De Bar - Torts

Front 1

torts -- Incapacity defense to intetional torts?

Back 1

 Unavailable.

Front 2

torts -- Eggshell P in intentional torts? 

Back 2

Irrelevant.  Intentional tort doctrine applied as if P were an ordinary reasonable person

Front 3

torts -- Intent & Intentional torts 

Back 3

 ALWAYS required.  purpose/goal must be to produce the forbidden result.

Front 4

torts -- Transferred Intent Doctrine 

Back 4

Requisite intent for purpose of establishing intentional tort is met even though a different intentional tort results or a different person is affected.  Intent to produce any forbidden result is enough.

Front 5

torts -- Elements of a Battery 

Back 5

 1. Intent2. harmful or offensive contact3. w/ P's person

Front 6

torts -- What is offensive contact for purposes of establishing a battery? 

Back 6

objective standard -- contact not permitted by an ordinary reasonable person under the circrumstances.

Front 7

torts -- what qualifies as contact with P's person for purposes of battery?

Back 7

 contact with P or anything P holds or touches.

Front 8

torts -- Elements of an Assault 

Back 8

1. Intent
2. P is placed in apprehension
3. of an immediate battery

Front 9

torts -- "apprehension" in an assault 

Back 9

 means "knowledge," not fear of 

Front 10

torts -- Effect of D's inability to consummate a battery on an assault claim? 

Back 10

 Irrelevant.  unless P has knowledge of inability.

Front 11

torts -- "immediacy" and assault 

Back 11

 mere words are not sufficient.  a menacing act is required.NOTE: words can negate conduct, however.

Front 12

torts -- Elements of False Imprisonment

Back 12

 1. Intent2. D conducts an act of restraint3. which results in P's confinement in a bounded area

Front 13

torts -- What constitutes an "act of restraint" for purposes of establishing a false imprisonment claim?

Back 13

1. a physical act of restraint2. a threat that is persuasive to an ordinary person3. an omission if D owed P a preexisting duty to facilitate P's free movement.

Front 14

torts -- P's awareness of D's act or restraint in a false imprisonment claim? 

Back 14

P must be aware or harmed physically or mentally by D's act.

Front 15

torts -- What constitutes a "bounded area" for purposes of a false imprisonment claim? 

Back 15

 1. freedom of movement must be blocked in all directions.2. no bounded area where there is a reasonable means of escape that P can reasonably discover.

Front 16

torts -- "Reasonable means of escape"? 

Back 16

 Not reasonable where method of escape is dangerous, disgusting, humiliating, etc.

Front 17

torts -- Elements of Intentional Infliction of Emotional Distress Claim?

Back 17

1. Intent2. Outrageous conduct3. that causes P to suffer severe emotional distress

Front 18

torts -- What constitutes "outrageous conduct" for purposes of an IIED claim? 

Back 18

conduct exceeding all bounds of decency tolerated in civilized society. mere insults are not enough.

Front 19

torts -- Special classes of persons under IIED doctrine?

Back 19

1. young children2. elderly people3. pregnant women4. racial or ethnic minorities if insult relates to that person's race or enthinicity

Front 20

torts -- what constitutes severe emotional distress for purpose of IIED claim?

Back 20

 ??  No brightline.  No physical symptoms necessary.

Front 21

torts -- Elements of Trespass to Land claim

Back 21

1. Intent (to be at that spot; not intent to trespass)2. An act of physical invasion3. onto land

Front 22

torts -- How can one "physically invade" land for purpose of trespass to land?

Back 22

1. D may physically enter property2. D may propel a tangible object onto land (NOTE: intangible objects (e.g., light, sound) do not count).

Front 23

torts -- what counts as "land" for purpose of trespass to land claim? 

Back 23

Any area above, on, or below land that land possessor may make reasonable use of.

Front 24

torts -- Elements of Trespass to Chattels and Conversion 

Back 24

 1. Intent2. interference with P's personal property by damaging property or depriving P of exclusive possession

Front 25

torts -- Distinguishing trespass to chattels from conversion? 

Back 25

Difference lies in the degree of harm.  More substantial the interference with property, the more likely it is conversion.

Front 26

torts -- Remedies for trespass to chattels and conversion? 

Back 26

TTC = repair cost/ rental costConversion = FMV of property (a forced sale)

Front 27

torts -- Types of consent sufficient to defend against claim of intentional tort? 

Back 27

 1. Express consent - words giving D permission to act in an otherwise tortious manner.2. Implied consent based on custom or common usage (e.g., subway ride)
3. Implied consent based on D's reasonable interpretation of P's objective conduct

Front 28

torts -- Scope of consent defense to intentional torts? 

Back 28

 scope of P's consent cannot be exceeded by D's act.

Front 29

torts -- Establishing Self Defense/Defense of Others/Defense of Property to an intentional tort claim? 

Back 29

D must demonstrate she:1. acted with proper timing (e.g., threat was imminent or in progress.2. had reasonable belief purported threat was genuine, and3. degree of force used was proportional to purported threat.

Front 30

torts -- when is deadly force appropriate to defend against an intentional tort? 

Back 30

only in the case of self-defense or the defense of others when meeting a threat of deadly force or substantial bodily harm.  deadly force is NEVER appropriate to defend property.

Front 31

torts -- To what intentional torts may necessity be offered as a defense? 

Back 31

 1. Trespass to land2. Trespass to chattels3. COnversion

Front 32

torts -- Public necessity defense to intentional property torts? 

Back 32

D interferes with property in an emergency to protect the community as a whole or a significant amount of people.  An ABSOLUTE defense.

Front 33

torts -- Private necessity defense to intentional property torts? 

Back 33

D interferes with property in an emergency to protect an interest of his own.

Front 34

torts -- Effect of a successful private necessity defense? 

Back 34

1. D must pay for actual harm caused to property.2. D never owes nominal or punitive damages3. as long as need continues, p must tolerate interference with her property.

Front 35

torts -- When is private necessity an absolute defense? 

Back 35

 When D acts to protect property of the P.

Front 36

torts -- Elements of a defamation claim 

Back 36

1. D makes a defamatory statement about P2. D publishes that statement3. Damages (maybe)

Front 37

torts -- What is a "defamatory statement"? 

Back 37

An oral or written statement tending to adversely affect P's reputation.  An allegation of fact that reflects negatively on a trait of character (e.g., honesty, peaceableness, competence, morality, etc.).

Front 38

torts -- How is a defamatory statement "published"? 

Back 38

By disclosing (intentionally or negligently) to at least one 3rd party.

Front 39

torts -- When are damages preseumed from a defamatory statement? When are they not?

Back 39

Presumed -- Libel, Slander per se.Not presumed (i.e., actual damages must be proven) -- Slander

Front 40

torts -- Libel? 

Back 40

A defamatory statement that is permanent in nature.  Damages are presumed.

Front 41

torts -- Slander per se? 

Back 41

Spoken defamation that is within one of four categories:
1. statement about P's business or profession
2. a statement regarding a crime of moral turpitude
3. a statement imputing unchastity to a woman
4. a statement that P suffers from a loathsome disease (leprosy, venerial disease)

Front 42

torts -- Affirmative defenses to a defamation claim?

Back 42

 1. Consent2. Truth of the statement3. Absolute or Qualified privilege

Front 43

torts -- Absolute privilege defense to defamation or privacy claims?

Back 43

 1. Spouses2. Govt officials making statement in course of duties.

Front 44

torts -- Qualified privilege defense to defamation or privacy claims? 

Back 44

Requires:1. good faith reasonable belief that info is true2. privilege is confined to statements relevant to encouraging public candor (e.g., letters of recommendation, statements to public).

Front 45

torts -- Defamation & matters of public concern -- additional requirements? 

Back 45

 1. P must show that statement is false/inaccurate.2. Fault - degree of fault depends on who P is.

Front 46

torts -- Defamation, matters of public concern, and the degree of fault necessary to state a successful claim? 

Back 46

1. Public figure P - requires that D knew infor was false and D disseminated anyway; OR that D disemminated info recklessly.
2. Private figure P - must show that D disemminated statement negligently

Front 47

torts -- Elements of a Fraud claim

Back 47

 1. affirmative misrepresentation of a material fact
2. D's knowledge or belief that statement was false at time of making
3. intent to induce P to act or refrain from acting in reliance on statement
4. actual reliance by P
5. reliance was justifiable
6. damages

Front 48

torts -- Interference with business relations -- elements 

Back 48

1. existence of a valid biz relationship between P and 3rd party OR a valid biz expectancy of P2. D's knowledge of the relationship or expectancy3. intentional interference inducing a breach or termination of the relationship or expectancy4. damages

Front 49

torts -- Elements of a Malicious Prosecution claim 

Back 49

1. Institution of criminal proceedings against P2. termination in P's favor3. absence of probable cause4. improper purpose5. damages.

Front 50

torts -- Elements of an Abuse of Process claim 

Back 50

1. Wrongful use of process2. An act or threat against P to accomplish an ulterior purpose.

Front 51

torts -- 4 Privacy torts 

Back 51

 1. Appropriation2. Intrusion upon seclusion3. False Light4. Disclosure of private info

Front 52

torts -- Appropriation

Back 52

D uses P's name or picture for a commercial purpose.Exception --> newsworthiness

Front 53

torts -- Intrusion upon seclusion 

Back 53

An inasion of P's seclusion in a way that would be objectionable to an ordinary person.  NOTE --> P must have a reasonable expectation of privacy.

Front 54

torts -- False Light

Back 54

 Widespread dissemination of a major falsehood about P that would be objectionable to the average person.  NOTE --> A SL tort; no intent requirement.

Front 55

torts -- Disclosure of Private Info

Back 55

Widespread disclosure of confidential, truthful information that would be objectionable to the average person.  NOTE ---> newsworthiness exception.

Front 56

torts -- Basic elements of a Negligence claim

Back 56

1. Duty2. Breach3. Causation4. Damage

Front 57

torts -- What is a "duty"?

Back 57

The obligation to take steps to reduce risk to others posed by one's own activities.
 

Front 58

torts -- To whom is a duty owed?

Back 58

To all foreseeable victims.  In other words, no duty is owed to unforeseeable victims.

Front 59

torts -- Who are "unforeseeable" victims?

Back 59

 Persons outside of the "zone of danger."NOTE --> scope of ZOD depends on nature of activityNOTE --> Rescuers may recover even though unforeseeable (i.e., outside of ZOD)

Front 60

torts -- How is one's duty met? I.e., what standard of care is owed to foreseeable victims?

Back 60

That of a reasonably prudent person acting under similar circumstances.

Front 61

torts -- 2 exceptions to RPP standard?

Back 61

 1. D has superior knowledge/expertise2. D's physical characteristics

Front 62

torts -- DE & Assumption of Risk

Back 62

2 categories:
1. Primary assumption of Risk -- D owes no duty where P agrees to take his chances from a known risk.
2. Secondary assumption of risk -- a sort of comparative negligence analysis of the reasonableness of P's conduct in encountering the risk.

Front 63

torts -- Who can recover under DE's wrongful death statute?

Back 63

Surviving spouse, parents, or siblings; or, if none such exist, those related by blood or marriage.

Front 64

torts -- What damages are recoverable under DE's wrongful death statute?

Back 64

 1. pecuniary loss2. mental distress.  NOTE --> unavailable for parents if there is a surviving spouse or child; unavailable for siblings if there is a surviving parent
 

Front 65

torts -- Chance of survival & causation in DE

Back 65

Under DE decisionabl law, where a decedent had a better than 50% chance of survival had the D not been negligent, causation is established.

Front 66

torts -- loco parentis doctrine

Back 66

Individuals/entities acting in place of parents (e.g., schools, teachers) ower a duty of care to children left in their care.

Front 67

torts -- Standard for awarding punitive damages in DE

Back 67

"wanton or wilfull disregard for the rights of P""an act which is so unreasonable and dangerous that D either knows or should know that there is an eminent likelihood of harm...the I don't care attitude"

Front 68

torts -- privilege defense to interference with biz relations

Back 68

 usually recognized where D's acts constitute a proper attempt to obtain business for itself or protect its interests.  
NOTE--> more likely ot be found where (i) D is a competitor; (ii) D interferes with prospective advantage rather than with existing Ks.

Front 69

torts -- Standard of care owed by children?

Back 69

 1. under 4 --> no duty2. ages 4-18 --> the care of a hypothetical child of similar, age, experience and intelligence acting under similar circumstances.

Front 70

torts -- Exception to specialized standard of care for children?

Back 70

when child is engaged in adult activities (e.g., driving).

Front 71

torts -- Standard of care owed by professionals?

Back 71

care of an average member of the same profession practicing in a similar community.

Front 72

torts -- Doctors, relevant "community," and standard of care?

Back 72

1. PCPs -- docs practicing in similar -sized regions2. specialists -- the nation-wide community of those specialists.

Front 73

torts -- 4 categories of deviation from the RPP standard of care?

Back 73

 1. children2. professionals3. land owners/possessors4. negligence per se

Front 74

torts -- 2 questions relevant to determining standard of care owed by land possessors?

Back 74

 1. How did the entrant get hurt?2. What kind of entrant is the P?
 

Front 75

torts -- Standard of care owed to undiscovered trespassers by a LP?

Back 75

No duty of care owed.

Front 76

torts -- Standard of care owed to discovered or anticipated trespassers by a LP?

Back 76

 1. Activities carried out by LP --> RPP standard
2. Hazardous conditions --> RPP standard only if: (a) condition is artificial; (b) condition is highly dangerous; and (c) condition is not readily-appreciable by entrant.

Front 77

torts -- Who are licensees?

Back 77

individuals entering with permission, but NOT to confer an economic benefit on the LP. (e.g., social guests)

Front 78

torts -- Standard of care owed to licensees by LP?

Back 78

1.  Activities carried out by LP --> RPP standard
2. Hazardous conditions --> RPP standard only if: (a) condition is concealed from licensee; and (b) condition was known in advance  to LP.
 

Front 79

torts -- Who are invitees?

Back 79

Individuals entering with permission to confer an economic benefit on LP, OR persons on land that is open to the general public.

Front 80

torts -- Standard of care owed to invitees by LP?

Back 80

 1. Activities of the LP --> RPP standard
2. Hazardous conditions --> RPP standard if: (a) condition is concealed from invitee; and (b) LP either (i) knew of condition in advance or (ii) could discovered condition with reasonable inspection.

Front 81

torts -- "Attractive Nuisance" Doctrine

Back 81

LPs owe RPP standard of care with respect to artificial conditions on his property that may attract children.

Front 82

torts -- Satisfying duty to protect against a hazardous condition?

Back 82

1. fix the condition2. give a warning.

Front 83

torts -- Substituting a statutory standard of care? I.e., Establishing a negligence per se claim?

Back 83

 P must demonstrate:1. he is a member of the class of persons statute is trying to protect, and2. accident is within the class of risks the statute is trying to prevent.

Front 84

torts -- Exceptions to negligence per se doctrine?

Back 84

 1.  where statutory compliance would have been more dangerous than violation under the circumstances
2. where compliance is impossible under the circumstances.

Front 85

torts -- Exceptions to the No-duty-to-rescue rule (no duty to act affirmatively)?

Back 85

1. If D caused the peril2. If there is a pre-existing legal relationship between D and P (e.g., parent-child; EE-ER)3. Common carriers, innkeepers, and others that gather the public for profit.

Front 86

torts -- When there is an affirmative duty to act, what is the scope?

Back 86

 A RPP in similar circumstances; no need to risk one's own life.

Front 87

torts -- Gratuitous rescuers-- do they owe a standard of care?

Back 87

Yes. that of a reasonably prudent rescuer.

Front 88

torts -- Basic Negligent Infliction of Emotional Distress claim?

Back 88

 1. D's negligence exposed P to physical danger
2. P was in zone of danger
3. P shows a subsequent physical manifestation of distress.

Front 89

torts -- Establishing a NIED claim for bystanders?

Back 89

 1. P witnesses a direct negligent physical injury to another as it happens
2. the injured person is a close family member
3. bystander suffers subsequent physical manifestation of distress

Front 90

torts -- NIED w/out zone of danger?

Back 90

1. D directly causes severe emotional stress that is likely to result in physical symptoms
2. there is a special relationship between P and D (e.g., doctor/patient).

Front 91

torts -- 2 sentences to describe breach

Back 91

"P will allege that D behaved unreasonably by..." "This is unreasonable because ..."

Front 92

torts -- Res Ipsa Loquitor

Back 92

Doctrine used when P cannot prove D's specific wrongdiong.

Front 93

torts -- Satisfying res ipsa claim?

Back 93

1. accident which occurred normally does not occur in the absence of negligence.
2. accident which occurred is normally due to someone in D's position. (control of injurious instrumentality)

Front 94

torts -- Establishing causation

Back 94

2 elements:1. Actual (but for) causation2. proximate causation

Front 95

torts -- But for causation? 

Back 95

but for the breach, there would be no injury.Is the breach crucial to the injury?

Front 96

torts -- Cases where but for test does not apply?

Back 96

Merged causes -- 2 or more Ds release independent forces that merge and cause harm.  In such a case, the substantial factor test applies (would force have been capable of causing harm on its own?)

Front 97

torts -- Proximate cause?

Back 97

 A fairness inquiry.  Ds are responsible for the foreseeable consequences of their actions.

Front 98

torts -- Direct injuries and Proximate cause

Back 98

freakish or bizarre injuries are NOT foreseeable.  All others are.

Front 99

torts -- Indirect injury & Proximate cause

Back 99

All satisfy proximiate cause:
1. intervening medical negligence
2. intervening negligent rescue
3. intervening protection or reaction forces
4. subsequent accident or disease

Front 100

torts -- Basis proximate cause inquiry

Back 100

 1. Look to breach and determine what it is about 's conduct that makes it negligent2. look to P's injury and determine whether it is the type of injury implicated by D's conduct

Front 101

torts -- Eggshell P Doctrine

Back 101

P recovers for all damage suffered even if suprisingly great.  D takes P as he is.

Front 102

torts -- SL & Injuries Caused by animals

Back 102

1. Domesticated Animals -- No SL; negligence standard applies UNLESS owner has knowledge of animal's vicious propensities.2. Wild animals -- SL applies.
 

Front 103

torts -- What is an "abnormally dangerous activity"?

Back 103

 1. activity creates foreseeable risk of serious harm even when reasonable care is exercised2. activity is not a matter of common usage in community.

Front 104

torts -- Elements of a Strict Products Liability claim

Back 104

 1. D must be a merchant (someone routinely dealing in goods of that type)
2. P must demonstrate product is defective
3. P must demonstrate product has not been altered since leaving hands of D, and
4. P must show it was making foreseeable use of product at time of his injury.
 

Front 105

torts -- What is a manufacturing defect?

Back 105

Product departs from intedned design in a way making it more dangerous than a consumer would expect
 

Front 106

torts -- What is a design defect?

Back 106

Product could have been designed differently and the alternative design:
1. is safer than what was put on market
2. is economical (costs about the same to produce)
3. is practical (does not undermine product utility or ease of use)

Front 107

torts -- What is a warning defect?

Back 107

A subset of design defect.  Elements:1. product must have risks that cannot be designed away, and 2. the risks must be non-obvious

Front 108

torts -- When is there a presumption of non-alteration for SL products claims?

Back 108

Where product comes from normal channels of distribution.

Front 109

torts -- Nuisance

Back 109

1. A type of harm; not a tort.2. Defined: Interference with the ability of LP to enjoy property to a reasonable degree.3. a SL offense (intent, negligence, etc. is irrelevant)

Front 110

torts -- "Coming to the nuisance"

Back 110

 Not a defense.  A D cannot render adjacent property unusable.

Front 111

torts -- How do courts make a nuisance determination?

Back 111

Balancing test --> P's right to enjoyment v. D's interest in using land as he wishes

Front 112

torts -- Respondeat Superior

Back 112

Theory of vicarious liability holding an employer liable for the torts of its employees conducted within the scope of that employee's employment.

Front 113

torts -- When are intentional torts within the scope of employment?

Back 113

 1. intentional torts are expected as part of the job b/c job involves (a) physical force or (b) friction (e.g., repo man).2. repeated overzealous acts purported to serve the interests of ER.

Front 114

torts -- When is an LP liable for torts of an independent contractor?

Back 114

Where independent contractor injures an invitee

Front 115

torts -- Comparative contribution

Back 115

An out-of-pocket D is entitled to contribution from other D's according to each D's percentage of fault

Front 116

torts -- Instances where indemnification is warranted?

Back 116

 1.  Vicariously liable D entitled to indemnification from active tortfeasor
2. Non-manufacturers in distribution chain entitled to indemnification by manufacturer.

Front 117

torts -- Loss of consortium

Back 117

 A personal cause of action for spouses of tort victims.

Front 118

torts -- Loss of consortium damages

Back 118

3 types:
1. loss of services
2. loss of society
3. loss of sexual intimacy