1
Q
In a traditional JDX what is the recovery rule for joint and several liability for co-defendants?
A
P may collect the entire amount from either Defendant and then the paying defendant may seek repayment from the nonpaying D.
2
Q
What 5 Torts may intent be transferred?
A
- Assault
- Battery
- Trespass to Land
- Trespass to Chattel
- False Imprisonment
3
Q
What is required to prove Battery in Civil court?
A
P must prove an intentional act by D which brings about harmful or offensive contact. D must desire or there must be substantial certainty that P would be contacted.
4
Q
What does improper sexual touching constitute as?
A
Battery
5
Q
What must be proven for civil liability for Assault?
A
Intentional act by D that creates reasonable apprehension of imminent harmful or offensive contact.
6
Q
What is required to prove False Imprisonment?
A
P must prove an intentional act or omission by D that confines or restrains P to a bounded area. Restraint includes physical force
7
Q
What does the Shopkeeper’s privilege protect?
A
A shopkeeper who suspects of shoplifting and details that individual to ascertain whether this is true. For this privilege to apply these conditions must be satisfied:
- There must be a reasonable belief as to the theft
- Detention must be conducted in a reasonable manner
- The period of detention may only be for a reasonable time and only for the purpose of making an investigation.
8
Q
What is required to prove Intentional Infliction of Emotional Distress? IIED?
A
P must prove that an act by D that is extreme and outrageous conduct, with intent (or reckless conduct) to cause P to suffer severe emotional stress.
9
Q
When does IIED extend to a third party?
A
- P was present when the injury occurred to the other person
- P was a close relative of the injured person; and
- D knew that P was present and a close relative of the injured person.
10
Q
What are the elements to Tresspass to Land?
A
- P must prove an intentional act by D caused a physical invasion of P’s real property.
- D does not need to enter on the land, the invasion can be accomplished by D causing objects to enter the land.
- A trespass to land may also occur when D enters land lawfully and remains on the land after permission has lapped.
- Someone must be in actual possession of the land
11
Q
What are the elements for Trespass to Chattels?
A
- An intentional act of D that interferes with P’s right of possession in the Chattel, which causes damages. Must intend the act to interfere with possession.
- Interference with a right to possess chattels is usually either by intermeddling which is damage to the chattel or by dispossession which takes the possession from P.
12
Q
What is the distinction between Trespass to land and Trespass to chattels?
A
- Trespass to land deals specifically real property and chattel is personal property
- Actual damages must be proven to succeed on a Trespass to Chattels.
13
Q
What are the elements of Conversion?
A
- An act by D interfering with P’s right of possession in the chattel that is serious enough in nature or consequence to warrant that the D pay for the full value of the chattel.
- Intent to perform the act that causes the interference
- Causation.
14
Q
What are the basic Conversion remedies?
A
- Damages amounting the fair market value of the chattel
2. If P wishes to have the chattel returned then he can ask for Replevin
15
Q
How do you determine the difference between Trespass to chattels and Conversion?
A
Degree of damage. Conversion is a LOT of damage. Trespass is simply damaged.
16
Q
What are the types of Consent that may constitute as a defense against an intentional tort?
A
- Express
- Mistake—Unless D knew of Mistake and used it to obtain consent.
- Duress/Fraud—not a valid defense
- Implied—voluntarily engaging in a dangerous activity or in Emergency situations or by Usage and Custom.
- Consent may not be obtained by incompetent persons or for crimes.
17
Q
When may Self Defense be used in a Civil suit?
A
D may use such force as is necessary prevent potential injury to D that D reasonably believes is about to be committed.
18
Q
What are some effects of Res Ipsa Loquitur?
A
- Creates a Prima Facie case for the plaintiff
- Prohibits Summary Judgment
- No directed verdict for D may be granted
19
Q
What effect does proximate cause have on liability?
A
It limits liability.
20
Q
When may Necessity be used a defense?
A
Trespass to land, Trespass to Chattel, and Conversion
21
Q
Which Necessity is an absolute defense and which is not?
A
Public Necessity–Absolute defense. No damages owed.
Private Necessity—Liable for actual damages.
22
Q
What is the Merchant’s Privilege?
A
A shop owner is not liable for false imprisonment for reasonably detaining a suspected shoplifter, even if no shoplifting occurred.
23
Q
What is the difference between Libel and Slander?
A
Libel is written or recorded defamatory statements. Slander is spoken defamation.
24
Q
What is Colloquim?
A
When a statement is not defamatory or identifying on its face. P must prove that a reasonable person would know it was P.
25
When is publication satisfied?
When there is a communication to a third person who understood it.
26
What are the consequences of republication or repeating a defamatory statement even if coupled with a statement that speaker does not believe the statement.
The person repeating the statement is still liable for defamation.
27
Who does Qualified Privilege apply to?
Professors, employers, credit bureaus, and people reporting crimes
28
What are the four commonly recognized actions for Invasion of Privacy?
1. Appropriation of P's image or likeness for commercial advantage.
2. Unreasonable intrusion by D upon P's affairs or seclusion--examples: wiretapping. MUST be highly offensive and an intrusion into something private.
3. Publication by D of facts placing the P in a false light by attributing views or beliefs which a reasonable person would find highly offensive. Actual malice must be proven.
4. Public disclosure of private facts about D. Disclosure needs to be in a very public manner. Facts may be true, but are not apart of public record nor a matter of legit public concern.
29
What is a defense to invasion of privacy?
Consent. Must be actual consent.
30
Who does the right to privacy actions not apply to?
Corporations
31
What are the elements of fraudulent misrepresentation?
1. Must be a material fact
2. Must have a special relationship or a duty to disclose
3. Silence does not satisfy duty to disclose
4. Must prove D made a representation knowing it to be false or at least with reckless disregard for the truth (Scienter--without the intent, it is not fraudulent misrepresentation. it is then negligent misrepresentation)
5. Must be intended to be relied upon
6. There must be a reasonable reliance
7. Actual Damages
32
What tort covers misrepresentation made by D in the course of D's business?
Negligent Misrepresentation.
Only person whom D prepared the statement for,
Must have justifiable reliance
Must show actual damages.
33
What are the elements of Interference with Business Relations?
1. D must have intent to interfere with the existing or prospective contractual relationship of P.
2. Must prove actual damages from the interference but may also recover mental distress damages and punitive damages where appropriate.
3. Interference is privileged if the company is in competition with P's company or if D is trying to obtain business or protect its own interests.
34
What are the elements of Malicious Prosecution?
1. D must have initiated a criminal proceeding against P. Such as by warrant, arrest, indictment, etc.
2. Prosecuting attorneys and judges are ABSOLUTELY privileged.
3. Must establish D initiated the prior proceedings without probable cause
4. P's prior court action must have been terminated in her favor---etc. acquittal, dropped charges, etc. Termination must illustrate P's innocence.
5. Damages must be proven. Punitive damages are often awarded
6. P must prove that D's primary purpose in instituting the prior action was something other than bringing a person to justice.
35
To whom is a general duty owed in negligence cases?
Foreseeable Plaintiffs
36
Who is a Foreseeable Plaintiff under the Cardozo Majority View?
Must be within the Reasonable Zone of Danger.
37
What is the Minority Andrews view of foreseeable plaintiffs in Negligence cases?
A duty of care is owed to EVERYONE.
38
What is the "Firefighter's rule?"
Bars firefighters and police from recovering for injuries caused by the risks of a rescue.
39
Are Rescuers foreseeable so as to maintain to the chain of liability?
Yes. So long as their rescue attempt is not Wanton.
40
What is not considered when determining the standard of care in a Negligence case?
Mental Disabilities. Insanity is not a defense.
41
What disabilities are considered in determining the standard of care?
Physical Disabilities
42
What standard of care is a child expected to conform to?
A child of like:
1) Age
2) Knowledge
3) Education
4) Experience
43
What standard is applied for Specialist's extra knowledge and training?
A National Standard
44
What is the standard care owed to a passenger of an Automobile by the Driver?
Majority: Ordinary Care.
Minority: Only Gross Negligence or Recklessness
45
What duty is owed by landowners for natural conditions on the land?
NONE
46
What is the definition of a trespasser what duty of care is owed?
A person on the premises without permission or privilege.
Undiscovered Trespassers: No duty if T is injured by an artificial condition, natural condition or activity.
Discovered Trespassers: No duty if injured by a natural condition or nondangerous artificial condition. There IS a duty to warn and make safe if injured by a highly dangerous artificial condition. Reasonable Duty of Care owed.
47
What is the Attractive Nuisance Doctrine?
Imposes a reasonable duty of care to avoid a risk to children caused by artificial conditions on his property of which D is aware (Trampoline, pool, etc).
1. Owners must also know children frequent the area of the dangerous condition,
2. The child is incapable of appreciating the risk
3. The expense of making the risk safe is slight compared to the danger
* *The artificial condition need not be the motive of the child's trespass.
48
What is a Licensee and what Duty of Care is owed?
A person who enters the land with the landowner's permission for her own benefit, a social guest. Owner owes licensee reasonable duty of care to warn or make safe non-obvious dangerous conditions that owner knows about.
49
What is an Invitee, what are the two types, and what standard of care is owed to them?
Business Invitee: Connected with business or other interests of the landowner
Public Invitee: Enters for the purpose of the land. Held open to the public. (Museum)
Standard of care is same reasonable duty to warn or make safe as is required for licensees, but also an additional duty to make reasonable inspections of the property and make them safe or properly warn against.
50
What does Res Ipsa Loquitur (RIL) Do?
Avoids a directed verdict. Does NOT create a presumption of negligence nor does it shift the burden of proof to D. It simply says, that this injury could not have happened in the absence of negligence.
It proves that more likely than not D committed the negligent act because of D's Exclusive Control of the injury causing instrument.
RIL Cannot be used for multiple Defendants.
51
What is Negligence Per Se
Negligence as a matter of law. Here D violated a statute that meets the criteria below and thus is liable for negligence. It must be proven that P is:
1) Apart of the class of persons the statute was designed to
2) The statute must be clear as to what conduct is expected, where when and of whom it is expected.
3) Compliance with the statute is relevant but not conclusive. A reasonable person may need to go beyond a statute's requirements.
52
What test is used to determine causation with multiple tortfeasors?
Substantial Factor Test.
53
Who is the cause of the injury if two or more D's NOT acting Jointly and either one of their negligence would have caused the entire injury?
Both.
54
What happens when there are two or more D's and it is not clear who is the actual cause of the injury?
Burden shifts to Ds to establish they were NOT the cause.
55
What is Proximate Cause?
The Legal Cause. May not have been the actual force that caused the injury, but is responsible for putting the force in motion.
56
How are crimes and intentional torts generally held as a superseding cause?
Unforeseeable so as to terminate the extend of D's liability at the commission of either the crime or tort. UNLESS, D's negligence created a foreseeable risk they would occur.
57
What does the Doctrine of Contributory Negligence do to P's recovery if P's conduct was unreasonable and a proximate cause of her injuries?
P collects nothing. No matter what percentage of negligence P is held to be, it completely bars P's recovery.
58
What is PURE Comparative Negligence?
Majority View. P's recovery is diminished by the percentage of negligent she is found to have been. MBE Uses PURE Comparative Negligence
59
What is the Modified Comparative Negligence Rule?
If P's negligence is 50% or above, P is barred from recovery.
60
What are some Product Liability Hints?
1. When the theory is Negligence, wholesalers and retailers will NOT likely be liable.
2. An adequate warning usually insulates a defendant from strict liability.
3. When a question refers to a feasible alternative for making a product safer, it often signals that you should find the defendant liable on a design defect theory.
61
What are the elements for a Nuisance Claim?
D's unreasonable interference with P's use or enjoyment of the property. Examples include: Noise, light, and odors
The harms are balanced against the utility of the activity. Consider area, frequency, and time of day.
62
What is a public nuisance? Are private suits allowed for a public nuisance?
Occurs when the health and safety, or property rights of the public are affected. A private suit for a public nuisance is possible only if P can prove a unique injury not suffered by the public.
63
What are Defenses to a Nuisance claim?
"Coming to the Nuisance"--Existed before P moved there.
| Reliance on Legislative Authority
64
When is an employer liable for the tortious acts of his Independent Contractor?
If the IC is engaged in inherently dangerous activities. Duty is non-delegable.
65
What is the general Rule of Recovery for Joint Tortfeasors?
Joint and Several Liability. P may collect the overall award in any ratio he chooses from the D's to total the designated award.
66
What is the Rule of Contribution?
Any joint tortfeasor required to pay more than their share of the liability may seek indemnity from the other Tortfeasors who did not pay their share .
Bar Prep
flashcards
Decks in class (15)
# Cards
-
Torts66
-
Contracts4
-
Texas Civil Procedure45
-
Agency & Partnership33
-
Community Property & Family Law94
-
Constitutional Law146
-
Bankruptcy8
-
Consumer Law23
-
Texas Criminal Procedure & Evidence42
-
Secured Transactions15
-
Civil Procedure8
-
Wills, Trusts, & Estates6
-
Property Law4
-
Corporations3
-
Colorado Family Law2
