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Flashcards in Torts Deck (68):

Transfered Intent

if a defendant desires to produce a legally forbidden consequence then the intent is there even if a different consequence results or a different person is injured.



an intentional infliction of a harmful or offensive bodily contact.



1. An Act by Defendant creating Reasonable apprehension in plaintiff's person;
2. Of immediate harmful or offensive contact to plaintiff's person;
3. Intent; and
4. Causation


False Imprisonment

Occurs where the defendant intentionally causes the plaintiff to be confined, restrained, or detained to a bounded area with no reasonable means of escape, of which the plaintiff is either aware or harmed.


Intentional Infliction of Emotional Distress

the intentional or reckless infliction of severe emotional or mental distress caused by defendant's extreme and outrageous contract.


Trespass to Land

intentional physical invasion of the land of another.


Trespass to Chattels

1. An intentional act by defendant that interferes with plaintiff's right of possession in a chattel;
2. Causation; and
4. Damages



1. An act by defendant that interferes with plaintiff's right of possession in a chattel;
2. the interference is so serious that it warrants requiring defendant to pay the chattel's full value;
3. Intent; and
4. Causation.


Defenses to Intentional Torts

1. Expressed Consent
2. Implied Consent
3. Self- Defense
4. Defense of Others
5. Defense of Property
6. Public Necessity
7. Private Necessity


Expressed Consent

Literal words spoken by plaintiff giving the defendant permission to act in a way that would be a tort.


Implied Consent

2 types:
implied consent from custom. or
Consent based on a defendant's reasonable interpretation of plaintiff's objective conduct. (Body language Consent)


Public Necessity

Where the defendant has interfered with the property in an emergency but has done so to protect the community as a whole or a significant group of people.


Private Necessity

When the defendant invades plaintiff's property in an emergency to protect an interest of his own. (not a complete defense)



1. The defendant makes a defamatory statement about the plaintiff
2. The defendant publishes the statement
3. Damages


Affirmative Defenses to Defamation

1. Consent
2. Truth
3. Absolute Privileges
4. Qualified Privilege


Defamation involving matter of public concern

1. The defendant makes defamatory statement
2. the defendant publishes the statement
3. Damages
4. Falsity
5. Fault



1. Duty
2. Breach
3. Causation
4. Damages


Slander Per Se Categories

1. Adversely reflect's one's conduct in a business or profession;
2. one has a loathsome disease;
3. one is guilty of a crime of moral turpitude; or
4. A woman is unchaste.



The written or printed publication of defamatory language including radio and television programs



Spoken defamation


Malice for Defamation

Knowledge that the statement was false or Reckless disregard as to whether it was false.



Unauthorized use of plaintiff's picture or name for defendant's commercial advantage


False Light

where one attributes to plaintiff views he does not hold or actions he does not take. Must be something highly offensive to a reasonable person under the circumstances.


Intentional Misrepresentation

1. Misrepresentation of material fact
2. scienter- the defendant knew or believed the statement was false or that there was no basis for the statement;
3. Intent
4. Causation
5. Justifiable reliance
6. Damages


Premises Liability

Arises when a someone enters a piece of real estate and gets hurt by a static condition on the property


Duty owed to Undiscovered Trespassers

No duty is owed


Duty owed to Discovered or Anticipated Trespassers

Duty to:
1. warn of or make safe concealed, artificial conditions known to the landowner involving risk of death or seriously bodily harm and
2. use reasonable care in the exercise of "active operations" on the property



A person who enters the property with permission of the possessor but they do not confer any economic benefit on the possessor ex. social guest


Duty owed to Licensee

Duty to:
1. Warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee an that the licensee is unlikely to discover; and
2. exercise reasonable care in the conduct of "active operation" on the property.



People who enter land with permission and confer economic benefit to possessor or the property is open to the public generally.


Duty owed to Invitee

Duty owed to protect from any condition that is
1. concealed from the invitee and
2. the possessor knew of the condition in advance or could have discovered through reasonable inspection.


Negligence Per Se

1. Plaintiff must show that the he is a member of the class of persons that the statute is trying to protect and
2. the plaintiff has to show that the accident falls int he class of risks that the statute was trying to protect
**** violation of a statute may be excused where compliance would be beyond the defendant's control.


Negligent Infliction of Emotional Distress (Near Miss Cases)

1. Plaintiff must show that he was in the zone of danger and
2. Plaintiff must show he suffered subsequent physical manifestations of emotional distress


Negligent Infliction of Emotional Distress (Bystander cases)

1. Plaintiff was closely related to the injured person and
2. Plaintiff must be physically present and see the victim get hurt in real time.


Negligent Infliction of Emotional Distress (Relationship Cases)

Plaintiff and Defendant are in a pre-existing business relationship where careless performance will foreseeably cause distress.


Resp Ipsa Loquitor

The plaintiff does not know actual conduct was must show:
1. the accident is a type normally associated with negligence and
2. Defendant has control over the injury causing instrumentality


Actual Causation

"But For Test" - But for the breach plaintiff will be uninjured today.


Proximate Causation

A defendant generally is liable for harmful results that are the normal incidents of an within the increased risk caused by his acts (foreseeability test)


Affirmative Defenses to Negligence

1. Contributory Negligence
2. Assumption of Risk
3. Comparative Negligence
4. Modified or Partial Comparative Negligence


Contributory Negligence

Negligence on the part of the plaintiff that contributes to her injuries. Completely bars plaintiff's right to recovery (minority view)


Assumption of Risk

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have
1. known of the risk and
2. voluntarily proceeded in the face of the risk


Pure Comparative Negligence

Defendant shows that the plaintiff failed to exercise reasonable care for their own safety. Allows no recovery no matter how great or small the plaintiff's negligence was. (minority view)


Partial Comparative Negligence

Defendant shows that the plaintiff failed to exercise reasonable care for their own safety, the jury will award a percentage and the plaintiff's recovery will be reduced based on their amount of fault.


Liability for Abnormally dangerous activities

Strictly liable if:
1. the activity creates a foreseeable risk of serious harm even when reasonable care is exercised and
2. the activity must not be common in the place where defendant conducts it.


Products Liability -Strict Liability (Elements)

1. strict duty owed by commercial supplier
2. breach
3. Actual and proximate causation
4. damages


Defects for Products Liability

1. Manufacturer Defect
2. Design Defect
3. Information Defect


Manufacturing Defect

The product differs from all the others that came off the assembly line in a way that makes it more dangerous than consumers would expect, or when it departs from its original design.


Design Defect

There is another way that could have been built.
1. alternative design must be safer than the version that was actually sold
2. Alternative design must be economical and
3. Alternative design must be practical


Informational Defect

A product cannot be physically redesigned and still has residual risks that consumers would not be aware of and it lacks warning about those risks.


Private Nuisance

a substantial, unreasonable interference with another private individual's use or enjoyment of his land or land in which he has an interest


Vicarious Liability

Someone commits a tort and the victim wants to sue a second defendant unrelated to the injury.


Relationships for Vicarious Liability

1. Employer/Employee
2. Hiring Party/Independent contractor
3. Owner of a car/ driver of a car
4. Parents/children


Loss of Consortium

Uninjured Spouse gets causes of action for:
1. Loss of Services
2. Loss of Society
3. Loss of Sex


Theories of products liability

1. Intent
2. Negligence
3. Strict liability
4. Implied warranties of merchantability and fitness for a specific purpose
5. Expressed warranties and misrepresentation


3 ways to satisfy intent for IIED

1. Desire & purpose to cause emotional distress; or
2. with knowledge with substantial certainty that emotional distress will result; or
3. extreme and outrageous conduct is that beyond all possible bounds of decency.


Recapture of Chattels

A property owner has the general right to use reasonable force to regain possession of chattels taken by someone else.


Shopkeeper's privilege

Shopkeepers have privilege to temporarily detain individuals whom they reasonably believe to be in possession of shoplifted goods.



Defendant's conduct imposes an unreasonable risk upon another, which results in injury to that other person. Plaintiff must prove, duty, breach, causation and actual damage.


Duty of Care

A person has a duty to act as a reasonable person. Discuss Standard of Care and if Foreseeable plaintiff.


Express Warranty

an express warranty is any statement of fact or promise concerning goods.


Implied Warranty of Merchantability

An implied warranty of merchantability is implied in every sale of goods that they are fit for the ordinary purposes for which the goods are used.


Warranty of Fitness for Particular Purpose

implied in every sale of goods when the seller knows or has reason to know that the buyer wants the goods for a particular purpose and the buyer relies on the seller's judgment to recommend a suitable product.


Public Nuisance

A substantial, unreasonable interference with the health, morals, welfare, safety or property rights of the community.


Publicity of Private life

the public disclosure of private facts that re not a matter of legitimate public concern, the release of which is objectionable to a reasonable person where the disclosure is communicated to the public at large.


Respondeat Superior

if an employee commits a tort during the course of the scope of his employment, his employer will be jointly liable with the employee.


Joint and Several Liability

exists where two or more negligent acts combine to proximate cause an indivisible harm, making each defendant liable for the entire harm.



allows a defendant who pays more than his pro rata share of responsibility to obtain reimbursement form another defendant.



the shifting of the responsibility for the entire loss from one defendant to another.