Torts Flashcards Preview

July Bar > Torts > Flashcards

Flashcards in Torts Deck (82):
1

What are the seven intentional torts

1. Battery
2. Assault
3. False Imprisonment.
4. Intentional infliction of emotional distress
5. trespass to chattel
6. conversion
7. Trespass to property

2

What do element do all of these intentional torts share?

Intent. Acting with desire to produce a forbidden sequence.

3

Do we care about the plaintiff's hyper-sensitivities?

No, we assume we are dealing with a person with ordinary sensitivities.

4

Is capacity a defense to intentional torts?

No.

5

what are the elements of battery?

1. Harmful or offensive contact.
2. Contact must be with the plaintiff's person. (Anything the plaintiff is holding or touching)

6

For battery, does the contact have to be instantaneous?

No, there could be a delayed effect. Giving someone a rotten food.

7

What are the elements of Assault?

1. D must place P in a reasonable apprehension (knowledge or reason to know)
2. The apprehension of an immediate battery. (mere words is not enough, but it can negate conduct)

8

what are the elements for false imprisonment?

1. D commits an act of restraint. (doesnt have to be physical and p has to be aware)
2. P is confined in a bounded area.
(there cannot be a reasonable means of escape)

9

what are the elements of intentional infliction of emotional distress (3 elements) ?

1. reckless conduct by D. (doesnt require intent)
2. Outrageous Conduct by D. (exceeds all bounds of decency)
3. P must be severely distressed. (mild annoyance is not enough).

10

What are the elements to trespass to land?

1. Act of physical invasion. (doesnt need to know hes trespassing and throwing something counts)
2. Interference with P's possession of land.

11

what are the elements to trespass to chattel and conversion

1. both include intentional interference with persons property. Damage item or steal it.
2. low harm= trespass to chattel, bigger harm= conversion.
conversion you get full price of item. force sale.

12

What are the three affirmative defenses to intentional torts?

1. Consent
2. Self Defense of self, property, others
3. Necessity

13

What are the elements of consent?

1. only plaintiff with legal capacity can give consent.
2. express or implied consent.
3. Have to act within legal scope.

14

What is express consent?

in words granting D to act a certain way.
invalid if gained through fraud or duress.

15

What is implied consent?

1. Customary practice - place where invasions are routine.
2. Reasonable interpretation of P's conduct and surroundings. (body language consent)

16

what are the elements of the protective privileges?

1. Threat emanating from P's conduct.
2. D has to have proper timing. (threat must be imminent or progressive)
3. Reasonable belief of threat.
4. Force has to be proportional.

17

What is Necessity a defense to?

property defenses.

18

what are the two types of necessity defenses?

Public Necessity and Private Necessity

19

what is public necessity?

D commits property tort in a emergency to protect the community as a whole or a large amount of people.
Absolute defense - no liability.

20

what is private necessity?

D commits a property tort in self interest.
Not an absolute defense.
Liable for compensatory damages, not punitive or nominal damages.
P cannot throw D off of land.

21

what are the elements to defamation?

1. D makes a defamatory statement identifying the P.
2. there must be publication.

22

what is a defamatory statement?

a statement that adversely affects the reputation of another.

23

what is publication for defamatory purposes?

publication to someone other than the P. Doesnt have to be intended.

24

what are the two types of defamation?

libel or slander

25

what is libel?

statement written down, P doesnt have to prove damages.

26

what is slander?

oral statement or spoken in nature.

27

what are the four different types of slander per se?

1. relating to P's business or occupation.
2. relating a serious crime of moral turpitude.
3. statement imputing un-chastity of a woman.
4. Statement that P suffers from loathsome disease. Venereal disease (lepersy)

28

what is the significance of slander per se?

treated like libel, P doesnt have to prove damages.

29

what are the three defenses to defamation?

1. Consent, Truth, Privilege

30

supreme court jurisprudence for public fact?

something newsworthy? plaintiff has to prove its false, and actual malice. intended to do it.

31

what are the common law privacy torts?

1. Appropriation
2. Intrusion
3. False Light
4. Disclosure

32

what are the elements to appropriation?

(1) take something that doesnt belong to you and
(2) benefiting from it.
Example: taking sports stars image for commercial benefit.
Exam Tip: Newsworthy exception.

33

what are the elements of Intrusion?

(1) Interfering with the P's seclusion,
(2) in a way that is highly offensive.
Example: wiretaps, peeping tom.
Exam Tip: Has to be a place where you have a legitimate place of privacy.

34

what are the elements of false light?

(1) involves the widespread of a material falsehood
(2) that is highly offensive to an average person.
Trick: goes with defamtion.

35

what are the elements disclosure?

(1) a widespread disclosure of controversial information about the plaintiff
(2) that would be highly offensive to an average person.
Trick: Newsworthy Exception

36

what are defenses to privacy torts?

Consent or privilege for false light and disclosure.

37

What are the elements of a Negligence Claim?

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

38

to whom do i owe a duty to?

foreseeable victims (zone of danger victims)

39

what duty do i owe?

to act as a reasonably prudent person acting in similar circumstances.

40

what the 6 situations where the duty of care is different?

1. Negligence Asserted Against Kids
2. Negligence Asserted Against Professionals
3. Premise Liability
4. Statutory Standards of Care
5. Duties to Act Affirmatively
6. Negligent Infliction of Emotional Distress

41

what kind of duty of care is owed by children?

under 5 they have no duty of care.
between 5- 18 the care of a hypothetical child with similar age, experience, and intelligence acting under similar circumstances.
exception: if child engaged in adult activity, operated moterized vehicle

42

what duty of care must professionals exercise?

customary practice. must exercise same care as average members within the same occupation.

43

what are the four types of premises liability?

1. Unknown trespassers
2. Known or anticipated Trespassers
3. Licensees
4. Invitees

44

what is the duty of cared owed to unknown trespassers?

no duty of care.

45

what is the duty of cared owed to known or anticipated (should've known) trespassers?

they owe a duty of care if they meet 4 point test:
1. man made condition
no duty owed to natural conditions.
2. highly dangerous
3. concealed from trespasser
cant be obvious.
4. Possessor knew in advance.
known manmade death traps.

46

what duty of care is owed to licensees?

known traps
1. condition is concealed.
2. defendant has advanced knowledge.

47

what is a unknown trespasser?

had no reason to know there was going to be trespassers.

48

what is a known trespasser?

known to be on land or repeated trespassers. shouldve known they would be on land.

49

what is a licensee?

entered land with permission but no economic benefit on possessor. social guest.

50

what is an invitee?

enter with permission and economic benefit. or public land open generally to the public.

51

what is the duty of care owed to licensee?

duty owed to licensee if 2 part test is met
1. condition is concealed to licensee
2. possessor knew of condition in advance
known traps

52

what is the duty of care owed to invitees?

duty owed to invitees if 2 part test is met
1. condition is concealed to licensee
2. possessor knew or could've knew through reasonable inspection.
reasonably knowable traps.

53

what are the circumstances where duty is altered?

firefighters or cops (assumption of risk)
infant or children: reasonably prudent care to avoid trespassing on land in regards to artificial condition.

54

what can the possessor do when he owes a duty?

he can fix the problem or put up a sign.

55

what is a statutory standard of care? (negligence per se)

its when the plaintiff wants to borrow a statute because statute is conclusive on breach
test: same class of persons, same class of risk.
when satisfied it becomes negligence per se.
if not satisfied we reasonably prudent person standard.

56

what are the exceptions to negligence per se?

1. when statutory compliance is a more dangerous violation or
2. when statutory compliance is impossible (heart attack and cant stop at red light)

57

Do we have a duty to act affirmatively?

Nope. no duty to rescue person in peril.

58

when is there exceptions to act affirmatively?

1. you have a preexisting relationship
carrier/passenger
2. d put plaintiff in peril.
d pushed p in pool. must act reasonably.
3. if you decide to rescue and you do it unreasonably and harm.

59

Negligent Infliction of Emotional Distress

negligent D does not inflict bodily trauma on P, but leaves P emotionally distressed or distraught.
1. have to show they were negligent
2. then a breach

60

what are the three types of NIED cases?

1. Near Miss
2. Bystander Claim
3. Relationship Case

61

what is a near miss claim?

1. D negligently put P in zone of physical danger.
2. P has to suffer subsequent physical manifestations.
heart attack, miscarriage, tremor

62

what is a bystander claim?

Negligent D badly injures or hurts third party, and P is sad.
must show:
1. got to show P had a close family relationship with third party.
2. P must see D's act as it happens.

63

what is a relationship NIED?

commercial relationship between P and D, and there is high probability that careless act will cause emotional stress.
false/positive tests
customer/funeral
client lawyer.

64

what are the elements of breach of duty?

1. must identify what D did wrong
2. then argue why D acted failed standard of care.

65

what is res ipsa loquitor?

when P lacks information about what D did wrong?
Test:
1. accident is associated with negligence.
2. accident normally due to negligence of person in D's position. (D had posession)
3. entitled to case, dont automatically win.

66

how do we demonstrate causation.

must show a link between breach and injury.

67

what is the but for test?

P must convince jury, that but for D's breach, P would not have been injured.
D will argue that even if you still would've been injured.
the factual cause.

68

what is proximate cause?

was the injury foreseeable?

69

what happens when there is multiple Ds?

if multiple Ds breach duty, use substantial factor test, if satisfied for both D, then jointly liable.

70

what is the substantial factor test

whether the breach on its own couldve caused the harm?

71

if undistinguishable who caused harm? (quail case)

let D prove, and if they cant, they are jointly liable.

72

what is the eggshell doctrine?

you take P as you find plaintiff.

73

what is an affirmative defense to a negligent case?

Comparative Negligence. P failed to exercise duty of care for his own safety or violated statute. Damage will be reduced by P's percentage of fault.

74

what are the three strict liability claims.

1. Animals
2. Abnormally dangerous activities
3. Defective Products

75

how does strict liability apply to animals?

1. there is not strict liability for domesticated animals unless owner knew they had a vicious propensity (have bit before) not liable to trespassers.

2. there is strict liability for wild animals (tigers, lions, wolves) applies too zoos, circuses.

76

How does strict liability apply to abnormally dangerous activities?

1. strict liability when an activity creates a foreseeable risk of harm even with precautions.
2. activity is not common in community.
(explosives, radiation, highly toxic chemical)

77

How does strict liability apply to defective products?

1. Defendant must be a merchant.
2. the product must have been defective.
3. P must show that defective item has not been altered
presumed satisfied, if product moved in ordinary channels of distribution.
4. Plaintiff was making a foreseeable use of product.
many misuses are foreseeable.

78

what are three different types of defects?

1. product differs from those on the assembly line.
2. design defect, when there are alternative safe viable options.
3. information defect, not an adequate warning when they are inherently dangerous and cannot be fixed.

79

Defense for Strict liability

Comparative Responsibility, defendant engaged in stupidity.

80

What is Nuisance?

interference to someone's ability to use and enjoy their property to a reasonable degree.

the degree of interference has to be significant. interferes in an unreasonable degree.

81

what is a loss of consortium claim?

claim where uninjured spouse against D. D can use same defenses.

loss of services.

82

what is vicarious liability?

doctrine of last resort. Employer liable if employee is acting in scope of employment. Parent is not vicariously liable. Car owner is not liable unless he has driver do an errand for him. Hiring party is not liable for independent contractor, unless injury occurs on Hiring party's property.