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Barbie Party > Torts > Flashcards

Torts Flashcards

1
Q

What are the elements of Battery?

A

When there is:1. An intentional,2. Harmful or offensive contact,3. With the plaintiff’s person.Intentional acts are done with the desire to bring about harm OR knowing the harm is substantially certain to occur.Bodily harm is the physical pain, illness, or impairment to another’s body.Priority: HIGH

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2
Q

What are the elements of Assault?

A

When there is:1. An intentional act,2. That causes the plaintiff to be placed in reasonable apprehension (aware of the act and believes that the defendant is able to commit it),3. Of imminent harm or offensive contact.Priority: Medium

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3
Q

When is an act deemed Intentional for the tort of Assault?

A

If it’s done:* For the purpose of causing apprehension; OR* With knowledge to a substantial certainty that such apprehension will result.Priority: Medium

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4
Q

When is a defendant liable for False Imprisonment?

A

When he:1. Intentionally acts (purposely or knowing that it’s substantially likely to occur),2. To restrain the plaintiff to fixed boundaries, AND3. The plaintiff is conscious of the confinement OR is harmed by it.Priority: Medium

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5
Q

What are the elements of Intentional Infliction of Emotional Distress?

A
  1. The defendant acted intentionally or recklessly;2. Their conduct was extreme and outrageous;3. The act caused extreme emotional distress; AND4. The plaintiff actually suffered severe emotional distress.Priority: Medium
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6
Q

When is a defendant liable for Trespass to Land?

A
  1. When he intentionally,2. Either:* Enters the land in possession of another;* Causes an object/third-person to enter;* Remains on the land; OR* Fails to remove an object he is under a duty to remove.*Intent to trespass is NOT required.Priority: Medium
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7
Q

When is a person liable for Trespass to Chattels?

A

When he:1. Intentionally interferes with another’s personal property,AND2. The amount of damage is small.Priority: Medium

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8
Q

When is a person liable for Conversion?

A

When he:1. Intentionally interferes with another’s personal property,AND2. The amount of interference is substantial.*Defendant will be liable for full market value of item.Priority: Medium

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9
Q

Under the Doctrine of Transferred Intent, how can the intent to harm one party be transferred?

A

It’s transferred when:1. The defendant had the intent to commit a tort against one particular individual; AND2. If in the act of trying to accomplish that tort either: * commits a different tort against that person; OR * another party is injured.*Only applies to Battery, Assault, False Imprisonment, Trespass to Land, & Trespass to Chattels.Priority: Medium

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10
Q

_Intentional Tort Defenses_Consent is a defense to intentional torts, and can be express, apparent, or implied by law.Apparent Consent vs. Implied by Law Consent

A

Apparent Consent: When words or conduct are reasonably understood to be intended as consent (such as customary practice or a person’s failure to object).Implied by Law Consent: Occurs in special circumstances, such as medical emergencies.Priority: HIGH

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11
Q

_Intentional Tort Defenses_What is the defense of Privilege?

A

It is conduct that under ordinary circumstances would subject the actor to liability, BUT is excused under the circumstances.Priority: HIGH

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12
Q

_Intentional Tort Defenses_What are the different Privilege defenses?

A

Privilege includes:1. Necessity (acts were necessary to prevent serious harm).2. Self-defense/defense of others.3. Defense of property.4. Recapture of chattels.5. Detention for investigation.6. Privilege to discipline children.7. Privilege to arrest.Priority: HIGH

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13
Q

What are the elements for a prima facie case of Negligence?

A
  1. A duty owed to the plaintiff by the defendant;2. A breach of that duty;3. Causation (the breach was the actual and proximate cause of the plaintiff’s injuries); AND4. Damages.Priority: HIGH
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14
Q

When will an Affirmative Duty to act arise?

A

If:* There is a pre-existing relationship between the parties;* The defendant put the plaintiff in peril;* The defendant has undertaken to rescue the plaintiff; OR* A duty is imposed by law.Priority: HIGH

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15
Q

When is a Rescuer liable for injuries caused to another person?

A

If they fail to exercise reasonable care, AND:* The failure increased the risk of harm; OR* The harm is suffered because of reliance on the person providing the aid.**A rescuer is liable if the aid is discontinued and the person is left in a worse position.Priority: HIGH

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16
Q

What is the Reasonable Person Standard?

A

Every person owes a duty to act as a reasonable prudent person would act under similar circumstances.(A reasonable person takes appropriate measures to avoid foreseeable risks.)*This duty is owed to ALL foreseeable plaintiffs.Priority: HIGH

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17
Q

What is the Standard of Care for Children?

A

They are held to a standard of care a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.*If the child is engaged in an adult activity, they have the duty to act as a reasonable ADULT would act under the circumstances.Priority: HIGH

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18
Q

What is the Standard of Care for Professionals?

A

A professional owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community.*A specialist is held to the care and skill of an average member of the profession practicing the specialty.Priority: HIGH

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19
Q

What is the Standard of Care for Landowners?

A

They have to exercise reasonable care to ALL entrants upon their land, and take appropriate measures to avoid foreseeable risks.*Some states determine the duty of care required based on the type of entrant (trespasser, licensee, invitee).Priority: HIGH

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20
Q

Undiscovered Trespasser vs. Anticipated Trespasser

A

Undiscovered Trespasser: NO duty is owed by the landowner.Anticipated Trespasser: The landowner must use reasonable care in operations on the property AND warn of highly dangerous artificial conditions that they know of.Priority: HIGH

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21
Q

What is the Attractive Nuisance Doctrine?

A

For child trespassers, landowners must make the premises reasonably safe or warn of hidden dangers on their land.Landowners are held liable for harm if:1. They know the condition is likely to cause death;2. They know that children frequent the area;3. That children are unlikely to discover the condition;4. The risk of harm outweighs the expense of repair; AND5. They fail to exercise reasonable care in eliminating the danger.Priority: HIGH

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22
Q

Licensee vs. Invitee

A

Licensee: Landowner must exercise reasonable care AND warn of (make safe) dangerous conditions the owner knows of but not apparent to the guest.Invitee: Landowner owes all the duties he would to a Licensee, PLUS the duty to make reasonable inspections of the property to find/make safe non-obvious conditions.Priority: HIGH

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23
Q

When does Negligence Per Se apply?

A

When:1. The statute’s purpose is to prevent the type of harm that the plaintiff suffered; AND2. The plaintiff is in the class of persons the statute seeks to protect.*If established, a violation of the statute is deemed a breach of the duty of care owed.Two Exceptions: (1) When compliance with the statute would be more dangerous; (2) Compliance is impossible.Priority: HIGH

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24
Q

Under the Traditional Test for Res Ipsa Loquitur, what must the plaintiff show?

A
  1. That the injury typically does not occur in the absence of negligence;2. The instrumentality (thing/object) which caused the injury was in the defendant’s exclusive control; AND3. Plaintiff did not cause or contribute to the injury.*If applicable, the breach element is established.Priority: HIGH
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25
Q

Under the Restatement (Second) Test for Res Ipsa Loquitur, what must the plaintiff show?

A
  1. That the event typically does not occur in the absence of negligence;2. Other responsible causes are sufficiently eliminated by the evidence (incl. plaintiff & third persons); AND3. The negligence is within the scope of duty the defendant owed the plaintiff.*If applicable, the breach element is established.Priority: HIGH
26
Q

Actual Cause vs. Proximate Cause

A

Actual Cause: The “but for” cause.Under the substantial factor test → something that is a substantial factor in bringing about the injury IS an actual cause.Proximate Cause: The legal cause, which means the injury MUST have been a foreseeable result of the breach.Priority: HIGH

27
Q

What is an Intervening Cause?

A

Any act that occurs AFTER the defendant’s breach that contributes to the harm.*It absolves the defendant of liability if it resulted in an unforeseeable/unexpected injury.Priority: HIGH

28
Q

What is the Eggshell Plaintiff Rule?

A

A tortfeasor takes his victim as he finds him.The tortfeasor is liable for ALL harm a plaintiff suffers as a result of his conduct, even if plaintiff suffered from a pre-existing condition making the harm greater.Priority: HIGH

29
Q

Pure Comparative Negligencevs.Partial Comparative Negligencevs.Contributory Negligence

A

Pure: P’s negligence/assumption of risk will NOT bar recovery. P’s damages are reduced by % at fault.Partial: If less than 50% at fault, then P’s damages are reduced by % at fault. If over 50% at fault, then P’s claim is barred.Contributory: Plaintiff CANNOT recover if he contributed to his own injury in any amount. P’s claim is barred.Exceptions → when the defendant had the last opportunity to avoid injury OR was reckless.Priority: HIGH

30
Q

What are the 3 instances a plaintiff can recover for Negligent Infliction of Emotional Distress?

A
  1. Near Miss Case: D’s negligence, created foreseeable risk of injury, P is in zone of danger, and P manifests physical symptoms.2. Bystander Claim: D’s negligence, P is contemporary witness to injury to close family member, and P manifests physical symptoms.3. Rare Egregious Situations: Pre-existing relationship between P and D, and negligent act foreseeably causes distress.Priority: HIGH
31
Q

_Vicarious Liability_Employeevs.Independent Contractor

A

Employee: Employer controls manner/means of the employee’s performance of work. Employer IS vicariously liable for negligent acts of employee (within scope or employment).Independent Contractor: A person NOT controlled or subject to control with respect to performance (may or may not be an agent). Principal/employer is generally NOT liable for torts committed by a contractor.Priority: HIGH

32
Q

_Vicarious Liability_What determines whether a person is an Independent Contractor or Employee?

A

Whether the principal had the right to control the manner and method in which the job is performed.(If the principal had substantial control, it’s likely the person will be deemed an employee).Priority: HIGH

33
Q

_Vicarious Liability_Under respondeat superior, an employer is vicariously liable for an employee’s negligent act if the employee was acting within the scope of employment.When is an employee deemed to be acting within that scope?

A

When:* Performing work assigned by the employer; OR* Engaging in a course of conduct subject to the employer’s control.** Conduct is not outside the scope merely because an employee disregards the employer’s instructions.Priority: HIGH

34
Q

_Vicarious Liability – Respondeat Superior_Acts Within Scope of Employmentvs.Acts Outside Scope of Employment

A

Within Scope: When performing work assigned by the employer OR engaging in conduct subject to the employer’s control.Outside Scope: Tort occurs within an independent course of conduct AND is not intended by the employee to serve any purpose of the employer.Priority: HIGH

35
Q

_Vicarious Liability_What causes an employee’s intentional torts to be considered within the scope of employment?

A

The Act was:* specifically authorized by the employer;* driven by a desire to serve the employer; OR* the result of naturally occurring friction from the type of employment.Priority: HIGH

36
Q

_Vicarious Liability_In what situations is a principal still liable despite the doctrine of respondeat superior being inapplicable?

A

When:1. The principal intended the conduct or consequences;2. The principal was negligent in selecting, training, retaining, supervising, or controlling the agent;3. The conduct involved a non-delegable duty to an injured person with whom they had a special relationship; OR4. The agent had apparent authority, the agent’s actions taken with apparent authority constitute the tort (or enable the agent to conceal it), and a third-party reasonably relied on that authority.Priority: HIGH

37
Q

_Vicarious Liability_When will a principal be liable for torts committed by an independent contractor?

A

If:* The contractor is engaged in an inherently hazardous activity;* The duty owed by the principal is non-delegable; OR* Through the doctrine of estoppel:The principal holds the contractor out as his agent to a third-party, they reasonably relied on the agent’s skill, and the third-party suffered harm as a result.Priority: HIGH

38
Q

When is a defendant entitled to Indemnification?

A

When the defendant is a passive tortfeasor AND seeks to assert his claim against an active tortfeasor.The defendant is entitled to recover the FULL amount he paid (or may have to pay) to the plaintiff from the active tortfeasor.*Indemnification is available in vicarious liability situations or by contract.Priority: Medium

39
Q

When is a defendant entitled to Contribution?

A

A joint tortfeasor may seek contribution from other joint tortfeasors if he pays more than his percentage share of liability.*The amount recoverable is based on PURE comparative fault – a defendant CANNOT recover from another more than that person’s percentage of fault.Priority: Medium

40
Q

What is the Doctrine of Alternative Liability?

A

It allows the jury to find ALL defendants liable if:1. Multiple defendants are deemed negligent,2. But it’s unclear which one caused the plaintiff’s injury.Priority: HIGH

41
Q

What is the Doctrine of Joint Enterprise?

A

It allows the negligence of one defendant to be imputed to other defendants if:1. Multiple defendants were engaged in a common project or enterprise; AND2. All defendants made an explicit/implied agreement to engage in tortious conduct.Priority: HIGH

42
Q

What is the Doctrine of Market Share Liability?

A

ALL manufacturers are liable to their proportional share of the market when the following factors are present:1. All the named Ds are potential tortfeasors;2. The harmful products are identical and share the same defective qualities;3. P is unable to identify which D caused the injury; AND4. Substantially all of the manufacturers that created the defective products during the relevant time period are named as Ds.Priority: HIGH

43
Q

_Defamation_What are the elements of Defamation?

A
  1. A false defamatory statement,2. Of and concerning the plaintiff made by the defendant,3. Publication by a defendant to a third party, AND4. DamagesPriority: Medium
44
Q

_Defamation_What are the four Slander Per Se categories?

A
  1. Impugning the business integrity of the plaintiff.2. A statement of unchastity about an unmarried woman.3. A statement that the plaintiff had/has a loathsome disease.4. Attributing a crime of moral turpitude to the plaintiff.Priority: Medium
45
Q

_Defamation_Who is deemed a Public Figure?What heightened standard applies if plaintiff is a Public Figure or Public Official?

A

Public Figure = Either (a) injected himself into a public controversy; OR (b) having achieved widespread notoriety.If person is a Public Figure or Official, then a heightened defamation standard applies.P must also prove: Actual malice – D spoke with recklessness or knowledge of falsity.Priority: Medium

46
Q

_Defamation_If plaintiff is a Private Figure on a Matter of Public Concern, what standard applies?

A

Plaintiff MUST ALSO PROVE:That the speaker was negligent.Priority: Medium

47
Q

What are the Invasion of Privacy torts?

A
  1. Misappropriation of Name or Picture.2. False Light.3. Intrusion of Privacy.4. Public Disclosure of Private Facts.Priority: Medium
48
Q

What are the elements of Misappropriation of Name or Picture?

A

When defendant:1. Uses plaintiff’s name or likeness,2. For defendant’s commercial advantage.*Newsworthiness is a defense.Priority: Medium

49
Q

What are the elements of False Light?

A

When defendant:1. Causes widespread dissemination,2. Of plaintiff’s beliefs, thoughts, or actions,3. In a false light,4. That would be highly objectionable to a reasonable person.*If a matter of public concern or public figure → must show actual malice.Priority: Medium

50
Q

What are the elements of Intrusion of Privacy?

A

When:1. D intrudes into the private affairs of P;2. P has a reasonable expectation of privacy; AND3. The intrusion is highly objectionable to a reasonable person.Priority: Medium

51
Q

What are the elements of Public Disclosure of Private Facts?

A

When defendant:1. Caused widespread dissemination,2. Of truthful private information,3. That would be highly objectionable to a reasonable person.*Newsworthiness is a defense unless actual malice is present.Priority: Medium

52
Q

What are the elements of Intentional Interference with Business Relations?

A
  1. There was a contract or business expectancy;2. The defendant knows of the contract/expectancy;3. The defendant intentionally induces another party to breach or terminate the contract/relationship;4. A breach occurs; AND5. Plaintiff suffered damages.Priority: Medium
53
Q

What are the elements for Intentional Misrepresentation?

A

Plaintiff must show:1. Misrepresentation of material facts by the defendant;2. The defendant knew the statement was false;3. Intent of the defendant to induce the plaintiff;4. Actual and reasonable reliance by the plaintiff; AND5. Damages.Priority: Medium

54
Q

What are the elements for Negligent Misrepresentation?

A

Plaintiff must show:1. A misrepresentation by the defendant;2. Supplied for the guidance of others in a business transaction;3. The defendant knew that the information was supplied to guide the plaintiff in his business transactions;4. The defendant was negligent in obtaining/communicating the false information;5. Actual and reasonable reliance by the plaintiff; AND6. The false info proximately caused damages.Priority: Medium

55
Q

Public Nuisance vs. Private Nuisance

A

Public Nuisance: (1) an unreasonable interference, (2) with the health, safety, or property rights, (3) of the community.To recover the injured party must show ACTUAL damages.Private Nuisance: (1) a substantial and unreasonable interference, (2) with a person’s use/enjoyment of her property.Priority: Medium

56
Q

A defendant engaging in an Abnormally Dangerous Activity is subject to strict liability.What is an Abnormally Dangerous Activity?

A

An activity that:1. Is not of common usage in the community; AND2. Creates a foreseeable and highly significant risk of physical harm (even when reasonable care is exercised).Priority: Medium

57
Q

What are the elements for Strict Products Liability?

A
  1. The product was defective (manufacturing defect, design defect, failure to warn);2. The product was not altered when it reached the plaintiff;3. The product caused an injury when it was being used in an intended use (or unintended foreseeable use); AND4. The defendant is a commercial supplier who routinely deals in goods of this type.Priority: HIGH
58
Q

What 3 theories are available to prove Strict Products Liability?

A

Manufacturing Defect: Product differs from the intended design AND is more dangerous than if made properly.Failure to Warn:Plaintiff was not warned of the risks regarding use, which are not obvious to an ordinary user.Design Defect: There was a way to build the product that was safer, more practical, AND at a similar cost.Priority: HIGH

59
Q

What is the definition of a Commercial Supplier?

A

Any person/entity who is engaged in selling goods of the type (routinely sells such goods).*A strict products liability suit may ONLY be brought against a commercial supplier of goods.Priority: HIGH

60
Q

_Products Liability – Breach of Warranty_What is the Implied Warranty of Merchantability?

A

It requires that ALL goods sold by a merchant be fit for their ordinary purpose.*The only issue to determine is whether the product was merchantable when sold.Priority: Medium

61
Q

_Products Liability – Breach of Warranty_When is an Implied Warranty of Fitness for a Particular Purpose created?

A

When:1. A seller knows or has reason to know of the buyer’s particular purpose for which the goods are required; AND2. The buyer relies on the seller’s skill/judgment to select suitable goods.Priority: Medium

62
Q

_Products Liability – Breach of Warranty_When is an Express Warranty created?

A

When:1. A seller makes an affirmation of fact, promise, or description, OR provides a sample;2. Which relates to the goods; AND3. It becomes part of the basis of the bargain.Priority: Medium

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