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Bar Exam > Torts > Flashcards

Torts Flashcards

1
Q

To establish a PFC for ANY intentional tort, what must P prove?

A
  1. An act by D
  2. Intent by D
  3. Causation of the result to P from D’s act
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2
Q

When does the transferred intent doctrine apply?

A

When D:
- Commits a different tort against that person;
- Commits the same tort as intended but against a different person; OR
- Commits a different tort against a different person

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3
Q

What are the 7 intentional torts?

A

TO PERSON:
1. Battery
2. Assault
3. False Imprisonment
4. IIED

TO LAND:
5. Trespass to Land
6. Trespass to Chattels
7. Conversion

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4
Q

The requisite intent for intentional torts (such as battery) is satisfied:

A

If the actor knows with substantial certainty that the consequences of her conduct will result.

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5
Q

Battery elements?

A
  1. Harmful or offensive contact
    - (offensive to a reasonable person)
  2. With P’s person
    - (includes anything P is holding or touching)
    - (can be indirect, like setting a trap)
  3. Intent
  4. Causation
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6
Q

Assault elements?

A
  1. Act by D creating reasonable apprehension in P
    - (P must be aware)
    - (fear not required)
    - (apparent ability sufficient)
  2. of an immediate battery
    - (words alone lack immediacy, need overt action)
    - (BUT words can destroy immediacy)
  3. Intent
  4. Causation

(Damages not required)

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7
Q

False Imprisonment elements?

A
  1. An act or omission of restraint
    - (threats can be restraint)
    - (P must be aware)
  2. P confined in bounded area
    - (not bounded if reasonable means of escape that P can reasonably discover)
  3. Intent
  4. Causation

(Damages not required)

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8
Q

IIED elements?

A
  1. Extreme and outrageous conduct (exceeds all bounds of decency tolerated in a civilized society)
    - (mere insults not outrageous)
  2. P suffered severe emotional distress
    - (can prove however you want to, leave to jury)
  3. Intent
  4. Causation

Actual damages (severe emotional distress), not nominal damages, are required.

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9
Q

Conduct that is not normally outrageous may become so if:

A

Conduct that is not normally outrageous may become so if:
- Repetitive
- D is common carrier or innkeeper
- P member of fragile class (children, elderly, pregnant, sensitive adult if sensitivities known to D)

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10
Q

Trespass to land elements?

A
  1. Physical invasion
    - (by person or object)
    - (awareness of boundary not needed)
    - (deliberate act required)
    - (must be tangible, otherwise could be nuisance, not trespass)
  2. of land
    - (includes air/soil to reasonable distance)
  3. Intent
  4. Causation

(Damages not required)

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11
Q

Trespass to chattels elements/definition?

A
  1. Act by D that interferes with P’s right of possession in a chattel.
    - (personal property)
    - (interference can be damage or depriving possession)
    - (intent to do act of interference is all that’s required)
  2. Intent
  3. Causation

Actual damages required - not necessarily to a chattel, but at least to a possessory right - are required.

NOTE: if interference is serious enough to warrant D paying chattel’s full value, tort is conversion.

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12
Q

Conversion elements/definition?

A
  1. Act by D that interferes with P’s right of possession in a chattel
    - (personal property)
    - (interference can be damage or depriving possession)
    - (intent to do act of interference is all that’s required)
  2. Interference serious enough to warrant D paying chattel’s full value
  3. Intent
  4. Causation

Actual damages required - not necessarily to a chattel, but at least to a possessory right - are required.

NOTE: if less than full value, tort is trespass to chattels.

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13
Q

What are the 3 main defenses against intentional torts?

A
  1. Consent
  2. Protective Privileges
    - Self defense
    - Defense of others
    - Defense of property
  3. Necessity
    - Public necessity
    - Private necessity
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14
Q

How to show consent as defense to intentional tort?

A
  1. Was there valid consent?
    - (fraud/duress voids express consent)
  2. Did D stay within the boundaries of consent?

Note implied consent:
- implied by custom and usage
- Body language consent/reasonable conduct interpretation consent

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15
Q

What are the protective privileges available for defense in claim for intentional tort, and their analysis?

A
  1. Self-defense
    - D reasonably believes they are about to be attacked
    - no duty to retreat
  2. Defense of others
    - must reasonably believe the other could have used force to defend themselves
  3. Defense of property
    - no use of deadly force
    - no self-help for reentry onto land

Must have:
1. Proper timing
2. Reasonable accuracy/belief

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16
Q

May force be used in the recapture of chattels?

A
  • When another’s possession began lawfully: NO;
  • Reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, for example, by theft.
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17
Q

What are public and private necessity, and how are they applied as defenses to intentional torts?

A

Public necessity: D acts in emergency to protect community
- absolute defense

Private necessity: D acts in emergency to protect own interests
- Limited defense
– Must pay compensatory damages
– But not liable for nominal/punitive damages (think trespass to land, don’t break anything)
– can remain as long as emergency continues

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18
Q

When does the shopkeeper’s privilege apply?

A
  • must be reasonable belief as to fact of theft
  • detention conducted in a reasonable manner, only nondeadly force allowed
  • detention for a reasonable period of time, only for investigation
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19
Q

Negligence elements?

A
  1. Duty
  2. Breach
  3. Causation
    - factual
    - proximate
  4. Damages
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20
Q

Regarding negligence, to whom do you owe a duty?

A
  • Foreseeable victims
  • Within the “zone of danger”
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21
Q

Are rescuers foreseeable plaintiffs?

A

Yes, when D negligently put themselves or a third person in peril. Rescuers are owed a duty of care.

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22
Q

Is a 3rd party for whose economic benefit a legal or business transaction was made (like the beneficiary of a will) a foreseeable plaintiff?

A

Yes.

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23
Q

Regarding negligence, what is the standard of care?

A

The “reasonably prudent person.”
- hypothetical person
- no allowance for D’s shortcomings
- objective standard

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24
Q

Regarding negligence, what is the effect on the standard of care owed when the D has superior skill or knowledge?

A

Hypothetical reasonably prudent person with the same superior skill or knowledge.

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25
Q

Regarding negligence, what is the effect on the standard of care owed when the D has a relevant physical characteristic, like being blind or deaf?

A

The “reasonably prudent person” is considered to have the same physical characteristics as D if those physical characteristics are relevant to the claim.

Note: e.g., blind person should act like reasonably prudent blind person – e.g., no driving cars!

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26
Q

What negligence duty do children owe?

A

Under age 5: No standard

Age 5-18: hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
- subjective standard
- pro-defendant standard

Exception for child engaged in adult activity:
- reasonably prudent person standard
- most common: Operating a motorized vehicle

27
Q

What negligence duty do professionals owe?

A

Same care as average member of profession providing similar professional services
- AVERAGE, (NOT reasonable)
- compare to real world, not imaginary
- empirical standard
- conform to colleagues
- custom of profession sets standard
- DON’T SAY REASONABLE ON EXAM

28
Q

Regarding premises liability, what are the 4 types of entrants?

A
  1. Unknown trespasser
  2. Known/anticipated trespasser
  3. Licensee
  4. Invitee
29
Q

Regarding premises liability, what duty is owed to unknown trespassers to land?

A

No duty is owed.

30
Q

Regarding premises liability, what duty is owed to known/anticipated trespassers to land?

A

Known or anticipated trespasser: pattern of past trespassing renders them known/anticipated.

DUTY to make safe any conditions that are (all 4):

KNOWN, MAN-MADE DEATH TRAPS:
1. Artificial
2. Highly dangerous
3. Concealed
4. Known to land possessor in advance

(AHCK)!

31
Q

Regarding premises liability, what makes someone a licensee? What duty is owed to licensees?

A

Licensee: Enters land with permission but without financial benefit to possessor.
- Social guests are licensees

DUTY to warn of or make safe hazardous conditions that are:

ALL KNOWN TRAPS:
- Concealed
- Known to land possessor in advance

No duty to inspect or repair.

32
Q

Regarding premises liability, what makes someone an invitee? What duty is owed to invitees?

A

Invitees: Enter land with permission for financial benefit of possessor.
- includes when open to public at large

DUTY to warn or make safe hazardous conditions that are:

ALL REASONABLY DISCOVERABLE TRAPS:
- Concealed
- Known to land possessor OR could have discovered through reasonable inspection

33
Q

Premises liability for firefighters and police officers?

A

No duty owed for inherent risks of the job.

34
Q

Premises liability for trespassing children?

A

Reasonably prudent care under circumstances to protect from artificial hazards.

Must remove attractive nuisances.

35
Q

Negligence per se elements?

A
  1. Violation of statute or public reg
  2. Purpose of statute/reg is to prevent accidents
  3. P is member of class the statute/reg is designed to protect; and
  4. Violation is unexcused.

NOTE: NPS serves as conclusive DUTY and BREACH only.

36
Q

What are the exceptions to the general rule that there is no duty to act?

A
  1. Special relationship between parties:
    - e.g., parent-child
    - common carriers, innkeepers, shopkeepers
    - all others that gather the public for profit
  2. Defendant who caused the peril

BOTH: not duty to rescue, but duty to act reasonably under circumstances

37
Q

What is a good samaritan law?

A

Insulates negligent rescuers from ordinary, but not gross, negligence liability.

38
Q

NIED elements for near miss cases?

A
  1. P must be within “zone of danger”
  2. P must suffer physical symptoms
39
Q

NIED elements for bystander cases?

A
  1. Closely related (spouse, parent, minor child, etc.)
  2. P was present at the scene of the injury and personally observed or perceived the event
40
Q

Regarding NIED, what are some examples of business relationships where emotional distress is highly foreseeable? What is the attendant liability?

A

Examples:
- Patient/medical lab
- Customer/funeral parlor
- NOT customer/dry cleaner

Liability:
-D liable when duty arises from this relationship.
- Most states drop requirement of physical symptoms

41
Q

How can P show Res Ipsa Loquitur?

A

P must show:

  1. Accident normally associated with negligence; AND
  2. Accident would normally be due to negligence of someone in D’s position.
    -This can be show by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.

NOTE: RIL establishes PFC but does not entitle P to judgment automatically (NO directed verdict!)

42
Q

How to show causation for negligence? What about merged causes and unascertainable causes?

A
  1. Factual causation:
    - General rule: “but for” test;
    - Merged causes: “substantial factor” test
    - Unascertainable causes: shift burden of proof to each D to show his negligence not the actual cause

AND

  1. Proximate causation:
    - General rule: Is injury foreseeable consequence of act or omission?
43
Q
  1. Merged causes: how to analyze factual causation when several causes bring about an injury and any one alone would have been sufficient to cause the injury?
  2. Unascertainable cause: What about when there are two acts, only one of which causes injury, but it is not known which one?
A
  1. D’s conduct is cause in fact if it was a “substantial factor” in causing the injury.
    - Ds may be held jointly and severally liable if both found to be substantial factor
  2. The burden of proof shifts to Ds to show that his negligence is not the actual cause.
44
Q

What are some common foreseeable intervening forces?

A
  • Medical malpractice
  • Negligence of rescuers
  • Protection or reaction forces
  • Subsequent disease or accident

INCREASED RISK OF HARM: note that if D’s negligence increased risk of harm from particular force, D can be liable, even if intervening force is (1) negligent acts of 3rd persons, (2) crimes and intentional torts of third persons, and (3) acts of God.

E.g., valet leaves keys in car, car is stole, valet could be liable.

45
Q

Regarding intervening forces, what is the effect when D negligently increases the risk of harm to P from a particular force?

A

D can be liable, even if intervening force is:
(1) negligent acts of 3rd persons,
(2) crimes and intentional torts of third persons, and
(3) acts of God.

46
Q

What is a superseding force and what is its effect?

A

Intervening forces that produce unforeseeable results
- (results not within the increased risk created by D’s negligence) are generally deemed unforeseeable and superseding.

Superseding forces break the causal connection between D’s act and P’s injury.

47
Q

What is the “eggshell plaintiff” rule?

A

Once P has established all other elements of negligence claim, P receives ALL damages suffered, even if surprisingly great in scope.

48
Q

Negligence defenses and their effect?

A

Contributory negligence
- P’s claim completely barred
- Unless D had last clear chance
- Does not apply to wanton or reckless tortious conduct

Implied assumption of risk:
- P’s claim completely barred

Pure comparative negligence:
- P’s award reduced by % of fault attributable to P

Partial comparative negligence:
- P’s damage award reduced if their fault is below the threshold level (usually 50%); otherwise, P’s claim barred

49
Q

Liability for domesticated animals?

A
  • Generally NO strict liability
  • Exception if knowledge of animal’s dangerous propensities (this particular creature, not the species as a whole)
50
Q

Liability for wild animals?

A

Strictly liable

51
Q

What makes an activity abnormally dangers such that it warrants strict liability?

A
  • activity must create foreseeable risk of serious harm even when reasonable care is exercised
  • activity is not a matter of common usage in the community

Examples include explosives, chemical materials, nuclear radiation, etc.

52
Q

Elements for strict liability for product liability?

A
  1. D is merchant
    - Casual seller NOT merchant
    - Service provider NOT merchant
    - Commercial lessor IS merchant
    - Everyone in distribution chain is merchant
  2. Product is defective
    - manufacturing defect
    - design defect
    - information defect
  3. Product was not substantially altered since leaving D’s control
  4. P was making a foreseeable use of the product at the time of injury
53
Q

What is a manufacturing defect?

A

Product emerges from manufacturing different from others and more dangerous than consumers would expect.

54
Q

What is a design defect? What must P show to prove design defect?

A

Risks associated with product’s design outweigh utility of design.

P must show alternative design:
- would have been safer
- was practical
- was economically feasible

55
Q

What is an information defect? What is the associated analysis?

A

Hidden risks without adequate warnings/instructions.

Adequate Warnings:
- prominent
- comprehensible
- provide information about mitigating risk
- P making foreseeable use of the product
- Product not substantially altered since leaving D’s control
– but if product moved in ordinary channels of distribution, presumed not altered (so not often tested)

56
Q

Nuisance defined?

A

Nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of property.

On the exam, just look for the answer that embodies this definition. IT will likely be only one question on the test.

57
Q

Test of vicarious liability for employer/employee, generally and for intentional torts?

A

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

NOTE: Frolic or Detour: An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment.

For intentional torts, usually not vicariously liable, unless employee is furthering the business of the employer, force is authorized, or friction is generated by the employment (like bill collectors).

58
Q

Defamation elements?

A
  1. Defamatory statement specifically identifying P;
  2. Published to third party
  3. Falsity
  4. Fault on D’s part
  5. Damage to P’s reputation
59
Q

Fault required defamation plaintiffs:
- Private?
- Public figure?

A
  • Private person: Negligence
  • Public figure: Knowledge or reckless disregard (malice)
60
Q

Libel definition?

A

(Damages presumed)

Libel is defamation that is embodied in permanent form.

61
Q

Slander per se categories?

A

(Damages presumed)

  1. Business/profession related
  2. Serious crime
  3. Serious sexual misconduct
  4. Loathsome disease
62
Q

Affirmative defenses to defamation?

A
  1. Consent
  2. Truth
  3. Privilege
    - Absolute priv (spouses, remarks re judicial, legisl, exec proceedings
    - Qualified priv (public interest to encourage candor)
63
Q

The tort of invasion of privacy includes 4 kinds of wrongs. What are they?

A
  1. Appropriation
    - of P’s picture or name
  2. Intrusion
    - on P’s affairs or seclusion
  3. False light
    - publication of facts placing P in false light
  4. Disclosure: public disclosure of private facts
    - about P

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