Torts Flashcards
(248 cards)
1
Q
To show a prima facie case of intentional tort, the plaintiff must first prove what?
A
A volitional act by the defendant.
2
Q
May an initial aggressor claim the defense of self-defense?
A
Yes.
3
Q
For a plaintiff to prove intentional infliction of emotional distress from a defendant’s intentional commission of physical harm to a third party, the defendant must have known what?
A
That the plaintiff was present when the harm was inflicted by the defendant on the third party.
4
Q
May a property owner use force against someone who has a privilege to be on the property to prevent that person from being there?
A
No.
5
Q
To what circumstances does the doctrine of transferred intent apply?
A
A different tort against the same party; the same tort against a different party; and a different tort against a different person.
6
Q
Transferred intent may be invoked only if both the tort intended and the tort that results are . . .
A
Assault; battery; false imprisonment; trespass to land; or trespass to chattel. (FABTT)
7
Q
Proof of intentional infliction of emotional distress requires proof of what?
A
Actual damage.
8
Q
How must a shopkeeper perform a detention of a suspected shoplifter under the shopkeeper doctrine?
A
The shopkeeper must conduct the detention 1) in a reasonable manner; and 2) detain the suspect only for a reasonable time.
9
Q
In order to claim defense of property, a landowner must first do what?
A
Request the trespasser to desist.
10
Q
What kind of damages must be proven to prove false imprisonment?
A
None. False imprisonment requires no proof of damages.
11
Q
What is “intermeddling” for the purpose of proving trespass to chattels?
A
Conduct which directly damages the plaintiff’s chattels.
12
Q
When is the defense of consent not available to a defendant?
A
When the consent was gained by mistake induced by the defendant.
13
Q
What kind of crime must be committed for a citizen to make a citizen’s arrest without a warrant and being liable for false imprisonment?
A
A felony.
14
Q
What must a citizen know before they can make a warrantless citizen’s arrest?
A
That a felony has in fact been committed.
15
Q
What kind of intent must the defendant have to be found liable for conversion?
A
General intent—the intent to perform the act which interfered with the plaintiff’s right of possession.
16
Q
What must a defender believe in order to claim the defense of defense of others?
A
The defender must reasonably believe that there is a right to receive assistance on the part of the one in need of defense.
17
Q
May a landowner who has been tortiously dispossessed of his property use force to regain it?
A
No, he must use legal remedies.
18
Q
If A threatens force against B’s property, may B claim false imprisonment?
A
Yes. A threat of force against another’s property is enough to claim false imprisonment.
19
Q
Defenses to intentional torts generally allow use of reasonable force except for when?
A
When the plaintiff has been dispossessed of their land.
20
Q
A citizen’s arrest without an arrest warrant is permitted without being liable for false imprisonment if what?
A
1) a felony has in fact been committed; and 2) the citizen has reasonable grounds to believe the person arrested committed the felony.
21
Q
A prima facie case of assault requires what on the part of the plaintiff?
A
Awareness of the force set in motion by the defendant.
22
Q
Defense of others is available to a defender if the defender has what?
A
A reasonable belief that the person being aided has the right to self-defense.
23
Q
Trespass to land requires some form of ____________.
A
physical entry onto the land of another.
24
Q
If there is no entry onto the land of another, but there is nonetheless damage caused by another, what other torts might that person be liable for?
A
Nuisance; Strict Liability
25
When will a common law negligence duty of care be replaced by another level of duty?
When there is a statute providing for a different duty of care than the general common law rule.
26
Liability for conditions on the premises of land hinges on what?
Who occupies and controls the premises.
27
Does a landowner owe a duty to discovered trespassers?
Yes.
28
Does a landowner owe a duty to anticipated trespassers?
Yes.
29
What kind of duty does a landowner owe when conditions on his land create a danger to those off the premises?
A duty to passersby to take reasonable precautions.
30
Of what must a landowner inform an anticipated trespasser?
Any highly dangerous conditions known to the landowner.
31
When a medical provider was negligent before or during a plaintiff's pregnancy, the plaintiff may be able to collect what kind of damages in a wrongful birth suit?
Damages for additional medical expenses.
32
When might an invitee lose her status as an invitee?
When she exceeds the scope of the invitation.
33
A lessor who voluntarily decides to make repairs to the premises his liable for any damages he causes if . . .
he is negligent in performing the repairs.
34
What duty of care does a driver owe to a passenger?
An duty of ordinary care.
35
When does a rescuee owe a duty of care to her rescuer?
When she negligently put herself or a third party in harm's way.
36
When does one have an affirmative duty to act or assist another?
When the person puts the other in peril by her *innocent conduct.
37
A enters onto the land of B with B's permission to conduct business with B. Is a licensee or lessee?
Licensee
38
What determines whether a child will be treated as an adult in civil litigation?
Whether the child was involved in an adult activity.
39
What kind of duty does a landowner owe to a licensee operating on that person's land?
To warn the licensee or make safe a dangerous condition known to him which creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover.
40
What is a violation of a statute requiring non-negligent conduct?
Negligence per se.
41
In order to successfully claim negligence per se, the plaintiff must show what?
1) that the plaintiff was among the class of individuals intended to be protected by the statute; and 2) the violation was within the class of risk intended to be protected against by the statute.
42
One who acts for the benefit of another has what kind of duty?
A duty to continue the assistance.
43
What kind of duty does a landowner owe to an invitee?
To make reasonable inspections of their land.
44
A plaintiff can make a claim of intentional infliction of emotional distress from the threat of physical impact to her if what?
If the plaintiff is within the zone of danger from the defendant's conduct.
45
Does a statutory standard of care require a provision creating a civil penalty in order to apply to a negligence case?
No.
46
When may a direct verdict be granted by a judge?
When there is no triable issue of law or fact.
47
When the extent or severity of harm to the plaintiff is unforeseeable, the defendant is liable for what?
For all the aggravation of an existing physical or mental illness. This is known as the eggshell plaintiff doctrine.
48
What theory of proving negligence liability establishes a prima facie case of negligence?
Res ipsa loquitor.
49
The "but for" test for establishing actual cause applies to what kind of causes?
Concurrent.
50
In a partial comparative negligence jurisdiction, can the plaintiff be barred from recovery? If so, when?
Yes; if the plaintiff's negligence was greater than 50 percent.
51
Under the last clear chance doctrine, the defendant must have been able to avoid harming the plaintiff . . .
at the time of the incident.
52
Can a plaintiff in a negligence claim recover damages for future harm?
Yes
53
The concept of imputed contributory negligence allows what?
A defendant to use the contributory negligence of a third party as a defense against the plaintiff when the plaintiff and the third party stand in a particular relationship, such as an employer-employee relationship.
54
Plaintiff is hurt by the defendant's actions. The plaintiff chooses not to take steps to treat their injuries, and as a result, the injuries get worse. The defendant can claim what as a defense?
Doctrine of avoidable consequences.
55
What are nominal damages?
Damages awarded simply because a legal wrong has taken place. These are usually $1.
56
Can nominal damages be awarded in negligence?
No, because negligence is only a viable claim when there has been actual damage, and actual damage justifies the replacing of nominal damages with actual damages.
57
If a plaintiff fails to mitigate their damages, what is the likely result?
A reduced damage award.
58
What must a defendant prove in order to claim implied assumption of risk by the plaintiff?
That the plaintiff 1) know of the risk; and 2) voluntarily proceeded in the face of the risk.
59
When there are several defendants in a partial comparative negligence jurisdiction, the plaintiff's negligence is calculated how?
The plaintiff's negligence is compared to the total negligence of all the defendants combined.
60
What is the Collateral Source Rule?
A plaintiff's damages are not considered as being mitigated by the plaintiff's receipt of money from outside sources under the collateral source rule.
61
What is an example of prospective damages?
Compensation for impaired future earnings capacity.
62
May a plaintiff recover damages for unproven damages in negligence?
No. A plaintiff must show actual damage in negligence.
63
Most comparative negligence jurisdictions have abolished what as a separate defense?
The implied assumption of risk.
64
What does the doctrine of imputed contributory negligence require?
A special relationship between the plaintiff and a third party.
65
Negligence per se usually leads to what by the defendant?
A motion for a direct verdict.
66
A motion for a directed verdict will not be granted if . . .
there is any triable issue of fact regarding the four elements of negligence.
67
In negligence, if an intervening force is ______________, it will not cut off the defendant's liability for the negligent conduct.
foreseeable
68
What is the general test for establishing proximate cause in negligence?
Was the harm caused within the risk created by the defendant's conduct?
69
When is the alternative causes approach applied to find cause in fact?
When several acts could have caused the plaintiff's harm, but it is not known which act actually caused the plaintiff's harm.
70
What is the substantial factor test for cause in fact?
When several causes are present, and any one of them by itself is sufficient to cause the harm.
71
When is the "but for" test used to determine cause in fact?
When there are several acts which, when combined, were sufficient to cause injury to the plaintiff.
72
What are the three tests used for determining cause in fact?
but for test; substantial factor test; alternative causes test.
73
If there is any triable issue of _________, a motion for a directed verdict must be denied.
fact
74
Res ipsa is a theory of proving ___________.
negligence
75
What does res ipsa loquitor create?
a prima facie case of negligence for the plaintiff.
76
A duty to control the conduct of a third party arises when:
1) one has the authority and ability to control the conduct of the third party; and 2) one knows or has reason to know of the need to exercise such control.
77
Battery —
the intentional causing of contact to the person of another which is harmful or offensive to a reasonable person.
78
Assault —
the intentional causing of a reasonable fear or apprehension of an impending physical contact.
79
False Imprisonment —
intent to confine to a bounded space.
80
Intentional Infliction of Emotional Distress —
an intentional or reckless act which is extreme or outrageous and which causes severe emotional distress.
81
Trespass to Land —
the intentional physical invasion of another's real property.
82
Trespass to Chattels —
the intentional interfering with another's right of possession in a chattel which causes damage.
83
Conversion —
the intentional interference with another's right of possession in a chattel.
84
What kind of tort is nuisance?
It is not a tort. Nuisance is a type of harm caused by tortious conduct.
85
Intent —
a person acts with intent if it was their purpose to bring about the consequence, or if they were substantially certain of the consequences.
Baseball bat example: the batter was substantially certain of the consequences of throwing the bat into the stands.
86
When are a plaintiff's super-sensitivities taken into consideration in intentional tort?
Only when the defendant knew of them before committing the tort.
87
What are the two ways intent can be transferred under the transferred intent doctrine?
1) from intended to actual tort; and 2) from intended victim to actual victim.
88
In battery, a contact must be offensive; i.e. ____________.
unpermitted
89
In assault, the apprehension by the plaintiff must have been what?
reasonable.
90
What creates a reasonable apprehension of physical contact in regards to assault?
apparent ability
91
Homer makes a statement about how he is going to hurt someone if they do not do something. He makes no conduct with the speech. Is there an assault?
No, words without conduct are not enough to constitute assault.
92
For false imprisonment, inaction by the defendant is sufficient if . . .
there was an understanding that the defendant would act.
93
A mere ______________ is not enough to claim false imprisonment.
inconvenience
94
An area is not bounded for purposes of false imprisonment if . . .
there is a reasonable means of escape of which the plaintiff is aware.
95
When the facts of a case do not support a finding of any other tort, you should try what tort?
Intentional infliction of emotional distress.
96
When there is some damage to another's property, the most appropriate tort to sue on is . . .
trespass to chattels
97
When there is a lot of damage to another's property, the most appropriate tort to sue on is . . .
conversion
98
What are the two kinds of consent?
Implied; express
99
Is custom a defense to tort if the plaintiff was not aware of the custom?
Yes.
100
Before deadly force is used, courts usually require a plaintiff to . . .
attempt to retreat.
101
When does a plaintiff not need to attempt to retreat before using deadly force?
When the plaintiff is in their own home.
102
Does deadly force mean that one has actually killed the perpetrator?
No.
103
When is using reasonable force allowed to gain back one's property?
When you are in hot pursuit.
104
To what kinds of torts does the defense of necessity apply?
Intentional torts against property.
105
What are the forms of the defense of necessity?
Public necessity; private necessity
106
When someone destroys property in order to protect oneself or a small group of people, this is called what?
Private necessity.
107
In private necessity, must the defendant pay damages?
Yes, for the value of the things destroyed.
108
To whom does a defendant owe a duty of care in negligence?
To all foreseeable victims.
109
What is the general standard of care for negligence?
You must exercise the amount of care that would be taken by a reasonably prudent person under the same or similar circumstances.
110
What kind of duty is owed to an undiscovered trespasser?
None.
111
What kind of duty is owed to discovered trespassers in regards to activities taking place on one's land?
A duty of reasonable care.
112
What kind of duty is owed to discovered trespassers in regards to conditions on one's land?
You have a duty to inform a discovered trespasser of "manmade deathtraps."
113
What kind of duty is owed to a licensee with regard to conditions on one's land?
You owe a duty to notify the licensee of all concealed conditions known to the owner or occupier.
114
What kind of duty is owed to invitees on one's land?
You owe a duty to inspect the land; i.e. reasonable care.
115
How can a landowner or occupier avoid liability for a static condition on their land which poses a risk of harm?
Repairing the condition or giving a warning.
116
Will a defendant be liable for a trespasser which is harmed by an obvious and open condition on the landowner's land?
No.
117
What is the purpose of the negligence per se doctrine?
To prove breach of a duty by a defendant.
118
What are the exceptions to the negligence per se rule?
1) where compliance is more dangerous than violating the statute; and 2) where compliance is physically impossible, the defendant will not be held liable.
119
When is there an affirmative duty to rescue?
1) where the rescuer put the rescuee in peril; 2) where the rescuer is in a special relationship with the rescuee; and 3) where the rescuer has a duty to control the actions of a third party.
120
When does a defendant owe a plaintiff a duty to not hurt the plaintiff's feelings; i.e. to not cause negligent infliction of emotional distress?
1) where the plaintiff is within the zone of danger (the "near-miss" exception); and 2) where the plaintiff is at the scene of the accident and the victim of the defendant's negligence is a close family member of the plaintiff.
121
What is the purpose of the res ipsa loquitor doctrine?
To prove a breach of a duty of care. It is not a tort in and of itself.
122
What are the requirements for claiming res ipsa loquitor in proving a breach of a duty of care?
1) the event is one that does not ordinarily occur in the absence of negligence; and 2) any negligence is attributable to the defendant.
123
What are the alternative tests for establishing cause in fact?
1) substantial factor test; and 2) burden shifting test.
124
Where there is a foreseeable intervening cause and a foreseeable result, who wins?
The plaintiff, because the defendant could foresee both the intervening cause of the harm and the result.
125
Where there is a foreseeable intervening cause and an unforeseeable result, who wins?
It is uncertain.
126
Where there is an unforeseeable intervening cause and a foreseeable result, who wins?
It is uncertain.
127
Where there is an unforeseeable intervening cause and an unforeseeable result, who wins?
The defendant.
128
If a defendant negligently causes harm to the victim, and the victim is later taken to hospital where the doctor improperly treats the patient, is the defendant liable for the victim's injuries including the injuries from the doctor?
Yes—subsequent medical malpractice is one of four categories of actions which are always considered foreseeable intervening causes in indirect causation problems.
129
If a defendant hits a pedestrian with her car, and while trying to rescue the victim, causes even more harm to her, is the defendant liable for the additional harm to the victim? Does it change the answer if it was a third party that tried to rescue the victim?
Yes; no. The defendant will be liable either way because negligent rescue is one of four categories of action which are considered as always being foreseeable intervening causes.
130
A defendant causes a stampede at a local concert. The victim is trampled by many people as a result. Is the defendant liable?
Yes. Reaction forces are always considered a foreseeable intervening cause.
131
A defendant injures a victim. While the victim is in the hospital, he contracts a dangerous virus and suffers great pain as a result. Is the defendant liable for the additional pain and suffering?
Yes. Subsequent illnesses or accidents are a foreseeable intervening cause which does not cut off defendant liability.
132
What are the four categories of intervening causes that almost never cut off defendant liability?
Subsequent medical malpractice; crowd response; negligent rescue; subsequent illnesses or accidents.
133
There are several categories of intervening causes that, when the defendant anticipates them, the defendant will be liable for. These include:
acts of god; negligent third party conduct; and criminal conduct. Where these are not anticipated by the defendant, the defendant will not be liable.
134
What are the elements of a personal injury award of damages?
1) past and future medical expenses; 2) past and future lost income; and 3) pain and suffering.
135
What are the main defenses to negligence that either absolve or reduce the defendant's liability?
Contributory negligence; assumption of the risk; and comparative negligence.
136
Contributory Negligence —
where a plaintiff is contributorily negligent, he loses the entire lawsuit.
137
Express Assumption of Risk —
the plaintiff expresses their willingness to take a chance.
138
Implied Assumption of Risk —
1) the plaintiff knew of the risk; and 2) voluntarily encountered the risk.
139
What destroys the voluntariness of a plaintiff's implied assumption of risk?
The absence of an alternative or the occurrence of an emergency.
140
What kind of damages can a plaintiff get if they are impliedly assuming the risk of something?
None. Implied assumption of risk bars recovery of damages assuming there is an alternative and no emergency.
141
When is a defendant strictly liable for the acts of a domesticated animal which causes harm?
Only when the defendant knows of a dangerous propensity of the animal prior to the act occurring.
142
What are the elements of an abnormally dangerous activity?
1) the activity is incapable of being performed without a high level of risk; 2) if harm occurs, it is severe; and 3) the activity is uncommon in its location.
143
What are the two theories of liability in regards to products?
Strict liability; negligence.
144
To establish a prima facie case of products strict liability, the plaintiff must establish:
1) the defendant was a merchant seller; 2) the product was defective; 3) the product was defective when it left the merchant seller's hands; and 4) the product was used in a *foreseeable manner.
145
The plaintiff is looking to make a claim of negligent products liability. Who can he hold liable? Who can he not?
Because he is looking for negligent products liability, as opposed to strict products liability, he can only hold the manufacturer accountable. The wholesalers or retailers are not liable under a negligence theory of products liability.
146
How might a defendant avoid liability for strict liability?
Adequate warnings.
147
If a product is incidental to the performance of a service, is strict liability available to the plaintiff?
No. Strict liability is not available to the plaintiff if the product is incidental to the performance of a service.
148
Under vicarious liability, employers are not held liable for what kinds of torts committed by their employees?
Intentional torts.
149
When will employers be held liable for intentional torts of their employees?
when violence is part of the employee's job.
150
For an employer to be held liable for an employee's tort, the tort must ________________________.
be within the scope of their employment.
151
Does vicarious liability generally extend to independent contractors?
No
152
When might an employer be held liable for the tortious acts of an independent contractor?
1) when the IC is engaged in an abnormally dangerous activity; or 2) when it is against public policy not to hold the IC liable.
153
Are owners of vehicles liable for the tortious acts of those to whom the owner loaned their car?
Generally, no.
154
How might an owner of a car be held liable for the tortious acts of someone to whom the owner loaned their car?
When the driver is running an errand for the owner of the vehicle.
155
When are parents vicariously liable for the acts of their children?
Never.
156
Under joint and several liability, how are the damages divided amongst the defendant?
Each defendant is wholly liable for the entire damage.
157
When does joint and several liability apply?
When the defendants are 1) acting in concert; and 2) when the defendants contribute to an indivisible harm.
158
Defamation —
a defamatory statement about or concerning the plaintiff which is published and causes damages to the plaintiff.
159
For a statement to be defamatory, it must . . .
injure the reputation of the plaintiff.
160
For a statement to be published, it must . . .
1) be communicated to a third party; 2) the third party must be capable of understanding it; and 3) the publication must be at least negligent, if not intentional.
161
For a plaintiff to recover in an action for slander, the plaintiff must show what?
Special damages; i.e. economic loss associated with the statement.
162
For a plaintiff to recover in an action for libel, the plaintiff must show what regarding damages?
Nothing. For libel, juries presume there has been harm to the plaintiff by virtue of the statement's being published via writing.
163
Slander per se results in a jury . . .
presuming damages have been suffered by the plaintiff.
164
What are the traditional categories of slander per se?
Impugning one's profession; accusing someone of a serious crime; implying that one has a loathsome disease; and imputing unchastity to someone.
165
To what/whom does the absolute privilege against defamation apply?
Judicial proceedings; legislative proceedings; actions of executive branch officials within the scope of their duties; and communications between spouses.
166
What is the qualified privilege against liability for defamation?
Where the plaintiff requests your input or a statement regarding their character, you may say what you wish. However, if you abuse it by making patently false statements, you will lose the privilege and are subject to suit for defamation.
167
In order to prove defamation on a matter of public concern, what must the plaintiff show?
1) that the statement was false; and 2) the requisite level of fault for the person alleging defamation.
168
Who is a "public person" for purposes of defamation?
A governmental official or a celebrity.
169
For a public person to prove defamation, they must prove:
actual malice.
170
Actual malice is . . .
1) knowledge of a statement's being false; or 2) reckless disregard for the truth.
171
To prove defamation, a private person must show:
1) falsity of the statement; and 2) at least negligence.
172
Where a defendant is speaking on a matter of public concern, the plaintiff must prove ______________ regardless of whether the plaintiff is a public person or a private individual in order to recover presumed or punitive damages.
actual malice
173
What are the four types of invasion of privacy?
Appropriation; intrusion; false light publicity; and public disclosure of private facts.
174
Appropriation —
use of the plaintiff's name or picture for commercial advantage without the plaintiff's permission.
175
Intrusion —
interference with a person's seclusion in a way that would be highly offensive to a reasonable person.
176
False Light Publicity —
the widespread dissemination of information that is in some way inaccurate and that would be highly offensive to a reasonable person.
177
Public Disclosure of Private Facts —
the widespread dissemination of factually accurate information that would normally be confidential, and the disclosure of which would be highly offensive to a reasonable person.
178
What is a defense to false light publicity or public disclosure claims?
Consent
179
Fraud —
an affirmative misrepresentation made with intent to induce actual and justifiable reliance on the misrepresentation which causes damages.
180
Intentional Interference with Business Relations —
the intentional performing of an act which causes a third person to breach an existing contract with the plaintiff.
181
Interference with Contractual Relations —
the intentional interference with a plaintiff's contractual relations which makes the performance of such contract more difficult, even if the interference does not cause a breach.
182
Interference with Prospective Economic Advantage —
the intentional interference with a plaintiff's expectation of an economic benefit from a third person, even in the absence of a contract.
183
Private Nuisance —
conduct which causes a substantial and unreasonable interference with the use and enjoyment of land.
184
Public Nuisance —
conduct which causes physical or moral harm to the public in general.
185
When can a private plaintiff bring a public nuisance suit?
When the plaintiff suffers an injury different in nature from the rest of the community.
186
Does the shopkeeper privilege require that the defendant notify the police of the alleged shoplifter?
No. It is not required that the police be notified.
187
Social guests of landowners are considered what for the purposes of trespass and duties owed to them?
Licensees. Social guests are considered licensees for the purpose of duties owed to them.
188
A landowner owes what kind of duty to a guest; i.e. licensee?
To warn of all concealed dangerous conditions of which the landowner is *aware.*
189
Invitee —
a person who enters onto the premises in response to an express or implied invitation of the landowner.
190
Is a person who enters onto land as a member of the public for a purpose for which the land is open a licensee or an invitee?
An invitee.
191
The majority approach in negligent infliction of emotional distress cases requires the bystander to an accident and who sues for NIED to be what?
A close relative of the victim.
192
What kind of duty does a person have once they have begun to assist someone?
A duty of reasonable care.
193
If a person chooses to assist someone, and is then negilgent in their assistance, does the rescuee have a cause of action against the negligent rescuer?
Yes. Those who freely choose to assist someone have a continuing duty to assist, as well as a duty of reasonable care; i.e. to act as a reasonable person would. Where the rescuer is negligent in their assistance to the rescuee, the rescuee has a cause of action against the negligent rescuer.
194
A makes a defamatory statement about B to C. C does not believe the statement, because B had previously revealed the truth of the matter to C. Can B recover for defamation?
Yes. As long as a defamatory statement is understood in its defamatory sense, the statement need not be believed to be actionable.
195
What might cause a victim of defamation to receive a decreased damage award in a suit for defamation?
Where the defamatory statement was published to a party who knew the statement was false when it was published and understood the statement to be defamatory.
196
In battery, what must the defendant intend to do?
Bring about a harmful or offensive contact.
197
The defense of self-defense has both a ______________ and a _______________ component.
Objective; subjective.
198
The objective component of the defense of self-defense requires that . . .
a reasonable person in the same circumstances would have acted similarly.
199
The Firefighter Rule —
firefighters and police officers may be barred from recovering for injuries caused by the risks of a rescue.
200
The Attractive Nuisance Doctrine —
a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children.
201
What must a plaintiff show in order to successfully hold a defendant liable for damages under the attractive nuisance doctrine?
1) there is a dangerous condition present on the land of which the owner is or should be aware, 2) the owner knows or should know that young persons frequent the vicinity of this dangerous condition, 3) the condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk, and 4) the expense of remedying the situation is slight compared with the magnitude of the risk.
202
May criminal statutes be used to establish a duty of care under the doctrine of negligence per se?
Yes. Any statute, whether criminal or civil may be used to establish a duty of care under the doctrine of negligence per se.
203
Must a plaintiff show physical symptoms of emotional distress in order to meet the requirements for a showing of intentional infliction of emotional distress?
No. However, evidence of severe emotional distress must be shown.
204
Before a defendant uses reasonable force in self-defense, must the defendant attempt a retreat?
No. Courts only require that a plaintiff attempt a retreat before they use *deadly force* in self-defense.
205
What kind of necessity must a defendant have in order to successfully claim the defense of self-defense?
Apparent necessity. The defendant need not have had an actual necessity to use self-defense. They only need to have had a reasonable belief that they had to defend themselves.
206
The circumstantial evidence doctrine of res ipsa loquitor does NOT . . .
1) establish a presumption of negligence on the part of the defendant; 2) result in a directed verdict for the plaintiff; nor 3) shift the burden of proof to the defendant. Literally the only thing RIL does is establish a prima facie case of negligence.
207
Dependent Intervening Force —
a normal response or reaction to an act of negligence. These are almost always foreseeable because of their being normal responses.
208
In a negligence action, a plaintiff cannot recover what kind of damages?
Presumed damages. Negligence requires actual damages.
209
Presumed damages are not the same as _____________ damages.
future
210
A product causes harm to A. Upon research, A finds that the object meets all government standards required of it. May A still bring an action against the manufacturer of the object?
Yes, A can bring a defective product action. A product can be within all government standards and nonetheless be held defective.
211
In a strict liability action based in products liability, what kind of damages can a plaintiff claim?
Personal injury; property damages.
212
What must be shown for a qualified privilege to apply for defamatory statements?
The statement must be reasonably relevant to the interest being protected.
213
For a plaintiff to sue on a theory of an abnormally dangerous activity, must the plaintiff's harm be a direct result of the dangerous activity?
No. A plaintiff need only show that they were harmed as a result of a dangerous propensity of the activity.
214
The right of contribution does not apply to . . .
those who are immune from liability.
215
For purposes of private nuisance, the interference with the plaintiff’s use of the land is unreasonable only if:
The severity of the plaintiff’s inflicted injury outweighs the utility of the defendant’s conduct.
216
Indirect Cause —
Where a force comes into motion after the defendant’s negligent act and combines with that act to cause injury to the plaintiff.
217
The Last Clear Chance Doctrine —
the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. The doctrine permits the plaintiff to recover despite his own negligence.
218
When will the plaintiff raise the doctrine of last clear chance?
In response to a defendant's defense of the plaintiff's contributory negligence.
219
Under these circumstances, a court will usually not allow a plaintiff to claim res ipsa loquitor in order to show a breach of a duty:
where there is more than one defendant in control of the instrument which caused the damage.
220
In assault, must the plaintiff be aware of the source of the impending contact?
No.
221
Pure Comparative Negligence —
the plaintiff can be 99 percent at fault and still recover from the defendant. The plaintiff's award is reduced by the percentage of the plaintiff's fault.
222
Modified Comparative Negligence —
the plaintiff cannot recover if he was more than 50 percent at fault.
223
Nominal damages are sufficient for what kind of torts?
Intentional torts.
224
Must you show actual damage in intentional tort?
Yes, but not for all of them.
225
In an action for conversion, must a person intend to destroy the owner's property?
No. For conversion, as with all other intentional torts, the defendant does not need to have the specific intent to destroy the property. Rather, the defendant need only have the intent to do the thing which causes the conversion.
226
Contributory negligence on the part of a plaintiff is usually a defense to negligence UNLESS what?
the defendant's actions were wanton and reckless. Contributory negligence on the part of the plaintiff will not negate a defendant's liability if the defendant acted with wantonly and recklessly.
227
In joint and several liability, for how much is each defendant liable?
For the entire damage done by all the defendants.
228
To prove negligence design defect, a plaintiff must show what?
That those designing the product *knew or should have known* of enough facts to put a reasonable manufacturer on notice about the dangers of marketing the product as designed.
229
When is negligent product design not shown?
When the danger of the product becomes apparent only after the product reaches the public; i.e. if no one has suffered this harm yet, then there is no notice to the manufacturer which would put them on notice about the dangers of marketing the product as designed.
230
When might an insufficient warning of danger be considered a product defect for the purposes of strict products liability?
Where a product presents an unreasonable risk of injury to users and bystanders.
231
Can a manufacturer be held strictly liable for product defects made by a subcontractor?
Yes. Manufacturers are held strictly liable under a products liability theory for injuries caused by a defect, even when the defect was made by a subcontractor.
232
May a plaintiff recover from a performer of an abnormally dangerous activity even if the plaintiff is not injured by the activity's dangerous propensity?
No. A plaintiff must show that they were harmed by the dangerous propensity of the abnormally dangerous activity.
233
Consent to appropriation of one's likeness must be _______________.
specific. There is no implied consent to one's likeness being appropriated for commercial purposes.
234
What intentional torts require showing actual damages?
IIED; conversion; trespass to chattels.
235
What kind of duty does a doctor have in regards to his patient under negligence?
A duty to disclose all material risks to the patient; i.e. all risks that a reasonable person would want to know.
236
A person enters onto the land of another out of private necessity. May the landowner forcibly remove the trespasser from his property?
No. A landowner cannot forcibly remove a person who is trespassing on their land out of private necessity.
237
What is the remedy for trespass to chattels?
Loss of use or the cost of repairs to the damaged property.
238
A plaintiff may avoid having a direct verdict issued against them if he can show what?
Duty and breach. A defendant's motion for a directed verdict will be denied if the plaintiff shows both a duty and a breach of that duty.
239
What does a Good Samaritan law do?
It absolves emergency personnel from liability for ordinary negligence they might make during the course of voluntarily assisting someone in need of help.
240
Does breaking a statute create a rebuttable presumption of negligence?
No. It creates negligence per se.
241
What is the difference between causation in negligence and causation in intentional tort?
Causation in negligence is found where there is direct and proximate cause. Causation in intentional tort is found where the defendant's conduct is a substantial factor in bringing about the injury.
242
What are the types of intent in intentional tort?
General or specific.
243
Depending on the circumstances, strict liability may be imposed on the owners of what type of animals?
Wild animals, domestic animals, and trespassing animals
244
Is whether an activity is an abnormally dangerous activity a decision for the jury to make?
No
245
Is a domestic animal the same as a pet?
No
246
Will the owner of a wild animal that is kept as a pet be held strictly liable for the damage is causes?
Yes
247
The owner of a wild animal will be held strictly liable for the injuries caused by the animal so long as . . .
the plaintiff did nothing, voluntarily or consciously, to bring about the injury.
248
Farm animals are what kind of animals for liability purposes?
Domestic animals. The owner of a domestic animal, including a farm animal, is not strictly liable for injuries it causes, as long as the owner has no knowledge that the animal has abnormally dangerous propensities (i.e., propensities more dangerous than normal for that species).
