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Flashcards in Torts Deck (75):
1

Battery

Causes a harmful or offensive contact (objective) with the person of another; intent to cause the contact/apprehension of the contact

2

Assault

defendant’s intentional action or threat caused the plaintiff to experience reasonable apprehension of an imminent harmful or offensive bodily contact

3

IIED

Intentionally/recklessly acting with extreme or outrageous conduct (beyond human decency); causes P severe emotional distress.

4

IIED third party liabiltiy

Distress victim's immediate family w/ or w/o bodily injury; or other bystander w/bodily injury

5

False imprisonment

intent to confine/restrain another within boundaries (no reasonable means of escape); directly or indirectly result in confinement; victim is conscious of confine or harmed by it

6

Trespass to chattels

intentional interference with P's right of possession by either dispossessing or using or intermeddling with chattel

7

Conversion

intentional interference with P's right of possession so serious (duration/extent, good faith, extent of harm) that it deprives P of use of chattel

8

Trespass to land

Intentional act (intent to enter land only) that causes a physical invasion of property

9

Private Nuisance

substantial (offensive to average person) and unreasonable (injury outweigh usefulness) interference with another's use or enjoyment of land

10

Public nuisance

unreasonable interference with a right common to the general public; private citizen suffering harm different in kind from general public

11

Duty

owed to all foreseeable persons who may be injured by D's failure to meet reasonable standard of care. Cardozo: D only liable to Ps within zone of foreseeable harm

12

Firefighter's rule

Emergency professionals barred from recovery if injury results from risk of the job

13

Affirmative duty to act

assumption of duty; placing another in peril; by contract; by authority; by relationship

14

Standard of care: reasonably prudent person

average mental abilities and same knowledge as average member of community; physical characters of P considered

15

Negligence per se

Criminal/regulatory statute imposes a specific duty for protection of others; D neglects to perform the duty; D is liable to anyone in the class of people intended to be protected by statute; for harms of the type the statue was intended to protect against that were proximately caused by D's violation

16

Standard of care: Common carriers

highest duty of care consistent with practical operation of the business

17

Standard of care: innkeepers

ordinary negligence (majority); highest duty of care (minority)

18

Standard of care: automobile drivers

absent "guest statute" (minority: refrain from wanton & willful misconduct), ordinary care to guests as well as passengers (majority)

19

Standard of care: bailor

duty to warn all bailees of known dangerous defects; duty to warn bailee for hire of defects bailor should have known about with reasonable diligence

20

Standard of care: bailee

gratuitous bailee liable only for gross negligence; bailee for hire must exercise extraordinary care; bailee for mutual benefit must take reasonable care

21

S/C: 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

22

S/C: trespassers

refrain from willful, wanton, reckless or intentional misconduct

23

S/C: discovered trespassers

warn or protect against concealed, dangerous, artificial conditions

24

S/C: undiscovered trespassers

generally no duty unless owners should reasonably know that trespassers are entering land, then same duty owed to a licensee

25

Attractive nuisance

liable for injuries to trespassing children if artifical condition exists where land possessor know/should known children are likely to trespass; artificial condition poses unreasonable risk of serious bodily injury; children cannot appreciate the danger; burden of eliminating danger slight compared to risk of harm; owner fails to exercise reasonable care

26

S/C: Invitee

invited to enter for purposes for which land is held open or for business purposes; reasonable care to inspect, discover dangerous conditions and protect invitee from them

27

S/C: licensee

enters land with permission/privilege; warn of concealed dangers that are known/should be obvious; use reasonable care in conducting activities on land; no duty to inspect

28

S/C: Landlord

injuries in common areas resulting from hidden dangers; premises leased for public use; hazard caused by negligent repair; hazard LL agreed to repair

29

S/C: tenant

injuries to third parties due to conditions within tenant's control

30

Res ipsa loquitur

no injury would typically occur in absence of negligence; caused by agent/instrumentality under D's exclusive control; P was not responsible for injury

31

Actual cause

"but for" D's act/omission, injury wouldn't have occurred

32

Proximate cause

D is liable for reasonably foreseeable consequences from his conduct

33

superseding cause

breaks the chain of proximate causation; unforeseeable intervening cause is a superseding cause; negligent intervening acts are foreseeable

34

Damages

Must prove actual injury (person injury or property damage) not just economic loss

35

NIED-zone of danger

P was within zone of danger of threatened physical impact (that he feared for his own safety because of D's negligence) and threat of physical impact cause ED

36

NIED-bystander recovery

Bystander outside zone of danger can recover if: P is closely related for person injured by D; was present at scene of injury; and personally observed the injury

37

Vicarious liability - employee

Only liable if within employer's right to control; scope of employment

38

Vicarious liability - Independent contractor

Not liable for IC unless: non-delegable duty; IC engaged in inherently dangerous activity; duty of storekeeper/operate of premises open to the public

39

Vicarious liability - car owners

Negligent entrustment of car if D knows/should know of driver's or user's negligent propensities;

Family purpose doctrine (liable for family members driving with permission)

Owner liability statutes (liable for anyone driving with permission)

40

Vicarious liability - parent/child

Only if child acts as parent's agent; primarily liable if parents fail to exercise reasonable care to prevent child from intentionally/negligently harming third party if parent can control child and knows/should know of necessity/opportunity for exercising control

41

Abnormally dangerous activites

not commonly engaged in; inherent, foreseeable and highly significant risk of harm even when reasonable care is exercised

42

Wild animal

dangerous propensity characteristic of animal or about which owner has reason to know; S/L for foreseeable damage caused by trespassing/P's fearful reaction to unrestrained wild animal

43

Domestic animal

S/L if owner knows/has reason to know of dangerous propensities

44

S/L for products

Defective (manufacture/design/failure to warn); defect existed when it left D's control; D caused P's injury when used in reasonably foreseeable way

45

Manufacturing defect

Manufacture defect: does not conform to D's own specifications

46

Failure to warn

Failure to warn: foreseeable risk of harm; not obvious to ordinary user of product and risks could have been reduced or avoided with reasonable instructions/warnings

47

Design defect

consumer expectation test (dangerous beyond expectation of ordinary consumer)

risk utility test (risks outweigh the benefits and reasonable alternative design was economically feasible and available

48

Defamation

Defamatory language (diminishing respect, esteem or goodwill); of or concerning P; publication (intentional or negligent communication to third party); damages P's reputation

49

Libel

written, printed or otherwise recorded in permanent form; general damages that compsenate P for harm to reputation

50

Slander

spoken word, gesture or any form other than libel; special damages required; third party heard comments and acted adversely to P; usually economic loss involved

51

Slander per se

No special damages required if accused of committing a crime; conduct that reflects poorly on P's trade or profession, loathsome disease, sexual misconduct

52

Intrusion upon seclusion

intrusion into P's private affairs; objectionable to a reasonable person; no publication required

53

False light

publication of facts about P or attributing views/actions to P that place him in false light objectionable to a reasonable person; truth not always a defense; in matters of public interest, P must show malice

54

Misappropriation

authorized use of P's picture/name for D's advantage; lack of consent; injury

55

Public disclosure of private facts

public disclosure of private facts; highly offensive to reasonable person; not of legitimate concern to public

56

Intentional misrepresentation

false representation of material fact; knowledge or reckless disregard of truth; intent to induct P to act/refrain in reliance on misrepresentation; actual reliance; justifiable reliance

57

Negligent misrepresentation

Accounting firm/supplier of commercial information provides false information as result of D's negligence; P justifiable relies on info; incurs pecuniary damages

58

Intentional interference with contract

D knew of valid contractual relationship between P and third party; D intentionally interfered with K that substantially exceed fair competition and free expression; breach caused damages to P

59

Theft of trade secrets

P owns valid trade secret; not generally known; reasonable precautions to protect; D took secret by improper means

60

Wrongful death

decedent's spouse, next of kin or personal representative can bring suit to recover loss of support, companionship, society and affection, but not pain and suffering, recovery is limited to what deceased would have recovered ad he lived

61

Survival action

personal representative of decedent's estate to pursue any claims decedent herself would have had at time of death; claims for damages resulting from both personal injury and property damage; may include pain and suffering

62

Private necessity

protect an interest of D or a limited number of people; interference was reasonably necessary to prevent a threatened injury from nature or another force not connected with P; property owner can recover actual damages

63

Public necessity

private property may be intruded upon or destroyed when necessary to protect a large number of people from public calamities, like spread of fire, disease; as long as D reasonably believed that the necessity existed, not liable for damage to property

64

Trespassing animal

(1) owner of any animal (wild or domestic) is S/L for any reasonably foreseeable damage caused by his animal while trespassing; (2) if owner knows or has reason to know the dog or cat is intruding on another's property that has a tendency to cause substantial harm; (3) general negligence if animal strays on public road and causes accident

65

Intervening causes: criminal acts

Criminal acts of third parties generally are unforeseeable superseding causes; but if duty breached by D is one of failing to use reasonable care to protect P, and P is harmed by criminal act, D remains liable

66

Self defense

A person may use reasonable force to defend against an offensive contact or bodily harm he reasonably believes is about to be intentionally inflicted on him; must be reasonably proportionate to the anticipated harm

67

Defense of others

justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense

68

Defense of property

may use reasonable force to defend property if she reasonably believes it is necessary to prevent tortious harm to property

69

Component supplier S/L

The supplier of a component that is integrated into a product during its manufacture is not liable unless the component itself is defective or the supplier substantially participates in the integration process and the integration of the component causes the product to be defective.

70

Product misuse/modification (S/L)

If the misuse is neither intended nor reasonably foreseeable, it negates liability; if it's foreseeable then doesn't preclude liability.

Comparative-fault jurisdictions treat product misuse as fault that reduces but not eliminate recovery

71

Substantial change (S/L)

If product substantially changes between time it is distributed by manufacturer to the time it reaches consumer, may constitute superseding cause.

72

Last clear chance

In contributory negligence jurisdiction, P can mitigate legal consequences of her own contributory negligence if she proves that D had last clear chance to avoid injuring P but failed to do so

73

Imprisonment (confinement)

use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or plaintiff’s property), failure to provide a means of escape, or invalid use of legal authority.

moral pressure or future threats does not constitute confinement or restraint, and a plaintiff is not imprisoned if she willingly submits to confinement

74

Defamation falsity

if public figure/official or private individual and statement involves matter of public concern --> must prove statement is false

75

Defamation fault

public figure/official --> actual malice (knowledge statement is false or acted with reckless disregard as to the truth/falsity of the statement)

private individual/matter of public concern --> negligence or actual malice

private individual --> at least negligence (CL: S/L)