Bar Exam - Torts

Front 1

Transferred Intent

Back 1

Person intends to commit intentional tort against one person but instead:

 

1.  Commits a different intentional tort against that person;

 

2.  Commits the intended tort against a different person; or

 

3.  Commits a different intentional tort against a different person.

 

*Applies only to battery, assault, false imprisonment, and trespass to chattels.

Front 2

Battery

Back 2

1. Harmful or Offensive Contact (objective)

2. To another person (or anything connected to him/her)

 

3.  With intent to cause contact or apprehension of contact.

 

4.  No actual harm required for damages.

Front 3

Assault

Back 3

Defendant must intend to cause:

 

1.  Reasonable apprehension and awareness of

2.  imminent harmful or offensive bodily contact or

 

1.  harmful or offensive bodily contact

No actual damages required.  If P sustains damages from physical harm (i.e. heart attack), may recover these.

Front 4

False Imprisonment

Back 4

1.  Intent to confine or restrain;

 

2.  Actual confinement (no reasonable safe escape);

 

3.  Victim is conscious of confinement or harmed by it.

 

Actual damages necessary only if P was unaware.

Front 5

Intentional Infliction of Emotional Distress

Back 5

1.  Intentional or reckless extreme or outrageous conduct that causes P severe emotional distress.

 

2.  3P liability if member of immediate family, w/ or w/out bodily injury, or other bystander, w/ bodily injury.  D must be aware of 3P presence.

 

3.  D's actions must be substantial factor in creating the distress.

 

4.  If P is hypersensitive, no liability unless D knew of it.

Front 6

Trespass to Land

Back 6

D intends to enter land or cause physical invasion.  Mistake of fact not a defense.

 

Actual damages not required.

 

Necessity as a defense:

 

Private:  To protect own person/property from harm; still liable for actual damages.

 

Public:  Absolute privilege to avert imminent public disaster.

Front 7

Trespass to Chattels and Conversion

Back 7

D intentionally interferes with P's right of possession by either:

 

1.  Dispossessing P of chattel; or

 

2.  Using/intermeddling with chattel.

 

Requires actual harm to or deprivation of its use for a substantial time. 

Conversion: So serious that P cannot use; D has exercised dominion or control over it or has deprived P of possession.  Damages are full value of chattel or replevin.

Front 8

Defenses to Intentional Torts Involving Personal Injury

Back 8

1. Consent
2. Self Defense
3. Defense of Others
4. Defense of Property
5. Privilege of Arrest
6. Parental Discipline

Front 9

Defenses to Intentional Torts: Self Defense and Defense of Others

Back 9

1.  Force must be proportionate to anticipated harm; deadly force ok only if reasonable belief of SBI/death (OH:  D must not be at fault, had bona fide belief of imminent danger of SBI/death, and didn't violate duty to retreat).

 

2.  Reasonable mistake is ok. 

 

3.  Initial aggressors cannot claim self defense. 

 

4.  Not liable for injuries to bystanders. 

Defense of others is permitted if in the same manner and under same conditions as the person attacked would be entitled to defend himself.  OH:  Other cannot be initial aggressor.

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: Defense of Property

Back 11

A person may use reasonable force to defend his real or personal property. However, deadly force may never be used to protect property alone.

Front 12

Defenses to Intentional Torts: Privilege of Arrest

Back 12

Private citizen:  Ok if felony was actually committed and reasonable to suspect the person arrested. 

 

OH:  OK if felony was actually committed or reasonably believed felony committed.

 

Misdemeanor:  Only ok if committed in presence of arresting party.

Front 13

Defamation

Back 13

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

DAMAGES: When defamation is spoken (slander) the P must prove "special damages" (usually economic loss). 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 14

Defenses to Defamation

Back 14

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

Front 15

Defamation: Constitutional Limitations

Back 15

Protects matters of PUBLIC CONCERN.

 

If public concern or P is a public figure, P must prove:

1.  Falsity (private: D may prove truth as affirmative defense).
2.  Fault: P must prove some level of fault.
(i)  Public Person: must prove actual malice, defined as knowledge of falsity, reckless disregard for truth.

(ii)  Private Person:  Must prove negligence or actual malice. 

OH:  This standard applies for all defamation.

DAMAGES:

Public figure:  Actual damages.

Private/public concern:  Actual damages, but if malice proven, punitive or presumed damages.

Wholly private:  General, including presumed, damages.

Front 16

Misappropriation

Back 16

Use of the P's name or picture for commercial advantage without permission, and causes injury.

OH:  Need not be for D's commercial advantage.

 

Damages:  Proof of emotional/mental distress is sufficient.

Front 17

Intrusion upon Seclusion

Back 17

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

 

Damages:  Proof of emotional/mental distress is sufficient.

Front 18

False Light

Back 18

Publication of facts about P or attributing views/actions to P that place him in a false light objecitonable to a reasonable person under the circumstances. 

 

In matters of public interest, P must show malice.

 

Damages:  Proof of emotional/mental distress is sufficient.

Front 19

Public Disclosure of Private Facts

Back 19

Disfavored tort.

 

The widespread dissemination of factually accurate information that would be highly offensive to a reasonable person and is not of legitimate concern to the public.

 

Damages:  Proof of emotional/mental distress is sufficient.

Front 20

Defenses to Invasion of Privacy Torts

Back 20

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

3.  Truth is NOT a defense.

Front 21

Intentional Misrepresentation

Back 21

1. False representation of a material fact;

2.  Knowledge or reckless disregard of truth;

3.  Intent to induce P to act in reliance;

4.  Justifiable reliance;

5.  Damages (actual economic loss/consequential damages).

Front 22

Intentional Interference with Business Relations - Types

Back 22

1. Intentional interference with K;

2.  Interference with prospective economic advantage; or

3.  Theft of trade secrets

Front 23

Wrongful Institution of Legal Proceedings - Types

Back 23

1. Malicious Prosecution

(i) No probable cause, and action dismissed in favor of person against whom it was brought
2. Abuse of process

(i)  Use of legal process against P in a wrongful manner to accomplish a purpose other than that for which the process was intended. 

Front 24

Negligence: DUTY
To Whom is a Duty owed?

Back 24

1. All foreseeable victims of D's failure to take precautions

 

(i)  Cardozo:  Only liable to Ps within zone of foreseeable harm.

 

(ii)  Andrews/minority:  Duty to everyone harmed.

2. Plaintiffs who are foreseeable as a matter of law:

(i) rescuers
(ii) viable fetuses

 

3.  Affirmative duty to act:

 

(i)  Assumption of duty.  OH:  Only liable if acting willfully/wantonly and must not be expecting compensation.  Maj.:  must act w/ reasonable ordinary care.

(ii)  Placing another in peril

(iii) By K

(iv) By authority

(v)  By relationship

Front 25

Negligence: DUTY
How much Care Must you Exercise?

Back 25

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

 

Custom:  Evidence is admissible but not conclusive in establishing proper std. of care.

Front 26

Standard of care for land possessors:  Trespassers and Licensees

Back 26

Discovered:  Warn about concealed, dangerous, artifical conditions.  Refrain from willful/wanton/reckless misconduct.

 

Undiscovered:  No duty unless owner should reasonably know that trespassers are entering land (then become traditional licensees - warn of concealed dangers that are known/should be obvious.  No duty to inspect).

 

Modern/R3d licensees:  Reasonable care under all circumstances.

 

Modern trespassors:  Reasonable care, but fact of trespass can be considered to determine reasonable care.  To flagrant trespassers, only duty owed is to not act in intentional/willful/wanton manner.

Front 27

Special Duty Standards (Children & Pros)

Back 27

1. Children: A child must exercise 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).
-OH:  Rule of Sevens
ADULT ACTIVITIES: a child doing an adult activity is held to the adult standard.

 

2. Professionals
(i) OH: care and skill reasonable in light of superior learning and experience.

(ii):  Maj.:  same skill, knowledge, and care as another pro in same community.

(iii)  Physicians:  national standard
-Lack of informed consent is med negligence, unless risk is commonly known, patient is unconscious, waives/incompetent, or disclosure too harmful.

Front 28

Standard of care for land possessors:  Invitees

Back 28

Traditional:  Reasonable care to inspect, discover dangerous conditions, and protect invitee from them.  Duty does not extend beyond scope.  In OH:  become licensees.  Trad:  Become trespassers.

 

Modern/R3d:  Reasonable care under all circumstances.

 

OH Social Guests:  Ordinary care and to warn of known and dangerous conditions.  No duty to inspect or make safe prior to arrival.

Front 29

Attractive Nuisance

Back 29

Liable for injuries to trespassing children if:

 

1.  Artificial condition poses unreasonable risk of SBI;

 

2.  Children cannot appreciate the danger;

 

3.  Burden of eliminating the danger is slight compared to risk of harm; and

 

4.  Owner fails to exercise reasonable care to protect children.

 

OH:  Adult who attempts to rescue "becomes" the child.

Front 30

Negligence Per Se

Back 30

1.  A statute, regulation, or ordinance imposes a specific duty for protection of others;

 

2.  D neglects to perform the duty;

 

3.  D liable to anoyine in the class of people intended to be protected;

 

4.  For harms of the type statute was intended to protect against;

 

5.  That were proximately caused by D's violation.

 

OH:  Statute imposes a duty/omission, and failure to follow it proximately causes injury.

EXCEPTIONS:

-when compliance with the statute is MORE DANGEROUS than violating the statute

-Compliance is impossible under the circumstances.

Front 31

Standards of Care for Specific Classes (Drivers/Innkeepers/Bailors)

Back 31

Common carriers (planes/trains/buses):

1.  Highest duty of care consistent with practical operation of business.

 

Innkeepers:

1.  Ordinary negligence

 

Automobile drivers:

1.  Majority:  Ordinary care to paying and nonpaying guests.

2.  Minority - guest statutes:  Refrain from wanton & willful misconduct.

 

Bailors:

1.  Gratuitous:  Bailor must inform only of known dangerous defects.

2.  For hire:  Bailor must inform of defects that are known or should have been known using reasonable diligence.

 

Bailees:

1.  Bailor receives sole benefit:  Bailee liable only if grossly negligent.

2.  Bailee receives sole benefit:  Extraordinary care.

3.  Mutual benefit:  Reasonable care.

Front 32

Negligent Infliction of Emotional Distress

Back 32

D's negligence causes a threat of physical impact that in turn causes emotional distress.

Majority:  Physical symptoms required unless it's a case of misinforming that a family member is dead or mishandling a corpse.

OH:  Just severe and debilitating.

 

Maj.:  Can add ED as an element of damages.  OH:  ED from a physical injury doesn't create an independent NIED claim.

 

Bystanders:

Maj.:  Must be within zone of danger, or have a close relationship with injured person, present at scene, & personally observed injury.

OH:  If not within zone of danger, cann recover under foreseeability approach.

Front 33

BREACH OF DUTY:  Burden of Proof

Back 33

1.  Greater probability than not that D failed to meet standard of care;

2.  Failure was proximate cause of injury and P suffered damages.

 

P can demonstrate failure through custom and usage, violation of a statute, or res ipsa loquitur.

P can demonstrate failure by introducing evidence of required standard of care through custom and usage, violation of a statute, or res ipsa loquitur. 

Front 34

CAUSATION: Cause in Fact

Back 34

"But-for" test.

 

Will probably not work if:

1.  Multiple tortfeasors and it can't be said that D's tortious conduct was required to produce the harm;

2.  Multiple possible causes of the harm;

3.  D's negligent medical misdiagnosis increased probability of death, but P probably would have died even with a proper diagnosis.

-->Courts substitute substantial factor test.

 

Concurrent tortfeasors, one injury:  J&S liability.

 

P doesn't know who caused harm (2-5 Ds, all were tortious, all are sued):  burden shifts to multiple Ds to prove each did not cause harm.

 

Concert of action (acting pursuant to common plan and one caused harm):  J&S liability.

Front 35

CAUSATION: Proximate Cause

Back 35

Despite cause in fact, too attenuated or coincidental.

 

Majority:  P was a foreseeable victim of conduct.

Minority/R3d:  Liability is limited to those harms that result from risks that made D's conduct tortious.

 

Superseding cause:  an intervening cause (contributes to the harm after D's act) that breaks the chain of proximate causation.

(i)  Foreseeable intervening causes:  negligence, including med mal, disease, accident, negligence of rescuers, normal forces of nature.  Both actors can be J&S liable.

(ii)  Unforeseeable (therefore, superseding):  Acts of God, criminal acts, and 3P intentional torts.

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 36

DAMAGES

Back 36

Negligence actions:  Must have actual harm - nominal damages not recoverable.

(i)  Economic loss:  without any related PI or property damages, cannot recover.

(ii)  Atty's fees not recoverable.

(iii) PI damages include past and future med expenses, past and future pain and suffering, and lost income.  Eggshell skull rule.

(iv)  Property damage:  difference between FMV before and after.

(v)  Collateral source rule:  Modern trend/OH:  Pmts made by D's insurer are credited against D's liability, unless source has subrogation rights.

Front 37

DEFENSES TO NEGLIGENCE: Contributory Negligence

Back 37

CL/Minority

 

1.  P fails to exercise reasonable care for her own safety and thereby contributes to her own injury.

2.  Complete bar to recovery, unless it's an intentional tort, gross negligence, or recklessness.

 

OH:  Not a bar, just an affirmative defense (except in intentional torts).

Front 38

DEFENSES TO NEGLIGENCE:
Assumption of Risk

Back 38

1.  Exculpatory clauses in Ks.  Unless it's a gross disparity of bargaining power, fraud or duress, for public services, etc.

(i)  Common carriers, innkeepers, and employers cannot disclaim liability.

2.  Participants and spectators in athletic events.

3.  Unreasonably proceeding in the face of known, specific risk.

Front 39

DEFENSES TO NEGLIGENCE:
Comparative Negligence

Back 39

Pure:  Default on MBE.  Not a complete bar, P's damages reduced by proportion of P's fault.

 

Modified/Partial: 

(i)  If P less at fault, P's recover is reduced by percentage of fault (OH - 50% or less, like pure)

(ii)  If P more at fault, P recovers nothing (OH, like contributory)

iii)  If equal fault, P recovers 50% of total damages (OH)

Front 40

Defenses to Strict Liability

Back 40

1.  Contributory negligence does not bar recovery. or reduce recover in comparative fault jurisdictions.

2.  Assumption of risk bars recovery.

3.  No s/l for essential public services.

Front 41

STRICT LIABILITY: Animals

Back 41

Wild Animals:

1.  Owner is s/l for harm despite owner's precautions to prevent harm, as long as:

(i)  P didn't knowingly cause his own injury

(ii)  the harm arises from a dangerous propensity that is either characteristic of such a wild animal, or of which owner has reason to know.

2.  Trespassers:  No s/l for undiscovered trespassers, except for vicious watchdog (may still be negligent).

3.  S/l for reasonably foreseeable damage caused by trespassing animal.

 

Domestic:

1.  S/l if owner knows or has reason to know of dangerous propensities.  OH:  S/l even w/out notice unless P was trespassing or teasing/tormenting on D's property.

2.  S/l for reasonably foreseeable damage caused by trespassing animal.

Front 42

STRICT LIABILITY: Abnormally Dangerous Activities

Back 42

1.  Creates a foreseeable and highly significant risk of physical harm even with reasonable care; and

2.  Activity is not commonly engaged in.

3.  Limited to harm expected from activity.

Front 43

Products Liability:  Negligence

Back 43

Duty:  Reasonable care owed to any foreseeable P by commercial manuf./distributor/retailer/seller

Breach:  Failure to exercise reasonable care in inspection/sale

Causation:  Factual & proximate

Damages:  Actual damages

Defenses:  Contributory/comparative and assumption of the risk

Front 44

Vicarious Liability: Employer-Employee

Back 44

Employer-Employee: The employer is vicariously liable for employees' torts committed WITHIN THE SCOPE OF EMPLOYMENT:

1. Frolic and Detour Rules
Detour (minor deviation) = vicarious liability
Frolic (unauthorized/substantial deviation) = no vicarious liability

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

INDEPENDENT CONTRACTORS: generally no vicarious liability

EXCEPTIONS:
1. IC is engaged in an inherently dangerous activity
2. IC is engaged in a non-delegable duty; or

3.  Negligent selection of IC.

Front 45

Vicarious Liability: Automobile Owner - Driver

Back 45

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 (not OH): owner is vicariously liable for family member driving w/ permission.
2. Permissive use states: Owner is vicariously liable for anyone driving w/ permission

Front 46

Vicarious Liability: Parent-Child

Back 46

Generally no vicarious liability, unless child is acting as parent's agent.
OH: Vicariously liable for child's theft or willful & malicious assault likely to produce great harm.  Capped at $10k.  J&S liability for vandalism, desecration, or ethnic intimidation.  Capped at $15k.

Front 47

Sharing Liability Between Multiple Defendants:  J&S Liability

Back 47

1. Joint and Several Liability:

When tortious acts of two or more Ds are each a factual cause of an indivisible injury, each are liable for the entire harm. 

OH:  If one D is responsible for more than 50% of injury, J&S liability.  If 50% or less, liable for proportionate share.  If 50% or less in intentional tort, J&S.

2. Contribution - If one tortfeasor has paid more than his fair share, then he may sue any of the other joint tortfeasors for contribution.

Maj/OH:  No right in intentional torts.

Front 48

Immunity

Back 48

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).

Front 49

Duty to Retreat

Back 49

Majority:  Past trend towards retreating unless in home.  Recently, stand your ground statutes - no retreat to any place D might legally be.

 

OH:  No duty to retreat if deadly force is not used.  In home, can use deadly force if under belief of SBI/death.

Front 50

Private Nuisance

Back 50

Substantial and unreasonable (outweighs usefulness of D's actions) interference with another's use/enjoyment of his land.

 

Interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct.

Coming to the nuisance and regulatory compliance are not defenses, but may be considered.

P may abate nuisance after giving D notice of the nuisance and D refuses to act.

Damages:  Any depreciation, PI, and harm.  Injunctive relief after balancing the equities.

Front 51

Public Nuisance

Back 51

Unreasonable interference wiht a right common to the general public.

 

Private citizen can only claim if she suffers special harm.  May abate as in private nuisance, but if no special harm, may be abated only by public authority.

Front 52

Res Ipsa Loquitur

Back 52

Circumstantial evidence of negligence - only applies if there is no direct evidence of negligence.  Establishes an inference of negligence.

 

1.  Accident was of a kind that ordinarily doesn't occur in absence of negligence;

2.  Caused by agent/instrumentality within exclusive control of D; and

3.  P not responsible for injury.

Front 53

OH Cap on Damages

Back 53

Non-Economic:

$250k or 3x actual, max at $350k/P or $500k/occurrence.

Permanent deformity:  No cap.

 

Punitive:

Small employers:  lesser of 2x compensatory or 10% net worth, max $350k.

Large:  2x compensatory.

 

Front 54

Wrongful Death

Back 54

Spouse, next of kin, or personal rep may recover losses suffered as a result of the death, including income, loss of companionship.  Not pain and suffering.

OH:  Must be brought by personal rep. for benefit of kin.  No punitive damages.

Front 55

Survival Actions

Back 55

Personal rep. may pursue any claims decedent herself would have had at the time of her death.

Front 56

Loss of consortium/services

Back 56

1.  One spouse may recover as a result of injuries to other spouse.

2.  Parent may recover damages for loss of services if child is injured.

3.  Damages are reduced in comparative fault jurisdictions by injured family member's contributory negligence.

 

Front 57

Dram Shop Liability

Back 57

OH:

Injury on premises:  Duty in selling is the higher negligence standard.

Off premises:  Had to knowingly sell to noticeably drunk/underage person AND intoxication proximately caused the injury.

Front 58

Sharing Liability Between Multiple Defendants:  Several Liability

Back 58

1.  Each tortfeasor only liable for proportionate share of damages.

Front 59

Indemnification

Back 59

1.  Generally applies in vicarious liability.  Tortfeasor who has discharged the liability is entitled to indemnity from actual wrongdoer (i.e. employer from employee).

Front 60

STRICT LIABILITY:  Products Liability

Back 60

1.  Product was defective in manufacture, design, or failure to warn;

2.  Defect existed when it left D's control; and

3.  Defect caused P's injury when used in reasonably foreseeable way.

 

Manufacturing defect:  Product doesn't conform to D's own specs.

Design defect: 

(i)  Consumer expectation test:  Dangerous beyond expectation of ordinary consumer

(ii)  Risk-utility test:  Reasonable alternative design (economically feasible) available to D; failure to use that design rendered product unreasonably unsafe.  OH:  This test, but consumer expectations still a factor.

Failure to warn:

(i)  Foreseeable risk of harm;

(ii)  Not obvious to ordinary user;

(iii)  Risks could have been reduced or avoided w/ reasonable instructions or warnings.

OH:  Manuf. knew/should have known about risk and failed to warn. 

Front 61

Warranties

Back 61

Implied:

1.  Merchantability - reasonably fit for ordinary purpose.

2.  Fitness - seller must know particular purpose and know buyer relied on skill or judgment in suplying product.

 

P need not prove fault and can recover pure economic loss!

 

Express:

1.  Affirmation of fact or promise that is part of the basis of a bargain.

Front 62

Negligent Misrepresentation

Back 62

1.  D (usually an accounting firm or other supplier of commercial info)

2.  Provides false information as a result of negligence in preparing info.

3.  P justifiably relies on the info and incurs pecuniary damages as a result.

(i)  P must be in K relationship with D or D knows P is a member of a limited group for whose benefit the info is supplied;

(ii)  Info must be relied on in a transaction that D intends to influence or knows recipient intends to influence.

 

All negligence defenses can be raised (unlike intentional misrep).