Shared Flashcard Set


Bar Study

Additional Law Flashcards




False Imprisonment

Sufficient Act of Restraint to a bounded area.

a. Threats are enough

b. Inaction is enough if there was an understanding that D wold act for P's benefit.

c. P must be aware of confinement

d. An area is not bounded if there is a reasonable means of escape which plaintiff is aware.

Intentional Infliction of Emotional Distress

Extreme and outrageous conduct and Damages.

1. Can turn into outrageous if continuous

2. Outrageousness can depend on type of plaintiff (elderly, young, pregnant)

a. However, super sensitivities are not taken into account unless D is aware of them.

3. Common Carriers and Inkeepers have a higher standard of care in making sure their behavior is appropriate to passengers and guests.

4. Damage has to be severe emotional distress.

5. Recklessness is valid enough to create intent.

6. Transferred intent is normally unavailable unless D knows that close relative is watching (i.e. D knows Grandma is watching while he beats up grandson)

Trespass to land

Act of physical invasion on land.

a. Intent does not require person to know they are entering someone else's land, but only knowledge that they are entering land.

b. Includes tangible objects

c. Includes airspace and subsurface as long as at a distance where owner could make reasonable use of that space.

Trespass to Chattels and Conversion

Trespass: An interference with plaintiff's right of possession of chattel by either intermeddling or dispossession.

1. Intent to do act that brings about interference

2. Recovery of actual damages from harm to chattel or loss of use.


Conversion: An interference with plaintiff's right of possession so serious as to warrant that D pay the chattel's full value.

1. Intent to do the act that brings about the interference.

2. Forced sale of FMV of chattel at time of conversion or recovery of the chattel.

Defenses to Intentional Torts (Consent, self-defense, Necessity, Discipline)

1. Consent: P must have capacity to consent. People who lack capacity:

a. Children

b. Mental impairment

c. Coercion

d. fraud or mistake caused by defendant

*Children are deemed capable of consenting to emergency care if reasonable attempt to contact parents.

* Watch out for implied consent due to custom and usage based on the objective reasonable person (i.e. flag football players impliedly consent to being touched).


2. Self-Defense: Self defense requires that  a reasonable person in the defendant's position would have believed he was in enough danger to use reasonable force to prevent imminent threat of force against her.

a. Modern trend requires duty to attempt retreat before use of deadly force unless you are in your own home. 

1. AZ does not require any duty to retreat

3. Necessity (only available for intentional torts to property).

a. Public necessity: an unlimited privilege to protect a lot of people.

b. Private necessity: a qualified privilege to protect a limited number of people.

1. Still responsible for actual damages caused.

4. Discipline: parents and teachers can use reasonable force for discipline.

Defamation and Defenses

1. Defamatory statement that turns out to be false, of and concerning P, that is publicized to a 3rd party, and damages.
a. name calling is not enough
b. defendant has the burden of proving truth.
a.unless a matter of public concern, then P with BOP
c. When defamation is spoken (slander), plaintiff must prove special damages. When defamation is written, broadcast (libel), or slander per se, juries may presume damages. If matter is of public concern, P must prove actual malice to recover presumed and punitive damages. Slander per se is:
1. Statements impuning trade or profession
2. Accusing P of serious crime
3. implying P has loathsome disease
4. impute unchastity to a woman
2. Defenses
a. Truth
b. Absolute privilege in judicial and legislative proceedings and between spouses.
c. Qualified privilege during course of legitimate debate or when statement serves interest of person publishing or receiving it (i.e. rec. letters)

Invasions of right to privacy and Defenses (Appropriation, Intrusion, False Light, Public disclosure of private facts)

Appropriation: Use of P's name or picture for commercial advantage without permission.

a. exception: newsworthy use.

Intrusion: interference with a P's seclusion (reasonable expectation of privacy) in a way that would be objectionable to a reasonable person.

False Light: Widespread dissemination of information that is in some way innaccurate that would be objectionable to a reasonable person.

1. Absolute and qualified privilege defenses apply.

Public Disclosure of Private Facts: Widespread dissemination of factually accurate information that would normally be confidential and disclosure of which would be objectionable to a reasonable person.

1. Exception: Newsworthy

2. Absolute and qualified defenses apply


*Consent is a defense to all of these

Fraud and Negligent Misrepresentation

1. Affirmative Misrepresentation

a. Must KNOW that  statement was false

1. Silence will not suffice

b. With intention to induce reliance (statement must be material).

c. Justifiable reliance

1. justifiable to rely on opinion of someone with superior skill/knowledge

d. Damages.


 Negligent Misrepresentation: Usually confined in a commercial transaction and confined to particular plaintiff whose reliance is contemplated.


Intentional Interference with Business Relations (Inducing Breach of contract, Interference w K relations, interference with prospective economic advantage)

1. Inducing Breach of K: an intentional action that causes 3rd person to breach an existing K with P.


2. Interference with K relations: D may be liable if interference with P's contractual relations makes performance more difficult, even if interference does not actually cause a breach.


3. Interference with prospective economic advantage: a D may be liable for interfering with a plaintiff's expectation of economic benefit from third persons, even in the absence of a K.

Plaintiffs who are foreseeable (Who D owes a duty to) as a matter of law.

1. Rescuers

2. Viable fetuses.

Arizona Duty Rules (Torts)

In Arizona, Duty is a matter of law to be determined by the court, and foreseeability is not considered because it is a matter of fact that is for a jury to determine when it comes to the causation element of negligence.

Duty that Professionals owe

A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.

*Look out for informed consent violations in medical malpractice cases (informing of risks and alternatives)

*Look out for Legal malpractice, in which P has to prove causation.


*A healthcare provider owes the duty of a prudent healthcare provider within the state in same or similar circumstances.

Duty of Owners and Occupiers of Land

Undiscovered Trespasser: No duty to undiscovered trespasser.

*However, remember that an owner cannot use unreasonable force to protect property.

Discovered Trespasser: Reasonable care regarding activities on land and to warn or fix concealed man-made death traps that you have knowledge of.

Licensee: Reasonable care and to warn or fix concealed and known dangerous conditions.

Invitee: Reasonable care and to warn or fix concealed and known (or reasonable inspection would have revealed) dangerous conditions.

*Watch out for invitees who go beyond the bounds of their invitee status by going into areas they are not invited to go in.


Child Trespasser (Attractive nuisance Doctrine) (Under 14):  a dangerous condition on the land that the owner is or should be aware of, the owner knows or should know children frequent the vicinity of the condition,  the condition is likely to cause injury (dangerous because of child's inability to appreciate risk), the expense of remedying the situation is slight compared with the magnitude of the risk.


*AZ invitee: Landowner will be liable to invitee for open and obvious conditions if landowner should have anticipated that injury would occur.

Res Ipsa Loquitur

1. The event is one that does not normally occur absent negligence

2. The injury causing instrumentality was in D's exclusive control.


*If these two things are proved, then Duty and breach are presumed and  P gets to the jury.

Alternative Tests for Causation in Fact (Substantial Factor, Burden Shifting)

Substantial Factor Test: Used in cases with multiple Defendants in a commingled case where "but for" won't work.

1. Was conduct a substantial factor in bringing the harm?

Burden Shifting: Use in cases with Multiple D's and unknown cause and "but for" wont work.

1. Burden shifts to to Defendants to prove they were not responsible.

Intervening Causes 

Will not Cut off liability if D can anticipate the intervening Cause.

1. Negligence of a third party

2. Criminal Conduct

3. Acts of God

Contributory Negligence/Assumption of Risk/Comparative negligence

Contributory Negligence:P's failure to use relevant degree of care for his or her own safety. In Contributory Negligence state, P loses the case.

a. Does not apply to intentional torts


Last Clear Chance: If D had last clear chance to avoid accident, then this may get P over the CN hoop.A


Assumption of Risk: Express AOR can be by P signing or saying that they will take their chances. Implied AOR involves knowledge of the risk and voluntary encounter with the risk. If proven in traditional Jx, P loses.

a. Does not apply for intentional torts.

a. Against public policy to sign AOR of negligent medical treatment

b. Recreational activity is fair game for AOR.

c. Absence of an alternative and emergency destroys voluntariness. 


Comparative negligence: have only retained express AOR as a valid defense. P's negligence will be taken into account for reckless and wanton conduct but not intentional conduct.



Strict Liability

An ABSOLUTE duty on the D to make safe, breach, causation, damages.

*No amount of reasonable care will relieve D of liability in a SL situation. However, harm must still be within the foreseeable risk.


1. Animals: Applies to livestock, wild animals, and domesticated animals whose dangerous propensities are known in advance.

a. Dog owner strictly liable


2. Abnormally dangerous activities: The activity must create a foreseeable risk of serious harm even when reasonable care is excersised by all actors and the activity is not a matter of common usage to the community.


3. Products liability: A merchant of product who puts an unreasonably dangerous or defective product into the stream of commerce, a defect that existed when it left the seller's hands (presumed if product moved in ordinary channel of distribution), will be strictly liable if P is injured by product when P made a foreseeable use of it.

a. Manufacturing defect: P must show that product failed to perform as safely as an ordinary consumer would expect.

b. Design defect: defect common to the entire line of products that could be eliminated via reasonable alternative designs.

*Jury can evaluate in hindsight for design defect

c. Inadequate warnings: failure to give adequate warnings to risks involved using the product that are not apparent to users.


4. Defenses:

a. Traditional JX do not bar recovery based on contributory negligence, but will bar recovery based on AOR.

*compare Ps who read and ignores instructions (AOR) with Ps who flat out ignore instructions (non-AOR)

b. Comparative Fault Jx simply apply

comparative fault principles.

1. Arizona follows the traditional rule but apply comparative fault to AOR principles.

c. Adequate warnings will usually insulate D from strict liability

1. However, if there is a feasible alternative for making product safer, the warning usually does not get D off the hook w/ regard to design deffect.

d. Foreseeable use is different from intended use.

e. If product use is incidental to performance of a service, no SL.

Private/Public Nuisance

Conduct that causes a substantially and unreasonable interference with the use and enjoyment of land.

a. Sensitivities based on average person in the community

b. Courts will weigh the equities of parties in deciding whether to enjoin D's activity.

Public: Conduct that causes physical and moral harm to the public in general.  (i.e. running a brothel)

a. Private plaintiff can maintain a public nuisance action if he has suffered a different type of harm than the public at large.

Automobile Owner-Automobile Driver liability

Generally there is no vicarious liability.

1. When driver is performing an errand for owner, liability might be premised on agency principles.

2. Minority rules

a. Family car states: owner is vicariously liable for the torts of any household member using car with owner's permission

b. Permissive Use states: Owner is vicariously liable for anyone using car with permission.

c. AZ: Car furnished by head of family to member of family for family purpose


Direct Liability/Vicarious Liability


If Vicarious liability is not available, look to see if person is directly liable for breaching a duty of reasonable care to other people.

*A gives B car keys knowing that B is drunk

* A leaves child B in car, child gets out of car and smashes cart into shopper's car.

Joint and Several Liability

Will generally apply two or more negligent acts that combine to proximately cause an indivisible injury.

a. Concerted action between two D's will allow joint and several liability regardless of whether it is divisible or not

*Abolished in AZ with a few exceptions (concert, vicarious liability)


Traditional: Paying D recovers proportional shares from other D's


Comparative: Paying D recovers based on relative fault of each tortfeasor.


*absent vicarious liability or concert, AZ does not have Contribution because each D is only responsible for their portion of the fault.

Wrongful Death and Survival

Wrongful Death: brought by decedent's benefic. for their own loss of support and companionship.


Survival: Brought by decedent's estate based on claims that deceased could have brought had she lived.

*AZ does not allow pain and suffering if P dies.

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