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168 Cards in this Set

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Is the extreme sensitivity of a tort plaintiff considered in determining whether an intentional tort has been committed?
No. The extreme sensitivity of plaintiff is ignored in deciding whether P has a valid cause of action.
Are there any incapacity defenses to an intentional tort?
No. There are NO incapacity defenses to intentional torts
Intent - Definition (Intentional Tort)
A D has intent if he desires to produce the legally forbidden consequences of the tort
Transferred Intent (Intentional Tort)
So long as the D desires to produce ANY forbidden consequence, he is liable for ALL OTHER forbidden consequences
Battery - Elements
1) Harmful or offensive contact
2) Contact must be with the P's person
Battery - Offensive Contact - definition
Offensive = unpermitted by a person of ordinary sensitivity
Battery - Plaintiff's Person - definition
Plaintiff’s “person” includes anything P is holding or touching, or anything P is connected to
Assault - Elements
D must place P in an apprehension of an immediate battery
Assault - "Apprehension"
Apprehension = KNOWLEDGE
Can words alone constitute battery?
No. There must be some accompanying menacing gesture
False Imprisonment - Elements
1) D must commit an act of restraint
2) P must as a consequence be confined in a bounded area
What kinds of things can be an "act of restraint" for purposes of false imprisonment?
1) physical barriers
2) threats
3) failure to act, if there is a pre-existing obligation to help P move
Must a P be aware of an act of restraint in order for false imprisonment to be found?
Yes. An act of restraint only counts if P either:

a. Knows about the restraint, or
b. Is harmed by it

If P oblivious to restraint → no cause of action
Intentional Infliction of Emotional Distress - Elements
1) Outrageous conduct
2) P suffers severe distress
What kind of intent is sufficient for a finding of intentional infliction of emotional distress?
recklessness
Intentional Infliction of Emotional Distress - Outrageous Conduct - Definition
Conduct is outrageous if it exceeds all bounds of decency tolerated in a civilized society
Intentional Infliction of Emotional Distress - Indicators of outrageous conduct
1) conduct is continuous or repetitive
2) D is a common carrier or innkeeper
3) P is a member of a fragile class (children, elderly, pregnant)
For the tort of intentional infliction of emotional distress, does the P need to make any showing of severe distress (e.g. physical symptoms)?
No. The P does not need to make any particular showing of distress, such as physical symptoms. It is a question for the jury.
Trespass to Land - Elements
1) D commits an act of physical invasion
2) P is a possessor of the land
Trespass to Land - intent requirement
The only intent required is that D wanted to get to the location through a voluntary act. It is not necessary that D knows that he is crossing a boundary line or trespassing on property
When can throwing an object onto a piece of land constitute trespass to land?
When it involves the throwing of a tangible object. Light, sound, and odor do not constitute trespass to land.
Who is the proper P in a Trespass to Land suit: the landlord or the tenant in possession?
The tenant in possession
Trespass to Chattel and Conversion - Elements (same for both torts)
1) Intentional interference
2) with personal property
Trespass to Chattel and Conversion - distinction between the torts
1) Degree of interference

a. Modest interference → trespass to chattel
b. Significant interference → conversion

2) Special remedy for conversion - Full market value of chattel (as opposed to just the cost of repair or rental)
Defenses to intentional torts
1) consent
2) necessity
3) protective privileges
Does a P need legal capacity in order to consent to an intentional tort?
Yes. In order to consent, P needs legal capacity to consent
Do children have the legal capacity to consent?
Sometimes. Children can consent to age-appropriate invasions
What are the two ways in which consent can be implied?
1) customary practice
2) based on D’s reasonable interpretation of P’s objective conduct
What are the three types of protective privileges?
1) defense of self
2) defense of third parties
3) defense of property
Protective privileges - Elements
1) threat in progress of imminent
2) reasonable belief that the threat is genuine
3) force limited to that necessary under the circumstances
In New York (minority rule), what must a person do before using deadly force in defense of themselves or a third person?
Retreat, if it is feasible to do so. This does not apply in your own home.
What are the two types of necessity defenses?
1) public necessity
2) private necessity
Public Necessity - definition
Public necessity exists when a D invades P’s property in an emergency, to protect the community as a whole
Private Necessity - definition
D invades property of P to protect his own interest
What are the consequences of a successful public necessity defense
Defendant has no liability
What are the consequences of a successful private necessity defense?
1) A private necessity D is liable to pay actual/compensatory damages for the harm
2) No liability for nominal or punitive damages
3) As long as the emergency continues, D is allowed to remain on P’s land, in a position of safety, and cannot be evicted
Defamation - Elements
1) Defamatory statement
2) Statement specifically identifies P
3) D publishes the statement
4) Damages (maybe)
When is a statement defamatory?
A statement is defamatory if it tends to adversely affect P’s reputation
When can an opinion be a defamatory statement?
Opinions can be defamatory if a reasonable person would assume that it was based on fact
What is the requirement of publication, w/r/t defamation?
In order to be defamatory, D must share the statement w at least one other person other than the D
When must a defamation prove damages? (Majority)
A defamation plaintiff needs to prove damages when alleging slander that falls outside the per se categories
When does a defamation plaintiff not have to prove damages? (Majority)
A defamation plaintiff does not have to prove damages in cases of libel and slander per se
What is libel?
Libel is defamation embodied in a permanent format (e.g. written down, printed, on a hard drive)
Does a libel plaintiff have to prove damages?
No. For libel, P need not prove damages
What is slander?
Slander is an oral defamatory statement
Does a slander plaintiff have to prove damages?
Maybe. A slander P must prove damages if alleging slander that falls outside the per se categories
What is slander per se?
Slander per se is slander that falls into one of the following categories

1) Relates to P’s business or profession
2) Statement that P has committed a crime
3) Moral turpitude
4) Statement imputing unchastity, to a woman (“unchastity” means that a single woman is sexually active
5) Statement that P has a loathsome disease (leprosy or VD)
What kind of damage does a slander (not per se) P have to prove?
Economic harm
What are the defenses to defamation?
1) consent
2) truth
3) privileges (absolute and qualified)
When will a D have a defense of absolute immunity to defamation?
1) Spouses talking to each other
2) Governmental officers engaged in the conduct of official duties
When does a D have a defense of qualified immunity to defamation?
Qualified immunity exists when there is a strong social interest in encouraging candor (e.g. recommendations, statements to police).

D must have a reasonable belief that what he is saying is accurate and must confine statements to matters that are relevant
What is the effect of the 1st Amendment on a defamation claim?
If speaking/writing is a matter of public concern, two extra elements to P's case:
1) P must prove falsity
2) P must prove some degree of fault (at least recklessness for a public figure; at least negligence for a private figure)
What is the degree of fault required for defamation of a public figure in a matter of public concern?
At least recklessness
What is the degree of fault required for defamation of a private figure in a matter of public concern?
At least negligence
Appropriation - Elements
D uses P’s name or image for a commercial purpose
Appropriation - Exception
Newsworthiness
In the tort of appropriation, does the P need to be a celebrity?
No
False light - Elements
D makes widespread dissemination of a major falsehood about P that would be objectionable to the average person. [no intent requirement]
What is the primary difference between defamation and false light?
Intrusion requires widespread dissemination, whereas defamation's "publication" requirement is de minimis
What type of damages are awarded to a successful false light plaintiff?
emotional and economic
What is the ONLY privacy tort recognized in New York?
Appropriation
Intrusion - Elements
Invasion of P’s seclusion in a way that would be objectionable to the average person. P must be in a location w a reasonable expectation of privacy
Disclosure - Elements
Widespread dissemination of confidential information about P that would be objectionable to an average person
Disclosure - Exception
Newsworthiness. Disclosure is ok if there is a legitimate public interest
Defenses to Privacy Torts
1) Consent
2) Qualified and Absolute privileges are available for: false light, and disclosure
Fraud - Elements
1) Misstatement of fact
2) Misrepresentation is made deliberately or recklessly
3) Misrepresentation intended to induce reliance
4) Reliance
5) Economic damage
Prima Facie Tort - Elements
1) Intent to do harm
2) Harm

* NY Only (not MBE)
Inducing Breach of Contract - Elements
1) Contract between P and 3rd party
2) D has knowledge of the contract
3) D engages in persuasion designed to encourage P to breach the contract
4) P breaches contract
When is there a privilege to induce a breach of contract?
When there is a special relationship between the D and the third party (e.g. parent, professional adviser)
Theft of Trade Secrets - Elements
1) Valid trade secret
2) D takes trade secret by improper means
Theft of Trade Secrets - Elements of a Trade Secret
1) Information that provides a business advantage
2) Not generally known
3)Owner takes steps to keep the information secret
Theft of Trade Secrets - What constitutes acquisition by "improper means"?
1) breach of trust (traitorous insider)
2) violating the law
3) violating ordinary standards of commercial reality
Negligence - Elements
1) Duty
2) Breach of duty
3) Causation
4) Damage
Negligence - Duty - Two considerations for the exam
1) To whom is a duty owed?
2) What is the duty?
Negligence - To whom is a duty owed?
A duty is owed to foreseeable victims of carelessness

In other words, outside zone of danger → no liability
Negligence - Duty - Exception

To what class of persons does a negligence defendant owe a duty, despite the fact that they are initially outside the zone of danger?
Rescuers
Negligence - NEW YORK - Pre-natal torts

In New York, does a child have a separate cause of action for injuries sustained as a result of an impact to the body of the pregnant mother?
Maybe.

1) Child born w injuries → child has its own cause of action in his own name

2) Child never born → no separate cause of action for the child (although the mother has a cause of action for the loss of the child)
Negligence - NEW YORK - Pre-natal torts

In New York, what damages, if any can a parent recover if a Dr. misdiagnoses a child's birth defects?
The parents can recover for the costs of caring for the child that are in addition to the costs of raising a healthy child.

They cannot recover emotion distress
Negligence - NEW YORK - Pre-natal torts

In New York, can a parent recover when a child has been born after a botched sterilization?
No.
Negligence - Duty

What is the default duty of care?
The general duty is the level of care as would be given by a reasonably prudent person acting under similar circumstances
Negligence - Duty

When assessing the reasonable person standard, are individual characteristics such as intelligence, developmentally disabled, mental illness, novices/beginners taken into account?
No.
Negligence - Duty

When assessing the reasonable person standard, are individual physical characteristics taken into account?
Yes. Physical characteristics are taken into account if they are relevant.

E.g. height, strength, blindness
Negligence - Duty

In assessing the reasonable person standard, should you take into account the fact that the defendant had superior skill or knowledge?
Yes. The D is judged against a RPP w the same level of skill/knowledge.
Negligence - Duty

In assessing the reasonable person standard, what two types of superior skill and knowledge are relevant?
1) Body of knowledge based on experience w job.

2) Knowledge of an isolated fact relevant to a given situation
Negligence - Duty

In what categories of cases is the reasonable person standard displaced?
1) D is a child
2) D is a professional service provider
3) Duties of possessors of real estate
4) Statutory duties (negligence per se)
5) Duties to act affirmatively
6) Negligent infliction of emotional distress
Negligence - Duty

What is the duty owed by a child under 4?
None. I child under 4 owes a duty to nobody
Negligence - Duty

What is the duty owed by a child between the ages of 4 and 18?
A child between the ages of 4 and 18 is held to standard of one of a hypothetical child of similar age, experience, and intelligence, acting under similar circumstances. This is a subjective test
Negligence - Duty

In what situation will a child between the ages of 4 and 18 be held to a reasonable person standard?
When they are engaged in an adult activity (e.g. driving)
Negligence - Duty

What is the duty owed by a professional service provider?
A professional owes a duty of care of an average member of the profession, practicing in a similar community. This is predominantly determined by custom
Negligence - Duty - NEW YORK

What is the doctor's duty of informed consent?
A Dr’s duty includes the obligation to affirmatively explain risks of a procedure. If there is a failure to inform, and such a risk materializes → negligence
Negligence - Duty - NEW YORK

In what situations is the doctor's duty of informed consent waived? (4)
1) Commonly known risks
2) Patient declines information
3) Patient mentally incompetent
4) Disclosure would be medically harmful
Negligence - Duty

What duty is owed by a possessor of real estate to an undiscovered trespasser?
No duty owed regardless of whether hurt by activity or condition
Negligence - Duty

What is a discovered trespasser?
A discovered trespasser enters land w/o permission, but the possessor knows they are there

Also includes anticipated trespassers
Negligence - Duty

What is the duty owed by a possessor of land to a discovered (or anticipated) trespasser?
1) Duty re: Activities → RPP

2) Duty re: Conditions → duty to protect if:
i. Condition is artificial
ii. Condition is highly dangerous
iii. Condition is concealed
iv. Condition is known by the owner
Negligence - Duty

What is a licensee?
A licensee enters land w permission, but w/o any purpose of conferring commercial benefit to the possessor (e.g. social guests, solicitors)
Negligence - Duty

What is the duty owed by a possessor of land to a licensee?
1) Duty re: Activities: RPP

2) Duty re: Conditions: duty to protect if:
i. Condition known, and
ii. Condition concealed
iii. [doesn’t matter if natural condition; doesn’t matter if not highly dangerous]
Negligence - Duty

What is an invitee?
Invitees enter land either to confer commercial benefit on the property owner, or enter land that is open to the public generally
Negligence - Duty

What is the duty of a possessor of land towards an invitee?
1) Duty re: activity → RPP

2) Duty re: conditions: Duty to protect if:
i. Condition is concealed, and
ii. Possessor knew of the dangerous condition or could have discovered w reasonable inspection
Negligence - Duty

What is the difference between the MBE and NY standards for the duties of possessors of land?
In New York, owners of land are held to a RPP standard without regard to the specific circumstances (i.e. type of entrant, cause of injury)
Negligence - Duty

What is the firefighter's rule?
Police officers and firefighters cannot recover in negligence for the inherent risks of the job
Negligence - Duty

What is the difference between the MBE and NY firefighter's rule?
In New York, the firefighter's rule is only applicable in lawsuits against an employer or coworker
Negligence - Duty

What is the duty owed to a child trespasser injured by an artificial condition on the land?
A child trespasser injured by an artificial condition on the land is owed a duty of a RPP
Negligence - Duty

In what ways (2) can a possessor of land satisfy his duty to protect entrants on the land?
1) fix the problem

2) give a warning
Negligence - Duty

When does a statute set the applicable standard of care?
A statute sets the standard of care if:

1) P falls w/in the class of persons that the statute seeks to protect, AND

2) Injury is in the class of risks that the statute seeks to prevent
Negligence - Duty

In what circumstances (2) does a statute not set the standard of care, despite the fact that the statute meets the general test for negligence per se?
1) Compliance more dangerous than violation → RPP

2) Compliance w statute was impossible → RPP
Negligence - Duty

Is there generally a duty to act affirmatively?
No
Negligence - Duty

Is there generally a duty to rescue a person in peril?
Generally, no. (but there are exceptions)
Negligence - Duty

When is there a duty to rescue a person in peril? (2)
1) Preexisting relationship between D and person in peril (e.g. family, property owner - invitee)

2) D caused the peril, whether due to negligence or not
Negligence - Duty

What is the duty owed by a rescuer, if they decide to attempt a rescue?
If D decides to rescue, must rescue as a RPP.
Negligence - Duty - NEW YORK

What is the NEW YORK Good Samaritan Statute?
1) No liability for negligence for gratuitous rescue by persons in specific occupational classes (nurse, physician, veterinarian)

2) Liable only for gross negligence
Negligent Infliction of Emotional Distress

In order to be liable for a claim of negligent infliction of emotional distress, must the D have violated some other standard of care?
Yes
Negligent Infliction of Emotional Distress

What are the three most common scenarios in which a claim for NIED is likely to succeed?
1) Near miss

2) Bystander claim

3) Preexisting relationship
Negligent Infliction of Emotional Distress

Near miss scenario - elements
1) Negligent conduct put P in zone of physical danger
2) P was distressed
3) Distress produced subsequent physical manifestations
Negligent Infliction of Emotional Distress

Bystander scenario - elements
1) P is a contemporaneous witness
2) To a negligent bodily injury
3) Inflicted on a close family member

* NY Distinction
Negligent Infliction of Emotional Distress

Bystander scenario - elements - NY DISTINCTION
In order to succeed on a bystander claim in NY, P must also be in the zone of danger
Negligent Infliction of Emotional Distress

Preexisting relationship scenario - elements
Preexisting relationship between P and D, and the negligent act can foreseeably cause distress
Negligence - Breach

What two considerations must you write about on the exam?
1) Identify the wrongful behavior

2) Give a reason why the behavior falls short of the standard of care
Negligence - Breach

Res ipsa loquitur - elements
1) Accident is one normally associated w negligence

2) Accident is normally due to negligence of someone in D’s position
Negligence - Causation

What are the two types of causation?
1) Factual causation

2) Proximate causation
Negligence - Causation

What is the general test for factual causation?
But-for test
Negligence - Causation

What is the test for factual causation when there are multiple defendants, and MERGED causes?
Substantial factor test

Ask whether each breach standing alone was theoretically capable of starting the injury
Negligence - Causation

What is the test for factual causation when there are multiple defendants, and an UNASCERTAINABLE cause?
Shift burden to Ds to exonerate themselves if they can. If not → jointly and severally liable
Negligence - Causation

What is the test for proximate causation?
Foreseeability
Negligence - Causation

In a "direct cause" problem, when will a P generally not be found liable?
When the injury is freakish or bizarre
Negligence - Causation

Is a D liable for injuries caused by intervening medical negligence?
Yes
Negligence - Causation

Is D liable for injuries caused by intervening negligent rescue?
Yes
Negligence - Causation

Is D liable for injuries caused by a subsequent disease or accident related to the initial injury?
Yes
Negligence - Causation

What is the general process for determining proximate cause in an "indirect cause" problem?
Focus on the breach, and then ask “why is this a breach, what am I worried is going to happen?” Then, look at what happened to P. If it’s a match → foreseeable
Damages

What is the effect of a P's extreme fragility, assuming that the D has committed all elements of the tort?
D liable for all injuries suffered by P, no matter how great, if D has committed all other elements of the tort. This is called the eggshell skull rule
Negligence - Defenses

What is traditional contributory negligence?

How will I know it is being tested?
Under traditional contributory negligence, if a P has failed to exercise proper care for their own safety, P is barred from all recovery

Question will be phrased: “in a j/d w traditional negligence defenses”
Negligence - Defenses

What are the elements of traditional implied assumption of the risk?

How will I know that it is being tested?
Elements
1) Knowledge and appreciation of the risk
2) Must take on the risk voluntarily

Question will be phrased: “in a j/d w traditional negligence defenses”
Negligence - Defenses?

What is New York law regarding traditional implied assumption of the risk?
It has been abolished
Negligence - Defenses

What defense to negligence is generally available in New York?
Pure comparative negligence
Negligence - Defenses

What is comparative negligence?
P’s failure to act as RPP or to follow appropriate standard of care will reduce recovery but will not bar it entirely. This is the default standard on the bar exam (absent a reference to "traditional" defenses)
Negligence - Defenses

What is pure comparative negligence?
Under pure comparative negligence, the P's recovery is reduced by the % to which he was found to be responsible. It is strictly based on percentages
Negligence - Defenses

What is partial/modified comparative negligence?
P assigned <50% of fault → damages reduced

P assigned >50% of fault → no recovery
Under what circumstances (3) will a P be strictly liable for injuries?
1) animals

2) abnormally dangerous activities

3) products liability
When is a an owner strictly liable for injuries caused by his domestic animal?
Owner is strictly liable if domestic animal has vicious propensities, and the owner has knowledge of those vicious propensities
When is an owner strictly liable for injuries caused by his wild animal?
Always
When is an owner of a domestic animal not strictly liable for injuries caused by that animal, despite vicious propensities and knowledge?
When the injury is to a trespasser on his land
What is an abnormally dangerous activity?
Abnormally dangerous if
1) Creates a foreseeable risk of serious harm, even if reasonable care is exercised, AND

2) Activity is not a matter of common usage in community where D conducts it
Products liability - Elements
1) D must be a merchant
2) Product is defective
3) Product has not been altered since it left D’s hands
4) P must be making a foreseeable use of the product at the time he was injured
Products liability

What is a merchant?
1) A merchant is someone who routinely deals w goods of this type
Products liability

What are the two kinds of defects that a product can have?
1) manufacturing defect

2) design defect
Products liability

What is a manufacturing defect?
A manufacturing defect exists when a product differs from all the others that came off the same assembly line in a way that makes it more dangerous than consumers would expect
Products liability

What is a design defect?
A design defect exists when there exists a safer, practical, and cost-effective way to build the product
Products liability

What is the significance of a warning on the existence of a design defect?
Treat information (i.e. warnings, instructions) as part of the product design

If a product has certain risks that cannot be physically eliminated in a cost-effective way, and the consumer would not be aware of these risks → to sell w/o a warning is to sell a defectively designed product
Products liability

Can a misuse of a product still be a foreseeable use of that product?
Yes. A foreseeable use is not limited to intended use
What is the defense to strict liability?
Comparative fault

* This is the rule in NY and the majority of states
Nuisance - Definition
A nuisance is an interference w the ability to enjoy one’s property, to an unreasonable degree. There is no intent requirement
How do you determine the right to relief in a nuisance claim?
In determining the right to relief, balance the equities, P’s harm v. D’s harm if he is found liable
How do you stain the following, since it does not gram stain well?: Mycobacteria
Acid fast for high lipid content cell wall
Vicarious liability - respondeat superior

When will an employer be vicariously liable for an employee's torts despite the fact that the employee is acting outside the scope of his employment? (3)
1) Force is part of the job description → abuse of force is w/in the scope

2) Job generates tension between customer and employee

3) Employee engaged in tort in misguided effort to advance employer’s interest
What is the general vicarious liability of an employer for the acts of an independent contractor?
Generally, there is no liability
When is an employer vicariously liable for the torts of an independent contractor?
A land-possessor is vicariously liable if independent contractor injures an invitee on the land
What is the general vicarious liability (non-NY) of a car owner for torts committed by the driver (non-owner)
The general rule is that there is no liability
When is a car owner vicariously liable for the torts of the car driver (non-NY)
The car owner is liable for the torts of the driver when the owner lends the car to the driver for the purposes of running an errand for the owner
In New York, what is the general vicarious liability of an owner of the car for torts committed by the driver
In NY, an automobile driver is vicariously liable for anyone driving your car w permission
Are parents vicariously for the torts of their children? (non-NY)
No
Under New York law, what is a parent's vicariously liability with regards to the torts of their children?
In New York, parents are statutorily liable for the torts of their children, up to an amount of $5,000.
What is the general rule with regards to codefendant remedies against other defendants?
Codefendants may recover from other codefendants. The general rule is to proceed by % fault, as assigned by the jury
When can a codefendant that has been found liable for a tort recover 100% of the damages from another defendant (2)
1) Vicariously liable party can get full indemnification from active tortfeasor

2) Non-manufacturer can get full indemnification from manufacturer in a strict products case
What is loss of consortium? What does it compensate for?
If a victim of a tort is married, the uninjured spouse has a separate cause of action against all Ds

Compensates for:
1) Loss of household services
2) Loss of society/companionship
3) Loss of sex
What is a negative injunction?
A negative injunction is a command to D to not do something, to refrain from some conduct
What is a mandatory injunction?
A mandatory injunction requires affirmative action
Required showing for a permanent injunction
1) No adequate remedy at law
2) Tort impinges on a property interest or protectable right
3) Injunction is enforceable by courts
4) Balance of hardships tips in favor of plaintiff
Defenses to injunctive relief (3)
1) laches

2) unclean hands

3) 1st Amendment (prior restraint)
Required showing for a permanent injunction
1) No adequate remedy at law
2) Tort impinges on a property interest or protectable right
3) Injunction is enforceable by courts
4) Balance of hardships tips in favor of plaintiff
5) Likelihood of success on the merits
6) P will suffer irreparable injury in the absence of preliminary injunction