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98 Cards in this Set

  • Front
  • Back
What are the two types of intent?
1. Specific Intent

2. General Intent
What is specific intent?
the defendant acts desiring his conduct cause the resulting consequences
What is general intent?
the defendant acts knowing with a substantial certainty that his conduct will cause the resulting consequences
What is transferred intent?
the defendant intends tortious conduct against one party but the resulting harm is caused upon another party
Are Minors and incompetent liable for intentionall torts?
What is the intentional tort of battery?
defendant is liable for battery if he acts intending to cause a harmful or offensive contact with the person of the other or directly or indirectly results.

Note: a battery offensively touches anything that is close to or connected to the plaintiff
What is the intentional tort of assault?
defendant is liable for assault if he acts intending to cause a harmful or offensive contact with the person of another or a 3rd person, or an imminent apprehension of such contact and the other person is thereby put in such imminent apprehension

Note: future threats lack imminency. Words alone are insufficient, unless accompanied by some overt act
What is the NC distinction for assault?
repeated threats or indecent proposals may be sufficient to constitute assault if:

they are directed at a female and cause to leave a place she had a right to be or refrain from privileged course of conduct.
Is a person liable for battery, if he is mistaken?
Yes, where an individual comes to the defense of another, even in circumstances where a reasonable person would conclude that the other has a right to defend himself, the intervenor bears the risk that he is mistaken.
What are the elements of intentional infliction of emotional distress?
1. extreme and outrageous conduct

2. intended to cause distress or reckless disregard of whether such distress might occur,

3. causes the plaintiff to suffer severe mental distress.
When a person enters on another's land for private necessity, what is he liable for?
A person may invade the property rights of another where it is reasonably necessary to avoid a substantially greater harm to himself. Such a person, is liable for damage caused to that property.
Do you need damages for false imprisonment?
No, the plaintiff only needs to be aware of the imprisonment.
Does the reasonable person standard apply to mentally incompetents who commit intentional tort?
No, the reasonable person standard is applicable is applicable to mentally ill adults in a negligence action.
What are the elements of the attractive nuisance doctrine?
1. the land occupier must know or have reason to know that children are likely to trespass

2. the land occupier must know or have reason to know that there are conditions on his property which pose serious reisk of injury to children

3. the children because of their immaturity must be unable to recognize or appreciate the risk

4. the burden to eliminate the risk must be small as compared to the risk to the children.
If a person places himself in peril, is he liable for a rescuer's injuries?
Yes, when a person places himself in peril he is deemed to owe a duty of care to anyone who may attempt to rescue him.
What is the fireman's rule?
a land occupier is not liable for injury to a fireman or policeman caused by the hazard which brought the fireman or policeman to the land occupier's premises, whether the hazard was created by the owner's negligence, an accident or a 3rd party.
What is needed to establish res ispa loquitur
1. this type of incident normally does not occur unless someone has been negligent

2. more likely than not it is this defendant who has been negligent

3. the plaintiff has not caused the incident
What is the standard for medical malpractice?
the critical issue in medical malpractice action is whether the doctro has breached the standard of care to which doctors are held. Doctros are expected to have the knowledge, skill, and judgment ordinarily possessed and employed by members of the profession in good standing.
How does a survival statute work?
Modernly, in most jurisdictions, a decedent's cause of action for a personal injury survives his death from any cause under a Survival Statute. His personal representative can pursue the action and the proceeds of the suit become part of the decedent's estate.
What are the elements for malicious prosecution in NC?
A. Defendenant instituted or caused to be instituted against plaintiff
1. criminal proceedings or

2. civil proceedings involving arrest of the preson, seizure of property, or some other special damage resulting from the action such as would not necessarily result in all similar cases and amounting to a substantial interference with plaintiff's property or person; or

3. administrative proceedings, adjuddiatory in nature and which may adversely affect a legally protected interest or plaintiff.

B. With Malice, either express, actual or implied

C. Without probable cause and

D. the proceedings terminated in plaintiff's favor
What are the elements for malicious interference of contract in NC?
1. valid contract between the plaintiff and 3rd person which confers upon the plaintiff a contractual right against a third person

2. defendant knows of the contract

3. the defendant intentionally induces the 3rd person not to perform the contract with the plaintiff

4. and in doing so, acts without justification

5. resulting in actual damage to the plaintiff
What are the elements of fraud and deceit in NC?
1. false representation or concealment of a material fact

2. reasonably calculated

3. made with intent to deceive

4. which does in fact deceive

5. resulting in damage to the injured party
What are the elements for nuisance in NC?
defendant's intentional non-trespasory invasion of the plaintiff's interest in the use and enjoyment of land, unreasonable under circumstances

2. resulting in substantial injury or damage to the plaintiff's interest in land

3. defendant's unintentional non-trespassory invasion of the plaintiff's interest in the use and enjoyment which is negligent, reckless or ultra hazardous

4. resulting in substantial injury or damage to the plaintiff's interest in land
What is a private nuisance in NC?
1. any substantial non-trespassory invasiion of another's interest in the private use and enjoyment

Note: reasonablness is the standard was the defendant's action reasonable

Note: plaintiff must suffer substantial damage "more than a slight incovenience or petty annoyance."
What is a public nuisance?
A public nuisance is an unreasonable interference with a right common to the general public.
What is NC Products Liability Statute?
Under 99B, a product liability actions is
1. an action brought for or on account of personal injury death or property damage

2. caused by or resulting from the manufacture, construction, design, formulation

3. of any product

Note: no manufacturer of a product shall be held liable in any product liability action for the inadequate design unless claimant proves at taht the time of its manufacture, the manufacturer acted unreasonably in designing or formulating the product that this conduct was proximate cause of the harm for which damages are sought, and also proves: (1) unreasonably failed to adopt safer methods (2) foreseeable injurty, (3) awareness
What is North Carolina rule for imputed contributory negligence?
Negligence of a driver is imputed to the owner who is a passenger at the time of the accident.
What is NC's rule for negligent entrustment?
1. ownership of the automobile in the defendant

2. the incompetency or habitual carelessness of the driver

3. the owner's timely knowledge of such incompetency, carelessness or recklessness and

4. injury to the plaintiff as a proximate result of the negligence, incompetence or recklessness of the driver
What are the elements for NC's family purpose doctrine?
1. at the time of the collision the operator was a member of the defendant's family or household and was living at home with the defendant

2. the automobile involved in the collision was provided and maintained for the general use, pleasure of the household and

3. the automobile was being used with the actual or implied consent, knowledge and approval of the defendant.
What will invoke strict liability?
1 inherently dangerous activity

2. wild animals
What is the general rule for strict liability?
one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm there caused to the consumer if:
1. the seller is engaged
What is the general rule for independent contractor liability?
General Rule--an employer of an independent contractor is not (vicariously) liable for physical harm caused to another by act or omission of the contract or his servants.
When will an employer of independent contractor be liable?
1. negligence in selecting

2. non-delegable duties

3. inherently dangerous
What is modified comparative negligence?
a negligent plaintiff to obtain recovery, provided plaintiff's negligence is not equal to nor greater than that of defendant otherwise no recovery is permitted.
What is pure comparative negligence?
permit a negligent plaintiff to recover even where his negligence exceeds that of defendant
What is respondeat superior?
an employer is liable for tortious acts of his or her employer employees which are committed within scope of employment and which cause injuries or property damage to a 3rd person

Note: Detour is a permissible or slight deviations from an employee's scope of employment

Note: froclic an authorized and substantial deviation.
What are the elements for Last Clear Chance Doctrine in NC?
Generally plaintiff can recover if defendant had the last clear chance to avoid the accident when
1. plaintiff negligently put himself in peril

2. the defendant saw or reasonably should seen plaintiff in peril

3. defendant had time and means to avoid injuring the plaintiff

4. the defendant failed to use reasonably available means to avoid injuring plaintiff

5. the defendant caused the plaintiff's injuries.
What is the innattentive plaintiff?
a plaintiff's who by the exercise of reasonable viligance, could discover the danger created by the defendant's negligence in time to avoid the harm to him, can recover if, but only if hte defendant
1. knows of the plaintiff's situation

2. realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm and

3. thereafter is negligence in failing to utilize with reasonable care and competence is then existing to avoid the harm
What is the duty of a lessor?
General Rule--a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee or sublessee for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession.

Note: a lessor has a duty to warn of known existing defects that are not likely to be discovered by the lessee
What is the general rule for trespassers?
a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care
What is the general rule for known trespassers?
A possessor of land generally owes a duty of reasonable care to warn trespassers who are known, discovered and anticipated.
What is the general rule for artificial conditions highly dangerous to known trespassers?
General Rule--a possessor of land who maintains on the land an artificial condition which involves risk or death or serious bodily harm to persons coming in contact will liable for failure to exercise reasonable care to warm if

1. possessor knows or has reason to know of their presence in dangerous proximity to the condition and

2. the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.
What is the duty owed to a licensee?
1. reasonably warn of known defects or dangers
What is a duty owed to invitee?
1. duty to inspect the premises

2. remedy any unsafe or dangerous condition
What is the rule of seven in North Carolina for child's duty?
Under 7 incapable of negligence

7-13 presumption of incapable of negligence

14 and older presumed capable
What is the general rule for a child's duty?
the standard of conduct to which he must conform to avoid be negligent is that of a reasonable person of like age, and experience under like circumstances.
What is the general rule for chidlren engaging in adult activity?
children engaged in adult activity are required to conform to an adult standard of care.
When does a person have a duty to aid?
1. a person creates the dangerous situtation

2. when the person is harmed by the actor's conduct

3. when one begins to render aid

4. special relationship
What is libel per se in NC?
1. publication by the defendant

2. by writing, printing, signs or pictures

3. which, when considered alone without innuendo

4. charges that the plaintiff has committed an infamous crime

5. chareges the plaintiff with having an infectious disease

impeach the plaintiff in that person's trade or profession or

otherwise tends to subjct the plaintiff to ridicule, comtempt or disgrace

publciation was false
What is slander per se in NC?
(a) publication by the defendant

(b) to someone other than the plaintiff

(c) of a spoken statement

(d) which when considered alone without innuendo, falls into of three categories
(i) accusations that the plaintiff committed crime or offesne involving moral turpitude

(ii) defamatory statement about a person with respect to his trade, business or profession

(iii) imputations that the plaintiff has a loathsome disease

(e) the statement was false
In NC was is the major difference between per se and per quod?
In libel per quod --it is not defamatory on its face but becomes so when considered with innuendo, colloquium and explanatory circumstances

Slander per quod--when considred only in consequence of extrinsic, explanatory facts showing their injurious effect
What is the rule for contribution in NC?
The Uniform Contribution Among Tortfeasor Act does not permit one of multiple tortfeasors to avoid liability for contribution to other joint tortfeasors by a settlement after judgment for less than his pro rata share of the judgment.
What is the North Carolina distinction for idemnity?
Active/Passive Negligence Doctrine a joint tort tortfeasor who is passively negligent may recover indemnification from a joint tortfeasor who is actively negligent.
What is the general rule for contribution?
when joint tortfeasors have together caused a single plaintiff a single harm, there is a right of contribution among them even though has not been recovered against all or any of them
What is a superseding cause?
is an unforeseeable intervening cause that breaks chain of causation between the initial wrongful actand the ultimate injury, relieves the original tortfeasor

Examples: acts of God, Criminal Acts of 3rd Persons, intentional torts of 3rd persons, extraordinary forms of negligent conduct
What is an Intervening Cause?
force is one which actively operates in producing harm to another after the actor's liability (defendant will still be liable)
What is the collateral source rule?
payments to or benefits conferred on the injured party plaintiff from other sources are not credited against the tortfeasor's liability

Exception: payments made by the tortfeasor
What are the two parts of causation?
1. cause in fact "but for test"

2. Proximate cause (legal cause)
What is the egg shell rule?
a defendant is liable for the full consequences of plaintiff's injury even though due to plaintiff's peculiar susceptibility to harm.
What is negligence per se in violation of a criminal statute?
1. plaintiff must prove that he was a member of the class of persons the statute was designed to protect

2. that he suffered the type of harm the statute was designed to prevent.
What is Immunity in NC?
1. Governemental Tort Immunity
(a) State Governments--immunity is waived up to maximum of 500k or the extent of insurance coverage for a claim arising out of negligence of state employees acting within their scope of employment

2. Municipalities who purchase insurance waive immunity

3. Public officials immunity depends whether the acts are discretionary or ministerial
Note: Public officers are immune from liability for discretionary acts unless their conduct was corrupt or malicious.

Notes: ministerial acts are procedural steps that must be followed
What is Public necessity?
an actor may enter onto the land to avert an imminent public disaster

Note: no liability for either trespass or damage to property or chattel.
What is private necessity?
a person is not liable for trespass when enters upon another land to save his life or property.

Note: will be liable for damage to property or chattel
What is the rule for defense of property?
an actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another's intrusion upon the actor's land if:
(1) intrusion is not privileged

(2) actor reasonably believes that the intrusion can be prevented or termianted only by the force used.
What is the rule for defense of others?
actor is privileged to defend a 3rd person from a harmful or offensive contact under the same conditions and by same means as those under and by which he is privleged to defend himself in the actor correctly or reasonably believes the 3rd person is privlege and intervention is necessary for protection of the 3rd person
What are the elements of conversion?
1. intentional exercise of dominion or

2. control over a chattel

3. which seriously interfers with right of another to control it
What are the elements of trespass to chattel?
1. dispossessing another of chattel or

2. using or intermeddling with a chattel in the possession of another

Note: the actual amount caused by the tortious conduct or (2) the loss of use
What is the rule for NC Neglient Intentional Infliction Emotional Distress?
traditional negligence rule apply in claims for negligent infliction of emotional distress traditonal negligence rules are ued to evaluate the defendant's conduct
Forseeable Plaintiff
(1) plaintiff must prove he suffered such distress as a proximate and foreseeable result of the defendant's negligence

2. Factors
(i) plaintiff's proximity to defendant act

(ii) relationship between plaintiff and the injured person and

(iii) whether plaintiff personaly observed
What are the elements of trespass to land?
1. elements land in possession of the other, or causes a thing or a 3rd person to so; or

2. remains on the land or

3. fails to remove from land a thing which he is under a duty to remove
What are the elements for false imprisonment?
1. defendant acts intending to confine a person within certain fixed boundaries and

2. his act directly or indirectly results in such a confinement of the other and

3. the other is conscious of the confinement or is harmed by it.
What is the exception for awareness under false imprisonment?
defendant may be liable for false imprisonment if he confines a child or mentally incompetent person
What is the rule for unlawful arrest and false imprisonment?
General Rule false arrest may constitute false imprisonment when the resulting confinement is without proper legal authority.
What is the shopkeeper's privilege?
General Rule--no action for false imprisonment will lie against a shopkeeper who detains a suspected shoplifter if:

1. there are reasonable grounds to believe that a theft has occurred

2. the detention is conducted in a reasonable manner and the detention is limited to a reasonable period o time to make an investiation
What are the elements of Intentional Infliction of Emotional Distress?
1. defendant by extreme and outrageous conduct

2. intentionally or recklessly

3. causes severe emotional distress to another
When will a 3rd person have a claim for intentional infliction of emotional distress?
1. a member of the family who is present and the defendant is aware

2. to a non-family member who results in bodily harm
How are damages proven in NC for intentional infliction of emotional distress?
Actual damages--sever emotional distress is present when there is any emotional or mental disorder (psychosis, chronic depression)
What is the general rule for negligent intentional infliction of emotional distress?
defendant causes only mental disturbance, without accompanying physical injury, illnes consequences,
What is the rule for 3rd party recovery for NIED?
where the mental disturbance and its consequences are not caused by any fear of the plaintiff's own safety, but by distress at witnessing some peril or harm to another person is generally denied
What is the exception to the general rule for NIED, for 3rd party recovery?
Zone of danger, if the 3rd party is personally within the zone of danger and is threatened with injury by the defendant's negligence, the plaintiff may recover for the bodily harm and acompanying distress that results.
What are the elements of trespass to land?
1. enters land in possession of the other,or causes a thing or a 3rd person or

2. remains on the land or

3. fails to remove from the land a thing which he is under a duty to reove.
What are the defenses to intentional torts?
1. Privilege

2. Mistake

3. Consent

4. Self-Defense

5. Defense of others

6. Defense of property

7. Necessity
What is the rule from Summers v. Tice?
where an injury is caused by the negligence of two or more persons and the plaintiff cannot determine which one caused the harm the burden of proof is shifted to each defendant.
What is the rule for concurrent tortfeasors?
if the tortious conduct of two defendants concurs and both are causes in fact of plaintiff's injury, each is jointly and severally liable for all of plaintiff's damages.
What are intervening causes which will not cut off a defendant's liability?
1. negligence rescuers

2. subsequent medical malpractice (not recognized in NC)

3. subsequent disease

4. efforts to protect person or property

5. subsequent accident
What is a concerted tortious action?
where another person not the defendant harms a victim, the defendant is subject to liability if the defendant

(i) does a tortious act in concert with the other person or pursuant

(ii) knows tha the other person's conduct constitutes a breach of duty and gives substantial assitance or encouragement to the other person to breach the duty anywar or

(iii) gives subtantial assitance to other person in accomplishing a tortious result and his own conduct, separately considered, constitues a breach of duty to the 3rd person
What is the general rule for private nuisance?
is a thing or activity which substantially and unreasonably interferes with plaintiff's use and enjoyment of the land.
What are the torts encompassed with the Invasion of Right to Privacy?
1. intrusion upon a seculsion

2. appropriation of name or likeness

3. publicity given to private life

4. publicity placing person in false light
What are the elements for intrusion upon seclusion?
1. intentionally intrudes, physically otherwise

2. if the intrusion would be highly offensive to a reasonable person
What is the general rule for apropriation of name or likeness?
one who appropriates to his own use or benefit name or likeness of another is subject to liability
What are the elements for publicity given to a private life?
1. would be highly offensive to a reasonable person and

2. is not of legitimate concern to the public
What are the elements of placing person in false light?
1. would be highly offensive to a reasonable person

2. there is publicity
which invasion of privacy tort does NC recognize?
1. Status of intrusion upon seclusion action unclear NC has not yet recognized the tort

2. appropriation of Plaintiff's Name or Likeness
What are the defenses for defamation?
i. true statements

ii.statements in the course of judicial proceedings

iii. statements in the course of legislative proceedings
What is defamation for a private person?
1.knows that the statement is false that it defames the other and

2.acts in reckless disregard of these matters, or

3. acts negligently in failing to ascertain them
What is the general rule for defamation of a public official?
General rule—one who publishes a false and defamatory communication concerning a public figure or public official (relating to his official conduct) is subject to liability if he has knowledge that the statement was false or acts in reckless disregard as to its truth or falsity
What is the rule for seatbelt in terms of contributory negligence?
The failure to fasten one's seat belt cannot be held to be a breach of the duty to minimize damages. The duty to minimize damages arises only after the negligent act of defendant. A plaintiff's failure to fasten his seat belt necessarily occurs before defendant's allegedly negligent act and therefore is not consistent with any burden on plaintiff to minimize damages.
What is the general rule for parent's liability of children?
North Carolina is in full accord with the common-law rule that the mere relation of parent and child imposes on the parent no liability for the torts of the child. The parent is not liable merely because the child lives at home with him and is under his care and control.
What is the potential liability of a pratical joke?
Where a person perpetrates a practical joke on another with the intention of subjecting the victim to fright, and the circumstances are such that injurious consequences are reasonably foreseeable to the victim in his natural attempt to flee, the person perpetrating the joke may be held liable for such injuries notwithstanding that injury was not intended and notwithstanding the absence of hostility