Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

61 Cards in this Set

  • Front
  • Back
Where the defendant desires to cause the harmful result of his act or where there is a substantial certain the result will occur.
Transferred Intent
Where D intends to commit an intentional tort with respect to one individual, but harms another in the same or similar manner.
A voluntary intentional act which causes P to experience an reasonable apprehension of an immediate harmful or offensive contact (battery).
A voluntary intentional act which causes P a harmful or offensive contact.
False Imprisonment
False imprisonment occurs where the D intentionally confines (either physically or by overcoming P’s will) the P to a definable area from which there is no reasonable apparent means of escape.
Intentional Infliction of Emotional Distress
Infliction of emotional distress occurs where the D, via extreme and outrageous conduct, intentionally or recklessly causes the P to suffer sever emotional distress.

Third Persons: P may recover if P is present when D’s wrongful conduct occurs, D is aware of P’s presence, and P is closely related to the person attacked.
Trespass to Land
A trespass to land occurs when the D intentionally enters the land of another or causes a thing or object onto someone else’s property without permission.

If D enters negligently or recklessly, only liable for damage to land.
Trespass to Chattel
Trespass to chattel occurs when the D intentionally interferes with the P’s chattel and P suffers actual damages.
Conversion occurs when the D intentionally causes the destruction or serious and substantial interference (dominion and control), with plaintiff’s chattel.

Remedies: Fair market value plus consequential damages or replevin.
Defenses to Intentional Torts
Consent, self defense, defense of others, defense of property, private necessity, public necessity and authority (shop keepers privilege).
Where the P expressly, implicity or as a matter of law effectively consented to the conduct in question, the defendant’s acts or normally privileged so long as D does not exceed the scope of the consent.

Consent is not effect if it is the product of mistake, fraud, duress, a criminal statute, incapacity, lack of informed consent.
Where D reasonably believes that P is about to cause an imminent, unpriviledged, and offensive attack, he may use reasonable force to prevent such attack.

Reasonable apprehension ok. No general duty to retreat.
Defense of Others
Where the defendant reasonably believes that the P is about to harm another, the D is entitled to use reasonable force to prevent such harm

D liable if mistaken.
Defense of Property
A D may use reasonable force in defense of her property.

No lethal force in defense of property. D must first demand that P desist the conduct.

Avoiding injury to property: reasonable force.

Recovery of property: reasonable force, prompt recovery (hot pursuit), must demand return, no force if P acted under claim of right, liable if mistaken, may enter land to recover.
Where one reasonably believes that his (or the publics) interests outweigh the loss or harm which will be incurred to another because of his conduct, his actions are privileged.

Private necessity: substantially greater harm, liable for actual damages
Public necessity: severe harm, no liability
Arrest: D/Police officer making arrest pursuant to a warrant, not liable.
No warrant: no liability if arresting to prevent felony in his presence.
After felony committed: police permitted all reasonable mistakes. Citizens only reasonable mistakes as to identity.
Breach of peace in presence: neither liable without a warrant, reasonable mistake permitted
Shopkeepers Privilege
Where a storekeeper has a reasonable suspicion that a customer has committed a theft, the former may restrain the latter with reasonable force for a reasonable amount of time and in a reasonable manner, on the premises or in the immediate vicinity.
Negligence Standards of Care
Adults: must ordinarily act with due care like a reasonable person under the circumstances.
Children: must ordinarily act with the due care of a child of like age, intelligence and experience. But adult activity = adult standard of care.
Particular Profession: are required to act with due care customarily exercised by members of that profession in that or similar communities.
Negligence Elements
To establish negligence, P must prove that D owed a legal duty of care to conform to a specific standard of conduct for the protection of P against unreasonable risk of injury, D breached that duty, D’s breach of duty was the actual and legal (proximate) cause of the injury to P, and that P suffered damages as a result of D’s conduct.
Duty (Negligence)
When a person engages in an activity, owes a legal duty to foreseeable P’s to act as an ordinary, prudent, reasonable person. P owes a duty to an unforeseen P if P was in a foreseeable zone of danger.
Duty to Take Affirmative Action
General rule: no duty to act in benefit of others.
Duty to Take Affirmative Actions (Exceptions)
1. If D's conduct is responsible for placing P in the postion, D has a duty to take action.
2. Once one who acts for the benefit of another, they are under a duty to act like an ordinary, prudent, reasonable person and continue assistance.
3. A D having a special relationship to P has a duty to act. (reasonable care)
- parent-child
- employer-employee
- Common Carriers
- places of pulbic accomodation
4. D has a duty to control a third party where there is a special relationship between them and P gets an economic benefit or occupies a postion of power over third party.
Breach of Duty (Negligence)
A defendant breaches the duty to P if he fails to conduct himself as a reasonable person would in the same circumstances.

(Hand): is the burden (cost) on D of taking precautions against the threatened riskwas outweighed by the likelihood that P would be injured by the activity.
Res Ipsa Loquitor
To establish the D failed to act with due care without direct evidence, the P can show that the accident was the type which ordinarily does not occur, except in the absence of due care, that D had a duty to protect the P from harm with respect to the instrumentality or activity in question, and that P was in no manner responsible for his injuries.
Negligence Per Se
A failure to act with due care can be established by showing the D unjustifiably violated a criminal statute when the injury caused by D's conduct is the type which the statute was intended to prevent, the P is a member of the class intended to be protected by the statute, and D's violation of the statute is not excused.
Landowner's Duties (Negligence)
Trespassers: D has no duty of care as to an unknown trespasser. If D becomes aware of a trespasser D has a duty to exercise reasonable care.

Licensees: (soical guest) A D has a duty to exercise reasonable care to protect licensees from injury in activities and artificial and natural conditions that D is aware of.

Invitees: (business purpose) A D has a duty of reasonable care to protect invitees from harm in activities and to discover dangerous artifical and natural conditions and to warn them of such conditions.
Attractive Nuisance (Children Trespassers)
D owes the same duty to a child as an adult where activities and natural conditions are involved.

A heightened stadard of care applies to artificial conditions where: the D knew or should have known of the risk, D knew or should have known that children are likely to trespass, the child trespasser is unaware of the risk, and the utility of maintaining the conditions is outweighed by the burden of protecting against the risk.
Actual Cause (Negligence)
The D's failure to act with due care must have been the cause-in-fact of P's injury.

D's condut was the cause-in-fact of an event that would not have occured but for the existence of the conduct.

Two or More D's:
Substantial Factor Test: A D's conduct is the cause-in-fact of P's injury if that conduct was a substantial factor in bringing about the injury.
Summers v. Tice Test: Where two or more D's have failed to exercise due care, but it is impossible for P to prove whose conduct actually caused his harm, each and every D is regarded as a cause-in-fact of the injury.
Proximate Cause (Negligence)
D's breach of duty must be the legal, or proximate, casue of P's injuries.

D's conduct is the proximate cause of P's harm if the type of harm and the manner in which the harm occured was reasonably foreseeable.
Contributory Negligence
Where the P's failure to act with due care is, to any degree, responsible for causing the accident, the D has a compelte defense.
Last Clear Chance
If the P was in helpless peril, and the D knew, or should have known of P's predicament, has the present ability to avoid the accident, and fails to avoid the accident, the P's contributory negligence is negated.
Comparative Negligence
Under pure comparative negligence principles, a P's recovery is reduced by a proportion equal to her falut in the action.

Under partial comparative negligence principles, damages are apportioned only if D's responsibilty exceeds P's (50%).
Assumption of Risk
Where the P appreciated the risk and then knowingly and voluntarily assumed the particular risk upon which his negligence action is premised, the D has a complete defense.
Strict Liability
D is liable whether he exercied due care or not.

D can be held strictly liable for personal injuries infliced by his anime if it has known dangerous propensities.

Wild animials: generally have known dangerous propensities.

Domestic Animals: D will be strictly liable for domestic animals that have known dangerous propensities.

Abnormally Dangerous Activities: An activity is abnormally dangerous if it creates a risk of serious injury, the risk cannot be elminated by the exercise of due care, and the activity is not usually conducted in that area.
Defenses (Strict Liability)
Contributory Negligence: generally no

Comparative Negligence: can reduce the recovery

Assumption of the Risk: complete bar
Products Liability
A commercial supplier who, in the regular course of business, provides a defective product is liable to a purchaser or user for personal injuries and property damage resulting from such defect.
Manufacturing Flaws
Manufacturing flaws: A product manufactured in a form other than the manufacturer intended contains a manufacturing flaw. (Defective product element)
Design Defects
A product manufactured as intended but that still presents a danger of injury or damage to P suffers from a design defect.

Consumer Expectation Test: A product is dangerously defective if a reasonably foreseeable purchaser would not have expected it to present a danger which resulted in his injury.

Danger-Utility Test: A product is defective if the cost of injury outweighs its utility to society.

Hindsight-Negligence: A product is defective if a reasonable person, knowing of the danger it presented, would not have placed it in the stream of commerce.
Absence of Warning
D's failure to warn P that a product presents a threat of peronal injury may be considered a dangerous defect.
Causation (Products Liability)
P must establish that a defect attributable to D (or to D's control) caused P's injury.
Defenses (Products Liability)
Contributory Negligence: misues or abnormal use bars recovery.

Comparative Negligence: in some states

Assumption of Risk: if P is warned and voluntarily continues use or alters the product.
Product Liablity on a Negligence Theory
Duty, Breach, Causation, Damages

Breach: D fails to inspect
Express Warranty
An express warranty exists where a commercial supplier makes a representation as to the nature or quality of the product
Implied Warranty
Implied warranty of fitness for a particular purpose.

Implied warranty of merchantability.
Private Nuisance
Private nuisance is a substantial and unreasonable interference with P's use and enjoyment of P's land.

Unreasonable interference: gravity of harm outweighs the utility of the conduct.
Public Nuisance
Public nusiance is an unreasonable interference with the health, safety, or property rights of the community at large.

Generally broght by a public official. Can be brought by a private citizen only if P can establish he suffered damages different from that suffered by the public.
P must establish that D published defamatory material concerning P which caused damage to P's reputation.

Where defamation includes a public figure or a matter of public concern must also include falsity and fault (malice) on D's part.

Malice = knowledge that statement was false or reckless disregard as to its truth or falsity.
Written form of defamation or a defamatory message embodied in a relatively permanet form (sound recording, video recording, picture, etc...)

Goes to damgages part of defamation
General damages presumed.
Spoken defamation (not preserved is permanent form.
Goes to damgages part of defamation.

Spcecial damages required.
Slander Per Se
Slander per se is slander that is so harmful that it is presumed that P suffered damages from the very fact of its utterance.

Notrious Crime
Loathsome Disease
Business Trade, Profesison, or office
Defenses to Defamation
Absolute Privilege (Judicial proceedings, legislative proceedings, executive proceedings
Compelled Broadcast or Publication
Communications between spouses
Qualified Privilege: public interest, D's own or others interest.
Invasion of Privacy
Intrusion into seclusion: if D unreasonably intrudes into P's seclusion

Appropriation of Identity or Likeness: unauthorized use of P's identiy or likeness for D's commerical advantage.

Public Disclosure of Private Facts: D's unreasonable public disclosure of private facts about P.

Portrayal in a False Light: where D publishes matters which protray P in a flase light
Defenses to Invation of Privacy
Truth: not a defense to disclosure, complete defense to false light

Consent: defense to disclosure, false light, intrusion

Privilege: applicable to disclosure and false light
Malicious Prosecution
Is the institution of criminal proceedings by D, done for an improper purpose, and without probable cause, which terminate favorably to P and which cause P damages.
Wrongful Institution of Civil Proceedings
Same as malicious prosecution.
Abuse of Process
Where D intentionally misuses a judicial process for a purpose other than that for which the process is intended.
A misrepresentation made with scienter (knowingly)and an intent to induce P's reliance on the misrepresentation, causation, justifiable reliance by P and damages.
Interference with Contract or Prosepective Advantage
Inducing Breach of Contract: D intentionally causes a third person to breach an existing contract with P.

Interference with Prospective Economic Advantage: same as contract except no existing contract necessary. Potential business relationship sufficent.
Injurious Falsehood
A false statement made to another by D which causes economic injury to P.
Vicarious Liabliity
An employer is liable for the negligent acts of his empolyees occuring within the scope of employment and in furtherance of the employers business.
Independent Contractor
General rule: employer not liable.

1) nondelegable duty
2) inherently dangerous activity
3) D is owner/occupier and P is business invite.