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Flashcards in Torts Deck (180):
1

What is a tort?

A tort is a civil wrong that is the basis for a legal course of action.

2

When does a tort occur.

1. A tort occurs when a person violates a duty to others.
2. A tort occurs when someone deliberately, or through carelessness, causes harm or loss to another person, or to that person's property.

3

A __________is a civil wrong that is the basis for legal cause of action.

tort

4

A tort is a civil wrong that is the basis for a _________________.

legal cause of action

5

A _________ occurs when a person violates a duty to others.

tort

6

A tort occurs when a person violates a ____________to others.

duty

7

A _______________ occurs when someone deliberately, or through carelessness, causes harm or loss to another person, or to that person's property.

tort

8

Define Intentional Tort

A tort committed by someone acting with general or specific intent.

9

A tort committed by someone acting with general or specific intent is called a _________________.

intentional tort

10

Name 7 Intentional Torts Against Persons

1. Assault
2. Battery
3. False Imprisonment
4. Defamation of Character
5. Misappropriation of the Right to Publicity
6. Invasion of the Right to Privacy
7. Intentional Infliction of Emotional Distress (IIED)

11

Does the law protect a person from unauthorized touching, restraint, or other contact?

Yes

12

Does the law protect a person's reputation and privacy?

Yes

13

The law protects a person from _______________ touching, ____________, or other contact.

1. Unauthorized
2. Restraint

14

The law protects a person's _____________ and privacy.

reputation

15

The law protects a person's reputation and ____________.

privacy

16

What is Assault as a tort?

It is a civil wrong - not a criminal wrong. It is the threat of immediate harm or offensive contact, or any action that causes reasonable apprehension of imminent harm.

17

Threat of immediate harm or offensive contact, or any action that arouses reasonable apprehension of imminent harm is what kind of tort?

assault

18

If someone makes you think s/he is about to hurt you it is an assault tort. What is the term used for the action?

reasonable apprehension of imminent harm

19

An assault tort is a threat of immediate harm or offensive contact, or any action that causes _______________________________.

reasonable apprehension of imminent harm.

20

Spell imenent. ⬅Not the correct spelling

im-mi-nent

21

What is Battery as a tort?

The unauthorized and harmful or offensive physical contact with another person.

22

The unauthorized and harmful or offensive physical contact with another person is ____________.

battery

23

In a battery tort, the __________ ______________ is the person's reasonable sense of dignity and safety.

interest protected

24

In a battery tort, the interest protected is the person's _____________________________________.

reasonable sense of dignity and safety

25

In a battery tort, does there have to be direct contact?

No.

26

True or False: There does not have to be direct contact in a battery tort.

True

27

Examples of indirect contact in battery tort:

Rock thrown, bullet, pulling chair, poison

28

What is the Doctrine of Transferred Intent?

Intent that the law may shift from an originally intended wrongful act to a wrongful act actually committed. For example, if you throw a rock at me, but hit the guy behind me instead, the intent may be transferred to the actual act: you hit the guy behind me with a rock=battery=it does not release you from liability just because your original intention was to harm me. The intent transfers to the guy behind me.

29

Doctrine of transferred intent

From target to actual victim

30

What is False Imprisonment?

The intentional confinement or restraint of another person without authority or justification and without that Preston's consent constitutes false imprisonment.

Victim may be restrained by physical force, barriers, threats of physical harm or false assertion of legal authority.

31

If Jac locked the paralegal class in the room while we were taking an exam and came back before anyone had finished or tried to leave is that false imprisonment?

No. One must know s/he is imprisoned.

32

Intentional confinement or restraint of another person without authority or justification and without that person's consent constitutes ___________________.

false imprisonment

33

What methods can be used to constitute false imprisonment?

physical force, barriers, threats of physical harm, or false assertion of legal authority.

34

True or False? You can't be falsely imprisoned if you don't know.

True

35

Merchant Protection Statutes

laws that allow shopkeepers to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment.

36

____________________ allows shopkeepers to stop, detain, and investigate suspected shoplifters without being held liable for false imprisonment.

Merchant Protection Statutes

37

What conditions must a shopkeeper follow to be within the guidelines for Merchant Protection Statutes?

1. There are reasonable for suspicion.
2. Suspects are detained for only a reasonable time; and
3. Investigations are conducted in a reasonable manner.

38

What is the key word for the 3 conditions of the Merchant Protection Statutes?

REASONABLE (reasonable suspicion, reasonable time, reasonable manner)

39

Defamation of Character

The act of harming the reputation of another by making a false statement to a third person.

40

Who is protected during his or her lifetime from false statements by others?

Everyone

41

For Defamation of Character to be a tort what conditions must be met?

1. The defendant made an untrue statement of fact about the plaintiff; and
2. The statement was intentionally or accidentally published to a third party.

42

When an untrue statement of fact is made about me by my neighbor to my parents, is that defamation of character? Why or why not?

Yes. It is an untrue statement of fact about me, and it was published to a third party.

43

What is "published" when talking about Defamation of Character?

simply means that a third person heard or saw the untrue statement. It does not mean to appear newspapers, magazines, or books.

44

My neighbor told me to my face, when the two of us were having coffee at her house, that I am a actually a man, which is not true. Is that Defamation of Character? Why or why not?

No. It was an untrue statement of fact (first condition), but it was not published to a third party (no third person heard or saw my neighbor say that)

45

What is the difference between slander and libel?

Slander is an oral defamatory statement and libel is a defamatory statement that appears in a letter, newspaper magazine book, photograph, movie, radio, television, or video.

46

What is Libel?

A defamatory statement that appears in a letter, newspaper, magazine, book, photography, movie, radio, television, or video.

47

What is Slander

An oral defamatory statement

48

My neighbor told my other neighbor that it her strongest opinion that I am actually a dude. Can I sue for defamation of character? why or why not?

No. It's not defamation of character because opinion is protected.

49

Is Opinion protected in defamation of character?

Yes. Opinion is not the same as statement of fact.

50

Opinion is protected.

Opinion is not the same as statement of fact.

51

What is a complete defense to defamation?

Truth

52

If the statement made about me by my neighbor to my parents, turned out to be true, is that defamation? why or why not?

No. If the statement is true, it is not defamation.

53

Truth in defamatory tort is a ________________________.

complete defense

54

What about famous people? What's different?

The plaintiff must be able to prove the defendant acted with "actual malice"

55

What Supreme Court case made a ruling on Defamation of Character in regards to famous people?

New York Times v. Sullivan

56

What does "actual malice" mean?

the defendant made the false statement knowingly or with reckless disregard of its falsity.

57

Fame has grown to include public officials like movie stars, sports personalities, or other celebs.

like Kim Kardashian. :/

58

What is Misappropriation of the Right to Publicity?

Each person has the exclusive legal right to control profit from the commercial use of his or her name and personality.

59

_____________________________says that each person has the exclusive legal right to control and profit from the commercial use of his or her name and personality.

Misappropriation of the Right to Publicity

60

Spell ms.apropri-a-shun.

M-I-S-A-P-P-R-O-P-R-I-A-T-I-O-N

61

Any attempt by another person to profit off of someone else's name or personality is ______________________.

actionable

62

What can a plaintiff in a misappropriation of the right to publicity tort?

1. Recover unauthorized profits, and
2. Obtain and injuction.

63

What is Invasion of the Right to Privacy?

The violation of a person's right to live without being unwarranted and undesired publicity.

64

The violation of a person's right to live without being subjected to unwarranted and undesired publicity is ____________________________.

invasion of the right to privacy.

65

Invasion of the Right to Privacy is the violation of a person's right to live without being subject to ____________________________________.

unwarranted and undesired publicity

66

What are some examples of Invasion of the Right to Privacy?

reading someone else's mail, email, and wiretapping

67

What's the acronym for Intentional Infliction of Emotional Distress?

IIED

68

What does IIED stand for?

Intentional Infliction of Emotional Distress

69

To prove IIED a plaintiff must prove that a defendant's conduct was _____________________________
______________________________.

"so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society."

70

What is IIED?

When a person's extreme and outrageous conduct intentionally causes severe emotional distress to another.

71

If a person's ___________________
_______________________ intentionally causes severe emotional distress to another, that's IIED.

extreme and outrageous conduct

72

Spell OutRageUs

O-U-T-R-A-G-E-O-U-S

73

For an IIED most states require that the mental distress _____________
_______________________________
______________________________.

be manifested by some form of physical injury, discomfort, or illness, such as insomnia, nausea, ulcers, or headaches.

74

Intentional Torts Against Property

an intentional tort involving damage to property

75

What are the two broad categories of property?

1. Real property
2. Personal Property

76

What is Real Property?

land and anything attached to it

77

What is Personal Property?

Things that are movable like cars, books, clothes, pets.

78

What is Tresspass to Land?

Trespass to land is interference with an owner's right to exclusive possession of land.

79

Is actual harm to the property necessary in a trespass to land tort?

No

80

_____________________ is interference with an owners right to exclusive possession of land.

Trespass to land

81

Trespass to personal property is ____________________
______________________________________________.

when one person injures another's personal property or interferes with the enjoyment of the property.

82

__________________________ is when one person injures another's property or interferes with the enjoyment of the property.

Trespass to personal property

83

Is negligence intentional?

No

84

Negligence Tort is when an _____________ tort.

unintentional

85

Define Negligence

"the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do"

86

A person is liable for harm that is the __________________
_________________ of his or her actions.

foreseeable consequence

87

The "omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do" is ______________________.

negligence

88

What is a Tortfeasor?

Someone who commits a tort.

89

What are the elements of negligence?

Plaintiff must prove that:
1. Tortfeasor owed a duty of care to plaintiff;
2. Defendant breached that duty;
3. Plaintiff suffered injury; and
4. The breach caused the injury.

90

Is actual harm to the property necessary in a trespass to land tort?

No

91

_____________________ is interference with an owners right to exclusive possession of land.

Trespass to land

92

Trespass to personal property is ____________________
______________________________________________.

when one person injures another's personal property or interferes with the enjoyment of the property.

93

__________________________ is when one person injures another's property or interferes with the enjoyment of the property.

Trespass to personal property

94

Is negligence intentional?

No

95

Negligence Tort is when an _____________ tort.

unintentional

96

Define Negligence

"the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do"

97

A person is liable for harm that is the __________________
_________________ of his or her actions.

foreseeable consequence

98

The "omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do" is ______________________.

negligence

99

What is a Tortfeasor?

Someone who commits a tort.

100

What are the elements of negligence?

Plaintiff must prove that:
1. Tortfeasor owed a duty of care to plaintiff;
2. Defendant breached that duty;
3. Plaintiff suffered injury; and
4. The breach caused the injury.

101

What is Duty of Reasonable Care?

the obligation we all owe each other - the duty NOT to cause any unreasonable harm or risk of harm.

102

What duty of reasonable care do businesses owe?

the duty to make safe products, and not to cause accidents

103

What is the Reasonable Person standard?

how an objective, careful, and conscientious person would have acted in the same circumstances

104

Subjective intent

"I did not mean to do it"

105

Subjective intent is ______________ in asserting liability.

immaterial

106

duty to ____ cause harm

NOT

107

Breach of Duty

A duty was owed, and the breach is the failure to exercise care. The failure to act as a reasonable person would act. May be an action, or a failure to act when there is a duty.

108

If there is a breach and no injury is the breach actionable?

No.

109

Injury to Plaintiff

In negligence, something must actually be damaged

110

Even if there is a breach, it is not ____________ unless the plaintiff suffers an ________________.

1. actionable 2. injury

111

Negligence-no injury =

no tort

112

Can you have the same injury as someone else in a negligence tort and receive different damages?

yes. same injury, different damages. ex. hand damage to Metta World Peace or me

113

Cause-in-Fact

But for test; Substantial factor test

114

But for test; Substantial factor test

Cause-in Fact

115

Proximate Cause

Forseeability; intervening cause

116

Forseeability; Intervening cause

Proximate Cause

117

What is the "but for" (Cause-in-Fact)

Requires that plaintiff prove by a preponderance of the evidence tht, but for the defendant's negligent act, plaintiff would not have been injured

118

define preponderance

more likely than not

119

The ___________________ requires that a plaintiff prove by a _________________ of the evidence, that, ____________ the defendant's negligent act, plaintiff would not have been injured.

1. "but for" test
2. preponderance
3. but for

120

In cause-in-fact, for the "but for" test, the plaintiff must__________________________
_____________________________
____________________________.

produce sufficient evidence of cause-in-fact; jury may not speculate.

121

What is the difference between "prove by a preponderance of the evidence" and "prove beyond a reasonable doubt"

Prove beyond a preponderance is used in civil negligence torts and is "more likely than not" and in a criminal case you must prove "beyond a reasonable doubt"

122

If "but for" fails what test do the courts apply?

the "substantial factor" test

123

What is concurrent causes: cause-in-fact

the substantial factor analysis where two or more events of negligence result in an injury (concurrent cause cases), courts will find a defendant's conduct to be a cause-in fact of plaintiff's injury if it was "a material and substantial factor" in causing plaintiff's injury.

124

What are concurrent cause cases?

Where two or more events of negligence result in an injury

125

In a concurrent cause case, courts will find a defendant's conduct to be __________________ of a plaintiff's injury if it was a _______________________________
in causing plaintiff's injury.

1. cause-in-fact
2. material and substantial factor

126

In ________________________________ cases, the _____________________________ rule prevents defendant from avoiding liability (under a "but for" test) merely because another event also contributed to plaintiff's injury.

1. concurrent cause
2. concurrent cause liability

127

The ___________________________ applies where two or more events contribute to an indivisible injury.

substantial factor test

128

What test applies where two or more events contribute to an indivisible injury?

substantial factor test

129

Substantial Factor Test

the test that applies where two or more events contribute to an indivisible injury..

130

The element of ________________________determines the scope of defendant's liability.

proximate cause

131

Proximate cause again introduces the concept of ___________________ into the analysis.

forseeability

132

What is the difference between the concern of "legal duty" with foreseeable risk and the "proximate cause" concern of foreseeable risk?

"legal duty" is concerned with foreseeable risk to others in the general sense and proximate cause is concerned whether the defendant could foresee the risk which caused the accident that injured plaintiff

133

Foreseeability as Determining Liability was first introduced in what case?

Palsgraf v. Long Island RR

134

Foreseeability as Determining Liability is applied by courts to ____________________
___________________________________.

limit the defendant's liability on the basis of fairness and policy considerations. The concept is also applied to an alleged intervening cause, and liability may be imposed where the ultimate injury is foreseeable, even if the so-called intervening cause was not, or where the intervening cause was itself foreseeable.

135

Translation of Res Ipsa Loquitur

Latin for "the thing speaks for itself"

136

What is the Latin term for "the thing speaks for itself"

Res Ipsa Loquitur

137

What does the doctrine of Res Ipsa Loquitur (the thing speaks for itself) do?

It switches the burden to the defendant to prove s/he was NOT negligent.

138

If a defendant is in control of a situation in which plaintiff was injured, and has superior knowledge of the circumstances surrounding the injury, the plaintiff might have proving negligence. What doctrine applies? and what does that mean?

Doctrine - Res Ipsa Loquitur
Meaning - the doctrine raises a presumption of negligence and switches the burden to the defendant to prove s/he was NOT negligent.

139

Res Ipsa Loquitur applies when
1_____________________
2_____________________.

1. The defendant had exclusive control over the instrumentality or situation that caused injury;
2. The injury ordinarily would not have occurred "but for" someone's negligence.

140

Liability of Landowners

Owners and renters of real property owe certain duties to protect visitors from injury.
The liability depends on the visitors status.
Invitees and licensees are owed a duty of ordinary care.
Trespassers are owed a duty not to willfully injure a trespasser.

141

What is the liability of landowner to a trespasser?

To not willfully injure a trespasser.

142

What is the liability of landowner to an invitee or licensee?

A duty of ordinary care.

143

Do owners and renters of real property owe certian duties to protect visitors from injury?

Yes.

144

__________________________ concerns the certain duties that owners and renters of real property have to protect visitors from injury.

Liability of landowners

145

Name the 5 defenses against negligence.

1. Superseding or Intervening Event
2. Assumption of the Risk
3. Contributory Negligence
4. Comparative Negligence
5. Doctrine of Strict Liability

146

What is a superseding or intervening event as a defense to negligence?

A person is liable only for foreseeable events, so a defendant can raise a superseding as a defense to liability. (ex. golfer negligently hits Jill, a spectator, with a golf ball. while waiting for the ambulance, Jill is hit by lighting and dies. Golfer not liable for Jill's death by lightning)

147

What is Assumption of the Risk as defense to Negligence?

If a plaintiff knows of, and voluntarily enters into or participates in, a risky activity that results in injury, the law recognizes that the plaintiff assumed the risk involved.

148

When a plaintiff knows and voluntarily enters into a risky activity that results in injury the defense for negligence is ________________________________.

Assumption of the Risk

149

Does Texas use Contributory Negligence?

No.

150

What is Contributory Negligence?

A plaintiff who is partially at fault for the injury cannot recover against the negligent defendant. (If a driver hits a jaywalker, and the court decides the jaywalker is 20% at fault, then the jaywalker cannot recover anything)

151

What is Comparative Negligence?

Damages are apportioned according to fault.

152

Several states, including Texas, have adopted ____________________________________, which it calls proportionate responsibility, under which the plaintiff takes nothing if his/her share is 50% or more.

partial comparative negligence

153

Partial Comparative Negligence is___________
_________________________________
_________________________________.

called proportionate responsibility, under which the plaintiff takes nothing if his/her share is 50% or more. (Texas uses this)

154

Several states, including Texas, have adopted partial comparative negligence, which it calls _______________________________, under which the plaintiff takes nothing if his/her share is 50% or more.

partial comparative negligence

155

Doctrine of Strict Liability

If an entity sells a defective product that is unreasonably dangerous, it will be liable for harm caused to the user or property. It applies only to sellers who are in the business of selling, not casual sellers, applies only to products, not services, and all parties in the chain of distribution are strictly liable. (babies-r-us responsible for crib that kills babies, as well as maker of crib)

156

Does the Doctrine of Strict Liability sell to casual sellers, if you buy something from your neighbors garage sale?

No.

157

Who is liable under the doctrine of strict liability in the following:
A subcomponent manufacturer produces a defective tire and sells it to a truck manufacturer. The truck manufacturer puts the tire on one of it's new trucks. The truck is distributed by a distributor to the dealer, who sells it to a buyer, who has an accident caused by the defective tire.

All those parties are strictly liable.

158

What is the statute of limitations for Medical Malpractice in Texas?

2 years from time of tort.

159

What was the discovery rule in Texas for medical malpractice?

The discovery rule used to determine when you start the 2 year statute of limitations. When you discovered the tort, the statute of limitations started, but George W. Bush got rid of the Discovery Rule as part of "Tort Reform"

160

What is the statute of limitations for Legal Malpractice?

4 years

161

What must you prove in Legal Malpractice?

must prove that you would have won

162

How did the medical malpractice cap of $250,000 become law?

We voted on it.

163

What are damages in a civil action?

The money, monetary compensation awarded by a court in a civil action to a plaintiff who has been injured through the wrongful conduct of the defendant.

164

Damage is_________________________.

physical harm caused to something in such a way as to impair its value, usefulness, or normal function.

165

What is the difference between damage and damages?

Damage is physical harm caused to something in such a way as to impair its value, usefulness, or normal function and Damages is money, monetary compensation awarded by a court in a civil action to a plaintiff who has been injured through the wrongful conduct of the defendant.

166

What are the kinds of damages that can be awarded?

1. Compensatory Damages
2. Punitive Damages
3. Speculative Damages
4. Statutory Damages

167

What are Compensatory Damages

Sometimes called "actual damages" include things like medical costs, repair or replacement costs, lost wages, pain and suffering, loss of enjoyment, loss of consortium, Compensatory Damages are usually divided into economic and noneconomic damages.

168

Things like medical costs, repair or replacement costs, lost wages, pain and suffering, loss of enjoyment, and loss of consortium are awarded with _____________________________________.

Compensatory Damages

169

Compensatory Damages are usually divided into ______________________________.

economic and non-economic damages

170

What is the term for "actual damages"

Compensatory Damages

171

What are Punitive Damages

sometimes called "exemplary damages" Damages awarded as apenalty or to punish the defendant. They are not awarded for compensatory purposes and they are not economic or non-economic.

172

What is the term for "exemplary damages"

Punitive Damages

173

What purpose do punitive damages serve?

awarded as a penalty or to punish the defendant

174

What are Speculative Damages

Sometimes called "future damages" they are damages that are not yet incurred, but are reasonable expected to be incurred as a result of the injury

175

What is the term for "future damages"

Speculative Damages

176

What are Statutory Damages

Damages that are set by statue.. "if X happens it's worth Z"

177

Can attorney fees be damages?

Yes, attorney fees are also damages and may be set by statute or contract.

178

What is IOLTA?

Interest on Lawyers Trust Account

179

What goes into IOLTA?

Retainer (unearned fee), settlement money before distribution

180

Who gets the interest on IOLTA?

The State Board and it is used for legal services for indigenous Texans