Torts Flashcards
(112 cards)
1
Q
Voluntary Act
A
D must act on their own free will. Can not be a reflex action
2
Q
Causation
A
D’s act must be a substantial factor in bringing about the harm or injury.
3
Q
Actual Intent
A
Did D have the purpose, desire, or goal to bring about the consequences that form the basis of the tort?
4
Q
Substantial Certainty Intent
A
D is substantially certain that the consequence will result
5
Q
Transfered Intent (Intentional Tort)
A
If D intends to commit a tort, that intent and intentional tort will transfer to a different party. Does not transfer to IIED.
6
Q
Intentional Tort - Actual Harm Requirement
A
No need proof of actual damage, and do not have to foresee the tend of the injury
7
Q
Assault
A
Intentional voluntary act causing reasonable apprehension of immediate harmful or offensive contact
8
Q
Battery
A
Intentional voluntary act causing harmful or offensive contact with V’s person
9
Q
False Imprisonment
A
Intentionally confining or restraint of V within a bounded area
10
Q
Intentional Infliction of Emotional Distress
A
By extreme or outrageous conduct, intentionally or recklessly causes V severe mental distress
11
Q
Trespass to Land
A
A voluntary entry onto the plaintiffs land committed with the intent to enter the land of another
12
Q
Trespass to Chattel
A
Voluntary act intentionally causing interference with another’s possessory interest in their chattel in a minor way
13
Q
Conversion
A
Voluntary act intentionally causing interference with another’s possessory interest in their chattel, causing dispossession, damage, or deprival of use for a significant period
14
Q
Consent Defense
A
If the asserted victim gives permission, what would otherwise be tortious is instead privileged
15
Q
Self Defense
A
A party may use reasonable force if the party reasonably believes such force is necessary to protect against immediate harm.
16
Q
Defense of Others
A
Can use reasonable force to protect a third person from immediate unlawful physical harm
17
Q
Recovery of Property
A
Can use reasonable force to protect a tort against her real or personal property
18
Q
Private Necessity
A
Where the threatened harm is not one of substantial public harm but some lesser harm, the defense of private necessity applies. Under this defense, the defendant will be liable for any damage caused by the trespass
19
Q
Public Necessity
A
When the defendant acts to prevent substantial public harm, the defense of public necessity exists and excuses the defendant from both the trespass to land tort and for any liability for damage caused to the plaintiffs land
20
Q
Negligence
A
An individual is liable for the foreseeable results of her negligent conduct when she has (1) a duty (2) that duty is breached, (3) the breach of duty was the actual and proximate cause of the plaintiffs injury and (5) the plaintiff suffers damages
21
Q
General Duty
A
One acting affirmatively owes a duty of reasonable care to all foreseeable plaintiffs, persons within the zone of foreseeable danger created by D’s negligence
22
Q
Nonfeasance
A
No duty to act unless a special relationship, an undertaking of an act, or causing D to rely on a gratuitous promise
23
Q
Duty to Rescue
A
Generally no duty to rescue, unless D created the pearl, had a special relationship with D, had a contractual obligation to act, or had started to rescue
24
Q
Duty to Control
A
Generally no obligation to control another person’s conduct to prevent harm, unless have a special relationship with the other person and know that person has a tendency to act in that manner
25
Duty to Warn
Only if there is a special relationship and it's fairly certain that the harm will happen
26
Trespasser Duty
Generally no duty to discover, remedy or warn of dangers, but only must refrain from willfully harming the trespasser
27
Frequent or Known Trespasser Duty
Obligated to work the trespasser if there is a danger of serious bodily harm or death
28
Attractive Nuisance
1. Possessor knows or should know children are likely to trespass
2. The possessor should realize will involve an unreasonable risk of death or serious bodily harm
3. The children because of their youth do not discover the condition or realize the risk
4. The burden of eliminating the danger are slight as compared with the risk to the children
5. The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the children
29
Licensees Duty
Obligated to warn of concealed artificial or natural dangers
30
Invitees Duty
land owner must use reasonable care in maintaining and premises and in their activities
31
General Standard of Care
Absent any facts to establish a higher duty, a defendant will owe a duty to a foreseeable plaintiff to act with reasonable care
32
Adult Standard of Care
Reasonable/prudent person under the circumstances (objective standard) or a statutory standard of care
33
Child Standard of Care
Child of the same age, experience, and intelligence, unless they are engaged in an adult activity
34
Common Carries Standard of Care
Held to the highest degree of care to avoid any harm to passengers
35
Emergency Standard of Care
D is held to a reasonable person under those emergency circumstances
36
Professional Standard of Care
Will be held to the same standard as an ordinary member of that profession
37
Physical Defect Standard of Care
held to the standard of a reasonable person with that defect
38
Breach of Duty
As a general rule, a breach of the duty of reasonable care can be established if the gravity and likelihood of harm created by the defendants act outweighs the burden on defendant to have acted differently and the utility of the defendants conduct
39
Negligence Per Se
Violation of a criminal statute may be used to establish breach of duty if (1) statute designed to protect against specific type of harm, (2) P in protected class, and (3) violation is not excused
40
Res Ipsa Loquitur
The harm suffered is most likely caused by negligence of someone, it is more likely that it was defendant’s negligence, and that P did not contribute to his own injuries
41
Professional Breach of Duty
D's deviation from custom establishes breach of duty, while D's compliance with the custom of the profession insulates D from negligence
42
"But For" Analysis
P must establish that but for D's culpable conduct or activity P would not have been injured
43
Substantial Factor Test
Requires that D materially contributed to P's injury
44
Proximate Cause
Courts will preclude recovery recovery when the causal relationship between D's conduct and P's injury is too attenuated
45
Foreseeability Test
Whether D should have reasonable foreseen, as a risk of her conduct, the general consequences or type of harm suffered by P
46
Superseding Intervening Forces
Highly improbable and extraordinary intervening forces that happen after D's act can preclude liability. God, a third person, or animal.
47
Joint and Several Liability
When two or more individuals who either act in convert to commit a tort, act independently but cause a single indivisible tortious injury, or share responsibility for a tort because of vicarious liability, each individual is fully liable to P for the entire damage award
48
Compensatory Damages
damages that are awarded to compensate or indemnify a person or to provide restitution for harm suffered. These can be pecuniary and non-pecuniary
49
General damages
Damages that are presumed to flow from the defendant’s act
50
Special damages
Additional damages that resulted from the defendant’s act. They must be specifically pleaded and proven
51
Collateral Source Rule
A defendant’s liability is not affected by the plaintiff’s ability to recover damages from another, independent source. Insurance carrier is then entitled to subrogation
52
Parasitic Damages
if D negligently causes physical injury to P, P can recover for all damages that result. Including damages for pain, suffering, and emotional harm.
53
Punitive Damages
Allow plaintiffs to collect additional damages in order to punish a defendant who has acted with malice (ill will, hatred, reckless disregard)
54
Negligent Infliction of Emotional Distress
D's negligence must cause some form of danger for P, causing mental distress severe enough to cause physical symptoms. If danger to someone other than P, P must be closely related and in the zone of danger.
55
Wrongful Conception
Parent's claim that D's actions caused birth of a healthy child
56
Wrongful Birth
Parent's claim that D's actions caused birth of a unhealthy child
57
Loss of Consortium
Recovery for close family members for loss of companionship, comfort, and sexual services
58
Wrongful Death
Recovery for the negligently inflicted wrongful death of a family member
59
Contributory Negligence
Conduct of the P falling below the standard of care to which they should conform for their own protection and is legally contributing cause to P's harm bars P from recovery
60
Comparative Negligence
P's recovery is reduced by his or her negligence that he or she contributed
61
Assumption of Risk
P must know and appreciate a particular risk, and voluntary assume it.
62
Domestic Animals SL
Keepers of domestic animals are liable for injury caused by the animal only where D knew or should have know of the animal's vicious disposition
63
Wild Animals SL
An owner of a wild animal is strictly liable for all injury caused by by that animal, regardless of D's care taken. Once a wild animal, always a wild animal. Mice = domestic, rats = wild.
64
Abnormally Dangerous Activities
P must show the risk of an abnormally great harm should D's safety efforts fail, the virtual impossibility of D's elimination of the risk of harm even with the utmost care, a resultant harm to P caused by the very dangerous activity. Activity must not be common.
65
Negligence Products Liability
compensation for persons suffering personal injury or property loss due to another's failure to act with due care
66
Strict Products Liability
If the product causes injury to a person or property, strict liability follows. Proper Plaintiff, Proper Defendant, Proper Context, Defect, Cause in Fact, Proximate Cause, Damages
67
SPL Proper Plaintiff
Any purchaser, any foreseeable user, and any foreseeable bystander injured by the defective product.
68
SPL Proper Defendant
Anyone who is in the business in dealing with the products and is part of the marketing chain.
Only applies to professional suppliers of the products, not private parties.
69
SPL Proper Context
Must have harm outside of the product itself
70
SPL Defect
The product must be defective. A product may be defective for several reasons: a manufacturing defect, design defect or warning defect
71
Manufacturing Defect
A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product
72
Design Defect
Defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, and the alternative design renders the product reasonable safe
73
Inadequate Warnings
A product is also defective if it fails to contain a sufficient warning such that the product (without the warning) is unreasonably dangerous
74
SPL Cause in Fact
Specific causation that the product actually caused D's injury
75
SPL Proximate Cause
Determine if there were any superseding events (modification of the product)
76
SPL Damages
Must be injury to P or their property, can not be purely economic loss
77
SPL - Misuse
P uses the product other than it's intended or foreseeable manner
78
Breach of Express Warranty
D makes a specific representation about the quality of a product that becomes a basis of the bargain
79
Breach of Implied Warranty
Every sale of a product by a merchant contains an implied warranty (unless adequately disclaimed) that the product is merchantablefit for the general purposes for which the product is sold and used. This warranty extends to protect the purchaser of the product and others too, depending on the privity requirement in effect in the jurisdiction
80
Private Nuisance
Unreasonable interference with the plaintiff’s use and enjoyment of his/her land. Non-physical entry only. Can be based on intentional, SL, or negligence.
81
Public Nuisance
Unreasonable interference with a right common to the general public. Non-physical entry only. Can be based on intentional, SL, or negligence.
82
Fraudulent Misrepresentation
A material misrepresentation with scienter intent to induce reliance causing justifiable reliance and pecuniary loss.
83
Intentional Interference with Contract/Prospective Economic Advantage
D was aware of that contract/deal and that acted to interfere with that contract.
84
Tortious Breach of the Covenant of Good Faith and Fair Dealing
Breaking the contract covenant of good faith and fair dealing, causing damages
85
Intrusion upon Seclusion
Intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns. The intrusion would be highly offensive to a reasonable person.
86
Commercial Appropriation
One who appropriates the name or likeness of another to promote a product or service.
87
Abuse of Process
Misuse of either a civil or criminal legal process for an ulterior purpose resulting in damages
88
Defamation
A falsely defamatory statement about the plaintiff that was "published" causing damage to the plaintiff.
89
False Lights
Intentional/negligent publication of a falsity that is offensive to the plaintiff
90
Licensees Definition
A person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter
91
Invitee Definition
A person who is invited to land by the possessor of the land as a member of the public or one who is invited to the land for the purpose of business dealings with the possessor of the land
92
Product Defect - What to cover
1. Negligence
2. Strict Products Liability
3. Breach of Implied Warranty
93
Scienter
Offending party has knowledge of the "wrongness" of an act or event prior to committing it.
94
Public disclosure of private facts
Publicity of private facts highly offensive to a reasonable person which are not of a legitimate public interest.
Requires a widespread publication of the facts.
95
Torts related to Defamation
Invasion of privacy, economic tort (breach of contract, interference of contract), some form of emotional distress (IIED, NIED)
96
Three ways to prove Negligence
1. Negligence per se
2. Unreasonable Conduct
3. Res ipsa loquitur
97
Res ipsa loquitur
The harm suffered is most likely caused by negligence of someone, it is more likely that it was defendant’s negligence, and that P did not contribute to his own injuries
98
Duty related to sale of goods
Selling products confirms the duty
99
Battery (Products)
If the facts show that D was substantially certain it would happen (product was so defective)
100
Shopkeepers Privilege
Allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property.
101
Defamation - "Published" Intent
Must be either intentional, or the result of negligence.
102
Tort Priority
1. Intentional
2. Strict Liability
3. Negligence
103
Intentional Torts to look for
Traditional 7, as well as economic and privacy torts that are done with intent.
104
Multiple Choice Checklist
1. Find the best tort theory
2. Party status or relationship between the parties
3. Eliminate alternative which speaks to the wrong theory
4. Best definitional answer that speaks to the most critical element
105
Multiple Choice Best Answer
1. If Intent, then best definitional answer speaks to the intentional conduct of D.
2. If SL, then best answer is SL type
3. If SPL, then the one that speaks to the defect in the product
4. If Negligence, then reasonableness of D's conduct
106
Tort Plaintiff Negligence (Essay and MC)
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Contributory negligence for Multiple Choice
Comparative negligence (or discuss both) on Essay
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107
NIED Witness v. Actual
1. Witness needs to be closely related and observe the injury. Needs to have physical manifestation.
2. Needs to be in the zone of danger
108
Survival v. Wrongful Death
Survival allows plaintiff's estate to sue. Allows damages that P would have gotten.
Wrongful Death allows relatives to sue. Allows damages for their loss of the loved one.
109
General Damages Principles
1. Reasonably measured
2. Unavoidable
3. Sufficiently certain
110
Actively Negligent (damage payment)
Specialized rule in contributory jurisdiction: actively negligent means more at fault, can not sue any party that is less at fault
111
Benefits of Bargain - Intentional Misrepresentation Damages
Damages measured between what you thought you were receiving, and the value of what you actually received.
112
Out of Pocket Test - Intentional Misrepresentation
Damages are measured between the contract price, and the value you actually received.
