Bar Exam - Torts

Front 1

Transferred Intent

Back 1

Intent can transfer from Tort to Tort (intends trespass but commits battery) or from Person to Person.

Front 2

Battery

Back 2

1. Harmful or Offensive Contact ("unpermitted")
2. With a plaintiff's person (anything physically connecteed to plaintiff)

Front 3

Assault

Back 3

1. Apprehension (apprehension of the unpermitted contact, NOT fear or intimidation)
2. Of an Immediate contact (words not enough. Words + conduct)

If battery and assault both work on the same fact pattern, choose battery)

Front 4

False Imprisonment

Back 4

1. Suffiicient act of restraint
2. To a bounded area

Front 5

Intentional Infliction of Emotional Distress

Back 5

1. outrageous conduct
2. damage

Use this tort as a "fallback" to use when other tort theories aren't working.

Front 6

IIED Special Rules

Back 6

"Special" plaintiffs: children, elderly, pregnant women.

"Special" defendants: common carriers, innkeepers. P must be a passenger or guest.

Transferred intent is normally unavailable.

Front 7

Trespass to Land

Back 7

1. Act of physical invasion
2. Land

Land = airspace above and subsurface below as long as at a distance where the owner could make reasonable use of the space.

Front 8

Trespass to Chattels and Conversion

Back 8

1. Act of invasion
2. To personal property

If there is some damag,e choose trespass to chattels. If there is a LOT of damage, choose conversion.

For conversion, "damage" can include serious interference with possessory rights.

Front 9

Defenses to Intentional Torts

Back 9

1. Consent
2. Self Defense
3. Defense of Others
4. Defense of Property
5. Necessity
6. Discipline

Front 10

Defenses to Intentional Torts: Consent

Back 10

- Capacity: the P must have capacity to consent. Those who lack capacity include:
(i) children
(ii) mental imparement
(iii) those coerced into consent
(iv) consent given on basis of fraud or mistake by D

-Consent may be express or implied.

Front 11

Defenses to Intentional Torts: Self Defense and Defense of Others

Back 11

A person is justified in using reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.
- subjective and objective
- Reasonable force: deadly force "reasonable" only when P is facing deadly force herself.
- RETREAT: retreat required before deadly force unless in your own home (OHIO)

Defense of others is permitted if in the same manner and under same conditions as the person attacked would be entitled to defend himself.

Front 12

Defenses to Intentional Torts: Defense of Property

Back 12

A person may use reasonable force to defend his real or personal property. However, deadly force may never be used to protect property alone.
-no spring loaded guns in empty houses
-Hot Pursuit: no force to get property back once taken, must be in hot pursuit of getting it back

Front 13

Defenses to Intentional Torts: Necessity

Back 13

Used only in conjunction with intentional torts to property
Public necessity: an unlimited privilege to protect a lot of people. Don't have to pay damages
Private Necessity: a qualified privilege to protect a limited number of people. Defense to tort, but still need to pay any damages you cause.

Front 14

Defamation

Back 14

1. Defamatory statement that turns out to be false
2. Of and concerning the P
3. published to 3rd person
4. Damages to P

-Truth is a defense, but is D's responsibility to prove.
-Mere name-calling not enough, needs to be something that injures the plaintiff's reputation if taken as true.
-D's statement must reasonably be understood to refer to the plaintiff.

DAMAGES: When defamation is spoken (slander) the P must prove "special damages". When defamation is written or broadcast (libel), juries may presume damages.
-EXCEPTION: P can recover presumed damages in cases of slander per se, including statements about:
(i) someone's profession
(ii) accusing of committing a serious crime
(iii) loathsome disease
(iv) chastity of a woman (but this is fading)

Front 15

Defenses to Defamation

Back 15

1. Truth
2. Absolute Privilege (judicial proceedings, legislative proceedings, between spouses).
3. Qualified Privilege: during the course of legit public debate to serv e the purpose of benefiting a 3rd party

Front 16

Defamation: Constitutional Limitations

Back 16

Protects matters of PUBLIC CONCERN. 2 more reqs for P's prima facie case:
1. FALSITY: P must prove that the statement was false.
2. FALUT: P must prove some level of fault.
- Public Person: must prove actual malice, defined as knowledge of falsity, reckless disregard for truth. (Public officials, Public figures)
- Private Person: Must prove fault amounting to at least negligence.

DAMAGES: Ps must prove actual malice to recover presumed or punitive damages.

Front 17

Appropriation

Back 17

Use of the P's name or picture for commercial advantage without permission

In OHIO, doesn't have to be commercial, but merely for D's gain or benefit of some kind.

-Newsworthiness doesn't count

Front 18

Intrusion

Back 18

Interference with a P's seclusion in a way that would be objectionable to a reasonable person.
-P must be in a place where she has an expectation of privacy.
-source of intrusion doesn't have to be physically on the land (ex: telescoping cameras across the street into a bedroom).
No right to privacy on public street
-If you can't quite make out an intrusion claim, go for IIED

Front 19

Flase Light

Back 19

The widespread dissemination of information that is in some way innacurate and that would be objectionable to a reasonable person.
- doesn't have to be about something bad

Front 20

Public Disclosure of Private Facts

Back 20

The widespread dissemination of factually accurate information that would normally be confidential, and the disclosure of which would be objectionable to a reasonable person

Newsworthiness doesn't count

Front 21

Defenses to Invasion of Privacy Torts

Back 21

1. Consent
2. Absolute and Qualified privilege (ONLY for false light and public disclosure)

Front 22

Fraud

Back 22

1. Affirmative Misrepresentation (not omissions)
2. Fault (intentional cause of action)
3. Intent to induce reliance (statement must be material)
4. Justifiable Reliance
5. Damages (no harm, no foul!)

Compare with NEGLIGENT MISREP:
-Liability confined to commercial transactions, and to a particular plaintiff whose reliance is contemplated.

Front 23

Intentional Interference with Business Relations - Types

Back 23

1. Inducing Breach of Contract
2. Interference with Contractual Relations
3. Interference with Prospective Economic Advantage

Front 24

Wrongful Institution of Legal Proceedings - Types

Back 24

1. Malicious Prosecution
2. Abuse of process

Front 25

Negligence: DUTY
To Whom is a Duty owed?

Back 25

1. All foreseeable victims of your failure to take precautions
2. Plaintiffs who are foreseeable as a matter of law:
(i) rescuers
(ii) viable fetuses

Front 26

Negligence: DUTY
How much Care Must you Exercise?

Back 26

1. You must exercise the amount of care that would be taken by a REASONABLY PRUDENT PERSON under the SAME OR SIMILAR CIRCUMSTANCES.

"poindexter rule"

Special Duty Standards:
1. Children: A child must excerise the degree of care that a REASONABLE CHILD of LIKE AGE, INTELLIGENCE, and EXPERIENCE would exercise under the circumstances. (much more subjective than with adults).
-Rule of Sevens (OHIO)
(i) children under 7 = no liability for negligence
(ii) Children from 7-13 = presumed no liability, rebuttable presumption
(iii) Children 14+ = presumed capable of negligence, D may rebutt to say she is not.
ADULT ACTIVITIES: a child doing an adult activity is held to the adult standard.
2. Professionals
(i) General standard: a pro is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.
-MedMal= informed consent
-Legal Malpractice= need to prove outcome of case was change (causation)
3. Owners and Occupiers of Land: Did the injury result from the conduct of activity or did the injury result from an encounter with a static condition?
(i) Status of P: undiscovered trespasser, discovered trespasser, licensee, invitee.

Front 27

Duty owed by owners to others' on land

Back 27

The variables:
1. Source of injury (conduct of activity or an encounter with a static condition)
2. status of plaintiff:
-undiscovered trespasser
-discovered trespasser
-licensee
-invitee

-NO DUTY to undiscovered trespasser
-Discovered trespasser:
REASONABLE CARE to warn when it comes to man-made death traps. No duty for everything else
-Licensee: Reasonable care when it comes to concealed hazards known to owner (manmade or natural)
-Invitee: reasonable care, duty to warn about concealed dangers the owner knows about or could have learned about with reasonable inspection

Front 28

Owner's duty as to a static condition on land

Back 28

satisfy legal obligation by:
-going to the condition and repairing
-give warning

Front 29

When the trespasser is a child...

Back 29

use reasonable prudent person standard.

Front 30

When the entrant is injured by an open and obvious condition...

Back 30

the entrant will almost always lose.

Front 31

Negligence Per Se

Back 31

Test: Class of person, class of risk.

Is this the kind of person we want to protect with the statute? Is this the kind of risk we are guarding against by having the statute?

EXCEPTIONS:
-when compliance with the statute is MORE DANGEROUS than violating the statute
-Compliance is impossible under the circumstances.

Front 32

Affirmative Duty to Act Rule

Back 32

General Rule: no duty to rescue!
EXCEPTIONS:
1. Deft put P in peril
2. Certain relationships (close family relationship, common carrier/inkeeper, invitee/invitor
3. Duty to control third persons (Deft must have actual ability and authority to control).

Front 33

Duty for Negligent Infliction of Emotional Distress

Back 33

General Rule: NO DUTY!

EXCEPTIONS:
1. Zone of danger rule (near-miss situation)
2. Bystander Recovery- if close relation, may recover even if outside zone of danger
3. Courts liberalize rules where a deft's negligence creates a great likelihood of severe emotional distress.

Front 34

BREACH OF DUTY:

Back 34

General Rule: P must point to SPECIFIC CONDUCT

Proving "specific conduct":
1. Evidence of Custom (always admissible, never conclusive)
2. Res Ipsa Loquitor TEST:
a. the event is one that does not normally occur in the absence of negligence
b. The injury-causing instrumentality was in D's exclusive control
c. Result: P gets to the jury, spared a directed verdict.

Front 35

CAUSATION: Cause in Fact

Back 35

"But For" Test
OR
"Substantial Factor" TEST: use in cases with multiple Ds, comingled cause
"Burden Shifting" Use in cases with multiple Ds, unknown cause (shift burden of proof to Ds... Ex: two people shoot, someone gets hit with one of the bullets)

Front 36

CAUSATION: Proximate Cause

Back 36

Proximate cause is a limitation on a D's liability. A person is only liable for those harms that are within the risk of his activity.

Indirect Cause Fact Patterns:
-Subsequent Medical Malpractice, almost always foreseeable
-Negligent Rescue, almost always foreseeable
-Reaction Forces
-Subsequent Diseases or Accidents

Probably NO LIABILITY, UNLESS D can anticipate (and they usually can):
-negligence of a third party
-criminal conduct
-acts of god

Front 37

DAMAGES

Back 37

Elements of typical personal injury:
1. past & future med expenses
2. past & future lost income
3. pain and suffering

Eggshell Skull Plaintiff: defendant is liable for the full extent of the damage he causes, even if the extent was unforeseeable.

CHECK OHIO LIMITATIONS... noneconomic damages have caps!

Front 38

DEFENSES TO NEGLIGENCE: Contributary Negligence

Back 38

Definition: a plaintiff's failure to use the relevant degree of care for his or her own safety

If P is contributorily negligent: LOSE SUIT, GET NOTHING

Look for AMELIORATING DOCTRINES to "soften impact" of rule:
-Rule of Last Clear Chance if D has last chance to avoid, then P may recover, even if contributarily negligent

Front 39

DEFENSES TO NEGLIGENCE:
Assumption of Risk

Back 39

EXPRESS : "I'll take my chances"
-complete bar to recovery.
EXCEPTION: can't sign form assuming risk of negligent medical treatment. Signed forms, like for skiing.

IMPLIED:
TEST: 1. P has knowledge of risk
2. P's exposure was voluntary.

Front 40

DEFENSES TO NEGLIGENCE:
Comparative Negligence

Back 40

PURE COMPARATIVE - recovery proportionate to fault

MODIFIED COMPARATIVE - if P over 50% at fault, barred from recovery.

Where it exists, comparative negligence supplants all other defenses EXCEPT express assumption of risk

In Ohio, supplants EXPRESS AND IMPLIED assumption of risk

Front 41

DEFENSES TO NEGLIGENCE:
Types

Back 41

1. Contributory Negligence
- Ameliorating doctrines
2. Assumption of Risk: Express and Implied
3. Comparative Negligence
4. Modified Comparative Negligence

Front 42

STRICT LIABILITY: Animals

Back 42

Trespassing Animals: strict liability for foreseeable harm caused by animals (other than household pets).

Personal Injury:
1. Domesticated Animals: NO STRICT LIABILITY UNLESS you know of the animal's dangerous propensities in advance.
IN OHIO: "dog bite statute" owner is strictly liable, even if doesn't know of dangerous propensities (unless dog is taunted, trespasser, crime, etc)
2. Wild Animals: STRICTLY LIABLE, so long as P didn't do anything to cause harm.

Front 43

STRICT LIABILITY: Abnormally Dangerous Activities

Back 43

1. Activity can't happen except with HIGH RISK
2. If harm occurs, it will be SEVERE
3. The activitiy is unusual, atypical, uncommon in the COMMUNITY in which it takes place.

Limitation: HARM MUST STILL BE WITHIN THE RISK!

Front 44

STRICT LIABILITY: Product Related Injury

Back 44

Warning: look carefully at the theory you are asked to apply- NEGLIGENCE vs. STRICT LIABILITY and be sure to apply the correct set of rules.

Prima Facie Case:
1. D must be a MERCHANT of the types of goods involved
2. The product must be DEFECTIVE
3. The defect existed WHEN IT LEFT SELLER'S HANDS
(if moved in ordinary channels of distribution, presumption that the defect was present at the factory)
4. P made a FORESEEABLE USE of the product

DEFENSES:
1. Contributory negligence does NOT bar recovery. Assumption of risk WILL bar recovery.
2. Comparative Fault Jurisdictions: apply comparative fault.
3. OHIO: if D is manufacturer, assumption of risk is defense. If D is a supplier, then apply comparative fault.

Front 45

Product Liability Hints

Back 45

1. when theory is NEGLIGENCE, usually let wholesalers and retailers off the hook.
2. An adequate warning usually insulates D from STRICT LIABILITY
3. When the question refers to a "feasible alternative" for making a product safer, it often signals that you should find the D liable on design defect theory-- TRUMPS WARNINGS
4. Foreseeable use is not the same as INTENTED use
4. If product use is incidental to the performance of a SERVICE, STRICT LIABILITY is unavailable.

Front 46

STRICT LIABILITY: Private and Public Nuisance

Back 46

PRIVATE NUISANCE: Conduct that causes a SUBSTANTIAL and UNREASONABLE INTERFERENCE with the USE and ENJOYMENT of land.
Remedies: courts will WEIGH THE EQUITIES in deciding whether to enjoin

PUBLIC NUISANCE: Conduct that causes PHYSICAL or MORAL harm to the PUBLIC IN GENERAL.
- A PRIVATE P can maintain public nuisance action if P has suffered a harm DIFFERENT IN NATURE than that of the general public (otherwise, there are government prosecution channels for this type of thing)

Front 47

Vicarious Liability: Employer-Employee

Back 47

Employer-Employee: The employer is vicariously liable for employees' torts committed WITHIN THE SCOPE OF EMPLOYMENT:
1. Frolic and Detour Rules
Detour = vicarious liability
Frolic = no vicarious liability

INTENTIONAL TORTS: Employer NOT liable for employees' intention l torts, UNLESS violence is part of the job

COMPARISON WITH INDEPENDENT CONTRACTORS: generally no vicarious liability
EXCEPTION:
1. independent contractor is engaged in an inherently dangerous activity
2. Public policy exception "catch all" - dangerous conditions were created by contractors on premises.

Front 48

Vicarious Liability: Automobile Owner - Driver

Back 48

Generally, no vicarious liability. UNLESS driver is performing an errand for owner, liability may be premised on agency principles.
MINORITY RULES:
1. Family Car States: owner is vicariously liable for the torts of any drvier of the same household.
2. Permissive USE States: Owner is vicariously liable for the torts of anyone using the car with permission

Front 49

Vicarious Liability: Parent-Child

Back 49

Generally no vicarious liability
IN OHIO: statutory exception... parent liable for up to $10,000 if child causes damages willfully or maliciously

Front 50

Hints for Vicarious Liability

Back 50

LOOK FOR DIRECT LIABILITY FIRST!!!

Front 51

Adjustment of Rights Between Multiple Defendants

Back 51

1. Joint and Several Liability:
-concert of action
-indivisible harm

2. Indemnity: Passive defendant receives FULL reimbursement from active defendant

In OHIO--> limited by statute.
A. If one D is more than 50% at fault, then jointly and severally liable for P's economic damages
B. If any D commits an intentional tort, then joint and severally liable

Use indemnity or contribution, but NOT BOTH.

3. Contribution - Both Ds are active participants.
- Traditional rule: paying defendant recovers proportional shares from other defendants. (everyone splits the check equally)
- Comparative contribution: Recovery based on the relative fault of each tortfeasor.

Front 52

Wrongful Death and Survival Actions

Back 52

-WRONGFUL DEATH ACTIONS are lawsuits brought by a decedent's beneficiaries for their own loss of support or companionship.

-SURVIVAL ACTIONS: are lawsuits brought by a decedent's estate based on claims that P would have brought had she lived.

Front 53

Immunity

Back 53

1. Family Immunity (majority rule: no more family immunity)

2. Governmental Immunity - soveriegn immunity but does not apply when government is engaged in a proprietary function (ex: owning a municipal parking garage).
-Government regain immunity when engaging in discretionary government activities (ex. police protection, fire protection, military protection).

3. Charitable immunity -- abolished in most jurisdictions!