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104 Cards in this Set

  • Front
  • Back
Intentional Torts to the Person - General observations
1. Ignore hypersensitivity of P.
2. No incapacity defenses to intentional torts.
3. ALL of these require intent.
a. specific: the desire of D to produce the forbidden result; or
b. general: act with virtually certain knowledge that the result will come to pass.
Battery - Elements
1. D commits harmful or offensive contact; and
a. Offensive battery typically tested: "unpermitted": ie, not permitted by typical, normal, average person.
2. Contact must be with P's person
a. Anything holding/touching = P's person.
Battery - Types
1. Sexual harassment; groping, no informed consent medical procedure.
Assault - Elements - 1/2
1. D places P in reasonable apprehension; and
a. Not fear, but "knowledge of"
b. Look out for "David and Goliath problem, since it is not FEAR
c. Unloaded gun problem: use perspective of P
Assault - Elements 2/2
2. of an immediate batter (ie, harmful or offensive contact)
a. "words alone" lack immediacy; must be coupled with overt physical conduct
b. BUT, words can "negate" immediacy [conditional words; future threats]
False Imprisonment - Elements 1/4
1. D committed act/omission that;
a. Threats are sufficient if would confine a reasonable person;
b. Omission: D has duty to facilitate movement, but intentionally refused to aid = confinement;
False Imprisonment - Elements 2/4
2. Confines/restraints P to;
a. keeping someone OUT or denying admission is not false imprisonment
False Imprisonment - Elements 3/4
3. a bounded area; and
False Imprisonment - Elements 4/4
4. P must know of the confinement or suffer a harm
Intentional Infliction of Emotional Distress - Elements 1/3
1. D engages in extreme and outrageous conduct; and
a. Conduct exceeds all bounds of decency tolerated in civilized society;
b. Mere insults generally not enough;
c. Plus factors;
i. Continuous, repetitive bad behavior
ii. D is common carrier or innkeeper
iii. P is a fragile class of person [children, elderly, pregnant, adults and sensitivities known to D]
Intentional Infliction of Emotional Distress - Elements 2/3
2. P suffers severe distress
Intentional Infliction of Emotional Distress - Elements 3/3
3. [NB: can be intentional or reckless act]
Intention Torts to Property: Trespass to Land - Elements 1/3
1. D enters the land intentionally (no awareness of crossing boundary line or defying property rights)
a. Epilepsy or accidental entry (eg, car accident) is not intentional entry
Intentional Torts to Property: Trespass to Land - Elements 2/3
2. physical invasion of
a. D enters land; D propels a tangible object onto land;
b. Non-physical penetrations are not trespass, but are nuisance
Intentional Torts to Property: Trespass to Land - Elements 3/3
3. P's real property
a. Includes air above and soil below for a reasonable distance
Intentional Torts to Property: Trespass to Chattels - Elements 1/3
1. D intentionally interferes with
a. Interference: damaging or theft
b. Relatively small interference is trespass.
Intentional Torts to Property: Trespass to Chattels - Elements 2/3
2. P's right of possession
Intentional Torts to Property: Trespass to Chattels - Elements 3/3
3. in personal property
Intentional Torts to Property: Trespass to Chattels - Mistake of ownership
1. no defense to trespass or conversion
Intentional Torts to Property: Trespass to Chattels - Recovery
1. actual damage to chattel or possessory right
Intentional Torts to Property: Conversion - Elements
1. D intentionally interferes with
a. significant harm is conversion
2. P's right of possession
3. in personal property
4. interference is so severe that it warrants requiring D to pay chattel's full value
Intentional Torts to Property: Conversion - Special Remedy available
1. can treat tort as a "sale" and recover item's full value, and not merely the cost of repair
Defense to Intentional Torts - Consent
i. Defense to ALL intentional torts
ii. Issues:
1. was consent valid?
a. Must have legal capacity to consent
2. did D stay within the bounds/scope of the consent?
a. If exceeded scope, then tort liability
Defense to Intentional Torts - Types of consent
1. Express
a. Exceptions: fraud or duress to obtain the consent invalidates the consent; mistake of P known and taken advantage of also invalidates
2. Implied
a. based on custom and usage (eg, body contact consented to in contact sports)
b. D's reasonable interp of P's objective conduct
Defenses to Intentional Torts - Self-defense, defense of 3rd persons, defense of property -
To establish this defense, D must show
1. acted with proper timing; and
a. ie, threat was in progress or imminent
2. reasonable belief that threat is genuine
a. Defense of Property: shopkeeper's privilege is exception to this, assuming action is reasonable [stopping all blacks, teens is not reasonable'
Self-defense, defense of 3rd persons, defense of property - Limitations on these protective privileges
1. strength of response must be appropriate to threat
2. deadly force never permitted to defense property
Defense to Intentional Torts: Necessity
i. Only a defense to PROPERTY torts
Defense to Intentional Torts: Necessary - Public Necessity
1. D invades P's personal/real property in an emergency to protect the community as a whole or a significant group of people
Defense to Intentional Torts - Necessary: Private Necessity
1. D interferes with P's property in an emergency to protect an interest of his own
2. Consequences:
a. D must pay for actual harm inflicted;
b. D is not liable for nominal or punitive damage;
c. As long as emergency persists, the P can not expel D from his land [ie, sanctuary
Dignitary and Economic Torts: Defamation - Elements 1/3
1. D makes a defamatory statement that is of or concerning P;
a. Defamatory: tends to adversely affect reputation --
i. Mere insults not defamatory
ii. Allegations of "fact" are paradigm of defamation
1. opinion: if listener would assume it is based on fact, then defamatory
b. P must be alive
Dignitary and Economic Torts: Defamation - Elements 2/3
2. that is published to a 3rd party
a. can be negligent publication
Dignitary and Economic Torts: Defamation - Elements 3/3
Damages 1/3
a. Libel cases (written or permanently memorialized):
i. P's don't have to prove damages to get to jury
Dignitary and Economic Torts: Defamation - Elements 3/3
Damages 2/3
b. Slander (spoken defamation)
i. Slander per se: same damage approach as libel
1. statement concerning business or profession
2. statement that P committed crime of moral turpitude
3. statement imputing unchastity to a woman
4. statement that P suffers from a loathsome disease (leprosy, venereal disease)
ii. All other slanders:
1. must prove damage
Dignitary and Economic Torts: Defamation - Elements 3/3
Damages 3/3
c. Damages mean
i. Economic harm
Dignitary and Economic Torts: Defamation - Defenses 1/3
1. Consent
Dignitary and Economic Torts: Defamation - Defenses 2/3
2. Truth
Dignitary and Economic Torts: Defamation - Defenses 3/3
3. Privilege
Dignitary and Economic Torts: Defamation - Defenses 3/3 - Privilege 1/2
1. Absolute: associated with status of D
i. communication between spouses
ii. officers of 3 branches of govt engaged in official duties
1. eg, anything said in courtroom (including by lawyers)
Dignitary and Economic Torts: Defamation - Defenses 3/3 - Privilege 2/2
b. Qualified: when/why statement is made
i. socially valuable statements: letters of rec; statements to police. D must show:
1. any error was made in good faith
2. material must be relevant to socially valuable purpose of speech
Dignitary and Economic Torts: First Amendment Issues 1/2
1. if the defamation involves a matter of public concern, then P must prove 2 additional elements:
a. falsity of the defamatory language; and
b. fault on the part of D
Dignitary and Economic Torts: 1st Amendment Issues 2/2
2. Level of Fault depends on status of P
a. Public official must prove actual malice, meaning
i. Knowledge that statement is false; or
ii. Reckless disregard as to whether it was false
b. Private person can show
i. actual malice, or negligence: and evidence of actual injury
c. Damages presumed where malice show
Invasion of Right to Privacy - Appropriation
1. Elements:
a. D's unauthorized use of P's name or picture
b. for a commercial purpose

2. Exception: newsworthiness
Invasion of Right to Privacy - Intrusion upon private affairs
1. Elements:
a. Invasion by the D of
b. P's solitude
c. In a way that would be objectionable to an average person
2. Cautions
a. P can only recover if he has a REP
b. Does NOT require trespass
Invasion of Right to Privacy: False Light - Elements
a. D makes a widespread dissemination;
i. This element distinguishes it from defamation
b. Of a major falsehood about P;
i. Need not be defamatory
c. That would be objectionable to an average person
Invasion of Right to Privacy: False Light - Damages
a. Unlike defamation, permits recovery for emotional damages
Invasion of Right to Privacy: NB
This is not an intentional tort
a. Negligence and inadvertence are actionable.
Invasion of Right to Privacy: Public disclosure of private facts - Elements
a. A widespread dissemination of;
b. Confidential information of P;
i. Financial, academic, medical
c. That would be objectionable to an average person.
Invasion of Right to Privacy: Public disclosure of private facts - Cautions
a. There is a newsworthiness exception here
b. Facts in question must be genuinely confidential
Invasion of Right to Privacy: Defense to Privacy Torts
1. consent is a defense to all
2. privilege (absolute and qualified) are defenses to false light and disclosure only
Inducing a Breach of Contract/Intl Interference with Business Relations
i. Existence of a valid contract.
ii. Defendant's knowledge of that contract.
iii. D's intentional interference w/K inducing breach or termination
iv. damages
Intentional Misrepresentation/Fraud
i. Misrepresentation of a material fact
ii. D's knowledge or belief the fact was false.
iii. Intent to induce P to act/refrain from acting in reliance on the misrep
iv. Actual reliance (ie, causation)
v. P's justifiable reliance on the statement
vi. damage
Negligence - Elements
i. Duty
ii. Breach
iii. Causation
iv. Damages
Duty 1/5
i. An obligation to take risk reducing precautions; to whom is it owed?
Duty 2/5
ii. Owe to foreseeable victims
1. therefore, no duty owed to unforeseeable victims and always lose on the bar exam
Duty 3/5
iii. Who is foreseeable?
1. person within the zone of danger (ie, if you are very far away, you can't recover)
a. minority view: everyone is foreseeable
2. the size of the zone depends on the activity in which D is engaged
a. Rescuer is foreseeable victim where D negligently put himself or a 3rd person in peril
Duty 4/5
iv. What is the Standard of Care?
1. give the amount of care that a reasonable prudent person would acting under similar circumstances
a. don't forget "similar circumstances" part
b. standard is objective: thus inflexible, can be harsh
i. applies to the retarded; the mentally ill
Standard of Care - Exceptions
a. If D has superior knowledge, that will be incorporated into the standard of care
i. Skills: Thus, held to higher standard of care (eg. reasonable prudent NASCAR driver)
ii. Fact Nugget: driver knows that certain area has bad visibility, so held to have this extra knowledge
b. Includes physical characteristics of D, if relevant
Special Standards of Care: Children as D
a. Under 4, no duty; incapable of negligence
b. 4 and over: owe care of hypothetical child of similar age, education, experience, and intelligence acting under similar circumstances (a subjective stnd - very generous, pro D)
c. Exception: Adult Activity
i. Held to normal reasonable person stnd (generally operating something with a motor)
Special Standards of Care: Professionals
a. Def: provide services to public, have special skill/training, and licensed by state [archit, enginer, health care]
b. Std: provide care of average (not "reasonable") member of their profession practicing in a similar community.
i. Average: compare to real world colleagues, not a hypothetical professional (ie, empirical std); ie, custom of the profession sets the std of care
1. thus, P, will need to put on EXPERT testimony
ii. Specialists: expected to use even higher care
c. Informed consent
i. If undisclosed risk was serious enough that a reasonable person in patient's position would have withheld consent, doctor has breached duty.
Owner/Occupier of Land: Determining Std:
1. How did entrant on land get hurt?
1. activities being conducted by land occupier or his agents; OR
2. accident caused by hazardous conditions on the land
Owner/Occupier of Land: Categorize the Entrant - Undiscovered trespasser
No permission to enter AND occupier has no awareness of entrant
a. Duty owed: NONE
Owner/Occupier of Land: Categorize the Entrant - Discovered trespasser
status at time of accident; includes "anticipated" trespassers
a. Activity duty: reasonable care
b. Condition of duty: protect only from condition meeting a 4 part test:
i. Artificial condition
ii. Highly dangerous
iii. Concealed from naked eye
iv. Occupier has advance knowledge
Owner/Occupier of Land: Categorize the Entrant - Licensee
enter with permission onto land not generally open to everyone (eg, social guest)
a. Activity duty: reasonable care
b. Condition duty: warn & protect from condition meeting 2 part test:
i. Concealed/hidden
ii. Occupier has advance knowledge
Owner/Occupier of Land: Categorize the Entrant - Invitee
enter land open to large portion or all of the public
a. Activity duty: reasonable person
b. Condition duty: duty if meet 2 part test:
i. Concealed/hidden
ii. Occupier either has advance knowledge OR could have discovered it through a reasonable inspection
c. NB: if person wanders into an off limits area, then duty only to limit willful or wanton misconduct
Owner/Occupier of Land: Categorize the Entrant - Firefighters & Cops
considered licensees, but never recover for injuries that are inherent risk of their job
Owner/Occupier of Land: Categorize the Entrant - Child Trespassers
entitled to reasonable care, regardless of facts
1. the more likely it is that kids will trespass, the higher degree of care (eg, attractive nuisance)
Owner/Occupier of Land: Categorize the Entrant - If duty owed for a condition to anyone, occupier can satisfy duty in 2 ways:
1. eliminate the condition; or
2. give a warning
Statutory Standards of Care 1/4
1. typically, a criminal, quasi-criminal, or regulatory statute not providing for express tort liability
a. negligence per se: breach of statute creates conclusive presumption of duty and breach of duty
Statutory Standards of Care 2/4
2. So, when do we borrow a statutory std? Two-part "class of person, class of risk" test:
a. P is member of class of persons that the statute seeks to protect: AND
b. Harm that occurred is what statute sought to prevent
Statutory Standards of Care 3/4
3. If cannot borrow the statute, then go ahead under reasonable person standard
Statutory Standards of Care 4/4 - Exceptions
Exceptions to class of person, class of risk test:
a. If compliance would be more dangerous than violation, we don't use as std of care, even if 2 part test satisfied.
b. If compliance was impossible under circumstances, don't borrow the statute.
Affirmative Duty to Act
1. General Rule: No duty to act affirmatively.
i. Pre-existing relationship (eg, familial, common carrier/innkeeper, business invitees)
ii. D caused peril
iii NB: duty to rescue is only what would be reasonable under the circumstances
iv. If error during rescue, then liability for negligence
Negligent Infliction of Emotional Distress: Elements 1/3
a. No direct physical trauma
Negligent Infliction of Emotional Distress: Elements 2/3
b. Negligence occurs under one of the other standards above
Negligent Infliction of Emotional Distress: Elements 3/3
c. And
i. P was in "zone of physical danger" (ie, near miss or close call fact pattern") and
1. Also, recovery in Bystander situation
a. Witness to injury of a close family member (50% states)
ii. Subsequent physical manifestations of the distress (ie, an injury requirement)
Negligent Infliction of Emotional Distress - Also, recovery in Bystander situation
a. Witness to injury of a close family member (50% of states)
Breach 1/3
i. Identify the specific wrongful conduct of P and explain why it is wrongful
Breach 2/3
ii. If duty standard is specific (eg, custom, usage, statute), breach is easy to explain. If duty standard is general, then more difficult (ie, under RPP)
1. eg: D was unreasonable when he <facts>. This is unreasonable because reasonable drivers in these circumstances <standard>.
Breach 3/3
iii. Res Ipsa Loquitur: when lack of info about what D did wrong
1. P must show:
a. Accident which occurred would not normally occur in absence of negligence; and
b. This type of accident normally occurs because of negligence of someone in D's position
2. Thus, can get to jury without direct evidence of breach
a. No directed verdict available to D (see CMR p. 28)
Causation: Actual Cause/Factual Causation
D's breach <state facts> was a cause in fact of P's injuries because "but for" that action, P would not have been hurt. This is b/c
a. D's defense: even if I had been prudent, you would have still been hurt. Therefore, but for test fails.
Causation: Multiple Defendants Problem - Mingled Causation
we use the substantial factor test:
i. Did each D contribute to injury in a significant or substantial way?
Causation: Multiple Defendants Problem - Unascertainable Cause
Normally burden on P to show each factor of case, but burden shifts to Ds to show they were not the cause of the injury [Summers v. Tice]
Causation: Proximate Cause/Legal Cause 1/2
This is a "fairness" doctrine
Proximate Cause/Legal Cause 2/2 - Two ways to test
a. Direct cause questions
b. Indirect cause questions
Proximate Cause - Direct cause
D breaches and P is injured immediately
i. If resulting harm unforeseeable, no liability
Proximate Cause - Indirect Cause questions
D breaches, and no/minor injury occurs, and intervening forces happen leading to greater injury
Proximate Cause - Indirect Cause: Liability is fair where intervening act is foreseeable
The well settled rules:
1. intervening medical negligence
2. intervening negligent rescue
3. intervening protection/reaction forces
4. subsequent disease or accident
ii. if not in 4 above, ask "what is it about this conduct that makes me call it a breach?"
1. then, ignore everything else, and look at P at end of story.
2. if it seems fair to punish D, then impose liability
Damages - Eggshell Skull
if all other elements satisfied, D must pay for all damages suffered, even if surprisingly great in scope
ii. "Take P as you find him." <- applies to EVERY tort (personal or property damage), not just negligence
Defenses to Negligence: Traditional contributory negligence (rare)
1. any negligence on P's part completely barred recovery
a. unless "last clear chance applicable
Defenses to Negligence: Implied assumption of the risk
1. P must have known of the risk
2. P voluntarily went ahead in face of the risk
a. common carrier or public utility invovled
b. statute enacted to protect P's class
c. Fraud, force, emergency
4. NOT a defense to intentional torts
Defenses to Negligence: Comparative Fault (modern doctrine)
1. D must show P is guilty of fault
a. ie, P failed to use relevant degree of care for his own safety (usually RPP, but may be statute (eg, jay-walking)
2. Then, jury instructed to comparative fault of the parties
3. Then, P's recovery is reduced based on percentages
4. Types of Comparative Fault:
a. Pure comparative fault: go strictly by jury number, and P will always recover something [unless no D has greater negligence % than P]
b. Partial/modified comparative fault: P's fault of less than 50% results in reduction of recovery; P's fault over 50% bars recovery
Strict Liability: Injuries caused by animals
i. Domesticated animals
1. General Rule: no strict liability for injuries caused by animals
2. Exception:
a. strictly liable if knowledge that pet has "vicious propensities" (usually a previous bite)
ii. Trespassing Livestock
1. strict liability
iii. Wild Animals
1. strict liability
Strict Liability: Ultrahazardous Activities - Test
1, activity cannot be made safe
2. poses a risk of severe harm
3. activity is uncommon in the area where it is being conducted
ii. Eg, blasting/explosives, chemical/biological agents, nuclear materials
Strict Liability: Products Liability - Causes of action
Injury by product, leads to many causes of action: negligence, warranty in contract, battery?, fraud?, etc.
Products Liability: Elements - 1/4
1. D was a merchant (deals in goods of the kind);
a. Casual sellers NOT merchants
b. Service providers NOT merchants of goods incidental to services
c. Commercial lessors (eg, rental car companies) ARE considered merchants
d. All merchants in chain of distribution subject to strict liability
Products Liability: Elements 2/4
P shows that the product is defective;
a. Manufacturing defect; or
i. Product in question differs from all others that came off assembly line that makes it more dangerous than consumer would expect
b. Design defect
i. There is hypo alternative design that meets the following tests:
1. safer than current version;
2. economical; and
3. practical (product utility not impaired)
ii. If test met, current version is defective and vendor must pay damages
iii. Product info is considered part of design
1. warnings: failure to warn = liability
a. prominent, calculated to come to attention of user
b. easy to understand
2. instructions
3. THEREFORE, if product can't be physically made safer, we can give better warnings or instructions that will make it safer
Products Liability: Elements 3/4
P demonstrates that defect existed when it left D's hands
a. Never an issue with design defects
b. Manufacturing defects: could defect have been due to rough treatment by someone other than the person being sued?
1. RULE: P gets presumption that defect existed in D's hands, if product traveled in ordinary channels of distribution (ie, BOP on P)
1. eg, buy second hand product at garage sale does NOT permit the presumpton
Products Liability: Elements 4/4
P must be foreseeable user of product making a foreseeable use
a. Not limited to intended users of the product
Product Liability - Defenses
i. comparative fault
ii. assumption of the risk
iii. contributory negligence, IF P knew of risk and didn't guard against it.
Nuisance - Private nuisance
1. Interference with P's ability
2. To use and enjoy his land
3. To an unreasonable degree
ii. Incompatible land use or spiteful neighbors
iii. RULE: D is liable if unreasonable degree of interference
1. Balancing test:
a. D's right to use land
b. P's right to be free from annoyance
Nuisance - Public Nuisance
1. act that unreasonably interferes with
2. the health, safety, or property rights of
3. the community

private party can only recover if directly affected by nuisance. Normally resolved by nuisance/abatement action brought by govt
Vicarious Liability
Predicated on relationship between active tortfeasor and passive party
1. employer-employee
a. course and scope issue: generally, intentional torts are outside scope of employment
i. BUT, if job description involves use of force, probably within the scope
ii. OR act by employee designed to serve employer's interests
b. Minor frolic and detour does not eliminate VL
2. Independent K-hiring party
a. no vicarious liability
i. EXCEPT: land occupier liable if IK hurts invitees on the land
ii. IK engaged in inherently dangerous activities; or
iii. Duty of care is nondelegable due to public policy reasons
3. auto owner - auto driver
a. No vicarious liability
i. EXCEPT: if doing errand for owner, then driver is agent for the owner
4. parent-child
a. No vicarious liability
Reconciling Rights of co-defendants
i. Comparative contribution
1. each co-D is assigned a % by jury and out of pocket D recover based on these percentages
ii. Indemnification
1. vicarious liable party can get all $ back from active tortfeasor
2. non-manufacturer held strictly liable can get all $ back from the manufacturer
3. Where joint tortfeasors, if one negligent and one intentional, the negligent torfeasor can get all $ back from intentional tortfeasor
Loss of consortium
i. Victim of ANY tort must be married
ii. Uninjured spouse has a separate cause of action for loss of consortium
iii. Allows recovery for three types of damages:
1. loss of services (fix things, doing dishes)
2. loss of society (companionship, friendship)
3. loss of sexual activity