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Bar Exam > Torts > Flashcards

Torts Flashcards

1
Q

Battery + Damages

Tort

A
  1. D cause harmful or offensive contact with person of another, and
  2. Acts with intent to cause the contact or apprehension of the contact

Damages - no proof of harm required, nominal allowed

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2
Q

Assault + Damages

Tort

A

D engages in act that:
1. Causes reasonable apprehension of imminent harmful/offensive bodily contact, and
2. Intends to cause apprehension or the contact itself

No contact required

Mere words generally not enough

Damages - no proof of physical harm required; nominal allowed

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3
Q

IIED + FEAR

A

D is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes P severe emotional distress

“Severe and outrageous” = introlerable in civilized society

FEAR
* Flagrant indecency
* Exploiting known & special vulnerabilities
* Abusing authority
* Repeated harassment

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4
Q

IIED + Public Figures/Officials

A

Cannot recover unless can show the words contain a false statement of fact that was made with actual malice (false or reckless disregard for falsity)

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5
Q

IIED + Transferred Intent

A

Only applicable if:
1. Immediate family member
2. Bystander sees the conduct and suffers physical manifestation of distress, or
3. Different intentional tort

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6
Q

IIED Damages

A

Emotional distress beyond what a reasonable person should endure

Physical injury not required unless bystander

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7
Q

False Imprisonment

A
  1. D intends to confine or restrain another within fixed boundaries
  2. Action directly or indirectly results in confinement, and
  3. P is conscious of confinement or harmed by it

Does not include confinement due to D’s negligence

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8
Q

Shopkeeper’s Privilege

A

Defense to false imprisonment

A shopkeeper can detain a suspected shoplifter for a reasonable time and in a reasonable manner

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9
Q

Defenses to Intentional Torts re Personal Injury

A
  1. Consent - express or implied
  2. Self-Defense - force must be proportionate, cannot be initial aggressor
  3. Defense to others
  4. Defense of property - not deadly force
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10
Q

Trespass to Chattels + Damages

A

Intentional interference with P’s right to possess personal property either by:
1. Dispossessing P of the chattel
2. Using or intermeddling with P’s chattel, or
3. Damaging chattel

Damages - actual damages, nominal, costs of repair

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11
Q

Conversion + Damages

A

Intentionally committing an act depriving P of possession of chattel or interfering with P’s chattel in a way as to seriously deprive P of the use of the chattel

Damages - full value of chattel at time of conversion - more than T2C

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12
Q

Trespass to Land + Damages

A

D intentionally causes intentional invasion of someone’s property

Only intent to enter land

Damages - no proof of actual damage required

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13
Q

Duty Rule

A

A duty of care is owed to all persons who may foreseeably be injured by D’s conduct

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14
Q

Scope of Duty

2 Approaches

A

Cardozo - duty is owed only if P is member of class of persons foreseeably harmed by the conduct

Andrews - duty to everyone anytime conduct could harm someone

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15
Q

Standard of Care Rule

A

Reasonably prudent person under the circumstances measured by objective standard

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16
Q

Does more specific duty apply?

CABP

A
  1. Common carriers/innkeepers
  2. Automobile drivers
  3. Bailors/bailees
  4. Possessor of Land
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17
Q

Duty to Trespassers

A

Undiscovered trespassers –> no duty
Discovered/anticipated –> duty to warn/protect from hidden dangers

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18
Q

Attractive Nuisance

A

Liable for injuries to children trespassing on land if:
1. Artificial condition in place owner knows/has reason to know children are likely to trespass
2. Knows/has reason to know artificial condition poses unreasonably high risk of death or serious bodily harm
3. Children cannot appreciate the danger
4. Utility in maintaining condition is slight compared to risk of injury, and
5. Owner failed to exercise reasonable care

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19
Q

Duty to Licensees

A

Duty to make property reasonably safe or warn of concealed dangers, no duty to inspect

Licensee - someone with express/implied permission

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20
Q

Duty to Invitees

A

Duty of reasonable care to inspect property, discovery unreasonably dangerous conditions, take steps to protect invitees

Invitee - someone who enters land for material or business purpose

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21
Q

Breach of Duty Tests

A
  1. Reasonably prudent person under the circumstances
  2. BPL
22
Q

Special Breach Rules

A
  1. Custom
  2. Statutes - NPS
  3. Res Ipsa
23
Q

Custom for Breach

A
  1. Professionals - dispositive
  2. Physicians - informed consent
24
Q

Negligence Per Se

A
  1. P must be in class of persons statute intends to protect
  2. Accident is the type statute intends to protect against
  3. Harm was caused by the violation
25
Q

Res Ipsa Elements

A
  1. Accident was of a kind that does not ordinarily occur in absence of negligence
  2. Caused by agent/instrumentality within D’s exclusive control, and
  3. Not due to any action by P
26
Q

Proximate Cause Rule

A

Scope of liability focuses on whether the harm was foreseeable and there were no superceding causes that break the chain of causation

27
Q

NIED

A

Only recoverable if:
1. P was in zone of danger
2. Bystander recover - closely related, present, and personally observed
3. Special relationship - corpse
4. Physical manifestation of distress

28
Q

Contributory Negligence

A

If P is negligent in some way, P is completely barred from recovery

Limit - last clear chance doctrine - P can still recover

29
Q

Pure Comparative Negligence

A

P’s recovery is reduced by the amount of P’s fault

30
Q

Modified Comparative Negligence

A

If P is more at fault than D, P’s recovery is barred

Some jx - P is barred if P is equally at fault as D

31
Q

3 Types of Strict Liability

A
  1. Abnormally dangerous activities
  2. Wild animals
  3. Defective products
32
Q

Abnormally Dangerous Activity factors

A
  1. Whether creates foreseeable and highly significant risk of harm even when actor takes due care
  2. Severity of the harm
  3. Appropriateness of the location
  4. Value to the community

Liable for harm that flows from the risk that makes the activity dangerous

33
Q

Wild Animals

A

Strictly liable for harm arising from animal’s dangerous propensities

Domestic animals - liable only if dangerous propensity is known to owner

34
Q

Defenses to Strict Liability

A
  1. Contributory negligence - does not bar recovery
  2. Comparative negligence - depends on jx
  3. Assumption of risk - complete bar
35
Q

3 Types of Strict Products Liability

A
  1. Manufacturing defect
  2. Design defect
  3. Failure to warn
36
Q

Strict Products Liability Elements

A
  1. Product was defective
  2. Defect existed when product left D’s control, and
  3. Defect caused P’s injury when product was used in foreseeable way
37
Q

Manufacturing Defect Test

A

Product deviated from its intended use

Product does not conform with manufacturer’s own specificiations

38
Q

Design Defect 2 Tests

A
  1. Consumer Expectations Test - defective if it is less safe than the ordinary consumer would expect
  2. Risk Utility Test - defective if risk outweighs its benefits and there are no reasonable alternative designs
39
Q

Failure to Warn Test

A

Failure to warn of a foreseeable risk not obvious to ordinary consumer

Learned intermediary exception

40
Q

Defenses to Strict Products Liability

A
  1. Comparative fault - will reduce recovery
  2. Contributory negligence - not a bar
  3. Assumption fo risk - complete bar
  4. Product misuse/modification/alteration - no bar if misuse/modification/alteration was foreseeable
  5. Substantial change in product - complete bar
  6. Disclaimers/waivers - not a bar
41
Q

Defamation

A

P must show that D:
1. Made a defamatory statement (false)
2. Of or concerning P
3. Statement was published to 3rd party who understood its defamatory nature
4. Damages P’s reputation

42
Q

Libel

A

Written, printed, recorded statements

P can recover general damages

43
Q

Slander

A

Spoken defamation

Damages - special damages

44
Q

Defenses to Defamation

A
  1. Truth - absolute defense
  2. Consent
  3. Absolute privilege
  4. Conditional privilege
45
Q

Intrusion upon Seclusion

A

D intrudes upon P’s private affairs in manner that is objectionable to a reasonable person

46
Q

False Light

A

D:
1. Makes public facts about P
2. That place P in a false light,
3. Which would be highly offensive to a reasonable person

47
Q

Appropriation of Right to Publicity

A

Occurs when someone:
1. Appropriate’s another’s likeness or name
2. For D’s advantage
3. Without consent, and
4. Causes injury

48
Q

Public Disclosure of Private Facts

A
  1. D publicizes matter concerning private life of another, and
  2. Matter publicized is (1) highly offensive to reasonable person and (2) is not legitimate concern to public
49
Q

Fraud

A
  1. False representation
  2. Scienter - D knows falsity or acted with reckless disregard to falsity
  3. Intent to induce reliance on statement
  4. Causation
  5. Justifiable reliance
  6. Damages - actual, economic, pecuniary
50
Q

Negligent Misrepresentation

A
  1. D provides false info to P
  2. D is negligent in preparing the information
  3. During course of business or profession
  4. Causing justifiable reliance, and
  5. P is in (1) contractual relationship with D or (2) P is in small group to benefit
51
Q

Intentional Interference with Contract

A
  1. A valid contract between P and third party
  2. D knew of contractual relationship
  3. D intentionally interfered with contract, resulting in breach, and
  4. Breach caused P damages

Bar Exam (13 decks)

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