Torts Flashcards by Delany Davis

Intentional Torts

T/F: Damages/ Actual Harm must be establised for intentional torts

False, only for negligence actions

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Intentional Torts

To establish a prima facie case for false imprisonment, a P must show:

ACBIC

1) an act or omission by the D
2) that confined or restrained P
3) to a bounded area
4) with intent by the D to do so
5) causation

P must be aware of the confinement. Harm/damages not required.

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Intentional Torts

To establish a prima facie case for conversion, a P must show:

a serious interference/invasion
with the chattel of another

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Intentional Torts

T/F: Conversion requires damage or permanent deprivation to the chattel

False, all that is required is that defendant’s volitional conduct result in a serious invasion of the chattel interest of another in some manner.

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Intentional Torts

T/F: Conversion requires damage to the chattel

False,

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Intentional Torts

What can a P recover in a suit for conversion?

The FMV of the chattel at the time of conversion

D gets to keep the damaged chattel

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Intentional Torts

To establish a prima facie case for trespass to land, a P must show:

1) an intent to cause
2) an entry into the land of another

Can be on, above, or beneath the land

Can be done by a person, a golf ball, dogs snowflakes

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Intentional Torts

T/F: Mistake of owenership is a complete defense to trespass to land

False

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Intentional Torts

Public necessity is a defense to an intential tort and occurs when:

One enters into the land of another to avoid a greater harm to members of the community

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Intentional Torts

Private necessity is a defense to an intential tort and occurs when:

One enters into the land of another to avoid harm to themselves, their family, or 1 member of the community

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Intentional Torts

Can a P recover damages if a D asserts public necessity as a defense?

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Intentional Torts

Can a P recover damages if a D asserts private necessity as a defense?

Yes, D will be liable for any damages caused

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Intentional Torts

Intential infliction of emotional distress is characterized by what type of conduct?

Extreme and outrageous that goes beyond the bounds of common decency

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Intentional Torts

T/F: Physical harm must be shown for a P to recover in an IIED action

False, mental anguish is enough. Doesnt always require intent, recklessness will suffice

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Intentional Torts

T/F: A P must show that their injury was forseeablity to recover in an IIED action

False

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Intentional Torts

To recover in an action for NIED, the P must show:

Damages/harm/injury

except where: mishandling of a corpose, false report of death

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Intentional Torts

T/F: A homeowner can use deadly force to protect their home from trespassers/thieves

False, can never use deadly force

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Intentional Torts

GR: A statute may establish the stnd of care in a negligence case if:

2 req

the P was in the class intended to be protected by the statutue
the statute was designed to prevent that type of harm that the P suffered

GR for negligence per se. Memorize

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Negligence

T/F: Medicial malpractice is always forseeable

True

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Negligence

To recover on a claim of lack of informed consent, the P must show:

Damages/harm/injury

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Negligence

The majority rule on the bar is Pure Comparative Negligence

A P will recoer damages even if their fault exceeds the D

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Negligence

Joint & Several Liability occurs when:

2 or more tortious acts cause a P an indivisible harm. Each tortfeasor will be liable to the P for the full amount of damages

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Intentional Torts

Anything that the P is holding or touching can be considered:

Apart of their person

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Causation

As long as the intervening cause is ____ the original D will still be on the hook

Foreseeable

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# Compartive + Contributory Negligence Pure Comparative Negligence

P can be 99% at fault and still recover. Reduce award by % of fault

# Intentional Torts ____ is a harmful or offensive contact to another or their person

Battery

# Intentional Torts ____ is a harmful or offensive contact to another or their person

Battery

Modified Comparative Negligence

P will not recover if more than 50% at fault. Reduce award by % of fault

# Torts Apprehension means ___ not fear

Awareness

# Intentional Torts Apprehension must be _____ | 2 things

Reasonable & Imminent

# Intentional Torts To establish a prima facie case for tresspass to chattels, P must show:

1. a intentional interference 2. with another personal property 3. and harm results | Physical damage

# Intentional Torts What are the damages recoverable for trespass to chattels?

the cost to repair the property

# Products Liability Products Liability Elements | 5 Requirements: MDDRP

1. Merchant, 2. Defective product, 3. Defect in existence when product left D’s control, 4. Reasonable foreseeable use by P, 5. P suffered damages

# Intentional Torts Battery is a tort where no ___ harm need be shown, and no ____ need be proven.

1. Physical 2. Actual Damages

As a ____, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her.

licensee

The ___ does not extend to dangerous conditions that the licensee should reasonably have discovered

duty to warn

A ____ is one who enters on the land with permission for his own purpose or business and includes social guests.

licensee

# Causation To establish proximate cause in indirect cause cases, where an ____ force combines with the defendant's conduct to cause the plaintiff's injury, the plaintiff must show that the defendant's negligence caused a ____ harm or caused a foreseeable reaction from a foreseeable intervening force.

intervening foreseeable

# Causation Intervening forces that produce a harm outside of the scope of what would normally be anticipated from the defendant's negligence are generally deemed ___ and ___. Such a superseding event will break the chain of causation and ____

unforeseeable and superseding relieve the defendant of liability

# Intentional Torts Battery is a tort where no ___ harm need be shown, and no ____ need be proven.

1. Physical 2. Actual Damages

As a ____, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her.

licensee

# Intentional Torts Battery is a tort where no ___ harm need be shown, and no ____ need be proven.

1. Physical 2. Actual Damages

As a ____, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her.

licensee

# Intentional Torts Battery is a tort where no ___ harm need be shown, and no ____ need be proven.

1. Physical 2. Actual Damages

As a ____, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her.

licensee

# Reminders. Stop getting these wrong You MUST prove HARM for NEGLIGENCE actions, so if the patient/person, etc suffered no HARM, the D will not be liable for a negligence action

You DONT have to prove PHYSICAL INJURY for IIED, only for NIED

Motions for Directed Verdicts are usually denied for the P and D

Bc there is usally always a triable issue of fact that the jury should decide

# Reminders. Stop getting these wrong Someone will NOT BE IN THE ZONE OF DANGER IF:

They walked away from the scene, back turned to the scene, only learned of the accident by a third party, or otherwise did not literally witness the accident that caused an injury

Elements of Defamtion

1. Defamatory statement of fact made by D 2. Publication of that statement to a 3rd party, either negligently or intentionally 3. P suffered general or special Damages (general = injury to reputation or special = pecuniary loss, not req. for libel per se or slander) Plaintiff must prove D at fault & falsity of the statement. - Public officiial = P must prove malice. - Private person with respect to matter of public concern = P must show negligence - Private person with repect to a matter of private concern= only have to show publication **footnote** See if any Defenses apply (truth or qualifed/absolute privilege)

Elements for Invasion of Privacy F.C.P.I

1. False Light 2. Commerical Appropiation 3. Public disclosure of private facts 4. invasion on seclusion | Truth is no defense and do not survive death

# Defamation What must a public official prove for a claim of defamation?

Public officiial = P must prove malice Malice = D knew of the statements falsity and recklessly disregarded it.

# Defamation What must a private official prove for a claim of defamation in regard to a matter of a PRIVATE concern?

Only has to show publication

# Defamation What must a private official prove for a claim of defamation in regard to a matter of PUBLIC concern?

P must show negligence

# Nuisance Light, sound, smell are actionable for nuisance

False

# Intentional Torts Battery is a tort where no ___ harm need be shown, and no ____ need be proven.

1. Physical 2. Actual Damages

As a ____, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her.

licensee

As a ____, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her.

licensee

# Intentional Torts Battery is a tort where no ___ harm need be shown, and no ____ need be proven.

1. Physical 2. Actual Damages

# Intentional Torts Battery is a tort where no ___ harm need be shown, and no ____ need be proven.

1. Physical 2. Actual Damages

As a ____, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her.

licensee

# Intentional Torts Battery is a tort where no ___ harm need be shown, and no ____ need be proven.

1. Physical 2. Actual Damages

As a ____, the plaintiff need only be warned of dangerous natural conditions of which the landowner is in fact aware and which are unknown to the licensee or unlikely to be discovered by her.

licensee

# Intentional Torts A ____ is liable to the owner for conversion if they use the chattel in such a manner as to constitute a material breach of the bailment agreement.

bailee | I.e, i (bailor) agree to let my friend use my car for 1 day (bailee) ## Footnote if they use for more than 1 day, that is a material breach of the agreement

# Defense to Defamation A qualified privilege is recognized when the recipient has an ____ and it is ____ for the defendant to make the publication of the statement.

interest in the information reasonable

If a plaintiff, having been informed that he is suspected of theft, allows himself to be detained and searched without any force or threats of force by the defendant, it is generally held that the plaintiff has:

has consented to the restraint of his liberty.

# Defamation The communication to the third person must be made either _____.

intentionally or negligently. ## Footnote if it was not reasonably foreseeable that the defamatory statement would be overheard, the fault requirement for the publication element is not satisfied.

The ____ is used by ____ to rebut a contributory negligence defense, not by ____ to defend a negligence claim, and is not applicable in comparative negligence jurisdictions.

last clear chance doctrine plaintiffs defendants

To satisfy the mental element of battery, the defendant need only know that he is:

committing the physical act that constitutes the tort He need not know that the act is wrongful or tortious.

A landowner has the duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by ____ on his property.

artificial conditions

Under the attractive nuisance doctrine, the owner or occupier of land has a special duty to protect childern from artificial conditions if the P can prove: | 4 Requirements:

1. existence of a dangerous condition present on the land of that the owner is or should be aware of 2. the owner knows or should know that children frequent the vicinity of this dangerous condition 3. the condition is dangerous because of the child’s inability to appreciate the risk 4. the expense of remedying the situation is slight compared with the magnitude of the risk.

# Defenses One who is held liable for damages caused by another simply because of his relationship to that person may seek ____ from the person whose conduct actually caused the damage

indemnification ## Footnote the party who gets indemified is liable to the other party for the FULL AMOUNT. Not liable to P bc the other party already fully paid P.

# Vicarious Liability An employee's conduct is w/n the scope of his employment when: | 2 Req (P & COC)

1. performing work assigned by the employer or 2. engagin in a course of conduct subject to the employer's control | An unauthorized act is not determinative

# T/F: An employer will be liable for employee's tortious conduct if the conduct occured during a detour.

True, a detour is only a slight deviation

A detour occurs when an employee: | EDD

1. engages in conduct substantiailly similar to authorized acts 2. does not deviate substantially from their route 3. dont not consume a substantial amount of time by deviating

A joint tortfeasor who is at fault in causing the P's injuries is entitled to:

Contribution | partial reimbursement for damages paid to P

A principal will not be vicarioulsy liable for the tortious acts of agent if that agent is:

An indep. contractor | Except whre the contractior engages in inherently dangerous activity ## Footnote Inherently dangeous does not mean abnormally dangerous, activity only need to be one with special dangers to other inherent or normal to the activity

# Causation Proximate Cause GR:

The D is liable for all harmful results that are the normal incidents of and w/n the increased risk caused by his acts

# Causation If a particular harmful restul is at all __ from D's negligent conduct, the unusual manner in which the injury occured or unusual timing of cause + effect is ____ to the D's liability

Foreseeable Irrelevant

A D may be liable for the injuries incurred by a rescuer if the rescue is not ____

Reckless | "danger invites rescue" ## Footnote Occurs when rescuer rushes to help someone hurt by D and rescuer is injured while doing do

# Negligence Per Se Violation of an applicable statutes establishes:

Conclusive presumption of duty and breach

# Negligence Per Se Compliance with an applicable statute does not establish:

Conclusive presumption of exercising due care

# Strict Liability A D will be held strictly liable for engaging in abnormally dangerous activity. An activity is abnormally dangerous if:

1. there is a forseeable risk of serious harm evenwhen reasonable care is exercised by all actors 2. the activity is not a matter of common usuage in the community | give examples like blasting and manufacturing explosivesx ## Footnote whether an activity is abnormally dangerous is a question of law that the ct can decide on for a motion for directed verdict

Torts Flashcards

(84 cards)