Torts

Front 1

What should you think when you see an answer phrased

(1) "no, unless" OR

(2) "lose unless"

?

Back 1

(1) "no, unless" = "yes, if"

(2) "lose unless" = "win if"

Front 2

What is the first thing you should ask yourself when answering any torts question?

Back 2

What is the theory of this case?
Intentional Tort
Negligence
Strict Liability

Front 3

Can you sue a merchant for strict product liability even though he did not produce the product?

Back 3

Yes. You are free to sue anyone in the chain of manufacturing.

Front 4

Can a delusional person, who strikes a woman because he sincerely thinks she is going to attack him, assert self-defense?

Back 4

No. For self-defense, the belief of imminent harm must be reasonable.

Front 5

What is the common law defense to torts liability?

Back 5

Contributory negligence.

Front 6

What should you do with answer choices based on facts?

Back 6

If it contains facts alone, and therefore asks you to draw a legal inference, throw it out. Look instead for an answer that
(1) contains legal language
(2) says what the court finds based on the facts

Front 7

When does a criminal act break the chain of causation?

Back 7

When it is NOT foreseeable.

Front 8

What should you do with a "what is the 'least helpful' or 'weakest argument'" question?

Back 8

Put a plus next to things that help, and a minus next to things that hurt. Then go from there.

Front 9

For res ipsa, what is the role of exclusive control?

Back 9

The instrumentality must have been in the exclusive control of the defendant to assert res ipsa.

Front 10

What are the most common theories of tort for products liability?

Back 10

Strict liability
AND
Negligence

You can have both in one case.

Front 11

For intentional tort cases, do unforeseeable additional forces break the chain of causation?

Back 11

No, even if they contribute to the plaintiff's injury. All you have to ask is whether the initial intentional tort was a SUBSTANTIAL FACTOR in bringing about the harm.

Front 12

Vicarious Liability:
When is a principal liable for the tortious acts of an independent contractor?

Back 12

When the duty involved is non-delegable on public policy grounds.

Ex. duty of a possessor of land to keep the property safe for its invitees.

Front 13

Does establishment of res ipsa loquitur create a presumption of negligence?

Back 13

No. It merely creates a permissible inference of negligence.

Front 14

What are the elements of negligence?

Back 14

Duty
Breach
Causation
Damages

Front 15

NEGLIGENCE

What two things do you have to ask about duty?

Back 15

(1) To whom is the duty owed?
(2) What is the duty?

Front 16

NEGLIGENCE

To whom does one owe a duty?

Back 16

One owes a duty only to FORESEEABLE plaintiffs.

Front 17

NEGLIGENCE

What is the usualy duty of care?

Back 17

We owe the amount of care that would be given by a hypothetical reasonably prudent person acting under similar circumstances.

Front 18

NEGLIGENCE

In determining the defendant's duty of care, do we make allowances for his individual attributes or shortcomings?

Back 18

Generally no.

Exceptions:
(1) If defendant had superior knowledge of some fact or info relevant to the conduct in question.
(2) Physical attributes of the defendant are incorporated (blindness, deafness, etc.) No exceptions for development disabilities or mental illness.
(3) Special duty standards (see other card)

Front 19

NEGLIGENCE

What categories of people have "special duty standards?"

Back 19

(1) Children
(2) Professionals
(3) Occupiers of Land
(4) Applicable statutes

Front 20

NEGLIGENCE

What is the special duty standard for children?

Back 20

(1) 4-6 yrs: no duty of care to anyone. Incapable of negligence.
(2) 4-18 yrs: owe the care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.

Exception: when a child engages in "adult activities." Then you use the reasonably prudent person standard.

Front 21

NEGLIGENCE

For the exception to a child's special duty of care, what constitute "adult activities?"

Back 21

Pretty much operating something with an engine.

Front 22

NEGLIGENCE

Which professionals have a special duty of care?

Back 22

Doctors, nurses, other health professionals, accountants, architects, engineers, lawyers.

Front 23

NEGLIGENCE

What is the special duty of care owed by professionals?

Back 23

Professional persons must give the care of the average member of their profession, who practices in a similar community.

Front 24

NEGLIGENCE

For the special duty of care owed by professionals, what's always worth mentioning on an essay.

Back 24

The standard is an empirical standard, and you will likely need an expert witness to establish it.

Front 25

NEGLIGENCE

For the special duty owed by occupiers of land, what two questions should you ask yourself?

Back 25

(1) How did the entrant get hurt? Was it an ACTIVITY or a CONDITION?
(2) What was the entrant's legal status on the land? UNDISCOVERED TRESPASSER, DISCOVERED TRESPASSER, LICENSEE, INVITEE?

Front 26

NEGLIGENCE

What special duty of care does an occupier of land owe to an UNDISCOVERED trespasser?

Back 26

No duty of care is owed, however, the injury occurred.

Front 27

NEGLIGENCE

What special duty of care does an occupier of land owe to a DISCOVERED trespasser?

Back 27

ACTIVITIES: the care of a reasonably prudent person under similar circumstances.
CONDITIONS: A duty to protect only when the condition is a known man-made death trap: (1) artificial (2) highly dangerous - kill or maim (3) concealed (4) occupier knew of it.

Front 28

NEGLIGENCE

Are anticipated trespassers included in the category of discovered trespassers?

Back 28

YES.

Front 29

NEGLIGENCE

What special duty of care does an occupier of land owe a licensee?

Back 29

ACTIVITIES: reasonably prduent person under similar circumstances.
CONDITIONS: all known traps on land: (1) concealed from licensee (2) knows of it in advance.

Front 30

NEGLIGENCE

What is a licensee?

Back 30

Individuals who enter land with permission in cases where land is generally not open to the public.

Ex. social guests.

Front 31

NEGLIGENCE

What is an invitee?

Back 31

People who enter land generally open to the public.

Ex. customers, hospital visitors, airport visitors, museum, church...

Front 32

NEGLIGENCE

What special duty of care does an occupier of land owe an invitee?

Back 32

ACTIVITIES: reasonably prudent person under similar circumstances.
CONDITIONS: all reasonably knowable traps. A two part test: (1) concealed from the invitee (2) occupier knew of condition or could have discovered it through a reasonable inspection.

Front 33

NEGLIGENCE

Does an occupier of land owe a special duty of care to indiscovered trespassers?

Back 33

No. He owes them NO duty of care. They always lose a negligence claim.

Front 34

NEGLIGENCE

What special duty of care does an occupier of land owe discovered trespassers, licensees, and invitees when he is doing some ACTIVITY?

Back 34

Reasonable person under similar circumstances.

Front 35

NEGLIGENCE

What are the different duties of care, for conditions, that an occupier of land owes to
(1) discovered trespassers?
(2) licensees?
(3) invitees?

Back 35

(1)discovered trespassers: all man-made death traps.
(2)licensees: all known traps.
(3)invitees: all reasonably knowable traps.

Front 36

NEGLIGENCE

What special duty of care does an occupier of land owe to a firefighter or police man?

Back 36

They are normally treated as licensees. However, they may NEVER recover for injuries that are an inherent risk of their job.

Front 37

NEGLIGENCE

If an occupier of land owes someone a special duty as to a condition, what should he do?

Back 37

Fix the thing or issue a WARNING.

Front 38

NEGLIGENCE

For an occupier of land, does his special duty of care change when the trespasser is a child?

Back 38

Yes. A landowner must exercise the ordinary duty of care if
(1) there is a dangerous condition the owner should be aware of
(2) the owner should know that kids grequent the vicinity
(3) the condition is likely to cause injury because of a child's inability to understand risk
(4) the expense of remedying the situation is slight compared with the risk.

Front 39

NEGLIGENCE

For a special duty owed by occupiers of land to children, what constitutes a "dangerous condition?"

Back 39

(1) Most man-made conditions.
(2) Some natural conditions.
(3) Not water, usually, unless there is something particularly dangerous to kids about it.

Front 40

NEGLIGENCE

When can we borrow a statute to set the duty of care and breach?

What's the short phrase to remember this?

Back 40

(1) plaintiff shows he is a member of the class of persons the statute is designed to protect
(2) plaintiff shows that the accident that occurred is in the class of risks that the statute is designed to prevent.

class-of-person, class-of-risk.

Front 41

NEGLIGENCE

What happens if the courts decides to borrow a statutory standard for duty of care and breach?

Back 41

Violation of that statute becomes negligence per se.

Front 42

NEGLIGENCE

Are there any exceptions to application of a statutory standard to duty of care?

Back 42

Yes.
(1) If statutory compliance would be more dangerous than the a violation of the statute.
(2) If compliance is impossible under the circumstances.

Front 43

NEGLIGENCE

Is there ever a duty to act affirmatively?

Back 43

Generally, no.
Exceptions:
(1) If the defendant cause the victim's peril.
(2) If the parties had a pre-existing relationship (family, common carriers and innkeepers, land occupier and invitee)

If the exception applies, it is only a duty to rescue reasonably under the circumstances.

Front 44

NEGLIGENCE

There is no duty to rescue. Once you start rescuing, do you assume any duties?

Back 44

Once you rescue voluntarily, you assume a duty to do so in a non-negligent manner.

Front 45

NEGLIGENCE

What are the elements of negligent infliction of emotional distress?

Back 45

(1) defendant violated one of the duty standards
(2) the distressed plaintiff was within a one of physical danger
(3) the distressed plaintiff suffered SUBSEQUENT PHYSICAL manifestations of the distress.

Front 46

NEGLIGENCE

May bystanders recover for negligent infliction of emotional distress?

Back 46

In about 1/2 of the states. Here, the plaintiff is not suing over a fright, but grief.

The rule varies: family member, timing, etc.

Front 47

NEGLIGENCE

What is breach?

Back 47

It is when the plaintiff identifies specific behavior by the defendant that violates the duty of care.
(1) a factual showing of what the defendant did wrong
(2) an argument as to why that violates the duty

Front 48

NEGLIGENCE

What is res ipsa loquitur?

Back 48

This doctrine allows a plaintiff to go forward with a case without direct evidence of the defendant's breach.

Front 49

NEGLIGENCE

What must a plaintiff show to proceed under res ipsa?

Back 49

(1) The accident does not normally occur in the absence of negligence. So, it NORMALLY occurs w/ negligence.
(2) The type of accident is normally due to the negligence of someone in the defendant's position.
(3) The defendant had exclusive control over the thing in question.

Front 50

NEGLIGENCE

What are the two types of causation you must always consider?

Back 50

(1) Factual causation: the "but for" test.
(2) Proximate causation: the fairness test

Front 51

NEGLIGENCE

How do you prove causation when you have multiple defendants and mingled causation?

Ex. two unrelated campers both negligently start a forest fire.

Back 51

You use an alternate factual causation test. Ask whether the defendant's conduct was a SUBSTANTIAL FACTOR in bringing about the result.

Front 52

NEGLIGENCE

How do you prove causation when you have multiple defendants and an unascertainable cause?

Ex. Two men simultaneously negligently shoot a third, and one bullet strikes.

Back 52

You still use but-for causation, but you shift the burden of proof.

If the defendant cannot exhonerate himself, then he is held jointly liable with the other defendant.

Front 53

NEGLIGENCE

What is the basic idea underlying proximate cause?

Back 53

Fairness, as calibrated by FORESEEABILITY.

Front 54

NEGLIGENCE

For proximate cause, what four things are always deemed foreseeable?

Back 54

(1) intervening medical negligence
(2) intervening negligent rescue
(3) intervening protection or reaction forces
(4) subsequent disease or accident

Front 55

NEGLIGENCE

What approach should you take in determining whether an intervening factor disrupts proximate cause?

Back 55

Look at the breach and ask what you worry about. Then, look at the injury, and ask whether they match up.

Front 56

NEGLIGENCE

For damages, does negligence liability subtract costs for the weird qualities of a plaintiff that make costs higher than they would usually be?

Back 56

No. You take your victims as you find them. If you negligently cut someone with hemophilia, you're still liable their hospital bills.

Front 57

NEGLIGENCE

What is the traditional affirmative defense to negligence?

Back 57

Comparative liability, or comparative negligence.

Here, the defendant offers evidence that the plaintiff failed to exercise the relevant degree of care for his own safety.

Front 58

NEGLIGENCE

What are the two kinds of comparative fault?

Back 58

(1)Default is PURE COMPARATIVE FAULT, whichis where even if the plaintiff is the predominantly negligent party, he will still recover at least a little money.
(2)MODIFIED/PARTIAL COMPARATIVE FAULT: Plaintiff can only recover if his fault is less than 50%.

Front 59

NEGLIGENCE

What is the methodology for determining damage awards based on comparative negligence?

Back 59

(1) Identify total damages to plaintiff
(2) Jury assigns percentage of responsibility to plaintiff
(3) Plaintiff's recover limited to percentage of fault for which he is not responsible.

Front 60

For intentional torts, can the defendant ever assert an incapacity defense? What if she is a child, drunk, or mentally ill?

Back 60

There are NO incapacity defenses to intentional torts, unless that condition made the person completely unaware of her actions.

Front 61

What are the elements of battery?

Back 61

(1) Intent
(2) A harmful or offensive contact
(3) The contact is with the plaintiff's person

Front 62

For intentional torts, what constitutes "intent?"

Back 62

Intent: the defendant acted with the desire or purpose to produce a forbidden result, or the defendant knew that the forbidden result was virtually certain to result from the act.

Front 63

For battery, what is a "harmful or offensive contact?"

Back 63

It is a contact unpermitted by a person of ordinary sensitivity. Ex. a tap on the shoulder is OK, stroking someone's hair is not OK.

Front 64

For battery, when is a contact "with the plaintiff's person?"

Back 64

The plaintiff's "person" includes anything connected with the plaintiff, anything she is holding or touching.

Front 65

What are the elements of assault?

Back 65

(1) Intent
(2) Defendant's act places the plaintiff in apprehension
(3) The apprehension is of an immediate battery

Front 66

For assault, what does "apprehension" mean?

Back 66

It means KNOWLEDE, not fear. It means an awareness, understanding, or appreciation.

It is evaluated from the point of view of the plaintiff (the classic unloaded gun scenario).

Front 67

For assault, what does it mean that the plaintiff must have "apprehension of an immediate battery?"

Back 67

(1) Mere words are not enough.
(2) You must have an overtly physical act. It usualyl involves a weapon, but could be shaking a fist.
(3) Even when there is threatening conduct, the words accompanying the conduct can cancel it out.

Front 68

For assault, what sorts of words cancel out threatening conduct?

Back 68

(1) Conditional words.
(2) Words that promise future action, but not immediate action.

Front 69

What are the elements of false imprisonment?

Back 69

(1) Intent
(2) An act of restraint
(3) Confinement of the plaintiff in a bounded area

Front 70

For false imprisonment, what qualifies as "an act of restraint?"

Back 70

Something that restrains the plaintiff, and either
(1) the plaintiff is aware of it OR
(2) the plaintiff is harmed by it.

Front 71

For false imprisonment, can a threat be an "act of restraint?"

Back 71

Yes, if the act would be sufficiently threatening to a person of ordinary sensitivity.

Front 72

For false imprisonment, can an omission be an "act of restraint?"

Back 72

Yes, if the plaintiff is owed a duty by the defendant concerning his mobility or freedom of movement.
Ex. A disabled passenger becomes stuck on a plane because the crew failed to help him.

Front 73

For false imprisonment, if a plaintiff is locked out of a space, is he confined to a bounded space?

Back 73

No! He has the whole rest of the world. The plaintiff must be "locked" INTO a space, though the space could be large, like a desert.

Front 74

For false imprisonment, how do escape routes reflect on the element of "bounded area."

Back 74

There is no bounded area if
(1) there is a reasonable means of escape that
(2) the plaintiff can reasonably discover

Front 75

What are the elements of intentional infliction of emotional distress?

Back 75

(1) Intentional or reckless conduct.
(2) Outrageous conduct
(3) Severe resulting distress

Front 76

For IIED, what qualifies as "outrageous conduct?"

Back 76

"Conduct that exceeds all bounds of decency tolerated in a civilized society."

Front 77

For IIED, do insults every qualify as "outrageous conduct?"

Back 77

No.

Front 78

For IIED, what factors traditionally tip the scales in favor of "outrageous conduct?"

Back 78

(1) Continuous or repetitive conduct
(2) The defendant is a common carrier or innkeeper
(3) The plaintiff is a member of a class of fragile persons
(4) The plaintiff knows of a person's hypersensitivity and exploits it

Front 79

For IIED and its element of "outrageous conduct," what is a "class of fragile persons?"

Back 79

The issue is whether the defendant is outrageous for who he chooses to pick on, not necessarily the reaction he gets.

Ex. little children, the elderly, pregnant women, members of racial, religious, and ethnic minorities.

Front 80

What are the elements of trespass to land?

Back 80

(1) Intent
(2) Physical invasion
(3) Land

Front 81

For trespass, what counts as a physical invasion?

Back 81

(1) Defendant enters property on foot or in a vehicle, OR
(2) Defendant propels tangible objects onto plaintiff's land

Front 82

Would shining bright lights onto someone's land constitute a physical invasion for the purposes of trespass?

Back 82

No. It must be a tangible invasion.

Front 83

For trespass, what counts as "land?"

Back 83

The surface of the property.
And, the air above the property and the soil below the property out to a "reasonable distance."

Front 84

What are the elements of trespass to chattels and conversion?

Why study them together?

Back 84

(1) Intent
(2) interference with a plaintiff's personal property, usually via damage or deprivation of possession

Because they are only different in degree. Trespass to chattels = a slight invasion. Conversion = significant harm.

Front 85

Why are theretwo different torts for "trespass to chattels" and "conversion?"

Back 85

The remedies are different.
Trespass to chattles --> cost of repair or rental.
Conversion --> full value of the item.

Front 86

What are the defenses to an intentional tort?

Back 86

(1) Express or Implied Consent
(2) Self-Defense
(3) Defense of 3rd persons
(4) Defense of property
(5) Necessity

Front 87

For defense to an intentional tort, what is the first thing to ask about an alleged consent?

Back 87

Does the consenter have capacity to consent?
Children, developmentally disabled people, drunk people, etc. cannot consent.
The consenter must be "sane and sober."

Front 88

For defenses to intentional torts, when is express consent by a capable adult disregarded?

Back 88

When it is obtained by fraud or duress.

Front 89

What is implied consent, as a defense to intentional torts?

Back 89

It is based on custom, where the plaintiff has gone to a place or is participating in an activity where certain invasions are routine (for instance, hockey).
It arises from the defendant's reasonable interpretation of plaintiff's conduct.

Front 90

For implied consent, do the inner thoughts of the plaintiff matter?

Back 90

Not at all.

Front 91

If defendant argues consent as a defense to an intentional tort, and the consent is valid, what can plaintiff argue?

Back 91

That the defendant's behavior exceeded the SCOPE of consent.

Front 92

Why study self-defense, defense of third persons, and defense of property together?

Back 92

The same analysis applies to each of them.

Front 93

For self-defense, etc., as a defense to an intentional tort, what are the three things one must satisfy?

Back 93

(1) Proper timing. Must act in response to a threat in progress or imminent. No revence.
(2) Accuracy. The defendant must have a REASONABLE belief that there is a threat.
(3) Degree of force. Limited to necessary force. Deadly force is never necessary to protect property.

Front 94

Is deadly force ever authorized for protection of property?

Back 94

No.

Front 95

For which torts is the defense of necessity relevant?

Back 95

(1) trespass to land
(2) trespass to chattels
(3) conversion

Front 96

The necessity defense to intentional torts has two variations.

What are they?

Back 96

(1) Public necessity: defendant intereferes with plaintiff's property to protect the community as a whole or a significant group of people. This is an ABSOLUTE defense.
(2) Private necessity: when defendant invades plaintiff's property in an emergency, to protect the interests of his home. NOT an absolute defense.

Front 97

Is private necessity an asbolute defense?

Back 97

No. It has three consequences.
(1) The defendant must pay for actual harm to property.
(2) The defendant NEVER pays nominal or punitive damages.
(3) As long as the emergency continues, the defendant has a RIGHT to remain on the plaintiff's property.

Front 98

Is there an exception to the rule that a parent is not vicariously liable for the acts of her child?

Back 98

Yes, if the child is acting as an agent of the parent.

Front 99

Can someone be liable for battery even though they did not actually touch the defendant?

Back 99

Yes, if their behavior nonetheless causes the injury. For example, if someone jumps out of your way and hurts himself.