BARBRI Torts

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proposer24
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224407
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BARBRI Torts
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2013-06-24 18:57:54
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BARBRI Torts
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BARBRI Torts
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  1. Battery
    A harmful or offensive contact. Contact must be unpermitted.
  2. For battery purposes the contact must be with:
    the P's person or anything connected to the P's person.
  3. Assault is
    the D's placing the P in a reasonable apprehension of an immediate battery.
  4. In an Assault case, if the P knows that the gun the D brandishes is unloaded:
    No assault because the P knows the threat is empty and there is no apprehension.
  5. For assault purposes, words alone:
    cannot constitute assault.
  6. False imprisonment occurfs when
    A D commits an act of restraint that confines the P within a bounded area.
  7. For False Imprisonment purposes the P must be aware of the:
    restraint for the restraint requirement to count, or at least suffer a harm.
  8. For false imprisonment purposes the bounded area need not:
    be marked out by walls and a fence.
  9. For False Imprisonment purposes, an area is not bounded if there is:
    a reasonable means of escape that the P could reasonably have discovered.
  10. Intentional Infliction of Emotion Distress occurs when:
    The D engages in outrageous conduct and causes the P to suffer severe distress.
  11. For IIED purposes, outrageous conduct is
    conduct that exceeds all bounds of decency tolerated in a civilized society.
  12. For IIED purposes, the P need not prove:
    specific proof of physical symptoms of emotional distress.
  13. Trespass to land occurs when
    the D commits an act of physical invasion on another's land.
  14. To physically invade land a plaintiff must either:
    enter the property himself, or throw something onto the property or the air above it or soil below out to a reasonable distance.
  15. Trespass to Chattels is
    an interference with personal property that deprives possession of the chattel.
  16. Conversion is:
    the Deprivation of the chattel that is significant or total (destruction).
  17. The damages for conversion is:
    the full value of the item in question, not merely the cost of repair.
  18. The damages for trespass to chattels is:
    the cost of repair or the value of the chattel for the time deprived.
  19. Consent is a defense:
    to every intentional tort.
  20. Consent to a tort may be given only by someone with:
    the legal capacity to give valid consent.
  21. The two types of consent are:
    express and implied.
  22. Express consent is
    Explicit words granting D permission to behave in a way that would otherwise be a tort. It is not valid if obtained through fraud or duress
  23. Implied consent is given by:
    custom: the P goes to a place or engage in an activity where certain activities are routine

    Defendant's reasonable interpretation of the P's objective conduct.
  24. All consent has a scope and if D:
    exceeds the scope of consent, he will be held liable.
  25. Defense of necessity is applicable in:
    Trespass to land and trespass to chattels or conversion actions.
  26. Public necessity is:
    when a D invades P's property in an emergency to protect the community as a whole, or a significant group of people.

    Public necessity is an absolute defense. Savior of the city does not pay.
  27. Private necessity occurs:
    when the D invades P's property in order to save his own life or own property. The D will be liable for compensatory damages only, no nominal or punitive damages.
  28. Defamation is a:
    Statement that adversely affect the P's reputation that is published. There must be damages resulting from the publication and the P must be living at the time the statement is made in the US.
  29. Publication requires that the statement:
    be shared with one other person other than the defendant himself.

    Negligent publication is still a publication.
  30. Libel occurs when the defamatory is:
    captured in print or on film. Damages are presumed in libel cases.
  31. Slander is:
    spoken defamation.
  32. Slander per se need not be proved with damages. The four types include:
    1. Statements dealing with the P's business or occupation.

    2. A statement alleging that hte P has committed a crime of moral turpitude.

    3. A statement imputing chastity to a woman.

    4. A statement alleging that the P has a loathsome disease: Leprosy venereal diseases.
  33. In most slander cases, you have to offer evidence of an:
    economic harm. Social harm and emotional harm do not count as damages.
  34. The 5 Defamation defenses include:
    1. Consent

    2. Truth

    3. Absolute privilege

    4. Qualified Privilege

    5 A statement relating to to a matter of public concern.
  35. Defamation absolute privileges
    Spouses have absolute privilege in talking to one another.

    Given to government employees in the execution of their duties: In the judicial branch, anything said during legal proceedings cannot be made the subject of a defamation lawsuit which protects judges, attorneys, witnesses ETC.
  36. The defamation defense qualified privilege arises where:
    there is a public interest in encouraging candor.
  37. The two requirements for Defamation qualified privilege are:
    D must be speaking in good faith and the statement must be relevant to matters being discussed.
  38. The Defamation defense of a Statement that relates to a matter of public concern applies to:
    An item that is newsworthy and the subject of an ongoing public conversation.

    In these cases the P must prove that the statement was false.
  39. In statements relating to a matter of public concern if the P is a public figure, fault means that D mad a statement:
    knowing it was false or D was reckless in verifying the statement.
  40. In statements relating to a matter of public concern if the P is a private figure, fault means that D was:
    careless in verifying the veracity of the statement.
  41. In defamation suits in MA, every P must prove:
    negligence. An honest mistake will always protect a D from liability.
  42. The four privacy torts are:
    1. Appropriation

    2. Intrusion

    3. False Light

    4. Disclosure
  43. The Tort of Apropriation is:
    the D's use of the P's name or image for commercial purposes without P's permission. Does not apply to news articles.
  44. The tort of intrusion is:
    A D's invsasion of a P's physical seclusion in a way that would be highly offensive to the average person. This must take place in a location where there is an expectation of privacy.
  45. The tort of False Light is:
    A widespread dissemination of a major falsehood about the P that is highly offensive to the average person.

    (MA does not recognize this tort)
  46. The tort of disclosure is:
    the widespread dissemination about confidential information that would be highly offensive to the average person. (Medical/financial records)

    The facts must be truly private. Don't blame a blabbermouth on the exam just because you find hm offensive.

    This tort does not apply to newsworthy exceptions such as Mitt Romney's medical records during the 2012 election.
  47. Defamation privileges are available for the privacy torts of:
    false light and disclosure of a public fact.
  48. Four elements that a P must establish in a Negligence claim include:
    1. Duty

    2. Breach of duty

    3. Causation

    4. Damages
  49. All Ds except children mus live up to the:
    reasonable person standard
  50. If a D has specialized skill knowledge, he is judged on the reasonable person standard with:
    the skill or knowledge added to the reasonable person standard.
  51. For negligence purposes, physical characteristics such as blindness or height:
    are added to the reasonable person standard.
  52. A D owes a duty of care only to:
    foreseeable victims. Unforeseeable victims always lose negligence case.
  53. Exception to the foreseeable victims rule:
    Rescuers. Rescuer is always a foreseeable victim even if he begins the problem far away. However, the rescuer must exercise as much care as a reasonable person when acting under similar circumstances.
  54. Duty of care owed by children under the age of 5:
    None!
  55. Duty of care of a child 5 and over:
    Child is held to the standard of child of similar age, experience, and intelligence acting under similar circumstances.
  56. Child standard care of exception for children who are:
    engaged in an adult activity. (generally operating anything with an engine is an adult activity)
  57. Duty of care in malpractice claims:
    Must exercise the skill and knowledge ordinarily possessed by members of that profession in good standing in similar communities.

    MA holds all physicians to a national standard of care.
  58. Duty owed to undiscovered trespassers:
    No duty at all.
  59. Duty owed to discovered or anticipated trespasser:
    Must protect against conditions that are artificial, highly dangerous, concealed from the trespasser, and known by the owner of the land.
  60. A condition is artificial if:
    1. It is man-made

    There is no duty to protect discovered trespassers from natural conditions.
  61. A condition of land is highly dangerous if:
    the condition can kill or at least maim.
  62. A licensee enters the land with:
    permission but does not confer an economic benefit on the posessor. Friends, social invitees and people who come to the door soliciting are licensees.
  63. A possessor of land owes the lecensee the duty to protect the licensee from dangers that meet a two part test:
    1. The condition must be concealed from view.

    2. The condition must be known by the possessor.
  64. Invitees enter land with:
    permission and confer an economic benefit on the possessor, or, the land is open to the public generally. (Business customers, museum attendees, church attendees.)
  65. Firefighters and police officers can never recover for injuries that:
    ate inherent to their job. There job is an assumption of the risk that they might get injured on the property.
  66. A possessor of land owes a trespassing child a duty of:
    reasonable prudence to protect the child from an artificial condition.
  67. A possessor of land should consider the following when considering the risk of protecting children from artificial conditions:
    1. How likely is that that children are going to trespass?

    2. Is there an object that would attract kids to the property?
  68. A possessor of land can satisy their duty by either:
    1. Fixing the problem.

    2. Giving a warning.
  69. In MA there are only two types of entrants:
    Lawful and unlawful entrance.
  70. MA lawful entrances:
    Invitees and licensees are bot owed a general degree of reasonable prudence. Facts dictate the degree of care.
  71. MA unlawful entrance:
    No duty of care at all. Doesn't matter if they're undiscovered.

    Exception: If there is a trespasser and you know that the person is in a position of peril, you have a duty to help or prevent injury.
  72. The duty to act affirmatively:
    does not exist as a general unless a special relationship exists, the D causes the peril, or the D voluntarily assumes the risk of rescuing.
  73. Special relationships that give rise to a duty to act affirmatively:
    Formal relationships: Landowner - invitee, innkeeper - resident.
  74. The MA good Samaritan Law protects only:
    physicians, physician assistants, nurses, EMTs when they are on duty, cops, and firefighters.
  75. An NIED case emerges when:
    there is a negligent D who does not cause a direct physical injury to the P, but causes emotional distress.
  76. NIED near miss cases occur when the negligent D did not:
    physically hurt the P, but he almost did.
  77. Legal standard for NIED near miss cases:
    Negligent D must have placed the distressed P in a zone of physical danger.

    P must also show subsequent physical demonstrations of his distress (heart attack, rash etc.)

    Anyone outside the zone of physical danger cannot recover in a near miss case.
  78. NIED bystander claims involve a negligent D who:
    hurts or kills X and the distressed because he is sad about this.
  79. in Bystander NIED cases the P must show:
    That he is a close family member of x.

    That P was a contemporaneous observer of the incident as it happened.

    In MA you don't have to see the incident, it is enough to arrive on the scene while the victim is still there.
  80. NIED relationship cases occur when:
    the P and D are in a business relationship and it is highly foreseeable that careless performance will induce significant distress.
  81. A breach of duty is:
    A fact plus a reason why the D's conduct was unreasonable.
  82. Res Ipsa Loquitor
    Doctrine used by P's who don't know what the D did wrong. It is used in an information vacuum.
  83. The tow requirements for Res Ipsa Loquitur are:
    1. P must convince court that the accident is one normally associate with negligence (Ordinarily the incident doesn't happen without negligence.)

    2. Must show that the D had control of the instrumentality that caused the injury.
  84. Factual causation links the:
    negligence to the injury. But for the D's breach of duty, the P would be uninjured today. Not used in certain cases with multiple defendants.
  85. Merged causes:
    1. Two negligent defendant's, two destructive forces, merger, and then injuries.
  86. In merged causes the test used should be the substantial factor test which asks:
    Whether each breach was a substantial factor in causing the harm. It is if the factor could have caused the damage all by itself.
  87. Unascertainable causes:
    Burden of proof shifts to the D to prove that it was not him who committed the breach. If there is no way for a D to prove that he is not the cause, hold them both jointly and severally liable.
  88. Proximate cause is all about fairness and the legal test is:
    whether the consequence of the D's actions were foreseeable.
  89. Intervening medical negligence:
    D is liable for injuries sustained by the P from medical incompetence that arise from the D's negligent conduct.

    Court thinks that it is foreseeable that a victim could suffer further harm from negligent medical care.
  90. Intervening negligent resuce:
    when you hurt someone, it is likely that rescuers will be attracted and there is a possibility that they will make the injury worse. The D will be liable for that injury.
  91. Intervening protection or reaction forces:
    when a D is careless and produces an emergency situation, people may react badly and hurt others in their attempt to escape. The D will be liable for those injuries sustained during the stampede.
  92. Subsequent disease or accident:
    the D will be liable for any further injury that arises as a result of the initial injury.

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