Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
134 Cards in this Set
- Front
- Back
|
TORTS
Level 1 Subjects |
-Intentional Torts
-Defamation and Privacy -Negligence -Strict Liability -Vicarious Liability -Products Liability -Other Heavily Tested Torts -Remedies |
|
|
TORTS
Level 2 Intentional Torts |
-Assault
-Battery -False Imprisonment -I.I.E.D. -Trespass to Land -Trespass to Chattel -Conversion |
|
|
TORTS
Level 2 Defamation & Privacy |
-Defamation
-Privacy |
|
|
TORTS
Level 2 Negligence |
-Duty
-Special Duty -Breach -Actual Cause -Proximate Cause -Damages -Defenses |
|
|
TORTS
Level 2 Strict Liability |
-Animals
-Ultrahazardous activity |
|
|
TORTS
Level 2 Vicarious Liability |
-Respondeat Superior
-Independent Contractor -Parent-Child |
|
|
TORTS
Level 2 Products Liability |
-Strict Liability in Tort
-Negligence -Implied Warranties -Express Warranties -Misrepresentation -Intent Theory |
|
|
TORTS
Level 2 Other Torts |
-Nuisance
-Misrepresentation -Business Torts -Improper Litigation -Legal malpractice |
|
|
Torts
Level 2 Remedies |
-Damages
-Restitution -Injunction |
|
|
TORTS
Level 3 - Intentional Torts |
Each has the elements of causation + damages
|
|
|
TORTS
Level 3 - Intentional Torts Assault |
Act with intent to cause reasonable apprehension of imminent harmful or offensive touching
|
|
|
TORTS
Level 3 - Intentional Torts Battery |
Intentional harmful or offensive touching of another
-- (without consent - consent is a defense). |
|
|
TORTS
Level 3 - Intentional Torts False Imprisonment |
Intentional physical or psychological confinement of another within fixed boundaries.
|
|
|
TORTS
Level 3 - Intentional Torts I.I.E.D. |
Conduct of an extreme or outrageous nature calculated to cause and does cause severe emotional damage --- (Intent or recklessness - acting with disregard for high probability of emotional distress).
|
|
|
TORTS
Level 3 - Intentional Torts Trespass to Land |
Intentional entry upon land in possession of another without consent --- (Harm not needed).
|
|
|
TORTS
Level 3 - Intentional Torts Trespass to Chattel |
Intentional interference with chattel in possession of another --- (e.g., vandalism - interference with right to possession)
|
|
|
TORTS
Level 3 - Intentional Torts Conversion |
INTENTIONAL exercise of wrongful dominion or control over chattel of another --- (without consent - e.g., theft).
|
|
|
TORTS
Level 3 - Defamation and Privacy Defamation |
Defamatory statement of or concerning plaintiff published to a 3P that results in damage.
|
|
|
TORTS
Level 3 - Defamation and Privacy Defamation - Public Figure |
One who either:
---has achieved pervasive fame (e.g., entertainment figures/high gov't officials) or ---voluntarily assumes a central role in a particular controversy and the defamation is related to that role. |
|
|
TORTS
Level 3 - Defamation and Privacy Privacy |
-Appropriation of Name/Likeness
-Intrusion Upon Seclusion -Public Disclosure of Private Facts -Portrayal in False Light |
|
|
TORTS
Level 3 - Negligence |
Breach of Duty of Care which is the Actual & Proximate Cause of P's Damages.
|
|
|
TORTS
Level 3 - Negligence Duty |
General Standard:
Duty to Act as reasonably prudent person (RPP) Under Circumstance --- (must enumerate specifically what D's duty was). |
|
|
TORTS
Level 3 - Negligence Special Duty Rules - N.I.E.D. |
Duty to avoid causing distress to another: Duty breached when defendant creates a foreseeable risk of physical injury through impact or threat of impact.
|
|
|
TORTS
Level 3 - Negligence Breach |
Ask what was the specific wrongful behavior that flows from the duty --- (e.g., "He breached duty when he drove after drinking.")
|
|
|
TORTS
Level 3 - Negligence Actual Cause - Tests |
-"But For"
-Substantial Factor -Alternate Causes - (Summers v. Tice) |
|
|
TORTS
Level 3 - Negligence Proximate Cause |
Defendant is liable for all foreseeable harmful results of his conduct --- (PC = Proximate Cause, sometimes called "legal cause").
|
|
|
TORTS
Level 3 - Strict Liability Animals |
An owner or keeper of wild animals will be SL for any harm caused by Animal's dangerous propensities.
|
|
|
TORTS
Level 3 - Strict Liability Ultra Hazardous |
One who maintains an abnormally dangerous activity may be liable despite exercise of reasonable care.
NOTE: Inherently dangerous activity (ultrahazardous activity) triggers vicarious liability (i.e., respondeate superior) + Independent Contractor. |
|
|
TORTS
Level 3 - Vicarious Liability Respondeat Superior |
Employer is vicariously liable for torts of employee that occur within the course & scope of employment.
|
|
|
TORTS
Level 3 - Vicarious Liability Independent Contractor |
Principal not liable for torts of agent if agent Independent Contractor
|
|
|
TORTS
Level 3 - Vicarious Liability Joint Activity |
Each member of a partnership or joint venture is vicariously liable for torts of another member committed within the scope of the relationship.
|
|
|
TORTS
Level 3 - Vicarious Liability Auto |
One is generally not vicariously liable for conduct of another driving one's auto
|
|
|
TORTS
Level 3 - Vicarious Liability Parent-Child |
Generally, parent not liable.
|
|
|
TORTS
Level 3 - Products Liability |
Products liability refers to the liability of a commercial seller who supplies a defective product that causes personal injury or property damage.
|
|
|
TORTS
Level 3 - Products Liability Strict Liability in Tort |
A commercial seller (i.e., one engaged in the business of selling or distributing products) who places a defective product in the stream of commerce is strictly liable in tort for injuries to persons or property caused by a foreseeable use of the product.
|
|
|
TORTS
Level 3 - Products Liability Implied Warranties - Merchantability |
Goods of fair & average quality; fit for ordinary purpose (includes absence of warning label)
|
|
|
TORTS
Level 3 - Products Liability Implied Warranties - Intended Use |
Product must be fit for its intended use and buyer must rely on seller's recommendation
|
|
|
TORTS
Level 3 - Products Liability Express Warranty |
Statement of fact or promise by a commercial seller creates an express warranty that becomes part of the basis of the bargain.
|
|
|
TORTS
Level 3 - Products Liability Misrepresentation |
Commercial seller is liable for material misrepresentations of fact.
|
|
|
TORTS
Level 3 - Products Liability Intent Theory (Battery) |
Commercial seller is liable for injuries caused by an unsafe product if defendant intended the consequences.
|
|
|
TORTS
Level 3 - Other Torts Nuisance |
Substanial, unreasonable interference with another's use & enjoyment of property --- (e.g., dust, smoke, chemicals, criminals).
|
|
|
TORTS
Level 3 - Other Torts Misrepresentation: Intentional (Fraud) |
A misrepresentation of material fact made knowingly with intent to induce plaintiff's reliance, causing plaintiff to justifiably rely to his detriment.
|
|
|
TORTS
Level 3 - Other Torts Misrepresentation: Negligent |
False material misrepresentation of material fact which is made with a lack of due care, intended to induce reliance to proximately cause plaintiff's damage --- (limited to commercial/professional setting).
|
|
|
TORTS
Level 3 - Other Torts Improprer Litigation: Malicious Prosecution |
Initiation of criminal proceedings against plaintiff that terminates in plaintiff's favor and for which there was no probable cause and an improper purpose, resulting in damage to plaintiff.
|
|
|
TORTS
Level 3 - Other Torts Improper Litigation: Abuse of Process |
Use of criminal or civil process for which it was not inteded. Must be intentional misuse for an ulterior purpose, calculated to cause damage.
|
|
|
Elements to defamtion IF NOT A MATTER OF PUBLIC CONCERN (4)
|
1. Defamatory language
2. of or concerning P 3. communicated to third party 4. resulting in damage to reputation |
|
|
Elements to defamation IF A MATTER OF PUBLIC CONCERN (6)
|
1. Defamatory language
2. of or concerning P 3. communicated to third party 4. resulting in damage to reputation 5. falsity of defamatory statement 6. fault on defendants part |
|
|
Defenses to defamation (4)
|
1. Consent
2. Truth 3. Absolute privilege 4. Qualified privilege |
|
|
Invasion of privacy claims (4)
|
1. Appropriation
2. False light 3. Public disclosure of private facts 4. Intrusion on one's seclusion or solitude |
|
|
Collateral Source Rule
|
The contributions froms Defendants are set off upon judgment in tort claim
|
|
|
Elements to Misrepresentation / Fraud / Deceit (6)
|
1. False statement from D
2. Knowledge 3. Intent to compel reliance from P 4. Causation 5. Justifiable reliance 6. Damages |
|
|
Misrepresentation: General rule for disclosure and 2 exceptions
|
Generally, no duty to disclose, unless
1. Fiduciary relationship 2. D has partially disclosed truth |
|
|
2 Elements for Public Nuisance
|
1. An unreasonable interference w/ right common to general public
2. Where conduct involves a significant interference with public health, safety, or peace |
|
|
How to recover for public nuisance
|
P must suffer harm distinct from general public:
1. PI 2. Harm to health 3. Harm to chattels - substantial interference w. enjoyment of land. |
|
|
Invasion of privacy claims subject to reasonableness standard
|
1. False light
2. Public disclosure of private facts 3. Intrusion on one's seclusion or solitude |
|
|
What is appropriation and what are/are not defenses?
|
1. Making unauthorized use of P's name/likeness for D's own commercial advantage
2. Mistake and truth is no defense 3. Consent is only defense |
|
|
What is public disclosure of private facts and what are/are not defenses?
|
1. One who gives publicity to a matter re the private life of an individual when the matter would be highly ofensive to a reasonable person and has not legitimate public concern
2. Truth is no defense 3. Consent or newsworthy publication is a defense |
|
|
What is qualified privilege?
|
Defamation for the public interest or interest of others so long as you reasonably believe the info to be true and state w/o malice
|
|
|
Slander v. Libel
|
Slander:
1. Oral defamation 2. Must prove special damages Libel: 1. Written / Radio / TV defamation 2. No special damages needed |
|
|
Examples of Slander per se (4) and how to gain damages?
|
1. P is a whore
2. Loathsome disease 3. Impute improper conduct in one's trade, conduct, or profession 4. Falsely accuse one of a crime/moral turpitude DAMAGES ARE PRESUMED |
|
|
What is/is not defamatory language (2/2)
|
IS:
1. Language tending to adversly affect one's reputation 2. Induced statement via innuendo IS NOT: 1. Opinion 2. Dead guys! |
|
|
How particular must defamatory statement identify plaintiff?
|
So long as reasonable listener / viewer would understand that the statement referred to plaintiff
|
|
|
What is publication and who are liable for publication of statements?
|
1. Defamatory statement made to somebody besides plaintiff
Primary publishers and all repeaters of defamatory statements are liable! |
|
|
Night Terrors
|
Bad dreams more often in childhood
*****Don't remember them when waking up |
|
|
What is Private Nuisance?
|
Disturbance that creates substantial and unreasonable interference with one's use and enjoyment of the property
|
|
|
What is the test for private nuisance?
|
It must be offensive, inconvenient, or annoying to the average member of the community
|
|
|
Why can a hypersensitive Plaintiff never recover for nuisance?
|
They are not a reasonable person!
|
|
|
SL - Defective products: Elements (3)
|
1. A supplier of products
2. Engaged in the business of selling products 3. Who places a defective product, unreasonably dangerous to the consumer, in the stream of commerce |
|
|
SL - Animals: Test for wild animals
|
Owner of a wild animal is SL for the resulting harm resulting from the wild r dangerous natre of the animal
|
|
|
S: - Animals: Test for domesticated Animals
|
Owner is liable if he had knowledge that animal is vicious
|
|
|
Wrongful Death Actions:
1. Who may recover? 2. What may they get? |
1. Allows heirs to recover on behalf of decedent
2. Pecuniary losses but no pain/suffering ro privacy/defamation |
|
|
Survival Actions:
1. Who may recover? 2. What may they get? 3. What may they not get? |
1. Allows estate to recover
2. -Pain/suffering -Lost Wages -Medical expenses NO privacy / defamation |
|
|
Respondeat superior:
What is employer liable / not liable for (1/1) |
Liable: Negligence of employee
Not liable: Intentional torts of employees |
|
|
Joint venture liability: Elements (4)
|
1. Express / Implied K
2. Community of interest 3. Common purpose 4. Equal right of control |
|
|
Joint ventures: Who is liable
|
Each participant isvicariously liable for the torts of the others committed within the scope of the venture
|
|
|
Independent contractors: When is employer ever liable
|
1. Negligent hiring / supervision
2. Nondelegable duties 3. Contractor is doing inherently dangerous work (dams, high-tension wires, high rise bldg.) |
|
|
Negligent entrustment test
|
It appears that owner knew/should have known of negligent propensities of driver to whom vehicle is entrusted (drunk driver)
|
|
|
Family purpose doctrine: test
|
Owner of an automobile is vicariously liable for acts of agents / family members when used for family purposes
|
|
|
Why are damages not required for assault?
|
Reasonable apprehension is the damage to P
|
|
|
Standard for apprehension in assault
|
Apprehension must be reasonable
|
|
|
Does P need to know that he was touched to be battered?
|
NO
|
|
|
False Imprisonment Elements (3)
|
1. Act or Omission that in/directly caused the confinement or restraint of another within fixed boundaries by D
2. Intent or knowledge on P and D's party that such confinement would result 3. Causation |
|
|
IIED: Elements (4)
|
1. Outrageous or extreme conduct
2. Intent to cause severe emotional distress 3. Causation 4. Damages |
|
|
Wrongful / Maliciou prosecution: Elements (4)
|
1. Private person initiates or procures the institution of criminal proceedings against another;
2. Without probable cause 3. Primarily for a purpose other than to bring an offender to justice 4. Suspected D turns out not to be guilty of the offense charged |
|
|
Trespass to Land: Elements (3)
|
1. D, w/o consent/privilege, physically enters the real property of another or causes a 3rd party to do so
2. Intent, regardless of mistake 3. Causation |
|
|
Trespass to Chattels: Elements (3)
|
1. D interferes with Plaintiff's possessory right in chattel or committing an act with sid chattel hat was substantially different from the act to which P consented
2. Intent 3. Causation |
|
|
Conversion: Elements (4)
|
1. D's act interferes/disposes P of chattel such that the full value of the chattel is owed to P by D
2. Intent to use without permission 3. Causation 4. Damages |
|
|
Defenses to claims of physical harm (8)
|
1. Self-Defense
2. Reasonable discipline 3. Defense of others 4. Defense of property 5. Privilege of trust 6. Necessity 7. Consent 8. Privilege of arrest |
|
|
Relationships conveying affirmative duty of care due to economic / power position(4)
|
1. Employer / employee
2. Common carrier and inkeeper / customer 3. School / pupil 4. Parent / child 5. Jailer / prisoner |
|
|
Duty of Care: Known / Anticipated trespasser
|
Warn of known, dangerous conditions
|
|
|
Duty of Care: Licensee
|
Warn of known, dangerous conditions
|
|
|
Duty of Care: Invitee
|
Make a reasonable inspection and make safe
|
|
|
Duty of Care: Public Employees
|
Invitees: Inspect and make safe
|
|
|
Duty of Care Unknown Trespasser
|
None
|
|
|
Only time landowner owes duty of care for artificial conditions on the land?
|
Attractive Nuisance Doctrine
|
|
|
Elements for Attractive Nuisance Doctrine? (5)
|
1. Artificial, dangerous condition
2. Known that children are likely to trespass 3. Know/reason to know that condition poses risk 4. Child fails to appreciate danger of risk 5. Utility of Maintaining dangerous condition is slight compared to risk |
|
|
Duty of Care: Trees (Residential v. Rural)
|
Residential: reasonable care owed
Rural: no duty of care |
|
|
Duty of Care: Emergencies
|
1. Must act as reasonable person under emergency
|
|
|
When is victim liable for injury to rescuer?
|
1. D negligentl puts himself in peril; and
2. Rescuer not reckless |
|
|
Duty of Care to car passengers who create economic benefit?
|
Invitees: Inspect and make safe
|
|
|
Duty of Care to passengers who do not create economic benefit?
|
Licensee
|
|
|
Limits to defense of Others
|
You may be mistaken in your belief so long as it is reasonable!
|
|
|
Remedies for Conversion (2)
|
1. FMV of the item (not the amt. you paid for it)
2. Replevin |
|
|
Examples of Conversion (6)
|
1. Theft / Embezzlement
2. Wrong transfer / delivery 3. Wrongful detention 4. Using w/o permission 5. Refusal to return on demand 6. Intentionally destroying / altering |
|
|
What is Chattel?
|
Chattel = personal (not real) property
|
|
|
Torts where damages neednot be shown to recover (5)
|
1. Assault
2. Battery 3. False Imprisonment 4. Wrongful Prosecution 5. Trespass |
|
|
Torts requiring damages to recover (6)
|
1. Defamation
2. Misrepresentation 3. Nuisance 4. Negligence 5. IIED 6. Conversion |
|
|
Reasonable Person: Physical Characteristics (2)
|
1. Court will consider physical handicaps
2. Person is expected to know them |
|
|
Reasonable Person: Mental Chracteristics (3)
|
1. Mental handicaps / individual shortcomings are not considered
2. Insanity is not a defense 3. D is deemed to have knowledge of things known by the avg. member of the community |
|
|
Reasonable Person: Professional
|
Required topossess and exercise the knowledge and skill of a member of the profession in good standing, in the community or similar locality
|
|
|
Duty of Care: Lessor of Land (duties and what is he liable/not liable for?)
|
Not Liable: Leased property after lessee takes possession
Duties/Liabilities: 1. Must warn of latent dagerous condition at commencement of lease 2. Liable for common passageways 3. Must know of dangerous condition to be liable for it |
|
|
Res Ipsa: Elements (4)
|
1. No direct evidence of D's conduct
2. Accident rarely occurs w/o negligence 3. Unless manufacturer, D must have had exclusive control at the rlevant time 4. No contrib by P |
|
|
Impact of successful res ipsa showing? (2)
|
1. Creates inference of negligence
2. Does not change the burden of proof |
|
|
Negligence Per Se: Elements (2)
|
1. P was member of class sought to be protected by statute
2. Harm P suffere was kind statute was designed to protect |
|
|
Defenses to Negligence Per Se (3)
|
1. Following the statute would have aggravated harm (negates factual injury)
2. Emergency 3. Accute Physical Injury |
|
|
Causation: Basic Elements (2)
|
1. Factual (But-For) cause
2. Legal (Proximate) cause |
|
|
Variations of Factual Causation (3)
|
1. But-For
2. Direct 3. Substantial Factor |
|
|
Principle of Presumption of Causation
|
1. If you have proximate (legal) causation; presume factual causation
2. If you have factual causation, DO NOT presume proximate cause |
|
|
Intervening Causes: What are they and they general rule
|
What are they: a secondary act which produces harm after the original tortfeasor has already committed his omission/negligent act
General Rule: Original tortfeasor is liable for the results of any FORESEEABLE intervening cause |
|
|
Examples of FORESEEABLE intervening causes / forces (4)
|
1. Negligent rescue
2. Subsequent medical malpractice 3. Subsequent disease 4. Subsequent accident, iforiginal accident was substantial factor in causing second |
|
|
Examples of UNFORESEEABLE intervening causes (3)
|
1. Acts of God
2. Criminal acts of third persons 3. INTENTIONAL torts of third persons |
|
|
When you have multiple D's, when is apportionment / joint & several liability appropriate?
|
Apportionment: each D causes a distinct, separate injury
Joint & Several: all D's cause individible injury |
|
|
When are nomimal damages available in negligence?
|
NEVER!
|
|
|
When are punitive damages available in negligence?
|
Only for D's wanton / willful conduct
|
|
|
What is Eggshell Plaintiff's Rule?
|
D is liable for the full consequences of P's injury, even though, due to P's susceptibility for harm, those consequences were more severe than a normal person would suffer
|
|
|
When are attorney's fees allowed as damages?
|
NEVER!
|
|
|
Examples of Collateral Source payments NOT counted against P's recovery (3)
|
1. Insurance Policies
2. Employment benefits 3. Social legislation benefits (VA benefits) |
|
|
When is contrib not a valid defense (3)
|
1. Intentional torts
2. Willful misconduct 3. Strict liability |
|
|
Distinguish modified / pure comparative negligence
|
Modified: P's negligence < 50% = P recovers
Pure: P's recovers regardless of contrib |
|
|
What damages are recoverable in negligence? (4)
|
1. General / Special damages
2. Past / Future pain and suffering 3. Medical expenses 4. Lost wages |
|
|
Who may block SL of a defendant?
|
Nobody, even if D tells P to get the defective product fixed on D's dime
|
|
|
SL: Liability of non-suppliers
|
They ar enever liable (i.e. doctor can't be SL for using defective needle he didn't produce/sell)
|
|
|
When is contrib. a defense in strict liability?
|
Assumption of the risk: only when P knows of risk that justifies imposition of strict liability and voluntarily undertakes it anyway
|
|
|
What are the three primary defenses in strict liability? (3)
|
1. Assumption of the risk for primary users aware of the risk
2. Misuse 3. Product was substantially changed after leaving D's hands. |
