Torts - Specific Questions Flashcards
(120 cards)
1
Q
Two testable elements for false imprisonment
A
1) D must commit an act of restraint
2) P must be confined in a bounded area
2
Q
True or false: threats can constitute restraint with regards to false imprisonment
A
True
3
Q
Two noted insufficient acts of restraint for false imprisonment
A
Moral pressure and future threats
4
Q
When can omission create false imprisonment liability?
A
Failure to release P when D is under a legal duty to do so.
5
Q
True or false: P must be aware of confinement or harm for false imprisonment.
A
True
6
Q
Is it relevant how short the period of time the confinement is for false imprisonment?
A
No.
7
Q
What is a bounded area for false imprisonment purposes?
A
Freedom of movement must be limited in all directions. There must be no reasonable means of escape known to the plaintiff.
8
Q
How can a way out of a space not be reasonable enough, thus constituting a bounded space?
A
Dangerous, disgusting, humiliating, or hidden.
9
Q
Are actual damages required for false imprisonment?
A
No, P can recover for nominal damages or punitive damages (if D acted maliciously).
10
Q
Two testable elements for IIED
A
An act by D amounting to extreme and outrageous conduct
and
P must suffer severe emotional distress
11
Q
What is extreme and outrageous conduct, generally, for IIED?
A
Conduct that transcends all bounds of decency.
12
Q
Conduct that is not normally outrageous may become so if:
A
It is continuous in nature
OR
It is committed by a certain type of defendant
OR
It is directed toward a certain type of plaintiff.
13
Q
Unlike for other intentional torts, __________ as to the effect of D’s conduct will satisfy the intent requirement for _____.
A
Recklessness; IIED
14
Q
True or false: Mere insults are not considered outrageous for IIED.
A
True
15
Q
While there are more, what are the hallmarks of outrageousness for IIED (3):
A
1) Repetitive in nature
2) D is a common carrier or innkeeper (who might be liable even for mere gross insults)
3) Plaintiff is a member of a fragile class of persons (young, elderly, pregnant [with awareness], supersensitive adults [if D is aware of supersensitivity])
16
Q
Which intentional tort does require actual damages?
A
IIED, which requires that the P must show they suffered severe emotional distress, but proof of physical injury generally is not required.
17
Q
In bystander IIED cases, what must the third person bystander show?
A
P must show PF elements of IIED, OR that (1) they were present when the injury occurred, (2) the distress resulted in bodily harm or the plaintiff is a close relative of the third person, and (3) the D knew these facts.
18
Q
What are the three intentional torts to property?
A
1 Trespass to land
2 Trespass to chattels
3 Conversion
19
Q
Testable elements for trespass to land:
A
Physical invasion
Of real property
20
Q
Invasion onto real property can be by person or object, but not intangible matters such as:
A
Noise, vibrations, odor (can constitute nuisance)
21
Q
Who can sue X for trespass to land?
A
The person with the right to possess the land, not simply the owner.
22
Q
What is the intent required for trespass to land?
A
D need intend only to enter onto that particular piece of land; need not know that the land belonged to another.
23
Q
What does land include for purposes of trespass to land?
A
Air above and soil below, to a reasonable distance.
24
Q
The key testable element for trespass to chattels is:
A
Act by D that interferes with the plaintiff’s right of possession in a chattel.
25
Main difference in type and difference in outcome between trespass to chattels and conversion.
Conversion has more serious interference (longer period, more extensive use), and conversion requires that the D pay the chattel's full value.
26
Are actual damages, not necessarily to the chattel, but at least to a possessory right, required for trespass to chattel?
Yes.
27
What is the intent required for trespass to chattels / conversion? Is mistake of ownership a defense?
Intent to do the act of interference is all that is needed; no, mistaken belief of ownership is not a defense.
28
Consent fact patterns raises two questions:
1- Was there valid consent (need capacity)?
2- Did the D stay within the boundaries of the consent?
29
True or false: persons with limited capacity, such as older children and persons with mild intellectual disabilities, can consent, but only to things within the scope of their understanding.
True
30
Two main types of consent
Express (actual) consent
Implied consent
31
What are the three exceptions to express (actual) consent? These are extremely common testable matters.
1) Mistake will under consent if the D knew of and took advantage of the mistake; 2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and (3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.
32
What are the two types of implied consent?
1- Apparent consent (custom or usage)
2- Implied by law (necessary to save someone's life or some other important interest in person or property)
33
What are the three protective privileges?
Self-defense
Defense of others
Defense of property
34
When a question involves the protective privileges?
1- Was it in the heat of the moment (was the timing right?)
2- Is a mistake permissible as to whether the tort being defended against is actually being committed?
3- Was a proper amount of force used?
35
What is the main difference between private and public necessity?
Private necessity protects D's own interest (or a more limited interest), so they will be liable for any injury they cause.
36
Must a landowner usually make a request to desist before using force to defend property?
Yes, unless the request would be clearly futile or dangerous.
37
Four traditional elements of negligence
Duty
Breach
Causation (Factual and Proximate)
Damages
38
When confronted with a negligence question, you should always ask what two questions?
To whom do you a duty?
What is the applicable standard of care?
39
What is duty?
Legally imposed obligation to take risk reducing measures
40
To whom do you owe a duty?
Foreseeable victims
41
Is self help allowed for reentry onto land? Essentially, is P allowed to use force to get back onto the land that D came into possession of tortiously?
No, must follow modern procedures such as ejectment.
42
When is a rescuer a foreseeable plaintiff?
Rescuers are foreseeable plaintiffs when the D negligently put themselves or a third person in peril.
43
Do children under the age of 5 owe a duty of care?
No
44
Do children between the ages of 5-18 owe a duty of care?
Yes, a special standard of acre for a hypothetical child of the same age, experiences, and intelligence.
45
If a child is engaged in an adult activity, like operating a motorized vehicle, what is the standard of care?
Reasonably prudent person standard (adult standard)
46
What is the special standard of care for professionals (malpractice)?
Must exercise the same care as average member of profession providing similar professional services
47
For malpractice questions, why does the switch from "reasonable" to "average" matter?
No longer looking at a hypothetical person, now must conform to colleagues, customs, and empirical standards
48
Is a duty owed to undiscovered trespassers?
No.
49
For discovered (known) or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:
1- Artificial
2- Highly dangerous
3- Concealed from trespasser
4- Known to the land possessor in advance
50
What is a licensee
Enters land with permission but without financial benefit to possessor
51
What are common licensees?
Social guests, solicitors from businesses, children selling something, politicians canvasing.
52
What duty is owed to licensees and how is it triggered?
Duty to protect licensees from all known traps; triggered if concealed from licensee and if known by possessor
53
What are invitees?
Enters land with permission for financial benefit of possessor.
54
Who are typically invitees?
Customer of a business
Churchgoers (open to public)
55
Duty for invitees
Duty if:
- Concealed from invitee
- Known by possessor OR could have been discovered through reasonable inspection
"All reasonably known traps"
56
How does one satisfy premises liability duty?
Eliminate hazard condition (repair, replace, remove) OR Warn about hazard condition
57
Firefighters and Police Officers Special Rule
No duty owed for risks inherent to job
58
Trespassing children special rules for premises liability
Duty of a reasonably prudent person under the circumstances to protect from artificial hazards on the land.
59
What is the attractive nuisance doctrine?
Children are especially attracted to something, that makes your need to protect trespassing children from artificial hazards even greater. I.e., being reasonable requires more effort.
60
May an invitee lose their invitee status if they exceed the scope of their invitation?
Yes.
61
Establishing negligence per se
Convince court to borrow criminal statute (legal)
Show that the D violated the statute (factual)
62
When will a criminal statute replace duty of care?
1) Plaintiff is within protected class (students, patients, children, customers, etc.)
2) The Statute was designed to prevent the type of harm suffered by the plaintiff
"Class of person, class of risk"
63
What is the exception to negligence per se?
If following the statute would be more dangerous than violation, then NPS is not allowed.
64
True or false: generally, one does not have a legal duty to act or to rescue.
True
65
What are the four exceptions to the general no duty to act rule.
1- Special relationship
2- Peril due to own conduct
3- Assumption of duty by acting
4- Duty to prevent harm from third persons (actual ability and authority over that third person)
66
Assume there is no Good Samaritan law, unless specifically told so. What is that?
Laws that exempt certain people from liability from ordinary negligence when undertaking saving measures.
66
What are the special relationships that create a duty to act?
- Parent child
- Common carriers
- Innkeepers
- Shopkeepers
- Anyone that gathers the public for their own profit
67
Three types of NIED cases
Near miss cases
Bystander cases
Special relationship between plaintiff and defendant
68
Requirements for Near Miss NIED case
Negligent creation of foreseeable risk of physical injury AND
Plaintiff must be within the zone of danger AND
Plaintiff must suffer physical symptoms from the distress
69
Elements of bystander NIED cases
Negligent injury to another
AND
The plaintiff and the person injured by the D are closely related
AND
The plaintiff was present at the scene of the injury and personally observed or perceived the event
70
Special relationship between P and D NIED cases: what must be shown
Highly foreseeable that IED will occur from negligent business conduct (Drs, mortuary, etc.; not customer / dry cleaner)
71
What doctrine is used by P who do not know what D did wrong, but they know the event does not typically happen unless negligence occurred. (Used in absence of showing the 'breach' element).
Res Ipsa Loquitur
72
What must P show to prove Res Ipsa Loquitur
- Accident is normally associated with negligence
- Accident would normally be due to negligence of someone in D's position
73
Does res ipsa loquitur establish breach of duty as a matter of law?
No, but the fact that a particular injury occurred (RIL) tends to establish the breach of a duty owed, but it does not automatically
74
What is the main effect of P's proper reliance on res ipsa loquitur (i.e., the two prongs have been satisfied)?
D cannot be granted a directed verdict.
75
A D's rebuttal to but for causes arguments will almost always begin with what two words?
Even if
76
Two distinct sub-"but-for" test cases:
Merged causes--substantial factor test (AB Fire)
Unascertainable causes approach (shifting BoP to Ds)
77
What is the one question you ask for proximate causation? What is the other word that represents a better overall analysis?
Foreseeability. Fairness (don't use this word on essays).
78
What are the rough guidelines for determining foreseeability?
- Passage of time
- Geographic Distance
- Prior Occurrence
79
What are the four common foreseeable intervening forces?
- Medical malpractice
- Negligence of rescuers
- Protection or reaction forces to the D's conduct, including efforts to protect person or property
- Disease or accident substantially caused by the original injury.
80
Intervening forces that produce unforeseeable results are generally deemed:
superseding forces that break the causal connection between D's initial negligent act and P's ultimate injury.
81
Is a criminal act by a third person a foreseeable intervening force for which D can be liable?
Yes, but only when P can show that D's negligence increased the risk that the force would cause harm to P. (E.g., a valet negligently leaves the keys to a car in an unlocked car).
82
What is the main testable rule under the damages prong in a negligence claim?
The Eggshell-Skull plaintiff rule.
83
What is the eggshell skull plaintiff rule?
D is liable for all damages to P, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.
84
What is the comparative negligence defense?
P's contributory negligence is not a complete bar to recovery (merely reduction of recovery amount), unless P's fault is more serious than D's negligence (in majority states that have adopted partial comparative negligence).
85
Most courts hold that violation of an applicable criminal statute:
is negligence per se.
86
Elements of strict liability under products liability
D is a merchant
Product is defective
The product was not substantially altered since leaving D's control
P was making a foreseeable use of the product at the time of the injury
87
Three types of defects for strict liability purposes (products liability):
1- Manufacturing Defects
2- Design Defects
3- Information Defects
88
How must P show alternative design under design defects products liability (strict liability)?
1- Would have been safer
2- Was practical
3- Was economically feasible
89
When does a product have an information defect? When does this fact pattern come up?
Hidden risks without adequate warnings or instructions. Comes up with products that are impossible to not make a bit dangerous or more.
90
What is an adequate warning for information defects problems?
Prominent
Comprehensible
Provide information about mitigating risk
91
True or false: there is a presumption that product moved in ordinary channels of distribution and has no alteration, unless D can affirmatively show that P made alteration(s).
True
92
True or false: Foreseeable uses of products means intended or appropriate use.
False, foreseeable uses is broader.
93
For a defense to strict liability, unless the question mentions "traditional rule," assign percentages of comparative responsibility under what rule? What is the traditional rule?
Comparative negligence; contributory negligence.
94
When may an activity be characterized as abnormally dangerous?
If it creates a foreseeable risk of serious harm even when reasonable care is exercised by all actors.
95
Is whether an activity is abnormally dangerous or not a question of fact or a question of law?
Question of law that the court can decide on a motion for a directed verdict.
96
If an animal attacks a trespasser, will the owner be held strictly liable?
No, must look for negligence.
97
Under what circumstances may a claim for strict liability for an abnormally dangerous activity be negated?
If P was not foreseeable
If the type of harm was not foreseeable
Maybe, an unforeseeable intervening force (can severe the causal chain)
98
True or false: the failure of a retailer to take action after discovering a dangerous defect may prevent establishing causation against a manufacturer in a strict products liability action.
True
99
What must P show for a claim of nuisance?
Interference (substantial or unreasonable) with use / enjoyment of real estate.
100
For employer-employee vicarious liability, what is the big question?
What is the scope of employment? Has the employee departed from the scope of employment (minor or major departure)?
101
True or false: intentional torts are included in the scope of employment vicarious liability doctrine.
False, negligence or less (unless one of three exceptions apply).
101
Three exceptions for intentional torts to be included in the vicarious liability (employer employee) doctrine?
- Employee is furthering the business of the employer
- Force is authorized in the employment
- Friction is generated by the employment (e.g. bill collector)
102
In vicarious liability situations, how are the Ds liable?
Joint and several liability, with contribution and indemnity as another relevant doctrine
103
True or false: An employer owes a duty to all those who may foreseeably come into contact with his employee to exercise due care in the hiring, supervision, and retention of the employee.
True
104
In general, the hiring party will not be vicariously liable for the tortious acts of an independent contractor when the hiring party does not control the manner and method in which the independent contractor performs the job. What is the nondelegable exception?
Where a duty is simply nondelegable, such as the duty of a business to keep its premises safe for customers.
105
Fault required for defamation depends on plaintiff:
Private person: Negligence
Public figure: Knowledge or reckless disregard
106
Slander per se categories:
- Business / profession
- Serious crime
- Serious sexual misconduct
- Loathsome disease
107
_______ is a defamation that is embodied in permanent form.
Libel
108
If slander is outside of per se categories, P must prove _________ _______ ?
Economic harm
109
Affirmative defenses to defamation:
- Consent
- Truth
- Privileges
--- Absolute (Communication between spouses; remarks made during judicial proceedings, by legislators, by executive officials, in "compelled" broadcasts....)
--- Qualified (arises only when there is a public interest in encouraging candor)
110
Common qualified privileges under defamation:
- References and recs
- Reports of public hearings or meetings
- Statements made to those who are to take official action
- Statements made to defend one's own actions, property, or reputation
111
Invasion of right to privacy claims are personal rights, what does that mean?
- Does not survive death of P
- Does not extend to members of a family
- Is not assignable
112
Four common invasions of right to privacy
- Appropriation of the plaintiff's picture or name
- Intrusion on P's affairs or seclusion
- Publication of facts placing the plaintiff in a false light
- Public disclosure of private facts about the plaintiff
113
What is an intrusion for invasion to privacy?
Invasion of P's seclusion (must have a reasonable expectation of privacy) in way that would be unreasonable or offensive
114
False light (invasion of privacy) definition:
Dissemination of material falsehood about P that would be highly offensive to reasonable person; D must be at least malicious (or knowledgeable)
115
True or false: the very same behavior can be both defamation and false light.
True, but the overlap is not 100%. The primary difference is what type of damages you go for (defamation --> Economic; false light --> emotional).
116
The public discloser of private facts about P must be:
Highly offensive to a reasonable person, and there must not be a newsworthy exception (1st Amendment). Remember, must be private fact!
117
Defenses to invasion of privacy claims:
- Consent
- Absolute and Qualified privileges (false light and public disclosure of private facts)
118
