Torts Flashcards
(105 cards)
1
Q
what are the three requirements to establish a prima facie case for intentional torts
A
Voluntary Act. The defendant’s actions must be voluntary (e.g., not a reflex).
Intent - general or specific
Causation. Causation is satisfied if the defendant’s conduct was a substantial factor in bringing about the harm.
2
Q
define specific intent
A
An actor has specific intent when the actor acts with the purpose of causing the consequence.
3
Q
define general intent
A
An actor has general intent when the actor knows that the consequence is substantially certain to occur.
4
Q
describe transferred intent doctrine
A
The transferred intent doctrine allows the defendant to be held liable when the defendant intends to commit an intentional tort against one person but instead commits:
A different intentional tort against the same person;
The same intentional tort against a different person;
OR A different intentional tort against a different person.
5
Q
the transferred intent doctrine applies to which intentional torts
A
assault, battery, false imprisonment, trespass to land, and trespass to chattels
6
Q
what are the elements of battery
A
Causes or is a substantial factor in bringing about;
Harmful or offensive contact;
To the plaintiff’s person or anything connected to them; AND
Has specific or general intent
7
Q
what is harmful contact
A
Contact is harmful when it causes injury, pain, or illness.
8
Q
what is offensive contact
A
Contact is offensive when a person of ordinary sensibility would find the contact offensive (e.g., spitting on someone).
9
Q
elements of assault
A
Causes or is a substantial factor in bringing about;
Reasonable apprehension in the plaintiff;
Of imminent harmful or offensive bodily contact to the plaintiff’s person; AND
Has specific or general intent
10
Q
plaintiff MUST be _______ of the defendant’s actions in order to have reasonable apprehension
A
aware
e.g., a plaintiff cannot have reasonable apprehension of harmful or offensive contact if she is unconscious
11
Q
do mere words constitute assault
A
NO
12
Q
what is imminent harm
A
The plaintiff must be apprehensive that she is about to become the victim of an immediate battery. There cannot be a significant delay (e.g., threats of future harm are not sufficient).
13
Q
elements of false imprisonment
A
Causes or is a substantial factor in bringing about;
The confinement of the plaintiff within fixed boundaries; AND
Has specific or general intent
14
Q
how may a defendant cause confinement under false imprisonment elements
A
The defendant may cause confinement of the plaintiff through the use of physical barriers, force, threats, invalid use of authority, duress, or failure to provide a safe means of escape.
Confinement within fixed boundaries exists when the plaintiff’s movement is limited in all directions, such that there is no reasonable means of escape known to the plaintiff.
The plaintiff MUST be aware of the confinement or be harmed by it.
15
Q
what is an exception to false imprisonment
A
shopkeeper’s privilege - A shopkeeper can detain a suspected shoplifter so long as the detainment is reasonable in both time and manner.
16
Q
Elements of Intentional infliction of emotional distress
A
Acts with extreme or outrageous conduct;
Which causes or is a substantial factor in bringing about;
Severe emotional distress; AND
Has intent to cause severe emotional distress OR acts with recklessness as to the risk of causing severe emotional distress.
17
Q
what is extreme or outrageous conduct for the purposes of IIED
A
Conduct is considered extreme or outrageous if a reasonable person would regard the conduct as intolerable in a civilized society.
18
Q
elements for trespass to land
A
Causes or is a substantial factor in bringing about;
A physical invasion of the plaintiff’s real property (by person or by object like throwing a rock);
AND
Has specific or general intent (need only intend to enter the land or cause the physical Invasion)
19
Q
________ is not a defense to trespass
A
mistake of fact - believing the land belongs to defendant instead of plaintiff
20
Q
elements for trespass to chattels
A
Causes or is a substantial factor in bringing about;
An interference with the plaintiff’s right of possession in a chattel; AND
Has specific or general intent
21
Q
What are two ways a defendant can interfere with plaintiff’s right of possession in a chattel?
A
Intermeddling occurs when the defendant directly damages the chattel.
Dispossession occurs when the defendant deprives the plaintiff of his lawful right of possession of the chattel.
22
Q
Conversion elements
A
Causes or is a substantial factor in bringing about;
An interference with the plaintiff’s right of possession in a chattel;
Where the interference is so serious, it deprives the plaintiff entirely of the use of the chattel; AND
Has specific or general intent
23
Q
defenses to intentional torts
A
consent
self defense and defense of others
necessity
24
Q
elements of consent as a defense to intentional torts
A
can be express or implied
must be valid
and D must remain within the boundaries of plaintiff’s consent (cant use a knife in a boxing match)
25
Self-Defense and Defense of Others elements
The defendant reasonably believed that that the plaintiff was going to harm
him or another (reasonable mistake allowed)
AND
The defendant used only the amount of force that was reasonably necessary
and proportionate to protect himself or another.
26
Necessity definition
available to a defendant that enters onto the plaintiff’s land or interferes with the plaintiff’s personal property, provided that the defendant does so to prevent an injury or some other severe harm
27
defendant may not use self defense/defense of others defense if
he was the initial aggressor (unless the other party responded to nondeadly force with deadly force.)
harm to property is the threat - deadly force cannot be used
28
what are the two types of necessity
public and private necessity
29
define private necessity
defendant’s act is done to benefit a limited number of people
the defendant MUST pay for the actual damages that he caused
the landowner may NOT use force to exclude the defendant (as opposed to when a landowner may usually use reasonable force to exclude a trespasser)
30
define private necessity
defendant’s act is done for the public good
| NOT liable for property damage that he caused.
31
Elements of negligence
defendant owed a duty to the plaintiff to conform to a specific standard of care;
breach of that duty
actual and proximate cause
actual damages or loss
32
to whom is a duty owed
A duty of care is owed to all foreseeable plaintiffs that may be harmed by the defendant’s breach of the applicable standard of care
33
what is the majority view for duty
the defendant is only liable to plaintiffs within the foreseeable zone of danger.
34
what is the minority view for duty
the defendant owes a duty to everyone harmed
35
Is there an affirmative duty to act?
NO affirmative duty to act affirmatively or help others
36
list circumstances where an affirmative duty to act may arise
D places the plaintiff in danger;
Has a special relationship with the plaintiff (e.g., common carrier/passenger, innkeeper/guest, family members, etc.);
Has a duty to act affirmatively imposed by law; OR
Begins to administer aid or attempt to rescue the plaintiff (beginning rescue, must exercise reasonable care)
37
what is the reasonable person standard of care?
standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard
The defendant is presumed to have average mental abilities and knowledge.
Particular physical disabilities may be taken into account (eg blindness)
38
how does intoxication impact the reasonable standard of care
Intoxicated people are held to the same standard as sober people UNLESS the intoxication was involuntary.
39
what role do community customs place in determining the reasonable standard of care
Community customs may be relevant in determining reasonableness, but they are NOT dispositive.
40
List all the special standards of care
children, professionals, physicians, psychotherapists, landowners or possessors, and negligence per se
41
what is the standard of care for children?
no liability if under 5 otherwise
held to the standard of care of a reasonably prudent child of similar age, experience, and intelligence under the circumstances (more subjective).
However, if the child is engaged in adult activity (e.g., operating a crane), the court will NOT take the child’s age into account (i.e., the child will be held to an “adult” standard).
42
what is the standard of care for professionals
A professional (e.g., nurses, lawyers, accountants, engineers, architects, etc.) is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities.
43
what is the standard of care for a physician
Physicians are held to a national standard of care and have a duty to disclose the risks of treatment to enable a patient to give informed consent.
Only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.
44
what is the standard of care for a psychotherapists
In the majority of states, psychotherapists have a duty to warn potential victims of a patient’s serious threats of harm if the patient has the apparent intent and ability to carry out such threats and the potential victim is readily identifiable.
45
what is the standard of care that applies to landowners
it depends on the type of entrant: trespassers, licensees, invitees
46
what is the standard of care owed to a treapasser
A trespasser is a person who enters the landowner’s property without valid consent or necessity.
Discovered/anticipated trespasser - owes a duty to discovered/anticipated trespassers to warn of (or make safe) hidden dangers on the land that pose a risk of death or serious bodily harm (only applies to artificial conditions that the landowner is aware of).
undiscovered - no duty
47
what is the standard of care owed to licensees
a person who lawfully enters the landowner’s
property for her own purpose or benefit, rather than for the landowner’s benefit (e.g., social guests).
NO duty to inspect his property for licensees
DOES owe a duty to licensees to warn of (or make safe) hidden dangers on the land that pose an unreasonable risk of harm (applies to both artificial and natural conditions that the landowner is aware of
48
what is the standard of care owed to invitees
invitee is a person who is invited on the property for the owner’s own benefit or mutual benefit with the invitee (e.g., a customer shopping in a store that is open to the public)
landowner owes a duty to the invitee to reasonably inspect the land for hidden dangers (artificial or natural) that pose an unreasonable risk of harm, and if discovered, make them safe (e.g., installing a warning sign, fixing the hidden danger, etc.).
49
minority approach for landowners' duty
rejected the traditional approach distinctions between licensees and invitees simply applying a reasonable person standard to landowners
50
describe the attractive nuisance doctrine
A landowner owes a duty to child trespassers to warn of (or make safe) artificial conditions on the land, provided that:
artificial condition exists in a place where the landowner knows or has reason to know that children are likely to trespass;
landowner knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm
children, due to their age, do NOT appreciate the danger involved AND
risk of harm outweighs the expense of making the condition safe
51
describe negligence per se
When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:
```
Is in the class of people meant to be protected by the statute; AND
Suffers the type of harm the statute was designed to protect against.
```
52
defendant will only be liable under negligence per se if his violation of the statute
was the ___________ of the plaintiff's injury
proximate cause
53
What is res ipsa loquitur
applied when an element of negligence is difficult to prove, but the circumstances make it obvious that the defendant’s negligence was the most likely cause of the harm
"the thing speaks for itself"
54
what must the plaintiff show for res ipsa to apply?
plaintiff must show that the accident resulting in the harm was:
Of a kind that ordinarily does not occur in the absence of negligence; AND
Caused by an agent or instrumentality within the defendant’s exclusive control.
SOME jurisdictions also require that the injury was not due to any action on the part of the plaintiff
55
to prove negligence the plaintiff must show that the defendant's conduct was BOTH the ______ and _________ of the plaintiff's injury
actual; proximate cause
56
define actual cause
To prove actual cause, the plaintiff must show that her injury would not have occurred BUT FOR the defendant’s breach.
57
define proximate cause
the plaintiff must show that her injury was a foreseeable result of the defendant’s conduct
58
define intervening cause
An intervening cause is an outside force or action that contributes to the plaintiff’s harm after the defendant’s breach has occurred.
If the intervening cause is unforeseeable, it is a superseding cause and the defendant’s liability to the plaintiff will be cut off from that point forward.
59
further negligent acts for the purposes of proximate causation are considered _______
foreseeable
(e.g., medical malpractice)
Courts have long held that injuries sustained when running from danger are foreseeable and that injuries sustained to the rescuer during a rescue attempt are foreseeable
60
Criminal acts, intentional torts, and nature-induced "acts of god" are considered ________ for the purposes of proximate cause
unforeseeable
61
what is the fireman's rule
the fireman’s rule generally bars lawsuits by police officers and firefighters from collecting on damages that occur in the course of their duties even if the injuries were a clear result of the other party’s negligence.
62
what is the eggshell plaintiff rule
Under the eggshell plaintiff rule (“take your victim as you find him rule”), the defendant is liable for ALL harm suffered by the plaintiff, even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition that aggravates the harm.
63
define respondeat superior
Under the doctrine of respondeat superior, an employer (principal) may be liable for torts committed by an employee (agent) if:
An employer-employee relationship exists (NOT an independent contractor relationship);
AND he employee’s commission of the tort occurs within the scope of employment.
64
how do you determine whether an employer-employee relationship exists?
he most important consideration is the extent of control that the principal exercises over the details of the agent’s work
65
how do you determine scope of employment?
In making this determination, courts examine whether the employee’s conduct was:
(i) A function for which the employee was hired to perform;
(ii) Within the employer’s authorized time and space limits;
(iii) Conducted to serve the employer; AND
(iv) Foreseeable to the employer.
66
what is the rule for respondeat superior liability with respect to intentional torts
Generally, employers are NOT liable for the intentional torts of employees UNLESS:
(1) The intentional tort was authorized by the employer; OR
(2) Force is within the scope of employment in the employee’s work (e.g., security guards).
67
employer remain liable during an employee's _____ even if it was mainly for employee's own reasons
detour (i.e., a minor deviation from the scope of employment)
68
the employer does NOT remain liable during an employee’s __________
frolic (i.e., a major deviation from the scope of employment)
69
negligence standard for business partners
The negligence of one business partner can be imputed on other business partners if it is committed within the scope of the business’s purpose.
70
what are some ways a plaintiff can recover for negligent infliction of emotional distress
there are three ways that the plaintiff can recover for NIED: zone of danger, bystander recovery, and special relationship
71
what does a plaintiff need to prove under the zone of danger theory to recover for NIED
(a) The defendant negligently caused a threat of physical impact;
(b) The plaintiff was within the “zone of danger” of the threatened physical impact; AND
(c) The threat of physical impact caused emotional distress.
72
what does a plaintiff need to prove under the bystander theory to recover for NIED
(a) The defendant negligently inflicted bodily injury to another;
(b) The plaintiff is closely related to the person injured by the defendant;
(c) The plaintiff was present at the scene of the injury; AND
(d) The plaintiff personally observed the injury.
(e) SOME jurisdictions also require that the plaintiff manifest physical symptoms after witnessing the injury.
73
what does a plaintiff need to prove under the special relationship to recover for NIED
plaintiff can recover for NIED in certain circumstances where a pre-existing relationship exists between the defendant and plaintiff (e.g., doctor/patient). This commonly arises when:
(a) The defendant negligently mishandles a corpse; OR
(b) The defendant negligently provides false medical information (e.g., the plaintiff is told that she has terminal cancer when she is, in fact, perfectly healthy).
74
what is joint and several liability
two or more parties are jointly and severally liable, each party is independently liable for the full extent of the damages stemming from the tortious act
75
what is contribution (joint and several liability)
contribution allows a defendant who pays more than his share of the total liability to recover from the other liable defendants (cannot recover more than the other liable defendant’s percentage share of fault – based on a pure comparative fault theory)
76
define alternative liability
If a plaintiff cannot identify with specificity which among multiple defendants caused his harm, alternative liability allows the plaintiff to shift the burden of proving causation to the defendants - even though only one of them could have been responsible
77
define indemnification, when does it usually arise
indemnification usually arises in situations involving vicarious liability or strict liability
allows a passive tortfeasor who was forced to pay damages to recover a complete reimbursement from an active tortfeasor.
78
list defenses to negligence
contributory negligence
comparative fault
assumption of risk
79
define contributory negligence
In a contributory negligence jurisdiction, a plaintiff CANNOT recover damages if his own negligence contributed to his injury in any way, UNLESS the defendant:
Was engaged in wanton and willful misconduct; OR
Had the last clear chance to avoid injuring the plaintiff, but failed to do so.
80
Contributory negligence is not a valid defense for _________
intentional torts.
81
define comparative fault
the plaintiff’s own negligence limits recovery but is NOT necessarily a complete bar to recovery
two types: pure comparative negligence and modified comparative negligence
82
define pure comparative negligence
the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence
if the jury finds the plaintiff is 95% at fault, the plaintiff can recover 5% of her damages
83
define modified comparative negligence
Plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence. HOWEVER, if the plaintiff is MORE at fault than the defendant, the plaintiff’s recovery is completely barred
in some jurisdictions, if the plaintiff and defendant are equally at fault, the plaintiff’s recovery is completely barred
84
define assumption of risk, what are the two types
defense to negligence that applies when a party knowingly and willingly embraces a risk for some purpose of his own (similar to consent in intentional torts).
Assumption of risk may be express or implied.
85
define strict liability and list the three types
Under strict liability, a defendant will be liable for damages REGARDLESS of how careful they were
three types are: animals, abnormally dangerous activities and defective products
86
strict liability for domestic animals
domestic animals - An owner of a domestic animal will NOT be strictly liable for harm caused by the animal UNLESS the owner knows or has reason to know of the animal’s dangerous propensity.
87
strict liability for wild animals
Wild animals are animals that, as a species or class, are not customarily kept in the service of mankind (e.g., tigers, monkeys, etc.). An owner of a wild animal is strictly liable for any harm caused by the animal regardless of safety precautions taken by the owner. However, owners are generally NOT strictly liable for harm caused to trespassers.
88
strict liability for abnormally dangerous activities
A defendant is strictly liable for damages caused to the plaintiff if he is engaged in abnormally dangerous activities. An abnormally dangerous activity is one that is:
(1) Inherently dangerous;
(2) Inappropriate for the location chosen;
(3) Virtually impossible to make safe; AND
(4) Of little value to the community.
89
A strict liability claim under products liability requires the plaintiff to show
The product was defective in manufacture, design, or failure to warn;
The defect existed when the product left the defendant’s control; AND
The defect caused the plaintiff’s injury when the product was used in a foreseeable way.
90
A defect in manufacture requires the plaintiff to show that the product:
(1) Deviated from its intended design; AND
| (2) Fails to conform to the manufacturer’s own design.
91
what are the two ways to test for a design defect
Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect
Under the risk-utility test, the plaintiff must show that the product’s risks outweigh its benefits AND that there is a reasonable alternative design.
92
A failure to warn defect requires the plaintiff to show:
(1) The plaintiff was NOT warned of the risks regarding the use of the product;
(2) The risks are NOT obvious to an ordinary user; AND
(3) The designer/manufacturer was in fact aware of such risks.
93
What are the elements of defamation?
the defendant: publishes a defamatory statement
of or concerning the plaintiff (a reasonable person must believe that the defamatory statement referred to this particular plaintiff)
causing damage to the plaintiff’s reputation.
94
what is a defamatory statement
The statement must be false and NOT an opinion. It usually contains language that diminishes respect toward the plaintiff or deters others from associating with the plaintiff.
95
standard required to prove defamation varies depending on whether the plaintiff is a _________ or a ___________
public; private individual
96
what is a public official (defamation elements) and what are the different categories
A public official is a person who has control over government office (includes political candidates).
A general purpose public figure is a person of persuasive power and influence in society.
A limited purpose public figure is a person who has injected himself into a public controversy.
97
what is the standard a public official or a public figure must meet to prove defemation
actual malice standard
requires the plaintiff to show that the person who made the defamatory statement either knew it was false or acted with reckless disregard for the truth.
98
what is the standard a public official or a public figure must meet to prove defemation
actual malice standard
requires the plaintiff to show that the person who made the defamatory statement either knew it was false or acted with reckless disregard for the truth.
99
define private individual
A private individual is any person that is not a public official or public figure.
100
If the plaintiff is a private individual AND the defamatory statement is a matter of public concern, the plaintiff need only prove that the statement was _______ and the speaker was at least ________.
the plaintiff need only prove that the statement was false and the speaker was at least negligent.
101
what damages may a public official or public figure recover
only recover actual proven damages (no punitive or presumed damages).
102
what can a private individual recover
If the plaintiff is a private individual and it is a matter of public concern, the plaintiff can only recover actual damages UNLESS the plaintiff shows actual malice.
103
what can a private individual recover
If the plaintiff is a private individual and it is a matter of public concern, the plaintiff can only recover actual damages UNLESS the plaintiff shows actual malice.
104
define libel and what are the damages available
Libel is a written, printed, or recorded statement (e.g., television/radio broadcasts).
If the defamatory statement is libel, the plaintiff may recover general damages (recovery is allowed without proof of concrete, measurable harm).
105
define slander and slander per se
| list the damages for each
Slander is a spoken statement that is not recorded.
f the defamatory statement is slander, the plaintiff may only recover special damages (requires a more concrete showing of actual economic loss).
However, if slander per se applies, the plaintiff is not limited to special damages.
