Torts Flashcards
(110 cards)
1
Q
Req of Intentional Torts
A
Act
Intent
Causation
Damages
2
Q
Intent to bring physical or mental effect
A
Either desire or purpose OR
Knows w/ substantial certainty effect will occur
3
Q
Transferred Intent Tort
A
Same tort different person
Different tort same person
Different tort different person
Cannot be invoked w/ conversion or IIED
4
Q
Causation Int Torts
A
Need not be direct (i.e. setting in motion)
5
Q
Assault Req Tort
A
Intentional causing of an
Apprehension of an
Imminent
Harmful or offensive contact
6
Q
Apprehension Assault
A
Must be reasonable
Must be aware
7
Q
Imminent Assault
A
Apparent present ability to
Carry out threat
Not future or hypothetical harm
8
Q
Harmful or offensive contact
A
Touching that causes pain or bodily damage OR
Offends reasonable person’s sense of dignity
9
Q
Battery Req Tort
A
Intentional infliction of
Harmful or offensive
Bodily conduct
10
Q
Bodily Conduct Battery Tort
A
Can be indirect including contact w/
Object closely identified w/ plaintiff’s body
11
Q
False Imprisonment
A
Intentionally causes
Plaintiff to be confined, restrained or detained to
Bounded area w/ no reasonable means of escape
Plaintiff is either aware or harmed
12
Q
Plaintiff to be confined, restrained or detained False Imprisonment
A
Use of physical force, threats, duress,
Invalid legal authority OR refusing safe means of escape
13
Q
Shopkeeper’s privilege
A
For reasonable time and manner
Detain suspected shoplifter
Typically 10-15 minutes
14
Q
Bounded area
A
Can be large and does not have to be stationary
15
Q
Plaintiff is either aware or harmed
A
Must be conscious or, if not
Must be harmed in some way
16
Q
Req IIED
A
Intentional or reckless infliction of
Severe emotional or mental distress caused by
Defendant’s extreme & outrageous conduct
17
Q
Intentional or reckless infliction IIED
A
Desire or
Knows w/ substantial certainty OR
Reckless disregard for high
Probability distress will occur
18
Q
Severe emotional or mental distress caused by
A
Beyond reasonable person should endure
Can be evidenced by defendant’s conduct
Hypersensitivity
Only liable if defendant knew of sensitivity
19
Q
Defendant’s extreme & outrageous conduct
A
Beyond all possible bounds of decency
Usually if defendant in position of
Authority or influence OR
Plaintiff member of group w/ heightened sensitivity
20
Q
3rd Party Liability IIED
A
Plaintiff physically present & known by defendant AND
Close relation to other person OR
Suffers bodily harm as result of distress
21
Q
Req of Trespass to Land
A
Can be brought by anyone w/ Legal possession; not just owner Intentional Physical invasion to Land of another
22
Q
Physical Invasion Trespass to Land
A
Entry w/ out permission
Remaining w/ out right to be there OR
Placing or projecting object w/out permission
23
Q
Req of Trespass to Chattel
A
Intentional
Interference w/ use or possession
Of chattel
Damages
24
Q
Interference w/ use or possession Chattel
A
Owner precluded from using or possessing
Typically temporary
25
Damages Trespass to Chattel
Actual damages
Loss of value caused by loss of use OR
Cost of repair
26
Req of Conversion
Intentional
Interference w/ use or possession that
So substantial warrants full value
Damages
27
Interference w/ use or possession that
Sells to 3rd party
Refuses to give back OR
Destroys
28
So substantial warrants full value Conversion
```
Courts take into account:
Duration & extent of interference
Intent to assert right inconsistent w/
Rightful possess w/ good faith
Expense or inconvenience to plaintiff
Extent of harm
```
29
Damages Conversion
FMV at time of conversion
30
Self Defense Tort
```
Reasonable force to prevent
Threatened harm or offensive contact AND
Threatened confinement or imprisonment
Deadly force
Only allowed if defendant in
Danger of death or SBI
Degree of force
Only degree necessary to
Prevent threatened harm
```
31
Defense of Others Tort
Reasonable force to defend
Another when
Reasonably believes that other person
Could have used force to defend himself
32
Defense of Property Tort
```
Reasonable force to defend against
Tortious harm to property
Warning required
Unless appears futile or dangerous
Deadly force
Only if non-deadly force will not suffice AND
Reasonably believes danger of death or SBI
NO mechanical devices (i.e. Home Alone)
```
33
Recapture of Chattel
Reasonable force to regain possession if:
Fresh pursuit
NO deadly force
34
Consent Defense Tort
May be express or implied
Scope
Not beyond what consented to
35
Express Consent Defense Tort
Must be willing and knowing
Consent by mistake valid defense
Consent by fraud invalid if essential matter
36
Implied Consent Defense Tort
Emergency
Injuries arising from athletic contests
Mutual consent to combat
37
Necessity Defense Tort
Enters land or interferes with property to
| Prevent injury or severe harm
38
Private Necessity Defense Tort
Must pay for actual damages caused
Not liable for nominal damages
Landowner may not use force to exclude
39
Public Necessity Defense Tort
When necessary to protect
| Large number of people from public calamities
40
Insanity Defense Tort
Generally no defense if able to
| Form requisite intent to do so
41
Negligence
Defendant’s conduct imposes
Unreasonable risk upon another
Resulting in injury
42
Req of Negligence
Duty
Breach
Causation
Damage
43
Duty Neg
```
Act as reasonable person
Who is it owed to
Foreseeable plaintiffs (majority)
In the zone of danger
Everyone (minority)
Including unforeseeable
```
44
Standard of Care Duty Neg
Reasonable person under circumstances
Physical characteristics of defendant
Voluntarily intoxicated held to same standard as sober
Not mental characteristics
45
Special Duties with Affirmative Duty to Act
```
Common carrier
Innkeepers
Automobile drivers
Special relationship
Causing the danger
Volunteer assistance
```
46
Common carrier Duty
Highest duty of care w/
| Practical operation of business
47
Innkeeper Duty
```
Ordinary negligence (majority)
Slight negligence (minority)
```
48
Automobile drivers Duty
```
Ordinary care (majority)
Refrain from wanton & willful misconduct (minority)
```
49
Special relationship Duty
Business or landowner holding premises open to public
Landlords and tenants
Or other special relationships
50
Volunteer Assistance Duty
Must proceed w/ reasonable care
51
Professional Duty
Required to possess knowledge and skill
| Of their profession or occupation
52
Fireman's Rule Prof Duty
Risk takers are prohibited from suing or
| Injuries stemming from assumed risk of profession
53
Children Duty
Conform to conduct of child of like
Age, intelligence, and experience
Exception
Child engaged in adult activity (i.e. driving)
54
Bailor Duties
For gratuitous, bailor must:
Inform of known, dangerous defects in chattel
Bailment for hire:
Inform of defects of which should know
55
Bailee Duties
```
Sole benefit for bailor:
Standard is low
Sole benefit for bailee:
Higher standard of care
Mutual benefit:
Ordinary standard of care
```
56
Off Premises Injuries
Not liable for injuries resulting from natural conditions
57
Categories for Duties Owed Land
Trespasser
Invitee
Licensee
58
Trespasser Duty
Owes no duty to undiscovered trespassers but
| Must refrain from willful, wanton, or intentional misconduct
59
Discovered Trespasser Duty
Warn or protect against concealed
| Dangerous artificial conditions
60
Undiscovered Trespasser Duty
```
No duty unless owner should
Reasonably have known trespassers
Entering land
Then use reasonable care
No duty to inspect
```
61
Attractive Nuisance
Liable to trespassing children if
Artificial condition poses
Unreasonable risk of SBI AND
Because of age, children cannot appreciate danger or do not find burden of eliminating danger
Slight compared to risk of harm AND owner fails to exercise reasonable care
62
Invitee Duty
```
One who enters land in response to
Invitation by owner to do
Business w/ owner OR
Public invitee for land open
To public at large
```
63
Non-Delegable Duty
Make reasonable inspection to
Find hidden dangers AND
Take affirmative action to remedy
64
Licensee Duty
```
One who enters land w/ owner’s consent
For his own purpose (social guest)
Duty to:
Warn to all known dangerous conditions that create unreasonable risk of harm that unlikely to discover AND to use
Reasonable care in conducting activities
NO duty to repair or inspect
```
65
Breach Neg
When defendant’s conduct fails to
| Conform to applicable standard of care
66
Trad Breach Neg
What reasonably prudent person would do
67
Cost-Benefit Analysis Breach Neg
Unreasonableness of risk vs
| Utility of act
68
Res Ipsa Loquitur
Establishes breach in situations where
| Event creates an inference defendant likely negligent
69
Elements of Res Ipsa Loquitur
Ordinarily not occur in absence of negligence
Cause w/ in exclusive control
Not due to action by plaintiff
70
Modern Trend Res Ipsa Loquitur
Shifts burden of medical holding all jointly and severally liable
Products liability when came from upstream
Generous interpretation of exclusivity
71
Actual Causation Neg
But for defendant’s act,
| Injury would not have occurred
72
Multiple Tortfeasors/Multiple Possible Actual Cause Neg
Substantial factor test
Concurrent tortfeasors acting in concert
Alternate causation
73
Substantial factor test
More than one at fault and
Conduct combined caused harm
Negligence was substantial factor to harm
74
Concurrent tortfeasors acting in concert
Joint and several liability
75
Alternate causation
Two acts of negligence, only one could
Cause injury but unknown
Burden shifts to defendants to show not them
76
Proximate Causation Neg
Reasonable foreseeability
| Liable for all harm reasonably foreseeable
77
Eggshell-skull plaintiff
Liable for unforeseen harm that may be
Increased b/c of plaintiff’s pre-existing
Physical or mental conditions or vulnerability
78
Intervening Causes
Foreseeable, then still liable:
I.e. medical malpractice or negligence by rescuers
Unforeseeable, generally not liable if broke chain of causation:
I.e. fender bender, get hits by another car
79
Collateral Source Rule Torts
Benefits from outside sources (P’s insurance) not
Credited against liability BUT
D’s insurance is
Modernly statutes have eliminated or modified
80
Negligent infliction of emotional distress (NIED)
Liable when defendant engages in
Negligent conduct that causes plaintiff to
Suffer serious emotional distress
81
Types of Negligent infliction of emotional distress (NIED)
```
Actual impact or threat OR
Zone of danger OR
Bystander but must be
Related and Personally witnessed OR
Special relationship (i.e. mishandling a corpse or misdiagnosis)
```
82
Defenses to Negligence
Contributory negligence
Comparative Negligence
Assumption of Risk
83
Contributory negligence
Negligence on part of plaintiff
| Bars recovery
84
Comparative Negligence
```
Negligence on part of plaintiff but
Does not bar recovery
Pure:
Reduces in proportion to fault
Partial Comparative:
Reduces if less than 51%
Bars if more than 50%
```
85
Assumption of Risk
Bars if assumed risk of damage where knew of risk and voluntarily consented
Comparative fault:
May reduce recovery but does not bar
86
Strict Liability
Held liable for activities regardless of
Precautions taken to prevent harm
Animals
Abnormally Dangerous Activities
87
Trespass of Animal Strict Liability
Liable if reasonably foreseeable damage
88
Wild Animals Strict Liability
Not custom to keep type of animal
S/L despite precautions so long as arises from dangerous propensity of animal OR which owner knows about
S/L for fearful reaction of unrestrained animal
No S/L of undiscovered trespasser
EXCEPT vicious watchdog
89
Domestic animals Strict Liability
S/L if knows or reason to know of dangerous propensities and harmful results
Public stray, then negligence
90
Abnormally Dangerous Activities
High degree of risk or serious harm
Cannot be eliminated by exercise of reasonable care
Danger outweighs activity’s value to community
Not appropriate for location
Not common activity
91
Defenses of Strict Liability
Assumption of risk
| NOT contributory negligence
92
Products Liability
Liability of seller of tangible item, which
Because of defect causes injury to purchaser
User or bystander based on Intent
93
Intent Products Liability
Defendant intended consequences or
Knew to substantial certainty to occur
Defenses same as intentional torts
94
Product Strict Liability
Manufacturing Defect
Design Defect
Failure to Warn
95
Manufacturing defect
Product deviated from intended design
96
Design Defect
```
Consumer Expectation Test:
Less safe than ordinary consumer would expect
Risk-utility Test:
If risks outweigh benefits
Must show reasonable alternative design
```
97
Failure to Warn
```
Foreseeable risk NOT
Obvious to ordinary user
Prescription drugs
Warning goes to doctor UNLESS
Marketed directly to consumers (more common now)
```
98
Req of Strict Products Liability
Product Defective
Defect existed when left defendant’s control (actual cause)
Caused injury when used in foreseeable way (proximate cause)
Damages
99
Defenses to Strict Products Liability
```
Assumption of risk
Comparative negligence BUT NOT
If plaintiff’s neg or misuse foreseeable
Disclaimers not effective
Compliance w/ industry standards NOT defense
```
100
Products Negligence
Retailers and wholesalers rarely liable
| Manufacturer likely could be
101
Products Warranty
Express
Implied Warranty of Merchantability
Fitness for Particular Purpose
102
Express Warranty Products
Statement of fact or promise concerning goods
| Only need to show did not live up to promise
103
Defenses to Products Warranty
Assumption of risk
Comparative/contributory negligence
Unless neg/misuse foreseeable
Failure to give notice of breach under UCC
104
Misrepresentation Prod Liability
Liable for misrepresentation of fact when
Statement was material fact concerning
Quality or uses of goods AND
Seller intended to induce reliance buyer AND
Buyer did in fact rely
Must still prove causation and damages
105
Defenses to Misrepresentation Prod Liability
Comparative
| UNLESS intentional
106
Privacy Claims
Only for individuals & terminates upon death
Misappropriation
Intrusion into Seclusion
False Light
Public Disclosure of Private Facts
107
Misappropriation
Unauthorized use of plaintiffs
Picture or name for
Defendant’s commercial advantage
108
Intrusion into Seclusion
Intrusion into private aspect of plaintiff’s
Life in private place
Highly objectionable to
Reasonable person
109
False Light
One attributes to plaintiff views he does not hold
Objectionable to reasonable person under circum
Publication is public
If public interest, malice required
Truth not defense
110
Public Disclosure of Private Facts
Public disclosure of private facts that
Not matter of legitimate public concern
Objectionable to reasonable person
