Torts

Front 1

What are the prima facie elements of intentional tort?

Back 1

"1. Act by defendant; 2) intent [specific intent to bring about the specific conduct or general intent - D knows with substantial certain that the consequences will occur]; 3) Causation [substantial factor test]

Front 2

What are the prima facie elements of the tort of battery?

Back 2

"1. Harmful or offensive contact; 2) with plaintiff's person; 3) intent; 4) Causation

Front 3

What are the prima facie elements of the tort of assault?

Back 3

"1. An act by defendant that causes a reasonable apprehension (not to be confused with fear) in plaintiff; 2) of immediate battery; 3) intent; 4) causation

Front 4

What are the prima facie elements of the tort of false imprisonment?

Back 4

"1. Act or omission by defendant that confines or restrains plaintiff; 2) to a bounded area; 3) intent; 4) causation

Hint 4

NOTE - no damages required but to prove an act or omission by D that confines or restrains P, P must either have knowledge of the confinement or have been harmed by it to prove element

Front 5

What are the prima facie elements of the tort of intentional infliction of emotional distress?

Back 5

"1. Extreme and outrageous conduct by defendant; 2) intent or recklessness; 3) causation; 4) damages - severe emotional distress

Front 6

What are the prima facie elements of the tort of trespass to land?

Back 6

"1. Physical invasion of plaintiff's real property; 2) intent to enter the land; 3) Causation

NO DAMAGES REQUIRED

Front 7

What are the prima facie elements of the tort of trespass to chattels?

Back 7

"1. Act by defendant that interferes with plaintiff's right to possession in a chattel; 2) intent, 3) causation, 4) damages [damage does not necessarily have to be to chattel but to the possessory right]

Front 8

What are the prima facie elements of the tort of conversion?

Back 8

"1. Act by defendant that interferes with plaintiff's right of possession in a chattel; 2) interference is so serious that it warrants recovery of the full value of the chattel; 3) Causation

NOTE - NO DAMAGES REQUIRED!!

Remedy = fair market value of the chattel or replevin (possession)

Front 9

What are the five defenses to intentional torts?

Back 9

1. Consent; 2) Necessity; 3) Protective Privileges [self-defense, defense to 3rd persons, defense of property]; 4) Privilege of Arrest; 5) Parental Discipline of Children

Front 10

How much force may a defendant use?"

Back 10

"When defendant reasonably believes that he is being or is about to be attacked, he may use as much force as reasonably necessary to protect himself

Front 11

Is the defense of self-defense available to an initial aggressor?

Back 11

Not generally, but it may be allowed if the other party escalates the fight.

Front 12

When is the defense of defense of others available in torts?

Back 12

When the actor reasonably believes that the person being defended could have used force to defend himself.

Front 13

When is the defense of defense of property available in torts?

Back 13

Defendant may use reasonable force to prevent commission of a tort against his property. However, defendant must first make a request to desist or leave. Defendant can use force in hot pursuit of a tortfeasor.

Front 14

Does defense of property allow the use of deadly force in torts?

Back 14

Not unless the invasion of property also entails a threat of bodily harm.

Front 15

When must one use peaceful means to recover property in torts?

Back 15

When the tortfeasor came into possession lawfully, e.g., conditional sale.

Front 16

What are the prima facie elements of the tort of defamation?

Back 16

1. Defamatory language specifically identifying P; 2) Publication to 1 or more persons other than P [doesn't require intent, can be negligently published and still be liable]; 3) Damages Maybe

Front 17

What kind of damages must a plaintiff show in a slander case?

Back 17

Plaintiff must prove special (pecuniary) damages, unless the slander is slander per se.

Front 18

What are the four categories of slander per se in torts?

Back 18

Defamatory statements that 1) relate to P's business or profession, 2) accuse P of crime of moral turpitude, 3) impute on the chastity of a woman, 4) P has loathsome disease

Front 19

Are radio and television broadcasts of defamatory language slander or libel?

Back 19

Most courts treat them as libel, even though they're spoken.

Front 20

What kind of damages must a plaintiff show in a libel case?

Back 20

There is no need to prove special damages; general damages are assumed.

Front 21

Who may be liable for published defamation?

Back 21

The author or speaker, and, to the same extent, the primary publisher (e.g., newspaper, TV station, etc.). A secondary publisher (one who sells papers or plays tapes) may be liable if it knows or should know of the defamatory content.

Front 22

What are the additional elements necessary for prima facie defamation when the statement is a matter of public concern?

Back 22

1) Must prove falsity of the statement; and 2) must prove fault

To prove fault:
where P is a public figure - must prove malice (intent or recklessness)
where P is a private figure - must prove negligence

Front 23

What are the four branches of the tort of invasion of right to privacy?

Back 23

"1. Appropriation of plaintiff's picture or name: Unauthorized use for commercial advantage [newsworthiness exception - outlets of the media are permitted to use image or name];

2) Intrusion upon P's Seclusion or Affairs - act of prying or intruding must be highly offensive to a reasonable person [must have reasonable expectation of privacy];

3) Publication of Facts Placing P in False Light - attributing views or beliefs to P that he does not hold; must be widespread dissemination and must be highly offensive to reasonable person [but if matter of public concern - malice required];[good faith belief in truth of statement does not get you off the hook]

4) Public Disclosure of Private Facts about P - widespread disclosure of confidential information about P which reasonable person would find highly offensive

Front 24

What kind of damages must an invasion of right to privacy plaintiff show?

Back 24

Ordinary damages, like emotional distress and mental anguish, are sufficient. There is no need to show special damages.

Front 25

What are the prima facie elements of the tort of intentional misrepresentation?

Back 25

i. Misrepresentation of material fact
ii. Scienter – when D made statement, she knew or believed it was false or that there was no basis for that statement
iii. Intent – to induce P to act or refrain from act in reliance on the misrepresentation
iv. Causation (actual reliance)
v. Justifiable Reliance; and
vi. Damages (pecuniary loss)

Front 26

What are the prima facie elements of the tort of negligent misrepresentation?

Back 26

i. D must make a misrepresentation of fact in a business or professional capacity
ii. Breach of duty toward particular P
iii. Causation
iv. Justifiable Reliance;
v. Damages

Front 27

What are the prima facie elements of the tort of interference with business relations?

Back 27

"1. Existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;
2) knowledge of the relationship or expectancy;
3) intentional interference that causes breach of relationship or expectancy;
4) Damages - party breaches contract

Hint 27

Privilege to Induce Breach = when D has special relationship with one of the contracting parties - Advisory Figures - parent, lawyer, clergy, accountant

Front 28

What are the prima facie elements of the tort of malicious prosecution?

Back 28

i. Institution of criminal proceedings
ii. Termination in P’s favor
iii. Absence of probable cause for proceedings
iv. Improper purpose
v. Damages

Front 29

What are the prima facie elements of the tort of abuse of process?

Back 29

i. Wrongful use of process for an ulterior purpose, and
ii. Definite act or threat against P in order to accomplish an ulterior purpose

Front 30

What are the prima facie elements of the tort of negligence?

Back 30

"1. Duty to conform to a particular standard of conduct; 2) Breach of Duty; 3) Causation [Factual and Proximate]; 4) Damages

Front 31

How do you know if a secondary plaintiff is foreseeable or not for purposes of negligence liability?

Back 31

Most states hold that a secondary plaintiff can recover if he was in the foreseeable zone of danger, within which a reasonable person would have seen that there was a risk of injury to him under the circumstances.

Front 32

What is the basic standard of care in a negligence action?

Back 32

The objective, reasonably prudent person under the circumstances. Mental deficiencies or inexperience are not taken into account, but the reasonable person IS held to have the same physical characteristics as defendant.

Front 33

What is the standard of care for professionals in a negligence action?

Back 33

A professional or someone with special occupational skills must possess the knowledge and skill of a member of the profession/occupation in good standing in a similar community.

Front 34

What is the standard of care for medical professionals in a negligence action?

Back 34

Standard of care of the average member of that professional practicing in a similar community [city doctors compared to big city; rural doctors compared to rural] [customary practice of the profession is key]. Further, doctors have a duty to disclose risks and obtain informed consent.

Hint 34

EXCEPTION - specialists are evaluated on a nationwide standard - not relation to community

Front 35

What is the standard of care for children in a negligence action?

Back 35

Children are held to the standard of others of like age, experience, education, and intelligent. If they are engaged in an "adult" activity, however, they may be required to conform to an adult standard.

Front 36

What is the standard of care for common carriers/innkeepers in a negligence action?

Back 36

A very high standard of care, with liability for even slight negligence towards passengers/guests (NOT others).

Front 37

What is the standard of care for auto drivers to guests in a negligence action?

Back 37

Ordinary care.

Front 38

What is the standard of care for bailors in a negligence action?

Back 38

"It depends.

Front 39

What is the standard of care for bailees in a negligence action?

Back 39

"It depends on whom the bailment benefits.

Front 40

What is the standard of care in emergency situations in a negligence action?

Back 40

Defendant must act as a reasonable person would under the same emergency conditions. BUT the emergency will not be considered if it is of defendant's own making.

Front 41

What is the standard of care owed by landowners to those off the premises in a negligence action?

Back 41

There is no duty to protect one off the premises from natural conditions. There is, however, a duty for unreasonably dangerous, artificial conditions/structures abutting adjacent land. Further, landowners must not act so as to create an unreasonable risk of harm to others off the premises.

Front 42

What is the standard of care owed by landowners to those on the premises in a negligence action?

Back 42

It depends on the plaintiff's status.

Unknown Trespassers - No Duty

Known Trespassers - Duty to protect against dangerous, artificial conditions on the land that are hidden/concealed

Licensees - Duty to protect against dangerous natural and artificial conditions on the land that are hidden/concealed

Invitees - Duty to protect against hidden, dangerous natural and artificial conditions on the land that could be discovered by landowner through reasonable inspection

Front 43

Who is an invitee for purposes of premises liability?

Back 43

One who enters for a purpose connected with the business of the landowner or enters as a member of the public for a purpose for which the land is held open to the public

Front 44

What standard of care does a landowner owe to users of recreational land in a negligence action?

Back 44

None, if he permits the public to use the land for recreational purposes without charging a fee. The ordinary standard of care for "active operations" applies, however.

Front 45

What standard of care does a lessee owe in a negligence action?

Back 45

Only to maintain the premises.

Front 46

What standard of care does a lessor owe in a negligence action?

Back 46

Duty to warn of existing defects of which he is aware or has reason to be aware, and which he knows the lessee is not likely to discover on reasonable inspection. If lessor has a covenant to repair, he is liable for unreasonably dangerous conditions. If he volunteers to repair, he is liable for negligent repair.

Front 47

What standard of care does a vendor of realty owe in a negligence action?

Back 47

A vendor must disclose concealed, unreasonably dangerous conditions that he is or should be aware of, and that he knows vendee is unlikely to discover on a reasonable inspection.

Front 48

What is the attractive nuisance doctrine in torts?

Back 48

"A landowner has a duty of ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show:


a. Known Dangerous Condition - a dangerous condition on the land that the owner is or should be aware of
b. Knowledge that Children Frequent Land - owner knows or should know that children frequent the vicinity of the condition
c. Danger B/C Children Won’t Appreciate the Risk - the condition is likely to cause injury because of the children’s inability to appreciate the risk; and
d. Balance Expense of Remedying vs. Harm - the expense of remedying the situation is slight compared with the magnitude of the risk

Front 49

What is the standard of care regarding negligent infliction of emotional distress?

Back 49

Defendant must not (1) cause a threat of physical impact that leads to emotional distress, or (2) directly cause severe emotional distress that by itself is likely to result in physical symptoms.

Front 50

When may a bystander outside the zone of danger recover for negligent infliction of emotional distress?

Back 50

"If Plaintiff sees Defendant cause physical harm to another and 1) P and the person injured are closely related; 2) P was present at scene of injury; 3) P personally observed of perceived the event

NOTE - in NY you must be in the zone of danger!

Front 51

When is there an affirmative duty to act in torts?

Back 51

General Rule - NO DUTY TO ACT
Exceptions:
"1. Assumption of duty by acting - once undertake to aid someone MUST do so with reasonable care; 2) Special Relationship to the Victim [shopkeepers, innkeepers, common carriers]; 3) When you create the peril

Front 52

What is the doctrine of negligence per se?

Back 52

A theory of breach of duty in torts. Plaintiff can establish breach as a matter of law by showing violation of an applicable statute. Causation and harm must still be shown.

The statute must be designed to protect: same Class or Persons and Class of Risks involved in the incident

Hint 52

EXCEPTIONS

Where compliance with the statute would be more dangerous than non-compliance!

Where compliance is impossible!

Front 53

What is the doctrine of res ipsa loquitur?

Back 53

Method of showing breach when you don't have the exact details of what happened - gets you to the jury. Something that ""speaks for itself."" Plaintiff must show that the accident is normally associated with negligence AND the instrumentality of the accident was within D's control!

Front 54

What is actual causation in torts?

Back 54

"But for" causation.

Front 55

What is the substantial factor test in torts?

Back 55

A test for actual causation in cases where several causes bring about an injury. If defendant's conduct was a substantial factor in causing the injury, actual causation is satisfied.

Front 56

What is the test for proximate causation in torts?

Back 56

The foreseeability test: defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his conduct.

Front 57

How far does a defendant's tort liability extend, for proximate causation purposes, if his actions directly caused an injury?

Back 57

Defendant is liable for all foreseeable harmful results, even if unusual (such as medical malpractice, infection or disease after or at the hospital, etc., intervening negligent rescues, intervening reactionary or protective forces).

Front 58

What is the difference between independent intervening forces and superseding forces for purposes of proximate causation in torts?

Back 58

"Independent intervening forces may be foreseeable if defendant's actions increased the risk of harm from these forces, causing foreseeable results. They can include negligence, crimes, and intentional torts of third persons, and acts of God.

Front 59

What is the eggshell skull rule in torts?

Back 59

"You take your plaintiff as you find him." Defendant is liable for all harm, even if the extent of damages was unforeseeable, as in the case of a plaintiff with an eggshell skull.

Front 60

What is the last clear chance doctrine in torts?

Back 60

It is a defense to contributory negligence. The person with the last clear chance to avoid an accident is always liable. For example, if plaintiff is in helpless peril, the defendant will be liable if defendant knew or should have known of plaintiff's situation.

Front 61

What is the doctrine of assumption of the risk in torts?

Back 61

"Plaintiff may be denied recovery if he knew about the risk and voluntary acted anyway

Front 62

When is assumption of the risk implied in torts?

Back 62

If the risk is one that an average person would clearly appreciate.

Front 63

What are the prima facie elements of strict liability in torts?

Back 63

"1. Absolute duty to make safe based on nature of activity; 2) Causation; 3) Damages

Front 64

When is strict liability imposed in torts?

Back 64

"1. Trespassing animals or (as to NON trespassers only) wild animals; and 2) Defective Products

Front 65

What are the five theories of products liability in torts?

Back 65

"1. Intent; 2) negligence, 3) strict liability, 4) breach of implied warranty of merchantability and fitness, 5) representation

Front 66

What are the two elements common to any theory of products liability in torts?

Back 66

"1. A defect in the product and 2) existence of the defect when it left D's control

Front 67

What are three types of defects in products liability?

Back 67

"1. Manufacturing defects: The product is more dangerous than it would be if manufactured properly; 2) Design defect - alternative cost-effective, safe, reasonable mode of designing product exists; 3) Warning defect - if can't make safer physically have to warn - must be prominent and clear

Front 68

Who has standing to sue on a products liability theory?

Back 68

Any foreseeable plaintiff, so users, consumers, and bystanders can all sue.

Front 69

What is the "fireman's rule" in torts?

Back 69

A fireman or police officer is barred from recovering in negligence for injuries caused by the risks of a rescue.

Front 70

What is a private nuisance in torts?

Back 70

Nuisance is not a cause of action, but a kind of harm. Private nuisance is a substantial, unreasonable inteference with a private individual's use or enjoyment of property over which he has a right of immediate possession.

Front 71

What is a substantial interference for private nuisance purposes?

Back 71

Interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of the property.

Front 72

When must a private nuisance plaintiff show unreasonable interference?"

Back 72

"Interference that causes an injury whose severity outweighs the utility of defendant's conduct.

Front 73

What is a public nuisance in torts?

Back 73

Nuisance is not a cause of action, but a kind of harm. Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, e.g., using a building for criminal purposes like running a shooting gallery.

Front 74

When can a plaintiff recover for public nuisance in torts?

Back 74

Recovery is only allowed if plaintiff suffered unique damage not suffered by the public at large.

Front 75

What are the prima facie elements of intentional tort?

Back 75

1. Act by defendant;

2. Intent (either specific or general);

3. Causation; and

4. Harm.

Front 76

What are the prima facie elements of the tort of battery?

Back 76

1. Harmful or offensive contact;

2. To plaintiff's person;

3. Intent; and

4. Causation.

Front 77

What are the prima facie elements of the tort of assault?

Back 77

1. An act by defendant that causes a reasonable apprehension (not to be confused with fear) in plaintiff;

2. Of immediate harmful or offensive contact;

3. Intent; and

4. Causation.

Front 78

What are the prima facie elements of the tort of false imprisonment?

Back 78

1. Act or omission by defendant that confines or restrains plaintiff;

2. To a bounded area;

3. Intent; and

4. Causation.

Front 79

What are the prima facie elements of the tort of intentional infliction of emotional distress?

Back 79

1. Extreme and outrageous conduct by defendant;

2. Intent or recklessness;

3. Causation; and

4. Damages - SEVERE emotional distress.

Front 80

What are the prima facie elements of the tort of trespass to land?

Back 80

1. Physical invasion of plaintiff's real property;

2. Intent; and

3. Causation.

Front 81

What are the prima facie elements of the tort of trespass to chattels?

Back 81

1. Act by defendant that interferes with plaintiff's right to possession in a chattel;

2. Intent;

3. Causation; and

4. Damages (can simply be to the possessory right).

Front 82

What are the prima facie elements of the tort of conversion?

Back 82

1. Act by defendant that interferes with plaintiff's right of possession in a chattel;

2. The interference is so serious that it warrants requiring defendant to pay the chattel's full value;

3. Intent; and

4. Causation.

Front 83

What are the five defenses to intentional torts?

Back 83

1. Consent;

2. Defense: Self-defense, defense of others, defense of property;

3. Privilege of arrest;

4. Necessity; and

5. Discipline (by a parent).

Front 84

When is the defense of self-defense available in torts?

How much force may a defendant use?

Back 84

When defendant reasonably believes that he is being or is about to be attacked.

He may use enough force as is reasonably necessary to protect against injury.

Front 85

Is the defense of self-defense available to an initial aggressor?

Back 85

Not generally, but it may be allowed if the other party escalates the fight.

Front 86

When is the defense of defense of others available in torts?

Back 86

When the actor reasonably believes that the person being defended could have used force to defend himself.

Front 87

When is the defense of defense of property available in torts?

Back 87

Defendant may use reasonable force to prevent commission of a tort against his property. However, defendant must first make a request to desist or leave. Defendant can use force in hot pursuit of a tortfeasor.

Front 88

Does defense of property allow the use of deadly force in torts?

Back 88

Not unless the invasion of property also entails a threat of bodily harm.

Front 89

When must one use peaceful means to recover property in torts?

Back 89

When the tortfeasor came into possession lawfully, e.g., conditional sale.

Front 90

What are the prima facie elements of the tort of defamation?

Back 90

1. Defamatory language;

2. Of or concerning the plaintiff;

3. Publication by defendant to a third person (either with intent to publish or negligently); and

4. Damage to plaintiff's reputation.

Further, if the defamation involves a matter of public concern, there are two more, Constitutional elements:

5. Falsity of the defamatory language; and

6. Fault on the part of the defendant.

Front 91

What kind of damages must a plaintiff show in a slander case?

Back 91

Plaintiff must prove special (pecuniary) damages, unless the slander is slander per se.

Front 92

What are the four categories of slander per se in torts?

Back 92

Defamatory statements that

1. Adversely reflect on one's conduct in a business or profession;

2. One has a loathsome disease;

3. One is or was guilty of a crime involving moral turpitude; and

4. A woman is unchaste.

Front 93

Are radio and television broadcasts of defamatory language slander or libel?

Back 93

Most courts treat them as libel, even though they're spoken.

Front 94

What kind of damages must a plaintiff show in a libel case?

Back 94

There is no need to prove special damages; general damages are assumed.

Front 95

Who may be liable for published defamation?

Back 95

The author or speaker, and, to the same extent, the primary publisher (e.g., newspaper, TV station, etc.). A secondary publisher (one who sells papers or plays tapes) may be liable if it knows or should know of the defamatory content.

Front 96

How must a plaintiff prove the Constitutional fault element in a defamation case on a matter of public concern?

Back 96

It depends.

If plaintiff is a public official or figure, he must show that defendant acted with malice, defined as either (1) knowledge that the statement was false, or (2) reckless disregard as to its truth or falsity.

If plaintiff is a private person, he need only show negligence as to the truth or falsity of the statement, but can only recover "actual injury" damages. If a private person plaintiff can show malice, however, he is entitled to a presumption of damages, and may be allowed to recover punitive damages as well.

Front 97

What are the four branches of the tort of invasion of right to privacy?

Back 97

1. Appropriation of plaintiff's picture or name: Unauthorized use for commercial advantage.

2. Intrusion on plaintiff's affairs or seclusion: An act of prying or intruding that is objectionable to a reasonable person, into something that is private.

3. Publication of facts painting plaintiff in a false light: Attributing to plaintiff views he does not hold or actions he did not take. The false light must be objectionable to a reasonable person.

4. Public disclosure of private facts about plaintiff: The public disclosure must be objectionable to a reasonable person. Liability can attach even if the statement is true.

Front 98

What kind of damages must an invasion of right to privacy plaintiff show?

Back 98

Ordinary damages, like emotional distress and mental anguish, are sufficient. There is no need to show special damages.

Front 99

What are the prima facie elements of the tort of intentional misrepresentation?

Back 99

1. Misrepresentation of a material fact, by affirmative statements;

2. Scienter (i.e., defendant knew or believed his statements were false when he made them);

3. Intent to induce plaintiff to act or refrain from acting in reliance on the misrepresentation;

4. Causation (actual reliance);

5. That reliance was actually justifiable; and

6. Damages (must be actual pecuniary loss).

Front 100

What are the prima facie elements of the tort of negligent misrepresentation?

Back 100

1. Misrepresentation by defendant in a business or professional capacity;

2. Breach of duty toward particular plaintiff;

3. Causation;

4. Justifiable reliance; and

5. Damages.

Front 101

What are the prima facie elements of the tort of interference with business relations?

Back 101

1. Existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff;

2. Defendant's knowledge of the relationship or expectancy;

3. Intentional interference by defendant causing a breach or termination of relationship/expectancy; and

4. Damages.

Front 102

What are the prima facie elements of the tort of malicious prosecution?

Back 102

1. Institution of criminal (or, in most states, civil) proceedings against plaintiff;

2. Termination in plaintiff's favor;

3. Absence of probable cause for the proceedings (either a reasonable person would not or defendant did not believe plaintiff was guilty);

4. Improper purpose (other than bringing someone to justice); and

5. Damages.

Front 103

What are the prima facie elements of the tort of abuse of process?

Back 103

1. Wrongful use of process for an ulterior purpose; and

2. Definite act or threat agaisnt plaintiff in order to accomplish an ulterior purpose.

Front 104

What are the prima facie elements of the tort of negligence?

Back 104

1. Duty to conform to a particular standard of conduct;

2. Breach;

3. Causation, both actual and proximate; and

4. Damage.

Front 105

How do you know if a secondary plaintiff is foreseeable or not for purposes of negligence liability?

Back 105

Most states hold that a secondary plaintiff can recover if he was in the foreseeable zone of danger, within which a reasonable person would have seen that there was a risk of injury to him under the circumstances.

Front 106

What is the basic standard of care in a negligence action?

Back 106

The objective, reasonable person standard. Mental deficiencies or inexperience are not taken into account, but the reasonable person IS held to have the same physical characteristics as defendant.

Front 107

What is the standard of care for professionals in a negligence action?

Back 107

A professional or someone with special occupational skills must possess the knowledge and skill of a member of the profession/occupation in good standing in a similar community.

Front 108

What is the standard of care for medical professionals in a negligence action?

Back 108

Medical professionals are held to a national standard: they must possess the knowledge and skill of a member of the medical professional nationwide. Further, doctors have a duty to disclose risks and obtain informed consent.

Front 109

What is the standard of care for children in a negligence action?

Back 109

Children are held to the standard of others of like age, experience, education, and intelligent. If they are engaged in an "adult" activity, however, they may be required to conform to an adult standard.

Front 110

What is the standard of care for common carriers/innkeepers in a negligence action?

Back 110

A very high standard of care, with liability for even slight negligence towards passengers/guests (NOT others).

Front 111

What is the standard of care for auto drivers to guests in a negligence action?

Back 111

Ordinary care.

Front 112

What is the standard of care for bailors in a negligence action?

Back 112

It depends.

If the bailment is gratuitous, the bailor must inform of known, dangerous defects in the chattel.

If the bailment is for hire, the bailor must inform of chattel defects of which he is or SHOULD BE aware.

Front 113

What is the standard of care for bailees in a negligence action?

Back 113

It depends on whom the bailment benefits.

Sole benefit to bailor: Low standard.

Sole benefit to bailee: High standard.

Mutual benefit: Ordinary standard.

Front 114

What is the standard of care in emergency situations in a negligence action?

Back 114

Defendant must act as a reasonable person would under the same emergency conditions. BUT the emergency will not be considered if it is of defendant's own making.

Front 115

What is the standard of care owed by landowners to those off the premises in a negligence action?

Back 115

There is no duty to protect one off the premises from natural conditions. There is, however, a duty for unreasonably dangerous, artificial conditions/structures abutting adjacent land. Further, landowners must not act so as to create an unreasonable risk of harm to others off the premises.

Front 116

What is the standard of care owed by landowners to those on the premises in a negligence action?

Back 116

It depends on the plaintiff's status.

Trespasser: No duty to an undiscovered trespasser. For discovered/anticipated trespassers, landowner must warn of known artificial conditions involving risk of death/serious bodily harm, and exercise reasonable care in conducting "active operations" on the property

Licensee (one who enters for his own benefit): Duty to warn of dangerous conditions, whether natural or artificial, and to exercise reasonable care in conducting "active operations" on the property.

Invitee: Same duty as to licensee, PLUS duty to make reasonable inspections to discover nonobvious dangerous conditions and make them safe.

Front 117

Who is an invitee for purposes of premises liability?

Back 117

One who enters

1. For a purpose connected with the business of the landowner; or

2. As a member of the public for a purpose for which the land is held open to the public.

Front 118

What standard of care does a landowner owe to users of recreational land in a negligence action?

Back 118

None, if he permits the public to use the land for recreational purposes without charging a fee. The ordinary standard of care for "active operations" applies, however.

Front 119

What standard of care does a lessee owe in a negligence action?

Back 119

Only to maintain the premises.

Front 120

What standard of care does a lessor owe in a negligence action?

Back 120

Duty to warn of existing defects of which he is aware or has reason to be aware, and which he knows the lessee is not likely to discover on reasonable inspection. If lessor has a covenant to repair, he is liable for unreasonably dangerous conditions. If he volunteers to repair, he is liable for negligent repair.

Front 121

What standard of care does a vendor of realty owe in a negligence action?

Back 121

A vendor must disclose concealed, unreasonably dangerous conditions that he is or should be aware of, and that he knows vendee is unlikely to discover on a reasonable inspection.

Front 122

What is the attractive nuisance doctrine in torts?

Back 122

A landowner has a duty of ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show

1. A dangerous condition on the land that owner is or should be aware of;

2. That the owner knows or should know children frequent the vicinity;

3. That the condition is likely to cause injury because of child's inability to appreciate the risk; and

4. That the expense of remedying the situation is slight in comparison with the magnitude of the risk (e.g., put a fence around your pool).

Front 123

What is the standard of care regarding negligent infliction of emotional distress?

Back 123

Defendant must not (1) cause a threat of physical impact that leads to emotional distress, or (2) directly cause severe emotional distress that by itself is likely to result in physical symptoms.

Front 124

When may a bystander outside the zone of danger recover for negligent infliction of emotional distress?

Back 124

If plaintiff sees defendant cause physical harm to another and

1. Plaintiff and is closely related to the victim of physical harm;

2. Plaintiff was present at the scene;

3. Plaintiff observed or perceived the injury; and

4. Plaintiff suffered physical symptoms from the distress.

Front 125

When is there an affirmative duty to act in torts?

Back 125

1. Assumption of duty by acting;

2. Peril due to defendant's conduct;

3. Special relationship between parties (parent, common carrier, etc.);

4. Duty to control third persons.

Front 126

What is the doctrine of negligence per se?

Back 126

A theory of breach of duty in torts. Plaintiff can establish breach as a matter of law by showing violation of an applicable statute. Causation and harm must still be shown.

Front 127

What is the doctrine of res ipsa loquitur?

Back 127

Something that "speaks for itself." Plaintiff must show

1. That the accident causing the injury is of a type that would not occur without negligence; and

2. That the negligence is attributable to defendant.

If plaintiff wins on res ipsa loquitur, he has made a prima facie case, and defendant cannot win a directed verdict. The trier of fact can still reject the inference of negligence.

Front 128

What is actual causation in torts?

Back 128

"But for" causation.

Front 129

What is the substantial factor test in torts?

Back 129

A test for actual causation in casues where several causes bring about an injury. If defendant's conduct was a substantial factor in causing the injury, actual causation is satisfied.

Front 130

What is the test for proximate causation in torts?

Back 130

The foreseeability test: defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his conduct.

Front 131

How far does a defendant's tort liability extend, for proximate causation purposes, if his actions directly caused an injury?

Back 131

Defendant is liable for all foreseeable harmful results, even if unusual (such as medical malpractice, infection at the hospital, etc.).

Front 132

What is the difference between independent intervening forces and superseding forces for purposes of proximate causation in torts?

Back 132

Independent intervening forces may be foreseeable if defendant's actions increased the risk of harm from these forces, causing foreseeable results. They can include negligence, crimes, and intentional torts of third persons, and acts of God.

Superseding forces produce unforeseeable results and are themselves unforeseeable, and therefore break the chain of causation.

Front 133

What is the eggshell skull rule in torts?

Back 133

"You take your plaintiff as you find him." Defendant is liable for all harm, even if the extent of damages was unforeseeable, as in the case of a plaintiff with an eggshell skull.

Front 134

What is the last clear chance doctrine in torts?

Back 134

It is a defense to contributory negligence. The person with the last clear chance to avoid an accident is always liable. For example, if plaintiff is in helpless peril, the defendant will be liable if defendant knew or should have known of plaintiff's situation.

Front 135

What is the doctrine of assumption of the risk in torts?

Back 135

Plaintiff may be denied recovery if he

1. Knew of the risk; and

2. Proceeded voluntarily anyway.

Front 136

When is assumption of the risk implied in torts?

Back 136

If the risk is one that an average person would clearly appreciate.

Front 137

What are the prima facie elements of strict liability in torts?

Back 137

1. Absolute duty to make safe;

2. Breach;

3. Causation, both actual and proximate; and

4. Damage to person or property.

Front 138

When is strict liability imposed in torts?

Back 138

1. Trespassing animals or (as to NON trespassers only) wild animals; and

2. Abnormally dangerous activities: Activities that are (1) dangerous even when reasonable care is exercised, and (2) not a matter of common usage in the community.

Front 139

What are the five theories of products liability in torts?

Back 139

1. Intent;

2. Negligence;

3. Strict liability;

4. Express warranty or misrepresentation; and

5. Implied warranty of merchantability and fitness.

Front 140

What are the two elements common to any theory of products liability in torts?

Back 140

1. A defect in the product that

2. Existed when it left defendant's control.

Front 141

What are three types of defects in products liability?

Back 141

1. Manufacturing defects: The product is more dangerous than it would be if manufactured properly;

2. Design defects: All products in a line are the same but are dangerous; and

3. Inadequate warnings: Failure by manufacturer to give adequate warning as to dangers not apparent to users.

Front 142

Who has standing to sue on a products liability theory?

Back 142

Any foreseeable plaintiff, so users, consumers, and bystanders can all sue.

Front 143

What is the "fireman's rule" in torts?

Back 143

A fireman or police officer is barred from recovering in negligence for injuries caused by the risks of a rescue.

Front 144

What is a private nuisance in torts?

Back 144

Nuisance is not a cause of action, but a kind of harm. Private nuisance is a substantial, unreasonable inteference with a private individual's use or enjoyment of property over which he has a right of immediate possession.

Front 145

What is a substantial interference for private nuisance purposes?

Back 145

Interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of the property.

Front 146

What is an unreasonable interference for private nuisance purposes?

When must a private nuisance plaintiff show unreasonable interference?

Back 146

Interference that causes an injury whose severity outweighs the utility of defendant's conduct.

A showing of unreasonable interference is required for nuisances based on negligence or intent.

Front 147

What is a public nuisance in torts?

Back 147

Nuisance is not a cause of action, but a kind of harm. Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community, e.g., using a building for criminal purposes like running a shooting gallery.

Front 148

When can a plaintiff recover for public nuisance in torts?

Back 148

Recovery is only allowed if plaintiff suffered unique damage not suffered by the public at large.

Front 149

What are the 2 types of interference with possessory right to chattel?

Back 149

Intermeddling - direct damage to the chattel

Dispossession - depriving P of lawful right of possession of chattel

Front 150

What are the 2 types of consent defenses

Back 150

Express Consent - must not be procured by fraud or duress

Implied Consent - based on
1) Implied from Customary Practice
2) Implied from Ds reasonable interpretation of P's objective conduct

Front 151

In NY what is the preliminary requirement for using self-defense

Back 151

Must try to retreat first EXCEPT if in your home or if a cop

Front 152

What is the defense of Public Necessity?

Back 152

It is a defense to the torts of invasion of land, trespass to chattels and conversion where D needed access to the property in order to protect against harm to the public at large - requires weighing of harms. No responsible for damages

Front 153

What is the defense of Private Necessity?

Back 153

Necessity of access to property for D's own benefit. Responsible for any damages caused by access to property. D may remain until the dangerous condition has passed. No liability for punitive or nominal damages. Possessor can't eject D until danger gone or else battery

Front 154

What are the defenses to defamation?

Back 154

1) Consent
2) Truth
3) Absolute Privilege = arise based on identity of D - Spousal Privilege; Governmental Officers Engaged in Conduct of their Official Duties
4) Qualified Privilege = arises based on when and how the speech is made - when there is a social interest in candor OR when the statement is made to a recipient who has a strong interest in the information and it is reasonable for D to publish the info to them [privilege can be lost if D does not have reasonable belief what he is saying is true or statements are not relevant]

Front 155

What are the elements to the tort of theft of trade secrets?

Back 155

1) P must possess a valid secret and 2) P must take the secret by improper means

Front 156

How do you prove causation where the cause is inascertainable?

Back 156

Burden shifts to the 2 Ds to prove they were not the cause. If they can't they are both joint and severally liable

Front 157

What are the 4 equitable remedies in a tort action?

Back 157

1) Negative Injunction
2) Mandatory Injunction
3) Permanent Injunction
4) Preliminary Injunction

Front 158

What must one show to get an injunction?

Back 158

1) no adequate remedy at law [monetary damages will not suffice]
2) tort in question impinges on a property right or protectable interest
3) Injunction is enforceable
4) Balance of hardships tips in favor of P [Benefit to P must outweigh harm to D]

Front 159

What must one additionally show to get a preliminary injunction?

Back 159

1) Likelihood of success on the merits; and
2) Irreparable harm

Front 160

What are the Defenses to Injunctive Relief?

Back 160

1) Unclean hands, P cause the tort
2) Laches - P delayed in asking for relief
3) First Amendment

Front 161

How may one sue for vicarious liability?

Back 161

Employer will be liable if employee was acting within scope of employment

NO liability for intentional torts UNLESS force part of the job, job generates tension or friction, employee acted out of misguided effort to benefit employer

Independent Contractors
- no liability unless injure an invitee

Automobile owners lending car
- no vicarious liability unless driver becomes agent [benefit for owner]

Parents and Kids
- not liable for kids torts, no negligent supervision tort

Front 162

What is contribution?

Back 162

Remedy for D who P chose to recover the full damage award from. Can recover from other D's based on their percentage of fault.

Front 163

What is indemnity?

Back 163

out of pocket party can recover fully from another based on relationship

Front 164

What is an action for loss of consortium?

Back 164

Spouse of victim can bring separate action to recover for loss or services, companionship, sex

Front 165

What is a wrongful death action?

Back 165

Action of recovery for spouse or family member of victim to recover for pecuniary loss

Front 166

What is survival of tort action?

Back 166

Tort actions that survive death - can bring action for the pain and suffering of the victim he suffered before death