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99 Cards in this Set

  • Front
  • Back
What should you think when you see an answer phrased

(1) "no, unless" OR

(2) "lose unless"

(1) "no, unless" = "yes, if"

(2) "lose unless" = "win if"
What is the first thing you should ask yourself when answering any torts question?
What is the theory of this case?
Intentional Tort
Strict Liability
Can you sue a merchant for strict product liability even though he did not produce the product?
Yes. You are free to sue anyone in the chain of manufacturing.
Can a delusional person, who strikes a woman because he sincerely thinks she is going to attack him, assert self-defense?
No. For self-defense, the belief of imminent harm must be reasonable.
What is the common law defense to torts liability?
Contributory negligence.
What should you do with answer choices based on facts?
If it contains facts alone, and therefore asks you to draw a legal inference, throw it out. Look instead for an answer that
(1) contains legal language
(2) says what the court finds based on the facts
When does a criminal act break the chain of causation?
When it is NOT foreseeable.
What should you do with a "what is the 'least helpful' or 'weakest argument'" question?
Put a plus next to things that help, and a minus next to things that hurt. Then go from there.
For res ipsa, what is the role of exclusive control?
The instrumentality must have been in the exclusive control of the defendant to assert res ipsa.
What are the most common theories of tort for products liability?
Strict liability

You can have both in one case.
For intentional tort cases, do unforeseeable additional forces break the chain of causation?
No, even if they contribute to the plaintiff's injury. All you have to ask is whether the initial intentional tort was a SUBSTANTIAL FACTOR in bringing about the harm.
Vicarious Liability:
When is a principal liable for the tortious acts of an independent contractor?
When the duty involved is non-delegable on public policy grounds.

Ex. duty of a possessor of land to keep the property safe for its invitees.
Does establishment of res ipsa loquitur create a presumption of negligence?
No. It merely creates a permissible inference of negligence.
What are the elements of negligence?

What two things do you have to ask about duty?
(1) To whom is the duty owed?
(2) What is the duty?

To whom does one owe a duty?
One owes a duty only to FORESEEABLE plaintiffs.

What is the usualy duty of care?
We owe the amount of care that would be given by a hypothetical reasonably prudent person acting under similar circumstances.

In determining the defendant's duty of care, do we make allowances for his individual attributes or shortcomings?
Generally no.

(1) If defendant had superior knowledge of some fact or info relevant to the conduct in question.
(2) Physical attributes of the defendant are incorporated (blindness, deafness, etc.) No exceptions for development disabilities or mental illness.
(3) Special duty standards (see other card)

What categories of people have "special duty standards?"
(1) Children
(2) Professionals
(3) Occupiers of Land
(4) Applicable statutes

What is the special duty standard for children?
(1) 4-6 yrs: no duty of care to anyone. Incapable of negligence.
(2) 4-18 yrs: owe the care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.

Exception: when a child engages in "adult activities." Then you use the reasonably prudent person standard.

For the exception to a child's special duty of care, what constitute "adult activities?"
Pretty much operating something with an engine.

Which professionals have a special duty of care?
Doctors, nurses, other health professionals, accountants, architects, engineers, lawyers.

What is the special duty of care owed by professionals?
Professional persons must give the care of the average member of their profession, who practices in a similar community.

For the special duty of care owed by professionals, what's always worth mentioning on an essay.
The standard is an empirical standard, and you will likely need an expert witness to establish it.

For the special duty owed by occupiers of land, what two questions should you ask yourself?
(1) How did the entrant get hurt? Was it an ACTIVITY or a CONDITION?
(2) What was the entrant's legal status on the land? UNDISCOVERED TRESPASSER, DISCOVERED TRESPASSER, LICENSEE, INVITEE?

What special duty of care does an occupier of land owe to an UNDISCOVERED trespasser?
No duty of care is owed, however, the injury occurred.

What special duty of care does an occupier of land owe to a DISCOVERED trespasser?
ACTIVITIES: the care of a reasonably prudent person under similar circumstances.
CONDITIONS: A duty to protect only when the condition is a known man-made death trap: (1) artificial (2) highly dangerous - kill or maim (3) concealed (4) occupier knew of it.

Are anticipated trespassers included in the category of discovered trespassers?

What special duty of care does an occupier of land owe a licensee?
ACTIVITIES: reasonably prduent person under similar circumstances.
CONDITIONS: all known traps on land: (1) concealed from licensee (2) knows of it in advance.

What is a licensee?
Individuals who enter land with permission in cases where land is generally not open to the public.

Ex. social guests.

What is an invitee?
People who enter land generally open to the public.

Ex. customers, hospital visitors, airport visitors, museum, church...

What special duty of care does an occupier of land owe an invitee?
ACTIVITIES: reasonably prudent person under similar circumstances.
CONDITIONS: all reasonably knowable traps. A two part test: (1) concealed from the invitee (2) occupier knew of condition or could have discovered it through a reasonable inspection.

Does an occupier of land owe a special duty of care to indiscovered trespassers?
No. He owes them NO duty of care. They always lose a negligence claim.

What special duty of care does an occupier of land owe discovered trespassers, licensees, and invitees when he is doing some ACTIVITY?
Reasonable person under similar circumstances.

What are the different duties of care, for conditions, that an occupier of land owes to
(1) discovered trespassers?
(2) licensees?
(3) invitees?
(1)discovered trespassers: all man-made death traps.
(2)licensees: all known traps.
(3)invitees: all reasonably knowable traps.

What special duty of care does an occupier of land owe to a firefighter or police man?
They are normally treated as licensees. However, they may NEVER recover for injuries that are an inherent risk of their job.

If an occupier of land owes someone a special duty as to a condition, what should he do?
Fix the thing or issue a WARNING.

For an occupier of land, does his special duty of care change when the trespasser is a child?
Yes. A landowner must exercise the ordinary duty of care if
(1) there is a dangerous condition the owner should be aware of
(2) the owner should know that kids grequent the vicinity
(3) the condition is likely to cause injury because of a child's inability to understand risk
(4) the expense of remedying the situation is slight compared with the risk.

For a special duty owed by occupiers of land to children, what constitutes a "dangerous condition?"
(1) Most man-made conditions.
(2) Some natural conditions.
(3) Not water, usually, unless there is something particularly dangerous to kids about it.

When can we borrow a statute to set the duty of care and breach?

What's the short phrase to remember this?
(1) plaintiff shows he is a member of the class of persons the statute is designed to protect
(2) plaintiff shows that the accident that occurred is in the class of risks that the statute is designed to prevent.

class-of-person, class-of-risk.

What happens if the courts decides to borrow a statutory standard for duty of care and breach?
Violation of that statute becomes negligence per se.

Are there any exceptions to application of a statutory standard to duty of care?
(1) If statutory compliance would be more dangerous than the a violation of the statute.
(2) If compliance is impossible under the circumstances.

Is there ever a duty to act affirmatively?
Generally, no.
(1) If the defendant cause the victim's peril.
(2) If the parties had a pre-existing relationship (family, common carriers and innkeepers, land occupier and invitee)

If the exception applies, it is only a duty to rescue reasonably under the circumstances.

There is no duty to rescue. Once you start rescuing, do you assume any duties?
Once you rescue voluntarily, you assume a duty to do so in a non-negligent manner.

What are the elements of negligent infliction of emotional distress?
(1) defendant violated one of the duty standards
(2) the distressed plaintiff was within a one of physical danger
(3) the distressed plaintiff suffered SUBSEQUENT PHYSICAL manifestations of the distress.

May bystanders recover for negligent infliction of emotional distress?
In about 1/2 of the states. Here, the plaintiff is not suing over a fright, but grief.

The rule varies: family member, timing, etc.

What is breach?
It is when the plaintiff identifies specific behavior by the defendant that violates the duty of care.
(1) a factual showing of what the defendant did wrong
(2) an argument as to why that violates the duty

What is res ipsa loquitur?
This doctrine allows a plaintiff to go forward with a case without direct evidence of the defendant's breach.

What must a plaintiff show to proceed under res ipsa?
(1) The accident does not normally occur in the absence of negligence. So, it NORMALLY occurs w/ negligence.
(2) The type of accident is normally due to the negligence of someone in the defendant's position.
(3) The defendant had exclusive control over the thing in question.

What are the two types of causation you must always consider?
(1) Factual causation: the "but for" test.
(2) Proximate causation: the fairness test

How do you prove causation when you have multiple defendants and mingled causation?

Ex. two unrelated campers both negligently start a forest fire.
You use an alternate factual causation test. Ask whether the defendant's conduct was a SUBSTANTIAL FACTOR in bringing about the result.

How do you prove causation when you have multiple defendants and an unascertainable cause?

Ex. Two men simultaneously negligently shoot a third, and one bullet strikes.
You still use but-for causation, but you shift the burden of proof.

If the defendant cannot exhonerate himself, then he is held jointly liable with the other defendant.

What is the basic idea underlying proximate cause?
Fairness, as calibrated by FORESEEABILITY.

For proximate cause, what four things are always deemed foreseeable?
(1) intervening medical negligence
(2) intervening negligent rescue
(3) intervening protection or reaction forces
(4) subsequent disease or accident

What approach should you take in determining whether an intervening factor disrupts proximate cause?
Look at the breach and ask what you worry about. Then, look at the injury, and ask whether they match up.

For damages, does negligence liability subtract costs for the weird qualities of a plaintiff that make costs higher than they would usually be?
No. You take your victims as you find them. If you negligently cut someone with hemophilia, you're still liable their hospital bills.

What is the traditional affirmative defense to negligence?
Comparative liability, or comparative negligence.

Here, the defendant offers evidence that the plaintiff failed to exercise the relevant degree of care for his own safety.

What are the two kinds of comparative fault?
(1)Default is PURE COMPARATIVE FAULT, whichis where even if the plaintiff is the predominantly negligent party, he will still recover at least a little money.
(2)MODIFIED/PARTIAL COMPARATIVE FAULT: Plaintiff can only recover if his fault is less than 50%.

What is the methodology for determining damage awards based on comparative negligence?
(1) Identify total damages to plaintiff
(2) Jury assigns percentage of responsibility to plaintiff
(3) Plaintiff's recover limited to percentage of fault for which he is not responsible.
For intentional torts, can the defendant ever assert an incapacity defense? What if she is a child, drunk, or mentally ill?
There are NO incapacity defenses to intentional torts, unless that condition made the person completely unaware of her actions.
What are the elements of battery?
(1) Intent
(2) A harmful or offensive contact
(3) The contact is with the plaintiff's person
For intentional torts, what constitutes "intent?"
Intent: the defendant acted with the desire or purpose to produce a forbidden result, or the defendant knew that the forbidden result was virtually certain to result from the act.
For battery, what is a "harmful or offensive contact?"
It is a contact unpermitted by a person of ordinary sensitivity. Ex. a tap on the shoulder is OK, stroking someone's hair is not OK.
For battery, when is a contact "with the plaintiff's person?"
The plaintiff's "person" includes anything connected with the plaintiff, anything she is holding or touching.
What are the elements of assault?
(1) Intent
(2) Defendant's act places the plaintiff in apprehension
(3) The apprehension is of an immediate battery
For assault, what does "apprehension" mean?
It means KNOWLEDE, not fear. It means an awareness, understanding, or appreciation.

It is evaluated from the point of view of the plaintiff (the classic unloaded gun scenario).
For assault, what does it mean that the plaintiff must have "apprehension of an immediate battery?"
(1) Mere words are not enough.
(2) You must have an overtly physical act. It usualyl involves a weapon, but could be shaking a fist.
(3) Even when there is threatening conduct, the words accompanying the conduct can cancel it out.
For assault, what sorts of words cancel out threatening conduct?
(1) Conditional words.
(2) Words that promise future action, but not immediate action.
What are the elements of false imprisonment?
(1) Intent
(2) An act of restraint
(3) Confinement of the plaintiff in a bounded area
For false imprisonment, what qualifies as "an act of restraint?"
Something that restrains the plaintiff, and either
(1) the plaintiff is aware of it OR
(2) the plaintiff is harmed by it.
For false imprisonment, can a threat be an "act of restraint?"
Yes, if the act would be sufficiently threatening to a person of ordinary sensitivity.
For false imprisonment, can an omission be an "act of restraint?"
Yes, if the plaintiff is owed a duty by the defendant concerning his mobility or freedom of movement.
Ex. A disabled passenger becomes stuck on a plane because the crew failed to help him.
For false imprisonment, if a plaintiff is locked out of a space, is he confined to a bounded space?
No! He has the whole rest of the world. The plaintiff must be "locked" INTO a space, though the space could be large, like a desert.
For false imprisonment, how do escape routes reflect on the element of "bounded area."
There is no bounded area if
(1) there is a reasonable means of escape that
(2) the plaintiff can reasonably discover
What are the elements of intentional infliction of emotional distress?
(1) Intentional or reckless conduct.
(2) Outrageous conduct
(3) Severe resulting distress
For IIED, what qualifies as "outrageous conduct?"
"Conduct that exceeds all bounds of decency tolerated in a civilized society."
For IIED, do insults every qualify as "outrageous conduct?"
For IIED, what factors traditionally tip the scales in favor of "outrageous conduct?"
(1) Continuous or repetitive conduct
(2) The defendant is a common carrier or innkeeper
(3) The plaintiff is a member of a class of fragile persons
(4) The plaintiff knows of a person's hypersensitivity and exploits it
For IIED and its element of "outrageous conduct," what is a "class of fragile persons?"
The issue is whether the defendant is outrageous for who he chooses to pick on, not necessarily the reaction he gets.

Ex. little children, the elderly, pregnant women, members of racial, religious, and ethnic minorities.
What are the elements of trespass to land?
(1) Intent
(2) Physical invasion
(3) Land
For trespass, what counts as a physical invasion?
(1) Defendant enters property on foot or in a vehicle, OR
(2) Defendant propels tangible objects onto plaintiff's land
Would shining bright lights onto someone's land constitute a physical invasion for the purposes of trespass?
No. It must be a tangible invasion.
For trespass, what counts as "land?"
The surface of the property.
And, the air above the property and the soil below the property out to a "reasonable distance."
What are the elements of trespass to chattels and conversion?

Why study them together?
(1) Intent
(2) interference with a plaintiff's personal property, usually via damage or deprivation of possession

Because they are only different in degree. Trespass to chattels = a slight invasion. Conversion = significant harm.
Why are theretwo different torts for "trespass to chattels" and "conversion?"
The remedies are different.
Trespass to chattles --> cost of repair or rental.
Conversion --> full value of the item.
What are the defenses to an intentional tort?
(1) Express or Implied Consent
(2) Self-Defense
(3) Defense of 3rd persons
(4) Defense of property
(5) Necessity
For defense to an intentional tort, what is the first thing to ask about an alleged consent?
Does the consenter have capacity to consent?
Children, developmentally disabled people, drunk people, etc. cannot consent.
The consenter must be "sane and sober."
For defenses to intentional torts, when is express consent by a capable adult disregarded?
When it is obtained by fraud or duress.
What is implied consent, as a defense to intentional torts?
It is based on custom, where the plaintiff has gone to a place or is participating in an activity where certain invasions are routine (for instance, hockey).
It arises from the defendant's reasonable interpretation of plaintiff's conduct.
For implied consent, do the inner thoughts of the plaintiff matter?
Not at all.
If defendant argues consent as a defense to an intentional tort, and the consent is valid, what can plaintiff argue?
That the defendant's behavior exceeded the SCOPE of consent.
Why study self-defense, defense of third persons, and defense of property together?
The same analysis applies to each of them.
For self-defense, etc., as a defense to an intentional tort, what are the three things one must satisfy?
(1) Proper timing. Must act in response to a threat in progress or imminent. No revence.
(2) Accuracy. The defendant must have a REASONABLE belief that there is a threat.
(3) Degree of force. Limited to necessary force. Deadly force is never necessary to protect property.
Is deadly force ever authorized for protection of property?
For which torts is the defense of necessity relevant?
(1) trespass to land
(2) trespass to chattels
(3) conversion
The necessity defense to intentional torts has two variations.

What are they?
(1) Public necessity: defendant intereferes with plaintiff's property to protect the community as a whole or a significant group of people. This is an ABSOLUTE defense.
(2) Private necessity: when defendant invades plaintiff's property in an emergency, to protect the interests of his home. NOT an absolute defense.
Is private necessity an asbolute defense?
No. It has three consequences.
(1) The defendant must pay for actual harm to property.
(2) The defendant NEVER pays nominal or punitive damages.
(3) As long as the emergency continues, the defendant has a RIGHT to remain on the plaintiff's property.
Is there an exception to the rule that a parent is not vicariously liable for the acts of her child?
Yes, if the child is acting as an agent of the parent.
Can someone be liable for battery even though they did not actually touch the defendant?
Yes, if their behavior nonetheless causes the injury. For example, if someone jumps out of your way and hurts himself.