BAR: TORTS

Question 1

Transferred Intent

Answer 1

The intent to commit a certain tort against one person is “transferred” to the tort automatically committed or to the person actually injured for purposes of establishing a prima facie case.

Applies when D intends to commit a tort against one person but instead:
- commits a different tort against the person;
- commits intended tort but against a different person; OR
- commits a different tort against a different person

Note: only applies to assault, battery, false imprisonment, trespass to land, and trespass to chattels.

Question 2

Assault

Answer 2

Assault
(1) D intentionally
(2) Places P in reasonable apprehension
(3) Of an immediate or offensive touching
(4) With P’s person.

Question 3

Battery

Answer 3

Battery
(1) D intentionally
(2) Commits a harmful or offensive contact
(3) With P’s person

Question 4

False Imprisionment

Answer 4

False Imprisonment
(1) D intentionally act
(2) Causing P to be confined to a bounded area with no reasonable means of escape
(3) Where P is aware of OR is harmed by the confinement.

Question 5

Intentional Infliction of Emotional Distress (IIED)

Answer 5

IIED
(1) An intentional or reckless act by D
(2) Amounting to extreme and outrageous conduct
(3) Causing severe Emotional Distress

Extreme or Outrageous conduct: Conduct that transcends all bounds of decency, if not normally outrageous can become so if:
(i) continuous in nature
(ii) Directed toward a certain P (child, super sensitive if known to D, elderly, pregnant)
(iii) Committed by a certain D (common carrier, innkeeper).

Question 6

Bystander IIED

Answer 6

If D intentionally causes physical harm to a 3rd party and Plaintiff who is outside the zone of danger suffers severe emotional distress she may recover by showing prima facie elements of IIED or

(i) She was present when the injury occurred
(ii) She is a close relative of the 3rd Party, and
(iii) D knew she was present and she was a close relative
***if P is not a close relative, she needs to show physical harm

Question 7

Intentional Trespass to Land

Answer 7

Intentional Trespass to Land

(1) D commits an act of physical invasion
(2) On P’s land
(3) D must have an intent to be on P’s land (not an intent to trespass)

Question 8

Negligent Trespass to Land

Answer 8

Negligent Trespass to Land

(1) D commits an act of physical invasion (due to D’s negligence, recklessness, abnormally dangerous activity)

(2) On P’s land

(3) causing damage to P’s land.

Question 9

Trespass to Chattels

Answer 9

Trespass to Chattels

(1) D must intentionally commit
(2) An act of interference where the degree of interference is minor
(3) With P’s tangible personal property

Recovery: P can recover cost of repair

Question 10

Conversion

Answer 10

Conversion

(1) D must intentionally commit
(2) An interference where the degree of interference is major
(3) With P’s tangible personal property

Recovery: P can recover full market value at the time of conversion

Question 11

Defenses to Intentional Torts: Consent

Answer 11

P may expressly or impliedly consent to D’s conduct but D must stay within the scope of P’s consent

Express Consent - D is not liable if P expressly consents to D’s conduct

Implied Consent - Consent which a reasonable person would infer from custom, usage, or P’s conduct

Consent Implied by Law - Arises when action is necessary to save a person’s life or some other important interest in personal property

Question 12

Defenses to Intentional Torts: Self Defense

Answer 12

D may raise the absolute defense of self defense if:

(1) D possessed a reasonable belief
- A reasonable belief exists when there is apparent necessity not actual necessity. a reasonable mistake is okay.

(2) She was being or was about to be harmed, and
-There must be immediate danger

(3) Such force was reasonably necessary to protect herself.

Modern Trend: D is under a duty to retreat if: (i) she can do so safely, and (ii) there is a reasonable means of escape, UNLESS she is in her home or non-deadly force is being used.

Initial Aggressor: An initial aggressor can’t raise self-defense unless she retreats and announces her retreat or the victim escalates with deadly force

Question 13

Defenses to Intentional Torts: Defense of Others

Answer 13

Defense of Others
(1) Possessed as a reasonable belief
- a reasonable belief exists when there is apparent necessity not actual necessity. A reasonable mistake is okay

(2) That another was being or was about to be harmed, and
-There must be immediate danger

(3) Such force was reasonably necessary to protect that other person

Question 14

Defenses to Intentional Torts: Defense of Property

Answer 14

D may use reasonable force to prevent the commission of a tort against her real or personal property so long as it is not deadly force.

Recapture
The recapture of chattel must be made peacefully. Force may only be used when in hot pursuit:

(1) D must make a request to desist or leave, unless this would be futile or dangerous.
(2) D may enter a wrong doers land to recover chattel if re-taken within a reasonable time and in a reasonable manner.

Question 15

Defenses to Intentional Torts: Shopkeeper’s Privilege

Answer 15

Defense to false imprisonment claims ONLY.

Shopkeeper must have the following (GIFT):
(1) Have reasonable grounds,
(2) Must conduct a reasonable investigation
(3) Must use reasonable force, and
(4) Detention must be for a reasonable time

Question 16

Defenses to Intentional Torts: Defense of Necessity - Public Necessity

Answer 16

Defense to tort claims ONLY: trespass to land, conversion, trespass to chattels

Public Necessity:
(1) D invades P’s property
(2) in an emergency
(3) to protect the community as a whole or a significant group of people

*Absolute privilege: no liability for trespass or damage.

Question 17

Defenses to Intentional Torts: Defense of Necessity - Private Necessity

Answer 17

Defense to tort claims ONLY: trespass to land, conversion, trespass to chattels

Private Necessity:
(1) D invades P’s property
(2) in an emergency
(3) to protect an interest of his own (i.e. personal/property safety or security).

*Qualified Privilege: No liability for trespass but liable for damage.

Question 18

Defenses to Intentional Torts: Defense of Necessity - Continuing emergencies

Answer 18

For continuing emergencies, D has a right to remain on P’s property in a position of safety; P can’t eject D off the land; if P ejects D off the land, P is liable for damages to D’s property and D’s personal injuries.

Question 19

Defenses to Intentional Torts: Capacity

Answer 19

Everyone is “capable” of intent. Incapacity is not a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.

Question 20

Defenses to Intentional Torts: Discipline

Answer 20

A teacher or parent may use reasonable force to discipline a child.

Question 21

Defenses to Intentional Torts: Privilege of Arrest

Answer 21

(cluster with shopkeeper’s privilege if false imprisonment claim ONLY)

If D makes an arrest of P, D has the privilege to make the arrest if:

(i) Misdemeanor Arrest: P was breaching the peace and this happened in front of D

(ii) Felony Arrest by Police: (1) D reasonably believed a felony had been committed (2) D reasonably believed P was the one who did it, and (3) reasonable force was used.

(iii) Felony arrest by non-police: (1) Felony must have been committed, (2) D reasonably believed P committed it, and (3) reasonable force was used.

Question 22

Negligence Order of Analysis

Answer 22

Duty
Standard of Care
Breach
Causation
Damages
NIED
Negligence Defenses

Question 22

Negligence

Answer 22

P must make a prima facie case for negligence, by a preponderance of the evidence, that D has a duty to behave according to the appropriate standard of care, D breached that duty, causation, and damages.

Standard of Evidence: Preponderance of the evidence, more likely than not; great than 50%

Question 22

Duty

Answer 22

All people have a duty to prevent an unreasonable risk of harm to others.

Cardozo view- all foreseeable plaintiffs within the zone of danger are owed a duty

Andrews view - D owes a duty to all

If there is a preexisting relationship between P and D there is a duty to act as a reasonably prudent X (whatever that person is) to the P (i.e. common carrier, employer, employee)

Ad hoc relationships may create a duty (e.g. spouses/frieds)

Question 23

Duty: failure to act

Answer 23

Failing to act and omission is breach If there is a preexisting relationship between P and D, there is a duty to act as a rewasonbly prudent X (whatever the person is) to the P (i.e. common carrier, employer, employee). Ad hoc relationships may create a duty (spouses, friends)

Question 23

Duty to rescue

Answer 23

There's a duty to rescue when D caused the peril. The standard of care is to rescue reasonably under the circumstances. D doesn't have to put his own life in peril.

Question 23

Standard of Care

Answer 23

People are required to act as a reasonably prudent person would act in the same or similar circumstances which is judged objectively. In certain circumstances, an individual has a duty to act according to a higher standard of care.

Question 23

Standard of Care: Default Standard

Answer 23

The default standard of care D owes is of a reasonably prudent person acting under similar circumstances.

Question 24

Duty to prevent third person from injuring another

Answer 24

There is no duty to prevent a 3P from injuring another UNLESS one has the actual ability and authority to control the 3P'S actions and knows or should know that the 3P is likely to commit acts that require his control.

Question 25

Standard of Care: Superior Knowledge

Answer 25

If D has superior knowledge about a matter relevant to the case then D is held to the higher standard of a reasonably prudent person with that superior knowledge.

Question 26

Standard of Care: Different Physical Characteristics

Answer 26

A D with different physical characteristics as an average person held to that standard of care that a reasonably prudent person with that physical characteristic would exercise.

Question 27

Standard of Care: Statutory Standard of Care (Negligence Per Se)

Answer 27

Negligence Per Se P may request the court to establish duty and breach through a statute. It would be applicable so long as: (1) The statute clearly defines the standard of conduct (2) P was in the class of persons the statute was designed to protect, and (3) The statute was designed to protect the type of harm suffered.

Question 28

Standard of Care: Child Standard of Care

Answer 28

A D-child is held to that standard of care that a reasonably prudent child of similar age, experience and intelligence acting under similar circumstances would exercise. Exception: if a child is engaged in adult activity, D-child owes a duty to act as a reasonably prudent person acting under similar circumstances.

Question 29

Standard of Care: Professional Standard of Care

Answer 29

D owes that standard of care that the average member of that profession engaged in similar services would give to P. Lawyers/Doctors/Specialists: compared to national standard Doctors have a duty to reasonably inform patient of any risks.

Question 30

Landowner's Standard of Care: Trespasser

Answer 30

A landowner owes no duty to a trespasser who is an unforeseeable victim

Question 31

Landowner's Standard of Care: Discovered or Anticipated Trespasser

Answer 31

A landowner has a duty to warn known trespassers about known, concealed, artificial, death traps.

Question 32

Landowner's Standard of Care: Attractive Nuisance

Answer 32

Attractive Nuisance (1) D must know of trespassers (2) D must know trespassers won't/can't appreciate the danger (3) D must be capable of eliminating the harm, and (4) the cost is outweighed by the benefit

Question 33

Landowner's Standard of Care: Licensee

Answer 33

Licensee (social guest) A licensee has the landowner's permission to enter but does not confer any economic benefit on the landowner. A landowner has a duty to warn, but not a duty to repair or inspect, a licensee of all concealed, known, artificial and natural dangers that create an unreasonable risk of harm that the licensee is not likely to discover.

Question 33

Landowner's Standard of Care: Invitees

Answer 33

Invitees (business guest) An invitee has the landowner's permission to enter and confers an economic benefit A landowner has a duty to inspect, repair, and warn an invitee of artificial and natural dangerous conditions that the invitee is not likely to discover.

Question 33

Landowner's Standard of Care: Recreational land users

Answer 33

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, UNLESS, the landowner willfully and maliciously failed to guard against or warn of dangerous condition or activity.

Question 34

Landowner's Standard of Care: Lessee

Answer 34

A lessee has a general duty to maintain the premises

Question 35

Landowner's Standard of Care: Lessor

Answer 35

A lessor has a duty to warn of reasonably known existing defects that the lessee is not likely to discover upon reasonable inspection If a lessor promises to repair - he is liable for unreasonably dangerous conditions If a lessor volunteers to repair and does so negligently, he is liable.

Question 36

Breach

Answer 36

A breach occurs when D falls below the standard of care he owes. As noted, here the standard of care is one of (reasonable or heightened care)

Question 37

Res ipsa loquitor

Answer 37

"the thing speaks for itself" An inference of negligence may arise when P shows that: (1) The accident that occurred is normally associated with negligence (2) The accident or injury is normally due to the negligence of someone in D's position because D had control over the instrumentality that caused the harm, and (3) P must rule out his own action as the cause of his harm

Question 38

Causation

Answer 38

Plaintiff must establish both actual and proximate causation

Question 39

Actual Cause

Answer 39

But for D's act or omission to act, P would not have been injured. Substantial Factor Test: a breach is a substantial factor if it would have been able to cause the injury by itself. - Merged Causes: two negligent Ds each breach seperately and breaches combine to cause harm. - Unascertainable cause: one breach caused the harm but its unclear who caused the breach. Each D has a certain percentage of chance that one of them caused the breach. Each D has the burden of proof to show he did not cause the harm.

Question 40

Proximate Causation

Answer 40

Plaintiff must show D's breach created a foreseeable risk of harm and P's injuries fall within the scope of the foreseeable harm.

Question 41

Eggshell Skull Plaintiff

Answer 41

P is entitled to recover all the damage he suffers even if surprisingly great in scope (i.e. D must take his P as he finds his P).

Question 42

Direct Cause

Answer 42

If there is an uninterrupted chain of events from the negligent act to P's injury, D is liable for all resulting foreseeable harm regardless of the unusual manner in which they arose.

Question 43

Intervening Event

Answer 43

A new force joins Ds action to cause P's injury. D is not liable if the intervening force was foreseeable. If D's negligence did not cause increased risk of the intervening force, the intervening force is superseding.

Question 44

Superseding Event

Answer 44

Forces break the casual connection between D's negligent act and P's injury

Question 45

Damages

Answer 45

A P must prove damages in the form of physical injury or property damage; economic harm alone is insufficient for a claim of negligence.

Question 46

Mitigation

Answer 46

A P cannot fully recover if P could have mitigated damages

Question 47

Negligent Infliction of Emotional Distress (NIED) Analysis

Answer 47

Raise and Dismiss IIED Analysis and Discussion of NIED

Question 48

Negligent Infliction of Emotional Distress (NIED)

Answer 48

To recover for NIED, P must show that: (1) P was foreseeable (2) P suffered from severe emotional distress UNLESS Near miss fact pattern - P is not physically injured but placed in a zone of physical danger by D's careless act; P's distress must cause subsequent physical manifestations of P's body Bystander Fact Pattern - see "bystander IIED" Relationship Fact Pattern - P and D are in a business relationship and it is highly foreseeable that negligence by D will distress P. D's Negligence - D's negligence creates a great likelihood of emotional distress (e.g. erroneous report of relative's death or mishandling of relative's corpse)

Question 49

Defenses to Negligence: Contributory Negligence

Answer 49

Under common law, conduct by P that contributes to the cause of injury and falls below the standard of care to which she is required to conform to, bars her complete recovery, UNLESS D had the last clear chance to avoid the harm. "last clear chance" - D must have the las clear chance to avoid the harm, not P.

Question 50

Defenses to Negligence: Imputed Contributory Negligence

Answer 50

Contributory negligence of third parties will be imputed to P and bar her claim on if P is vicariously liable for the third party's negligence (e.g. employer-employee, partner-joint venture, NOT husband/wife, parent/child, car owner/driver)

Question 51

Defenses to Negligence: Comparative Negligence

Answer 51

If D shows P failed to exercise proper care for her own safety, P's recovery should be reduced by the percentage of her fault determined by a jury. Partial/modified comparative negligence (MAJORITY): P's fault up to 50% results in reduction of recovery by P's percentage of fault but P's fault past 50% is an absolute bar to recovery Pure Comparative Negligence (MINORITY): P will recover so long as she is less than 100% liable

Question 52

Defenses to Negligence: Assumption of the Risk

Answer 52

If P (1) knew of the risk and (2) voluntarily proceeded in the face of the risk, she may be denied recovery under an assumption of the risk defense. Implied AOR - Knowledge of risk is implied where the average person would appreciate the risk (common carriers and public utilities cannot limit liability by a disclaimer that P must assume the risk). Express AOR - By express agreement, P assumes the risk

Question 53

Defenses to Negligence: No Defense

Answer 53

Firefighters and police officers can never recover for an injury since that is an inherent risk of their occupation.

Question 54

Strict Liability: Animals

Answer 54

Trespassing Animals: An owner is strictly liable for foreseeable damage done by trespass of his animals. Domesticated Animals: An owner of domesticated animals is not strictly liable but negligent for damage. Exception - an owner who has knowledge of his domesticated animal's vicious or dangerous propensities is strictly liable to licensees, invitees and the general public, NOT trespassers Wild Dangerous Animals: An owner is strictly liable to licensees and invitees for injuries caused by wild animals, even those kept as pets

Question 55

Strict Liability: Abnormally Dangerous Activities

Answer 55

If D engages in abnormally dangerous or ultra-hazardous activities, D is strictly liable for injuries of all foreseeable plaintiffs. An activity is abnormally dangerous or ultra-hazardous if: (1) There is a high risk of death inherent in the activity (2) The product/activity is not a matter of common usage (3) The degree of danger outweighs the benefit to the community, or (4) Even if D took utmost care to prevent the harm, the activity cannot be made safe For strict liability to attach for an ultra-hazardous activity, the nature of the harm or loss has to emanate from the ultra-hazardous activity.

Question 56

Strict Liability Analysis Order

Answer 56

Animals/Dangerous Activity Analysis Causation Damages Defenses

Question 57

Products Liability Analysis Order

Answer 57

Strict Products Liability Negligent Products Liability Breach of Express Warranty Breach of Implied Warranties Battery

Question 58

Products Liability

Answer 58

There are five theories of recovery under products liability: (1) strict products liability (2) negligent products liability (3) breach of express warranty (4) breach of implied warranties (5) battery

Question 59

Strict Products Liability

Answer 59

A D is strictly liable for P's injuries caused even when there is extreme care of precaution used to avoid the harm

Question 60

Strict Products Liability: Absolute Duty

Answer 60

Commercial suppliers (wholesale, retailer, manufacturer) owe an absolute duty to foreseeable plaintiffs, either consumers, product users or bystanders, to avoid unreasonable risk of harm and to put safe products on the market.

Question 61

Strict Products Liability: Breach

Answer 61

Manufacturers breach their duty to foreseeable plaintiffs if the product is defective for its foreseeable use when it left D's control. Defects may take the form of either: Manufacturing defect, design defect, failure to warn

Question 62

Strict Products Liability Breach: Manufacturing Defect

Answer 62

A product has a manufacturing defect when it differs from all the other products made on the same assembly line in a way that makes it more dangerous than consumers would expect

Question 63

Strict Products Liability Breach: Design Defect

Answer 63

A design defect occurs when a product's design on all products creates the risk of harm to consumers. To show a defect, P must use one of the following tests: Consumer Expectation Test Alternative Design Test

Question 64

Design Defect: Consumer Expectation Test

Answer 64

Consumer Expectation Test Under this test, a D is liable if P can show that the product failed to perform safely as an ordinary consumer would expect (D must anticipate reasonable misuse).

Question 65

Design Defect: Alternative Design Test/ Risk Utility

Answer 65

Alternative Design Test/ Risk Utility Under this test there is: (a) an alternative design that is safer than the version marketed, and (b) This design will not impair the utility or cost-effectiveness of the product

Question 66

Strict Products Liability Breach: Failure to Warn

Answer 66

If a product cannot be made safer in a practical and cost-effective way and has residual risks that consumers will not know of and appreciate, then that product must bear appropriate warnings.

Question 67

Strict Products Liability: Causation

Answer 67

Actual Causation But for D's act or omission to act, P would not have been injured. Proximate Causation The defect in the product must lead to a foreseeable type of harm and there must not be a superseding intervening force. A superseding intervening force in a products liability action would involve an event that substantially alters the product after it left D's control and before it reached the P so as to make it defective and cause a risk of harm. D would be relieved of liability.

Question 68

Strict Products Liability Defenses: Comparative Fault

Answer 68

D can show P failed to exercise proper care for her safety, and P's recovery should be reduced by her percentage of fault. Pure Comparative Fault (minority) - Less than 100% liable Partial/Modified Comparative Fault (majority): Up to 50% liable, past 50% not liable.

Question 69

Strict Products Liability Defenses: Contributory Negligence

Answer 69

not a defense for strict product liability

Question 70

Strict Products Liability Defenses: Assumption of risk

Answer 70

(1) D knew of the risk and (2) voluntarily proceeded in the face of the risk

Question 71

Strict Products Liability Defenses: State of the Art

Answer 71

A state of the art product is one whee there is no reasonably foreseeable alternative design available at the time the product was made.

Question 72

Strict Products Liability Defenses: Misuse of Product

Answer 72

The misuse of a product which is unforeseeable is a defense.

Question 73

Negligent Products Liability

Answer 73

Under a negligent products liability theory, P must show that the manufacturer of the product had a duty to her, the manufacturer breached that duty, and the breach caused her damages.

Question 74

Negligent Products Liability: Duty

Answer 74

Cardozo - Ds have a duty to all foreseeable plaintiffs within the zone of danger. All foreseeable plaintiffs include consumers, product users, and bystanders.

Question 75

Negligent Products Liability: Standard of Care

Answer 75

Manufacturers have a duty to all foreseeable plaintiffs to manufacture a safe product according to the industry standard of care which is to act as a reasonably prudent manufacturer would act.

Question 76

Negligent Products Liability: Breach

Answer 76

A defendant breaches his duty if the D's conduct falls below the standard of care as a reasonably prudent manufacturer in the industry would normally exercise

Question 77

Negligent Products Liability: Causation

Answer 77

Actual Causation But for D's act or omission to act, P would not have been injured. Proximate Causation The defect in the product must lead to a foreseeable type of harm and there must not be a superseding intervening force. A superseding intervening force in a products liability action would involve an event that substantially alters the product after it left D's control and before it reached the P so as to make it defective and cause a risk of harm. D would be relieved of liability. * Retailer not liable if reasonable inspection conducted **A failure to inspect does not cut off manufacturing liability

Question 78

Negligent Products Liability: Defenses

Answer 78

Contributory Negligence Comparative Fault (majority + Minority) Assumption of Risk

Question 79

Breach of Warranties

Answer 79

There are 2 implied warranties in every sale of goods that can serve as the basis for a products liability suit. Any buyer, family member, or houseguest can sue under these theories and P does not have to prove fault on the part of D. There may also be an express warranty in sale of goods.

Question 80

Breach of Warranties: Implied Warranty of Merchantability

Answer 80

This warranty is breached when the goods are not of average acceptable quality or are not fit for the general purpose for which they were intended.

Question 81

Breach of Warranties: Implied Warranty of Fitness for a Particular Purpose

Answer 81

This warranty is breached when: (1) The D has reason to know the particular purpose for which the consumer requires the goods, and (2) That the buyer is relying on the skill and judgement of the seller to select and furnish suitable goods of the kind

Question 82

Breach of Warranties: Express Warranty/Misrepresentation

Answer 82

Breach of an express warranty arises when a product does not conform to the affirmative representation made by the D that was a part of the basis of the bargain at the time the purchase was made.

Question 83

Breach of Warranties Defenses

Answer 83

Disclaimers: A seller may, under the UCC, disclaim both implied and express warranties - Merchantability: A seller may make a written disclaimer of the warranty of merchantability, but only if it is conspicuous AND the word merchantability must be specifically mentioned. - may have implied disclaimer where goods sold "as is" Tort Defenses: Assumption of Risk, Comparative Fault, Contributory Negligence, Product Misuse in implied warranty claims, and Failure to provide notice of breach Limitation of Consequential Damages: Sellers may try to limit the remedies available for breach. However, in the case of goods designed for personal use, limitation of damages clauses for personal injury are automatically unconscionable and unenforceable.

Question 84

Private Nusiance

Answer 84

Private Nuisance (1) A substantial and unreasonable interference (2) With P's use and enjoyment (3) Of P's property Defenses: Coming to the Nuisance Substantial: Interference that is offensive, inconvenient or annoying to the average person in the community. It is not substantial if P is hypersensitive and is using her property in a certain way. Unreasonable: Severity of inflicted injury must outweigh the utility of D's conduct

Question 85

Public Nuisance

Answer 85

Public Nuisance (1) An unreasonable interference (2) With the health, safety, welfare and property rights of the community Generally, public nuisance actions are brought by the government unless P: (i) suffers damages that are unique, and (ii) Damage to P is beyond the ordinary damages that the public incurred.

Question 86

Defamation

Answer 86

Common law defamation requires P to show: (1) D made a defamatory statement, (2) of or concerning P, (3) that he published to a third party, (4) that caused damage to P's reputation

Question 87

Defamatory Statement

Answer 87

A defamatory statement is one that is tending to adversely affect one's reputation and subjects P to contempt, ridicule, scorn or seriously damages P's reputation.

Question 87

Defamation: Published

Answer 87

P must show that the statement was communicated to a third person who understands the defamatory meaning. A primary publisher is the author or speaker of the defamatory statement A secondary publisher is one who has the statement repeated to him and is liable only if he knows or should have known of the defamatory meaning.

Question 87

Defamation: Of or concerning P

Answer 87

The P must show that a reasonable recipient of the information would understand the statement referred to P.

Question 87

Defamation Damages: Trade Libel

Answer 87

Trade libel is a written defamatory statement about P's business and P must prove special damages because general damages are not presumed.

Question 87

Defamation Damages: Slander not per se

Answer 87

Slander not per se is a spoken statement, and damages must be proven

Question 88

Defamation Damages: Slander per se

Answer 88

Slander per se involves the following four categories of statements made by D relating to (CLUB) and damages need not be proven: Crimes of Moral Turpitude Loathsome Diseases Unchastity of a Woman Business or Profession

Question 88

Defamation Damages: Libel

Answer 88

Libel is a written defamatory statement and general damages are presumed.

Question 88

Defamation: Constitutional Considerations

Answer 88

Constitutional defamation arises whenever D's statement deals with a matter of public concern and the P must prove two additional elements: (1) falsity and (2) fault. Matter of Public Concern: To determine whether the matter is a public or private concern, the court will look to the content, form and context of the publication Falsity - the statement is presumed true so P must show it is false Fault - the type of fault P must prove depends on whether the P is a public or private figure. If the P is a private figure, negligence must be shown. If the P is a public figure, malice must be shown. Malice: Malice is shown when D knew or should have known that the statement was false or acted with reckless disregard as to its falsity Negligence: P must show that D had a duty to act as a reasonable person under the circumstances, D breached that duty, thus causing damage to P.

Question 89

Defamation Defenses

Answer 89

Defenses to Defamation (C-TAQ) Consent: Consent is a defense so long as D does not exceed the scope fo the consent Truth: If D can show the statement is true he is not liable but the burden of proof is on D. Absolute Privilege: D has an absolute privilege if the defamatory statement is made: (i) during judicial proceedings (ii) by legislators during debate (iii) by federal executive officials (iv) in political candidate broadcasts (v) in between spouses Qualified Privilege: D has qualified privilege if: (i) Reports of public proceedings (court cases, legislative hearings) (ii) Statements to Protect the Interest of the Publisher (e.g. D believes property was stolen by P, he can tell police (iii) statements to protect the interest of others (e.g. old boss gives information bout ex-employee to new boss) (iv) statements in matter of public interest: defense so long as the statement is socially beneficial, stays on topic, and is made in good faith (in which D reasonably blieves what he says is true) (e.g. private citizen's reasonable, but mistaken, accusation made to police that P commited a crime OK) (v) Neutral Reportage: correct and neutral reports of charges made by one person against another OK if matter of public interest.

Question 90

Privacy Torts: Commercial Misappropriation

Answer 90

Commercial Misappropriation occurs when (1) D uses P's name or image (2) without P's consent (3) for a commercial advantage

Question 91

Privacy Torts: Intrusion Upon Seclusion

Answer 91

Intrusion Upon Seclusion occurs when (1) D invades P's physical seclusion (2) where P had a reasonable expectation of privacy (3) in a way that would be highly offensive to the average person

Question 92

Privacy Torts: False Light

Answer 92

False Light occurs when (1) D engages in widespread dissemination (2) about a material falsehood about P, that would be highly offensive to the reasonable person. **Subject to constitutional considerations of falsity and fault

Question 93

Privacy Torts: Public Disclosure of Private Facts

Answer 93

Public Disclosure of Private Facts Occurs when.. (1) there is a widespread dissemination (2) of confidential information about P, (3) that would be highly offensive to a reasonable person.

Question 94

Privacy Torts: Defenses

Answer 94

Truth - NOT A DEFENSE Consent - Absolute/Qualified Privileges (for False Light and Public Disclosure)

Question 95

Intentional Misrepresentation

Answer 95

(1) Misrepresentation by D of a material fact (2) With scienter (D knew or should have known of its falsity) (3) D had the intent to induce P to act in reliance (4) Which causes P to act in justifiable reliance (causation), and (5) P has suffered pecuniary loss (damages) **D is liable only if D intended to defraud that particular victim

Question 96

Negligent Misrepresentation

Answer 96

(1) Misrepresentation by D (2) In a professional or business capacity (3) Where D breaches a duty to P (4) Causing P to justifiably rely on D's misrepresentation (5) Resulting in economic damages to P Defense: Comparative Negligence

Question 97

Malicious Prosecution

Answer 97

(1) Institution of criminal/civil proceedings against P by D (2) Where termination is favorable to P "on the merits" (3) With an absence of probable cause to believe charge/claim is valid (4) Where D had an improper purpose in instituting the action, and (5) P suffered damages ** P in a malicious prosecution case was the defendant in the previous civil or criminal proceeding. D in a malicious prosecution case was the plaintiff int he previous civil or criminal proceeding. ***Prosecutors are immune from liability

Question 98

Abuse of Process

Answer 98

(1) the intentional misuse of the legal process (civil or criminal) (2) Where D acts against or threatens P to accomplish D's ulterior motive (3) Causing damages to P

Question 99

Interference with Contractual Relations

Answer 99

(1) There is a valid contract between P and a third party (2) D has knowledge of the contract (3) D intentionally interferes with the contract (4) That induces breach (causation) (5) causing damage to P. Defenses -Truth information - contract is illegal or against public policy - person is responsible for the welfare of another acting to protect that person's welfare - person i trying to protect his own legally protected interest

Question 100

Interference with Prospective Economic Advantage

Answer 100

(1) There is a valid business expectancy between P and a third-party (2) D has knowledge of the prospective economic advantage (3) D intentionally interferes with the prospective economic advantage (4) Which ends the business relationship (causation) (5) causing damages to P Defenses: - fair and/or ethical competition - acting to protect one's own financial interest - truth information - contract is illegal or against public policy - person is responsible for the welfare of another acting to protect that person's welfare - person is trying to protect his own legally protected interest

Question 101

Wrongful termination

Answer 101

where termination of an employee offends notions of public policy

Question 102

Wrongful Birth/Life

Answer 102

Where parents have an unwanted child which results because of D's negligence and P is able to recover economic damages and the costs of rearing the child, if the child has birth defects.

Question 103

Wrongful Death

Answer 103

Modern: P's specific relatives (e.g. spouses, kids) can recover pecuniary loss, if there was a wrongful death cause of action If employee, the employee must have been acting within the scope of his/her employment when he/she killed Damages: doesn't have to include amount of money decedent would have earned.

Question 104

Loss of Consortium

Answer 104

P's spouse can recover due to loss of companionship during other spouse's injury (however, only for that period of the spouse's injury) (1) Loss of services/support from partner/spouse (2) loss of society (companionship) (3) Loss of sex with partner/spouse

Question 105

Vicarious Liability

Answer 105

Where D is liable for third party's wrongful conduct because of a special relationship between them.

Question 106

Vicarious Liability: Respondeat Superior

Answer 106

Respondeat Superior (employer-employee) An employer is liable for the torts of his employee if they are within the scope of the employment relationship Intentional Torts are outside the scope of employment generally, UNLESS: (1) employee is granted a right to use physical force during his job (e.g. guard) (2) the job generates friction and employee flips out on customer (3) Employee is furthering the business of employer

Question 107

Vicarious Liability: Independent Contractor - Hiring Party

Answer 107

Independent contractor-hiring party Generally the principal is not liable, UNLESS: (1) The independent contractor is engaged in an inherently dangerous activity (2) Hiring party has a non-delegable duty (3) P has reason to believe the independant contract is an employee of D's (4) D was negligent in hiring the independent contractor, or (5) D knowns the independent contract must commit a trespass and damages result

Question 108

Vicarious Liability: Parents - Children

Answer 108

Parents/Children Parents generally are not liable for the intentional torts of their children, unless they knew or should have known the child had violent tendencies or tendencies to commit that particular tort.

Question 109

Vicarious Liability: Partner/Joint Venture Liability

Answer 109

Partner/Joint Venture Liability Partners are liable for activities of their partners conducted in the scope and course of the joint venture.

Question 110

Vicarious Liability: Family Car Doctrine

Answer 110

Family Car Doctrine Some states hold the owner liable for tortious conduct of immediate family/household members who are driving with the owner's permission Negligent Entrustment: An owner is liable for her own negligence in entrusting her car to a third person who commits a tortious act when the owner knew or should have known such a result could occur (e.g. drunk driver)

Question 111

Vicarious Liability: Dramshop Acts

Answer 111

Dramshop Acts Some states impose liability on bar owners for torts caused by their drunk customers

Question 112

Joint and Several Liability

Answer 112

When two or more people act in concert OR where they are vicariously liable OR where they acted independently but P has a single indivisible injury, each tortfeasor will be held jointly and severally liable. P can recover all of his damages from one tortfeasor Modernly: Each D is responsible for his share of the damages.

Question 113

Recovery

Answer 113

Contribution: Co-Ds owe out-of-pocket D based on their percentage of fault Indemnification: Occurs when there is a pre-existing relationship between the parties and the burden of judgment can be shifted from one tortfeasor to another

Question 114

Tort Immunity

Answer 114

Spousal Immunity - none Parent/Child Immunity - none Charitable Immunity - none Governmental Immunity - Public officials carrying out their official duties are immune from tort liability so long as their acts are done without malice or improper purpose - the gov't can't be sued for acts committed in the regular course of its business. - the gov't may be sued for acts committed in course of business that are not regularly conducted by the government.