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

147 Cards in this Set

  • Front
  • Back
Intentional Tort (Prima Facie Case)
Act (Intentional Tort)
Volitional Movement
Intent (Intentional Tort)
General (substantial certainty)
Transferred Intent (limited to)
False Imprisonment
Trespass to Land
Trespass to Chattels
Causation (Intentional Tort)
Legal Cause
Substantial Factor
Intentional Torts to the Person
False Imprisonment
Intentional Torts to Property
Trespass to Land
Trespass to Chattels
Defenses to Intentional Torts
Defense: self, others, property
Privilege of Arrest
Harms to Economic and Dignitary Interests
Invasion of Right of Privacy
Wrongful Institution of Legal Proceedings
Interference with Business Relations
Negligence (Prima Facie Case)
Defenses to Negligence
Contributory Negligence
Assumption of Risk
Comparative Negligence
Strict Liability
Ultrahazardous Activities
Products Liability
Strict Liability
Implied Warranties
Battery (PFC)
Harmful or offensive contact
To plaintiff's person
Harmful or Offensive Contact (Battery)
Reasonable Person Standard
Direct or Indirect
Consent can be implied
Plaintiff's Person (Battery)
Anything connected to the Plaintiff
Assault (PFC)
An act by defendant creates reasonable apprehension

Of IMMEDIATE harmful or offensive conatact to plaintiff's person



Apparent ability sufficient

Words alone not sufficient
False Imprisonment (PFC)
An act or ommission on the part of the defendant that confines or restrains plaintiff

To a bounded area


Sufficient Methods of Confinement or Restraint
Physical barriers

Physical Force


Failure to release

Invalid use of legal authority
Insufficient Methods of Confinement
Moral Pressure

Future Threats
Time of Confinement
Awareness of Confinement
Bounded area
No reasonable means of escape
Intentional Infliction of Emotional Distress (PFC)
An act by defendant amounting to extreme and outrageous conduct

Intent or recklessness


Damages (severe emotional distress)
Extreme and Outrageous Conduct
Continuous in nature

Directed at a certain type of plaintiff (kids, old, pregnant, known hypersensitives)

Committed by certain types of defendants (common carriers or innkeepers)
Nominal damages
All intentional torts but IIED
Bystander IIED
a) Present when injury occurred

b) Close relative of injured person

Defendant knew a) and b)
Trespass to Land (PFC)
Physical invasion of plaintiff's real property


Physical invasion (Trespass)

Tangible Objects propelled
Real Property (Trespass)

Air and underground for reasonable distance
Intent (Trespass)
Only to enter (mistake irrelevant)
Potential Plaintiffs (Trespass)
Anyone in actual or constructive possession
Trespass to Chattels (PFC)
An act by defendant that interferes with plaintiff's right of possession



Types of Interference (Trespass to Chattels)

Damages (Trespass to Chattels)
Actual damages required (at least to possesory right)
Conversion (PFC)
An act by defendant that interferes with plaintiff's right of possession

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


Acts of Conversion

Wrongful Transfer

Wrongful detention

Subject Matter of Conversion

Intangibles reduced to physical form (promissory note)
Potential Plaintiffs for Conversion
Anyone with possession or immediate right to possession
Consent (questions)
Was there a valid consent?

Did the defendant stay within the scope of the consent?
Consent to criminal acts
Exceptions to Express Consent
Mistake of defendant that tortfeasor knowingly took advantage of

Induced by fraud or duress
Implied Consent (Intentional Torts)
Apparent consent (custom, usage, conduct)

Consent implied by law (save life, etc)
Capacity to commit an Intentional Tort
Capacity to consent to an intentional tort
Sane, sober adult
Defense (self, others, property)
Reasonable belief about to be attacked (no revenge)

Reasonable force necessary to protect
Self Defense
Duty to retreat before using deadly force

Not available to aggressors

May extend to injured third parties unless deliberate

Reasonable mistake allowed
Defense of Others
Reasonable belief

Reasonable mistake

Deadly force
Defense of Property
Request to leave (unless futile or dangerous)

Hot pursuit

Not against one with a privilege

Reasonable mistake allowed except as to whether entrant has privilege (unless entered weird)

Not deadly force
Reentry onto Land
No self-help
Recapture of Chattels
Timely demand

Force only to recover from wrongdoer (reasonable, no deadly) generally only in hot pursuit

Mistake not allowed (except shopkeeper's privilege)
Entry on Land to Remove Chattel
Wrongdoers: privileged

Innocent: notice, reasonable time and peaceful manner (liable for damage caused to land)

Through owner's fault: no privilege
Shopkeeper's Privilege
Detain suspect for reasonable time
Privilege of arrest
Invasion of Land

Liable for subsequent misconduct


1) Misdemeanor: only for breach of peace

2) Felony: Police may make reasonable mistake. Citizen may make reasonable mistkae regarding ID, but not regarding whether felony occurred.
Reasonably and apparently necessary to avoid injury greater than injury of invasion

Public (absolute)

Private (liable for actual damages)
Parent or teach may use reasonable force to discipline a child
Defamation (PFC)
1. Defamatory langage

2. Of or concerning plaintiff

3. Publication

4. Damages to reputation

On matters of public concern

5. Falsity

6. Fault
Defamatory language (definition)
1. Adversely affect one's reputation

2. Allegation of facts or opinion based in facts

- Name calling insufficient
- Additional facts for innuendo
- Living person requirement
"Of or corncerning" (Defamation)
Reasonable listener standard

Extrinsic evidence may be offered (colloquium)
Group Defamation
1) All members of small group, each member may file

2) Large group, no members

3) Some members, small group, reasonable person standard
Publication (Defamation)
One person (other than Plaintiff)

Intentionally or negligently

Each repitition a new publication

Primary publishers as liable as authors
Libel (definition)
Written or printed publication of defamatory language

No need to prove special damages

General damages presumed
Slander per se
No need to prove special damages

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

4) A woman is unchaste
Defamation on radio and TV
Libel if sufficiently permanent, premeditated and broudly disseminated

Modren trend: ad libbed still libel
Matter of Public Concern (defamation)
Public Figure must prove malice: knowledge or reckless disregard (ill will not enough)

Private Figure: negligence
Defenses to Defamation


Absolute privilege
(judicicial proceedings, legislative debate, federal executive officials, compelled broadcasts, between SPOUSES)

Qualified privilige
(reports of official proceedings; statements in interest of publisher- defense of one's actions, property, or reputation; statements in interest of recipient; and statements in the common interest of publisher and recipient)

Qualified privilege may be lost if:

1) the statement is not within the scope of the privilege

2) It is shown the the speaker acted with malice
Invasion of Privacy (four kinds)
1. Appropriation

2. Intrusion

3. False Light

4. Public Disclosure of Private Facts
Appropriation (definition)
1. Unauthorized use of plaintiff's picture or name

2. For defendant's Commercial Advantage

- Liability generally limited to advertisements or promotions of products or services

- Newsworthy exception
1) Invasion by defendant of plaintiff's solitude

2) In a way objectionable to a reasonable person

– Has to be in a place where there is an expectation of privacy (no public streets)

– Does not require a trespass

Examples: wiretapping, covert surveillance, peeping Tom
False Light
1) Widespread dissemination of a major misrepresentation about plaintiff

2) Would be objectionable to reasonable person

- If public concern, apply First Amendment tort doctrine

- Misrepresentation need not be defamatory

- Innocent mistake still actionable
Public Disclosure
1) Widespread dissemination of confidential information about plaintiff

2) Would be objectionable to an average person

- Truth inconsequential

- Newsworthy exception

- First Amendment probably applies
Damages (in Invasion of Privacy)
No need to plead or prove special damages.

Emotional distress and mental anguish sufficient
Who holds right of privacy
Personal right

Not assignable, no family, no corporations, does not survive death
Intentional Misrepresentation (PFC)
1. Misrepresentation of a material fact

2. Scienter

3. Intent

4. Causation (actual reliance)

5. Justifiable reliance

6. Damages (pecuniary)
Misrepresentation (definition)
Of a material fact

Silence generally not enough
Scienter (definition)

1) knew or believed it was false

2) there was no basis for statement
Intent (Misrepresentation - definition)
Induce plaintiff to act or refrain from acting IN RELIANCE upon the misrepresentation
Negligent Misrepresentation (PFC)
1. Misrepresentation by defendant in a BUSINESS or professional capacity

2. Breach of duty toward foreseeable plaintiff

3. Causation

4. Justifiable Reliance

5. Damages
Wrongful Institution of Legal Proceedings
1. Malicious Prosecution

2. Abuse of Process
Malicious Prosecution (PFC)
1. Institution of criminal proceedings

2. Termination in plaintiff's favor

3. Absence of probable cause for prior proceedings

4. Improper purposes

5. Damages

- Prosecutors immune

- Most jurisdictions have extended to cover civil cases
Abuse of Process (PFC)
1. Wrongul use of process for an ulterior purpose

2. Definite act or threat against plaintiff in order to accomplish an ulterior purpose
Interference with Business Relations (PFC)
1. Existence of a valid contractual relationship between plaintiff and a third party OR a valid business expectancy

2. Defendat's knowledge of the relationship or expectancy

3. Intentional interference by the defendant inducing breach or termination of the relationship or expectancy

4. Damages

- Privileges: proper attempt to obtain business for itself or protect its interest (especially where only plaintiff's expectancy)
Negligence (PFC)
1) Duty
2) Breach
3) Causation
4) Damage
Duty of Care (2 questions)
1) Was the plaintiff foreseeable?

2) If so, what is the applicable standrad of care?
Foreseeable/Unforeseeable Plaintiffs
1) Cardozo: zone of danger/reasonable person

2) Andrews (minority): Everyone

- Rescuers always foreseeable
Reasonable Person (Standard of Care)
- Objective standard

- Mental characteristics, inexperience not taken into account

- Physical characteristics of defendant are taken into account
Particular Standards of Conduct
1. Professionals
2. Children
3. Common Carriers or Innkeepers
4. Automobile Driver to Guest
5. Bailment Duties
6. Emergency Situations
Professionals (standard of care)
Standard of reasonable expert

Doctors: comparative locality, duty to disclose risks
Children (standard of care)
Subjective (like age, education, experience, intelligence)

Unless adult activity (driving something with a motor)
Common Carriers/Innkeepers (standard of care)
High degree; even slight negligence

Only to guests/passengers
Bailment Duties
Owed by bailor:
1) Gratuitious, must inform of known, dangerous defects

2) For hire, known or knowable defects

Duties owed by Bailee:

1. for sole benefit of bailor, low

2. sole benefit of bailee, high

3. mutual, ordinary
Undiscoverd Trespassers (duty of care)
No duty
Discovered or Anticipated Trespassers (duty of care)
Activities: ordinary care

Conditions (attractive nuisance):

1. Artificial in nature (built)
2. Highly dangerous (kill or maim)
3. Knew about in advance
4. Concealed from entrant

Short Version: Known, man-made death traps


1. Known or knowable dangerous condition

2. Owner should know children frequent vicinity

3. Condition is likely to cause injury (child cannot appreciate risk)

4. Cost-effective to remedy
Licensees (duty of care)
i.e. Social Guests

– Activities: Objective

– Conditions:

1. Concealed
2. Known in advance by occupier

– Short version: All known traps

Modern minority trend: no distinctions
Invitees (duty of care)
– Activities: objective

– Condition:

1. Concealed
2. Knew about in advance or could have discovered through a reasonable inspection (duty to inspect)

– Short version: all reasonably knowable traps

Modern minority trend: no distinction
Users of Recreational Land (duty of care)
No liability unless wilfully and maliciously failed to guard against or warn of a dangerous condition or activity
Lessor and Lessee (duties)
Lessee has duty to maintain premises. If volunteers to repair, negligence standard

Lessor must warn of knowable nonobvious existing defects. Convenant to repair, liable for all unreasoable conditions
Statutory Standards of Care
A statute's specific duty may replace the more general duty of care if:

1. the statute provides for a criminal penalty

2. the statute clearly defines the standard of conduct

3. plaintiff is within the protected class

4. statute was designed to prevent the type of harm suffered by the plaintiff

Excuse: compliance would cause more harm than good or beyond defendant's control

Violation (majority) negligence per se

Compliance does not necessarily establish due care
Negligent Infliction of Emotional Distress
Defendant creates a foreseeable risk to plaintiff of physical injury by:

1) causing a threat of physical impact

2) directly causing severe physical distress that by itself is likely to result in physical symptoms
Negligent Infliction of Emotional Distress - Injury Requirement
Only some physical injury


1) erroneous report of relative's death

2) mishandling of relative's corpse
Negligent Infliction of Emotional Distress - Zone of Danger Requirement
Must be within zone of danger of physical injury

Modern trend:

1) Plaintiff and person injured by defendant are closely related

2) Plaintiff was present at the scene

3) Plaintiff observed or preceived the injury
Affirmative Duty to Act
1. Assumption of the Duty by Acting (exception: Good Samaritan Statutes)

2. Peril due to defendant's conduct

3. Special Relationship between Parties (parent/child, innkeeper, public accommodation)

4. Duty to Control 3rd person (authority and ability)
Breach of Duty (Proof)
Custom or Usage

Violation of Statute

Res Ipsa Loquitor
Special Case for Duty to Entrants
– Firefighters and police officers considered licensees, but they never recover for inherent risks of the job (assumption of the risk)
Satisfying Duty owed to Entrants
– Whenever a duty is owed to an occupier by an entrant, that duty can be satisfied by

1. Fix or repair the dangerous condition

2. Give a warning (changes concealed condition to open and obvious)
Res Ipsa Loquitor
1) The accident that does not normally occur in the absence of negligence

2) Must demonstrate that this type of accident normally happens because of the negligence in the defendant's position

- Only PFC, no directed verdict for Plaintiff unless also negligence per se
Actual Cause
– but for test

– Multiple Defendant Scenario and Mingled Causations

1) Substantial Factor Test: did each defendant contribute to the injury/misfortune in a substantial way?
2) Joint and severally liable

– Multiple Defendant Scenario and Unascertainable Cause

1) Shift the burden of proof
2) If don't satisfy, joint and severally liable
Proximate Cause: Direct Cause Cases
All foreseeable harm
Proximate Cause: Indirect Cause
1) Foreseeable Results Caused by Foreseeable Intervening Forces: always liable

2) Foreseeable Results Caused by Unforeseeable Intervening Forces: usually liable

3) Unforesseable Results Caused by Foreseeable Intevening Forces: not liable

4) Unforeseeable Results, Unforeseeable Intervening Force: not liable

5) Unforeseeable Extent or Severity of Harm: always liable (EGGSHELL SKULL)
Common Dependent Intervening Forces
1) Subsequent medical malpractice

2) Negligent rescuers

3) Efforts to protect property or other person

4) Injuries caused by reactions

5) Subsequent accidents substantially caused by original injury
Independent Intervening Forces
1) Acts of God
2) Negligence of 3rd person
3) Crimes and intentional torts of 3rd persons

- liable if defendant's negligence increased the risk
Damages (Negligence)
1. Personal Injury (all)

2. Property (reasonable repair or fair market)

3. Punitive (wilfull and wanton)

4. Nonrecoverable Items (interest; attorney's fees)

5. Duty to Mitigate

6. Collateral Source Rule
Contributory Negligence
1) Complete bar to recovery

2) No defense to intentional tort

3) Exception: last clear chance
Assumption of the Risk
Denied recovery if:

1) Known risk
2) Voluntary proceeded

- Can be implied or express

- No assumption if fraud, duress, emergency or no alternatives

- No defense to intentional torts
Comparative Negligence
- Pure: recover regardless

- Majority: only if negligence smaller

- No last clear chance or implied assumption of risk
Strict Liability (PFC)
1. Absolute duty to make safe
2. Breach
3. Actual and Proximate Cause
4. Damge to person or property
Liability for Animals
1. Strict liability for foreseeable damage done by trespass

2. Strict liabilty for Wild Animals

3. No strict liability for Domestic animals, unless known propsensity

4. No strict liability to trespassers (may be intentional tort)
Ultrahazardous or Abnormally Dangerous Activities
1. Involve risk of serious harm

2. Cannt be performed without risk

3. Not commonly engaged in in particular community
Defenses to Strict Liability
1. Apply comparative negligence

2. Assumption of the Risk

- No contributory negligence
Products Liability (theories)
1. Intent
2. Negligence
3. Strict Liability
4. Implied Warranties of merchantability and fitness for a particuar purpose
5. Representation (express warranty and misrepresentation)
Product Liabilities (common elements)
1) Defect (manufacturing, design, inadequate warning)

2) Existence of defect when it left defendant's control
Manufacturing Defect (definition)
Product failed to perform as safely as an ordinary consumer would expect (includes food)

Different than all others that came off line

Defendant must expect reasonable misuse
Design Defect
Defendant could have made product safer without serious impact on the product's price or utility

- Alternative Design
- Cost-Effective
- Practical
Government Safety Standards (product liability)
Noncompliance is per se defective

Compliance only evidence
No liability in Products Liabiality where
1) Scientifically unkowable risk

2) Unavoidable unsafe product
Who's liable in products liability
Manufacturers, wholesalers and retailers

- Not casual sellers or providers of services
Products Liability - Strict Liability (PFC)
1. Merchant in chain of distribution

2. Defective

3. Existed when product left the Defendant's hand

4. Foreseeable user making a foreseeable use

5. Causation

6. Damages (physical inury or property damage)

- Disclaimers irrelevant
- Merchantability: goods are of average acceptable quality and are generally fit for ordinary purposes
Arises when the seller knows or has reason to know the particular purposed for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods
Implied Warranties of Merchantability and Fitness (5 points)
1. Buyer, family, household, and guests can sue for personal injury

2. Fault not required

3. Personal injury, property damages, and PURELY ECONOMIC loss are recoverable

4. Assumption of risk and failure to give notice of breach (FCC) are defenses

5. Disclaimers generally rejected
Express Warranty
Any affirmation of fact or promise that become part of the basis of the bargain
Misrepresentation of Fact (product liability)
1) Statement was material fact concerning quality

2) Seller intended to induce reliance

- strict liability
Private Nuisance
Substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession

- Balancing Test
Public Nuisance
Unreasonably interferes with the health, safety or property rights of the community
Remedies for Nuisance
1. Damages
2. Injunction
3. Abatement by self-help
Defenses to Nuisance Liability
1. Legislative authority

2. Conduct of others

3. Coming to the nuisance (for the sole purpose of bringing lawsuit)

- No contributory negligence
Employer-Employee (vicarious liability)
– Respondeat Superior: employer is responsible for torts of employee if within the scope of employment

– Intentional torts normally outside scope unless designed to serve employer's purposes

– Also: Negligent Hiring
Vicarious Liability
1. Employer/Employee
2. Owner/Independent Contractor
3. Parent Child
4. Owner/Driver
5. Bailor for Bailee
6. Tavernkeeper
7. Patner/Joint Venturer
Owner/Independent Contractor (Vicarious Liability)
– Not liable

- Unless ultrahazardous

– Exception: landowner if invitee hurt on land (non-delegable duty)
Parent/Child (vicarious liability)
- Not liable

- Unless agent

- Look for parental negligence
Patnerships and Joint Venturers (Vicarious Liability)
- Liable for conduct within scope and course
Tavernkeepers (vicarious liability)
- Not liable unless Dramshop law
Owner/Driver (Vicarious Liability)
- Not liable

- Unless agent

- Some states: liable for family car or permissive use
Allows a defendant who pays more than his share of damages to have a claim against other jointly liable parties for the excess
Shifting entire loss between or among tortfeasors

Available in

1) Contract
2) Vicarious Liability
3) Strict products liability
4) Difference in degree of fault (some places)
Loss of Consortium
Whenever married, the uninjured spouse gets a second and separate cause of action in their own right

– Can recover

1) Loss of services (do the laundry, mow the lawn)

2) Loss of society (companionship)

3) Loss of sex

- Similar action available for lost child (probably not the sex part)