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Bar Prep > Torts > Flashcards

Torts Flashcards

1
Q

Torts overview

A

Hypersensitivity is disregarded, ignore extreme sensitivity
No incapacity defense to intentional torts
Transferred intent for persons and actions

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2
Q

Battery

A

Harmful or offensive (unpermitted) contact
To P’s person

Can happen after a delay (poisoned lunch example)

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3
Q

Assault

A

Reasonable apprehension (knowledge)
Of immediate battery

Unloaded gun problem: what Plaintiff knows, ie if they know the gun isn’t loaded they can’t be aware of the battery

Words alone lack immediacy

But, words CAN negate conduct and destroy immediacy (“if you weren’t my best friends I’d slap you”; “just you wait until tomorrow”)

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4
Q

False Imprisonment

A

Act of restraint (could be locking door)
Plaintiff confined in a bounded area

No hypersensitivity (stay here or Ill be sad)

An omission can be an act of restraint (need Duty between parties)(ie leaving disabled person on airplane)

Plaintiff has to be aware of confinement or harmed

Bounded area doesn’t have to be defined–must not be a reasonable means of escape that P can reasonably discover (stay here, wheres here?)

Not reasonable means of escape if: dangerous, disgusting, humiliating, or hidden

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5
Q

IIED

A

Extreme and outrageous conduct (exceeds bounds of decency tolerated in civilized society)
Severe emotional distress

Mere insults not enough
Hallmarks of Outrageousness:
Conduct is repetitive in nature (ie. debt collection by harassment)
Defendant is common carrier (transport) or innkeeper (who is deliberately distressing customers)
Plaintiff is a member of a fragile class
Children
Elderly
Pregnant women
Targeting known sensitivity is outrageous

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6
Q

Trespass to Land

A

Physical invasion
Of land

2 methods: By person or by object
Awareness of the boundary is not needed
Deliberate act required
Object must be tangible (not sound)
Land includes soil below and air above, to a reasonable distance

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7
Q

Trespass to Chattels

A

Intentional interference with P’s personal property that warrants D pay damages

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8
Q

Conversion

A

Intentional interference with P’s personal property so serious that warrants D pay property’s full value

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9
Q

Defenses: Consent

A

Defense to all intentional torts

Must have legal capacity (limited capacity can consent to some things and not to others)

Express consent
—-Words giving permission
—-Exceptions for fraud or duress

Implied consent
—-Custom and usage
—-P goes somewhere where these invasions are frequently known to happen, can be —-implied consent (intramural sports)
—-Body language consent–interpret behavior in a way consistent with social norms (sexual relations)

Scope of consent: exceeding scope results in liability (ex. operating on a different part of body)

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10
Q

Defenses: Protective Privileges

A

All require a perceived threat coming from the Plaintiff

Requires:
Act must be in the moment or immediately before
—-Not too soon or too late
Accuracy: reasonable belief that the threat is genuine (can be mistaken if reasonable)
Limited to necessary force
No duty to retreat in majority of states (CA?)

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11
Q

Defenses: Protective Privileges: Self Defense/Defense of Others

A

No lethal force without lethal threat

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12
Q

Defenses: Protective Privileges: Defense of Property

A

No use of deadly force to protect your property
No deadly traps (non deadly?)
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.
The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another’s possession of the owner’s chattel began lawfully, the owner may use only peaceful means to recover the chattel.

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13
Q

Defenses: Protective Privileges: Defense of Property: Shopkeeper’s Privilege

A

merchant can detain someone they believe has stolen property so long as:
Reasonable time
Reasonable method
Based on reasonable suspicion

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14
Q

Necessity Defenses

A

No necessity for battery or false imprisonment

Public necessity: Absolute defense. Defendant acts in emergency to protect community.

Private necessity: Limited or qualified defense. Defendant acts in emergency to protect own interests.

Must pay compensatory damages
Not liable for nominal/punitive damages
Can remain as long as emergency continues

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15
Q

res ipsa loquitur

A

Allows a defendant’s negligence to be inferred from circumstantial evidence when:
i. the plaintiff suffered a type of harm that is usually caused by negligence of someone ii. in the defendant’s position and
iii. the evidence tends to eliminate other potential causes of that harm

Pure comparative negligence is default on MBE (10% at fault, etc)

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16
Q

Negligence

A

Duty
Breach
Causation
Damages

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17
Q

Negligence: Duty

A

D must owe some duty of care
Questions of law
Legally imposed obligation to take risk reducing precautions for the benefit of others

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18
Q

Negligence: Duty: To Whom

A

Foreseeable victims
—-Unforeseeable victims always lose negligence lawsuits
Inside “zone of danger” Palsgfraf
—-Based on scope of activity
—-Note: likely victims (ex. Guest gets mugged, defective door, passerbys not given duty of care, remember low crime area)

Exception: Rescuers
—-Rescuers are foreseeable; danger invites rescuers
—-Usually always owed a duty of care

No duty to protect from 3rd party criminals unless expected

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19
Q

Negligence: Duty: How much risk reduction required?

A

Same amount of care exercised by a reasonably prudent person acting under similar circumstances

No physical attributes

Slightly more alert and cautious than normal

No allowance for D’s shortcomings, objective standard

Even if disability, drunk, skill issue, etc

Exceptions:
Superior Skill or Knowledge:
Reasonably prudent person with same superior skill or knowledge
Physical Characteristics Where Relevant
Ie. blind, hearing defect, very tall, etc

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20
Q

Negligence: Duty: Children

A

Under age 5: no standard of care

Age 5 - 18: Hypothetical child of similar age,experience, and intelligence acting under similar circumstances

Subjective standard/Pro-defendant
Ie, 100 kids will have 100 different standards whereas adults have 1 (rpp)

Exception: If child engaged in adult activity: rpp
—-Commonly operating a motorized vehicle

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21
Q

Negligence: Duty: Professionals

A

Malpractice claims (negligence against professionals)
Duty: Same care as average member of profession providing similar professional services

Not mythical rpp, peer group of D in case

Custom is standard, whereas custom can be ignored for rpp

National standard of care–but same specialty

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22
Q

Negligence: Duty: Possessors of Real Estate/Land

A

Premises liability
Possessor not always owner
Duty to protect from dangerous conditions
Activities conducted on land use ordinary reasonable person standard

Standard of care based on status of entrant:
Unknown Trespasser
Known Trespasser
Licensee
Invitee

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23
Q

Negligence: Duty: Possessors of Real Estate: Unknown Trespasser

A

Unknown Trespasser: No duty of care
But no booby traps

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24
Q

Negligence: Duty: Possessors of Real Estate: Known or Anticipated Trespasser

A

Reasonably expected to be there (sometimes a pattern of trespassing)

Duty of care if hazard is:
Artificial condition (constructed by humans, not naturally occurring hazard like snow/ice)
Highly dangerous (kill or seriously injure)
Concealed from trespasser
Known by possessor

Known, man-made death traps.

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25
Q

Negligence: Duty: Possessors of Real Estate: Licensee

A

On land with permission (express or implied) but without financial benefit to possessor (ie. social guests, custom-based approachers)

Duty if:
Concealed from licensee
Known by the possessor
All known traps (natural or man-made)

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26
Q

Negligence: Duty: Possessors of Real Estate: Invitee

A

Enter land with permission for financial benefit of the possessor (ie. customer)
Includes land opened to the public at large even without financial benefit (ie. airport, church)

Duty if:
Concealed from invitee
Known by possessor or could have been discovered through reasonable inspection (need not be perfect)

All reasonably knowable traps
Invitee can lose status if exceeds scope of invite

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27
Q

Negligence: Duty: Possessors of Real Estate: Duty Satisfied by

A

Eliminating hazard condition (repair, replace, remove)
Warning about hazard condition
Must sufficiently communicate nature of the danger

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28
Q

Negligence: Duty: Possessors of Real Estate: Firefighters and Police

A

Firefighters and Police: Owed no duty of care with risks inherent to the job
Firefighters rule

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29
Q

Negligence: Duty: Possessors of Real Estate: Trespassing Children

A

Trespassing Children: Reasonably prudent care under circumstances to protect from artificial hazards
How likely is it that children will trespass?

Attractive nuisance: Heightens standard of care for trespassing children

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30
Q

Negligence: Duty: Statutory Standards of Care

A

Negligence per se

RPP doesn’t matter if you break ordinance
Plaintiff borrows statute as alternative standard of care

Violation of statute replaces duty and breach

Two-step process:
Statute is legally appropriate
Defendant violated the statutory command

Applicable if:
Plaintiff is within the class of persons that the statute was trying to protect (pedestrians, motorists, children, students, patients, customers)
Harm suffered is within risks the statute is trying to prevent

Exceptions:
Compliance would be more dangerous
Compliance would have been impossible

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31
Q

Negligence: Duty: Affirmative Duties to Act

A

Generally no duty to act affirmatively
If you choose to act, must do so as RPP

Exceptions; there is a duty to act if:
Pre-existing relationship between parties
Ex. innkeeper-guest, business owner-customer, family members, boss-employee
Defendant causes the peril

Note:
Duty owed is not duty to rescue, duty to act reasonably under the circumstances
No obligation to put self in danger

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32
Q

Negligence: Duty: Careless rescue

A

If you take responsibility to act to rescue, must do so as RPP

But: Good samaritan laws:
Insulate negligent rescuers from liability

Vary state to state, assume none unless mentioned

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33
Q

NIED

A

In physical injury cases, Plaintiffs can recover for emotional damages
However in no physical injury but purely emotional, extra elements to recover:

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34
Q

NIED: Near Miss Cases

A

D almost injured P, close call
P can recover for emotional distress by showing:
Negligence from D
P placed in zone of physical danger
P suffers physical symptoms from the distress

35
Q

NIED: Bystander Case

A

D causes serious bodily injury or death to a third party causing P distress
P and 3P must be closely related (family)
P present at the scene and observed event

36
Q

NIED: Business Relationship Cases

A

P can recover for NIED if highly foreseeable that careless performance by D will produce emotional distress

Ex. patient told they have serious cancer when they don’t; customer and funeral parlor losing body; NOT customer and dry cleaner

37
Q

Breach

A

Questions of fact

Breach: concrete specific behavior by D that falls short of the standard of care
Can be affirmative act or omission
Show what breach is and why it’s unreasonable on essay

38
Q

Breach: Res Ipsa Loquitor

A

Used by P without information about D’s breach
Plaintiff must show:
Accident is normally associated with negligence
Accident would normally be due to negligence of someone in D’s position (you probably sued the right person)
Defendant has exclusive control over the object of the injury
Means no directed verdict, but jury can still decide

39
Q

Actual Cause

A

Link between breach and harm; injury would not have occurred “but for” act or omission
But for cause if necessary for harm (ie buoy on lifeboat wouldnt have helped)
D’s rebuttal always start with “even if,”

40
Q

Actual Cause: Merged Causes

A

2 D’s acting independently each commit a breach combining into single indivisible harm

No but for test, use “substantial factor test”

D liable if D’s breach contributed in a significant/substantial way to ultimate injury
If breach would have caused harm entirely if only breach, definitely substantial factor

41
Q

Actual Cause: Unascertainable cause

A

shifts burden of proof to defendants
Jointly and severally liable

42
Q

Proximate Cause

A

Sort of a “fairness” element

Foreseeability test:
Was the outcome a foreseeable risk
associated with the breach?

Guidelines:
Passage of time
Geographic distance
Prior occurrence

Ambiguous and vague, use common sense when possible
Intervening forces may cut off liability

43
Q

Proximate Cause: Common Foreseeable Intervening Forces

A

Medical malpractice
Doctor screws up, you’re still at fault (Doctor is too though)

Negligence of rescuers

Protection or reaction forces
Stampede from car accident creates injury, still liable

Subsequent disease or accident
Man needs crutches, loses balance and gets hurt, driver still liable

44
Q

Damages

A

Facts and law

Eggshell skull doctrine: Once P has established all other elements of a claim, P receives all damages suffered, even if surprisingly great in scope.

Take P as you find them
Applies to all torts

45
Q

Affirmative Defenses to Negligence

A

Comparative negligence: D shows P failed to exercise proper care for their own safety
Jury will decide what % of fault
Ps recovery reduced based on % of fault

46
Q

Strict Liability: Animals

A

Domesticated Animals: Generally NO strict liability
EXCEPT: If knowledge of animal’s dangerous propensities
Peculiar to this particularly creature, not species as a whole
EXCEPTION DOES NOT APPLY TO TRESPASSERS

Wild Animals:
Strict liability if possessed

47
Q

Strict Liability: Abnormally Dangerous Activities

A

Test:
Activity can’t be made reasonably safe even with ordinary care
Activity is uncommon in the area it’s conducted

Commonly:
Explosives or blasting
Handling or transporting dangerous chemicals/biological materials
Nuclear energy/high dose radiation

48
Q

Products Liability Claim

A

Note: Many Ps will have multiple causes of action; product doesn’t inherently mean SL

Elements:
D must be a merchant
Product is defective
Product was not substantially altered since leaving D’s control
Plaintiff was making foreseeable use of product at the time of injury

49
Q

Manufacturing defect

A

Product emerges from manufacturing different from others and more dangerous than consumers would expect
Departs from intended design

50
Q

Design defect

A

Risks associated with product design outweigh utility of the design

Established by: P most show theres an alternative design which:
Would have been safer
Was practical (can’t undermine point)
Was economically feasible

Can be seen as a special application of negligence

51
Q

Information Defect

A

Hidden risks without adequate warnings/instructions

Adequacy of warning, must be:
Prominent
Comprehensible (maybe multiple languages, readable for kids, etc)
Provide information about mitigating the risk, not just the risk (poison fumes, maybe need “wear mask when using”)

52
Q

Products Liability Claim: Altered

A

Product was not substantially altered since leaving D’s control

Presumption that product moved in ordinary channels of distribution has no alteration

53
Q

Products Liability Claim: Foreseeable Use

A

Plaintiff was making foreseeable use of product at the time of injury

Foreseeable does NOT mean intended or appropriate use
Some misuses are entirely foreseeable

54
Q

Strict Liability: Affirmative Defenses

A

TRADITIONAL RULE: If P knowingly encounters a dangerous situation, they are barred from recovery

MODERN RULE: Comparative responsibility, jury assigns %’s, reduce recovery accordingly

55
Q

Nuisance

A

Interference with use/enjoyment of real estate
—Interference must be substantial

Intentional or negligent
—Intentional = aware that it’s happening.

Inconsistent Land Use:
—Loud music in residential area, bad smells near restaurants

Gross inconsideration cases:
Hosting loud parties all night 365 days a year, etc.

56
Q

Vicarious Liability

A

Active tortfeasor: party whose affirmative conduct caused the harm

Passive tortfeasor: party held vicariously liable based on relationship to active tortfeasor

57
Q

Vicarious Liability: Employer/Employee

A

Employer can be held liable as a second additional defendant on a vicarious liability claim if employee was acting within the scope of employment at the time of the accident.

58
Q

Vicarious Liability: Employer/Employee: Frolic or Detour

A

Accident has occurred when the employee has stepped out or departed from work related duties.

Minor departure: Mere detour, employer liable

Major departure: Off on a frolic of your own, employer not liable
Ex. Delivery guy goes off his route for quick lunch, minor detour. 50 mile trip, major detour.

59
Q

Vicarious Liability: Employer/Employee: Intentional Torts

A

Intentional torts are generally outside the scope of employment

But: If intentional tort committed in furtherance of employer’s purposes, then scope of employment

Or: If occupation involves authorization to use force, misuse of that force is within scope of employment

60
Q

Vicarious Liability: Employer/Employee: Independent Contractors

A

Hiring party generally not liable for torts committed by independent contractor

But: Business owner can be held liable if independent contractor is working on business premises and hurts the customer

61
Q

Joint and several liability

A

P can recover full damages from any defendant P chooses.

62
Q

Joint and several liability: Contribution

A

Defendant seeks compensation from co-defendants
D’s usually get assigned %’s from jury
Comparative contribution

63
Q

Joint and several liability: Indemnification

A

Full reimbursement to out-of-pocket defendant
Available when:
Vicarious liability (employer indemnifies tortfeasor)
Strict liability (retailer indemnifies manufacturer)

64
Q

Loss of Consortium

A

Claim by spouse of injured part, derivative of injured party’s claim
Defenses raised for injured spouse could be raised for consortium claim

3 things:
Loss of household services
Loss of society/companionship
Loss of sex

65
Q

Defamation elements

A
  1. Defamatory statement specifically identifying P
  2. Published to a 3rd party
  3. Falsity
  4. Fault
  5. Damages
66
Q

Defamation: Defamatory statement specifically identifying P

A

Statement adversely affecting reputation of P; reputation correlates to ability to make money; factual representation that reflects adversely on character

Opinion is actionable only if it implies specific facts

No need to use P’s name, any identifying information is sufficient

Groups:
Small group: everyone has a claim
Large group: nobody has a claim

Person defamed must be alive

67
Q

Defamation: Published to a 3rd party

A

Publish = communicate
Publication doesn’t have to be intentional

68
Q

Defamation: Falsity

A

P must show statement was false

69
Q

Defamation: Fault

A

Does D have a reasonable and good faith belief it’s true?

Fault depends on P:
Private person: negligent is sufficient, should verify accuracy
Can depend on level of accusation and timing needed

Public figure: actual malice; knowledge or reckless disregard
Publicized identity could be enough, limited public figures. Only relates to reason why they are in the spotlight

70
Q

Defamation: Damages

A

Don’t always require evidence for defamation.
Damages presumed when:

Libel cases
Slander cases

71
Q

Defamation: Damages: Libel cases

A

Defamation embodied in a permanent form
Written, printed, stored electronically.
Damages presumed.

72
Q

Defamation: Damages: Slander

A

Spoken/oral defamation

Slander per se: Words so clearly defamatory that ordinary person would understand injury
Damages presumed.

Categories:
Business/profession
Serious crime
Serious sexual misconduct
Loathsome disease

Other slander:
Must offer evidence of economic harm

73
Q

Affirmative defenses to Defamation

A

Consent
Privileges

74
Q

Affirmative defenses to Defamation: Absolute Privilege

A

Between spouses
Officers of government in connection with official work

75
Q

Affirmative defenses to Defamation: Qualified Privilege

A

Available on a case-by-case basis when public interest in encouraging candor
Ex: References from former employers, and colleagues within same organization

Only applies to statements made in good faith and relevant in scope

76
Q

Privacy Torts

A

Common law only for bar

Four distinct torts:
Appropriation
Intrusion
False Light
Disclosure

77
Q

Privacy Torts: Appropriation

A

Defendant uses Plaintiff’s name/image for commercial purpose.
Not limited to celebrities.
Primarily emotional damages.

Exception:
Newsworthiness

78
Q

Privacy Torts: Intrusion

A

Invasion of P’s seclusion in a way that would be highly offensive to a reasonable person

Must be in a place with reasonable expectation of privacy

79
Q

Privacy Torts: False Light

A

Dissemination of material falsehood about P that would be highly offensive to a reasonable person. Primarily emotional damages.

Need actual malice

80
Q

Privacy Torts: Disclosure

A

Widespread dissemination of confidential information about P not of legitimate concern to public and highly offensive to reasonable person.

Essentially newsworthiness exception built in

Must be a truly confidential fact

81
Q

Affirmative defenses to privacy torts

A

Consent
Absolute/Qualified Defamation Privileges can defeat False Light and Disclosure claims

82
Q

defective by design

A

A commercial supplier is subject to strict products liability for harm caused by its defective product.

A product is defective by design if:
it poses a foreseeable risk of harm and
that risk could have been reduced by a feasible alternative design (ie, the risk-utility test—comparing the risks and benefits of the original design to those of an alternative design

83
Q

Assumption of the risk

A

Generally, a defendant is strictly liable—liable regardless of fault—for physical harm caused to the plaintiff by an abnormally dangerous activity. However, assumption of the risk is an affirmative defense to a strict liability claim when the plaintiff:
(1) knows of the risk of harm and
(2) voluntarily accepts that risk.

84
Q

Negligence rules of recovery

A

Pure comparative negligence: % of fault reduces recovery

Modified comparative negligence: % of fault reduces recovery BUT no recovery if fault above 50%

Contributory negligence: Any % of fault from P bars recovery

Bar Prep (18 decks)

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