Flashcards in Pre-info Deck (48):
If an answer choice uses the word "unless", why should you be careful of that?
Because the only way that it can be right is if the thing that follows is the only possible answer
Must there be actual damages for an intentional tort?
No, nominal damages are enough
What are the two key concerns for IIED?
- Extreme and outrageous conduct
- severe emotional distress
If you are horrified and outraged by someone's conduct, does that equate to severe emotional distress for IIED?
What is conversion?
Exercising of dominion and control over property which causes substantial interference with ownership rights
What is the remedy for conversion?
A forced sale of the item, so it is the reasonable market value of the item
If you're at a rock concert and you know there will be slightly dangerous waves in the crowd, but you choose to be in the crowd anyway, what have you consented to?
If you have a question asking about a directed verdict, what does that mean?
Judges can only grant the motion if they find no substantial evidence to send to the jury
If you find a question about whether a directed verdict should be given, you only grant it if what?
No triable issues are left to be decided
If you get a question about whether a directed verdict should be granted, what should you almost always do?
Deny it because there is usually something left to be decided
If you aren't a customer and the bathroom says it is only for customers, then anyone who enters that isn't the customer is considered what?
If you use the bathroom in a hotel, but you aren't a customer of the hotel, what are you considered?
A business invitee because hotels are in the business for more than just rooms to stay in, they provide services
If you put up a sign in your restaurant bathroom saying the bathrooms are only for customers, what does that show that you know?
That lots of people use the bathroom that aren't customers, so they are trespassers, which creates a duty to warn of known dangers
If someone tripped over one marble out of a batch of marbles that were left on the ground by two people playing with the marbles, how does that relate to causation?
can't establish actual causation, because you don't know which of the two people put the one marble that got tripped on out. Summers v Tice: after the plaintiff establishes duty and breach, the burden switches to the defendants to show they weren't responsible for the injury to the plaintiff, and if they can't do that, then they are liable
If a question asks you to find the best defense, what does that not include necessarily?
The answer doesn't have to necessarily be a successful defense
What does Res Ipsa Loquitur have to do with?
Are criminal acts by third persons automatically intervening?
No you have to look at foreseeability
Unless a question tells you otherwise, what should you always assume a jurisdiction has adopted as far as negligence is concerned?
That it has joint and several liability and uses pure comparative negligence
Just because something wasn't an unusual practice in a field, does that mean the behavior is reasonable?
No, but it can be a factor in determining negligence, however it is not conclusive
If a question gives you the option of dealing with strictly ability, negligence, or intentional torts, what is the best one to find liability on?
Intentional torts are the best to sue on, then strict liability, and at the bottom is negligence
If both strict liability and negligence are possible, which one should you always pick to be a viable liability option?
Why is it better to find liability for an intentional tort than stick liability or negligence?
Because for intentional torts you don't have to prove damages, and you can recover punitive damages
Is an iguana considered a wild animal or the domesticated pet?
What are the two fact situations to watch out for on an exam that has to do with wild animals?
A) issues about whether or not an wild animal is actually harmless
B) whether The animal has to actually injure the plaintiff
If a test question raises doubt about whether a wild animal is actually harmless, does that influence the way you deal with the wild animal situation?
No, because a wild animal is always a wild animal, their status never changes no matter how docile they become
Does a wild animal have to actually injure the plaintiff to find liability?
No, so long as the plaintiff's injuries were connected to the fact that it was a wild animal, liability can be found.
If injuries come from a plaintiff perceiving an animal is a wild animal and becomes frightened, or worried because the animal threatens his child, and an injury ensues in trying to escape, is there liability?
Yes, because that doesn't actually have to be an injury by the animal in order to find liability for a wild animal
What is the best answer choice in a strict product liability question?
The one that deals with the defect in the product
Is contributory negligence a defense district liability?
Is assumption of the risk of defense to strict liability?
If you accomplished a taking by pretending to have a gun, is that enough for robbery?
Yes, so long as you have the apparent ability to carry out the force you threatened
Slander is a branch of what tort?
What is required for a defamation?
- defamatory statement
- intentional or negligent publishing to a third-party
Must there be intent to defame in order to have a defamation?
No, you just need intend to publish or negligence about publishing
What is required in order to get punitive damages in tort?
Something more than just having an improper motive, punitive damages are rarely given for anything published by the media
If the defendant is the media, and the plaintiff is a public figure, what should you immediately think about?
New York Times malice
What is Required for New York Times malice?
The defendant knew it was false or acted with reckless disregard
If you interfere with a person's unusual sensitivity, is that a nuisance?
No, it must be the type that would cause an interference with a reasonable person
In Order for misrepresentation to be actionable, it must be what?
Either intentional or negligent
Modernly, what kind of duty is imposed on sellers of property?
If the seller knows about a defect that the buyer is unaware of, and the buyer can't reasonably discover, he must disclose its presence
On the bar exam if you see a situation that looks like a vicarious liability question, why should you not jump for the answer that says no liability?
Because there is often another answer that bypasses vicarious liability and speaks to direct liability. If you can find something the defendant actually did wrong, that eliminates the need for vicarious liability
If You see a racehorse question, probably one of the relationships involves what?
A false center (rehashing of issues)
Is it true that on an essay question whatever relationship is listed first is most important?
No, examiners will often write a bottom loaded question where the main issues are at the end
In what order should you answer essay questions?
Always in the order they are given, even if the last relationship is the most important
Is product liability a tort?
No, it is an area of the law, The plaintiff sues for one of the three torts that make up products liability
Are the three torts that make up products liability?
Strict product liability, negligence, breach of implied warranty
Strict liability only includes what?
Wild animals and abnormally dangerous activities