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Torts > Torts > Flashcards

Torts Flashcards

1
Q

Battery

A

Battery is the intentional, harmful or offensive touching of another.

KEY WORDS AND PHRASES:

  1. intentional
  2. harmful or offensive
  3. touching of another person
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2
Q

Assault

A

Assault is the intentional threatening of another with battery and the creating of reasonable apprehension of immediate bodily harm in the victim.

KEY WORDS AND PHRASES:

  1. intentional
  2. threat of battery
  3. creating reasonable apprehension of immediate bodily harm
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3
Q

False Imprisonment

A

is the intentional confinement of the plaintiff by the defendant.

KEY WORDS AND PHRASES:

  1. intentional
  2. confinement of another person
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4
Q

Intentional Infliction of Mental Distress

A

intentional causing of severe emotional or mental distress in another through extreme and outrageous conduct.

KEY WORDS AND PHRASES:

  1. intentional
  2. causing another person severe emotional or mental distress
  3. extreme and outrageous conduct
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5
Q

Trespass to Land

A

Trespass to land is an intentional entry upon real property in the possession of another.

KEY WORDS AND PHRASES:

  1. intentional
  2. entry upon real property
  3. in possession of another
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6
Q

Trespass to Chattel

A

Trespass to chattel is the intentional interference with a person’s use or possession of a chattel.

KEY WORDS AND PHRASES:

  1. intentional
  2. interference with chattel
  3. possessed by another
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7
Q

Conversion

A

Conversion is an intentional assumption of dominion and control over the chattel of another, resulting in a substantial interference with the plaintiff’s possessory
rights.

KEY WORDS AND PHRASES:

  1. intentional
  2. dominion and control of a chattel
  3. possessed by another
  4. substantial interference with possessory rights
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8
Q

What is the Intent Requirement for Intentional Torts?

A

KEY WORDS AND PHRASES:

  1. conscious desire to produce result, or
  2. knowledge that result will occur, or
  3. knowledge that result is substantially certain to occur
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9
Q

Substantial Certainty Doctrine:

A

that if the defendant does an act with the knowledge that it is substantially certain to produce a
particular result, the defendant is deemed to have intended the result and is liable for
his act.
KEY WORDS AND PHRASES:
1. defendant acts
2. defendant knows his act is substantially certain to produce result

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10
Q

Transferred Intent Doctrine:

A

KEY WORDS AND PHRASES:

  1. defendant intends to commit a tortious act
  2. a. result is harm to a different victim than intended, or
    b. result is a different tort than intended
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11
Q

Trespass Ab Initio

A

is an entry upon the real property in possession
of another under a conferred legal right, and the subsequent abusing of that conferred
legal right through the commission of an assault, battery, false imprisonment, or trespass.

KEY WORDS AND PHRASES:

  1. legal entry upon another’s property
  2. abuse of right of entry by commission of tort
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12
Q

Defense of Consent

A

A defendant who acted in accordance with the plaintiff’s informed
and voluntary assent, whether express or implied, is not liable for the resulting harm so
long as the plaintiff had legal capacity.

KEY WORDS AND PHRASES:

  1. informed
  2. voluntary
  3. express or implied assent
  4. legal capacity
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13
Q

Defense of Self-Defense

A

A person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary
to protect himself.

If the attack is with so-called “deadly force” the majority rule is that the one attacked may defend with “deadly force” if deemed reasonable under the circumstances.

The minority rule requires that the one attacked retreat if there is a safe means of doing so, unless the victim of the attack is in his “castle”(i.e., home).

KEY WORDS AND PHRASES:

  1. objectively reasonable belief of threat to self of immediate bodily harm
  2. degree of force is apparently necessary
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14
Q

Defense of Defense of Others

A

A person who reasonably believes another to be
threatened with immediate bodily harm may use whatever degree of force is apparently
necessary to protect the personal safety of the other person.

2 Kinds:
Reasonable Appearances Jurisdictions or
Step-In-Shoes Jurisdiction

KEY WORDS AND PHRASES:

  1. objectively reasonable belief of threat to another of immediate bodily harm
  2. degree of force is apparently necessary
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15
Q

Step-In-Shoes Jurisdiction (Defense of Others):

A

In some jurisdictions a person is not
allowed to use the defense of “defense of others” unless the person being defended
was not the aggressor and had the right to use self-defense.

KEY WORDS AND PHRASES:

  1. defendant claims the defense of others
  2. person defended was not aggressor
  3. person defended was entitled to use self-defense
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16
Q

Reasonable Appearances Jurisdictions (Defense of Others):

A

In other jurisdictions, a person defending another in good faith and in ignorance of the fact that the person
being defended is the aggressor and not entitled to use self-defense is nevertheless
justified when acting upon reasonable appearances. Sometimes it is further required
that the person being defended is one whom the defender is authorized by statute to
protect.

KEY WORDS AND PHRASES:
1. defendant claims defense of others
2. defendant acted in good faith
3. objectively reasonable ignorance of fact that person being defended was
aggressor
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17
Q

Defense of Defense of Property:

A

A person may use reasonable force that is not likely
to cause death or serious bodily harm to protect his or her possession of real or
personal property against an apparent trespasser.

KEY WORDS AND PHRASES:

  1. defendant acts to protect his property from being taken
  2. taking was apparently trespassory
  3. degree of force used was objectively reasonable and not life-threatening
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18
Q

Defense of Prevention of Crime

A

A person, whether a police officer or a private
person, may use reasonable force to prevent the commission of a crime which is
apparently being attempted in his or her presence.

KEY WORDS AND PHRASES:

  1. reasonable belief that a crime is being committed in defendant’s presence
  2. defendant acted to prevent the crime
  3. degree of force used was objectively reasonable
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19
Q

Defense of Legal Authority

A

A person may commit an otherwise tortious act if it is
done under legal process or is otherwise authorized by law. It is a defense that is usually used by police officers or private persons who have made an arrest either with
or without a warrant and who are now facing charges of false imprisonment in relation to
their having made the arrest.

KEY WORDS AND PHRASES:
1. defendant acts under legal process or otherwise authorized by law

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20
Q

Defense of Necessity

A

A person may commit an otherwise tortious act if that person is acting in an emergency situation to protect himself or others from a threatened injury to
person or property. The person claiming the defense of necessity may act on
appearances. A reasonable mistake is permitted.

KEY WORDS AND PHRASES:

  1. defendant acts to protect himself, others, or property
  2. defendant had an objectively reasonable belief that his act was done during an emergency situation
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21
Q

Defense of Recovery of Property

A

A person may commit an act which would
otherwise be tortious if he or she is acting in fresh pursuit and with a reasonable degree of force to regain possession of his or her property. There are three separate aspects to his particular defense:

  1. re-entry upon land
  2. recapture of chattel and
  3. the Shopkeeper’s Rule

KEY WORDS AND PHRASES:

  1. defendant’s property has been taken
  2. defendant is in fresh pursuit
  3. defendant acts to regain his property
  4. degree of force was objectively reasonable and not life-threatening or likely to cause serious bodily harm
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22
Q

Re-entry Upon Land Aspect:

A

A person may use reasonable force to re-enter real
property only if the taking of the property was tortious or wrongful and the re-entering
party is entitled to immediate possession.

Ordinarily, a demand must be made for the
occupier to vacate unless such a demand would be a total exercise in futility. Only force not likely to cause death or serious bodily harm may be used.

KEY WORDS AND PHRASES:

  1. defendant’s real property has been taken by another
  2. taking was wrongful or tortious
  3. defendant made a demand for the property to be vacated (unless futile)
  4. defendant acts to retake possession
  5. degree of force was
    a. objectively reasonable and
    b. not life-threatening or likely to cause serious bodily harm
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23
Q

Recapture of Chattel Aspect

A

A person may use reasonable force to defend against
his or her chattel being taken only if the taking of the chattel was wrongful or tortious, the recapturing person is in fresh pursuit, and the degree of force is not likely to cause death or serious bodily harm.

KEY WORDS AND PHRASES:

  1. defendant’s chattel has been taken
  2. taking was wrongful or tortious
  3. defendant is in fresh pursuit
  4. defendant acts to regain his property
  5. degree of force was
    a. objectively reasonable and
    b. not life-threatening or likely to cause serious bodily harm
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24
Q

Shopkeeper’s Rule

A

Under the Shopkeeper’s Rule, a business person has a limited privilege in some jurisdictions to detain a suspected thief, e.g., shoplifter or embezzling
employee, to investigate the shopkeeper’s claim to the goods, even though it may be determined that no wrongful taking has been committed.

KEY WORDS AND PHRASES:

  1. defendant is a business person
  2. objectively reasonable belief that a chattel has been taken by the plaintiff
  3. fresh pursuit
  4. defendant is charged with false imprisonment for detaining the suspected thief
  5. detention was for a reasonable length of time to conduct a reasonable investigation
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25
Q

Fresh Pursuit

A

Fresh pursuit relates to the requirement that a person recapturing a chattel or a shopkeeper detaining a suspected thief must do so without unreasonable
delay after discovering the loss

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26
Q

Reasonableness

A 
Reasonableness is a concept that permeates all of the defenses to intentional torts. 
It is the standard by which 
the amount of force used or 
the time and manner of a re-entry, 
recapture, or detention is judged.
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27
Q

Negligence

A

Liability for negligence requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and
proximate cause of damages suffered by the plaintiff.

KEY WORDS AND PHRASES:

  1. duty
  2. breach
  3. causation
  4. damages
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28
Q

General Duty

A

The general rule of duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm.

KEY WORDS AND PHRASES:

  1. everyone owes duty of due care
  2. not to subject others to unreasonable risks of harm
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29
Q

Cardozo Rule on Duty

A

KEY WORDS AND PHRASES:
1. duty owed to foreseeable plaintiffs in the “zone of danger”

Under Palsgraf v. Long Island Railroad Co., Justice Cardozo’s majority opinion held that a defendant owes a duty only to those who could foreseeably
be endangered by the defendant’s negligent act.

No duty owed to a plaintiff who is in a position of apparent safety when the defendant
commits a negligent act. This is the so-called “orbit of
danger” test.

KEY WORDS AND PHRASES:
1. duty owed to foreseeable plaintiffs in the “zone of danger”

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30
Q

Andrews Rule on Duty

A

KEY WORDS AND PHRASES:
1. liability imposed upon defendant for any harm proximately caused bydefendant’s act

In the Palsgraf case, Justice Andrews gave a dissenting
opinion which has been applied as the majority opinion in other cases.

Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action.

Thus, Cardozo looked at the issue from a
perspective of identifying whether a duty is owed, while Andrews considered the issue as one of proximate causation.

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31
Q

Special Duty

A

KEY WORDS AND PHRASES:
1. special relationship or circumstance may raise a special duty

In addition to the general duty which everyone owes, special duties may be imposed due to a special relationship or circumstance.

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32
Q

Negligence Per Se

A

KEY WORDS AND PHRASES:

  1. defendant violates safety statute
  2. plaintiff is a member of the class that the statute was designed to protect
  3. injury to plaintiff is the type the statute was enacted to prevent
Under the doctrine of negligence per se, the elements of duty and breach are proved when a defendant violates a safety statute which was intended to
protect the class of people to which the plaintiff belongs from the kind of injury the
defendant caused.

In California, a presumption of negligence arises.

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33
Q

Duty Owed to a Guest Passenger

A

KEY WORDS AND PHRASES:
1. drivers owe a duty to passengers to drive with due care

A driver of a motor vehicle, in the absence of a
statute otherwise, owes to persons riding in the vehicle a duty of driving with due care.
However, a number of jurisdictions have statutes that provide that a guest passenger in
an automobile cannot recover from the owner or operator of the automobile unless the
owner or operator is guilty of willful misconduct, recklessness, or intoxication.

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34
Q

Duty Owed to a Person Injured by a Drunk Driver:

A

KEY WORDS AND PHRASES:
1. no duty to avoid serving alcohol, even if recipient is intoxicated
2. exception: under dram shop acts, persons serving alcohol owe a duty of care
to those injured by one who is intoxicated

A person who serves alcoholic
beverages to one who is intoxicated is not, in the absence of a statute stating otherwise,
liable for the damages done by the intoxicated person.

However, in those jurisdictions
which have statutes traditionally referred to as dram shop acts, an owner, a bartender orother persons serving alcoholic beverages to a person who is intoxicated can be heldliable for the foreseeable damages caused by the intoxicated person.

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35
Q

Owner Liability Statutes

A

Certain statutes impose liability upon owners of vehicles for the tortious acts committed by persons to whom the owner intentionally furnishes the vehicle.

KEY WORDS AND PHRASES:
1. vehicle owner may owe duty to those injured by person to whom vehicle was loaned

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36
Q

Family Purpose Doctrine:

A

A parent who furnishes a vehicle to the members of his or her family for customary convenience, assumes liability for the tortious acts committed by those persons when the car is being driven for a family purpose.

KEY WORDS AND PHRASES:

  1. parent owes duty to those injured by family members who use vehicle
  2. vehicle used for family purpose
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37
Q

Omission to Act

A 
1. No duty is owed to act to prevent injury to another
EXCEPT . exceptions:
a. parent/child
b. husband/wife
c. co-venturers
d. innkeeper/guest
e. common carrier/passenger
f. person who creates danger/person so endangered

An omission to act to prevent injury, or “nonfeasance” as it is sometimes called, does not give rise to tort liability unless there is a special relationship or special circumstance which creates an affirmative duty requiring the defendant to act to protect the plaintiff.

An affirmative duty to act may arise when there is a close familial relationship, such as parent and child or husband and wife; when the defendant and the plaintiff are coventurers; when the defendant caused the plaintiff to be in danger or injured; when the defendant has begun to render assistance to the plaintiff; when the defendant fails to perform a duty to control the behavior of others; when the defendant is an innkeeper; or when the defendant operates a common carrier such as a plane or ship.

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38
Q

Duty Owed by a Good Samaritan

A

KEY WORDS AND PHRASES:

  1. person rendering services owes a duty of care to recipient of services
  2. abandonment is allowed unless it results in prejudice to the other party’s position

A person who embarks upon the performance of
services for another, whether gratuitously or for consideration, is under a duty to render
those services with due care. This person, however, is under no duty to complete the
performance of the services unless abandonment would prejudice the other party’s position. The rendering of aid in an emergency constitutes the performance of services,
and a duty of care is imposed upon those who undertake to render such aid.
Some jurisdictions have enacted statutes designed to encourage physicians to render emergency aid, by limiting the liability that could otherwise be imposed upon
them. Generally speaking, liability can be imposed upon them only for reckless or
wanton misconduct.

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39
Q

Duty Owed to a Rescuer

A

A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer.

KEY WORDS AND PHRASES:
1. a person who creates situation in which rescue is needed owes a duty to
rescuer

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40
Q

Negligent Supervision

A

Negligent supervision is a cause of action which is brought by a plaintiff who suffered injury because a child or other person was inadequately supervised by one who owed a duty of supervision. Most commonly, it is brought
against parents who failed to exercise ordinary parental discretion as to the manner in which their child is supervised or cared for.

Modernly, a child may bring an action against his or her own parents for injuries sustained by the child because of lack of proper supervision.

KEY WORDS AND PHRASES:

  1. person who is obligated to supervise a child owes a duty to those injured by child
  2. person who is obligated to supervise a child owes a duty to the child
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41
Q

Proximate Cause

A

KEY WORDS AND PHRASES:

  1. act is proven to be an actual cause of plaintiff’s harm
  2. act occurs in a natural and continuous sequence of events
  3. a. sequence of events is unbroken by an intervening act, or
    b. intervening act occurs, but it is dependent and produces a result that is not
    highly unforseeable, or
    c. an intervening act occurs, but it is independent and result is foreseeable

An actual cause of harm is the proximate cause of that harm if the
act occurs in a natural and continuous sequence of events, unbroken by unforeseeable,
independent, intervening acts and results in the harm.
When a defendant’s act directly causes injury to the plaintiff without any intervening
causes, the majority of jurisdictions hold that act to be the proximate cause of harm
unless the harm is unforeseeable. However, in some jurisdictions, if the defendant’s act
directly causes harm, his act is the proximate cause regardless of whether the harm
was foreseeable or unforeseeable.
When a dependent intervening act occurs, the chain of causation is broken only if
the result of the dependent intervening act is highly unforeseeable. When an
independent intervening act occurs, the chain of causation is broken unless the result of
the independent act is foreseeable.

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42
Q

“But For” test

A

The “But For” Test is used to establish actual cause. To apply the test, the plaintiff must show that but for the defendant’s act, the plaintiff would not have been
injured.

KEY WORDS AND PHRASES:

  1. used to establish actual cause
  2. but for defendant’s act, plaintiff would not have been injured
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43
Q

Actual Cause or Cause in Fact

A

An actual cause is the cause which starts, ignites or
makes possible the result which follows, and which satisfies the “But For” or Substantial
Factor Test.
KEY WORDS AND PHRASES:
1. starts or ignites chain of events
2. satisfies “But For” or Substantial Factor Test

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44
Q

Causation

A

Proof that the defendant’s act is the actual and proximate cause of the
plaintiff’s harm is required in order to establish that a defendant should be held liable for
that particular harm.

KEY WORDS AND PHRASES:

  1. plaintiff must prove defendant’s act is actual cause of harm
  2. plaintiff must prove defendant’s act is proximate cause of harm
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45
Q

Invitee

A

An invitee is a person who has an express or implied invitation to enter property
for the purpose for which the property is maintained.

KEY WORDS AND PHRASES:

  1. enters land of another
  2. for purpose related to express or implied consent of owner
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46
Q

Duty Owed to an Invitee

A

A land occupier owes a duty of ordinary care to invitees,
which includes reasonably inspecting the land for dangerous conditions and repairing
those dangerous conditions which a reasonable inspection would reveal.

KEY WORDS AND PHRASES:

  1. land occupier owes duty of care to invitee:
    a. inspect land
    b. repair dangerous conditions
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47
Q

Business Invitee

A

A business invitee is a person who has express or implied permission to enter business property to do business with the land occupier.

KEY WORDS AND PHRASES:

  1. enters business property of another
  2. for business purpose
  3. express or implied consent of occupier
48
Q

Public Invitee

A

A public invitee enters property in the possession of another for the
purpose for which the property is held open to the public. It is not required that a
business purpose be involved. Public employees acting within the scope of their official
duties are included in the category of public invitees.

KEY WORDS AND PHRASES:

  1. enters real property which is open to public
  2. for purpose land is open
  3. no business purpose required
49
Q

Licensee

A

A licensee is a person who enters property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business.

KEY WORDS AND PHRASES:

  1. enters real property of another
  2. express or implied consent
  3. entry is not for business purpose
50
Q

Duty Owed to a Trespasser

A

The land occupier generally owes no duty of care to the
trespasser unless the trespasser is a constant trespasser upon a limited area or a child
to whom the Attractive Nuisance Doctrine applies.

KEY WORDS AND PHRASES:

  1. land occupier owes no duty to trespasser
  2. exceptions:
    a. constant trespasser upon a limited area
    b. Attractive Nuisance Doctrine
51
Q

Trespasser

A

A trespasser is someone who enters the real property of another without
express or implied consent.

KEY WORDS AND PHRASES:

  1. enters real property of another
  2. no consent
52
Q

Constant Trespasser Upon a Limited Area

A

A constant trespasser upon a limited area
is a trespasser whose presence is known, or should be known, to land occupier
because of the trespasser’s repeated acts of trespassing.

KEY WORDS AND PHRASES:

  1. enters real property of another repeatedly in same area or manner
  2. no consent
  3. land occupier is aware of trespass or should be aware
53
Q

Duty Owed to a Constant Trespasser Upon a Limited Area

A

The land occupier owes a duty to a constant trespasser upon a limited area of warning him of known dangerous
artificial conditions unless such conditions are obvious.

KEY WORDS AND PHRASES:
1. land occupier owes duty to constant trespasser upon a limited area:
a. warn of dangerous artificial conditions known to land occupier unless
obvious

54
Q

Duty Owed to a Child Trespasser

A

The land occupier owes no duty to a child
trespasser unless he is a constant trespasser upon a limited area or unless the case is
one in which the Attractive Nuisance Doctrine applies.

KEY WORDS AND PHRASES:

  1. land occupier owes no duty to child trespasser
  2. exceptions:
    a. constant trespasser upon a limited area
    b. Attractive Nuisance Doctrine
55
Q

Attractive Nuisance Doctrine

A

The Attractive Nuisance Doctrine, recognized in most
jurisdictions, imposes a duty upon land occupiers for the protection of young children
whose trespasses are to be anticipated and whose immaturity renders them particularly
susceptible to injury from dangerous conditions on the land. The land occupier owes a
duty of reasonable care to eliminate a danger or to otherwise protect children when the
following elements are present:

1) foreseeability of trespass,
2) foreseeability of serious harm,
3) the child is unaware of the danger, and
4) the benefit to the owner of maintaining the condition in its dangerous form is
slight when weighed against the risk to children.

KEY WORDS AND PHRASES:
1. trespass by children is foreseeable
2. serious harm is foreseeable
3. child is unaware of the danger
4. the benefit to the owner of maintaining the condition in its dangerous form is
slight when weighed against the risk to children

56
Q

Duty Owed to a Person Off the Premises

A

The land occupier owes a duty to maintain
the premises in a reasonably safe condition for the protection of passersby and
occupiers of adjoining premises. This includes the duty of inspection to discover and
correct those defects which a reasonable inspection would reveal.

KEY WORDS AND PHRASES:

  1. land occupier owes duty to those outside his property:
    a. inspect for defects
    b. repair defects that should have been discovered by reasonable inspection
57
Q

Rowland v. Christian

A

Under Rowland v. Christian, the court eliminated the distinction between business invitee, licensee, and trespasser, and found that the land occupier
owes a duty to act as a “reasonable man” for the purposes of rendering the occupied
property safe for others.

KEY WORDS AND PHRASES:
1. land occupiers must act reasonably to keep their property in safe condition

58
Q

Natural Conditions

A

A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, the recent trend may be to
impose a duty of reasonable care as to natural conditions, at least in those situations
where the condition is known to the landowner.

KEY WORDS AND PHRASES:
1. traditional rule: land occupier owes no duty to care for, repair, or warn of
dangers related to natural conditions
2. recent trend: duty may be owed to give reasonable care for safety of others
related to natural conditions

59
Q

Substantial Factor Test

A

KEY WORDS AND PHRASES:

  1. used to establish actual cause
  2. more than one act is involved in producing single indivisible injury
  3. defendant’s act contributed to injury to more than a trivial degree

The Substantial Factor Test is used to establish actual cause where more than one act contributes to the plaintiff’s harm. The defendant is said to be
an actual cause of the plaintiff’s harm if the defendant’s act is a substantial factor in bringing the harm about. This means that the defendant’s act contributed in more than a trivial degree to the plaintiff’s injury.
The test applies where two or more acts combine to produce a single indivisible injury regardless of whether either or any of the acts by itself would have caused the injury.
Where more than one act could have caused the injury by itself, then each actor may be held jointly and severally liable. However, where an act would not have caused the injury without the other contributing acts, liability may be apportioned between the tortfeasors.

60
Q

Sine Qua Non

A

Sine qua non literally means “without which not.” The term relates to the “But For” Test in that if a defendant’s act is the sine qua non of a plaintiff’s harm, then the plaintiff’s harm would not have occurred in the absence of that act.

61
Q

Dependent Intervening Act

A

KEY WORDS AND PHRASES:

  1. intervening act
  2. would not have occurred without negligent act
  3. normal reaction or part of chain of events started by defendant
  4. breaks chain of causation only if highly unforeseeable

Dependent Intervening Act: A dependent intervening act is one which would not have occurred in the absence of the original negligence. It is nearly always considered to be part of the chain of events set in motion by the original negligent act. Therefore, a dependent intervening act breaks the chain of causation only if the act was highly unforeseeable.

62
Q

Independent Intervening Act

A

Independent Intervening Act: An independent intervening act is one which would have occurred even in the absence of the original negligence. It breaks the chain of causation unless the act or its result was foreseeable in light of the original negligent act.

KEY WORDS AND PHRASES:

  1. intervening act
  2. would have occurred even without defendant’s negligent act
  3. breaks chain of causation unless its occurrence or result was foreseeable
63
Q

Contributory Negligence

A

Under the minority doctrine of contributory negligence, if the plaintiff’s failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant’s negligent action.

KEY WORDS AND PHRASES:

  1. defendant’s negligence is proved
  2. plaintiff’s negligence also contributed to his own injury
  3. Complete bar to plaintiff’s recovery
64
Q

Comparative Negligence

A

Modernly, the doctrine of comparative negligence has replaced contributory negligence, so that liability is apportioned according to the relative degrees of fault of the plaintiff and defendant. In a pure comparative negligence jurisdiction like California, the plaintiff will recover some damages no matter how great his own negligence was. In partial comparative negligence jurisdictions, the plaintiff will not recover if his own negligence equals or exceeds the defendant’s.

KEY WORDS AND PHRASES:

  1. defendant’s negligence is proved
  2. plaintiff’s negligence also contributed to his own injury
  3. damages will be apportioned between plaintiff and defendant
65
Q

Last Clear Chance Doctrine

A

KEY WORDS AND PHRASES:
1. applies in contributory negligence jurisdictions(as an exception to the bar against the plaintiff’s recovery)
2. doctrine available for use only by plaintiff as a counter defense to the defendant’s defense of contributory negligence by plaintiff
3. defendant’s negligence causes injury to plaintiff
4. plaintiffs found to be contributorily negligent
5. defendant had a superior opportunity to avoid causing injury and failed to do
so

The last clear chance doctrine limits the contributory negligence defense so that even if the plaintiff was contributorily negligent, he will be permitted to recover if the defendant had a superior opportunity to avoid the accident and failed to do so. For example, if the plaintiff, through his own negligence, is in a position of helpless or inattentive peril and therefore unable to avoid an impending accident, and the defendant could have avoided the accident through the exercise of due care, but failed to do so, then the plaintiff’s contributory negligence will not bar his recovery from the defendant.

66
Q

Assumption of the Risk

A

KEY WORDS AND PHRASES:

  1. plaintiff voluntarily accepts risk of danger
  2. risk is known and appreciated by plaintiff
  3. acceptance of risk is express or implied

Under the defense of assumption of the risk, a plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk. Such consent may be expressly created by agreement between the parties, or it may be implied by the plaintiff’s conduct. At common law, assumption of the risk is a complete bar to recovery in a negligence action.

67
Q

Joint Tortfeasors

A

KEY WORDS AND PHRASES:

  1. two or more persons
  2. join together to commit tort
  3. vicarious liability is imposed

Joint tortfeasors consist of two or more persons who join together to commit a tortious act. Their status is similar to that of co-conspirators in criminal law, and each is vicariously liable for the acts done by the other in the furtherance of the common design.

68
Q

Concurrent Tortfeasors

A

KEY WORDS AND PHRASES:

  1. two or more persons
  2. act independently of each other,but produce a single injury
  3. joint and several liability is imposed

Concurrent Tortfeasors consist of two or more persons who are not acting in concert with each other but whose acts combine to produce a single indivisible injury to the plaintiff. In some jurisdictions, joint and several liability is applied in a pure form, holding each concurrent tortfeasor liable for the full amount of the harm. However, a majority of jurisdictions will apportion damages by using a comparative fault system. Vicarious liability does not apply.

69
Q

Successive Tortfeasors

A

Successive Tortfeasors: A successive tortfeasor is one whose negligence follows an initial injury and adds to, or aggravates, the existing injury. Under the rules of proximate causation, if the second tortfeasor’s negligent act did not break the chain of causation set in motion by the first tortfeasor, then the first tortfeasor can be held liable for both acts. However, if the second tortfeasor’s negligent act did break the chain of proximate causation, the first tortfeasor can only be held liable for his own negligence.
KEY WORDS AND PHRASES:
1. two or more negligent acts, one following the other
2.first tortfeasor may be held liable for the added or aggravated injury caused
by the second tortfeasor when the second negligence resulted from a dependent intervening act

70
Q

Joint and Several Liability

A

KEY WORDS AND PHRASES:

  1. imposed against joint and concurrent tortfeasors
  2. each tortfeasor is responsible for full amount of judgment awarded to plaintiff
  3. plaintiff can collect full amount of judgment from any or all tortfeasors
  4. plaintiff cannot collect more than full amount of judgment
  5. satisfaction of full amount discharges remaining liability to plaintiff

Joint and several liability is imposed upon joint and concurrent (but not successive) tortfeasors. This means that each is responsible for the full amount of the plaintiff’s injury and the full amount of a related court judgment. Judgments for the full amount may be obtained against any of the tortfeasors, but the plaintiff is not entitled to recover more than the total judgment. Thus, satisfaction from one tortfeasor will discharge the liability of the others to the plaintiff.

71
Q

Contribution

A

KEY WORDS AND PHRASES:

  1. claim brought by one concurrent tortfeasor against other concurrent tortfeasors
  2. seeks reimbursement for pro rata share of judgment

Contribution relates to a claim by one concurrent tortfeasor against another concurrent tortfeasor, requesting reimbursement of the other’s proportional share of a court judgment. It is typically used after joint and several liability has been found and one defendant has had to pay the plaintiff more than his pro rata share of the damages.

72
Q

Indemnity

A

KEY WORDS AND PHRASES:

  1. defendant paid a judgment to the plaintiff, and
    a. defendant was found secondarily liable and paid the judgment for which another is primarily liable, or
    b. defendant was held vicariously liable and paid the judgment for another’s tortious act
  2. defendant seeks reimbursement from the tortfeasor

Indemnity is a shifting of the liability from a defendant who is only secondarily or vicariously liable to the party who is primarily liable. Where it applies, indemnification allows the secondarily or vicariously liable defendant who has paid a court judgment to obtain full reimbursement from the party who is primarily liable. Some jurisdictions, including California, have adopted a rule of partial indemnity on the basis of relative fault of the parties.

73
Q

Vicarious Liability

A

Under the theory of vicarious liability, a defendant who is not charged with personal fault or wrongdoing may be held liable for the tortfeasor’s act because of the defendant’s relationship to the tortfeasor (e.g., the defendant is an employer, joint venturer, car owner, bailor, parent, etc.) A defendant who is held vicariously liable has the right to indemnification by the tortfeasor.

KEY WORDS AND PHRASES:

  1. defendant is not personally at fault
  2. defendant is held liable for another’s act because of a special relationship or circumstance
  3. defendant may seek indemnification from the actual tortfeasor
74
Q

Husband-Wife Immunity

A

Husband-Wife Immunity: At common law, husband-wife immunity prevented one spouse from maintaining an action against the other. It was argued that such suits between spouses would disrupt domestic tranquility. Modernly, husband-wife immunity does not exist in most jurisdictions.

KEY WORDS AND PHRASES:

  1. spouses cannot sue each other
  2. rationale: preserve domestic tranquility
75
Q

Parent-Child Immunity

A

Traditionally parent-child immunity has been applied so that a parent and minor child are immune from suits against each other in tort action. However, suits involving interference with property interests have been freely allowed. Many jurisdictions have abolished parent-child immunity.
KEY WORDS AND PHRASES:
1. parents and children cannot sue each other
2. exception: suits related to interference with property interests

76
Q

Charitable Immunity:

A

Charitable immunity traditionally prevented non-paying recipients from suing a charity. However, paying recipients could sue the charity because, as to them, it was not a charity; it was a business. Modernly, the trend is to abolish the immunity and to hold non-profit organizations liable to the same extent as any other wrongdoing defendant.

KEY WORDS AND PHRASES:

  1. recipients of a charity cannot sue the charity
  2. exception: paying recipients can sue
77
Q

Governmental Immunity:

A

Governmental immunity has been applied to prevent suits against a governmental entity unless that entity has consented to the suit. A substantial number of jurisdictions have totally abolished the immunity of municipal governments, and in several states, the immunity of the state government has also been terminated.

KEY WORDS AND PHRASES:
1. cannot sue a government entity without consent

78
Q

Wrongful Death Statute:

A

Under a wrongful death statute, when the defendant’s intentional or negligent act causes the death of a person, the surviving members of the decedent’s family can bring an action to recover for their loss. At common law, no such cause of action existed for the surviving members of the decedent’s family.
KEY WORDS AND PHRASES:
1. death caused by defendant’s intentional or negligent act
2. suit may be brought by decedent’s family members

79
Q

Survival statutes

A

: Survival statutes allow a decedent’s pre-existing cause of action against another to continue after the death of the parties originally involved. At common law, the death of either party to a lawsuit prior to judgment for whatever reason, terminated all tort causes of action, except in the case of torts involving personal property.

KEY WORDS AND PHRASES:

  1. decedent was involved in a lawsuit at time of death
  2. suit may continue despite the death of a party
80
Q

Wrongful Birth

A

Wrongful birth actions have been accepted in an increasing number of jurisdictions. They usually relate to a claim of negligence against a physician or laboratory related to the failure to supply information concerning potential birth defects or claimed negligence involved in the failure to prevent birth by contraception, abortion, vasectomy, etc.

KEY WORDS AND PHRASES:

  1. child is born and
  2. a. parents used preventative medical techniques, or
    b. child has a birth defect which could have been disclosed in time for termination of pregnancy
  3. lawsuit may be brought by parents against
81
Q

Pre-Natal Injuries:

A

At common law, pre-natal injuries could not be the basis of a suit by a child against a tortfeasor. It is now generally held that the child, if born alive, should not be denied a cause of action merely because the injury occurred prior to birth.

However, in some jurisdictions, the child must have been viable at the time of the injury, that is, capable of living independently of the mother.

KEY WORDS AND PHRASES:

  1. child is born with an injury caused while in utero
  2. child can bring suit after birth
82
Q

Strict Liability

A

Strict liability is liability without fault. It is imposed against a defendant even though the defendant has done nothing intentionally wrong and has not acted unreasonably under the circumstances. Such liability is imposed, traditionally, for the keeping of dangerous animals, and the carrying on of abnormally dangerous activities.

KEY WORDS AND PHRASES:

  1. liability without fault
  2. defendant has not done anything intentionally wrong nor unreasonable
  3. traditionally relates to:
    a. keeping dangerous animals or
    b. abnormally dangerous activities
83
Q

Rylands v. Fletcher

A

Under the landmark English case of Rylands v. Fletcher, one who brings something onto his land which is non-natural and likely to cause injury if it escapes, is strictly liable for all damages resulting from an escape.
KEY WORDS AND PHRASES:
1. land occupier brings something non-natural onto his land
2. likely to cause injury if it escapes
3. strict liability imposed

84
Q

Products Liability

A

Under tort law, a manufacturer or seller who releases an unreasonably dangerous product into the stream of commerce is liable for harm caused
by the product. In order to recover, it must be proved that the product was defective in design, manufacture, or warning, and one of four separate and distinct theories of liability must be asserted: intentional, negligence, breach of warranty, or strict liability.

KEY WORDS AND PHRASES:

  1. release of product into stream of commerce
  2. injury to property or person caused by defect in product
  3. defect must be shown in:
    a. design,
    b. manufacture, or
    c. warning
  4. must assert at least one of four theories:
    a. intentional,
    b. negligence,
    c. breach of warranty, or
    d. strict liability
85
Q

Products Liability (Negligence)

A

In order for a plaintiff to recover under a negligence theory of products liability, the plaintiff must prove duty, breach, causation, and damages.
A duty of care originally extended only to those in privity of contract, but under McPherson v. Buick, the duty was extended to all foreseeable users. To establish breach, the plaintiff must show that the product failed to meet ordinary commercial expectations. Damages are limited to personal and property.

KEY WORDS AND PHRASES:

  1. defendant is a manufacturer, distributor, supplier, or retailer of the product
  2. duty (must show that the plaintiff was a foreseeable user)
  3. breach (must show that the product failed to meet ordinary commercial expectations)
  4. causation (product’s defect caused harm to the plaintiff)
  5. damages limited to personal and property
86
Q

MacPherson v. Buick:

A

In the landmark case of MacPherson v. Buick, Justice Cardozo dispensed with the previously applied requirement of privity of contract in products liability cases and extended the manufacturer’s duty of care to include the ultimate consumer of the product, whether or not the consumer was the actual purchaser of the product. Later cases extended the duty to include not just the purchaser or the ultimate consumer, but to include all persons and property likely to be endangered by the product’s probable use, such as the consumer’s family or guests, or even near bystanders.

KEY WORDS AND PHRASES:

  1. privity of contract no longer required in products liability cases
  2. MacPherson case extended duty to ultimate consumer
  3. later cases extended duty to all who could be foreseeably harmed
87
Q

Products Liability (Breach of Warranty)

A

Liability can be imposed against the manufacturer or seller of a product based upon the buyer’s reliance upon an express or implied warranty that the goods are of merchantable quality or are fit for their intended purpose

KEY WORDS AND PHRASES:

  1. defendant is a manufacturer, distributor, supplier, or retailer of the product
  2. a. product is not of merchantable quality, or
    b. product is not fit for its intended purpose.
88
Q

Products Liability (Strict Liability)

A

Strict liability may be imposed against a manufacturer or seller of a product which is defective and thereby unsafe for its anticipated use, or for failure to warn the consumer of an inherent danger involved in the use of the product when put to an intended or foreseeable use. To prevail in a products strict liability action, the plaintiff must prove:
1) manufacture or sale of the product was by defendant,
2) the product was defective,
3) the product and its defective aspects were the actual and proximate cause of the plaintiff’s injuries, and
4) the defect existed at the time the product left the defendant’s hands.
KEY WORDS AND PHRASES:
3. defendant is a manufacturer, distributor, supplier, or retailer of the product
4. product was defective
5. product and its defective aspects were the actual and proximate cause of the plaintiff’s injuries
6. defect existed at the time the product left the defendant’s hands

89
Q

Intentional Misrepresentation:

A 
In order to recover for intentional misrepresentation, or deceit, the plaintiff must prove that the defendant made a false statement of material fact with scienter and with an intent to induce the plaintiff’s reliance, and that the plaintiff justifiably relied, causing the plaintiff damage.
KEY WORDS AND PHRASES:
1. false statement
2. material
3. scienter
4. intent to induce reliance
5. justifiable reliance
6. damages
90
Q

Negligent Misrepresentation

A 
In order to recover for negligent misrepresentation, the plaintiff must prove that the defendant breached his duty to exercise due care in acquiring and transmitting information, and made a false statement of material fact, with an intent to induce the plaintiff’s reliance, and that the plaintiff justifiably relied, causing the plaintiff damage.
KEY WORDS AND PHRASES:
1. false statement
2. material
3. negligence in acquisition and communication
4. intent to induce reliance
5. justifiable reliance
6. damages
91
Q

Defamation:

A 
Under tort law, defamation is a false and defamatory statement, published intentionally or negligently to a third person, that the third person understood applied to the plaintiff, and which caused damage to the plaintiff. In order to recover damages, in addition to proving each element of defamation, the plaintiff is required to show that he or she has made a demand for a retraction from the defendant that would be given equal publicity, and the plaintiff must show that the defendant has refused to give the retraction.
KEY WORDS AND PHRASES:
1. false statement
2. defamatory
3. published to third person
4. understood by third person in defamatory sense
5. damages
6. retraction demand made and refused
92
Q

Slander

A

Slander, which is defamation that is published through the spoken word, requires proof of special pecuniary damages that flow directly from the defamation. Once these are proved, general damages are recoverable.
KEY WORDS AND PHRASES:
1. defamation published through the spoken word
2. must prove special damages in order to recover general damages

93
Q

Slander Per Se:

A

Slander per se results from a slanderous statement that is sufficiently serious to allow the plaintiff to recover without proof of special damages. The slanderous statement must allege criminal behavior, loathsome disease, unchastity, or improper business practices. For slander per se, the plaintiff is not required to prove special damages in order to recover general damages.

KEY WORDS AND PHRASES:

  1. defamation published through the spoken word
  2. alleges:
    a. criminal behavior
    b. loathsome disease
    c. unchastity
    d. improper business practices
  3. no need to prove special damages in order to recover general damages
94
Q

Libel

A

Libel is written defamation.

KEY WORDS AND PHRASES:
1. defamation published in written form

95
Q

Libel Per Se

A

Libel Per Se is a statement which is clearly defamatory on its face, meaning that inducement and innuendo are not needed to establish the fact that the statement is defamatory. For libel per se, proof of special damages is not required, and general damages are presumed.

KEY WORDS AND PHRASES:

  1. defamation published in written form
  2. defamatory on its face
  3. no need to prove special damages in order to recover general damages
96
Q

Libel Per Quod

A

Libel per quod is not defamatory on its face but is defamatory only when viewed in light of outside circumstances, meaning that the inducement and innuendo are needed to establish the defamation. Libel per quod requires proof of special damages in some jurisdictions.

KEY WORDS AND PHRASES:

  1. defamation published in written form
  2. not defamatory on its face
  3. statement understood in defamatory sense only through use of inducement and innuendo
  4. must prove special damages in order to recover general damages in some jurisdictions
97
Q

Inducement:

A

Inducement: Inducement is the extrinsic facts necessary to understand the defamation.

98
Q

Innuendo

A

Innuendo is the connection between the inducement and the defamation which explains why the statement is defamatory.

99
Q

Colloquium:

A

Colloquium is the offer of extrinsic evidence to explain the defamatory sense of the defendant’s statement, and is included in a complaint when a statement is not defamatory on its face

100
Q

Special Damages for Defamation:

A

As the term is used in the law of defamation, special damages are those of a pecuniary nature, such as loss of a job or loss of customers or business.

KEY WORDS AND PHRASES:
1. pecuniary damages, such as loss of a job, customers, or business

101
Q

Absolute Privilege

A

Under an absolute privilege the defendant has complete immunity from liability for defamation, even if he defames maliciously, knowing the statements to be untrue. Absolute privileges exist for statements

1) during judicial proceedings,
2) during legislative proceedings,
3) during executive government functions which are official statements of government officials, or
4) between husband and wife.

KEY WORDS AND PHRASES:

  1. complete immunity
  2. immune even if defamation was malicious and with scienter
  3. statement must fit within these categories:
    a. judicial proceedings
    b. legislative proceedings
    c. executive government functions
    d. husband and wife
102
Q

Qualified Privilege:

A

Under a qualified privilege, the defendant has immunity from liability for defamation if he is acting for the following socially desirable purposes:
1) to protect the defendant’s own interests
2) to protect the interest of others
3) to protect a common interest
4) to protect a public interest
5) to offer an opinion within the Fair Comment Privilege
A qualified immunity can be lost if the statement was irrelevant, made with malice, with a bad faith belief, or if it was excessively publicized.

KEY WORDS AND PHRASES:

  1. complete immunity
  2. good faith
  3. socially desirable purpose
  4. protect interest of self, others, public
103
Q

Fair Comment Privilege:

A

The Fair Comment Privilege is a common law rule derived from the First Amendment rights of free speech and free press. The privilege applies to statements of opinion which have been made in good faith on matters of public interest. Covered by this privilege are opinions about newsworthy persons, events, products, art, works, etc.

KEY WORDS AND PHRASES:

  1. good faith opinion
  2. on matters of public opinion
104
Q

New York Times v. Sullivan

A

Under New York Times v. Sullivan, the U.S. Supreme Court held that a public official cannot recover damages for defamation bearing upon his or her qualifications for a position unless he or she can prove by clear and convincing evidence that the statement was made with actual malice. Later cases extended the rule to public figures.

KEY WORDS AND PHRASES:

  1. applies to statements about public officials (and also public figures)
  2. actual malice must be proved
105
Q

Malicious Prosecution

A

Malicious Prosecution is a cause of action against a defendant who previously filed criminal or civil proceedings against the plaintiff without probable cause and with malice. The original proceeding must have ended in favor of the party who is now suing for malicious prosecution.

KEY WORDS AND PHRASES:

  1. plaintiff in a prior suit sued with malice and without probable cause
  2. defendant in that prior suit won the case
  3. defendant from prior suit now becomes plaintiff in a new action
106
Q

Abuse of Process

A

Under tort law, a person is liable for abuse of process if he previously initiated a legal proceeding against the plaintiff, with an ulterior motive, and for an improper purpose.
KEY WORDS AND PHRASES:
1. defendant previously initiated a legal proceeding against plaintiff
2. defendant had an ulterior motive
3. defendant initiated the previous proceeding for an improper purpose

107
Q

Disparagement

A 
Disparagement, or trade libel, is the publication of an untrue or misleading statement about another’s business or product in an attempt to influence a person not to deal with the business.
KEY WORDS AND PHRASES:
1. untrue or misleading statement
2. publication
3. intent to harm reputation or business
108
Q

Interference With an Economic Relationship

A

Interference with Economic Relationship is a broad cause of action alleging an intentional interference with one’s business relationships. Included are interferences with contractual relationships, expected commercial relationships, and intimidation of employees, clients, etc. To prevail, the plaintiff must prove that the defendant intentionally and unlawfully interfered with the plaintiff’s business or enterprise, and that the defendant’s act resulted in commercial or economic harm to the plaintiff.
KEY WORDS AND PHRASES:
1. plaintiff had a business or economic interest with a third party
2. defendant knew of that interest
3. defendant acted intentionally to disrupt the relationship
4. plaintiff proves economic harm

109
Q

Special Damages:

A

Special Damages: Special damages are pecuniary in nature and related to specific costs incurred due to the particular circumstances involved in the tort. Special damages must be specifically claimed and proved. Examples are lost wages, medical expenses and other “out of pocket” losses.
KEY WORDS AND PHRASES:
1. pecuniary
2. related to particular circumstances
3. must be specifically claimed by plaintiff
4. amounts must be proved

110
Q

General Damages

A

General damages are non-pecuniary in nature and are presumed by the law to be incurred based upon the commission of the tort. General damages need not be specifically claimed and proved. Examples are pain, suffering and inconvenience.

KEY WORDS AND PHRASES:

  1. non-pecuniary
  2. presumed to flow from the tort
  3. amount not required to be proved
111
Q

Punitive or Exemplary Damages:

A

Punitive damages, also called exemplary damages, are awarded to the plaintiff for the purpose of punishing the defendant for malicious or reckless conduct. The intent is to make an “example” of the defendant’s conduct so that such conduct will not be repeated.

KEY WORDS AND PHRASES:

  1. granted as punishment
  2. malicious or reckless conduct
112
Q

Out of Pocket Damages (Misrepresentation)

A

Out of Pocket damages are usually considered to be the same thing as special damages since they are pecuniary in nature. However, in an action for misrepresentation, out-of-pocket damages are calculated by comparing the difference between what the plaintiff paid, to the value of what the plaintiff received.
KEY WORDS AND PHRASES:
1. special damages
2. difference between amount paid and value received

113
Q

Loss of the Benefit of the Bargain Theory (Misrepresentation):

A

Under the Loss of the Benefit of the Bargain Theory, special damages for misrepresentation are calculated by considering the value received by the plaintiff as compared to the value that the defendant stated the plaintiff would receive.

KEY WORDS AND PHRASES:

  1. special damages
  2. difference between value promised and value received
114
Q

Doctrine of Avoidable Consequences:

A

Under the Doctrine of Avoidable Consequences, a plaintiff must act reasonably to mitigate his or her damages. If the plaintiff fails to act reasonably to minimize his loss or injury, the amount of damages he or she recovers may be reduced.

KEY WORDS AND PHRASES:

  1. plaintiff has duty to mitigate damages
  2. recovery reduced when the plaintiff fails to mitigate
115
Q

Products Liability

A
  1. A Manufacturer or re-seller who releases an unreasonably dangerous product into the stream of commerce for personal injury or property damaged caused.
  2. In orer to recover, it must be proved that the product is defective in design, manufacture or warning
  3. The Plaintiff may assert 1 or 4 theories,
    battery, negligence, breach of warranty , strict liability

Torts (1 decks)

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