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MBE: Final Review > Torts > Flashcards

Flashcards in Torts Deck (72):

Is lack of consent a defense for all 7 intentional torts?



Intentional Tort: Battery (3)

1. Intentional
2. Offensive or harmful touching
3. Such touching occurs


Can you recover for the emotional damages you've suffered as a result of false imprisonment?



Shopkeeper Privilege
• Defense to which tort?
• Rule

Defense to False Imprisonment: If an owner or security guard of a store believes that a theft has occurred, he may make a (1) reasonable detention in a (2) reasonable manner for a (3) reasonable amount of time

note - cannot use force that is intended or likely to cause serious bodily harm


Intentional Tort: Conversion
• Definition
• Measure of Damages

Definition: Serious interference of P's personal property

Damages: FMV of the chattel at the time of the conversion


Intentional Tort: Trespass to Chattel
• Definition

Definition: Minor interference with the P's personal property

Damages: cost of repairs


Intentional Tort: Trespass to Land
• Definition
• What isn't a defense?
• Who can bring this COA?

Intent to cause a physical, tangible thing to enter the P's land (interference with right of possession)
• cattle, own person, golf ball, baseball, residue

Mistake of ownership is NOT a defense

Can be brought by anyone in actual or constructive possession, even if that possession is w/out title or legal right


Defense: Necessity
• Types (2)

D comes onto your property intentionally to avoid a greater harm

Private Necessity v. Public Necessity


Private Necessity
• Definition
• Extent of Defense

D enters P's land to save himself or his family or one member of the community

• NL for trespass for land
• L for damages caused to land


Public Necessity
• Definition
• Extent of Defense

D enters P's land to save non-family members of the community

Absolute defense


Intentional Tort: Intentional Infliction of Emotional Distress

1. Extreme and outrageous conduct
2. Severe emotional distress


Negligent Infliction of Emotional Distress

Actual damages (physical harm)


Negligent Infliction of Emotional Distress: Exceptions to Actual Damages Req't (2)

1. Mishandling of a corpse
2. False report of a death


What type of force is unreasonable when defending property?

Force that will cause death or serious bodily harm


Negligence: Elements (4)

1. Duty
2. Breach
3. Causation
4. Damages


Vicarious Liability: Parent-Child



Are rescuers foreseeable plaintiffs? If so, what legal effect?

Yes - that means the ppl who need rescuing have a duty to their rescuers, provided the attempt to rescue wasn't reckless


Emergency: When is a rescuer liable for injuries?

Gross negligence or recklessness


Emergency Exception

Right to break a statute or two


VL v. Negligent Hiring/Entrustment: Key Difference

VL: Employee acting w/in scope of employment

Negligent Hiring: No "scope of employment" req't


Negligence: Standard of Care: Professionals

Held to a higher standard of care: must exercise superior skill/judgment/knowledge


Negligence: Standard of Care: Child

Objective Standard: What would a similar child (age/experience/edu) have done under the circumstances?

Exception - engaged in adult activity: reasonable person standard


Negligence: Standard of Care: To an Invitee (Biz customer)

Highest standard of care:
1. Duty to inspect
2. Duty to make safe

Highest standard of care - all "reasonably" knowable: prior knowledge or could have learned via a reasonable inspection


Can a person's status as an invitee drop down to an anticipated trespasser?

Yes - if they exceed the scope of where they are allowed to be


Negligence: Standard of Care: To an Anticipated Trespasser
• Duty of ?
• But no duty to ?

Duty to warn of known, dangerous, and artificial conditions on the property

No duty to warn of NATURAL conditions


Common Carriers - what kind of duty to they have?

Duty to inspect and make safe


Criminal acts of third parties foreseeable?

Generally, no - breaks the chain of causation


PURE Comparative Negligence

Majority Rule - P can recover even if their fault is greater than that of the D's
• though the amount P recovers may be limited to the percentage of damage attributed to the D

Note - MBE rule!!


MODIFIED ("PARTIAL") Comparative Negligence

Minority Rule - P recovers only if their fault is less than that of the D's
• Threshold Req't: P's fault = 49% or less


If you're open to the public, can you delegate that duty?



Products Liability: Failure to Discover the Defect

Failure to discover the defect when it was possible to do so is a lack of reasonable care


Products Liability: Defective Product
• What theory of liability?
• Who can P sue?

Strict Liability: One who sells a product in a defective condition unreasonably dangerous to the user/consumer is strictly liable for the resulting harm/injury

Everyone in the chain of sale, provided they're in the biz of selling that good


Strict Liability: Defective Product: Unforeseeable Misuse Defense

The misuse really has to be unforeseeable


Strict Liability: Defective Product: Assumption of Risk Defense

P must:
1. Know of the risk AND
2. Voluntarily assume it


Defective Product: must you buy the product to bring a strict liability claim?

No, provided you're a foreseeable user or bystander


Are bulls on a farm wild animals?

No - domesticated animals


Wild Animals: Basic Rules (2)

1. P must suffer the type of injury associated with that animal's dangerous propensities

2. If you're injured while fleeing, still may recover for SL


Strict Liability: Abnormally Dangerous Activites

Not commonly kept in the community

If you're fleeing, still may recover for SL


• Elements (3)
• Best Defense
• Types of Ps

1. False statement by the D
2. Published to someone other than the P
3. Damage to reputation

Best Defense: The Truth

Private Figures vs. Public Figures


Private Figures

Standard: D was negligent


Public Figures

Standard: D acted maliciously - published the statement with:
1. knowledge of the falsity OR
2. Reckless disregard for the truth


• Types of COA - ("CLIP")
• Emotional damages ok?


Commercial Appropriation
False Light
Intrusions into One's Seclusion/Solitude
Public Disclosure of Private Facts

Damages may include emotional damages


Best Defense to Privacy



Which privacy tort doesn't require a publication?

Intrusions into One's Seclusion/Solitude


Private Nuisance (2)

1. SUBSTANTIAL interference
2. With P's use and enjoyment of his land

Only affects one party (not the community)


Public Nuisance

General grievance that everyone in the community is experiencing


Nuisance: Hypersensitive Plaintiff Defense

A hypersensitive P doesn't prevail because he isn't a person of ordinary sensibilities in the community


Negligence: Standard of Care: Person w/ Disability

Ordinary and reasonable care for a person w/ that disability


Are children liable for their intentional torts?

Only if they are capable of forming the requisite intent


When are nominal damages appropriate?

Intentional tort suits where P can't show actual harm


Negligence: Res Ipsa Loquitur
• Rule (2 elements)
• Req't
• Exception
• Effect

Rule: Trier of fact may infer a breach of duty if the facts strongly indicate that P's injuries resulted from D's negligence
1. Event doesn't usually occur unless someone was negligent AND
2. P doesn't know which D caused the injury

Req't: the object causing injury must have been in the D's sole control

Exception: even if multiple Ds may have been in control of the OBJECT that caused the injury, RIL is still ok if one D had control over the SITE of the injury

Effect: Creates a prima facie case of negligence


Intentional Tort: False Imprisonment

1. Physical barrier
2. Intending to confine (ok even if confined for a short time)


Attractive Nuisance Doctrine (2?)

1. Child trespasser
2. Injured by a dangerous artificial condition

note - kid need not have actually been attracted to come onto the property by the condition


Negligence: Standard of Care: Licensee (Social Guest)

Must warn of a hidden/concealed condition if you actually know about it


Negligence: Standard of Care: Statute
• Req't
• Exceptions (2)

Req't: Prove that a statute imposes a specific duty

Exceptions - may excuse a statutory violation if:
1. Compliance would cause more danger than violation OR
2. Compliance beyond the D's control

note - may establish P's contributory negligence by his statutory violation


Joint and Several Liability

When two or more tortious acts combine to proximately cause an indivisible injury to P, each tortfeasor is liable to the P for the ENTIRE damage incurred (full amount)
• each D is responsible for the combined liability of all Ds


Contributory Negligence

Rule: Completely bars recovery if P contributed negligence

Exception: not a defense if D was reckless and wanton


Products Liability: Negligent Design

Standard: Mfr knew or should have known of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed

note - claim doesn't work if the danger of the product becomes apparent only AFTER the product reaches the public


Negligence: Standard of Care: Duty to an Unknown Trespasser

Landowner or occupier owes NO DUTY


Intentional Tort: Assault (2)

1. Intent to create
2. Reasonable apprehension of immediate harmful or offensive contact


Defamation: Slander Per Se v. Any Other Slander: Damages

Per Se - damages are presumed

Any Other Slander - actual damages (econ harm, not social)


Defamation: Slander Per Se: Types (4)

1. Biz or Profession
2. Loathsome Disease (leprosy; venereal disease)
3. Imputes Unchastity to a woman (susie is a slut) OR
4. Serious crime


Malpractice: SOL

Begins to run once the patient becomes aware of the injury


Intrusion of Privacy: Public Disclosure of Private Facts
• Test (2)
• Is the disclosure ever privileged?

1. Publication or pubic disclosure by D of private info a/b P


2. The matter made public is such that a reasonable person would object to having it made public

note - publication may be privileged if it's a matter of legitimate public interest as long as it's made w/out malice

note - fallback tort when P can't sue for defamation b/c the statement is true


Intrusion of Privacy: False Light

"False Gossip": widespread dissemination of a material falsehood a/b the P that would be highly offensive to an average person

Note - fallback tort when P can't sue for defamation b/c the statement is true


Intrusion of Privacy: Intrusion into One's Seclusion

Invade P's seclusion in a way that is highly offensive to an average person
• reasonable expectation of privacy req't

Ex: wiretapping; peering through window; listening at keyhole; covert video surveillance


Intrusion of Privacy: Commercial Appropriation

Use P's name and image for a commercial purpose
• exception: newsworthiness

Note - not limited to celebrities


Wrongful Death Action: Recovery Rule

Recovery is allowed only to the extent that the deceased would have recovered had she lived


Apparent Consent

May be implied where a reasonable person would infer consent from the P's action


Owners of Trespassing Animals: Liability Rule

Strictly liable for damages as long as it was reasonably foreseeable


CL: Owners of Automobiles: Liability Rule

An automobile owner is not liable for torts committed by another person driving the automobile


Landowner: Off Premises: Duty?
• Rule
• Exception

Landowner have no duty to those off the premises for natural conditions
• exception - may be liable for damage caused by unreasonably dangerous artificial conditions OR structures abutting adjacent land (i.e., falling ice from rooftop)