Torts Flashcards
0
Q
When does a Tort occurs?
A
When a person violates a duty to others
1
Q
What is a tort?
A
Is a civil wrong doing that is the basis for legal cause of action
2
Q
When does a Tort occurs?
A
When someone deliberately or through carelesness causes harm or loss to other person or its property.
3
Q
What is an intentional tort?
A
Is a category of torts that describes a civil wrong resulting from an intentional act.
4
Q
Mention few intentional torts
A
Assault
Battery
False imprisonment
5
Q
What is assault?
A
Is the threat of immediate harm or offensive contact
6
Q
What is battery?
A
Unauthorized, harmful or offensive physical contact with another person
7
Q
In battery what is the interest protected?
A
The persons reasonable sense of dignity and safety
8
Q
Does battery has to be a direct contac?
A
No, it could be a stone trown, a bullet, poison, pulling a chair.
9
Q
How is from target to actual victime called?
A
Doctrine of transferred intent
10
Q
What constitutes false imprisonment?
A
The intentional confinement or restrain of one person without authority or justification and without that persons consent.
11
Q
Mention few reasons why a suspected shoplifter can be detained without the store been liable for false imprisonment?
A
There are reasonable ground of suspicion
The suspect is only detained for a reasonable amount of time
The investigations are done in a reasonable manner.
12
Q
What is defamation of character?
A
Is false statements by others
13
Q
For defamation, what does the plaintiff has to prove?
A
That the defendant made an untrue statement of fact about the plaintif and
That the statement was intentionally or accidentally published to a third party
14
Q
What are the merchants protection statutes?
A
There are reasonable ground for suspicion
That the suspect is detained for a reasonable time
That investigations are conducted in reasonable mater
15
Q
What are these?
There are reasonable ground for suspicion
That the suspect is detained for a reasonable time
That investigations are conducted in reasonable mater
A
The Merchant Protection Statutes
16
Q
What does publish mean?
A
That a third person saw or heard the untrue statement
17
Q
What does SLANDER mean?
A
That the defamation statemen is oral
18
Q
If the defamation statement is oral it is called?
A
Slander
19
Q
What does Libel mean?
A
That the false statement appears in a book, letter, newspaper, movie, radio or video
20
Q
If a false statement appears in a book, movie, radio, Tv, video or newspaper it is called?
A
Libel
21
Q
Is an opinion the same as statement of fact?
A
No, an opinion is protected from defamation
22
Q
What is truth?
A
It is a complete defense
23
Q
What is a complete defense called?
A
A TRUE
24
What does actual malice mean?
That the defendant made the false statement knowingly or with reckless disregard of its falsity
25
In what case did the Supreme Court held that public officials cant recover from defamation unless they can prove the deffendant acted with ACTUAL MALICE.
New York Times v. Sullivan
26
In a Misappropiation of the right to publicity the plaintiff can
Recover unauthorized profits
And
Obtain an injunction
27
What is invation to the right of privacy?
Is the violation of the persons right to live without being subject to unwarranted and undesired publicity
28
Give examples of Invation of the Right of Privacy
Reading others mail and wiretapping
29
What is IIED?
Intentional Infliction of Emotional Distress
30
What does a plaintiff has to prove to an IIED?
That the defendas conduct was of extreme degree and intolerable in a civilized society.
That his mental distress was sever and presented nausea, ulcers and headaches.
31
Name types of Properties in Torts
Real property and
| Personal property
32
What is real property?
Land or anything attached to it
33
What is personal property?
Cars, jewlery, cloths, pets
34
What is Trespass to land mean?
Is the interference with the owners right to exclusive possesion of the land
35
Give two Intentional
| Infliction of Emotional Distress
Trespass to land
And
Trespass to personal property
36
What is traspass to personal property?
Is when one person injures anothers personal property and interfears with the property enjoyment
37
How is the negligence in a Tort
Unintentional
38
What is negligence?
Is the failure to act in a reasobable way or not to be prudent.
It is the omission to do something which a reasonable person would do.
39
What are the elements of negligence?
Tortfeasor owed a duty of care to plaintif
The defendant breached that duty
The plaintiff suffered injury
The breach cause the injury
40
What is Duty of Reasonable care?
Is the obligation we owe each other not to cause any harm or risk of harm
41
What is a Business duty?
To make safe products and not to cause accidents
42
Give example of personal duty
Drive carefully, not to push anybody on the escalator
| Not to live skateboards on a side walk
43
What is an objective, careful and conscientious person of act in the same circumstances called
Reasonable persons standard
44
What does subjective intent mean?
That he didnt mean to do that
45
What is a breach?
Is the feilure to exercise care
It is the failure to act as a reasonable person would act.
Could be an act or the failure to act.
46
Is every breach actionable?
No, unless there is an injury.
| No injury no tort
47
Cause-in-fact equals to?
But for
48
For cause- in- fact the plaintiff must do what?
Produce suficiente evidence of cause- in-fact
49
Give an example of cause-in-fact case
Caranna v. Eades
| The kid foling from the hotels balcony
50
What is a concurrent cause case?
When two or more events of negligence result in an injury
51
In a but for test what happens to the defendant?
He is prevented from avoiding liability
52
When does the substancial factor test applies?
When two ore more events contribute an undivisible injury
53
What does preponderance mean?
More likely than not
54
More likely than not is?
Preponderance
55
What does proximate cause do?
It determines the scope of the defendants liability
56
What is legal duty concerned with?
The Foreseeable risk in the general sense
57
What is proximate cause concerned with?
If the defendant could foresee the risk which cause the accident that injured the plaintiff
58
Proximate clause equals to
Foreseeability
59
Who introduced the foreseeability concept?
Andrews J. In the seminal case of
| Palsgraf v. Long Island RR
60
What is the foreseeable concept applied for in courts?
To limit the defendants liability on the basis of fairness and policy consideration
61
What does RES IPSA LOQUITUR mean?
The thing speaks for itself
62
How is the thing speaks for itself called in italian?
Res Ipsa Loquiture
63
When does RES IPSA LOQUITURE applies in court?
If a deffendnt is in control of a situation in which the plaintif was injured
64
When might a plaintif have difficulty on proving negligence?
When the defendant is in control of a situation in which the plaintif was injured and has superior knowlwdge of the circumstances sorrounding the injury
65
What does the RES IPSA LOQUITURE doctrine raises?
A presumption of negligence and switches the burden to the defendant to prove the he was not negligent
66
When does RES IPSA LOQUITURE applies?
The deffendan had exclusive control over the instrumentality or situation that caused injury
The injury had not occurred BUT FOR someones negligence
67
What is Liability of landowners?
Is the owners or renters of real property duty to protect visitors from injury
68
What does the liability depends on?
On the visitors status
69
What kind of duty are the invitees and licensees owed?
The duty of ordinary care
70
What kind of duty are traspasees owed?
A duty not to willfully injure a traspaseer.
71
What are the defenses against negligence?
```
1- supersiding or intervining event
2- assumption of the risk
3- contributory negligence
4- comparative negligence
5- doctrine of strict Liability
```
72
What is Supersiding or intervining event?
Is when a person is liable for a forseeable event
73
What can a defendant raise as defense for liability?
A superseding event
74
What does foreseeable mean?
To see or know beforehand
75
What is assumption of risk?
When the plaintiff knows the risk and assumes it
76
What is contributory negligence?
A plaintif is partially at faul for the injury
77
What is comparative negligence?
Damages according to the portion of the fault
78
What kind of negligence has Texas addopted in court?
Partial comparative negligence
79
In comparative negligence what is the percentage taken under consideration?
If Is the plaintif is 50% or more negligent he gets nothing
80
What is DOCTRINE OF STRICT LIABILITY?
Is the liability applied to business of selling
81
When does the Doctrine of Strict Liability applies?
For products not services
82
Who is liable under the Doctrine of Strict Liability?
All parties in the line of distribution
83
In Texas, what is the Statute for Medical Malpractice?
2 years
84
What is the discovery rule?
The discovery Rule does not apply in Texas.
| The malpractice starts when it happens
85
What is the cap for Medical Malpractice in Texas?
$250,000
86
What change the Medical Malpractice in Texas?
The Tort Refom
87
What do you have to consider for Medical Malpractice?
The statutes of limitation
The Discovery Rule
The tort reform
88
What do you have to consider in Legal Malpractice?
The Statutes of Limitation
| What you must prove
89
What is Damage?
It is a physical harm caused to something that impairs its value, usefullness or normal function
90
What is damages equal to?
Money
91
Name the kinds of Damages
Compensatory damages
Punitive damages
Speculative damages
Statutory damages
92
How is Compensatory damages also called?
Actual damages
93
What does compensatory damages include?
```
Medical cost
Repair or replacement costs
Lost wages
Pain and suffering
Loss of employment
```
94
How are compensatory damages normally divided?
Into economical and
| Non-economical damages
95
What are punitive damages also called?
Exemplary damages
96
How are the damages awarde in punitive damages?
As a penalty or punishment to the defendant
97
What are punitive damiges awarded for?
Non compensatory, non economic or economic
98
How is speculative damages also called?
Future damages
99
Explain speculative damages
Are damages that have not occured but are expected to occure as result of the injury
100
What are Statutory damages?
Damages that are set by Statute
101
What are Attorneys fees?
They are damage
102
How can attorneys fees be set?
By statute or by contract
103
What is IOLTA
```
Interest
On
Lawyers
Trust
Account
```
104
What goes into IOLTA?
The money the client pays
105
Who gets the interest of IOLTA?
The State Bar to fund legal services
106
What is the case of the baseball game called?
Manning v. Grimsley
107
What is the car seat case al Kmart called?
Johnson v. Kmart
108
Name the four elements of negligence
The tortfeasor owed a duty of care
The defendant breached that duty
The plaintiff suffered injury
The injury was caused by the breach
109
What test requires that the plaintiff prove by a preponderance that if not for the defendants negligence act....
The but for test
110
If the but for test fails what test does the court supply?
The substantial test
111
Landowners owe a duty of?
Ordinary care
112
What is subjective intent?
The duty not to cause harm
113
Foreseeability equals to?
Proximate care
114
Res Ipsa Loquitur is?
The thing speaks for itself
115
Explain the Discovery Rule
The Statute of Limitation start when you discover the injury
116
Proximate cause has to do with?
Forseability of the risk
117
All parties in the chain of distribution are................
| For injuries cause by the defective product
Strictly liable
118
If someone uses my photo and makes money without my consent, they constitute the civil tort of?
Invasion of the Right of privacy
119
An unintentional tort is?
A negligent tort
120
Categories of visitors
Invitees
Traspaseers
Licensees
121
In a but for test the defendant is prevented from.....
Aboiding liability
122
In a but for test the defendant is prevented from.....
Aboiding liability
123
if someone attempts to use my name or personality commercially without my permission, that may be the tort of?
misapropiation to the right of publicity
124
If a person's extreme and outragwous conduct intentionally causes severe emotional distress to someone else, that might be?
IIED
125
......................is interference with an owner's right to exclusive possession of land.
traspasee to land
126
When a person injures, or interferes with the enjoyment of another person's property, that could be the tort of?
traspasee to personal property
127
the failure to exercise care is called?
breach
128
when trying to determine the cause.in.fact in a negligence suit, the court will use the................................. test. If that test fails, courts will use the .................................test
but for
| subtantial test
129
Invitees and licensees are owed a duty of................
ordinary care
130
If a person knows of, and voluntarily enters into a risky activity, that is known as...................
asumption of the risk
131
Explain contributory negligence
when a person breaches the duty of ordinary care and causes injury, s/he can be held entirely or partially responsable for the resulting injury
132
explain partial comparative negligence
if the plaintiff negligence excedes 50% of the responsibility s/he is completly forbiden from recovering damages
133
give example of a non-economic damages
pain and suffer
134
the purpose of punitive damages is to-------------
punish
135
what goes into IOLTA
the unearned attorney's fees
