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torts Flashcards

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1
Q

elements of intentional torts

A

*act or omission
*intent
*causation

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2
Q

definitions of intent

A

*purpose of causing something
*knowing with substantial certainty the thing will happen

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3
Q

elements of battery

A

*D acts in a manner that
*causes harmful or offensive contact (direct or indirect contact, with anything connected to the person)
*with the intent to cause contact

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4
Q

elements of assault

A

*D acts in a manner that
*causes reasonable apprehension of imminent harmful or offensive conduct
*with the intent to cause apprehension

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5
Q

elements of intentional infliction of emotional distress

A

*D engages in extreme and outrageous conduct that
*causes P severe emotional distress
*with the intent to cause distress or with recklessness as to the risk of causing distress

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6
Q

elements of false imprisonment

A

*D acts in a manner that
*directly or indirectly results in confinement
*with the intent to confine or restrain P within fixed boundaries
*and P is conscious of the confinement or harmed by it

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7
Q

defenses to intentional torts

A

*consent (actual and implied)
*capacity
*self-defense
*defense of others
*defense of property
*recapturing chattels
*parental privilege
*privilege of arrest

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8
Q

what use of force is allowed for self-defense, defense of others, defense of property, recapture of chattels, regaining possession of land?

A

*self-defense: reasonable and proportionate
*defense of others: reasonable, as long as third party had privilege of self-defense
*defense of property: reasonable BUT never deadly
*recapturing chattels: reasonable unless the taking was legal
*regain possession of land: no force (legal remedies only)

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9
Q

elements of trespass to chattels

A

*dispossess P of chattel OR use or intermeddling with P’s chattels (or damage)
*with the intent to perform the interfering act (not intent to interfere)

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10
Q

elements of conversion

A

*deprive P of possession OR interfere with the chattel in a manner so serious as to deprive P entirely of its use
*with the intent to perform the interfering act (not intent to interfere)

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11
Q

trespass to chattels vs. conversion (+factors)

A

*the level of interference

*the duration and extent of interference
*D’s intent to assert a right inconsistent with the rightful possessor
*D’s good faith
*the expense or inconvenience to P
*the extent of harm

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12
Q

elements of trespass to land

A

*D physically invades land (with person or objects)
*with the intent to enter or invade

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13
Q

private vs. public nuisance

A

D substantially and unreasonably interferes with P’s use and enjoyment of their land

vs.

D unreasonably interferes with a right common to the public as a whole

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14
Q

exception to trespass to land

A

*private necessity: liable for actual damages
*public necessity: complete bar

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15
Q

circumstances creating an affirmative duty to act

A

*assuming a duty / voluntary undertaking (e.g., rescuer)
*placing another in danger / risk creator
*by authority: must have the ability and actual authority to control another
*by (special) relationship

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16
Q

traditional (majority) rule for land possessor’s duty of care

A

*invitee: on land for a material/economic purpose or land open to public / must use reasonable care to inspect, discover unreasonable dangerous conditions, and take reasonable steps to protect

*licensee: gets permission to enter / must make the land reasonably safe or warn of hidden dangerous, must use reasonable care in acting

*trespasser: no duty (but can’t act willfully or wantonly)

*discovered/anticipated trespasser: same as licensee

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17
Q

minority rule for land possessor’s duty of care

A

reasonable care for all except flagrant trespassers

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18
Q

elements of attractive nuisance

A

*artificial conditions exists in a place where the owner knows or has reason to know that children are likely to trespass
*the owner knows or has reason to know the artificial condition poses an unreasonable risk of death or serious bodily harm
*children, due to age, don’t discover or can’t appreciate the danger
*maintenance is slight compared to the risk of injury
*the owner failed to exercise reasonable care

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19
Q

landlord duties

A

*maintain safe common areas
*repair hazardous conditions
*warn of hidden dangers

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20
Q

duty to off-premises victims

A

prevent unreasonably dangerous artificial conditions

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21
Q

informed consent exceptions

A

*the risk is commonly known
*the patient is unconscious
*the patient waives or refuses informed consent
*the patient is incompetent
*the patient would be harmed by the information

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22
Q

elements of negligence per se

A

*a statute imposed a duty on D
*D violated the statute
*P suffered the type of harm intended to be prevented by the statute
*P was in the class meant to be protected
*the violation caused the harm

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23
Q

considerations for duty

A

*does a duty exist? was this a foreseeable P and foreseeable harm?
*what is the standard of care?

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24
Q

considerations for causation

A

*is there “but for” causation? if not, are there multiple tortfeasor? multiple sufficient causes? a loss of chance?
*was the breach a proximate cause of the harm? was the harm within the scope of the breach? did an intervening (foreseeable, like negligence) vs. superseding cause occur?

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25
excuses to negligence per se
*compliance would have been more dangerous *compliance was impossible (or an emergency arose) *the party exercised reasonable care in trying to comply *the party was incapacitated *the statue is too vague
26
elements of res ipsa loquitor (traditional vs. modern)
*the accident was of a kind not ordinarily occurring in the absence of negligence *the thing causing the harm was within the exclusive control of D *the harm was not due to any action by P vs. *the accident was of a type ordinarily occurring as a result of negligence of a class of actors *D is a member of that class
27
what are compensatory damages?
actual damages provided with the purpose of making P whole again
28
how are compensatory damages calculated for personal injury and property damage?
*personal injury = past and future medical expenses + lost income + reduced earning capacity + past and future pain and suffering *property damage = different in market value (OR cost of repair or replacement)
29
when does NIED apply?
*if the person is within the zone of danger and the threat of immediate physical impact (caused by D's negligence) caused them emotional distress *if the person is a bystander (closely related to injured person, present at scene, and personally observed the injury) *if a special situation exists (announcement of death or illness in error, mishandling corpse of loved one, contaminating food with repulsive object)
30
five special types of liability for negligence
*loss of consortium *wrongful death *survivor action *wrongful birth *wrongful life
31
when are employers liable for the actions of independent contractors?
*nondelegable duties: inherently dangerous activities, duty to public or specific Ps for certain work, duty to keep premises safe *apparent authority: the injured person accepted the IC's services on a reasonable belief the IC was an employee (based on the manifestations of the employer), the IC's negligence is a but for and proximate cause of the harm
32
types of liability for car owners
*negligent entrustment: directly liable for negligently entrusting a car to someone who is not in the position to exercise reasonable care *family purpose doctrine: vicariously liable for any family member driving the car with permission *owner liability: vicariously liable for anyone driving the car with permission
33
triggers of joint and several liability
*multiple tortfeasors *multiple sufficient causes *res ipsa loquitor against multiple Ds *tortfeasors acting in concert *vicarious liability
34
types of comparative negligence
*pure: reduce damages by amount at fault *modified: same but recovery barred if 50% or more at fault
35
defenses to negligence
*contributory negligence *comparative negligence *assumption of the risk
36
factors influencing whether a condition is abnormally dangerous (strict liability)
*the severity of the harm *the appropriateness of the location *whether the condition brings great value to the community
37
considerations for strict liability based on animals
*is it a domestic animal? *does the domestic animal have a known dangerous propensity? or is it a vicious watchdog?
38
elements of strict product liability
*a defect exists *that existed when it left D's control *and which caused P's injury (physical harm or damage to property other than the defective product) when used in a foreseeable way
39
types of product defects (+elements/tests)
*manufacturing defect: the product deviated from the intended design — the product was nonconforming with the manufacturer's specification *design defect: does the design comply with consumer expectations? OR does the risk outweigh the utility (foreseeable risk of harm) and the risk could be mitigated by a reasonable design alternative? *failure to warn: a foreseeable risk exists that is not obvious to the ordinary consumer + reasonable warnings would reduce that risk
40
defense to strict product liability
*comparative negligence *assumption of the risk *unforeseeable misuse, modification, or alteration *substantial change *compliance with regulation *"state of art"
41
elements of defamation
*defamatory (false + diminish/deter) statement *of or concerning P (a living person) *published (communicated) to third party who understood its defamatory nature *damage to P's reputation results
42
what are the constitutional limits to defamation?
*public official or figure: actual malice required to recover *private individual + matter of public concern: negligence required to recover actual damages *private individual + matter of private concern: negligence require to recover general damages
43
libel vs. slander vs. slander per se
written, printed, or recorded statement / general damages vs. spoken statement / special damages (economic loss) vs. false spoken statement concerning *commission of a serious crime *unfitness for a trade or profession *has a loathsome disease *severe sexual misconduct for general damages
44
absolute privileges to defamation
statements *in judicial proceedings *in legislative proceedings *between spouses *in required publications by TV/radio
45
conditional privileges to defamation
*the statement must be made in good faith *P can show a higher level of culpability to overcome *statements made *in the interest of D *in the interest of the recipient of the statement *impacting some important public interest
46
right to privacy claims
*intrusion upon seclusion *false light *appropriation of right to publicity *public disclosure of private facts
47
elements of intrusion upon seclusion
*D intrudes upon the private affairs of P *in a manner that would be highly offensive to a reasonable person
48
elements of false light
*D makes public facts about P *that place P in a false light *and which would be highly offensive to a reasonable person
49
elements of appropriation of right to publicity
*D appropriates P's name or likeness *for D's advantage *without P's consent *and causes injury
50
elements of public disclosure of private facts
*D publicizes a matter concerning the private life of another *the matter is highly offensive to a reasonable person *the matter is not of legitimate concern to the public
51
elements of intentional misrepresentation
*false representation of a material fact (includes concealment) *D knew the representation was false or acted recklessly as to its falsity *D acted with an intent to induce reliance *such actions cause reliance (action/restraint) *reliance was justifiable *actual damages were incurred
52
elements of negligent misrepresentation
*false representation of a material fact *D was negligent as to its falsity *in the course of business or a profession *P was in a contractual relationship with D OR D knows P is in a limited group *the misrepresentation cause justifiable reliance or a pecuniary loss
53
elements of intentional interference with a contract
*valid contract with a third party *D knew of the contract *D intentionally interfered, leading to breach or additional burden to performance *damages
54
elements of misappropriation of trade secrets
*existence of information that is not generally known *P took reasonable precaution to protect it *D acquired the information by improper means
55
elements of trade libel
*publication *of a false or derogatory statement *made with malice *relating to P's business *special damages were incurred due to the interference with or damage to P's business relationships
56
elements of slander of title
*publication *of a false statement *derogatory to P's title *made with malice *causing special damages *diminished value in the eyes of third parties
57
elements of malicious prosecution
*intentionally and maliciously *instituting a legal action for an improper purpose *without probable cause *dismissed in favor of the person the action was brought against
58
elements of abuse of process
*beginning a legal procedure properly *but abusing it to achieve an ulterior motive
59
requirements for assumption of the risk and effects
*voluntary acceptance of a known and unreasonable risk of harm *subsumed into comparative fault in many jurisdictions
59
what is an abnormally dangerous condition?
*a condition that creates a foreseeable and highly significant risk of physical harm, even when due care is exercised *and the activity is not commonly engaged in
60
what is the merchant's privilege to false imprisonment?
a business confines someone to investigate, where it *reasonable believes the person is a shoplifter *the confinement is done in a reasonable manner in or near the premises *for a reasonable time
61
what is the firefighter's rule?
emergency personnel cannot recover from a party whose negligence cause an injury, where the injury results from a risk inherent to the job
62
when is an owner of a wild animal strictly liable?
for harm caused *by P's fearful reaction to the animal *as a direct result of the animal's abnormally dangerous characteristics
63
doctrine of transferred intent rules and applicability
*same tort, different person: battery, assault, false imprisonment *different tort, same person: battery, assault
64
factors for whether conduct is extreme and outrageous
*abusing position of authority *exploiting known special vulnerability *repeated or prolonged conduct *going beyond bounds of human decency
65
alternatives to proving duty and breach
*negligence per se *res ipsa loquitor
66
define the rescue doctrine
when a person negligently endangers themself or others, they are liable for harm caused to any rescuers (except: firefighter's rule)
67
three special circumstances that may modify the standard of care
*physical disability *involuntary intoxication *children
68
is an expert required to testify to the applicable standard of care for a professional?
yes, unless the negligence is so apparent that a lay person could identify it
69
when is an employer vicariously liable for intentional torts of an employee?
*reasonable force inherent to and committed within scope of employment *employee authorized to act on employer's behalf
70
six types of vicarious liability
*parents *respondeat superior *nondelegable duty *business partner *Dram shop *car owners
71
define comparative fault
P's recovery is reduced by their percent of fault, as determined by the jury
72
define joint and several liability
when multiple Ds cause P's harm, P may recover the full amount from any one D
73
define the economic loss doctrine
P can't recover for negligence or strict liability for only economic losses (must show some physical injury or property damage)

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