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MBE Flashcards > Torts > Flashcards

Torts Flashcards

1
Q

Nelgigence opening paragraph for essays

A

Negligence require that the P show:

  1. a duty on the party of D to conform to a specific standard of care to protect the P from an unreasonable risk of injury
  2. D breached that duty
  3. the breach was the actual and proximate case of P’s injury
  4. and damages to the P’s person or property.

Whenever a person engages in an activity, they are under the legal duty to act as a reasonably prudent person acting under similar circumstances.

The duty is owed to foreseeable plaintiffs.

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2
Q

respondeat superior

A

Under respondeat superior, an employer is vicariously liable for torts committed by their employee within the scope of employment.

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3
Q

Battery

A

Battery requires that the plaintiff show:

  1. an act by D that brings about a harmful or offensive contact to the P’s person
  2. intent on the D’s part to bring about the harmful or offensive contact
  3. and causation.

*Intent requires that the D act with the desire to produce harmful or offensive contact. *

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4
Q

What duty does a property owner owe to people adjacent to their property?

A

Property owners have a duty to exercise **reasonable care with respect to activities on the land to avoid unreasonable risk to those adjacent to the property. **

To be owed this duty, **Ps outside the property must be foreseeable. **

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5
Q

eggshell doctrine

A

Under the eggshell doctrine, a D is liable for injuries caused by their negligence even if the victim has an unforeseeable special sensitivity.

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6
Q

Transferred Intent

A

Under transferred intent, D has intent to commit a tort BUT D commits:

different tort against that same person -or-
same tort against a different victim

then D is liable for the actual tort D committed

only applies to
* battery
* assault
* false imprisonment
* trespass to land
* trespass to chattels

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7
Q

assault

A

Assault requires that the plaintiff show:

  1. an act by D creating reasonable apprehension in the plaintiff
  2. of an *immediate *battery
  3. intent on the D’s part to create reasonable apprehension in the plaintiff
  4. and causation.

Words alone are insufficient to create reasonable apprehension.

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8
Q

false imprisionment

A

P must show:
1. an act or omission by D that confine or restrain P to a bounded area
2. intent of D’s part to confine or restrain P
3. causation

**P must be aware of confinement **

–Ex: lock bedroom door while you sleep, but then unlock it. Sleeping person didn’t know they were confined so no false imprisonment.

**There must be NO REASONABLE means of escape known to P
Way out cannot be: **
Dangerous
Disgusting
Humiliating
Hidden

Failure to act can constitute restraint if legal duty to do so –ex: flight attendants don’t get a wheelchair for disabled person to leave plane

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9
Q

intentional infliction of emotional distress

A

**P must show:

  1. D’s act is extreme and outrageous
  2. and that is caused P SEVERE emotional distress**
  3. D’s conduct must be at least *reckless *as to intent.

Extreme and outrageous conduct exceeds all bounds of decency tolerated in a civilized society.

Mere insults are not enough.

**BUT conduct that is normally not outrageous can be if **

* Conduct is repetitive
Ex: debt collection by harassment calling every night at 3am

* Defendant is common carrier or innkeeper

* P is member of fragile class
Young children
Elderly
Pregnant women

*** Targeting P’s known sensitivity **

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10
Q

trespass to land

A

P must show:
1. physical invasion
2. of P’s real property

The invasion can be by person or object.

Real property includes air above/soil beneath to reasonable distance.

Intent must only be to enter the property–P does NOT need to know that the property belongs to another.

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11
Q

trespass to chattels

A

P must show:
1. An act by defendant interfering with plaintiff’s right of possession in the chattel,
2. D’s intent to perform the act that led to the interference
3. causation
4. damages

D’s intent to trepass does not matter.

D must pay the cost to to repair chattel.

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12
Q

conversion

A

P must show:
1. An act by defendant interfering with plaintiff’s right of possession in the chattel,
2. D’s intent to perform the act that led to the interference
3. causation
4. damages

D’s intent to trepass does not matter.

The interference must be so serious that it warrants D pay propoerty’s whole value

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13
Q

Broadly, what are the Defenses to Intentional Torts

A
  1. consent
  2. protective privleges
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14
Q

Consent

A

Consent is defense to all intentional courts

P must have legal capacity to consent.
A person with limited capacity can consent to some things. Ask- are their minds sophisticated enough to consent to X?

**Two Types of Consent: **

  1. Express Consent
    Words giving permission - oral or written
    EXCEPTION: fraud or duress

2. Implied Consent

Social Custom + Usage
Going to a place where touching usually happens
Playing on a contact sports team
Going on the NY subway

**Body Language Consent - must be a reasonable interpretation **
Amorous situations where a person’s body language indicates they are open to affectionate touching – must be reasonable interpretation.

Scope of Consent
Exceeding scope results in liability
Ex: go to surgeon and they extend the surgery to a place patient didn’t consent to

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15
Q

Self-defense

A

To use self-defence:

  1. D must reasonably perceive a threat of injury from P.
  2. Requires proper timing - threat’s immediacy is required. D cannot engage in preemption or revenge.
  3. Requires D to reasonably believe that the threat is genuine.
  4. Reasonable Force is permitted- limited to force necessary under the circumstances.
  5. Majority Rule: No duty to retreat. Minority: duty to retreat is possible, unless actor is in D’s home.
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16
Q

Defense of Property

A
  • Requires D to reasonably believe that the threat is genuine.
  1. Reasonable Force is permitted- limited to force necessary under the circumstances.

NO USE OF DEADLY FORCE TO PROTECT PROPERTY!!!

  • Force may be used to recapture a chattel only when in “hot pursuit” of one who has obtained possession wrongfully (not borrowing).
  • A landowner usually must make a request to desist before defending her property. A request is not required if the circumstances make it clear that the request would be futile or dangerous.
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17
Q

Shopkeeper’s Privilege:

A

Shopkeep can detain someone they think stole from their store.

*Requires reasonable (1) suspicion (2) length of time, (3) manner.

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18
Q

Necessity Defense to trespass to land, chattels, and conversion.

A

A person may interfere with property of another when the interference

(1) reasonably necessary to avoid injury

-AND-

(2) injury is more serious than invasion undertaken to avoid it.

Public Necessity is and ABSOLUTE defense :
* D acts in emergency to protect community

Private Necessity is a LIMITED defense:
* D acts in emergency to protect his OWN interest
* D has a right to enter, BUT can only stay as long as the emergency continues.
* D must also pay for any injury they cause.

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19
Q

Standard of care for negligence by mentally / physically disabled people and drunk people

A

Even mentally disabled and drunk people need to live up to the reasonably prudent person.

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20
Q

Exceptions where the reasonably prudent person standard incorporates specific charactersitic

A

**Superior Skill of Knowledge: **
* Hypothetical reasonably prudent person with same superior skill or knowledge.

Physical Characteristics Where Relevant
* Where RELEVANT, incorporate D’s physical characterics
* Reasonably prudent person who is - super tall, blind, deaf.

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21
Q

Standard of care owed by Children

A

Under 5: no standard- cannot be liable for negligence

Age 5-18: D owes a standard of care that a hypothetical child of similar age, experience, and intelligence would exercise under similar circumstances

EXCEPTION:
If a child is engaged in ADULT ACTIVITY, the child owes a** standard of care that a reasonably prudent person** would exercise **under similar circumstances. **

Most common: operating a motorized vehicle (boat, farm equipment, car, jet skis, snowmobiles)

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22
Q

Standard of care owed in Malpractice cases

A

When D is a professions, D owes a standard of care that a AVERAGE (not reasonable) **member of profession providing similar professional service **

Expert witness within the same specialty from anywhere in the country is often used to educate the jury on professional custom.

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23
Q

Standard of care owed by possesors of land on their premises

A

They duty of care owed by a posessor of land to. a plaintiff on their premises for dangeorus conditions, depends of the plaintiffs status.

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24
Q

unknown trespasser

A

No duty owed to an unknown trespasser from dangerous conditions on the land.

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25
Q

Known/Anticipated Trespasser

A

Duty IF the condition is:

“known + man-made + death + trap”

  1. Artificial
  2. Highly dangerous
  3. Concealed from the trespasser
  4. Known by the possessor
26
Q

Licensee

A

A licensee enters land with permission but without financial benefit to the possessor.

EX: a social guest, or someone who walks up to your front door

**Duty owed to licensee IF the condition is: **

“all known + traps”

Concealed from the licensee
Known by the possessor

27
Q

Invitee

A

Invitees enter the land with **permission for financial benefit of the possessor. **

EX: you are customer shopping for groceries at market

Invitees also enter land that is **open to the public at large. **

EX: you go to temple

NOTE: An invitee may lose that status if she exceeds the scope of her invitation

EX: You lose invitee status if you go through an “employees only” door.

**Duty owed to the invitee IF the condition: **

“all known or + reasonably knowable + traps on the land”

  1. Concealed from invitee
  2. Known by possessor **-OR- **could have discovered through reasonable inspection
28
Q

How to Satisfy Premises Liablity Duty

A

1. Eliminate hazard condition
Repair
Replace
Remove

**-OR- **

2. Warn about the hazard

29
Q

Premises liability duty owed to Firefighters & Police

A

NO duty owed to them for risks inherent to job

30
Q

Premises liablity duty owed to Trespassing Children

A

A landwner has a duty to reasonable care to protect trespassing children from artificial hazards on the land.

P must show:

  1. landowener knows or should know dangerous condition on the land **+ **children will trespass
  2. condition is likely to cause injury because child’s inability to appreciate the risk
  3. expense to remedy situation is slight compared to potential harm to child
31
Q

Statutory Standard of Care (negligence per se)

A

A duty imposed by statute for a criminal penalty can replace common law duty of care if:

  1. the P is within the protected class
  2. the statute is designed to prevent the type of harm P suffered

Violation of statute establishes duty & breach.

Jury still needs to determine causation and damages.

EXCEPTIONS

**Statutory Standard of Care is NOT used if compliance with statute would have been: **
* **more dangerous ** or
* **impossible **

32
Q

affirmative duty to act

A

**Generally NO duty to act affirmatively, so NO duty to rescue ** **

**If choose to act, must do so as *reasonably prudent person under circumstance *

A person who voluntary rescues will be liable for negligent rescue; BUT some states had “good samaritan laws” that insulate negligent rescuers from liability

EXCEPTION- DUTY TO AID OR ASSIST (not rescue) exists when:

1. Pre-existing relationship between parties
2. D caused the peril

33
Q

negligent infliction of emotional distress

A

A duty to avoid negligent inflicton of emotional distress is **breached when D creates a forseeable risk of physical injury to the P. **

In an “near miss case”
P must show:

(1) P was in “zone of danger”

(2) P suffered physical symptoms from the distress

In a “Bystander case:
P must show:

(1) P and person injured are closely related

(2) P present at the scene of injury

(3) P observed event

In a “special (usually business) relationship case”
P must show:

(1) P & D must be in a special relationship (usually business)

(2) it was highly foreseeable that careless performance by D will produce emotional distress

EX:
patient/medical lab
you have cancer, patient sad, but lab then realizes they were wrong, false positive

34
Q

Res Ipsa Loquitur

A

Res Ipsa Loquitur is used by P without information about D’s breach.

P must show:
**(1) Accident is normally associated with negligence

**(2) Accident would normally be due to negligence of someone in D’s position **

Second element is often shown by evidence that D had exclusive control of the item.

Establishing res ipsa loquitur means **no directed verdict → case goes to the jury. **

35
Q

Merged Causes –> Substantial Factor Test

A

There is a merged cause when multiple Ds acting independently each commit a breach combining into single harm.

EX: one D sets fire (A) and another D sets fire (B), and the fires merge into a fire - fire (AB).

**The substantial factor test is used to detemrine actual cause. **

D liable if breach contributed in significant/substantial way to ultimate injury

Ds held jointly and severally liable

36
Q

Unascertainable Cause

A

An Unascertainable Cause occurs when there **TWO acts **, but only one caused injury, but **unknown which one. **

**Burden of proof shifts to D to show that his negligence was not the cause. **

If Ds cannot prove only one of them was the cause, they are jointly and severally liable

37
Q

What intervening cause usually breaks D’s proximate cause?

A
  1. Acts of God
  2. Criminal acts and torts by third parties are usually considered unforeseeable.

The defendant will not be liable to the plaintiff unless

  1. D should have anticipated the criminal act
    -OR-
  2. D’s conduct makes the criminal more likely to occur.
38
Q

comparative negligence

A

D shows PLAINTIFF failed to exercise proper care for own safety.

Jury will be instructed to assign % of fault.

P’s recovery will be reduced based on their % of fault.

39
Q

assumption of risk

A

Assumption of risk defense requires that

  1. knew the risk
  2. P voluntarily proceeded in the face of the risk.

It can be **implied **when the **risk is one that the average person would appreciate. **
This results in either **(1) limitation of duty owed to P (2) or contributory negligence, depending on the jurisdiction. **

If the risk was expressly agreed to, then P** is barred from any recovery**

40
Q

Libaility for Domestic Animals

A

Generally NO strict liability

EXCEPTION: D has knowledge of their animal’s dangerous propensities that are specific to this particular animal not their species - this rule applies even if the animal has never injured anyone

Ex: dogs that bite humans
First time your dog bites, no liability
Next time, yes liability

BUT strict liability NOT available to TRESPASSERS
**unless **there was negligence on the part of the landowner, e.g., the landowner knew of the trespasser and failed to warn of a wild animal or abnormally dangerous domestic animal.

41
Q

Liability for Wild Animals

A

If D possesses wild animal that does harm, then strict liability applies

BUT strict liability NOT available to TRESPASSERS
unless there was negligence on the part of the landowner, e.g., the landowner knew of the trespasser and failed to warn of a wild animal or abnormally dangerous domestic animal.

42
Q

D’s animal Trespasses

A

The owner is **strictly liable **for **foressable damage caused by the trespass of her animal **

**If **an animal commits an unforeseeable damage when it trespasses, –> **NO strict liablity **

43
Q

abnormally dangerous activities

A

Stirct liability applies to abnormally dangerous activities.

It requires that the activity:

  1. cannot be made reasonably safe even with ordinary care
  2. uncommon in area where conducted
  3. Causation–the harm must result from the kind of danger to be anticipated from the abnormally dangerous activity

Exercise of reasonable care will NOT relieve D of libaility in strict liability situation.

44
Q

Products liability - under strict liablity theory

A

To establish products liability under a strict liabliity theory, P must show:

  1. D is a COMMERCIAL SELLLERRR
  2. product is defective
  3. product not substantially altered since leaving D’s control
  4. P was making a forseeeable use of the product at time of injury
45
Q

Nuisance

A

(1) substantial + (2) unreasonable interference with another use or enjoyment of their property

P must show interference was substantial to the average person in the community– interfering with a very specialized use of the land is insufficient.

46
Q

Respondeat Superior

A

Employer can be held vicariously liable if employee acting within **scope of employment **at time of accident.

  • Detour = Minor departure in time and geographic area—> ** employer liable**
  • **Frolic **= Major departure time and geographic area –> employer is NOT liable
  • Intentional torts generally **outside of scope of employment **

**EXCEPTIONS:

  1. **if employee acting to **further employe’s purposes **
  2. if occupation involves authorization to use physical force, misuse of that force is within the scope of employment
47
Q

When is employer DIRECTLY liable for employee’s conduct?

A

An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise reasonable care in the hiring, supervision, and retention of the employee.

48
Q

Independent Contractors and HIRING Party

A

Hiring party generally NOT liable for torts committed by independent contractor

EXCEPTION: LANDOWNER STILL HAS ITS PREMISES LIABILITY DUTIES

  1. Property owner cannot delegate its duty to take precautions to those on premises from dangerous conditions

2 . **Business **cannot delegate its duty to customers to make reasonable inspections to discover and make safe any dangerous conditions

49
Q

Joint and Several Liability

A
  • P can recover FULL damages from ANY defendant that P chooses
  • BUT the one D who pays ALL the damages can seek CONTRIBUTION – compensation from co-defendants

*** Comparative contribution: **

  • jury assigns percentages of fault that dictate how much out-of-pocket D can seek in contribution from other Ds

If co-Ds are insolvent, then out-of-pocket D is out of luck

**Indemnification: **

  • Full reimbursement to out-of-pocket D
    Availe only under

**1. Vicarious liabiity - **vicarious liable party get full insemination from active tortfeasor

2. Strict liability - retailer will get full indemnification from manufacturer

50
Q

Loss of Consortium

A
  • Claim by spouse of injured party against tortfeasor that cause spouse’s injury

Spouse can recover for:

Loss of household services
Loss of society/championship
Loss of sex

51
Q

Defamation elements

A
  1. Defamatory Statement
  2. Specifically Identifying P
  3. Published to a 3rd Party
  4. Falsity
  5. Fault on D’s part
  6. Damages to P’s reputation
52
Q

What is a defamatory statement?

A

A defamtory statement purports to be factual + harms P’s reputation.

53
Q

Defamation of group– what must be true to have a claim?

A

Defamtory statement needs to specifically identify P.

Don’t have to identify P by name–any identifying info sufficient

Small group: everyone has claim

Large group: no one has claim — too hard to pin the statement to someone’s identity

54
Q

Fault element of defamation

A

Fault required depends on Plaintiff:

  1. Private person:
  • D made the false statement negligently
  1. Public figure:
  • D made the statement with knowledge or reckless disregard of its falsity (malice).
  1. **Limited-public figures. **
  • Person involved in matters of public concern. EX: a D in a highly published court case.
  • Malice standard ONLY IF the defamatory statement is related to the reason why the limited-public figure is in the public eye in the first place.
55
Q

Damages in defamation

A

**Damages depend on the type of defamation. **

Libel: defamtory statement in permanent form = Damages are presumed** – do not need to be proven

Slander: defamatory statement in spoken form

  • If statement is “slander per se” **= damages presumed. **
  • All other slander = damages must be proven.

*** Slander per se includes: **

  1. Business/ Profession (adversely reflect on P’s)
  2. Serious Crime
  3. Serious Sexual Misconduct
  4. Loathsome Disease (venereal disease, COVID-19)
56
Q

Affirmative Defenses to Defamation

A
  1. Consent
  2. Truth
  3. Privlege
57
Q

Absolute Privlege defense to defamation

A
  1. Communication between spouses
  2. Officers of gov. in connection with official work
    Applies to judge, lawyers, and witness, city counsel members, US senator, secretaries of agriculture
58
Q

qualified privlege in defamation

A
  • Available on case-by-case basis **when public interest in encouraging candor **

EX:
References and recommendations

  • Only applies to statements made in good faith and relevant in scope (aka honest mistakes)
59
Q

Invasion of Right to Privacy

A

**1. Appropriation **
D uses P’s name/image for a commercial purpose
w/o consent

Newsworthiness exception → do not need consent to put name or image of person for commercial purpose if they have done something newsworthy

2. Intrusion
Invasion of P’s seclusion in way that would be *highly offensive to reasonable person *

P needs reasonable expectation of privacy – not a public place.

EX: eavesdropping, wiretapping

3. False Light
Dissemination of material falsehood about P that would be highly offensive to reasonable person

Defamation you seek economic damages, and False Light you seek emotional damages

4. Disclosure
Widespread dissemination of truly confidential info about P not of legitimate concern to public and *highly offensive to reasonable person *

EX: doctor mails your medical records to a bunch of random people

*Newsworthiness exception *

60
Q

Affirmative Defenses to Invasion of Right to Privacy

A
  1. consent
  2. privilege

(communication between spouses, gov. officer in connection with official work) + (qualified privlege: public interest in promoting candor)

MBE Flashcards (4 decks)

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