FSP Tort

Card Set Information

FSP Tort
2012-07-17 22:06:19
Torts bar points FSP

Torts from bar points
Show Answers:

  1. elements for battery
    • (1) intentional act
    • (2) harmful or offensive contact
    • (3) with P or something closely connected to P
    • (4) D desires to cause an immediate harmful or offensive contact
    • OR
    • (4) D knows such contact is substantially certain to occur     
  2. In NC, a doctor who does what may be liable for battery?
    • performs an unauthorized surgery
  3. In NC, a doctor who does what may be liable for negligence?
    performs an authorized surgery w/o disclosing its risks
  4. What is the definition of informed consent?
    disclosure of the usual and most frequent risks a reasonable person would consider important in making the decision of whether or not to undergo surgery
  5. Elements for assault
    • (1) intentional act
    • (2) causes P to experience reasonable apprehension
    • (3) of an immediate harmful or offensive contact  
  6. What is the requisite "intent" for assault and battery?
    • Desires to cause an immediate harmful/offensive contact or the immediate apprehension of such contact
    • know that such a result is substantially certain to occur 
  7. Elements of false imprisonment
    • (1) intentional act
    • (2) causes P to be confined or restrainted to a bounded area
    • (3) against P will
    • (4) P knows of the confinement or is injured by it   
  8. What is the requisite intent for false imprisonment?
    • (1) desires to confine or restrain the P to a bounded area
    • OR
    • (2) knows that such confinement is virtually certain to occur 
  9. What constitutes confinement for false imprisonment?
    • physical barriers
    • failing to release the P where D has a legal duty to do so
    • invalid assertion of legal authority  
  10. When is a P not confined for false imprisonment?
    there is a reasonable means of escape of which P is actually aware
  11. Does P have a duty to resist under false imprisonment?
    not if the D uses or makes credible threat to use physical force
  12. Elements for IIED
    • (1) intentional or reckless act
    • (2) amounting to extreme and outrageous conduct
    • (3) causes P severe mental distress  
  13. What conduct satisfies the extreme and outrageous conduct for IIED?
    beyond the bounds of decency - conduct that a civilized society won't tolerate
  14. In NC, recovery for IIED arising from K relationship isn't allowed unless what?
    • (1) main benefits anticipated by K weren't pecuniary
    • (2) K related directly to matters of dignity, mental concern or solicitude, or the sensibilities  
    • (3) K directly involves interest/emotions recognized by all as involving a great probability of resulting mental anguish if not respsected
    • (4) primary loss not pecuniary  
  15. What constitutes severe emotional distress for IIED?
    more than the level of mental distress a reasonable person could be expected to endure
  16. Elements for IIED of 3P
    • (1) intentionally or recklessly
    • (2) causes severe emotional distress
    • (3) P is immediate family member of 3P
    • (4) P is present at time
    • (5) D is aware of the P presence
    • OR
    • (3) P is present at time (regardless of relationship)
    • (4) distress results in bodily harm       
  17. Elements of trespass
    • (1) intentional act
    • (2) causes physical invasion of P land 
  18. In NC, trespass can include what kind of airplane overflight?
    one that is so low that the use and enjoyment of the land/water below is adversely affected
  19. Does the D have to realize he has crossed a boundary line to be liable for trespass?
  20. Can D still be liable for trespass if he has a GF belief his entry is lawful?
  21. Who may bring an action for trespass?
    person in actual possession of land or has right to immediate possession of that land
  22. How is the trespass element of physical invasion satisfied?
    • (1) D enters or cause 3P/object to enter P land
    • (2) enter P land lawfully and then remains when under legal duty to leave 
    • (3) fails to remove an object from P land when under a legal duty to do so 
  23. Traditionally what damages are recoverable for trespass that causes no real injury?
    nominal damages
  24. If trespass causes injury then what is D liable for?
    harm caused
  25. What is the liability associated with trespass resulting from intentional entries?
    • D is liable for intentional entries onto the land of another
    • damage not required
    • mistake is no defense  
  26. What is the liability associated with trespass resulting from unintentional entries?
    not liable for negligent or reckless entries UNLESS damage to land results
  27. What is the liability associated with trespass associated with accidental entries?
    no liability for accidental entries that are unintentional and non-negligence
  28. Elements for trespass to chattels
    • (1) intentional act
    • (2) D interferes with P chattel
    • (3) causes harm  
  29. Is mistake a defense for trespass to chattels?
  30. When is interference actionable under trespass to chattels?
    dispossession or intermeddling
  31. Elements for conversion
    • (1) intentional act
    • (2) destruction of or serious and substantial interference
    • (3) with P chattel  
  32. Is mistake a defense to conversion?
  33. In NC, a landowner may recover double damages for what type of conversion?
    unauthorized cutting, removing, or burning of any valuable wood or timber on or from his land
  34. A privilege for intentional tort may exist where
    • (1) person affected by D conduct consents
    • (2) important personal or public interest; and
    • (3) D acts freely in order to perform one's essential function  
  35. What is the defense of consent to an intentional tort?
    • D not liable if P consented to the act, expressly or impliedly, that constituted the tort
    • must be effective
    • must not exceed the scope of the consent  
  36. Consent for intentional tort may be found as a matter of law where P is unable to consent and what?
    • (1) emergency action is nec
    • (2) reasonable person would be expected to consent; and
    • (3) no reason exists to believe that P wouldn't consent  
  37. When is consent for an intentional tort not effective in NC?
    • where D tortious conduct also constitutes a crime
    • consent may be used in mitigation of damages 
  38. What is defense of self defense to an intentional tort?
    • D may use reasonable force to prevent P from engaging in an immindent and unprivileged attack
    • Degree of force reasonably nec to avoid the harm threatened by the P 
  39. when can D not assert self defense to an intentional tort?
    purported threat isn't about to happen, has been averted, or has ended
  40. Can D assert self defense if she was mistaken as to the imminent attack?
    yes if the D honestly and in good faith believed that a sufficient threat existed to justify the defensive force and a reasonable person under the circumstances would also have believed
  41. Where does NC stand on the duty to retreat>
    • no duty if attack is felonious and D didn't provoke the confrontation
    • no duty if assault non-felonious and in one's own home or place of business
    • duty to retreat in all other instances 
  42. What is defense of others to intentional tort?
    D is entitled to defend another person from an attack by P to the same extent that the 3P would be lawfully entitled to defend himself from
  43. What is the majority rule regarding mistaken defense of others in intentional tort?
    D who makes mistake about whether defense of 3P is justified or as to the degree of force that is reasonable can't assert the defense and is liable to P for an intentional tort
  44. What rule does NC follow regarding mistaken defense of 3P in intentional tort?
    reasonable mistake doctrine - allows use of force to defend another if D reasonably believes that the person in need of aid would be permitted to use self-defense
  45. What is defense of property in intentional tort?
    • permitted to use reasonable force to prevent P from committing a tort against D property
    • no greater than nec 
  46. What is NC defense of habitation statute do?
    permits a lawful occupant of a home to use deadly force if nec to prevent forcible entry into the home or to terminate intruder's unlawful entry if occupant reasonably believes that intruder intends to kill or cause serious bodily injury or commit some other felony in the home
  47. What is defense of necessity to intentional tort?
    D is permitted to injure P property if this is reasonably nec to avoid a substantially greater harm to the public, himself, or to his property
  48. What is the shopkeeper's privilege?
    • shopkeeper not liable for false imprisonment if:
    • (1) reasonable suspicion
    • (2) reasonable force to detain
    • (3) reasonable manner
    • (4) reasonable time    
  49. How does NC shopkeeper's privilege differ from the CL?
    requires PC rather than reasonable suspicion to detain