defendant aware that other party is mistaken
53
Q

Negligent misrepresentation

A

Defendant provided false info to plaintiff
as a result of defendant’s negligence in preparing info
during course of business transaction or profession
causing unjustifiable reliance and
plaintiff is either in a contractual relationship with defendant or plaintiff is 3rd party defendant knows is a member of a group for whose benefit the info was supplied

54
Q

Intentional interference with business relations

A

Valid contract existed between plaintiff and 3rd party
defendant knew of contractual relationship
defendant intentionally interfered with contract, resulting in breach
breach caused damages to plaintiff (must show pecuniary loss)

55
Q

Trade libel

Slander of title

A

need to show damage to business’s reputation

56
Q

Firefighter’s rule

A

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job.

57
Q

Good samaritan statute

A

Protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

58
Q

Disabilities

A

A person with a mental disability is presumed to have average mental abilities and the same knowledge as an average member of the community.

Physical disability - That of a reasonably careful person with the same disability.

59
Q

Consent - battery

A

consent is not valid and will not serve as a defense if
the plaintiff consented because of a substantial mistake concerning the nature of the invasion of the plaintiff’s interests or the extent of the expected harm
and
defendant knew about the mistake or caused it by affirmative misrep or fraud

60
Q

Strict products liability, damages

A

defect must cause plaintiff physical harm and not just economic harm

61
Q

Duty to act

A

An actor has duty to use reasonable care to protect a victim if the actor knows or reasonably should know that their conduct exposed the victim to an unreasonable risk of harm from 3rd parties
can be directly or vicariously liable

ex: overserving person alcohol on plane, they become belligerent, duty to protect person nearby

62
Q

Attorney fees

A

The measure of damages in a personal injury action includes all actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium

NEVER ATTORNEY FEES

63
Q

Private nuisance, special sensitivity

A

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed.

64
Q

Strict liability, contributory negligence

A

In a traditional contributory-negligence jurisdiction, the plaintiff’s contributory negligence is not a defense to strict liability (i.e., it does not bar recovery).

Torts (2 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions