Torts Flashcards
What can transferred intent be applied?
Battery, Assault, False imprisonment, Trespass (land or chattels)
Which intentional torts is the necessity of defense limited to?
Torts against property (trespass to land, trespass to chattel, conversion)
What is another name for actual cause?
cause-in-fact OR factual cause
What is another name for proximate cause?
legal cause
What are the differences between intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED)?
IIED - 1) for bystander claims, D is aware of P’s presence and his/her relationship to the victim AND 2) no physical manifestation of emotional distress is required.
NIED - 1) for bystander claims, D need not be aware of P’s presence and his/her relationship to the victim AND 2) a physical manifestation of emotional distress is required.
Two exceptions: 1) mishandling corpse, and 2) false report of a death
NB: re requirement of physical manifestation on NIED, courts are split. Note the split in an essay but default to no physical manifestation for the MBE.
What Q must be asked to determine proximate causation?
Was P’s injury within the realm of foreseeable consequences associated with D’s conduct/breach?
Look at the breach and predict any risk reasonably foreseeable
Four scenarios defines as foreseeable intervening forces where D remains liable
1) medical malpractice while treating already injured P
2) reactionary or protective forces (stampede)
3) negligent rescuer
4) subsequent disease/injury suffered by already injured P
What is loss of consortium?
Where a victim is married, some states allow spouses to file an independent action against tortfeasor for:
1) loss of household services
2) loss of society/companionship
3) loss of sex
What is one of the effects of res ipsa loquitur?
No directed verdict may be given for the defendant.
For questions asking how D can best avoid liability in a negligence action what elements do you look for and in what order?
Look for answers that negate the four elements of a negligent action in the following order: 1) duty of care, 2) breach of duty, 3) causation, 4) actual damage
What does the rule that the D cannot avoid liability by showing negligent failure of an intermediary to discover the defect relate to in the elements of a strict liability or negligence claim?
Proximate causation principle that negligence of an intermediary is foreseeable and not a superseding cause.
Under this principle, the intermediary’s negligence does not cut off the defendant’s liability for supplying a defective product.
To show that inadequate warnings were an actual cause of the injury, what is the P entitled to?
A presumption that an adequate warning would have been read and heeded (i.e., but for the lack of an adequate warning, the plaintiff would not have been injured).
Which of the intentional torts actually requires P to suffer some actual harm
Intentional infliction of emotional distress - P must suffer emotional distress to recover
What is the intent requirement for conversion?
The intent involved refers to the physical act that results in the conversion, not to the defendant’s desires regarding the ultimate disposition of the property.
What are the limitations of the land owner/possessor duty to warn about dangers?
The duty to warn does not extend to dangerous conditions that the licensee should reasonably have discovered.
Does a tenant’s legal right to occupy affect his/her duties to a licensee/invitee?
Even if a tenant had no legal right to occupy the land, she still would be the possessor of the land as to the friend, and she owed the friend the duties owed to a licensee.
What must a P show to succeed on a design defect claim?
The plaintiff must show that those designing the product knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed.
Negligent design is not shown, however, if the danger of the product becomes apparent only after the product reaches the public.
What must P show for breach of duty in a products liability negligent action?
That the defect could have been discovered and corrected if D had exercised reasonable care
When can strict liability be imposed on a retailer?
For the sale of any product which is in a defective condition or unreasonably dangerous to the user, provided that 1) the storekeeper is engaged in the business of selling the product, and 2) the product was not substantially changed by anyone else before the plaintiff used it.
What is the proper venue for products liability actions?
either where the product was bought or where the injury happened
When is an injured victim liable for their rescuer’s injuries
One who acts negligently and endangers himself is also liable for the resulting injuries of anyone who undertakes to rescue him, so long as rescuer not reckless
When is an unascertainable causes approach available?
All defendants must be shown to have acted negligently. Plaintiff then establishes that her injury was caused by one of them (but it is not clear which one).
The burden of proof as to actual cause then shifts from the plaintiff to the defendants
When is their an absolute privilege to the publication of defamatory statement?
When publication is compelled by law?
What factor’s are considered when evaluating the conduct of the rescuer?
All of the circumstances, including the excitement of the accident and the speedy response of the rescuer
