Torts Nc Bar Exam

Front 1

What are the two types of intent?

Back 1

1. Specific Intent

2. General Intent

Front 2

What is specific intent?

Back 2

the defendant acts desiring his conduct cause the resulting consequences

Front 3

What is general intent?

Back 3

the defendant acts knowing with a substantial certainty that his conduct will cause the resulting consequences

Front 4

What is transferred intent?

Back 4

the defendant intends tortious conduct against one party but the resulting harm is caused upon another party

Front 5

Are Minors and incompetent liable for intentionall torts?

Back 5

yes

Front 6

What is the intentional tort of battery?

Back 6

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

Front 7

What is the intentional tort of assault?

Back 7

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

Front 8

What is the NC distinction for assault?

Back 8

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.

Front 9

Is a person liable for battery, if he is mistaken?

Back 9

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.

Front 10

What are the elements of intentional infliction of emotional distress?

Back 10

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.

Front 11

When a person enters on another's land for private necessity, what is he liable for?

Back 11

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.

Front 12

Do you need damages for false imprisonment?

Back 12

No, the plaintiff only needs to be aware of the imprisonment.

Front 13

Does the reasonable person standard apply to mentally incompetents who commit intentional tort?

Back 13

No, the reasonable person standard is applicable is applicable to mentally ill adults in a negligence action.

Front 14

What are the elements of the attractive nuisance doctrine?

Back 14

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.

Front 15

If a person places himself in peril, is he liable for a rescuer's injuries?

Back 15

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.

Front 16

What is the fireman's rule?

Back 16

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.

Front 17

What is needed to establish res ispa loquitur

Back 17

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

Front 18

What is the standard for medical malpractice?

Back 18

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.

Front 19

How does a survival statute work?

Back 19

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.

Front 20

What are the elements for malicious prosecution in NC?

Back 20

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

Front 21

What are the elements for malicious interference of contract in NC?

Back 21

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

Front 22

What are the elements of fraud and deceit in NC?

Back 22

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

Front 23

What are the elements for nuisance in NC?

Back 23

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

Front 24

What is a private nuisance in NC?

Back 24

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."

Front 25

What is a public nuisance?

Back 25

A public nuisance is an unreasonable interference with a right common to the general public.

Front 26

What is NC Products Liability Statute?

Back 26

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

Front 27

What is North Carolina rule for imputed contributory negligence?

Back 27

Negligence of a driver is imputed to the owner who is a passenger at the time of the accident.

Front 28

What is NC's rule for negligent entrustment?

Back 28

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

Front 29

What are the elements for NC's family purpose doctrine?

Back 29

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.

Front 30

What will invoke strict liability?

Back 30

1 inherently dangerous activity

2. wild animals

Front 31

What is the general rule for strict liability?

Back 31

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

Front 32

What is the general rule for independent contractor liability?

Back 32

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.

Front 33

When will an employer of independent contractor be liable?

Back 33

1. negligence in selecting

2. non-delegable duties

3. inherently dangerous

Front 34

What is modified comparative negligence?

Back 34

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.

Front 35

What is pure comparative negligence?

Back 35

permit a negligent plaintiff to recover even where his negligence exceeds that of defendant

Front 36

What is respondeat superior?

Back 36

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.

Front 37

What are the elements for Last Clear Chance Doctrine in NC?

Back 37

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.

Front 38

What is the innattentive plaintiff?

Back 38

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

Front 39

What is the duty of a lessor?

Back 39

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

Front 40

What is the general rule for trespassers?

Back 40

a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care

Front 41

What is the general rule for known trespassers?

Back 41

A possessor of land generally owes a duty of reasonable care to warn trespassers who are known, discovered and anticipated.

Front 42

What is the general rule for artificial conditions highly dangerous to known trespassers?

Back 42

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.

Front 43

What is the duty owed to a licensee?

Back 43

1. reasonably warn of known defects or dangers

Front 44

What is a duty owed to invitee?

Back 44

1. duty to inspect the premises

2. remedy any unsafe or dangerous condition

Front 45

What is the rule of seven in North Carolina for child's duty?

Back 45

Under 7 incapable of negligence

7-13 presumption of incapable of negligence

14 and older presumed capable

Front 46

What is the general rule for a child's duty?

Back 46

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.

Front 47

What is the general rule for chidlren engaging in adult activity?

Back 47

children engaged in adult activity are required to conform to an adult standard of care.

Front 48

When does a person have a duty to aid?

Back 48

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

Front 49

What is libel per se in NC?

Back 49

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

Front 50

What is slander per se in NC?

Back 50

(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

Front 51

In NC was is the major difference between per se and per quod?

Back 51

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

Front 52

What is the rule for contribution in NC?

Back 52

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.

Front 53

What is the North Carolina distinction for idemnity?

Back 53

Active/Passive Negligence Doctrine a joint tort tortfeasor who is passively negligent may recover indemnification from a joint tortfeasor who is actively negligent.

Front 54

What is the general rule for contribution?

Back 54

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

Front 55

What is a superseding cause?

Back 55

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

Front 56

What is an Intervening Cause?

Back 56

force is one which actively operates in producing harm to another after the actor's liability (defendant will still be liable)

Front 57

What is the collateral source rule?

Back 57

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

Front 58

What are the two parts of causation?

Back 58

1. cause in fact "but for test"

2. Proximate cause (legal cause)

Front 59

What is the egg shell rule?

Back 59

a defendant is liable for the full consequences of plaintiff's injury even though due to plaintiff's peculiar susceptibility to harm.

Front 60

What is negligence per se in violation of a criminal statute?

Back 60

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.

Front 61

What is Immunity in NC?

Back 61

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

Front 62

What is Public necessity?

Back 62

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.

Front 63

What is private necessity?

Back 63

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

Front 64

What is the rule for defense of property?

Back 64

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.

Front 65

What is the rule for defense of others?

Back 65

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

Front 66

What are the elements of conversion?

Back 66

1. intentional exercise of dominion or

2. control over a chattel

3. which seriously interfers with right of another to control it

Front 67

What are the elements of trespass to chattel?

Back 67

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

Front 68

What is the rule for NC Neglient Intentional Infliction Emotional Distress?

Back 68

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

Front 69

What are the elements of trespass to land?

Back 69

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

Front 70

What are the elements for false imprisonment?

Back 70

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.

Front 71

What is the exception for awareness under false imprisonment?

Back 71

defendant may be liable for false imprisonment if he confines a child or mentally incompetent person

Front 72

What is the rule for unlawful arrest and false imprisonment?

Back 72

General Rule false arrest may constitute false imprisonment when the resulting confinement is without proper legal authority.

Front 73

What is the shopkeeper's privilege?

Back 73

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

Front 74

What are the elements of Intentional Infliction of Emotional Distress?

Back 74

1. defendant by extreme and outrageous conduct

2. intentionally or recklessly

3. causes severe emotional distress to another

Front 75

When will a 3rd person have a claim for intentional infliction of emotional distress?

Back 75

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

Front 76

How are damages proven in NC for intentional infliction of emotional distress?

Back 76

Actual damages--sever emotional distress is present when there is any emotional or mental disorder (psychosis, chronic depression)

Front 77

What is the general rule for negligent intentional infliction of emotional distress?

Back 77

defendant causes only mental disturbance, without accompanying physical injury, illnes consequences,

Front 78

What is the rule for 3rd party recovery for NIED?

Back 78

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

Front 79

What is the exception to the general rule for NIED, for 3rd party recovery?

Back 79

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.

Front 80

What are the elements of trespass to land?

Back 80

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.

Front 81

What are the defenses to intentional torts?

Back 81

1. Privilege

2. Mistake

3. Consent

4. Self-Defense

5. Defense of others

6. Defense of property

7. Necessity

Front 82

What is the rule from Summers v. Tice?

Back 82

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.

Front 83

What is the rule for concurrent tortfeasors?

Back 83

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.

Front 84

What are intervening causes which will not cut off a defendant's liability?

Back 84

1. negligence rescuers

2. subsequent medical malpractice (not recognized in NC)

3. subsequent disease

4. efforts to protect person or property

5. subsequent accident

Front 85

What is a concerted tortious action?

Back 85

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

Front 86

What is the general rule for private nuisance?

Back 86

is a thing or activity which substantially and unreasonably interferes with plaintiff's use and enjoyment of the land.

Front 87

What are the torts encompassed with the Invasion of Right to Privacy?

Back 87

1. intrusion upon a seculsion

2. appropriation of name or likeness

3. publicity given to private life

4. publicity placing person in false light

Front 88

What are the elements for intrusion upon seclusion?

Back 88

1. intentionally intrudes, physically otherwise

2. if the intrusion would be highly offensive to a reasonable person

Front 89

What is the general rule for apropriation of name or likeness?

Back 89

one who appropriates to his own use or benefit name or likeness of another is subject to liability

Front 90

What are the elements for publicity given to a private life?

Back 90

1. would be highly offensive to a reasonable person and

2. is not of legitimate concern to the public

Front 91

What are the elements of placing person in false light?

Back 91

1. would be highly offensive to a reasonable person

2. there is publicity

Front 92

which invasion of privacy tort does NC recognize?

Back 92

1. Status of intrusion upon seclusion action unclear NC has not yet recognized the tort

2. appropriation of Plaintiff's Name or Likeness

Front 93

What are the defenses for defamation?

Back 93

i. true statements

ii.statements in the course of judicial proceedings

iii. statements in the course of legislative proceedings

Front 94

What is defamation for a private person?

Back 94

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

Front 95

What is the general rule for defamation of a public official?

Back 95

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

Front 96

What is the rule for seatbelt in terms of contributory negligence?

Back 96

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.

Front 97

What is the general rule for parent's liability of children?

Back 97

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.

Front 98

What is the potential liability of a pratical joke?

Back 98

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