Torts Flashcards Preview

Bar exam > Torts > Flashcards

Flashcards in Torts Deck (34):
0

What are the four intentional torts to a person?

Battery, assault, false imprisonment, IIED

1

What are the elements to battery?

(1) Harmful or offensive contact
(2) to plaintiffs person
(3) intent
(4) causation
*** judged by reasonable person standard. Crowded world – contact is considered only if it has not been consented to. However consent will be implied for the ordinary contacts of everyday life. Plaintiffs person means anything connected to the plaintiff. Damage is not required.

2

What are the elements of an assault?

(1) an act by D creating a reasonable apprehension in P
(2) of immediate harmful or offensive contact to P's person
(3) intent
(4) causation
*** fear is not required to find apprehension, appear ability is enough. Words alone are not sufficient, they must be accompanied by an act to manifest into reasonable apprehension. But words can also undo a reasonable apprehension.

3

What are the elements to false imprisonment?

(1) an act or omission on the part of a D that confines or restraints P
(2) to a bounded area
(3) intent to confine
(4) causation
--methods of confinement: sufficient acts of restrain include physical barriers, physical force, threats of force, failure to release, and invalid use of legal authority. Moral pressure and future threats are insufficient acts of restraint.
--shopkeeper's privilege: a shopkeeper/security officer can detain a suspected shoplifter for a reasonable period of time for the purpose of making an investigation.
***P must know of the confinement or be harmed by the. So long as a person was confined for a period of time, length is immaterial.

4

What are the elements of intentional infliction of emotional distress?

(1) an act by D amounting to extreme and outrageous conduct
(2) intent or recklessness
(3) causation
(4)damages
*** Extreme and outrageous conduct is conduct the transcends all bounds of decency. Look to factors of whether it was continuous or if it was against a special plaintiff.
--special relationship: common carriers and innkeepers owe special duties to their patrons that will be a basis for liability even when the act is something less than outrageous.
--by standard cases: when the defendant intentionally causes physical harm to a third person and the plaintiff suffered severe emotional distress because of it, the plaintiff may recover by showing either the prima fascie case elements of emotional distress or that (1) she was present when the injury occurred, (2) she is a close relative of the injured person and (3) the defendant knew facts (1) and (2).

5

What are the three intentional torts to property?

Trespass to land, trespass to chattels, and conversion.

6

What are the elements to trespass to land?

(1) physical invasion of P's real property
(2) intent on the D's part to bring about a physical invasion of P's real property.
(3) causation.
--invasion: maybe by person or object, and maybe the surface, the air above, or the subterranean space for a reasonable distance (beneficial use test). Invasion can also be construction of a building, which in part rest on another's land (mistake of meets and bounds is no defense).
*** if a person is invited onto a person's land and stays beyond the scope of their invitation or goes to areas they're not permitted they're trespassers. Mistake is not a defense to trespass.

7

What are the elements to trespass to chattels?

(1) an act by D that interferes with P's right of possession in a chattel
(2) intent
(3) causation
(4) actual damages
*** mistake as to the lawfulness of D's actions is no defense. Intent to do the act of interference with the chattel is sufficient. P may recover actual damages from harm to chattel or loss of use [if dispossession, damages based on rental value].

8

What are the elements to conversion?

(1) an act by D that interferes with P's right of possession in a chattel
(2) so serious that it warrants requiring D to pat chattels full value
(3) intent
(4) causation
***P may recover fair market value at the time of the conversion or possession [replevin]. The only intent required is the intent to perform the act that interferes with the P's right of possession. Even if the conduct is wholly innocent, liability may attach where interference is serious in nature. Accidentally causing damage to or loss of another's chattel does not amount to conversion unless the actor was using the chattel without permission when the accident occurred.

9

What are the defenses to intentional torts?

Consent, self-defense, defense of others, defense of property, privilege of arrest, necessity, discipline.

10

What are the elements to defamation?

(1) Defamatory language (2) of or concerning the P (3) published (4) that causes damage to the P's reputation. (5) Falsity and (6) malice may be required depending on plaintiff.

11

Who may be liable for defamation?

(1) primary publisher: each individual who takes part in making the publication is charged with the publication as a primary publisher.
(2) republisher: a republish or will be held liable on the same general basis as primary publisher. This is so even if the repeater states the source or makes it clear that she does not believe the defamation.
(3) secondary publisher: one who is responsible only for disseminating materials that might contain defamatory material [a vendor of newspapers, a player of a tape] is viewed as a secondary publisher. Individuals are liable only if they know or should know of the defamatory content.

12

What are the significant difference btwn libel and slander?

Libel - Lible is a defamatory statement recorded in writing or some other permanent form. A libel may also be recorded by radio or television in some circumstances.
--Damages: in most jurisdictions general damages are presumed by law for all libels; i.e. special damages me not be established.

Slander - Slander is spoken defamation. It is to be distinguished from libel in that the defamation is in less permanent and less physical form.
--Damages: In slander, injury to reputation is not presumed. Thus, ordinary slander is not actionable and absence of the pleading and proof of special damages. However, if the spoken defamation falls within one of the four categories, characterizes slander per se, and injury to reputation is presumed without proof of special damages. He's back or categories are:
(1) Business or profession
(2) Loathsome disease
(3) Crime involving moral turpitude [accused of being a thief]
(4) Unchasity of woman

13

What are the First Amendment concerns when dealing with defamation suits?

Public official: a public official may not recover for defamatory words relating to his official conduct in the absence of clear and convincing proof that the statement was made with actual malice. Thus, knowledge that the statement was false, or reckless disregard as to its truth or falsity.

14

What are the defenses to a defamation suit?

Absolute privilege: under certain circumstances, the speaker is not liable for defamatory statements because he enjoys an absolute privilege. Such as the privileges are not affected by a showing of malice, abuse, or excessive provocation, as in the case of qualified privilege. Absolute privileges exist in the following cases: judicial proceedings, legislative proceedings, executive proceedings, and communications between spouses.

Qualified privilege: there is qualified privilege for reports of public hearings or meetings. This includes judicial, legislative, or executive proceedings as well as other proceedings of sufficient public interest, the privilege excuses accurate reports of statements that were false when made, but does not excuse inaccuracies in the reporting of the statement.

15

What are the elements of negligence?

(1) Duty of care, (2) breach of duty, (3) causation [actual and proximate], and (4) damages.

16

What duty of care is owed in a negligence suit?

Generally speaking, whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. If the D's conduct creates an unreasonable risk of injury to persons in the position of the P, the general duty of care extends from the D to the P.
--Firefighters rule: the homeowner is not liable for injury to firefighters based on assumption of risk or public policy. One engage in the activity of firefighting is deemed to know of the risk inherent in that activity, including the fact that a landowner may have failed to inspect or repair dangerous conditions on the land.
--Lessor/lessee: a lessor of a premises has a duty to maintain the common areas over which she maintains control [lobby, elevators, stairs] in such a way as to avoid unreasonable risk of harm to others.

17

What is negligent infliction of emotional distress?

D exposes third-party to a physical risk [within a zone of danger] and P suffers severe physical manifestations of mental distress.
--Exception: bystanders can recover if epicene [outside the zone of danger] if a special relationship exists and physical manifestations exist.

18

What are the three variables of the hand formula?

(1) The probability of injury, (2) the liability of the resulting injury, and (3) the burden of adequate precautions.

19

What is actual causation?

P must first show that D's conduct was the "cause in fact" of the injury. This usually means that people show that "but for" D's negligent act, the injury would not have occurred.
--Substantial factor test: where several causes concur to bring about an injury – and anyone alone would have been sufficient to cause injury – it is sufficient if D's conduct was a "substantial factor" in causing the injury.
--Alternative cause approach: a problem of causation exist where two or more persons could have been negligent, but uncertainty as to which one caused plaintiffs injury. Under this approach a P must prove that harm has been caused to him by one of them [with uncertainty as to which one]. The burden of proof then shifts to Ds, and each must show that his negligence is not the actual cause. If neither of the Ds can disprove cause, then both are jointly and severally liable.

20

What is proximate causation?

P must show that the injury is sufficiently "closely related" to D's conduct that liability should attach. The requirement approximate cause usually means of the injury must have been at least a reasonably foreseeable [and not bizarre extraordinary] result of D's negligence.

21

What are the defenses to negligence?

Contributory Neg (not unless told): No recovery is possible. However, the last clear chance doctrine (only applies when D isn't reckless and wanton) allows P to recover, despite negligence, if the D was the last one who could have avoided the accident and failed to do so.

Assumption of risk: express is a complete defense. Implied traditionally a complete defense, but state that apply comparative replace.

Comparative Neg: P will always recover something, even if the plaintiff was primarily negligent actor in the case. this is the default rule on the Bar. Watch for modified language then P cannot recover if liability is more than 50 or 51% depending on jurisdiction.

22

What are the elements to strict liability?

For strict liability, the following elements must be shown: (1) the nature of the D's activity imposes an absolute duty to make safe, (2) the dangerous aspects of activity was actual proximate cause of the plaintiffs injury, and (3) the P suffered damage to person or property.

23

Strict liability as to animals?

--Trespassing Animals: an owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
--Personal injuries due to animals: an owner is not strictly liable for injuries caused by the domestic animals unless he is knowledge of that particular animal's dangerous propensities that are not common to the species. However an owner will be strictly liable for wild animals.
--Trespassing humans: landowners are not liable for injuries caused by abnormally dangerous animals to trespassers absent negligence.

24

Strict liability as to abnormally dangerous activities?

Abnormally dangerous activities are activities incapable of being conducted except with high-risk if the harm occurs it is likely to be dangerous and the activity must be unusual in the community were it takes place.

25

What is the product liability based on Negligence?

Duty of care: commercial suppliers [manufacturers, wholesalers, and retailers] of a duty of care to any foreseeable P.

Breach of duty: beach of duty is shown by negligent conduct of the defendant leading to the supplying of a defective product, otherwise same negligence concepts.

Causation: An intermediaries [wholesalers, retailers] negligent failure to discovery defect does not supersede the original manufactures negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence.

Nature of damages recoverable: physical injury and property damage must be established.

Defenses: same as general negligence action.

26

What is liability based on strict tort liability?

A strict duty is owed to either warn or make safe by (1) a commercial supplier for (2) production or sale of a defective product that is unreasonably dangerous, (3) where actual and proximate cause, and (4) damages are shown. Note this only applies to products and services, and casual sellers are not commercial suppliers.

27

What is the implied warranty of merchantability?

Refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used.

28

What is the implied warranty of fitness?

When the seller knows or should have reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller skill and judgment in selecting the goods.

Can disclaim merchantability. Also pure Econ damages are applicable to both.

29

What are the elements of private nuisance?

Conduct that causes (1) substantial and (2) unreasonable interference with the use and enjoyment of land.
**P must have actual possession or a right of immediate possession.
*** substantial interference means interference that is offensive, inconvenient, or annoying to the average person in the community. Hypersensitivity or specialized use is not accounted for

30

What are the elements to public nuisance?

Public nuisance is an act unreasonably interferes with the health, safety, or property rights of the community. Recovery by a private party is limited to situations where the private party suffered unique images not suffered by the public at large.

31

What are the four invasions of right to privacy?

Appropriation: The use of the P's name or picture for commercial advantage without permission.

Intrusion: Interference with a P's seclusion in a way that would be highly offensive to a reasonable person.

False Light: The wide spread dissemination of information that is in someway in accurate and would be highly offensive to a reasonable person.

Public Disclosure of Private Facts: The widespread dissemination of factually accurate information that would normally be confidential, and the disclosure of which would be highly offensive to a reasonable person.

32

What are the three interference with business relations towards?

Inducing breach of contract: intentional action that causes a third person to breach existing contract with the P.

Interference with contractual relations: the D may be liable if interference with a P's contractual relations makes performance more difficult, even if interference does not actually cause breach.

Interference with prospective economic advantage: a D may be liable for interfering with a P's expectation of economic benefit from third persons, even in the absence of a contract.

33

When might vicarious liability apply?

Employment Relations:
--frolic (outside agency) and detour (inside agency)
--intentional torts
--ICs
Automobile owner – automobile driver: generally there is no liability.
--when driver is performing an errand for owner, liability may be premised on agency principles.
--minority rules: family car states and permissive use states.
*** remember just because there's no vicarious liability does not however mean that there is no negligence.