Torts Flashcards
(388 cards)
1
Q
In order to establish a prima facie case of intentional tort, P must prove:
A
- Act by D
- Intent
- Causation
2
Q
In order to find a prima facie case for an intentional tort, there must be an act by D, defined as _______.
A
Volitional movement by D
3
Q
In order to find a prima facie case for an intentional tort, there must be intent, either _______ or _______.
A
Specific
General
4
Q
What is specific intent (for purposes of establishing a prima facie case for an intentional tort)?
A
D acts with the specific purpose of bringing about a particular result
5
Q
What is general intent (for purposes of establishing a prima facie case for an intentional tort)?
A
D acts with knowledge to a substantial certainty that these consequences will result
6
Q
What is transferred intent (for purposes of establishing a prima facie case for an intentional tort)?
A
Intent to commit a specific tort against a specific person is transferred to the tort actually committed or to the person actually harmed.
7
Q
Transferred intent is limited to what torts?
A
- Assault
- Battery
- False Imprisonment
- Trespass to chattels
- Trespass to land
8
Q
What is causation (for purposes of establishing a prima facie case for an intentional tort)?
A
Satisfied if D’s conduct was a “substantial factor” in bringing about P’s injury
9
Q
What is battery?
A
Intentional infliction of a harmful or offensive bodily contact
10
Q
What are the elements of battery?
A
- Intentional infliction…
- of bodily contact…
- that is harmful or offensive…
- to plaintiff’s person…
- that D caused
11
Q
What is the specific intent requirement for battery?
A
Purpose of inflicting harmful or offensive contact
12
Q
What is the general intent option for battery?
A
Knowledge to a substantial certainty that contact will be harmful or offensive
13
Q
When would indirect contact qualify as bodily contact for battery?
A
Battery caused by something that was put in motion by D
14
Q
What is the standard for whether contact is harmful/offensive enough to qualify as battery?
A
Reasonable person standard
15
Q
Contact is considered offensive only if ________.
A
A reasonable person would not consent to it
16
Q
For purposes of battery, there is implied consent for what contact?
A
Ordinary contacts of everyday life
17
Q
For purposes of battery, plaintiff’s person is ________.
A
Anything the victim is holding, touching, or connected to
18
Q
________ are not required in order to find battery.
A
Actual damages
19
Q
What is assault?
A
Intentional creation of reasonable apprehension of imminent harmful/offensive bodily contact
20
Q
What are the elements of assault?
A
- Intentional act by D
- Reasonable apprehension of imminent battery
- Causation
21
Q
An intentional act by D that constitutes assault requires intent to:
A
- Create apprehension OR
- Make harmful/offensive contact
22
Q
For purposes of finding assault, apprehension means _______.
A
Knowledge of imminent harmful/offensive contact
23
Q
For purposes of assault, apprehension is measured from ____________.
A
P’s perspective
24
Q
Words alone are not sufficient for an assault because __________.
A
Words lack immediacy
25
For purposes of assault, words may negate __________, even if there is _______.
Apprehension
An overt act by D
26
Are future threats assaultive?
No; no imminence, so no assault
27
What is a conditional threat?
Instances where D threatens harm only if the victim doesn't obey D's demands.
28
Conditional threats are not sufficient for assault liability if:
1. D has a legal right to compel the action OR
2. Condition expressly negate's D's intent to harm
29
________ are not required to find assault.
Actual damages
30
What is false imprisonment?
Intentional infliction of confinement where the victim has knowledge of/is harmed by the confinement
31
What are the elements of false imprisonment?
1. Intentional act or omission...
2. That confines/restrains P to a bounded area....
3. P knows of/is harmed by confinement
4. D caused
32
What is the specific intent option for false imprisonment?
D must act either with the specific intent to confine the victim
33
What is the general intent option for false imprisonment?
D must act with knowledge to a substantial certainty that her actions/inaction would confine the victim
34
How long must someone be confined in order to qualify as false imprisonment?
No specific duration required
35
What is a bounded area for purposes of false imprisonment?
1. P's movement is confined in all directions AND
2. No reasonable means of escape known to the victim (or that victim can reasonably discover)
36
What is NOT sufficient for false imprisonment?
1. Future threats
2. Moral pressure
37
__________ are not required for false imprisonment.
Actual damages
38
What is intentional infliction of emotional distress?
Intentional/reckless infliction of severe emotional/mental distress by extreme/outrageous conduct
39
What are the elements of intentional infliction of emotional distress?
1. Intentional/reckless infliction...
2. of severe emotional/mental distress...
3. by extreme/outrageous conduct
40
What is the specific intent option for intentional infliction of emotional distress?
D acts with the specific desire to cause emotional distress in the victim
41
What is the general intent option for intentional infliction of emotional distress?
D acts with knowledge to a substantial certainty that the victim will suffer emotional distress
42
What is the recklessness option for intent for the intentional infliction of emotional distress?
D acts with reckless disregard of the high probability that emotional distress will occur
43
When is mental/emotional distress severe enough for the tort of intentional infliction of emotional damage?
Emotional distress of such substantial/enduring quality that no reasonable person in a civilized society should be expected to endure it.
44
What is extreme and outrageous conduct (for purposes of intentional infliction of emotional damage)?
Conduct that would cause an average member of the community to immediately react in outrage
45
What factors are considered when looking for extreme/outrageous conduct?
1. Pattern of conduct
2. D owned victim fiduciary duty
3. Use of racial epithets
4. Vulnerable victims
46
D owes the victim of emotional distress a fiduciary duty in what sitiuations?
1. Employer-employee relationship
2. Doctor-patient relationship
3. Common carrier or inn keeper
47
Who is a vulnerable victim in regards to intentional infliction of emotional distress?
1. Young children
2. Elderly
3. Pregnant women
4. Supersensitive victims (if sensitivity known to D)
48
Unlike most other intentional torts, _______ are required in order to find intentional infliction of emotional distress.
Actual damages
49
When can P recover for intentional infliction of emotional distress for harm caused by D to 3rd parties?
1. Able to satisfy all elements of prima facie case OR
2. Immediate family member injured and present when injury occurred
50
What is trespass to land?
Interference with the interest in exclusive possession of land
51
What are the elements of trespass to land?
1. Wrongful physical invasion
2. Of P's real property
3. Intent
4. Causation
52
The air above and ground below P's land qualify as real property for the purposes of trespass to land, but only __________.
Within a space the property's owner would reasonably use
53
What intent is required for trespass to land?
Intended actual entry (knowing wrongfulness not required)
54
A plaintiff can recover for trespass even without __________ to the land.
Actual damages
55
What is trespass to chattels?
Intentional interference with a person's use or possession of a chattel
56
What are the elements to trespass to chattels?
1. Intent
2. Interference with a person's right of possession in chattel
3. Causation
4. Damages
57
For purposes of trespass to chattel, interference with a person's right of possession in chattel can take the form of:
1. Intermeddling (damage with chattel) OR
2. Dispossession (deprivation of lawful possession)
58
Loss of possession, even if __________, is sufficient for damages in trespass to chattels,
The chattel is eventually returned unharmed
59
What is conversion?
Substantial intentional interference with a person's use or possession of a chattel
60
What are the elements of conversion?
1. Intent
2. Substantial interference with P's rights of possession
3. So severe that D justly required to pay full value of chattel
4. Causation
61
When is interference with P's right to possession substantial enough to amount to conversion?
Subsubstantial enough to amount to the exercise of dominion or control
62
What factors establish conversion from trespass to chattels?
1. Duration
2. Good/bad faith
3. Harm to property
4. Inconvenience to victim
63
If damages are granted as remedy for conversion, they are calculated based on:
Fair market value at the time of conversion
64
What remedies are available for trespass to chattels?
1. Damages
2. Recover possession
65
What is express consent?
Express consent is consent that is clearly and unmistakably stated
66
Express consent is invalid if brought about by:
1. Fraud
2. Duress
3. Mistake
67
Fraud only invalidates express consent if __________
Related to essential matters
68
Duress invalidates express consent unless ________.
Only threats of future harm/economic deprivation
69
Mistake only invalidates express consent if:
1. D knew of P's mistake AND
2. Took advantage of the mistake
70
Consent to touching may be implied from:
1. Objective manifestation of P's consent
2. Activities where minor invasions are customary
3. Consent from circumstances (e.g. saving P's life)
71
Consent is not a defense if P is incapable of ______.
Consenting
72
Even if there is consent, D will nevertheless be liable if her actions _______.
Go substantially beyond the scope of consent
73
What is the self-defense defense?
A person is entitled to use reasonable force to prevent any threatened harmful/offensive contact as well as any threatened false imprisonment
74
To use force in self-defense, D must reasonably believe ________.
Force will be used against her.
75
D may not use force to prevent harm that is not imminent unless ________.
It reasonably appears that there will not be a later opportunity to prevent the harm
76
What degree of force may D use in self-defense?
Only the degree of force required to prevent impending harm
77
What happens if D uses more force than necessary to prevent impeding harm?
WIll subject D to liability for damages caused by the excessive use of force
78
A non-aggressor victim may use non-deadly force in self-defense anytime the victim reasonably believes that _______.
Force will be used against her
79
When can a victim use deadly force in self-defense?
1. Victim is not at fault
2. Victim is confronted with unlawful force AND
3. Victim reasonably believes she is facing imminent threat of death or serious bodily harm
80
What is the restatement view on whether there is a duty to retreat?
Exists for deadly force unless defender is inside her home.
81
What happens if someone injurs a third party while defending herself?
Self-defense extends to accidental third-party injurites
82
D asserting defense of another cannot use force that is ____________.
Excessive under the circumstances
83
Even if a 3rd party couldn't have asserted self-defense, D can assert self-defense as long as _________.
The belief was reasonable
84
What is the alter ego theory for defense of a 3rd party?
Defender may use the same degree of force in defense of a 3rd party if the tort was threatened against her
85
What is the defense of property?
The general rule is that a person may use reasonable force to defend her property
86
Before using defense of property, the owner must _____________.
make a verbal demand that the offending individual desist/leave
87
A property's owner need not provide a warning before using force to defend property if ________.
It reasonably appears that the request will be futile or that violence will occur immediately
88
The use of deadly force is prohibited in defense of property unless ______
there is imminent threat of death/serious bodily harm
89
An owner may not use a _______ device to protect her property.
Deadly mechanical
90
Privilege to _______ trumps the owner's privilege to defend her property.
Enter land
91
For defense of property, reasonable mistake is permitted as to whether:
1. Tort has actually occured
2. Verbal warning was required
3. Intruder had a privilege AND
4. D caused the mistake
92
For defense of property, reasonable mistake is NOT permitted for whether ________.
Intruder had a privilege to be on D's property (unless intruder caused the mistake)
93
What is the defense of recapture of chattels?
Right to use reasonable force to regain possession of chattels if the property owner is in "fresh pursuit" of one who has wrongfully obtained possession of chattels
94
What does it mean for a property owner to be in fresh pursuit of the tortfeasor?
Without unreasonable delay
95
Before making fresh pursuit, an owner must first make a timely demand to return the property unless:
1. Futile OR
2. Dangerous
96
The force used to recapture chattels must be _______ but not ________.
Reasonable
Deadly
97
In order to use force to recapture chattels, the initial taking must be _______.
Wrongful
98
An owner may only use force to recapture chattels from:
1. Actual tortfeasor OR
2. Another third party who is aware that the chattels were tortiously obtained
99
Can a property owner use force to reenter land?
At common law, but not at modern law
100
What is public necessity as a defense to intentional torts?
Interference with real/personal property is necessary to prevent a disaster to the community/many people
101
What is private necessity as a defense to intentional torts?
Interference w/ real or personal property in an emergency to prevent injury to herself/her property/3rd party's person/property, as long as there is no less-damaging method to prevent the harm
102
An owner whose property could be damaged from private necessity cannot prevent the exercise of this privilege if _______.
There is an emergency
103
Private necessity is a complete defense to:
1. Nominal damages
2. Punitive damages
104
Private necessity is not a defense to ______.
Actual damages; must still be payed
105
What is the shopkeeper's privilege?
A shopkeeper is allowed to detain a suspected shoplifter on store property:
1. In a reasonable manner
2. For a reasonable period of time
3. So long as she has cause to reasonably believe the detained person stole/attempted to steal
106
Under the shopkeeper's privilege, a reasonable period of time is ______
A short period long enough to determine whether the suspect actually shoplifted goods
107
A police officer will not be liable for executing an invalid arrest warrant if ________.
It appears to have been correctly issued
108
A police officer may arrest a suspect for a felony without a warrant, if the officer has reasonable belief that:
1. Felony has been committed AND
2. Suspect committed the felony
109
What force is permitted when an officer makes an arrest without a warrant?
Reasonable force necessary to make arrest
110
A police officer may only employ deadly force when _______.
The suspect poses serious threat
111
What are the requirements for a felony arrest by a private citizen?
Same as a police officer making a warrantless arrest, except that a felony must have actually been committed
112
Who can make misdemeanor arrests without a warrant?
1. Police officer
2. Private citizen
113
A misdemeanor arrest may only be done when:
1. Breach of peace AND
2. Committed in arresting party's presence
114
__________ incapacity is not a defense to intentional torts.
Legal
115
To establish a prima facie case of negligence, P must prove:
1. Duty
2. Breach of duty
3. Causation
4. Damages
116
What is a duty of care?
Legal duty requiring D to act according to a certain standard to protect P against an unreasonable risk of injury
117
Who is a duty of care owed to?
All foreseeable victims
118
Under the majority view, a plaintiff is foreseeable if ________.
A reasonable person would have foreseen a risk of injury
119
Under the minority view, a plaintiff is foreseeable if ________.
Everyone is a foreseeable plaintiff
120
Who is a foreseeable plaintiff when a rescue occurs?
Rescuee, not the rescuer
121
At what stage does a human become eligible for a duty of care?
Viable fetus
122
What is a basic standard of care... standard?
Reasonable person acting under similar circumstances
123
Only __________ disabilities affect the reasonable person standard.
Physical, not mental
124
How does intoxication affect the reasonable person standard?
Irrelevant
125
How does being a minor affect the reasonable person standard?
What would a reasonable person of that age, experience, and intelligence do under similar circumstances
126
If a child engages in an activity that is normally _____, the child will be held to the reasonable standard of care an adult would exhibit.
Pursued only by adults
127
Children under the age of _______ are incapable of negligence.
Four
128
What is the tender years doctrine?
Minor less than seven cannot be found negligent.
Applied in very few jurisdictions
129
How does custom affect the reasonable person standard?
Evidence is admissible but not conclusive
130
How does emergency affect the reasonable person standard?
Must act as a reasonable person would if confronted with the same emergency
131
How does superior knowledge affect the reasonable person standard?
If a person has a higher degree of knowledge than the average person, that person must use this higher level when acting
132
Is there a legal duty to act?
Generally, no.
133
A legal duty to act will be found where there is:
1. Voluntary assumption of care
2. Creation of peril
3. Relationship between parties
134
Where there is a voluntary assumption of care, there is an obligation to _______.
Act with a reasonable standard of care
135
Where D creates peril, there is a duty to _____.
Assist
136
Common carriers have a duty to ____.
Customers
137
Innkeepers have a duty to _____.
Guests
138
Shopkeepers have a duty to ______.
Customers
139
Prison officers have a duty to _______.
Prisoners
140
When has D breached her duty of care?
When D fails to conform her conduct to the applicable standard of care
141
The negligence per se doctrine applies when _________.
A safety statute has a sufficiently close application to the facts of the negligence case before the court
142
In order for a security statute to apply to the facts and trigger negligence per se, what are the requirements:
1. P is part of a class of persons protected by statute AND
2. Statute intended to prevent against a particular type of harm suffered by P
143
An unexcused violation of a safety statute conclusively establishes that D was _______. However, P must still prove _______ and _______.
Negligent
Causation and damages
144
D's compliance with a security statute does not necessarily establish ________.
Due care
145
Excused violations of security statutes occur when:
Compliance
1. Would cause more harm than violation OR
2. Is beyond D's control
146
Res ipsa loquitur applies when _____.
P doesn't have direct evidence of D's negligent conduct
147
What are the requirements of res ipsa loquitur?
1. No direct evidence as to D's conduct
2. Accident doesn't occur without someone's negligence AND
3. Instrument is within D's exclusive control
148
What is the result of the doctrine of res ipsa loquitur?
P is treated as having produced enough evidence of D's negligence to get the case to the jury
149
What is cause in fact?
The link between the injury to P and D's injury of the duty of care
150
What is the "but for" test?
But for the breach of duty by D, P would not have been injured.
151
The but-for test also applies to concurrent causes when ___________.
Neither act alone would have been sufficient to cause the injury
152
When there are joint causes, each of which would have been sufficient by itself to cause the injury to P, apply the ______ test.
Substantial factor test
153
What is the substantial factor test?
As long as one of the causes was a substantial factor in bringing about P's injury, it will be considered a cause-in-fact.
154
If both concurrent causes are substantial factors, then _______.
The Ds will be jointly liable
155
If multiple parties breached the duty of care, but it can't be proved which one caused P's injury, then:
Unless proven otherwise, both are liable. Burden shifts to D.
156
The doctrine of proximate cause is _________.
Philosophical connection which limits liability to consequences that bear some reasonable relationship to D's conduct so as not to offend notions of common sense, justice. and logic.
157
What is the foresight approach?
Were the particular damages foreseeable at the time D acted? If yes, then proximate cause.
158
What is the process for the foresight approach?
1. Why was D negligent?
2. Was the injury suffered within the foreseeable risk at the time D acted?
159
When is D's conduct the direct cause of P's injury?
Where there is an unbroken chain of events from negligence to harm.
160
Where D's conduct is direct cause of P's injury, D is liable unless _________.
The injury wasn't a foreseeable harm of the risk created by D's negligence
161
When is D an indirect cause of P's injury?
An affirmative intervening force breaks the chain from D's negligence to P's injury
162
D is liable for all damages caused by ______ intervening events stemming from her negligence.
Foreseeable
163
______ malpractice is always foreseeable negligence?
Medical
164
Negligence of ______ is always foreseeable negligence.
Rescuers
165
Reactions to _________ are always foreseeable negligence.
D's actions
166
Subsequent _____ and ______ are always foreseeable negligence.
Disease
Accident
167
D is not responsible for the negligent superseding acts of _______.
Third parties
168
A tortfeasor will only be held liable for criminal acts of third parties if ______.
The tortfeasor should have realized the likelihood of the crime at the time of her negligence
169
D is never liable for acts of _______.
God
170
What are personal injury damages?
P will be compensated for all past, present, and prospective damages, both economic and noneconomic
171
What is the rule for thin-skulled victims?
D takes P as she finds her; foreseeability i not required for the extent of harm
172
What are property damages?
1. Reasonable cost of repair OR
2. If property has been totaled/destroyed, FMV of property at time of the accident
173
Punitive damages are available only if _________.
D's conduct was reckless, malicious, or willful/wanton
174
Punitive damages are not available in ordinary _______ cases.
Negligence
175
What is the duty to mitigate?
P has an affirmative duty to take reasonable steps to mitigate damages
176
What is the collateral source rule?
P collects damages from a collateral source (such as loss insurance or health insurance)
177
What happens if P contributed negligence?
P is completely barred from recovery
178
What is the Last Clear Chance doctrine?
If D had an opportunity to prevent the harm just before the accident and did not, P is not barred from recovery.
179
Contributory negligence is not a defense to __________ torts.
Intentional
180
What effect does comparative negligence have?
P's negligence is not a complete bar, but rather reduces the amount of P's recovery by percentage of contribution
181
There is partial comparative negligence, when ____________.
P assigned more than 50% of the negligence
182
What happens if there is partial comparative negligence?
P is barred from recovery
183
Under pure comparative negligence, then __________.
P can recover no matter how great her comparative negligence is
184
P cannot recover if P voluntarily consented to a _______ risk.
Known
185
When is there implied assumption of risk?
P assumes risk by her conduct
186
When is there express assumption of risk?
P expressly agrees with D in advance of any harm that P won't hold D liable
187
Assumption of risk is not a defense to _________ torts
Intentional
188
Landowners don't have any duty to protect those off the premises for ___________.
Natural conditions on the premises
189
Even though a landowner is not liable for the natural condition on premise, they are liable for _______________.
Damage caused off the premies by natural conditions on the premises
190
Landowners have a duty of reasonable care for ______________ artificial conditions.
unreasonably dangerous
191
A landowner must conduct activities on her land in what manner?
A manner that will avoid unreasonable harm to those outside the property
192
If a landowner owes any duty, she may satisfy the duty of reasonable care by:
1. Making the condition safe OR
2. Issuing a warning of the dangerous condition
193
Who are licensees?
People who entered land with owner's consent but who doesn't have a business purpose for being there (aka social guests)
194
What duty does a landowner owe to a social guest in regards to activities on the property?
Reasonable care
195
What duty does a landowner owe to a social guest in regards to unknown concealed dangers?
No duty to inpect
196
What duty does a landowner owe to a social guest in regards to known concealed dangers?
Duty to warn
197
Who is an invitee?
1. A person invited onto the land to conduct business with the owner OR
2. A person invited as a member of the public for purposes of which the land is held open to the public
198
What duty does a landowner owe to invitees in regards to known concealed dangers?
Duty to warn
199
What duty does a landowner owe to invitees in regards to activities on the property?
Reasonable care
200
What duty does a landowner owe to invitees in regards to unknown concealed danger?
Duty to inspect land with reasonable care
201
The main difference between a landowner's duty to a licensee vs. an invitee is _________.
For invitee, duty owed to inspect property for hidden dangers
202
A landowner owes no duty of care to what persons?
Undiscovered trespassers
203
There is a duty owed to ________ or ________ trespassers
Anticipated
Expected
204
If a landowner knows of a trespasser's presence, what duty does the owner owe regarding activities on the land?
Reasonable care for the trespasser's safety
205
If a landowner discovers a trespasser, she has a duty to warn the trespasser of any condition that is:
1. Artificial
2. Highly dangerous
3. Hidden AND
4. Known to landowner
206
What standard do landowners owe to children when it comes to activities on the land?
Reasonable care
207
What standard do landowners owe to children when it comes to natural conditions of the land?
No duty unless licensee or invitee
208
What is the attractive nuisance doctrine?
A landowner must exercise reasonable care to avoid a reasonably foreseeable risk of serious harm to children caused by attractive artificial conditions.
209
An owner is liable under the attractive nuisance doctrine if:
1. Dangerous artificial condition owner is/should be aware of
2. Owner knows/should know children are likely to trespass
3. Condition is likely to cause injury
4. Children unaware of the danger
5. Risk to children substantially outweighs expense of eliminating danger AND
6. Owner fail to exercise reasonable care
210
What is the firefighter's rule?
Public safety personnel preforming safety duties can never recover for injuries caused by the inherent risks of their jobs
211
Claims for Negligent Infliction of Emotional Distress are brought by parties who were _______________.
Not directly physically harmed a a result of the breach
212
The duty to avoid causing negligent infliction of emotional distress to another is breached when:
1. P was in zone of physical danger created by D's negligent conduct OR
2. Special relationship between P & D
213
In most jurisdictions, negligent infliction of emotional distress is only found if there are __________ consequences.
Physical
214
In most jurisdictions, negligent infliction of emotional distress is only found if there are physical consequences - unless there is:
1. Erroneous report of relative's death OR
2. Mishandling of a relative's corpse
215
A bystander's fear for others' safety can be grounds to collect damages for negligent infliction of emotional distress if:
1. P was present at the scene
2. P observed or perceived the injury AND
3. P & injured party are closely related
216
What is strict liability?
Liability regardless of culpability or fault
217
The owner of livestock is strictly liable for physical damage caused when these animals ______
Trespass onto another's land
218
Animal owners are not strictly liable for the physical harm caused by trespassing animal if they are:
1. Cats
2. Dogs
219
Owners of _____ or _____ animals are strictly liable for any harm caused by that animal's _______ nature.
Wild or abnormally dangerous
Dangerous
220
A wild animal is _______.
One that belongs to a category of animals that have not been generally domesticated
221
For the owner of a wild animal to be held strictly liable, the injury must result from _________.
A dangerous propensity that is typical of the wild animal in question
222
Injuries caused by domestic animals don't give rise to strict liability unless _________.
The owner knows or had reason to know that the animal is dangerous
223
A person is strictly liable for any harm that occurs while engaging in a __________ activity.
Abnormally dangerous
224
A person is strictly liable for any harm that occurs while engaging in an abnormally dangerous activity, so long as the harm results from _____________.
The kind of risk that made the activity abnormally dangerous in the first place
225
_________ precautions taken by D are completely irrelevant while engaging in abnormally dangerous activities
Safety
226
Under the 6th Restatement, what are the factors to be considered when determining whether an activity is "abnormally dangerous?"
1. High risk
2. Of serious harm
3. Risk can't be eliminated
4. Activity not common
5. Activity not appropriate for place AND
6. Danger outweighs value
227
Under the 3rd Restatement, an activity is abnormally dangerous if:
1. Activity creates a foreseeable risk of significant harm even when reasonable care is exercised AND
2. Activity is not one of common usage in the community
228
Liability for abnormally dangerous activities only extended to the kind of risks that __________.
Make the activity abnormally dangerous in. thefirst place
229
D will not be liable for harm resulting from abnormally dangerous activities that occurs in a _________ manner
Unforeseeable
230
How does comparative negligence affect strict liability?
P's recovery is still reduced by her degree of negligence
231
How does contributory negligence affect strict liability?
Contributory negligence does not bar P from recovering under strict liability
232
How does the assumption of risk affect strict liability?
P cannot recover
233
A seller of a product is strictly liable for injuries caused by __________.
Defective products
234
Which persons are subject to strict liability for harm caused by defective projects?
Someone engaged in selling/distributing products who sells/distributes a defective product
235
Anyone who is part of _____________ is subject to strict product liability, regardless of which party is actually at fault.
The distribution chain
236
_______ sellers cannot be held strictly liable for product liability.
Casual
237
When does a product fall within the requirements of product liability?
1. The product is defective OR
2. The manufacturer failed to give adequate warning for nonobvious risks
238
For purposes of product liability, a manufacturing defect is _______.
A product that deviates from the norm of production in a way that makes it more dangerous, even though all care was exercised
239
For purposes of product liability, what is a design defect?
All products are the same, but they bear a feature whose design is itself defective and unreasonably dangerous
240
Liability for design defect is limited to what?
Foreseeable risk of harm posed by the product
241
What is the consumer expectation test?
P must show that a product failed to perform as safely as ordinary consumer would expect
242
In addition to intended uses, D must anticipate ____________.
Reasonable misuses
243
What is the risk-benefit test?
To prove a design defect, P must how that D could have made a safer product without serious impact to the product's price/utility
244
What are the elements of the risk-benefit test?
1. There is a safer alternative design
2. There is an economically effective alternative design AND
3. The alternative design is practical to consumer
245
Even if a product is properly designed and manufactured, D will still be liable if:
1. The product has non-obvious, foreseeable risks AND
2. Manufacturer fails to give adequate warnings/instructions regarding correct usage
246
When must a defective condition exist for product liability to exist?
When the product left D's hands
247
The manufacturer is presumed to be the actual cause of a product defect if __________.
The product went through the ordinary channels of commerce
248
What is the doctrine of res ipsa loquitur (as relates to product liability)?
Harm sustained by P was caused by a defect existing at distribution when:
1. Ordinarily occurs as a result of a product defect AND
2. No other cause is identified by D
249
If there is a foreseeable misuse of a product, D must either:
1. Take reasonable design precautions OR
2. Warn the purchaser against such misuse to avoid liability
250
Who can sue based on products liability?
Any foreseeable plaintiff, even if no contractual relationship exists
251
What happens if a product is noncompliant with safety statutes?
Renders the product defective, actual defects aside
252
What happens if a product is compliant with safety statutes?
Nondeterminative evidence against defect
253
Manufacturers are not strictly liable for ________ products.
Unavoidably unsafe
254
_______ negligence is a defense to strict products liability; _________ negligence is not.
Comparative
Contributory
255
Assumption of ______ is a defense to strict product liability.
Risk
256
What effect do disclaimers and waivers have on strict product liability?
Absolutely none
257
A sale of goods may include ______ implied warranties.
Two
258
What is the implied warranty of merchantability?
Goods sold by merchants must be fit for their ordinary purpose
259
The implied warranty of merchantability limits the definition of merchants to those who:
1. Are sellers in business AND
2. Regularly sell the kind of goods at issue
260
The disclaimer of an implied warranty of merchantability must be ________.
In different print/font from the rest of the contract
261
What phrases effectively eliminate implied warranties?
1. "As is"
2. "With all faults"
262
Merchants can limit remedies unless _____.
Doing so would be unconscionable
263
A merchant's limitation of remedies is prima facie unconscionable when ________.
Breach of warranty on consumer goods causes personal injury
264
If a buyer has a particular purpose for purchasing goods that a seller is aware of, then _________.
The goods must be fit for that particular purpose
265
Who can bring an action for breach of implied warranties?
1. Buyer
2. Her family
3. Her household
4. Her guests
266
D will be liable when a product does not satisfy some ________ representation
Affirmative
267
How can express warranties arise?
1. Statement of fact
2. By promise
3. By conduct
268
Statements of ______ are not express warranties.
Opinion
269
Disclaimer of express warranty is only effective if ________.
It is consistent with the warranty
270
When will a seller be liable for a misrepresentation of a material fact?
1. Misrepresentation of material fact AND
2. Seller intended to induce reliance
271
What is defamation?
Injury to a person's reputation
272
The common law elements of defamation are:
1. A defamatory statement...
2. referencing P...
3. published by D to a third person AND
4. damaging P's reputation
273
When is a statement defamatory?
Harms P's reputation
274
Mere _______ or _________ aren't sufficient for defamation.
Insults
Name-calling
275
Can a deceased person be subject to defamation?
No
276
Can corporations be defamed?
Yes, but only if:
1. The statement prejudices the corporation in its course of business OR
2. Deters others from dealing with the corporation
277
Publication of defamation is defined as __________.
Seen/heard by someone other than P
278
What mental state is required for publication of defamation?
1. Intent OR
2. Negligence
279
What is libel?
Defamation published in durable (aka written) form. Can be physical or digital.
280
Does P need to show damages in a libel action?
No
281
What is slander?
Defamation published in fleeting form (aka speech)
282
What is slander per se?
P doesn't need to show damages to succeed
283
What are the four types of slander per se?
Alleging that P has...
1. Crimes of moral turpitude
2. Loathsome disease
3. Sexual misconduct
4. P's conduct in business, profession, trade, or office
284
If there is no slander per se, P must show ___________ to prevail in a slander action.
Economic harm
285
Constitutional issues with defamation arise when:
1. Refers to a public figure OR
2. Involves a matter of public concern
286
In addition to typical defamation requirements, defamation claims where P is a public figure require:
1. Defamation is false AND
2. Fault by D
287
Who has the burden of proof of showing that defamation is false (re: public figure defamation)?
Plaintiff
288
In defamation actions brought by public officials/figures, there is fault by D if:
1. Knowledge that statement is false OR
2. Reckless disregard for finding truth
289
In defamation actions brought by private person that involve public concern, P must show ________ to prove fault by D.
Negligence
290
What are the defenses to defamation?
1. Consent
2. Truth
3. Absolute privilege
4. Qualified privilege
291
What is the consent defense to defamation?
If publication takes place with P's consent, then D has complete defense
292
What is the truth defense to defamation?
If a statement is factually accurate, D has a complete defense to defamation
293
What is the husband & wife privilege for defamation?
Any communication between husband and wife is absolutely privileged
294
Any statements during a _____ proceeding are absolutely privileged.
Judicial
295
Statements made by _____ while acting in their official capacity are absolutely privileged
Government officials
296
One who is required by law to _________ is absolutely privileged in that action.
Publish a defamatory matter
297
Qualified privilege is based on the _________ or _________ of the remarks.
Circumstances
Occasion
298
Qualified privilege will be lost if ________.
Abused
299
When is there actual malice that causes the loss of qualified privilege?
1. D knew the statement was false when made OR
2. D acted in reckless disregard as to whether it was true
300
A qualified privilege is forfeited if the primary purpose of the statement is __________.
Something other than protecting the interest for which the privilege is given
301
D will lose qualified privilege if there is excessive publication, meaning:
1. Made to people to whom publication wasn't reasonably necessary OR
2. More damaging info than reasonably necessary
302
There is qualified privilege when reporting on ________.
Public proceedings
303
There is qualified privilege to protect ______ or _______ interests.
Publisher's
Recipient's (based on request)
304
When people with a common interest in a particular subject matter reasonably believe that there is __________, there is qualified privilege.
information that someone sharing the common interest is entitled to know
305
There is qualified privilege for communications made to those who act _________.
In the public interest
306
The tortious invasion of privacy can occur via:
1. Appropriation
2. Intrusion
3. Publicity of private life AND
4. False light
307
What is appropriation?
1. The unauthorized use of P's name/picture of D...
2. for D's own benefit
308
What is the most common version of appropriation?
Use of P's name/likeness to advertise D's buiness/product
309
What is the major exception to appropriation?
Newsworthy use
310
What is newsworthy use?
Use of P's name/likeness in connection with matters of legitimate public concern
311
Intrusion occurs when:
1. P's solitude is intruded upon by D...
2. in a manner that would be highly offensive to a reasonable person
312
Intrusion must take place in a place where _________.
There is a reasonable expectation of privacy
313
Publicity of private life occurs when:
1. D has publicized the details of P's private
2. The effect must be highly offensive to a reasonable person of ordinary sensibilities AND
3. The matter isn't of legitimate concern to the public
314
TO find publicity of private life, the information published must truly be ______.
Private
315
What distinguishes false light from publicity of private information?
Publicity of private life is based on true information
316
What is the one exception to the publicity of private information?
Newsworthy use
317
False light occurs when:
1. D places P before the public eye...
2. In a false light...
3. That would be highly offensive to a reasonable person
318
Where there is false light, P may recover damages for both ______ and ______ damages.
Social
Emotional
319
How is false light distinguished friom defamation?
1. Defamation allows the recovery of economic damages only
2. Defamation only requires publication to one person; false light requires widespread dissemination
320
False light does not have to be ________.
Defamatory
321
What are the defenses to invasion of privacy?
1. Newsworthy use
2. Consent
3. Absolute & qualified defamation privilege
322
What is public nuisance?
Interference with a right common to the general public
323
What are the elements of public nuisance?
1. Substantial harm required AND
2. Injury to the public at large
324
For a private party to recover for. public nuisance, P must show that _________.
She recovered unique damage not suffered by the public at large
325
What is a private nuisance?
A substantial and unreasonable interference w/ P's use/enjoyment of her land
326
What are the elements of private nuisance?
1. P has immediate right to possess property
2. Interference is substantial
3. Unreasonable interference w/ use/enjoyment of land
4. D's conduct is negligent, abnormally dangerous, or intentional
327
When is a private nuisance unreasonable interference with enjoyment of land
1. Harm to P outweighs utility of D's conduct OR
2. Harm to P greater than required to bear without compensation
328
What remedies are available for nuisance?
1. Damages
2. Injunctive relief
3. Self-help abatement
329
Self-help abatement is only available as a remedy for private nuisance after:
1. Notice to D AND
2. D's refusal to act
330
Assumption of _______ is a defense for nuisance as it is for tort actions.
Risk
331
What is coming to the nuisance?
P purchased/leased property with advance knowledge of nuisance
332
Is coming to the nuisance a defense?
Only if P came to the nuisance for the sole purpose of bringing the lawsuit
333
What if third parties contribute to a nuisance?
Not a bar to D's liability for her own contribution
334
What is vicarious liability?
Tortious act of one person may be imputed to another based on the relationship between two parties
335
What is the doctrine of respondeat superior?
If an employee commits a tort in the scope of her employment, her employer will be vicariously liable
336
A tort is considered in the scope of employment if _______.
The employee was acting with the intent to further her employer's business purpose
337
What is a frolic and detour?
Personal errand from scope of employment
338
What part of a frolic and detour is within the scope of employment?
1. At common law, the return trip
2. At modern law, the whole thing - if the deviation was reasonably foreseeable
339
An employer is generally not vicariously liable for __________ torts of employees.
Intentional
340
Employers will be viable for intentional torts of employees if:
1. Specifically authorized by employer
2. Nature of employment
3. Motivated by desire to serve the employer
341
In addition to vicarious liability, employers will be liable for their negligence in:
1. Hiring
2. Supervision
342
If someone hires an independent contractor, are they liable for that contractor's torts?
No
343
What distinguishes employees from individual contractors?
The employer has the right to control/direct only the result of the work, not what will be done/how it will be done
344
What is behavioral control?
Control over a worker's action; suggests employee
345
What is financial control?
Control over financial aspects of work; suggests employee
346
Determining whether an individual is an employee or contractor will require a thorough analysis of _________.
The specific facts of each situation
347
Under what exceptions will an employer be liable for independent contractors?
1. Employer was negligent in hiring/supervising
2. Duties are too important to be delegated
3. Inherently dangerous activity
348
General partners and joint ventures are vicariously liable for the tortious conduct of another member that is:
In the scope and course of the affairs
349
The owner of a car is only vicariously liable for the torts of the driver if:
1. Immediately family/household driver
2. Driver acting on owner's behalf
3. Negligent entrustment to an unsafe driver
350
At modern law, what limits the liability of parents for intentional torts of their children?
1. Minor children
2. Limited dollar amount (e.g. $5K)
351
Commercial alcohol sellers will not be liable unless there is ________.
a Dramshop act
352
What is a Dramshop act?
Alcohol-sellers are liable for the deaths/injuries as a result of alcohol-related car crashes
353
What is joint and several liability?
If more than one person is a proximate cause of P's injury and the harm is indivisible, each D is liable for the entire harm.
354
Under joint & several liability, if the harm is divisible, then each D is liable for _____.
Her identifiable portion of the harm
355
If multiple Ds are liable under joint & several liability, P cannot ________.
Recover twice
356
Under joint & several liability, the release of one D is the release of all Ds, but not _______.
Under modern statutes
357
What is contribution?
Under joint and several liability, the entire amount can be collected from any one of Ds, who can then seek to recover a proportional share of damages from other Ds
358
What is indemnity
Shifting of liability from one D to another as opposed to sharing as in contribution
359
If A i vicariously liable for B' conduct, A will be liable to the injured party; B will then be required to ________.
Fully indemnify A
360
If a non-manufacturer is held liable under strict product liability, the non-manufacturer will be able to get indemnity from _________.
Others higher up the distribution chain.
361
Parties may expressly agree to shift liability via _________.
Contract
362
What are survival statutes?
Allow P's cause of action to survive her death.
363
Do survival statutes apply to torts resulting in personal injury?
Yes
364
Do survival statutes apply to torts to property?
Yes
365
Do survival statutes apply to torts invading intangible personal interests?
No
366
What are wrongful death statutes?
Allow recovery for pecuniary injury resulting to the victim's spouse or next of kin
367
What family members CANNOT recover for wrongful death?
Children recovering for deceased parents
368
What are loss of consortium damages?
Deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor.
369
Los of consortium damages apply to ______, not just ______.
All torts
Negligence
370
Give examples of loss of consortium damages?
1. Loss of household services
2. Loss of society
3. Loss of sexual relationship
371
What are the elements of intentional misrepresentation?
1. Misrepresentation of material fact
2. Scienter
3. Intent to induce P's reliance on misrepresentation
4. Justifiable reliance by P
5. Cauation by P
6. Damages
372
What is scienter?
Knowledge that a statement is false or reckless indifference to the truth
373
What are the elements of negligent misrepresentation?
1. Misrepresentation in business or professional capacity
2. Breach of duty to P
3. Justifiable reliance by P
4. Causation
5. Damages
374
Recovery for intentional misrepresentation is limited to actual ________ loss.
Pecuniary
375
Recovery for negligent misrepresentation is usually limited to _________.
Pecuniary loss
376
What is interference with business contract?
Cause of action against those who improperly interfere with the performance of a contract between another and a 3rd person
377
What are the elements of interference with contract?
1. Valid contract or business expectancy
2. Knowledge by D of the business relationship
3. Intentional interference
4. Causation
5. Damages
378
What is misuse of legal procedure?
Protects P's right to not be subjected to unwarranted judicial proceedings
379
The elements of a prima facie case for malicious prosecution are:
1. D initiated criminal proceedings against P
2. Terminated in favor of P
3. No probable cause
4. Improper purpose
5. Damages
380
Most jurisdictions have extended the doctrine of malicious prosecution to cover _________ as well.
Civil cases
381
What is abuse of process?
Use of various litigation devices during criminal or civil proceedings for an improper purpose.
382
What are the elements of a prima facie case of abuse of process?
1. Wrongful use of litigation devices for ulterior improper purpose AND
2. Definite act/threat against P to accomplish ulterior improper purpose
383
What family immunities were recognized at common law?
1. Spouses
2. Parent-child
Most states have abolished both
384
Sovereign immunity prevents P from ___________.
Bringing suit against the government
385
What torts can the US government be held liable for?
1. Assault
2. Battery
3. False imprisonment
4. False arrest
5. Malicious prosecution
6. Abuse of process
7. Libel
8. Slander
9. Misrepresentation
10. Deceit
11. Interference with contract rights
386
The federal government is not liable for any actions taken within its _______ functions.
Discretionary
387
While federal, state, and local governments are all traditionally immune from liability, most governments __________.
Waive that immunity
388
What is charitable immunity?
Common law used to have immunity from tort claims; not in modern law
