Elements Flashcards
(81 cards)
1
Q
Elements of “NEID”
(yourself, a bystander)
A
P can recover under NEID under:
Zone of Danger
1) P was within the zone of danger
2) this caused P emotional distress
3) physical manifestation (majority)
Bystander
1) P is a close family member of injured
2) P was present at the scene
3) P directly observed the injury
4) physical manifestation (majority)
2
Q
Elements of “IIED”
A
1) Extreme & Outrageous conduct (defy human decency)
2) Intent to cause severe emotional distress OR reckless
3) factual cause
4) results in severe emotional distress
3
Q
Elements of “IIED of public figure”
A
must prove “falsity & actual malice” + other elements
4
Q
Libel & Slander
A
Libel: written
Slander: Verbal
5
Q
“Joint & Several Liability” in damages
A
P can collect 100% of the damages from any one of the tortfeasors
6
Q
“pure several liability” in damages
A
P can only recover amounts equal to the % of fault from each tortfeasor
7
Q
Elements of “Attractive Nuisance”
A
1) Artificial condition
2) Poses unreasonably risk of harm
3) D knows that children are likely to trespass
4) Risk of injury outweighs the burden of eliminating the danger
8
Q
List of intentional torts that “transfer of intent” applies to:
A
- Assault
- Battery
- Trespass to Land
- Trespass to Chattels
- False Imprisonment
9
Q
Intentional Torts “transfer of intent” does NOT apply:
A
- IIED
- Conversion
10
Q
Elements of “Private Nuisance”
A
1) Substantial and unreasonable
2) Interferes with another’s use & enjoyment of land
11
Q
Elements of “Trespass to Land”
A
Physically enters someone else’s land with the intent to do so
12
Q
Defense to Trespass to Land
A
Public Necessity: Owner cannot recover for damage caused by trespassing
Private Necessity: to protect your own personal property. Owner can recover for damage caused by trespassing.
13
Q
Elements of “Conversion”
(damages?)
A
Complete interference/deprivation of the use.
Damage: P can recover FULL value
14
Q
Elements of “Trespass to Chattels”
A
1) Using/Intermeddling/Dispossessing/Damaging of P’s chattel
2) With the intent to do the act
3) (if use/intermeddling): caused actual damages
15
Q
Damages for Trespass to Chattels
A
Actual or Nominal damage; OR
cost to repair / Lost of Use
16
Q
“Dram Shop” Liability
A
Owners/Bartenders/Social Hosts are liable for injury to 3rd party caused by ppl who drink too much
17
Q
Three types of Strict Liability
A
- Products Liability
- Animal
- Abnormally Dangerous Activities
18
Q
For a “Survival Action”
1) who can bring the claim?
2) What damages can be awarded?
A
1) Decedent’s Estate on behalf of the decedent
2) Personal injury, property damage
19
Q
For a “Wrongful Death” claim
1) Who can bring the claim?
2) What damages can be awarded?
A
1) Spouse of the decedent
2) loss of consortium, economic support
20
Q
Defenses of Defamation
A
- Truth
- Consent
- Privileges
21
Q
What constitutes a “absolute privilege” defense for defamation?
A
During legislative or judicial proceedings; required publications
22
Q
“Invasion of Privacy” claims include: (3)
A
- Intrusion upon seclusion
- False Light
- Appropriation of the right to publicity
23
Q
“Products Liability” claims P can bring:
A
- Negligence
- Strict Liability
- Breach of Warranty
24
Q
Elements of “False Imprisonment”
A
P must show:
1) Intent to confine OR actual confinement
- Intent: purposeful OR knowing (that it will occur with substantial certainty)
2) Method of physical, duress, invalid use of legal authority
25
What can be used as an exception to False Imprisonment claim?
Shop Keeper's privilege
- must be reasonable
26
Elements of "Intentional Interference with a Contract"
P must prove:
1) A valid K existed bt P and 3rd party
2) D intentionally & improperly interfered w/ the K
3) the interference caused P economic loss
27
When does an affirmative duty to act arise?
- If you caused the danger
- If you voluntarily assumed
- If it's through a special relationship
- If you have ability/authority to control the person
28
What is the standard of care of you have an affirmative duty
Reasonable duty
29
Damages under "Negligence" include: (2)
Compensatory Damage
Punitive Damage
30
"Compensatory Damage" for Negligence include: (5)
Damage to make the P whole again
- property damage
- loss of income, earning capacity
- emotional damage
- pain & suffering
- medical (past & future)
31
In order for P to be awarded "Punitive Damage", must prove:
Limitations on damages for punitive
P must show:
"wanton, willful, reckless, malice"
Limit: Punitive damage must be within a single digit of the compensatory dmg.
32
"Loss of Chance" Doctrine
In a medical malpractice case, the doctor is liable for damage equal to the lost chance of survival to the P caused by the doctor's negligence
33
Negligence: Factual Cause
(2 tests + 1)
1) "But-for" Test: But-for the D's negligence action, the injury to the P would not have occurred.
2) Substantial Factor test: If D's negligent act was a substantial factor in P's injury, it suffices the "factual cause" element. Used when multiple causes exist.
3) Shifting BOP to Ds: When there are multiple Ds and we can't determine which among the Ds caused the injury, then the burden of proof shifts to Ds by holding them jointly & severally liable, so they can figure out who was the cause.
34
Negligence: "Res Ipsa Loquitur" elements:
P must show:
1) The injury would not ordinarily occur without negligence;
2) Injury caused by someone/something that the D has exclusive control over;
35
Negligence: "Negligence Per Se" element:
(Breach)
P must prove:
1) an existing statute or law imposes a duty
2) D violated the law
2) P was within the class of person the statute intended to protect
3) Resulting injury was the type of harm the statute intended to prevent
4) The harm was caused by the violation of the statute
36
Negligence: "Customs"
(Breach of Duty)
-Customs in general, for professionals, for physicians
In general: Evidence proving that the D followed customs can be used as evidence that the D did not breach his duty, but this evidence is NOT dispositive of a breach, unless:
For professional: If complied w/ customs -> not breach
For Physicians: If ~informed consent-> breach, unless:
- risk commonly known
- p unconscious
- p waives/refuses info
- p incompetent
- p would be more harmed by disclosure
37
Negligence: Breach of Duty
(traditional & modern approach)
Traditional approach: "would a reasonably prudent person in that circumstance do that?"
Modern approach: Cost-benefit analysis (Hand formula)
- B: burden
- P: probability of harm
- L: severity of loss
If BPL: ~ Breach (so ~ Negligent yet)
38
Negligence: Standard of Care for "Possessors of Land"
Traditional approach
1) Invitees: reasonable duty of care
2) Licensees: make property "reasonably safe" / "warn" of known concealed danger
3) Trespassers: refrain from "intentional/reckless/wanton/willful" conduct, and against known harm
Modern approach: "reasonable duty of care" to all
39
Negligence: Standard of Care for "Special Circumstances"
- Common carriers
- Innkeepers
- Automobile drivers
- Emergency
Common Carriers
- Old: highest duty of care
- New: higher duty of care
Innkeepers
- Old: highest duty of care
- New: Reasonable duty of care
Automobile drivers
- Old: duty to refrain from "wanton/willful/grossly negligent" conduct
- New: Reasonable duty of care
Emergency
- Old: reasonable duty of care under the situation
- New: same
40
Negligence: Duty
(majority & minority)
Majority: Reasonable duty of care is owed to all who could "foreseeably" be injured by the D
Minority: Reasonable duty of care to all
41
NO DUTY TO UNFORESEEABLE PLAINTIFFS
42
Elements of "Battery"
P must prove:
1) intent to cause the contact
2) directly or indirectly caused the contact
3) physical
2) offensive or harmful
43
Strict Liability: Products
(3 types, elements to prove )
Types of product defects:
Manufacturing: Deviation from intended design (eg, incorrect assembly)
Design Defect: Foreseeable risk of harm that could have been mitigated by feasible alternative design (ie, reasonable in cost)
Inadequate warning: No reasonable instructions or warnings about risks of harm
Defect in Manufacturing, Design, and Failure to Warn
P must prove:
1) D is a commercial seller/supplier
2) product was defective
2) Defect existed when it left D's control
3) defect caused injury when it was used in a foreseeable way
44
Contributory Negligence
If P was negligent in some way, completely barred from recovery
45
Private Citizen's privilege of arrest
Private citizen can arrest for FELONIES if:
1) Crime actually occurred
2) reasonably believes this person did it
Private citizen can arrest for MISDEMEANORS if:
1) breach of peace
46
Acceptable force/means to recapture "property"
- personal property "wrongfully" taken
- personal property "not wrongfully" taken
- "real property" taken
personal property "wrongfully" taken:
1) first, must request return
2) then, must only use "reasonable" force, deadly force NOT allowed
personal property "not wrongfully" taken":
1) only through peaceful means
"real property" taken:
- only through legal process
47
5 elements of Negligence
1. Duty
2. Breach of Duty
3. Factual Cause
4. Proximate Cause
5. Damage
48
Defense to private nuisance
(is it a complete defense?)
NOT a complete defense, but courts will consider:
- compliance with state/local regulations
- coming into the nuisance knowingly
49
Pure Comparative Fault
P's recover will be reduced by % of P's negligence
50
Modified Comparative Fault
If P's negligence is greater than 50%, complete bar
51
SL: Abnormally Dangerous Activity
When is D liable for this?
D is SL for activity that creates a foreseeable & highly significant risk of harm REGARDLESS of care
52
SL: Domestic Animals
D is SL for injury caused by domestic animals if:
1) D knows/has reason to know that animal has dangerous propensities
53
SL: Trespasser & Trespassing animals
Trespasser: No liability
Trespassing animals: Owner is liable for "reasonably foreseeable" damage caused by trespassing animal
54
Under "Apparent Agency Doctrine" when will an independent contractor be treated as an employee, thus making the employer liable for the IC's conduct?
An Independent Contractor will be treated as an employee if:
- injured party accepted IC's services on "reasonable belief" that IC was an employee; OR
- IC's negligence is a factual cause of harm, and harm is within the scope of liability
55
Negligence: Respondeat Superior
Employer is "vicariously" liable for the negligence of its employees, if it occurred "within the scope of employment"
- minor deviation: employer liable
- major deviation: employer X liable
56
Negligence: "Wrongful Life"
(who can bring claim? for what?)
Claim brought by child for negligence in contraceptive/detecting birth defects
baned in most states
57
Negligence: "Wrongful Birth"
(who can bring? for what?)
claim brought by parent
allowed in most states, can recover for:
- med exp, pain & suffering
- if disability, can recover additional exp.
58
Elements of: "Assault"
P must prove:
1) Intent to "inflict harmful or offensive contact"; OR "imminent apprehension" of such contact; AND
2) P must have "reasonable apprehension" of "imminent harm"
Mere words not enough, physical contact not required
59
Defamation
TBD
60
Constitutional Requirements of Defamation
TBD
61
Assumption of Risk
TBD
62
what is a defense to SL?
Assumption of risk
63
Land owners duty to "foreseeable" trespassers v. "unforeseeable" trespassers?
foreseeable: warn of hidden objects/danger
unforeseeable: no duty unless grossly, reckless, wanton
64
When is a employer vicariously liable for harm caused by the independent contractor?
- a non-delegable work (like abnormally dangerous activities)
65
SL for products due to inadequate warnings or instructions can be claimed when:
- foreseeable risk of harm that is not obvious to an ordinary user; AND
- reasonable instructions or warnings by the commercial supplier could have reduced that risk
66
Under Negligence, what type of damage is NOT recoverable?
purely economic loss
67
For Defamation, is a corp considered a public figure?
yes
68
in SL of wild animals, if animal is not freely roaming around, but restrained, can a plaintiff still recover if in fear fell and injured?
no, only liable for such injuries if the wild animal was freely roaming around
69
Misappropriation of the right of publicity
using the reporter's identity for commercial advantage without the reporter's consent
70
What type of damage can a landowner recover from trespasser who damages the landowner's land?
- nominal?
- actual?
- punitive?
only actual
71
a bystander that's X family can recover from IIED if prove all elements of IIEL PLUS:
Intentionally/recklessly cause ED
resulted in *physical harm
72
parents are liable for their kids' tort only if
they knew of it
73
When can a child be liable for intentional tort?
if they either act with a purpose or know the consequences of their acts with a substantial certainty.
74
For strict products liability, when is a misuse, alteration, or modification of a product by the user cause no liability by the manufacturer?
The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates liability.
75
When discussing Negligence analysis, always include:
In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.
76
How does a plaintiff's negligence effect recover for SL?
In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action.
77
What is the landlord liable for that happens in the residential building?
The landlord remains liable for injuries to the tenant and others occurring:
i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) As a result of hidden dangers about which the landlord fails to warn the tenant;
iii) On premises leased for public use;
iv) As a result of a hazard caused by the landlord’s negligent repair; or
v) Involving a hazard that the landlord has agreed to repair
78
What force, if any, can a land owner use to defend its property from harm?
reasonable force
But if it's to recapture, no. only legal means
79
what does finding of res ipsa loquitur do?
prevents dismissal of the plaintiff's claim
80
objective and subjective test of "Battery"
objective: if it would be harmful/offensive to a reasonable ordinary person
subjective: if the defendant knows that the plaintiff is hypersensitive, but does it regardless
81
land possessor's duty to licensees and invitees
invitees: reasonable duty of care to inspect for hidden danger, discovery such danger, and protect invitee from such danger
licensee: reasonable duty of care to warn of hidden danger KNOWN to the landowner
