Flashcards in MBE - Torts Deck (83)
What are the 7 intentional torts?
(1) Battery, (2) Assault, (3) False Imprisonment, (4) IIED, (5) Trespass to Land, (6) Trespass to Chattels, and (7) Conversion
What are the elements of battery?
(1) D commits harmful or offensive contact, and
(2) Contact must be with Ps person.
What qualifies as "contact" for battery?
"Contact" includes anything P is holding, touching or connected to.
Ex - purses, glasses, even horse if rider is on it.
What is the well-settled quartet for indirect causes of harm?
In following situations, D is held liable and P wins:
(1) Intervening Medical Negligence
(2) Intervening Negligent Rescue
(3) Intervening Protection and Reaction Forces
(4) Subsequent Disease or Accident.
What is the key principle regarding damages under a negligence claim?
Egg-Shell Skull Principle.
What is the egg-shell skull principle?
Principle that provides that once a P proves other elements, that P recovers all damages suffered, even if they are surprisingly great in scope.
D takes P as you find them.
What are the most common equitable remedies sought by Ps in tort claims?
(1) Preliminary injunction, and
(2) Permanent injunction.
When is the most appropriate time to discuss equitable remedies/injunctions?
After you have discussed liability for cause of action.
What is the function of a preliminary injunction?
Awarded early in the case, to freeze facts, maintain status quo - pending the result of trial on merits.
What is the 4-part test for injunctions?
(1) P has no adequate remedy at law
(2) P has protectable right involved in particular lawsuit
(3) Injunction must be enforceable, and
(4) Balance of hardships must tip in Ps favor.
What are the three special defenses injunctions?
(1) Unclean Hands
(3) First Amendment
What is the defense of laches and what does it apply to?
Laches = prejudicial delay.
An analogous argument to statute of limitations, argument against an injunction.
What is the bottom line regarding preliminary injunctions?
Preliminary injunctions have to show (1) a likelihood of success on the merits AND (2) irreparable harm.
What is required to prove proximate cause?
Victim is foreseeable if liability would be "fair."
Look for direct cause OR indirect cause
What are the alternatives scenarios to the BUT FOR test for factual causation?
(1) "Merged Cause" = Substantial Factor Test
(2) Unascertainable Cause = Shift Burden of Proof
What is required for factual causation?
P obligated to established linkage or connection between breach and th injury.
BUT FOR TEST.
Res Ipsa Loquitor
used by Ps who lack specific evidence about Ds wrongful conduct
What are the scenarios where P is allowed to recover for negligent infliction of emotional distress?
(1) Near Miss
(3) Relationship cases
Is there a special standard regarding duty to act affirmatively?
Yes, namely there are NO DUTIES to act affirmatively.
You do not have to rescue a stranger in peril.
TWO EXCEPTIONS: (1) preexisting relationship, and (2) D caused peril or put P in peril.
What must P show to get a special standard established by statute?
Court will borrow statute if P is in class of persons and class of risks intended to be protected by statute.
What duty of care does a possessor of land owe invitees?
Possessor of property must proetct from all reasonably knowable traps on the land.
Invitees = enter with permission and confer economic benefit on possessor of property (commonly customers).
What duty of care is owed to a licensee by a possessor of land?
Possessor of property owes licensee a duty to protect from conditions that:
(1) concealed condition with non-obvious danger, and
(2) danger is one possessor knew about in advance.
Key -- possessor of property who licensees a duty to protect from all known traps on property.
Licensees = enter with permission, no economic benefit (commonly social guests).
What standard of care is owed by a possessor of land to a DISCOVERED trespasser?
Duty only to protect from a condition that meets 4-part test:
(1) condition must be artificial or man-made
(2) Condition has to be highly dangerous
(3) Condition has to be concealed
(4) Danger must be known by possessor of property in advance
Key -- possessor of piece of property owes a duty to a discovered trespasser to protect only from man-made death traps.
What standard of care is owed by a possessor of land to an UNDISCOVERED trespasser?
No duty owed, zero.
What are the 4 types of entrants involved in potential premise liability cases?
(1) Undiscovered Trespasser
(2) Discovered Trespasser
(4) Invitees(1) Undiscovered Trespasser
(2) Discovered Trespasser
What is the special standard of care for professionals (Negligence - duty)?
Professional is required to exercise skill and knowledge normally possessed by other members in good standing in similar circumstances.
What are the alternative standards of care to RPP?
(1) Special Standard for Children -- child of similar age, experience and intelligence
(2) Special Standard for Professionals
(3) Special Standard for Premises Liability Cases
(4) Special Statutory Standards
(5) Special Standard for Cases Involving Duty to Act Affirmatively
(6) Special Standard for Negligent Infliction of Emotional Distress
What are the exceptions for RPP under the circumstances standard?
(1) Superior skill or knowledge
(2) Physical characteristics
What is the standard for reasonably prudent person under the circumstances?
General assumption that there is a duty of care.