Torts Flashcards

Question

# intentional torts / IIED / 3p if the conduct is directed at one party and a different party experiences severe emotional distress, can the different party recover?

Answer 1

doctrine of transferred intent MAY apply depends on related bystanders and defendant's purpose

Answer 2

(1) immediate family member of the victim (2) who is present at the time of the conduct and (3) contemporaneously perceives the conduct **may recover for IIED**, regardless of whether that fam member suffers bodily injury as a result of the distress

Answer 3

3p can recover for IIED **without** showing that they are a close fam member OR contemporaneously perceived the conduct

Answer 4

P must prove **severe emotional distress beyond what a reasonable person should endure** if hypersensitive - D only liable if they knew of P's hypersensitivity physical injury is NOT required

Answer 5

1. D intends to confine or restrain another within fixed boundaries 2. actions (or inactions) directly or indirectly result in confinement AND 3. plaintiff is conscious of the conferment or harmed by it

Answer 6

can be large does not need to be stationary

Answer 7

use of physical barriers, physical force, threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape (omission) may be false imprisonment when D refused to perform a duty to help the victim escape

Answer 8

merchant can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter

Answer 9

Merchant's Privilege / Shopkeeper's Privilege under False Imprisonment

Answer 10

immaterial to the tort

Answer 11

D must act (1) with the purpose of confining the plaintiff OR (2) knowing that the P's confinement is substantially certain to result transferred intent applies

Answer 12

nominal damges actual damages

Answer 13

* consent * self defense * defense of others * defense of property * parental discipline * privilege of arrest

Answer 14

1. actual consent (express) 2. presumed consent (implied)

Answer 15

P by words or actions manifests the willingness to submit to the D's conduct D's conduct may not exceed scope of the consent

Answer 16

yes UNLESS D caused the mistake or knew of it and took advantage of it | under actual consent

Answer 17

if part of essential matter --> invalid if part of a collateral matter --> valid defense | under actual defense

Answer 18

plaintiff if silent (or otherwise non responsive) but in context, their silence and continued participation can reasonably be construed as consent

Answer 19

* emergencies - assumed to consent to touch * injuries arising from athletic contests - consent within scope of sport, but D could be liable if conduct is reckless * mutual consent to combat

Answer 20

lack of capacity may undermine the validity of consent

Answer 21

force that is proportionate to defend against an offensive contact or bodily harm (not excessive)

Answer 22

most jurisdictions have stand your ground laws --> not required to retreat before using reasonable, proportionate force

Answer 23

NOT permitted to claim self defense UNLESS other party has responded to non deadly force with deadly force

Answer 24

not liable as long as the (1) injury was accidental and (2) actor was not negligent toward the bystander

Answer 25

may use reasonable force in defense of others IF that person would be entitled to use of self-defense

Answer 26

reasonable force if the person reasonably believes it is necessary to prevent tortious harm to the property

Answer 27

reasonable force may be used to reclaim personal property that has been wrongfully taken, BUT ONLY if you first request its return, unless that would be futile if original taking was lawful, then only peaceful means may be used

Answer 28

* common law - reasonable force permitted * modern rule - no force, use legal processes

Answer 29

parents may use reasonable force as necessary to discipline children

Answer 30

yes in the case of a felony IF 1. felony has actually been committed 2. arresting party has reasonable grounds to suspect that person has committed the felony NOT a defense to make a reasonable mistake as to the identity of the felon NOT a defense to make a mistake as to whether the felony was actually committed

Answer 31

1. must reasonably believe that a felony has been committed 2. person arrested committed it NOT subject to tort liability if officer makes a mistake as to whether a felony has been committed

Answer 32

arrest by a police officer may only be made if misdemeanor was committed in officer's presence

Answer 33

only if there is a **breach of the peace**

Answer 34

1. trespass to chattels 2. conversion 3. trespass to land 4. nuisance

Answer 35

real property

Answer 36

an intentional interference with the plaintiff's right to possess personal property by 1. dispossessing the plaintiff of the chattel 2. using or intermeddling with the plaintiff's chattel OR 3. damaging the chattel

Answer 37

only the intent to do the interfering act is necessary don't need to intend to interfere

Answer 38

* dispossessing or damaging --> may recover actual damages, damages resulting for loss of use, nominal damages, or cost of repair * use or intermeddling --> may only recover actual damages | remember there are three types

Answer 39

intentionally committing an act (1) depriving the P of possession of his chattel OR (2) interfering with the P's chattel in a manner so serious as to deprive the P entirely of the use of the chattel

Answer 40

D must only intend to commit the interfering act

Answer 41

P can recover chattel's full value at the time of conversion

Answer 42

* duration and extent of the interference * D's intent to assert a right inconsistent with the rightful possessor * D's good faith * expense or inconvenience to the P AND * extent of the harm difference is more of a degree of seriousness rather than specific behavior

Answer 43

D intentionally causes a physical invasion of someone's land

Answer 44

D only have the intent to enter the land OR cause the physical invasion not required to intend to commit a wrongful trespass

Answer 45

yes, includes causing objects to invade the land

Answer 46

* trespass - ALWAYS involves an actual physical invasion or intrusion upon the land * nuisance - may or may not involve a physical invasion or intrusion

Answer 47

anyone in possession, not just the owner

Answer 48

no proof of actual damages is required

Answer 49

yes, available to someone who enters onto someone else's land or interferes with that idv's personal property to prevent an injury or other severe harm

Answer 50

* D is not liable for nominal damages * D is liable for actual damages they caused * landowner may not use force to exclude the person

Answer 51

definition: private property is intruded upon or destroyed when necessary to protect a large number of people from a public calamity NOT liable for damages to the property

Answer 52

private necessity, NOT public necessity

Answer 53

activity that (1) substantially and (2) unreasonably interferes with (3) another's use and enjoyment of land

Answer 54

cts are vague must be annoying to an ordinary, reasonable person hypersensitive person may not have a cause of action if not actually bothered, may still have a cause of action for nuisance if it would bother ordinary reasonable person cts will balance interference vs. utility of the nuisance

Answer 55

no exception: spite fence or spite wall

Answer 56

* compliance with state or local admin regs --> evidence as to whether the activity is reasonable, not a compete defense * coming to the nuisance (you moved somewhere knowing about the nuisance) - cts hesitant to find a nuisance, not a compete defense

Answer 57

unreasonable interference with a right common **to the public as a whole**

Answer 58

1. public official - can bring an action on behalf of the public 2. private individual - can't bring UNLESS P suffered special harm that is different from general public

Answer 59

1. duty - an obligation toward another party 2. breach - failure to meet that obligation 3. causation - cause in fact (actual cause) + proximate cause (legal cause) 4. damages - the loss suffered

Answer 60

legal obligation to act a certain way 1. is there a duty? 2. what is the nature of duty / what is the standard of care? for #2 - reasonable care generally, utmost care sometimes

Answer 61

all persons who may foreseeably be injured by D's course of conduct generally no duty to act affirmatively

Answer 62

no liability b/c unforeseeable don't worry about whether it's a duty or proximate cause problem

Answer 63

nope, not alone

Answer 64

_D only liable to P within zone of foreseeable harm_ consider whether the P is a member of the class of persons who might be foreseeably harmed by the conduct

Answer 65

_if D can foresee harm to anyone resulting from D's negligence, then D owed duty to everyone harmed (foreseeable or not)_ any time conduct could harm someone, there is a duty whether this particular P was foreseeable is a proximate cause issue | you have duty to everyone harmed by your negligent act

Answer 66

yes, foreseeable victim of the original negligent conduct

Answer 67

in some circumstances

Answer 68

1. assumption of duty - voluntary undertaking 2. placing another in danger 3. by authority - ability + actual authority to control another 4. by relationship - common carrier (bus driver) + passenger, innkeeper + guest

Answer 69

objective reasonably prudent person under the circumstances

Answer 70

modified, D is compared with a reasonably prudent person with like characteristics | like being blind

Answer 71

objective standard same standard as sober people unless intoxication was involuntary

Answer 72

modified standard reasonable child of similar age, intelligence, and experience UNLESS engaged in high-risk adult activities (held to objective standard for adults)

Answer 73

* traditional rule: upmost care (higher standard) * majority cts today: higher standard of care for common carriers, ordinary negligence for innkeepers * minority cts today: ordinary negligence

Answer 74

general duty of reasonable care (most jurisdictions) traditionally, drivers were only liable for grossly negligent, wanton, or willful misconduct to guests/friends in the car

Answer 75

* common carriers * innkeepers * drivers * bailors and bailees * emergency situations

Answer 76

common law: * bailor must warn a gratuitous bailee of known dangerous conditions * if bailor receives the sole benefit, bailee has a lesser duty | bailment = bailee temporarily takes possession of bailor's property (ex. leaving your car with a valet)

Answer 77

reasonable person under the same circumstances

Answer 78

1. traditional tripartite structure (1/2 juris) 2. modern way --> further split into minority of states + R3d

Answer 79

1. invitees - business visitor 2. licensees - social guest 3. trespassers

Answer 80

land possessor owes a duty of reasonable care to * inspect the property * discover unreasonably dangerous conditions AND * take reasonable steps to protect the invitee can't delegate this duty to independent contractor invitee is someone who comes onto the land for a material or economic purpose public invitee - land is held open to the pubic (ex. state fair) business visitor

Answer 81

land possessor has a duty to (1) make the property reasonably safe OR (2) warn licensees of hidden dangers no duty to inspect must exercise reasonable care in conducting activities on the land enters the land with express or implied permission (like a social guest)

Answer 82

no duty to undiscovered trespassers EXCEPTION: refrain from willful, wanton, intentional, or reckless misconduct discovered or anticipated trespassers - duty to warn or protect from hidden dangers attractive nuisance doctrine - may be liable flagrant trespassers - even lesser duty of care

Answer 83

land possessor may be able for injuries to children trespassing on the land if 1. artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass 2. knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm 3. children do not discover or can't appreciate the danger (due to their age) 4. utility of maintaining the condition < risk of injury AND 5. fails to exercise reasonable care

Answer 84

reasonable care under the circumstances EXCEPT flagrant trespassers only duty to flagrant trespassers is NOT to act in an intentional, willful, or wanton manner to cause physical harm

Answer 85

1. maintain safe common areas 2. warn of hidden dangers AND 3. repair hazardous conditions

Answer 86

generally not liable for injuries resulting from natural conditions artificial conditions - must prevent unreasonable risk of harm to persons not on the premises

Answer 87

violation of the relevant standard of care

Answer 88

1. traditional approach - reasonable person standard 2. cost-benefit analysis - Hand Formula (B < PL)

Answer 89

evidence of custom is admissible, but not dispositive of breach

Answer 90

custom is admissible and DISPOSITIVE compliance with custom = no beach deviation from custom = breach

Answer 91

* traditional rule: physician in the "same or similar" locality * modern trend: national standard patients must give informed consent

Answer 92

1. criminal law or regulatory statute imposes a particular duty for the protection or benefit of others 2. defendant violated the statute 3. P must be in the class of people intended to be protected by the statute 4. accident must be the type of harm that the statute was intended to protect against AND 5. harm was caused by a violation of the statute | violation of the law consists a breach, statute establishes the standard of care

Answer 93

* D may show that complying with statute would be even more dangerous than violating * compliance was impossible or emergency justified violation * incapacity (physical disability) * vagueness * exercised reasonable care in trying to comply

Answer 94

circumstantial evidence of negligence can be sufficient evidence of negligence in some cases creates permissible inference that allows the case to go to the jury modern + traditional approach

Answer 95

1. accident was of a kind that does not ordinarily occur in the absence of evidence 2. it was caused by an agent or instrumentalist within the **exclusive control** of D AND 3. not due to any action by P

Answer 96

1. accident is a type that ordinarily happens as a result of negligence of a class of actors AND 2. D is a member of that class more generous than traditional approach

Answer 97

some jurisdictions shift the burden by holding **all** defendants **jointly and severally liable** unless they exonerate themselves

Answer 98

many courts ignore the **exclusivity requirement** when it is clear that the defect originated upstream of the package's wrapping (like in the supply chain)

Answer 99

1. cause in fact / actual cause 2. proximate cause / legal cause

Answer 100

but-for causation

Answer 101

* multiple tortfeasors * multiple possible causes * loss of chance * multiple sufficient causes doctrine * alternative causation

Answer 102

Substantial Factor Test was the D's tortious conduct a substantial factor in causing the harm?

Answer 103

cts will shift the burden of proof to the defendants impose joint and several liability on both D unless each can prove they didn't cause the harm

Answer 104

all D will be jointly and several liable

Answer 105

Loss of Chance Doctrine - if a doctor negligently reduces the P's chance of survival, then that P can recover for the lost chance of recovery can't recover full damages, only portion that represents their lost chance of survival

Answer 106

patient with < 50% chance of survival couldn't recover from the medial misdiagnosis b/c likely to die anyway doc's negligence wasn't a but for cause

Answer 107

* scope of liability * foreseeability of harm

Answer 108

no liability for an unforeseeable type of harm

Answer 109

intervening cause - doesn't break chain of causation superseding cause - DOES break the chain

Answer 110

whether the injury is within the scope of what made the conduct negligent in the first place 3p criminal acts may/may not break the chain of causation

Answer 111

full extent of P's injuries, even if unusual or unforeseeable (Eggshell Plaintiff)

Answer 112

TYPE of damages must be foreseeable, NOT the extent

Answer 113

yes can include costs of physical injuries + emotional damages P must take reasonable steps to mitigate damages

Answer 114

* medical expenses (past + future) * lost income and reduced earning capacity * pain and suffering (past + future)

Answer 115

make the plaintiff whole again

Answer 116

compensatory + punitive

Answer 117

punish + deter future conduct

Answer 118

difference b/t mkt value of property before and after the injury may allow cost of repair or replacement as alternative measure

Answer 119

* benefits or payments to the P from **outside sources** are NOT credited against the liability of any tortfeasor * evidence of such payments is NOT admissible * outside sources like insurance payments, sugar daddy

Answer 120

most states eliminated or substantially modified the rule to avoid double recovery

Answer 121

* may be available if D acted willfully, wantonly, recklessly, or with malice OR if an inherently malicious tort is involved * may be limited by statute * SCOTUS - single digit ratio

Answer 122

pure emotional harm P can recover for NIED if 1. P was within **zone of danger** of the threatened physical impact AND 2. threat of physical impact caused emotional distress

Answer 123

if 1. closely related to person injured by D (relational proximity) 2. was present at the scene of the injury (geographic proximity) AND 3. personally observed the injury (temporal proximity)

Answer 124

* negligent mishandling of a corpse * negligent medical info (like a negligent misdiagnosis)

Answer 125

most jurisdictions require some physical manifestation of distress (nausea, insomnia, miscarriage)

Answer 126

can't recover in negligence without any related personal injury or pretty damage

Answer 127

* allows recovery for loss arising from injury to a fam member * fam members (like a spouse) can claim loss of consortium or companionship

Answer 128

brought by **representative of decedent's estate on behalf of** decedent for claims that they would have had at hte time of their death

Answer 129

brought by **decedent's spouse or representative** to recover losses suffered by spouse of representative as a result of decedent's death

Answer 130

survival action is like the decedent suing for their loss wrongful death is the fam suing for their loss (not the decedent's losses)

Answer 131

**by child** for D's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect most states don't allow, recovery limited to expesnes attributable to disability (UWorld)

Answer 132

**by parents** for D's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect some states allow recovery for medical expenses + pain and suffering

Answer 133

wrongful life is brought by child wrongful birth is brought by parents

Answer 134

joint and several liability for employer + employee party held responsible can seek indemnification from the directly responsible party

Answer 135

employer is held vicariously liable for negligence of an employee IF it occurred within the **scope of employment**

Answer 136

direct negligence - liable for employer's own negligence vicarious liability - employee's actions

Answer 137

generally NOT liable **unless** within scope of employment

Answer 138

frolic - major deviation from scope of employment, employer is NOT liable detour - minor, is liable

Answer 139

generally no

Answer 140

if employer retains a **right of control** over the way the employee does the work, then employee

Answer 141

* inherently dangerous activities * duties to the public or specific P for certain types of work * shopkeepers have a duty to keep the premises safe for the public

Answer 142

independent contractor will be treated as an employee IF (1) injured person accepted IC's services (2) based on a reasonable belief that the IC was an employee, (3) based on manifestations from the employer AND (4) IC's negligence is a factual cause of harm to the person who receives the services and (5) such harm is within the scope of liability

Answer 143

yes if within scope of business's purpose

Answer 144

can be directly liable for negligently entrusting a vehicle to someone who is not in the position to exercise reasonable care

Answer 145

may be vicariously liable

Answer 146

generally no

Answer 147

no, they were immune immunity has been waived by statutes

Answer 148

expressly waives immunity and allows the fed govt to be sued for certain types of torts exceptions (govt maintains immunity): discretionary functions, traditional govt activities, certain enumerated torts

Answer 149

yes, immunity applies

Answer 150

no, immunity has been waived

Answer 151

* 2+ tortfeasors * tortfeasors acting in concert * alternative liability * res ipsa loquitur against multiple D * vicarious liability

Answer 152

If P was negligent in some way, that negligence completely precluded the P's recovery some states still use

Answer 153

allows a negligent P to recover upon showing that D had the last clear chance to avoid injuring the P but failed to do so

Answer 154

P's negligence doesn't completely bar recovery, limits their ability to recover * pure comparative negligence * modified comparative negligence

Answer 155

applies when a party knowingly or willingly embraces a risk for some purpose of his own can be express or implied

Answer 156

* participant or spectator in athletic event can't recover b/c they knew of and chose to accept the risks * unreasonably proceeding in the face of known, specific risk

Answer 157

parties can contact to disclaim liability for negligence 1. is the waiver clear? 2. is the waiver enforceable? might not enforce if (1) waiver disclaims liability for reckless or wanton misconduct, (2) gross disparity of bargaining power b/t two parties, (3) party seeking to enforce offers services of great importance to the public (medical services), (4) provision is subject to contract defenses (fraud, duress, etc.), (5) enforcement would be against PBPL

Answer 158

1. abnormally dangerous activities 2. animals 3. defective products

Answer 159

D will be held strictly liable for personal injuries and property damage caused by the activity, regardless of any precautions scope of liability - harm that flows from the risk that made the activity abnormally dangerous * whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care * severity of the harm resulting from the activity * appropriateness of the location for the activity * whether it has great value to the community

Answer 160

SL for harm from animal's dangerous propensity SL for injuries caused to licensees and invitees NOT SL for trespassers (some jurisdictions have exceptions for vicious watchdogs)

Answer 161

SL if owner knows/has reason to know the **particular animal** has dangerous propensity many states hold owners SL for dog bites

Answer 162

SL for reasonably foreseeable damage caused by animal while trespassing on someone's land exceptions: * household pets * animals on public roads (negligence standard)

Answer 163

* contributory negligence - doesn't bar recovery * comparative negligence - varies * assumption of the risk - complete bar to recovery

Answer 164

1. negligence - must prove duty, breach, causation, damages 2. SL for defective products 3. breach of warranty claim

Answer 165

1. manufacturing defects 2. design defects 3. failure to warn | this matters for deciding which test to use when proving the defect

Answer 166

1. product was defective (manufacturing, design, failure to warn) 2. defect existed when the product left the defendant's control AND 3. defect caused the P's injury when the product was used in a foreseeable way

Answer 167

1. product deviated from its intended design 2. product does NOT conform to the manufacturer's own specifications

Answer 168

**test 1: consumer expectation test** if less safe than the ordinary consumer would expect **test 2: risk-utility test** if risks outweigh the benefits, must show there is a reasonable alternative design

Answer 169

1. was there a foreseeable risk that was not obvious to an ordinary user AND 2. were the steps taken to warn about that risk reasonable? learned intermediary rule (prescription drugs) - manufacture has to warn the prescribing doctor

Answer 170

no privity requirement - can sue the entire supply chain anyone foreseeability injured by a defective product

Answer 171

anyone who sells the product when it is defective must be in the chain of distribution + business of selling causal sellers are NOT SL, but maybe negligence

Answer 172

personal injury or property damages purely economic loss is generally NOT recoverable

Answer 173

* contributory negligence - probs not complete bar * comparative fault * assumption of the risk * product misuse, modification or alteration (P's misuse has to be foreseeable) * substantial change in the product can bar recovery * compellable with govt standards - admissible for product defective but not conclusive * state of the art defense - can be a complete bar * disclaimers, limitations, waivers - generally doesn't bar recovery

Answer 174

implied + express warranties

Answer 175

1. merchantability - product is suitable for the ordinary purposes for which it is sold 2. fitness for a particular purpose - seller knows the particular purpose and buyer relies on seller's skill or judgment

Answer 176

* disclaimers * tort defenses - contributory negligence, comparative fault, assumption of the risk, product misuse

Answer 177

P must prove that D 1. made a defamatory statement 2. that is of or concerning the P (the particular P) **must be living** 3. statement was published to a 3p who understood the defamatory nature AND 4. there is resulting damage to P's reputation

Answer 178

language that diminishes respect, esteem, or goodwill toward the P OR deters others from associating with the P must be **false** to be actionable

Answer 179

they may be independently liable

Answer 180

depend on the type of plaintiff + content of the statement type plaintiff - public official, pubic figure, private individual content - matter of pubic concern, matter of private concern

Answer 181

either general purpose pubic figure or limited purpose public figure power of persuasion and influence in society may be in general or for a particular issue

Answer 182

substantial responsibility or control over a govt office, including a political candidate

Answer 183

actual malice standard various types of damages available

Answer 184

negligence standard - actual damages only actual malice standard - presumed damages available

Answer 185

negligence standard - general damages without proving actual malice

Answer 186

1. is the P a public official/figure or private individual? 2. what is the standard of proof in order to recover? 3. what type of damages are available?

Answer 187

person who made the statement knew that it was false OR acted with reckless disregard for the truth actual malice standard

Answer 188

1. statement is false 2. person who made the statement was negligent (should have known the statement was false)

Answer 189

unclear most jurisdictions require showing that D was at least negligent as to the falsity of the statement

Answer 190

general damages - recovery w/o evidence of measurable harm

Answer 191

P must prove special damages (show economic loss) exceptions for slander per se (general damages available) * commission of a serious crime * unfitness for a trade or profession * having a loathsome disease * severe sexual misconduct

Answer 192

1. truth - absolute defense 2. consent - if you consent to defamation, can't sue 3. privileges

Answer 193

the speaker is completely immune from liable for defamation statements including: * in the course of judicial proceedings * course of legislative proceedings * b/t spouses * required publications by radio and TV

Answer 194

statement is made in good faith pursuant to some duty or responsibility P must show a higher level of culpability includes statements made * in the interest of the D (defending your reputation) * interest of the recipient of the statement * affecting some important public interest

Answer 195

individuals not corporations

Answer 196

upon death of P

Answer 197

**I FLAP** _I_ntrusion upon selection _F_alse _L_ight Appropriation of the right to _P_ublicity Public Disclose of _P_rivate Facts

Answer 198

P need not prove special damages (economic loss) emotional or mental distress if sufficient

Answer 199

* consent * qualified and absolute privilege - only False Light and Pubic Disclosure * truth is NOT a defense

Answer 200

truth is a defense for defamation, but not privacy torts

Answer 201

D intrudes upon P's private affairs in a manner that would be highly offensive to a reasonable person

Answer 202

D (1) publication of facts about the P (2) that place the P in a false light (3) which would be highly offensive to a reasonable person

Answer 203

when someone (1) appropriates another's name or likeness (2) for D's advantage (3) w/o consent and (4) causes injury appropriation must be exploitative, but not necessarily commercial

Answer 204

1. D publicizes a matter concerning the private life of another 2. the matter publicized is highly offensive to a reasonable person AND 3. the matter is not of legitimate concern to the public (hard to prove)

Answer 205

1. false representation 2. scienter 3. intent 4. causation 5. justifiable reliance 6. damages

Answer 206

must be about a material fact includes concealing a material fact no duty to disclose a material fact to other parties generally

Answer 207

D knows that the representation is false or acted with reckless disregard for its falsity

Answer 208

D must intend to induce the P to act in reliance on the misrepresentation

Answer 209

misrepresentation must have caused the P to act or refrain from acting

Answer 210

reliance is NOT justifiable if the facts are obviously false OR it is clear the D was stating an opinion

Answer 211

P must prove actual, economic, pecuniary loss no nominal damages most jurisdictions: recovery is benefit of the bargain

Answer 212

1. D provided false info to P 2. as a result of D's negligent in preparing the info 3. during the course of a business or profession 4. causing justifiable reliance and pecuniary loss AND 5. P is either in a contractual relationship with D OR P is 3p known by D to be a member of the limited group for whose benefit the info is supplied | negligence misrepresentation is a different cause of action than tort of negligence

Answer 213

negligence defenses

Answer 214

reliance and consequential damages IF negligent misrepresentation is proven with sufficient certainty

Answer 215

1. valid contract existed b/t 3p and P (can't be terminable at will) 2. D knew of the contractual relationship 3. D **intentionally interfered** with the contract, resulting in a breach AND 4. breach caused damages to P

Answer 216

1. publication 2. of a false or derogatory statement 3. with malice 4. relating to P's title to their business, quality of their business, or quality of products AND 5. causes special damages as a result of interference with or damage to business relationships

Answer 217

1. publication 2. of a false statement 3. derogatory to P's title 4. with malice 5. causing special damages AND 6. diminishes value in eyes of 3p

Answer 218

_P_ lease _H_ elp _E_ liminate _S_ afety _C_ oncerns _C_ ausing _I_ njuries * parent/child * hospital/patient * employer/employees * shopkeeper/business invitees * common carrier/passengers * custodian/person in custody * innkeeper/guests

Answer 219

pure comparative negligence NOT traditional contributory negligence

Answer 220

yes, SL for harm that is caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal or directly results from the wild animal's abnormally dangerous characteristics

Answer 221

(1) if the plaintiff’s injuries are caused by a fungible product and (2) it is impossible to identify which defendant placed the harmful product into the market --> the jury can apportion liability based on each defendant’s share of the market

Answer 222

P's recovery is barred if their fault > 50% some juris do >= 50%

Answer 223

(1a) the component is defective or (1b) the supplier substantially participated in the process of integrating the component into the product's design AND (2) the component's integration caused that product to be defective

Answer 224

defendant's violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that the defendant breached a duty of care

Answer 225

1. valid contract existed b/t P and 3p 2. D knew of that contractual relationship 3. D intentionally and improperly interfered with the contract's performance AND 4. that interference caused the P's pecuniary (monetary) loss

Answer 226

liable for negligence if 1. failure to disclose caused the patient to consent AND 2. undisclosed risk materialized and resulted in phsycial harm

Answer 227

P's negligence reduces recovery by P's proportionate fault

Answer 228

P must prove that D's conduct was the **actual and proximate cause** of P's injury actual cause --> P's harm would not have occurred **but for** D's conduct

Answer 229

same knowledge, skill, and care as another professional in similar community national (not community) standard to medical specialists (doctors)

Answer 230

interference with use and enjoyment of property is substantial (intolerable to **normal person**) + unreasonable

Answer 231

for a professional, generally need an expert witness but if D's negligence is so apparent that a lay person could identify it, then expert testimony is not required

Answer 232

defense does not apply when the defendant's tortious conduct left the plaintiff with no reasonable alternative but to proceed despite that risk

Answer 233

owner of the animal only liability does not extend to landowner unless they had a right to possess the animal

Answer 234

P can recover the ENTIRE amount from any D when multiple defendants were found to have caused the plaintiff indivisible harm

Answer 235

landowners were strict liable for spread of fire now *Rylands* only applies to abnormally dangerous activities modern view is to use negligence standard for spread of fire

Answer 236

relevant for negligence not really relevant for strict liability

Answer 237

assumption of the risk WHEN P (1) knows of the risk of harm AND (2) voluntarily accepts that risk

Answer 238

* joint and several liability * pure comparative negligence

Answer 239

an element of a tort hasn't been satisfied this is better answer than an affirmative defense

Answer 240

* conversion - full value of item * trespass to chattel - amount of the damages

Answer 241

reasonable care since it's strict liability, reasonable care doesn't matter

Answer 242

you can only sue a party for their % of fault different from joint and several liability

Answer 243

* if acting in concert --> joint + several liability * if acting independently + injuries are indivisible --> joint + several * if acting independently + injures are separable --> several liability only

Answer 244

* negligent intervening acts (medical malpractice) are foreseeable and do NOT cut off D's liability * superseding causes (unforeseeable) break chain of proximate causation

Answer 245

In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.

Answer 246

not considered in their standard of care so person with ordinary intelligence and knowledge

Answer 247

reasonably careful person with same physical disability

Answer 248

pay attention to whether the injury was b/c of the abnormally dangerous activity ex. driver gets into car crash b/c toxic waste spills on street - not because of dangerous characteristic of the waste

Answer 249

whether the friend was also negligent b/c contributory negligence could be a defense

Answer 250

* majority rule * D only need to intend to cause the contact with another * does NOT require showing that D intended to cause the physical injury

Answer 251

firefighter's rule emergency professional is BARRED from receiving damages from the party whose negligence caused the professional's injury IF THE injury arises from a risk inherent in the job

Torts Flashcards

(282 cards)