Torts

Front 1

Trespass to Land:

Back 1

the intentional physical invasion of the real property of another

Front 2

Battery

Back 2

the intentional harmful or offensive contact with the person of another

NOTE: indirect contact (one that sets in motion a force) - setting a trap, broken glass after slamming a door

Front 3

Assault

Back 3

an intentional act by defendant causing reasonable apprehension in plaintiff of imminent harmful or offensive contact

Front 4

False Imprisonment:

Back 4

the intentional act or omission of confining or restraining another to a bounded area.

Front 5

Intentional Infliction of Emotional Distress:

Back 5

an intentional act or recklessness amounting to extreme and outrageous conduct causing plaintiff damages - severe emotional distress.

NOTE: fallback tort - always consider other torts first

Front 6

Res Ipsa Loquitur:

Back 6

1) no solid evidence of negligence (what happened)
2) event usually would not occur, unless someone was negligent
3) negligence can be attributed to defendant (defendant had exclusive control over the instrumentality that caused the harm)

Front 7

Self-defense:

Back 7

a defendant has the right to act in self-defense when he reasonably believes that he is being is or about to be attacked.

Front 8

Necessity:

Back 8

one may interfere with the property of another when he reasonably believes that he is preventing harm that is substantially more serious than the invasion.

NOTE: defense only to property torts

Front 9

Privilege of arrest:

Back 9

A defendant may claim the privilege of arrest when he enters the property of another for the purpose of making an arrest.
1) felony arrest - by police (if reasonable belief that felony was committed); private citizen - felony was in fact committed
2) misdemeanor arrest - breach of peace + committed in presence (police officers and citizens)

Front 10

Defamation - slander per se:

Back 10

(1) adverse effect on person’s conduct in a business or profession;
(2) person has a loathsome decease;
(3) person is guilty of crime involving moral turpitude;
(4) woman is unchaste

Front 11

Defamation - common law:

Back 11

1) defamatory statement
2) of or concerning plaintiff
3) publication - communicated to a third person
3) damage to plaintiff’s reputation

Front 12

Defamation - types:

Back 12

1) libel (written or other permanent form) – general damages presumed, no need to prove special damages

2) slander (spoken) – special damages must be proved, unless slander per se

NOTE: radio and TV broadcasts are LIBEL regardless whether they are scripted

Front 13

Land owner's duty to discovered trespassers:

Back 13

duty to warn and use reasonable care:
1) with regard to activities – reasonable person standard care
2) with regard to dangerous conditions – must protect only from conditions that meet a 4-part test (“known man-made death traps”):
a. artificial condition (never duty to protect from natural conditions)
b. highly dangerous – can kill or maim
c. concealed from trespasser (never duty to protect from open/obvious conditions)
d. owner knew of

Front 14

Attractive nuisance:

Back 14

1) dangerous condition on land, of which owner knows or should be aware
2) owner knows that children come close
3) condition is likely to cause injury because of child’s inability to appreciate risk
4) expense of fixing condition is slight compared to magnitude of risk

Front 15

Land owner's duty - licensees (enter land w/ permission, but not to confer benefits to owner) (social guests)

Back 15

duty to warn of a known dangerous condition which the licensee is unlikely to discover, but NO duty to inspect

Front 16

Landowner's duty - invitees (enter land in order to confer commercial benefit to possessor or enter land that is open to the public)

Back 16

duty to warn and use reasonable care, plus duty to make reasonable inspections to discover dangerous conditions

Front 17

Landowner's duty - NV

Back 17

reasonably prudent person standard regardless how plaintiff entered – “reasonably prudent person under the circumstances” (will work harder for invitee or licensee than trespassers)

NOTE: recreational statute – only liable for wanton and willful behavior

Front 18

Intentional misrepresentation, fraud, or deceit:

Back 18

1) misrepresentation
2) scienter
3) intent to induce P's reliance
4) causation (actual reliance)
5) justifiable reliance
6) damages

Front 19

Invasion of privacy - False Light

Back 19

1) publication of facts about plaintiff placing him in false light in the public eye
2) facts must be objectionable to a reasonable person under the circumstances

Front 20

"Last clear chance" doctrine:

Back 20

allows plaintiff to recover despite his own contributory negligence if the DEFENDANT has last clear chance to avoid accident.

NOTE: Applies only to contributory negligence jurisdictions and only to defendant's conduct.

Front 21

Parental responsibility for torts of children:

Back 21

No liability for the intentional torts of children, BUT parents may be liable for negligence (negligent supervision, lack of control)

Front 22

Proximate causation:

Back 22

defendant is liable for all harmful results that are the normal incident of and within the increased risk caused by his acts

Front 23

Proximate causation - superseding intervening force

Back 23

superseding intervening force is one that breakes the causal connection between the initial wrongful act and the injury, and becomes direct cause of the injury

Front 24

Intent:

Back 24

1) specific - defendant intends the consequences of his act
2) general - defendant knows with substantial certainty that these consequences will result

Front 25

Transferred intent - defendant intends one tort against one person, but committs:

Back 25

1) different tort against same person
2) same tort against different person
3) different tort against different person

NOTE: limitted to assault, battery, false imprisonment, tresspass to land/chattel

Front 26

Causation in intentional torts:

Back 26

satisfied where defendant's conduct is a substantial factor in bringing about the injury

Front 27

False imprisonment - "shoplifting" privilege

Back 27

1) reasonable belief that theft was committed
2) reasonable manner of detention - non-deadly force ONLY
3) detention was for reasonable time and only for purposes of investigation

Front 28

IIED - "outrageous" conduct

Back 28

conduct that transcends all bounds of decency tolerated by society

NOTE: common carriers and innkeepers - conduct may be less that outrageous (special duty to patrons ONLY)

Front 29

IIED - bystanders

Back 29

1) P was present when injury to other person occurred
2) P is close relative
3) D knew that P is present and close relative

NOTE: no need for family relationship if D's purpose was to cause severe emotional distress

Front 30

Trespass to chattels:

Back 30

1) an act that interferes with P's right of possession in chattel
2) intent
3) causation
4) damages
a. intermeddling - direct damage
b. dispossession

Front 31

Conversion:

Back 31

1) an act that interferes with P's right of possession in chattel so serious as to warrant that D pay full value of chattel
2) intent (BUT, even an innocent act or mistake will suffice)
3) causation

NOTE: bona fide purchaser may be liable if chattel was stollen

Front 32

Defenses - Intentional torts against the person:

Back 32

1) Consent
2) Self-defense
3) Defense of others
4) Privilege of arrest
5) Necessity - public and private
6) Discipline

NOTE: private necessity - liable for damages

Front 33

Defenses - Intentional torts against property:

Back 33

1) Defense of property
2) Reentry onto land
3) Recapture of chattels
4) Necessity - public and private

NOTE: private necessity - liable for damages

Front 34

Defamation - constitutional law: matter of public concern or public figure

Back 34

1) defamation elements
2) falsity of defamatory statement
3) actual malice (fault)

Front 35

Defamation - publication:

Back 35

intent to publish or negligence in publishing (not to defame)

Front 36

Defamation - public figure:

Back 36

a public figure is someone who has:
1) achieved perfasive fame or notoriety, or
2) voluntarily assumes a central role in a particular public controversy - limited public figure

Front 37

Defamation - public figure - malice required:

Back 37

Actual malice for defamation purposes is:
1) knowledge that statement is false, or
2) reckless disregard at to truth or falsity of statement

Front 38

Defamation - private figure:

Back 38

1) matter of public concern - negligence required
2) private matter - common law defamation elements

Front 39

Defamation - defenses:

Back 39

1) Consent
2) Truth
3) Absolute privileges:
4) Qualified privileges

Front 40

Defamation - defenses - absolute privileges:

Back 40

a. judicial, legislative, and executive proceedings
b. compelled broadcast
c. communication b/w spouses

Front 41

Defamation - defenses - qualified privileges:

Back 41

a. reports of public proceedings
b. public interest
c. interest of publisher and recepient

Front 42

Invasion of right to privacy:

Back 42

1) appropriation of P's name or picture for D's commercial advantage
2) intrusion upon P's affairs or seclusion
3) false light
4) public disclosure of private facts about P

Front 43

Intrusion upon P's affairs or seclusion:

Back 43

1) act of prying or intruding on P's affairs or seclusion
2) objectionable to a reasonable person
3) fact intruded on is private

Front 44

Negligent misrepresentation:

Back 44

1) misrepresentation by D in business or professional capacity
2) breach of duty towards P
3) causation (actual reliance)
4) justifiable reliance
5) damages

Front 45

Interference with business relations:

Back 45

1) valid contractual relationship between P and 3rd party or valid business expectancy by P
2) D's knowledge of relationship or expectancy
3) intentional interference
4) damages

Front 46

Intentional torts - Intent:

Back 46

The intent element is satisfied if the defendant knew to a substantial certainty that harmful or offensive contact will result.

Front 47

Assumption of risk:

Back 47

complete defense in negligence action, including in comparative negligence jurisdictions

Front 48

Recapture of chattels - when force may be used?

Back 48

ONLY when possession with chattel was obtained unlawfully.

Front 49

Joint and several liability:

Back 49

Each defendant is liable to plaintiff for the entire damage.

Front 50

Contribution:

Back 50

A defendant who pays more than his share of damages under joing & several liability may recover from the other defendants, even when he is more liable than the other defendants.

Front 51

Indemnity:

Back 51

shifting the entire loss among tortfeasors - available when:
1) set in contract
2) vicarious liability situations
3) strict products liability
4) there is an identifiable difference in degree of fault

Front 52

Strict liability -prima facie case:

Back 52

1) absolute duty to make safe
2) breach
3) actual and prximate cause
4) damages

Front 53

Products liability - common elements:

Back 53

1) defect
2) existence of defect when product left defendant's control

Front 54

Products liability - types of defects:

Back 54

1) manufacturing defect
2) design defect
3) inadequate warning

Front 55

Proving manufacturing defect:

Back 55

product failed to perform as safely as ordinary consumer would expect (reasonable misuse anticipated)

Front 56

Proving design defect:

Back 56

defendant could have made the product safer, without serious impact on the product's price or utility

Front 57

Products liability based on strict liability - prima facie case:

Back 57

1) strict duty owed by a commercial supplier
2) breach
3) actual and proximate cause
4) damages

Front 58

Products liability - theories of liability:

Back 58

1) intent
2) negligence
3) strict liability
4) implied warranties of merchantability and fitness for a particular purpose
5) representation theories (express warranty and misrepresentation)

Front 59

Implied warranty of merchantability:

Back 59

the goods are of average acceptable quality and generally fit for the ordinary purpose for which such goods are used

Front 60

Implied warranty of fitness for a particular purpose:

Back 60

seller knowsor has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods

Front 61

Express warranty:

Back 61

Any affirmation of fact or promise concerning goods that become part of the bargain creates an express warranty.

Front 62

Private nuisance - definition:

Back 62

a substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or has the right of immediate possession

NOTE: To establish unreasonableness, the severity of the inflicted harm must outweigh the utility of D's conduct

Front 63

Private nuisance - substantial interference:

Back 63

interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if result of P's hypersensitivity or specialized use of his property.

Front 64

Public nuisance - definition:

Back 64

an act that unreasonably interferes with the health, safety, or property rights of the comunity

Front 65

Vicarious liability - independent contractors:

Back 65

NO liability for independent contractors, unless:
1) inherently dangerous activity
2) duty is non-delegable because of public considerations

Front 66

Malicious prosecution and wrongful civil proceedings -elements:

Back 66

1) institution of criminal or civil proceedings against P
2) termination in P's favor
3) absense of probable cause
4) improper purpose
5) damages

Front 67

Negligent infliction of emotional distress:

Back 67

1) negligent act causing:
a. threat of physical impact that leads to ED, OR
b. directly causing ED
2) physical manifestation

Front 68

Wrongful death - definition:

Back 68

Suit brought by estate on behalf of decedent.

Front 69

Wrongful death - remedies:

Back 69

Family can recover for pecuniary injury of spouse and next of kin:
1) funeral expenses
2) loss of consortium
3) loss of support - earnings

Front 70

NV survival statute:

Back 70

Family may recover for decedent's personal injuries, medical expenses, and pain & suffering from time of injury to time of death.

NOTE: Apply to both personal injuries and torts to property, BUT not to personal interests (defamation, pricacy torts)