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86 Cards in this Set

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To Establish a Prima Facie Case for intentional tort liability, what must the plaintiff prove?
1. Act by the Defendant
2. Intent, and
3. Causation
What are the 2 types of intent that are possible for Intentional Tort liability, define each.
1. Specific Intent, meaning that in acting, the actor's goal was to bring about these consequences.
2. General - General Intent occurs when the actor knows with substantial certainty that these consequences will result.
What is transferred intent?
Transferred intent applies where a D intends to committ a tort against one person, but instead (i) commits a different tort against that same person (ii) commits the same tort as intended but against a different person, or (iii) commits a different tort against a different person. In such cases, the intent to commit a tort against one person is transferred to the other tort or to the injured person for purposes of est. a prima facie case.
What are the elements (prima facie) for battery?
Under tort law, battery is an act that is intended to and does cause offensive or harmful contact to victim’s person or property.
What is an Assault?
Under tort law, assault is an act that is intended to and does cause the reasonable apprehension of an immediate battery
What is False Imprisonment?
Under tort law, false imprisonment is an act on the part of the defendant that intends to and does cause the confinement of plaintiff to a bounded area of which plaintiff is aware or is injured by.
What is Intentional Infliction of Emotional Distress?

Why are courts reluctant to recognize the tort?
a. IIED occurs when a defendant’s actions amount to extreme and outrageous conduct, such actions were committed by the defendant with the intent to cause the P to suffer severe emotional distress, or with recklessness as to the effect of the actions on the plaintiff, and such actions are the proximate cause of the Plaintiff’s severe emotional distress.

Courts are often reluctant to recognize IIED because it is difficult to prove "shock"that does not result in physical injury, shock is easily falsified, and a fear of a flood of litigation.
What are the special rules for Bystander IIED cases?
Plaintiff must show that she was present when the injury occured to the other person, that she was a close relative of the injured person; and the D knew that the p was present and a close relative of the injured person.
What is a trespass to land?
For a trespass to land to occur, the defendant must act, with the intent to bring about a physical invasion of plaintiff's real property, with such physical invasion being caused by the defendant's actions.
What is Trespass to Chattels?
Under tort law, trespass to chattel is an intentional interference with another's use and enjoyment of personal property
What are the 2 types of interference that give rise to a trespass to chattels?
i. Two types of acts constitute the interference giving rise to a trespass to chattels:
1. intermeddling – an intermeddling is conduct by D that in some way serves to directly damage p’s chattels – eg, denting p’s car, striking p’s dog.
2. Dispossession – a dispossession is conduct by the D serving to dispossess P of his lawful right of possession.
What is Conversion?
Under tort law, conversion is the intentional interference with the property of another that is serious enough in nature or consequence that the defendant should be required to pay the full value (FMV)of the property. (D keeps property)
What is Defamation? (Prima Facia case)
A. Defamation
a. A D defames a P when the D has made Defamatory Statemnts about ("of or concerning") the P, and has communicated the statements to a third person able to understand the statements(publication), causing injury to the Plaintiff’s reputation.

For a public figure, the plaintiff must also show 1. Falsity of the defamatory lanugage and Fault (malice - knowledge statement is false/reckless disregard to truth or falsity) on the D's part.
What must a P est in a defamation case where the statement does not clearly refer to the plaintiff?
P must establish colloquium to show that he was the one intended.
What happens when a statemetn is not defamatory on its face?
The P must plead extrinsic facts (INDUCEMENT) and est. the defamatory meaning from them by innuendo.
What are the SLANDER PER SE categories in which injury to the P's reputation is presumed?
I) Business or profession
II) Crime involving moral turpitude
III) Loathsome disease (leprosy or venereal disease)
IV) Imputing unchastity to a woman.
Whatis "Publication of private facts about plaintiff"?
a. A publication of a private facts about a plaintiff occurs when the D publicizes (with wide dissemination) facts about the P that a reasonable person would object to the publication of.
What is "interference with business relations?"
Interference with business relations occurs when the D knowingly interferes the P's valid business relation with a third person, and causes damage to the P.
What are the defenses to interference with business relations?
i. Competitors Privilege: IF the P and D are competitors, there is a privilege to cover interferences with prospective relationships.

ii. If the D is related to the 3rd person in the P’s business relationship—close relatives, or involved in an ongoing professional relationship, or if the D has a financial interest in the 3rd person, then this is privilege to interference with a business relationship.
What are the 2 types of consent (defense to intentional torts?) and when are they present
Express contsent exists where the plaintiff has expressly shown a willingness to submit to the D's conduct.

Implied consent: Apparent consent -- consent which a reasonable person would infer from P's conduct (engaging in a contact sport)

Consent implied by law -- consent implied in an emergency situation where the P is incapable of consenting and a reasonable person would conclude that some contact is necessary to prevent death/ serious harm.
Is it possible to consent to a criminal act?
THe marjority view is that a person cannot consent to a criminal act. The modern trend is to allow consent to illegal acts that are not a breach of the peace (prostitution) but not allow consent to those that are (street fight).
When is self defense permitted as a defense to intentional torts?
When a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as reasonably necessary for protection against the potential injury.
When is the defense of others a defense to an intentional tort?
WHen the actor has a reasonable belief that the person aided would have the right of self defense. The defender may only use the force that the defended would be permitted to use for himself.
When is a person permitted to enter upon another's land to remove chattel?
Wrongdoer's land: must make a demand for chattel return (refused) before entering in a reasonable manner and at a reasonable time.

For an innocent party's land: must give notice of the presence of the chattel (followed by Landowner's refuse to return chattel) Then the chattel owner is permitted to reclaim the chattel in a peaceful manner at a reasonable time.

No privilege if the chattel comes to be on one's land through the fault of chattel owner.
When is necessity a defense to an intentional tort?
A person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
See page 21 for private/ public necessity.
When does a plaintiff have a COA for Defamation?
A D is liable for defamation when he uses defamatory language "of or concerning" (discernable as the P to a reasonable viewer/reader/ etc)the plaintiff, and (publication) communicates the defamatory language to a third person that understands the statement, causing damage to the reputation of the plaintiff.

Where the P is a public figure or involves a matter of public concer, the P must also prove the falsity of the defamatory language, and fault on the part of the D.
When is a statement of opinion defamatory?
A statement of opinion is actionable only if it appears to be based on facts, and an express allegation of those facts would be defamatory (Don't think rob should be trusted with the cash register.)
When is a D liable for invasion of right to privacy by Appropriation of the P's picture or name?
A D is liable for invasion of the P's right to privacy by Appropriation of Plaintiff's Picture/ Name when the D Uses the P's picture or name without P's authorization to his (D's) commercial advantage.
When does a P have a COA for invasion of right to privacy for intrusion on the P's Affairs or Seclusion?
To est. a prima facia case for invasion of privacy--intrusion on P's Affairs or Seclusion-- the P must show that the D has committed an act of prying or intruding on the private affairs or seclusion of the P, and the intrusion is something that would be objectionable to a reasonable person.
When does a P have a COA for invasion of privacy--Publication of facts placing P in False Light?
To prove publication of facts placing P in False Light, the P must show that the D published facts about P placing P in a false light in the public eye, and the "false light" is something that would be objectionable to a reasonable person. (D malice is req. where the published matter is in the public interest.) "Publicity" concerning the false light facts requires more than "publication" in the defamation sense"
When is the D liable for Public Disclosure of private facts about P?
To establish a prima facie case for invasion of privacy-public disclosure of private facts about P, the P must show that the D published or publicly disclosed private information about the P, and the matter made public is such that a reasonable person would object to having it made public. *If the matter is one of legitimate public interest, and is made w/out malice, then the publication is privileged.
To whom does the right of privacy extend?
The right of privacy is a personal right and does not extend to members of a family, nor does it apply to corporations.
What must the P show to est. a prima facie case of intentional misrepresentation, fraud, or deceit?
To est. a prima facie case of IM, fraud, or deceit, the P must show that the D intentionally made a misrepresentation with the intent to induce the P's reliance on the misrepresentation, causing the P to actually and justifiably rely on the misrepresentation, causing damages (actual pecuniary loss) to be accrued by the P.
What is negligent misrepresentation?
Under Tort Law, negligent misrepresentation is a misrepresentation made by D in business or professional capacity, in breach of a duty toward a particular plaintiff, causing actual and justifiable reliance by the plaintiff on the misrepresentation, resulting in actual pecuniary loss by the P.
What is malicious prosecution?
Under tort law, malicious prosecution requires the initiation of criminal proceedings against plaintiff without probable cause and with malicious intent that terminate in plaintiff’s favor and cause actual damage.

Improper purpose -- D's primary purpose in instituting the prior action was something other than bringing a person to justice
What is abuse of process?
Under tort law, it is a tort to use any form of process--civil or criminal--to bring about a result other thant that for which the form of process was intended; Under tort law, abuse of process requires the wrongufl use of the process for an ulterior purpose, and some definite act or threat agianst P to aaccomplish the ulterior purpose.
What is interference with business relations?
Under the common law, interference with business relationships requires a valid contract or business expectancy between plaintiff and a third person, of which relationship defendant was aware, intentional interference with that relationship by defendant, and damage to plaintiff.
What is negligence?
Under tort law, defendant is negligent where he fails to exercise such care as a reasonable person in his position would have exercised, his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in plaintiff’s position, and this breach must cause plaintiff’s damages
Under tort law, the general duty of care is to act as an ordinary prudent reasonable person would act in the same or similar circumstances. (Remember, the duty is owed to all foreseeable plaintiffs).

Under tort law, a person owes a duty of care to foreseeable plaintiffs and to unforeseeable plaintiffs in the foreseeable zone of danger.
In a negligence action, what standard of care applies to children?
Children are required to conform to the standard of care of a child of like age, education, intelligence, and experience. (this permits a subjective evaluation of these factors).
In a negligence action, what standard of care applies to professionals?
A person who is a professional or has special skills is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Professionals must also use such superior judgment, skill and knowledge as he actually possesses.
In a negligence action, what is the standard of care of children engaged in adult activities?
Where a child engages in an activity that is normally one that only adults engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity [driving a car, motorboat, airplane, etc]
In a negligence action, what standard of care applies to common carriers and innkeepers?
common carriers and innkeepers are required to exercise a very high degree of care toward their passengers and guests-- they are liable for slight negligence.
In a negligence action, what is the standard of care in an emergency situation not of the D's own making?
When little time is available for reflection in an emergency situation (not of the D's own making), the Dmust act as the Reasonable person would under the same emergency.
What is the (general) rule for Standard of care owed by landowners/occupiers to those off the premises for natural conditions on land?
Generally, a landowner owes no duty to protect one outside the premises from natural conditions on the land. However, in urban areas, there is an exception ofr decaying trees next to sidewalks or streets.
What is the (general) rule for Standard of care owed by landowners/occupiers to those off the premises for artificial conditions on her land?
Generally, a landowner/occupier owes no duty to those off premises for artificial conditions on the land. However, a landowner is liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land. Additionally, landowner has a duty to take due precautions to protect persons passing by from dangerous conditions.
In a negligence action, what duty of care is owed by a landowner for conduct of persons on property?
A landowner has a duty to exercise reasonable care wrt his own activities on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to others outside the property.
What duty does an owner or occupier of land owe to a trespasser?
A trespasser (one who comes onto the land w/out permission or privelege)that is undiscovered is owed no duty by a landowner. Once a landowner discovers the presence of trespassers, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve risk of death or serious bodily harm that the trespasser is unlikely to discover.
What is the attractive nuisance doctrine?
Landowners have a duty exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. This is the "attractive nuisance doctrine." To assess this duty upon the owner/occupier of land in regard to children on the property, the plantiff must show that there is a dangerous condition on the land of which the owner is or should be aware, the owner knows or should know that young persons frequent the vicinity of the dangerous ocndition, and the condition is likely to cause injury because of the child's inability to appreciate the risk, and the expense of remedying the situation is slight compared w/ the magnitude of the risk.
What duty does a landowner/occupier owe to a licensee?
A licensee (one who enters on the land with the landowner's permission, express or implied for her own purpose or business) is owed a duty to be warned of a dangerous condition known to the owner/occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. [social guests are licensees]
Who is an invitee?
An invitee is a person who enters onto the remises in response to an express or impleid invitation of the landowner. There are public invitees who enter as members of the public for a purpose for which the land is held open to the public (museums, churches, airports. There are also business invitees who enter for a purpose connected with the business or other interests of the landowner.
What duty is owed an invitee?
The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty is the duty owed to licensees plus a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe. A person loses her status as an invitee if she exceeds the scope of the invitation by going into a portion of the premises where her invitation cannot reasonably be said to extend.
Remember to go through the elements of a negligence COA if you have an landowner liability question!
What duty is owed to users of recreational land?
Where an owner/occupier of open land permits the public to use the land for recreational purposes for free, the landowner is not liable for injuries suffered by the recreational user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
What is negligence per se
Under tort law, negligence per se is established where defendant commits an unexcused violation of a criminal statute that was intended to prevent the harm suffered by a plaintiff who is within the class of persons the statute was intended to protect. The statutory violation is conclusive presumption of duty and breach of duty; (Remember, negligence per se establishes duty and breach of duty only, you must still establish causation and damages to round out the negligence cause of action)
* exceptions: compliance more dangerous than violation of statute or impossible under the circumstances
What duty is imposed on one who gratuitously acts for the benefit of another?
Generally, no legal duty is imposed on any person to affirmatively act for the benefit of others. One who grauitously acts for the benefit of another is under a duty to act like an ordinary, prudent, reaosnable person and continue the assistance. (one whose negligence places another in a position of peril is under a duty ot use reasonable care to aid that person)
When is a duty to control third persons imposed?
A duty to control third persons from injuring another is generally not imposed. However, such duty is imposed where the D had the actual ability and authority to control the 3rd person's action, and the D knew or should have known that the 3rd party is likely to commit such acts requiring the control by the D.
When is res ipsa loquitor used to establish breach of a duty owed?
Under tort law, res ipsa loquitor requires that plaintiff prove that an event causing injury would not have occurred in the absence of negligence, defendant was in exclusive control of the instrumentality causing the injury, and plaintiff did not voluntarily contribute to the event causing his injury. (Remember, use res ipsa loquitor to establish negligence only where direct evidence of the circumstances of the injury are unclear. If you know how the result came about, you don’t use res ipsa loquitor).
What is the doctrine of last clear chance?
Under tort law, the doctrine of last clear chance permits the P to recover despite her own contributory negligence. Under the doctrine, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (Last clear chance is P's rebuttal against the defense of contributory negligence.)
When does the D use the defense of Assumption of Risk in a negligence action?
To have assumed risk, either expressly or impliedly, the P must have known of the risk and voluntarily assumed it. (* not a defense to intentional torts) <-- this was merged w/ contributory negligence in Ohio. Check on this.
When is a D strictly liable?
Under tort law, a D is strictly liable when she/he has an absolute duty to make safe (the animal/activity/or condition), and breaches that duty actually and proximately causing the P's injury, causing damge to the P's person or property. A D is strictly liable to licensees and invitess for wild or abnormally dangerous domestic animals kept on the landowner's land. D is also strictly liable for utrahazardous or abnormally dangerous activities. (test on "note/hint" card.
(Q of law/ can be decided on directed verdict) An activity will be found ultrahazardous if the activity involves a risk of serous harm to persons or property, cannot be performed w/out risk of serious harm, and is not a commonly engaged in activity by persons in the community.
When is a D liable in product liability on the basis of negligence?
A D is liable on a negligence theory of products liability if the D owed P a legal duty, the D breached that duty, and the breach was the actual and proximate cause of P's personal injury and/or property damages. A D who engages in the affirmative conduct associated w/ being a commercial supplier of proucts owes the P (consumer of product/user/bystander/ foreseeable P). A breach of duty is established by proving negligent conduct by the D leading to the supplying of a "defective product" by the D.
When is a D liable in product liability on the basis of strict tort liability?
Under tort liability, a D is strictly liable in products liability when the D is a commercial supplier that owes P a strict duty and the D breaches such duty actually and proximately causing personal injury and/or property damages to the P. A D is strictly liable if product reaches the user/consumer w/out substanital change in the condition in which it is supplied. Breach is est by proving that the product is so defective as to be unreasonably dangerous.
When is a D liable in products liability on the basis of implied warranties of merchantibility and fitness.
If a product fails to live up to the stanadards imposed by an implied warranty, the warranty is breached and the D will be liable. There are 2 implied warranties: Implied warranty of merchantability and the Implied warranty of fitness for a particular purpose.
* implied warranty of merchantability -- a merchant who deals in a certian kind of goods sells such goods, there is an implied warranty that they are merchantable (generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used.

* The implied warranty of fitness for a particular purpose arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods.
What is a private nuisance?
private nuisance is a substantial(offensive, inconvenient or annoying to an average person), unreasonable interference (injury outweights utility) w/ another private individuals's use or enjoyment of property he actually possesses or has a right of immediate possession.
What is public nuisance?
A public nuisance is an act that unreasonbly interferes w/ the health, safety or property rights of the community. Recovery of damages is available for public nuisance only if a private party has suffered some unique damage ont suffered by the public at large.
Injunctive relief is available if damages areunavailable or inadequate.
When is inaction enough for the "restraint" element of false imprisonment?
Inaction is enough when there was an understanding that the D would act for the P's benefit.

(ship example.)
what are the types of P that are particularly suceptible to a IIED claim?
1. elderly people
2. pregnant women
3. young children
When is a D liable for trespass to land?
When a d acts, with intent to enter onto land, and causes a physical invasion onto the land of the P.
When is a D liable for trespass to chattels and conversion?
When the D acts with intent to interfere with P's possession of her personal property, and D does cause an interference with P's right of possession.
* Conversion -- lots of damages, such that D must pay for the full value of the chattel.

Trespass to chattels -- some damage (denting car, striking dog)
What level of force may a person use?
A person is justified in using reasonable force to prevent what she reasonably believe to be an imminent threat of force against her. * rf -- force reasonably necessary to avoid the threatened harm.
What force may a person use in the defense of others?
A person may defend another person in the same manner and under the same conditions as the person attacked would be entitled to defend himself. However, a defender is not liable if he reasonably believed that another person was endangered.
What is public necessity?
Public necessity is an unlimited privilege against property torts used to protect a large number of people. (example -- tearing down houses to protect a town from a spreading fire)
What is private necessity?
Private necessity is a qualified privilege against intentional property torts when used to protect a limited number of people. A person using "private necessity" will be liable for damages caused by her actions.
What is defamation?
1. Defamatory statement that is false -- injures the P's reputation
2. of and concerning the P -must be reasonably be understood to refer to the P
3. publicated to a 3rd person capable of understanding the statement
4. resulting in damages to the P. Libel-- damages presumed. Slander-p must prove special damages * except per se slander
* When defamation is spoken (slander)
*When defamation is written (libel)
What are the categories of slander per se?
Statements that:
1. Impugn a trade or profession
2. accuse P of serious crime of moral turpitude.
3. accuse P of having a loathsome disease
4. impute unchastity to a woman.
What are defenses to defamation?
1. at common law, truth
2. absolute privilege (applies always)
a. statements made in the course of judicial proceedings
b. statements made in the course of legislative proceedings
c. communications between spouses.
Who is a licensee?
Licensees are social guests, and those who come onto the landowners premises for their own purpose.

In ohio, non-social-guest licensees are treated as trespassers.

The duty owed to licensees is a duty of reasonable care, including a duty to warn of or to make safe concealed conditions on the land known to the landowner.
What is the rule for duty to rescue?
Generally, there is no duty to rescue. Exceptions:
1. D put the P in peril
2. Relationships that trigger duty to rescue:
a. Close family relationships
b. common carrier/inkeeper
c. invitee/invitor
When is the doctrine of res ipsa loquitor used?
1. Res ipsa loquitor is used when an event which occurred [causing P's injury] does not occur in the absence of negligence and
2. The injury-causing instrumentality was w/in the exclusive control of the Defendant.

* if these are met, the P gets to the jury.
What is "cause in fact" in a negligence action?
"Cause in fact" - a D's conduct is the cause in fact of an injury when injury would not have occurred but for the D's negligence.
1. Substantial factor -- used when there are multiple D's, in a comingled case.
2. Burden shifting -- Use in cases w/ multiple D's, unknown cause. Shift burden to the D's to prove who is at fault.
What is proximate cause?
Proximate cause, or legal causation, is a limitation on a D's liability; A person is only iable for those harms that are w/in the risk of his activity.
What "intervening causes" are (almost) always foreseeable so as not to cut off liability of D ?
1. subsequent medical mal.
2. Negligent rescue
3. crowd's reaction forces.
4. Subsequent disease/accident

See: Page 28.29 of lecture handout.

these "intervening causes" will not cut off liablity if D can anticipate the intervening cause:
1. Negligence of a thrid party
2. Criminal conduct
3. Acts of God
What are the typical elements of a negligence (personal injury) award?

Past and future medical expenses
Past and future lost income
Pain and suffering
What is the 'last clear chance' doctrine?
In contributory negligence doctrines, where P's negligence is a total bar to recovery, the "last clear chance" doctrine will allow the negligent P to recover if the D had the "last clear chance" to avoid the accident and fails to do so.
When will a landowner be liable for "attractive nuisance?"
Most court impose upon a landowner the duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property.Under the general rule, , to assess this special duty upon the owner or occupier of land in regard to children on his property, the plaintiff must show:
1. there is a dangerous condition present on his land of which the owner is or should be aware:
2. The owner knows or should know that young persons frequent the vicinity of the the dangerous condition
3. The condition is likely to cause injury 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.
What is negligent infliction of emotional distress?
The duty to avoid negligent infliction of emotional distress is breached when the defendant creates a foreseeable risk of physical injury to plaintiff either by 1. causing a threat of physical impact that leads to emotional distress to a plaintiff within the zone of danger of impact, and causes physical injury from the distess or 2. directly causing severe emotional distress that by itself is likely to result in physical symptoms, and actually causes physical injury from the distress.
Who decides whether a duty has been breached in a negligence case?
Where the defendant's conduct falls shot of that level required by the applicable standard of care owed to the plaintiff she has breached her duty. Whether the duty of care is breached in an individual case is a question for the trier of fact.