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100 Cards in this Set

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Are supersensitive plaintiffs relevant in tort law?
No, unless defendant knows of them.
How old does someone have to be before they are liable for intentional torts?
They can ALWAYS be liable for intentional torts!
What is tortious battery?
1. Harmful or offensive contact
2. with plaintiff's person.
What is assault?
1. Apprehension
2. Of an immediate battery.
Does apparent ability create a reasonable apprehension (unloaded gun)?
Yes.
What is false imprisonment?
1. Sufficient act of restraint
2. in a bounded area.
Are threats enough for false imprisonment?
Yes.
Does plaintiff have to know of the false imprisonment?
Yes, unless
1. infant plaintiff
2. confinement actually injures plaintiff.
When is an area not bounded?
1. There is a reasonable means of escape and
2. Plaintiff knows of it.
Elements of intentional infliction of emotional distress:
1. Outrageous conduct and
2. Damages.
What are some ways to make normally non-outrageous conduct outrageous?
1. Conduct is continuous.
2. The type of plaintiff (kids, elderly, pregnant women, supersensitive plaintiff WHEN THE DEFENDANT KNOWS).
3. The type of defendant (common carriers, innkeepers, FOR PASSENGERS AND GUESTS).
Is physical injury required for intentional infliction?
No, but clear proof of substantial emotional distress is (sometimes it's assumed -- rat in soup).
What are the elements to tresspass to land?
1. Act of physical invasion by defendant
2. of plaintiff's land.
How do you distinguish trespass to chattels and conversion?
Trespass to chattels, you hurt the property or take it for a while; conversion, you destroy it or take it for a long time.
What is the process to analyze consent?
1. Determine if plaintiff had capacity.
2. Determine if consent is express or implied.
3. Look for ways that consent can be undone (fraud, mistake, coercion).
How can consent be implied?
Custom and usage, or plaintiff's conduct.
What is the "hot pursuit doctrine"?
Usually the defense has to occur simultaneously with the tort. But if your chattels are taken, you can chase the guy.
Is there a duty to retreat?
There is no duty to retreat before using self defense, although the modern trend is that you should do so before using serious force, unless you're at home.
What are the elements of ordinary (not First Amendment) defamation?
1. Defamatory statement about plaintiff.
2. Publication.
3. Injury to plaintiff's reputation.
What additional elements are needed if the First Amendment applies?
1. Falsity.
2. Fault.
What are the two tricky terms of art to remember, when speaking about defamation?
1. Inducement (extrinsic facts showing that it's really defamation);
2. Colloquium (showing that the defendant really was referring to plaintiff).
Do innocent statements suffice for defamation?
No. They must be intentional or negligent.
Is injury presumed for defamation?
Only for libel and slander per se.
What is slander per se?
1. Business or profession
2. Moral turpitude
3. Loathsome disease
4. Imputing unchastity to a woman.
What are the defenses to defamation (if no First Amendment)?
1. Consent
2. Truth
3. Absolute and qualified privileges.
What are the absolute privileges?
1. Communications between spouses.
2. The three governmental branches.
What is a qualified privilege?
When public policy encourages communication.
How does the burden of proof change if the First Amendment is implicated?
Falsity is an element.
What fault is needed for a public figure?
Intentional falsehood or reckless disregard for the truth.
What must a private person plaintiff show, even in a First Amendment case?
Negligence.
What bonus does a private plaintiff get if he can show malice?
Presumed and punitive damages.
What are the four sub-torts under Invasion of Right to Privacy?
1. Misappropriation of name/picture
2. Intrusion into privacy or seclusion
3. False Light
4. Publication of private facts
What is the test for intrusion into privacy/seclusion?
Common sense fact analysis. Would a reasonable person object to this kind of intrusion?
What is the difference between publication for defamation and publication for invasion of privacy?
For invasion of privacy, it has to be wide publication.
Does the malice test apply to false light?
If it's public figures or a matter of public concern.
What's an example of what is, and what is not, publication of private facts about plaintiff?
Yes: newsletter saying you're cured of herpes.
No: photograph of you at a private restaurant.
Can silence give grounds to intentional misrepresentation? What are the exceptions?
No. Except:
1. Fiduciary relationships;
2. Real property sale where plaintiff cannot reasonably discover material facts
3. Defendant's prior statements have misled plaintiff.
What is the scienter requirement for intentional misrepresentation?
Malice: knowing it's false, or reckless disregard.
What are the elements to intentional misrepresentation?
1. Statement
2. Malice
3. Intent to induce reliance
4. Justifiable reliance.
5. Damages.
What are two ways in which negligent misrepresentation differs from intentional?
1. Negligence replaces malice.
2. Negligent can only be used in a commercial setting.
In a negligence case, are the defendant's mental and physical characteristics taken into account?
Mental: no
Physical: yes (although if defendant knows of physical disability, must act accordingly)
Children under what age are deemed incapable of negligence?
4.
What is the standard of care for children?
Child of like age, intelligence and experience.
What's the exception to children's standard of negligence?
When they engage in adult activities.
What is the standard for professionals?
Reasonable profession in same or similar communities, TAKING INTO ACCOUNT THEIR SPECIALTIES.
What is the standard for common carriers and innkeepers?
Slight negligence, but ONLY FOR PASSENGERS AND GUESTS.
When can plaintiffs go after owners/occupiers?
If the o/o, or a family member or employee, goofs up.
If injury occurs on owner's land, what's the first thing you do?
Determine if it's an undiscovered trespasser. If ther eis, there is NO duty.
Do owners owe a duty re. natural conditions of their property to those off the property?
No, unless it is a decaying tree next to the sidewalk.
Do owners owe a duty to those off the property for artificial conditions?
No, EXCEPT:
1. Unreasonably dangerous conditions abutting adjacent land (negligently allowing freezing water to drain on the sidewalk).
2. A landowner has a duty to take due precautions to protect persons passing by from dangerous conditions (e.g., by erecting a barricade to keep people from falling into an excavation at the edge of the property).
What is an anticipated trespassor, and how are they treated?
Anticipated trespassors are those whom the owner should know may come by, since people trespass there frequently.

They are treated like discovered trespassors.
What does a landowner owe to a discovered trespassor?
For ARTIFICIAL CONDITIONS INVOLVING A RISK OF SERIOUS INJURY (owner is NOT responsible for natural conditions).
What is a licensee?
Someone on property for their own good: Door to door sales person, social guest.
What does owner owe to licensees?
Duty for dangerous conditions the owner knows of.
What does owner owe to invitee?
All natural and artificial conditions the owner KNOWS OR SHOULD KNOW OF. That means owner must make a reasonable inspection.
How can owner discharge his duty to people on property?
Warnings or making things safe.
Does owner owe a duty to very obvious dangerous conditions?
No.
What's the first thing to ask re. a kid and attractive nuisance?
Did the kid show that he didn't understand the risk? If he did, not attractive nuisance.
Does the kid have to be attracted BY the nuisance?
No.
What are the elements to attractive nuisance?
1. Dangerous condition on land the owner knows of or should know of.
2. Owner knows or should know that kids go there.
3. Condition is dangerous, b/c of kids' inability to appreciate risk;
4. The expense of remedying the situation is slight compared with the magnitude of the risk.
What is the standard for recreational land?
If owner lets public use the land for recreational use WITHOUT CHARGING A FEE, landowner is not liable unless landowner willfully and maliciously failed to guard against or warn of danger.
What is the modern trend for owners?
Abolish invitees, licensees, etc., and just go with a reasonable person standard.
What is the test for application of a statutory standard?
1. Plaintiff must fall within the protected class.
2. Statute must be designed to prevent this type of harm.
What's an exam tip re. statutory standard?
Most times on the Bar, the statute in the fact pattern was NOT designed to prevent the harm that occurred and is thus INAPPLICABLE.
What happens if the statute does not apply?
You go to reasonable person.
What if defendant shows that plaintiff did not comply with an applicable statute?
That's negligence per se. It doesn't mean liability, though.
What are exeptions to non-compliance with an applicable statute?
1. Compliance would be more dangerous.
2. Compliance would be impossible.
What are the requirements for negligent infliction of emotional distress?
1. Plaintiff must suffer physical injury.
2. Plaintiff must be within target zone. Though the modern trend is that the plaintiff can recover if she is a close relative and personally observed the event.
What does it mean to have emotional distress damages as parasitic element of damages from another tort?
If there is another tort that causes physical injury, plaintiff can tack on damages for emotional distresses.
When is there duty to act in negligence action?
1. Special relationship between parties (family member, employer/employee, common carriers, innkeepers)
2. Duty to control third persons. Parents liable only if they know or should know that their kid is likely to commit the act.
3. Assumption of duty to act by acting (voluntary rescuer)
4. Plaintiff's peril is due to defendant's negligence.
How do you know when res ipsa loquitur applies?
When there is not enough hard evidence to establish defendant's negligence.
What is the test for "probability" in res ipsa loquitur?
1. Inference of negligence: wouldn't have happened unless someone was negligent.
2. Evidence connects defendant with negligence.
3. Plaintiff was not contributorily negligent.
If res ipsa applies, who decides if plaintiff wins?
The jury.
Must defendant offer evidence to rebut res ipsa?
No.
What are the three tests for actual causation?
1. "But For" Test
2. "Substantial Factor" Test
3. "Alternative Causes" Test (two or more negligent defendants -- hunters firing guns -- but not sure who shot plaintiff. Burden switches to D's; if they can't give proof, both liable).
What is the key phrase associated with proximate cause?
Foreseeability.
What is the exception to the rule that if the result was foreseeable the defendant is liable?
If an intervening force was an unforeseeable INTENTIONAL TORT OR CRIME, defendant will prevail.
What is the eggshell-skulled plaintiff fact pattern?
Plaintiff has thin skull and gets badly hurt. That is foreseeable.

IT IS ONLY FORESEEABLE THAT ONE BE ABLE TO FORESEE AN INJURY, NOT THE EXTENT OF THE INJURY.
What are the two key rules re. damages?
1. There is a duty to mitigate.
2. Damages are NOT reduced because of payments from other sources (e.g., health insurance). If insurer wants to subrogate, they can.
What is the exception to assumption of risk?
When the defendant created a bad situation and plaintiff had no viable alternative than to take the risk.

Or, in an emergency (jumping in front of a negligently driven car to save a child).
What was the harsh rule re. contributory negligent?
If you were at all negligent, you could not recover.
What does pure comparative negligence say?
You recover except for the percentage of your negligence, EVEN IF YOU WERE MORE NEGLIGENT THAN THE DEFENDANT.
What does partial comparative negligence say?
There is no recovery if you were more negligent than the other party.
Which jurisdictions apply last clear chance?
Just contributory negligence states.
Is 'Last Clear Chance' a defense?
NO!! It's an argument, not a defense!
Is plaintiff's negligence a defense to intentional torts?
No.
Is there implied assumption of risk in comparative negligence states?
NO
When is an owner of animals liable under strict liability?
If he has wild animals (as long as plaintiff didn't do anything) or if he has a domestic animal that he knows is dangerous.
What are the rules for landowners, dangerous animals and strict liability?
Licensees and invitees: landowner strictly liable (except zookeepers: negligence)

Trespassers: must prove negligence.

Intentional use of vicious watchdogs: may be liable even to trespassers.
We know, of course, that a plaintiff is liable even if he's not at all negligent. But how does plaintiff's negligence play, as re. strict liability?
Comparative negligence state: knowing and unknowing contributory negligence can be asserted to reduce recovery.

Contributory negligence state: knowing contributory negligence is a complete defense, but unknowing contributory negligence is no defense.
In products liability, what are the possibilities as far as negligence?
1. Design
2. Manufacture
3. Warnings
4. Inspections.
Who can be a plaintiff in negligence actions?
Anyone within foreseeable zone of risk, including bystanders.
In a negligence products liability case, who can be a defendant?
1. Manufacturers, almost always.
2. Retailers and wholesalers: almost never.
Will warnings insulate from liability?
Yes.
What is "product use incidental to performance of services"?
If during the course of a medical operation, defective blood is administered, can't sue surgeon for strict liability.
What is the standard for nuisance?
The conduct must be objectionable to an AVERAGE PERSON.
Can plaintiff come to the nuisance and maintain the lawsuit?
yes, although it is taken into consideration.
Are automobile owners liable for the torts of other drivers? Exceptions?
Usually they are not liable. But:
1. Family car doctrine: household members using with permission.
2. Permissive use doctrine: anyone using with permission.
Are parents liable for their children's torts?
As a general rule, they are not. But under some statutes they may be, for intentional torts, up to a certain amount (e.g., $5,000). Also, they'll be liable if the child is acting as an agent for parent. And parent may be liable for own negligence for entrustment.

Lastly, if the parent knows of the child's tendency to injure others, may be liable for not using due care to exercise control.
Do government entities enjoy immunity from tort?
They do for governmental functions, but not for proprietary functions. ("Would a private business normally perform this function?") E.g., city parking lot.