Card Set Information
Bar Exam Torts
Intentional Torts - What are the 3 ways to prove intent in Intentional Tort actions
Specific Intent - D intends to bring about a specific Purpose
General Intent - D knows w/ substantial certainty cosequences will result
Transferred Intent - Intend to commit a tort against on person but commit a different tort or against another person, it is treated as intent
Intentional Torts - Who is considered to have Capacity in tort actions
There is no incapacity, everyone will have the intent, even minors, and insane people.
Intentional Torts - What is required to have sufficient Causation in tort claims
Result must have been caused by or set in motion by D. Substantial factor is enough.
Intentional Tort - What are the 5 elements of Battery (Elements)
Harmful or offensive touch - Reasonable Person
P's person - or something he is touching
No Damages needed
Intentional Tort - What are the 5 elements of Assault
2. Act creating reasonable apprehension
3. Of immediate harmful or offensive contact
5. Damages not required
Intentional Tort - What are the 5 Elements of False Imprisonment
1. Confines or restrains (act or ommission)
2. Bounded Area
5. No Damages Needed
Intentional Tort - What are the 4 Elements of Intentional Infliction of Emotional Distress
1. Intent or recklessness
2. Extreme & Outragous Conduct
4. Damages - severe emotional distress
Torts to Property - What are the 3 torts to land/chattel
Trespass to land
Trespass to Chattels
Torts to Property - What are the 4 elements to Trespass to Land, who has a right to bring the action
1. Intent - Only intend to enter land
2. Physical invasion - Actual Physical
4. No Damages needed
Plaintiff - Only people in possession
Torts to Property - What are the 4 Elements of Tresspass to Chattels
2. Act that interferes with another's right to possession - Can be breaking or holding on to property
4. Damages - Requires Damages
Torts to Property - What are the 4 Elements of Conversion
1. Interferes with possession of another's right to possess
: Interference severe enough that D pay the full value
Defenses - What are the 4 Defenses to Intentional Torst
1. Self Defense
2. Defense of Others - reasonable mistake OK
3. Defense of property - Mistake OK
4. Re-entry onto land, like to kick off a tenant. Self help is no longer a defense
How can there be a mistake in a Defense of Property and what is the effect of a Privledge to enter land
Mistake is ok to either, but a persons privledged to enter land to superceeds Defense of Property
Defense to Property Tort - What force can you use to Recapture Chattel
1. Can only use peaceful means if someone originally got the property by permission
2. Can use force if in Hot Pursuit
3. Timely Demand Required - when proper
4. Recover from wrong doer - only if the person knew the property was stolen
Defense - What is the process to Enter on to land to remove Chattel, wrondoer, innocent party, your own fault
: First request return, can enter land at reasonable time and manner
2. Innocent Party
: Must be given notice and opportunity to return. May enter at reasonable time and manner.
3. Owner's fault
: May not go onto anothers land to get your cows, need legal process
Defenses - Property torts - Is Mistake a a defense in entering on land, what are shopkeepers rights
1. Cannot make a mistake
: of entering land.
: may detain for a short period if he has reasonable belief
When are you privledged to make an arrest, felony, misdomeanor, what if you trepass on land
1. Misdomeaner: Breach of peace must take place infront of arrestor
2. Felony: Cop can make a reasonable mistake. Individual can only make a mistake of ID, not of crime committed
3. Invasion of land
: can enter someone's land to make arrest
4. Subsequent misconduct
: Even if can arrest must not unreasonably detain them
What are the 2 times you have a defense of Necessity, what torts is it a good defense
: to help large group not liable for damages to property
: Small group liable for damages to land
: Only for a property tort
Defamation - What are the 5 Elements to prove Defamation
1. Intent to publish, not to Defame
2. Defamatory Language
3. Concerning P
5. Damage to P reputaion
Defamation - In addition to the 5 elements of Defamation, if the defamation is of Public Concern, what is the extra element you must show, who has the burden
1. Falsity of defamatory language (burden on P to show (truth) unlike in a non- public concern where burden on D to show (false))
2. Fault - D's fault statement made
Defamation - What Damages do you need to prove if the Defamation was - Libel (written)
If it is written P does not need to prove special damages
Defamation - What Damages do you get if the defamation was Slander (verbal)
Slander is not written and you need to prove special damages
Defamation - Damages - Do you need to prove damages in Slander Per Se, what are the 4 instances of slander per se
Slander per se don't need to prove damages:
1. Adversly reflect on business or profession
2. Loathsome disease
3. Guilty of crime of moral turpitude
4. Woman is unchaste
Defamation - If Defimation of a Non-Public Figure, and it is for a Public concern - P Must Prove what 2 things. If the statement is true what else can you sure for
1. Falsity of statement
2. Fault of D
: look for Intentional Infliction of Emotional Distress
Invasion of Privacy
Defamation - If Defimation of a Public Figure P Must Prove what 2 additional things.
1. Must show Malice:
2. Knowledge it is false; or
3. Reckless Disregard of whether false
What are 2 good Defenses and two privledges to Defamation
3. Absolute privledge
: made in court, spouses, police officers
4. Qualified Privledge
: Reporting on privledge, lost if outside the privledge or malice
What are 4 Torts that violate a persons Right to Privacy
1. Appropriation of P's Picture or Name
2. Intrusion On P's Affairs or Seclusion
3. Publication of Facts Placing P in False Light
4. Public Disclosure of Private Facts
Privacy Tort - When is Appropriation of P's Picture or Name actionable
Unauthorized use for commercial gain. Mere economic benefit, not promoting a product is not enough.
Privacy Tort - What 2 elements are necessary to show an Intrusion of P's Affairs or Seclusion
1. Prying or intruding
2. Highly offensive to reasonable person
Photo's in public not actionable
Privacy Tort - What 2 elements are needed to constitute Publication of Facts placing P in False Light, what is the extra element if a public interest
1. Where one attributes P to views he does not hold
2. Highly offensive under the circumstances
3. Must be publicity
If public interest, must show malice
Privacy Tort - What 2 elements constitute a Public disclosure of private facts about P. What if the statements are true
Disclosure of Private Information
Highly offensive to ordinary person
Liability even if statement is true
What 7 elements must be present for Intentional Misrepresentation to be actionable
1. Misrepresentation - material fact. must be 2. affirmative, silence not enough
3. Scienter - Knew or believed false
4. Intent - to induce P to rely
5. Causation - Reliance
6. Justifiable Reliance
7. Damages - Actual Pecuniary loss
Negligent Misrepresentation - What 5 elements make the tort actionable
2. Breach of Duty
4. Justifiable Reliance
Interference with Biz Relations - What 4 elements make the tort actionable
1. Valid K
2. D knew of K
3. Intentional interference by D inducing breach
Abuse of Process - What 5 elements make the tort actionable
1. Instituting Criminal Proceedings (file complaint with police)
2. Terminating in P's favor
3. Abscence of probable cause
4. Improper purpose
Negligence - What are the 4 basic Elements in all negligence claims
3. Actual and proximate cause
Neglegence - Who does D owe a Duty of Care. What if D breaches a duty he owes one person but harms another
Duty is owed to all foreseeable Plaintiffs.
If D breaches a duty to P1 but injures P2, D is liable if P2 was located in the foreseeable zone of danger
Negligence Standard of Care: What is the general SOC applied in torts? How do mental deficiencies and experience impact SOC
Reasonable Person. It is objective. D's mental deficiencies and inexperience are irrelevant
Negligence - What Special Standards of Care are given to: Professionals, children, Common carriers, auto guests, bailments, emergencies
1. Professionals: Act as a reasonable professional in the field
2. Children: Held to a standard of like age, education, experience
3. Common Carriers/Innkeepers: Held to high degree of care
4. Auto driver and Guest: Owed regular duty of care
: Ordinary care, higher care if Bailee gets all the benefit
6. Emergency Situation: Act as reasonable person in same situation
Landowner Duty: What does LO owe to unknown/known Trespassers
1. No Duty to undiscovered trespasser
2. Discovered/Anticipated Trespasser must Warn or make safe
: Concealed, unsafe
Artificial Conditions, involving death or serious harm Known to Owner
Landowner Duty - What constitutes an Attractive Nuiscance and what is LO duty - what is the balance test
1. Duty to exercise ordinary care to avoid a foreseeable risk to children caused by artificial conditions.
2. Cost to protect is slight versus harm.
Landowner Duty - What does LO owe Licensee (not a invitee)
One who enters D's property expressly or impliedly for P's benefit:
1. Warn of known dangerous conditions that create an unreasonable risk of harm and licensee unlikely to discover
No need to make an inspection
Landowner Duty - What 2 things does LO owe an Invitee (customer)
One who enters D's property for D's benefit (store):
1. Warn of known dangerous conditions that create an unreasonable risk of harm and Invitee unlikely to discover
2. Make an inspection
Landowner Duty - What do you owe people that use your land for Recreation but do not pay you
Not liable to people who you let use land for recreation, if you do not charge. Except cannot willfully and maliciously fail to warn of dangerous condition or activity.
Landowner Duties - What are the respective duties of the Lessor/Lessee
: Duty to maintain premises.
: Must warn lessee of hidden dangers
Negligence - When can a court use a criminal statute to establish a duty of care - 4 requirements
Court might use a criminal statute to impute negligence if:
1. Provides criminal penalty
2. Clearly defines standard of conduct
3. P is within the protected class
4. Statute was designed to prevent the type of harm that occured
Duty- When is D liable for Neg Infliction of Emotional Distress - two requirements
1. Duty may be breached when D creates a foreseeable risk of physical injury.
1. Be within the zone of Danger- Distress caused by threat of physical impact
2. Suffer physical symptoms from distress
Duty- In addition to being in close proximity of harm, What are 3 other special situations that a person can recover for Neg Infliction of Emotional Distress
: may recover if he witnessed harm, and a close relative
2. Special Relationship between parties. Doctor/patient, if doctor mis-diagnosis.
3. Where negligence likely to cause emotional distress, like mishandling a corpse or erroneous report of relatives death
Duty - What situations require a duty that a person affirmatively Act (4)
1. Assumption of Duty: Once you help someone you have a duty to be prudent (good samaritan statutes)
2. Peril due to D's Conduct:
3. Special Relationship between parties
: Parent/child, innkeeper, employer
4. Duty to control 3rd parties
: if you have authority and ability and you know the person might harm, then may have a duty
Breach of Duty - What are the 3 ways, other than "reasonable person", that you can use to show a standard of care
1. Custom Usage
: May be used to establish breach of duty
2. Violation of statute
: may show breach
3. Res Ipsa Loquitur
: Let the facts speak for themselves Must show
Duty - What 2 things do you need in order to prove breach of duty under the Doctorine of Res Ipsa Loquitur
1. It is the type of injury normally caused by negligence
2. The instrumentality was in D's sole control.
Negligence - Causation - What is the basic test used to determine actual causation? What test do you apply if there are multiple causes? What test if two people do the exact same act at the same time?
1. General test
: "But For" test:
2. Joint Causes
: Substantial Factor Test
3. Alternative Causes Approach
: When 2 identical acts but only 1 caused the harm, then burden shifts to D to prove it was not him
Negligence - Once legal causation is determined how does Proximate Causation limit his liability?
Even though D caused the harm, he must still be legally liable. Proximate causation limits D's liability caused from unforeseeable or unusual consequences.
Negligence - When there is no intervening cause, what is the effect of Proximate Cause?
Where there is no intervening force between the breach of duty and injury, D will typically be liable for all foreseeable harm, regardless of how unusual
Negligence - When there is an intervening cause, what is the effect of Proximate Cause? What situations is the intervening cause foreseeable (6)?
Not liable for unforceeable events, but Liable for "Dependent" Intervening Forces, like:
1. Subsequent Medical Malpractice
2. Negligence of Rescuers
3. Efforts to protect self or property
4. Injuries caused by another reacting
5. Subsequent diseases from weakend body
6. Egg shell Theory - Take P as you find him
Negligence - What are the 6 recoverable Damages in a negligence case? What is not recoverable? What is the Collateral Source Rule?
1. Personal Injury
: Compensated, past, present, future
2. Property Damage
: Reasonable cost of repair
3. Punitive Damages
: If D is wanton, wilfull, reckless or malicious
: Interest from date of damage and attorney fees
5. Duty to mitigate
: Seek medical help
6. Collateral Source Rule
: Damages not reduced just because you received benefits from other source, like health insurance
Negligence - Defenses - What is the effect if P contributes to his own harm?
1. P's contribution to his harm
: P has the same duty of care to himself as to third parties. Not a defense to intentional torts.
2. May Bar or reduce P's claim
Negligence - Defenses - When does a person and assume risk (2) and what are the consequences of Assumption of Risk? Who cannot use this defense?
Denied recovery if:
1. Knew of the risk
2. Voluntarily proceeded in the face of the risk
Common carriers and utilities may not limit claim assumption of risk
Strict Liability - When is a person strictly liable for the acts of his animals (2)?
1. Trespassing Animals
: Strictly liable if your animals go on anothers land
2. Wild Animals
: Strictly Liable
3. Domestic Animals
: Not strictly liable unless you know of its dangerous propensities
Strict Liability - What is the Prima Fica case to prove strict liability of an activity (not product) (3)?
1. Nature of D's activity imposes an absolute duty to make safe
2. The dangerous aspect of the activity was the actual and proximate cause of injury
3. P suffered damages to property or person
Strict Liability- What makes an activity Abnormally Dangerous, such that it is subject to strict liability (2)?
1. Activity must create a foreseeable risk of serious injury even when reasonable care is exercised by all actors
2. Activity not a matter of common usage in the community
Products Liability - What are the 5 theories that you can recover in products liability?
3. Strict Liability
4. Implied Warranties
5. Express Warranties
Products Liability - What are the 3 Types of Defects that would give rise to a product liability case?
1. Manufacturing Defects
: One in a million
2. Design Defects
: Could have made the product safer for little money or loss of utility
3. Inadequate Warning
: May become defective because did not warn of dangers. For drugs, giving doctors the warnings is sufficient
Products Liability - What (4) elements are required to prove product Liability Based on Negligence?
Same as any negligence:
Products Liability - What are the 4 elements required to establish a case for strict product liability?
1. Commercial supplier:
2. Sale of defective product:
3. Actual and proximate cause:
: Must be physical or property damage (economic damage alone is not enough)
Products Liability - What are the Implied warrantees of Merchantibility and Fitness?
: Goods are average acceptable quality and fit for ordinary purposes
2. Fitness for a particular purpose
: Seller knows P has a specific purpose and knows P is depending on Sellers expertise
Products Liability - When is a company Liabile Based on an Express Warrantee? or a Misrepresentation about the product?
1. Express Warrantee: When a representation of the goods becomes part of the bargain for exchange
Product Liability - What are the 4 elements needed to hold a company liable for Misrepresentation about the product?
: of a Material Fact
2. Intended to Induce:
3. Justifiable reliance:
Nuisance - What do you need to prove a private and a public nuiscance?
1. Private Nuiscance
: Substantial, and unreasonable interference with an individuals
use or enjoyment
of his property that he has the right to possess.
2. Public Nuiscance
: Act that unreasonably interferes with
health, safety, property rights
of a community
Vicarious Liability - What 3 relationships can a person be held liable for the acts of another person, what 4 relationships are they not liable?
: within scope of employment.
2. Independent Contractor
: Only if a non-deligable duty.
3. Partners/Joint Ventures
4. Auto Owner/Driver
: Owner is not liable for driver. Except sometimes liable for family members or negligent entrustment
: Not liable for acts of bailee
: Not liable at common law
: Common law not liable for drunkards.