Dass Bar Review- Torts

Front 1

Super Sensitive Plaintiff

Back 1

Plaintiff's supersensitivities are not taken into account UNLESS D knows about them.
- treat P as average person

Front 2

Liability for Intentional Torts

Back 2

Everyone is liable!
- No exceptions

Front 3

Transferred intent

Back 3

can be from person to person and tort to tort

Front 4

Tort to Tort transferred intent applies to:

Back 4

battery, assult, false imprisonment, trespass to land, trespass to chattels

Front 5

Battery

Back 5

1. harmful or offensive contact - apply very liberally
2. w/ P's person

Front 6

Assault

Back 6

1. apprehension
- does not have to be fear or intimidation
- apparent ability is enough (unloaded gun example)
MT- must not be of a simple touch
2. of an immediate battery

Front 7

Immediate battery means

Back 7

there must be immediacy, words alone are not enough, but words can UNDO conudct and any reasonable apprehension

Front 8

False imprisonment

Back 8

1. sufficient act of restraint
- threates are enough
2. bounded area
MT- Officer with reasonable belief excluded and merchant may temporarily detain shoplifters (30 minutes)

Front 9

knowledge requirement for false imprisonment

Back 9

P must know of the confinement unless the confinement actually injures P

Front 10

Shoplifting Detentions

Back 10

1. reasonable belief as to theft
2. reasonable manner of detention
3. detention for a reasonable period of time

Front 11

bounded area for false imprisonment

Back 11

must be restrained in all directions, not just inconvienence
- area is not bound if there is:
1. a reasonable means of escape and
2. P knows of it

Front 12

Intentional Infliction of Emotional Distress

Back 12

1. Outrageous Conduct
- conduct must be extreme
2. Damages
- do not require actual physical injury but must have proof of SUBSTANTIAL emotional distress
MT- under circumstances where serious or severe emotional distress was reasonably foressable consequence

Front 13

ways to make normally non-outrageous conduct, outrageous

Back 13

1. conduct is continuous
2. type of P: young children, elderly person, pregnant women, adults with supersensitivities D knows about
3. type of D: common carriers, inn keepers (conduct the same but done by this type of D- Screw um)

Front 14

Common Carriers and Innkeepers

Back 14

higher standard of care imposed but rule only applies to passanger or guest

Front 15

Trespass to land

Back 15

1. act of physical invasion by d
- does not have to be D personally
- has to be something physically (ex. not music from next door)
2. of P's land
- includes a reasonable space going up and down

Front 16

Trespass to Chattels or Conversion

Back 16

little damage= trespass to chattels, p gets cost of repair
lots of damage= Conversion, p gets full fair market value

Front 17

Defenses

Back 17

1. consent
2. defense of self, other or property
3. necessity

Front 18

consent

Back 18

1. P had capacity (if not invalid consent)
2. whether consent was express or implied
3. whether D was within boundaries of consent

Front 19

Defense privileges- self, others, property

Back 19

1. timing- must be now or just about to occur, if it has already occurred= no defense
2. whether there was a reasonable belief that tort is being committed
3. proper amount of force
MT- force likely to cause substantial injury or death can be used for occupied structures if 1) violent entry or 2) necessary to prevent procible felony

Front 20

hot pursuit doctrine for self defense

Back 20

if one is in hot puruit of another who has wrongfully taken his/her chattel, the tort is regarded as sill occurring. Thus, the timing test is satisfied

Front 21

Duty to retreat

Back 21

general rule- there is no duty to retreat before using self defense
minority rule- there is a duty to retreat before using serious force if someone 1. do it safey, and 2. is not in his/her own home

Front 22

proper amounts of force

Back 22

- for defense of self and others: one may use REASONABLE force, including deadly force

- for property- one may never use force calculated to bring about serious bodily injury
note: if you're in your home this is not defense of property, it's defense of self

Front 23

Necessity

Back 23

- only in property torts (most likely trespass)

Front 24

public necessity

Back 24

benefit of many is an absolute, unlimited privilege. NO liability

Front 25

private necessity

Back 25

benefit of a limited number and is a limited privilege and defendant will be liabile for:
actual damages

note: necessity prevails over defense of property

Front 26

Defamation

Back 26

- injury to reputation
1. defamatory statement about P
2. Publication (fault)
3. damage to P's reputation
Under MT law P has burden to prove falisty
if first amendment applies:
4. falsity
5. fault

Front 27

a defamatory statment

Back 27

injures p's reputation

Front 28

publication requirement for defamation

Back 28

1. requires communication to third person
2. intentionally or negligently made

Front 29

Damage requirement for Defamation

Back 29

- Libel (written or broadcast)- damage is prsumed
- Slander- Defamation is spoken
- Slander Per Se-
1. business or profession
2. crimes involving moral turpitude
3. Loathsome Disease (leprosay and venereal disease)
4. imputing unchasity to woman

Front 30

Defense to Defemation

Back 30

1. consent (express or implied, capacity, within scope)
2. truth (unless 1st amendment case)
3. absolute and qualified privileges

Front 31

Absolute privileges to defemation

Back 31

1. communcation between spouses
2. three governmental branches: executive, legislative, and judicial

Front 32

qualified privileges

Back 32

can be lost if abused
- no definitive test. If you fell that we would like to encourage this type of communication give d a qualified privilege
ex. reference

Front 33

first amendment is interplay with defemation when:

Back 33

public concern. then must prove:
- falsity (burden is shifted to P)
- fault - 1. intentional 2. reckless and 3. negligence (type depends on type of P)

Front 34

Commercial Advantage

Back 34

pormotion of goods or services

Front 35

Appropriation

Back 35

use of p's name or picture for d's commercial advantage

Front 36

intrusion into p's privacy or seclusion

Back 36

would a reasonable person object to this kind of intrusion

Front 37

publication of facts placing p in a false light

Back 37

- requires wide dissemination of the statement
note: if it is a matter of public concern P should lose (too hard to prove)

Front 38

Publication of private facts about P

Back 38

Would a reasonable person object to the publication (wide dissemination) of thse facts? are they sufficiently private?
(no defamation or false light because statement is true)

Front 39

Intentional Misrepresentation

Back 39

1. mistatement of fact, not opinion (unless an expert)
2. statement was made knowing it was false or with reckless disregard for the truth (scienter)
3. intent to induce reliance
4,. justifiable reliance (no duty to investigate)
5. causation/damages

Front 40

Negligent Misrepresentation

Back 40

1. Misrepresentation
2. Negligence
3. intent to induce reliance
4. justifiable reliance
5. causation/damages
( can only be used in commercial setting fact pattern)

Front 41

Interference with business relations

Back 41

1. valid relationshiop between P and 3rd person (exisiting or prospective but stronger if existing)
2. D knows about relationship
3. intentional interference
4. damage

Front 42

Defenses to Interference with business relationships

Back 42

1. look at conduct, just words not as strong as physical persuasion
2. relationship between parties (competitors, relatives, lawyer, etc)

Front 43

Negligence

Back 43

1. duty
2. breach
3. causation
4. damages

Front 44

Duty Analysis

Back 44

1. Forseeable Plaintiff (rescuers and viable fetuses always forseeable)
2. Standard of care

Front 45

Zone of danger analysis

Back 45

This is measured from the negligent conduct. P is not foreseeable if not within the zone

Front 46

Reasonable person standard

Back 46

- objective standard
- use the hypothetical person to compare D's conduct to
- mental ability not taken into acct (ex. IQ) but physical characteristics are taken into account

Front 47

Disabled Defendant

Back 47

if D knows of his/her disability he/she is supposed to act as a reasonable person with it would act

Front 48

Children Standard

Back 48

Compre to children of like age, intelligence and experience
- subjective standard
EXCEPT- if child is engaged in adult activity

Front 49

professionals standard

Back 49

a reasonable person in the same or similar communties
- we do take expertise into account

Front 50

common carrier and innkeepers standard

Back 50

will be held liable for only slight negligence but Plaintiff but be a passanger or a guest

Front 51

Privity required for owner/occupier standards

Back 51

must be either the owner or occupier or in privity (ex family member, employees)

Front 52

Undiscovered Trespasser

Back 52

No duty owing him/her

Front 53

Activity caused harm on land

Back 53

standard is ordinary negligence and P's status is irrelevant
- use reasonable person standard

Front 54

discovered trespasser- dangerous condition

Back 54

1. artificial conditions
2. involving risk of serious injury
3. o/o knows of condition

Front 55

licensee- dangerous condition

Back 55

door-to- door salesman, social guests
1. all dangerous conditions
2. o/o knows of

Front 56

invitee- dangerous condition

Back 56

business, public invitees
1. all dangerous conditions
2. o/o should know about
(o/o must make reasonable inspection of property)
- when in doubt between licensee and invitee choose invitee

Front 57

dischaging o/o duties

Back 57

can either warn or make safe

Front 58

very obvious dangerous condition

Back 58

no liability, carries own inherent warning

Front 59

Infant trespasser

Back 59

The child mut be able to show that he/she did not understand the risk involved

Front 60

For statutory standard to apply:

Back 60

1. P must fall within protected class and
2. statute must be designed to prevent this kind of harm

Front 61

effect of non-compliance with applicable statute

Back 61

= negligence per se
but P must still show negligence caused damages and damages

Front 62

Excuse for non-compliance with statutory standards

Back 62

1. complaince would be more dangerous
2. impossibility

Front 63

Effect of compliance with applicable statute

Back 63

not necessarily establish standard of care if the circumstances require more

Front 64

Negligent infliction of emotional distress

Back 64

1. physical injury (shock is enough)
2. be in target zone of d's negligent conduct

Front 65

affirmative duty to act

Back 65

generally no duty to act unless:
1. special relationship between parties
2. duty to control third persons
3. assumption of duty to act by acting
4. p's peril due to d's negligence

Front 66

Res Ipsa Loquitor

Back 66

1. inference of negligence
2. negligence attributable to D
3. P not contributorily negligent

Front 67

Causation in fact

Back 67

1. but/for test
2. substantial factor test (MT uses)
3. alternative causes test

Front 68

substantial factor

Back 68

Where 2 more more actors act and either act alone would have caused the damages this test is met

MT- Uses substantial factor

Front 69

Alternative causes test

Back 69

two ore more negligent d's but uncertainty as to which caused the injury
- burden shifts to Ds to show which one caused it. If they cannot succeed then the will both be held liable

Front 70

Proximate Causation

Back 70

Based on foreseeability

Front 71

Egg-shell Plaintiff

Back 71

Not an unforeseeable result cause
- it is only necessary that one be able to foresee an injury, not the extent of the injury

Front 72

Malicious Prosecution

Back 72

1. institution of criminal proceedings
2. termination in P's favor
3. absence of probable cause
4. improper purpose
5. damages

Front 73

abuse of process

Back 73

1. wrongful use of process for an ulterior purpose
2. definite act or threat agaisnt P in order to accomplish ulterior purpose

Front 74

Contributory Negligence

Back 74

negligence on part of P that contributes to her injuries
- bars P's right to recover except for intentional torts

Front 75

Last Clear Chance

Back 75

exception to contributory negligence
- P may recover due to contributory negligence if D had the last clear chance to avoid the accident

Front 76

Assumption of risk

Back 76

defense to negligence in contributory negligence jx
1. known of risk and
2. voluntarily proceeded in the face of the risk

Front 77

Comparative negligence

Back 77

not a complete bar to recovery, trier of fact weighs P's negligence and subtracts it from recovery

Front 78

partial comparative negligence

Back 78

bars recovery if P's negligence is as serious or at least as serious as D's

MT - P's fault 50% or more = no recovery

Front 79

Strict liability

Back 79

1. absolute duty to make safe
2. breach
3. actual and promixmate cause of p's injury
4. damage

Front 80

trespassing animals

Back 80

an owner is strictly liable for reasonably foreeable damage done by a trespass of his animals

Front 81

Domestic Animals

Back 81

no strict liability, unless knowledge of particular animals tendency

Front 82

Wild animals

Back 82

strict liability applies

Front 83

abnormally dangerous activity

Back 83

1. must create a foreseeable risk of serious harm even when reasonable care is exercised and
2. not a matter of common usage in community

Front 84

MT Tavernkeepers

Back 84

Not liable unless: a) the consumer is underage and the provider should have known it; b) the consumer was visibly intoxicated; or c) the provider forced, coerced, or tricked the consumer into drinking the beverage

Front 85

MT Joint and Several Liability

Back 85

a party determined to be less than 50% or less liable only liable for the amount of negligence attributable to him

Front 86

MT Bad Faith

Back 86

1. Contract
2. Special Relationship (ex. bank/customer, attorney/client)