torts Flashcards

Question

conversion

Answer 1

-substantial interference with P's possession so deprives P of use -intent to interfere -causation -damages: full value *mistake as to thinking it is yours is no defense

Answer 2

physical invasion of another's land intent to invade defenses :consent, necessity (private or public)

Answer 3

-substantial and unreasonable interference Substantial: Offensive, inconvenient, or annoying to a reasonable, ordinary person Unreasonable: Injury outweighs utility of behavior. -with use or enjoyment of land

Answer 4

unreasonable interference with right common to general public: health safety property -private individual: special harm **balance utility of nuisance with harm

Answer 5

reasonable force for defending herself against unprivileged use of force if reasonably believes force is necessary and proportionate person using self defense must also not be negligent

Answer 6

employee + within scope of employment IC + nondelegable duty IC + apparent authority

Answer 7

defense to false imprisonment reasonable suspicion of P stealing, can detain P for reasonable amount of time and reasonable manner and on or immediately near premises

Answer 8

defense: assumption of risk, voluntarily and knowingly

Answer 9

def: assumption of risk

Answer 10

defenses: contributory negligence and assumption of risk

Answer 11

also must prove: -statement is false -actual malice, knowledge or reckless disregard -actual damages must be proven: damages to P's reputation --> private figure can recover punitive damages

Answer 12

-false -private figure: negligence or actual malice --damages and punitive damages if private figure and malice

Answer 13

-manufacturing defect: deviation from manufacturer's intent

Answer 14

--> consumer expectation test: ordinary consumer expectations --> risk-utility test: reasonable alternative design was economically feasible and available, failure to use

Answer 15

foreseeable risk of harm not obvious to ordinary user could have been reduced with warnings

Answer 16

D is in business of selling commercial product

Answer 17

defective when left D's hands

Answer 18

injuries occurred b/c product used in intended or reasonably foreseeable way

Answer 19

defense to trespass to land public: allows to enter to prevent public disaster + reasonable belief private: to protect herself or property. pay actual damages.

Answer 20

TFAB trespass to land/chattels false imprisonment assault battery

Answer 21

coming to nuisance reduces damages regulatory compliance is partial defense abatement if gave D notice and D does nothing damages of loss of property value

Answer 22

regulatory compliance is partial defense abatement by public official

Answer 23

(i) intentional institution of criminal (or civil) proceedings against P; (ii) termination in P’s favor; (iii) absence of probable cause for prior proceedings; (iv) improper purpose; and (v) damages

Answer 24

(i) wrongful use of process for an ulterior motive and (ii) definite act or threat against P in order to accomplish ulterior motive.

Answer 25

(i) existence of a valid contractual relationship between P and a 3rd party or valid business expectancy; (ii) D’s knowledge of the relationship or expectancy; (iii) intentional interference by D including a breach or termination of the relationship or expectancy and (iv) damages. privilege if proper competition

Answer 26

i. [Affirmative] misrepresentation of a material fact ii. Which D knew/believed to be false or had no foundation when she made the stmt iii. Intent to induce P to act or refrain from acting in reliance on the misrepresentation iv. Actual reliance (causation) v. Reliance was justifiable (usually requires that the stmt is fast not just opinion) vi. Damages: P must suffer actual pecuniary loss.

Answer 27

i. Misrepresentation by D in a business or professional capacity ii. Breach of duty toward a particular P iii. Causation iv. Justifiable reliance; and v. Damages

Answer 28

reasonable force may be used if reasonably believes it is necessary to protect the property

Answer 29

felony must haven in fact been committed, and person must reasonably believe the arrestee committed it. Reasonable degree of force; deadly only when threat of serious harm.

Answer 30

officer must reasonably believe that a felony has been committed and the person he arrests has committed it. Reasonable degree of force; deadly only when threat of serious harm.

Answer 31

must be a breach of peace and committed in the presence of the arresting party. Reasonable degree of force; never deadly force.

Answer 32

Reasonable Force—may be used if the person reasonably believes it is necessary to prevent tortious harm to the property. NEVER deadly.

Answer 33

Recapture of Chattels (Personal Property): 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 the original taking was lawful (like a bailment) then only peaceful means may be used.

Answer 34

Common law—reasonable force permitted Modern rule—use of force is no longer permitted; only legal process

Answer 35

Traditionally, municipal tort immunity attached to the performance of traditional government functions but not to the performance of proprietary functions that are usually performed by a private company.

Answer 36

Under the majority approach, only a purchaser or members of a purchaser's family or household have standing to sue for breach of a product warranty, but they can only recover for personal injury. need privity Minority approach is anyone injured regardless of privity

Answer 37

Under the learned intermediary rule, the manufacturer of a prescription drug or medical device typically satisfies its duty to warn by informing the prescribing physician of problems with the drug or device rather than informing the patient taking the drug.

Answer 38

. In jurisdictions with owner liability statutes, the owner of an automobile may be liable for the tortious acts of anyone driving the car with permission.

Answer 39

To obtain a res ipsa loquitur jury instruction, a plaintiff must prove that (i) his injury was caused by an instrumentality or agent within the exclusive control of the defendant, (ii) the accident was of a kind that ordinarily does not occur in the absence of negligence, and (iii) the harm was not due to any action on the part of the plaintiff. The third requirement is not satisfied if a plaintiff’s own negligence increases the likelihood of the defendant’s negligence.

Answer 40

Multiple causes: defendant’s action needs to be substantial cause acting in concert: When multiple defendants engage in joint tortious conduct and one or more of them causes the plaintiff's harm, all of the defendants are jointly and severally liable for the harm.

Answer 41

(i) the cost to repair the injury or to replace the destroyed property plus any recovery for the loss of the use of the property, or (ii) the diminution in the fair market value of the property. and nominal damages

Answer 42

Tortious conduct—voluntary act/failure to act Requisite mental state—purposeful (or reckless for IIED), or defendant (D) knows the consequence is substantially certain Causation—resulting harm legally (i.e., factually and proximately) caused by D’s conduct

Answer 43

Actual (express)—P is willing for the conduct to occur; revoked by clear communication Apparent—D reasonably believes that P actually consents Presumed (implied)—D is justified based on prevailing social norms or D has no reason to believe P would not actually consent if D had requested consent Emergency—usually medical, purpose of conduct is to prevent/reduce risk to P’s life/health

Answer 44

Not liable for injuries to bystanders—D may use nondeadly force against a bystander if (i) the force P is using against D is substantially greater than the force D uses against the bystander, and (ii) D’s use of force against the bystander is immediately necessary

Answer 45

Assumption of duty Placing another in peril By contract By authority By relationship (e.g., employer-employee, parent-child, common carrier-passenger) By statute imposing an obligation to act

Answer 46

Common carriers (planes, trains, buses)—highest duty of care consistent with practical operation of the business (majority) Innkeepers—ordinary negligence (majority); “slight negligence” (common law) Automobile drivers—absent “guest statute” (minority—refrain from wanton & willful misconduct), ordinary care to guests as well as passengers (majority) Bailor Gratuitous—duty to warn bailee of known dangerous defects o Compensated—duty to warn bailee of defects that are known or should have been known by the bailor had he used reasonable diligence Bailee Gratuitous—liable only for gross negligence Compensated—must exercise extraordinary care Mutual benefit—must take reasonable care Sellers of real property—duty to disclose known, concealed, unreasonably dangerous conditions; liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect

Answer 47

Recreational land use (some jurisdictions)—possessor who opens land to public for recreation generally not liable for injuries sustained by recreational land users unless (i) charges a fee or (ii) acts willfully, maliciously, or with gross negligence

Answer 48

No duty for harm by natural condition (except rotting trees in urban areas) Duty to prevent unreasonable risk of harm caused by artificial condition

Answer 49

Wrongful life—minority allows action by child for failure to perform contraceptive procedure or diagnose congenital defect; damage limited to those attributable to disability Wrongful birth—if birth due to failed contraceptive procedure or diagnosis of defect, many states permit parents to recover medical expenses for caring for disabled child; some states allow mother to recover pain/suffering damages and medical expenses for labor

Answer 50

many states recognize cause of action against seller of intoxicating beverages when a third party is subsequently injured due to buyer’s intoxication; most states only allow liability if buyer was minor or intoxicated at time of sale; many states extend to social hosts for injuries to intoxicated guest and/or third parties

Answer 51

immunity applies if is performing discretionary functions entrusted by law unless acts with malice or improper purpose; no tort immunity for carrying out ministerial acts Absolute immunity from personal liability—legislators performing their legislative functions, judges performing their judicial functions, prosecutors

Answer 52

Last clear chance rule—abolished in most jurisdictions; P may mitigate legal effect of own fault if D had last clear chance to avoid injuring P; D’s actual knowledge of P’s inattention required for liability to inattentive P; D liable to helpless P if knew or should have known of P’s helpless peril cotnributory neg jxs

Answer 53

If P is less at fault than Ds combined, P’s recovery reduced by percentage of fault If P is more at fault than Ds combined, P recovers nothing If P and D are equally at fault, P recovers 50% of his total damages (in minority jurisdictions P recovers nothing if equally at fault)

Answer 54

owner/possessor S/L for reasonably foreseeable damage caused by trespassing animald

Answer 55

Consumer goods—limitation of consequential damages for personal injury is unconscionable

Answer 56

if defamatory statement requires proof of extrinsic facts to show it is defamatory, P must prove either special damages or a category of slander per se

Answer 57

no contract More egregious conduct required for liability, should be independently tortious; violates federal or state law; improper conduct per balancing analysis Business competitor will not be liable for encouraging switching business

Answer 58

P owns valid trade secret (provides a business advantage) Not generally known Reasonable precautions to protect D took secret by improper means

Answer 59

malicious publication of derogatory statement relating to P’s title to business property/quality of products, and interference or damage to business relationships; proof of special damages required and mental suffering damages unavailable; truth and fair competition are valid defenses

Answer 60

publication of false statement derogatory to P’s title to real property; malice; special damages as a result of diminished value in the eyes of third parties

torts Flashcards

(84 cards)