Gould's Bar Exam Flash Cards for Torts

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Gould's Bar Examination Flash Card Series

GOULD’S BAR EXAM FLASH CARDS FOR TORTS

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TORTS SHOPPING LIST

1. NEGLIGENCE. 2. PRODUCTS LIABILITY. 3. STRICT LIABILITY. 4. DEFAMATION. 5. BUSINESS AND PRIVACY TORTS. 6. MISREPRESENTATION, WARRANTY. 7. NUISANCE. 8. INTENTIONAL TORTS, NIED. 9. RESPONDEAT SUPERIOR, JOINT LIABILITY. 10. REMEDIES.

NEGLIGENCE

DUTY.

STANDARD OF CARE.

BREACH OF DUTY

ACTUAL CAUSE.

PROXIMATE CAUSE.

DAMAGES.

DEFENSES.

REMEDIES.

NEGLIGENCE, CON’T

© GOULD’S LEGAL EDUCATION 2011 http://www.GouldsLegalEducation.com NEGLIGENCE, CON’T DUTY. Cardozo (Majority), Andrews (Minority). Obligation, Recognized by Law, for Defendant to Protect Others Against Unreasonable Risk of Harm. Plaintiff has the Initial Burden of Production through a Prima Facie Showing of Negligence, Such that the Evidence Shows that a Reasonable Jury May Find for the Plaintiff. Preponderance of the Evidence During Trial.

STANDARD OF CARE. Apply Applicable Standard.

BREACH OF DUTY. HAND FORMULA. BPL. Burden for Defendant to Have Acted Reasonably Weighed Against Probability of Harm Multiplied by Liability. NEGLIGENCE PER SE. Safety Statue or Regulation. Plaintiff Part of Protected Class. Type of Injury Meant to Be Protected Against. Defenses Has No Excuses. RES IPSA LOQUITUR. “The Thing Speaks for Itself.”

ACTUAL CAUSE. But For Test, Substantial Factor Test.

PROXIMATE CAUSE. Forseeability: Eggshell Skull Plaintiff, Transferred Intent. Intervening Events: Superseding Events.

DAMAGES.

DEFENSES. Contributory Negligence: Last Clear Chance, Contributory per se. Comparative Negligence: Pure, Modified. Assumption of the Risk: Express, Implied, Recreation.

REMEDIES. © GOULD’S LEGAL EDUCATION 2011 http://www.GouldsLegalEducation.com Gould's Bar Examination Flash Card Series

STANDARDS OF CARE

REASONABLE PERSON STANDARD. Physical Disability, Intoxication, Mental Characteristics, Children, Emergency Situations.

STANDARDS OF CARE FOR LANDOWNERS. Natural Hazards Outside of Property. Hazards on Property. Natural Hazards, Adult Trespassers, Constant / Known Trespassers, Attractive Nuisance for Children, Licensee, Invitee.

PROFESSIONAL STANDARDS / MALPRACTICE.

PRODUCTS LIABILITY. Businesses.

AUTOMOBILES. Negligent Entrustment.

VENDORS OF ALCOHOL. Commercial Vendors, Commercial Hosts / Business Parties, Social Hosts.

FAILURE TO ACT / NONFEASANCE. Rescue Doctrine, Special Relationships, Cause of the Peril, Good Samaritan Rule.

COMMON CARRIERS, INNKEEPERS, PUBLIC UTILITIES.

STRICT PRODUCTS LIABILITY

PROPER PARTIES. Proper Plaintiff. Proper Defendant.

PRODUCT DEFECT. Manufacturing Defect. Consumer Expectation Test. Design Defect. Risk / Utility, Feasible Alter. Design, Consumer Expectation Test. Inadequate Warnings / Instructions.

ACTUAL CAUSE. But For Test, Substantial Factor Test

PROXIMATE CAUSE. Foreseeability, Intervening Events

DAMAGES.

DEFENSES. Assumption, Comparative, Plaintiff Misuse, Product Alteration, State of the Art, Regulatory Compliance.

REMEDIES.

STRICT LIABILITY IN NEGLIGENCE

ANIMALS. Trespassing Animals. Wild V. Domestic Animals.

ULTRA-HAZARDOUS / ABNORMALLY DANGEROUS ACTIVITY. Activity Cannot Be Made Safe Even with Exercise of Reasonable Care. Potential Harm is High. Value of Activity Does Not Outweigh Danger to Community. Inappropriate Activity for Community.

CAUSATION. Actual Cause. Proximate Cause.

DEFENSES. Scope of the Risk. Abnormally Sensitive Activity by Plaintiff. Assumption of the Risk.

DEFAMATION

FALSE STATEMENT CONCERNING PLAINTIFF. Colloquium. Opinion.

IMPUGNING REPUTATION. PUBLICATION / COMMUNICATION. Negligent Communication. Actual Malice for Public Officials. Private Person in Public Controversy.

HARM TO PLAINTIFF. Monetary. Slander per se.

DEFENSES. Truth, Absolute Privilege, Qual. Privilege, Opinion, Retraction, Consent.

REMEDIES. Monetary, Punitive, Loss of Friendship.

BUSINESS AND PRIVACY TORTS

BUSINESS TORTS. INTERFERENCE WITH CONTRACT. INJURIOUS FALSEHOOD. INTERFERENCE WITH PROSPECTIVE ADVANTAGE.

PRIVACY TORTS. FALSE LIGHT PUBLICITY. MISAPPROPRIATION OF IDENTITY. INTRUSION OF SECLUSION. UNDUE PUBLICITY OF PUBLIC LIFE.

MISREPRESENTATION

INTENTIONAL MISREPRESENTATION / DECEIT / FRAUD. FALSE MATERIAL STATEMENT. SCIENTER. JUSTIFIABLE RELIANCE BY PLAINTIFF. DIRECT DAMAGE TO PLAINTFF. OPINION AS A DEFENSE. REMEDIES.

NEGLIGENT MISREPRESENTATION. JUSTIFIABLE RELIANCE.

FRAUDULENT CONCEALMENT.

WARRANTY

© GOULD’S LEGAL EDUCATION 2011 http://www.GouldsLegalEducation.com WARRANTY WARRANTY. Privity. Plaintiff May be the Purchaser, Family Member, or Guest, and Defendants are Anyone in the Distributive Chain.

Express Warranties. Cannot be Disclaimed. Affirmations that are More than Opinions. May Include the Use of a Sample or Model.

Implied Warranties. Merchantability. Arises Automatically Out of a Merchant Sale, that Goods are of Fair or Average Quality. Fitness for a Particular Purpose. Where Buyer Relies on Seller’s Expertise to Purchase and Item, and Seller is Aware of the Reliance.

Limitations. May Include Recoverable Amount, Return and Refund Amounts, and Replacement, but May Not be Unconscionable by Limiting Personal Injuries.

Disclaimers. For Implied Warranties, if Clearly Written, Conspicuous, Including the Word “Merchantability.” © GOULD’S LEGAL EDUCATION 2011 http://www.GouldsLegalEducation.com Gould's Bar Examination Flash Card Series

NUISANCE

PUBLIC NUISANCE. Substantial Harm for Citizens. Particularized Damage for Individuals.

PRIVATE NUISANCE. Land Owner. Substantial and Unreasonable Interference with Use and Enjoyment of Land.

DEFENSES. Self-Abatement. Coming to the Nuisance. Contributory Negligence. Assumption of the Risk. Ultra-Sensitive Plaintiff.

REMEDIES. Compensatory Monetary Damages. Injunction.

INTENTIONAL TORTS

INTENTIONAL TORTS.

ASSAULT.

BATTERY.

FALSE IMPRISONMENT.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS / IIED.

TRESPASS TO LAND.

TRESPASS TO CHATTELS V. CONVERSTION. Factors. Duration, Inconvenience, Amount of Harm, Good or Bad Faith, Amount of Dominion and Control, Scope of Consent.

DEFENSES. Self-Defense, Defense of Others, Necessity, Consent, Re- Capture of Chattels, Arrest, Shop-Owner’s Privilege, Discipline, Justification.

VICARIOUS LIABILITY

RESPONDEAT SUPERIOR. Employee V. Contractor. Scope of Employment. Frolic and Detour.

PARENTAL LIABILITY FOR CHILD. Child as Agent of Parent. Lack of Parental Supervision.

AUTOMOBILES. Negligent Entrustment.

TWO OR MORE DEFENDANTS

JOINT and SEVERAL LIABILITY. Contribution. Indemnification.

RESPONDEAT SUPERIOR. Employee or Independent Contractor. Scope of Employment. Frolic and Detour.