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Torts Flashcards

(80 cards)

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1
Q

Negligence

A

P must prove: duty, breach, cause (actual + proximate), and harm

If P can’t prove then judge can enter directed verdict for D

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2
Q

Duty of Care Standard

A

Duty of care is owed to foreseeable P’s & is measured agasinst prudent person acting under same or similar circumstances would use.

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3
Q

Exceptions to Reasonable Prudent person standard

A
  1. superior knowledge
  2. age if D child- similar age, intelligence, experience
  3. D’s physical characteristics (blind, deaf, missing an arm)
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4
Q

Exception to Child standard of care

A

Child engaged in adult activity
driving car, boat, shooting a gun
reasonable prudent adult standard

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5
Q

Professional malpractice

A

custom is conclusive as to standard of care; if not followed breached

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6
Q

non malpractice cases

A

custom is evidence to standard of care but showign it wasn’t followed isn’t proof of nelggience

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7
Q

Doctor Standard of Care

A

Informed Consent- must show pt w/ enough info to give informed consent- reasonable peson in position would’ve refused procedure; harm must still be shown

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8
Q

Wrongful Conception

A

woman has child after being told not to

damages are costs associated with birth

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9
Q

Wrongful Birth

A

child is born b/c Dr failed to diagnose disease and parents assert they would’ve aborted child

Damages: extra expenses raising child w/ special needs

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10
Q

Wrongful Life

A

child sues for being born w/ defects

Damages allowed but usually no recovery

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11
Q

Wrongful Death

A

P can only recover if expert testimony estab. chance of survival absent negligence would have been greater then 50% or in loss of chance of survival jurisdictions allow recovery for any loss of chance of survival

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12
Q

Undiscovered Tresspasser

A

1 who comes on land without permission or privilege & landowner isn’t aware

No Duty

landowner can’t engage in intentional and willful misconduct

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13
Q

Discovered Trespasser

A

tresspasser landowner knows or should know of

Landowner must warn or make safe any unreasonably dangerous, concealed, artifiical man made conditions that they know of

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14
Q

Attractive Nuisance

A

dangerous condition on land that owner knows or should know of, children frequent land and owner knows or should know and child can’t appreciate risk, landowner fails to exercise reasonable care to eliminate the danger or protect children

balance the cost to fix v. harm

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15
Q

Licensee

A

Social Guest who has permission to enter land but doesn’t offer economic benefit on possessor of land

Landowner must warn and make safe all concealed dangers that he knows of; no duty to inspect

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16
Q

Invitee

A

enters land to confer economic benefit or one that enters land that is open to pubic at large

Customer, church goer, museum

owner must warn and make safe all dangers that he knows or should know and make inspections

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17
Q

Firefighters Rule

A

licensees- no duty to inspect

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18
Q

Neglgience Per se

A

D violeted statute w/out execuse
right person was injured (P was in class of people trying to protect)
right injury was sustained

P shows duty and breach must prove cause and harm- no directed verdict

don’t have to follow statute if dangerous, impossible, incapacity

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19
Q

Rescurers

A

forseeable P’s but must act w/ ordinary care in conducting resuce but liable if neglgiently worsen condition

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20
Q

Duty to Act

A

no duty to act generally unless

  1. special relationship- parent/child, spouses, psycotherapist
  2. K to take of person
  3. statute
  4. tort- caused peril
  5. reliance- babysitting
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21
Q

Breach

A

P must establish D failed to comply w/ duty of care owed

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22
Q

Res Ipsa Loquitur

A

circumstances surrounding injury are unclear

P has made case for breach; no directed verdict

  1. probably negligent- act doesn’t happen w/out it
  2. probably D- accident is normally due to negligence of someone in D’s position
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23
Q

Actual Causation

A

factual; but for

connection between injury & breach

would same harm occured even if breach didn’t occur

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24
Q

Multiple D’s working in concert to cause harm

A

substantial factor test: breach a substantial factor in causing the harm?

D’s jointly and severally liable meaning each can be sued for whole amount

If D’s beleive they acted independent burden will shift to each individual D to show breach wasn’t cause P

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25
Proximate Cause
harm must be forseeable 1. disease or subsequent accident 2. medical malpractice 3. resuce efforts 4. reactions- running to escape
26
Harm
P compensated for all damages (economic & noneconomic) Actual injury must result meaning damages must be forseeable P has duty to mitigate
27
Egg Shell P Rul;e
D must pay damages even if larger b/c forseeability of extent harm not necessar
28
NIED
D is negligent P hasn't sustained any physical trauma to body Zone of danger, bystander, special cases
29
Zone of Danger & NIED
D neglgient P in zone of danger P sufferes emotional disress that manifests physicval symptoms (heart attack, shock, miscarriage)
30
Bystnader Case NIED
P witnesses nelggient injury inflicted on person is closely related to P P suffers phsyical symptoms
31
Special cases of NIED
Dr. telling pt of disease when he doesn't have it errors in relative's death mishandeling corpse *no physical symptoms neccessary
32
Contributory Negligence
old CL bars P's recovery if he was negligent BAD LAW
33
Assumption of Risk
P can be denied recovery is assumed risk of D's nelgigence D needs to show P was aware of risk and voluntarily assumed it
34
Comparitive Negleigence
% of neligence assigned
35
Pure Comparative negligence
P can recover regardless of his negligence DEFAULT
36
Partial Compartive Neglgience
if P is more at fault than the D can't recover or in some states if =
37
Battery
D acts w/ intent to cause harmful or offensive contact and harmful/offensive contacts results
38
Act in battery
Voluntary movement
39
intent in battery
goal to cause injury or D knows w/ substantial certainty that injury will result
40
Offesnive Contact Battery
reasonable person standard
41
Battery/Assault Damages
actual damages not required | nominal damages can be recovered
42
Incompetency & Battery
not defense unless negates element of battery | *beleives punching bag when punching person
43
Assault
D acts w/ intent to cause harmful or offensive contact and imminent apprehension directly or indirectly results
44
Act in assault
conduct even small gesture
45
Intent in assasult
cause hamrful or offensive contact or imminent apprehension of contact
46
Apprehension in assault
knowledge or anticipation not fear
47
False Impriosnment
D acts w/ intent to confine or restrain the p to bounded area, actual confinement occurs, and P knows of confinement or is hurt
48
Actual Confinement
physicla barriers, forcde directed at P or family no reasonable escape must know of confienment or be hurt
49
Shop Keeper's priviliege
merchant has priviliege to detain shoplifter if merchant has reasonable beleif as to theft and detains in reasonable manner and reasonable time
50
IIED
D intentionally or recklessly engages in extreme or outrageous conduct which causes severe emotional distress *repetitive, not social norms if inkeeper or common keeper insulting language enough extreme senseabilities only matter if D knows physical injuries not necessary
51
Trespass to Landl
physically invases of land of another and intends to be where he is
52
physical invasion
intentionally enters land of another and remains on land after lawful entry has lapsed and knows entry will result from conduct
53
Nuisance
loud music lights Private- substantial unreasonable interference with use and enjoyment- ignore hypersensitve Public- unreasonable interference with helath, safety, morals of community and suffer unique damages
54
Intent w/ tresspass to ladn
D just needs to intend to go on land- doesn't amtter if he knows land is another's
55
Trespass to Chattles
intentional interference with personals property and harm results Damages: cost of repair damage can't be negligently damaged belief that property is own no defense
56
Conversion
intentional interference with personal property of another and serious and substantial harm results Damages: FMV at time and place of conversion *long period of time, refuse to return, total destruction, reselling
57
Defenses to Intentional Torts
Consent Self Defense Necessity
58
Express Consent
words even if mistake
59
Implied Consent
p consents to conduct by actions look to see if D reasonably beleive P was consenting
60
Self Defense
person who reasonably believes being harmed by another can use force reasonably necessary to protect against imminent harm unavilable if 1st agressor, taunting, acting in retailion, threat isn't immient
61
Defense of property
person can't use deadly force to defend property can in hot pursuit use reasonable force to get item back if wrongfully taken, but must 1st demand return
62
Public Necessity
d not liable and won't have to pay damages if acts in public interest protects communtiy as whole
63
private necessity
protects own interest and harms property not liable for tort but will have to pay damages
64
Defamation- private figure private concern (gossip)
Defamatory statement about P, unprivileged publication of statement to 3rd party , some degree of fault, damages depends on slander or libel
65
Defamatory Statement
adversely effect P's reputation that identifies P who is alive (corps count)
66
3rd party defmation
must understand communication and only intent to publish
67
Libel
written or an otherwise permanent defamaotry statement | presumed damages but P may prove dmages to get more $
68
Slander
spoken defamtory statrment presumed damages if slander per se (CLUB): crime of moral turpitude, loathsome disease, unchasity, relfects badly on business or profession is statement doesn't fit in this P must prove samafes by showing getting fired or losing out on K
69
Defamation in cases of private figure public ocncern
``` Defamatory statement unprivileged publication Fault Damages falsity ``` Dmages limited to actual but presumed if malice is present
70
Defamation in cases of public figure
``` defamatory statement unprvilieged publication fault damages falsity malice required h ``` D made statement with knowledge of falseity with reckless disregard to its truth or falsity
71
Defense to Defamation
consent | truth
72
Intursion
d intentionally pries or intrudes into private place in a way that would be offensive to reasonable person
73
Appropiation
unauthorized use of P's name or likness to advertise product P doesn't need to famous but commerical purpose but be necessary
74
False light
D widely spreads facts about P which places P in false light that would be offensive to reasonable person *must tell a lot of people
75
Disclosure
D widely disseminates or publishes private info about P that would be highly offensicve to reasonable perosn * info must be accurate and confidential
76
Several Liability
D only liable for their % of fault
77
Indeminity
1 D seeks 100% of damages from other D
78
Independent Contractor Torts
not liable for IC b/c less control but when landowner has nondelegable duty to keep land safe or liable for own neglgience in hiring, firing, or supervising
79
Vicarious liable
Employers liable for torts of employees if commited within scope of employment intentional torts are outside scope unless done for purpose of serving employer or if forseeable
80
Strict Liability for Products
P who is consumer D who is merchant Defective product Forseeable use or misuse

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