Torts

Front 1

Are supersensitive plaintiffs relevant in tort law?

Back 1

No, unless defendant knows of them.

Front 2

How old does someone have to be before they are liable for intentional torts?

Back 2

They can ALWAYS be liable for intentional torts!

Front 3

What is tortious battery?

Back 3

1. Harmful or offensive contact
2. with plaintiff's person.

Front 4

What is assault?

Back 4

1. Apprehension
2. Of an immediate battery.

Front 5

Does apparent ability create a reasonable apprehension (unloaded gun)?

Back 5

Yes.

Front 6

What is false imprisonment?

Back 6

1. Sufficient act of restraint
2. in a bounded area.

Front 7

Are threats enough for false imprisonment?

Back 7

Yes.

Front 8

Does plaintiff have to know of the false imprisonment?

Back 8

Yes, unless
1. infant plaintiff
2. confinement actually injures plaintiff.

Front 9

When is an area not bounded?

Back 9

1. There is a reasonable means of escape and
2. Plaintiff knows of it.

Front 10

Elements of intentional infliction of emotional distress:

Back 10

1. Outrageous conduct and
2. Damages.

Front 11

What are some ways to make normally non-outrageous conduct outrageous?

Back 11

1. Conduct is continuous.
2. The type of plaintiff (kids, elderly, pregnant women, supersensitive plaintiff WHEN THE DEFENDANT KNOWS).
3. The type of defendant (common carriers, innkeepers, FOR PASSENGERS AND GUESTS).

Front 12

Is physical injury required for intentional infliction?

Back 12

No, but clear proof of substantial emotional distress is (sometimes it's assumed -- rat in soup).

Front 13

What are the elements to tresspass to land?

Back 13

1. Act of physical invasion by defendant
2. of plaintiff's land.

Front 14

How do you distinguish trespass to chattels and conversion?

Back 14

Trespass to chattels, you hurt the property or take it for a while; conversion, you destroy it or take it for a long time.

Front 15

What is the process to analyze consent?

Back 15

1. Determine if plaintiff had capacity.
2. Determine if consent is express or implied.
3. Look for ways that consent can be undone (fraud, mistake, coercion).

Front 16

How can consent be implied?

Back 16

Custom and usage, or plaintiff's conduct.

Front 17

What is the "hot pursuit doctrine"?

Back 17

Usually the defense has to occur simultaneously with the tort. But if your chattels are taken, you can chase the guy.

Front 18

Is there a duty to retreat?

Back 18

There is no duty to retreat before using self defense, although the modern trend is that you should do so before using serious force, unless you're at home.

Front 19

What are the elements of ordinary (not First Amendment) defamation?

Back 19

1. Defamatory statement about plaintiff.
2. Publication.
3. Injury to plaintiff's reputation.

Front 20

What additional elements are needed if the First Amendment applies?

Back 20

1. Falsity.
2. Fault.

Front 21

What are the two tricky terms of art to remember, when speaking about defamation?

Back 21

1. Inducement (extrinsic facts showing that it's really defamation);
2. Colloquium (showing that the defendant really was referring to plaintiff).

Front 22

Do innocent statements suffice for defamation?

Back 22

No. They must be intentional or negligent.

Front 23

Is injury presumed for defamation?

Back 23

Only for libel and slander per se.

Front 24

What is slander per se?

Back 24

1. Business or profession
2. Moral turpitude
3. Loathsome disease
4. Imputing unchastity to a woman.

Front 25

What are the defenses to defamation (if no First Amendment)?

Back 25

1. Consent
2. Truth
3. Absolute and qualified privileges.

Front 26

What are the absolute privileges?

Back 26

1. Communications between spouses.
2. The three governmental branches.

Front 27

What is a qualified privilege?

Back 27

When public policy encourages communication.

Front 28

How does the burden of proof change if the First Amendment is implicated?

Back 28

Falsity is an element.

Front 29

What fault is needed for a public figure?

Back 29

Intentional falsehood or reckless disregard for the truth.

Front 30

What must a private person plaintiff show, even in a First Amendment case?

Back 30

Negligence.

Front 31

What bonus does a private plaintiff get if he can show malice?

Back 31

Presumed and punitive damages.

Front 32

What are the four sub-torts under Invasion of Right to Privacy?

Back 32

1. Misappropriation of name/picture
2. Intrusion into privacy or seclusion
3. False Light
4. Publication of private facts

Front 33

What is the test for intrusion into privacy/seclusion?

Back 33

Common sense fact analysis. Would a reasonable person object to this kind of intrusion?

Front 34

What is the difference between publication for defamation and publication for invasion of privacy?

Back 34

For invasion of privacy, it has to be wide publication.

Front 35

Does the malice test apply to false light?

Back 35

If it's public figures or a matter of public concern.

Front 36

What's an example of what is, and what is not, publication of private facts about plaintiff?

Back 36

Yes: newsletter saying you're cured of herpes.
No: photograph of you at a private restaurant.

Front 37

Can silence give grounds to intentional misrepresentation? What are the exceptions?

Back 37

No. Except:
1. Fiduciary relationships;
2. Real property sale where plaintiff cannot reasonably discover material facts
3. Defendant's prior statements have misled plaintiff.

Front 38

What is the scienter requirement for intentional misrepresentation?

Back 38

Malice: knowing it's false, or reckless disregard.

Front 39

What are the elements to intentional misrepresentation?

Back 39

1. Statement
2. Malice
3. Intent to induce reliance
4. Justifiable reliance.
5. Damages.

Front 40

What are two ways in which negligent misrepresentation differs from intentional?

Back 40

1. Negligence replaces malice.
2. Negligent can only be used in a commercial setting.

Front 41

In a negligence case, are the defendant's mental and physical characteristics taken into account?

Back 41

Mental: no
Physical: yes (although if defendant knows of physical disability, must act accordingly)

Front 42

Children under what age are deemed incapable of negligence?

Back 42

4.

Front 43

What is the standard of care for children?

Back 43

Child of like age, intelligence and experience.

Front 44

What's the exception to children's standard of negligence?

Back 44

When they engage in adult activities.

Front 45

What is the standard for professionals?

Back 45

Reasonable profession in same or similar communities, TAKING INTO ACCOUNT THEIR SPECIALTIES.

Front 46

What is the standard for common carriers and innkeepers?

Back 46

Slight negligence, but ONLY FOR PASSENGERS AND GUESTS.

Front 47

When can plaintiffs go after owners/occupiers?

Back 47

If the o/o, or a family member or employee, goofs up.

Front 48

If injury occurs on owner's land, what's the first thing you do?

Back 48

Determine if it's an undiscovered trespasser. If ther eis, there is NO duty.

Front 49

Do owners owe a duty re. natural conditions of their property to those off the property?

Back 49

No, unless it is a decaying tree next to the sidewalk.

Front 50

Do owners owe a duty to those off the property for artificial conditions?

Back 50

No, EXCEPT:
1. Unreasonably dangerous conditions abutting adjacent land (negligently allowing freezing water to drain on the sidewalk).
2. A landowner has a duty to take due precautions to protect persons passing by from dangerous conditions (e.g., by erecting a barricade to keep people from falling into an excavation at the edge of the property).

Front 51

What is an anticipated trespassor, and how are they treated?

Back 51

Anticipated trespassors are those whom the owner should know may come by, since people trespass there frequently.

They are treated like discovered trespassors.

Front 52

What does a landowner owe to a discovered trespassor?

Back 52

For ARTIFICIAL CONDITIONS INVOLVING A RISK OF SERIOUS INJURY (owner is NOT responsible for natural conditions).

Front 53

What is a licensee?

Back 53

Someone on property for their own good: Door to door sales person, social guest.

Front 54

What does owner owe to licensees?

Back 54

Duty for dangerous conditions the owner knows of.

Front 55

What does owner owe to invitee?

Back 55

All natural and artificial conditions the owner KNOWS OR SHOULD KNOW OF. That means owner must make a reasonable inspection.

Front 56

How can owner discharge his duty to people on property?

Back 56

Warnings or making things safe.

Front 57

Does owner owe a duty to very obvious dangerous conditions?

Back 57

No.

Front 58

What's the first thing to ask re. a kid and attractive nuisance?

Back 58

Did the kid show that he didn't understand the risk? If he did, not attractive nuisance.

Front 59

Does the kid have to be attracted BY the nuisance?

Back 59

No.

Front 60

What are the elements to attractive nuisance?

Back 60

1. Dangerous condition on land the owner knows of or should know of.
2. Owner knows or should know that kids go there.
3. Condition is dangerous, b/c of kids' inability to appreciate risk;
4. The expense of remedying the situation is slight compared with the magnitude of the risk.

Front 61

What is the standard for recreational land?

Back 61

If owner lets public use the land for recreational use WITHOUT CHARGING A FEE, landowner is not liable unless landowner willfully and maliciously failed to guard against or warn of danger.

Front 62

What is the modern trend for owners?

Back 62

Abolish invitees, licensees, etc., and just go with a reasonable person standard.

Front 63

What is the test for application of a statutory standard?

Back 63

1. Plaintiff must fall within the protected class.
2. Statute must be designed to prevent this type of harm.

Front 64

What's an exam tip re. statutory standard?

Back 64

Most times on the Bar, the statute in the fact pattern was NOT designed to prevent the harm that occurred and is thus INAPPLICABLE.

Front 65

What happens if the statute does not apply?

Back 65

You go to reasonable person.

Front 66

What if defendant shows that plaintiff did not comply with an applicable statute?

Back 66

That's negligence per se. It doesn't mean liability, though.

Front 67

What are exeptions to non-compliance with an applicable statute?

Back 67

1. Compliance would be more dangerous.
2. Compliance would be impossible.

Front 68

What are the requirements for negligent infliction of emotional distress?

Back 68

1. Plaintiff must suffer physical injury.
2. Plaintiff must be within target zone. Though the modern trend is that the plaintiff can recover if she is a close relative and personally observed the event.

Front 69

What does it mean to have emotional distress damages as parasitic element of damages from another tort?

Back 69

If there is another tort that causes physical injury, plaintiff can tack on damages for emotional distresses.

Front 70

When is there duty to act in negligence action?

Back 70

1. Special relationship between parties (family member, employer/employee, common carriers, innkeepers)
2. Duty to control third persons. Parents liable only if they know or should know that their kid is likely to commit the act.
3. Assumption of duty to act by acting (voluntary rescuer)
4. Plaintiff's peril is due to defendant's negligence.

Front 71

How do you know when res ipsa loquitur applies?

Back 71

When there is not enough hard evidence to establish defendant's negligence.

Front 72

What is the test for "probability" in res ipsa loquitur?

Back 72

1. Inference of negligence: wouldn't have happened unless someone was negligent.
2. Evidence connects defendant with negligence.
3. Plaintiff was not contributorily negligent.

Front 73

If res ipsa applies, who decides if plaintiff wins?

Back 73

The jury.

Front 74

Must defendant offer evidence to rebut res ipsa?

Back 74

No.

Front 75

What are the three tests for actual causation?

Back 75

1. "But For" Test
2. "Substantial Factor" Test
3. "Alternative Causes" Test (two or more negligent defendants -- hunters firing guns -- but not sure who shot plaintiff. Burden switches to D's; if they can't give proof, both liable).

Front 76

What is the key phrase associated with proximate cause?

Back 76

Foreseeability.

Front 77

What is the exception to the rule that if the result was foreseeable the defendant is liable?

Back 77

If an intervening force was an unforeseeable INTENTIONAL TORT OR CRIME, defendant will prevail.

Front 78

What is the eggshell-skulled plaintiff fact pattern?

Back 78

Plaintiff has thin skull and gets badly hurt. That is foreseeable.

IT IS ONLY FORESEEABLE THAT ONE BE ABLE TO FORESEE AN INJURY, NOT THE EXTENT OF THE INJURY.

Front 79

What are the two key rules re. damages?

Back 79

1. There is a duty to mitigate.
2. Damages are NOT reduced because of payments from other sources (e.g., health insurance). If insurer wants to subrogate, they can.

Front 80

What is the exception to assumption of risk?

Back 80

When the defendant created a bad situation and plaintiff had no viable alternative than to take the risk.

Or, in an emergency (jumping in front of a negligently driven car to save a child).

Front 81

What was the harsh rule re. contributory negligent?

Back 81

If you were at all negligent, you could not recover.

Front 82

What does pure comparative negligence say?

Back 82

You recover except for the percentage of your negligence, EVEN IF YOU WERE MORE NEGLIGENT THAN THE DEFENDANT.

Front 83

What does partial comparative negligence say?

Back 83

There is no recovery if you were more negligent than the other party.

Front 84

Which jurisdictions apply last clear chance?

Back 84

Just contributory negligence states.

Front 85

Is 'Last Clear Chance' a defense?

Back 85

NO!! It's an argument, not a defense!

Front 86

Is plaintiff's negligence a defense to intentional torts?

Back 86

No.

Front 87

Is there implied assumption of risk in comparative negligence states?

Back 87

NO

Front 88

When is an owner of animals liable under strict liability?

Back 88

If he has wild animals (as long as plaintiff didn't do anything) or if he has a domestic animal that he knows is dangerous.

Front 89

What are the rules for landowners, dangerous animals and strict liability?

Back 89

Licensees and invitees: landowner strictly liable (except zookeepers: negligence)

Trespassers: must prove negligence.

Intentional use of vicious watchdogs: may be liable even to trespassers.

Front 90

We know, of course, that a plaintiff is liable even if he's not at all negligent. But how does plaintiff's negligence play, as re. strict liability?

Back 90

Comparative negligence state: knowing and unknowing contributory negligence can be asserted to reduce recovery.

Contributory negligence state: knowing contributory negligence is a complete defense, but unknowing contributory negligence is no defense.

Front 91

In products liability, what are the possibilities as far as negligence?

Back 91

1. Design
2. Manufacture
3. Warnings
4. Inspections.

Front 92

Who can be a plaintiff in negligence actions?

Back 92

Anyone within foreseeable zone of risk, including bystanders.

Front 93

In a negligence products liability case, who can be a defendant?

Back 93

1. Manufacturers, almost always.
2. Retailers and wholesalers: almost never.

Front 94

Will warnings insulate from liability?

Back 94

Yes.

Front 95

What is "product use incidental to performance of services"?

Back 95

If during the course of a medical operation, defective blood is administered, can't sue surgeon for strict liability.

Front 96

What is the standard for nuisance?

Back 96

The conduct must be objectionable to an AVERAGE PERSON.

Front 97

Can plaintiff come to the nuisance and maintain the lawsuit?

Back 97

yes, although it is taken into consideration.

Front 98

Are automobile owners liable for the torts of other drivers? Exceptions?

Back 98

Usually they are not liable. But:
1. Family car doctrine: household members using with permission.
2. Permissive use doctrine: anyone using with permission.

Front 99

Are parents liable for their children's torts?

Back 99

As a general rule, they are not. But under some statutes they may be, for intentional torts, up to a certain amount (e.g., $5,000). Also, they'll be liable if the child is acting as an agent for parent. And parent may be liable for own negligence for entrustment.

Lastly, if the parent knows of the child's tendency to injure others, may be liable for not using due care to exercise control.

Front 100

Do government entities enjoy immunity from tort?

Back 100

They do for governmental functions, but not for proprietary functions. ("Would a private business normally perform this function?") E.g., city parking lot.