Lsb 5163 Unit 3

Front 1

Wrongful conduct that causes injury to another person or property is a:

Back 1

Tort
(similar to crimes - many crimes include a tort, but not all torts include a crime)

Front 2

A criminal case requires evidence to convince the jury beyond a reasonable doubt. At tort requires ____________ or ____________.

Back 2

a preponderance of evidence,
clear and convincing evidence

Front 3

A criminal case results in conviction or acquittal. A tort results in _______ or _______.

Back 3

liable, not liable

Front 4

For a criminal case, the victim's role is as witness. For a tort, the victim's role is _______ or _______.

Back 4

plaintiff, injured party

Front 5

A defendant in a criminal case may face fines or incarceration. A defendant in a tort case may face _________ or _________.

Back 5

damages, equitable remedies

Front 6

For contracts, duties are assumed by the parties of the contract. For tort law, duties are imposed by _______.

Back 6

society

Front 7

For an intentional tort, the plaintiff must prove 4 elements. Name them.

Back 7

act, intention, causation, injury/damages

Front 8

Prima facie case for intentional torts include what 4 elements?

Back 8

Act (volitional)
Intent
Causation
Damages

Front 9

Transferred intent may be used with which 5 intentional torts?

Back 9

assault
battery
false imprisonment
trespass to chattel (personal property)
trespass to land

Front 10

If the tortfeasor did something or set something in motion that was a substanstial cause of injury to the plaintiff, this satisfies the ______ element of the prima facie case for intentional torts.

Back 10

causation

Front 11

_______ are presumed for some intentional torts - no evidence needed - but required for others.

Back 11

Damages

Front 12

For the intentional tort of assault, the act creates _____________ of immediate harmful or offensive contact.

Back 12

a reasonable apprehension
(so you cannot assault someone who's asleep - they cannot apprehend) (fear not required, just apprehension)

Front 13

An unexcused harmful or offensive contact with the plaintiff or the plaintiff's person is known as:

Back 13

battery
(intentional tort)

Front 14

T/F If an employee had taken a "detour" from normal duties, the employer has liability for an intentional tort.

Back 14

true

Front 15

T/F If an employee was off on a "frolic" from normal duties, the employer has liability for an intentional tort.

Back 15

false

Front 16

________ is a defense against false imprisonment in the business context.

Back 16

Shopkeeper's priviledge
(only if shopkeeper had reasonable basis for stopping customer and detention was conducted in a reasonable manner for a reasonable length of time)

Front 17

The intentional tort, "intentional infliction of emotional distress" requires an act of __________ conduct resulting in severe emotional distress.

Back 17

extreme and outrageous

Front 18

Interference with the plaintiff's lawful right of possession of property is the act required for which intentional tort?

Back 18

Trespass to Chattel

Front 19

There are 7 different types of defenses to intentional torts against the plaintiff or the plaintiff's property. Name them.

Back 19

Consent
Self-defense
Defense of others
Defense of property
Replevin (self-help repossession)
Priviledges (absolute or qualified - as in shopkeeper's priviledge)
Necessity - public or private

Front 20

In self-defense, defense of others, or defense of property, what are the 3 limitations on the use of force that can be applied?

Back 20

1. you can only use the amount of force you're faced with
2. if you're coming to the defense of someone else, only use the amount of force they would have used
3. you cannot use deadly force to defend only your property.
(common law rule)

Front 21

The intentional tort of ________ is similar to trespass to chattel, but is more serious.

Back 21

conversion
(involves complete destruction, alteration, or deprivation of property)

Front 22

T/F Innuendo and opinion cannot be construed as defamation.

Back 22

False - they can

Front 23

For libel, damages are _________. For slander, damages must be _________.

Back 23

presumed, proven
(except "slander per se" - loathsome disease, improprieties in professional capacity, serious crime, woman unchaste)

Front 24

Defamation of a public figure requires the additional element of:

Back 24

actual malice
(tortfeasor knew or should have known statement was false - or acted with reckless disregard for the truth)

Front 25

If a public figure's name, image, or catch phrase is used w/o permission, they can sue for:

Back 25

commercial appropriation.

Front 26

The four types of privacy torts are:

Back 26

- commercial appropriation
- intrusion into person's affairs or seclusion
- false light
- public disclosure of private facts

Front 27

The privacy tort that's similar to defamation, but involves revealing private true facts about someone is:

Back 27

public disclosure of private facts

Front 28

A business tort that involves a false statement about a material fact is:

Back 28

fraudulent misrepresentation
(intent to induce reliance on false statement)

Front 29

Wrongful interference with _________ involves intentional interference with business relationship or expectancy.

Back 29

prospective economic advantage

Front 30

Wrongful interference with ________ involves intentionally inducing a contracting party to breach.

Back 30

contractual relationship

Front 31

The two types of business tort disparagement are:

Back 31

slander of title & slander of quality
(requires actual damages)

Front 32

________ is the breach of a general duty of care to avoid unreasonable risk of injury to others.

Back 32

Negligence

Front 33

There are 3 different standards that can be used by the court to determined negligence - name them.

Back 33

1. Reasonable person standard
2. Professionals - higher standard
3. Children - compared to other children of same age/education

Front 34

A legal duty to others may be created by statute. If you don't comply with the duty, this would be considered:

Back 34

negligence per se

Front 35

The law does not impose a general legal duty to rescue others. Name the 3 exceptions to this.

Back 35

1. Once you've started a rescue, you cannot abandon the rescue unreasonably.
2. Special relationship (relative, employer/employee, innkeeper/guest, common carrier/passenger)
3. There is a duty to rescue those you've placed in peril.

Front 36

There is no duty to control the acts of a third person unless you have:

Back 36

have the actual ability and authority to do so.

Front 37

Good Samaritan statutes insulate a licensed caregiver from potential liability of:

Back 37

ordinary negligence
(not gross negligence)

Front 38

Under the traditional approach, a landowner owes no duty of care to:

Back 38

undiscovered trespassers
(there is a duty to protect discovered from harm)

Front 39

Under the traditional approach, a landowner must exercise reasonable care for the protection of:

Back 39

licensees
(those on your property for their own purposes)

Front 40

Under the Attractive Nuisance Doctrine, a landowner could be found negligent for a dangerous condition that might attract children if 6 conditions are met. Name them.

Back 40

- a dangerous condition you know, or should know about
- condition involves unreasonable risk
- young children do not appreciate the risk
- utility of maintaining the condition is not great
- burden of eliminating risk is slight
- failed to exercise reasonable care to protect children

Front 41

T/F A social guest is considered a licensee.

Back 41

True

Front 42

The highest duty of care owed by landowners is to:

Back 42

invitees
(there is a duty to inspect and repair conditions that might be dangerous)

Front 43

Some jurisdictions have dropped the traditional approach in favor of the ________ standard because status of a person can quickly change from invitee to licensee to trespasser in one visit.

Back 43

reasonableness

Front 44

T/F There is no duty to warn for obvious risks.

Back 44

True

Front 45

To show breach of duty to care (negligence), you must demonstrate what happened with evidence and what happened must be:

Back 45

unreasonable

Front 46

The doctrine of ___________ applies when an accident has occured, and it is obvious, although there is no direct proof, that the accident would not have happened without someone's negligence.

Back 46

res ipsa loquitur (the thing speaks for itself)

Front 47

For professionals, negligence =

Back 47

malpractice

Front 48

In addition to establishing breach of duty, a plaintiff claiming negligence must prove that the defendant's breach caused the injury. The causation requirement has two parts: ______ and ______.

Back 48

actual cause, proximate (legal) cause

Front 49

To establish actual causation, the plaintiff must prove he/she would not have been harmed _____ the defendant's negligence.

Back 49

but for
(the "but for" test)

Front 50

When a plaintiff names more than one defendant, the actual cause test may become a:

Back 50

substantial factor test
(was defendant's conduct a substantial factor in causing the plaintiff's injury?)

Front 51

Once the plaintiff has proved that the defendant's conduct is an actual cause of the injury, he/she must then prove that it is:

Back 51

the proximate cause.

Front 52

To prove that a defendant's conduct was the proximate cause of injury, the plaintiff must show an element of:

Back 52

foreseeability
(consequences were foreseeable or plaintiff was a foreseeable plaintiff - plaintiff was in "zone of danger")

Front 53

Under proximate causation, the cause can be _______ or _______.

Back 53

direct (uninterrupted chain of events)
indirect (key is foreseeability)

Front 54

One of the defenses to negligence, ____________, places part of the blame of negligence on the plaintiff.

Back 54

contributory negligence
(only a few states left that still use this)

Front 55

Most states now use the defense to negligence of ___________.

Back 55

comparative fault
(pure comparative fault or 50% rule)

Front 56

Under the doctrine of __________, if the plaintiff was also negligent in any manner, he/she cannot recover any damages from the defendant.

Back 56

contributory negligence

Front 57

Under the doctrine of __________, the plaintiff may recover the proportion of his/her loss attributable to the defendant's negligence.

Back 57

comparative negligence

Front 58

In a(n) __________ jurisdiction, the plaintiff may recover only if he/she is less culpable than the defendant.

Back 58

ordinary comparative negligence
(50% rule)

Front 59

In a(n) __________ jurisdiction, the plaintiff may recover for any amount of the defendant's negligence, even if the plaintiff was the more negligent party.

Back 59

pure comparative negligence

Front 60

The _________ defense to negligence requires that the plaintiff knew of the risk and voluntarily chose to incur the risk (prior to defendant's wrongdoing).

Back 60

assumption of risk

Front 61

A professional who commits ________ is liable to the client and any 3rd party who reasonably relied on the statements.

Back 61

intentional misrepresentation
(fraud)

Front 62

A professional who commits _______, rather than fraud, is liable usually only to the client.

Back 62

negligent misrepresentation (malpractice)

Front 63

An employer may be held liable for __________ if the employer was required to do a background check and failed to, the investigation would have revealed the problem, employee was unfit for position, and the employee's unfitness is proximate cause of injury.

Back 63

negligent hiring

Front 64

_______ is liability without fault.

Back 64

Strict liability
(no intent or negligence)

Front 65

Strict liability is applied in 2 circumstances. Name them.

Back 65

1. product liability
2. ultrahazardous activities

Front 66

If the defendant's activity is ultrahazardous, the defendant is ________ for any injuries that result.

Back 66

strictly liable

Front 67

Any activity that involves serious risk of harm, cannot be performed with complete safety, and is not a common activity is considered:

Back 67

an ultrahazardous activity

Front 68

Under strict liability, the duty of care is applicable to all ___________.

Back 68

foreseeable plaintiffs

Front 69

Under strict liability, The rules for breach, causation, and damages are the same as _________.

Back 69

negligence

Front 70

Defenses to strict liability can be ________ or ___________.

Back 70

comparative fault, assumption of risk

Front 71

The primary theories on which a product liability claim can be brought are:

Back 71

1. breach of warranty
2. negligence
3. strict liability

Front 72

A product liability claim that is based on _________ is based on contract law.

Back 72

breach of warranty
(injured person must be in a contractual relationship w/ seller - privity of contract)

Front 73

T/F When suing for product liability under breach of warranty, only the buyer himself/herself can recover.

Back 73

False
(most states also include "horizontal privity" to members of household and guests reasonably expected to use product)

Front 74

If only economic loss is to be recovered, _________ may be the only avenue of recovery.

Back 74

breach of warranty
(torts would not apply if no one is injured)

Front 75

_________ in tort allows a person to recover damages from a manufacturer/seller even in absence of a contract or negligent conduct.

Back 75

Strict liability

Front 76

A strict liability claim can only be filed against a commercial supplier. The plaintiff must prove 4 things:

Back 76

- defective when sold
- unreasonably dangerous
- harm occured because of defect
- product must not have been substantially altered

Front 77

T/F Product liability also applies to services.

Back 77

False

Front 78

A defective product is defined as one that creates a(n) __________ condition.

Back 78

unreasonably unsafe
(dangerous beyond expectations of ordinary consumer - or - a less dangerous alternative is available)

Front 79

If the societal value of using a(n) ______________ product outweighs the risk of harm from its use, the manufacturer may be exonerated from liability as long as it provided proper warnings.

Back 79

unavoidably unsafe

Front 80

The 3 ways in which a plaintiff can prove a product is defective are:

Back 80

- manufacturing defect
- design defect
- failure to warn
(inadequate warning/label/instructions)

Front 81

The causation element for product liability requires that the defective condition must be the ______ and _______ cause of injury.

Back 81

actual, proximate (legal cause)

Front 82

_____________ liability may be applied when there are multiple manufacturers of identical products and its hard to prove which one caused the injury.

Back 82

Market share
(establishes actual causation by calculating percentage of market share)

Front 83

The six types of defenses to product liability are:

Back 83

- assumption of risk (ie, baseball game)
- product misuse (unforeseeable)
- comparative fault
- commonly known (unavoidably unsafe)
- knowledgeable user
- statutes of limitations (from time of injury) & repose (from time of purchase)