Torts & Civil Procedure Flashcards

Vocabulary-style flashcards covering key definitions and doctrines in Torts and Civil Procedure based on the lecture transcript.

Battery

Requires (a) an act bringing about harmful or offensive contact, (b) intent to bring about contact to P, and (c) causation. Under substantial certainty, actor knows with substantial certainty that consequences would likely result in harmful or offensive contact.

Self-Defense

A privilege raised when force is reasonably necessary to prevent death or serious bodily harm; it does NOT permit retaliation or revenge.

Duty (Child Standard)

A child is expected to conform to the conduct of a reasonably careful person of the same Age, Intelligence, and Experience (A.I.E.).

Privilege of Necessity

Raised when a trespasser uses a landowner's land to escape peril

Public necessity: protect community as a whole, absolute defense for trespass and damages;

Private Necessity: protect own interest only if emergency is not of his own making, only defense for trespass - D still liable for actual harm.

Attractive Nuisance Doctrine

Landowner liability for artificial conditions where: (1) kids are likely to trespass; (2) condition involves unreasonable risk of death or serious harm; (3) kids do not recognize risk due to youth; and (4) owner's utility and burden to eliminate danger is slight.

Conversion

An intentional act depriving P of possession of chattel or interference so serious it deprives P of its use. Damages are based on the Fair Market Value at the time of conversion.

Punitive Damages

Damages based on malicious intent and ill will, such as a trespass committed with bad intent.

Compensatory Damages

Damages based on emotional distress and/or tampering with property.

Use of Force to Protect Property

Permissible if reasonable to prevent or end a trespass or protect property; force threatening serious bodily injury is prohibited unless the defender is in danger of serious bodily harm.

Trespass to Chattels

Occurs when D intentionally interferes with P's use or possession of a chattel, including taking the chattel out of P's possession.

Res Ipsa Loquitur (RIL)

Establishes breach of duty if (1) the event normally doesn't happen without negligence; (2) harm was caused by D's exclusive control; and (3) P did not cause the event.

IIED (Intentional Infliction of Emotional Distress)

Requires (1) extreme and outrageous conduct by D; (2) intent or recklessness; (3) causation; and (4) damages via severe emotional distress

Proximate Cause

 If D is direct cause, result is foreseeable unless freakish and bizarre.

If indirect cause: D always liable for intervening medical negligence; negligence rescue; protection or reaction forces; and subsequent disease or accident.

No liability if intervening force is crime or intentional tort.

But-For Test (Cause in Fact)

Single D: “But for” test.

Multiple D:

• merged or mingled causes → substantial factor;

• unascertainable cause → shift burden of proof to D

Contributory Negligence / Assumption of Risk

P may be denied recovery if they assumed the risk. Implied AOR involves knowing a risk an average person would appreciate; voluntary AOR requires an available alternative.

Joint & Several Liability (Two Tortfeasors)

When two tortfeasors cause an indivisible injury, each is liable for the entire injury, and P may recover the full judgment from either defendant.

Contribution vs. Indemnity

Contribution allows a tortfeasor who pays more than their fair share to recover the excess from others; indemnity shifts the entire loss to the party primarily responsible.

Common Carrier Duty

Duty to (1) keep flight conditions reasonably safe; (2) conduct operations w/ reasonable care for customers; and (3) protect customers from foreseeable harmful/criminal 3p acts

Pure Comparative Negligence

P may recover damages minus the percentage of their own fault, even if P was more at fault than the other parties.

Corporation Citizenship (Diversity Jurisdiction)

A corporation is a citizen of every state of incorporation and the one state of its principal place of business. Complete diversity requires no state matches on both sides of the case.

Aggregation (Amount in Controversy)

The ability for 1 plaintiff to add all claims against 1 defendant together to meet the amount-in-controversy requirement.

Erie Doctrine

In federal diversity cases where state and federal law differ, federal law (Constitution, statutes, or FRCP) trumps state law.

Rule 12 Waiver

Certain defenses are waived if they are not raised in the defendant's first response to the court.

Supplemental Jurisdiction

Attaches when a claim arises from the same nucleus of operative fact as a claim properly in federal court; for diversity, additional plaintiffs' claims generally lack restrictions.

Venue

Proper in (1) a district where any D resides if all reside in the same state, or (2) the district where substantial events occurred. P's residence is NOT a proper venue.

Service of Process

Process may be served according to the law of the state where the court sits or where the service actually occurred.

Relation Back Rule

Treats an amended pleading as filed on the original date if: (1) it arises from the same transaction; (2) the new D had timely notice; and (3) the new D should have known they were the intended defendant.

Ex Parte TRO

Granted without notice if the mover: (i) shows immediate/irreparable injury via affidavit; (ii) certifies in writing the efforts to give notice/why notice isn't required; and (iii) provides security for potential wrongful enjoinment costs.

Permissive Joinder

Parties join as plaintiffs or defendants if: (i) claims relate to the same series of transactions or occurrences; and (ii) there is a question of law or fact common to all parties.

Impleader (Third-Party Claims)

A defending party joins a nonparty who is or may be liable to the defendant for all or part of the plaintiff's judgment against the defendant.

Motion to Compel (Discovery)

The prevailing party usually recovers costs, provided they certified a good faith effort to confer with the other side first. Sanctions are not available for wrongful objections alone.

Use of Depositions at Trial

Used against parties with notice: (i) to impeach; (ii) for any purpose if deponent is dead, > 100 miles from trial, or unable to testify; or (iii) for any purpose if the deponent is an adverse party.

Voluntary Dismissal

P can dismiss once without prejudice before an answer or MSJ. Later dismissal requires a court order or stipulation. Counterclaims must be able to remain pending independently for dismissal.

Default Judgment

If D has appeared, the judge must enter the order and D must receive additional notice before the judgment is entered.

Appeal — Final Judgment Rule

Orders cannot be appealed until a final judgment is issued, except for the granting or denying of a preliminary injunction, which is appealable as of right.

Claim Preclusion (Res Judicata)

Bars action if: (i) there is a prior valid final judgment on merits; (ii) same claimant vs. same defendant; and (iii) same cause of action (arising from same transaction/occurrence).

Strict Liability — Foreseeable Risk of Harm

D's failure to foresee a risk does not negate a claim for abnormally dangerous activities; P only needs to show a reasonable person could have foreseen the risk.

Strict Liability — Attempts to Flee from Wild Animal

Includes liability for harm resulting when a person attempts to flee from what they perceive to be a dangerous wild animal.

Strict Liability — Domestic Animals

Owners are not strictly liable for domestic or farm animals unless the owner has knowledge of the animal's abnormally dangerous propensities for its species.

Strict Liability vs. Negligence (Products)

Strict liability focuses on the product itself; evidence of care, inspections, or opportunities to discover defects suggests a negligence theory rather than strict liability.

Intermediary Negligence (Products Liability)

An intermediary's negligent failure to discover a defect is not a superseding cause; the original supplier of the defective product remains liable under negligence or strict liability.

Products Liability — Theories of Recovery

Claims can be brought under (i) intent; (ii) negligence; (iii) strict liability; (iv) implied warranties; and (v) express warranties.

Products Liability — Prima Facie Case

P must show 1) that D was a merchant routinely dealing in goods of this type; 2) defective product; 3) existence of defect when product left D’s control; and 4) that P was making foreseeable use of the product at the time of injury.

Misrepresentation (Products Liability)

Usually based on strict liability; occurs when a seller's material misrepresentation induces justifiable and actual reliance, causing proximate cause and damages.

Strict Liability Torts

P must prove: i) existence of an absolute duty to make safe; ii) breach of duty; iii) actual and proximate cause of the P’s injury; and iv) damage to the P’s person or property.

Ultra hazardous activity

SL if P proves 1) activity cannot be made safe given existing technology; 2) activity poses severe risk of harm; 3) activity is uncommon in the area where it’s conducted.

Defenses to Negligence

CONTRIBUTORY NEGLIGENCE: minority → contributory

negligent P is barred from recovery. Last clear chance applies.

ASSUMPTION OF THE RISK: min. P knew of risk and

voluntarily proceeded.

COMPARATIVE NEGLIGENCE: P failed to take proper degree of

care for their own safety. Jury assigns % of fault.

Pure comparative fault → strictly by the numbers.

Partial/Modified comparative fault → P recovers % only if fault

is < 50%. Last clear chance does not apply

DEFECTIVE PRODUCT:

Meet element 2 of “Product Liability” test

• Manufacturing defect: product differs from others off assembly line + failed to perform as safely as ordinary consumer would expect.

• Design defect: all products in the line are dangerous. D has duty to use alternative design if alternative is i) safer; ii) economical; and iii) practical

• Inadequate warnings: consumers must be warned of residual risks, preferably at point of use, using more than words, e.g. icons or pictures.